DeCrane v. Cleveland ( 2018 )

[Cite as DeCrane v. Cleveland, 2018-Ohio-3651.]
SEAN P. DECRANE Case No. 2018-00358PQ
Requester Special Master Jeffery W. Clark
v. REPORT AND RECOMMENDATION
CITY OF CLEVELAND
Respondent
{¶1} On February 16, 2018, attorney Subodh Chandra sent a letter to respondent
City of Cleveland on behalf of requester Sean DeCrane making a public records request
to inspect “[a]ll records generated while processing public-records request 15-2220.”
(Complaint at 2-3.) Later that day, the Cleveland Department of Law Public Records
Section (PRS) acknowledged receipt, stating that the request was being processed for a
response. (Id. at 4.) The PRS responded to the request on March 2, 2018, stating that:
We are unable to fulfill your request as the request is vague, ambiguous,
and overly broad under Ohio R.C. 149.43(B)(2). We are unable to
determine what records you seek based on the wording of the request “all
records generated while processing...15-2220.” If you wish, please
resubmit your request and provide clarification and specificity as to what
records you seek related to PR# 15-2220’s fulfillment.
If you have any questions, or wish to discuss this further, you may contact
our office at publicrecords@city.cleveland.oh.us or 216-664-2772.
(Response, Amos Aff. at ¶ 4.)
{¶2} On March 6, 2018, DeCrane filed a complaint under R.C. 2743.75 alleging
denial of access to public records in violation of R.C. 149.43(B). On May 30, 2018, the
court was notified that the case had not been resolved in mediation. On June 13, 2018,
the City filed an answer (Response) asserting that it had properly denied the request as
ambiguous and overly broad, and on June 26, 2018 filed a supplemental pleading
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ordered by the court. On August 8, 2018, DeCrane filed a reply with copies of the
records that he had previously received related to request 15-2220.
Remedy Under R.C. 2743.75
{¶3} 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. Claims under R.C. 2743.75 are
determined using the standard of clear and convincing evidence. Hurt v. Liberty Twp.,
5th Dist. Delaware No. 17CAI050031, 2017-Ohio-7820, ¶ 27-30.
Records Previously Provided to Requester
{¶4} From September 21, 2015 through December 2, 2016, DeCrane received a
total of 2,846 pages of records from the City in response to a public records request he
made in 2015, request No. 15-2220. (Reply at 1, Exh. 1.) DeCrane also possessed
correspondence with the City from that time period concerning request 15-2220,
consisting of his original request and ensuing communication. (Reply at 1, Exh. 2.) To
the extent DeCrane’s complaint asks the City to produce records that it previously
provided to him in response to request No. 15-2220, his February 16, 2018 request is
moot. State ex rel. Nix v. Cleveland, 83 Ohio St. 3d 379, 381-382, 700 N.E.2d 12 (1998).
Ambiguous and Overly Broad Request
{¶5} A public records requester must reasonably identify the particular existing
records sought, and a request that is ambiguous or overly broad may be denied.
R.C. 149.43(B)(2) provides:
If a requester makes an ambiguous or overly broad request or has
difficulty in making a request for copies or inspection of public records
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under this section such that the public office or the person responsible for
the requested public record cannot reasonably identify what public records
are being requested, the public office or the person responsible for the
requested public record may deny the request * * *.
Accordingly, “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. Zidonis v.
Columbus State Community College, 133 Ohio St. 3d 122, 2012-Ohio-4228, 976 N.E.2d
861, ¶ 21. Indeed, without sufficiently specific request language on which to base an
order of compliance, a court cannot later enforce alleged non-compliance.
{¶6} 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. A discovery-style demand to conduct an officewide search for records
containing information “regarding or related to” an agency, program 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. Rather, 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. 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). For example, a
request for “any and all records generated * * * containing any reference whatsoever to
[the requester]” fails to identify the records sought with sufficient clarity. State ex rel.
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Dillery v. Icsman, 92 Ohio St. 3d 312, 314, 750 N.E.2d 156 (2001). See also State ex rel.
Morgan v. Strickland, 121 Ohio St. 3d 600, 2009-Ohio-1901, 906 N.E.2d 1105, ¶ 14-15;
State ex rel. O’Shea & Assocs. Co., L.P.A. v. Cuyahoga Metro. Hous. Auth., 190 Ohio
App.3d 218, 2010-Ohio-3416, ¶ 7-11 (8th Dist.), rev’d in part on other grounds, 131
Ohio St. 3d 149, 2012-Ohio-115, 962 N.E.2d 297; State ex rel. Youngstown Publ’g Co.
v. Youngstown, 7th Dist. Mahoning No. 05MA66, 2006-Ohio-7272, ¶ 28-32; Gannett GP
Media, Inc. v. Ohio Dept. of Pub. Safety, Ct. of Cl. No. 2017-00051-PQ, 2017-Ohio-
4247, ¶ 12.
