Axelrod v. Dept. of Commerce ( 2019 )

[Cite as Axelrod v. Dept. of Commerce, 2019-Ohio-1821.]
DAVID F. AXELROD, et al. Case No. 2018-01458PQ
Requesters Special Master Jeffery W. Clark
v. REPORT AND RECOMMENDATION
OHIO DEPARTMENT OF COMMERCE,
DIVISION OF SECURITIES
Respondent
{¶1} On November 26, 2018, requesters David Axelrod and Trina Goethals filed
a complaint pursuant to R.C. 2743.75 alleging that respondent Ohio Department of
Commerce, Division of Securities (DOC) denied access to public records in violation of
R.C. 149.43(B). On November 30, 2018, requesters filed an amended complaint. On
February 22, 2019, the court was notified that the parties had resolved four of the public
records requests in mediation, but failed to resolve Requests Nos. 2 and 6. On March 6,
2019, DOC filed its response. On March 19, 2019, requesters filed a reply.
Axelrod sent DOC a public records request on July 12, 2018 that included:
2. Copies of all Division examination files and documents relating to Dock
D. Treece, Treece Investment Advisory Corp. and/or Treece Financial
Services, from January 1, 2008 through the present.
6. Copies of all communications between or among Division staff,
attorneys and other employees, including paper correspondence, text
messages, email, audio recordings and other electronic communications
(whether on state-issued or personal devices), with any broker-dealer,
investment advisor or other third party, who offered to sell or stated that it
would sell, at no cost, advisor class shares to clients of other investment
advisors.
(Response Exh. 1.) On July 16, 2018, DOC responded that its investigatory and trial
preparation records were prohibited from release under R.C. 1707.12, but that it would
review any publicly available documents. (Response Exh. 2.) On October 29, 2018,
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DOC produced some records, but advised that the requests were otherwise denied as
overly broad. DOC also denied the remaining records as subject to R.C. 1707.12(C), or
to the attorney-client or attorney work product privileges. (Response Exh. 3 Followell
Aff., Exh. A.) On November 14, 2018, DOC sent a letter clarifying its reasons for denial.
(Id. Exh C.) Both response letters invited requesters to contact the DOC if they wished
to discuss or amend the requests. (Followell Aff. at ¶ 13, Exhs. A, C.)
Burdens of Proof Under the Public Records Act (PRA)
The burden is on requester to prove a violation of R.C. 149.43(B). In mandamus,
[a]lthough 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.”
(Citation omitted.) State ex rel. Caster v. Columbus, 151 Ohio St. 3d 425, 2016-Ohio-
8394, 89 N.E.3d 598, ¶ 15. Claims pursuant to 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.).
{¶2} If a public office asserts an exception to the PRA the burden of proving the
exception rests on the public office. “Exceptions to disclosure under the Public Records
Act, R.C. 149.43, are strictly construed against the public-records custodian, and the
custodian has the burden to establish the applicability of an exception. A custodian does
not meet this burden if it has not proven that the requested records fall squarely within
the exception.” State ex rel. Cincinnati Enquirer v. Jones-Kelley, 118 Ohio St. 3d 81,
2008-Ohio-1770, 886 N.E.2d 206, paragraph two of the syllabus. Any doubt should be
resolved in favor of disclosure. State ex rel. James v. Ohio State Univ., 70 Ohio St. 3d
168, 169, 637 N.E.2d 911 (1994).
Ambiguous or Overly Broad Requests
{¶3} A request that is ambiguous or overly broad may be denied.
R.C. 149.43(B)(2). It 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.
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Zidonis v. Columbus State Community College, 133 Ohio St. 3d 122, 2012-Ohio-4228,
976 N.E.2d 861, ¶ 21. See generally Gupta v. Cleveland, Ct. of Cl. No 2017-00840PQ,
2018-Ohio-3475.
{¶4} Attorneys, accustomed to writing discovery instruments, are susceptible to
writing public records requests as though they were interrogatories or requests for
production of documents. While a person may request public records for use in civil
litigation, Gilbert v. Summit Cty., 104 Ohio St. 3d 660, 2004-Ohio-7108, 821 N.E.2d 564,
the standards for a proper public records request are distinctly different from the
standards for civil discovery. For example, a discovery-style demand to conduct an
officewide search for records containing information “regarding or related to” an agency
program, organization, or person is improper as a public records request. State ex rel.
