[Cite as Turner v. Lyndhurst, 2017-Ohio-7129.]




ELAINE TURNER                                    Case No. 2017-00379-PQ

       Requester                                 Special Master Jeffery W. Clark

       v.                                        REPORT AND RECOMMENDATION

CITY OF LYNDHURST-
MAYOR’S OFFICE

       Respondent


        {¶1} On April 24, 2017, requester Elaine Turner filed a complaint under R.C.
2743.75 alleging denial of access to public records in violation of R.C. 149.43(B) by
respondent City of Lyndhurst – Mayor’s Office (“Lyndhurst” or “City”). On May 1, 2017,
the court issued an order requiring Turner to submit a copy of her original public records
request, along with any written responses or other communications relating to the
request, as required by R.C. 2743.75(D)(1). On May 16, 2017, Turner filed 34 pages of
emails and attachments, titled “All Correspondence Case # 2017-00379-PQ.” The case
proceeded to mediation, and on June 30, 2017, the court was notified that the case was
not resolved and that mediation was terminated. On July 10, 2017, the City filed its
response and motion to dismiss.
        {¶2} R.C. 149.43(C) provides that a person allegedly aggrieved by a violation
of division (B) of that section may either commence a mandamus action, or file
a complaint under R.C. 2743.75. In mandamus actions alleging violations of
R.C. 149.43(B), a relator must establish by “clear and convincing evidence” that she is
entitled to relief. State ex rel. Miller v. Ohio State Hwy. Patrol, 136 Ohio St.3d 350,
2013-Ohio-3720, ¶ 14. As for actions under R.C. 2743.75 alleging violations of
R.C. 149.43(B), neither party has suggested that another standard should apply, nor is
another standard prescribed by statute. R.C. 2743.75(F)(1) states that such claims are
to be determined through “the ordinary application of statutory law and case law * * *.”
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Accordingly, the merits of this claim shall be determined under a standard of clear and
convincing evidence, i.e., “that measure or degree of proof which is more than a mere
‘preponderance of the evidence,’ but not to the extent of such certainty as is required
‘beyond a reasonable doubt’ in criminal cases, and which will produce in the mind of the
trier of facts a firm belief or conviction as to the facts sought to be established.” Cross v.
Ledford, 161 Ohio St. 469 (1954), paragraph three of the syllabus.
       {¶3} The City moves to dismiss the complaint on the grounds that: 1) the City has
timely produced all pertinent documents that are responsive to Turner’s requests,
2) Turner’s requests are for information rather than for specific existing records, and
3) Turner makes an impermissible request to create new records.              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 (1988). Then,
before the court may dismiss the complaint, it must appear beyond doubt that plaintiff
can prove no set of facts entitling her to recovery. O'Brien v. Univ. Community Tenants
Union, Inc., 42 Ohio St.2d 242, 245 (1975). The unsupported conclusions of a complaint
are, however, not admitted and are insufficient to withstand a motion to dismiss. Mitchell
at 193.
       {¶4} In ruling on the motion to dismiss, the court is mindful that the policy
underlying the Public Records 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, ¶ 20.    Therefore, R.C. 149.43 must be construed “liberally in favor of broad
access, and any doubt is resolved in favor of disclosure of public records.” State ex rel.
Cincinnati Enquirer v. Hamilton Cty., 75 Ohio St.3d 374, 376, 662 N.E.2d 334 (1996).
       {¶5} 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 of records moot. State ex rel. Striker v. Smith, 129 Ohio St.3d 168, 2011-
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Ohio-2878, ¶ 18-22. A court considering a claim of mootness must first determine what
records were requested, and then whether all responsive records were provided.
In the complaint itself, Turner stated:
           a. “After questioning an budget allocated expense after I attended a council
              meeting last winter, I asked for more info on what the 976,000 spent for
              Permanent Improvement Fund 410. I also placed inquiry into the Mayors
              80,000 in “other” expenses.. I finally received expense report stating
              these amounts, with the Mayors hospitalization acounting for 35,000, from
              the mayors private lawyer Paul Murphy but denied any further document
              to me with regard to the DETAILS of permanent improv. fund. I did get a
              roofing contract receipt for 2,000!” (Complaint p. 1.)1
In apparent reference to the same December request, Turner later stated:
           b. “In December of 2016 I asked the mayor for a report of expenditures
              because the year before I remembered there was something like one
              million allocated for a permanent improvement fund * * * After numerous
              emails which felt like playing riddle games with the requesting of the
              correct document, by name, I got it right, and the attorney paul Murphy
              finally granted me the city’s expense report.” (Complaint, p. 3.)
The complaint then alluded to follow-up questions Turner made to the Mayor and the
City Attorney to “explain” or “detail” the expense report, and her dissatisfaction with the
responses they made to those questions.
       {¶6} Turner did not attach to her complaint a copy of “the original records request
and any written responses or other communications relating to the request from the
public office or person responsible for public records,” as required by R.C.
2743.75(D)(1), or indicate whether the request had been verbal or in writing. Her only
description of the request was that she had asked for “more info” or “a report of
expenditures,” and the complaint stated that with respect to either formulation of the
request she had “finally received expense report stating these amounts,” and “I got it
right, and the attorney paul Murphy finally granted me the city’s expense report.” To


