Opinion
Case No. 2019-00380PQ
07-09-2019
IAN ANDREWS Requester v. CITY OF YOUNGSTOWN Respondent
REPORT AND RECOMMENDATION
{¶1} Ohio's Public Records Act, R.C. 149.43, provides a remedy for production of records under R.C. 2743.75 if the Court of Claims determines that a public office has denied access to public records in violation of R.C. 149.43(B). The policy underlying the Act is that "open government serves the public interest and our democratic system." State ex rel. Dann v. Taft, 109 Ohio St.3d 364, 2006-Ohio-1825, 848 N.E.2d 472, ¶ 20. Therefore, the Act is construed liberally in favor of broad access, and any doubt is resolved in favor of disclosure of public records. State ex rel. Glasgow v. Jones, 119 Ohio St.3d 391, 2008-Ohio-4788, 894 N.E.2d 686, ¶ 13. Claims under R.C. 2743.75 are determined using the standard of clear and convincing evidence. Hurt v. Liberty Twp., 2017-Ohio-7820, 97 N.E.3d 1153, ¶ 27-30 (5th Dist.).
{¶2} On October 20, 2018, requester Ian Andrews made a public records request to respondent City of Youngstown (the City) via email to the Youngstown Law Department:
[W]ould you please provide copies of all records related to the decision on October 17 by the Council to extend the time the owners of the DoubleTree by Hilton hotel have to repay a $2,050,000 no-interest loan to the city.
This should include all correspondence from and to Doubletree or its agents regarding their request for loan extension, as well as City internal correspondence on the subject. "Correspondence" should be interpreted widely to include emails, letters, charts and diagrams, spreadsheets,
reports, memos, file notes, "postit" notes etc. Also, any records held only on sound, photo or video files.(Complaint at 2.) On January 5, 2019, the City provided Andrews with an electronic file containing documents and emails. (Id. at 4.) At some point prior to February 13, 2019, the City provided Andrews with a CD containing 366 pages of records. (Id. at 6.) On February 13, 2019, Andrews advised the City that he believed additional responsive records existed, and on February 14, 2019, the City responded that it had provided all emails and additional records found by the City in answering the request. (Id.)
{¶3} On March 18, 2019, Andrews filed this action under R.C. 2743.75, alleging denial of timely access to public records by the City in violation of R.C. 149.43(B). Following unsuccessful mediation, the City filed a motion to dismiss (Response) on June 13, 2019. On June 27, 2019, Andrews filed a reply to the response. The special master granted the City's motion to strike references to and copies of privileged mediation communication contained in Andrews' reply, but overruled the motion as to copies of additional records the City provided to Andrews during the course of mediation. (July 3, 2019 Order.)
Motion to Dismiss
{¶4} The City moves to dismiss the complaint on the ground that it has provided all City records relevant to the request, without redaction. The City supports this assertion with the following affidavits:
1. The Chief Information Officer for the City of Youngstown, asserting that "[t]he City provided all email communications that exist that pertain to the Stambaugh Building Double Tree hotel loan extension." (Deak Aff.)
2. The Clerk of Counsel for the City of Youngstown asserting that as the department keeper of records she "responded to a public records request involving the Stambaugh Building Double Tree Hotel loan extension and provided any relevant documentation in my possession." (Marrow Aff.)
3. The Director of Community Planning & Economic Development for the City of Youngstown asserting that as the department keeper of records she "responded to a public records request involving the Stambaugh Building Double Tree Hotel loan extension and provided any responsive documentation in the possession of the Community Planning & Economic Development Department." (Woodberry Aff.)
{¶5} Andrews states in that in addition to the records referenced above, he received 35 pages of additional responsive records from the City on May 14, 2019. (Reply at 1.) Andrews asserts that the City did not provide all requested documents prior to this litigation, but that this delay in production ended 57 days after his complaint was filed. (Id. at 2.) Andrews thus appears to concede that all responsive records have now been provided. In an action to enforce R.C. 149.43(B), a public office may produce requested records prior to the court's decision and thereby render the claim for production moot. State ex rel. Striker v. Smith, 129 Ohio St.3d 168, 2011-Ohio-2878, 950 N.E.2d 952, ¶ 18-22. The evidence is uncontradicted that the City has done so. I recommend that the court find the claim for production is moot.
