[Cite as Isreal v. Franklin Cty. Commrs., 2019-Ohio-4603.]

 

{¶1} Ohio’s Public Records Act provides that upon request, a public office “shall 

make copies of the requested public record available to the requester at cost and within 

a reasonable period of time.” R.C. 149.43(B)(1). Ohio courts construe the Act liberally in 

favor of broad access, with any doubt resolved in favor of disclosure of public records. 

State ex rel. Hogan Lovells U.S., L.L.P. v. Dept. of Rehab. & Corr., 156 Ohio St.3d 56, 

2018-Ohio-5133, 123 N.E.3d 928, ¶ 12. R.C. 2743.75 provides “an expeditious and 

economical procedure” to resolve public records disputes in the Court of Claims. A 

claim to enforce the Public Records Act through R.C. 2743.75 must be established by 

clear and convincing evidence. Hurt v. Liberty Twp., 2017-Ohio-7820, 97 N.E.3d 1153, 

¶ 27-30 (5th Dist.). 

{¶2} On April 24, 2019, requester Michael Isreal filed a complaint pursuant to 

R.C. 2743.75 alleging denial of access to public records by respondent “Franklin County 

Commissioners Kevin Boyst [sic]” in violation of R.C. 149.43(B). On August 20, 2019, 

following unsuccessful mediation, respondent filed a motion to dismiss (Response). On 

September 27, 2019, Isreal filed a reply. 

{¶3} The special master must first address multiple documents submitted to the 

court by requester. On May 21, 2019, the court received Isreal’s motion to find 

respondent in contempt. On August 6, 2019, the court received requester’s motion to 

compel respondent to answer the December 18, 2018 public records request. Because 

both motions merely restate the relief sought in the complaint, and because respondent 

MICHAEL ISREAL 

 Requester 

 v. 

FRANKLIN COUNTY COMMISSIONERS 

 Respondent

Case No. 2019-00548PQ 

Special Master Jeffery W. Clark 

REPORT AND RECOMMENDATION 
Case No. 2019-00548PQ -2- REPORT AND RECOMMENDATION 

was not subject to discovery or any court order to which a motion to compel or for 

contempt could apply, the special master hereby denies both motions. 

{¶4} On May 13, July 9, September 3, and September 30 of 2019, requester 

submitted duplicate and additional correspondence related to his public records 

requests. None of these submissions were authorized by R.C. 2743.75(E)(2), or invited 

by the court. Nevertheless, the documents are hereby accepted pursuant to 

Civ.R. 15(E) as supplemental to requester’s pleadings, and the special master directs 

the clerk of courts to mark them as Filed on the case docket. 

{¶5} Isreal’s complaint seeks to enforce a December 28, 2018 public records 

request made to the Franklin County Commissioners, seeking the following: 

1. Provide the reported malfunctions and people being trapped in elevator (8) 

in 2018. 

2. Provide the dates and time the fire department was called for malfunctions 

of elevator (8) in 2018. 

3. Provide the dates and times the maintenance employees were called for 

elevator malfunctions in elevator (8) ln 2018. 

4. Provide the dates and times maintenance employees opened doors for 

trapped citizens in 2018. 

5. Provide the maintenance records for elevator (8) in 2018. 

(Complaint at 8.) Isreal made follow-up inquiries for these requests on February 22 and 

27 of 2019. (Id. at 2, 4-6.) The parties agree that respondent gave Isreal 17 pages of 

responsive documents on February 8, 2019. (Response, Alexander Aff. at ¶ 4 and first 

17 pages of attachments; Motion to Compel at 3.) During litigation, respondent provided 

two pages of additional documents that Isreal appears to concede complete the 

production of records responsive to his request. (Response, Alexander Aff. at ¶ 5, last 

two pages of attachments; Reply at 2.) 

Motion to Dismiss 

{¶6} In order to dismiss a complaint for failure to state a claim upon which relief 

can be granted, it must appear beyond doubt that the claimant can prove no set of facts 

warranting relief after all factual allegations of the complaint are presumed true and all 
Case No. 2019-00548PQ -3- REPORT AND RECOMMENDATION 

reasonable inferences are made in claimant’s favor. State ex rel. Findlay Publishing Co. 

v. Schroeder, 76 Ohio St.3d 580, 581, 669 N.E.2d 835 (1996). As long as there is a set 

of facts consistent with the complaint that would allow the claimant to recover, dismissal 

for failure to state a claim is not proper. State ex rel. V.K.B. v. Smith, 138 Ohio St.3d 84, 

2013-Ohio-5477, 3 N.E.3d 1184, ¶ 10. 

