Staton v. Cuyahoga Falls

[Cite as Staton v. Cuyahoga Falls, 

.]




                              IN THE COURT OF CLAIMS OF OHIO




 MATTHEW STATON                                       Case No. 2023-00559PQ

         Requester                                    Special Master Todd Marti

         v.                                           REPORT AND RECOMMENDATION

 CITY OF CUYAHOGA FALLS

         Respondent



        {¶1} This matter is before the special master for a R.C. 2743.75(F) report and
recommendation. He recommends that (1) Respondent be ordered to further investigate
which portions of the records filed for in camera review are exempted from production by
R.C. 149.43(A)(1)(r), to redact those portions of the records, and to produce the balance
of those records within 30 days of the entry a R.C. 2743.75(F)(2) order in this case, (2)
Requester recover his filing fees and costs, (3) that Respondent bear the balance of the
costs of this case, and (4) that all other relief be denied.
I. Background.
        {¶2} Requester Matthew Staton is concerned about Respondent City of Cuyahoga
Falls’ (“The City”) efforts to keep sex offenders out of the City’s aquatic facilities. To that
end he made two public records requests to the City:
         “Please provide me with copies of all parent/ guardian consent forms that were
        signed by all minors who have had their valid government id or any other id
        scanned or searched in any public or private database for sex offenders at any
        public facility in July and August 2023.”
        “Please provide a copy of all records, including names of any person, including
        employees and season pass holders, that were scanned or otherwise searched in
        any database, public or private, for sex crimes at any and all public facilities in July
        and August of 2023.” (Sic.)
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The City denied that responsive materials existed, and Mr. Staton filed this case to
challenge that assertion. The City later found responsive materials, but asserted that they
are not public records. Complaint, filed August 23, 2023, pp. 1-3; Response to Complaint,
filed November 28, 2023, pp. 14-19.
       {¶3} Mediation did not resolve the case, so the special master set a schedule under
R.C. 2743.75(E)(3)(c) for the City to file the responsive materials for in camera review,
and for both parties to file evidence and memoranda supporting their positions. Before
the City responded to Mr. Staton’s original complaint, he filed a pleading that appears to
be a petition for mandamus relief. In any event, the case schedule has run its course and
the case is ripe for decision. Order Terminating Mediation, entered October 31, 2023;
Requester’s Response to Respondent’s Response, filed December 4, 2023.
II. Analysis.
   A. Requester is likely entitled a portion of the materials filed for in camera
       review.
       {¶4} R.C. 149.43(B)(1) obligates public offices to give access to properly requested
public records. The City is a public office and does not dispute that Mr. Staton’s requests
were proper.
       {¶5} The City does, however, dispute that the materials Mr. Staton seeks are public
records, for two reasons. It first contends that the materials are not public records within
the meaning of R.C. 149.43(A)(1) because they are not records as defined by R.C.
149.011(G). Its fallback position is that portions of the materials are exempted from public
record status by R.C. 149.43(A)(1)(r), that those portions are inextricably intertwined with
the balance of the records, and hence that no portion of the records need be produced.
       1. The materials at issue are “records.”
       {¶6} “‘Public record’ means records kept by any public office[.]” R.C. 149.43(A)(1)
(Emphasis added). Materials are therefore only “public record[s]” if they are “record[s].”
State ex rel. Wilson-Simmons v. Lake Cty. Sheriff’s Dept., 

, 41, 

 (1998).
       R.C. 149.011(G) defines a record as:
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       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.
That definition establishes three elements. They are that (1) the material in question is a
document, device, or item, including an electronic record (2) that was created or received
by or coming under the jurisdiction of a public office, (3) that serves to document the
organization, functions, policies, decisions, procedures, operations, or other activities of
the office. State ex rel. Data Trace Information Servs., L.L.C. v. Cuyahoga Cty. Fiscal
Officer, 

, 

, 

, ¶ 31.
       {¶7} The materials at issue here are several spreadsheets collecting information
gathered while determining whether persons 16 years old or older seeking admission to
the City’s aquatic facilities are sex offenders. That information was collected in
furtherance of the City’s policy of prohibiting sex offenders from entering the City’s
facilities. More specifically, the spreadsheets set forth information collected about each
person checked for sex offender status and the date/time that information was collected.
Those spreadsheets were generated through a Google program and have four columns.
The first two columns set forth each person’s first and last names. The third sets forth that
person’s address. The fourth column sets forth the date and time that the information was
gathered. Sealed Documents, filed November 13, 2023; Response to Complaint, pp. 12-
13, ¶¶ 5-8.
       {¶8} Those materials unquestionably have the first two defining elements of a
record. They are “documents” and copies of “electronic records” (the Google
spreadsheets). They were “created” by city employees who input the data and are under
the City’s “jurisdiction” because the City was able to retrieve and file them in this case.
       {¶9} They also have the third defining element because they “document the ***
policies, *** operations, or other activities of the office.” The spreadsheets were created
in the course of executing “a City of Cuyahoga Falls policy which prohibits sex offenders
from entering certain City facilities” and verify City employees’ actions to implement those
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policies. Response to Complaint, pp. 12-13, ¶¶ 5-8. They therefore “document” one
aspect of one of the City’s “policies”: the dates and times that it took specific actions to
implement the policy against admitting sex offenders to City facilities. They also
“document” the City’s “operations and *** activities” by memorializing the information that
City employees gathered.
       {¶10} The existence of the third element is a closer call because of cases holding
that names and addresses of private citizens were not records. State ex rel. McCleary v.
Roberts, 

