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Darr v. City of Huber Heights

Court of Claims of Ohio

June 27, 2018

THERESA A. DARR Requester
v.
CITY OF HUBER HEIGHTS Respondent

          Sent to S.C. Reporter 7/24/18

          REPORT AND RECOMMENDATION

          SPECIAL MASTER JEFFERY W. CLARK JUDGE

         {¶1} Requester Theresa Darr sent respondent City of Huber Heights four public records requests from August 8, 2016 to October 20, 2016, which were assigned Request numbers by the City as follows: #22016, #32016, #42016, and #52016. (Complaint at 3-18.) The City advised Darr and her counsel that all four requests were duplicates of previous requests to which responsive records had been provided, and that all but #22016 were overly broad and failed to identify with reasonable clarity the records at issue. The City attempted to provide responsive records or explanations to all the requests. (Id. at 19-24; Response, Liberman Aff., Exhs. 1-6.)

         {¶2} On January 22, 2018, Darr filed a complaint under R.C. 2743.75 alleging denial of access to public records by the City in violation of R.C. 149.43(B). On May 15, 2018, the court was notified that mediation had failed to resolve all disputed issues. On May 29, 2018, the City filed a combined response and motion to dismiss (Response). On May 31, 2018, the court issued an order requiring Darr to file a reply 1) listing the requests that had not been satisfied, 2) identifying for each request what records the City had already produced, and 3) identifying what specific, existing records the City had failed to produce. Darr filed a reply on June 25, 2018 that lists only Request #52016, and this report will therefore be confined to that request.[1]

         {¶3} Ohio's Public Records Act, R.C. 149.43, provides a remedy for production of records under R.C. 2743.75 if the court of claims determines that a public office has denied access to public records in violation of R.C. 149.43(B). The policy underlying the 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. Therefore, the Act "is 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). Claims under R.C. 2743.75 are determined using the standard of clear and convincing evidence. Hurt v. Liberty Twp., 5th Dist. Delaware No. 17CAI050031, 2017-Ohio-7820, ¶ 27-30.

         {¶4} The City moves to dismiss for failure to state a claim on the ground that all existing records responsive to Darr's request have been produced, rendering her claim moot.

         Motion to Dismiss

         {¶5} 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.

         {¶6} The issue of mootness cannot be determined in this case based solely on the complaint and attachments thereto. While respondent may provide support for this defense in its response, mootness is not proven on the face of the complaint. I therefore recommend that the motion to dismiss be DENIED, and the matter determined on the merits.

         Request #52016

         {¶7} Request #52016 is contained in a letter dated October 20, 2016 and makes the following request for each of twelve named City employees: "Any and All emails sent and/or received in [the employee's official capacity] from 12:10 am April 10, 2015 until 11:59 pm June 15, 2016." (Complaint at 14-18.) City counsel handling Darr's requests was in communication with Darr's legal counsel regarding this and other requests, until Darr's counsel advised that he was no longer representing her on public records issues. (Liberman Aff. at ¶ 6-13; Exh. 3.) On July 31, 2017, City counsel sent Darr a letter stating 1) that the documents subject to Request #52016 were a complete duplication of voluminous files already provided in prior requests, 2) that the request was overly broad, and 3) that the delay in responding directly to her was based on his belief that her counsel had been representing her on this request. (Id. at ¶ 14; Exhs. 4, 5.)

         Overly Broad Request

         {¶8} A general request for all email to and from a public employee for over five months was found overly broad, and therefore an improper request, in State ex rel. Glasgow v. Jones, 119 Ohio St. 391, 2008-Ohio-4788, 894 N.E.2d 686, ¶ 4-5, 16-19. Accord Zidonis v. Columbus State Community College, 133 Ohio St.3d 122, 2012-Ohio-4228, 976 N.E.2d 861, ¶ 4, 13, 28-32. Darr's original request was for all email to and from each of twelve public employees, for over fourteen months. Even Darr's revised request for seven weeks of each employee's email amounts, collectively, to twenty-one employee-months of email. In State ex rel. Bristow v. Baxter, 6th Dist. Erie Nos. E-17-060, E-17-067, E-17-070, 2018-Ohio-1973, ¶ 2, 12-16, the court found that requests for one-month periods of all email sent and received by multiple employees was ambiguous and overly broad. I find that Request #52016 constituted an overly broad, improper request that the City was entitled to deny, and eventually did deny.

         {¶9} First, the City attempted to satisfy the request using a word search for potentially responsive email, despite its reservations that the request was overly broad and voluminous. (Response at 7-12; Rogers Aff. at ΒΆ 9, 12, 17.) However, the City violated its statutory obligation to respond properly to the overly broad request at the point where it denied, or in the City's term, "objected ...


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