[Cite as Turner v. Lyndhurst, 2017-Ohio-7129.]

{¶1} On April 24, 2017, requester Elaine Turner filed a complaint under R.C. 

2743.75 alleging denial of access to public records in violation of R.C. 149.43(B) by 

respondent City of Lyndhurst – Mayor’s Office (“Lyndhurst” or “City”). On May 1, 2017, 

the court issued an order requiring Turner to submit a copy of her original public records 

request, along with any written responses or other communications relating to the 

request, as required by R.C. 2743.75(D)(1). On May 16, 2017, Turner filed 34 pages of 

emails and attachments, titled “All Correspondence Case # 2017-00379-PQ.” The case 

proceeded to mediation, and on June 30, 2017, the court was notified that the case was 

not resolved and that mediation was terminated. On July 10, 2017, the City filed its 

response and motion to dismiss. 

{¶2} R.C. 149.43(C) provides that a person allegedly aggrieved by a violation 

of division (B) of that section may either commence a mandamus action, or file 

a complaint under R.C. 2743.75. In mandamus actions alleging violations of 

R.C. 149.43(B), a relator must establish by “clear and convincing evidence” that she is 

entitled to relief. State ex rel. Miller v. Ohio State Hwy. Patrol, 136 Ohio St.3d 350, 

2013-Ohio-3720, ¶ 14. As for actions under R.C. 2743.75 alleging violations of 

R.C. 149.43(B), neither party has suggested that another standard should apply, nor is 

another standard prescribed by statute. R.C. 2743.75(F)(1) states that such claims are 

to be determined through “the ordinary application of statutory law and case law * * *.” 

ELAINE TURNER 

 Requester 

 v. 

CITY OF LYNDHURSTMAYOR’S OFFICE 

 Respondent 

Case No. 2017-00379-PQ 

Special Master Jeffery W. Clark 

REPORT AND RECOMMENDATION 
Case No. 2017-00379-PQ -2- REPORT AND RECOMMENDATION 

Accordingly, the merits of this claim shall be determined under a standard of clear and 

convincing evidence, i.e., “that measure or degree of proof which is more than a mere 

‘preponderance of the evidence,’ but not to the extent of such certainty as is required 

‘beyond a reasonable doubt’ in criminal cases, and which will produce in the mind of the 

trier of facts a firm belief or conviction as to the facts sought to be established.” Cross v. 

Ledford, 161 Ohio St. 469 (1954), paragraph three of the syllabus. 

{¶3} The City moves to dismiss the complaint on the grounds that: 1) the City has 

timely produced all pertinent documents that are responsive to Turner’s requests, 

2) Turner’s requests are for information rather than for specific existing records, and 

3) Turner makes an impermissible request to create new records. In construing a 

motion to dismiss pursuant to Civ.R. 12(B)(6), the court must presume that all factual 

allegations of the complaint are true and make all reasonable inferences in favor of the 

non-moving party. Mitchell v. Lawson Milk Co., 40 Ohio St.3d 190, 192 (1988). Then, 

before the court may dismiss the complaint, it must appear beyond doubt that plaintiff 

can prove no set of facts entitling her to recovery. O'Brien v. Univ. Community Tenants 

Union, Inc., 42 Ohio St.2d 242, 245 (1975). The unsupported conclusions of a complaint 

are, however, not admitted and are insufficient to withstand a motion to dismiss. Mitchell

at 193. 

{¶4} In ruling on the motion to dismiss, the court is mindful that the policy 

underlying the Public Records 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-Ohio1825, ¶ 20. Therefore, R.C. 149.43 must be construed “liberally in favor of broad 

access, and any doubt is resolved in favor of disclosure of public records.” State ex rel. 

Cincinnati Enquirer v. Hamilton Cty., 75 Ohio St.3d 374, 376, 662 N.E.2d 334 (1996). 

{¶5} In an action to enforce R.C. 149.43(B), a public office may produce the 

requested records prior to the court’s decision, and thereby render the claim for 

production of records moot. State ex rel. Striker v. Smith, 129 Ohio St.3d 168, 2011-
Case No. 2017-00379-PQ -3- REPORT AND RECOMMENDATION 

Ohio-2878, ¶ 18-22. A court considering a claim of mootness must first determine what 

records were requested, and then whether all responsive records were provided. 

