[Cite as State ex rel. Darling v. Lake Cty., 2013-Ohio-1291.]

IN THE COURT OF APPEALS

ELEVENTH APPELLATE DISTRICT 

LAKE COUNTY, OHIO 

STATE OF OHIO ex rel. 

AMANDA DARLING, 

: O P I N I O N 

:

 Relator, CASE NO. 2012-L-079

:

 - vs - 

:

LAKE COUNTY, et al., 

:

 Respondents. 

Original Action for Writ of Mandamus. 

Judgment: Petition denied and judgment for respondents. 

Amanda Darling, pro se, 11864 Concord-Hambden Road, Concord Township, OH 

44077 (Relator). 

Charles E. Coulson, Lake County Prosecutor, and Joshua S. Horacek, Assistant 

Prosecutor, 105 Main Street, P.O. Box 490, Painesville, OH 44077 (For Respondent 

Lake County). 

Michael C. Lucas, Wiles and Richards, 37265 Euclid Avenue, Willoughby, OH 44094; 

and John D. Latchney, Tomino & Latchney, L.L.C., L.P.A., 803 East Washington 

Street, Suite 200, Medina, OH 44256 (For Respondent Concord Township Trustees). 

Mike DeWine, Ohio Attorney General, and Cynthia K. Frazzini and Gerald E. Dailey, 

Assistant Attorneys General, 2045 Morse Road, Building D-2, Columbus, OH 43229 

(For Respondent Ohio Department of Natural Resources). 

TIMOTHY P. CANNON, P.J. 

{¶1} This action in mandamus is before this court for final disposition of the 

respective motions of respondents, Ohio Department of Natural Resources (“ODNR”), 
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Lake County, and Concord Township Trustees. After a review of the summary 

judgment motions and the evidentiary material submitted in support of those motions, 

we find that summary judgment as to all respondents is warranted. 

{¶2} On July 16, 2012, relator filed a pro se petition for writ of mandamus 

alleging that her request for public records was denied by respondents. In her request, 

relator sought the following: 

{¶3} (a) A copy of any/all investigation reports and complaints about a 

flood issue that occurred on/between July 2006 to present day in 

the area on Jordan Creek/ 11864 Concord-Hambden; 

{¶4} (b) A copy of any/all geographical surveys of said area/address 

listed in paragraph (3)(a), including historical records and surveys 

listing said area/address as a ‘flood plain’ or similar terminology; 

{¶5} (c) A copy of any/all Statutes, Laws, Regulations, including Policy 

Directives and Procedures that this agency/department uses in it’s 

responses to investigations, complaints, etc. concerning the 

incident paragraph (3)(a) and this FOIA Request/Response; 

{¶6} (d) A copy of complete blueprints, diagrams, and drainage/ 

STORMWATER MAPS, for the subdivisions call WOODCREST 

AND CALLIWOODS both located in Concord Twp, Ohio. That 

shows/reflects said drainage going into Jordan Creek in Concord 

Twp, Ohio; 

{¶7} (e) A copy of any/all names of City, County, State and Federal 

Public Officials that approved the development of said Subdivisions 
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called Woodcrest and Cali woods in Concord Twp, Ohio, including 

but not limited to the names of the inspectors of said drainage 

lines/pipes, etc.; 

{¶8} (f) A copy of any/all names of City, County, State and Federal 

Public Officials that approved the development of home/property 

11864 Concord-Hambden Rd in Concord Twp, Ohio. That knew or 

reasonable should have know that said property/area was 

historically known/designated as a ‘Flood Plain’ in 1978 when 

house was built as was sold to Me in 2005; 

{¶9} (g) A complete map of Concord Twp, Ohio reflecting any/all rivers, 

streams, lakes and creeks within Concord Twp, including but not 

limited to specifically a Jordan Creek aerial view going through 

Concord Twp, Ohio” (sic throughout). 

{¶10} Relator seeks a writ of mandamus to compel the release of the above 

documentation. “Mandamus is the appropriate remedy to compel compliance with R.C. 

149.43, Ohio’s Public Records Act.” State ex rel. Physicians Commt. for Responsible 

Medicine v. Bd. of Trustees of Ohio State Univ., 108 Ohio St.3d 288, 2006-Ohio-903, 

¶6; R.C. 149.43(C)(1). “Under the public records statute, the government has the duty 

to supply records, not information, and the government has no duty to create records to 

meet a requester’s demand.” State ex rel. Morabito v. City of Cleveland, 8th Dist. No. 

98829, 2012-Ohio-6012, ¶14. 

