[Cite as State ex rel. Davis v. Metzger, 2013-Ohio-1620.]


                                         COURT OF APPEALS
                                       LICKING COUNTY, OHIO
                                     FIFTH APPELLATE DISTRICT


STATE OF OHIO, ex rel.,                             :       JUDGES:
JOHN H. DAVIS                                       :       Hon. William B. Hoffman, P.J.
                                                    :       Hon. Sheila G. Farmer, J.
    Relator                                         :       Hon. John W. Wise, J.
                                                    :
-vs-                                                :       Case No. 11-CA-130
                                                    :
TERRA WOOLARD METZGER                               :
                                                    :
    Respondents                                     :       OPINION



CHARACTER OF PROCEEDING:                                    Mandamus Complaint




JUDGMENT:                                                   Dismissed




DATE OF JUDGMENT:                                           April 17, 2013




APPEARANCES:

For Relator                                                 For Respondents

WESLEY T. FORTUNE                                           MARC A. FISHEL
421 Hill Road North                                         400 S. Fifth Street
Pickerington, OH 43147                                      Suite 200
                                                            Columbus, OH 43215
Licking County App. Case No. 11-CA-130                                          2

Farmer, J.

      {¶1}   Relator, John W. Davis, has filed a complaint for writ of mandamus

requesting this Court issue a writ ordering Respondent Terra Woolard Metzger to

produce certain personnel records.     Respondent has filed an Answer as well as a

Motion for Summary Judgment. Relator has also filed a Motion for Summary Judgment.

      {¶2}   On Thursday, December 8, 2011, at approximately 9:00 p.m., Relator

served Respondent with a public records request for personnel records for six

employees of the West Licking Joint Fire District (hereinafter “WLJFD”). Respondent is

the Human Resources Technician for the fire district. As to these six employees, each

request sought to “secure any and all records” that would support the employee’s work

performance, any disciplinary actions in his or her file, and any other document “that

would give us any indication that he is unable to perform the job at hand.” The records

request stated that Relator would like the records emailed to him.

      {¶3}   The WLJFD was closed on Saturday, December 10, and Sunday,

December 11, 2011. On Tuesday, December 13, 2011, at approximately 11:30 a.m.,

Relator telephoned Respondent to ask about the status of his public records request.

She advised Relator that the requests were being reviewed by counsel for the WLJFD

before they would be released. At 1:59 p.m. that afternoon, Relator filed the instant

complaint in mandamus. The records were provided to him at 3:46 p.m. the same

afternoon.

      {¶4}   Relator asks this court to issue a writ of mandamus compelling

Respondent to make the requested public records available in accordance with R.C.

149.43 et seq., and with respect to any records that are not produced, to provide an
Licking County App. Case No. 11-CA-130                                            3


explanation to Relator that includes both the reason and the legal authority for the

denial. Relator also asks for statutory damages, attorney fees and costs.

      {¶5}   Respondent filed a motion for summary judgment arguing that the public

records request was complied with in a reasonable amount of time. Respondent also

requests fees and expenses pursuant to Civ. R. 11 and R.C. 2323.51. Relator filed a

motion for summary judgment arguing that he was not provided with the records within

a reasonable period of time. Relator also argues that Respondent failed to provide him

with all available documents, specifically emails regarding the evaluation of Chief David

Fulmer and a draft evaluation of Fulmer.

