Opinion
Case No. 2019-00955PQ
02-21-2020
JULIETTE FAIRLEY Requester v. CUYAHOGA COUNTY PROSECUTOR Respondent
REPORT AND RECOMMENDATION
{¶1} The policy underlying the Ohio Public Records Act, R.C. 149.43, 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. "[P]ublic scrutiny is necessary to enable the ordinary citizen to evaluate the workings of his or her government and to hold government accountable." White v. Clinton Cty. Bd. of Commrs., 76 Ohio St.3d 416, 420, 667 N.E.2d 1223 (1996).
The broad language used in R.C. 149.43 manifests the General Assembly's intent to jealously protect the right of the people to access public records. We are acutely aware of the importance of the right provided by the act and the vulnerability of that right when the records are in the hands of public officials who are reluctant to release them.Rhodes v. New Phila., 129 Ohio St.3d 304, 2011-Ohio-3279, 951 N.E.2d 782, ¶ 21. The Public Records Act is construed liberally in favor of broad access, and any doubt is resolved in favor of disclosure of public records. State ex rel. Cordell v. Paden, 156 Ohio St.3d 394, 2019-Ohio-1216, 128 N.E.3d 179, ¶ 7.
Background and Facts
{¶2} Requester Newsmax columnist Juliette Fairley sent a letter dated August 1, 2019 to respondent Cuyahoga County Prosecutor making the following request:
Please advise me as to the on-site facilities that are available that would allow me to review in person and request copies of court records in reference to the State of Ohio v Jaleh Presutto Seghafi (CR-15-592641-A). Thank you.(Complaint at 2.) The Prosecutor's office signed for receipt of the letter on August 16, 2019, but made no other response. On August 21, 2019, Fairley filed a complaint under R.C. 2743.75 alleging denial of access to public records by the Prosecutor in violation of R.C. 149.43(B). The special master referred the case to mediation, and stayed all filing deadlines until further order of the court. The parties submitted premature pleadings on September 20, September 25, and September 26 of 2019. On October 25, 2019, Fairley submitted a motion to stay respondent's premature motion to dismiss. Following termination of mediation, the special master returned the case to regular procedure under R.C. 2743.75, setting a response deadline for the Prosecutor and a reply deadline for Fairly. (October 31, 2019 Order.) On November 7, 2019, the Prosecutor filed a motion to dismiss (Response), and on November 14, 2019, Fairley filed a reply. On December 6, 2019, the Prosecutor filed the affidavit of Brian R. Gutkoski, with copies of most of the requested records. On December 12, 2019, the Prosecutor filed the remaining withheld records under seal. On December 24, 2019, the Prosecutor filed supplemental authority (Sur-reply). On December 30, 2019, Fairley filed a response to the sur-reply.
Motion to Stay
{¶3} The special master directs the clerk of court to accept for filing Fairley's motion to stay respondent's motion to dismiss. The special master further denies the motion, because no judicial purpose would be served by granting a stay, nor does the disposition of this action prevent Fairley from enforcing any request she has since made, or from making additional requests.
Request and Records at Issue
{¶4} The parties refer to new or revised requests that were made during mediation in this case. (Response at 2; Reply, passim.) However, the court need not consider claims based on requests made subsequent to the complaint. Strothers v. Norton, 131 Ohio St.3d 359, 2012-Ohio-1007, 965 N.E.2d 282, ¶ 14. Fairley's claim thus does not include any "investigatory records," "the complete file," or any other records allegedly requested in mediation. The claim before the court is limited to the August 1, 2019 request for court records as specified in the complaint.
{¶5} The court may take notice that in common usage "court records" means records kept by courts of their proceedings. As used by Ohio courts under the Rules of Superintendence for the Courts of Ohio (Sup.R.), "court record" has the technical meaning of case documents and administrative documents kept by a court. Sup.R. 44(B). As relevant here,
"Case document" means a document and information in a document submitted to a court or filed with a clerk of court in a judicial action or proceeding, including exhibits, pleadings, motions, orders, and judgments, * * *.Sup.R. 44(C)(1). And,
"Administrative document" means a document and information in a document created, received, or maintained by a court that serves to record the administrative, fiscal, personnel, or management functions, policies, decisions, procedures, operations, organization, or other activities of the court, * * *.Sup.R. 44(G)(1). Under common usage, and consistent with the technical definition, Fairley's request to the Prosecutor seeks any document that he submitted to or filed with the court, any pleading served on him by the defendant, and any administrative document he received from the court, in the case of State v. Presutto, CR-15-592641-A. Fairley's request does not encompass any other court records, unless they were filed as exhibits in Presutto. See Sup.R. 44(C)(1) (case document means a document "including exhibits"). Nor does she ask the Prosecutor to obtain records from courts on her behalf.
