[Cite as Kovach v. Walder, 2019-Ohio-5455.]




STACEY KOVACH                                 Case No. 2019-00917PQ

       Requester                              Special Master Jeff Clark

       v.                                     REPORT AND RECOMMENDATION

GEAUGA COUNTY AUDITOR’S
OFFICE, CHARLES WALDER

       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.
        Background and Facts
        {¶2} Requester Stacey Kovach sent a letter to respondent Geauga County
Auditor’s Office, Charles Walder (Auditor), dated July 25, 2019, containing six inquiries
related to a piece of real property. (Am. Complaint at 4-6; Response, Oct. 4, 2019
Walder Aff. – Exh. A.) Counsel for respondent sent a letter to Kovach dated July 31,
2019 advising that it had no responsive records to Requests Nos. 1 and 2, and that the
county treasurer rather than the auditor maintained the records described in Request
No. 3. Respondent’s counsel further denied Requests Nos. 4, 5 and 6 as inquiries
seeking answers to questions rather than requesting copies of specified public records.
(Am. Complaint at 23; Response, Oct. 4, 2019 Walder Aff. – Exh. B.) Kovach sent a
letter to the Auditor on August 21, 2019 disputing the Auditor’s responses to Requests
Nos. 1, 2, 4, 5, and 6, and added a seventh request. (Am. Complaint at 24-25;
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Response, Oct. 4, 2019 Walder Aff. – Exh. C.) On August 22, 2019, Kovach made a
verbal request (Request No. 8) for “a copy of the video of the event which [transpired
that day].” (Am. Complaint at 2.) Subsequent to the filing of this action, respondent’s
counsel sent a letter to Kovach dated September 16, 2019 enclosing a video recording
allegedly in response to Request No. 7. (Response, Oct. 4, 2019 Walder Aff. – Exh. D.)
       {¶3} On August 27, 2019, Kovach filed a complaint pursuant to R.C. 2743.75
alleging that the Auditor denied her access to public records in violation of R.C.
149.43(B). Following unsuccessful mediation, the Auditor filed a motion to dismiss
(Response) on October 4, 2019. On October 18, 2019, Kovach submitted an unsolicited
document titled “affidavit of support.” Pursuant to R.C. 2743.75(E)(2) the special master
directed the clerk of court to accept this document (Reply) for filing. On December 12,
2019, the Auditor filed a response to the special master’s order to submit additional
information and documentation regarding Kovach’s requests for videos.
       Motion to Dismiss
       {¶4} 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
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. The unsupported conclusions of a complaint are,
however, not admitted and are insufficient to withstand a motion to dismiss. Mitchell v.
Lawson Milk Co., 40 Ohio St.3d 190, 193, 532 N.E.2d 753 (1988).
       {¶5} The Auditor moves to dismiss the complaint on the same grounds he
provided in the letters of July 31 and September 16, 2019. Under the abbreviated
pleading procedure in this action (see R.C. 2743.75(D)(1) and (E)(2)) the City’s
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defenses have been filed as a combined response and motion to dismiss. On
consideration of the motion to dismiss, I find the defenses asserting the non-existence
of certain records are not conclusively shown on the face of the complaint. Moreover, as
the matter is now fully briefed I find that all the arguments to dismiss are subsumed in
the arguments to deny the claim on the merits. I therefore recommend that that the
motion to dismiss be denied, and the matter determined on the merits.
      Burdens of Proof
      {¶6} In any action to enforce the Public Records Act (PRA), the burden is on the
requester to prove an alleged violation. In mandamus actions,
      [a]lthough the PRA is accorded liberal construction in favor of access to
      public records, “the relator must still establish entitlement to the requested
      extraordinary relief by clear and convincing evidence.”
State ex rel. Caster v. Columbus, 151 Ohio St.3d 425, 428, 2016-Ohio-8394, 89 N.E.3d
598, ¶ 15. Entitlement to relief in an action filed under R.C. 2743.75 must likewise be
established by clear and convincing evidence. Hurt v. Liberty Twp., 2017-Ohio-7820, 97
N.E.3d 1153, ¶ 27-30 (5th Dist.).
      {¶7} If a public office asserts an exception to the PRA, the burden of proving the
exception rests on the public office. State ex rel. Cincinnati Enquirer v. Pike Cty.
Coroner’s Office, 153 Ohio St.3d 63, 2017-Ohio-8988, 101 N.E.3d 396, ¶ 15. An
exception is a state or federal law prohibiting or excusing disclosure of items that
otherwise meet the definition of “public record.” However, the defense that a request
was improper in the first instance does not assert an exception. Where the defense of
ambiguity or overbreadth is raised, the burden of proof remains with the requester to
show that he has reasonably identified the record sought:
      “[I]t is the responsibility of the person who wishes to inspect and/or copy
      records to identify with reasonable clarity the records at issue.” State ex
      rel. Fant v. Tober, 8th Dist. Cuyahoga No. 63737, 1993 Ohio App. LEXIS
      2591, 1993 WL 173743, *4 (Apr. 28, 1993), aff’d, 68 Ohio St.3d 117, 623
      N.E.2d 1202 (1993).
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Of particular application to the defenses asserted herein, the Supreme Court in State ex
rel. McCaffrey v. Mahoning Cty. Prosecutor’s Office, 133 Ohio St.3d 139, 2012-Ohio-
4246, 976 N.E.2d 877, ¶ 22-26 held that if an office asserts that a requested record
does not exist, the requester must show that it does. Similarly, in State ex rel. O’Shea &
Assocs. Co., L.P.A. v. Cuyahoga Metro. Hous. Auth., 131 Ohio St.3d 149, 2012-Ohio-
115, 962 N.E.2d 297, ¶ 23 the Court held that if a document’s status as a “record” is
denied, the burden remains on the requester to show that it is a record of the office.
       Requests Nos. 1 And 2: Non-Existent Records
       Requests Nos. 1 and 2 in Kovach’s letter of July 25, 2019 are as follows:
          Please provide the following:
          1) Copies of any and all communications, email, tape recordings ...
             between you and Prosecutor Nicholas Burling concerning Stacey
             Kovach, the property #21-098100. The time frame is 2018-2019.
          2) Copies of any and all communications between members of your
             staff or any other party regarding same property.
(Am. Complaint at 4; Response, Oct. 4, 2019 Walder Aff. – Exh. A.) The Auditor denies
that his office has any records responsive to these requests, attesting that,
       With regard to requests #1 and #2, the Auditor’s Office searched its
       records, and it has no documents concerning the following:
          1) Copies of any and all communications, email, tape recordings ...
             between you and Prosecutor Nicholas Burling concerning Stacey
             Kovach, the property #21-098100. Time frame is 2018-2019.
          2) Copies of any and all communications between members of your
             staff or any other party regarding same property.
(Emphasis sic.) (Oct. 4, 2019 Walder Aff. at ¶ 4.) In support of her burden to show that
records responsive to these requests do exist, Kovach attests that,
       10. I have proven to this court, via submitted recorded phone conversation
           with the Auditor Walder and Becky McCartney, that communication
           records exist.
Case No. 2019-00917PQ                       -5-     REPORT AND RECOMMENDATION


