Morrison v. Law Dir. of Mt. Vernon , 2022 Ohio 1617 ( 2022 )

[Cite as Morrison v. Law Dir. of Mt. Vernon, 2022-Ohio-1617.]
JOSHUA DAVID MORRISON Case No. 2022-00023PQ
Requester Special Master Jeff Clark
v. REPORT AND RECOMMENDATION
LAW DIRECTOR OF THE CITY OF
MOUNT VERNON
Respondent
{¶1} The Ohio Public Records Act (PRA) requires copies of public records to be
made available to any person upon request. The state policy underlying the PRA is that
open government serves the public interest and our democratic system. State ex rel.
Gannett Satellite Information Network, Inc. v. Petro, 80 Ohio St.3d 261, 264, 685 N.E.2d
1223 (1997). To that end, the public records statute must be construed liberally in favor
of broad access, with any doubt resolved in favor of disclosure of public records. State ex
rel. Rogers v. Dept. of Rehab. & Corr., 155 Ohio St.3d 545, 2018-Ohio-5111, 122 N.E.3d
1208, ¶ 6. This action is filed under R.C. 2743.75, which provides an expeditious and
economical procedure to enforce the PRA in the Court of Claims.
{¶2} On July 21, 2021, requester Joshua Morrison made a public records request
to the Clerk of Council of the City of Mount Vernon seeking
access to and a copy of All emails, communications and call logs of Mayor
Matthew Starr, Safety Service Director Rick Dzik, City Council members,
Bruce E. Hawkins, John Francis, Mike Hillier, Julia Warga, Janis Seavolt,
Amber Keener, Tammy Woods and Samantha Scoles and including former
City Council member Tanner Salyers regarding the recent suspension and
no confidence vote of the Safety Service Director. If your agency does not
maintain these public records, please let me know who does and include
the proper custodian’s name and address.
(Complaint at 3.) On September 17, 2021, respondent Law Director for Mount Vernon
Robert Broeren, Jr., (Broeren) emailed Morrison a link to a Dropbox file containing
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documents responsive to the request. (Reply at 6.) On September 27, 2021, Morrison
sent an email advising Broeren that he believed the text message records of former
councilmember Tanner Salyers had been omitted from this production. (Id. at 7.) Broeren
responded that Salyers had “personally carried his cell phone records to my office and
they were included in the produced records.” (Id. at 9.)
{¶3} On January 11, 2022, Morrison filed a complaint under R.C. 2743.75 alleging
denial of access to public records, specifically:
I didn’t receive the text messages of Councilmember Tanner Salyers. The
records and text messages from Salyers to Councilmember Mike Hillier
were not fulfilled. Mr. Hillier’s text messages were included, indicating that
Salyers and Hillier had a conversation.
(Complaint at 1.) Following unsuccessful mediation, Broeren filed an answer (Response)
on March 24, 2022. On April 4 and April 12, 2022, Morrison filed a reply and a supplement
to the reply.
Burden of Proof
{¶4} A requester must establish a public records violation by clear and convincing
evidence. Hurt v. Liberty Twp., 2017-Ohio-7820, 97 N.E.3d 1153, ¶ 27-30 (5th Dist.). The
requester must plead and prove facts showing he sought an identifiable public record
from a public office pursuant to R.C. 149.43(B)(1) and that the public office did not make
the record available. Welsh-Huggins v. Jefferson Cty. Prosecutor’s Office, 163 Ohio St.3d
337, 2020-Ohio-5371, 170 N.E.3d 768, ¶ 33. Broeren advised Morrison that he searched
for, located, and produced all requested records. (Reply at 9.) A requester challenging
such an assertion must show by clear and convincing evidence that one or more
additional responsive records exists and was not made available. State ex rel. Cordell v.
Paden, 156 Ohio St.3d 394, 2019-Ohio-1216, 128 N.E.3d 179, ¶ 5-10.
Records Made Available
{¶5} Morrison claims that he “didn’t receive the text messages of Councilmember
Tanner Salyers.” It is not clear whether Morrison is 1) claiming that non-identical text
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messages of Salyers exist that were not contained in the provided text messages of
council member Hillier, or 2) asking that a copy of identical text messages be made from
both Hillier’s and Salyers’ cell phones. This report will address both possible meanings of
Morrison’s claim.