, 

 (2000); State ex rel. Beacon Journal
Publishing Co. v. Bond, 

, 

, 

; State ex
rel. Dispatch Printing Co. v. Johnson, 

, 

, 

; State ex rel. Degroot v. Tilsley, 

, 

, 

; State ex rel. O'Shea & Assocs. Co., L.P.A. v. Cuyahoga Metro. Hous. Auth., 

, 

, 

; Hicks v. Union Twp., 12th Dist. Clermont
No. CA2022-10-057, 

. There are nonetheless four reasons why those
cases do not control here.
       {¶11} First, the cases do not establish a rule that private citizens’ names and
addresses can never be records. Indeed, one of those cases recognized that. Johnson,

. Other cases and authorities have reached the same
conclusion. State ex rel. Harper v. Muskingum Watershed Conservancy Dist., 5th Dist.
Tuscarawas No. 2013 AP 06 0024, 

; Brown v. City of Cleveland, Ct.
of Cl. No. 2018-01426PQ, 

, adopted, 

; 2004 Ohio
Op. Atty. Gen. No. 45, at 2-388, 2004 Ohio AG LEXIS 47, * 10 (“the fact that information
is personal in nature (e.g., names and addresses) is not, in itself, determinative of whether
the information is or is not a public record”); 2014 Ohio Ap. Atty. Gen. No. 29, at 8, n. 8,
2014 Ohio AG LEXIS 28, **21.
       {¶12} Second, private parties’ names and addresses can be records if they shed
light on government’s activities. The dispositive questions are whether that information
“sheds light on an agency’s performance of its statutory duties” or “the conduct of any
Government agency or official” or whether the “information sought would *** further
public’s knowledge of the internal workings of governmental agencies.” McCleary, 88
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Ohio St.3d at 368, 369. Accord, Bond, 

; Johnson, 

; 2004 Ohio Atty Gen. Op. No. 45, at 2-391, 2004 Ohio AG LEXIS 47, *18;
2014 Ohio Ap. Atty. Gen. No. 29, at 4, 2014 Ohio AG LEXIS 28, **8. That Information is
given record status if it does shed light on those matters. For example, private addresses
were treated as records when they would help evaluate public offices’ efforts to collect
funds due them. Harper, 

; 2002 Ohio Op. Atty. Gen. No. 30, at
2-201, 2-202, 2002 Ohio AG LEXIS 32, * 8-10. Similarly, names and addresses were
treated as records when they documented how a government official solicited input from
his constituents. Brown, 

.
          {¶13} The evidence establishes that these names and addresses could shed such
light. The City’s affidavit states that that information was collected to execute the City’s
policy of excluding sex offenders by comparing those names and addresses to websites
identifying sex offenders, presumably using those data points. Response to Complaint,
pp. 12, 13, ¶¶ 5-8. Access to that information not only documents part of how the City did
that work (by documenting the data it collected and when it collected it), it also allows the
public to take steps to evaluate the efficacy of the City’s work (by allowing those with
access to that information to check it against those websites). That brings that information
within the class of records.
          {¶14} Third, the precedents require that any question be resolved in favor of finding
that the materials are records.        The Supreme Court has held that the open-ended
language of R.C. 149.011(G) is a direction for “expansion rather than constriction[.]” Kish
v. City of Akron, 

, 

, 

, ¶ 20. Consistent
with that directive, the courts apply the definition according to its “great breadth” and
“expansive scope,” and resolve doubts in favor of inclusion. Id.; State ex rel. Data Trace
Information Servs., L.L.C. v. Cuyahoga Cty. Fiscal Officer, 

, 2012-
Ohio-753, 

, ¶ 30; State ex rel. Cincinnati Post v. Schweikert, 

, 

 (1988). Those precedents require that, if there is any
doubt about whether the materials are records, that doubt be resolved in favor of record
status.
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       {¶15} Fourth, the cases that have excluded names and addresses from record
status have no bearing on the fourth column of the spreadsheets. That column contains
no names or addresses, but simply records the dates and times that the City collected
the information listed in the other columns. That records exclusively governmental activity.
       2. The Respondent has not met its burden of proving that the responsive
          records are exempt from public record status, but should be ordered to
          further investigate the applicability of R.C. 149.43(A)(1)(r) and to revise its
          response in accordance with the results of the investigation.
       {¶16} R.C. 149.43(A)(1) provides that “‘Public record’ means records kept by any
public office” unless the records are expressly exempted from that status by another
provision of that statute. (Emphasis added). The materials at issue here are “records” for
the reasons just discussed. The fact that they are “kept” by the City is established by the
City’s ability to file them here. They are therefore public records unless they are exempted
from the class of public records.
       {¶17} A public office asserting an exemption from its general duty to provide
access to public records bears “the burden *** to plead and prove facts clearly
establishing the applicability of the exemption.” Welsh-Huggins v. Jefferson Cty.
Prosecutor’s Office, 

