[Cite as Neff v. Knapp, 2019-Ohio-966.]

 

{¶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. Claims under R.C. 2743.75 are 

determined using the standard of clear and convincing evidence. Hurt v. Liberty Twp., 

2017-Ohio-7820, 97 N.E.3d 1153, ¶ 27-30 (5th Dist.). 

{¶2} In a previous action in this court, requester Stacey Neff sought public 

records responsive to a September 15, 2017 request to Joel Spitzer, Orange Township 

Fiscal Officer, for certain communications of Orange County Township Trustee Lisa 

Knapp: 

3) any communications from or to Lisa Knapp related to forensic audit, 

including communications sent to state auditor or private auditing firm 

Neff v. Knapp, Ct. of Cl. No. 2017-00876PQ, 2018-Ohio-2357, ¶ 1. The special master 

found in that case that the request was improperly ambiguous and overly broad, but that 

respondent had nevertheless been able to identify and file five responsive records 

STACEY A. NEFF 

 Requester 

 v. 

ORANGE TOWNSHIP TRUSTEE LISA 

KNAPP 

 Respondent 

Case No. 2018-01124PQ 

Special Master Jeffery W. Clark 

REPORT AND RECOMMENDATION 
Case No. 2018-01124PQ -2- REPORT AND RECOMMENDATION 

under seal. Id. at ¶ 12, 14. The court found that no public records exception applied to 

these records, and ordered respondent to disclose them to Neff. Id. at ¶ 14-15, 25; Neff 

v. Knapp, Ct. of Cl. No. 2017-00876PQ, 2018-Ohio-2910. Neff asserted that she 

believed additional responsive records existed, but did not submit any admissible 

evidence in support. Neff v. Knapp, Ct. of Cl. No. 2017-00876PQ, 2018-Ohio-2357, 

¶ 16. Knapp attested that “I have not maintained any other document, in my official 

capacity, which is ‘related to forensic audit, including communications sent to state 

auditor or private auditing firm.’” Id. The special master found that Neff had failed “to 

show by clear and convincing evidence that additional communications responsive to 

request No. 3 exist.” Id. On June 13, 2018, Orange Township Records Custodian Lee 

Bodnar sent Neff copies of the emails responsive to Request No. 3 that had been filed 

under seal. (Complaint at 5-11; Response at 12.) 

{¶3} On June 13, 2018, Neff made a new public records request to Bodnar: “This 

is a public records request for emails sent from Lisa Knapp TO Perry & Associates in 

2016 and 2017.” (Complaint at 12.) On June 18, 2018, Bodnar responded that the 

request was again ambiguous and overly broad. Bodnar invited Neff to revise and clarify 

the request and offered that Neff could contact him with any questions. (Id. at 20.) Neff 

and Bodnar engaged in further correspondence during which Neff sent Bodnar a list of 

dates, times, and subjects of purported emails that she sought, and asked, “Could you 

clarify how the Township stores records for retrieval (specifically, records from Trustee 

Knapp’s gmail)?” (Id. at 21-25.) On July 2, 2018, Bodnar advised Neff that: 

The Township does not store its employees’ or officials’ personal emails, 

which may, on occasion, serve to document the organization, functions, 

policies, decisions, procedures, operations, or other activities of the office. 

Please understand, I am not suggesting any such emails exist, but am 

trying to provide a complete response. 
Case No. 2018-01124PQ -3- REPORT AND RECOMMENDATION 

(Id. at 30.) In response to Neff’s further inquiries as to the status of the request, Bodnar 

stated that “the letter sent to you (July 2, 2018) in this regard served as the appropriate 

answer to your request” (Id. at 42). Bodnar produced no records. 

{¶4} On July 26, 2018, Neff filed this action under R.C. 2743.75, alleging denial 

of access to public records by respondent Lisa Knapp in violation of R.C. 149.43(B). 

Following unsuccessful mediation, Knapp filed a combined motion to dismiss and 

response (Response) on October 5, 2018. On October 16, 2018, Neff filed a reply to the 

response. On November 7, 2018, the special master issued an order directing Knapp to 

file under seal any responsive records kept at the time of the request and, to the extent 

Knapp asserted that such records never existed or were deleted, to file an affidavit 

supporting each such assertion. On December 7, 2018, Knapp filed a responsive 

pleading and affidavit denying that she is in possession of any responsive records. 

Motion to Dismiss 

{¶5} Knapp moves to dismiss the complaint on the grounds that Neff’s request is 

vague, ambiguous and overly broad, and therefore unenforceable. (Response at 5-7.) 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, 532 

N.E.2d 753 (1988). Then, before the court may dismiss the complaint, it must appear 

beyond doubt that plaintiff can prove no set of facts entitling him to recovery. O’Brien v. 

Univ. Community Tenants Union, Inc., 42 Ohio St.2d 242, 245, 327 N.E.2d 753 (1975). 

{¶6} The initial request covered a time span of two calendar years, and was for 

correspondence between one trustee and any correspondent in a named company. 

Bodnar denied the request as ambiguous and overly broad. Neff then clarified that the 

request included a list of emails allegedly transmitted on specific dates and times, with 

subject summaries. (Complaint at 23-25.) I find that the initial request of June 13, 2018, 

was improperly ambiguous and overly broad. However, I find that Neff’s clarification that 
Case No. 2018-01124PQ -4- REPORT AND RECOMMENDATION 

the request included particularly described communications made it a proper request by 

which Knapp could reasonably identify what public records were being requested. See 

State ex rel. Glasgow v. Jones, 119 Ohio St.3d 391, 2008-Ohio-4788, 894 N.E.2d 686,

¶ 1, 17-24 (a proper request embedded within an otherwise ambiguous or overly broad 

request may be enforceable). I therefore recommend that the motion to dismiss be 

GRANTED as to the original request, and DENIED as to the revised request. 

