[Cite as Warchol v. Superintendent of Washington Local School Dist. , 2022
- Ohio

- 3140.]

{¶1} The P ublic Records Act require s a public office to make copies of re q uested public record s available at cost and within a reasonable period of time. R.C. 149.43(B)(1). T he Act is construed liberally in favor of broad access, with any doubt resolved in favor of disclosure

. State ex rel. Hogan Lovells U.S ., L.L .P. v. D ept. o f Rehab . & Corr ., 156 Ohio St.3d 56, 2018

- Ohio

- 5133, 123 N.E.3d 928, ¶ 12. R.C. 2743.75 provides a n expediti ous and economical procedure to resolve public records disputes in the Court of Cla ims. {¶2} On September 30 , 202 1 , r equ ester Britta ny Warchol made a publi c records request to respon dent Superintendent of Washin g ton Local School District Kadee Anstadt ( the Superintende nt) as follows : This is a request for information filed under the Freedom of Information Act. I request that you provi d e me with all documents regarding the following topic : COVID

- 19, Certifications, School Funding, and HVAC s ystem maintenan ce. Documentatio n to include e

- mail communication via work account as well as private e

- mails used to conduct busine ss, letters, logs , Doct orate De gree (MD), as well as internal communication. Correspondence between Kadee Ansta n dt and the Department of E ducation, Kad ee Anstandt and the Department of Health/ Ohio Health Department, as w ell as Kadee Anstandt and Governor Mike DeWine, and K ad ee A nstandt and all serving members of the school board and any other pertinent entit y. I am requesting copies of all corresponden ce dated 08/01/2018

– 11/ 01/2021 in regards to COVID

- 19, Grant Fun ding, Emergency/Safety BRITTANY WARCHOL Requester

v. SUPERINTENDENT OF WASHINGTON LOCAL SCHOOL DISTRICT Respondent Case No. 202 1

- 00 69 8 PQ Special Master Jeff Clark
REPORT AND RECOMMENDATIONCase N o. 202 1

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- REPOR T A ND REC OMMENDATION

response plan in regards to a “ pan d emic , epidemic, or communicable viral disease. ” Response plan to include any resources or e ducational material in which the plan was set forth upon

. C ommunication to include b ut not be limited to ma sk s, vaccinations, and documentation showing school offic i als to incl ude, Superintendent K adee Anstadt and all governing members of the school board having the rights under the law to prescribe, adv ise, recommend, administer OR dispense for com pensation of any kind, direct or indirect, a drug or medicine, as wel l as treatment, of whatever nature for the cure of a disease or infirmity. Gr a nt funding under ESSER, ARP ESSER, as well as GEER funding t o include but not limited to the use of said funds up until t his request whet her it be a pending approval or purchased

. My final request at this time, all documentation in regards to HVAC system maintenance logs. ( E mphas e s , g rammar, and spe lling sic .) (Complaint at 3

- 4 .) Ansta dt responde d on October 6 , 2021 that the school district was not subje ct to FOI A , that p orti ons o f t he

r equest were ambiguous and overbroad , and in vited Warchol to narrow her re quests

. Anstadt advis ed there were no responsive records regarding Ansta dt or board members advising or presc ribing medical treatment for compensation and provided Warchol with a copy of the district ’ s public records policy

. ( Id

. at 5

- 6

. ) On October 7, 2021, Warchol replied she did not believe that any of her request was ambigu ous or overly broad and made a request for the district records retention schedule

. ( Id . at 7

- 8 .) On Oc t ob er 18, 2021 , A nst a dt advi sed there had been no emails b etween her and the governor, and asked Wa rchol to revise her request for email using a narrower topic than “ pandemic. ” ( Id

. at 8

- 9

. ) On October 20, 2021, Warchol clarified that she wa s “ requesting d o cumentation showing Ms. Kad ee Anstadt has a doctorate degree in the field of Medicin e (MD) , and t hat her request for “ all correspondence dated 08/01/2018

– 11/ 01/2021 in regards to C OVID

- 19 [ excludes ] communication to students and famili es. ” This email p r o vided a few more specific topics of requested corre spondence

. ( Id . at 9

- 10 .) On November 15 , 2021, Anstadt pr ovid ed a s et of HVAC records

. ( Id . at 11.) On November 19, 2021, Warchol stated she had not yet received the records requ ested onCase N o. 202 1