{¶6} The Prosecutor agrees that his files include copies of court case documents relating to his felony prosecution of Presutto in Cuyahoga County Common Pleas Court, as well as copies of court records from related guardianship proceedings in a probate court. (Response at 4; Gutkoski Aff. at ¶ 2-4.) The Prosecutor has filed unredacted copies of the Cuyahoga County Common Pleas Court records kept in his file (Gutkoski Aff., p. 001-074), except for five fully blacked-out pages and portions of a sixth page that were submitted under seal. The claim for production as it relates to the 68 pages now disclosed is thus moot. State ex rel. Striker v. Smith, 129 Ohio St.3d 168, 2011-Ohio-2878, 950 N.E.2d 952, ¶ 18-22.
{¶7} The five pages still withheld in their entirety (Gutkoski Aff., p. 027-029, 033-034) are copies of court records from Lorain County Probate Court Case No. 2013 GI 00040 that were attached as exhibits to defendant's Jan. 27, 2015 Motion to Remove No-contact Order, in Presutto. The withheld motion exhibits are "case records" of the Presutto action. Sup.R. 44(C)(1). Notably, the motion and its attachments were publicly posted on the Cuyahoga County Court of Common Pleas' online docket for Presutto.
See Cuyahoga County Clerk of Courts Records Search System, https://cpdocket.cp.cuyahogacounty.us/TOS.aspx. Click through Conditions of Use > Searches > Criminal Search by Case. Enter the year - 2015, and the case number - 592641, in the appropriate fields. In Case Information, click Docket in the menu bar for access to docket entries and linked .pdf documents. (Accessed February 19, 2020.)
Burdens of Proof
{¶8} The Public Records Act 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), based on the ordinary application of statutory law and case law as they existed at the time of the filing of the complaint. R.C. 2743.75(F)(1) and (3)(a). A requester under R.C. 2743.75 must establish any violation of the Public Records Act by clear and convincing evidence. Hurt v. Liberty Twp., 2017-Ohio-7820, 97 N.E.3d 1153, ¶ 27-30 (5th Dist.).
{¶9} However, when a public office asserts any exception to the release of records under the Act, the burden of proving the exception rests on the public office. State ex rel. Cincinnati Enquirer v. Pike Cty. Coroner's Office, 153 Ohio St.3d 63, 2017-Ohio-8988, 101 N.E.3d 396, ¶ 15. Exceptions to disclosure must be strictly construed against the public-records custodian. State ex rel. Rogers v. Dept. of Rehab. & Corr., 155 Ohio St.3d 545, 2018-Ohio-5111, 122 N.E.3d 1208, ¶ 7. A custodian does not meet this burden if it has not proven that the requested records fall squarely within the exception. Id.; State ex rel. Cincinnati Enquirer v. Jones-Kelley, 118 Ohio St.3d 81, 2008-Ohio-1770, 886 N.E.2d 206, paragraph two of the syllabus. Any doubt should be resolved in favor of disclosure. State ex rel. James v. Ohio State Univ., 70 Ohio St.3d 168, 169, 637 N.E.2d 911 (1994).
Motion to Dismiss For Lack of Subject Matter Jurisdiction
{¶10} The Prosecutor first moves to dismiss this action for lack of subject matter jurisdiction over denial of access to "court records" as governed by Sup.R. 44-47. The test to be applied in reviewing a Civ.R. 12(B)(1) motion is whether the plaintiff has alleged any cause of action which the court has authority to decide. Filips v. Case W. Reserve Univ., 8th Dist. Cuyahoga No. 79741, 2002-Ohio-4428, ¶ 12.
The Ohio Supreme Court Rules of Superintendence for the Courts Do Not Govern the Court Records Withheld by the Prosecutor
{¶11} The Prosecutor initially argued that if Fairley desired any document kept by his office from either the criminal action in the Cuyahoga Common Pleas Court, or from the related Lorain County Probate Court case, she could only obtain them directly from those courts, utilizing Sup.R. 45. (Response at 4-5.) The Prosecutor has now abandoned the argument that he may withhold access to the case documents he keeps from the Cuyahoga Common Pleas Court action, generally. However, he continues to maintain that
court records of different courts, (i.e. not motions or indictments emanating from a Cuyahoga County Common Pleas criminal case number) that are in [the Prosecutor's] possession should not be subject to records requests under R.C. 149.43. Rather, public records requestors must follow the Rules of Superintendence to access such materials.(Emphasis sic.) (Gutkoski Aff. at ¶ 4.) Review of the relevant statutes, court rules, and case law reveals no authority to support this proposition.
