[Cite as State ex rel. Adams v. Ohio State Univ., 2020-Ohio-2843.]


                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT


State of Ohio ex rel. Bret Adams,                     :

                 Relator,                             :

v.                                                    :              No. 18AP-1005

The Ohio State University,                            :         (REGULAR CALENDAR)

                 Respondent.                          :




                                          D E C I S I O N

                                        Rendered on May 7, 2020



                 On brief: Bret Adams, pro se.

                 On brief: Dave Yost, Attorney General, Ashley A. Barbone,
                 and Todd Marti, for respondent.

                                             IN MANDAMUS
DORRIAN, J.
        {¶ 1} In this original action, relator, Bret Adams, requests a writ of mandamus
ordering respondent, The Ohio State University, to further comply with relator's public
records request under R.C. 149.43.
        {¶ 2} Pursuant to Civ.R. 53 and Loc.R. 13(M) of the Tenth District Court of Appeals,
this matter was referred to a magistrate who issued a decision, including findings of fact
and conclusions of law, which is appended hereto. The magistrate recommends this court
grant the requested writ of mandamus.
        {¶ 3} No party has filed objections to the magistrate's decision. The case is now
before this court for review.
No. 18AP-1005                                                                             2


       {¶ 4} No error of law or other defect is evident on the face of the magistrate's
decision. Therefore, we adopt the findings of fact and conclusions of law contained therein.
Accordingly, relator's request for a writ of mandamus is granted.
                                                                             Writ granted.
                         SADLER, P.J., and BROWN, J., concur.
No. 18AP-1005                                                                           3


                                      APPENDIX

                         IN THE COURT OF APPEALS OF OHIO

                             TENTH APPELLATE DISTRICT

State ex rel. Bret Adams,                      :

              Relator,                         :

v.                                             :                     No. 18AP-1005

The Ohio State University,                     :               (REGULAR CALENDAR)

              Respondent.                      :


                            MAGISTRATE'S DECISION

                              Rendered on February 13, 2020


              Bret Adams, pro se.

              Dave Yost, Attorney General, Jeffrey Knight, and Todd Marti,
              for respondent.


                                      IN MANDAMUS

       {¶ 5} Relator, Bret Adams, filed this original action requesting a writ of mandamus
ordering respondent, The Ohio State University ("OSU" or "University"), to comply more
completely with relator's public records request under R.C. 149.43. Relator also seeks to
recover statutory damages, attorney fees, and court costs pursuant to R.C. 149.43(C)(1)(b)
and (C)(3)(b) based upon respondent's allegedly dilatory response to his initial public
records request.
Findings of Fact:
       {¶ 6} 1. Relator brings this action as a complaint for a writ of mandamus pursuant
to Ohio's Public Records Act, R.C. 149.43, seeking a writ to compel OSU, to produce copies
of public records that are within its possession, custody, or control.
No. 18AP-1005                                                                              4


       {¶ 7} 2. OSU is a public office as defined in R.C. 149.43(A)(1).
       {¶ 8} 3. OSU's principal facilities are located in Franklin County, Ohio.
       {¶ 9} 4. Jurisdiction and venue for an original action in mandamus lie with this
court pursuant to the Ohio Constitution, Article IV, Section 3(B)(1)(b), R.C. 2731.02, and
R.C. 149.43(C)(1)(b).
       {¶ 10} 5. Relator filed his complaint in mandamus on December 31, 2018.
       {¶ 11} 6. The complaint alleges that relator initiated his public records request on
September 4, 2018 with an e-mail to Robert Moormann, the director of public records for
OSU, and Scott A. Hainer, the public records program coordinator for OSU.               The
complaint further alleges that both recipients of the e-mail work in the Office of University
Compliance and Integrity.
       {¶ 12} 7. The September 4, 2018 e-mail requested all communications to or from
Tim Pernetti, Andrew R. Judelson, Rick Barakat, Dan Barrett, and Ray DeWeese, and 14
university officers and employees.
       {¶ 13} 8. The complaint describes DeWeese as a senior vice president with IMG
College, LLC, a firm that provides sports marketing services for OSU.
       {¶ 14} 9. The public records request derives from relator's interest in advertising
banners displayed at OSU's Ohio Stadium depicting former players in conjunction with a
Honda automobile logo.
       {¶ 15} 10. On    September     10,   2018,   Moormann      responded    to   relator's
September 4, 2018 e-mail by notifying relator that the university considered the request
overbroad, and inviting relator to revise the request to narrow its focus.
       {¶ 16} 11. Relator submitted a modified request on September 10, 2018 reducing
it to a request for correspondence between DeWeese and the 14 named university
employees.
       {¶ 17} 12. Moormann responded that the renewed request was still overbroad and
requested that relator produce key words and search topics to filter the correspondence.
       {¶ 18} 13. On September 13, 2018, relator e-mailed Moormann providing a list of
14 subjects and key words to apply to the requested DeWeese correspondence.
       {¶ 19} 14. Moormann immediately responded to relator's list of topics and
indicated that the university would now process the public records request.
No. 18AP-1005                                                                          5