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September 30 th. 1 ( Id

. at 12 .) On December 1, 2021, Anst adt referred Warchol to responsive “ district COVID dat a * * * posted weekly on the district website and [] reported monthly at Board of E d ucation meetings , ” again declined as overly broad the request s for emails , and r eiterated that the office ha d no records respons ive to the “ practice of medicin e ” questions

. ( Id . at 4

- 5 ; Respon se, Ans tadt Aff. , Exh. 8

. ) The parties ended most of the se communications with offers to meet and discuss the re quest , with no indication that a ny meeting ever took place. {¶3} O n D ecemb er 6 , 2021 , Warchol filed a comp laint pursuant to R.C. 2743. 75 alleging denial of acces s to pub li c records by the Superintendent in violat ion of R.C. 149.43(B)

. Following partially successful m ediation, the Superintend e nt filed a motion to dismiss (Response) on August 9 , 2022

. Burden of P roof {¶4} The requester i n an action under R.C. 2743.75 bears an overall burden to

e sta b li sh a public records violation by clear and convin cing ev idence. Hurt v. Liberty Twp ., 201 7

- Ohio

- 782 0 , 97 N.E.3d 115 3, ¶ 27

- 30 (5th Dist.). The requester bears a n initial b urden of production “to plead and prove facts showing that the requester sought an id ent ifi a ble public record pursuant to R.C. 149.43( B)(1) a nd that the public offi ce or
reco rds cu stod i an did not mak e the record available.” Welsh

- Huggins v. Jefferson Cty

. Prosecutor’s Office , 163 Ohio St.3d 337, 2020

- Ohio

- 5371, 170 N.E.3d 768, ¶ 33. Motion to Di smiss {¶5} To dismiss a complaint for fa ilure t o s tate a claim upon which relief can be g rante d, i t must appear beyond doubt the clai ma nt can prove no set of f ac ts warranting relief after all fac tual alle gat ions of the complaint are p resumed true an d all reason a ble inf ere nces are made in cl aiman t ’ s f avor. State ex rel . Find lay Publish ing Co. v. Sch roed e r ,

1 Additional text following Warchol ’ s signature line in this email (Comp laint at 12

- 13 ) con sist s of questions and requests for information in a “ form ” that s he asks th e board of education to re view and sign. Because this form is not dire ctly ref erenced in the text of the complaint and does not appear at all in the Superintendent ’ s copy of the email (Response, An sta dt Aff

. – Exh. 7), the Speci al M aster does not construe this material as either a proper public records request , or properly p led as a claim her ein.Case N o. 202 1

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76 Ohio St.3 d 580, 581, 669 N.E .2 d 835 (1996). As long a s t here is a set of facts consistent with the com plai nt that would allow the claimant to re cover, dismi s sal for fa ilure to state a cl aim i s not prope r. State ex rel. V .K.B. v. Sm ith , 138 Ohio St.3 d 84, 2013

- Ohio

5477, 3 N.E.3d 1184 , ¶ 10. The unsupported c o nclusions of a complaint are, howeve r, not ad mit ted and are insufficient to withstand a mo tion to dism iss

. Mit chell v. Lawson Milk Co ., 4 0 Ohi o St.3 d 1 90, 193, 532 N. E.2d 753 (1 988)

. {¶6} The Supe rint e ndent moves to dismiss the complaint on the grounds that, 1) Warchol ’ s request was made under the federal Freedom of Information Act and is therefore unen for ceable against a state public office, 2) Warchol ’ s claims are moot to the extent records have been produced , a nd 3) the ambiguous and/or overly broad portions of a request do not create a duty for a public office to produce records

. The FOIA Does Not Apply to Ohio Government Offices [T] he FOIA does not apply to nonfederal entities like Akron. Sections 5 51(1) a nd 552(f), Title 5, U.S. Code; State ex rel. Ci ncinnati Enquirer v. Dupuis , 98 Ohio St.3d 126, 2002 Ohio 7041, 781 N.E.2d 163, P32. State ex rel. Carr v. Akron, 112 Ohio St. 3d 351, 2006

- Ohio

- 6714, 859 N.E.2d 948, ¶ 33

. Accord State ex rel. Warren v. Warn er , 84 Ohio St. 3d 432, 433 , 704 N.E.2d 1228 (1999) ; State ex rel. Findlay Publishing Co. v. Schroeder , 76 Ohio St. 3d 580, 582, 669 N .E.2d 835 (1996) ; State v. Heid , 4 th Dist. Scioto No. 14CA3655 , 2015

- Ohio

- 1467 , ¶ 9

- 10

. Warchol ’ s first message of S eptembe r 30, 2021 , is titled FOIA REQUEST and begins :