       1 All spelling, grammar, and punctuation in quotes from the parties’ correspondence are
reproduced verbatim.
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clarify this claim, the court issued an order on May 1, 2017 for Turner to provide the
statutorily required documentation of her request(s), and responses. In response to this
order, Turner submitted copies of email correspondence with Lyndhurst dated
December 28, 2016 through May 10, 2017, which revealed the following:
      {¶7} The earliest email is dated December 28, 2016, from Law Director Paul
Murphy to Turner stating:
          c. “This email will confirm our telephone conversation of this morning. At
             that time I stated I was the Director of Law for the City of Lyndhurst, and in
             that capacity I reply to all public records requests. I was calling to clarify
             your public records request made to Mrs. Kovalchik by voice mail last
             week. Your request for certain records was unclear, and could involve
             many thousands of documents.
          d. As a result of our conversation, I am sending to you the Minutes from the
             only Council Meeting you attended and spoke at last year, March 7. Many
             budgetary items were reported on at that Meeting, and the Minutes may
             jog your memory as to the information you seek. I am also enclosing a
             copy of Ordinance                  No. 2016-13, which was adopted at that
             Meeting, and again may jog your memory as to the information
             (specifically, $1,000,000.00 in capital improvements) you believe you
             heard discussed. Finally, I am enclosing a copy of the deer survey results
             you previously requested from Mayor Ward.
          e. This completes the City's response to your requests. Any future public
             records requests should be addressed to me. My contact information is
             listed below.”
At 3:28 PM Turner replied,
          f. “I’m going to need a bit more detail on 410. Also the mayors “other”
             expenses”.
At 3:38 PM Murphy responded,
          g. “That is not a valid public records request. These documents were
             provided to you, not at your request, but only in my effort to jog your
             memory as to which documents you were referring to in your message,
             since you said you heard references to them at the Council Meeting you
             attended and spoke at.
      Please specify a certain public record, and it will be provided to you if it exists.”
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At 3:40 PM Turner replied,
          h. “It seems I'm encountering obstruction. No surprise. You will be hearing
             from an attorney.”


At 4:12 PM Murphy responded,
          i.   “Thank you. Please have he or she contact me.”
Turner concluded the December 28, 2016 correspondence with,
          j.   “It will be Dave yost directly.”
On December 29, Murphy responded,
          k. “Fine. Have Mr. Yost contact me, and we will talk.”
Later that day, Murphy added,
          l.   “I have continued to investigate responses to your public records request
               regarding capital improvements to the Lyndhurst Community Center. The
               most recent contract at the Center involved replacement of the roof in
               2015. Attached for your information is the closeout Change Order which
               reflects the Project, the Contractor and the final Contract amount. The
               legislation approving the Change Order was adopted by Council as
               Ordinance No. 2016-75 on September 19, 2016.
          m. I will do nothing further until I hear from your attorney.”