In the complaint itself, Turner stated: 

a. “After questioning an budget allocated expense after I attended a council 

meeting last winter, I asked for more info on what the 976,000 spent for 

Permanent Improvement Fund 410. I also placed inquiry into the Mayors 

80,000 in “other” expenses.. I finally received expense report stating 

these amounts, with the Mayors hospitalization acounting for 35,000, from 

the mayors private lawyer Paul Murphy but denied any further document 

to me with regard to the DETAILS of permanent improv. fund. I did get a 

roofing contract receipt for 2,000!” (Complaint p. 1.)1

In apparent reference to the same December request, Turner later stated: 

b. “In December of 2016 I asked the mayor for a report of expenditures 

because the year before I remembered there was something like one 

million allocated for a permanent improvement fund * * * After numerous 

emails which felt like playing riddle games with the requesting of the 

correct document, by name, I got it right, and the attorney paul Murphy 

finally granted me the city’s expense report.” (Complaint, p. 3.) 

The complaint then alluded to follow-up questions Turner made to the Mayor and the 

City Attorney to “explain” or “detail” the expense report, and her dissatisfaction with the 

responses they made to those questions. 

{¶6} Turner did not attach to her complaint a copy of “the original records request 

and any written responses or other communications relating to the request from the 

public office or person responsible for public records,” as required by R.C. 

2743.75(D)(1), or indicate whether the request had been verbal or in writing. Her only 

description of the request was that she had asked for “more info” or “a report of 

expenditures,” and the complaint stated that with respect to either formulation of the 

request she had “finally received expense report stating these amounts,” and “I got it 

right, and the attorney paul Murphy finally granted me the city’s expense report.” To 

 1 All spelling, grammar, and punctuation in quotes from the parties’ correspondence are 

reproduced verbatim. 
Case No. 2017-00379-PQ -4- REPORT AND RECOMMENDATION 

clarify this claim, the court issued an order on May 1, 2017 for Turner to provide the 

statutorily required documentation of her request(s), and responses. In response to this 

order, Turner submitted copies of email correspondence with Lyndhurst dated 

December 28, 2016 through May 10, 2017, which revealed the following: 

{¶7} The earliest email is dated December 28, 2016, from Law Director Paul 

Murphy to Turner stating: 

c. “This email will confirm our telephone conversation of this morning. At 

that time I stated I was the Director of Law for the City of Lyndhurst, and in 

that capacity I reply to all public records requests. I was calling to clarify 

your public records request made to Mrs. Kovalchik by voice mail last 

week. Your request for certain records was unclear, and could involve 

many thousands of documents. 

d. As a result of our conversation, I am sending to you the Minutes from the 

only Council Meeting you attended and spoke at last year, March 7. Many 

budgetary items were reported on at that Meeting, and the Minutes may 

jog your memory as to the information you seek. I am also enclosing a 

copy of Ordinance No. 2016-13, which was adopted at that 

Meeting, and again may jog your memory as to the information 

(specifically, $1,000,000.00 in capital improvements) you believe you 

heard discussed. Finally, I am enclosing a copy of the deer survey results 

you previously requested from Mayor Ward. 

e. This completes the City's response to your requests. Any future public 

records requests should be addressed to me. My contact information is 

listed below.” 

At 3:28 PM Turner replied, 

f. “I’m going to need a bit more detail on 410. Also the mayors “other” 

expenses”. 

At 3:38 PM Murphy responded, 

g. “That is not a valid public records request. These documents were 

provided to you, not at your request, but only in my effort to jog your 

memory as to which documents you were referring to in your message, 

since you said you heard references to them at the Council Meeting you 

attended and spoke at. 

Please specify a certain public record, and it will be provided to you if it exists.” 
Case No. 2017-00379-PQ -5- REPORT AND RECOMMENDATION 

At 3:40 PM Turner replied, 

h. “It seems I'm encountering obstruction. No surprise. You will be hearing 

from an attorney.” 

At 4:12 PM Murphy responded, 

i. “Thank you. Please have he or she contact me.” 

Turner concluded the December 28, 2016 correspondence with, 

j. “It will be Dave yost directly.” 

On December 29, Murphy responded, 

k. “Fine. Have Mr. Yost contact me, and we will talk.” 

Later that day, Murphy added, 

l. “I have continued to investigate responses to your public records request 

regarding capital improvements to the Lyndhurst Community Center. The 

most recent contract at the Center involved replacement of the roof in 

2015. Attached for your information is the closeout Change Order which 

reflects the Project, the Contractor and the final Contract amount. The 

legislation approving the Change Order was adopted by Council as 

Ordinance No. 2016-75 on September 19, 2016. 

m. I will do nothing further until I hear from your attorney.” 

