[Cite as Hurt v. Liberty Twp., 2017-Ohio-825.]




JAMES HURT, et al.                               Case No. 2016-00856-PQ

       Requesters                                Special Master Jeffery W. Clark

       v.                                        REPORT AND RECOMMENDATION

LIBERTY TOWNSHIP

       Respondent



        {¶1} This action is based on public records requests for interview notes taken by
a private person statutorily designated to carry out an official function: to investigate and
prepare charges for removal of a township official.           R.C. 505.38 Appointment of
firefighting personnel, provides in division (A) that:

        [Firefighters and the fire chief] shall continue in office until removed from office as
        provided by sections 733.35 to 733.39 of the Revised Code. To initiate removal
        proceedings, and for that purpose, the board shall designate the fire chief or a
        private citizen to investigate the conduct and prepare the necessary charges in
        conformity with those sections. * * *

        {¶2} On March 21, 2016, the Board of Trustees (“Board”) of respondent Liberty
Township (“Township”) passed Resolution #16-0321-11, “to designate Douglas Duckett
to investigate the conduct of Fire Chief Tim Jensen and prepare the necessary charges
pursuant to Section 505.38 of the Ohio Revised Code * * *.” Requesters’ Exhibit A. In
the course of this investigation, Duckett created and maintained notes related to sixteen
interviews of Township trustees, Township employees, and others (defined in the
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Complaint at ¶ 5, 6 and 8 as the “Duckett notes”).1 On April 26, 2016, he “reviewed
notes of interviews and began outline of issues and completed draft of factual summary
in report.”    Requesters’ Exhibit B.          On May 4, 2016, he “reviewed report against
documents and notes from interviews; edited and revised first draft.” Id. On May 5,
2016, he conducted “Final review of notes and documents; completed final edit of
Report; transmitted report to attorney Edward Kim.” Id. Duckett submitted the final
copy of his report to Mr. Kim on May 10, 2016. Id. The Board then directed Duckett to
prepare charges against Jensen, which he filed on June 6, 2016. Trustee Eichhorn
Affidavit at ¶ 5-6.
        {¶3} Prior to the administrative hearing before the Board, Jensen’s counsel filed a
subpoena for the “notes Mr. Duckett took during the interviews of witnesses during his
investigation.” Trustee Eichhorn Affidavit, ¶ 7-8. The Board considered the subpoena,
“and announced it was granting Mr. Bittner’s subpoena and requiring Mr. Duckett to
produce the notes he took during witness interviews to Mr. Bittner.” Id., ¶ 10-11. The
individual trustees and the Township administrator assert in their affidavits that, other
than the mechanical process of handing the subpoenaed notes to Jensen’s counsel at
the August 8, 2016 hearing, the Duckett notes were never in their individual physical
possession, and were not introduced into evidence at the hearing, e.g. Id., ¶ 12-15.
        {¶4} On May 5, 2016, requester James Hurt made the first of his and requester
Mark Gerber’s public records requests to Township Administrator Matt Huffman for
various items, including the Duckett notes.               Over the next three months, Huffman
provided some of the requested items, but responded that the interview notes were kept
by Duckett as personal records and therefore did not meet the definition of “records.”

        1The  Log of Project Work in Duckett’s Invoice to Liberty Township, Requesters’ Exhibit B, reflects
interviews conducted on March 24, 2016 with “Cathy Buehrer, Trustee Eichhorn, FF Chalaco Clark, and
BC Bill Piwtorek,” on March 25, 2016 with “BC Jim Reardon, FF Scott Simmons, Trustee Leneghan,and
BC Duane Price,” on March 29, 2016 with “Cathy Buehrer,” on March 30, 2016 with “Trustee Thomas
Mitchell and Township Administrator Matt Huffman,” on April 5, 2016 with “Ryan Hanf, Mickey Smith, Jim
Cirigliano, and Warren Yamarick, M.D.,” on April 22, 2016 with “former Fiscal Officer Mark Gerber and
Fire Chief Tim Jensen,” and on April 25, 2016 with “Fire Chief Jensen.”
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Requesters’ Exhibit E. On September 2, 2016, Huffman sent an e-mail to Hurt relaying
the Township legal counsel’s advice that “[t]hose notes are not a public record since the
Township does not have possession of those documents. The documents were never
introduced as exhibits and are not in the record. They were given to Mr. Bittner as a
result of a subpoena.” Requesters’ Exhibit C. On October 12, 2016, Hurt and Gerber
sent a joint e-mail to both Huffman and Duckett, repeating their requests for the Duckett
notes. On October 13, 2016, Duckett sent an e-mail to Gerber that stated:

