State ex rel. Mun. Constr. Equip. Operators' Labor Council v. Cleveland (Slip Opinion)

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
ex rel. Mun. Constr. Equip. Operators’ Labor Council v. Cleveland, Slip Opinion No. 2020-Ohio-
3197.]
NOTICE
This slip opinion is subject to formal revision before it is published in an
advance sheet of the Ohio Official Reports. Readers are requested to
promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
South Front Street, Columbus, Ohio 43215, of any typographical or other
formal errors in the opinion, in order that corrections may be made before
the opinion is published.
SLIP OPINION NO. 2020-OHIO-3197
THE STATE EX REL. MUNICIPAL CONSTRUCTION EQUIPMENT OPERATORS’
LABOR COUNCIL, APPELLANT, v. THE CITY OF CLEVELAND ET AL.,
APPELLEES.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as State ex rel. Mun. Constr. Equip. Operators’ Labor Council v.
Cleveland, Slip Opinion No. 2020-Ohio-3197.]
Public records—R.C. 149.43—Mandamus—Statutory damages and attorney fees—
Court of appeals’ judgment denying writ of mandamus and requests for
statutory damages and attorney fees affirmed.
(No. 2019-0760—Submitted January 28, 2020—Decided June 9, 2020.)
APPEAL from the Court of Appeals for Cuyahoga County,
No. 10785, 2019-Ohio-1889.
_______________________
Per Curiam.
{¶ 1} Appellant, the Municipal Construction Equipment Operators’ Labor
Council (the “union”), appeals the decision of the Eighth District Court of Appeals
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denying as moot the union’s complaint for a writ of mandamus to compel
respondents, the city of Cleveland and its Civil Service Commission (collectively,
“Cleveland” or “the city”), to release public records relating to a job posting. For
the reasons explained below, we affirm the judgment of the court of appeals.
Background
{¶ 2} On August 1, 2018, the union’s attorney e-mailed a public-records
request to Cleveland seeking “an emailed copy of the application files of and test
reports for” a list of people who had applied for an open position with the city. The
following day, Cleveland acknowledged receipt of the union’s request. On August
23, 2018, the union filed a complaint for a writ of mandamus to compel Cleveland
to produce the requested records. The Eighth District referred the case to
mediation, and a few months later, it directed the parties to certify to the court which
records had been released and when and how they had been released.
{¶ 3} In its December 2018 certification, the union acknowledged that
Cleveland had produced some responsive records through a September 2018 e-
mail. But for several reasons, the union maintained that Cleveland had not yet fully
satisfied the union’s records request. Relevant to this appeal, the union asserted
that Cleveland had not released any records regarding its evaluation of the
applicants’ work experience. With its certification, the union also filed copies of
the records that Cleveland had produced.
{¶ 4} Cleveland, which filed its certification a day after the union, certified
that it had fulfilled the union’s request and submitted copies of all the records that
it had released to the union. According to Cleveland, on August 20—three days
before the union filed its mandamus complaint—Cleveland sent to the union’s
attorney an e-mail with a hyperlink to the responsive records. Cleveland claimed
that it re-sent that link in separate e-mails on September 6 and September 13, and
that on September 18, it sent another e-mail to the union’s attorney with a link to
an additional document. Cleveland also accused the union of making material
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misrepresentations in its certification, including failing to file all the records that
Cleveland had released in response to the union’s public-records request and failing
to acknowledge that Cleveland initially produced records on August 20.
{¶ 5} In February 2019, the Eighth District determined that the union’s
objections to the sufficiency of Cleveland’s response were not well founded and
ordered the union to show cause why the case should not be considered moot. In
response, the union argued that because Cleveland had not yet produced records
regarding its evaluation of the applicants’ work experience, the union’s case was
not moot.
{¶ 6} In a May 2019 decision, the Eighth District determined that the
union’s argument was “unpersuasive,” citing over 25 pages of records from
Cleveland’s certification relating to its evaluation and grading of the applicants’
work experience. 2019-Ohio-1889, ¶ 7. The court therefore concluded that
Cleveland had produced all records responsive to the union’s request and denied
the union’s mandamus action as moot. The court further ordered each side to pay
its own costs. Id. at ¶ 9. The union timely appealed, raising three propositions of
law.
Analysis
{¶ 7} “Mandamus is an appropriate remedy to compel compliance with
Ohio’s Public Records Act.” State ex rel. Rogers v. Dept. of Rehab. & Corr., 155
Ohio St. 3d 545, 2018-Ohio-5111, 122 N.E.3d 1208, ¶ 5. To be entitled to the writ,
the relator must establish a clear legal right to the requested relief and a
corresponding clear legal duty on the part of the respondent to provide that relief.
Id. “In general, providing the requested records to the relator in a public-records
mandamus case renders the mandamus claim moot.” State ex rel. Toledo Blade Co.
v. Toledo-Lucas Cty. Port Auth., 121 Ohio St. 3d 537, 2009-Ohio-1767, 905 N.E.2d
1221, ¶ 14.
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Proposition of law No. I: The duties under R.C. 149.43(B) to “transmit”
copies and provide those copies “in accordance with the choice made” by the
requester
{¶ 8} R.C. 149.43(B)(7)(a)1 provides that when a request is made for a copy
of a public record, the public office “shall transmit” the copy “by United States mail
or by any other means of delivery or transmission within a reasonable period of
time.” When the union made its records request in this case, R.C. 149.43(B)(6)
allowed the union to choose whether to have Cleveland duplicate the records on
paper, on the same medium upon which Cleveland kept the records, or on any other
medium on which Cleveland determined that the records could reasonably be
duplicated. Cleveland was then obligated to provide the copy of the records in
accordance with the choice made by the union.
