[Cite as Morrison v. Law Dir. of Mt. Vernon , 2022
- Ohio
- 1617.]

{¶1} The Ohio Public Records Act (PRA ) requires copies of p u bl ic rec ords to be made a vailable to any person upon request

. The stat e policy underlying the PRA is that open government serves the public in terest an d our democratic system. State ex rel. Gannett Sa t

ellite Information Network, Inc. v. Petro , 80 Ohio St .3d 261, 2 64, 685 N.E.2d 1 2 23 (1997). To that end , the public reco rd s statute must be construed liberally in favor of broad access, with any d oubt resolved in favor of disclosure of pu blic records. State ex rel. Rogers v. Dept

. of Rehab. & Corr

., 155 Ohio St. 3 d 545, 20 18

- Ohio

- 5111, 122 N.E.3d 1208, ¶ 6. This action i s filed under R. C. 2743.75 , which provides an expediti ous and economical proced u re to enforce the PRA in the Court of Claims

. {¶2} On July 21 , 20 2 1 , requester Jo sh ua Morrison made a public records r e qu est to the Clerk o f Council of the City of Mount Vernon seeking
a ccess to and a copy of All emails, communications and call logs of Mayor Matthew Starr, Safety Service Direct or Rick Dzik, City Coun cil members, Bru ce E . Hawk ins, John Francis, Mi ke Hilli e r, Jul ia Warga, Janis S ea volt, Amber Keener, Tammy Woo ds and Saman tha Scoles and including former City Coun cil member Tanner Salyers regarding the recent suspe nsion and no confidence vo t e of the Safety Service Director. If your agency does not maintain the se pub lic records, please let me know who does and include the proper custodian ’ s name and address

. (Complaint at 3 .) On September 17, 2021, respondent Law Director for Moun t Vernon Robert Broeren, Jr., (B roeren ) emailed Morrison a link to a D ropbox file containing JOSHUA DAVID MORRISON Requester

v. L AW DIRECTOR OF THE CITY OF MOUNT VER N ON Respondent Case No. 20 2 2

- 00 0 23 PQ Special Master Jef f Clark
REPORT AND RECOMMENDATIONCase No. 20 2 2

- 00 023 PQ

- 2

- REPORT AND RECOMMENDA T ION

do cuments responsive to the request. ( Reply at 6.) On S eptember 27, 2021, Morrison sent an email advising Broeren that he believed the text message records of former councilmember Tanner Salyers had been omitted from this produc tion

. ( Id . at 7

. ) Broeren responded that Salyers had “ personal ly carried his cell phone records to my office and they were included in the produced records. ” ( Id . at 9.) {¶3} On January 11, 2022 , Morrison filed a complaint under R.C. 2743.75 alleging denial of access to public records , specifically: I didn ’ t receive the text messages of Cou ncil member Tanner Salyers. The records and te xt messages from Salyers to Coun cilmember Mi ke Hillier were not f ul f illed. Mr. Hillier ’ s te xt messages were in cluded, indicating th at Salyers and Hillier had a con versation. ( Complain t a t 1.) Following un success ful mediat ion, Broeren filed an answer ( Response) on March 24, 2022

. On April 4 and A pril 12 , 2022, Morrison filed a repl y and a supplement to the reply

. Burden of P roof {¶4} A requester must e s t ablish a public rec o rds violation by cle a r and co nvincing
e v i dence

. Hu r

t v

. L ib erty Tw

p

. , 2 0 17

- Oh io

- 7820 , 97 N.E. 3d 1153, ¶ 27

- 30 (5th Dist.). The requester must plea d and prove f a cts showi ng he sought an ident if iable public record from a public office pu r s uant to R.C. 149

. 43(B)(1) and tha t t he public office did not make the record available

. W elsh

- Huggins v. J

ef ferson Cty. Prosec uto r ’ s Office , 163 Ohio St.3d 337, 2 0 2 0

- O hio

- 53 71, 170 N.E. 3d 768, ¶ 33

. Broeren advi sed Morrison that he searched for, locat ed , and produced all requested records

. (Reply at 9.) A requester challengi ng such an as sertion must s how by clear and convincing evidence that one or more additional responsive record s exist s and was not made available

. State ex rel . Cordell v. Paden , 156 Oh i o St.3d 394, 2019

- Ohio

- 1216, 128 N.E.3d 179, ¶ 5

- 10. Record s Ma de A vailable {¶5} Morrison claims that he “ didn ’ t receive the text m essages of Cou ncil member Tanner Salyers. ” It is not clear whether Morrison is 1) claiming that non - id entical textCase No. 20 2 2

- 00 023 PQ

- 3

- REPORT AND RECOMMENDA T ION

me ssage s of Sa l yers exist that were not contained in the provided text messages of council m ember Hillier , or 2 ) asking that a copy of identical text mess ages be made from both Hillier ’ s and Salyers ’ cell phone s

. Th is report will ad dress both possible meanings of Morris o n ’s claim

. {¶6} In his ab bre vi ated response Broeren broad ly deni es Morrison ’ s claim without providing the court with any affidavit , eviden ce , explanation of factual background, or legal authority

. (Respon se, passim. ) See State ex rel. Cordell v. Paden , 156 Ohi o St. 3d 394, 201 9

