State ex rel. The Community Press v. Blue Ash

[Cite as State ex rel. The Community Press v. Blue Ash, 2018-Ohio-2506.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE EX REL. THE COMMUNITY : APPEAL NO. C-170281
PRESS, TRIAL NO. A-1604055
:
Relator-Appellee/Cross- O P I N I O N.
Appellant, :
vs. :
THE CITY OF BLUE ASH, OHIO, :
Respondant-Appellant/Cross- :
Appellee.
Civil Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed in Part, Reversed in Part, and Cause
Remanded
Date of Judgment Entry on Appeal: June 27, 2018
Gradon Head & Ritchey, LLP, and John C. Greiner, for Relator-Appellee/Cross-
Appellant,
Dinsmore & Shohl, LLP, Alex M. Triantafilou, Bryan E. Pacheco and Andrew B.
Cassady, for Respondent-Appellant/Cross-Appellee.
O HIO F IRST D ISTRICT C OURT OF A PPEALS
M OCK , Presiding Judge.
{¶1} In two assignments of error, respondent-appellant/cross-appellee city
of Blue Ash appeals from the decision of the trial court finding that it had improperly
refused to provide information requested by petitioner-appellee/cross-appellant The
Community Press. The Community Press, in one assignment of error, cross-
appealed the decision claiming that the trial court improperly determined the
amount of attorney fees awarded. We affirm the trial court’s judgment in part,
reverse it in part, and remand the cause for further proceedings.
Management Program Information Sought By Media
{¶2} Judy Office was the owner of Inner Summit. Inner Summit provides
help to individuals seeking to improve their management skills, professional
coaching, and development. She was contacted by the head of the human resources
department for Blue Ash and asked to conduct a professional-development exercise
called the “360 Feedback Project.” The project was designed by Office to allow
senior managers with the city to receive anonymous feedback from their peers and
employees in areas of managerial development considered important by the
International City/County Management Association, an organization that supports
professional city and county managers and employees of local governments. There
were to be seven individuals who received assessments, and each of them was
reviewed by six to eight assessors. Office gave the estimate of between 42-56
possible responders in total. The employees were told that the surveys were
confidential and that no one from Blue Ash would see them.
{¶3} Office sent the forms to be completed as an attachment to an email
that she sent to herself with a blind carbon copy to the assessors of the individual
assessment. Office did not retain any of the emails sent to the assessors, but kept the
Word document that she used as the form letter that she pasted into the email body.
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Those forms were completed by the assessors and returned to Office. Office then
compiled the responses into a report that was sent only to the individual being
assessed. While most of the reports were verbatim copies of the assessors’ responses,
Office sometimes edited or summarized comments that gave details that would have
led to the individual being able to identify an assessor.
{¶4} No one other than the subject of the report was given a copy of the
report. Office said that they were for “individual development.” They were not
placed in personnel files or retained in any way by Blue Ash or any of its
departments. And no action was taken by Blue Ash due to information contained in
the reports.
{¶5} In May 2016, a reporter for respondent-appellee/cross-appellant The
Community Press learned of the assessments and submitted a public record request
for all documents relating to it. Blue Ash tendered a copy of the proposal for the
project (which was the only document relating to the “contract” between Inner
Summit and Blue Ash, because the details of the process were arranged orally
afterward) but tendered no other documents.
{¶6} The Community Press filed suit against Blue Ash seeking a writ of
mandamus to compel production of the reports, all the documents that related to the
administration of the surveys, and the composition of the reports. The trial court
found that the documents were public records subject to disclosure. The trial court
also found that Blue Ash improperly deleted at least one email relating to the 360
Feedback Project. While the trial court found that Blue Ash had improperly withheld
the documents, it denied The Community Press’s request for attorney fees on that
claim, finding that Blue Ash’s position was “not unreasonable given the case law as it
exists.” The trial court awarded attorney fees relating to the deletion of the email.
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Mandamus Was Improperly Granted
{¶7} In its first assignment of error, Blue Ash claims that the trial court
erred when it issued the writ of mandamus compelling the city to produce the
documents related to the 360 Feedback Project. We agree.
{¶8} “Mandamus is the appropriate remedy to compel compliance with
R.C. 149.43, Ohio’s Public Records Act.” State ex rel. Cincinnati Enquirer, Div. Of
Gannett Satellite Information Network, Inc. v. Dupuis, 98 Ohio St.3d 126, 2002-
Ohio-7041, 781 N.E.2d 163, ¶ 11. “In order to be entitled to a writ of mandamus, the
relator must establish a clear legal right to the relief prayed for, that respondent has
a clear legal duty to perform the requested act, and that relator has no plain and
adequate remedy at law.” State ex rel. Seikbert v. Wilkinson, 69 Ohio St.3d 489,
490, 633 N.E.2d 1128 (1994). Relators seeking public records in mandamus,
however, need not establish the lack of an adequate remedy at law. State ex rel. Am.