{¶7} Judicial determination of whether a public office has properly denied a
request as ambiguous or overly broad is based on the facts and circumstances in each
case, Zidonis, supra, at ¶ 26. Here, DeCrane’s request for “[a]ll records generated while
processing public-records request 15-2220” is ambiguous and overly broad in several
ways. Instead of identifying with reasonable clarity the records sought, the request uses
an expansive and undefined phrase – “all records generated” – that provides no clear
description of or boundary to the records sought. See Dillery, supra. DeCrane’s request
is not bounded by date, nor is it limited to the City department responsible for public
records requests. It thus requires a search of all respondent’s offices, through all
correspondence and other documents no matter how tangential, over a period of three
years. DeCrane emphasized the unbounded nature of his request in stating
Please note that records documenting the business of a public entity or
the basis for the decisions of its officials that are in officials’ personal email
accounts, cell phones, personal computers, etc. are still public records.
Therefore, an exhaustive search should be made for responsive records
of this nature.
(Complaint at 2-3.)1 The requested search was not limited by file types, record-
keeper(s), or correspondents. The City argues that these ambiguities and omissions
1 For discussion of public records allegedly kept on personal accounts and devices, see DeCrane
v. Cleveland, Ct. of Cl. No. 2018-00355-PQ, 2018-Ohio-* * * *.
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would oblige the City to interpret DeCrane’s intent, rather than execute the retrieval of
specifically identified records:
For this request, the requester could have been asking for the original
responsive records, the non-responsive records, communications
surrounding fulfillment of the request, or any other type of document that
exists pertaining to the request (i.e. notes or logs), including those which
would be protected by attorney work product or attorney client privilege
(as that request was the subject of a mandamus action before the Ohio
Supreme Court which was later dismissed). Given the numerous possible
interpretations of the request, including some which would include
privileged communications and/or require the City to research which
employees across the entire City ever touched the request going back to
three years earlier and determine whether they had any type of document
associated with the former public records request across multiple formats,
the request was improperly overbroad.
(Response at 3.) I find that the request was improperly ambiguous and overly broad.
{¶8} R.C. 149.43(B)(2) urges parties to revise a denied ambiguous and overly
broad request prior to litigation. Following denial, the statute provides that the office
shall provide the requester with an opportunity to revise the request by
informing the requester of the manner in which records are maintained by
the public office and accessed in the ordinary course of the public office's
or person's duties.
Despite the City’s invitation to clarify or discuss the request, and for DeCrane to
resubmit the request in a sufficiently specific form, DeCrane declined (Response at 3;
Amos Aff. at ¶ 5), choosing instead to file the instant action. See Zidonis, supra, at ¶ 4-
5, 40. Notably, DeCrane subsequently demonstrated that he could make a request that
more specifically identifies the records he seeks. Id. at ¶ 35. In his reply at p. 2,
DeCrane stated that
his best understanding is that for each public-records request the City
creates a separate tracking sheet documenting the steps taken to respond
to each request, and that tracking sheet is kept in a folder specific to that
request in which other records regarding the processing of the response
are kept. The folder for public-records request 15-2220 would contain any
“records generated while processing” that request.
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Without prejudging the matter, a revised request using this detailed description bears a
greater chance of reasonably identifying particular City records. Since a request based
on this language would produce records from a folder that DeCrane asserts “would
contain any ‘records generated while processing’ that request,” it would likely obviate
the ambiguity and lack of boundaries inherent in the discovery-style request he instead
seeks to enforce. For its part, the City could have helpfully included in its denial letter
the list of potential record types, locations, and privilege issues that it noted on page 3
of its response, as partial explanation of how it maintains and accesses records of
processing public records requests, to inform any desired revision of the request.
{¶9} Fortunately, nothing prevents DeCrane from now making a revised request
to the City, and/or accepting the City’s invitation to discuss the matter. The Public
Records Act requires parties to cooperate with the goal of identifying the specific
records sought while minimizing the burden on the public office. The parties are
encouraged to fully utilize the tools provided by R.C. 149.43(B)(2) through (7) in
negotiating future requests. Early cooperation can result in timely, mutually satisfactory
revision of overly broad requests, and is favored by the courts. See State ex rel. Morgan
v. Strickland, 121 Ohio St. 3d 600, 2009-Ohio-1901, 906 N.E.2d 1105, ¶ 15-20.
Conclusion
{¶10} Upon consideration of the pleadings and attachments, I recommend that
the court find that requester’s public records request is moot in part, and was otherwise
properly denied by respondent as ambiguous and overly broad. Accordingly, I
recommend that the court issue an order DENYING requester’s claim for production of
records. I recommend that court costs be assessed to the requester.
{¶11} 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
Case No. 2018-00358PQ -7- REPORT AND RECOMMENDATION
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 August 27, 2018
Sent to S.C. Reporter 9/10/18