State ex rel. Darling v. Lake Cty. ( 2013 )

[Cite as State ex rel. Darling v. Lake Cty., 2013-Ohio-1291.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
LAKE COUNTY, OHIO
STATE OF OHIO ex rel. : OPINION
AMANDA DARLING,
:
Relator, CASE NO. 2012-L-079
:
- vs -
:
LAKE COUNTY, et al.,
:
Respondents.
Original Action for Writ of Mandamus.
Judgment: Petition denied and judgment for respondents.
Amanda Darling, pro se, 11864 Concord-Hambden Road, Concord Township, OH
44077 (Relator).
Charles E. Coulson, Lake County Prosecutor, and Joshua S. Horacek, Assistant
Prosecutor, 105 Main Street, P.O. Box 490, Painesville, OH 44077 (For Respondent
Lake County).
Michael C. Lucas, Wiles and Richards, 37265 Euclid Avenue, Willoughby, OH 44094;
and John D. Latchney, Tomino & Latchney, L.L.C., L.P.A., 803 East Washington
Street, Suite 200, Medina, OH 44256 (For Respondent Concord Township Trustees).
Mike DeWine, Ohio Attorney General, and Cynthia K. Frazzini and Gerald E. Dailey,
Assistant Attorneys General, 2045 Morse Road, Building D-2, Columbus, OH 43229
(For Respondent Ohio Department of Natural Resources).
TIMOTHY P. CANNON, P.J.
{¶1} This action in mandamus is before this court for final disposition of the
respective motions of respondents, Ohio Department of Natural Resources (“ODNR”),
Lake County, and Concord Township Trustees. After a review of the summary
judgment motions and the evidentiary material submitted in support of those motions,
we find that summary judgment as to all respondents is warranted.
{¶2} On July 16, 2012, relator filed a pro se petition for writ of mandamus
alleging that her request for public records was denied by respondents. In her request,
relator sought the following:
{¶3} (a) A copy of any/all investigation reports and complaints about a
flood issue that occurred on/between July 2006 to present day in
the area on Jordan Creek/ 11864 Concord-Hambden;
{¶4} (b) A copy of any/all geographical surveys of said area/address
listed in paragraph (3)(a), including historical records and surveys
listing said area/address as a ‘flood plain’ or similar terminology;
{¶5} (c) A copy of any/all Statutes, Laws, Regulations, including Policy
Directives and Procedures that this agency/department uses in it’s
responses to investigations, complaints, etc. concerning the
incident paragraph (3)(a) and this FOIA Request/Response;
{¶6} (d) A copy of complete blueprints, diagrams, and drainage/
STORMWATER MAPS, for the subdivisions call WOODCREST
AND CALLIWOODS both located in Concord Twp, Ohio. That
shows/reflects said drainage going into Jordan Creek in Concord
Twp, Ohio;
{¶7} (e) A copy of any/all names of City, County, State and Federal
Public Officials that approved the development of said Subdivisions
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called Woodcrest and Cali woods in Concord Twp, Ohio, including
but not limited to the names of the inspectors of said drainage
lines/pipes, etc.;
{¶8} (f) A copy of any/all names of City, County, State and Federal
Public Officials that approved the development of home/property
11864 Concord-Hambden Rd in Concord Twp, Ohio. That knew or
reasonable should have know that said property/area was
historically known/designated as a ‘Flood Plain’ in 1978 when
house was built as was sold to Me in 2005;
{¶9} (g) A complete map of Concord Twp, Ohio reflecting any/all rivers,
streams, lakes and creeks within Concord Twp, including but not
limited to specifically a Jordan Creek aerial view going through
Concord Twp, Ohio” (sic throughout).
{¶10} Relator seeks a writ of mandamus to compel the release of the above
documentation. “Mandamus is the appropriate remedy to compel compliance with R.C.
149.43, Ohio’s Public Records Act.” State ex rel. Physicians Commt. for Responsible
Medicine v. Bd. of Trustees of Ohio State Univ., 108 Ohio St.3d 288, 2006-Ohio-903,
¶6; R.C. 149.43(C)(1). “Under the public records statute, the government has the duty
to supply records, not information, and the government has no duty to create records to
meet a requester’s demand.” State ex rel. Morabito v. City of Cleveland, 8th Dist. No.
98829, 2012-Ohio-6012, ¶14.
