[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 req uester at cost and within a reasonable period of time.” R.C. 149.43(B)(1). Ohio courts co nstrue the Act liberally in favor of broad access, with any doubt resolved in favor of disc losure 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 mu st 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 p ursuant to R.C. 2743.75 alleging denial of access to public records by res pondent “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 submit ted 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 r equester’s motion to compel respondent to answer the December 18, 2018 public record s request. Because both motions merely restate the relief sought in the complaint, and because respondent MICHAEL ISREAL

Requester

v.

FRANKLIN COUNTY COMMISSIONERS

Responden t Case No. 2019-00548PQ

Special Master Jeffery W. Clark

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

was not subject to discovery or any court order to which a moti on to compel or for contempt could apply, the special master hereby denies both mot ions. {¶4} On May 13, July 9, September 3, and September 30 of 2019, reque ster submitted duplicate and additional correspondence related to hi s public records requests. None of these submissions were authorized by R.C. 274 3.75(E)(2), or invited by the court. Nevertheless, the documents are hereby accepted p ursuant 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 i n elevator (8) in 2018. 2. Provide the dates and time the fire department was called fo r malfunctions of elevator (8) in 2018. 3. Provide the dates and times the maintenance employees were c alled for elevator malfunctions in elevator (8) ln 2018. 4. Provide the dates and times maintenance employees opened doo rs 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 req uests 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 litigat ion, respondent provided two pages of additional documents that Isreal appears to conced e complete the production of records responsive to his request. (Response, Ale xander 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 up on which relief can be granted, it must appear beyond doubt that the claimant c an prove no set of facts warranting relief after all factual allegations of the complain t are presumed true and allCase 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 the re is a set of facts consistent with the complaint that would allow the cla imant 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 maintenanc e and emergency response records, respondent asserts that it has now provided all existing responsive records, and that the claim is thus moot. Isreal app ears to agree that the claim for production has been satisfied. In his reply, Isreal d oes not contest respondent’s assertion that all responsive records have been pr ovided, noting only that the complete response to request “number (4) was not provided t o 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. Isre al 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 pro duce the requested records prior to the court’s decision and thereby ren der 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 ha s now provided Isreal with all responsive records. I therefore find that Isreal’s cla im 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 (attorn ey 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 wereCase 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 1 49.43 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 d elivered 17 pages of documents to Isreal 30 business days after his Decembe r 28, 2018 request. Respondent asserts no reasons for delay in identifying, accessi ng, reviewing, or producing these records. However, requests Nos. 1 through 4 are in the form of requests for information rather than specifically identified re cords, requiring respondent to conduct research for source records. These requests also req uired respondent to cull the maintenance and emergency records so located for malfunctio ns and emergency calls involving only certain types of incidents and response pe rsonnel. While 30 business days may stretch the outer limits of the “reasonable p eriod of time” in which to produce copies of reasonably identified records, I find under t he facts and circumstances in this case that Isreal has not shown by clear a nd 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 ambig uous in scope. Had it believed the request to be ambiguous, respondent could have inv ited 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 rea sonable 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 responden t 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 elevato r listed in the rest of Isreal’s requests does not warrant the assessment of costs agai nst respondent.

Conclusion {¶13} Upon consideration of the pleadings and attachments, I recommen d 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 rec ords were provided untimely. I further recommend court costs be assessed against t he 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