Viola v. Cuyahoga Cty. Pros. Office

[Cite as Viola v. Cuyahoga Cty. Pros. Office, 

.]

                               COURT OF APPEALS OF OHIO

                             EIGHTH APPELLATE DISTRICT
                                COUNTY OF CUYAHOGA

ANTHONY VIOLA,                                         :

                 Requestor-Appellant,                  :
                                                                     No. 110315
                 v.                                    :

CUYAHOGA COUNTY                                        :
PROSECUTOR’S OFFICE,

                 Respondent-Appellee.                  :


                                JOURNAL ENTRY AND OPINION

                 JUDGMENT: AFFIRMED
                 RELEASED AND JOURNALIZED: December 2, 2021


                         Civil Appeal from the Court of Claims of Ohio
                                   Case No. 2020-00506PQ


                                            Appearances:

                 Anthony Viola, pro se

                 Michael C. O’Malley, Cuyahoga County Prosecuting Attorney,
                 and Jake A. Elliott, Assistant Prosecuting Attorney, for appellee.


EMANUELLA D. GROVES, J.:

                 Requestor-appellant Anthony Viola (“Viola”) appeals the decision of

the Court of Claims dismissing his complaint, brought pursuant to R.C. 2743.75,

alleging a denial of access to public records. For the reasons set forth below, we

affirm the decision of the Court of Claims.
                       Procedural and Factual History

              On July 18, 2020, Viola made a written request to respondent-

appellee, Cuyahoga County Prosecutor’s Office (“prosecutor’s office”) for certain

documents from the personal email account of Daniel Kasaris (“Kasaris”) a former

assistant county prosecutor. In the request, Viola indicated he had recently learned

that Kasaris used a personal Yahoo email account to conduct official business,

including emailing government witness Kathryn Clover (“Clover”), who testified in

multiple grand jury and criminal proceedings. Viola also indicated that Kasaris’

Yahoo account included his official signature as an assistant Cuyahoga County

prosecutor.

              In the request, Viola specifically sought:

      (1) All email [sic] from this Yahoo account that mention my name,
      “Anthony Viola” or “Tony Viola.”

      (2) All emails from this Yahoo account that mention “Dawn Pasela,” a
      former employee of your office who is deceased. I am attaching a copy
      of Ms. Pasela’s obituary, confirming she has no “privacy rights” and
      that any responsive documents should be made public; and

      (3) Emails between Prosecutor Kasaris and Kathryn Clover, or emails
      that mention “Kathryn Clover.”

              An employee of the prosecutor’s office verbally advised Viola that the

office did not maintain, nor could it search, Kasaris’ Yahoo account records. On

August 18, 2020, Viola filed a complaint, pursuant to R.C. 2743.75, alleging denial

of access to public records in violation of R.C. 149.43(B). Viola alleged that the

prosecutor’s office refused to search Kasaris’ Yahoo email account for records

responsive to Request Nos. 1 and 2.
                After Viola filed the complaint, the prosecutor’s office advised Viola,

in a letter dated August 28, 2020, that it did not possess any records responsive to

Request Nos. 1 and 2. The prosecutor’s office attached 572 pages of email

communications from its email server that were responsive to Request No. 3. The

attached documents were redacted to remove attorney-work product, trial

preparation records, and grand-jury materials, all              exempt under R.C.

149.43(A)(1)(g) and (A)(1)(v).

                On September 9, 2020, Viola submitted a letter to the Court of Claims

acknowledging that, after filing his complaint, he had received some responsive

records from the prosecutor’s office. On September 29, 2020, Viola submitted a

second letter, copied to the prosecutor’s office, that contained copies of Yahoo email

correspondences between Kasaris and Clover. Although neither submission

conformed to the Rules of Civil Procedure, the special master directed the clerk to

accept the filings because both Viola and the prosecutor’s office had relied on the

submissions in their subsequent filings.