Non-Existent Records 

{¶7} Neff asserts that the emails in her list were transmitted by Knapp to 

unnamed recipients, that they meet the definition of records of Orange Township, and 

that they exist in Knapp’s personal email account. However, the list is not sworn to by a 

person with personal knowledge of the existence, provenance, or content of the alleged 

emails. The affiant asserts only that he received the list from another person who 

advised him that a list of emails received from Knapp had been compiled by an 

unnamed subordinate. (Id. at 23).1 This other person’s assertions, and the 

representations in the list, are therefore hearsay. I find that the list cannot be accepted 

as evidence of the truth of the matters asserted therein, including the existence of 

particular emails. 

{¶8} Neff also relies on statements she avers were made by respondent during 

mediation sessions in Case No. 2017-00876PQ. (Complaint at 3-4.) Respondent denies 

that she waived confidentiality or privilege regarding these mediation communications, 

or that they have been accurately related by Neff. (Dec. 7, 2018 Supp. Response at 2-4, 

Exhibit A – Knapp Aff.) See R.C. 2710.03, R.C. 2710.07, and L.C.C.R. Rule 22(G). Neff 

asserts that Knapp did waive confidentiality and privilege through a pleading in Case 

No. 2017-00876PQ (Oct. 22, 2018 Neff Aff. at ¶ 2-9, attachments at p. 4-21.) In this 

pleading, Knapp referred generally to her use of a personal email account, and to efforts 

 

1 The list was not hearsay when used merely to frame the terms of Neff’s request. 
Case No. 2018-01124PQ -5- REPORT AND RECOMMENDATION 

made by the parties during mediation to narrow and respond to Request No. 3. The 

court made no use of Knapp’s referenced communications in its disposition of that case. 

Nor does the special master rely in this case on Knapp’s mediation representations. Any 

disclosure Knapp made does not prejudice Neff in this proceeding, and the privilege has 

not been waived under the provisions of R.C. 2710.04(B). 

{¶9} Further, the content of Knapp’s pleading established only that Knapp has a 

private email account sometimes used for communication regarding the township, and 

that Neff’s previous request was narrowed during mediation to the point where Knapp 

could determine that she possessed no responsive records. Knapp’s references to 

mediation communications are not probative of the existence of the listed emails. Even 

if admitted as evidence, the references would have no material effect on the outcome of 

this action. 

{¶10} Finally, even had Neff established that any of the listed emails existed at an 

earlier time, Knapp attests that: 

If such emails had existed, they would have been deleted pursuant to p. 3 

of Orange Township’s RC2, as they would have been considered 

“General,” “Routine,” or “Transient” Correspondences. Depending on the 

subject matter of the email correspondence, Orange Township’s Record 

Retention Schedule does not require me to retain these emails longer than 

30 days (Transient), 6 months (Routine Correspondence), or 2 fiscal years 

(General Correspondence). 

(Dec. 7, 2018 Knapp Aff. at ¶ 6.) The most recent date for a listed email is 6/21/2016. 

Neff’s public records request was made on June 13, 2018, more than two years after 

the dates of all but eight of the listed emails. Knapp does not identify the records 

retention category into which any of the emails would fall – understandably, if they were 

properly disposed of and no longer available for her to consult. Thus, even if any of the 

alleged emails did exist at one time, there is no evidence before the court to determine 

whether or for how long each was required to be retained. 
Case No. 2018-01124PQ -6- REPORT AND RECOMMENDATION 

{¶11} A public office has no duty to provide records that do not exist, or that it 

does not possess. State ex rel. Gooden v. Kagel, 138 Ohio St.3d 343, 2014-Ohio-869, 6 

N.E.3d 471, ¶ 5, 8-9. Knapp attests that: 

I have conducted a thorough review of records, including emails sent from 

my personal and township email accounts to anyone in particular at Perry 

and Associates. I am not in possession of any records responsive to Neff’s 

public records requests. 

(Dec. 7, 2018 Knapp Aff. at ¶ 6.) Knapp’s affidavit is some evidence supporting the nonexistence of any responsive 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. 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 Office, 133 

Ohio St.3d 139, 2012-Ohio-4246, ¶ 22-26; Gooden at ¶ 8. I find that Neff has not proven 

by clear and convincing evidence that responsive records existed at the time of her 

request. State ex rel. Morabito v. Cleveland, 8th Dist. Cuyahoga No. 98829, 2012-Ohio6012, ¶ 13. 

{¶12} Neff makes allegations of record concealment and destruction that, if 

proven, would be actionable in other courts. However, this court has no jurisdiction over 

violations of the records retention statutes, the remedy for which is provided in R.C. 

149.351(B) (Person aggrieved by improper disposition of records may file injunctive 

and/or forfeiture action in court of common pleas). This court need not determine 

whether the Township’s apparent policy to “not store” it’s employee’s and officials 

personal emails, even when they “serve to document the organization, functions, 

policies, decisions, procedures, operations, or other activities of the office” (Response at 

30), violates its duty to make “such records as are necessary for the adequate and 

proper documentation of the organization, functions, policies, decisions, procedures, 
Case No. 2018-01124PQ -7- REPORT AND RECOMMENDATION 

and essential transactions of the agency and for the protection of the legal and financial 

rights of the state and persons directly affected by the agency’s activities.” R.C. 149.40. 

Conclusion 

{¶13} Upon consideration of the pleadings and attachments, I recommend that 

the court issue an order DENYING requester’s claim for production of records. 

{¶14} 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 

Filed February 14, 2019 

Sent to S.C. Reporter 3/20/19