      {¶ 20} 15. Relator responded the same day with three added topics to be included.
      {¶ 21} 16. Still on September 13, 2018, Moormann responded to the expanded
subject list and reiterated that the university would screen the requested communications
for privileged or non-disclosable information, and respond to the request. This e-mail
summarized Moormann's understanding of relator's request:
             Just so we are on the same page, here are the full parameters
             of your request:

             All communications to or from Ray DeWeese with any of the
             following individuals or persons holding these titles from
             April 1, 2009 to Dec. 5, 2016:

             Gene Smith Senior Vice President & Wolfe Foundation
                        Endowed Athletics Director

             Joe Odoguardi         Senior Associate AD, Finance/CFO

             Dan Wallenberg        Assoc AD, Communications

             Doug Archie           Assoc AD, Compliance

             Andy DeVito Director, Creative Services & Branding

             Pat Kindig     Assistant Athletics Director, Digital Assets

             Don Patko      Assoc AD, Facilities Operations

             Tyler Jones Assistant Athletics Director, Fan Engagement

             Zach Swartz Dir, Creative Media & Post Production

             Jim Null       Senior Associate AD, CIO Athletics & Business
                            Advancement

             Julie Vannatta        Senior Associate AD, Legal Services

             Mary Lynn Readey Associate Vice President

             Steve Malone          University Signage Coordinator

             Rick Van Brimmer Trademarks and Licensing Director

             Regarding these subject matters:
No. 18AP-1005                                                                             6


              Honda
              Banner Program
              Insurance
              Spielman
              Disabato
              Adams
              Litigation
              Nike
              McDonald's
              Player programs
              Former Players
              Naming rights
              Legal fees
              Legal opinion
              Sponsorship
              Sponsorship Agreement

       {¶ 22} 17. On October 15, 2018, Moormann sent an e-mail to relator updating
relator on the progress of the university's response: "We have almost completed our initial
review of the records and are moving as quickly as possible. Thanks for your patience."
       {¶ 23} 18. On November 1, 2018, Moormann again provided an update by e-mail:
"We are in our final stages of review. Thanks for your patience."
       {¶ 24} 19. On December 13, 2018, the university provided its final response to
relator's public records request, having reviewed and excluded exempt communications.
       {¶ 25} 20. OSU's December 13, 2018 response contains 221 pages of e-mails dated
November 6, 2016 to July 20, 2017. The public records request response does not contain
any communications dated between April 1, 2009 and November 6, 2016. The great
majority of e-mails included in the response note relator as a sender or addressee, or
concern matters that relator was personally involved with in his work as an agent for a
former OSU athlete.
       {¶ 26} 21. OSU has a published six-year records retention policy for intellectual
property rights documentation.
       {¶ 27} 22. Relator asserts, and respondent does not refute, that the Honda
advertising banners first appeared in Ohio Stadium no later than 2011, and remained in
place at the time relator made his public records request.
       {¶ 28} 23. The parties filed their stipulated evidence in the case, consisting
primarily of the e-mail chain covering communications between relator and OSU, the 221
No. 18AP-1005                                                                            7


