Warchol v. Superintendent of Washington Local School Dist.

[Cite as Warchol v. Superintendent of Washington Local School Dist., 2022-Ohio-3947.]
IN THE COURT OF CLAIMS OF OHIO
BRITTANY WARCHOL Case No. 2021-00698PQ
Requester Judge Patrick E. Sheeran
v. DECISION AND ENTRY
SUPERINTENDENT OF WASHINGTON
LOCAL SCHOOL DISTRICT
Respondent
{¶1} Respondent Superintendent of Washington Local School District
(Superintendent) objects to a Special Master’s Report and Recommendation in this
public-records case. For reasons set forth below, the Court sustains the Superintendent’s
first objection. The Court adopts, in part, the Report and Recommendation.
I. Background
{¶2} On December 6, 2021, Requester Brittany Warchol, a self-represented
litigant, filed a Complaint against the Superintendent wherein she alleged a denial of
access to public records in violation of R.C. 149.43(B). Warchol represented in materials
accompanying the Complaint that she filed her public-records request under the Freedom
of Information Act (FOIA).1
1 Warchol states in an email that is dated September 30, 2021:
This is a request for information filed under the Freedom of Information Act.
I request that you provide me with all documents containing information regarding the
following topic: COVID-19, Certifications, School Funding, and HVAC system maintenance.
Documentation to include e-mail communication via work account as well as private e-mails
used to conduct business, letters, logs, Doctorate Degree (MD), as well as internal
communication. Correspondence between Kadee Anstandt and the Department of
Education, Kadee Anstandt and the Department of Health/ Ohio Health Department, as well
as Kadee Anstandt and Governor Mike DeWine, and Kadee Anstandt and all serving
members of the school board and any other pertinent entity.
Case No. 2021-00698PQ -2- DECISION & ENTRY
{¶3} The Court appointed a Special Master who referred the case to mediation.
After mediation failed to successfully resolve all disputed issues between the parties, the
case was returned to the Special Master’s docket. The Superintendent thereafter moved
to dismiss Warchol’s Complaint.
{¶4} On August 31, 2022, the Special Master issued a Report and
Recommendation (R&R). The Special Master acknowledged the Superintendent’s
motion to dismiss, stating that the Superintendent “move[d] to dismiss the complaint on
I am requesting copies of all correspondence dated 08/01/2018 - 11/01/2021 in regards to
COVID-19, Grant Funding, Emergency/ Safety response plan in regards to a “pandemic,
epidemic, or communicable viral disease.” Response plan to include any resources or
educational material in which the plan was set forth upon. Communication to include but not
be limited to masks, vaccinations, and documentation showing school officials to include,
Superintendent Kadee Anstadt and all governing members of the school board having the
rights under the law to prescribe, advise, recommend, administer, OR dispense for
compensation of any kind, direct or indirect, a drug or medicine, as well as treatment, of
whatever nature for the cure of a disease or infirmity. Grant funding under ESSER, ARP
ESSER, as well as GEER funding to include but not limited to the use of said funds up until
this request whether it be a pending approval or purchased. My final request at this time, all
documentation in regards to HVAC system maintenance logs.
I request a waiver of all fees for this request since the disclosure of the information I seek is
not primarily in my commercial interest, and is likely to contribute significantly to public
understanding of the operations or activities of the government, making the disclosure a
matter of public interest. This information will benefit the public by allowing them a clearer
understanding of the use of grant funds that have dictated the health of our children while
attending the public school system, along with the motives of our local school officials and
governing body.
If you have any questions If you deny any or all of this request, please cite each specific
exemption you feel has legal authority for the refusal to release the information as well as
notifying me of the appeal procedures available to me under the law. If you require any
clarification or find part of the request problematic, I anticipate you contacting me per
section 16 of the FOIA; Duty to provide advice and assistance. Please acknowledge receipt
of this request via the same manner it was received. I look forward to receiving the
information I am requesting and prefer digital copies sent via email to the email address
this document was sent from.
