LeRussi v. Calcutta Volunteer Fire Dept.

[Cite as LeRussi v. Calcutta Volunteer Fire Dept., 2023-Ohio-626.]
IN THE COURT OF CLAIMS OF OHIO
CHRISTINE LEA LERUSSI Case No. 2022-00657PQ
Requester Special Master Todd Marti
v. REPORT AND RECOMMENDATION
CALCUTTA VOLUNTEER FIRE
DEPARTMENT
Respondent
{¶1} This matter is before the Court for a report and recommendation pursuant to
R.C. 2743.75(F)(1). The Special Master recommends that:
- Respondent Calcutta Volunteer Fire Department (“the Department”) be
required to produce the cancelled checks referenced at p. 5 and p. 10, ¶ 10, of
its motion to dismiss.
- That the balance of Requester’s claims be denied on the merits for want of
proof,
- And that Requester recover her filing fees and the other costs of this case.
I. Background
{¶2} Requester Christine Lerussi (“Lerussi”) submitted a written public records
request to the Department. A Department official verbally denied her request and she
filed this case shortly thereafter. Complaint, filed September 6, 2022 at pp. 1, 4; Motion
to Dismiss, filed February 7, 2023 (“MTD”), at p. 9, ¶ 5, p. 13.1
1All references to specific pages of matters filed in this case are to pages of the PDF copies posted on the
Court’s docket, rather than to any internal pagination of the filings.
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{¶3} The Department produced a substantial number of records after the case was
filed, but not all that Lerussi believes are responsive to her request. MTD, p. 10, ¶ 8; pp.
14-17, 20; Affidavit, Motion to Dismiss, Evidentiary Materials, filed February 22, 2023
(“Requester’s Submissions”), p. 2-3, ¶¶ 9-12; pp. 29-34. This case was referred to
mediation, but that proved unsuccessful.
{¶4} The Department then filed a motion to dismiss. The Special Master allowed
Lerussi to file additional evidence and a memorandum responding to the Department’s
motion. She has done so, and the matter was submitted for decision. MTD; Order,
entered February 9, 2023; Requester’s Submissions.
II. Analysis
A. The Department’s motion to dismiss should be denied.
The Department has moved to dismiss, presumably pursuant to Civ. R. 12(B)(6). That
motion should be denied for two reasons.
First, Lerussi has alleged sufficient facts to state a claim. A party invoking R.C.
2743.75 must “plead *** 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. Lerussi pled that she made a
public records request for certain records. Complaint, pp. 1, 4. There are no facially
obvious defects in that request. She also pled that the request was denied by a public
office. Id. at 2. Those facts must be presumed to be true and state a claim.
Second, the Department’s motion relies on matters beyond the complaint. A Civ. R.
12(B)(6) motion cannot be granted if the movant relies on allegations or evidence outside
the complaint. State ex rel. Hanson v. Guernsey Cty. Bd. of Commrs., 65 Ohio St.3d 545,
548, 605 N.E.2d 378 (1992). The Department’s motion is based on evidentiary materials
that go beyond Lerussi’s complaint. MTD, pp. 9-13. That cannot be done via Civ. R.
12(B)(6), but instead requires the Court to weigh the evidence through a merits analysis.
B. Burdens of Proof.
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The controlling burdens of proof are important because this case largely turns on the
weight of the evidence.
A party suing for public records must “prove facts showing that the requester sought
an identifiable public record pursuant to R.C. 149.43(B)(1) and that the public office ***
did not make the record available.” Welsh-Huggins 163 Ohio St.3d 337, ¶ 33. That party
must also prove that responsive records exist if the public office denies their existence.
State ex rel. McCaffrey v. Mahoning Cty. Prosecutor’s Office, 133 Ohio St.3d 139, 2012-
Ohio-4246, 976 N.E.2d 877, ¶ 26; State ex rel. Gooden v. Kagel, 138 Ohio St. 3d 343,
2014-Ohio-869, 6 N.E.3d 1170, ¶ 8.
Those facts must be proven by clear and convincing evidence. Although the courts
liberally construe the Public Records Act in favor of access to public records, the party
seeking them “must still establish entitlement to the requested *** relief by clear and
convincing evidence.” McCaffrey, 133 Ohio St.3d 139, 2012-Ohio-4246, ¶ 16. “Clear and
convincing evidence *** is more than a preponderance of the evidence,” but is evidence
“that will produce in the trier of fact’s mind a firm belief as to the fact sought to be
established.” State ex rel. Griffin v. Doe, 165 Ohio St.3d 577, 2021-Ohio-3626, 180
N.E.3d 1123, ¶ 5.
