Paramount Advantage v. Ohio Dept. of Medicaid

[Cite as Paramount Advantage v. Ohio Dept. of Medicaid, 2021-Ohio-4180.]
PARAMOUNT ADVANTAGE Case No. 2021-00262PQ
Requester Special Master Jeff Clark
v. REPORT AND RECOMMENDATION
OHIO DEPARTMENT OF MEDICAID
Respondent
{¶1} This action is filed under R.C. 2743.75, which provides an expeditious and
economical procedure to enforce the Ohio Public Records Act, R.C. 149.43. On
April 12, 2021, requester Paramount Advantage, an unsuccessful applicant in a
managed care organization procurement process, made a public records request to
respondent Ohio Department of Medicaid (ODM)
to inspect and copy public records [in any format] that fall into any of
the following categories:
1. Documents reflecting the scoring performed by the Ohio
Department of Medicaid (“ODM”), as to all Plan Applicants,
including but not limited to: (a) who performed the scoring; (b) the
score cards; (c) score tabulations; (d) the process(es) applied to
scoring; (e) assumptions made in scoring; (f) considerations taken
in scoring; and (g) all other matters related to the managed care
procurement scoring process of applications (the “Plan
Applications”) that ultimately resulted in the Managed Care
Procurement Award announced on April 9, 2021 (the “Procurement
Process/Decision”) related to RFA ODMMR-2021-2024 (the “RFA”);
2. All Plan Applications received by ODM by all Applicants;
3. All recordings, video and/or audio, of oral presentations by all Plan
Applicants;
4. Documents reflecting all ODM participants in oral presentations by
Plan Applicants, including those participating in listen or observing
mode and a list of those who scored the video portion of the
process;
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5. Documents reflecting ODM internal communications
between/among Plan Application reviewers/scorers;
6. Documents reflecting instructions to potential applicants outlining
the RFA process as well as any follow-up questions from and
responses to potential applicants related to the RFA process;
7. Documents reflecting the decision to not award any contracts to an
application for only one or two regions;
8. Documents reflecting communications between the ODM and
United Healthcare Community Plan of Ohio, Inc. related to the
Procurement Process/Decision;
9. Documents reflecting communications between ODM and Humana
Health Plan of Ohio, Inc. related to the Procurement
Process/Decision;
10. Documents reflecting communications between ODM and Molina
Healthcare of Ohio, Inc. related to the Procurement
Process/Decision;
11. Documents reflecting communications between ODM and
AmeriHealth Caritas Ohio, Inc. related to the Procurement
Process/Decision;
12. Documents reflecting communications between ODM and Anthem
Blue Cross and Blue Shield related to the Procurement
Process/Decision;
13. Documents reflecting communications between ODM and
CareSource Ohio, Inc. related to the Procurement
Process/Decision;
14. Documents reflecting communications between ODM and Buckeye
Community Health Plan related to the Procurement
Process/Decision;
15. Documents reflecting communications between ODM and Aetna
Better Health of Ohio related to the Procurement Process/Decision;
16. Documents reflecting communications between ODM and Medical
Mutual of Ohio related to the Procurement Process/Decision;
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17. Documents reflecting communications between ODM and Ohio
Employee Health Partnership related to the Procurement
Process/Decision; and
18. Documents reflecting communications between ODM and any
person or entity who/that was not an Applicant related to the
Procurement Process/Decision.
