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Sinclair Media III, Inc. v. City of Cincinnati

Court of Claims of Ohio

May 20, 2019

SINCLAIR MEDIA III, INC. D/B/A WKRC-TV Requester
v.
CITY OF CINCINNATI Respondent

          Sent to S.C. Reporter 6/28/19

          DECISION

          PATRICK M. MCGRATH JUDGE.

          {¶1} Respondent City of Cincinnati (City) filed objections to the report and recommendation of the special master, issued on April 15, 2019. Requester Sinclair Media II, Inc. d/b/a WKRC-TV (Sinclair) filed a response to the City's objections. For the reasons set forth below, the court adopts, in part, and modifies, in part, the special master's report and recommendation.

         Factual Background and Procedural History

         {¶2} On May 6, 2018, reporter Angenette Levy submitted the following public records request on behalf of Sinclair to the City's Solicitor, Paula Boggs-Meuthing:

This is an open records request for all text messages from Cincinnati city council members, Mayor John Cranley and Harry Black in which Black's employment status is discussed. I request these records pursuant to ORC - 149.43 the Ohio Public Records Act.
We are also requesting any messages in which votes on Black's employment are discussed and attempts to sway other members of council. I am also requesting any text messages involving the so-called "Gang of 5" in which Harry Black's employment is discussed- including any text messages in which race is discussed.
The text messages we are requesting are between March 1 and April 12, 2018.

(Complaint, Ex. A.) Harry Black is the former City Manager for the City of Cincinnati. (Supplemental Pleading at 1.) Levy re-submitted the request to the City Solicitor's Chief Counsel, Roshani Hardin, on May 25, 2018. (Complaint, Ex. A.) Hardin confirmed receipt of the request, and told Levy, "We will get that item assigned and provide you with the responsive documents." (Complaint, Ex. A.) Levy sent a follow-up message on July 17, 2018. (Complaint, Ex. A.) The City neither denied the request nor provided any further response. (Complaint, Ex. A; Motion to Dismiss at 2.)

         {¶3} On October 11, 2018, Sinclair filed this action pursuant to R.C. 2743.75, alleging a denial of access to public records. The court appointed an attorney to serve as special master in this case. Following unsuccessful mediation, the City filed a combined motion to dismiss and response to Sinclair's complaint. The City moved to dismiss the complaint on the grounds that Sinclair's request was ambiguous and overly broad and that the records requested were not public records. Pursuant to an order issued by the special master, the City filed a supplemental response and submitted records under seal. Sinclair filed a reply to the City's combined pleadings.

         {¶4} The special master issued a report and recommendation recommending the court deny the City's motion to dismiss and order the City to provide Sinclair the records filed under seal. (Report and Recommendation at 8, 14). The special master found the request sufficiently clear and specific because it was limited to text messages sent by specific City officials, discussing the specific topic of Black's employment, within a six-week period. (Report and Recommendation at 9-10.) With respect to the City's claim that the requested records were not "public records," the special master determined that text messages written by City council members and officials concerning the employment status of a City official (Black) were records created, received, by, or under the jurisdiction of the City. (Report and Recommendation at 3-6.) The special master further determined that those records were "kept by" the City through its officials, regardless of whether the text messages were kept on publicly-issued or personal devices. (Report and Recommendation at 8.)

         R.C. 2743.75(F)(2) provides:

Either party may object to the report and recommendation within seven business days after receiving the report and recommendation by filing a written objection with the clerk and sending a copy to the other party by certified mail, return receipt requested. Any objection to the report and recommendation shall be specific and state with particularity all grounds for the objection.* * *If either party timely objects, the other party may file with the clerk a response within seven business days after receiving the objection and send a copy of the response to the objecting party by certified mail, return receipt requested. The court, within ...

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