DAVID L. WENGERD Requester
EAST WAYNE FIRE DISTRICT Respondent
to S.C. Reporter 12/11/17
REPORT AND RECOMMENDATION
JEFFERY W. CLARK Special Master.
In a letter dated December 19, 2016, requester David Wengerd
made a public records request of respondent East Wayne Fire
District ("East Wayne FD") including, as relevant
to this action:
"Any and all attorney fees paid in 2015 and 2016 and for
what purpose and to whom.
Any and all grants that have been applied for and or received
since 2014. This would include any and all paperwork either
digital or hardcopy including the applications."
(Complaint, p. 3.) East Wayne FD responded on December 30,
2016 by requesting clarification of the request for attorney
fees documents, requesting clarification of the request for
grant records, and advising that East Wayne FD does not
maintain copies of Federal Emergency Management Agency (FEMA)
grant applications. (Complaint, p. 4-6.) On January 9, 2017,
Wengerd submitted the following clarification:
1. All invoices received and checks that have been written to
Atty. Comstock, * * * in 2015 and 2016.
3. I am looking for the applications, notifications, and
terms of the following FEMA Grants.
A. 2014 SAFER Grant for hiring for $648, 000.00.
B. 2015 SAFER Grant for recruitment for $639, 950.00.
C. 2015 AFG Grant for Paid On Call/Stipend for personal
protection for $284, 457.00.
* * *
5. The number of Fire and EMS runs for the Village of Dalton
6. The number of runs for Fire and EMS for the unincorporated
parts of Sugar Creek Township for 2016."
(Complaint, p. 7.) On January 22, 2017, East Wayne FD
responded to request # 3 by stating: "Federal grants are
applied for and processed through a federal government portal
& applicants are required to use this portal unless
exempted by federal law. EWFD is not exempted." It
stated in response to requests # 5 and 6,
"we do not have any document that divides the
information the very specific way you requested. Monthly runs
are recorded in our monthly meeting minutes that are posted
(after approval) on our website at
www.eastwaynefd.com. They are also announced during
monthly meetings when the fire chief gives his report."
(Complaint, p. 22.) On February 9, 2017, East Wayne FD
provided copies of check stubs and redacted billing
statements of attorney David Comstock. (Complaint, p. 8-21.)
On February 25, 2017, Wengerd repeated his request for the
federal grant applications, and asked: "Please cite the
ORC Rule or OAG Opinion that states that EWFD does not have
to provide this information." He repeated his request
for "a call log or listing of all FIRE and EMS runs for
Sugar Creek Township and the Village of Dalton for the entire
year of 2016." (Complaint, p. 23.) On March 21, 2017,
East Wayne FD sent Wengerd the following explanation for its
denial of copies of the applications for federal grants:
"[T]he Fire District has interpreted your request to
mean applications for SAFER and AFG programs administered by
the Federal Emergency Management Agency/Department of
The District does not have any such record.
The Fire District does not have an obligation to produce
records that are not under its control. See State ex rel.
Doe v. Tetrault, Clairmont [sic] App. No. CA2011-10-070,
2012 WL 3641634, 2012-Ohio-3879.
The process for submitting a FEMA grant requires an online
application filed through FEMA's website which is
governed and controlled by FEMA. The grant application is
completely electronic and the District has not maintained any
electronic or paper copies of the grant applications."
(Complaint, p. 24.) On March 21, 2017, East Wayne FD
reiterated its denial of the request for a call log or
listing of specified fire and EMS runs as not existing in a
single document. (Complaint, p. 26.)
On May 9, 2017, Wengerd filed a complaint under R.C. 2743.75
alleging denial of access to public records by East Wayne FD
in violation of R.C. 149.43(B). The complaint seeks relief
regarding the following items: 1) applications for the three
specified SAFER grants, 2) call logs for fire and EMS runs
for Sugar Creek Township and the Village of Dalton, and 3)
unredacted invoices from attorney David Comstock. The matter
was referred for mediation, and the court was notified that
the parties had not resolved all disputed issues. On July 27,
2017, East Wayne FD filed a response and motion to dismiss.
On September 7, 2017, East Wayne FD filed unredacted copies
of all withheld records responsive to the requests, under
seal, with additional briefing. On September 27, 2017,
requester filed a reply to respondent's pleadings.
