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State ex rel. Bristow v. Wilson

Court of Appeals of Ohio, Sixth District, Erie

May 18, 2018

State of Ohio, ex rel. Lonny Bristow Relator
v.
Luvada Wilson, et al. Respondents and State of Ohio, ex rel. Lonny Bristow Relator
v.
Tygh Tone, Judge Respondent and State of Ohio, ex rel. Lonny Bristow Relator
v.
Kevin Baxter, et al. Respondents

          Lonny Bristow, pro se.

          Kevin J. Baxter, Erie County Prosecuting Attorney, Gerhard R. Gross, and Mark P. Smith, Assistant Prosecuting Attorneys, for respondents.

          DECISION AND JUDGMENT

          PER CURIAM.

         {¶ 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.[1] 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.

         I. Motions for Summary Judgment

         A. Background

         {¶ 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.[2]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:[3] 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.

         B. 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).

         C. 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.

         1. 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 ...


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