Viola v. Cuyahoga Cty. Prosecutor's Office

[Cite as Viola v. Cuyahoga Cty. Prosecutor's Office, 2021-Ohio-397.]
ANTHONY VIOLA Case No. 2020-00506PQ
Requester Special Master Jeff Clark
v. REPORT AND RECOMMENDATION
CUYAHOGA COUNTY
PROSECUTOR’S OFFICE
Respondent
{¶1} Ohio’s Public Records Act provides that upon request a public office “shall
make copies of the requested public record available to the requester at cost and within
a reasonable period of time.” R.C. 149.43(B)(1). Ohio courts construe the Public
Records Act liberally in favor of broad access, with any doubt resolved in favor of
disclosure of public records. State ex rel. Hogan Lovells U.S., L.L.P. v. Dept. of Rehab.
& Corr., 156 Ohio St.3d 56, 2018-Ohio-5133, 123 N.E.3d 928, ¶ 12. This action is
brought under R.C. 2743.75, which provides an expeditious and economical procedure
in the Court of Claims to resolve public records disputes.
{¶2} On July 18, 2020, requester Anthony Viola made a written request to
respondent Cuyahoga County Prosecutor’s Office as follows:
I have recently learned that former Assistant Cuyahoga County
Prosecutor and current Senior Assistant Ohio Attorney General Daniel
Kasaris used a personal Yahoo E Mail Account to conduct official
business, including e mailing government witness Kathryn Clover, who
testified in multiple Grand Jury and Criminal Proceedings. Mr. Kasaris’s
Yahoo account included his official signature as an Assistant Cuyahoga
County Prosecutor.
I am enclosing relevant documents which may assist you in further
looking into this matter. This request seeks:
(1) All e mails from this Yahoo account that mention my name,
“Anthony Viola” or “Tony Viola.”
(2) All e mails from this Yahoo account that mention “Dawn Pasela,” a
former employee of your office who is deceased. I am attaching a
Case No. 2020-00506PQ -2- REPORT AND RECOMMENDATION
copy of Ms. Pasela’s obituary, confirming she has no “privacy
rights” and that any responsive documents should be made public;
and
(3) E mails between Prosecutor Kasaris and Kathryn Clover, or e mails
that mention “Kathryn Cover.”
(Complaint at 14.) A Prosecutor’s Office employee responded verbally that the county
did not maintain and could not search Yahoo account records. (Id. at 1; Response at 2.)
{¶3} On August 18, 2020, Viola filed a complaint pursuant to R.C. 2743.75
alleging denial of access to public records in violation of R.C. 149.43(B). On September
9, 2020, Viola submitted a letter, copied to respondent’s counsel, acknowledging post-
complaint receipt of some responsive records from the Prosecutor’s Office. Although
this submission does not conform to the Rules of Civil Procedure, both parties have
relied on its content in subsequent pleadings. On September 29, 2020, Viola submitted
another letter, copied to respondent’s counsel, with purportedly relevant emails. In the
absence of objection, and pursuant to Civ.R. 15(E) and R.C. 2743.75(E)(2), the special
master directs the clerk to accept Viola’s Sept. 9, 2020 document (Supplemental
Pleading I) and September 29, 2020 document (Supplemental Pleading II) for filing.
On November 19, 2020, the special master ordered the Prosecutor’s Office
to preserve and maintain all emails responsive to requester’s public
records request that were in the personal email account of Assistant
Prosecuting Attorney Dan Kasaris on the date of the request. In order to
evaluate any claim that these records are excepted from disclosure, the
court may be required to conduct an examination in camera.
Following unsuccessful mediation, the Prosecutor’s Office filed a combined response
and motion to dismiss (Response) on December 4, 2020.1 Viola filed a motion for
judgment (Reply) on December 10, 2020.
1 Viola objects to the response as untimely filed. (Reply at 1.) However, the day following
Thanksgiving is not a business day for this court. With that day excluded from the ten-business day
calculation, the response was timely filed.
Case No. 2020-00506PQ -3- REPORT AND RECOMMENDATION
{¶4} During litigation, the Prosecutor’s Office provided Viola with 572 pages of
records from its email server responsive to Request No. 3 for “E mails between
Prosecutor Kasaris and Kathryn Clover, or e mails that mention ‘Kathryn Cover.’”
(Supplemental Pleading I at 1-2; Response at 1-3.) Although the Prosecutor’s Office
redacted portions of these records based on exemptions for attorney work product, trial
preparation records, and grand jury materials, Viola has asserted no objection thereto.
Nor has he disputed that this disclosure includes all records responsive to Request No.