             You are incorrect as a matter of law that I am “holding public records on
      behalf of Liberty Township. . . .”
             Under the express terms of Section 149.43(A)(1) of the Ohio Revised
      Code, “Public record means records kept by any public office, including . . .
      township[s]. . . .” [Emphasis supplied.] I am not a “public office”; I am an attorney
      with a private law practice. My records are thus not “public records.” This has
      nothing to do with attorney-client privilege; none of my records are public records
      by statutory definition.
             Accordingly, I am not providing any documents in response to your
      request. You need to focus your request on the public office, i.e., Liberty
      Township.

      {¶5} Requesters’ Exhibit F. On September 23, 2016, Township employee Cathy
Buehrer provided Hurt with transcripts of the Duckett interviews of Jensen, and offered
access to the audio recordings of those interviews. Requesters’ Exhibit G.
      {¶6} On November 21, 2016, requesters filed a complaint against the Township
under R.C. 2743.75 alleging denial of access to a public record in violation of R.C.
149.43(B),   attaching   copies   of   the    original   records   requests    and   related
correspondence. Mediation was conducted between requesters and representatives of
the Township. On January 18, 2017, the Court was notified that the case was not
resolved and that mediation was terminated. On February 1, 2017, the Township filed
its motion to dismiss and response to the complaint (“response”).             The Township
attached the affidavits of three Township trustees and the Township administrator.
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        {¶7} As amended by 2015 Sub. S.B. No. 321, 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), case law provides that although the Public
Records Act 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. 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 * * *."
Accordingly, the merits of this claim shall be determined under a standard of clear and
convincing evidence. Clear and convincing evidence is “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, 120 N.E.2d 118
(1954), paragraph three of the syllabus.
        {¶8} The Township moves to dismiss the complaint on the grounds that: 1) the
Duckett notes were created by a private individual not subject to R.C. 149.43; 2) the
Duckett notes are personal notes falling outside of the definition of “public records,” and
3) the Township has never possessed the records. In construing a motion to dismiss
pursuant to Civ.R. 12(B)(6),2 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


        2
        Although the rule is not cited, the motion appears to allege failure to state a claim for which relief
may be granted, Civ.R. 12(B)(6).
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dismiss the complaint, it must appear beyond doubt that plaintiff can prove no set of
facts entitling him 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.
       {¶9} I recommend overruling respondent’s motion for the following reasons:
                     1. The complaint alleges that the requested documents were
                         created and maintained by a third party engaged by the Township
                         to perform the official function of initiating removal proceedings
                         against a Township official.          R.C. 505.38(A).       The Township
                         Resolution states that the investigation and preparation of
                         charges were conducted as a delegation of what is otherwise the
                         Township’s own authority. Requesters’ Exhibit A. The complaint
                         sufficiently alleges that the designee was a party responsible for
                         one of respondent’s official functions, from whom respondent
                         could access those records to satisfy its duty to provide copies
                         upon request. State ex rel. Mazzaro v. Ferguson, 49 Ohio St.3d
                         37, 39, 550 N.E.2d 464 (1990); State ex rel. Cincinnati Enquirer v.
                         Krings, 93 Ohio St.3d 654, 657-660, 758 N.E.2d 1136 (2001).3
                     2. The complaint alleges that the requested notes memorialize
                         sixteen interviews taken to investigate the conduct of a Township
                         official. The notes were utilized to prepare a report, and to file
                         charges, and were then retained by Duckett. At a hearing on the
                         charges the notes were produced to the defendant in response to
                         a subpoena. “Unless otherwise exempted, almost all documents
                         memorializing the activities of a public office can satisfy the