C. Requester is entitled to the production of some of the records she seeks
beyond those produced.
Lerussi made the following request:
I am requesting line-item accounting records, meetings/decision makings
justifying/requesting of department and it’s officers in regards to the income and
expenses of the Calcutta Volunteer Fire Department utilizing tax revenue. This
request is for the years 2019, 2020, 2021, and January – June 2022.
- This request is specific to the detailed line items of each expense and
income category of their accounting practices and the balance sheets
- This request is specific to the cost and purchase dates of assets.
MTD, 9, ¶ 5; p. 13; Requester’s Submissions, 1, ¶ 4; p. 21.
{¶5} That request has two elements. One is for “line-item accounting records,”
“balance sheets,” and records documenting “expense categories” and the “the cost and
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purchase dates of assets” (collectively the “Line-Item Records”). The other is for
“meetings/decision makings justifying/requesting of department and it’s officers in regards
to the income and expenses of the Calcutta Volunteer Fire Department utilizing tax
revenue” (collectively the “Decisional Records”). Both elements are for the time from
January of 2019 through June of 2022.
1. Line-Item Records.
The Department has provided Lerussi with copies of its IRS Form 990 tax returns in
response to this element of her request. MTD, p.10, ¶¶ 7, 9; pp. 14-17; Requester’s
Submissions, p. 2, ¶ 9; pp. 24-25; p. 3, ¶ 10; pp. 26-27. It has provided affidavit testimony
that it has no other responsive records. MTD, pp. 10-11, ¶¶ 9-12. Lerussi therefore has
the burden of proving that no responsive records exist and doing so by clear and
convincing evidence. McCaffrey, 133 Ohio St.3d 139, 2012-Ohio-4246, ¶ 26; Gooden,
138 Ohio St. 3d 343, ¶ 8; 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; Decrane v. City of
Cleveland, Ct. of Cl. No. 2018-00355PQ, 2018-Ohio-3650, ¶ 5. Lerussi tries to meet that
burden in two ways, but has mostly failed to do so.
She first argues that various aspects of the Department’s internal procedures indicate
that such line-item records either do exist or can be used to create the line-item records
she seeks. Requester’s Submissions, pp. 6-7, 8-12, 13. This falls short because she
offers no evidence of the procedures she describes; they are not sworn to in her affidavit
and she has filed no other evidence proving the existence of those procedures.2 The
Court therefore has nothing establishing those procedures except the Lerussi’s unsworn
statements in her memorandum, and such statements are not evidence. Hickman v. Ford
Motor Co., 52 Ohio App.2d 327, 330, 370 N.E.2d 494 (8th Dist.1977). And even if the
2It appears that Lerussi’s assertions about the Department’s procedures are based on what the Department
stated during the mediation process. The Department’s statements on those points would likely be
mediation communications that cannot be considered here absent the Department’s consent. See R.C.
2710.03. And even with consent, Lerussi would still need to produce evidence of those statements and she
had not done so.
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Court were to assume their existence, the existence of the procedures themselves does
not mean that they were actually used to create the specific records sought here.
She also argues that the Line-Item records must exist because, in her view, the
Department was legally obligated to create and maintain them by its corporate bylaws, its
contract with the township it serves, Ohio statutes controlling tax funds, and federal law
controlling tax exempt organizations. Requester’s Submissions, pp. 6, 7-8, 11, 12-14, 17-
18. This also falls short in several respects. The fact the Department may have those
record keeping obligations does not mean that creating the specific records she seeks
was the only way to fulfil them. Further, even if the Department’s failure to create or
maintain those records did violate those obligations, that does not change the fact that
the records do not exist. Respondent “may have a legal duty to maintain the requested
record *** but having failed to do so, respondent has no duty to produce it in response to
a public records request because the Public Records Act concerns existing records, not
records that ought to exist.” State ex rel. Ware v. DeWine, 10th Dist. Franklin No. 19AP-
161, 2019-Ohio-5203, ¶ 48. And to the extent that Lerussi looks to this Court to otherwise
address those alleged violations, she is asking for something this Court lacks authority to
do, such matters having been assigned to other parts of government or other courts. See
e.g. R.C. 109.24; R.C.117.103; R.C. 149.351 and Speros v. Secy. of State, Ct. of Cl. No.
2017-00389-PQ, 2017-Ohio-8453, ¶ 27. See also Ware, supra, ¶ 48 (“An action to
compel the [respondent] to comply *** may lie in some form, but that action does not fit
under R.C. 149.43”).
But that does not completely resolve this element of Lerussi’s request. There is clear
and convincing evidence that the Department does have records documenting the
Department’s “expense categories” and “the cost and purchase dates of assets.” The
Department’s own evidence establishes that it has cancelled checks. MTD, p. 10, ¶ 10.
