[Cite as DeCrane v. Cleveland, 2018-Ohio-3650.]




SEAN P. DECRANE                                   Case No. 2018-00355PQ

       Requester                                  Special Master Jeffery W. Clark

       v.                                         REPORT AND RECOMMENDATION

CITY OF CLEVELAND

       Respondent


        {¶1} Ohio’s Public Records Act, R.C. 149.43, provides a remedy for production of
records under R.C. 2743.75 if the court of claims determines that a public office has
denied access to public records in violation of R.C. 149.43(B). The policy underlying the
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, 848 N.E.2d 472, ¶ 20.
Therefore, the Act is construed liberally in favor of broad access, and any doubt is
resolved 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. Claims under R.C. 2743.75 are
determined using the standard of clear and convincing evidence. Hurt v. Liberty Twp.,
5th Dist. Delaware No. 17CAI050031, 2017-Ohio-7820, ¶ 27-30.
        {¶2} On February 16, 2018, attorney Subodh Chandra sent a letter to respondent
City of Cleveland making a public records request on behalf of requester Sean DeCrane
to inspect the following:
        1. All records of written correspondence between William Menzalora and
           Thomas Hanculak (counsel for Local 93) between May 15, 2017 and
           June 15, 2017. Please include records reflecting Mr. Hanculak’s
           communications with Mr. Menzolara regarding the Chandra Law Firm
           or any of its personnel conducting fact-witness interviews current
           or former members of the Division of Fire regarding DeCrane v. Eckart,
           et al. and Mr. Menzolara giving his approval for such interviews and/or
           indicating that the City did not need to be notified of such interviews.
Case No. 2018-00355PQ                      -2-     REPORT AND RECOMMENDATION


       2. Records of phone calls to and from Mr. Menzalora for the months of
          May and June 2017, including itemized call logs for both his desk and
          mobile phones, redacted to remove all calls that are not to or from Mr.
          Hanculak. If calls with Mr. Hanculak can be readily identified and
          isolated, you may provide records of only those phone calls.
          Otherwise, please provide such records for May and June 2017.
       3. Voicemails from Mr. Hanculak to Mr. Menzalora from May and June
          2017.
(Complaint at 2.) The Cleveland Public Records Center (PRC) acknowledged receipt
the same day, stating that the request was being processed for response. (Id. at 4.)
The PRC conducted a search for the requested records (Amos Aff. at ¶ 4.), and on
March 28, 2018 sent DeCrane responses for each numbered request as follows:
       1. There is no written correspondence, except for as follows: The search
          for emails between Tom Hanculak and William Menzalora based on
          the use of Hanculak’s last name as a search term revealed an email
          address for Mr. Hanculak (tmhanculak@aol.com), which the City
          searched and yielded two emails. Those are attached.
       2. The call log for Mr. Menzalora is protected by attorney client privilege
          and attorney work product as the calls and numbers on the log are
          inextricably intertwined to the extent that redaction is not possible. In
          addition, Mr. Menzalora does not have a work cell phone. However, in
          a good effort to comply with your request, without waiving the above
          objections, a search was performed for Mr. Hanculak’s office number,
          which appeared in the attached emails (as no phone number was
          provided). That number was then searched on Mr. Menzalora’s office
          phone log for any instance of “442,” the first three digits of Mr.
          Hanculak’s office line (which would also have yielded any
          accompanying sub-lines to his main office line). No “442” numbers
          appeared anywhere in the log.
       3. There are no voicemails.
(Id. at ¶ 5; Reply, Exhibit 1.)
       {¶3} On March 6, 2018 (prior to the City’s response), DeCrane filed a complaint
under R.C. 2743.75 alleging denial of access to public records in violation of
R.C. 149.43(B). The parties engaged in two mediation sessions. On May 30, 2018, the
Case No. 2018-00355PQ                       -3-     REPORT AND RECOMMENDATION


