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

{¶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. 

KAREN WILHELM 

 Requester 

 v. 

JERUSALEM TOWNSHIP ZONING 

 Respondent 

Case No. 2020-00342PQ 

Special Master Jeff Clark 

REPORT AND RECOMMENDATION 
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). 
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 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