       3  The question of whether Duckett was separately responsible to directly provide copies to a
requester is not before this court, as the complaint names only the Township as a respondent. Krings at
660. For third party responsibility, see Mazzaro at 39.
Case No. 2016-00856-PQ                    -6-     REPORT AND RECOMMENDATION


                      definition of ‘record.’” State ex rel. Data Trace v. Cuyahoga Cty.
                      Fiscal Officer, 131 Ohio St.3d 255, 2012-Ohio-753, ¶ 30, quoting
                      State ex rel. Kish v. Akron, 109 Ohio St.3d 162, 2006-Ohio-1244,
                      at ¶ 20. This generally includes working papers and notes relied
                      on in an investigation. State ex rel. Gannett Satellite Network v.
                      Petro, 80 Ohio St.3d 261, 264, 685 N.E.2d 1223 (1997).
                      Requesters sufficiently allege that the requested documents were
                      “records” coming under the jurisdiction of the Township.
                  3. Requesters allege that Township officials have had possession of
                      and reviewed at least some if not all of the Duckett notes.
                      Affidavits of James Hurt and Mark Gerber, ¶ 4-5. Accepting these
                      statements as true for the purpose of the motion to dismiss, and
                      combined with requesters’ allegation of Duckett’s quasi-agency
                      on behalf of the Township, Complaint, ¶ 3, requesters sufficiently
                      allege that the requested records were both constructively
                      possessed by the Township in the hands of its statutory
                      contractor, Mazzaro, p. 39; Krings, pp. 657-660, as well as
                      physically kept by the Township.
      {¶10} I conclude that requesters have stated allegations that, if proven, may
entitle them to relief under R.C. 2743.75 for denial of access to public records.      I
recommend that the Township's motion to dismiss be DENIED, and that this claim be
determined on its merits.
      {¶11} In considering a disputed claim to public records, the court must resolve
any doubt in favor of access.
      “The rule in Ohio is that public records are the people’s records, and that the
      officials in whose custody they happen to be are merely trustees for the people;
      therefore anyone may inspect such records at any time, subject only to the
      limitation that such inspection does not endanger the safety of the record, or
Case No. 2016-00856-PQ                      -7-     REPORT AND RECOMMENDATION


       unreasonably interfere with the discharge of the duties of the officer having
       custody of the same.” Patterson v. Ayers, 171 Ohio St. 369, 371 (1960).

