Wilhelm v. Jerusalem Twp. Zoning

[Cite as Wilhelm v. Jerusalem Twp. Zoning, 2020-Ohio-5283.]
KAREN WILHELM Case No. 2020-00342PQ
Requester Special Master Jeff Clark
v. REPORT AND RECOMMENDATION
JERUSALEM TOWNSHIP ZONING
Respondent
{¶1} Ohio’s Public Records Act, R.C. 149.43, provides a remedy for production of
records under R.C. 2743.75 if the Court of Claims determines that a public office has
denied access to public records in violation of R.C. 149.43(B). The policy underlying the
Act is that “open government serves the public interest and our democratic system.”
State ex rel. Dann v. Taft, 109 Ohio St.3d 364, 2006-Ohio-1825, 848 N.E.2d 472, ¶ 20.
Therefore, the Act is construed liberally in favor of broad access, and any doubt is
resolved in favor of disclosure of public records. State ex rel. Glasgow v. Jones, 119
Ohio St.3d 391, 2008-Ohio-4788, 894 N.E.2d 686, ¶ 13.
{¶2} Requester Karen Wilhelm sent correspondence to respondent Jerusalem
Township from February 11, 2020 through May 28, 2020 requesting answers to
questions about certain township zoning decisions. The Township answered some of
the questions and referred her to relevant sections of the Jerusalem Township Zoning
Resolution and to her negotiated agreement in related litigation in the Oregon Municipal
Court. (Complaint at 2-33.)
{¶3} On June 1, 2020, Wilhelm filed a complaint pursuant to R.C. 2743.75
alleging that the Township had denied access to public records in violation of R.C.
149.43(B). Following unsuccessful mediation, the Township filed a response and motion
to dismiss (Response) on September 3, 2020. On September 28, 2020, Wilhelm filed a
reply.
Case No. 2020-00342PQ -2- REPORT AND RECOMMENDATION
Burdens of Proof
{¶4} Entitlement to relief in an action filed under R.C. 2743.75 must be
established by clear and convincing evidence. Hurt v. Liberty Twp., 2017-Ohio-7820, 97
N.E.3d 1153, ¶ 27-30 (5th Dist.). When a defense of ambiguity or overbreadth is raised,
the requester must show that she reasonably identified the record sought:
“[I]t 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. Fant v. Tober, 8th Dist. Cuyahoga No. 63737, 1993 Ohio App. LEXIS
2591, 1993 WL 173743, *4 (Apr. 28, 1993), aff’d, 68 Ohio St.3d 117, 623
N.E.2d 1202 (1993).
If an office asserts that a requested record does not exist, the requester must show that
it does. 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. If a document’s status as a “record” of
the public office is denied, the burden remains on the requester to establish that status.
State ex rel. O’Shea & Assocs. Co., L.P.A. v. Cuyahoga Metro. Hous. Auth., 131 Ohio
St.3d 149, 2012-Ohio-115, 962 N.E.2d 297, ¶ 23.
Motion to Dismiss
{¶5} 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. The unsupported conclusions of a complaint are,
however, not admitted and are insufficient to withstand a motion to dismiss. Mitchell v.
Lawson Milk Co., 40 Ohio St.3d 190, 193, 532 N.E.2d 753 (1988).
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{¶6} The Township moves to dismiss the complaint on the grounds that, 1) it has
satisfied Wilhelm’s requests for specific records, 2) some records sought do not exist,
and 3) the remainder of the requests are for information or explanations, rather than for
specific, existing records. Under the abbreviated pleading procedure in this form of
action (see R.C. 2743.75(D)(1) and (E)(2)) the Township’s defenses have been filed as
a combined response and motion to dismiss. On consideration of the motion to dismiss,
I find the grounds for dismissal are not established on the face of the complaint.
Moreover, as the matter is now briefed I find that the arguments are subsumed in the
arguments to deny the claim on the merits. I therefore recommend that the motion to
dismiss be denied and the matter determined on the merits.
Request and Correspondence
{¶7} On April 28, 2020, respondent’s trustees sent Wilhelm a letter answering
several of her written questions about receipt and investigation of zoning complaints,1
but declining to answer the following questions:
How would [being licensed and inspected for seaworthiness] have made
[boats stored on my property] look any better?
I want to know what page of any of the zoning books that this is a
requirement as Lucas County Planning Commission said we are good for
what we had going on. Please review the 1964 zoning book, the boats
were in the water or in storage on the above properties from the 1950’s
until being forced to remove them in winter 2019. I can’t seem to find it.
What Ohio revised code is this under?
Between January 21, 2016 & February 11, 2020, what other commercial
or residential properties have been forced to do this?
1 Wilhelm did not attach a copy of her February 11, 2020 request letter (Complaint at 14, 30), as
required by R.C. 2743.75(D)(1). However, the Township has not objected to this omission, and both
parties have proceeded as though the text referenced in the trustees’ April 28, 2020 letter is an accurate
representation of Wilhelm’s questions.
