to S.C. Reporter 6/13/17
REPORT AND RECOMMENDATION
Jeffery W. Clark Special Master
R.C.149.43(C) provides that a person allegedly aggrieved by a
violation of division (B) of that section may either commence
a mandamus action, or file a complaint under R.C. 2743.75. In
mandamus actions alleging violations of R.C. 149.43(B), a
relator must establish by "clear and convincing
evidence" that they are entitled to relief. State ex
rel. Miller v. Ohio State Hwy. Patrol, 136 Ohio St.3d
350, 2013-Ohio-3720, ¶ 14. As for actions under R.C.
2743.75 alleging violations of R.C. 149.43(B), neither party
has suggested that another standard should apply, nor is
another standard prescribed by statute. R.C. 2743.75(F)(1)
states that such claims are to be determined through
"the ordinary application of statutory law and case law
* * *." Accordingly, the merits of this claim shall be
determined under a standard of clear and convincing evidence,
i.e., "that measure or degree of proof which is more
than a mere 'preponderance of the evidence, ' but not
to the extent of such certainty as is required 'beyond a
reasonable doubt' in criminal cases, and which will
produce in the mind of the trier of facts a firm belief or
conviction as to the facts sought to be established."
Cross v. Ledford, 161 Ohio St. 469 (1954), paragraph
three of the syllabus.
On February 22, 2017, requester Susan Alt filed a complaint
under R.C. 2743.75 alleging denial of access to public
records in violation of R.C. 149.43(B) by respondent Cuyahoga
County Probation Department (Probation Department). On March
24, 2017, the court issued an order requiring Alt to submit
an amended complaint that: attaches a copy of the records
request on which the complaint is based, supports her
standing to enforce a request made by another person, and
details whether she is requesting a new audit, or one that
was in existence at the time of the request. On April 7,
2017, Alt filed an amended complaint and attachments. On
April 14, 2017, the Probation Department filed a motion to
dismiss. On April 17, 2017, Alt filed a reply to the motion
to dismiss with attachments. The case proceeded to mediation,
and on April 25, 2017, the court was notified that the case
was not resolved and that mediation was terminated. On May 5,
2017, the Probation Department filed the response permitted
by R.C. 2743.75(E)(2). On May 9, 2017, Alt submitted a
"Reply-2nd Motion to Dismiss" that lacks
a certificate of service, and shall therefore not be
considered by the court. Civ.R. 5(B)(4).
For the reasons stated below, the special master concludes,
first, that Alt fails to show that she made a public records
request to the Cuyahoga County Probation Department. Second,
assuming arguendo that the proffered request had been made,
the Probation Department is a branch of the Cuyahoga County
Court of Common Pleas, and this court lacks jurisdiction over
the records of any court case commenced on or after July 1,
2009. Third, a request for "a complete audit/breakdown
of funds collected by the convictions of this the [sic] Task
Force, " is not a proper request for reasonably
identified existing public records, but rather an
impermissible request for the creation of a new record.
Page 3 of the Probation Department's May 5, 2017 motion
to dismiss (response), contains averments regarding Alt's
criminal history. This information is immaterial to a claim
for public records, since any person may make a public
records request for any purpose unless a specific law
provides otherwise. R.C. 149.43(B)(1); Gilbert v. Summit
County, 104 Ohio St.3d 660, 2004-Ohio-7108, ¶ 10.
Alt is not subject to R.C. 149.43(B)(8), and the Probation
Department cites no other law establishing the materiality of
this information. On the court's own initiative, I find
that the material starting at response page 3, line 5,
"Although not necessary to consider, " through the
end of the paragraph, is immaterial to the defense of this
matter, and is ORDERED stricken.
The Probation Department moves pursuant to Civ.R. 12(B)(6) to
dismiss the complaint for failure to state a claim on the
grounds that: 1) Alt lacks standing to bring this action; 2)
the purported public records request was never made to the
Probation Department; 3) as a department of the Cuyahoga
County Court of Common Pleas, the Probation Department is not
subject to R.C. 149.43; 4) Alt makes an impermissible request
to create new records; and 5) the requested records are
excepted by R.C. 149.43(A)(1)(b) ("records pertaining to
probation and parole proceedings or to proceedings related to
the imposition of community control sanctions and
post-release control sanctions.").
In construing a motion to dismiss pursuant to Civ.R.
12(B)(6), the court must presume that all factual allegations
of the complaint are true and make all reasonable inferences
in favor of the non-moving party. Mitchell v. Lawson Milk
Co., 40 Ohio St.3d 190, 192 (1988). Then, before the
court may dismiss the complaint, it must appear beyond doubt
that plaintiff can prove no set of facts entitling him to
recovery. O'Brien v. Univ. Community Tenants Union,
Inc., 42 Ohio St.2d 242, 245 (1975). The unsupported
conclusions of a complaint are, however, not admitted and are
insufficient to withstand a motion to dismiss.
Mitchell at 193.
Where Records Request Made by Colleague
R.C. 149.43(C) provides that "a person allegedly * * *
aggrieved by the failure of a public office" to comply
with R.C. 149.43(B) may file a claim pursuant to R.C.
2743.75. The Probation Department argues that since Alt did
not make the purported records request herself she is not a
person "allegedly aggrieved, " and her claim must
be dismissed for lack of standing. However, a person seeking
public records may make her request through a designee.
State ex rel. Quolke v. Strongsville City Sch. Dist. Bd.
of Educ, 142 Ohio St.3d 509, 2015-Ohio-1083, ¶
15-24; State ex rel. Steckman v. Jackson, 70 Ohio
St.3d 420, 427, 639 N.E.2d 83 (1994); State ex rel.
Sensel v. Leone, 12th Dist. Butler No. CA97-05-102, 1998
Ohio App. LEXIS 434, *17 fn. 3, reversed on other grounds 85
Ohio St.3d 152 (1999). The author of the purported records
request in this case avers that she and Susan Alt were
colleagues in a project described as "to obtain public
records from Cuyahoga County, Ohio." (amended complaint,
Ex. A (1) Mitchell Aff.). The request at one point states,
"We are requesting * * *." (Id., Ex. B),
which suggests a joint enterprise. I find this evidence
sufficient to establish that Mitchell was Alt's designee
for purposes of the purported records request and that Alt is
therefore an "allegedly aggrieved" person within
the meaning of R.C. 149.43(C).
Evidence That Request Was Made to Respondent
To demonstrate a denial of access to public records in
violation of R.C. 149.43(B), an allegedly aggrieved person
must first show that they made a request to the named public
office. "R.C. 149.43(C) requires a prior request as a
prerequisite to a mandamus action." State ex rel.
Lanham v. Smith,112 Ohio St.3d 527, 2007-Ohio-609,
¶ 14. "There can be no 'failure' of a
public office to make a public record available 'in
accordance with division (B), ' without a request for the