      11. At 3:10 pm on January 14, 2019 Auditor Walder sent an Email to me
          and Attorney Applebaum with copies to four staff members, namely;
          Becky McCartney, Kate Jacob, Pamela McMahan and Mary Beth
          Armeo. Also copied was Ralph Kovach and my attorney Ross Haffey. I
          suspect blind copies were sent to Prosecutor Burling (Ex 2).
(Reply at 2.) However, the court file does not reflect that Kovach filed any “recorded
phone conversation with the Auditor Walder and Becky McCartney.” Kovach did submit
an attachment to her complaint titled “Description of Verbal Communication,” but the
page contains only one line, stating “1) I have an audio file of conversation with Auditor
Walder. 2) Audio file of conversation with Becky McCartney” and is otherwise blank.
(Am. Complaint at 3.)
      {¶8} The file does contain a copy of an email thread between Kovach and the
Auditor (Am. Complaint at 32-42) in which the Auditor advises Kovach that she should
communicate with the prosecutor’s office regarding her requests for legal interpretation.
In answer to her question as to which prosecutor she should contact, the Auditor
replies, “Nick Burling.” There is no indication in the body or headers of these emails that
Burling was a party correspondent to the emails. Exh. 2 attached to Kovach’s reply
contains two emails from the longer thread just referenced, which likewise contains no
indication of correspondence between the Auditor and Burling. The reference in the
3:10 PM email from the Auditor advises that he is forwarding that email “to our legal
counsel at the Geauga County Prosecutor’s Office,” which in context clearly references
APA Linda Applebaum, who is copied in the To: line of the header in conformity with the
quoted language. In summary, Kovach attests only to beliefs and suspicions that
recorded communication responsive to Requests Nos. 1 and 2 exist at the prosecutor’s
office, and not to any substantive or persuasive evidence.
      {¶9} 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. Auditor Walder attests that the auditor’s office searched its
Case No. 2019-00917PQ                        -6-     REPORT AND RECOMMENDATION


