THERESA A. DARR Requester
CITY OF HUBER HEIGHTS Respondent
to S.C. Reporter 7/24/18
REPORT AND RECOMMENDATION
SPECIAL MASTER JEFFERY W. CLARK JUDGE
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.)
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.
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.
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.
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.
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 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.)
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.
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 ¶ 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