In apparent conflict with this admission, the records withheld by the Prosecutor are part of a "motion * * * emanating from" the Cuyahoga County Common Pleas criminal case.
{¶12} First, there is no requirement that a person must request public records only from the office that created them, or only from an office with which they were shared, or only from the office where they are stored. It is sufficient that a document is a "record" kept or controlled by the public office from which it is requested. A request for any government office's records invokes "the public's right of access to public records, regardless of where they are physically located, or in whose possession they may be." State ex rel. Mazzaro v. Ferguson, 49 Ohio St.3d 37, 40, 550 N.E.2d 464 (1990). The prosecutor does not dispute that the court records he keeps to document his criminal prosecutions are "records" of his office. These court records are therefore "public records" in his hands. R.C. 149.43(A)(1).
{¶13} Next, the same document may be a "public record" of multiple public offices, independently subject to request and production from each. State ex rel. MADD v. Gosser, 20 Ohio St.3d 30, 485 N.E.2d 706 (1985); State ex rel. Hamilton v. Barney, 10th Dist. Franklin No. 98AP-1227, 1999 Ohio App. LEXIS 347, *4 ("Copies of the indictment and judgment entry of conviction are routinely maintained by both the Franklin County Prosecuting Attorney and the Clerk of Courts for the Court of Common Pleas. No valid reason for failing to provide these documents has been proferred. Summary judgment is denied for those two parties as to the indictment and journal entry of conviction."); State v. Sanchez, 79 Ohio App.3d 133, 135-136, 606 N.E.2d 1058 (6th Dist.1992); Ohio Crime Victim Justice Ctr. v. Cleveland Police Division, Ct. of Cl. No. 2016-00872, 2017-Ohio-8950, ¶ 9-11. Court records are available from non-court offices when they are also "records" of the non-court office, e.g., State ex rel. WLWT-TV5 v. Leis, 77 Ohio St.3d 357, 361, 673 N.E.2d 1365 (1997) (prosecutor must provide indictment and plea hearing transcript); Colahan v. Worthington Police Dept., Ct. of Cl. No. 2018-00928PQ, 2018-Ohio-4593, ¶ 19, 25 (police dept. must provide court filings).
{¶14} Finally, a public office may not "borrow" a public records exception from a second public office that by its terms applies only to the second office. State ex rel. Dillery v. Icsman, 92 Ohio St.3d 312, 315-316, 750 N.E.2d 156 (2001) (repair records kept by public works department remain public records, regardless of their protected status in the hands of the police department that obtained them for investigation); State ex rel. Strothers v. Rish, 8th Dist. Cuyahoga No. 81862, 2003-Ohio-2955, ¶ 24-32 (R.C. 149.43(A)(1)(a) and (3) by their terms permit withholding of "medical records" only where "maintained in the process of medical treatment," not in an employer's personnel file). Exceptions that apply only to Ohio courts, including Rules for access to Ohio court records, may not be applied to non-court public offices. State ex rel. Gannett Satellite Info. Network v. Petro, 80 Ohio St.3d 261, 266-267, 685 N.E.2d 1223 (1997) (grand jury records kept by auditor were not secret, because he was not a person named in Crim.R. 6(E)); Heisig v. MetroHealth Sys., Ct. of Cl. No. 2016-00806PQ, 2018-Ohio-4925, ¶ 6 (fact that office's document was filed with court under seal had no effect on the availability of the document from the office as a public record). Likewise, a public office may not borrow an entire public records scheme that by its terms does not apply to that office. State ex rel. Cincinnati Enquirer v. Dupuis, 98 Ohio St.3d 126, 2002-Ohio-7041, 781 N.E.2d 163, ¶ 14, 32 (FOIA does not apply to nonfederal agencies, thus DOJ settlement agreement is a public record in the hands of city solicitor under Ohio law). See also Franklin Cty. Sheriff's Dept. v. State Emp. Relations Bd., 63 Ohio St.3d 498, 501, 589 N.E.2d 24 (1992) (R.C. 4117.17 applies only to specifically designated SERB records. "If there remains a question, R.C. 149.43 must be applied").
