State of Ohio, ex rel. Lonny Bristow Relator
Luvada Wilson, et al. Respondents and State of Ohio, ex rel. Lonny Bristow Relator
Tygh Tone, Judge Respondent and State of Ohio, ex rel. Lonny Bristow Relator
Kevin Baxter, et al. Respondents
Bristow, pro se.
J. Baxter, Erie County Prosecuting Attorney, Gerhard R.
Gross, and Mark P. Smith, Assistant Prosecuting Attorneys,
DECISION AND JUDGMENT
1} This consolidated matter is before the court on
cross-motions for summary judgment filed by the parties.
Respondents, Luvada Wilson, Roger Binette, Paul Sigsworth,
Kevin Baxter, Gerhard Gross, and Tygh Tone, filed a motion to
dismiss on January 19, 2018, that we converted to a motion
for summary judgment by order issued on March 15, 2018.
Relator, Lonny Bristow, filed a motion for summary judgment
on January 22, 2018. Pursuant to our March 15 order, both
parties filed supplemental memoranda. Bristow filed his
memorandum on March 16, 2018, and respondents filed theirs on
April 13, 2018. Also before the court is Bristow's
January 22, 2018 motion for sanctions. Respondents filed an
opposition on February 2, 2018. Bristow filed a reply on
February 5, 2018. These matters are now decisional.
Motions for Summary Judgment
2} Although we comprehensively addressed the
background of this case in our March 15 order, we will
briefly summarize the facts pertinent to the motions for
summary judgment. The issues before us stem from three
petitions for writs of mandamus that Bristow filed on
December 6, 2017, January 4, and March 16,
2018.Bristow's petitions seek orders
compelling respondents, who are all (with the exception of
Gross) Erie County elected officials, to comply with
Bristow's public records requests for a variety of
emails, employment applications, and personnel files. Despite
initially requesting more records, Bristow narrowed his
requests in his motion for summary judgment and his amended
petition in case No. E-17-060. Based on Bristow's
filings, only the following disputed requests remain for our
consideration: all emails sent and received by Wilson and
one of her employees from September 3 to October 3, 2017; all
emails sent and received by Sigsworth and one of his
employees from September 3 to October 3, 2017; all emails
sent and received by Binette from September 3 to October 3,
2017; the personnel files for Baxter and two of his
employees; all emails sent and received by Tone from
September 3 to October 3, 2017; and all emails sent and
received by Baxter and 12 of his employees from October 13 to
November 13, 2017.
3} In his motion for summary judgment, Bristow
argues that the records he requested from respondents are all
public records and respondents have wrongfully refused to
provide him with the records. Respondents counter that
Bristow's requests for "every incoming and outgoing
e mail [sic]" in case Nos. E-17-060 and E-17-067, and
"all incoming and outgoing e mails [sic]" in case
No. E-17-070 are ambiguous and overly broad, Baxter does not
maintain a personnel file on himself, and any personnel files
that Baxter maintains on his employees do not fall within the
definition of a public record in R.C. 149.43.
Summary Judgment Standard
4} The court can grant a motion for summary judgment
only when the moving party demonstrates:
(1) that there is no genuine issue as to any material fact;
(2) that the moving party is entitled to judgment as a matter
of law; and (3) that reasonable minds can come to but one
conclusion, and that conclusion is adverse to the party
against whom the motion for summary judgment is made, who is
entitled to have the evidence construed most strongly in his
favor. Harless v. Willis Day Warehousing Co., 54
Ohio St.2d 64, 66, 375 N.E.2d 46 (1978); Civ.R. 56(C).
5} The party seeking summary judgment must
specifically delineate the basis upon which the motion is
brought and identify those portions of the record that
demonstrate the absence of a genuine issue of material fact.