       {¶12} “The Public Records Act reflects the state’s policy that ‘open government
serves the public interest and our democratic system.’” State ex rel. Glasgow v. Jones,
119 Ohio St.3d 391, 2008-Ohio-4788, ¶ 13, quoting State ex rel. Dann v. Taft, 109 Ohio
St.3d 364, 2006-Ohio-1825, ¶ 20. “Consistent with this policy, we construe R.C. 149.43
liberally in favor of broad access and resolve any doubt in favor of disclosure of public
records.” Id.
       {¶13} As an initial matter, the parties agree that the Township has provided
requesters with the transcripts and audio recordings of the Jensen interviews, and the
claim as it relates to those records is therefore moot. State ex rel. Toledo Blade Co. v.
Toledo-Lucas Cty. Port Auth., 121 Ohio St.3d 537, 2009-Ohio-1767, ¶ 14. Further, with
respect to possession of the Duckett notes, I find failure of proof by clear and convincing
evidence that the notes, other than the transcripts and audio recordings of the Jensen
interviews, have been or are physically kept by the Township.           In their affidavits,
requesters assert “to the best of [their] knowledge and belief” that the Township had
possession of and reviewed “at least some if not all of the Duckett notes,” without
supporting detail.   Respondent’s affidavits assert, on personal knowledge, that they
have not reviewed or possessed any of the Duckett notes, other than during transfer to
Jensen’s defense counsel. I find respondent’s assertions more persuasive.
       {¶14} In denying access to the remainder of the Duckett notes, respondent first
asserts that the notes are “not records,” and therefore not subject to the Public Records
Act.   This issue is subject to the same liberal construction as given to the Public
Records Act itself. In State ex rel. Data Trace v. Cuyahoga Cty. Fiscal Officer, 131 Ohio
St.3d 255, 2012-Ohio-753, ¶ 30, the Court summarized well-established holdings:
       In Kish v. Akron, 109 Ohio St.3d 162, 2006-Ohio-1244, 846 N.E.2d 811, at ¶ 20,
       we recognized the expansive scope of the R.C. 149.011(G) definition of
       “records”:
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             We previously have held that the General Assembly’s use of
             “includes” in R.C. 149.011(G) as a preface to the definition of
             “records” is an indication of expansion rather than constriction,
             restriction, or limitation and that the statute’s use of the phrase “any
             document” is one encompassing all documents that fit within the
             statute’s definition, regardless of “form or characteristic.” State ex
             rel. Cincinnati Post v. Schweikert (1988), 38 Ohio St.3d 170, 172-
             173, 527 N.E.2d 1230. There can be no dispute that there is great
             breadth in the definition of “records” for the purposes here. Unless
             otherwise exempted or excepted, almost all documents
             memorializing the activities of a public office can satisfy the
             definition of “record.” State ex rel. Beacon Journal Publishing Co. v.
             Bond, 98 Ohio St.3d 146, 2002-Ohio-7117, 781 N.E.2d 180, ¶ 13.

      {¶15} R.C. 149.011(G) sets out a three-part definition of “records”:
      (G) “Records” includes any document, device, or item, regardless of physical
      form or characteristic, including an electronic record as defined in
      section 1306.01 of the Revised Code, created or received by or coming under
      the jurisdiction of any public office of the state or its political subdivisions, which
      serves to document the organization, functions, policies, decisions, procedures,
      operations, or other activities of the office.
      {¶16} The Duckett notes satisfy the first part of this definition, as “documents.”
The second part of the definition requires “records” to be items “created or received by
or coming under the jurisdiction of any public office * * *. R.C. 149.011(G). The Duckett
notes were not created or received by respondent, but they document a statutory
process coming under the jurisdiction of the Township to initiate removal proceedings
against an appointed official. R.C. 505.38(A). As background, when the mayor of a
municipal corporation has reason to believe that a fire chief has been guilty of certain
offenses, he shall immediately file charges for removal with the legislative authority.
R.C. 733.35 to 733.39. When a township has reason to believe that a fire chief has
been guilty of the same offenses, R.C. 505.38(A) provides that the board of trustees
may designate a third party to investigate and file the same charges, in conformity with
exactly the same process: “[T]he board shall designate the fire chief or a private citizen
Case No. 2016-00856-PQ                           -9-       REPORT AND RECOMMENDATION


to investigate the conduct and prepare the necessary charges in conformity with
[sections 733.35 to 733.39 of the Revised Code].”4 For both municipal corporations and
townships, the statutory process for removing a fire chief from office is a function
coming under its jurisdiction, and the records documenting that function are
axiomatically under the jurisdiction of the office.
       {¶17} In this case, the Township recognized its own “authority to conduct an
investigation and/or review of the operations of the operation and management of the
Fire Department * * *,” and delegated that authority to Duckett in its Resolution to
Authorize Expenditure for Investigatory Review of Fire Department. Requesters’ Exhibit
A. The requested investigatory notes meet the second prong of the statutory definition
of “records” because, in documenting the exercise of delegated authority of the
Township, they “come under the jurisdiction of” the Township. Mazzaro at 40.
       {¶18} The third prong of the definition is that “records” must serve to document
the organization, functions, policies, decisions, procedures, operations, or other
activities of the office. Respondent argues that the interview notes were taken only for
Duckett’s personal convenience, and did not in their own right document the
organization, functions, policies, decisions, procedures, operations or other activities of
the Township. The Township cites State ex rel. Pietrangelo v. Avon Lake, 2016-Ohio-
5725, Slip Opinion No. 2016 Ohio LEXIS 2289, *7, for the broad proposition that
“personal notes taken by police officers during witness interviews are not public
records.” Response,         p. 9-10. However, the Supreme Court made no such holding in
Pietrangelo, finding instead that the “personal convenience” defense in that case had
been contradicted by admissions that the type of notes requested were customarily
retained for future reference, and that the notes contained more information than was
transferred to the incident report. In a section titled MOOTNESS, the Court declined to