Effect of 2009 Amendments to The Rules of Superintendence for the Courts of Ohio
{¶15} The Public Records Act, R.C. 149.43, grants the public a substantive right to inspect and copy public records kept by public offices. Rhodes v. New Phila., 129 Ohio St.3d 304, 2011-Ohio-3279, 951 N.E.2d 782, ¶ 19. The Prosecutor does not dispute that his is a public office, and that the Public Records Act provides the procedure for the public to access his public records.
{¶16} Prior to July 1, 2009, the Ohio Supreme Court followed the Public Records Act in resolving public records requests for court records. State ex rel. Parisi v. Dayton Bar Assn. Certified Griev. Comm., Slip Opinion No. 2019-Ohio-5157, ¶ 16. However, in 2009, the Ohio Supreme Court amended the Rules of Superintendence for the Courts "to set forth the process that the public must utilize to obtain records held by the judicial branch." Id. at ¶ 17; Sup.R. 1(A), 44, 45(B), 47(A)(1). The Rules were adopted by the Court pursuant to its authority to exercise "general superintendence over all courts in the state." Article IV, Section 5(A)(1), Ohio Constitution; Sup.R. Preface; Sup.R. 1(B); Parisi, Id. The new rules "specifically deal with the procedures regulating public access to court records * * * as directed to an Ohio court." Cleveland Constr., Inc. v. Villanueva, 186 Ohio App.3d 258, 2010-Ohio-444, ¶ 17 (8th Dist.). The Rules are now the "sole vehicle" for obtaining public records from most Ohio courts. State ex rel. Husband v. Shanahan, 157 Ohio St.3d 148, 2019-Ohio-1853, 133 N.E.3d 467, ¶ 5.
{¶17} The amended Rules do not conflict with the public's preexisting substantive right to inspect and copy court records held by outside, non-court public offices. By their express terms, the Rules are applicable only to designated courts, and "relate primarily to the internal operation of Ohio courts." Sup.R. 1(A); Sup.R. 2, Commentary (July 1, 1997). The Rules do not apply to all Ohio courts, and Sup.R. 44-47 apply to the Supreme Court only because the Court is expressly listed in the first sentence of Sup.R. 44. The court records management and retention Rules, Sup.R. 26 to 26.05, provide standards for maintenance, preservation, and destruction of records "within the courts." Sup.R. 26(A). The court record access rules, Sup.R. 44-47, are likewise directed to the listed courts. Sup.R. 44. The duty to provide access to courts' records is only placed on "a court or clerk of courts." Sup.R. 45(B). The Rules' remedy of mandamus may only be sought for "the failure of a court or clerk of court to comply with the requirements of Sup. R. 44 through 47." Sup.R. 47(B). The Rules concerning court records nowhere purport to control access to copies of court records as kept by parties to litigation, including non-court public offices.
Sup.R. 1(A) Applicability. Except where otherwise provided, these Rules of Superintendence for the Courts of Ohio are applicable to all courts of appeal, courts of common pleas, municipal courts, and county courts in this state. * * *.
Commentary (July 1, 1997) * * * The Rules of Superintendence for the Courts of Ohio are intended to apply to all trial and appellate courts, except the Court of Claims, unless a rule clearly is intended to apply only to a specific court or division of a court.
Sup.R. 2(B) "Court" means a court of appeals, court of common pleas, municipal court, or county court.
Sup.R. 44. Court Records - Definitions. In addition to the applicability of these rules as described in Sup. R. 1, Sup. R. 44 through 47 apply to the Supreme Court. --------
{¶18} Nothing in the Rules supports the notion that a party's pleadings, once filed with a court, may be obtained from then on only from that court, and not from the party. The Rules do apply when a request is directed to a listed court, for records kept by that court. The Rules do not preempt application of R.C. 149.43 to requests made to non-court public offices for their copies of court records. Had the Court intended otherwise, the wording of the Rules would reflect that intention. See Franklin Cty. Sheriff's Dept. v. State Emp. Relations Bd., 63 Ohio St.3d 498, 501, 589 N.E.2d 24 (1992). There is thus no support in the Rules themselves for the Prosecutor's proposition.