{¶ 9} As noted above, the union’s attorney sought “an emailed copy” of the
city’s records responsive to the request. In response, Cleveland sent to the union a
series of e-mails with instructions similar to the following: “Please log in to the
Cleveland Public Records Center at the following link to retrieve the appropriate
responsive documents.” (Underlining sic.) The e-mails further noted that after the
union accessed the records, it had 30 days in which to view and download them.
{¶ 10} In its first proposition of law, the union asserts that Cleveland failed
to comply with its duties to “transmit” copies of the requested records and to
provide those copies in accordance with the union’s chosen form of duplication.
According to the union, the definition of “transmit” does not require the requester
“to do anything to receive the produced record.” Therefore, by sending a link to
access the documents—which the union claims required it “to sign on to the
1. The union’s public-records request was governed by former R.C. 149.43, 2016 Am.Sub.H.B.
No. 471, which was in effect on the dates on which the union made its public-records request and
filed its mandamus complaint in the Eighth District. See State ex rel. Kesterson v. Kent State Univ.,
156 Ohio St. 3d 13, 2018-Ohio-5108, 123 N.E.3d 887, ¶ 11, fn. 1. All references to R.C. 149.43
refer to that version of the statute.
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municipality’s computer to access, view and download the municipality’s
response”—the city failed to both “transmit” the records as required by R.C.
149.43(B)(7)(a) and to provide copies to the union in accordance with the choice
made by the union—i.e., by e-mail—as required by R.C. 149.43(B)(6).
{¶ 11} The union, however, has not established that Cleveland violated
either duty. First, with respect to Cleveland’s duty under R.C. 149.43(B)(7)(a) to
“transmit” copies, the fact that the union had to click on a link in the city’s e-mails
to view and download the responsive records does not mean that Cleveland failed
to “transmit” those records. “Transmit” is not defined in R.C. 149.43, and when “a
term is not defined in [a] statute, it should be accorded its plain and ordinary
meaning.” Rhodes v. New Philadelphia, 129 Ohio St. 3d 304, 2011-Ohio-3279, 951
N.E.2d 782, ¶ 17. “Transmit” is commonly defined as “[t]o send or transfer (a
thing) from one person or place to another” or “to communicate.” Black’s Law
Dictionary 1728 (10th Ed.2014). Under the ordinary meaning of the word,
Cleveland transmitted copies of the responsive records to the union by sending e-
mails with hyperlinks that allowed the union to view and download copies of the
records. As the Eighth District determined, there is little difference between
clicking on a hyperlink in an e-mail and clicking on an attachment to an e-mail.
2019-Ohio-1889 at ¶ 5. In the end, both methods provide the requester with the
responsive records. To hold otherwise would establish an overly technical and
unnecessarily narrow meaning of “transmit” in the Public Records Act, R.C.
149.43(B)(7)(a).
{¶ 12} Second, with respect to Cleveland’s duty under R.C. 149.43(B)(6)
to provide copies in the form chosen by the union, the union failed to raise this
statutory argument in the proceedings below. If the union believed that Cleveland’s
e-mails did not amount to “an emailed copy” of the requested records, the union
should have raised that argument in the Eighth District so that the court could
decide the issue in the first instance. Regardless, absent any evidence in the record
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that the union attempted to clarify its choice of delivery method, we cannot
conclude that Cleveland failed to transmit copies of the records “in accordance with
the choice made by the person seeking the copy.” See R.C. 149.43(B)(6). Again,
the union requested an “emailed copy” of records and Cleveland responded by
sending e-mails with hyperlinks to the responsive documents. The fact that the
union had to click on a link to view those records does not mean that Cleveland
failed to provide copies through e-mail as the union had requested.
{¶ 13} The union therefore has not established that Cleveland failed to
comply with its duties under R.C. 149.43(B)(7)(a) or 149.43(B)(6).
Proposition of law No. II: The duty under R.C. 149.43(B) to promptly release
records
{¶ 14} R.C. 149.43(B)(1) provides that public records “shall be promptly
prepared and made available for inspection to any person at all reasonable times.”
{¶ 15} In its second proposition of law, the union asserts that Cleveland
failed to comply with R.C. 149.43(B)(1) because Cleveland produced a certain
subset of records—documents relating to the city’s evaluation of the applicants’
work experience—128 days after the union submitted its request. According to the
union, Cleveland first produced those records in its December 2018 certification to
the Eighth District and the records were not released through Cleveland’s
September 2018 e-mails.
{¶ 16} Although the Public Records Act 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.
McCaffrey v. Mahoning Cty. Prosecutor’s Office, 133 Ohio St. 3d 139, 2012-Ohio-
4246, 976 N.E.2d 877, ¶ 16. Here, the union has not established by clear and
convincing evidence that Cleveland did not release the responsive applicant-
evaluation records until 128 days after the union’s request.
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{¶ 17} As noted above, after the Eighth District referred this case to
mediation, it directed each side to certify the status of the matter. With their
December 2018 certifications, the union and Cleveland submitted copies of the
records that Cleveland had purportedly released. The union’s certification did not
include the subset of records relating to Cleveland’s evaluation of the applicants’
work experience, but Cleveland’s certification did include those records. Cleveland
also alleged that the union’s certification failed to include all the records that
Cleveland had released, and Cleveland included affidavits from two city
employees, one of whom averred that (1) in August 2018, Cleveland uploaded all
records responsive to the union’s request into Cleveland’s public-records-
management system, (2) in August and September, Cleveland sent to the union’s
attorney e-mails with links to those records, and (3) in September and October, the
union’s attorney accessed and viewed those records.
{¶ 18} After receiving Cleveland’s certification, the union had at least two
opportunities in the court of appeals to contradict Cleveland’s evidence or assert
that Cleveland’s certification included more records than it had previously released.