               On November 19, 2020, the special master ordered the prosecutor’s

office

         to preserve and maintain all emails responsive to requester’s public
         records request that were in the personal email account of Assistant
         Prosecuting Attorney Dan Kasaris on the date of the request. In order
         to evaluate any claim that these records are excepted from disclosure,
         the court may be required to conduct an examination in camera.

Viola v. Cuyahoga Cty. Prosecutor’s Office, Ct. of Cl. No. 2020-00506PQ, 2021-

Ohio-397, ¶ 3.
             On December 4, 2020, following unsuccessful mediation, the

prosecutor’s office filed a combined response to, and a motion to dismiss Viola’s

complaint, pursuant to R.C. 2743.75(E)(2), along with an affidavit from Kasaris. In

the affidavit, Kasaris averred in pertinent part that he maintained a personal email

account through Yahoo, during the time he was employed as an assistant prosecutor

with Cuyahoga County but had no recollection of using his personal email for work

purposes; that he conducted the business of the prosecutor’s office with the email

address provided by the employer; and that he had no emails related to his duties as

an assistant prosecutor on his personal Yahoo email account.

              Kasaris further averred that he had conducted a search of his personal

Yahoo email account, based on the criteria set forth in the public-records request,

and that the “search yielded no emails that relate to any case or matter involving the

CCPO or that related to my employment or duties with the CCPO.” Kasaris’ final

averment was an acknowledgment that he identified himself as an assistant

prosecutor in the “signature block” on his personal emails, but averred it was used

“as a means of promoting my political interest but never as a means of or for

transacting any actual business of CCPO.”

               On December 10, 2020, Viola filed his reply to the prosecutor’s

office’s motion to dismiss. Viola attached a second affidavit from Kasaris in a
separate public-records complaint related to his position of senior assistant Ohio

attorney general.1 In that affidavit, Kasaris averred that

         On very rare occasions, I have sent to my Yahoo email account copies
         of emails that I received on my AGO email account. The emails that I
         sent from my AGO email to my Yahoo email account were all duplicates
         of AGO emails. These emails involved a criminal prosecution that was
         separate and unrelated to any matter involving Mr. Viola. Once that
         criminal case concluded, I deleted the duplicate emails from my Yahoo
         account. I also saved the emails in my AGO email account to the AGO
         case file for that case, which are maintained in accordance with the
         AGO record retention policies.

                 On January 7, 2020, the special master filed his report and

recommendation. The special master found that Viola had not shown that the

manner in which the Prosecutor’s Office processed his request violated R.C.

149.43(B), nor had Viola shown that any of the materials he submitted required the

court to conduct an in camera inspection of Kasaris’ Yahoo email account. The

special master recommended that the Court of Claims find that Viola had not shown

that the Prosecutor’s Office violated R.C. 149.43(B).

                  Over Viola’s objection, the Court of Claims adopted the special

master’s report and dismissed the complaint.

                  Viola now appeals and assigns the following errors for review:

                             Assignment of Error No. 1
         Following admissions by Assistant Ohio Attorney General Daniel
         Kasaris he utilized his private email account for official business, the
         Ohio Court of Claims erred when it failed to order the Cuyahoga County
         Prosecutor’s Office to search that account for emails responsive to a
         records request, namely emails between Kasaris and government

     1  In that matter, the special master determined that Viola had not proven the
assertions by clear and convincing evidence. Viola v. Ohio AG’s Office - Pub. Records Unit,
Ct. of Cl. No. 2020-00507PQ, 

 (Report and Recommendation 2021).
      witness Kathryn Clover. According to the United States Attorney’s
      Office in Cleveland, Clover committed perjury during her testimony in
      criminal trials, further confirming releasing emails between Kasaris
      and government witness Kathryn Clover is in the interest of justice.

                          Assignment of Error No. 2
      The Court further erred by failing to determine whether or not emails
      between a prosecutor and a government witness constitute official
      business, since they relate to criminal prosecutions, a core function of
      the Prosecutor’s Office.

                                Law and Analysis

               Preliminarily, Ohio’s Public Records Act, codified in R.C. 149.43,

provides that upon request a public office “shall make copies of the requested public

record available to the requester at cost and within a reasonable period of time.”