records, and found no documents responsive to Requests Nos. 1 and 2. (Oct. 4, 2019
Walder Aff. at ¶ 4.) Walder’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 Kovach has not
proven by clear and convincing evidence that records responsive to Requests Nos. 1
and 2 existed at the time of her request. State ex rel. Morabito v. Cleveland, 8th Dist.
Cuyahoga No. 98829, 2012-Ohio-6012, ¶ 13.
       Request No. 3: Non-Existent Records
       Request No. 3 in Kovach’s July 25, 2019 letter was for:
          3) Copies of actual tax payments made with copies of the checks for
             payments made in 2018 and 2019. I understand you will redact the
             checking account number. Identify who paid the taxes.
(Am. Complaint at 4; Response, Oct. 4, 2019 Walder Aff. – Exh. A.) The Auditor denies
that his office has any records responsive to this request, attesting that,
       5. With regard to request #3, this request seeks documents that would be
          produced, held, and maintained by the Geauga County Treasurer’s
          Office, not the Geauga County Auditor’s Office. Thus, my office has no
          control or access to the following records:
                 3) Copies of actual tax payments made with copies of the
                 checks for payments made in 2018 and 2019.
(Oct. 4, 2019 Walder Aff. at ¶ 5.) In support of her burden to show that any records
responsive to this request do exist, Kovach attests that,
       12. In Auditor Attestation #5, referring to my third request, he states that he
           has no control or access to; copies of checks for tax payments made in
           2018 and 2019. This is not a true statement. Auditor Walder is the
Case No. 2019-00917PQ                      -7-      REPORT AND RECOMMENDATION


          Chief Fiscal Officer of Geauga County. He is responsible to account for
          over $90,000,000 received each year by the county. He oversees real
          estate and personal property taxes.
          After the Expungement Deed was filed, Auditor Walder told the
          Treasurer’s office not to follow procedures. They were told not change
          the name on the tax records to the name on the Expungement Deed,
          Stacey Kovach Trustee. This also demonstrates the Treasurer’s office
          takes orders from him.
(Reply at 3.) However, Kovach fails to assert either a legal obligation for the Auditor to
maintain the requested tax records, or the actual use of such records to document the
functions of the Auditor’s Office, or the physical possession of these records by the
Auditor’s Office. Based on the same reasoning and case law cited for the disposition of
Requests Nos. 1 and 2, I find that Kovach has not proven by clear and convincing
evidence that records responsive to Request No. 3 were kept by the Auditor at the time
of her request.
      Requests Nos. 4, 5 and 6: Non-Actionable Requests for Information,
      and to Answer Questions
      Requests Nos. 4, 5, and 6 in Kovach’s letter of July 25, 2019 were for:
          4) Please explain rescan below.
                    [see image of table in the original]
          5) On December 27, 2018 an Affidavit Expunging Sheriff Deed, Pursuant to
             ORC Sec. 5301.252 was recorded. It was verified for accuracy by both the
             recorder and your office meaning the last owner was Stacey Kovach
             Trustee.
             Please provide your reasons for refusing to place the property back into
             the rightful owner’s name.
          6) Please detail in writing any issues or denial of any of the facts listed
             below. The complete Recording is enclosed Exhibit F.
             An erroneous Sheriff Deed Instrument# 201800942049 Book 2061 pages
             8-10, was filed on October 19, 2018. Said Deed unlawfully conveyed the
             property to Federal Home Loan Mortgage Corp.
Case No. 2019-00917PQ                      -8-      REPORT AND RECOMMENDATION