Case No. 2021-00698PQ -3- DECISION & ENTRY
the grounds that, 1) Warchol’s request was made under the federal Freedom of
Information Act and is therefore unenforceable against a state public office, 2) Warchol’s
claims are moot to the extent records have been produced, and 3) the ambiguous and/or
overly broad portions of a request do not create a duty for a public office to produce
records.” (R&R, 4.) The Special Master has recommended denying the motion to
dismiss, stating in support: “Although her wording is not clear, Warchol then appeared to
concede that the request must be made under the Public Records Act and the
Superintendent appeared to accept that the request was now properly made under Ohio
law.” (R&R, 5.) The Special Master also has stated that “for concision and because the
matter has been fully briefed, the Special Master recommends the court deny the motions
to dismiss on these grounds and proceed on the merits.” (R&R, 5.)
{¶5} The Special Master made several findings in the Report and
Recommendation. The Special Master “[found] that mootness, ambiguity, and
overbreadth are partially apparent on the face of the complaint, as noted [in the Report
and Recommendation with respect to a request made on November 15, 2021].” (R&R,
5.) The Special Master further “[found] that Warchol has not shown by clear and
convincing evidence that additional records exist responsive to the above requests in the
hands of the Superintendent,” but the Special Master has noted that “[t]his is not an
affirmative finding that no such records exist or ever existed, only that Warchol has failed
to meet her burden to prove their existence in at the time of this request by the requisite
quantum of evidence.” (R&R, 8.) And the Special Master has stated, “Based on the
evidence submitted, the Special Master finds that Warchol’s request amounts to an
improper demand for the complete duplication of voluminous files.” (R&R, 10.) The
Special Master also “[found] that the request for three years of all communication records
‘regarding’ or ‘in regards to’ a list of broad topics is improperly ambiguous and fails to
reasonably identify the records sought.” (R&R, 11.) The Special Master further “[found]
that [a] September 30, 2021 request and follow-up communications, other than as noted
[infra], are ambiguous, overly broad, and fail to reasonably identify the records sought.”
(R&R, 13.)
{¶6} However, the Special Master found that an “embedded request for records of
the amounts and use of funds from specific grant funding sources during a limited period
Case No. 2021-00698PQ -4- DECISION & ENTRY
is sufficiently specific to ‘reasonably identify what public records are being requested.’
R.C. 149.43(B)(2). The Superintendent has not asserted any exemption for these records,
and they must therefore be produced.” (R&R, 13-14.) The Special Master concluded:
Upon consideration of the pleadings and attachments, the Special
Master recommends the court deny the motion to dismiss on the basis of
requester’s initial reliance on the federal Freedom of Information Act as
authority for her requests. The Special Master further recommends the court
order respondent to produce all records responsive to the request for
specified records of ESSER, ARP ESSER, and GEER funding. The Special
Master further recommends the court find that all sufficiently specific
requests have been rendered moot and deny the claim for any further
production of records. The Special Master recommends the court find that
no other violation of R.C. 149.43(B) has been shown. It is recommended
costs be assessed equally between the parties.
(R&R, 14.)
{¶7} On September 12, 2022, the Superintendent filed written objections to the
Special Master’s Report and Recommendation. The Superintendent’s counsel certifies
that a copy of the objections was sent electronically to Warchol and sent “via certified
mail.”
{¶8} Warchol has not filed a timely response to the Superintendent’s objections.
II. Law and Analysis
{¶9} The General Assembly created an alternative means to resolve public-records
dispute through the enactment of R.C. 2743.75. Welsh-Huggins v. Jefferson Cty.
Prosecutor’s Office, 163 Ohio St.3d 337, 2020-Ohio-5371, 170 N.E.3d 768, ¶ 11. See
R.C. 2743.75(A). Under R.C. 2743.75(F)(1), not later than seven business days after
receiving a response of a public office or person responsible for public records, or a
motion to dismiss a complaint, if applicable, a special master is required to “submit to the
court of claims a report and recommendation based on the ordinary application of
statutory law and case law as they existed at the time of the filing of the complaint.”
However, for good cause shown, a special master “may extend the seven-day period for
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the submission of the report and recommendation to the court of claims under this division
by an additional seven business days.” R.C. 2743.75(F)(1).