       4 R.C. 505.38(A) also provides that a township board may designate the fire chief to investigate
conduct and prepare charges, presumably when a subordinate member of the fire department is the
subject.
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rule on the disputed issue of the investigator’s notes as “records,” because destruction
of the notes had precluded any order to produce. Id., ¶ 15-20. Further, the Court’s
discussion of the issue reflected that a note’s status as a record is dependent on the
facts and circumstances in each case.
       {¶19} The notes involved in other cases cited by respondent are also
distinguished from the Duckett notes, by their limited function as transient vessels
conveying information from an interview to an official form or interview report. In Hunter
v. Ohio Bureau of Workers' Comp., 10th Dist. Franklin No. 13AP-457, 2014-Ohio-5660,
appeal not allowed, 2015-Ohio-2911, 2015 Ohio LEXIS 1881, BWC interviewers
testified that their notes were used to compose a typewritten, official report of each
interview, and because the handwritten notes were at that point of no further
administrative value they were destroyed in accordance with the office’s Transient
Record retention schedule. Id., ¶ 23-36. Notably, all of the separate typewritten
interview reports were provided to the requester. Id., ¶ 35. Similarly, in State ex rel.
Murray v. Netting, 5th Dist. Guernsey No. 97-CA-24, 1998 Ohio App. LEXIS 4719 *3,
“[t]he notes were personal papers of the interviewers, used to complete the evaluation
forms, to which relator is entitled.” In such cases, where the contents of handwritten
notes are entirely or substantially preserved elsewhere, courts have found the notes to
be non-records or, alternatively, transient records that may be disposed of when no
longer of administrative value. In other cases, where the contents of handwritten notes
were not identical to the final document prepared from them, courts have recognized the
notes’ status as separate records. E.g., State ex rel. Verhovec v. Marietta, 4th Dist.
Washington No. 12CA32,              2013-Ohio-5415, ¶ 30, appeal not accepted, 138 Ohio
St.3d 1470, 2014-Ohio-1674.       The Ohio Supreme Court addressed the mitigating
significance of access to identical content in State ex rel. Cranford v. Cleveland, 103
Ohio St.3d 196; 2004-Ohio-4884, ¶ 19, basing its decision that requested notes were
non-records on a finding, in part, that:
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        Moreover, as in Steffen, “neither litigants nor any other persons lose any
        information” as a result of holding that Ronayne’s personal notes are not public
        records. 67 Ohio St.3d at 441, 619 N.E.2d 688. Ronayne [sic, should be
        Cranford] and his attorney were also present at the predisciplinary conference
        and could have taken their own notes during the conference or requested that it
        be transcribed. In fact, to the extent that Ronayne relied on his notes, he read
        most of them into the transcribed civil service commission hearing to which
        Cranford was afforded access.
        {¶20} There is no indication that the entire or substantial contents of the Duckett
interviews were preserved in other records provided to the requesters. The Duckett
notes were not used for temporary transfer of information to an official form, and were
not read into a hearing record.5 The interview notes are apparently the underlying
documentation of an investigation significantly based on sixteen interviews. The notes
were kept rather than destroyed, and were produced pursuant to subpoena by the
subject of the investigation, presumably to access information non-identical to the
contents of Duckett’s report. The interview notes in this case do not resemble the
transient or form-specific notes in cases cited by respondent, but instead resemble
freestanding law enforcement investigatory work product. See, e.g., State ex rel. Caster
v. Columbus, Slip Opinion No. 2016-Ohio-8394, ¶ 67, 2016 Ohio LEXIS 3066, *39
(including investigator’s interview notes as investigative work product); State ex rel.
Dublin Sec. v. Ohio Div. of Sec., 10th Dist. Franklin No. 91AP-782, 1992 Ohio App.
LEXIS 6794, *7, 1992 WL 394910, reversed on other grounds, 68 Ohio St.3d 426,
627 N.E.2d 993 (handwritten notes from interviews as investigatory work product).
I conclude that the Duckett notes document an employment investigation that was an
official function and procedure of the Township, and therefore meet the definition of
“records” in R.C. 149.011(G).
        {¶21} The Township’s final argument is that it did not have control over Duckett
or his notes, and therefore cannot be compelled to provide the requested records.