But in the union’s reply to Cleveland’s certification, the union did not argue that
Cleveland had produced its applicant-evaluation records for the first time in its
December 2018 certification. And in the union’s response to the Eighth District’s
entry ordering the union to show cause why its mandamus action should not be
considered moot, the union maintained that Cleveland had not yet released any
records regarding its evaluation of the applicants’ work experience.
{¶ 19} Instead, the union raises for the first time in this appeal the argument
that Cleveland had not promptly provided the applicant-evaluation records. And to
support its position, the union submitted with its merit brief an affidavit from its
attorney, who avers that those records were not included with the other responsive
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records in Cleveland’s e-mails.2 It is well established, however, that “ ‘ “[a]
reviewing court cannot add matter to the record before it, which was not a part of
the trial court’s proceedings, and then decide the appeal on the basis of the new
matter.” ’ ” State ex rel. Montgomery Cty. Pub. Defender v. Siroki, 108 Ohio St. 3d
207, 2006-Ohio-662, 842 N.E.2d 508, ¶ 20, quoting State ex rel. Duncan v.
Chippewa Twp. Trustees, 73 Ohio St. 3d 728, 730, 654 N.E.2d 1254 (1995), quoting
State v. Ishmail, 54 Ohio St. 2d 402, 377 N.E.2d 500 (1978), paragraph one of the
syllabus. We therefore will not consider the affidavit from the union’s attorney.
{¶ 20} Nor will we consider the union’s new argument raised in its reply
brief that even if we were to determine that Cleveland had released all the
responsive records through its September 2018 e-mails, the city nonetheless
violated R.C. 149.43(B)(1) by not fulfilling the union’s August 1 public-records
request until mid-September. By making this argument for the first time in its reply
brief, the union prevented Cleveland from responding to the argument. For that
reason, we generally do not consider issues raised for the first time in a reply brief.
See State ex rel. Sands v. Culotta, 157 Ohio St. 3d 387, 2019-Ohio-4129, 137 N.E.3d
74, ¶ 9. And because Cleveland presented evidence to the Eighth District indicating
that it first e-mailed a link to the responsive records on August 20, 2018—three
days before the union filed its mandamus complaint—Cleveland likely would have
disputed the union’s timeline.
{¶ 21} Based on the record properly before this court, the union has not
established that Cleveland failed to promptly release records in violation of R.C.
149.43(B)(1).
2. According to the union, its attorney did not discover the basis of this argument until he reviewed
the Eighth District’s decision, which identified the applicant-evaluation records in Cleveland’s
December 2018 certification.
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Proposition of law No. III: Damages and attorney fees
{¶ 22} In its third proposition of law, the union asserts that it is entitled to
statutory damages and attorney fees because (1) Cleveland failed to “transmit” any
copies of records to the union in accordance with the union’s chosen delivery
method, (2) Cleveland did not transmit the subset of applicant-evaluation records
directly to the union—rather, it released those records only to the court of appeals
in its December 2018 certification, and (3) Cleveland failed to promptly release
records.
{¶ 23} Under R.C. 149.43(C)(2), an award of statutory damages requires a
court to determine that the public office or person responsible for the public records
failed to comply with an obligation under R.C. 149.43(B). Rogers, 155 Ohio St. 3d
545, 2018-Ohio-5111, 122 N.E.3d 1208, at ¶ 23. Similarly, “R.C.
149.43(C)(2)(b)(i) requires an award of reasonable attorney fees when the public
office or person responsible for the public records failed to timely respond, pursuant
to R.C. 149.43(B), to the public-records request.” State ex rel. Kesterson v. Kent
State Univ., 156 Ohio St. 3d 13, 2018-Ohio-5108, 123 N.E.3d 887, ¶ 24.
{¶ 24} As explained above, the union has not established that Cleveland
failed to comply with any duty under R.C. 149.43(B). The Eighth District,
therefore, correctly decided against awarding the union statutory damages or
attorney fees.
Conclusion
{¶ 25} Because the union has not established that Cleveland failed to
produce records responsive to its public-records request or violated any other duty
under the Public Records Act, we affirm the judgment of the court of appeals.
Judgment affirmed.
O’CONNOR, C.J., and FRENCH, FISCHER, DEWINE, DONNELLY, and
STEWART, JJ., concur.
KENNEDY, J., concurs in judgment only, with an opinion.
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_________________
KENNEDY, J., concurring in judgment only.
{¶ 26} While I disagree with the majority’s reasoning for its decision, I
agree with its decision to affirm the judgment of the Eighth District Court of
Appeals denying the complaint for a writ of mandamus filed by appellant, the
Municipal Construction Equipment Operators’ Labor Council (the “union”). I
write separately to explain why I believe (1) the union waived its argument that
respondents, the city of Cleveland and its Civil Service Commission (collectively,
“Cleveland” or “the city”) violated R.C. 149.43(B)(7)(a), (2) some of the majority’s
determinations are wrong, and (3) the majority’s interpretation of the statutes at
issue here impermissibly diminish the people’s rights under the Public Records Act,
R.C. 149.43. Because I disagree with the majority opinion’s reasoning, I concur in
judgment only.
{¶ 27} The majority rejects the arguments made by the union in its first
proposition of law on two bases. First, the majority determines that the union failed
to establish that Cleveland violated its duty to “transmit” copies of the requested
public records under R.C. 149.43(B)(7)(a). Second, the majority determines that
the union failed to raise in the court of appeals its argument that the city failed to
provide copies of the requested records in the form chosen by the union under R.C.
149.43(B)(6).3 While I disagree with the majority regarding both of those
determinations, I nevertheless reach the same conclusion as the majority—that the
union’s first proposition of law has no merit—but I do so on the ground that the
union waived its argument based on R.C. 149.43(B)(7)(a).