{¶8} The evidence submitted in this case does not include the specifics of the 

“public records request made to Mrs. Kovalchik by voice mail last week,” other than a 

general reference in Murphy’s December 29, 2017 email to “your public records request 

regarding capital improvements to the Lyndhurst Community Center,” and his provision 

of a 2015 contract in response to that request. In his affidavit attached to the City’s 

response, Murphy refers to a December 21, 2016 public records inquiry by Turner which 

led to a telephone conversation with him, again in general terms: 

n. “It was apparent from this conversation that Turner was concerned with a 

capital improvement budgetary item totaling one million dollars as well as 

the working of the City’s animal control department.” 

(Murphy Affidavit at ¶ 2.) 
Case No. 2017-00379-PQ -6- REPORT AND RECOMMENDATION 

{¶9} Next, on January 9, 2017 Turner sent an email to Murphy stating that, 

o. “Under Ohio revised code 149 43 (b)(3) you need to express in writing 

denial of requested forms for the mayors personal expenditures separate 

from salary in the year 2016 Also requested is the special improvement 

fund expenses for same year as well as the community center expenses 

itemized. Also the animal control expenses. I have been told by the state 

auditors office, Michelle sty that these docs must be made transparent.” 

At 2:14 the same day, Murphy responded that, 

p. “Your request has not been denied. I simply requested clarification of the 

public records requested, since you were unclear as to which specific 

records you were requesting. The City is not required to answer your 

questions, nor is it required to create records where none exist. 

q. Please request records which actually exist, and they will be provided to 

you. If the records requested do not exist, you will be informed of that as 

well.” 

On January 10, 2017, Turner replied, 

r. “It's clear I won't get what I am asking for, or you will tell me a 2016 mayor 

expense report does not exist, or documents pertaining to the special 

improvement fund or allocation of funds for "animal control" of which 

34,000 was granted, so please admit you are denying it and I can 

proceed.. Thank you.” 

On January 13, 2017, Turner sent an email to Murphy stating, 

s. “Hello, I am still waiting three documents requested previously. 

t. The mayors 2016 annual expense report, including anything additional to 

150,000 salary 

u. Any accounts payable documents or report regarding the animal control 

budget, which was set at 34,000 

v. Any public document regarding special fund 410, for which was budgeted 

1 million, 200,000 

w. Please let me know the status or if these documents do not exist.” 

Murphy responded, 

x. “You have still not requested copies of specific public records, you are 

simply requesting information, which is not the intent of the Statute. The 

City is not required to create a document in order to answer your 
Case No. 2017-00379-PQ -7- REPORT AND RECOMMENDATION 

questions. Please read the Statute, a copy of which is attached to this 

email. 

y. In an attempt to provide to you the public records which may answer your 

questions, attached are the following: 

- a 20 page document captioned “Expense Account Report” dated 

1/04/2017 which identified the departments and the cost centers 

associated with the department (for example, Mayor is #7711, Community 

Center is #4418); 

- a 257 page document captioned “Expense Audit Trail Report” dated 

1/05/17 which details every transaction in 2016. 

{¶10} This completes the City’s response to your request.” 

(Response, Exhibit B.) Notably, despite this court’s May 1, 2017 order directing Turner 

to file “any written responses or other communications relating to the request from the 

city of Lyndhurst,” she failed to submit the above January 13, 2017 email response from 

Murphy with her filing titled “All Correspondence Case # 2017-00379-PQ.” Murphy’s 

concluding email provided her with 277 pages of documents responsive to her request, 

and his statement that provision of these records “completes the City’s response” 

constituted a denial of any remaining request. 

{¶11} On January 20, 2017, Turner sent an email to Lyndhurst Mayor Patrick 

Ward. Without any reference to her receipt of the Expense Account Report and 

Expense Audit Trail Report, Turner posed questions regarding: 

z. “What services does the outsourced animal warden provide for a cost of 

34,000, excluding the 1500 or so for deer killing?” and “What projects 

using 410 permanent improvements were made totaling over 900,000? 

Your law director told me that these documents are not available or failure 

of disclosure, not sure. Making sure that’s correct.” 

(Emphasis added.) At 3:48 PM the same day, Mayor Ward responded by stating, in 

part: 

aa. “Our Director of Law, Mr. Murphy, has been kind enough to copy me on 

his responses to your Public Records Requests. While we believe the 

answers you were seeking can be found in the documents provided he 

went further to suggest you could provide more specifics so that, if there is 
Case No. 2017-00379-PQ -8- REPORT AND RECOMMENDATION 

a document that more closely matches those specifics, it could be 

provided so you would have the real information you seek without hunting 

for it.” 