Thomas v. Ohio State Univ. 71 Ohio St. 3d 245, 245-246, 643 N.E.2d 126 (1994), cited
with approval in State ex rel. Shaughnessy v. Cleveland, 149 Ohio St. 3d 612, 2016-
Ohio-8447, 76 N.E.3d 1171, ¶ 10; State ex rel. Thomas v. Ohio State Univ. 70 Ohio
St.3d 1437, 638 N.E.2d 1041 (1994). The Public Records Act does not
compel a governmental unit to do research or to identify records
containing selected information. That is, relator has not established that a
governmental unit has the clear legal duty to seek out and retrieve those
records which would contain the information of interest to the requester.
Cf. State ex rel. Cartmell v. Dorrian (1984), 11 Ohio St. 3d 177, 179, 464
N.E.2d 556.
State ex rel. Fant v. Tober, 8th Dist. Cuyahoga No. 63737, 1993 Ohio App. LEXIS 2591,
*3-4 (April 28, 1993), aff’d, 68 Ohio St. 3d 117, 623 N.E.2d 1202 (1993).
{¶5} Judicial determination of whether an office has properly denied a request as
ambiguous or overly broad is based on the facts and circumstances in each case,
Zidonis at ¶ 26. In this case I find that Request No. 6, and Request No. 2 to the extent
that it requests “all * * * documents relating to” three corporations, are ambiguous and
overly broad requests that do not reasonably identify records sought by the requester.
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Request No. 6
{¶6} First, Request No. 6 is not limited to any date range. See Zidonis at ¶ 21 (all
complaint and litigation files for six years is overly broad); State ex rel. Dehler v. Spatny,
127 Ohio St. 3d 312, 2010-Ohio-5711, 939 N.E.2d 831, ¶ 1-3 (all prison orders and
receipts for clothing/shoes for seven years is overly broad). Second, the request is not
limited to a file type, department, record retention series, a single topic,1 or any other
means of determining the boundaries of the request. Third, the request demands “all
communications between or among Division staff, attorneys and other employees,”
which would include all employees carbon- or blind-copied, not just senders and primary
recipients. Fourth, instead of naming specific third parties, the request demands
communications “with any broker-dealer, investment advisor or other third party, who
offered to sell or stated that it would sell, at no cost, advisor class shares to clients of
other investment advisors relationship to various organizations.” A request is ambiguous
or overly broad when it identifies correspondents only as belonging to titles, groups or
categories, for which research by the office is required to recognize such membership.
State ex rel. Oriana House, Inc. v. Montgomery, 10th Dist. Franklin Nos. 04AP-492,
04AP-504, 2005-Ohio-3377, ¶ 9, overturned on other grounds; Gannett GP Media, Inc.
v. Ohio Dept. of Pub. Safety, Ct. of Cl. No. 2017-00051-PQ, 2017-Ohio-4247, ¶ 11.
Fifth, the request is overly broad in requesting a search through the office’s entire email
system and paper files for any correspondence. A public office is not obliged to “seek
out and retrieve those records which would contain the information of interest to the
requester.” Fant v. Tober, supra. See State ex rel. Dillery v. Icsman, 92 Ohio St. 3d 312,
314, 750 N.E.2d 156 (2001) (all records “containing any reference whatsoever to
[requester]”); State ex rel. O’Shea & Assocs. Co., L.P.A. v. Cuyahoga Metro. Hous.
1 The last clause, referring to any “third party, who offered to sell * * *, at no cost, advisor class shares to
clients of other investment advisors,” requires research rather than identifying a category by which the
DOC’s records are organized and maintained.
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Auth., 190 Ohio App. 3d 218, 2010-Ohio-3416, ¶ 7-11 (8th Dist.) (all records containing
information about injury claims), rev’d in part on other grounds; State ex rel. Morgan v.
