Ault v. Durbin

[Cite as Ault v. Durbin, 

.]




                              IN THE COURT OF CLAIMS OF OHIO


 KARA L. AULT                                 Case No. 2022-00547PQ

         Requester                            Special Master Jeff Clark

         v.                                   REPORT AND RECOMMENDATION

 CITY OF GALION –
 PAULA E. DURBIN,
 COUNCIL WOMAN

         Respondent


        {¶1} The Ohio Public Records Act (PRA) requires copies of public records to be
made available to any person upon request. The state policy underlying the PRA is that
open government serves the public interest and our democratic system. State ex rel.
Gannett Satellite Information Network, Inc. v. Petro, 

, 

 (1997). To that end, the public records statute must be construed liberally in favor
of broad access, with any doubt resolved in favor of disclosure of public records. State ex
rel. Rogers v. Dept. of Rehab. & Corr., 

, 

, 

. This action is filed under R.C. 2743.75, which provides an expeditious and
economical procedure to enforce the PRA in the Court of Claims.
        {¶2} On May 25, 2022, requester Galion City Councilwoman Kara Ault made a
public records request to respondent City of Galion’s Director of Communications Matt
Echelberry for
        the document that Council Woman Durbin read from last night during the
        council meeting on discussion during the discussion [sic] allowing outside
        council. I am also requesting if she received the document from an outside
        source (not written by her) any correspondence that came with the
        document for review.
Case No. 2022-00547PQ                       -2-     REPORT AND RECOMMENDATION


(Complaint at 3.) On June 27, 2022, Clerk of Council Julie Bell responded “We are
working on this. Thomas’ office is involved. We have been told that the audio recording
should be sufficient by Ms. Durbin.” (Id. at 5.) No responsive records were produced.
       {¶3} On July 12, 2022, Ault filed a complaint under R.C. 2743.75 alleging denial of
timely access to public records in violation of R.C. 149.43(B). The case proceeded to
mediation, and on November 4, 2022, the court was notified that the case was not
resolved. On November 16, 2022, the City of Galion filed an answer/response (City
Response). On November 21, 2022, Durbin filed an answer/response (Durbin Response).
       {¶4} As a preliminary matter, the City and Durbin note that Ault made her request
only to the City’s clerk of council and communications director. The City and Durbin each
make vague and ultimately inconsequential arguments as to which of them is “the actual
Respondent in the Court of Claims.” A requester may make a public records request to
either the public office or any “person responsible for public records,” R.C. 149.43(B)(1),
or both. Consistent with the duty to construe the Public Records Act liberally in favor of
broad access, a request made to an administrative official of a board or committee for the
records of a member of that entity is sufficient and proper delivery of the request. State
ex rel. ACLU of Ohio v. Cuyahoga County Bd. of Commrs., 

, 2011-
Ohio-625, 

, ¶ 33-34. The court need not address the issue at any greater
length since the documents sought - the personal notes of the council member involved
– are not shown to meet the definition of “records” of either the City or Durbin.
       Burden of Proof
       {¶5} The requester in an action under R.C. 2743.75 bears an overall burden to
establish a public records violation by clear and convincing evidence. Hurt v. Liberty Twp.,

, 

 (5th Dist.). The requester bears an initial
burden of production “to plead and prove facts showing that the requester sought an
identifiable public record pursuant to R.C. 149.43(B)(1) and that the public office or
records custodian did not make the record available.” Welsh-Huggins v. Jefferson Cty.
Prosecutor’s Office, 

, 

, 

.
       Request for an Official’s Notes
Case No. 2022-00547PQ                         -3-      REPORT AND RECOMMENDATION


       {¶6} The Public Records Act applies only to “records kept by any public office.”
R.C. 149.43(A)(1). R.C. 149.011(G) provides a three-part definition of “records” as used
in Revised Code Chapter 149:
       “Records” includes 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.
The Ohio Supreme Court applies the definition of records broadly and inclusively in favor
of disclosure:
       The [Public Records] Act represents a legislative policy in favor of the open
       conduct of government and free public access to government records. As
       we noted in [Dayton Newspapers, Inc., 

]:
       “‘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 * * *.’”
       ***
       In R.C. 149.011(G), the General Assembly prefaces its definition of
       “records” with the term “includes,” a term of expansion, not one of limitation
       or restriction. * * *
State ex rel. Post v. Schweikert, 