Mayor Ward then provided a paragraph of explanation for each question in Turner’s 

email. Turner responded at 6:05 PM with her opinions regarding domestic animal 

control and her understanding that sidewalks have their own project fund, and 

concluded, 

bb. “Since I’m getting no answers on the specific projects and amounts of that 

fund I’m going to go forward with my state complaint. 

cc. This is my last communication.” 

{¶12} Construing the January 9-20, 2017 correspondence in a manner most 

favorable to Turner, the documentation shows that Murphy urged her to utilize the 

previously provided minutes, ordinance, and expense reports to clarify her original 

public records request “made to Mrs. Kovalchik by voice mail.” Turner’s email of 

January 13, 2017, thus can be construed as the clarification requested by the City, or, in 

the alternative, as a new request. Her January 13, 2017 email states: 

dd. “Hello, I am still waiting three documents requested previously. 

ee. The mayors 2016 annual expense report, including anything additional to 

150,000 salary 

ff. Any accounts payable documents or report regarding the animal control 

budget, which was set at 34,000 

gg. Any public document regarding special fund 410, for which was budgeted 

1 million, 200,000” 

{¶13} The Expense Audit Trail Report and Expense Account Report sent to 

Turner in response to this clarification on January 13, 2017 contain information directly 

responsive to the requests, along with other City expense information beyond that 

requested.2 The Expense Audit Trail Report details debits and credits assigned to City 

 2 On June 21, 2017, Murphy filed a CD-ROM containing the 20-page Express Account Report 

dated January 4, 2017, the 257-page Expense Audit Trail Report dated January 5, 2017, and copies of 

the City’s other previous responses to Turner’s requests. 
Case No. 2017-00379-PQ -9- REPORT AND RECOMMENDATION 

Funds, including the Mayor (code 7711), Animal Control (code 1114), and the 

Permanent Improvement Fund (code 410). Each debit or credit is identified by a 

transaction description, vendor number, invoice number, and debit/credit/other amount. 

The Expense Account Report details, for City accounts including the Mayor, Animal 

Control, and the Permanent Improvement Fund, the account budget amounts, 

MTD expenses, YTD expenses, encumbrances, and unencumbered balances. Both 

Reports are in .pdf format, searchable by codes or key words such as Community 

Center, Sidewalks, etc. Since the reports appear to contain the itemized expenses from 

2016 attributable to the Mayor, and in the absence of any testimony that a separate 

“mayor’s annual expense report” exists, I conclude that the reports satisfy Turner’s 

request for “[t]he mayors 2016 annual expense report, including anything additional to 

150,000 salary,” and recommend that the motion to dismiss Turner’s claim to enforce 

this request be GRANTED. 

{¶14} With respect to Turner’s request for records regarding the animal control 

budget, the reports provided by the City are partially, but not fully, responsive. Having 

provided the report regarding the animal control budget, the City supports its denial of 

further response to this request on the grounds that doing so would require the City to 

create new documents. (Response at p. 4.) While the City is correct that it is not 

required to create new documents in response to a public records request, State ex rel. 

Morgan v. City of New Lexington, 112 Ohio St.3d 33, 2006-Ohio-6365, ¶ 30; Salemi v. 

Cleveland Metroparks, 8th Dist. Cuyahoga No. 100761, 2014-Ohio-3914, ¶ 29-30, the 

request for “[a]ny accounts payable documents * * * regarding the animal control 

budget” does not call for anything but existing documents. The term “accounts payable 

documents” would encompass the 15 invoices listed on page 33 of the City’s Expense 

Audit Trail Report. I therefore recommend that the City’s motion to dismiss be 

OVERRULED as to the request for these documents, and that the City be ordered to 

provide Turner with copies of those invoices. 
Case No. 2017-00379-PQ -10- REPORT AND RECOMMENDATION 

{¶15} With respect to Turner’s request for “[a]ny public document regarding 

special fund 410,” the request is both ambiguous and overly broad, and was properly 

denied by the City after Turner had been provided multiple opportunities to revise the 

request based on organizational and identification information provided to her in City 

ordinance, expense, and audit trail documents. R.C. 149.43(B)(2). It is the 

responsibility of the person who wishes to inspect 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. The obligations 

of R.C. 149.43(B) are only invoked where a request that describes the records sought 

with reasonable clarity has been made. State ex rel. Dehler v. Spatny, 127 Ohio St.3d 