        5   Respondent did not file the Duckett notes with the court in camera, and did not submit an
affidavit from Duckett.
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Analysis of this argument involves application of the term “person responsible for public
records” in R.C. 149.43(B)(1) and (C)(1), also known as quasi-agency:
       “R.C. 149.43(C) * * * allows a mandamus action [or complaint under
       R.C. 2743.75] against either the governmental unit or the person responsible for
       a public record. In our view, the disjunctive used in R.C. 149.43(C) manifests an
       intent to afford access to public records, even when a private entity is responsible
       for the records.” Mazzaro at 39 (emphasis original).
       {¶22} Therefore, “where (1) a private entity prepares records in order to carry out
a public office’s responsibilities, (2) the public office is able to monitor the private entity's
performance, and (3) the public office has access to the records for this purpose, a
relator in an R.C. 149.43(C) mandamus action is entitled to relief regardless of whether
he also shows that the private entity is acting as the public office's agent.” Id; accord
Toledo Blade v. Univ. of Toledo Found., 65 Ohio St.3d 258, 263, 602 N.E.2d 1159
(1992); Krings at 657-659.
       {¶23} In Krings, a board of county commissioners contracted out its responsibility
to build a sports stadium, using the board’s statutory authority under R.C. 307.023.
A public records request was made to the board administrator for financial records that
existed only in the hands of contracted private entities, but the administrator refused to
obtain the records from the private entities. The Court found that the administrator had
access to the contractors’ records, which documented a responsibility of the board, and
should have made the records available using that access so that the requester did not
have to deal with a third party. Id. at 659-660. The Court noted that these records of
publicly funded proceedings were “within the jurisdiction of the board of county
commissioners, regardless of whether those records were within the possession of the
county, or the private entities.” Id.
       {¶24} Just as R.C. 307.023 authorized the board of county commissioners in
Krings to contract with private persons for the construction of a sports stadium, R.C.
505.38 authorized the Township to designate a third party to conduct an investigation
and file charges to initiate removal a fire chief. Requesters’ Exhibit A, Resolution. The
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investigation was a publicly funded proceeding.         Id., ¶ 4; Requesters’ Exhibit B,
Duckett’s Detailed Billing. The statute, the Resolution, the affidavits of the township
trustees   and   administrator,   and   Duckett’s   billing   statement   all   support   the
characterization of Duckett’s investigation as carrying out the Township’s responsibility
to investigate employees who commit certain conduct.
      {¶25} With regard to the Township’s ability to monitor this responsibility, the
evidence shows that the Trustees, Administrator, and Attorney monitored the
investigation by conferring repeatedly with Duckett, in person and by telephone, to
review documents, plan interviews, debrief with client, revise interview outline based on
concerns of Trustee Leneghan, discuss next steps, discuss procedural issues, prepare
status updates, assist with briefing, and direct the filing of charges. See Requesters’
Exhibit B; Eichhorn Affidavit, ¶ 5.     The Township could and did monitor Duckett’s
performance.
      {¶26} Whether a public office “has access to” records under its jurisdiction is not
limited to records already in its possession. The question is instead whether the office
could have accessed the records.        Otherwise, a public office could conceal public
records simply by declining to exercise its ability to access.        Krings at 659.      As
discussed supra, pp. 8-9, the Duckett investigation and removal process came under
the jurisdiction of the Board of Trustees, and the Township was thus responsible to
maintain the records necessary to document that procedure. R.C. 149.40. The Board
asserted control over and did access the notes when it ordered them disclosed to
Jensen’s counsel in its role as the administrative hearing panel. While the Township
Trustees and Township Administrator testified that they had avoided physically
possessing the Duckett notes, they did not testify that they did not have authority to
Case No. 2016-00856-PQ                              -14-      REPORT AND RECOMMENDATION