Judicial Application of Sup.R. 44-47
{¶19} In Parisi v. Dayton Bar Assn. Certified Griev. Comm., supra, the requester sought her attorney-disciplinary records from a grievance committee certified by the Board of Professional Conduct of the Supreme Court. Parisi at ¶ 13, 24-25. The Court addressed the threshold question of whether the Rules, or the Public Records Act, applied to the request under the facts and circumstances before it:
While these entities, especially the certified grievance committees, function somewhat independently from this court, the documents prepared and created in attorney-discipline cases by or for these entities must beId. at ¶ 26. The holding in Parisi is limited to the facts of that case. The records sought were considered records of the Supreme Court for purposes of disclosure expressly because the court is the ultimate arbiter of attorney discipline and regulates all matters related to the practice of law. The grievance committee was found to be an appointed servant of the Court, functioning only "somewhat independently of the court," and the records were thus effectively sought from the Supreme Court itself, rather than from an independent, non-court public office. See also Yambrisak v. Richland Cty. Adult Court, 5th Dist. Richland No. 15CA66, 2016-Ohio-4622, ¶ 9 ("All public records requests made to a court or an arm thereof, such as a probation department, must be made pursuant to the Rules of Superintendence.") A county prosecutor is not an arm of the common pleas court, but is an independent elected official.
considered records of this court for purposes of disclosure. That is because this court is the ultimate arbiter of attorney discipline, Cincinnati Bar Assn. v. Powers, 119 Ohio St.3d 473, 2008-Ohio-4785, 895 N.E.2d 172, ¶ 21, and we have the unique and complete responsibility, as designated by Article IV, Sections 2(B)(1)(g) and 5(B) of the Ohio Constitution, to regulate all matters related to the practice of law. Therefore, any documents prepared in attorney-discipline cases, like those requested by Parisi, may be sought only through a request made pursuant to Sup.R. 44 through 47. (Citations omitted.)
{¶20} The Prosecutor suggests obliquely that the phrase "or created for the judicial branch," Parisi at ¶ 21, expands the application of the Rule to include pleadings in the hands of parties to litigation. (Sur-reply at 1 - phrase underlined and italicized in Parisi quote.) However, the phrase is only a generality, and apparently echoes the language, "created, received, or maintained by the court," that is part of the definition of an "administrative document." Sup.R. 44(G)(1). A similar phrase, "prepared for the court," has been used to refer to materials that the court prepares or directs others to prepare, such as entries, transcripts, and reports, e.g., Ohio v. Rosencranz, 5th Dist. Tuscarawas No. 2019AP010002, 2019-Ohio-2392, ¶ 9 (victim impact statement); State v. Lucas, 5th Dist. Licking No. 14-CA-75, 2015-Ohio-2256, ¶ 16 (transcript); State v. Hotchkiss, 8th Dist. Cuyahoga No. 90195, 2008-Ohio-3070, ¶ 10 (pre-sentence report). See R.C. 2301.23 (court may order the reporter to make transcripts of notes or electronic recording); Sup.R. 7 (preparation of judgment entries).
{¶21} All other cases cited by the Prosecutor involve requests made to courts and clerks of courts. State ex rel. Husband v. Shanahan, 157 Ohio St.3d 148, 2019-Ohio-1853, 133 N.E.3d 467, ¶ 1 (judge); State ex rel. Harris v. Pureval, 155 Ohio St.3d 343, 2018-Ohio-4718, 121 N.E.3d 337, ¶ 1 (clerk of courts); Cleveland Constr., Inc. v. Villanueva, 186 Ohio App.3d 258, 2010-Ohio-444, ¶ 1 (8th Dist.) (judge); Fairley v. Lorain Cty. Probate Court, Ct. of Cl. No. 2019-00902PQ (Report and Recommendation Nov. 6, 2019) (clerk of courts). The same is true of earlier Supreme Court cases. See State ex rel. Cincinnati Enquirer v. Lyons, 140 Ohio St.3d 7, 2014-Ohio-2354, 14 N.E.3d 989, ¶ 1 (judge); State ex rel. Richfield v. Laria, 138 Ohio St.3d 168, 2014-Ohio-243, 4 N.E.3d 1040, ¶ 1 (judge and clerk of courts); State ex rel. Vindicator Printing Co. v. Wolff, 132 Ohio St.3d 481, 2012-Ohio-3328, 974 N.E.2d 89, ¶ 1 (judge). None of these cases suggest that the Rules preempt R.C. 149.43 as the preexisting and continuing vehicle to request court records in the hands of non-court public offices. Two of the cases refer to the Rules as limited to requests directed to a court: Parisi at ¶ 17 (The Rules "set forth the process that the public must utilize to obtain records held by the judicial branch"); and Villanueva at ¶ 17 (The Rules "specifically deal with the procedures regulating public access to court records * * * as directed to an Ohio court").