Case No. 2020-00342PQ -4- REPORT AND RECOMMENDATION
(Complaint at 15-17.) On May 19, 2020, Wilhelm added the following questions:
I am requesting the SOURCE that Ms. Rossler quoted the below as a
requirement for boat storage on my C-2 property in Jerusalem Township.
Boats must be licensed.
Boats must be safety inspected by ODNR
Boats must be seaworthy by ODNR?
***
Do I need different zoning to have any boats on my property?
What are the township requirements for boat storage on C-2 property?
What are the requirements for boat repairs on C-2 property?
***
If you do not understand these questions, please let me know ASAP and I
will explain.
(Emphasis added.) (Id. at 13-14.) On May 22, 2020, a responding township trustee
repeated that some of Wilhelm’s May 19, 2020 questions were the subject of and had
been resolved in enforcement litigation in the Oregon Municipal Court. He also cited
specific sections of the Jerusalem Township Zoning Resolution as regulations relevant
to her questions. (Id. at 11-12.) Later that day, Wilhelm replied:
That is not what I am looking for. I am looking for the SOURCE that Ms.
Rossler used. * * * If zoning is following that rule, why are the storage
facilities not required to do the same and what about winter storage? * * *
You’re not providing me with the information I have requested.
(Emphasis added.) (Id. at 10-11.) On May 26, 2020, the trustee responded again,
providing an online link to the Zoning Resolution, and referring Wilhelm to the
agreement she had signed with the Oregon Prosecutor. (Id. at 8-9.) In her next reply,
Wilhelm rephrased:
Case No. 2020-00342PQ -5- REPORT AND RECOMMENDATION
I am looking for the legal requirement that required the expensive and
extra efforts that the township required us to do.
The research I have done states that a prosecutor believes what zoning is
telling them and they do not do research.
***
If extra requirements are in place all of the township should be required to
do it and have the documents available for review. This is in the definition
of public records attached.
(Emphasis added.) (Id. at 7-8.) In the next communications, the trustee provided
additional advice regarding options available to Wilhelm. In the final communication,
Wilhelm repeated her question:
I want the source that Ms. Rossler found that states the boats need to be
licensed, safety inspected and deemed sea worthy or they are considered
blight. The township has wording for automobiles. I want the wording for
boats.
(Complaint at 5.)
The Requests do not Reasonably Identify Records Sought
{¶8} 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 request that does not reasonably identify what public records are being
requested may be denied. R.C. 149.43(B)(2).2 Judicial determination of whether an
office has properly denied all or part of a request as ambiguous or overly broad is based
on the facts and circumstances in each case. Zidonis at ¶ 26.
2 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 * * *. R.C. 149.43(B)(2).
Case No. 2020-00342PQ -6- REPORT AND RECOMMENDATION
{¶9} Accordingly, in response to a question or request for information that does
not identify the records sought, a public office has “no duty under R.C. 149.43 to create
new records by searching for and compiling information from existing records.” State ex
rel. White v. Goldsberry, 85 Ohio St.3d 153, 154, 707 N.E.2d 496 (1999); State ex rel.
Lanham v. State Adult Parole Auth., 80 Ohio St.3d 425, 427, 687 N.E.2d 283 (1997)
(APA properly denied a request for the “qualifications of APA members”). This includes
requests for records supporting or explaining an agency decision. State ex rel. Morabito
v. Cleveland, 8th Dist. Cuyahoga No. 98820, 2012-Ohio-6012, ¶ 14 (requests for
information, including “why, how, when, and by whom” a video was destroyed, “are not
authentic public records requests”); Kovach v. Geauga Cty. Auditor’s Office, Ct. of Cl.
No. 2019-00917PQ, 2019-Ohio-5455, ¶ 9-10 (office properly denied requests seeking
explanations or reasons for the execution of public functions, and to admit or deny
factual representations).
{¶10} Wilhelm’s questions ask: 1) how do the Township’s requirements make her
boats look any better, 2) what regulations, statutes, or other “sources” underlie the
Township’s requirements and actions, and 3) why are others not held to the same
standards? None of these questions identify any office document by a relevant
combination of title, date, author, recipient, location, retention category, subject matter,
document type, or other locator/identifier. They instead invite the Township to create a
reply letter or make a verbal response explaining the purpose, bases, and effects of its
zoning actions.
{¶11} The Public Records Act does not prohibit the Township from providing
answers to Wilhelm’s requests for information. However, it is not within the court’s
jurisdiction under R.C. 2743.75 to compel a public office to answer questions. I find that
Wilhelm’s requests did not reasonably identify any township record sought. I conclude
that the Township properly denied the requests pursuant to R.C. 149.43(B)(2).