Civ. Liberties Union of Ohio, Inc. v. Cuyahoga Cty. Bd. of Commrs., 128 Ohio St.3d
256, 2011-Ohio-625, 943 N.E.2d 553, ¶ 24.
{¶9} The Ohio Public Records Act provides that upon request, “all public
records responsive to the request shall be promptly prepared and made available for
inspection to any person at all reasonable times during regular business hours.” R.C.
149.43(B)(1). “ ‘Public record’ means records kept by any public office, including, but
not limited to, state, county, city, village, township, and school district units[.]” R.C.
149.43(A)(1). The term “record” includes “any document * * * created or received by
or coming under the jurisdiction of any public office of the state or its political
subdivisions, which serves to document the organization, functions, policies,
decisions, procedures, operations, or other activities of the office.” R.C. 149.011(G).
“ ‘Public office’ includes any state agency, public institution, political subdivision, or
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other organized body, office, agency, institution, or entity established by the laws of
this state for the exercise of any function of government.” R.C. 149.011(A).
{¶10} The political office is the political subdivision, in this case, the city of
Blue Ash. See R.C. 149.011(A). The specific documents at issue in this case are not
“records” under R.C. 149.011. They do not document: 1) the organization of the city;
2) the functions of the city; 3) the policies of the city; 4) the decisions of the city; 5)
the procedures of the city; 6) the operations of the city; or 7) other activities of the
city. And they are not something “a government unit utilizes to carry out its duties
and responsibilities.” See State ex rel. Beacon Journal Publishing Co. v. Whitmore,
83 Ohio St.3d 61, 63, 698 N.E.2d 640 (1988), citing State ex rel. Mazzaro v.
Furgusson, 49 Ohio St.3d 37, 39, 550 N.E.2d 464 (1990). While they may have
assisted the “public officials” (the employees of the city of Blue Ash as defined in R.C.
149.011) in better performing their jobs, this does not make them “records” under the
statute.
{¶11} In State ex rel. Cincinnati Enquirer v. Ronan, the Ohio Supreme
Court addressed the question of when applications for the position of superintendent
of the Cincinnati Public School system became “records” and could be obtained
through R.C. 149.43. State ex rel. Cincinnati Enquirer v. Ronan, 127 Ohio St.3d 236,
2010-Ohio-5680, 938 N.E.2d 347. In that case, applicants submitted their materials
to a post office box, and they were not retrieved by the district until a specified date.
The Cincinnati Enquirer filed a request for a writ of mandamus asking that the
materials be made available before that date, arguing that they were available once
they had been placed in the post office box. The court found that they were not
records at that point. “R.C. 149.011(G) * * * requires more than mere receipt and
possession of a document in order for it to be a record for purposes of R.C. 149.43.”
Id. at ¶ 15, quoting Whitmore at 64. The court concluded that “until the school
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district retrieved the documents from its post office box and reviewed them or
otherwise used or relied on them, they were not records subject to disclosure under
R.C. 149.43.” Ronan at ¶ 16.
{¶12} Since the documents relating to the 360 Feedback Project were not
utilized by Blue Ash to carry out its duties and responsibilities, they were not public
records subject to disclosure. The trial court erred when it issued a writ compelling
their production. We sustain Blue Ash’s first assignment of error.
Destruction of Email
{¶13} In Blue Ash’s second assignment of error, it claims that the trial court
erred when it determined that it had improperly destroyed documents. We agree.
{¶14} R.C. 149.351(A) states that “[a]ll records are the property of the public
office concerned and shall not be removed, destroyed, mutilated, transferred, or
otherwise damaged or disposed of, in whole or in part, except as provided by law or *
* * under the records programs” that are established under R.C. 149.33. R.C.
149.351(B)(2) provides that “[a]ny person who is aggrieved by the removal,
destruction, mutilation, or transfer of, or by other damage to or disposition of a
record in violation of” R.C. 149.351(A), may commence “[a] civil action to recover a
forfeiture in the amount of one thousand dollars for each violation.”
{¶15} The Ohio Supreme Court addressed the purpose of R.C. 149.351,
concluding that the legislature's intent in promulgating the statute was to protect and
preserve “public records.” Kish v. Akron, 109 Ohio St.3d 162, 2006-Ohio-1244, 846
N.E.2d 811, ¶ 18. A party is aggrieved, therefore, if a document is destroyed that
meets the definition of a “public record” and it was destroyed in a manner other than
as provided for by law. See State ex rel. Cincinnati Enquirer v. Allen, 1st Dist.