(Complaint, Exh. B.) The same day, ODM responded that it was in receipt of and
working to fulfill the requests (Id., Exh. C.) On April 14, 2021, ODM sent a written
response to each request and attached responsive records. (Id., Exh. D.) On April 15
and 20, 2021, ODM produced additional responsive documents. (Id., Exh. E, F.) In a
letter dated April 19, 2021, Paramount made a second public records request for:
1. All Records (as defined in R.C. 149.43) related to a problem in the
enrollment of Medicaid members into the Paramount Advantage plan as
reflected in the data shared in the Paramount/ODM Data Meeting
presentation dated August 29, 2019, and attached hereto as an Exhibit;
2. All Records related to problems with the enrollment of Medicaid members
into the Paramount Advantage plan including but not limited to problems
regarding (a) deceased members being retroactively enrolled, (b) ABD
members being placed in incorrect rate cells, (c) MyCare members
assigned to Paramount Advantage, and (d) extension members being
moved to CFC;
3. All Records related to a problem with the algorithm that assigned Medicaid
members among the managed care plans resulting in a disproportionately
large population of high cost, high risk members enrolled in Paramount
Advantage;
4. All Records related to the reimbursement to Paramount Advantage by
ODM of approximately $57 million in connection with the enrollment or
algorithm issues referenced in Requests 1, 2, and 3;
5. All Records reflecting communications between ODM and Aetna Better
Health related to the enrollment, algorithm, or payment issues referenced
in Requests 1, 2, 3, and 4;
6. All Records reflecting communications between ODM and Buckeye
Community Health Plan related to the enrollment, algorithm, or payment
issues referenced in Requests 1, 2, 3, and 4;
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7. All Records reflecting communications between ODM and Caresource
related to the enrollment, algorithm, or payment issues referenced in
Requests 1, 2, 3, and 4;
8. All Records reflecting communications between ODM and Molina
Healthcare of Ohio related to the enrollment, algorithm, or payment
issues referenced in Requests 1, 2, 3, and 4;
9. All Records reflecting communications between ODM and United
Healthcare Community Plan of Ohio, Inc. related to the enrollment,
algorithm, or payment issues referenced in Requests 1, 2, 3, and 4;
10. All Records reflecting communications between ODM and Accenture
related to the enrollment, algorithm, or payment issues referenced in
Requests 1, 2, 3, and 4;
11. All Records reflecting communications between ODM and Milliman
related to the enrollment, algorithm, or payment issues referenced in
Requests 1, 2, 3, and 4;
12. All Records reflecting communications between ODM and any outside
consultant or advisor related to the enrollment, algorithm, or payment
issues referenced in Requests 1, 2, 3, and 4; and
13. All Records related to any disciplinary or threatened disciplinary actions
against any ODM employee in connection with the enrollment,
algorithm, and payments issues referenced in Requests 1, 2, 3, and 4.
(Id., Exh. H.) On April 23 and May 4, 2021, ODM sent an email and letter
acknowledging receipt of the second request. (Id., Exh. I, J.)
{¶2} On May 7, 2021, Paramount filed a complaint pursuant to R.C. 2743.75
alleging that ODM had denied access to public records in violation of R.C. 149.43(B).
The case was referred to mediation. On June 28, 2021, the special master denied the
motion of UnitedHealthcare Community Plan of Ohio, Inc. to intervene. On July 13,
2021, the mediator entered an order reporting that
as a result of mediation, the requests set forth in the letter of April 12,
2021, attached to the complaint numbered 1 (scoring notes only), 5, and 8
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through 18 remain unresolved: all other matters have been resolved or are
otherwise not disputed.
On July 29, 2021, ODM filed a combined response to the complaint and motion to
dismiss (Response). On August 26, 2021, Paramount filed a reply.
Burden of Proof
{¶3} The Ohio Public Records Act, R.C. 149.43, is construed liberally in favor of
broad access, with any doubt resolved in favor of disclosure of public records. State ex
rel. Rogers v. Dept. of Rehab. & Corr., 155 Ohio St.3d 545, 2018-Ohio-5111, 122
N.E.3d 1208, ¶ 6. The requester in an enforcement action under R.C. 2743.75 bears an
overall burden to establish a public records violation by clear and convincing evidence.
Hurt v. Liberty Twp., 2017-Ohio-7820, 97 N.E.3d 1153, ¶ 27-30 (5th Dist.). The
requester bears a burden of production “to plead and prove facts showing that the
requester sought an identifiable public record pursuant to R.C. 149.43(B)(1) and that the
public office or records custodian did not make the record available.” Welsh-Huggins v.
Jefferson Cty. Prosecutor’s Office, 163 Ohio St.3d 337, 2020-Ohio-5371, 170 N.E.3d
768, ¶ 33.
