[Cite as Rose v. Ohio Dept. of Commerce , 2023

- Ohio

- 1488.]

IN THE COURT OF CLAIMS OF OH IO

{¶1} This matter is before the Court for a R.C. 2743.75(F)(1) report and

rec ommendation. The special master recommends that:

- Respondent’s motion to dismiss be denied.

- Respondent be ordered to produce all records generated in connection with Requester’s Decemb er , 2021 complaint that have not alread y been produced.

- Requester re cov er s his filing fees and his costs in this action.

I. Background. {¶2} This case arises from the Department of Commerce’s (the “Department”) response to Requester Joseph R ose’s complaint about an illegal mobile home park.
Mr. Ro se filed that complaint in Dec emb er of 2021. The complaint was sent to Bryant Hillman, a Department official. Mr. Rose heard nothing from the Department for more than five months and then provided ad ditional information to Mr. Hillman, including the name

o f the park’s owner, the Societ y o f Sportsmen, Inc. Mr. Hillman replied with a non

substantive response. Respondent’s Evidence , filed March 1, 2023, pp. 4

- 7. 1 {¶3} After two more months passed without any contact, Mr. Rose made his first public records reques t, apparently to find out wh at a c tion the Department had taken on his complaint. On July 22, 2022, he emailed Mr. Hillman (the official he filed the complai nt

1 All references to specific pages of m atters fil ed in this case ar e to pages of the PDF copies posted on the Court’s docket, as opposed to any internal pagination of those filings. JOSEPH ROY ROSE
Requester

v.

OHIO DEPARTMENT OF COMMERCE
Respondent Case No. 2022

- 00711PQ
Special Master Todd Marti

RE PORT AND RECOMMENDATIONC a se No. 2022

- 00711PQ

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- REPORT AND RECOMMENDATION

with), noting that it had “been a while since we talked about the Society of Sportsmen i nc. Club, ” the organization he ear lier i d e ntified to Mr. Hillman. He continued, noting that “[i]t ’ s now been about 7 Months since I first made my complaint with your agency,” and then made a “ R ecords Request for all of the records generated so far with your agency please[.]” (sic) The Department
, thro u g h counsel, sent what appears to be a boilerplate response denying the request as ambiguous and overly broad. Id . at pp. 9 , 11. {¶4} Mr. Rose replied that evening, clarifying that he was seeking records “generate[d] in 7 m onths since I put the complai nt i n” an d again referenced Mr. Hillman, the official he dealt with in connection with the complaint. Mr. Rose also asked to come to the Department to review “these records.” The Department’s response indicated that it
understo od the type of information Mr . Ro se so u ght, and identified several records containing some of that information, but curiously did not make records available un til months after this case was filed. Id . at pp. 13

- 14. {¶5} That pattern continued through August an d September of 2022. Mr. Rose sen t

sev e ral more emails to the Department seeking records. All of them referred to his complaint and all mentioned Mr. Hillman, the official the complaint was originally directed
to. Almost all those communications also refer enced the relevant time fr ame, th e tim e that had elapsed since he filed the complaint. Id . at pp. 15, 17, 20, 23. Although, as discussed below, the Department understood what information Mr. Rose sought, it repeatedly denied his requests, claiming they wer e ambiguous and overbroad, appare nt ly b ecause Mr. Rose used the words “any ” and “ all” in his requests. Id

. at pp. 14

- 25. {¶6} Mr. Rose had had enough by October an d filed this case. Id . at 27, 29; Complaint , p. 1. Mediation was unsuccessful and the Court set a schedule for filing
eviden ce and me mor a nda. Order , entered February 17, 2023. {¶7} The Department has filed what appears to be a complete copy of the correspondence between it and Mr. Rose. Respondent’s Evidence

. It s briefing seeks dismissal pursuant to Civ. R . 12(B)(6), on mootness g rounds, an d o n the merits. Respondent, Ohio Department of Commerce’s Motion to Dismiss and Response to Complaint , filed March 15, 2023. II. Analysis.
A. The Department’s Civ. R. 12(B)(6) motion should be denied.C a se No. 2022