{¶22} There is no support in Ohio statutes, court rules, or case law for the proposition that a person may not access a prosecutor's copies of court records using the Public Records Act, R.C. 149.43. This court has authority to adjudicate complaints based on alleged violations of that section, R.C. 2743.75(A), and therefore has subject matter jurisdiction over Fairley's claim.
Motion to Dismiss For Failure to State a Claim
{¶23} The Prosecutor moves to dismiss on the ground that Fairley made an improper and non-actionable request for information rather than for reasonably identified records, and the complaint therefore fails to state a claim for which relief may be granted. Civ.R. 12(B)(6) In order to dismiss a complaint for failure to state a claim, it must appear beyond doubt that the claimant can prove no set of facts warranting relief after all factual allegations of the complaint are presumed true and all reasonable inferences are made in claimant's favor. State ex rel. Findlay Publishing Co. v. Schroeder, 76 Ohio St.3d 580, 581, 669 N.E.2d 835 (1996). As long as there is a set of facts consistent with the complaint that would allow the claimant to recover, dismissal for failure to state a claim is not proper. State ex rel. V.K.B. v. Smith, 138 Ohio St.3d 84, 2013-Ohio-5477, 3 N.E.3d 1184, ¶ 10.
Ambiguous or Overly Broad Request
{¶24} Where the defense of ambiguity or overbreadth is raised, the burden of proof is on the requester to show that he has reasonably identified the record sought. It is "the responsibility of the person who wishes to inspect and/or copy records to identify with reasonable clarity the records at issue." State ex rel. Zidonis v. Columbus State Community College, 133 Ohio St.3d 122, 2012-Ohio-4228, 976 N.E.2d 861, ¶ 21. A public office "has the duty to supply records, not information, and the government has no duty to create records to meet a requester's demand." (Citations omitted.) State ex rel. Morabito v. Cleveland, 8th Dist. Cuyahoga No. 98829, 2012-Ohio-6012, ¶ 14.
A request that is ambiguous or overly broad may be denied:
If a requester makes an ambiguous or overly broad request or has difficulty in making a request for copies or inspection of public records under this section such that the public office or the person responsible for the requested public record cannot reasonably identify what public records are being requested, the public office or the person responsible for the requested public record may deny the request * * *.R.C. 149.43(B)(2). However, a request that is ambiguous in part but sufficiently specific in part constitutes a proper request as to those records it reasonably identifies. State ex rel. Morgan v. New Lexington, 112 Ohio St.3d 33, 2006-Ohio-6365, 857 N.E. 1208, ¶ 28-39; State ex rel. Dehler v. Kelly, 11th Dist. Trumbull No. 2009-T-0084, 2010-Ohio-3053, ¶ 24-30; Buduson v. Cleveland, Ct. of Cl. No. 2018-00300PQ, 2019-Ohio-963, ¶ 4-5. Judicial determination of whether an office has properly denied all or part of a request as ambiguous or overly broad is based on the facts and circumstances in each case, Zidonis at ¶ 26.
Fairley's August 1, 2019 request states:
Please advise me as to the on-site facilities that are available that would allow me to review in person and request copies of court records in reference to the State of Ohio v Jaleh Presutto Seghafi (CR-15-592641-A). Thank you.The Prosecutor asserts that the request "fails to specify what records were sought" (Response at 1) and that it improperly "seeks information, not documents." (Id. at 5.) While the request begins with a question as to facilities for conducting the review, the sentence proceeds with the clear independent clause: "allow me to review in person and request court records in reference to the State of Ohio v Jaleh Presutto Seghafi (CR-15-592641-A)." The request to review in person court records in reference to a prosecutor's specific criminal case is a complete thought. The included phrase "and request" is either surplusage, or reflects an intent to later request copies. Since a public office is only responsible for public records it keeps or controls, the request plainly seeks to inspect court records that are kept by the Prosecutor's office. A prosecuting attorney is reasonably apprised of what is sought by "court records in reference to" one of his cases, where copies of court records are organized, maintained, and readily accessed in the prosecutor's case file.