, 

 (1988).
“The R.C. 149.011(G) definition of ‘records’ has been construed to encompass ‘anything
a governmental unit utilizes to carry out its duties and responsibilities.’” (Citations
omitted.) State ex rel. Beacon Journal Publishing Co. v. Whitmore, 

,

 (1998).
       {¶7} However, the statutory definition of “records” does not include every piece of
paper on which a public official or employee writes anything. As relevant to this action:
       Notes may not constitute “records” subject to the Public Records Act if they
       are (1) kept as personal papers, not official records; (2) kept for the
       employee’s own convenience; and (3) other employees did not use or have
       access to the notes. State ex. rel. Cranford v. Cleveland, 

, 

, 

. Notes taken by public officials
       for their convenience as interviewers, evaluators, or assessors, and
       subsequently used in deliberative processes that result in written
       summaries or decisions, generally do not constitute “records” of the public
       office. Cranford at ¶ 14-22 (predisciplinary conference notes); Barnes v.
       Columbus, 10th Dist. Franklin No. 10AP-637, 

, ¶ 9-27 (civil
Case No. 2022-00547PQ                        -4-     REPORT AND RECOMMENDATION


       service commission assessors’ notes); State ex rel. Murray v. Netting, 5th
       Dist. Guernsey No. 97-CA-24, 

 (police chief
       interviewers’ notes). While such notes are often destroyed when of no
       further use to the drafter, retaining them in public office files does not
       automatically make them “records.” Cranford at ¶ 21; Silberstein v.
       Montgomery Cty. Cmty. College Dist., 2nd Dist. Montgomery No. 23439,
       

, ¶ 54, 67. Nor do personal notes lose their non-record
       status merely because they contain information that is not transferred to an
       official report. State ex rel. Summers v. Fox, 

, 2020-
       Ohio-5585, 

.
Paramount Advantage v. Ohio Dept. of Medicaid, Ct. of Cl. No. 2021-00262PQ, 2021-
Ohio-4180, ¶ 13. The Supreme Court holds that when notes are taken by an official for
their own personal convenience and such notes not required to be maintained they are
not records of the office, regardless of the substance of the information contained in the
record. 

.
       {¶8} Ault’s request sought a document of unknown provenance and size that
Durbin allegedly “read from” at a May 24, 2022 council meeting. (Complaint at 3.) Ault
does not assert that any other city employees used or had access to the document. Durbin
attests that the documents she read from were “my notes, which were both typewritten
and handwritten.” (Durbin Response, Durbin Aff.) Durbin’s characterization of the nature
of the documents is consistent with her referral to the requested papers as “notes” in an
internal June 14, 2022 email. (Id., Durbin Aff., attachment.) Since Ault affirmatively states
that she did not know the nature of the document read from, Durbin’s testimony that the
requested documents were merely her notes stands uncontested.
       {¶9} In State ex rel. Cranford v. Cleveland, 

, 

,

, the Supreme Court found that notes taken by an official
conducting a predisciplinary conference, which he used to refresh his memory of the
conference at a subsequent civil service commission hearing, were not “records” because
they were merely notes kept for his own convenience to recall events and were not kept
as part of the city’s or the planning commission’s official records. The court found it
significant that no information had been lost because the requester had also been present
at the predisciplinary conference and could have taken his own notes or obtained a
transcription. Further, most of the notes were actually read into the transcribed civil
Case No. 2022-00547PQ                        -5-        REPORT AND RECOMMENDATION


service commission hearing. The court noted as a sixth factor that there was no evidence
other city officials had access to or used the notes.
        {¶10} The facts here closely resemble those in Cranford. The documents were the
personal notes of Durbin, were used by her to make a statement at a council meeting,
and the portions Durbin read were recorded in the council meeting video recording that
was then posted on the Galion Facebook page. (City Response at 3, 14.) Considering the
evidence before the court, the Special Master finds that Ault has not met her burden to
show by clear and convincing evidence that the document(s) she requested were
“records” as defined in R.C. 149.011(G).
        Conclusion
        {¶11} Upon consideration of the pleadings and attachments, the Special Master
recommends the court find that the requested documents were not records of the Galion
City Council or any member thereof and are therefore not subject to the Public Records
Act. The Special Master recommends that requester’s claim for production of documents
be DENIED. It is recommended that costs be assessed to requester.
        {¶12} 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 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).




                                            JEFF CLARK
                                            Special Master



Filed December 22, 2022
Sent to S.C. Reporter 1/9/23