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Kovach v. Geauga County Auditor's office

Court of Claims of Ohio

December 19, 2019

STACEY KOVACH Requester
v.
GEAUGA COUNTY AUDITOR'S OFFICE, CHARLES WALDER Respondent

          Sent to S.C. Reporter 1/16/20

          REPORT AND RECOMMENDATION

          JEFF CLARK SPECIAL MASTER

         {¶1} 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. Glasgow v. Jones, 119 Ohio St.3d 391, 2008-Ohio-4788, 894 N.E.2d 686, 13.

         Background and Facts

         {¶2} Requester Stacey Kovach sent a letter to respondent Geauga County Auditor's Office, Charles Walder (Auditor), dated July 25, 2019, containing six inquiries related to a piece of real property. (Am. Complaint at 4-6; Response, Oct. 4, 2019 Walder Aff. - Exh. A.) Counsel for respondent sent a letter to Kovach dated July 31, 2019 advising that it had no responsive records to Requests Nos. 1 and 2, and that the county treasurer rather than the auditor maintained the records described in Request No. 3. Respondent's counsel further denied Requests Nos. 4, 5 and 6 as inquiries seeking answers to questions rather than requesting copies of specified public records. (Am. Complaint at 23; Response, Oct. 4, 2019 Walder Aff. - Exh. B.) Kovach sent a letter to the Auditor on August 21, 2019 disputing the Auditor's responses to Requests Nos. 1, 2, 4, 5, and 6, and added a seventh request. (Am. Complaint at 24-25; Response, Oct. 4, 2019 Walder Aff. - Exh. C.) On August 22, 2019, Kovach made a verbal request (Request No. 8) for "a copy of the video of the event which [transpired that day]." (Am. Complaint at 2.) Subsequent to the filing of this action, respondent's counsel sent a letter to Kovach dated September 16, 2019 enclosing a video recording allegedly in response to Request No. 7. (Response, Oct. 4, 2019 Walder Aff. - Exh. D.)

         {¶3} On August 27, 2019, Kovach filed a complaint pursuant to R.C. 2743.75 alleging that the Auditor denied her access to public records in violation of R.C. 149.43(B). Following unsuccessful mediation, the Auditor filed a motion to dismiss (Response) on October 4, 2019. On October 18, 2019, Kovach submitted an unsolicited document titled "affidavit of support." Pursuant to R.C. 2743.75(E)(2) the special master directed the clerk of court to accept this document (Reply) for filing. On December 12, 2019, the Auditor filed a response to the special master's order to submit additional information and documentation regarding Kovach's requests for videos.

         Motion to Dismiss

         {¶4} In order to dismiss a complaint for failure to state a claim upon which relief can be granted, it must appear beyond doubt that the claimant can prove no set of facts warranting relief after all factual allegations of the complaint are presumed true and all reasonable inferences are made in claimant's favor. State ex rel. Findlay Publishing Co. v. Schroeder, 76 Ohio St.3d 580, 581, 669 N.E.2d 835 (1996). As long as there is a set of facts consistent with the complaint that would allow the claimant to recover, dismissal for failure to state a claim is not proper. State ex rel. V.K.B. v. Smith, 138 Ohio St.3d 84, 2013-Ohio-5477, 3 N.E.3d 1184, ¶ 10. The unsupported conclusions of a complaint are, however, not admitted and are insufficient to withstand a motion to dismiss. Mitchell v. Lawson Milk Co., 40 Ohio St.3d 190, 193, 532 N.E.2d 753 (1988).

         {¶5} The Auditor moves to dismiss the complaint on the same grounds he provided in the letters of July 31 and September 16, 2019. Under the abbreviated pleading procedure in this action (see R.C. 2743.75(D)(1) and (E)(2)) the City's defenses have been filed as a combined response and motion to dismiss. On consideration of the motion to dismiss, I find the defenses asserting the non-existence of certain records are not conclusively shown on the face of the complaint. Moreover, as the matter is now fully briefed I find that all the arguments to dismiss are subsumed in the arguments to deny the claim on the merits. I therefore recommend that that the motion to dismiss be denied, and the matter determined on the merits.

         Burdens of Proof

         {¶6} In any action to enforce the Public Records Act (PRA), the burden is on the requester to prove an alleged violation. In mandamus actions,

[although the PRA is accorded liberal construction in favor of access to public records, "the relator must still establish entitlement to the requested extraordinary relief by clear and convincing evidence."

State ex rel. Caster v. Columbus, 151 Ohio St.3d 425, 428, 2016-Ohio-8394, 89 N.E.3d 598, ¶ 15. Entitlement to relief in an action filed under R.C. 2743.75 must likewise be established by clear and convincing evidence. Hurt v. Liberty Twp., 2017-Ohio-7820, 97 N.E.3d 1153, ¶ 27-30 (5th Dist.).

         {¶7} If a public office asserts an exception to the PRA, the burden of proving the exception rests on the public office. State ex rel. Cincinnati Enquirer v. Pike Cty. Coroner's Office, 153 Ohio St.3d 63, 2017-Ohio-8988, 101 N.E.3d 396, ¶ 15. An exception is a state or federal law prohibiting or excusing disclosure of items that otherwise meet the definition of "public record." However, the defense that a request was improper in the first instance does not assert an exception. Where the defense of ambiguity or overbreadth is raised, the burden of proof remains with the requester to show that he has reasonably identified the record sought:

"[I]t is the responsibility of the person who wishes to inspect and/or copy records to identify with reasonable clarity the records at issue." State ex rel. Fant v. Tober, 8th Dist. Cuyahoga No. 63737, 1993 Ohio App. LEXIS 2591, 1993 WL 173743, *4 (Apr. 28, 1993), aff'd, 68 Ohio St.3d 117, 623 N.E.2d 1202 (1993).

Of particular application to the defenses asserted herein, the Supreme Court in State ex rel. McCaffrey v. Mahoning Cty. Prosecutor's Office, 133 Ohio St.3d 139, 2012-Ohio-4246, 976 N.E.2d 877, ¶ 22-26 held that if an office asserts that a requested record does not exist, the requester must show that it does. Similarly, in State ex rel. O'Shea & Assocs. Co., L.P.A. v. Cuyahoga Metro. Hous. Auth., 131 Ohio St.3d 149, 2012-Ohio-115, 962 N.E.2d 297, ¶ 23 the Court held that if a document's status as a "record" is denied, the burden remains on the requester to show that it is a record of the office.

         Requests Nos. 1 And 2: Non-Existent Records

         Requests Nos. 1 and 2 in Kovach's letter of July 25, 2019 are as follows:

         Please provide the following:

1) Copies of any and all communications, email, tape recordings ... between you and Prosecutor Nicholas Burling concerning Stacey Kovach, the property ...

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