3 that exist on the Prosecutor’s Office’s email server. The special master finds that the
claim regarding Request No. 3 is moot as to the documents provided.
{¶5} With respect to Requests Nos. 1 and 2 for office email records allegedly
kept in Kasaris’ personal email account, Viola seeks the following relief:
I am respectfully asking the Ohio Court of Claims to determine whether or
not Mr. Kasaris utilized his personal Yahoo E Mail account to conduct
official business, and whether or not affixing his official government
signature on these e mails requires - at a minimum - that government
agencies at least search that account for responsive public records.
(Complaint at 4.) The Prosecutor’s Office agrees that Kasaris maintained a personal
email account but denies there is any evidence that Prosecutor’s Office email records
are stored there. The Prosecutor’s Office denies that it has any obligation to conduct a
search of Kasaris’ personal account.
Burden of Proof
{¶6} A requester must establish any public records violation by clear and
convincing evidence. Hurt v. Liberty Twp., 2017-Ohio-7820, 97 N.E.3d 1153, ¶ 27-30
(5th Dist.). At the outset, Viola bears the “burden of production” to plead and prove facts
showing that he sought identifiable public records pursuant to R.C. 149.43(B)(1), and
that the Prosecutor’s Office did not make those records available. Welsh-Huggins v.
Jefferson Cty. Prosecutor’s Office, 2020-Ohio-5371, ¶ 33. An implicit element of this
Case No. 2020-00506PQ -4- REPORT AND RECOMMENDATION
burden is to show that the items sought meet the statutory definition of “records,” and
are thus subject to the Public Records Act.
Records and Non-Records
“Records” are defined in R.C. 149.011(G) as including:
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.
A putative record must satisfy all three elements of the definition. The parties do not
dispute that email communications meet the first element as “any document” and “an
electronic record.” However, the Prosecutor’s Office argues that Viola fails to prove that
any requested email from Kasaris’ personal account meets the third element of serving
“to document the organization, functions, policies, decisions, procedures, operations, or
other activities of the office.” Analysis will thus focus on the third element. 2
Non-Records
{¶7} The definition of a “record” does not include every piece of paper on which a
public officer writes something. State ex rel. Cincinnati Enquirer v. Ronan, 127 Ohio
St.3d 236, 2010-Ohio-5680, 938 N.E.2d 347, ¶ 13. Even for email within a public office’s
account, a requester must show that the email actually served to document “an official
duty or activity of the office” to qualify as a record of the office. State ex rel. Wilson-
Simmons v. Lake Cty. Sheriff’s Dept., 82 Ohio St.3d 37, 41, 693 N.E.2d 789 (1998) (e-
mail consisting of racist slurs against a co-worker, although reprehensible, was not used
to conduct sheriff's department business). Accord State ex rel. Beacon Journal Publ.
Co. v. Whitmore, 83 Ohio St.3d 61, 63-64, 697 N.E.2d 640 (1998). The test is not
2 Neither party expressly addresses the second statutory element – that the item must have been
“created or received by or [come] under the jurisdiction of” the public office. For the sake of concision, this
issue will not be analyzed in this report, as the outcome is conclusively resolved by the third element.
Case No. 2020-00506PQ -5- REPORT AND RECOMMENDATION
whether Viola feels an email could be useful or of interest to him, but rather whether it
was used by the Prosecutor’s Office to document its official duties and activities.
Non-Existent Records
{¶8} A public office has no duty to provide records that do not exist, or that it
does not possess. State ex rel. Gooden v. Kagel, 138 Ohio St.3d 343, 2014-Ohio-869, 6
N.E.3d 471, ¶ 5, 8-9. An office may establish by affidavit that all existing records have
been provided. State ex rel. Fant v. Flaherty, 62 Ohio St.3d 426, 427, 583 N.E.2d 1313(1992); 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, ¶ 15. Although the office's affidavit may be
rebutted by evidence showing a genuine issue of fact, a requester's mere belief based
on inference and speculation does not constitute the evidence necessary to establish
that a document exists as a record. State ex rel. McCaffrey v. Mahoning Cty.
Prosecutor’s Office, 133 Ohio St.3d 139, 2012-Ohio-4246, 976 N.E.2d 877, ¶ 22-26.
Evidence Submitted
{¶9} Former Assistant Prosecuting Attorney Daniel Kasaris maintained a private
email account, danieljkasaris@yahoo.com, at all times relevant to this action. (Kasaris
Aff. at ¶ 7-8.) With respect to Viola’s requests, Kasaris attests that:
I have conducted a search of my personal email account, daniel
jkasaris@vahoo.com based on the criteria set forth in Requester’s public
records request. That search yielded no emails that relate to any case or
matter involving the CCPO or that related to my employment or duties with
the CCPO.