3. The union’s public-records request was governed by former R.C. 149.43, 2016 Am.Sub.H.B.
No. 471. All references to R.C. 149.43 refer to that version of the statute, which was in effect on
the dates on which the union made its public-records request and filed its mandamus complaint in
the Eighth District.
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A. The union waived its argument based on R.C. 149.43(B)(7)(a)
{¶ 28} I agree with the majority’s presentation of the facts in this case, but
it leaves out other important facts in the record that bear upon the correct resolution
of this case.
{¶ 29} In Cleveland’s August 2, 2018 e-mail to the union’s counsel
notifying the union that Cleveland had received the union’s public-records request,
Cleveland provided the tracking-reference number C001239-080218 and stated that
the public-records request “[was] being processed in accordance with the public
records laws.” The e-mail also stated: “You can monitor the progress of your
request at the link below and you’ll receive an email when your request has been
completed.”
{¶ 30} On August 13, 2018, the union sent an e-mail to Cleveland
requesting a response to its public-records request “no later than August 14, 2018.”
The union told Cleveland, “It is noteworthy that Cleveland has previously provided
substantive documents of this type within two weeks after the request was made.”
{¶ 31} On August 20, 2018, Cleveland sent an e-mail notification to the
union informing it that public records responsive to its request had been uploaded
to the Cleveland Public Records Center. Cleveland again provided the tracking-
reference number C001239-080218. The union received two more e-mails from
Cleveland, on September 13 and 18, 2018, notifying the union that public records
responsive to its request had been uploaded to the records center. Cleveland
provided the tracking-reference number in both of those e-mails. Cleveland
included boilerplate language in all the e-mail notifications it sent to the union.
That boiler-plate language included access-limitation language regarding how
many times and for how many days the union could view or download the
responsive records. The boilerplate language provided, “Please note: Make sure
that any pop-up blockers are turned off in order to view/download documents.
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Documents may be viewed/downloaded up to 3 times. You have up to 30 days to
view/download documents.”
{¶ 32} Cleveland submitted to the court of appeals the affidavit of Alberto
Guzman, the supervisor of hardware evaluations for Cleveland. Guzman averred
that on September 6, 2018, the union “accessed and viewed” a series of records
responsive to its public-records request. On that same date, the union’s counsel
sent an e-mail to Cleveland in which he stated, “None of the files can be
downloaded. The messages I received are attached. Please get this fixed by noon
tomorrow.”
{¶ 33} Guzman averred that on September 7, 2018, he contacted the union’s
counsel by telephone “and helped him troubleshoot turning off the popup blocker
on his internet browser so that he could download” the documents responsive to the
union’s public-records request. Guzman also stated that the union’s counsel
“accessed and viewed” a series of records responsive to the union’s public-records
request that same day. According to Guzman, on October 15, 2018, the union’s
counsel “accessed and viewed” the “score sheet” relating to the candidates who had
applied for the open position with the city. And on October 17, 2018, the union’s
counsel “accessed and viewed” additional records responsive to the union’s public-
records request.
{¶ 34} On December 6, 2018, Cleveland filed in the court of appeals a
certification of the records it had produced to the union stating that records
responsive to the union’s public-records request with the tracking-reference
number C001239 had been uploaded to the Cleveland Public Records Center, that
instructions on how to retrieve the responsive documents had been provided, and
that the union had accessed and viewed those records.
{¶ 35} In response to Cleveland’s certification, the union filed a reply
arguing that Cleveland’s merely providing “access” was inconsistent with
Cleveland’s duties under R.C. 149.43(B)(7). According to the union, “[t]hat statute
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requires transmittal of the requested public record to its requestor.” The union cited
language in R.C. 149.43(B)(7)(a) and argued that “[n]o provision of this statute
describes providing ‘access’ to those records.”
{¶ 36} Unlike the majority, I would resolve the union’s first proposition of
law on the ground that the union waived that argument. Waiver is the voluntary
relinquishment of a known right. See Chubb v. Ohio Bur. of Workers’ Comp., 81
Ohio St. 3d 275, 278, 690 N.E.2d 1267 (1998), citing State ex rel. Athens Cty. Bd.
of Commrs. v. Gallia, Jackson, Meigs, Vinton Joint Solid Waste Mgt. Dist. Bd. of
Dirs., 75 Ohio St. 3d 611, 616, 665 N.E.2d 202 (1996). “Persons may either
expressly or impliedly waive statutory provisions intended for their own benefit,
but statutory provisions cannot be waived when they are intended for the benefit of
others.” State ex rel. Wallace v. State Med. Bd. of Ohio, 89 Ohio St. 3d 431, 435,
732 N.E.2d 960 (2000), citing Brannock v. Brannock, 104 N.M. 385, 386, 722 P.2d
636 (1986); see also State v. Ventura, 101 Ohio Misc. 2d 15, 19, 720 N.E.2d 1024
(C.P.1999).
{¶ 37} Because the Public Records Act afforded the union a statutory
benefit that it expressly or impliedly waived, the union cannot rely on Cleveland’s
purported violation of the statute in its mandamus action. Still, the union argues
that R.C. 149.43(B)(7)(a) required Cleveland to “transmit” a copy of the public
records it requested rather than simply provide access to the records.
{¶ 38} Our main objective in applying a statute is to determine and give
effect to the legislature’s intent, State ex rel. Solomon v. Police & Firemen’s
Disability & Pension Fund Bd. of Trustees, 72 Ohio St. 3d 62, 65, 647 N.E.2d 486
(1995), which must be determined primarily from the language of the statute itself,
Stewart v. Trumbull Cty. Bd. of Elections, 34 Ohio St. 2d 129, 130, 296 N.E.2d 676
(1973). “When the statutory language is plain and unambiguous, and conveys a
clear and definite meaning, we must rely on what the General Assembly has said.”