{¶25} Here, the Prosecutor attests that he organizes, maintains, and accesses court records from Case No. CR-15-592641-A in an office database called "Justice Matters," from which he has retrieved the court records requested by Fairley. (Gutkoski Aff. at ¶ 2-3.) A public records requester is entitled to any electronically compiled record that a public office's data software is programmed to produce ("Database Rule"). See Naymik v. Northeast Ohio Areawide Coordinating Agency, Ct. of Cl. No. 2017-00919PQ, 2018-Ohio-1718, ¶ 31-33, and cases cited therein. A record, including a category or compilation of requested records, is deemed to already exist when the public office's computer system is programmed to produce it. Id. The Prosecutor did not assert any need for additional programming to find these records.
{¶26} Under the facts and circumstances of this case, I find that Fairley has met her burden to show that her public records request reasonably identified the records sought, and was not ambiguous or overly broad. Fairley's complaint under R.C. 149.43 and R.C. 2743.75 to compel production therefore states a claim for which relief may be granted. Accordingly, the special master will proceed to the merits to analyze the exceptions claimed, and violations found.
Exceptions Claimed
{¶27} The Prosecutor has apparently withdrawn the exceptions of trial preparation materials and attorney work product for the documents still withheld as "court records." However, in the interest of completeness I note that the Motion to Remove No-contact Order and its attached probate court records were prepared by defense counsel in Presutto, not by the Prosecutor. Further, the filing of a pleading on the public docket of a court constitutes an implied waiver of any public records exceptions that might have previously applied. Publicly available records are "unquestionably nonexempt and do not become exempt simply because they are placed in a prosecutor's file." State ex rel. WLWT-TV5 v. Leis, 77 Ohio St.3d 357, 361, 673 N.E.2d 1365 (1997). "Once clothed with the public records cloak, the records cannot be defrocked of their status." (Citations omitted.) State ex rel. Cincinnati Enquirer v. Hamilton Cty., 75 Ohio St.3d 374, 378, 662 N.E.2d 334 (1996).
Truncation of Personal Identifiers in Court Case Record
{¶28} The Prosecutor asserts that he made redactions to page 001 (attached to Gutkoski Aff.) to remove personal identifying information pursuant to "Sup.R. 45(D) and R.C. 149.49(A)(1)(v) [sic]." Id. at ¶ 3. However, Sup.R. 45(D) by its terms applies only "[w]hen submitting a case document to a court or filing a case document with a clerk of court." The Rule does not serve as an exception for records kept in the hands of a party to the judicial action, and may not be applied in this instance. Gannett GP Media, Inc. v. Chillicothe, Ohio Police Dept., Ct. of Cl. 2017-00886PQ, 2018-Ohio-1552, ¶ 10-11.
{¶29} Next, the Prosecutor cites "R.C. 149.49(A)(1)(v)." (Gutkoski Aff. at ¶ 3.) There is no such statute number. If the Prosecutor intended to cite R.C. 149.45(A)(1)(a) for his truncation of the social security number, that statute applies only to records made available on the internet, not to records requested from a prosecutor's case file. R.C. 149.45(B)(1). If the Prosecutor intended to cite R.C. 149.43(A)(1)(v), that statute is not a self-executing exception, but only a catch-all for "Records the release of which is prohibited by state or federal law." The Prosecutor has not identified any state or federal law that prohibits release of the social security number (SSN) or date of birth (DOB) that were partially redacted on p. 001.
{¶30} Although the Prosecutor has not asserted it, I find that the individual's SSN in p. 001 is subject to the constitutional right of privacy and may be redacted. State ex rel. Montgomery Cty. Pub. Defender v. Siroki, 108 Ohio St.3d 207, 2006-Ohio-662, 842 N.E.2d 508, ¶ 17-18.
Requirement to Explain and Offer Information to Revise Ambiguous and Overly Broad Requests
{¶31} On receipt of a request that a public office considers ambiguous and/or overly broad, the public office
may deny the request but shall provide the requester with an opportunity to revise the request by informing the requester of the manner in which records are maintained by the public office and accessed in the ordinary course of the public office's or person's duties.R.C. 149.43(B)(2). Even had Fairley's request been ambiguous or overly broad, the Prosecutor did not provide any response for seven weeks. On September 20, 2019, two weeks after the filing of the complaint, the Prosecutor denied the request as overly broad, but did not provide Fairley with any information as to the manner in which records in his case files are maintained and accessed. (Motion to Stay, Exh. B.) This omission denied her any opportunity to revise or refine her request.