                 1) The Deed was filed out of order.
                 2) The prior owner was incorrect, memorialized as Ralph J. Kovach
                    per Volume 1842, page 101.
                 3) The Prior Owner was Stacey Kovach Trustee.
                 4) Freddie Mac did not put up any money for the property.
                 5) The Auditor failed to follow ORC 317.31 to compare the record with
                    what has been recorded.
                 6) The Sheriff failed to deliver the Property Description Approval
                    Form. to auditor as required prior to Sheriff Sale.
(Am. Complaint at 4-5; Response, Oct. 4, 2019 Walder Aff. – Exh. A.) The Auditor
asserts that he has no duty under R.C. 149.43(B) to provide answers to questions, or
provide reasons for his decisions, or to detail “any issues or denial” in response to
assertions made by Kovach. (Response at 3.) Kovach makes no response to this
defense in her reply.
      {¶10} In response to a question or request for information, a public office has “no
duty under R.C. 149.43 to create new records by searching for and compiling
information from existing records.” State ex rel. White v. Goldsberry, 85 Ohio St.3d 153,
154, 707 N.E.2d 496 (1999). For example, the Ohio Adult Parole Authority properly
denied a public records request for the “qualifications of APA members.” State ex rel.
Lanham v. State Adult Parole Auth., 80 Ohio St.3d 425, 427, 687 N.E.2d 283 (1997).
Accord State ex rel. Morabito v. Cleveland, 8th Dist. Cuyahoga No. 98820, 2012-Ohio-
6012, ¶ 14 (request for written “confirmation of * * * why, how, when, and by whom the
video was destroyed – are not authentic public records requests, but requests for
information outside the scope of R.C. 149.43.”) Thus, the Auditor properly denied
Requests Nos. 4, 5 and 6 seeking explanations or reasons for the execution of public
functions and for the Auditor to admit or deny factual representations.
      Request No. 7: Non-Existent Record
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      {¶11} Request No. 7, contained in Kovach’s letter of August 21, 2019 states:
“Please provide video with sound included of my meeting with Mr. Walder on December
27, 2018. The time is approximately noon.” (Complaint at 25.) No response was
provided prior to the filing of this action, but the Auditor subsequently attested that the
requested December 27, 2018 video was provided during litigation. (Response, Oct. 4,
2019 Walder Aff. at ¶ 7-9; cover letter attached as Exh. D.) The cover letter referenced
an enclosed digital device, but did not specify that it contained the December 27, 2018
video. In her reply, Kovach asserted in response:
      14. Auditor Attestation #7, #8, #9 On August 21, 2019 we requested a video, with
          sound, of my meeting at the conference table with the Auditor and his staff on
          December 27, 2018 at approximately noon. The Auditor never sent a video of
          this meeting and lied that he did to this honorable court.
      {¶12} On November 27, 2019, the special master ordered the Auditor to submit a
copy of the December 27, 2018 video as allegedly provided to requester, along with
affidavit or other evidence of completeness, responsiveness, and authenticity. In
response, the Auditor filed an affidavit admitting to some confusion in the back and forth
with Kovach and his office with respect to the two requests for video recordings. (Dec.
6, 2019 Walder Aff. at ¶ 2.) The Auditor implicitly withdrew the assertion that a
December 27, 2018 video had been provided. The Auditor now attests that there was
no video recorder in the conference room where the December 27, 2018 meeting took
place, and therefore no video was made of the meeting. (Id. at ¶ 6.) Since no December
27, 2018 video existed, the Auditor had no duty to produce it, and his mistake in
identifying the response to a different request (Request No. 8) as satisfying Request No.
7 does not amount in this instance to a violation of R.C. 149.43(B). Based on the same
reasoning and case law cited for the disposition of Requests Nos. 1 and 2, I find that
Kovach has not proven by clear and convincing evidence that a record responsive to
Request No. 7 existed at the time of her request.
      Request No. 8: Suggestion of Mootness
Case No. 2019-00917PQ                       -10-     REPORT AND RECOMMENDATION