Jones v. Action Coupling & Equip., Inc., 98 Ohio St. 3d 330, 2003-Ohio-1099, 784
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N.E.2d 1172, ¶ 12, citing Symmes Twp. Bd. of Trustees v. Smyth, 87 Ohio St. 3d
549, 553, 721 N.E.2d 1057 (2000). This court has explained:
“Where the language of a statute is plain and unambiguous and
conveys a clear and definite meaning, there is no occasion for
resorting to the rules of statutory interpretation, and the court has no
right to look for or impose another meaning. In the case of such
unambiguity, it is the established policy of the courts to regard the
statute as meaning what it says, and to avoid giving it any other
construction than that which its words demand. The plain and
obvious meaning of the language used is not only the safest guide to
follow in construing it, but it has been presumed conclusively that
the clear and explicit terms of a statute expresses the legislative
intention, so that such plain and obvious provisions must control. A
plain and unambiguous statute is to be applied, and not interpreted,
since such a statute speaks for itself, and any attempt to make it
clearer is a vain labor and tends only to obscurity.”
Jasinsky v. Potts, 153 Ohio St. 529, 534, 92 N.E.2d 809 (1950), quoting 50
American Jurisprudence, Statutes, Section 225.
{¶ 39} R.C. 149.43(B)(7)(a) states:
Upon a request made in accordance with division (B) of this section
and subject to division (B)(6) of this section, a public office or
person responsible for public records shall transmit a copy of a
public record to any person by United States mail or by any other
means of delivery or transmission within a reasonable period of time
after receiving the request for the copy. The public office or person
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responsible for the public record may require the person making the
request to pay in advance the cost of postage if the copy is
transmitted by United States mail or the cost of delivery if the copy
is transmitted other than by United States mail, and to pay in
advance the costs incurred for other supplies used in the mailing,
delivery, or transmission.
(Emphasis added.)
{¶ 40} The plain and unambiguous language of R.C. 149.43(B)(7)(a)
requires that when a public-records request is made pursuant to R.C. 149.43(B), the
public office or person responsible for the public record must “transmit a copy of
the public record” subject to the requirements of R.C. 149.43(B)(6).
{¶ 41} R.C. 149.43(B)(6) states:
The public office or the person responsible for the public record
shall permit that person to choose to have the public record
duplicated upon paper, upon the same medium upon which the
public office or person responsible for the public record keeps it, or
upon any other medium upon which the public office or person
responsible for the public record determines that it reasonably can
be duplicated as an integral part of the normal operations of the
public office or person responsible for the public record. When the
person requesting the copy makes a choice under this division, the
public office or person responsible for the public record shall
provide a copy of it in accordance with the choice made by that
person.
(Emphasis added.)
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{¶ 42} Reading the plain language of R.C. 149.43(B)(7)(a) and (B)(6)
together, it is clear that the General Assembly provided a public-records requester
benefits, which include the right for the requester to choose how the copy of the
public record will be produced (i.e., the medium upon which the public record will
be produced), and the right for the requestor to choose how the copy of the public
record will be transmitted (i.e., United States mail, e-mail, or other methods). Once
the public-records requester has made its choices under those statutes, the public
office or person responsible for the records is required to comply with the
requester’s choices.
{¶ 43} Here, instead of sending an e-mail to the union including a copy of
the public records the union requested, Cleveland sent an e-mail notification
informing the union that responsive records had been uploaded to the Cleveland
Public Records Center and that the union could access the records. The city told
the union that in order for it to access the records, it needed to click on a hyperlink
the city provided, to follow the instructions the city provided, and that the union
could access the records a limited number of times and for a limited period of time.
{¶ 44} The evidence submitted to the court of appeals demonstrates that the
union accessed and viewed the records responsive to its public-records request
through the Cleveland Public Records Center on six occasions. The evidence also
reveals that when the union could not download the responsive documents, Guzman
assisted the union with downloading the documents. There is no evidence in the
record that other responsive documents could not be downloaded by the union. The
union accessed and viewed the responsive records through the Cleveland Public
Records Center. The union also asked the city to fix the problems it had with
downloading the documents, and the city fixed those problems. Based on those
facts, the union waived its argument that the city violated its duties under R.C.
149.43(B)(7)(a).
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January Term, 2020
{¶ 45} While this determination ends my analysis of the issues the union
raised under its first proposition of law, I am compelled to respond to the majority’s
interpretation of the word “transmit” in R.C. 149.43(B)(7)(a). The majority
incorrectly interprets that word in contravention of its plain and unambiguous
meaning in determining that the union failed to preserve its argument that
Cleveland did not comply with its duties under the Public Records Act.
B. The plain and unambiguous language of R.C. 149.43(B)(7)(a)
{¶ 46} In reaching its conclusion that the union failed to preserve its
argument that Cleveland failed to comply with its duties under the Public Records
Act, the majority paraphrases the statutory language in R.C. 149.43(B)(7)(a). It
omits from the statute the direct object of “transmit.” The full text of the statute
demonstrates that the word “transmit” is followed by the phrase “a copy of a public
record.” That is, to reach its conclusion regarding the statute’s meaning, the
majority construes the word “transmit” in isolation from the words around it—“a
copy of a public record”—and thereby evades the plain and unambiguous language
of R.C. 149.43(B)(7)(a).
{¶ 47} The “words of a governing text are of paramount concern, and what
they convey, in their context, is what the text means.” Scalia & Garner, Reading
Law: The Interpretation of Legal Texts 56 (2012). Interpreting the word “transmit”
outside its statutory context, the majority appears to convince itself that Cleveland’s
sending the union an e-mail containing a hyperlink to the public records complied
with R.C. 149.43(B)(7)(a). But Cleveland did not comply with the statute. The
phrase “a copy of a public record” cannot “be meaningless, else [the legislature]
would not have been used [that word].” United States v. Butler, 297 U.S. 1, 65, 56
S. Ct. 312, 80 L. Ed. 477 (1936). When the word “transmit” is read in context with
the direct object—“a copy of a public record”—the intent of the General Assembly
is plain and unambiguous. The public office or person responsible for the public
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record must provide the requester a copy of the requested public record, not
something else.
