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




MICHAEL ISREAL                                         Case No. 2019-00548PQ

       Requester                                       Special Master Jeffery W. Clark

       v.                                              REPORT AND RECOMMENDATION

FRANKLIN COUNTY COMMISSIONERS

       Respondent

        {¶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
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
