Opinion
Case No. 2020-00308PQ
09-22-2020
STEPHEN MICHAEL SNYDER-HILL Requester v. OSU OFFICE OF UNIVERSITY COMPLIANCE AND INTEGRITY Respondent
REPORT AND RECOMMENDATION
{¶1} The actions underlying this case took place during an independent investigation of sexual abuse allegations against Dr. Richard Strauss, a former employee of respondent The Ohio State University (OSU). Requester Stephen Michael Snyder-Hill was interviewed during the investigation, and later participated in the mediation of a survivor class action lawsuit against OSU. Snyder-Hill made a written request for records of his mediation, and alleges that OSU withheld them for over five months in violation of the Ohio Public Records Act, based on a deliberate policy of delay.
{¶2} 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., 156 Ohio St.3d 56, 2018-Ohio-5133, 123 N.E.3d 928, ¶ 12. R.C. 2743.75 provides "an expeditious and economical procedure" to resolve public records disputes in the Court of Claims. A claim under R.C. 2743.75 to enforce the Public Records Act must be established by clear and convincing evidence. Hurt v. Liberty Twp., 2017-Ohio-7820, 97 N.E.3d 1153, ¶ 27-30 (5th Dist.).
Timeline of Request and Response
{¶3} On December 13, 2018, Snyder-Hill made a request to OSU for "any record that has to do with me and my association with any mediations that occurred at the Ohio State University. The approximate date would have been in 1995." (Complaint at 4.) OSU's Public Records Program Coordinator responded the same day with a request to "please clarify what the mediation was about, the university employees, departments, or persons that were involved, the types of records that may exist, and a more defined time period?" (Id.) On December 21, 2018, Snyder-Hill submitted a revised request:
Please provide any correspondence including but not limited to: documents, recordings, communications, photographs, notes, records, emails, letters, reports, summaries, findings, corrective action, or other information related to an office visit, medical examination, mediation, phone call, meeting or other action taken pertaining to Dr. Richard Strauss, Ted Grace, Louise Douce, OSU, and me Steve M. Hill (name back then) during the calendar year 1994-1996.(Id. at 5.) On December 26, 2018, OSU's Director of Public Records thanked Snyder-Hill for the clarification, and promised "We will process this request as quickly as possible." (Id. at 6.)
My original request was December 13th, so I would like to get some information as soon as possible.
{¶4} OSU had already located and retrieved the records responsive to the request a week earlier, on December 20, 2018. (Moormann Aff. at ¶ 7-9.) OSU's legal review began immediately. (Id. at ¶ 10.) OSU then decided, without advising Snyder-Hill, that it would not release the records until the investigation report was released because "the public interest was not served by a piecemeal disclosure, when such a disclosure was outweighed by the privacy interests of the survivors and the other unique factors attendant to the investigation." (Response at 12; Moormann Aff. at ¶ 10.)
{¶5} Over the next five months, Snyder-Hill sent emails reminding OSU of his desire for a timely response to his request, and OSU responded that they were working on the request and would respond as quickly as possible. (Complaint at 6-11.) Snyder-Hill noted in some emails that OSU's response had been delayed beyond any reasonable period of time (Id. at 9-11), and that "I don't understand how a public university can just ignore a sunshine public records request. * * * This is against the law. * * * My concern is that you are stalling (illegally)." (Emphasis original.) (Id. at 9.) OSU declined to provide any reason for the lengthening delay of records production. On May 17, 2019, the day it publicly released the Perkins Coie report of investigation, OSU sent Snyder-Hill 16 pages of records. (Id. at 13; Snyder-Hill Aug. 12, 2020 response at 10-25 (copies of redacted records); Aug. 26, 2020 unredacted copies filed under seal.)