{¶10} R.C. 2743.75(F)(2) governs the filing of objections to a special master’s
report and recommendation. Under R.C. 2743.75(F)(2), either party “may object to the
report and recommendation within seven business days after receiving the report and
recommendation by filing a written objection with the clerk and sending a copy to the other
party by certified mail, return receipt requested. * * * If either party timely objects, the other
party may file with the clerk a response within seven business days after receiving the
objection and send a copy of the response to the objecting party by certified mail, return
receipt requested. The court, within seven business days after the response to the
objection is filed, shall issue a final order that adopts, modifies, or rejects the report and
recommendation.”
{¶11} Pursuant to R.C. 2743.75(F)(2), “[a]ny objection to the report and
recommendation shall be specific and state with particularity all grounds for the objection.”
The Superintendent presents the following objections:
“1. The Recommendation fails to require Requester to bear the requisite
burden of proof.
2. The Request was made under FOIA, not R.C. 149.43, and should
therefore be dismissed.
3. Even if the request had been properly made under R.C. 149.43, the
complaint would properly be dismissed as to all portions of the request
which are moot, ambiguous, overly broad or seek non-existent records.”
The Superintendent maintains in the objections that Warchol’s Complaint must be
dismissed in its entirety.
{¶12} The Superintendent asserts in the first objection that, in the Report and
Recommendation, the Special Master failed to require Warchol to bear the requisite
burden of proof. In Welsh-Huggins v. Jefferson Cty. Prosecutor’s Office, 163 Ohio St.3d
337, 2020-Ohio-5371, 170 N.E.3d 768, the Ohio Supreme Court discussed the requisite
burden of proof in a R.C. 2743.75 proceeding. The Ohio Supreme Court instructed:
While a public-records-access proceeding brought pursuant R.C.
2743.75 may be less formalistic than a mandamus proceeding brought pursuant
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to R.C. 149.43(C), the nature of the relief sought—namely, access to a public
record that was requested and allegedly withheld in violation of R.C 149.43(B)(1)—
is functionally the same. For that reason, the direction in R.C. 2743.75(F)(1) for
“the ordinary application of statutory law and case law as they existed at the time
of the filing of the complaint” suggests that public-records-access proceedings in
the Court of Claims be consistent with the standards that are applicable to
mandamus-enforcement actions.
Welsh-Huggins at ¶ 32. See State ex rel. Ware v. Crawford, 2022-Ohio-295, ¶ 12
(mandamus is the appropriate remedy to compel compliance with the Public Records Act
and to be entitled to a writ of mandamus a relator is required to demonstrate by “clear
and convincing evidence” that the relator has a clear legal right to the requested relief
and that a respondent has a clear legal duty to provide it); see also Cross v. Ledford, 161
Ohio St. 469, 120 N.E.2d 118 (1954), paragraph three of the syllabus (holding that “[c]lear
and convincing evidence is that measure or degree of proof which is more than a mere
‘preponderance of the evidence,’ but not to the extent of such certainty as is required
‘beyond a reasonable doubt’ in criminal cases, and which will produce in the mind of the
trier of facts a firm belief or conviction as to the facts sought to be established”).
{¶13} In Welsh-Huggins the Ohio Supreme Court also instructed:
[T]he complainant’s “burden of production” is 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. * * *
The “burden of persuasion” was at all times on [complainant] to prove his
right to relief under R.C. 2743.75 by the requisite quantum of evidence. * * * We
therefore assume without deciding that his right to obtain relief under R.C. 2743.75
for the denial of access to public records in violation of R.C. 149.43(B) required
clear and convincing evidence.
Welsh-Huggins at ¶ 33-34.
{¶14} Although in Welsh-Huggins the Ohio Supreme Court did not decide whether
a right to obtain relief under R.C. 2743.75 requires “clear and convincing evidence,” at
least two Ohio courts of appeal have determined that “clear and convincing evidence” is
Case No. 2021-00698PQ -7- DECISION & ENTRY
required. The Eighth District Court of Appeals has stated that a requester “must establish
entitlement to relief in an action filed in the Court of Claims under R.C. 2743.75 by clear
and convincing evidence.” Viola v. Cuyahoga Cty. Prosecutor’s Office, 8th Dist.