R.C. 149.43(B)(1) requires public offices to make their
public records available for inspection, or make copies
available, upon request by any person. The policy underlying
the Public Records 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. "[O]ne of the
salutary purposes of the Public Records Law is to ensure
accountability of government to those being governed."
State ex rel. Strothers v. Wertheim, 80 Ohio St.3d
155, 158, 684 N.E.2d 1239, 1242 (1997). Therefore, R.C.
149.43 must be construed "liberally in favor of broad
access, and any doubt is resolved in favor of disclosure of
public records." State ex rel. Cincinnati Enquirer
v. Hamilton Cty., 75 Ohio St.3d 374, 376, 662 N.E.2d 334
R.C. 2743.75(F)(1) states that public records claims filed
thereunder are to be determined through "the ordinary
application of statutory law and case law." Case law
regarding the alternative statutory remedy of a mandamus
action provides that a relator must establish by
"clear and convincing evidence" that he is entitled
to relief. State ex rel. Miller v. Ohio State Hwy.
Patrol, 136 Ohio St.3d 350, 2013-Ohio-3720, ¶ 14.
Therefore, the merits of this claim shall be determined under
the 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. See Hurt v. Liberty Twp., 5th
Dist. Delaware No. 17CAI050031, 2017-Ohio-7820, ¶ 27-30.
There is no dispute that East Wayne FD is a public office.
East Wayne FD does dispute that its FEMA SAFER grant
applications are "records" of its official
functions, or are physically "kept" by it, arguing
that they are therefore not subject to disclosure under the
Public Records Act as "public records."
See R.C. 149.43(A)(1) ("'Public record'
means records kept by any public office, * *
East Wayne FD moves to dismiss the complaint on the grounds
that, 1) the request for fire and EMS runs has been rendered
moot by provision of those records subsequent to the filing
of the complaint, 2) the request for legal invoices for David
Comstock has been rendered moot by provision of those records
subsequent to the filing of the complaint, 3) the legal
invoices of David Comstock were properly redacted to withhold
attorney-client privileged information, and 4) with respect
to the applications for FEMA grants, a) no copies are kept by
East Wayne FD, b) the final application is the property and
record of the Department of Homeland Security, c) the
"grant narrative" portions of the grant
applications constitute trade secrets of East Wayne FD and
the independent consultant who composed the narratives, and
d) the "grant narrative" portions of the grant
applications are copyrighted as the literary work of the
grant writer and the District.
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, 532 N.E.2d 753 (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, 327 N.E.2d
753 (1975). The unsupported conclusions of a complaint are,
however, not admitted and are insufficient to withstand a
motion to dismiss. Mitchell at 193.
In an action to enforce R.C. 149.43(B), a public office may
produce the requested records prior to the court's
decision, and thereby render the claim for production of
records moot. State ex rel. Striker v. Smith, 129
Ohio St.3d 168, 2011-Ohio-2878, ¶ 18-22. A court
considering a claim of mootness must first determine what
records were requested, and then whether all responsive
records were provided. Wenger requested specific call logs of
fire and EMS runs, but affirms that subsequent to the filing
of the complaint East Wayne FD provided these records.
"I am satisfied with the production of these records for
the Fire and EMS runs." (August 15, 2017 Response to
Order.) I therefore recommend that the motion to dismiss the
claim for production of fire and EMS run records as moot be
With respect to the request for billing invoices of attorney
David Comstock, East Wayne FD provided Wengerd with redacted
invoices. Wengerd disputes that the Comstock invoices were
properly redacted to remove only attorney-client and/or trial
preparation information. I therefore recommend that the
motion to dismiss this claim as moot be GRANTED only as to
the unredacted portions of the provided invoices of David
Comstock, and DENIED as to the redacted portions.
of Claimed Exceptions
R.C. 149.43(A)(1) enumerates specific exceptions from the
definition of "public record, " as well as a
catch-all exception for, "[r]ecords the release of which
is prohibited by state or federal law." R.C.
149.43(A)(1)(v). If a court determines that records withheld
from release are exempt from disclosure, a complaint based
solely on denial of access to the records is subject to
dismissal for failure to state a claim upon which relief may
be granted. State ex rel. Welden v. Ohio State Med.
Bd., 10th Dist. Franklin No. 11AP-139, 2011-Ohio-6560,
¶¶ 2, 13-15; State ex rel. Parisi v. Heck,
2d Dist. ...