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Alt v. Cuyahoga County Probation Department

Court of Claims of Ohio

May 16, 2017

SUSAN ALT, Requester
v.
CUYAHOGA COUNTY PROBATION DEPARTMENT, Respondent

          Sent to S.C. Reporter 6/13/17

          REPORT AND RECOMMENDATION

          Jeffery W. Clark Special Master

         {¶1} 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.

         {¶2} 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).

         {¶3} 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.

         Motion to Strike

         {¶4} 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.

         Motion to Dismiss

         {¶5} 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.").

         {¶6} 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.

         Standing Where Records Request Made by Colleague

         {¶7} 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).

         No Evidence That Request Was Made to Respondent

         {¶8} 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, ΒΆ 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 record ...


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