Cuyahoga No. 110315, 2021-Ohio-4210, ¶ 16, citing Hurt v. Liberty Twp., 2017-Ohio-
7820, 97 N.E.3d 1153, ¶ 27-30 (5th Dist.). And the Fifth District Court of Appeals has
stated that “‘[t]o promote consistent application of the public records law,’ the proper
standard of proof in a case brought pursuant to R.C. 2743.75 is the standard of proof
utilized in a public records mandamus action commenced pursuant to R.C.
149.43(C)(1)(b).” Ebersole v. City of Powell, 5th Dist. Delaware No. 2018 CAI 12 0098,
2019-Ohio-3073, ¶ 20, quoting Hurt at ¶ 30.
{¶15} Applying Welsh-Huggins, Warchol’s “burden of production” required Warchol
to plead and prove facts showing that she sought an identifiable public record pursuant
to R.C. 149.43(B)(1) and the Superintendent did not make the record available. See
Welsh-Huggins, supra, at ¶ 33. And the “burden of persuasion” was at all times upon
Warchol to prove her right to relief under R.C. 2743.75 by the requisite quantum of
evidence, which Ohio appellate courts have determined is “clear and convincing
evidence.” See Welsh-Huggins, supra, at ¶ 34, Viola, supra, at ¶ 16; Ebersole, supra, at
¶ 20. The Twelfth District Court of Appeals has discussed “burden of proof” in the context
of the Ohio Open Meetings Act. State ex rel. Hardin v. Clermont Cty. Bd. of Elections,
2012-Ohio-2569, 972 N.E.2d 115, ¶ 23 (12th Dist.). The Twelfth District Court of Appeals
has stated:
The term “burden of proof” is a composite burden that
“encompasses two different aspects of proof: the burden of going forward
with evidence (or burden of production) and the burden of persuasion.”
Chari v. Vore, 91 Ohio St.3d 323, 326, 2001 Ohio 49, 744 N.E.2d 763(2001). “The term ‘burden of production’ tells a court which party must come
forward with evidence to support a particular proposition, whereas
‘burden of persuasion’ determines which party must produce sufficient
evidence to convince a judge that a fact has been established.” 29 American
Jurisprudence 2d, Evidence, Section 171 (2012). “The burden of
persuasion never leaves the party on whom it is originally cast.” Id. Thus,
Case No. 2021-00698PQ -8- DECISION & ENTRY
what shifts is “the burden of going forward with the evidence, rather than
the actual burden of proof. The burden which rests upon the plaintiff, to
establish the material averments of his or her cause of action * * *,
never shifts.” 42 Ohio Jurisprudence 3d, Evidence and Witnesses, Section
84 (2012).
Id. at ¶ 23. Any suggestion in the Report and Recommendation that Warchol was not
required to prove by clear and convincing evidence that requested records existed unless
the Superintendent clearly denied that the specific records existed seems contrary to
established Ohio law. See Report and Recommendation at 14 (“[t]he Superintendent has
not asserted any exemption for these records, and they must therefore be produced”).
{¶16} Notably, the Ohio Supreme Court has stated, “A records request that places
the burden on the public office to identify the responsive documents by searching for
specified content is not a proper records request.” State ex rel. Griffin v. Sehlmeyer,
2022-Ohio-2189, ¶ 11, citing State ex rel. Shaughnessy v. Cleveland, 149 Ohio St.3d
612, 2016-Ohio-8447, 76 N.E.3d 1171, ¶ 10. In State ex rel. Shaughnessy at ¶ 10, the
Ohio Supreme Court explained:
The Public Records Act does not compel a public office “to do research or
to identify records containing selected information.” See State ex rel. Fant
v. Tober, 8th Dist. Cuyahoga No. 63737, 1993 Ohio App. LEXIS 2591, 1993
WL 173743, *1 (Apr. 28, 1993), aff’d, 68 Ohio St.3d 117, 1993 Ohio 154,
623 N.E.2d 1202 (1993). See also Morgan, 121 Ohio St.3d 600, 2009-Ohio-
1901, 906 N.E.2d 1105, at ¶ 14-15 (request for “[a]ny and all e-mail
communications * * * which reference * * * the ‘evidence-based model’ or
education funding in general” was overbroad [first ellipsis sic]); State ex rel.