court was notified that mediation had failed to fully resolve the dispute. On
June 13, 2018, the City filed its answer (Response), asserting that the requests were
overly broad, and separately, that it had conducted a search for responsive records and
provided DeCrane with the results of the search, rendering the requests moot. On
June 26, 2018, DeCrane filed a reply in which he stated that the City had not provided
all responsive records, specifically from Mr. Menzalora’s personal mobile phone. (Reply
at 1.)
         Suggestion of Mootness
         {¶4} A public office may produce records prior to the court’s decision, and
thereby render a claim for production under R.C. 149.43(B)(1) moot. State ex rel. Striker
v. Smith, 129 Ohio St.3d 168, 2011-Ohio-2878, 950 N.E.2d 952, ¶ 22. The City asserts
that all three requests have been rendered moot by production of all responsive records
kept by the City. (Response at 2-4, 6-7; Amos Affidavit at ¶ 4-6; Reply, Exhibit 1.)
DeCrane provides no affirmative evidence to the contrary, stating only that he “does not
accept that the City of Cleveland has provided all existing public records responsive to
this request,” and has “reason to believe” that responsive records from Menzalora’s
personal mobile phone have not been provided. (Reply at 1.)
         {¶5} A public office has no duty to provide records that do not exist, or that it
does not possess. State ex rel. Gooden v. Kagel, 138 Ohio St.3d 343, 2014-Ohio-869, 6
N.E.3d 471, ¶ 5, 8-9. The office may establish by affidavit that all records have been
provided to the extent they exist. State ex rel. Fant v. Flaherty, 62 Ohio St.3d 426, 427,
583 N.E.2d 1313 (1992); State ex rel. Toledo Blade Co. v. Toledo-Lucas County Port
Auth., 121 Ohio St.3d 537, 2009-Ohio-1767, 905 N.E.2d 1221, ¶ 15. The office’s
affidavit may be rebutted by clear and convincing evidence showing a genuine issue of
fact, but the bare assertion of reasonable and good faith belief that additional records
exist does not constitute sufficient evidence. State ex rel. McCaffrey v. Mahoning Cty.
Prosecutor’s Office, 133 Ohio St.3d 139, 2012-Ohio-4246, ¶ 22-26. See State ex rel.
Case No. 2018-00355PQ                           -4-     REPORT AND RECOMMENDATION


Chatfield v. Gammill, 132 Ohio St.3d 36, 2012-Ohio-1862, 968 N.E.2d 477, ¶ 3; State
ex rel. Morabito v. Cleveland, 8th Dist. Cuyahoga No. 98829, 2012-Ohio-6012, ¶ 13-14;
State ex rel. Mun. Constr. Equip. Operators’ Labor Council v. Cleveland, 8th Dist.
Cuyahoga No. 83057, 2004-Ohio-1261, ¶ 9.
       {¶6} The City provides evidence that it reviewed its files and located two
responsive records to DeCrane’s request No. 1. (Response at 2-4, 6; Amos Aff. at ¶ 4-
6.) The City asserts that Menzalora did not use any personal email account for work
purposes, and that there was no other written correspondence. (Response at 6.) The
City provides evidence that, in the absence of any specific search criteria from DeCrane
in request No. 2, it researched the named calling party’s office number prefix, used it to
search Menzalora’s office phone log, and found no instance of the prefix in the
requested time frame. (Response at 2-4, 6-7; Amos Aff. at ¶ 4-5.) The City provided
evidence that it conducted a search for voicemail responsive to request No. 3, and
asserts that there were no responsive voicemails on any device, private or personal.
(Response at 2, 9; Amos Aff. at ¶ 4-5.)
       DeCrane asserts that he
       has reason to believe that the City has failed to provide responsive
       records from * * * Menzalora’s personal accounts and devices, on which
       he conducted City of Cleveland business—specifically, his mobile phone.
       DeCrane believes such records exist based on the City’s partial response
       to this request, as well as from the testimony of Thomas Hanculak—the
       other person referred to within the public records request.
(Reply at 1.) DeCrane provides no demonstrative evidence in support of this belief.
       {¶7} Instead, DeCrane observes that the City’s response to his request did
not   expressly   state   that   its   search     for   responsive   records   had   included
Menzalora’s personal email and devices “on which responsive records would likely be
kept” (Id. at 2.). DeCrane also asserts that Thomas Hanculak once “called the City
via * * * Menzalora.” (Id. at 2, 4, fn. 6; Id., Exhibit 3 at ¶ 6.) Neither fact is probative of
storage of official City records on Menzalora’s personal accounts or devices. The City’s
Case No. 2018-00355PQ                           -5-      REPORT AND RECOMMENDATION