“ This is a request for information filed under the Freedom of Information Act. ” (Complaint at 3 .) Th e request makes no mention of the Ohio Public Records Act, R.C. 149.43 , and
ne ar its conclusion adds, “ I antic ipate you contacting me per section 16 of the FOIA; Duty to provide advice and assistance

. ” ( Id

. at 4. ) Despite the Superintendent ’ s response that FOIA “ does not a pply to Washington Local Schools ” ( Id . at 5 ), Warchol did not corre ct her basis for t he reque st in subsequent correspondence other than to offer “ my apologies for you actin g like the same thing isn ’ t in Ohio ’ s Revi sed Code 149.43 section (B)(2) ” (Complaint at 8 ) , and noting in the complaint that the Superintendent stated “ she did notCase N o. 202 1

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- REPOR T A ND REC OMMENDATION

unde r stand th e information I was requesting and that i t was based of f of R.C. 149.43,

‘ ambiguou s and overly broad

. ’ ” ( Id

. at 1.) {¶7} A fter noting the FOIA issue , t he Superintendent advise d Warchol of defenses that she believed would apply were the request made und e r the Oh io Public Records Act b ut then attempted to provide responsive records

. (Complaint at 6

– 10/6/21 email.) Although her wor ding is not clea r, W archol then appeared to concede that the request must be made under the Public Records Act and the Superi n t endent appea r ed to accept that the request was now properly made under Ohio law . T he Special Master therefore recommends the court deny the motion to dismiss based on this ground. {¶8} The Special Master finds that mootness , ambiguity, a nd over brea dth are pa r tially apparent on the face of the compl aint, as noted below. However, for concision and b ecause the matter ha s been fully briefed, the Special Master recommends the court deny the motion s to dismiss on these grounds and proceed on the merits. M oot ne ss {¶9} I n an a ction to enfor ce R.C. 149.43(B), a public off ice may pro duce request ed records prior to the court’s decision and thereby render the claim for production m o ot. State ex rel. Strik

er v. Smi th , 1 29 Ohio St.3d 168, 2011

- Ohio

- 2878 , 950 N.E.2d 952, ¶ 2 2. Th e record shows the Superintende nt pro vid ed the following records to Warchol prior to the filing of the complaint: November 15, 202 1

– approximately 70 pa ges of documentation in regards to HVAC system maintenance logs . (Compla int at 11 ; Response, Ans tadt Af f . at ¶ 7 .) The Special Ma ster finds the cla im is moot as to the requests for these records. {¶10} The Superintendent attests that she provided the following additional records to Warchol after the filing of the complaint : January 25, 2 022

– di strict rec ord s re t ention schedule. (Response, Anstadt Aff. at ¶ 10 .) April ? , 2022

– 5, 784 pages of email s responsive to search terms requested by W archol. (Response, A nsta dt Aff. at ¶ 12.)Case N o. 202 1

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- REPOR T A ND REC OMMENDATION

May ?, 2022

– tw elve pages of email s responsive to search t erms requested by W archo l . (Response, A nsta dt Aff. at ¶ 1 4 .) December 1, 2021

– W it h regard to “ documents regarding the following topic : COVID

- 19 , ” t he Sup erintendent advise d Warc hol, “ The d ecisions the district is making are based on local a [ si c ] distri ct COVID dat a

. Tha t data i s posted weekly on the dis tr ict websi te and is reported monthly at Board of Education meeting

. ” (Complai nt at 4 .) The complaint is thus moot to the extent these records satisfy request s for the di strict records retention schedule ( Complaint at 8 ) , a set o f narro we d communication re quest s made during mediation , 2 and C OVID

- 19 data on which district plans were made. {¶11} N ew requ est s made during public records litigation do not relate back to the
c omplaint. T here is no cause of action b as ed on violation of R .C. 1 4 9.43(B) unless the request was made and denied pr ior to the compl ai nt. See Strothers v. No rton, 131 O hio St.3d 3 59, 2012

- O h io

- 1007, 965 N.E.2d 282, ¶ 14; State ex rel. Bardwell v . Ohio Atty. Gen ., 18 1 Ohio Ap p.3d 661, 2 009

- Ohio

- 12 65, 9 10 N.E.2d 504 , ¶ 5 ( 1 0th Dist. )

. Warchol ’ s requests as revised in mediation are therefore not before the court . Nor do they const it ut e eviden c e of the nature or validity of h er initial request s. Non
- Existent Records {¶12} “ Publ ic records ” means records kept by a public o ffice

. R. C. 149.43(A)(1)