pages of records furnished in OSU's final response to the public records request, and
Moormann's affidavit (the "February 20, 2019 Moormann affidavit") describing the
response process.
       {¶ 29} 24. The parties subsequently filed revised evidence containing the same 221
pages of records furnished earlier, with some of the redacted material restored. This later
submission contains a further affidavit from Moormann (the "April 22, 2019 Moormann
affidavit.").
       {¶ 30} 25. The April 22, 2019 Moormann affidavit states as follows:
                [Two] On September 13, 2018, I began the search for, and
                review of, potentially responsive records. Utilizing University
                technology resources, I searched for all emails between Ray
                DeWeese and any one of the 14 individuals listed by Mr.
                Adams in his September 13, 2018 email. This search was not
                limited by keywords, as I wanted to capture the broadest
                possible swath of potentially responsive records. As expected,
                the search resulted in identifying several thousand potentially
                responsive records.

                [Three] Since the potentially responsive records were in
                native, Personal Storage Table (".pst") format, I was able to
                utilize a keyword search to further narrow the records sought
                by Mr. Adams. The keyword that I utilized was: "Honda". This
                keyword was chosen to in an effort to capture those records
                that I reasonably believed to be both of interest to Mr. Adams
                and responsive to his request.

                [Four] Having identified those records that contained the
                keyword "Honda," I continued my review to identify any
                information, records, or email that in any way pertained to the
                Honda banners at Ohio Stadium.

                [Five] Once my review was complete, I requested input from
                the necessary stakeholders across campus to ensure that all
                exempt information was properly redacted. This included
                seeking input from University attorneys who were better
                positioned to identify information exempt from disclosure
                pursuant to the attorney-client privilege, attorney work
                product, or both.

                [Six] When these reviews were complete, responsive, non-
                exempt records were produced to Mr. Adams on December 13,
                2018.
No. 18AP-1005                                                                           8


              [Seven] Without using the limiting Honda search term and
              reviewing for documents that in any way pertained to the
              Honda banners at Ohio Stadium, the broad search terms
              provided by Mr. Adams would have resulted in thousands of
              emails and records completely unrelated to the subject matter
              of the Honda banners at Ohio Stadium.

Discussion and Conclusions of Law:
       {¶ 31} Relator contends that OSU did not provide a timely response to his public
records request. Relator also contends that the eventual response was necessarily
incomplete, because the factual context of the matter makes it impossible that there were
no communications regarding the banners earlier than November 6, 2016. Relator also
complains that the documents furnished consist almost entirely of communications to
which relator was a party, or at least privy.
       {¶ 32} The magistrate first considers the completeness of OSU's response to
relator's request. Relator argues that he requested documents for a 93-month time frame,
and the university has produced documents responsive only to the last month of that time
frame, when OSU's own records retention policy dictates that OSU should, at the least,
have included all pertinent communications in the six years preceding relator's
September 4, 2018 request.
       {¶ 33} The purpose of the Ohio Public Records Act is to "expose government
activity to public scrutiny, which is absolutely essential to the proper working of a
democracy." State ex rel. Gannett Satellite Info. Network, Inc. v. Petro, 80 Ohio St.3d
261 (1997), citing State ex rel. WHIO-TV-7 v. Lowe, 77 Ohio St.3d 350 (1997). Scrutiny
of public records allows citizens to evaluate the rationale behind government decisions so
that government officials can be held accountable.        White v. Clinton Cty. Bd. of
Commrs., 76 Ohio St.3d 416, 420 (1996).
       {¶ 34} The appropriate remedy to compel compliance with Ohio's Public Records
Act is an action in mandamus. R.C. 149.43(C)(1); State ex rel. Physicians Commt. for
Responsible Medicine v. Ohio State Univ. Bd. of Trustees, 108 Ohio St.3d 288, 2006-
Ohio-903. R.C. 149.43 should be construed liberally in favor of broad access to public
records, and any doubt must be resolved in favor of disclosure. State ex rel. Cincinnati
Enquirer v. Hamilton Cty., 75 Ohio St.3d 374 (1996). R.C. 149.43(C)(1) provides for an
award of statutory damages for undue delay in provision of the requested records, even if
No. 18AP-1005                                                                            9