       {¶8} The evidence submitted in this case does not include the specifics of the
“public records request made to Mrs. Kovalchik by voice mail last week,” other than a
general reference in Murphy’s December 29, 2017 email to “your public records request
regarding capital improvements to the Lyndhurst Community Center,” and his provision
of a 2015 contract in response to that request. In his affidavit attached to the City’s
response, Murphy refers to a December 21, 2016 public records inquiry by Turner which
led to a telephone conversation with him, again in general terms:
          n. “It was apparent from this conversation that Turner was concerned with a
             capital improvement budgetary item totaling one million dollars as well as
             the working of the City’s animal control department.”
(Murphy Affidavit at ¶ 2.)
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      {¶9} Next, on January 9, 2017 Turner sent an email to Murphy stating that,
         o. “Under Ohio revised code 149 43 (b)(3) you need to express in writing
            denial of requested forms for the mayors personal expenditures separate
            from salary in the year 2016 Also requested is the special improvement
            fund expenses for same year as well as the community center expenses
            itemized. Also the animal control expenses. I have been told by the state
            auditors office, Michelle sty that these docs must be made transparent.”
At 2:14 the same day, Murphy responded that,
         p. “Your request has not been denied. I simply requested clarification of the
            public records requested, since you were unclear as to which specific
            records you were requesting. The City is not required to answer your
            questions, nor is it required to create records where none exist.
         q. Please request records which actually exist, and they will be provided to
            you. If the records requested do not exist, you will be informed of that as
            well.”
On January 10, 2017, Turner replied,
         r. “It's clear I won't get what I am asking for, or you will tell me a 2016 mayor
            expense report does not exist, or documents pertaining to the special
            improvement fund or allocation of funds for "animal control" of which
            34,000 was granted, so please admit you are denying it and I can
            proceed.. Thank you.”
On January 13, 2017, Turner sent an email to Murphy stating,
         s. “Hello, I am still waiting three documents requested previously.
         t. The mayors 2016 annual expense report, including anything additional to
            150,000 salary
         u. Any accounts payable documents or report regarding the animal control
            budget, which was set at 34,000
         v. Any public document regarding special fund 410, for which was budgeted
            1 million, 200,000
         w. Please let me know the status or if these documents do not exist.”
Murphy responded,
         x. “You have still not requested copies of specific public records, you are
            simply requesting information, which is not the intent of the Statute. The
            City is not required to create a document in order to answer your
Case No. 2017-00379-PQ                      -7-      REPORT AND RECOMMENDATION


               questions. Please read the Statute, a copy of which is attached to this
               email.
           y. In an attempt to provide to you the public records which may answer your
              questions, attached are the following:
           -   a 20 page document captioned “Expense Account Report” dated
               1/04/2017 which identified the departments and the cost centers
               associated with the department (for example, Mayor is #7711, Community
               Center is #4418);
           -   a 257 page document captioned “Expense Audit Trail Report” dated
               1/05/17 which details every transaction in 2016.
        {¶10} This completes the City’s response to your request.”
(Response, Exhibit B.) Notably, despite this court’s May 1, 2017 order directing Turner
to file “any written responses or other communications relating to the request from the
city of Lyndhurst,” she failed to submit the above January 13, 2017 email response from
Murphy with her filing titled “All Correspondence Case # 2017-00379-PQ.” Murphy’s
concluding email provided her with 277 pages of documents responsive to her request,
and his statement that provision of these records “completes the City’s response”
constituted a denial of any remaining request.
        {¶11} On January 20, 2017, Turner sent an email to Lyndhurst Mayor Patrick
Ward.    Without any reference to her receipt of the Expense Account Report and
Expense Audit Trail Report, Turner posed questions regarding:
           z. “What services does the outsourced animal warden provide for a cost of
              34,000, excluding the 1500 or so for deer killing?” and “What projects
              using 410 permanent improvements were made totaling over 900,000?
              Your law director told me that these documents are not available or failure
              of disclosure, not sure. Making sure that’s correct.”
(Emphasis added.) At 3:48 PM the same day, Mayor Ward responded by stating, in
part:
           aa. “Our Director of Law, Mr. Murphy, has been kind enough to copy me on
               his responses to your Public Records Requests. While we believe the
               answers you were seeking can be found in the documents provided he
               went further to suggest you could provide more specifics so that, if there is
Case No. 2017-00379-PQ                         -8-      REPORT AND RECOMMENDATION