R.C. 149.43(B)(1). Ohio courts construe the Public Records Act liberally in favor of

broad access, with any doubt resolved in favor of disclosure of public records. State

ex rel. Hogan Lovells U.S., L.L.P. v. Dept. of Rehab. & Corr., 

,

, 

.

               R.C. 2743.75 provides “an expeditious and economical procedure

that attempts to resolve disputes alleging a denial of access to public records * * *.”

Welsh-Huggins v. Jefferson Cty. Prosecutor’s Office, 

, 2020-

Ohio-5371, 

. R.C. 2743.75 dictates the procedure for these

matters, which includes mandatory mediation.

      If the dispute is not resolved through mediation, the public office or
      person responsible for public records shall file a response and, if
      applicable, a motion to dismiss the complaint within ten days of the
      termination of the mediation. R.C. 2743.75(E)(2). No further motion
      or pleadings shall be accepted unless the special master directs in
      writing that a further motion or pleading be filed. 

 The special
      master shall not permit any discovery. R.C. 2743.75(E)(3)(a). The
       parties may attach supporting affidavits to their respective pleadings.
       R.C. 2743.75(E)(3)(b). The special master may require either or both of
       the parties to submit additional information or documentation
       supported by affidavits. R.C. 2743.75(E)(3)(c).

Id. at ¶ 14.

               Relevant to the instant matter, a requester must establish

entitlement to relief in an action filed in the Court of Claims under R.C. 2743.75 by

clear and convincing evidence. Hurt v. Liberty Twp., 

, 

 (5th Dist.). 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, 

, 

 (1954), paragraph three of the syllabus.

               “In the specific context of public-records-access appeals filed

pursuant to R.C. 2743.75(G)(1), Ohio’s courts of appeals have applied the standard

of appellate review applicable to such mixed questions of law and fact, reviewing the

application of a claimed exemption de novo while according due deference to the

trial court’s factual determinations.” 

.

               In the first assignment of error, Viola argues that the Court of Claims

erred when it dismissed his complaint. Viola’s principal protest is that the Court of

Claims should have ordered the prosecutor’s office to conduct an in camera search
of Kasaris’ private email account to uncover email communications he believes exist

between Kasaris and Clover.

                 It is beneficial to note here that, pursuant to R.C. 149.011(G), a record

is

       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.

                 An email message in a public office account readily satisfies the first

two prongs of the above definition of “record” in R.C. 149.011(G), as a “document,

device, or item,” that is “created or received by or coming under the jurisdiction” of

the office. Critical to this discussion, an email meets the third and final prong only

if it “documents the organization, functions, policies, decisions, procedures,

operations, or other activities of the public office.” State ex rel. Glasgow v. Jones,

, 

, 

, citing State ex rel.

Wilson-Simmons v. Lake Cty. Sheriff’s Dept., 

, 42, 

,

(1998), fn. 1.

                 As previously noted, the prosecutor’s office produced 572 pages of

email communications, from its email server, responsive to Viola’s Request No. 3,

that stated “Emails between Prosecutor Kasaris and Kathryn Clover, or emails that

mention ‘Kathryn Clover.’” Also, earlier we noted, the prosecutor’s office advised
Viola that it had no records that were responsive to Request Nos. 1 and 2. As evident

here, Request Nos. 1 and 2 undergirds Viola’s complaint and permeates his chief

protest that the Court of Claims did not order a search of Kasaris’ private Yahoo

email account.

                 However, 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, 

,

, 

. In the absence of evidence to the contrary,

the [prosecutor’s office] may be presumed to have performed its duties including

public records identification and retrieval regularly and in a lawful manner. State

ex rel. Toledo Blade Co. v. Toledo-Lucas Cty. Port Auth., 

, 2009-

Ohio-1767, 

.

