[Cite as Wilhelm v. Jerusalem Twp. Zoning , 2020-Ohio-5283.]

{¶1} Ohio’s Public Records Act, R.C. 149.43, provides a remedy for p roduction of

records under R.C. 2743.75 if the Court of Claims determines th at 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 acc ess, 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 Jerus alem 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 Jeru salem Township Zoning Resolution and to her negotiated agreement in related litigatio n in the Oregon Municipal Court. (Complaint at 2-33.) {¶3} On June 1, 2020, Wilhelm filed a complaint pursuant to R.C. 274 3.75 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, 20 20, Wilhelm filed a reply. KAREN WILHELM

Requester

v.

JERUSALEM TOWNSHIP ZONING

Respondent Case No. 2020-00342PQ

Special Master Jeff Clark

REPORT AND RECOMMENDATIONCase No. 2020-00342PQ -2- REPORT AND RECOMMENDATION

Burdens of Proof {¶4} Entitlement to relief in an action filed under R.C. 2743.75 mus t 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 o r overbreadth is raised, the requester must show that she reasonably identified the reco rd 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 issu e.” 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, th e 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 s tatus as a “record” of the public office is denied, the burden remains on the requeste r 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 up on which relief can be granted, it must appear beyond doubt that the claimant c an prove no set of facts warranting relief after all factual allegations of the complain t 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 the re is a set of facts consistent with the complaint that would allow the cla imant 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 conclusion s of a complaint are, however, not admitted and are insufficient to withstand a motio n to dismiss. Mitchell v.

Lawson Milk Co ., 40 Ohio St.3d 190, 193, 532 N.E.2d 753 (1988).Case No. 2020-00342PQ -3- REPORT AND RECOMMENDATION

{¶6} The Township moves to dismiss the complaint on the grounds that , 1) it has satisfied Wilhelm’s requests for specific records, 2) some reco rds sought do not exist, and 3) the remainder of the requests are for information or exp lanations, rather than for specific, existing records. Under the abbreviated pleading proc edure in this form of action ( see R.C. 2743.75(D)(1) and (E)(2)) the Township’s defenses have be en 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 fac e of the complaint. Moreover, as the matter is now briefed I find that the argument s are subsumed in the arguments to deny the claim on the merits. I therefore recommen d 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 investigatio n 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 i s a requirement as Lucas County Planning Commission said we are goo d for what we had going on. Please review the 1964 zoning book, the b oats were in the water or in storage on the above properties from th e 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 commer cial 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 o bjected to this omission, and both parties have proceeded as though the text referenced in the tru stees’ 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 follo wing 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 To wnship.

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 prop erty?

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 Jerusal em Township Zoning Resolution a s 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 st orage? * * * 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 referrin g 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 d o not do research.

* * * If extra requirements are in place all of the township should b e required to do it and have the documents available for review. This is in t he 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 th e 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 co nsidered blight. The township has wording for automobiles. I want the wo rding 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 a nd/or copy records to identify with reasonable clarity the records at issu e.” 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 pub lic 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 ambiguou s 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 h as 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 i dentify 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 informati on that does not identify the records sought, a public office has “no duty u nder R.C. 149.43 to create new records by searching for and compiling information from exi sting 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 m embers”). This includes requests for records supporting or explaining an agency decisio n. 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 wa s 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 denie d 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, retent ion 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 prov iding answers to Wilhelm’s requests for information. However, it is n ot within the court’s jurisdiction under R.C. 2743.75 to compel a public office to an swer questions. I find that Wilhelm’s requests did not reasonably identify any township rec ord sought. I conclude that the Township properly denied the requests pursuant to R.C. 149.43(B)(2).

Non-Existent RecordsCase 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 se ction 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 d uty 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 r equested documents that do not exist.” (Response at 4.) Borell’s affidavit is som e 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 “shou ld” 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’sCase 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 furthe r evaluate whether Wilhelm’s requests could be construed to describe any e xisting records kept by the Township, the special master directed her to “Provide a des cription reasonably identifying any specific, existing records kept by Jerusalem To wnship Zoning that are responsive to each request, but have not been provided.” (Septe mber 8, 2020 Order.) Wilhelm responded: The township should have something from the Ohio Department of Natural Resources – Watercraft Division that states they perform “Seawo rthy “inspections. A website link, a letter from ODNR, a watercraft officer or staff the township would have had communication with. This woul d be something that the township used in their decision making proce ss. I had discussions with a watercraft officer and a member of the offic e staff and was told they do not perform this type of inspection.

Requirements that the boats need to be licensed and safety insp ected are not listed as a requirement on any zoned property to have water craft 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 mak ing process.” She asks for “something” that she believes the Township “should have” fr om the ODNR such as a “website link, a letter from ODNR, a watercraft officer or staf f 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 “recor ds” of the township unless they are recorded in specific, existing documents kept b y the Township. Only documents may be requested as public record, not unrecorded inf ormation 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 bookCase 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, exis ting Township records. {¶14} Even assuming that Wilhelm had sufficiently described putative records, I find she has not proven by clear and convincing evidence that s uch 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 Zon ing Resolution and one agency email were relevant to Wilhelm’s ques tions, and provided them (Borell Aff. at ¶ 4-5), any request for those records is m oot.

Conclusion {¶16} Upon consideration of the pleadings and attachments, I recommen d that the court DENY requester’s claim for production of records. I r ecommend 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 Maste r

Filed October 1, 2020 Sent to S.C. Reporter 11/13/20