{¶6} On May 15, 2020, Snyder-Hill filed a complaint pursuant to R.C. 2743.75 alleging OSU's denial of timely access to public records in violation of R.C. 149.43(B). All claims were resolved in mediation, except the claim that OSU had failed to respond to Request No. 19-0897 within a reasonable period of time. (Mediator's Entry of July 2, 2020; Response at 7-8; Reply at 6.) On July 20, 2020, OSU filed a response. On July 27, 2020, Snyder-Hill filed a reply. On August 12 and August 18, 2020, Snyder-Hill filed responses to the court's order of August 10, 2020. On August 26, 2020, OSU filed a response to the August 10, 2020 order and unredacted copies, under seal, of the 16 pages of records responsive to Request No. 19-0897. On September 14, 2020, Snyder-Hill filed a reply to OSU's August 26, 2020 filings.
Although the records responsive to this request were provided prior to the filing of the complaint, a freestanding claim for untimeliness is not within the ambit of the general rule that provision of the requested public records renders the claim moot. Wadd at 52.
Failure of Timely Production
{¶7} "When records are available for public inspection and copying is often as important as what records are available." (Emphasis sic.) State ex rel. Wadd v. Cleveland, 81 Ohio St.3d 50, 52, 689 N.E.2d 25 (1998); Looper v. Ohio State University, Ct. of Cl. No. 2016-00778PQ (January 31, 2017). Accordingly, the Public Records Act requires that a public office "shall make copies of the requested public record available to the requester * * * within a reasonable period of time." R.C. 149.43(B)(1). Whether a public office has provided records within a "reasonable period of time" depends upon all the pertinent facts and circumstances of the case. State ex rel. Cordell v. Paden, 156 Ohio St.3d 394, 2019-Ohio-1216, 128 N.E.3d 179, ¶ 11-12. The requester bears the burden of demonstrating that a public office's response was unreasonably delayed. Id.
{¶8} Snyder-Hill repeatedly advised OSU that he wanted the requested records as soon as possible, but received no records for 155 days, nor any explanation for the delay. (Complaint at 1-2.) OSU admits that it made a deliberate decision to withhold production of Snyder-Hill's records until the Perkins Coie investigation report was released. (Response at 2, 8, 12-16.) OSU did not share this decision with Snyder-Hill, or offer the "explanation including legal authority" required when access to records is denied. R.C. 149.43(B)(3). OSU defends its extended withholding as follows:
See discussion of "withholding beyond a reasonable period of time" as "denial" in the Remedy section.
At the time Mr. Snyder-Hill had made his request to the University, there were dozens of other pending public records requests concerning the allegations against Strauss, many of which came from the media. At all times, the University was committed to making the Strauss investigative records public and to respond to those requests. Those objectives, however, had to be weighed against 1) preventing piecemeal disclosure of information that could subject survivors to unnecessary re-traumatization or have a chilling effect on their participation with the investigation; and, 2) protecting the independence and integrity of the Perkins Coie investigation. Not to mention, premature disclosure of information could have created false or mixed memories, which could have affected the integrity of the investigation. There was a very real risk that once one document was disclosed to one person, it becomes a public record to all.(Response at 6.) None of these assertions constitute legal authority to withhold public records.
{¶9} First, the fact that "there were dozens of other pending public records requests concerning the allegations against Strauss" has no bearing on OSU's obligation to respond in a timely manner. Public offices are required to "organize and maintain public records in such a manner that they can be made available for inspection or copying in accordance with division (B) of this section," (Emphasis added.) R.C. 149.43(B)(2). This mandate includes the timeliness requirement in division (B)(1). The Supreme Court has expressly rejected the burden of dealing with many public records requests as an excuse for delay. State ex rel. Beacon Journal Pub. Co. v. Andrews, 48 Ohio St.2d 283, 289, 358 N.E.2d 565 (1976); Wadd v. Cleveland, 81 Ohio St.3d 50, 53-54, 689 N.E.2d 25 (1998) (Cleveland's high volume of reports and requests does not exempt it from acting with the requisite promptness).