. A p ub lic office has no duty to provide recor ds that do not exist, o r that it does n o t pos s e ss. St ate e x rel. Good

en v. Kag el

, 13 8 Ohio S t.3d 343, 201 4

- Ohio

- 869, 6 N. E .3d 47 1, ¶ 5, 8

- 9. A n off ice m ay establ i sh by aff idavit that all existi ng records have b een p ro vided. State ex rel. Fant v. Flaherty , 62 Ohio St.3d 426, 427 , 583 N. E.2d 1313 (1992 ) ; State ex r el. Toledo Blade Co. v. To ledo

- Luc as Cty

. Port Auth ., 121 Ohio S t.3d 5 37, 200 9

- Ohio

- 17 67, 905 N.E.2d 12 2 1, ¶ 15. The public offi ce must c learly deny the existence of the specifically

2 There is no evidence Wa rchol ha s waived mediation communications privilege or confidentiality p rovisions of R.C. 2710

. 03 and .07

. (Sur

- re ply at 2

- 3.) See R.C. 2 710.02 (A)(1); L.C.C.R. Rule 22(A) and (G)

. Becau se respondent ’ s disclo sure doe s little more than demonstrate that the part ies are capable of greater cooperation and clarification , and there is no apparent pr ejudice to Warchol , the Special Master d oes not r ecomme nd imposing any p enalty for t h is violation.Case N o. 202 1

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requested record s

. State ex rel. Morg a n v. Ne w Lexingt o n , 112 Ohio St. 3d 33 , 2006

- Ohio

6365, 857 N. E.2d 1208, ¶ 56

- 57. {¶13} On October 6, 2021, t he Superintende nt advised Warchol there were no district re cords r ega rding medical degrees: Your request for “ all documentation showin g Superintendent Kadee Anstadt, as well as all governing members of the WLS School Board, have the rights under the law to prescribe, adv is e, rec ommend, administer, OR dispense a dr ug or m edi cin e or a medical device or a treatment of any nature for the cure of a d isease or infirmity and if compensation was received directly or indirectly for said drugs, medicine, medical devices or tr eatmen ts ” The district does not prescribe or dispe nse med ica l devi ces or treatments for the cure of disease. When auth orized by a st udent ’ s parent or guardian, as confi rmed by the pres cribing provider, the school district is legally authori zed to a dminister medi ca tions. Neither Superintendent Anst adt nor the mem ber s of the school board receive compensation for that activity. The records regarding students who receive medication at s chool are protected from disclosure by both Ohio and fed eral laws, Ohio Revised Co de § 3319.321, 20 USC § 1232g. There fore the dis tri ct has no records to disclose that would be responsive to that portion of your request, whether made under FOIA, or if you submit a request under Ohio law. (Co mpla int at 5

- 6 ; reaffirmed at Complaint , p. 9. ) On Octob er 18, 2021 , the Superintendent ad vi sed t hat “ I have not sent or received a single email directly from the Governor of Ohio so there is no record to send you

. ” ( Complaint at 9.) {¶14} When a public office asserts t ha t it has no additional records in its pos se ssion , the burden i s on the requeste r to pr ove by clear and convincin g evidence tha t the r ecords it requ e s ts do e xis t and are maintained by th at off ice. S tate ex rel. Cordell v. Pade n , 156 Ohio St. 3d 39 4 2019

- Oh io

- 121 6, 128 N.E.3d 179, ¶ 5

- 10

. T he office ’ s assertion may be rebut te d by eviden ce show ing a genuine issue o f fact, but a req u ester ’ s
mere bel ief base d on in f e r ence and s peculation does n ot constitu te the evidence
nec essary to establish tha t a docum ent ex is ts as a record

. S tat e ex r el. McC affrey v

. Mahoning Cty. Prosecutor ’ s Of f ice , 1 33 Ohio St. 3d 139, 2012

- Ohio

- 424 6, 976 N.E.2d 877 , ¶ 2 2

- 26

.Case N o. 202 1

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{¶15} I n response to the above notifications , Warchol has not shown or a s serted in subsequent correspondence or the complaint that additional records exist responsive to these r eq uest s. T he Special Ma ster fi nd s t hat Warchol has not shown by clear an d convincing evidence that additio na l records exist re sponsiv e to th e above request s in the han ds of the Superintendent

. T his is not an affirmative finding that no such records exist
o r e ver existed , only th at Warc hol h as failed t o m eet her burden to prove their exis tence in a t the time of th is request by t h e r equi site qu a ntum of evidence