{¶ 48} The majority rationalizes its reading of the statute by citing to the
decision of the court of appeals below and stating that “there is little difference
between clicking on a hyperlink in an e-mail and clicking on an attachment to an e-
mail.” Majority opinion at ¶ 11. It says that “[t]o hold otherwise would establish
an overly technical and unnecessarily narrow meaning of ‘transmit’ in the Public
Records Act, R.C. 149.43(B)(7)(a).” Id.
{¶ 49} There are two takeaways from the majority’s determinations. First,
the majority, like the court of appeals, recognizes that there is a difference between
providing a copy of a public record and providing a hyperlink to the public record.
Second, by relying on its “overly technical and unnecessarily narrow meaning”
hyperbole, the majority acknowledges that it is casting aside our plain-and-
unambiguous standard of statutory construction for something else.
{¶ 50} In my view, the hyperlink that Cleveland sent to the union was not
“a copy of a public record.” Rather, the e-mail notification from Cleveland
informed the union that it would have to produce the public records it requested on
its own. The hyperlink connected the union to a login portal on the Cleveland
Public Records Center. After the union logged onto the records center, it could
access and view the records. When the union was unable to download the records,
it notified Cleveland that “[n]one of the files can be downloaded.” Despite that
there might be little or de minimis difference between attaching a copy of public
records to an e-mail, as the union requested, and sending an e-mail containing a
hyperlink to the records, the General Assembly determined that it is the public
office—here, Cleveland—that had to comply with the requester’s preference. R.C.
149.43(B)(6) and (B)(7)(a).
{¶ 51} The Eighth District recognized that there is a difference between
sending an e-mail with a copy of public records attached to the e-mail and sending
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January Term, 2020
an e-mail containing a hyperlink to the records. The Eighth District simply decided
that the difference was not significant enough and called the difference “de
minimis.” 2019-Ohio-1889, ¶ 5. The majority also recognizes a difference, or else
its opinion would say that there is “no difference” instead of “little difference.” By
ignoring this difference, regardless of it being “de minimis” or “little,” and by
rubberstamping the hyperlink method of production and transmission, both the
court of appeals and the majority have determined that it is acceptable for a public
office to take away the statutory right of the people to choose how they want their
requested public records to be produced and transmitted and have thereby limited
the people’s right to access public records and weakened the Public Records Act.
{¶ 52} There is no support in the text of R.C. 149.43(B)(7)(a) for the
majority’s decision today. Without textual support, the majority is merely deciding
what it would like the statute to say rather than interpreting what it says. We should
resist the temptation to “soften the clear import” of the legislature’s “chosen words
[even if the] * * * words lead to a harsh [outcome] * * *. [D]eference to the
supremacy of the Legislature, as well as recognition that [members of the
legislature] typically vote on the language of a bill,” United States v. Locke, 471
U.S. 84, 95, 105 S. Ct. 1785, 85 L. Ed. 2d 64 (1985), citing Richards v. United States,
369 U.S. 1, 9, 82 S. Ct. 585, 7 L. Ed. 2d 492 (1962), is our obligation. “A judge must
not rewrite a statute, neither to enlarge nor to contract it. Whatever temptations the
statesmanship of policy-making might wisely suggest, construction must eschew
interpolation and evisceration. [A judge] must not read in by way of creation.”
Frankfurter, Some Reflections on the Reading of Statutes, 47 Colum.L.Rev. 527,
533 (1947).
{¶ 53} In reality, it is the majority that establishes an “unnecessarily narrow
meaning,” majority opinion at ¶ 11, of the word “transmit” by construing it in
isolation. And while to the majority there might be “little difference” between the
methods of production, majority opinion at ¶ 11, and a “de minimis” difference to
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the court of appeals, 2019-Ohio-1889 at ¶ 5, “ ‘[a] judicially created “good sense”
rule’ cannot override our precedent that only the General Assembly determines
public policy as to public-records access,” State ex rel. Pietrangelo v. Avon Lake,
146 Ohio St. 3d 292, 2016-Ohio-2974, 55 N.E.3d 1091, ¶ 35 (Kennedy, J.,
dissenting), quoting State ex rel. Cincinnati Enquirer v. Jones-Kelley, 118 Ohio
St.3d 81, 2008-Ohio-1770, 886 N.E.2d 206, ¶ 44, citing State ex rel. WBNS TV, Inc.
v. Dues, 101 Ohio St. 3d 406, 2004-Ohio-1497, 805 N.E.2d 1116, ¶ 36-37.
C. The union did not abandon its R.C. 149.43(B)(6) argument
{¶ 54} The majority dispenses with the union’s argument that Cleveland
violated R.C. 149.43(B)(6) by asserting that the union failed to raise that argument
in the court of appeals. But as explained below, the union did not abandon that
argument. First, compliance with R.C. 149.43(B)(6) is required by the text of R.C.
149.43(B)(7)(a). Second, the union did make that argument in the court of appeals
(in fact, the court issued a decision on that issue).
{¶ 55} As set forth above, R.C. 149.43(B)(7)(a) requires the public office
or person responsible for a public record to comply with the requirements of R.C.