Motion to Dismiss
{¶4} In order to dismiss a complaint for failure to state a claim upon which relief
can be granted, it must appear beyond doubt that the claimant can prove no set of facts
warranting relief after all factual allegations of the complaint are presumed true and all
reasonable inferences are made in claimant’s favor. State ex rel. Findlay Publishing Co.
v. Schroeder, 76 Ohio St.3d 580, 581, 669 N.E.2d 835 (1996). As long as there is a set
of facts consistent with the complaint that would allow the claimant to recover, dismissal
for failure to state a claim is not proper. State ex rel. V.K.B. v. Smith, 138 Ohio St.3d 84,
2013-Ohio-5477, 3 N.E.3d 1184, ¶ 10.
Remaining Claims
Case No. 2021-00262PQ -6- REPORT AND RECOMMENDATION
{¶5} The parties agree that among the requests of April 12, 2021, only Request
Nos. 1 (scoring notes only), 5, and 8 through 18 remain unresolved. The special master
accordingly finds that Paramount’s claims for production of records based on Request
Nos. 1 (other than scoring notes), 2-4, and 6-7 are moot.
Analysis
{¶6} ODM asserts that the remaining portion of Request No. 1 has been satisfied
by production of the scoring notes to Paramount in collateral litigation. ODM further
asserts that all requests set forth in the letter of April 19, 2021, have been satisfied.
(Response at 3.) Paramount denies both of these assertions.
{¶7} ODM further argues that all of Paramount’s non-moot claims for production
fail to state a claim for which relief may be granted because each request on its face is
ambiguous, overly broad, and does not reasonably identify the specific records sought,
or seeks personal notes and other information that are not “records.”
Scoring Notes/Scoring Cards
1. Suggestion of Mootness
{¶8} 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, ¶ 22. ODM states that through discovery in collateral litigation it has
provided Paramount with the same scoring notes that are sought in Request No. 1.
(Response at 5-6, Exh. 1 – Garris Aff.) Paramount admits receipt of these documents.
(Reply at 3.)
{¶9} A relator’s claims are moot insofar as they request records which he has
obtained through collateral litigation either before or during his public records
enforcement action. State ex rel. Nix v. Cleveland, 83 Ohio St.3d 379, 381-382, 700
N.E.2d 12 (1988) (relator obtained requested records from two other actions to which he
Case No. 2021-00262PQ -7- REPORT AND RECOMMENDATION
was party).1 Where the records so provided are identical, mootness turns on whether
the records were provided, not how they were provided. The special master finds that
Paramount’s request for scoring notes in Request No. 1 is moot.
2. Claim that Moot Issue is “Capable of Repetition Yet Avoiding Review”
{¶10} Paramount asserts that its request for production of process scoring notes
involves exceptional circumstances where the time between denial of the notes and the
award of a contract is too short in duration to be fully litigated before the award is made,
citing State ex rel. Dispatch Printing Co. v. Geer, 114 Ohio St.3d 511, 2007-Ohio-4643,
N.E.2d 314, ¶ 10–13. (Reply at 4-5.) Paramount avers there is a reasonable expectation
that it will be subject to the same action again. (Id.) ODM counters that Paramount
demonstrates no reasonable expectation it will have occasion to request scoring notes
from ODM in a future procurement process, and that any such instance would be
subject to review either in this court or in mandamus. (Response at 6.)
{¶11} Public records issues have been found capable of repetition yet avoiding
review in, for example, State ex rel. Cincinnati Enquirer v. Hamilton Cty., 75 Ohio St.3d
374, 662 N.E.2d 334 (1996); State ex rel. Wadd v. Cleveland, 81 Ohio St.3d 50, 52, 689
N.E.2d 25 (1998); State ex rel. Cincinnati Enquirer v. Ohio Dept. of Pub. Safety, 148
Ohio St.3d 433, 2016-Ohio-7987, 71 N.E.3d 258, ¶ 29-31; State ex rel. Ohio Republican
Party v. Fitzgerald, 145 Ohio St.3d 92, 2015-Ohio-5056, 47 N.E.3d 124, ¶ 15-17; and
State ex rel. Cincinnati Enquirer v. Ohio DOC, Div. of State Fire Marshal, 2019-Ohio-
4009, 145 N.E.3d 1232, ¶ 8-9 (10th Dist.). The issues in these cases were clearly likely
to repeat because the records involved were fairly standardized and frequently
requested, e.g., 9-1-1 tapes, traffic accident reports, dashcam video, key-card-swipe
data, and fire incident reports.