. No Obligation to Prov ide Answers to Questions or Search for and Assemble Dis persed Information {¶16} Re qu ests such as “ include any re sourc es or e ducational material in which the [COVID

- 19 response] plan was set forth upon [ sic ] ” (Complaint at 4 ), and “ P roof that masks are s afe and effective ” ( Id . at 9 ) , and “ Proof that Vaccines are safe and effective ” ( Id .) a re not authentic publ ic reco rds r equests , but impr oper requests for information

. Under the public records stat ute, the government has the duty to supply records, not information, and the government has no duty to create record s to meet a requester ’ s dem an d. State ex rel. Lanh am v. O hio A dult Parole Auth ., 80 Ohio St.3d 425, 1997 Ohio 104, 687 N.E.2d 283; State ex rel. Mayrides v. Whitehall , 62 Ohio St.3d 203, 580 N.E.2d 1089 (1991); State ex rel. Warren v. Warner , 84 Ohio St.3d 432, 1999 Ohio 475, 704 N. E. 2d 1228; and State ex rel. F ant v . Tober , 8th Dist. No. 63737, 1993 Ohio App. LEXIS 2591. Sta te e x rel. Mora b ito v. Clevel and , 8th Dis t . Cuy ah oga No. 98829 , 2012

- Oh i o - 6012, ¶ 1 4

. The Special Master con cludes that the Superinten dent had no duty under the P ublic Records Act to research and c ompile information in response to these quest ion s. Ambiguous an d O verly B road Reque st s In general , N o pleading of too much expense , or too much time involved, or too muc h interference with normal duties, can be used by the respondent to e v ade the pub lic ’ s righ t to inspect and obtain a c opy of pu blic records within a reasonable time. The respondent is un d er a statutory duty to organiz e his office and employ his staff in su ch a way that his office will be able to makeCase N o. 202 1

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these records availab le for inspect ion a nd to provide cop ies when reques ted withi n a reasonable time. State ex rel . Beacon J ournal P ub. Co. v . Andrews , 48 Ohio St.2d 283, 2 89, 358 N.E.2d 565 (1976). However, an ambiguous or overly broad request does not trigger an office ’ s dut y t o make reco rds a vaila ble in the first instance

. It is “the responsibility of the pers on wh o wishe s to in spe ct and/or copy records to identify with r easonable clarity the records at issue.” State ex rel. Zidoni s v . Columbus Sta te Comm unity College , 133 O hi o St.3d 122, 2012

- Ohi o - 42 2 8, 976 N. E.2d 861, ¶ 2 1

. A reque st that does not reasona bly ident ify wha t public r ecords are being requested may be denied

. R.C. 149.43(B)(2)

. See generally Gupta v. Cleveland

, Ct. of C l. No. 2017

- 00840PQ, 2018

- Ohio

- 3475, ¶ 22

- 2 9

. Judicial de termi natio n of wh et her an offi c e has proper ly den ied a reques t as ambig uous or ov erly broad is ba s ed on th e facts and circumstanc es in e a ch case. Zidonis at ¶ 26. {¶17} The portions of Warchol ’ s r equest that have not been rendered moot th ro ugh production of reco rds a re am biguous and overly broad in multiple, overlapping w ays. Her first “ request for information ” seek s “ a ll docu ments containing inf ormatio n regarding

” the very broad topics of COVID

- 19, unspecified “ Ce rtifications, ” “ School Fu nd ing , ” and

“ HVAC system main tenan ce , ” unbounded by any time period in which the records were created or received

. (Complaint at 3

- 4 .) The next se cti on of the request is for e - mail
commu nication regarding the same topics and all correspondence betw een the S u perintenden t , various state offi ces and officials, and “ all servi ng members of the school board and any other pertinent entity. ” ( Id .) T he second full paragraph of the request requests “ copies of all corresponden ce, ” i .e. , paper, electronic, and any othe r fixed

m edium, for a th ree - y ear p eriod “ in regards to ” any response plan and funding in connection with the COVID

- 19 pandemic

. {¶18} “ All documents containing information regarding ” is a phrase o f comple te i n clusion that improperly ask s for everything to do wit h th ese broad area s of s chool dist rict health and saf e ty

.Case N o. 202 1

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A general request, which asks for everythi ng, is not only vague and meaningless, but essentially asks for nothing. At the very least, suc h a requ est is unenforceable bec ause o f it s overbreadth. At t h e very best, such a req uest i s no t sufficiently understandable so that its merit can be properly co nsidered. State ex rel. Zauderer v. Jo seph , 62 Ohio App.3d 752, 756, 577 N.E.2d 444 (10th Dist. 1989). After n otin g that the relator ’ s request for all compl ai nt and litigation f ile s “ co vered a le ngth y period o f t ime