{¶10} Second, OSU cites no legal authority for delay based on "preventing piecemeal disclosure of information that could subject survivors to unnecessary re-traumatization." OSU references cases in which constitutional rights of privacy were held to preclude release of specific information, but none that establish such a right for "retraumatization." See Narciso v. Powell Police Dept., Ct. of Cl. No. 2018-01195PQ, 2018-Ohio-4590, ¶ 39-45 and cases cited therein for analysis of the constitutional right to privacy. Nor, were such a right established, could OSU apply it, temporarily, to a person who waived the right by requesting his own records. OSU did not make any redactions based on a constitutional right of privacy when it released Snyder-Hill's records (Moormann Aff. at ¶ 13).
Note the elements, balancing, and burden of proof required to establish or apply a constitutional right of privacy. OSU's vague assertion of the potential for traumatization, in the absence of expert testimony regarding specific personal information and particular risk, falls far short.
{¶11} Third, OSU cites no authority for delay based on its concern that disclosure could "have a chilling effect on their participation with the investigation," or "protecting the independence and integrity of the Perkins Coie investigation," or that "premature disclosure of information could have created false or mixed memories." The General Assembly provides that confidential work product and identities may be withheld from records of a law enforcement investigation, R.C. 149.43(A)(2) (CLEIRs), but makes no similar statutory exception for investigations like the one conducted by Perkins Coie. OSU refers to the CLEIRs exemption as "implicated" by the fact that the University had reported the Strauss allegations to various law enforcement agencies. However, as these were not OSU Police Division records, and Perkins Coie is not a law enforcement agency, and the investigation was not a "law enforcement matter," CLEIRs was not applicable to the requested records.
{¶12} Fourth, the "risk that once one document was disclosed to one person, it becomes a public record to all" is a correct statement of law, but does not constitute a legal justification to delay release of the record. The gravamen of this and the other arguments appears to be that OSU knows better than a survivor when his interests would best be served by disclosure. However, "It is not within the province of a public office or officer to determine for the requester when a requester's purpose in obtaining public records would best be served." State ex rel. Consumer News Servs. v. Worthington City Bd. of Educ., 97 Ohio St.3d 58, 2002-Ohio-5311, 776 N.E.2d 82, ¶ 45.
{¶13} Of particular concern here, OSU does not offer these arguments as public records exceptions but only as what it thought was "reasonable" and "the right thing to do." (Response at 8.) To the contrary, OSU is obligated to comply with the requirements of the Public Records Act, and its preference for confidentiality, alone, cannot limit a requester's access to otherwise public records. State ex rel. WBNS TV, Inc. v. Dues, 101 Ohio St.3d 406, 2004-Ohio-1497, 805 N.E.2d 1116, ¶ 36. "Respondents cannot withhold public records simply because they disagree with the policies behind the law permitting the release of these records." (Citation omitted.) Id. at ¶ 37.
When a public office asserts an exception to the release of records, the burden of proof is on the 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 are strictly construed against the 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 must prove that the records fall squarely within the exception. Id. 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).
{¶14} Finally, OSU's mistaken belief that it "at no time denied the request" (Response at 2) did not suspend Snyder-Hill's right of timely access to records pursuant to R.C. 149.43(B)(1). The "primary duty of a public office * * * to promptly provide any responsive records within a reasonable amount of time," Cordell v. Paden, 156 Ohio St.3d 394, 2019-Ohio-1216, 128 N.E.3d 179, ¶ 11, does not depend on the office's formal denial, and would be entirely frustrated by such an artifice. See also R.C. 1.47(B) and (C).