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- REPORT AND RECOMMENDATION

{¶8} The special master recommends that the Depa rtment’s C iv. R . 12(B)(6) motion be denied, for two reaso ns. {¶9} First, Mr. Rose alleged sufficient facts to state a claim. A party invoking R.C. 2743.75 must “ plead * * * facts showing that the requester sought an identifiable public re cord pursuant to R.C. 149.43(B)( 1 ) an d that the public office * * * did not make
th e record available.” Welsh

- Huggins v. Jefferson Cty. Prosecutor’s Office , 163 Ohio St.3d 337, 2020

- Ohio

- 5371, 170 N.E.3d 768, ¶ 33. Mr. Rose pled that he made multiple publi c records requests. Th ose reques t s re a sonably identified the records he wanted, as discussed below. Mr. Rose also pled that his requests were denied. Complaint , pp. 1

- 2, 5, 7, 9

- 10, 12. That stated a claim

. {¶10} Second, the Department’s argument that dismissal is appropriate because
Mr. Rose d id n o t file evidence in response to the February 17, 2022
, order goes beyond the scope of the rule the Department invokes. Civ. R. 12(B)(6) goes to the sufficiency of
the complaint, not to evidence that is or is not submitte d later in the case.

B. T he Depa r tment has not proven mootness

. {¶11} The special master recommends that the Department’s mootness argument be rejected for want of proof. {¶12} As a general rule, the part y asserting mootness has the burden of proving facts est ablishing that defense. Heartl and of P o rtsmouth, OH, LLC v. McHugh Fuller Law Group, PLLC , 2017

- Ohio

- 666, 85 N.E.3d 191, ¶ 17 (4th Dist.). That burden applies in the specific context of public records cases; a re spondent asserting mootness must provide
evi dence that it produced the rec ord s at i ssue. State ex rel. Strothers v. Keenon , 2016

- Ohio

- 405, 59 N.E.3d 556, ¶ 40 (8th Dist.); State ex rel. Conley v. Park , 5th Dist. Stark No. 2014CA00169, 2016

- Ohio

- 5199, ¶ 17. A party asserting that a claim for producti on of
records was mooted must pro ve th a t all responsive records were produced. Compare State ex rel. Toledo Blade Co. v. Toledo

- Lucas Cty. Port Auth ., 121 Ohio St.3d 537, 2009

- Ohio

- 1767, 905 N.E.2d 12 21, ¶¶ 14, 1 5 (claim mooted by proof that all responsive documents were produced) with St ate e x rel. Ellis v. Cleveland Police Forensic Laboratory , 157 Ohio St.3d 483, 2019

- Ohio

- 4201, 137 N.E.3d 1171, ¶ 7 (claim not mooted absent evidence that all responsi ve records w ere produced).C a se No. 2022

- 00711PQ

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- REPORT AND RECOMMENDATION

{¶13} The Department contends that this case is moot because it p rov ided M r. Rose with some records during mediation. That is insufficient in two respects

. {¶14} First, the Department’s evidence does not show that it satisfied Mr. Rose’s
req uests

. In stead, all it shows is that the Department prod uced documents it deemed
respo nsi ve to a request that its counsel framed. Respondent’s Evidence , p. 32. It produced no evidence that Mr. Rose agreed that her reframed request superseded or satisfied his own r equests. Finding mootness on that evidence would be akin to finding
that a cla im for d a mages was satisfied based on a defendant’s unilateral assertion that it paid all that it thought it owed the plaintiff. {¶15} Second, The Department has produced no evid ence that the records it produced constituted the enti re universe of records respon siv e to M r. Rose’s requests

. The record here establishes that his basic request, restated in various forms, is all inclusive; he wan ts every record generated in connection with h is complaint. He initially sought “ al

l of the rec ords” showing what action was ta ken on his complaint. Id. p. 9 (emphasis added). His later communications were equally comprehensive, referencing “materials reco rds * * * generate[d] in the 7 months since I pu t my complaint in” and “files

* * * generat e d s ince I first made my records req uest,” with no limitation as to the types of records sought. Id . at pp. 13, 23. The Department recognized that scope, balking bec ause he sought “all of the records” and “ any” and “all” records tied to his compla int. Id

. a t p p. 11, 18, 22, 26. The Departmen t, however, only produced several discrete types of records provided in response to a narrower request and has provided no evide nce that those
discrete records are all the recor ds responsive to Mr. Rose’s compre hensivel y sco ped requests. {¶16} The Department h as failed to meet its burden of proving mootness . Mr. Rose’s claim therefore remains alive as to any responsive records that have not been produced.