access the notes.6 The Township has alleged no express legal prohibition to access of
these records, by itself or others.7
        {¶27} The quasi-agency case of State ex rel. Mazzaro v. Ferguson, 49 Ohio
St.3d 37, 39, 550 N.E.2d 464 (1990) is even more analogous to the case at bar. In
Mazzaro, the State Auditor’s office hired an independent certified public accountant
(ICPA) to perform an audit for which the Auditor was responsible. The audit had to be
conducted according to the Auditor’s standards, procedures, and guidelines. Id. at 38.
When a request was made for the ICPA’s audit records, including his working papers
and any personal notes, Id. at 37, the Auditor argued that he had not created or
received the records in the ICPA’s possession, and these records would be under his
jurisdiction only if the ICPA had acted as his agent. Id. at 38. The Court disagreed, first
noting the broad and inclusive definition of “records,” and then finding that the Auditor,
        “either did or could have used Deloitte’s records in furtherance of its
        responsibility to complete the Euclid biennial audit. Thus, we hold that the
        records are within the Auditor's jurisdiction and that he is subject to a writ of
        mandamus ordering him to make them available for inspection.” Id. at 39.

        {¶28} The Court dismissed any need to prove agency, stating, “Rather, we
believe * * *, that the operative inquiry is whether Deloitte prepared the relevant records
by reason of authority delegated by the Auditor.” Id. The court stated in summary,
        We come to these conclusions because they are consistent with R.C. 149.43(C),
        which allows a mandamus action against either the governmental unit or the
        person responsible for a public record. In our view, the disjunctive used in
        R.C. 149.43(C) manifests an intent to afford access to public records, even when
        a private entity is responsible for the records. [citations omitted] Indeed, in State,

        6  Trustee Eichhorn’s statement in her affidavit at ¶ 13 (“Aside from the brief period of time when I
held Mr. Duckett’s notes after the Board of Trustees granted the subpoena, I never again had possession
of or access to Mr. Duckett’s notes.”), in context asserts only the termination of “immediate access,” and
does not deny “authority to access,” which is the relevant standard in Mazzaro, et al.
         7 Although Administrator Miller emailed requesters that Duckett’s notes were subject to attorney-

client privilege, respondent has waived that argument by not asserting it in its response. In any case,
respondent presents no evidence that Duckett was either the Township’s formal legal counsel, or was
employed here to provide legal services (“This has nothing to do with attorney-client privilege, * * *.”
Requesters’ Exhibit F, October 13, 2016 email from Douglas E. Duckett to Mark Gerber).
Case No. 2016-00856-PQ                    -15-     REPORT AND RECOMMENDATION


      ex rel. Recodat Co., v. Buchanan (1989), 46 Ohio St.3d 163, 165, 546 N.E. 2d
      203, 205, we expressed our concern that the public not be required to deal with
      third parties in order to gain access to public records.

      Our conclusions also result from the broad construction of the definition of “public
      records” that our earlier decisions require. [citations omitted] Moreover, by
      construing R.C. 149.011(G) to include any material on which a public office could
      or did rely, our decision preserves the public’s right of access to public records,
      regardless of where they are physically located, or in whose possession they
      may be.