Strickland, 121 Ohio St. 3d 600, 2009-Ohio-1901, 906 N.E.2d 1105, ¶ 14-15 (“[a]ny and
all email communications * * * which reference * * * the ‘evidence-based model’ or
education funding in general”) (first ellipsis sic); State ex rel. Thomas v. Ohio State
Univ., 71 Ohio St. 3d 245, 246, 643 N.E.2d 126 (1994) (information “regarding or related
to” any pro-animal-rights action group or individual); State ex rel. Youngstown Publ’g
Co. v. Youngstown, 7th Dist. Mahoning No. 05MA66, 2006-Ohio-7272, ¶ 28-32 (“asking
for all records concerning when and where negotiations took place and between whom
is not a request for a specific document.”) A request for records “regarding” an office
operation is improperly ambiguous and overly broad, and requires a search rather than
reasonably identifying the records sought. Gannett GP Media at ¶ 12.
{¶7} I find that Request No. 6 is ambiguous and overly broad, does not
reasonably identify the records sought, and is thus unenforceable under the Public
Records Act.
Request No. 2
{¶8} Request No. 2 seeks, in part, “all * * * documents relating to” three
corporations during a ten-year period. This part of the request is not limited to a
reasonably short time period, an examination file, a department, a record retention
series, a single topic, or any other means of determining the boundaries of the request.
The request is ambiguous and overly broad in requiring a search through “all
documents” of the office, of any nature, during a ten-year period. I find that this portion
of Request No. 2 is improperly ambiguous and overly broad, does not reasonably
identify the records sought, and is therefore unenforceable under the Public Records
Act.
Embedded Request
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{¶9} A proper request embedded within an otherwise ambiguous or overly broad
request may be enforceable. In State ex rel. Glasgow v. Jones, 119 Ohio St. 3d 391,
2008-Ohio-4788, 894 N.E.2d 686, ¶ 1, 17-24, a request for six months-worth of a state
representative’s email was found overly broad, but an embedded request – “including,
but not limited to [a particular bill]” – was sufficiently narrow to be a proper request. See
also Strothers v. Keenon, 8th Dist. Cuyahoga No. 103313, 2016-Ohio-405, 59 N.E.3d
556, ¶ 24-30 (clarified request “ordered released in the spirit of R.C. 149.43, which
requires the Public Records Act to be liberally construed in favor of disclosure.”).
{¶10} Request No. 2 contains a severable request for “all Division examination
files * * * relating to Dock D. Treece, Treece Investment Advisory Corp. and/or Treece
Financial Services, from January 1, 2008 through the present.” The request is made to
an agency that conducts examinations of regulated entities. R.C. 1707.23. The DOC
must of necessity organize examination files by the names of the entities subject to an
examination. This portion of the request is thus reasonably limited by subject matter and
by the entities concerned. While the time period of ten years was found overly broad
above for a search of “all documents,” Axelrod notes that the responsive records that
have been provided by the DOC demonstrate the agency’s ability, in this instance, to
identify three responsive examinations during that time period. (Reply at 3.) I find that
this embedded request was not impermissibly ambiguous or overly broad. See
Kesterton v. Kent State Univ., Slip Opinion No. 2018-Ohio-5110 at ¶ 23-27.
Suggestion of Mootness
{¶11} The DOC undertook efforts to satisfy the requests, providing Axelrod with
some responsive records. (Followell Aff. at ¶ 15-16.) In an action to enforce
R.C. 149.43(B), a public office may produce requested records prior to the court’s
decision and thereby render the claim for production moot. State ex rel. Striker v. Smith,
129 Ohio St. 3d 168, 2011-Ohio-2878, 950 N.E.2d 952, ¶ 18-22. I recommend that the
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court find the claim is moot to the extent that the DOC has provided particular
responsive records.
Exceptions Asserted
{¶12} The Public Records Act requires a public office to disclose records upon
request unless an exception applies. State ex rel. Perrea v. Cincinnati Pub. Sch., 123
Ohio St. 3d 410, 2009-Ohio-4762, 916 N.E.2d 1049, ¶ 15-16. An exception is a state or
federal law prohibiting or excusing disclosure of items that otherwise meet the
definitions of a “record” of a “public office,” including those listed in R.C. 149.43(A)(1).2
The parties do not dispute that the DOC is a public office, or that the documents
requested in this matter are records of the DOC.