1 This is not to say that a public office cannot provide multiple copies, only that it may decline to
do so. If a requester is confused as to their rights, voluntary provision of additional copies can equitably
advance the purposes of the Act while reducing the chance of litigation.
Case No. 2021-00262PQ -8- REPORT AND RECOMMENDATION
{¶12} Paramount provides no evidence that it will make future requests from
ODM for scoring notes made under functionally identical procurement processes using
the same time frames and challenge options, or that scoring cards/notes will always be
used. The circumstances in this case more closely resemble those in State ex rel.
Calvary v. Upper Arlington, 89 Ohio St.3d 229, 729 N.E.2d 1182 (2000) where the Court
found no showing that the respondent’s ad hoc time between creation of draft
agreements and final decisions was always so short as to evade review. Id. at 230-231.
The special master finds that Paramount has not shown that exceptional circumstances
exist in the present case or that the remedy for the challenged denial of withholding
notes will be too short in its duration to be fully litigated before the granting of a contract.
Non-Records
{¶13} Notes may not constitute “records”2 subject to the Public Records Act if
they are (1) kept as personal papers, not official records; (2) kept for the employee’s
own convenience; and (3) other employees did not use or have access to the notes.
State ex. rel. Cranford v. Cleveland, 103 Ohio St.3d 196, 2004-Ohio-4884, 814 N.E.2d
1218, ¶ 18. Notes taken by public officials for their convenience as interviewers,
evaluators, or assessors, and subsequently used in deliberative processes that result in
written summaries or decisions, generally do not constitute “records” of the public office.
Cranford at ¶ 14-22 (predisciplinary conference notes); Barnes v. Columbus, 10th Dist.
Franklin No. 10AP-637, 2011-Ohio-2808, ¶ 9-27 (civil service commission assessors’
notes); State ex rel. Murray v. Netting, 5th Dist. Guernsey No. 97-CA-24, 1998 Ohio
App. LEXIS 4719 (police chief interviewers’ notes). While such notes are often
destroyed when of no further use to the drafter, retaining them in public office files does
not automatically make them “records.” Cranford at ¶ 21; Silberstein v. Montgomery Cty.
2 “Records” includes any document, device, or item, regardless of physical form or characteristic,
including an electronic record as defined in section 1306.01 of the Revised Code, 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)
Case No. 2021-00262PQ -9- REPORT AND RECOMMENDATION
Cmty. College Dist., 2nd Dist. Montgomery No. 23439, 2009-Ohio-6138, ¶ 54, 67. Nor
do personal notes lose their non-record status merely because they contain information
that is not transferred to an official report. State ex rel. Summers v. Fox, 163 Ohio St.3d
217, 2020-Ohio-5585, 169 N.E.3d 625, ¶ 65-66.
{¶14} ODM asserts that scoring cards as used in this instance contained only
personal notes that did not serve as “records.” ODM submitted affidavits from the
evaluators who served in this procurement process. Each attested they took personal
notes regarding the procurement applications on an Individual Evaluation Guide form for
the purpose of assisting their memories when they later met by teleconference for
“consensus meetings.” (Response, Exhibits 2-8 at ¶ 6-11.) The evaluators kept the
notes at their homes, did not share them with each other or anyone at ODM, and at the
conclusion of the process delivered them to ODM’s outside counsel. (Id. at ¶ 9,12-13.)
{¶15} Paramount counters that training materials for the evaluators stated they
would use the scoring notes to “document” their individual ratings and of applicants, and
that evaluators verbally shared the contents of their notes at consensus meetings.
(Reply at 6.) However, this evidence is not inconsistent with ODM’s assertion that the
evaluators complied with their training to take notes only for their personal use as
individual assessors, for their convenience in recalling their observations as to various
applicants, and to secure the notes from use or access by other employees.