general response that it reviewed its files and conducted a search for records neither
confirms or denies that the review and search included the employee’s personal devices
(if required – see following section). Further, the City’s response did assert that
“Menzalora does not use a personal email account for work matters” (Response at 6),
and implies that the City did check for voicemails on Menzalora’s personal mobile
phone. (Response at 9, “there were no voicemails from Mr. Hanculak on any device,
whether private or personal.”) Hanculak’s affidavit statement that he once “called”
Menzalora, with no indication of whether the call was made to an office or personal
number, has no probative value regarding the existence of records on Menzalora’s
personal accounts or devices.
       {¶8} I find that the City has conducted a search based on the requests, provided
responsive records identified by the search, and attested to the non-existence of any
additional responsive records. DeCrane provides no clear and convincing evidence to
the contrary. I conclude that DeCrane’s claims for production of records are now moot.
       Search of Personal Communication Devices and Accounts
       {¶9} DeCrane argues that the City violated R.C. 149.43(B) by not conducting a
search on Menzalora’s personal devices and accounts for documents responsive to the
requests. (Reply at 2-4.) DeCrane cites no Ohio law requiring a routine search of
employee’s personal devices in response to public records requests, and the cases
cited as implying such a requirement are inapposite. First, DeCrane cites an order
issued in State ex rel. Bott Law Group, LLC v. Ohio Dept. of Natural Res., 10th Dist.
Franklin No. 12AP-448, 2013-Ohio-5219, ¶ 24-29, 51, for the ODNR to search for
records that may be stored only on employees’ “personal computers.”1 However, this
order referred to the employees’ individual office-issued computers as opposed to a


       1  “Personal Computer (PC) – a small computer, usually one that comes with Microsoft Windows.
Designed for use by one person at any time.” Black’s Law Dictionary Free Online Legal Dictionary,
2nd Ed., https://thelawdictionary.org/letter/p/page/51/ (Accessed August 6, 2018).
Case No. 2018-00355PQ                       -6-     REPORT AND RECOMMENDATION


shared server, and did not require the search of any employee’s private computer. Id.
In the other case cited, Glasgow, supra, DeCrane notes that a public official voluntarily
conceded some of the emails she sent in her official capacity had been kept on her
personal email account and produced them as records subject to disclosure under
R.C. 149.43. Id. at ¶ 23. Given this concession, the Court determined it “need not
address the issue whether an e-mail message sent from or to a private account can be
a public record.” Id. Moreover, the issue in this case is not whether email to or from a
private account can ever be a public record, but whether a public office is required to
search employees’ private accounts on the off-chance that they may contain business
records of the office. Neither case cited by DeCrane imposes such a requirement.
      {¶10} To be sure, a public office has a duty to retrieve public records from
wherever they are kept by the office, a matter often addressed in the office’s records
retention schedules. See R.C. 149.39 (Records commission shall “provide rules for
retention and disposal of records of the municipal corporation”); R.C. 149.43(B)(2) (“A
public office also shall have available a copy of its current records retention schedule at
a location readily available to the public”). However, the public office has no duty to
detail for the requester the steps taken to search for records. McCaffrey, supra, at ¶ 26.
DeCrane provides no evidence that the official copy of any requested record here has
been kept on a City employee’s personal device. The City must therefore be presumed
to have performed its duties regularly and in a lawful manner. State ex rel. Toledo Blade
Co. v. Seneca Cty. Bd. of Commrs., 120 Ohio St.3d 372, 2008-Ohio-6253, 899 N.E.2d
961, ¶ 29. I find that DeCrane fails to show by clear and convincing evidence that the
City’s search and retrieval process violated R.C. 149.43(B).
      {¶11} Finally, with regard to creation and retention of official records, R.C. 149.40
provides that a public office shall cause to be made:
      only such records as are necessary for the adequate and proper
      documentation of the organization, functions, policies, decisions,
      procedures, and essential transactions of the agency and for the
Case No. 2018-00355PQ                       -7-      REPORT AND RECOMMENDATION