Hamilton No. C-040838, 2005-Ohio-4856, ¶ 15. Conversely, if the record was not a
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“public record,” the party cannot be aggrieved by its destruction. See Walker v. Ohio
State Univ. Bd. of Trustees, 10th Dist. Franklin No. 09AP-748, 2010-Ohio-373, ¶ 27.
{¶16} The term “record” includes “any document * * * created or received by
or coming under the jurisdiction of any public office of the state or its political
subdivisions, which serves to document the organization, functions, policies,
decisions, procedures, operations, or other activities of the office.” R.C. 149.011(G).
But R.C. 149.43 and 149.011(G) do not define a public record as any piece of paper
received by a public office that might be used by that office. Ronan, 127 Ohio St.3d
236, 2010-Ohio-5680, 938 N.E.2d 347, at ¶ 13, citing Tax Analysists v. United States
Dept. of Justice, 845 F.2d 1060, 1068 (D.C.Cir.1988). The R.C. 149.011(G) definition
of “records” has been construed to encompass “ ‘anything a governmental unit
utilizes to carry out its duties and responsibilities * * *.’ ” Whitmore, 83 Ohio St.3d
at 64, 697 N.E.2d 640. So, if requested documents are not utilized by the public
office, they do not “document the organization, functions, policies, decisions,
procedures, operations, or other activities” of the public office and are not public
records. Id.; R.C. 149.011(G). Therefore, letters written to a judge are not public
records if the judge did not rely on those letters when making a decision. Whitmore
at 64. And, application materials for employment as a school superintendent were
not public records until the school board “retrieved the documents from its post
office box and reviewed them or otherwise used or relied on them.” (Emphasis
added.) Ronan at ¶ 16.
{¶17} The trial court concluded that
Blue Ash destroyed emails and other documents related to this public
contract because Blue Ash did not feel they were public records and no
one relied on them. The records were public records and, whether
relied upon or not, or to what extent, is not the applicable test. * * *
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The record is unclear as to the number of emails and other documents
that were deleted and therefore destroyed. On the record as it exists,
the Court concludes that at least one email was not kept, but suspects
it to be more. How many more would at this time be speculation.
Contrary to the conclusion reached by the trial court, we conclude that the fact that
the documents in dispute were not used by the public office in this case is key to
determining whether The Community Press could be aggrieved by their destruction.
{¶18} It appears from the trial court’s decision that it concluded that the
emails that were sent or received relating to the 360 Feedback Project were public
records because they related to the documents generated from the project that were,
themselves, public records. But, as we determined in our analysis of Blue Ash’s first
assignment of error, they were not. Additionally, our analysis is complicated by the
fact that it is unclear what single email the trial court determined was a record that
had been improperly destroyed. The record is vague on the nature of the emails, but
they seem to be limited to transmittal emails which contained attached documents
related to the project. Because the documents themselves were not public records,
the emails that transmitted them were likewise not public records. Because the
emails that discussed the project were not public records, The Community Press
cannot be aggrieved by their destruction. See Barnes v. Columbus Civ. Serv. Comm.,
10th Dist. Franklin No. 10AP-637, 2011-Ohio-2808, ¶ 27; Walker, 10th Dist. Franklin
No. 09AP-748, 2010-Ohio-373, at ¶ 27. We therefore sustain Blue Ash’s second
assignment of error.
The Community Press Not Entitled to Attorney Fees
{¶19} In its sole assignment of error on its cross-appeal, The Community
Press argues that it was entitled to attorney fees for its successful pursuit of the writ
of mandamus to compel production of the documents relating to the 360 Feedback
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Project. The trial court had denied the request, concluding the position that Blue
Ash had taken was “not unreasonable given the case law as it existed.” But since The
Community Press should not have succeeded on its mandamus claim, it was not
entitled to attorney fees. See Cincinnati Bd. of Edn., 99 Ohio St.3d 6, 2003-Ohio-
2260, 788 N.E.2d 629, at ¶ 11. The assignment of error is overruled.
Conclusion
{¶20} The portion of the trial court’s judgment granting the request by The
Community Press for a writ of mandamus compelling the production of documents
related to the 360 Feedback Project and determining that The Community Press was
aggrieved by the failure of Blue Ash to retain an email related to the project is
reversed. The portion of the trial court’s judgment denying the request of The
Community Press for attorney fees is affirmed, though for different reasons than
relied upon below. The cause is remanded to the trial court for entry of judgment in
accordance with this opinion.
Judgment affirmed in part, reversed in part, and cause remanded.
CUNNINGHAM and MYERS, JJ., concur.
Please note:
The court has recorded its own entry on the date of the release of this opinion.
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