                 In addition, we noted before, in its motion to dismiss, the

prosecutor’s office attached the affidavit of Kasaris, who averred that he had not

conducted any business of the prosecutor’s office with the email address provided

by his then employer and that he had no emails related to his duties as an assistant

prosecutor on his personal Yahoo email account. Kasaris specifically averred that

he searched his private email account, using the criteria Viola provided, but

uncovered no emails that relate to any case or matter involving the prosecutor’s

office or to his employment or duties with that office.

                 An office may establish by affidavit that all existing records have

been provided. Toledo-Lucas Cty. Port Auth. at ¶ 15. This, Viola suggests, is

insufficient and counters that an in camera inspection of Kasaris’ private Yahoo
email account is required. Although the affidavit may be rebutted by evidence

showing a genuine issue of fact, a requester’s mere belief based on inference and

speculation does not constitute the evidence necessary to establish that a document

exists as a record. State ex rel. McCaffrey v. Mahoning Cty. Prosecutor’s Office, 

, 

, 

. See State ex rel.

Chatfield v. Gammill, 

, 

, 

, ¶ 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, 

.

                 At this juncture, because Viola suggests that the steps the

prosecutor’s office undertook were insufficient, it is worth revisiting the requisite

burden.

                 Recently, in Welsh-Huggins, 

, 

,

, the Ohio Supreme Court addressed the legal standard and

evidentiary burdens applicable to public record proceedings under R.C. 2743.75.2

There, the court found that the “public-records-access proceedings in the Court of

Claims [are] consistent with the standards that are applicable to mandamus-

enforcement actions.” Id. at ¶ 32. The court underscored that the “burden of

persuasion” was at all times on [Requester] to prove his right to relief under R.C.




     2See id. at ¶ 20-22 for the court’s discussion of the two different aspects of “burden
of proof,” that are “burden of production” and “burden of persuasion.”
2743.75 by the requisite quantum of evidence. Id. at ¶ 34. Consequently, the

requester must establish entitlement to relief by clear and convincing evidence. Id.

               Appropriately, examining Viola’s burden under the clear and

convincing standard, the special master noted

      In support of his claim, Viola submitted a short string of exemplars
      from the danieljkasaris@yahoo.com account (Complaint at 5;
      supplemental pleading I at 3-5; supplemental pleading II at 7-8).
      However, Viola does not point to any action, decision, or other activity
      recorded in these emails that documents the official duties or activities
      of Kasaris as an assistant prosecuting attorney, and none is
      independently apparent to the special master. The exemplars appear to
      be entirely personal in nature. Viola has also filed what appear to be
      some of the emails from Kasaris’ office account that were provided to
      Viola by the Prosecutor’s Office. (Supplemental pleading II at 9-87).
      None are probative of whether additional office records exist in Kasaris’
      personal email account. Viola points to no gaps in these criminal case
      file communications that would imply the existence of missing
      correspondence. Finally, Viola has filed additional documents and
      affidavits that are either duplicates of previous filings, irrelevant, or
      gratuitously salacious. (Reply at 8-36.)

Viola, Ct. of Cl. No. 2020-00506PQ, 

.

               After our review, our conclusion comports with that of the special

master’s. Here, we, like the special master, have found no probative value in the

additional evidence Viola submitted, including the string of exemplars from Kasaris’

private Yahoo email account. None of the emails we have reviewed reveal anything

that would make them conform to the definition of a “record” under R.C. 149.011(G).

               Decisively, nothing in the additional documents remotely suggests

that they served to document the organization, functions, policies, decisions,

procedures, operations, or other activities of the prosecutor’s office. Relying on
Sinclair Media III v. Cincinnati, Ct. of Cl. No. 2018-1357PQ, 

, Viola

acknowledges in his brief to this court that the operative question in this case is not

whether messages at issue were sent to or stored on the personal or private devices,

but whether “they document the functions, policies, procedures, operations, or other

activities of the [public office].” Id.; Appellant’s brief at 6.

                Critically, relating to his burden, Viola does not present any evidence

that there are any such records on Kasaris’ private Yahoo email account, just that

there “may be” such records. Thus, there being no public records responsive to

Requests Nos. 1 and 2, the prosecutor’s office fulfilled its obligation under R.C.