To the extent that those checks were issued to cover expenses or purchase assets they
would document the “expense categories” and “the cost and purchase dates of assets”
mentioned in this element of Lerussi’s request. Indeed, the Department’s own
submissions at least implicitly acknowledge that. MTD at p. 5; p. 10, ¶ 10. Those checks
should be produced.
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That is not changed by the fact that Lerussi did not mention checks in her request.
Although a requester has a duty to reasonably identify the records it seeks, the law does
“not require perfection in public-records requests.” State ex rel. Morgan v. City of New
Lexington, 112 Ohio St.3d 33, 2006-Ohio-6365, 857 N.E.2d 1208, ¶ 37. The cases
therefore require production of readily identifiable records that the office understands
contain the information sought, even if those records were not explicitly mentioned in the
request. Id. See also State ex rel. Cater v. City of N. Olmsted, 69 Ohio St.3d 315, 319-
320, 631 N.E.2d 1048 (1994); State ex rel. Hill v. Campbell, 10th Dist. Franklin No. 20AP-
510, 2022-Ohio-354, ¶ 15; and Sutelan v. Ohio State Univ., Ct. of Cl. No. 2019-00250PQ,
2019-Ohio-3675, ¶ 15. The Department’s own evidence and arguments show that it
understood that the checks contained the information Lerussi sought, so they should have
been produced. The Special Master therefore recommends that the Department be
ordered to produce the checks.
2. The Decisional Records.
The analysis of Lerussi’s request for the Decisional Records is similar. She sought
records documenting “meetings/decision makings justifying/requesting of department and
it’s officers in regards to the income and expenses of the Calcutta Volunteer Fire
Department utilizing tax revenue.” MTD, 9, ¶ 5; p. 13; Requester’s Submissions, 1, ¶ 4;
p. 21. The Department responded by producing Minutes of the meetings of the
Department’s Board and cash flow analyses. Ms. Lerussi noted some lapses in the
minutes, but the Department asserted that no other responsive documents exist. The
Department has supported that assertion with an affidavit, MTD, pp. 10-11, ¶¶ 9-12, and
that is sufficient evidence to establish that fact absent clear and convincing evidence to
the contrary. Toledo-Lucas Cty. Port Auth., 121 Ohio St.3d 537, ¶ 15; Decrane, 2018-
Ohio-3650, ¶ 5.
Lerussi proffers the same responses to the Department’s proof on this point that she
did in connection with the Line-Item Records: that the Department’s internal procedures
and legal obligations should have resulted in additional responsive records. Those
responses are insufficient, as discussed in connection with the Line-Item Records. She
has therefore failed to meet her burden of proof on this element of her request.
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D. Costs.
{¶6} R.C. 2743.75(F)(3)(b) provides that the “aggrieved person shall be entitled to
recover from the public office or person responsible for the public records the amount of
the filing fee of twenty-five dollars and any other costs associated with the action[.]”
Lerussi was aggrieved because the Department failed to produce the checks that are
responsive to her request for the Line-Item records. She is therefore entitled to recover
her filing fee and all costs incurred in this case.
E. Other issues raised by the parties.
{¶7} Both parties raise arguments that are not addressed in this report and
recommendation because they are not necessary to resolve this case. On Requester’s
side, there is no need to decide the merits of her timeliness claim; the Special Master is
already recommending that she be granted all the relief that would be available in this
Court on that claim (recovery of her filing fee and costs). On Respondent’s side, there is
no need to resolve its ambiguity/overbreadth and information request defenses; they were
limited to the Decisional Records element of Lerussi’s request, and the Department
prevailed on that element on other grounds. See MTD at pp. 7, 14. If “it is not necessary
to decide more, it is necessary not to decide more”, so there is no need to address those
matters. Meyer v. UPS, 122 Ohio St.3d 104, 2009-Ohio-2463, 909 N.E.2d 106, ¶ 53
(quoting PDK Laboratories Inc. v. United States DEA, 362 F.3d 786, 799 (2004) (Roberts
J. concurring).
III. Conclusion.
In light of the foregoing the Special Master recommends that:
A. The Department be ordered to produce the cancelled checks referred to at p. 5
and p. 10, ¶ 10 of its MTD upon Lerussi’s payment of the copying costs.
B. That the Court find that the balance of Lerussi’s claims fail on the merits for want
of proof; and
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C. That Lerussi be awarded the amount of her filing fee and all others costs in this
action.
{¶8} 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).
TODD MARTI
Special Master
Filed February 28, 2023
Sent to S.C. Reporter 3/2/23