– at le ast si x years, ” the Suprem e Court in Zidoni s affirmed th at [i] n identifying records for purpose s of presenting a viable request, the Public Records Act “ does not contemplate that any indivi du al has the right to a c ompl ete d uplicatio n of volum i nous files ke pt by government agencies. ” State ex rel. Warren Ne wspapers, Inc. v. Hutson , 70 Ohio St. 3d 619 , 624, 1994 Ohio 5, 640 N.E.2d 174 (1994), citing St ate ex rel. Zauderer v. Joseph , 62 Ohio Ap p. 3d 752, 577 N.E.2d 444 (198 9). Z idoni s at ¶ 21

. See also State ex rel. Dissell v. Cleveland , 8 th Dist. Cuyahoga No. 110425, 2021

- Ohio

- 2937, ¶ 20 ; Sal e mi v. Cleveland Metroparks , 8th Dis t. Cuyahoga No. 100761, 2014

- Ohio

- 391 4, ¶ 26 ( all checks, agreements, m ee ting minutes, emails , and lett ers relating to golf c ourse marketing ). Compare State ex rel. Ca r r v. London Corr. Inst

., 144 Ohio St.3d 211, 2015

- Oh i o - 2363, 41 N.E.3d 1203, ¶ 25

- 29 ( request for communication between one person and a specific department fo r two months was found not overl y broad). {¶19} T he Superintendent attests t hat the original request for communications on these topics would result in more than 100,000 emails

. ( Response, Anstadt Aff. at ¶ 5

. ) She noted that even the word com bination request s proposed during mediat ion o ften return ed tens of thous ands of pages . ( Id . at ¶ 11. ) Based on the evidence sub mitted, the Special Master finds that Warchol ’ s request amoun t s to a n improper dema nd for the
co mplete duplicatio n of voluminous files. {¶20} Separately, a publi c recor ds requ e st i s une nforceable i f it is too vague or i ndefinite to be properly acted on by the records holder. State ex rel. Dehle r v. Spatn y , 11th Dist. No. 2009

- T

- 00 75, 2010

- Ohio

- 3052, ¶ 4, 18, aff ’ d , 127 Oh io St.3d 312, 2010

-Case N o. 202 1

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- REPOR T A ND REC OMMENDATION

Ohio

- 5711, 939 N.E.2d 83 1. As u sed her e , th e dem and for rec o rds “ regarding ” or “ in regards to ” the listed broad topics is indepen dently suf ficient to render the r eque st ambiguous and overly broad. Indeed, wit h out su fficient specificity as to the particular

r ecords sou ght a court ca nnot issue a n ord er fo r production of specific responsive records

or determine and enfor ce non - compliance therewi th

. Sta te e x rel. Di llery v. Icsman , 92 Oh io St. 3d 31 2, 314 , 7 50 N.E.2d 156 (20 01)

. Accord State e x r el . Ch ast een v. Oh io De

p t

. of Reh a b

. & Corr., 10 th Dis t. Fr ankli n No. 13

- A P

- 779, 2014

- Ohio

- 1848, ¶ 23

- 27; De C r ane v. Clev eland , Ct. of C l. No. 2018

- 003 58PQ, 2018

- Ohio

- 3 651, ¶ 6

- 7 , adopted by DeCran e v. C levelan d

, Ct. of Cl . No. 2018

- 00358PQ, 2018

- Ohio

- 4 3 63 , ci te d wit h approv a l in Barnes v

. Cleveland Div. of R ecord s Adm in ., 2021

- Oh io

- 212 , 167 N.E.3d 51 , ¶ 43 ( 8 th D i s t.)

. C ompar e State ex re l. Kest er s on v

. Kent State Univ

. , 156 O hio St.3d 22 , 2018

- Ohi o - 5110 , 123 N.E. 3d 8 95 , ¶ 23

- 2 7 ( A requ est for e mail is n ot overl y broad if it i s
reas onab l y c ircumscribe d by tim e per io d , subject m atte r, author or sender/re cipient , an d th e li ke )

. T he special m aster f inds t h a t th e request for three years of all communication records “ regarding ” or “ in regards to ” a list of broad t op ics is improperly ambiguous and f ail s to r ea sonab l y ide ntify the records sought

. {¶21} A request is ambiguous and overly broad when i t amounts to a research assig nment throug h out volumino us records of the office

