to S.C. Reporter 1/16/20
REPORT AND RECOMMENDATION
CLARK SPECIAL MASTER
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.
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.)
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.
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
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.
In any action to enforce the Public Records Act (PRA), the
burden is on the requester to prove an alleged violation. In
[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.).
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
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.
Nos. 1 And 2: Non-Existent Records
Nos. 1 and 2 in Kovach's letter of July 25, 2019 are as
provide the following:
1) Copies of any and all communications, email, tape
recordings ... between you and Prosecutor Nicholas Burling
concerning Stacey Kovach, the property ...