Non-Existent Records
Case No. 2020-00342PQ -7- REPORT AND RECOMMENDATION
A “record” is defined for purposes of the Public Records Act as
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). A document must be one “created or received by or coming under the
jurisdiction of any public office” to meet this definition and thus must exist before it can
be the subject of a “records” request. A public office has no duty to provide records that
do not already exist or that it does not possess. State ex rel. Alford v. Toledo Corr. Inst.,
157 Ohio St.3d 525, 2019-Ohio-3847, 138 N.E.3d 1133, ¶ 5; State ex rel. Cordell v.
Paden, 156 Ohio St.3d 394, 2019-Ohio-1216, 128 N.E.3d 179, ¶ 7-10; State ex rel.
Gooden v. Kagel, 138 Ohio St.3d 343, 2014-Ohio-869, 6 N.E.3d 471, ¶ 5, 8-9; State ex
rel. Lanham v. Smith, 112 Ohio St.3d 527, 2007-Ohio-609, 861 N.E.2d 530, ¶ 15.
{¶12} The Township asserts that it provided all requested documents “to the
extend [sic] such documents existed” (Response at 3; Borell Aff. at ¶ 4), adding that
“Ms. Wilhelm refuses to accept and/or understand that she has requested documents
that do not exist.” (Response at 4.) Borell’s affidavit is some evidence supporting the
non-existence of records. State ex rel. Fant v. Flaherty, 62 Ohio St.3d 426, 427, 583
N.E.2d 1313 (1992). See also State ex rel. Toledo Blade Co. v. Toledo-Lucas County
Port Auth., 121 Ohio St.3d 537, 2009-Ohio-1767, 905 N.E.2d 1221, ¶ 14-15. Once the
Township denies that responsive records exist, it is Wilhelm’s burden to show by clear
and convincing evidence that additional records do exist. Cordell at ¶ 8.
{¶13} Wilhelm states that the information and answers she seeks “should” exist.
However, a requester’s mere belief in the existence of records does not constitute the
clear and convincing evidence necessary to overcome this denial and establish that
responsive documents exist. State ex rel. McCaffrey v. Mahoning Cty. Prosecutor’s
Case No. 2020-00342PQ -8- REPORT AND RECOMMENDATION
Office, 133 Ohio St.3d 139, 2012-Ohio-4246, ¶ 22-26; State ex rel. Morabito v.
Cleveland, 8th Dist. Cuyahoga No. 98829, 2012-Ohio-6012, ¶ 13. To further evaluate
whether Wilhelm’s requests could be construed to describe any existing records kept by
the Township, the special master directed her to “Provide a description reasonably
identifying any specific, existing records kept by Jerusalem Township Zoning that are
responsive to each request, but have not been provided.” (September 8, 2020 Order.)
Wilhelm responded:
The township should have something from the Ohio Department of Natural
Resources – Watercraft Division that states they perform “Seaworthy
“inspections. A website link, a letter from ODNR, a watercraft officer or
staff the township would have had communication with. This would be
something that the township used in their decision making process. I had
discussions with a watercraft officer and a member of the office staff and
was told they do not perform this type of inspection.
Requirements that the boats need to be licensed and safety inspected are
not listed as a requirement on any zoned property to have watercraft in
storage, this should be something listed in our local zoning book or in Ohio
Revised Code maybe. The storage yards and marinas in our area have no
information on this.
(Emphasis added.) (Complaint at 1.) Wilhelm reaffirms that she is asking questions
about information “that the township used in their decision making process.” She asks
for “something” that she believes the Township “should have” from the ODNR such as a
“website link, a letter from ODNR, a watercraft officer or staff the township would have
had communication with.” However, links, letters, and the names of outside agency
officers with whom the township has communicated are not “records” of the township
unless they are recorded in specific, existing documents kept by the Township. Only
documents may be requested as public record, not unrecorded information that exists, if
at all, only in the memory of a Township official or employee. Wilhelm’s further
description of “requirements” that “should be something listed in our local zoning book
Case No. 2020-00342PQ -9- REPORT AND RECOMMENDATION
or in Ohio Revised Code maybe” appears to be a demand to newly codify
“requirements,” and fails to reasonably identify specific, existing Township records.
{¶14} Even assuming that Wilhelm had sufficiently described putative records, I
find she has not proven by clear and convincing evidence that such records actually
existed in the Township’s files at the time of the requests.
Suggestion of Mootness
{¶15} To the extent that the Township discerned that its Township Zoning
Resolution and one agency email were relevant to Wilhelm’s questions, and provided
them (Borell Aff. at ¶ 4-5), any request for those records is moot.
Conclusion
{¶16} Upon consideration of the pleadings and attachments, I recommend that
the court DENY requester’s claim for production of records. I recommend that costs be
assessed to requester.
{¶17} 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 1, 2020
Sent to S.C. Reporter 11/13/20