      {¶29} The Duckett interview notes were prepared by reason of authority
delegated by the Township. The Township remained responsible for the investigation,
charges, and hearing, and for the records documenting them. R.C. 149.40. Duckett’s
investigation had to be conducted according to the same statutes applicable to a
municipal mayor and township fire chief, i.e., R.C. 733.35 to 733.39. The interview
notes were used by Duckett to perform the Township’s investigative and charging
responsibilities, and the Township accessed and used the Duckett notes to provide the
defendant with subpoenaed investigative work product during the administrative
hearing.   Where the identical investigation is conducted by a mayor or fire chief
pursuant to R.C. 733.35 to 733.39, the status of the investigative interview notes as
records under the jurisdiction and control of the municipality or township is readily
apparent. This status is no less certain where the investigator is a statutory designee.
Against this evidence of responsibility for and access to records documenting its direct
and delegated responsibilities, the Township presents no evidence that it could not have
accessed the records of the investigation, for evidence in its administrative hearing or
for any other reason. Requesters have established respondent’s ability to access the
requested records, unrebutted by respondent other than by its bare denial.
      {¶30} I conclude that requesters have shown by clear and convincing evidence,
1) that the requested investigatory interview notes were records prepared to document
a responsibility of the Township, 2) that the Township was able to monitor the
Case No. 2016-00856-PQ                      -16-        REPORT AND RECOMMENDATION


designated investigator’s performance, and 3) that the Township had access to the
records for the purposes of the investigation, charging, and hearing.          Under the
reasoning in Mazzaro and Krings, the interview notes were public records kept by
Duckett on behalf the Township, and subject to the Ohio Public Records Act.
Requesters thus have a “right of access to these public records, regardless of where
they are physically located, or in whose possession they may be.” Mazzaro at 40.
       {¶31} Finally, R.C. 149.43(B)(1) provides that “[i]f a public record contains
information that is exempt from the duty to permit public inspection or to copy the public
record, the public office or the person responsible for the public record shall make
available all of the information within the public record that is not exempt.”        The
Township may therefore redact any specific information within the Duckett notes that is
a non-record, such as the home address of an employee, or that is specifically
excepted, such as Social Security numbers.         State ex rel. Dispatch Printing Co. v.
Johnson, 106 Ohio St.3d 160, 2005-Ohio-4384, ¶ 25; State ex rel. Fant v. Enright, 66
Ohio St.3d 186, 188 (1993); Sup.R. 44(C)(2)(b) and (H). Any such redaction would be
subject to further judicial review.
       {¶32} Upon consideration of the pleadings and attachments, I find that requesters
have established by clear and convincing evidence that the Duckett notes are public
records pursuant to R.C. 149.43(A). I further conclude that the failure of the Township
to provide the Duckett notes in response to requesters’ requests, in the absence of a
valid exception to release, denied requesters access to a public record in violation of
division (B) of section 149.43 of the Revised Code. Accordingly, I recommend that the
court issue an order GRANTING requesters’ claim, and which 1) directs the Township
to provide requesters with the Duckett notes, and 2) provides that requesters are
entitled to recover from the Township the costs associated with this action, including the
twenty-five dollar filing fee. R.C. 2743.75(F)(3)(b).
Case No. 2016-00856-PQ                       -17-     REPORT AND RECOMMENDATION


        {¶33} Pursuant to R.C. 2743.75(F)(2), within seven business days after receiving
this report and recommendation, either party may file a written objection with the clerk of
the Court of Claims of Ohio. Any objection to the report and recommendation shall be
specific and state with particularity all grounds for the objection.




                                                 JEFFERY W. CLARK
                                                 Special Master



cc:
James Hurt                                     David A. Riepenhoff
2081 Bunty Station Road                        Stephanie L. Schoolcraft
Delaware, Ohio 43015                           400 South Fifth Street, Suite 200
                                               Columbus, Ohio 43215-5095
Mark Gerber
5212 Sheffield Avenue
Powell, Ohio 43065
Filed February 22, 2017
Sent to S.C. Reporter 3/7/17