. Warchol ’ s request requir es the Superintendent to comb t hrough all communicat ion s record s to evalu ate th eir “ relation ” to any as pect of th e topics

- rathe r tha n retrieve communications reasonably identified by a short time frame, specific correspondents, clear subject m a t ter or sear c h terms , and th e like

. A p ublic office is not obliged t o individu ally “ seek out and retrieve those records which would con tain the inf ormation of intere st to the requester. ” State ex rel. F ant v. To ber

, 8th Dist. Cuyahoga No. 63737, 1 993 Oh io App. LEXIS 2591, *3 (April 28, 1 993). S ee Shaughnessy v. Cleveland , 14 9 Ohio St.3d 612, 2 016

- Ohio

- 8447, 76 N.E.3d 1171, ¶ 10

- 11, 19

- 22 (request to retrieve rec ords c ontaining selected information, and c ull out t he ones requester did not want); Sta te ex rel. O ’ Shea & Assocs. Co., L.P.A. v . Cuya h ogaCase N o. 202 1

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Metro. Hous. Auth ., 190 O hi o App.3d 218, 2010

- Ohio

- 3416, ¶ 7

- 11, 941 N.E.2d 807 (8th Dist.) (request for records con tainin g information about personal injury c laims), r ev ’ d in part on other grounds, 131 O hio St . 3d 149, 201 2

- Ohio

- 115, 962 N.E.2d 297; S tate ex rel. Morgan v. Strick

la nd , 121 Ohio St.3d 600, 2009

- Ohio

- 1901, 906 N.E.2d 1105, ¶ 14

- 15 (request for “ [a]ny and all em ail communications * * * which refere nce * * * the

‘ evidence

- based model ’ or educa tion f unding in gen eral ” ) (first ellipsis sic). A request for communications is ambiguous or overl y br oad wh en it identifies correspondents only as belongin g to titles, groups or categories for which r esearch is required to establish their membership. State ex rel. Oriana Ho use, I nc. v. Montgomer y , 10t h Dist. Franklin N os. 04 AP

- 492 , 04AP

- 504, 200 5

- Ohio

- 337 7, ¶ 9 , overturned on other grounds, 107 Ohio St. 3d 1 694, 2005

- Ohio

- 6763, 840 N.E.2d 201; G annett GP Media, Inc. v. Ohio Dept. of Pub. S afety , Ct. of Cl. No. 2017

- 00051

- PQ, 2017

- Ohio

- 4247, ¶ 11. {¶22} A broad discovery

- st y le de mand to c ond uct an of f i cewide se arch for records is often improper whe n submitted as a pu blic records reques t. State ex rel. Thomas v. Ohio St a te Univ . 71 Ohio St.3d 245, 24 6, 1994

- Ohio

- 261, 643 N.E

. 2d 12 6 (1994), c i ted wit h ap proval in State ex rel. Shaughnessy v. C leveland , 1 49 Ohio St .3d 612, 2016

- Ohio

8447, 76 N.E.3d 117 1, ¶ 10; State e x r el. T homas v. Ohio State Univ . 70 O hio St. 3d 1438, 6 3 8 N.E.2d 1041 (1994) ; G upta v. Cleveland , Ct. of Cl . No

. 2017

- 00840PQ, 20 18

- Ohio

- 3475, ¶ 22. On their face, Warchol ’ s re qu est s make swe eping , dis covery - sty le demand s rather than reaso nably identifying the particular rec ords sought

. T he y require t he Superintendent to c o mb th ro ugh all of fice records for communic ations that are in any way “ relat ed to ” broad sub ject s , regardless of a record ’ s locati on or the na tu re of its

“ relation ” to the functi on s , operations, re lation s hips, communicati ons , et c. refer enced in the request s

. Zidoni

s at ¶ 21, 26 ; Sta te e

x rel. Dillery v. Icsman , 92 Ohio St. 3d 312, 314, 750 N.E.2 d 156 (20 01)

. Accord State ex rel . Chast ee n v. Ohio De

p t

. of Rehab. & Corr., 10 th Dist. Franklin No. 13

- A P

- 779, 2 0 14

- Oh io

- 1848, ¶ 2 3

- 27; D e C rane v. Cle veland , Ct. of Cl. No. 2 018

- 00358PQ, 2018

- Ohio

- 3651, ¶ 1 , ado pted by DeCrane v. Cleveland , Ct.Case N o. 202 1

- 0 0 69 8 PQ

- 13

- REPOR T A ND REC OMMENDATION

of Cl . No. 2018

- 00358PQ, 2018

- Ohio

- 4363 , ci ted wit h a pprov al in Ba rnes v. Cleveland Div. of Record

s Admin ., 2021

- Oh io

- 212 , 1 67 N. E.3d 51 , ¶ 4 3 ( 8 th Di st.)