C. Mr. Rose’s requests reasonably i dentified the records he sought, a nd the D ep artment violated R.C. 149.43( B)(1) by refusing his requests. {¶17} R.C. 149.43(B)(1) mandates that “[u]pon request * * * all public records responsive to the request sha ll be promptly * * * made available[.]” There is no d isputeC a se No. 2022

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that what Mr. Rose requ ested w e re public records; the Departme nt has not claimed that he seeks anything excepted from the category of public records. Instead, the Department justifies rebuffing hi s requests by claiming that they were ambiguous or ov er broad
, apparently because th ey used th e words “any” and “all.” {¶18} T hat justification is not persuasive. The substance of those requests, considered in light of the context known to the Department, was not ambiguous because they reasonably identified t he records he asked for. That sub stance a n d context also
avoided overbre adth by providing discernable bounds to the universe of responsive
records. {¶19} R.C.149.43 “does not require perfection in public

- records requests.” State ex rel. Morgan v. City of New Le xington , 112 Ohio St.3d 33, 2006

- Ohio

- 636 5
, 857 N.E.2d 1208, ¶ 37. Inste ad, the standard is reasonableness. An office is obligated to produce records identified with “reasonable clarity,” State ex rel. Kest erson v. Kent State Univ
., 156 Ohio St.3d 22, 2018

- Ohio

- 5110, 123 N.E.3d 895, ¶ 22, and an o f fice may request clarificatio n if the request does not “reasonably identify” the records sought. R.C. 159.43(B)(2). {¶20} The evaluation of whether a request reasonably identifies the records sought
should not made in a vacuum. The responding official should c o nsider “the totality of facts and circumstances,” “the context,” and the “circumstances surrounding” the request

. State ex rel. Zidonis v. Columbus State Community College , 133 Ohio St.3d 122, 2012

- Ohio

- 4228, 97 6 N.E.2d 861, ¶ 26; Morgan , 112 Ohi o St.3d 3 3 , ¶ 33. A request is likely to reasonably identify the records sought if it refers the public office to a specific subject matter, it is sent to or identifies an official with knowledge of that subject matter, a nd it references a relevant time p eriod. I d

. at ¶¶ 33, 35, 37; Kesterson
, 156 Ohio St.3d 22, ¶¶ 25, 26; State ex rel. Bott Law Group, LLC v. Ohio Dept. of Natural Resources
, 10th Dist. Franklin No. 12AP

- 448, 2013

- Ohio

- 5219, ¶ 40; Sinclair Media III, Inc. v . City of Cincinnati , Ct. of Cl. N o. 2018

- 0 1 357PQ, 2019

- Ohio

- 2623, ¶ 8 (M cGrath, J.). Multiple descriptors help the office understand what the requester is seeking. {¶21} Mr. Rose’s requests were reasonable when measured against those
standards.C a se No. 2022

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- REPORT AND RECOMMENDATION

{¶22} The background of Mr. Rose’s requests
, the “the c ontext” an d “circumstances surrounding ” them
, was his complaint about a mobile home park operated by the Society of Sportsmen
, Inc . That complaint was made in December of 202 1 to Bryant Hillman, a specific Department official. R espondent’s Evidence , pp. 4

- 6 . The
D e pa rtment understood that cont ext. Id . at p. 14 (“I see you filed a complaint with our Division that alleged the existence of an unlicensed manufactured home park”); 16 (referencing the “complaint you submitted” and “the property at issue in your co mplaint ” ); 22 (“I see that your compl aint was filed December 3, 2021”). {¶23} Mr. Rose’s requests were directly tied to that background; they each made it
clear that he wanted rec ords related to that complaint. They did so by referen cing that subject matter, an officia l w ith knowledge of that subje ct matter, and the relevant time frame:

- The initial request, made July 20, 2022, referenced the complaint, it was sent

to the very offi cial who had prior knowledge of that matter (Mr. Hillm an) and
identified the releva nt time fr ame (the seven months since the complaint was filed). Id . at p. 9.