312, 2010-Ohio-5711, 939 N.E.2d 831, ¶ 3; State ex rel. Morgan v. New Lexington, 112 

Ohio St.3d 33, 2006-Ohio-6365, 857 N.E.2d 1208, ¶ 29; State ex rel. Dillery v. Icsman, 

92 Ohio St.3d 312, 314, 2001-Ohio-193, 750 N.E.2d 156. Turner’s request for “any 

public document regarding” an entire category of City programs does not provide the 

City with the ability to identify a defined set of responsive records. The word “regarding” 

is inherently ambiguous unless modified by more specific limiting language, such as 

“accounts payable documents” in the request for animal control budget records. As 

used in her request for special fund 410 records, “any public document” could mean 

anything from the expense account reports that the City has provided, to press 

releases, or emails, or meeting minutes, or other unguessed documents tangentially 

“regarding” the special fund. I therefore recommend that the City’s motion to dismiss be 

GRANTED as to the request for documents regarding special fund 410 records. 

{¶16} The parties retain the ability to continue negotiating their respective 

interests in obtaining and providing any records that Turner seeks. The information in 

the provided expense reports would clearly permit Turner to identify and request 

additional specific records listed there, by invoice or other identifying criteria. In its 

correspondence, Lyndhurst offered to discuss narrowing the request to help identify the 
Case No. 2017-00379-PQ -11- REPORT AND RECOMMENDATION 

actual, existing records that Turner desires. Such discussions are favored by the 

courts, and could profitably include Lyndhurst referring Turner to its records retention 

schedules relevant to the request, and Turner narrowing her request with this and other 

information provided through discussion. Nat'l Fedn. of the Blind of Ohio v. Ohio Rehab. 

Servs. Comm'n, 10th Dist. Franklin No. 09AP-1177, 2010-Ohio-3384, ¶ 39. The parties 

are encouraged to cooperate going forward to achieve mutually acceptable resolution of 

their interests. See State ex rel. Morgan v. Strickland, 121 Ohio St.3d 600, 2009-Ohio1901, ¶ 18-20. 

Conclusion 

{¶17} Upon consideration of the pleadings and attachments, I find that Lyndhurst 

promptly provided reports responsive to Turner’s requests for “mayors 2016 annual 

expense report, including anything additional to 150,000 salary,” and “report regarding 

the animal control budget.” The records provided rendered Turner’s requests for 

production of these reports moot. I further find that Turner has failed to establish 

by clear and convincing evidence that the City of Lyndhurst violated division (B) 

of R.C. 149.43 with respect to her request for “[a]ny public document regarding 

special fund 410,” as this is an improperly ambiguous and overly broad request. 

R.C. 149.43(B)(2). I recommend that the City’s motion to dismiss for failure to state a 

claim pursuant to Civ.R. 12(B)(6) be GRANTED as to these claims. 

{¶18} I further find that Turner has established by clear and convincing evidence 

that Lyndhurst has violated division (B) of R.C. 149.43 with respect to her request for 

“[a]ny accounts payable documents * * * regarding the animal control budget” for 2016, 

and recommend that Lyndhurst be ordered to provide Turner with copies of the 2016 

invoices listed in the Expense Audit Trail Report as pertaining to the animal control 

budget. 

{¶19} I find that the majority of Turner’s claim was rendered moot prior to her 

filing this action, and the few records ordered produced are de minimus. Overall, the 
Case No. 2017-00379-PQ -12- REPORT AND RECOMMENDATION 

City did not act unreasonably in seeking clarification of Turner’s ambiguous requests, 

including providing reports and other records to either answer her questions, or assist 

her in fashioning properly specific requests. State ex rel. Strothers v. Keenon, 8th Dist. 

Cuyahoga No. 103313, 2016-Ohio-405, ¶ 30. I therefore recommend that Turner be 

entitled to recover the amount of the filing fee under R.C. 2743.75(F)(3)(b), but that the 

parties share the court costs equally. 

{¶20} 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). 

 JEFFERY W. CLARK 

 Special Master 

 

cc: 

Elaine Turner 

1395 Richmond Road 

Lyndhurst, Ohio 44124 

Raymond J. Schmidlin, Jr. 

840 Brainard Road 

Highland Heights, Ohio 44143 

Filed July 25, 2017 

Sent to S.C. Reporter 8/7/17