Thomas v. Ohio State Univ., 71 Ohio St.3d 245, 246, 1994 Ohio 261, 643
N.E.2d 126 (1994) (noting denial of writ of mandamus where request for
records sought selected information “regarding or related to” any pro-
animal-rights action group or individual), citing Fant.
Upon independent review, the Court determines that Warchol’s public-records request
placed the Superintendent in a situation where, in response to an ostensibly overbroad
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request, the Superintendent was required to search for content in records, which is not
required, given the holding in Sehlmeyer, supra. See Report and Recommendation at
13-14.2 The Court finds merit in the Superintendent’s first objection. The Court concludes
that the Superintendent’s first objection should be sustained.
{¶17} Since the Court’s ruling as to the Superintendent’s first objection adequately
disposes of the objections, a determination of the Superintendent’s other objections is
unnecessary. See State ex rel. Karmasu v. Tate, 83 Ohio App.3d 199, 205, 614 N.E.2d
827 (4th Dist.1992) (“[a] trial court is not required to consider any legal theory, or
argument, beyond that which will adequately dispose of the case at hand”); PDK
Laboratories, Inc. v. United States Drug Enforcement Administration (D.C.Cir.2004), 362
F.3d 786, 799, 360 U.S. App. D.C. 344 (Roberts, J., concurring in part and concurring in
judgment) (expressing “the cardinal principle of judicial restraint,” i.e., “if it is not
necessary to decide more, it is necessary not to decide more”); State ex rel. Luken v.
Corp. for Findlay Mkt. of Cincinnati, 135 Ohio St.3d 416, 2013-Ohio-1532, 988 N.E.2d
546, ¶ 25; Meyer v. UPS, 122 Ohio St.3d 104, 2009-Ohio-2463, 909 N.E.2d 106, ¶ 53.
The Court therefore forgoes ruling on the Superintendent’s second and third objections.
III. Conclusion
2 In the Report and Recommendation, the Special Master stated:
Part of Warchol’s request narrowed her overly broad request for “all correspondence dated
08/01/2018 – 11/01/21 in regards to * * * Grant Funding” to specify the following:
Grant funding under ESSER, ARP ESSER, as well as GEER funding to
include but not limited to the use of said funds up until this request
whether it be a pending approval or purchased.
(Complaint at 4.) Warchol further clarified this request as including only correspondence regarding,
- Amount of funds received
- Any stipulations of funding
- Pending approval of funds
- Previous usage of funds
(Complaint at 10.) Although the request is worded as one for records over a period of three years, the
Superintendent advises that the referenced funds did not become available until sometime in early 2020,
reducing the effective time period to a year and a half. (Response at 3.) The Special Master finds that this
embedded request for records of the amounts and use of funds from specific grant funding sources during
a limited period is sufficiently specific to “reasonably identify what public records are being requested.” R.C.
149.43(B)(2). The Superintendent has not asserted any exemption for these records, and they must
therefore be produced.
(R&R, 13-14.)
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{¶18} The Court sustains the Superintendent’s first objection. The Court does not
adopt the Special Master’s recommendation to order the Superintendent to produce all
records responsive to the request for specified records of ESSER, ARP ESSER, and
GEER funding. The Court does, however, adopt the Special Master’s recommendation to
assess court costs equally between Warchol and the Superintendent. The Special
Master’s Report and Recommendation is adopted, in part, and not adopted, in part. Court
costs are assessed equally between Warchol and the Superintendent. The Clerk shall
serve upon all parties notice of this judgment and its date of entry upon the journal.
PATRICK E. SHEERAN
Judge
Filed October 4, 2022
Sent to S.C. Reporter 11/4/22