(Kasaris Aff. at ¶ 10.) This testimony is some evidence supporting the non-existence of
responsive Prosecutor’s Office records in his personal account. Kasaris admits that he
included his office title in the signature block he used for his personal account. This
practice can indicate a signer is communicating in his official capacity, but could be
merely for vanity or, as Kasaris attests, “as a means of promoting my political interest.”
(Id. at ¶ 11.) The use of his office title in the signature block does not, standing alone,
Case No. 2020-00506PQ -6- REPORT AND RECOMMENDATION
constitute clear and convincing evidence that any email in Kasaris’ personal account
served to document his official duties and activities in the Prosecutor’s Office.
{¶10} In support of his claim, Viola submitted a short string of exemplars from the
danieljkasaris@yahoo.com account (Complaint at 5; Supplemental Pleading I at 3-5;
Supplemental Pleading II at 7-8). However, Viola does not point to any action, decision,
or other activity recorded in these emails that documents the official duties or activities
of Kasaris as an assistant prosecuting attorney, and none is independently apparent to
the special master. The exemplars appear to be entirely personal in nature. Viola has
also filed what appear to be some of the emails from Kasaris’ office account that were
provided to Viola by the Prosecutor’s Office. (Supplemental Pleading II at 9-87). None
are probative of whether additional office records exist in Kasaris’ personal email
account. Viola points to no gaps in these criminal case file communications that would
imply the existence of missing correspondence. Finally, Viola has filed additional
documents and affidavits that are either duplicates of previous filings, irrelevant, or
gratuitously salacious. (Reply at 8-36.)
Request to Compel Office Search of a Personal Email Account
{¶11} Viola argues that the Prosecutor’s Office must conduct its own search of
Kasaris’ personal email account based on Viola’s belief that responsive records may
exist there. Viola cites no statutory or case law requiring a public office to conduct such
a search under these circumstances, or indeed any requirement that individual
employees must always review their personal accounts in response to a public records
request. See Gupta v. Cleveland, Ct. of Cl. No. 2017-00840PQ, 2018-Ohio-3475, ¶ 19.
The special master takes notice that the response to a public records request for an
individual official’s correspondence may often rely appropriately, even necessarily, on
identification and retrieval of responsive records by the official himself.
{¶12} To be sure, a public office has a duty to retrieve its public records from
wherever they are kept, including electronic records stored only in an employee’s
Case No. 2020-00506PQ -7- REPORT AND RECOMMENDATION
personal device. See Sinclair Media III v. Cincinnati, Ct. of Cl. No. 2018-1357PQ, 2019-
Ohio-2624, ¶ 5-12 and cases cited therein. Moreover, if a requester provides prima
facie evidence that an office has improperly deleted emails that are public records, the
office may be ordered to recover those records by reasonable means. State ex rel.
Toledo Blade Co. v. Seneca Cty. Bd. of Commrs., 120 Ohio St.3d 372, 2008-Ohio-6253,
899 N.E.2d 961, ¶ 26-41. However, in the absence of any evidence to the contrary the
Prosecutor’s Office may be presumed to have performed its duties, including public
records identification and retrieval, regularly and in a lawful manner. 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, ¶ 29. While an office has no duty under R.C. 149.43 to detail for a
requester the steps actually taken to identify and retrieve requested records, State ex
rel. McCaffrey v. Mahoning Cty. Prosecutor’s Office, 133 Ohio St.3d 139, 2012-Ohio-
4246, 976 N.E.2d 877, ¶ 26, the Prosecutor’s Office has explained that it searched its
office server for responsive emails, and obtained relevant testimony from a former
employee regarding his personal account. Viola has not produced persuasive evidence
that this process was irregular or unlawful.
{¶13} On the facts and evidence before the court, the special master finds that
Viola has not shown that the manner in which the Prosecutor’s Office processed his
requests violated R.C. 149.43(B). Further, none of the materials submitted by Viola
persuade the special master that an in camera inspection of the email in Kasaris’
personal account is required. Weighing the evidence submitted, the special master finds
that Viola has not met his burden to prove by clear and convincing evidence that any
additional records of the Prosecutor’s Office exist in Kasaris’ personal email account.
Conclusion
{¶14} Based on the pleadings, affidavits, and documents submitted in this action,
the special master recommends the court find that requester has not shown that
Case No. 2020-00506PQ -8- REPORT AND RECOMMENDATION
respondent violated R.C. 149.43(B). It is recommended that costs be assessed to
requester.
{¶15} 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 January 7, 2021
Sent to S.C. Reporter 2/12/21