{¶13} With respect to the surviving portion of Request No. 2, the DOC asserts
exceptions from disclosure pursuant to: 1) R.C. 1707.12(C) exempting a) information
obtained by the division through any investigation, b) confidential law enforcement
investigatory records, and c) trial preparation records; 2) R.C. 1707.12(B) prohibiting
targets of Division investigations from accessing investigatory information obtained by
the Division; 3) common-law attorney-client work product; and 4) attorney work product.
{¶14} Although the DOC states that “R.C. 1707.12 is the sole provision governing
information collected by the Division” and that R.C. 149.43 is “inapposite” and “[does]
not apply” to DOC records (Response at 8-9), I find that R.C. 1707.12 can be analyzed
like any other exception. See State ex rel. Dublin Securities, Inc. v. Ohio Div. of
Securities, 68 Ohio St. 3d 426, 430-431, 627 N.E.2d 993 (1994) (“R.C. 1707.12 appears
to be an exception to the general public records provision”). Despite the wording used in
the cited cases, R.C. 1707.12 operates as a statute exempting records from disclosure
under the “catch-all” exception in the Public Records Act:
“Public record” does not mean any of the following:
***
2 The terms “exception” and “exemption” are used interchangeably in case law, and in this report.
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(v) Records the release of which is prohibited by state or federal law.
R.C. 149.43(A)(1), (A)(1)(v). Further, the parties implicitly agree that R.C. 149.43 does
apply here. Axelrod brought the action pursuant to R.C. 149.43(C)(1). DOC has not
moved to dismiss for lack of jurisdiction of this court over a mandamus action to enforce
R.C. Chapter 1707 apart from R.C. 149.43. See Dancy v. Molitoris, 10th Dist. Franklin
No. 09AP-749, 2010-Ohio-1382, ¶ 5 (“The Court of Claims * * * has no authority to allow
writs of mandamus.”). I recommend that the court find this action is properly brought
and may be determined under R.C. 149.43(C) and R.C. 2743.75, including the
application of R.C. 1707.12 as a statutory exception to public records disclosure.
R.C. 1707.12(B) provides, in pertinent part:
(B) Information obtained by the division * * * through any investigation
shall be retained by the division and shall not be available to inspection by
persons other than those having a direct economic interest in the
information or the transaction under investigation, or by law enforcement
agencies, state agencies, federal agencies, and other entities as set forth
by rules adopted by the division.
Requesters seek documents contained in examination files from 2013, 2015, and 2017.
(Reply at 3.) “The Parties were able to agree, or the Petitioners withdrew,” requests for
complaints concerning Treece entities, and for the deficiency letters that resulted from
the examinations. (Reply at 1; Exh. 1.) The remaining documents in the examination
files thus consist of information gathered during the investigation.
{¶15} In State ex rel. Cincinnati Enquirer v. Joyce, 97 Ohio St. 3d 192, 2002-Ohio-
5807, 777 N.E.2d 253, the phrase “information obtained by the division through any
investigation” was held to mean any information obtained “during the entire period of” an
investigation. Id. at ¶ 15-16. As in Joyce, the evidence in this case is uncontroverted
that the contents of requested examination files were obtained through the investigatory
enforcement power of the DOC. (Followell Aff. at ¶ 4-6.) Requester’s clients, the real
parties in interest for these requests (Am. Complaint at ¶ 1), are not among “those
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having a direct economic interest in the information * * * under investigation.” Dublin
Securities at 432. The text of R.C. 1707.12(B) sets no time limit on the prohibition
against disclosure of such information. I find that the exemption in R.C. 1707.12(B)
encompasses the entire examination files, and justified the DOC’s denial of the
embedded request in Request No. 2.
{¶16} Since the findings of overbreadth, and the operation of R.C. 1707.12(B),
are together sufficient to dispose of all claims before the court, I find it unnecessary to
address the other exceptions asserted by the DOC.
Conclusion
{¶17} Upon consideration of the pleadings and attachments, I recommend the
court grant respondent’s motion to dismiss requester’s claim for production of records in
response to Requests Nos. 2 and 6 to the extent that those requests are ambiguous
and overly broad. I further recommend that the court deny requester’s claim for
production of records from examination files gathered during investigation, pursuant to
R.C. 1707.12(B).
{¶18} 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).
JEFFERY W. CLARK
Special Master
Filed April 2, 2019
Sent to S.C. Reporter 5/10/19