the records sought were eventually provided. State ex rel. McCray v. Ohio Dept. of
Commerce, 10th Dist. No. 11AP-1055, 2012-Ohio-2997. The timeliness of an agency's
response "depends upon all the pertinent facts and circumstances."           State ex rel.
Morgan v. Strickland, 121 Ohio St.3d 600, 2009-Ohio-1901, ¶ 10, citing Consumer News
Servs., Inc. v. Worthington Bd. of Edn., 97 Ohio St.3d 58, 2002-Ohio-5311, ¶ 37-38.
Public offices must promptly prepare and transmit public records within a reasonable
period of time. R.C. 149.43(B)(1). The word "promptly" is not defined in R.C. 149.43 or
any other applicable statute. It must, therefore, be given its usual normal or customary
meaning. State ex rel. Wadd v. Cleveland, 81 Ohio St.3d 50, 53 (1998).
       {¶ 35} The requestor of public records must identify the records sought "with
reasonable clarity," so that the public office can identify responsive records based on the
manner in which it ordinarily maintains and accesses its records. State ex rel. Zidonis v.
Columbus State Community College, 133 Ohio St.3d 122, 2012-Ohio-4228, ¶ 26, 33. See
also State ex rel. Glasgow v. Jones, 119 Ohio St.3d 391, 2008-Ohio-4788, ¶ 17. Otherwise
put, the Public Records Act does not require the public office to speculate regarding the
selection of public records of specific interest to the requestor. State ex rel. Thomas v.
Ohio State Univ., 71 Ohio St.3d 245 (1994).
       {¶ 36} Relator asserts that the narrow time frame covered by the university's
responsive documents, on its face, demonstrates that the university did not make a good
faith effort to locate documents described in relator's request.
       {¶ 37} Moormann's affidavit described the process by which OSU attempted to sift
related e-mails to respond to relator's request. OSU's brief does not identify any
communication, or any averment in the affidavit of Moormann to explain why the
responsive records cover only a single month of the 93 sought, or one topic ("Honda") of
the 17 ultimately suggested by relator and acknowledged by Moormann in his
September 13, 2018 e-mail to relator. OSU provides no explanation as to why older
records, covered by its own record's retention policy, were not "responsive" to relator's
request. The e-mails provided were selected as being communications between the
parties identified in the public records request with the additional filter of having Honda
in the subject or body of the e-mail. The university does not explain why this process
could not have been applied to e-mails preceding those disclosed. It appears that the
No. 18AP-1005                                                                           10


university spontaneously narrowed the suggested search terms to Honda, considering the
other search terms provided by relator to form an overbroad request. The university,
however, does not explain why it narrowed the chronological scope of its response.
      {¶ 38} Relator does not seriously dispute the timeliness of the university's
response in this case. Relator, at best, expresses dissatisfaction: "OSU then delayed
production for more than four months, which itself is probably a violation." (Relator's
Brief at 21.) The magistrate concludes that OSU's response as it now stands was not
unreasonably delayed, and as the case is now postured denies relator's demand for
statutory damages and attorney fees. The magistrate further observes, however, that this
determination may not preclude revisiting the fees and damages issue if OSU's response
to the writ outlined below so warrants.
       {¶ 39} A relatively timely, yet incomplete response to a public records request does
not comport with R.C. 149.43. The magistrate therefore concludes that an appropriately
tailored writ of mandamus is appropriate in the present case. The requested writ is
granted to the extent that OSU shall provide a further, more detailed response to relator's
public records request either furnishing documents included in the full chronological
range of relator's request and covering all of relator's submitted search terms, or furnish
a response to relator explaining why those documents do not exist, do not constitute
public records, or are otherwise unavailable.


                                              /S/ MAGISTRATE
                                              MARTIN L. DAVIS


                              NOTICE TO THE PARTIES

              Civ.R. 53(D)(3)(a)(iii) provides that a party shall not assign as
              error on appeal the court's adoption of any factual finding or
              legal conclusion, whether or not specifically designated as a
              finding of fact or conclusion of law under Civ.R. 53(D)(3)(a)(ii),
              unless the party timely and specifically objects to that factual
              finding or legal conclusion as required by Civ.R. 53(D)(3)(b).