{¶6} In his abbreviated response Broeren broadly denies Morrison’s claim without
providing the court with any affidavit, evidence, explanation of factual background, or legal
authority. (Response, passim.) See State ex rel. Cordell v. Paden, 156 Ohio St.3d 394,
2019-Ohio-1216, 128 N.E.3d 179, ¶ 5, 9; State, ex rel. Bloodworth v. Toledo Corr. Inst.,
6th Dist. Lucas No. L-21-1146, 2022-Ohio-346, ¶ 4-7; and Ohio Records Analysis v. Ohio
Dept. of Admin. Servs., Ct. of Cl. No. 2021-00385PQ, 2022-Ohio-316, ¶ 7, 10 for
examples of public offices giving useful explanations of the non-existence of additional
records. See also R.C. 149.43(B)(3).
{¶7} Taking assertion No. 2 first, it is axiomatic that there is no duty to reproduce
every separate office copy of a requested record in response to a public records request.
The disclosure of a single record copy is usually sufficient to satisfy a communication
request if it contains all the message text, and the identities of the correspondents are
known. Although copies in the hands of other correspondents may contain different
metadata,1 that information does not itself constitute a “record” unless it also “serves to
document the organization, functions, policies, decisions, procedures, operations, or
other activities of the office.” R.C. 149.011(G). A public office has no duty to produce
incidental non-record information merely because a requester expresses an interest in it.
Only if another copy of the correspondence contains additional record information, for
example marginal notes or metadata that themselves meet the R.C. 149.011(G) definition
1 “Metadata is ‘[s]econdary data that organize, manage, and facilitate the use and understanding
of primary data.’ Black's Law Dictionary 1080 (9th Ed. 2009).” State ex rel. McCaffrey v. Mahoning Cty.
Prosecutor’s Office, 133 Ohio St.3d 139, 2012-Ohio-4246, 976 N.E.2d 877, ¶ 19. Examples include mailing
envelopes and electronic mail headers.
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of a record, must that information be provided as well. See Bello v. Ohio Dept. of Rehab.
& Corr., Ct. of Cl. 2020-00129PQ, 2020-Ohio-4559, ¶ 8-11. Here, Morrison does not
explain how copying an identical Salyers/Hillier text exchange from Salyers’ device would
provide an additional record documenting the decisions, operations, or other activities of
the City of Mt. Vernon. Finally, even if the text metadata did contain record information,
Morrison did not ask for metadata in his request and was thus not entitled to it. State ex
rel. McCaffrey v. Mahoning Cty. Prosecutor’s Office, 133 Ohio St.3d 139, 2012-Ohio-
4246, 976 N.E.2d 877, ¶ 19-21.
{¶8} As to assertion No. 1, Morrison did not dispute Broeren’s emailed explanation
that former councilmember Salyers brought his cell phone in and produced responsive
records from it. Morrison instead expressed suspicion that metadata in a provided
screenshot could have been “misrepresented” and that having another screenshot from
Salyers’ phone “would validate and corroborate the conversation.” (Reply at 11.) Notably,
the screenshot at Reply p. 11 includes what appears to be source-identifying metadata:
“Tanner Sa …” and “TS” and “Mobile.” While Broeren fails to address Morrison’s
accusation that this information could be fabricated, the special master declines to accept
mere suspicion as evidence that the screenshot is not part of the records from Salyers’
cell phone that Broeren said he had obtained and delivered to Morrison.
{¶9} Morrison alternatively infers from the wording of the screenshot the existence
and withholding of additional texts between Salyers and Hillier. However, once Broeren
asserted that all requested text communication between the two had been provided,
Morrison had the burden to show by clear and convincing evidence that additional text
communication existed. Cordell v. Paden at ¶ 5-10; Bello at ¶ 10. Morrison’s assertion
that the question in the screenshot about “[t]he meeting you had in the hall prior to the
meeting” implies a “subsequent conversation” is not persuasive, much less conclusive, of
the existence of an additional written text message rather than a later verbal conversation.
(Reply at 2-3, 11.)
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{¶10} Considering the evidence before the court, the special master finds Morrison
has not proven by clear and convincing evidence that Broeren failed to produce any
additional non-identical text message or other responsive record.
Conclusion
{¶11} Upon consideration of the pleadings and attachments the special master
recommends the court deny requester’s claim for production of additional records. It is
recommended that costs be assessed to requester.
{¶12} Pursuant to R.C. 2743.75(F)(2), either party may file a written objection with
the clerk of the Court of Claims of Ohio within seven (7) business days after receiving this
report and recommendation. Any objection shall be specific and state with particularity all
grounds for the objection. A party shall not assign as error on appeal the court’s adoption
of any factual findings or legal conclusions in this report and recommendation unless a
timely objection was filed thereto. R.C. 2743.75(G)(1).
JEFF CLARK
Special Master
Filed April 19, 2022
Sent to S.C. Reporter 5/13/22