                            SUMMARY JUDGMENT STANDARD

      {¶6}   The Supreme Court of Ohio in State ex rel. Zimmerman v. Tompkins, 75

Ohio St.3d 447, 448, 663 N.E.2d 639, 1996–Ohio–211, 663 N.E.2d 639 explained the

standard for summary judgment: “Civ.R. 56(C) provides that before summary judgment

may be granted, it must be determined that (1) no genuine issue as to any material fact

remains to be litigated, (2) the moving party is entitled to judgment as a matter of law,

and (3) it appears from the evidence that reasonable minds can come to but one

conclusion, and viewing such evidence most strongly in favor of the nonmoving party,

that conclusion is adverse to the party against whom the motion for summary judgment

is made. State ex. rel. Parsons v. Fleming (1994), 68 Ohio St.3d 509, 511, 628 N.E.2d

1377, 1379, citing Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327, 4

O.O3d 466, 472, 364 N.E.2d 267, 274.”
Licking County App. Case No. 11-CA-130                                             4


                                           MANDAMUS

      {¶7}      “‘Mandamus is the appropriate remedy to compel compliance with R.C.

149.43, Ohio's Public Records Act.’ State ex rel. Physicians Commt. for Responsible

Medicine v. Ohio State Univ. Bd. of Trustees, 108 Ohio St.3d 288, 2006–Ohio–903, 843

N.E.2d 174, ¶ 6; R.C. 149.43(C). The Public Records Act implements the state's policy

that ‘open government serves the public interest and our democratic system.’ State ex

rel. Dann v. Taft, 109 Ohio St.3d 364, 2006–Ohio–1825, 848 N.E.2d 472, ¶ 20.

‘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.’ State ex rel. Glasgow v.

Jones, 119 Ohio St.3d 391, 2008–Ohio–4788, 894 N.E.2d 686, ¶ 13.” State ex rel.

Perrea v. Cincinnati Pub. Schools, 123 Ohio St.3d 410, 2009–Ohio–4762, 916 N.E.2d

1049 at ¶ 13.

      {¶8}      In the instant case, Relator was provided with the requested records less

than three business days after he served Respondent with his request. Relator argues

that this was not a reasonable amount of time.

      {¶9}      R.C. 149.43(B)(1) provides in pertinent part:

      {¶10} “(B)(1) Upon request and subject to division (B)(8) of this section, all public

records responsive to the request shall be promptly prepared and made available for

inspection to any person at all reasonable times during regular business hours. Subject

to division (B)(8) of this section, upon request, a public office or person responsible for

public records shall make copies of the requested public record available at cost and

within a reasonable period of time.”
Licking County App. Case No. 11-CA-130                                              5


       {¶11} The statute does not define the term “reasonable period of time.”

Therefore, the determination of whether the Respondent complied with its duty to

provide Relator with the requested documents within a reasonable period of time

depends on all of the pertinent facts and circumstances.         State ex rel. Morgan v.

Strickland, 121 Ohio St. 3d 600, 2009-Ohio-1901, 906 N.E.2d 1105, ¶10.                  R.C.

149.43(A), which exempts certain types of records from disclosure, envisions an

opportunity on the part of the public office to examine records prior to inspection in order

to make appropriate redactions of exempt materials. Id. at ¶16.

       {¶12} Relator requested any and all records that would support the employee’s

work performance, any disciplinary actions in the employee’s file, and any other

document that would give any indication that the employee is unable to perform the job

at hand as to six individual employees. Respondent was entitled to an opportunity to

inspect the files and seek legal advice to determine what records were responsive to the

broad request, and to determine if any of the information was exempt from disclosure.

The documents were emailed to Relator less than three full business days from the time

he served his request. Under the facts and circumstances of this case, we find this time

to be reasonable and grant Respondent’s motion for summary judgment on the issue of

the timeliness of the response.

       {¶13} Relator also claims that during discovery in the instant case, he

discovered that a draft evaluation of Fulmer and emails concerning this evaluation were

not provided to him. Relator has not amended his complaint to allege that Respondent

withheld documents to which he was entitled, and Relator used the discovery process in

this case to discover materials which were not in the personnel files of the requested
Licking County App. Case No. 11-CA-130                                              6


employees at the time the request was made. Contrary to Relator’s apparent argument,

the filing of the public records request and the instant action in mandamus does not

impose on Respondent an ongoing duty to continue to provide Relator with documents

that are promulgated after he served his records request. Further, the records which

Relator alleges he did not receive are the subject of a separate public records request

and a separate mandamus action currently pending in this Court, and are not properly

before this Court in the instant action.