{¶7} With respect to the claim for production of elevator maintenance and 

emergency response records, respondent asserts that it has now provided all existing 

responsive records, and that the claim is thus moot. Isreal appears to agree that the 

claim for production has been satisfied. In his reply, Isreal does not contest 

respondent’s assertion that all responsive records have been provided, noting only that 

the complete response to request “number (4) was not provided to Requester Isreal 

until after this case was filed in the Court of Claims.” (Reply at 2.) He does not identify 

any additional responsive records in respondent’s keeping. Isreal does maintain that the 

production of records was untimely (Id.), a separate violation of the Public Records Act. 

Suggestion of Mootness 

{¶8} 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 moot. State ex rel. Striker v. Smith, 129 Ohio St.3d 168, 2011-Ohio-2878, 

950 N.E.2d 952, ¶ 18-22. There is no dispute that respondent has now provided Isreal 

with all responsive records. I therefore find that Isreal’s claim for production of records is 

moot. 

Failure of Timely Production Precludes Mootness 

{¶9} In mandamus, courts will not find a public records action moot if an 

additional claim remains to be determined. State ex rel. Cincinnati Enquirer v. Ronan, 

124 Ohio St.3d 17, 2009-Ohio-5947, 918 N.E.2d 515, ¶ 10 (attorney fees). Under the 

remedy provided by R.C. 2743.75, the Court of Claims may order recovery by the 

requester of his filing fee and any other costs associated with the action that were 
Case No. 2019-00548PQ -4- REPORT AND RECOMMENDATION 

incurred, if it “determines that the public office * * * denied the aggrieved person access 

to the public records in violation of division (B) of section 149.43 of the Revised Code.” 

R.C. 2743.75(F)(3)(b). The court also assigns court costs based in part on 

determination of violations. 

{¶10} With respect to its initial production of records, respondent delivered 17 

pages of documents to Isreal 30 business days after his December 28, 2018 request. 

Respondent asserts no reasons for delay in identifying, accessing, reviewing, or 

producing these records. However, requests Nos. 1 through 4 are in the form of 

requests for information rather than specifically identified records, requiring respondent 

to conduct research for source records. These requests also required respondent to cull 

the maintenance and emergency records so located for malfunctions and emergency 

calls involving only certain types of incidents and response personnel. While 30 

business days may stretch the outer limits of the “reasonable period of time” in which to 

produce copies of reasonably identified records, I find under the facts and 

circumstances in this case that Isreal has not shown by clear and convincing evidence 

that respondent violated the timeliness requirement of R.C. 149.43(B)(1) with respect to 

these records. See State ex rel. Shaughnessy v. Cleveland, 149 Ohio St.3d 612, 2016-

Ohio-8447, 76 N.E.3d 1171, ¶ 21-22. 

{¶11} With respect to the production of additional records on July 15, 2019, 

respondent argues that it reasonably read request No. 4 – for “the dates and times 

maintenance employees opened doors for trapped citizens in 2018” – as seeking such 

records only for elevator (8). (Response at 2.) Given that all the other requests sought 

records regarding elevator (8), request No. 4 is arguably ambiguous in scope. Had it 

believed the request to be ambiguous, respondent could have invited revision of request 

No. 4 to reasonably identify what specific records were sought, R.C. 149.43(B)(2), but it 

did not. 
Case No. 2019-00548PQ -5- REPORT AND RECOMMENDATION 

{¶12} However, even assuming arguendo that the scope of request No. 4 was 

unambiguous, I find the consequences of any error to be de minimus. Respondent 

timely provided the bulk of the responsive records within a reasonable period of time, 

and promptly produced the two pages of additional records when Isreal clarified (or 

added to) request No. 4 during mediation. I find that respondent substantially complied 

with the request overall. The omission of two pages in response to an arguably 

ambiguous request that was initially answered as to the elevator listed in the rest of 

Isreal’s requests does not warrant the assessment of costs against respondent. 

Conclusion 

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

the court deny the requester’s claim for production of records as moot. I further 

recommend that the court deny the claim that the responsive records were provided 

untimely. I further recommend court costs be assessed against the requester. 

{¶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). 

 JEFF CLARK 

 Special Master 

 

Filed October 17, 2019 

Sent to S.C. Reporter 11/8/19