{¶11} Respondents have filed respective motions for summary judgment. The
standard for summary judgment is well established. To prevail on a motion for
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summary judgment, the moving party has the initial burden to affirmatively demonstrate
that: (1) there is no genuine issue of material fact to be resolved in the case; (2) final
judgment as a matter of law is warranted; and (3) the nature of the evidentiary
materials, even when viewed in a light most favorable to the non-moving party, are such
that a reasonable person could only reach a conclusion against the non-moving party.
State ex rel. Dehler v. Spatny, 11th Dist. No. 2009-T-0075, 2010-Ohio-3052, ¶26;
Dresher v. Burt, 75 Ohio St.3d 280, 292 (1996).
{¶12} We first address ODNR’s motion for summary judgment. ODNR attached
relator’s request for public records to its motion for summary judgment. It also attached
the affidavits of Christopher Thoms, the program manager of the Floodplain
Management Program, and Charles Rowan, the Deputy Chief Counsel of ODNR.
{¶13} Mr. Thoms averred that he was “unable to locate any records relating to
[relator’s] request.” Mr. Thoms explained that ODNR’s Floodplain Management
Program “does not have any enforcement authority or jurisdiction in Concord Township,
Lake County, Ohio.” ODNR’s Floodplain Management Program does not “prepare or
maintain any maps, surveys or investigation reports.” Mr. Thoms further explained that
“[t]he authority having jurisdiction over floodplain management in Concord Township,
Lake County, Ohio is the Lake County Drainage Engineer with offices at 550 Blackbrook
Road, Painesville, Ohio.”
{¶14} In Mr. Rowan’s affidavit, he averred that when he received relator’s written
request for public records, he “determined that the most likely program to have records
responsive to [relator’s] request would be the Floodplain Management Program.” Upon
further inquiry to Mr. Thoms, Mr. Rowan learned that ODNR “has no enforcement
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authority or jurisdiction over floodplain matters in Concord Township, Lake County,
Ohio.” Mr. Rowan explained that he informed relator, by letter, that he was unable to
identify any public records responsive to her request.
{¶15} In her “motion to strike and/or for objection,” relator makes the conclusory
statement that the affidavits of Messrs. Rowan and Thoms were “intentionally filed in
‘bad faith.’” Additionally, citing to various sections of the Ohio Revised Code, relator
claims that ODNR does have the records requested, as ODNR is responsible for
floodplain management in Concord Township, Ohio.
{¶16} In its response, ODNR reasserts that its affidavits confirm that ODNR
does not have enforcement authority or jurisdiction over floodplain matters in Concord
Township; that the Lake County Drainage Engineer is the authority having jurisdiction;
and that ODNR’s role is that of an advisor to local communities regarding floodplain
management issues.
{¶17} In construing these evidentiary materials in a light most favorable to
relator, we determine no genuine issue of material fact remains to be litigated. The
evidence illustrates that ODNR has made a diligent effort in response to relator’s public
records request and found no such records. Moreover, ODNR has submitted
evidentiary material demonstrating that it has no enforcement authority or jurisdiction
over floodplain management issues in Concord Township, Ohio. Conversely, relator
has not put forth any evidentiary material under Dresher to establish these records
exist. Under the Public Records Act, ODNR does not have any duty to create records
that do not exist. State ex rel. Chatfield v. Gammill, 132 Ohio St.3d 36, 2012-Ohio-
1862, ¶3.
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{¶18} Next, in its motion for summary judgment, Lake County claims the only
records relator did not receive are those that do not exist. Attached to Lake County’s
motion for summary judgment is the affidavit of Michael DeLeone, Assistant Lake
County Prosecuting Attorney. Mr. DeLeone explained that upon receiving relator’s
public records request, a meeting was held with relator and her family at the Lake
County Administration Building on November 2, 2011. At this meeting, relator and her
family were able to inspect “all the documents in possession of the Board of Lake
County Commissions (including the Lake County Planning Commission) and the Lake
County Engineer that in any way related” to her public records request. Mr. DeLeone
indicated that relator was provided with copies of the documents. During a follow-up
conversation, Mr. DeLeone informed relator that the general statement pages from the
Noble Ridge and Wood Crest subdivision and the “no-rise certificates” for Jordan Creek
do not exist. The nonexistence of these items was reaffirmed by the affidavit of George
Hadden, Construction Engineer in the Office of the Lake County Engineer, who averred
that the general pages from the Noble Ridge and Wood Crest subdivisions did not exist
and that Jordan Creek does not have a “no-rise certificate.”
{¶19} Lake County also attached the affidavit of Amy Elszasz, Clerk of the Board
of Lake County Commissioners, who essentially averred that after the November 2,
2011 inspection of records, relator was satisfied upon receiving the records that were in
existence.