149.43(B)(6). The majority ignores this requirement and fails to recognize the plain
and unambiguous language of R.C. 149.43(B)(7)(a) in the context of the public-
records-requests scheme the legislature enacted. However, “[i]n ascertaining the
plain meaning of [a] statute, the court must look to the particular statutory language
at issue, as well as the language and design of the statute as a whole.” K Mart Corp.
v. Cartier, Inc., 486 U.S. 281, 291, 108 S. Ct. 1811, 100 L. Ed. 2d 313 (1988), citing
Bethesda Hosp. Assn. v. Bowen, 485 U.S. 399, 403-405, 108 S. Ct. 1255, 99
L. Ed. 2d 460 (1988), and Offshore Logistics, Inc. v. Tallentire, 477 U.S. 207, 220-
221, 106 S. Ct. 2485, 91 L. Ed. 2d 174 (1986). Whether Cleveland complied with
R.C. 149.43(B)(6) is an essential aspect of the union’s argument based on R.C.
149.43(B)(7)(a).
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January Term, 2020
{¶ 56} Additionally, in its complaint for a writ of mandamus, the union
alleged that it had asked for “an emailed copy of the application files of and test
reports” for a list of named people in relation to the open position with the city.
Cleveland acknowledged receipt of the public-records request and told the union
that it would process the request “in accordance with the public records laws.” The
union filed its complaint for a writ of mandamus on the basis that Cleveland had
“not produced any public records” and had not denied the existence of the records
the union sought or claimed that the records were exempt from disclosure.
{¶ 57} Cleveland filed in the court of appeals a certification of the records
it had produced to the union. In response to Cleveland’s certification, the union
filed a reply arguing that merely providing “access” was inconsistent with
Cleveland’s duties under R.C. 149.43(B)(7). Citing the full text of R.C.
149.43(B)(7)(a), the union argued that Cleveland had failed to provide the union
the public records it sought.
{¶ 58} In its statement of the facts, the Eighth District stated that the union
had made its public-records request by e-mail and requested that “the records be
sent by email.” 2019-Ohio-1889 at ¶ 1. The court then outlined the arguments of
the parties and noted that the union alleged that Cleveland had failed to comply
with its request for public records “because it had provided a link to the records that
was hard to open and had not transmitted the records directly.” Id. at ¶ 4.
{¶ 59} Without citing the statute or engaging in any statutory-construction
analysis, the court of appeals simply concluded that “[t]he difference between
transmitting the records and providing a link to the records was de minimis.” Id. at
¶ 5. But the duty of a court when construing the language of a statute is to give
effect to the words of the statute. “[Courts] do not pause to consider whether a
statute differently conceived and framed would yield results more consonant with
fairness or reason. [Courts] take * * * statute[s] as [they] find [them]. Anderson v.
Wilson, 289 U.S. 20, 27, 53 S. Ct. 417, 77 L. Ed. 1004 (1933). And the plain and
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SUPREME COURT OF OHIO
unambiguous language of R.C. 149.43(B)(7)(a) requires that when a public-records
request is made pursuant to R.C. 149.43(B), the office or person responsible for the
record “transmit a copy of [the] public record” subject to the requirements of R.C.
149.43(B)(6). Therefore, the union did preserve its argument based on those
provisions.
{¶ 60} As set forth above, the language of R.C. 149.43(B)(6) plainly
provides that the public-records requester has the authority to choose the form in
which the requested records will be produced and how they will be transmitted.
Once that choice is made, the office or person responsible for the public record is
required to provide the requester a copy of the public record by transmitting it in
the manner the requester chose. The General Assembly used the term “shall” in
both R.C. 149.43(B)(6) and (B)(7)(a) in explaining the duties that the office or
person responsible for a public record has when responding to a public-records
request. A basic rule of statutory interpretation is that the word “shall” is
“construed as mandatory unless there appears a clear and unequivocal legislative
intent” otherwise. Dorrian v. Scioto Conservancy Dist., 27 Ohio St. 2d 102, 271
N.E.2d 834 (1971), paragraph one of the syllabus; R.C. 1.42 (“[w]ords and phrases
shall be read in context and construed according to the rules of grammar and
common usage”).
{¶ 61} There is no “clear and unequivocal” intent by the General Assembly
to make the duties described in R.C. 149.43(B)(6) and (B)(7)(a) anything other than
mandatory. Therefore, there is no room to declare that the statutory language is
discretionary or directory and there is no statutory authority for declaring that
Cleveland complied with the union’s public-records request.
D. The majority opinion frustrates the purpose of the Public Records Act
{¶ 62} Regarding the interpretation and application of statutory language,
“[t]he presumption against ineffectiveness ensures that a text’s manifest purpose is
furthered, not hindered.” Scalia and Garner at 56. The presumption against
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January Term, 2020
ineffectiveness flows from the belief that “interpretation always depends on
context, * * * context always includes evident purpose, and * * * evident purpose
always includes effectiveness.” Id. While the majority may not perceive that their
turning a blind eye to the plain and unambiguous language of the Public Records
Act obstructs its manifest purpose, it does.
{¶ 63} “ ‘ “[P]ublic records are the people’s records, and * * * the officials
in whose custody they happen to be are merely trustees for the people.” ’ ” State ex
rel. Natl. Broadcasting Co., Inc. v. Cleveland, 38 Ohio St. 3d 79, 81, 526 N.E.2d
786 (1988), quoting Dayton Newspapers v. Dayton, 45 Ohio St. 2d 107, 109, 341
N.E.2d 576 (1976), quoting State ex rel. Patterson v. Ayers, 171 Ohio St. 369, 371,
171 N.E.2d 508 (1960). The Public Records Act codifies the people’s right to
access governmental records and permits the people to scrutinize their government,
State ex rel. Oriana House, Inc. v. Montgomery, 110 Ohio St. 3d 456, 2006-Ohio-
4854, 854 N.E.2d 193, ¶ 36, “by ensuring that governmental functions are not
conducted behind a shroud of secrecy,” State ex rel. Wallace, 89 Ohio St. 3d at 438,
732 N.E.2d 960. It reflects the state’s policy 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, and “reinforce[s] the
understanding that open access to government papers is an integral entitlement of
the people, to be preserved with vigilance and vigor,” Kish v. Akron, 109 Ohio St. 3d
162, 2006-Ohio-1244, 846 N.E.2d 811, ¶ 17. As this court explained in Kish,
the General Assembly is the ultimate arbiter of policy considerations
relevant to public-records laws * * * and it is for the legislature to
“weigh[] and balance[] the competing public policy considerations
between the public’s right to know how its state agencies make
decisions and the potential harm, inconvenience or burden imposed
on the agency by disclosure.”