Dresher v. Burt, 75 Ohio St.3d 280, 293, 662 N.E.2d
264 (1996); Mitseff v. Wheeler, 38 Ohio St.3d 112,
526 N.E.2d 798 (1988), syllabus. When a properly supported
motion for summary judgment is made, an adverse party may not
rest on mere allegations or denials in the pleadings, but
must respond with specific facts showing that there is a
genuine issue of material fact. Civ.R. 56(E); Riley v.
Montgomery, 11 Ohio St.3d 75, 79, 463 N.E.2d 1246
(1984). The opposing party must do so using "pleadings,
depositions, answers to interrogatories, written admissions,
affidavits, transcripts of evidence, and written stipulations
of fact * * *." Civ.R. 56(C). A "material"
fact is one that would affect the outcome of the suit under
the applicable substantive law. Russell v. Interim
Personnel, Inc., 135 Ohio App.3d 301, 304, 733 N.E.2d
1186 (6th Dist. 1999); Needham v. Provident Bank,
110 Ohio App.3d 817, 827, 675 N.E.2d 514 (8th Dist.1996),
citing Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
Law and Analysis
6} Bristow seeks writs of mandamus compelling
respondents to provide him with documents that he alleges are
public records. Respondents maintain that Bristow is not
entitled to any of the records that he requests.
7} "Ohio's Public Records Act requires a
public office or person responsible for public records to
promptly disclose a public record * * *, " subject to
the exceptions in R.C. 149.43(A)(1). State ex rel Toledo
Blade Co. v. City of Toledo, 6th Dist. Lucas No.
L-12-1183, 2013-Ohio-3094, ¶ 6. Under R.C. 149.43(A)(1),
a "public record" is defined as "records kept
by any public office * * *." A "public office"
is "any state agency, public institution, political
subdivision, or other organized body, office, agency,
institution, or entity established by the laws of this state
for the exercise of any function of government." R.C.
149.011(A). "Records" include "any document,
device, or item, regardless of physical form or
characteristic, including an electronic record * * *, created
or received by or coming under the jurisdiction of any public
office * * *, which serves to document the organization,
functions, policies, decisions, procedures, operations, or
other activities of the office." R.C. 149.011(G). The
content of a record maintained by a public office determines
whether it is a "public record, " as defined in
R.C. 149.43 and 149.011. See State ex rel. Wilson-Simmons
v. Lake Cty. Sheriffs Dept, 82 Ohio St.3d 37, 41, 693
N.E.2d 789 (1998), quoting State ex rel. Steffen v.
Kraft, 67 Ohio St.3d 439, 440, 619 N.E.2d 688 (1993)
("R.C. 149.43(A)(1) 'does not define a "public
record" as any piece of paper on which a public officer
writes something.'"); Wagner v. Huron Cty. Bd.
of Cty. Commrs., 6th Dist. Huron No. H-12-008,
2013-Ohio-3961, ¶ 22.
8} Mandamus is the appropriate remedy for compelling
compliance with the Public Records Act. State ex rel.
Cincinnati Enquirer v. Sage, 142 Ohio St.3d 392,
2015-Ohio-974, 31 N.E.3d 616, ¶ 10. A person seeking a
writ of mandamus to compel a public office to comply with a
public records request must establish two elements by clear
and convincing evidence: (1) the relator has a clear legal
right to the requested relief and (2) the opposing party has
a clear legal duty to provide the relief. State ex rel.
Carr v. London Corr. Inst, 144 Ohio St.3d 211,
2015-Ohio-2363, 41 N.E.3d 1203, ¶ 20. Although the
Public Records Act is liberally construed in favor of the
party seeking access, the relator must still establish his
right to a writ of mandamus by clear and convincing evidence.
Id. at ¶ 19.
Bristow's Requests for Emails are Overly Broad
9} The first category of records that Bristow seeks
to access is "every incoming and outgoing e mail
[sic]" sent by respondents and their employees for
various one-month periods. Respondents denied the requests
because, among other reasons, they were overly broad and
ambiguous. We agree with respondents that Bristow's