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Hicks v. Village of Newtown

Court of Claims of Ohio

November 30, 2017


          Sent to S.C. Reporter 12/11/17


          JEFFERY W. CLARK, Special Master

          {¶1} This case arises from Christopher Hicks' request for public records related to the Short Park Project ("project"), which is a joint venture between respondent Village of Newtown ("Newtown") and Miami Valley Christian Academy ("MVCA"), a private K-12 school located in Newtown. The joint venture involves construction of an athletic complex, at MVCA's expense, on property owned by Newtown. A joint venture agreement ("JVA") and first addendum ("Addendum") contain the terms of the agreement, including a provision that "all documents pertaining to the construction, use, maintenance, and any other actions concerning Zone 1, Zone 2, the Facilities, or the Park shall be a public record." (Response, Exhibits A and B, JVA Section 2.4.)

         {¶2} Hicks has made multiple public records requests to Newtown for records related to the project. Prior to the instant request, he was provided with over 700 pages of records. (Complaint, p. 1.) On May 24, 2017, Hicks sent this request to Newtown:

         {¶3} I am formally requesting these records relating to the Short Park Project:

. Transparent information on all donors/contributors and copies of all donor/contributor agreements.
. Transparent information on the special loan of $500k (source, and specific below market terms).
. Bank/financial statements from any entity specifically set up for this project and/or of any financial accounts relating to this project.

(Id. at 2.) On June 5, 2017, Village Solicitor Emily Supinger responded that Newtown had no records responsive to the request in its possession, and that any responsive records would not fall within the purview of what constitutes a public record until Newtown has such records in its possession. (Id. at 3.)

         {¶4} On July 14, 2017, Hicks filed his complaint under R.C. 2743.75 alleging denial of access to public records in violation of R.C. 149.43(B). On July 19, 2017, the court referred the case to mediation. On September 1, 2017, the court was notified that the case was not resolved and that mediation was terminated. On October 26, 2017, the City filed its response and motion to dismiss ("Response"). On October 30, 2017, Hicks filed an additional pleading ("Reply").

         {¶5} The remedy of production of records is available under R.C. 2743.75 if the court determines that a public office denied an aggrieved person access to public records in violation of R.C. 149.43(B). R.C. 149.43(B)(1) requires a public office to make copies of public records available to any person upon request, within a reasonable period of time. 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 (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 (1996).

         {¶6} 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 mandamus[1] 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, 995 N.E.2d 1175, ¶ 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, 120 N.E.2d 118 (1954), paragraph three of the syllabus. See Hurt v. Liberty Twp., 5th Dist. Delaware No. 17CAI050031, 2017-Ohio-7820, ¶ 27-30.

         Motion to Dismiss

         {¶7} Newtown moves to dismiss the complaint on the grounds that, 1) the requests for "transparent information" are overly broad requests to create new records, 2) all the requests are for records of MVCA, not of Newtown, and 3) Newtown is not required to access any records maintained by MVCA. 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.

         Ambiguous, Overly Broad, and Otherwise Improper Requests

          {¶8} In its response, Newtown for the first time denies Hicks' requests for "transparent information" as requiring it to search for information and compile it into new records. (Response at 4.) Hicks does not challenge this argument in his reply. For analysis of this defense, Hicks' requests can be broken out as seeking:

1. transparent information on all donors/contributors relating to the project
2. copies of all donor/contributor agreements relating to the project
3. transparent information on the special loan of $500k relating to the project (source, and specific below market terms)
4. bank/financial statements from any entity specifically set up for the project
5. bank/financial statements of any financial accounts relating to the project

         A request to search for information "regarding, " or "relating" to, a topic is generally improper. In State ex rel. Shaughnessy v. Cleveland, 149 Ohio St.3d 612, 2016-Ohio-8447, 76 N.E.3d 1171, ¶ 10, the Ohio Supreme Court cited examples of improper requests to conduct research, rather than identifying the records sought:

The Public Records Act does not compel a public office "to do research or to identify records containing selected information." See State ex rel. Fant v. Tober, 8th Dist. Cuyahoga No. 63737, 1993 Ohio App. LEXIS 2591, 1993 WL 173743, *1 (Apr. 28, 1993), aff'd, 68 Ohio St.3d 117, 1993 Ohio 154, 623 N.E.2d 1202 (1993). See also Morgan, 121 Ohio St.3d 600, 2009-Ohio-1901, 906 N.E.2d 1105, at ¶ 14-15 (request for "[a]ny and all email communications * * * which reference * * * the 'evidence-based model' or education funding in general" was overbroad) (first ellipsis sic); State ex rel. Thomas v. Ohio State Univ., 71 Ohio St.3d 245, 246, 1994 Ohio 261, 643 N.E.2d 126 (1994) (noting denial of writ of mandamus where request for records sought selected information "regarding or related to" any pro-animal-rights action group or individual), citing Fant.

Accord Natl. Fedn. of the Blind of Ohio v. Ohio Rehab. Servs. Comm., 10th Dist. Franklin No. 09AP-1177, 2010-Ohio-3384, ¶ 33-35 (request for information "pertaining to" nonpayment of maintenance fees). In response to a question, or request for information, a public office has "no duty under R.C. 149.43 to create new records by searching for and compiling information from existing records." State ex rel. White v. Goldsberry, 85 Ohio St.3d 153, 154, 707 N.E.2d 496 (1999); see also State ex rel. Lanham v. State Adult Parole Auth., 80 Ohio St.3d 425, 427, 687 N.E.2d 283 (1997) (request for "qualifications of APA members, " rather than specific records). Instead, "'it is the responsibility of the person who wishes to inspect and/or copy records to identify with reasonable clarity the records at issue.'" (Citations omitted.) State ex rel. Zidonis v. Columbus State Community College, 133 Ohio St.3d 122, 2012-Ohio-4228, 976 N.E.2d 861, ¶ 21. A public office may deny any request that is ambiguous, overly broad, or does not reasonably identify the records sought. R.C. 149.43(B)(2).

         {¶9} Based on the above, I find that the language in requests Nos. 2, 4 and 5 for "copies of all donor/contributor agreements" and "bank/financial statements" is properly specific. However, I find that the language in requests Nos. 1 and 3 for "information on all donors/contributors" and "information on the special loan of $500k" improperly requests a search for records containing loosely described information, rather than identifying specific records. See State ex rel. Oriana House, Inc. v. Montgomery, 10th Dist. Franklin Nos. 04AP-492, 04AP-504, 2005-Ohio-3377, ¶ 9; Shaughnessy at ¶ 10. Hicks did not identify the loan by recipient, or by whom the loan instrument was kept. Further, a public office may deny a request for information from a category of persons or entities, when research is required to establish any entity's membership in the category. Oriana House, Id. Request No. 4 for "bank/financial statements from any entity specifically set up for the project" fails to name any such entity, by whom it was "set up, " or what function it ...

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