Requirement to Provide Records Timely
{¶6} A public office must provide copies of public records "within a reasonable period of time." R.C. 149.43(B)(1). The duration of a "reasonable period of time" is evaluated based on the facts and circumstances of each case. State ex rel. Shaughnessy v. Cleveland, 149 Ohio St.3d 612, 2016-Ohio-8447, 76 N.E.3d 1171, ¶ 8-22. The fact that a public office deals with many other public records requests is not an acceptable excuse for delay. State ex rel. Wadd v. Cleveland, 81 Ohio St.3d 50, 53-54, 689 N.E.2d 25 (1998). See also State ex rel. Cincinnati Enquirer v. Pike Cty. Coroner's Office, 153 Ohio St.3d 63, 2017-Ohio-8988, 101 N.E.3d 396, ¶ 58; State ex rel. Morgan v. Strickland, 121 Ohio St.3d 600, 2009-Ohio-1901, 906 N.E.2d 1105, ¶ 10, 16-17. A public office is not required to respond to all public records requests within any arbitrary number of days. Shaughnessy, supra, at ¶ 14-15.
{¶7} The City did not acknowledge Andrews' October 20, 2018 request until November 28, 2018, (Complaint at 2.) Further, the City's email of November 28, 2019 appears to indicate that it did not commence efforts to locate responsive records until after it received Andrews' November 21, 2018 email. (Id.) The City produced approximately 408 pages of records to Andrews over the period of January 5 to January 23, 2019. (Id. at 4-5.) However, the City provided no testimony from City records custodians explaining the period of time taken for production. Counsel for the City states that the remaining responsive documents were compiled and available on January 8, 2019 but, due to an error, the records were not finally sent to Andrews until January 23, 2019. (Response at 4.)
{¶8} Public offices may take the time reasonably necessary to retrieve, analyze, and redact requested records, including time to secure legal advice. Shaughnessy, supra, at ¶ 12, 22; State ex rel. Patituce & Assocs. v. Cleveland, 8th Dist. Cuyahoga No. 104837, 2017-Ohio-300, ¶ 9-10 (January 20, 2017) (police personnel files). However, the City does not contradict Andrews' account of the timing of its responses, or provide an explanation as to why even the first production of records did not occur for 80 days. The City does not allege, for example, that the responsive records were difficult to locate, or required extensive legal review, or required any redaction. I find under the facts and circumstances of this case that the delay of 80 to 94 days from receipt of the request until the production of the responsive records constituted a failure of the City to provide copies within a reasonable period of time. R.C. 149.43(B)(1).
{¶9} In a separate allegation of delayed production, Andrews claims that the additional records he received from the City during litigation included attachments missing from email records previously provided, or were otherwise records responsive to the request but not provided in the initial response. (Reply at 1-2.) However, Andrews' reference to documents and attachments fails to clearly identify which records were previously provided, and which later records are the alleged attachments. Despite the requirements of the order of June 13, 2019 authorizing the filing of the reply, Andrews did not "specifically identify the referenced item by document, page, and paragraph, as appropriate" in referring to records. Opposing this claim, the City denies that it failed to turn over all responsive documents prior to litigation. (Motion to Strike at 3.) On this state of the record, I find that Andrews fails to demonstrate by clear and convincing evidence that any additional records provided by the City were not previously provided, and/or were responsive to the original request, and/or were not provided within a reasonable period of time.
Conclusion
{¶10} Upon consideration of the pleadings and attachments, I recommend that the court issue an order finding that requester's claim for production of records is moot. I further recommend that the court issue an order finding that respondent failed to provide the requested records within a reasonable period of time. I recommend that court costs be apportioned equally between the parties.
{¶11} Pursuant to R .C. 2743.75(F)(2), either party may file a written objection with the clerk of the Court of Claims of Ohio within seven (7) business days after receiving this report and recommendation. Any objection shall be specific and state with particularity all grounds for the objection. A party shall not assign as error on appeal the court's adoption of any factual findings or legal conclusions in this report and recommendation unless a timely objection was filed thereto. R.C. 2743.75(G)(1).
/s/_________
JEFFERY W. CLARK
Special Master Filed July 9, 2019
Sent to S.C. Reporter 9/12/19