{¶11} Respondents have filed respective motions for summary judgment. The 

standard for summary judgment is well established. To prevail on a motion for 
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summary judgment, the moving party has the initial burden to affirmatively demonstrate 

that: (1) there is no genuine issue of material fact to be resolved in the case; (2) final 

judgment as a matter of law is warranted; and (3) the nature of the evidentiary 

materials, even when viewed in a light most favorable to the non-moving party, are such 

that a reasonable person could only reach a conclusion against the non-moving party. 

State ex rel. Dehler v. Spatny, 11th Dist. No. 2009-T-0075, 2010-Ohio-3052, ¶26; 

Dresher v. Burt, 75 Ohio St.3d 280, 292 (1996). 

{¶12} We first address ODNR’s motion for summary judgment. ODNR attached 

relator’s request for public records to its motion for summary judgment. It also attached 

the affidavits of Christopher Thoms, the program manager of the Floodplain 

Management Program, and Charles Rowan, the Deputy Chief Counsel of ODNR. 

{¶13} Mr. Thoms averred that he was “unable to locate any records relating to 

[relator’s] request.” Mr. Thoms explained that ODNR’s Floodplain Management 

Program “does not have any enforcement authority or jurisdiction in Concord Township, 

Lake County, Ohio.” ODNR’s Floodplain Management Program does not “prepare or 

maintain any maps, surveys or investigation reports.” Mr. Thoms further explained that 

“[t]he authority having jurisdiction over floodplain management in Concord Township, 

Lake County, Ohio is the Lake County Drainage Engineer with offices at 550 Blackbrook 

Road, Painesville, Ohio.” 

{¶14} In Mr. Rowan’s affidavit, he averred that when he received relator’s written 

request for public records, he “determined that the most likely program to have records 

responsive to [relator’s] request would be the Floodplain Management Program.” Upon 

further inquiry to Mr. Thoms, Mr. Rowan learned that ODNR “has no enforcement 
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authority or jurisdiction over floodplain matters in Concord Township, Lake County, 

Ohio.” Mr. Rowan explained that he informed relator, by letter, that he was unable to 

identify any public records responsive to her request. 

{¶15} In her “motion to strike and/or for objection,” relator makes the conclusory 

statement that the affidavits of Messrs. Rowan and Thoms were “intentionally filed in 

‘bad faith.’” Additionally, citing to various sections of the Ohio Revised Code, relator 

claims that ODNR does have the records requested, as ODNR is responsible for 

floodplain management in Concord Township, Ohio. 

{¶16} In its response, ODNR reasserts that its affidavits confirm that ODNR 

does not have enforcement authority or jurisdiction over floodplain matters in Concord 

Township; that the Lake County Drainage Engineer is the authority having jurisdiction; 

and that ODNR’s role is that of an advisor to local communities regarding floodplain 

management issues. 

{¶17} In construing these evidentiary materials in a light most favorable to 

relator, we determine no genuine issue of material fact remains to be litigated. The 

evidence illustrates that ODNR has made a diligent effort in response to relator’s public 

records request and found no such records. Moreover, ODNR has submitted 

evidentiary material demonstrating that it has no enforcement authority or jurisdiction 

over floodplain management issues in Concord Township, Ohio. Conversely, relator 

has not put forth any evidentiary material under Dresher to establish these records 

exist. Under the Public Records Act, ODNR does not have any duty to create records 

that do not exist. State ex rel. Chatfield v. Gammill, 132 Ohio St.3d 36, 2012-Ohio1862, ¶3. 
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{¶18} Next, in its motion for summary judgment, Lake County claims the only 

records relator did not receive are those that do not exist. Attached to Lake County’s 

motion for summary judgment is the affidavit of Michael DeLeone, Assistant Lake 

County Prosecuting Attorney. Mr. DeLeone explained that upon receiving relator’s 

public records request, a meeting was held with relator and her family at the Lake 

County Administration Building on November 2, 2011. At this meeting, relator and her 

family were able to inspect “all the documents in possession of the Board of Lake 

County Commissions (including the Lake County Planning Commission) and the Lake 

County Engineer that in any way related” to her public records request. Mr. DeLeone 

indicated that relator was provided with copies of the documents. During a follow-up 

conversation, Mr. DeLeone informed relator that the general statement pages from the 

Noble Ridge and Wood Crest subdivision and the “no-rise certificates” for Jordan Creek 

do not exist. The nonexistence of these items was reaffirmed by the affidavit of George 

Hadden, Construction Engineer in the Office of the Lake County Engineer, who averred 

that the general pages from the Noble Ridge and Wood Crest subdivisions did not exist 

and that Jordan Creek does not have a “no-rise certificate.” 

{¶19} Lake County also attached the affidavit of Amy Elszasz, Clerk of the Board 

of Lake County Commissioners, who essentially averred that after the November 2, 

2011 inspection of records, relator was satisfied upon receiving the records that were in 

existence. 