{¶15} In the absence of any valid exception at law, OSU offers no factual reason that processing and delivery of 16 pages of records would take more than a fraction of the 155-days taken. OSU quickly located and commenced review of the records on December 20, 2018. (Moormann Aff. at ¶ 7-9.) Although OSU points to "825 boxes of hard-copy records" sent to Perkins Coie (Response at 3), the calculation of its "reasonable period of time" to process the response concerns only the 16 pages requested by Snyder-Hill. Likewise, although the records were not redacted until shortly before disclosure (Moormann Aff. at ¶ 11), the "reasonable period of time" to do so is measured by the time necessary to review and redact, not the choice to delay redaction for additional months. A public office is entitled to time for legal review and to make appropriate redactions. State ex rel. Morgan v. Strickland, 121 Ohio St.3d 600, 2009-Ohio-1901, 906 N.E.2d 1105, ¶ 16. However, the office may not exceed the time needed by claiming continuing review, without justification. See State ex rel. Warren Newspapers v. Hutson, 70 Ohio St.3d 619, 623-624, 640 N.E.2d 174 (1994). 155 days to determine that three common exceptions apply to the few pages of records in this case greatly exceeded the reasonable period of time necessary for review, and the limited redaction of names and other information was straightforward. See State ex rel. Miller v. Ohio Dept. of Educ., 10th Dist. Franklin No. 15AP-1168, 2016-Ohio-8534, ¶ 7-8. As a rough measure of the time actually needed for review and redaction, requests made subsequently by Snyder-Hill took less than 30 days to satisfy. (Response at 7.) See Wadd v. Cleveland, 81 Ohio St.3d 50, 53, 689 N.E.2d 25 (1998) (respondent's concession of its ability to produce records more quickly undermined its assertion that past delay was reasonable).
(Compare Snyder-Hill Aug. 12, 2020 response at 10-25 (copies of redacted records) with Aug. 26, 2020 unredacted copies filed under seal.)
{¶16} Assignment of fees and costs expended due to untimely production helps deter strategic delay. State ex rel. DiFranco v. S. Euclid, 138 Ohio St.3d 367, 2014-Ohio-538, 7 N.E.3d 1136, ¶ 42 (Kennedy, J., dissenting). The assessment of available compensation "is a check on a public office's ability to inappropriately deny a public-records request and choose instead protracted litigation." See State ex rel. Rogers v. Dept. of Rehab. & Corr., 155 Ohio St.3d 545, 2018-Ohio-5111, 122 N.E.3d 1208, ¶ 31-32, 41; State ex rel. Kesterson v. Kent State Univ., 156 Ohio St.3d 13, 2018-Ohio-5108, 123 N.E.3d 887, ¶ 15-22; State ex rel. Pennington v. Gundler, 75 Ohio St.3d 171, 174, 661 N.E.2d 1049 (1996) (noting "the proclivity of some custodians of public records to force the filing of a mandamus action by a citizen to gain access to records that are obviously public").
{¶17} Based on the facts and circumstances presented, I find that OSU denied Snyder-Hill timely access to requested public records in violation of R.C. 149.43(B)(1).
Remedy
{¶18} Under R.C. 2743.75(F)(3)(b) the Court of Claims may order recovery by a requester of his filing fee and other costs associated with the action that he incurred, if it "determines that the public office * * * denied the aggrieved person access to the public records in violation of division (B) of section 149.43 of the Revised Code." A person has been "denied access" in violation of R.C. 149.43(B)(1) during any period that the records were withheld beyond a "reasonable period of time." Foulk v. Upper Arlington, Ct. of Cl. 2017-00132PQ, 2017-Ohio-4249, ¶ 9-11. The court also assigns court costs based in part on determination of violations.
Conclusion
{¶19} Upon consideration of the pleadings, attachments, and affidavits filed in this case, I recommend the court find that all claims for production of records were resolved during mediation. I further recommend the court find that respondent failed to provide the requested records from Request No. 19-0897 within a reasonable period of time. I recommend that requester be entitled to recover from respondent the amount of the filing fee of twenty-five dollars and any other costs associated with the action that were incurred by requester. I recommend that court costs be assessed to respondent.
{¶20} 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 September 22, 2020
Sent to S.C. Reporter 10/19/20