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(Citations omitted.) Id. at ¶ 44, quoting State ex rel. James v. Ohio State Univ., 70
Ohio St. 3d 168, 172, 637 N.E.2d 911 (1994). But today the majority chooses what
Ohio’s policy regarding the production and transmission of public records should
be and impermissibly shifts the burdens of production and transmission of public
records to the requester, burdens that the General Assembly statutorily placed on
the office or person responsible for the records. Except for the requirement that the
records requester make the initial request, the legislature places no burden on the
people’s right to inspect, obtain a copy of, or receive public records so the people
can scrutinize their government. See R.C. 149.43(B)(1). After weighing and
balancing the public-policy considerations, the legislature placed the remainder of
the burdens upon the government.
{¶ 64} The Public Records Act requires the government to “facilitate
broader access to public records” by requiring the office or person responsible for
a public record to “organize and maintain public records in a manner that they can
be made available for inspection and copying” and to make “readily available to
the public” a current copy of the office’s records-retention schedule. R.C.
149.43(B)(2). It requires the government to promptly prepare and make available
“all public records responsive to a request” for inspection “at all reasonable times
during regular business hours” and to make copies of requested records available
within a reasonable period of time. R.C. 149.43(B)(1). If the request is “ambiguous
or overly broad” or the requester has “difficulty in making a request for copies or
inspection,” the office or person responsible for the public record must give the
requester the “opportunity to revise the request” and must inform the requester how
“records are maintained * * * and accessed” to assist the person making the public-
records request. R.C. 149.43(B)(2).
{¶ 65} Absent a state or federal law requiring it, an office or person
responsible for a public record may not “limit or condition the availability of public
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January Term, 2020
records by requiring disclosure of the requester’s identity or the intended use of the
requested public record.” R.C. 149.43(B)(4). The government has a duty to “make
available all of the information within the public record that is not exempt.” R.C.
149.43(B)(1). If the government denies a request, in whole or in part, it is required
to explain why the request was denied, including “legal authority” for the denial,
and if the request was made in writing, the explanation for the denial must be in
writing. R.C. 149.43(B)(3). And if the office or person responsible for a public
record impermissibly redacts or denies access to the public record, the office is
liable for the requester’s costs, attorney fees, and statutory damages. R.C.
149.43(C).
{¶ 66} And it is the requester who is permitted to choose how the requester
wants the records to be produced. R.C. 149.43(B)(6). “When the person requesting
the copy makes a choice under [R.C. 149.43(B)(6)], the public office or person
responsible for the public record shall provide a copy of it in accordance with the
choice made by that person.” Id. And the office or person responsible for a public
record is required to “transmit a copy of [the] public record” in accordance with
R.C. 149.43(B)(6) and in the manner that the public-records requester chooses.
R.C. 149.43(B)(7)(a).
{¶ 67} “There is a basic difference between filling a gap left by [the
legislature’s] silence and rewriting [the language that the legislature] has
affirmatively and specifically enacted.” Mobil Oil Corp. v. Higginbotham, 436
U.S. 618, 625, 98 S. Ct. 2010, 56 L. Ed. 2d 581 (1978). Here, the General Assembly
left no gap for the majority’s decision to fill.
{¶ 68} The General Assembly placed all burdens regarding the production
and transmission of public records on the custodians of the public records—the
government. The Public Record Act provides no authority for an office or person
responsible for a public record to ignore the commands of the statute, rewrite the
statute, shift its statutory burdens to the public-records requester, or limit the public-
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SUPREME COURT OF OHIO
records requesters access to the records. But that is exactly what Cleveland did
here and what the majority sanctions. Had Cleveland simply followed the law and
sent the union a copy of the union’s requested records by e-mail, the union would
have had immediate perpetual access to the records.
{¶ 69} We have no authority to ignore unambiguous statutory language or
to rewrite a statute. Wilson v. Lawrence, 150 Ohio St. 3d 368, 2017-Ohio-1410, 81
N.E.3d 1242, ¶ 18. “It is not the role of the courts ‘to establish legislative policies
or to second-guess the General Assembly’s policy choices.’ ” Stetter v. R.J.
Corman Derailment Servs., L.L.C., 125 Ohio St. 3d 280, 2010-Ohio-1029, 927
N.E.2d 1092, ¶ 35, quoting Groch v. Gen. Motors Corp., 117 Ohio St. 3d 192, 2008-
Ohio-546, 883 N.E.2d 377, ¶ 212. If the General Assembly enacted something into
law that is different from what it intended, then it should amend the relevant statutes
to conform them to its intent. “It is beyond [a court’s] province [however] to rescue
[the legislature] from its drafting errors, and to provide for what [the court] might
think * * * is the preferred result.” United States v. Granderson, 511 U.S. 39, 68,
114 S. Ct. 1259, 127 L. Ed. 2d 611 (1994). Anything less than adherence to our rules
of statutory construction violates our role under the Constitution.
{¶ 70} Therefore, I concur in judgment only.
_________________
Climaco, Wilcox, Peca & Garofoli Co., L.P.A., and Stewart D. Roll, for
appellant.
Barbara A. Langhenry, Cleveland Director of Law, and Craig J. Morice,
Assistant Director of Law, for appellees.
_________________
26