, 

, 

(emphasis added, internal punctuation omitted). See also, Id. at ¶¶ 35, 54. That burden
must be carried with “competent, admissible evidence,” Id. at ¶¶ 53, 77, including extrinsic
evidence if the applicability of the exemption is “not obviously apparent and manifest just
from the content of the record itself[.]” ¶ 35. See also, id. at ¶¶ 30, 50, 53. Courts
determine whether an office has met that burden by conducting “an individualized scrutiny
of the records in question.” Id. at ¶ 29.
       {¶18} The City asserts that some of the responsive records are exempted from
public record status by R.C. 149.43(A)(1)(r) and (10). Those statutes require proof that
the records disclose information “pertaining to the recreational activities of a person under
the age of eighteen.”
       {¶19} All the City offers on this point is affidavit testimony that it collects information
from person 16 and older and the records filed for review. Neither that affidavit nor those
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records provide any indication of which, if any, portions of those records pertain to
persons under 18. That falls short in two ways.
       {¶20} First, an office asserting an exemption must—at a minimum—identify the
information or record it claims is exempt in order to carry its burden. That is inherent in
the settled rules requiring “individualized scrutiny of the records in question” and
distinctions between information within a record that must be redacted and what must be
released. State ex rel. Natl. Broadcasting Co. v. City of Cleveland, 

, 

 (1988), paragraph 4 of syllabus. The City’s failure to identify the information
it claims is exempt is fatal to its exemption claim.
       {¶21} Second, and relatedly, the City’s evidence does not prove facts “clearly
establishing the applicability of the exemption.” Welsh-Huggins, 

.
It does not clearly establish that the records pertain to person under 18 because it does
not clearly identify any persons under 18.
       {¶22} That failure of proof not only bars the claimed exemption, it also moots the
City’s argument that it need not produce anything because exempted information is
inextricably intertwined with non-exempt information. There is no intertwining because
there has been no showing that any information is exempted.
       {¶23} Although a public office’s failure to prove the basis for an exemption normally
results in an order to produce the requested records forthwith, that is not always the case.
If immediate production would unduly compromise third parties’ statutory privacy rights
the office may instead be ordered to further investigate whether grounds for the
exemption actually exist and to revise its initial response based on what it discovers. State
ex rel. Cincinnati Enquirer v. Jones-Kelley, 

, 

, 

, ¶ 26; Tobias v. Ohio Secy. of State’s Office, Ct. of Cl. No. 2023-00628PQ,

, adopted 

.
       {¶24} This is such a case. Ordering the immediate production of the records at
issue could deprive some people of the privacy they are entitled to under
R.C.149.43(A)(1)(r). The City represents that it has the capability to identify a portion of
the records fitting within the exemption is asserts based on the type of ID cards used
verify identities. Response to Complaint, pp. 9-10. The special master therefore
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recommends that the City be ordered to take what steps it reasonably can to identify the
portions of the responsive records that pertain to persons under 18, to redact those
portions, and to produce the balance of the responsive records within 30 days from the
date of the court’s entry of an R.C. 2743.75(F)(2) order in this case.
   B. Requester is entitled to recover his filing fee and costs.
       {¶25} R.C. 2743.75(F)(3)(b) provides that the “aggrieved person shall be entitled
to recover from the public office or person responsible for the public records the amount
of the filing fee of twenty-five dollars and any other costs associated with the action[.]”
Requester was aggrieved by the City’s withholding the responsive records. He is
therefore entitled to recover his filing fee and his costs.
   C. Requester is not entitled to the balance of the relief he requested.
       {¶26} Requester also seeks a writ of mandamus, a declaration that the City has
violated the Constitution, and damages, but none of those types of relief are available
here. This court lacks jurisdiction over mandamus and constitutional claims. State ex rel.
Sultaana v. Mansfield Corr. Inst., __ Ohio St.3d. __, 

, __ N.E.3d.__ ¶ 10
(mandamus); Whitehead v. Ohio Dept. of Rehab. & Corr., Ct. of Cl. No. 2022-00436PQ,

 (constitutional claims). Damages are not available in cases brought
under R.C. 2743.75. Ryan v. City of Ashtabula, Ct. of Cl. Nos. 2022-00660PQ, 2022-
00665PQ, 2022-00680PQ, 

, adopted 

.
III. Conclusion.
       {¶27} In light of the foregoing the special master recommends that:
              A. Respondent be ordered to further investigate which portions of the
                   records filed for in camera review are exempted from production by R.C.
                   149.43(A)(1)(r), to redact those portions, and to produce the balance of
                   those records within 30 days of the entry a R.C. 2743.75(F)(2) order in
                   this case.
              B. Requester recover his filing fees and costs.
              C. Respondent bear the balance of the costs of this case, and
              D. All other relief be denied.
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        {¶28} 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).




                                            TODD MARTI
                                            Special Master

Filed December 12, 2023
Sent to S.C. Reporter 1/4/24