{¶32} The requirement to offer records maintenance and access information, and an opportunity to revise an allegedly improper request, can be addressed by providing the requester with a copy of the record retention schedule that the office is required to keep "readily available" to the public, R.C. 149.43(B)(2), and/or by the records officer communicating an explanation to the requester, and/or by an invitation for the requester to telephone the office to discuss and revise the request. Zidonis at ¶ 33-36, 40. The prosecutor failed to inform Fairley by any of these means.
{¶33} Compliance with such requests places less, not more, burden on the Prosecutor. The Prosecutor spent more staff time and expense to identify, separate, redact, withhold, and explain his refusal to provide the court records, than he would have if they had simply been copied and released. Similarly, when negotiating future requests, the parties are encouraged to make early use of the tools provided by the legislature to narrow ambiguity and overbreadth, see R.C. 149.43(B)(2) through (B)(7), with the goal of identifying the specific records sought while minimizing the burden on the Prosecutor. Such cooperation is favored by the courts. See State ex rel. Morgan v. Strickland, 121 Ohio St.3d 600, 2009-Ohio-1901, 906 N.E.2d 1105, ¶ 15-20.
Timeliness
{¶34} R.C. 149.43(B)(1) provides that all public records responsive to a request shall be "promptly prepared and made available for inspection." A person has been denied access to public records during any period that they were withheld beyond "promptly" or a "reasonable period of time." See Foulk v. Upper Arlington, Ct. of Cl. 2017-00132PQ, 2017-Ohio-4249, ¶ 9-11. The duration of a reasonable period of time is based on the facts and circumstances of each case. State ex rel. Cordell v. Paden, 156 Ohio St.3d 394, 2019-Ohio-1216, 128 N.E.3d 179, ¶ 12.
{¶35} As related above, a well-informed person responsible for public records would have known that there was no justification under public records law to hold back the records sought by Fairley. See State ex rel. Rogers v. Dept. of Rehab. & Corr., 155 Ohio St.3d 545, 554, 2018-Ohio-5111, 122 N.E.3d 1208, ¶ 27-29; State ex rel. Multimedia, Inc. v. Whalen, 51 Ohio St.3d 99, 554 N.E.2d 1321 (1990); State ex rel. Cincinnati Enquirer v. Sage, 142 Ohio St.3d 392, 2015-Ohio-974, 31 N.E.3d 616, ¶ 41. Compare State ex rel. Cincinnati Enquirer v. Ohio Dept. of Pub. Safety, 148 Ohio St.3d 433, 444, 2016-Ohio-7987, 71 N.E.3d 258, ¶ 54 (respondents reasonably relied on a court of appeals decision squarely supporting withholding). The Prosecutor's strained and unsupported proposition regarding court records was in derogation of the requirement that the Public Records Act be construed liberally in favor of broad access, with any doubt resolved in favor of disclosure of records. Cordell, 156 Ohio St.3d 394, 2019-Ohio-1216, 128 N.E.3d 179, ¶ 7.
{¶36} The Prosecutor did not respond to Fairley's request until well after this litigation was filed. He then denied it without providing the information required when denying a request as ambiguous or overly broad. R.C. 149.43(B)(2). The Prosecutor eventually produced the bulk of the requested court records, but not until four months after the request. (Gutkoski Aff., p. 001-0074.) This delay is in excess of any reasonable period to provide the records, which the Prosecutor had no reasonable basis to withhold and which he knew were publicly posted. The Prosecutor's failure to release these records has served only to delay compliance and saddle Fairley with the time and expense of litigation.
{¶37} I conclude that the Prosecutor violated his obligation under R.C. 149.43(B)(1) to make the requested records available for inspection "promptly."
Conclusion
{¶38} Upon consideration of the pleadings, attachments, and documents filed under seal, I recommend the court deny respondent's motion to dismiss. I further recommend the court issue an order for respondent to disclose the remaining five pages of withheld records (Gutkoski Aff., p. 027-029, 033-034), and disclose the redacted portion of the DOB on p. 001, but allow respondent to retain the truncation of the social security number on p. 001. I further recommend that the court find that respondent failed to make any of the requested records available for inspection promptly. I further recommend the court order that requester is entitled to recover from respondent the amount of the filing fee of twenty-five dollars and any other costs associated with the action that she has incurred. I recommend court costs be assessed to respondent.
{¶39} 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).
/s/_________
JEFF CLARK
Special Master Filed February 21, 2020
Sent to S.C. Reporter 4/10/20