2743.75 and did not violate R.C. 149.43(B). When a requester seeks a nonexistent

record, a public office has no duty to provide it. State ex rel. McDougald v. Greene,

, 

, 

.

                Nonetheless, in his campaign to secure an in camera search of

Kasaris’ private email account, Viola broadly claims that Ohio courts routinely treat

text messages and emails sent by public officials and employees in the same manner

as any other records, regardless of whether messages and emails are on publicly

issued or privately-owned devices. In support of this contention, that the

prosecutor’s office must search Kasaris’ private Yahoo email account for

work-related communications between Kasaris and Clover, Viola cites Glasgow, 

, 

, 

.

                However, although Glasgow supports the proposition that, in some

instances, emails sent by a public official and kept by a public office may indeed
constitute public records subject to R.C. 149.43, id. at ¶ 20-23, Viola’s reliance on

Glasgow, in this instance, as implying such a requirement is inapposite.

                In Glasgow, 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

email message sent from or to a private account can be a public record.” Id. Besides,

the issue in this case is not whether emails 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.

                Viola has cited no authority requiring a public office to conduct an in

camera search under these circumstances.         Although, Kasaris averred that he

searched his private email account, there is no requirement that an employee must

always review their personal accounts or devices to respond to a public-records

request. See Gupta v. Cleveland, Ct. of Cl. No. 2017-00840PQ, 

. A requester’s mere disbelief in a public office’s assertion of nonexistence does

not constitute the clear and convincing evidence necessary to establish that

responsive documents do exist. McCaffrey, 

, 

,

; Kagel, 

, 

, 

.

                Unpersuaded, Viola argues that because Kasaris used his assistant

prosecutor’s title in the signature block of his personal email, those emails constitute
a public record of the prosecutor’s office.         As previously noted, Kasaris

acknowledged that he identified himself as an assistant prosecutor in the signature

block on his personal emails, but averred it was used as a means of promoting his

political interests. Directly pertinent, Kasaris averred that the practice was never

used as a means of or for transacting any actual business of the prosecutor’s office.

                However, we concluded above that nothing in the additional

documents Viola submitted remotely suggests that they would serve to document

the organization, functions, policies, decisions, procedures, operations, or other

activities of the prosecutor’s office. As such, Viola’s assertion regarding Kasaris’

practice of identifying himself as an assistant prosecutor on the signature block of

his private email is not well taken.

                Following our exhaustive review, we conclude that Viola did not

meet his burden to prove his right to relief under R.C. 2743.75 by clear and

convincing evidence. In our view, the law imposes an especially heavy burden when

requesting that an employer search the private accounts or devices of its employees.

The separation of public and private information must be upheld, unless sufficient

facts are submitted to cause the two to merge, rendering the private public.

                Accordingly, we overrule the first assignment of error.

                In the second assignment of error, Viola argues the Court of Claims

failed to determine whether the email communication between Kasaris and Clover

constituted official business. However, Viola has redeployed his core arguments
from the first assignment of error. Based on our resolution of the first assignment

of error, we need not revisit them now.

                  Moreover, a court need not determine issues of law related to

whether certain records, generally, are subject to disclosure if it has already

determined the request before it does not involve “records” subject to the Ohio

Public Records Act. Viola v. Ohio AG’s Office, 10th Dist. Franklin No. 21AP-126,

, citing Glasgow, 

, 

, 

 (finding “we need not decide the issue of whether text messages

could generally constitute items subject to disclosure under the Public Records Act”

since the requested text messages and correspondence were found to not constitute

“records” subject to R.C. 149.43).

                  Accordingly, we overrule the second assignment of error

                  Judgment affirmed.

      It is ordered that appellee recover from appellant costs herein taxed.

      The court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate be sent to said court to carry this judgment

into execution.
      A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.



EMANUELLA D. GROVES, JUDGE

ANITA LASTER MAYS, P.J., and
LISA B. FORBES, J., CONCUR