{¶20} In her pro se “motion to strike and/or for objection,” relator claims the
affidavits remain completely silent as to whether no-rise certificates exist for other
subdivisions named in her request—namely, the Cali Wood Subdivision—and other
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subdivisions within a one-mile radius of her address. Relator further claims that all of
the permits required to alter the floodplain through the draining of stormwater/sewage
into Jordan Creek were not disclosed.
{¶21} After ODNR and Lake County filed its motions for summary judgment and
relator filed her responses to each, this court held a pretrial hearing. At that hearing,
Construction Engineer George Hadden of the Lake County Engineer’s Office indicated
that a voluminous amount of material had been prepared and left for relator for pick up
at the Lake County Prosecutor’s Office. Relator indicated she did not recall being
informed of the availability of this material and/or did not have any recollection of picking
it up. The court then requested that Lake County produce the material again. Lake
County agreed that regardless of whether it had already provided the documentation
mentioned in relator’s pro se motion to strike, additional copies would be made available
to relator. Thereafter, on December 20, 2012, Lake County filed a notice with this court,
stating:
{¶22} On December 13, 2012, counsel for Lake County had a telephone
conversation with Relator wherein counsel notes that the above
referenced material was available to be picked up from the Lake
County Prosecutor’s Office. Counsel for Lake County also
indicated that Construction Engineer George Hadden of the Lake
County Engineer’s office would make himself available to review
the information with Relator if she so chose. Relator indicated to
counsel that she was not, at this time, willing to accept the
materials from Lake County. Counsel indicated to Relator that the
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material would remain available for her to pick up from the Lake
County Prosecutor’s Office at her convenience, though counsel
requested that she call ahead.
{¶23} In her responsive pleadings, relator has never denied or otherwise
challenged the assertions contained in this notice. Therefore, it is not refuted that a
significant amount of material has been made available to relator that, for whatever
reason, she simply refuses to pick up. This puts relator in a position where she is
unable to deny that the material has been provided to her.
{¶24} After a review of the evidentiary materials, we determine no genuine issue
of material fact remains to be litigated. To reiterate, under the Public Records Act, Lake
County does not have any duty to create records that do not exist. Id. And, to the
extent that relator is entitled to the requested documents within the purview of R.C.
149.43, the evidence illustrates that Lake County has performed its obligation by
making them available to relator. Relator’s mandamus action, therefore, is essentially
seeking performance of an obligation that either does not exist, or has already been
met, thereby rendering it moot. See generally State ex rel. Gannett Satellite Info.
Network v. Shirey, 78 Ohio St.3d 400, 401 (1997) (“provision of the requested records
to the relator in a mandamus action brought under R.C. 149.43 renders the mandamus
claim moot”).
{¶25} Lastly, to support its motion for summary judgment, Concord Township
attached the affidavit of Amy L. Dawson, Fiscal Officer, averring that after she received
relator’s request for public records, she conducted a search and responded to relator by
letter, dated October 5, 2011. The letter to relator was also attached to Concord
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Township’s motion; it indicated that all of the records Concord Township has on file from
July 2006 to the present were enclosed. Concord Township also has informed relator
that it is in possession of a map, created by Lake County Stormwater Management
(“LCSM”), which may arguably constitute a public record, yet Concord Township does
not have the necessary equipment to copy the map internally. Upon relator paying the
cost of reproducing the map, Concord Township indicated it would provide her with a
copy. See generally State ex rel. Gibbs v. Concord Twp. Trustees, 152 Ohio App.3d
387, 2003-Ohio-1586, ¶20-32 (11th Dist.).
{¶26} In her pro se “motion to strike and/or for objection,” relator does not
provide any material of evidentiary quality required by Civ.R. 56 or Dresher. Instead,
relator claims she “will not accept [a map] now by the Respondents.”
{¶27} After a review of the evidentiary materials, we determine no genuine issue
of material fact remains to be litigated. Under the Public Records Act, Concord
Township does not have any duty to create records that do not exist. State ex rel.
Chatfield, supra, ¶3. And, as Concord Township is willing to make the map available to
relator, her mandamus action is essentially seeking performance of an obligation that
either does not exist or has already been met, thereby rendering it moot. See generally
State ex rel. Gannett Satellite Info. Network, supra.
{¶28} Accordingly, respondents’ motions for summary judgment are granted. It
is the order of this court that final judgment is hereby entered in favor of respondents as
to relator’s entire mandamus petition. All pending motions are overruled as moot.
THOMAS R. WRIGHT, J., concurs,
COLLEEN MARY O’TOOLE, J., concurs in judgment only.
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