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




STACEY A. NEFF                              Case No. 2018-01124PQ

       Requester                            Special Master Jeffery W. Clark

       v.                                   REPORT AND RECOMMENDATION

ORANGE TOWNSHIP TRUSTEE LISA
KNAPP

       Respondent


        {¶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
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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.
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(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
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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.
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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.
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       {¶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 non-
existence 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-Ohio-
6012, ¶ 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,
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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