{¶16} Based on the evidence before the court, the special master concludes that
Paramount has not met its burden to show by clear and convincing evidence that the
scoring notes/cards were “records” of ODM.
No Cause of Action for Modified Requests
{¶17} The remaining defense is that all the original requests in the letters of April
12 and April 19, 2021 were fatally ambiguous or overly broad, or otherwise failed to
reasonably identify the records sought. In support of its assertion that Requests Nos. 5,
8-17, and 18 were not improperly ambiguous or overly broad, Paramount invites the
Case No. 2021-00262PQ -10- REPORT AND RECOMMENDATION
court to determine the matter based on revisions it made to the requests’ language
during mediation. (Reply at 7-9.) The special master notes first there is no indication
ODM has waived the privilege and confidentiality provisions of R.C. 2710.03 and .07
applying to all mediations conducted by this court. R.C. 2710.02(A)(1); L.C.C.R. Rule
22(A) and (G).
{¶18} Even were language revised in mediation properly before the court, no
revision of a request during litigation relates back to the complaint. There can be no
cause of action based on failure of an office to provide records in accordance with R.C.
149.43(B) without a specific public records request having been made and denied prior
to the complaint. See Strothers v. Norton, 131 Ohio St.3d 359, 2012-Ohio-1007, 965
N.E.2d 282, ¶ 14; State ex rel. Bardwell v. Ohio Atty. Gen., 181 Ohio App.3d 661, 2009-
Ohio-1265, 910 N.E.2d 504, ¶ 5 (10th Dist.). Accordingly, the recommendations for
resolution of this claim shall be based only on the requests made prior to the complaint.
Ambiguous or Overly Broad Requests
{¶19} Gupta v. Cleveland, Ct. of Cl. No. 2017-00840PQ, 2018-Ohio-3475,
summarizes the burden and standards regarding ambiguous and overly broad public
records requests:
A person may request public records regardless of intended use, including
use in civil litigation. Gilbert v. Summit Cty., 104 Ohio St.3d 660, 2004-
Ohio-7108, 821 N.E.2d 564. However, the standards required for a proper
public records request are distinctly different from the standards for civil
discovery instruments. A public records requester must reasonably identify
the particular, existing records sought, and any request that is ambiguous
or overly broad may be denied. R.C. 149.43(B)(2). Thus, a broad
discovery-style demand to conduct an officewide search for records
containing information relevant to a pending action is often improper when
submitted as a public records request. State ex rel. Thomas v. Ohio State
Univ. 71 Ohio St.3d 245, 246, 1994-Ohio-261, 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 1438, 638 N.E.2d 1041 (1994).
Case No. 2021-00262PQ -11- REPORT AND RECOMMENDATION
Regarding the specificity required of public records requests, 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 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 but
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.
Thus, “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. A public office may deny a
request that fails to meet this standard. Judicial determination of whether
the office has properly denied the request is based on the facts and
circumstances in each case, Zidonis at ¶ 26.
The courts recognize several ways that a request may be overly broad.
First, a request for an entire category of records is overly broad and
unenforceable:
[A] “records request is not specific merely because it names
a broad category of records listed within an agency’s
retention schedule.” * * *. For example, the retention
schedule for the administrative records of Ohio courts
includes broad categories like “correspondence and general
office records,” “employee history and discipline records,”
“fiscal records,” and “payroll records.” Sup.R. 26.01(F), (J),
(K), and (M). Requests for each of these record categories
without any temporal or content-based limitation would likely
be overbroad even though the categories are so named in
the schedule.
Zidonis at ¶ 21, 26. Even with some temporal limitation, a request to
produce an entire category of records may remain overly broad. Zidonis at
Case No. 2021-00262PQ -12- REPORT AND RECOMMENDATION
¶ 21 (all complaint files and litigation files from within six years of when
files were last active). Fundamentally,
In identifying records for purposes of presenting a viable
request, the Public Records Act “does not contemplate that
any individual has the right to a complete duplication of
voluminous files kept by government agencies.”