. For the re asons set forth abo ve , the S pecial M aster finds tha t the September 30 , 2021 request and follow

up communications , other than as noted below, ar e ambiguous, overly broad, and f ail to
rea sonab ly identify the records sou ght. Embedded Reques t {¶23} Part of Warch ol ’ s request narrow ed her overly broa d request for “ all corresponden ce dated 08/01/2018

– 11/ 01/21 in regards to * * * Grant Funding ” to specif y t he following : Gr a nt funding under ESSER, ARP ESSER, as well as GEER funding t o include but not limited to the us e of said funds up until t his request whet her it be a pending approval or purchased. ( C ompl aint at 4 .) Warchol further clarified this request as including only correspondence regarding ,

- A mount of funds received

- A ny stip ul ations of funding

- P ending a pprova l of funds

- P revious usage of funds (Complaint at 10.) Although the request i s worded as one for records over a period of three years, th e Super int endent advises that the referenced funds did not become available until sometime in early 2020, reducing the effective time period t o a year and a half. (Response a t 3.) The Special Master finds that this embedded request for records of the amoun t s and use of funds from specific grant funding sources during a limited period is sufficiently specific to “ reasonably identify what public reco rd s are bein g requested. ” R.C. 149.43(B)(2). The Superintendent has not asserted any exemption for th ese record s, and the y must therefore be produced. Further Revision of RequestCase N o. 202 1

- 0 0 69 8 PQ

- 14

- REPOR T A ND REC OMMENDATION

{¶24} T h is con c lusion s in this report do not restrict Warchol f rom filing properly revi sed reques t s for additio na l records. During medi a tion Warchol provided n arro wed request s and t he Superinten dent pr odu ced thousands of pages of responsive records. U nder s imilar circumst ances, co urts have encoura g e d parties to persev er e t o achiev e a
mu tua lly acceptable resolu tio n of curr en tly deficient recor ds r eques t s

. See State ex rel. Morgan v. Strickland

, 12 1 Oh io St

. 3d 600, 2009

- Ohio

- 1 901, 9 06 N.E.2d 1105 , ¶ 1 4

- 19

. The parties here have demonstrated th e ability to negotiate, clarify, and produc e at least
so me of the recor ds so ug ht

. The Genera l A ssem b ly prov ides st atutory tool s to optimi z e the scope , sp eed , f o rm at, e co nomy , and deli v ery of pu blic reco rds

. S ee R.C. 149.43( B) (2 ) , (3) , (5), (6), (7) and ( 9 ). The parties are encoura g ed to co operate fully in neg otiating futu re r evisi on s using those tools

. Conclu s ion {¶25} Upon consi deration of the pl e adings and attac h m e nts, th e S pecial M aster
re commen ds t he cour t deny the motion to dismiss on the basis of req uester ’ s initial reli ance on the federal Freedom of Information Act as authority f or her requ ests. The Special Master further recommends the court order respondent t o produ ce all records responsive to the request for specif ied records of ESSER, ARP ESSER, and GEER funding

. T he Special Master further recommends the cou rt find that all sufficiently s pecific requests have been rendered moot and deny t he claim for any fur ther pr o du ction of records

. Th e Spe cial Master recommends the court f i nd that no other violation of R.C

. 149.43(B ) has been shown

. I t i s recommend ed co s ts be assessed eq u ally be t ween the parties

. {¶26} P ur

suan t to R.C. 2 743.75(F)( 2), either party may file a wri tten ob je c ti on with the cl erk of the Cou rt of C laims of O h io within seven (7) busin ess days aft er rece i vi

ng th is
re port an d r

e commendat

i on. Any objectio n shall b e specif i c and s t ate with particulari ty all grounds fo r the obje ction. A party shall not assign as err or on a p peal the co urt’s adoptionCase N o. 202 1

- 0 0 69 8 PQ

- 15

- REPOR T A ND REC OMMENDATION

of an y factual f

i ndings or legal conclusio ns in this r eport a n d recom menda tion unles s a timel y objection was f

i led there to. R.C. 2743.75 ( G)(1).

JEFF C LARK Special Ma ster

Filed August 31 , 2022 Sent to S.C . Repor ter 9/ 8/ 22