                 a document that more closely matches those specifics, it could be
                 provided so you would have the real information you seek without hunting
                 for it.”
Mayor Ward then provided a paragraph of explanation for each question in Turner’s
email.       Turner responded at 6:05 PM with her opinions regarding domestic animal
control and her understanding that sidewalks have their own project fund, and
concluded,
              bb. “Since I’m getting no answers on the specific projects and amounts of that
                  fund I’m going to go forward with my state complaint.
              cc. This is my last communication.”
         {¶12} Construing the January 9-20, 2017 correspondence in a manner most
favorable to Turner, the documentation shows that Murphy urged her to utilize the
previously provided minutes, ordinance, and expense reports to clarify her original
public records request “made to Mrs. Kovalchik by voice mail.”                Turner’s email of
January 13, 2017, thus can be construed as the clarification requested by the City, or, in
the alternative, as a new request. Her January 13, 2017 email states:
              dd. “Hello, I am still waiting three documents requested previously.
              ee. The mayors 2016 annual expense report, including anything additional to
                  150,000 salary
              ff. Any accounts payable documents or report regarding the animal control
                  budget, which was set at 34,000
              gg. Any public document regarding special fund 410, for which was budgeted
                  1 million, 200,000”

         {¶13} The Expense Audit Trail Report and Expense Account Report sent to
Turner in response to this clarification on January 13, 2017 contain information directly
responsive to the requests, along with other City expense information beyond that
requested.2 The Expense Audit Trail Report details debits and credits assigned to City


         2 On June 21, 2017, Murphy filed a CD-ROM containing the 20-page Express Account Report
dated January 4, 2017, the 257-page Expense Audit Trail Report dated January 5, 2017, and copies of
the City’s other previous responses to Turner’s requests.
Case No. 2017-00379-PQ                     -9-      REPORT AND RECOMMENDATION


Funds, including the Mayor (code 7711), Animal Control (code 1114), and the
Permanent Improvement Fund (code 410).           Each debit or credit is identified by a
transaction description, vendor number, invoice number, and debit/credit/other amount.
The Expense Account Report details, for City accounts including the Mayor, Animal
Control, and the Permanent Improvement Fund, the account budget amounts,
MTD expenses, YTD expenses, encumbrances, and unencumbered balances. Both
Reports are in .pdf format, searchable by codes or key words such as Community
Center, Sidewalks, etc. Since the reports appear to contain the itemized expenses from
2016 attributable to the Mayor, and in the absence of any testimony that a separate
“mayor’s annual expense report” exists, I conclude that the reports satisfy Turner’s
request for “[t]he mayors 2016 annual expense report, including anything additional to
150,000 salary,” and recommend that the motion to dismiss Turner’s claim to enforce
this request be GRANTED.
      {¶14} With respect to Turner’s request for records regarding the animal control
budget, the reports provided by the City are partially, but not fully, responsive. Having
provided the report regarding the animal control budget, the City supports its denial of
further response to this request on the grounds that doing so would require the City to
create new documents. (Response at p. 4.) While the City is correct that it is not
required to create new documents in response to a public records request, State ex rel.
Morgan v. City of New Lexington, 112 Ohio St.3d 33, 2006-Ohio-6365, ¶ 30; Salemi v.
Cleveland Metroparks, 8th Dist. Cuyahoga No. 100761, 2014-Ohio-3914, ¶ 29-30, the
request for “[a]ny accounts payable documents * * * regarding the animal control
budget” does not call for anything but existing documents. The term “accounts payable
documents” would encompass the 15 invoices listed on page 33 of the City’s Expense
Audit Trail Report.   I therefore recommend that the City’s motion to dismiss be
OVERRULED as to the request for these documents, and that the City be ordered to
provide Turner with copies of those invoices.
Case No. 2017-00379-PQ                     -10-     REPORT AND RECOMMENDATION