(Citations omitted.) Id. Accord State ex rel. Dehler v. Spatny, 127 Ohio
St.3d 312, 2010-Ohio-5711, 939 N.E.2d 831, ¶ 1-3 (prison quartermaster’s
orders/receipts for clothing for seven years); Strothers v. Keenon, supra,
at ¶ 29 (all personnel records, without time frame, subject matter, or
specific employee names); Salemi v. Cleveland Metroparks, 8th Dist.
Cuyahoga No. 100761, 2014-Ohio-3914, ¶ 26 (checks, agreements,
meeting minutes, emails, and letters that relate to marketing of golf
course); State ex rel. McElroy v. Polito, 8th Dist. Cuyahoga No. 77042,
1999 Ohio App. LEXIS 5683 (November 30, 1999) (marriage license
applications from a specified year, where no collection or index of such
records existed).
***
A public records request is also unenforceable if it is too voluminous,
vague or indefinite to be properly acted on by the records holder. State ex
rel. Dehler v. Spatny, 11th Dist. No. 2009-T-0075, 2010-Ohio-3052, ¶ 4,
18, aff’d, 127 Ohio St.3d 312, 2010-Ohio-5711, 939 N.E.2d 831. Such a
request may be both overly broad and ambiguous at the same time:
A general request, which asks for everything, is not only
vague and meaningless, but essentially asks for nothing. At
the very least, such a request is unenforceable because of
its overbreadth. At the very best, such a request is not
sufficiently understandable so that its merit can be properly
considered.
State ex rel. Zauderer v. Joseph, 62 Ohio App.3d 752, 756, 577 N.E.2d
444 (10th Dist.1989) (all traffic accident reports). A request may be denied
as ambiguous if the public office cannot reasonably identify what public
records are being requested. R.C. 149.43(B)(2). Indeed, without sufficient
specificity for a court to order clear terms of compliance with a request, the
court cannot later enforce alleged non-compliance.
Id. at ¶ 22-24, 26.
Case No. 2021-00262PQ -13- REPORT AND RECOMMENDATION
Remaining April 12, 2021 Requests
Request No. 1
{¶20} Request No. 1 begins with broad language seeking “[d]ocuments reflecting
the scoring performed by [ODH], as to all Plan Applicants.” (Complaint, Exh. B.) This
language standing alone as a request would be ambiguous and overly broad. However,
Paramount named the individual plan applicants in a footnote, and then continued with
a more specific document request: “including * * * (b) the score cards,” with identification
of the ODM RFA for which the score cards were used. This embedded request
reasonably identifies the records sought, as evidenced by ODM’s ability to attest that
the identical records were provided to Paramount in collateral litigation. (Response,
Exh. 1 – Garris Aff. at ¶ 4-6.) The special master concludes that Request No. 1 was not
ambiguous or overly broad.
Request No. 5
Documents reflecting ODM internal communications between/among Plan
Application reviewers/scorers.
{¶21} Requests No. 5 makes a broad discovery-style request rather than
reasonably identifying the particular records sought. It is not limited by date range or
communication format. It does not provide the names or addresses of correspondents.
It does not exclude personal communications and is not limited to communications
related to the scoring process. Even if requests identify individual correspondents, a
request for all correspondence without specifying subject matter may render the request
overly broad. State ex rel. Glasgow v. Jones, 119 Ohio St.3d 391, 2008-Ohio-4788, 894
N.E.2d 686, ¶ 17, 19. Compare State ex rel. Kesterson v. Kent State Univ., 156 Ohio
St.3d 22, 2018-Ohio-5110, 123 N.E.3d 895, ¶ 23-27 (A request for email is not overly
broad if it is reasonably circumscribed by time period, subject matter, author or
sender/recipient, and the like). See State ex rel. Bristow v. Baxter, 6th Dist. Erie Nos. E-
Case No. 2021-00262PQ -14- REPORT AND RECOMMENDATION
17-060, E-17-067, E-17-070, 2018-Ohio-1973, ¶ 11-16; Patton v. Univ. of Akron, Ct. of
Cl. No. 2017-00820PQ, 2018-Ohio-1555, ¶ 2, 9-10.