- Mr. Rose’s July 27, 2022, response to the Department’s initial rejection again tied the request to his complaint, again identified the official with k nowledge of that matter, and again s e t out the relevant time perio d. Id . at p. 13.

- Mr. Rose reiterated most of those identifiers in his August 4, 2022, email to the Department. It too linked his request to his complaint and identified the official familiar with the complaint. Id . at p. 17.

- Al l three of those links were reiterated in Mr. Rose’s August 29, 2022, email; it communicated that he was seeking records about his complaint, identified the official with knowledge of the complaint, and laid out the rel evant time. Id . at p. 17.

- Mr. Ros e r estated those connectors to a different Department official on September 20, 2022, again directing the Department to his complaint, the official who knew about the co mplaint, and the time frame as identifiers for his requ est. Id

. at p. 23.C a se No. 2022

- 00711PQ

- 7

- REPORT AND RECOMMENDATION

The r equests ’ s yntax may have been less th an perfect, but it bears repeating that the law

“ does not require perfection in public

- records request s.” Morgan , 112 Ohio St.3d 33, ¶ 37. The requests’ content, together with the Department’s understanding of their cont ext,

r ea so nably identified the recor ds the Department should have gathered for Mr. Rose. It violated R.C. 149.43(B)(1) by failing to do so. {¶24} That is not changed by the fact that Mr. Rose used the terms “any” and “all.”
Those words did not add any ambiguity to the r eq uests. To the contrary, th ey clarified the requests’ comprehensive scope. {¶25} Those words did not make the requests overbroad. Altho ugh “any” and “all” can signal overbreadth in some cases, they are not automatically fatal . There is ample precedent enforc in g requests phrased that way when, as here, the requester sets discernable bounds by identifying the subject matter, officials with knowledge of the subject matter, and a relevant time frame. Morgan , 112 Ohio St.3d 33, ¶¶ 8, 10, 12, 31

- 37; Kesterson , 156 Oh io St.3d 22, ¶¶ 2, 25

- 26; St ate ex rel. Cleveland Assn. of Rescue Employees v. City of Cleveland , 8th Dist. Cuyahoga No. 111230, 20 22

- Ohio

- 3043, ¶¶ 2,
13. {¶26} Nor is the outcome changed by the fact t hat the Department would have preferred that Mr. Ros e refr am e d his request to ask for sp ecific records the Department suggested. A requester is not obligated to accept an office’s reformulati on of his request or conform to the office’s preferred terminology if the request is independently sufficient
to iden tify t he r ecords he seeks. Cleveland Assn. of Rescue Employees , 2022

- Ohio

- 3043, ¶¶ 2, 13; Sutelan v. Ohio State Univ ., Ct. of Cl. No. 2019

- 00250PQ, 2019

- Ohio

- 3675, ¶ 15 rejected in other respects, 2019

- Ohi o
- 4026.

D. Costs

. {¶27} R.C. 2743.75(F)(3)(b) provides that th e “aggrieved person shall b e entitled to recover * * * the amount of the filing * * * and any other costs associated with the
actio n[.]” Mr. Rose was aggrieved for the reasons discussed above. He is therefore entitled to recover his filing fee and statu tory costs incurred in this ca se

. III. Conclusion. {¶28} In light of the foregoing the special master recommends th at:C a se No. 2022

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- REPORT AND RECOMMENDATION

A. The Department’s motion to dismiss be denied
B. The Department be ordered to produce all records generated in connection with Mr. Rose’s Dec ember , 2 02 1, complaint that have no t already been produced. C. Mr. Rose recover his filing fee and costs incurred in c onnection with this c ase. {¶29} 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 wi th in seven (7) business day s after receiving this report and recommendation. Any objection shall be specifi c and state with part icularity all grounds for the objection. A party shall not assign as error on appeal the court’s adoption of any factual find

ing s or legal conclusions in t his report and recommendation unless a timely objection was filed thereto. R.C. 2743.75(G)(1).

TODD R. MARTI Special Master

Filed April 7 , 2023 Sent to S.C. Reporter 5/4/23