       {¶15} With respect to Turner’s request for “[a]ny public document regarding
special fund 410,” the request is both ambiguous and overly broad, and was properly
denied by the City after Turner had been provided multiple opportunities to revise the
request based on organizational and identification information provided to her in City
ordinance, expense, and audit trail documents.           R.C. 149.43(B)(2).      It is the
responsibility of the person who wishes to inspect records to identify with reasonable
clarity the records at issue.    State ex rel. Zidonis v. Columbus State Community
College, 133 Ohio St.3d 122, 2012-Ohio-4228, 976 N.E.2d 861, ¶ 21. The obligations
of R.C. 149.43(B) are only invoked where a request that describes the records sought
with reasonable clarity has been made. State ex rel. Dehler v. Spatny, 127 Ohio St.3d
312, 2010-Ohio-5711, 939 N.E.2d 831, ¶ 3; State ex rel. Morgan v. New Lexington, 112
Ohio St.3d 33, 2006-Ohio-6365, 857 N.E.2d 1208, ¶ 29; State ex rel. Dillery v. Icsman,
92 Ohio St.3d 312, 314, 2001-Ohio-193, 750 N.E.2d 156. Turner’s request for “any
public document regarding” an entire category of City programs does not provide the
City with the ability to identify a defined set of responsive records. The word “regarding”
is inherently ambiguous unless modified by more specific limiting language, such as
“accounts payable documents” in the request for animal control budget records. As
used in her request for special fund 410 records, “any public document” could mean
anything from the expense account reports that the City has provided, to press
releases, or emails, or meeting minutes, or other unguessed documents tangentially
“regarding” the special fund. I therefore recommend that the City’s motion to dismiss be
GRANTED as to the request for documents regarding special fund 410 records.
       {¶16} The parties retain the ability to continue negotiating their respective
interests in obtaining and providing any records that Turner seeks. The information in
the provided expense reports would clearly permit Turner to identify and request
additional specific records listed there, by invoice or other identifying criteria. In its
correspondence, Lyndhurst offered to discuss narrowing the request to help identify the
Case No. 2017-00379-PQ                   -11-     REPORT AND RECOMMENDATION


actual, existing records that Turner desires.   Such discussions are favored by the
courts, and could profitably include Lyndhurst referring Turner to its records retention
schedules relevant to the request, and Turner narrowing her request with this and other
information provided through discussion. Nat'l Fedn. of the Blind of Ohio v. Ohio Rehab.
Servs. Comm'n, 10th Dist. Franklin No. 09AP-1177, 2010-Ohio-3384, ¶ 39. The parties
are encouraged to cooperate going forward to achieve mutually acceptable resolution of
their interests. See State ex rel. Morgan v. Strickland, 121 Ohio St.3d 600, 2009-Ohio-
1901, ¶ 18-20.
      Conclusion
      {¶17} Upon consideration of the pleadings and attachments, I find that Lyndhurst
promptly provided reports responsive to Turner’s requests for “mayors 2016 annual
expense report, including anything additional to 150,000 salary,” and “report regarding
the animal control budget.” The records provided rendered Turner’s requests for
production of these reports moot.    I further find that Turner has failed to establish
by clear and convincing evidence that the City of Lyndhurst violated division (B)
of R.C. 149.43 with respect to her request for “[a]ny public document regarding
special fund 410,” as this is an improperly ambiguous and overly broad request.
R.C. 149.43(B)(2). I recommend that the City’s motion to dismiss for failure to state a
claim pursuant to Civ.R. 12(B)(6) be GRANTED as to these claims.
      {¶18} I further find that Turner has established by clear and convincing evidence
that Lyndhurst has violated division (B) of R.C. 149.43 with respect to her request for
“[a]ny accounts payable documents * * * regarding the animal control budget” for 2016,
and recommend that Lyndhurst be ordered to provide Turner with copies of the 2016
invoices listed in the Expense Audit Trail Report as pertaining to the animal control
budget.
      {¶19} I find that the majority of Turner’s claim was rendered moot prior to her
filing this action, and the few records ordered produced are de minimus. Overall, the
Case No. 2017-00379-PQ                     -12-     REPORT AND RECOMMENDATION


City did not act unreasonably in seeking clarification of Turner’s ambiguous requests,
including providing reports and other records to either answer her questions, or assist
her in fashioning properly specific requests. State ex rel. Strothers v. Keenon, 8th Dist.
Cuyahoga No. 103313, 2016-Ohio-405, ¶ 30. I therefore recommend that Turner be
entitled to recover the amount of the filing fee under R.C. 2743.75(F)(3)(b), but that the
parties share the court costs equally.
        {¶20} 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

cc:
Elaine Turner                                Raymond J. Schmidlin, Jr.
1395 Richmond Road                           840 Brainard Road
Lyndhurst, Ohio 44124                        Highland Heights, Ohio 44143



Filed July 25, 2017
Sent to S.C. Reporter 8/7/17