{¶20} In her pro se “motion to strike and/or for objection,” relator claims the 

affidavits remain completely silent as to whether no-rise certificates exist for other 

subdivisions named in her request—namely, the Cali Wood Subdivision—and other 
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subdivisions within a one-mile radius of her address. Relator further claims that all of 

the permits required to alter the floodplain through the draining of stormwater/sewage 

into Jordan Creek were not disclosed. 

{¶21} After ODNR and Lake County filed its motions for summary judgment and 

relator filed her responses to each, this court held a pretrial hearing. At that hearing, 

Construction Engineer George Hadden of the Lake County Engineer’s Office indicated 

that a voluminous amount of material had been prepared and left for relator for pick up 

at the Lake County Prosecutor’s Office. Relator indicated she did not recall being 

informed of the availability of this material and/or did not have any recollection of picking 

it up. The court then requested that Lake County produce the material again. Lake 

County agreed that regardless of whether it had already provided the documentation 

mentioned in relator’s pro se motion to strike, additional copies would be made available 

to relator. Thereafter, on December 20, 2012, Lake County filed a notice with this court, 

stating: 

{¶22} On December 13, 2012, counsel for Lake County had a telephone 

conversation with Relator wherein counsel notes that the above 

referenced material was available to be picked up from the Lake 

County Prosecutor’s Office. Counsel for Lake County also 

indicated that Construction Engineer George Hadden of the Lake 

County Engineer’s office would make himself available to review 

the information with Relator if she so chose. Relator indicated to 

counsel that she was not, at this time, willing to accept the 

materials from Lake County. Counsel indicated to Relator that the 
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material would remain available for her to pick up from the Lake 

County Prosecutor’s Office at her convenience, though counsel 

requested that she call ahead. 

{¶23} In her responsive pleadings, relator has never denied or otherwise 

challenged the assertions contained in this notice. Therefore, it is not refuted that a 

significant amount of material has been made available to relator that, for whatever 

reason, she simply refuses to pick up. This puts relator in a position where she is 

unable to deny that the material has been provided to her. 

{¶24} After a review of the evidentiary materials, we determine no genuine issue 

of material fact remains to be litigated. To reiterate, under the Public Records Act, Lake 

County does not have any duty to create records that do not exist. Id. And, to the 

extent that relator is entitled to the requested documents within the purview of R.C. 

149.43, the evidence illustrates that Lake County has performed its obligation by 

making them available to relator. Relator’s mandamus action, therefore, is essentially 

seeking performance of an obligation that either does not exist, or has already been 

met, thereby rendering it moot. See generally State ex rel. Gannett Satellite Info. 

Network v. Shirey, 78 Ohio St.3d 400, 401 (1997) (“provision of the requested records 

to the relator in a mandamus action brought under R.C. 149.43 renders the mandamus 

claim moot”). 

{¶25} Lastly, to support its motion for summary judgment, Concord Township 

attached the affidavit of Amy L. Dawson, Fiscal Officer, averring that after she received 

relator’s request for public records, she conducted a search and responded to relator by 

letter, dated October 5, 2011. The letter to relator was also attached to Concord 
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Township’s motion; it indicated that all of the records Concord Township has on file from 

July 2006 to the present were enclosed. Concord Township also has informed relator 

that it is in possession of a map, created by Lake County Stormwater Management 

(“LCSM”), which may arguably constitute a public record, yet Concord Township does 

not have the necessary equipment to copy the map internally. Upon relator paying the 

cost of reproducing the map, Concord Township indicated it would provide her with a 

copy. See generally State ex rel. Gibbs v. Concord Twp. Trustees, 152 Ohio App.3d 

387, 2003-Ohio-1586, ¶20-32 (11th Dist.). 

{¶26} In her pro se “motion to strike and/or for objection,” relator does not 

provide any material of evidentiary quality required by Civ.R. 56 or Dresher. Instead, 

relator claims she “will not accept [a map] now by the Respondents.” 

{¶27} After a review of the evidentiary materials, we determine no genuine issue 

of material fact remains to be litigated. Under the Public Records Act, Concord 

Township does not have any duty to create records that do not exist. State ex rel. 

Chatfield, supra, ¶3. And, as Concord Township is willing to make the map available to 

relator, her mandamus action is essentially seeking performance of an obligation that 

either does not exist or has already been met, thereby rendering it moot. See generally 

State ex rel. Gannett Satellite Info. Network, supra. 

{¶28} Accordingly, respondents’ motions for summary judgment are granted. It 

is the order of this court that final judgment is hereby entered in favor of respondents as 

to relator’s entire mandamus petition. All pending motions are overruled as moot. 

THOMAS R. WRIGHT, J., concurs, 

COLLEEN MARY O’TOOLE, J., concurs in judgment only.