      protection of the legal and financial rights of the state and persons directly
      affected by the agency’s activities.
Ohio records laws provides various remedies for claims that records have been
disposed of improperly, including injunction, forfeiture, replevin, and criminal
prosecution. See e.g., R.C. 149.351, R.C. 149.352, R.C. 2913.42. However, to the
extent DeCrane seeks to sanction the City’s alleged failure to create, retain, or properly
dispose of records here, his complaint does not state a claim for which relief is available
under R.C. 2743.75.
      Request for Non-Records
      {¶12} A public office has no duty to disclose non-records. State ex rel. Fant v.
Enright, 66 Ohio St.3d 186,188, 610 N.E.2d 997 (1993). A “record” is defined as
      any document, device, or item, regardless of physical form or
      characteristic, * * * 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.
(Emphasis added.) R.C. 149.011(G). Further, the obligations of the Ohio Public Records
Act apply only to records kept by a public office. R.C. 149.43(A)(1). There is no
evidence in this case that the City of Cleveland has received or ever sought
Menzalora’s personal mobile phone call detail records, or that it considers such
documents to be under its jurisdiction. Indeed, there is no evidence that Menzalora
himself obtains his call detail records from his mobile telephone service provider. Nor is
there any indication that the City requires its counsel to use information from their
personal mobile telephone provider call detail sheets to record the identity and timing of
business calls, or that such information is necessary to document the organization,
functions, policies, decisions, procedures, operations, or other activities of the City of
Cleveland. There is no evidence that the City requires, receives, or “keeps” employee
personal telephone records – which would be evidenced, for example, if they were a
Case No. 2018-00355PQ                       -8-     REPORT AND RECOMMENDATION


scheduled item in the City’s records retention schedule. Menzalora’s personal phone
service provider call detail documents thus fail to satisfy the definitions of both “record”
and “public record.” R.C. 149.011(G); R.C. 149.43(A)(1).
       {¶13} DeCrane has not established by clear and convincing evidence that
Menzalora’s personal telephone call detail documents are a record kept by the City of
Cleveland, and the City was therefore under no duty to produce them.
       Additional Defenses
       {¶14} The City also raised the defenses of overbreadth as to all the requests, and
of attorney-client privilege as to any responsive phone logs for Mr. Menzalora.
(Response at 3-4, 6, 9.) Because the City did not locate any call logs responsive to
request No. 2, there are no documents before the court to analyze for potential attorney-
client privileged material. The court need not engage in speculative analysis of a
defense that has no application to the facts of this case.
       {¶15} With respect to the defense of overbreadth, the City’s response letter
stated that “Overall, your request is overly broad under Ohio R.C. 149.43(B)(2),” and
noted the lack of specific telephone numbers and email addresses of correspondents to
the requested communication. The City offered to discuss the requests further if
DeCrane wished. (Reply, Exhibit 1.) DeCrane did not respond or contact the City’s
public records office in response to these observations or invitation. (Amos Affidavit
at ¶ 7.)
       {¶16} Despite its assertion of overbreadth, the City proceeded with efforts to
satisfy DeCrane’s requests, resulting in the successful defenses of mootness and non-
existence. Under these circumstances, it is unnecessary for the court to determine
whether any of DeCrane’s requests were improperly ambiguous, overly broad, or
otherwise failed to reasonably identify the records sought within the meaning of
R.C. 149.43(B)(2).
Case No. 2018-00355PQ                        -9-     REPORT AND RECOMMENDATION




       Timeliness
       {¶17} The six weeks between the request and the City’s response of
March 28, 2018 arguably exceeded the requirement in R.C. 149.43(B)(1) that records
be prepared “promptly” for inspection. However, the court may note that DeCrane filed
his complaint only eighteen days after the request was made. While this court should
not hesitate to apply its available sanctions for untimely production – respondent’s
reimbursement of the filing fee, and assessment of court costs – when warranted,
neither should it reward premature filing of actions when a response has been promised
by the public office and may be imminent.
       {¶18} Further, the resolution of this action was significantly delayed by
requester’s failure to respond fully or timely to two orders and a notice of the court
(issued June 14, 2018, June 28, 2018, and July 18, 2018) directing him to separately
address the status of each of his three requests in a reply. The resulting delay
compromised the purpose of these proceedings to be “an expeditious and economical
procedure.” R.C. 2743.75(A).
       {¶19} I therefore recommend that costs be assessed to requester in this matter.
       Conclusion
       {¶20} Upon consideration of the pleadings and attachments, I recommend that
the court find that the City rendered the claims for production moot shortly after the filing
of the complaint, and that DeCrane has therefore failed to establish by clear and
convincing evidence that the City violated R.C. 149.43(B). Accordingly, I recommend
that the court issue an order DENYING DeCrane’s claims for production. I further
recommend that court costs be assessed to requester.
       {¶21} 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
Case No. 2018-00355PQ                      -10-     REPORT AND RECOMMENDATION


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


Filed August 7, 2018
Sent to S.C. Reporter 9/10/18