        {¶13} Kovach describes making a verbal public records request to the auditor’s
office on August 22, 2019 for “a copy of the video of the event which just transpired
which includes audio.” (Complaint at 2.) The Auditor does not address this request in his
response. However, Kovach concedes that the Auditor provided two videos of the
August 22, 2019 event in response to the request:
        15. I requested a video, with sound, of my father and I at the Auditor’s
            office on August 22, 2019 between 4-4:30 PM. This is stated on page
            three of my Amended Complaint. The verbal request was on August 22
            and the 2nd request was in writing on August 26, 2019. (EX 1) The two
            video’s which were sent by the Auditor was the August 22 footage. The
            Auditor office blocked out the whole left side of the office where my
            father and I were at the computer for twenty minutes with Deputy
            Becky McCartney. We were re-recording the deed and requesting tax
            records to be changed to the proper owner according to ORC 319.20. I
            would like the Auditor to send the footage that encompasses the entire
            room.
(Reply at ¶ 15.) The Auditor confirms that these are the two videos that were provided
to Kovach with Ms. Applebaum’s letter of September 16, 2019. (Dec. 6, 2019 Walder
Aff. at ¶ 4-5.) The Auditor attests that his office does not record audio with the videos.
(Id. at ¶ 3.)
        {¶14} However, Kovach complains that “the Auditor office blocked out the whole
left side of the office where my father and I were at the computer” and states that she
desires footage that encompasses the entire room. (Reply, Id.) In response, the Auditor
asserts that his office did not redact or edit the videos. (Dec. 6, 2019 Walder Aff. at ¶ 3.)
The Auditor filed a copy of the two videos that he provided to Kovach. (Id. at ¶ 7.) On
review of same, the special master notes no apparent blacking, pixilation, or other
indicia of redaction in either video. Kovach does not assert that additional footage from
the same or any other video recording device actually exists. In the context of the video,
her assertion that the Auditor’s Office “blocked out” a particular area within the office
means only that a visual barrier existed. Kovach offers no support for her apparent
Case No. 2019-00917PQ                     -11-     REPORT AND RECOMMENDATION


argument that the Auditor’s Office was required to cover all or particular areas of the
office interior with video recording. I find that Kovach has not proven by clear and
convincing evidence that the Auditor has withheld any portion of the existing records
responsive to Request No. 8. I therefore find that Kovach’s request for production of the
videos is now moot.
       {¶15} Finally, Kovach makes allegations of record concealment, falsification, and
destruction that, if proven, would be actionable only in other courts. 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). Nor does this court
have jurisdiction over the various criminal offenses that Kovach suggests the Auditor
and his staff may have committed.
       Conclusion
       {¶16} Upon consideration of the pleadings and attachments, I recommend that
the court DENY requester’s claim for production of records.
       {¶17} 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
Case No. 2019-00917PQ                     -12-     REPORT AND RECOMMENDATION


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 December 19, 2019
Sent to S.C. Reporter 1/16/20