{¶22} The vague phrase “[d]ocuments reflecting” communications sweeps in not
only the communications themselves, but also any ODM records referencing or
resulting from the communications in any way. The request is framed in language of
expansion and research rather than identification and clarity. It requires ODM to comb
through all office records rather than a reasonably specified location within the office.
Zidonis at ¶ 21, 26; State ex rel. Dillery v. Icsman, 92 Ohio St.3d 312, 314, 750 N.E.2d
156 (2001). Accord State ex rel. Chasteen v. Ohio Dept. of Rehab. & Corr., 10th Dist.
Franklin No. 13-AP-779, 2014-Ohio-1848, ¶ 23-27; Decrane v. Cleveland, Ct. of Cl. No.
2018-00358PQ, 2018-Ohio-3651, ¶ 1, adopted by DeCrane v. Cleveland, Ct. of Cl. No.
2018-00358PQ, 2018-Ohio-4363, cited with approval in Barnes v. Cleveland Div. of
Records Admin., 2021-Ohio-212, 167 N.E.3d 51, ¶ 43 (8th Dist.). The special master
finds that Request No. 5 is ambiguous, overly broad, and fails to reasonably identify the
records sought.
Requests Nos. 8-18
Documents reflecting communications between ODM and [each plan
applicant, or “any person or entity who/that was not an Applicant”] related
to the Procurement Process/Decision
{¶23} These are again discovery-style requests rather than descriptions
reasonably identifying particular records sought. They are not limited by date range or
communication format. They do not exclude personal communications. The vague
phrase “[d]ocuments reflecting” communications sweeps in not only the communications
themselves, but also ODM records referencing or resulting from the communications in
any way. The request is framed in language of expansion and research rather than
identification and clarity. It requires ODM to comb through all office records that in any
way “reflecting” communications, e.g., electronic metadata.
Case No. 2021-00262PQ -15- REPORT AND RECOMMENDATION
{¶24} These requests impermissibly require ODM to search through all
communication “between ODM and [named applicants].” Since “ODM” consists of
thousands of individuals using various work and personal physical addresses,
telephone numbers, email addresses, and social media, a demand that the department
search all “communications” of those individuals without narrowing the request by
particular officers, employees, contractors, and the like; and/or communication format;
and/or date range; and/or clear topic specification or search terms, is manifestly
ambiguous and overly broad. Request No. 18 compounds this problem by requesting
communications between “ODM” and any outside person or entity. A request is
ambiguous and overly broad when it identifies correspondents only as belonging to
titles, groups, or categories for which research is required to establish 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, 107 Ohio St.3d 1694,
2005-Ohio-6763, 840 N.E.2d 201.
{¶25} The special master finds that Requests Nos. 8-18 are ambiguous, overly
broad, and fail to reasonably identify the records sought.
April 19, 2021 Requests
{¶26} ODM asserts that “[a]ll requests from the April 19, 2021 request have been
satisfied. See July 15, 2021 Entry,” and asserts no other defense to the requests made
in the April 19, 2021 letter. (Response at 3.) However, the mediator’s July 15, 2021
Entry cannot itself waive or determine a claim, and Paramount expressly denies that it
has stipulated to satisfaction of any April 19, 2021 request.
{¶27} In this special statutory action, the special master may, sua sponte,
consider whether a complaint states a claim for which relief may be granted. “Upon the
recommendation of the special master, the court of claims on its own motion may
dismiss the complaint at any time.” R.C. 2743.75(D)(2). On review of the letter of April
19, 2021, each request seeks records created on or after July 1, 2018, in any format,
Case No. 2021-00262PQ -16- REPORT AND RECOMMENDATION
that falls into thirteen separately listed categories of records “related to” various
“problems,” reimbursement of monies in connection with “enrollment or algorithm
issues,” and “reflecting communications between ODM” and the other applicants
“related to the enrollment, algorithm, or payment issues referenced in Requests 1, 2, 3,
and 4.” (Emphasis added.) (Complaint, Exh. H.)
{¶28} The April 19, 2021 requests seek records covering a period of almost three
years for records ambiguously described as “related to” various problems, events and
communications that are in turn ambiguously framed and overly broad in scope.