        {¶14} Respondent’s motion for summary judgment is granted, and Relator’s

complaint in mandamus is dismissed.

                                           SANCTIONS

        {¶15} Respondents have requested sanctions in the form of costs and attorney

fees based upon their contention the complaint for writ of mandamus is frivolous.

        {¶16} R.C. 2323.51 provides a court may award court costs, reasonable attorney

fees, and other reasonable expenses incurred in connection with the civil action or

appeal to any party to the civil action or appeal who was adversely affected by frivolous

conduct.

        {¶17} R .C. 2323.51(A)(2)(a) defines “frivolous conduct” as follows:

        {¶18} “(i) * * * [conduct that] serves merely to harass or maliciously injure

another party to the civil action or appeal or is for another improper purpose, including,

but not limited to, causing unnecessary delay or a needless increase in the cost of

litigation.
Licking County App. Case No. 11-CA-130                                               7


       {¶19} “(ii) * * * [conduct that] is not warranted under existing law and cannot be

supported by a good faith argument for an extension, modification, or reversal of

existing law.

       {¶20} “(iii) * * * [conduct that] consists of allegations or other factual contentions

that have no evidentiary support or, if specifically identified, are not likely to have

evidentiary support after a reasonable opportunity for further investigation or discovery.”

       {¶21} A motion for sanctions brought under R.C. 2323.51 requires a three-step

analysis by the trial court. The trial court must determine (1) whether the party engaged

in frivolous conduct, (2) if the conduct was frivolous, whether any party was adversely

affected by it and (3) if an award is to be made, the amount of the award. R.C.

2323.51(B)(2)(a). The question of what constitutes frivolous conduct may be either a

factual determination, or a legal determination. Pingue v. Pingue, Delaware App. No.

06–CAE–10–0077, 2007–Ohio–4818, ¶ 20 citing Wiltberger v. Davis (1996), 110 Ohio

App.3d 46, 673 N.E.2d 628.

       {¶22} Relator filed the instant action a matter of hours after he had been told by

Respondent that counsel was reviewing his public records request. After receiving the

records later that same day, Relator did not dismiss the instant action nor did he amend

his complaint to reflect the fact that he received documents in response to his request.

Rather, Relator proceeded to engage in a lengthy discovery process and file numerous

motions with this court concerning a mandamus action which was resolved on the same

day it was filed.
Licking County App. Case No. 11-CA-130                                           8


      {¶23} We award Respondents attorney fees and costs incurred in this case after

December 13, 2011. A hearing as to the reasonableness and amount of the attorney

fees and costs will be scheduled and the parties will be notified by separate scheduling

entry as to the date and time of the hearing.




By: Farmer, J.

Hoffman, P. J. and

Wise, J. concur

                                                  _s / Sheila G. Farmer_____________



                                                  _s / William B. Hoffman___________



                                                  __s / John W. Wise______________

                                                              JUDGES



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Licking County App. Case No. 11-CA-130                                     9




              IN THE COURT OF APPEALS FOR LICKING COUNTY, OHIO

                            FIFTH APPELLATE DISTRICT


STATE OF OHIO, ex rel.                    :
JOHN H. DAVIS                             :
                                          :
   Relator                                :
                                          :
-vs-                                      :     JUDGMENT ENTRY
                                          :
TERRA WOOLARD METZGER                     :
                                          :
   Respondent                             :     CASE NO. 11-CA-130




       For the reasons stated in our accompanying Memorandum-Opinion on file, the

Complaint is dismissed. Costs assessed to Relator.




                                                _s / Sheila G. Farmer_____________



                                                _s / William B. Hoffman___________



                                                 __s / John W. Wise______________

                                                           JUDGES