- Ohio

- 1216, 128 N.E.3d 179, ¶ 5 , 9 ; State, ex rel. Bloodworth v. T oledo Corr

. Inst

. , 6 th Dist. Lu ca s No. L

- 21

- 1146, 2022

- Ohio

- 346 , ¶ 4

- 7 ; and Ohio Records Analy s is v. Ohio Dept. of Admin

. Servs

. , Ct. of Cl. No. 2021

- 0038 5PQ, 2022

- Ohio

- 316, ¶ 7, 10 for
exam ple s of public office s giving useful explanations of the non - existence of additional records

. See also R.C. 149.43(B)( 3)

. {¶7} Taking assertion No. 2 first , it is a xiomatic that there is no duty to re produce every separate office copy of a req u ested record in response to a public records request

. T he d isclosure of a single record copy is usually sufficient to satisfy a com munication request if it contain s all the message text , and the identities of the correspondents a re known

. Although copies i n the hands of other correspondent s may contain different metadata , 1 that information does not itself constitute a “record ” unless it also “ serves to d o c u ment the orga niz ation, functions, policies, decisions, procedu res, operations , or ot her activities of the of fice

. ” R.C. 149.01 1(G). A public office has no duty to pr oduce i ncidental non - record i nform ation merely because a requester expresses an interest in it

. Only i f a nother copy of the corresponden ce contains additional record information , for example m a rgi na l notes or metadata that themselves meet the R.C. 149.011(G) definition

1 “ Metadata i s ‘ [s]econdary data that organize, manage, and facilitate the use and understanding of primary data. ’ Black's Law Dictionary 1080 (9th Ed. 2009). ” State ex rel. M cCaff rey v. Mahoning Cty

. Prosecutor’ s Office , 133 Ohi o St.3d 139, 2012

- Ohio

- 4246, 976 N.E.2 d 877, ¶ 19. Examples include mai ling envelopes and electronic mail header s.Case No. 20 2 2

- 00 023 PQ

- 4

- REPORT AND RECOMMENDA T ION

of a record, must that information be provided as well. See Bello v. Ohio D ept. of Rehab. & Corr ., Ct. of Cl. 2020

- 00129PQ , 2020

- Ohio

- 4559 , ¶ 8

- 11. H ere , Morrison does not explai n how copying an identical Salyer s /Hillier text exchange from Salyer s ’ device would provide an additional record documenting the decisions, operations, or other ac tivities of the City of Mt. Vernon

. Finally, even if the text meta data did contain record inf o rmation , Morrison did not as k for metadat a in his request and was th us not entitled to it

. State ex rel. M cCaff rey v. Mahoning Cty

. Prosecutor’ s Office , 133 Ohi o St.3d 139, 2012

- Ohio

4246, 976 N.E.2 d 877, ¶ 19

- 21. {¶8} As to assertion No. 1 , Morrison did not d i spute Broeren ’s emailed explanation that former council member Salyers bro u ght his cell phone in and pro duced responsive records from it

. Morrison instead expressed suspi ci on that metadata in a provided screenshot could have been “misrepresented ” and that h aving a nother screenshot from Salyers ’ phone “would validate and corroborate the conversation. ” (Reply at 11.) Notably, t he screenshot at Re ply p. 11 includes what appears to be source - identifying metadata : “Tanner Sa

... ” and “TS ” and “Mo bile. ” While Broer e n fail s to address Morrison ’s
a ccusa tion that this information could be fabricated, the special master declines to accept mere suspicion as evidence that the screenshot is not part of the records from Salyers ’ cell phone that Broeren said he had obtained a nd delivered to Morrison

. {¶9} Morrison alternativ ely infer s from the wor ding of the screenshot the existence and withholding of additional texts between Sa lyer s and Hillier

. However, o nce Broeren asserted that all requested te xt co mmunication between the two had been provided , Morrison had the bur den to show b y cle a r and convinci ng evidence that additional text communication existed

. C ordell v. Paden at ¶ 5

- 10 ; Bello at ¶ 10

. Morrison ’ s assertion that the ques tion in the screenshot about “ [t]he meeting you ha d in the hall pr ior to the meeti ng ” implies a “ subsequent conversation ” is not persuasive , much less conclusive, of the existen ce of an additional written text message rather than a later verbal convers ation

. (Reply at 2

- 3 , 11

. )Case No. 20 2 2

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- 5

- REPORT AND RECOMMENDA T ION

{¶10} C onsidering the eviden ce b efore the c ou rt, t he speci al master find s Morrison has not proven by clear and convi ncing eviden c e that Broeren failed to produce any additional non - iden t ical text message or other responsive record

. Conclusion {¶11} Upon consideration o f the pl eadings and att a chments the special master recommend s th e court den y requester’s claim for productio n of additional r ecords

. It is recommended that costs be assessed to requester

. {¶12} Pursuant t

o R.C. 2743. 75(F)(2), either part y may file a written objection wit h the cle rk of the Co urt of Claims of O hio within seven ( 7) business days after receiving this
re port an d recommendation. Any objection shall be specific and state with parti cularity all gr ou nds for th e objection. A party shall not assign as error on appea l the cou rt’s a doptio n of any factual f

indings or legal c onclusions in this report and recommenda tion un less a time ly objection was filed thereto. R.C. 2743. 75(G)(1).

JEFF CLARK Spec ia l Master

Filed April 19 , 2022 Sent to S.C. Reporter 5 / 1 3 /22