Communications between “ODM” and seven applicant entities are requested without
any individual’s name or address, and unlimited by date range. Request No. 12 even
more ambiguously requests communications with “any outside consultant or advisor
related to” certain issues. Request No. 13 requests research to find “all records “related
to any disciplinary or threatened disciplinary actions against any ODM employee in
connection with” the same issues, again without names or date range.
{¶29} By the same analysis applied to April 12, 2021 Requests Nos. 2-18, and
based on the case law cited in Gupta, supra, the special master finds that the requests
contained in the letter of April 19, 2021 are improperly ambiguous; overly broad; request
research; do not describe the records sought with reasonable specificity; and are
therefore unenforceable.
Opportunity to Revise an Ambiguous or Overly Broad Request
When denying an ambiguous or overly broad request, a public office must
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.
R.C. 149.43(B)(2). Although ODM promptly advised Paramount that many of the
requests were overly broad, it had not formally denied all requests prior to litigation.
Under these circumstances, courts have encouraged parties to persevere to achieve a
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mutually acceptable resolution of currently deficient records requests. See State ex rel.
Morgan v. Strickland, 121 Ohio St.3d 600, 2009-Ohio-1901, 906 N.E.2d 1105, ¶ 14-19.
The General Assembly provides statutory tools to optimize the scope, speed, format,
economy, and delivery of public records. See R.C. 149.43(B)(2), (3), (5), (6), (7) and (9).
To its credit, Paramount demonstrates a willingness to amend requests. (Reply at 7-9.)
Likewise, ODM has endeavored to satisfy requests that it has found sufficiently specific
to identify the records sought. The parties are encouraged to cooperate fully in
negotiating any future revision of these requests.
Claim of Untimely Production
{¶30} The Public Records Act requires that a public office “shall make copies of
the requested public record available to the requester * * * within a reasonable period of
time.” R.C. 149.43(B)(1). Whether a public office has provided records within a
reasonable period of time depends upon all the pertinent facts and circumstances of the
case. State ex rel. Cordell v. Paden, 156 Ohio St.3d 394, 2019-Ohio-1216, 128 N.E.3d
179, ¶ 11-12. The requester bears the burden of demonstrating that a public office’s
response was unreasonably delayed. Id.{¶31} Paramount states that its requests were time-sensitive in connection with
its desire to challenge the results of the procurement process. However, the time
allowed for response to a public records request is generally independent of a
requester’s intended use of the records. R.C. 149.43(B)(4). Certain public records
requests, requesters, and records are subject to conditions of special limitation or
entitlement, but Paramount alleges no such conditions in this matter.
{¶32} ODM provided numerous responsive records in the roughly three weeks
between Paramount’s requests and the filing of the complaint. Because the requests
themselves were numerous, voluminous, diverse, and required legal review, the special
master finds Paramount has not proven that the period between the requests and
ODM’s thus-far compliant production of records was an unreasonable period of time
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under the circumstances. See Shaughnessy v. Cleveland, 149 Ohio St.3d 612, 2016-
Ohio-8447, ¶ 3-23; Strothers v. Norton, 131 Ohio St.3d 359, 2012-Ohio-1007, 965
N.E.2d 282, ¶ 21-23.
Conclusion
{¶33} On consideration of the pleadings and attachments, the special master
recommends the court find respondent provided responsive records rendering seven of
requester’s claims moot within a reasonable period of time. The special master
recommends the court dismiss the remaining claims for production as either moot,
requests for non-records, or ambiguous and/or overly broad and therefore
unenforceable. It is recommended that costs be assessed to requester.
{¶34} Pursuant to R.C. 2743.75(F)(2), either party may file a written objection
with the clerk of the Court of Claims of Ohio within seven (7) business days after
receiving this report and recommendation. Any objection shall be specific and state with
particularity all grounds for the objection. A party shall not assign as error on appeal the
court’s adoption of any factual findings or legal conclusions in this report and
recommendation unless a timely objection was filed thereto. R.C. 2743.75(G)(1).
JEFF CLARK
Special Master
Filed October 14, 2021
Sent to S.C. Reporter 11/29/21