[Cite as McNatt v. Dept. of Job & Family Servs., 2019-Ohio-476.]




VINCE MCNATT                                           Case No. 2018-01256PQ

       Requester                                       Special Master Jeffery W. Clark

       v.                                              REPORT AND RECOMMENDATION

OHIO DEPARTMENT OF
JOB AND FAMILY SERVICES

       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.
        {¶2} On July 31, 2018, requester Vince McNatt made a public records request for
several categories of records and information related to a job position within respondent
Ohio Department of Job and Family Services (ODJFS). (Complaint at 3-4.) Over the
next three weeks the parties exchanged correspondence, McNatt made additional
requests, and ODJFS provided most of the requested records. (Id. at 2-30.) On
August 16, 2018, ODJFS denied the July 31 request as it pertained to “interview
questions [and] responses * * * for all applicants.” (Id. at 11.)
        {¶3} On September 6, 2018, McNatt filed a complaint under R.C. 2743.75
alleging denial of access to public records in violation of R.C. 149.43(B). The case was
referred to mediation, and on November 9, 2018, ODJFS provided McNatt with the
requested records. (Moss Aff. at ¶ 4.) On November 15, 2018, the court mediator
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entered a report that the parties had reached an agreement resolving the case, and
recommended dismissal pursuant to R.C. 2743.75(E)(1), with court costs to be
absorbed by the court.
      {¶4} However, on November 20, 2018, McNatt submitted a letter titled “motion for
court review decision to include statutory damages.” On November 27, 2018, ODJFS
filed a response to the motion. On November 28, 2018, the clerk of the court returned
the case to the docket of the special master for resolution. On December 6, 2018,
McNatt submitted an unlabeled memorandum in support of the motion for damages.
Neither the motion for damages nor McNatt’s subsequent memorandum included a
certificate of service or case caption. Civ.R. 5(B)(4) and Civ.R. 10(A). Thus, these
pleadings may not be considered by the court. Civ.R. 5(B)(4).
      {¶5} On December 10, 2018, ODJFS filed a motion to dismiss (Response).
      Suggestion of Mootness
      {¶6} 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. ODJFS asserts that the sole claim in the complaint, for
production of “Interview Question & Answers,” has been satisfied by production of the
responsive documents. (Response at 2-4; Moss Aff. at ¶ 4.) Based on the
uncontradicted evidence in the case, I find that McNatt’s request for production of
records is moot.
      Filing Fee, Costs, and Statutory Damages
      {¶7} ODJFS notes that McNatt seeks recovery of his filing fee, lost wages,
parking fees, and mileage, as well as an award of statutory damages. (Response to
Motion for Damages at 1-2.) Although McNatt’s improper submissions of November 20
and December 6, 2018 may not be considered, these issues will be addressed for the
sake of completeness.
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       First, the recoveries available under R.C. 2743.75(F)(3) are conditional:
       If the court of claims determines that the public office or person responsible for
       the public records denied the aggrieved person access to the public records in
       violation of division (B) of section 149.43 of the Revised Code and if no appeal
       from the court’s final order is taken under division (G) of this section, both of the
       following apply:
       ***
       (b) The aggrieved person shall be entitled to recover from the public office or
       person responsible for the public records the amount of the filing fee of twenty-
       five dollars and any other costs associated with the action that are incurred by
       the aggrieved person, * * *.
(Emphasis added.) This statutory language does not authorize recovery for an
unsuccessful claim. See Holmes v. Crawford Mach., Inc., 134 Ohio St.3d 303, 2012-
Ohio-5380, 982 N.E.2d 643, ¶ 22. Nor does it authorize recovery where the court makes
no determination at all. State ex rel. DiFranco v. S. Euclid, 138 Ohio St.3d 367, 2014-
Ohio-538, 7 N.E.3d 1136, ¶ 31-35.
       {¶8} There is no claim of violation pending for determination. ODJFS mooted the
claim for production during mediation, precluding the need for determination. McNatt
failed to assert any other claim in the complaint, including any claim regarding
timeliness. An unasserted claim fails to satisfy the requirement of notice pleading to
provide “a short and plain statement of the claim showing that the party is entitled to
relief.” Civ.R. 8(A). Where there is no discernable claim in the complaint, the violation of
Civ.R. 8(A) is a valid ground for dismissal under Civ.R. 12(B)(6). See Sultaana v.
Horseshoe Casino, 8th Dist. Cuyahoga No. 102501, 2015-Ohio-4083, ¶ 10-14; Karras
v. Rogers, 10th Dist. Franklin No. 09AP-221, 2008-Ohio-5760, ¶ 10-11. I find that any
later assertion of untimely production is subject to dismissal for failure to state a claim.
       {¶9} Next, even had McNatt stated a claim regarding timeliness, and assuming
arguendo that the court found a violation, and assuming further that statutory damages
are an available remedy in an action brought under R.C. 2743.75, McNatt did not make
his request in writing “by hand delivery or certified mail,” a condition precedent to an
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award of statutory damages under the version of R.C. 149.43(C)(2) in effect at the time
the request was made. State ex rel. Hogan Lovells U.S., L.L.P. v. Dept. of Rehab. &
Corr., Slip Opinion No. 2018-Ohio-5133, ¶ 35. He is thus ineligible for statutory
damages.
       {¶10} Finally, McNatt misapprehends the meaning of “any other costs associated
with the action that were incurred.” R.C. 2743.75(F)(3)(b). In Ohio law,
       Even with the word “all” placed before “costs” in R.C. 3515.09, the key word in
       the statute is “costs.” Benda v. Fana (1967), 10 Ohio St.2d 259, 263, 39 O.O.2d
       410, 413, 227 N.E.2d 197, 201 (“costs” and “all costs” synonymous). “Costs are
       generally defined as the statutory fees to which officers, witnesses, jurors, and
       others are entitled for their services in an action and which the statutes authorize
       to be taxed and included in the judgment.” (Emphasis added.) Id. at paragraph
       one of the syllabus; State, ex rel. Commrs. of Franklin Cty., v. Guilbert (1907), 77
       Ohio St. 333, 338, 83 N.E. 80, 81. In other words, a particular litigation expense
       will not qualify as part of “costs” unless it is “fixed and taxable according to
       statute.” Benda, supra, 10 Ohio St.2d at 263, 39 O.O.2d at 413, 227 N.E.2d at
       201. “‘[C]osts’ are not synonymous with [litigation] expenses unless expressly
       made so by statute.” Id.

In re Election of November 6, 62 Ohio St.3d 1, 4, 577 N.E.2d 343 (1991). But see
Schuller v. United States Steel Corp., 103 Ohio St.3d 157, 2004-Ohio-4753, 814 N.E.2d
857, ¶ 6-10 (under a legislative mandate that workers’ compensation statutes be
liberally construed, the phrase “cost of any legal proceedings” is interpreted broadly). In
any case, because McNatt is ineligible for recovery of his filing fee or costs for the
reasons noted earlier, the court need not evaluate which, if any, of his listed expenses
were “costs” “associated with the action” and “incurred” within the meaning of the
statute.
       Conclusion
       {¶11} Upon consideration of the pleadings and attachments, I recommend that
the court 1) find that the claim for production of records is moot, and 2) dismiss for
failure to state a claim upon which relief can be granted any other purported violation. I
Case No. 2018-01256PQ                       -5-     REPORT AND RECOMMENDATION


recommend that the case be dismissed with prejudice pursuant to R.C. 2743.75(E)(1),
and that court costs be absorbed by the court.
        {¶12} 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 January 8, 2019
Sent to S.C. Reporter 2/12/19
