Opinion
Case No. 2020-00507PQ
01-29-2021
ANTHONY VIOLA Requester v. OHIO ATTORNEY GENERAL'S OFFICE - PUBLIC RECORDS UNIT Respondent
REPORT AND RECOMMENDATION
{¶1} Ohio's Public Records Act 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., 156 Ohio St.3d 56, 2018-Ohio-5133, 123 N.E.3d 928, ¶ 12. This action is brought under R.C. 2743.75, which provides an expeditious and economical procedure in the Court of Claims to resolve public records disputes.
{¶2} On June 25, 2020, requester Anthony Viola made a public records request to respondent Ohio Attorney General's Office (AGO) as follows:
Assistant Ohio Attorney General Daniel Kasaris has used a personal Yahoo account for official business. I'm attaching an example of an e mail from his Yahoo account with an official signature. I'm asking you to look into this Yahoo account and determine whether its use violates Ohio public records laws. I'm also asking you to review that Yahoo account and searcg [sic] for records responsive to my recent records request, which sought all e mails from the inception of his employment in 2013 until the present mentioning the following key words:
-- Task Force or Mortgage Fraud Task Force
-- Dawn Pasela
-- Kathryn Clover
-- Anthony or Tony Viola
-- Mark Bennett
-- Mortgage Fraud(Complaint at 13.) On July 1, 2020, the AGO responded that 1) correspondence from a personal email account cannot be "records" of a public office, 2) the remainder of the request is overly broad. The AGO provided Viola with an opportunity to revise the request by informing him of the general manner in which records are maintained by the AGO in the normal course of business. (Id. at 25-26) On July 6, 2020, Viola replied:
-- Bryan Butler
-- Matt or Matthew Fairfield
-- Jay Milano
-- Peter Beck
-- Arvin Clar
Your public records policy, dated December 8, 2017, Section C, "Electronic Records" states that "Public records content transmitted to or from private accounts or personal devices are subject to disclosure." - Meaning Dan Kasaris' Yahoo e mails with his official signature on them are subject to search to determine which of those e mails are public records or discuss official business,and his belief that his request for email in a single account containing specific key words should be sufficient for a proper search. (Id. at 24.) The AGO made no further response.
{¶3} 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). On September 29 and October 30, 2020, Viola submitted supplemental pleadings with additional documents in support of his claim. On November 12, 2020, the parties notified the court that they had resolved a separate public records request in mediation. On November 19, 2020, the special master issued an order directing the AGO "to preserve and maintain all emails responsive to requester's public records request that were in the personal email account of Assistant Attorney General Dan Kasaris on the date of the request." On December 2, 2020, the AGO filed a combined response to the complaint, motion to strike, and motion to dismiss (Response). Viola filed a memorandum in opposition to the AGO's motion to dismiss (Reply) on December 8, 2020.
Motion to Strike
{¶4} The AGO argues, first, that Viola's supplemental submissions of September 29, 2020 and October 30, 2020 must be stricken as they are not expressly authorized under R.C. 2743.75. The AGO notes that the special master has neither invited nor accepted these documents under R.C. 2743.75(E)(2) or (E)(3)(c). However, materials supplemental to complaints filed under to R.C. 2743.75 may be accepted at the special master's discretion, and accepting these submissions would effect no delay in the proceedings. Accordingly, pursuant to Civ.R. 15(E) and R.C. 2743.75(E)(2), the special master directs the clerk to accept both submissions for filing.
{¶5} The AGO further asserts that portions of these submissions "amount to unrelated salacious claims as to Mr. Kasaris' personal and familial life that have no connection to any claim before this court." (Response at 7.) On review, the special master agrees with these characterizations and finds that the portions of the submissions identified by the AGO are "immaterial, impertinent, or scandalous matter" that may be, and hereby are, ORDERED stricken from the record. Civ.R. 12(F). The clerk is directed to redact Exhibits C through E from the October 30, 2020 supplemental pleading, and pages 6-7 from the September 29, 2020 supplemental pleading. The special master notes that Exhibits B, C and E to Viola's reply are identical resubmissions of Exhibits C, D and E to the October 30, 2020 supplemental pleading. The clerk is additionally directed to redact Exhibits B, C and D from the reply.
Motion to Dismiss
{¶6} In order to dismiss a complaint for failure to state a claim upon which relief can be granted, 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. The unsupported conclusions of a complaint are, however, not admitted and are insufficient to withstand a motion to dismiss. Mitchell v. Lawson Milk Co., 40 Ohio St.3d 190, 193, 532 N.E.2d 753 (1988).
{¶7} The AGO argues the complaint fails to state a claim under the Public Records Act because no records exist that are responsive to the request. On consideration, the special master finds that the non-existence of requested communications is not conclusively shown on the face of the complaint and attachments. Moreover, as the matter is now fully briefed this argument is subsumed in the AGO's defense on the merits. It is therefore recommended that that the motion to dismiss be denied, and the case determined on the merits.
Burden of Proof
{¶8} A requester must establish any public records violation by clear and convincing evidence. Hurt v. Liberty Twp., 2017-Ohio-7820, 97 N.E.3d 1153, ¶ 27-30 (5th Dist.). At the outset, Viola bears the "burden of production" to plead and prove facts showing that he sought identifiable public records pursuant to R.C. 149.43(B)(1), and that the AGO did not make those records available. Welsh-Huggins v. Jefferson Cty. Prosecutor's Office, 2020-Ohio-5371, ¶ 33. As part of this burden, Viola must show that the items sought meet the definition of "records," and that the records were kept by the AGO.
Viola seeks the following relief:
I am respectfully asking the Ohio Court of Claims to determine whether or not Mr. Kasaris utilized his personal Yahoo E Mail account to conduct official business, and whether or not affixing his official government signature on these e mails requires - at a minimum - that government agencies at least search that account for responsive public records.(Complaint at 4.) The AGO agrees that Kasaris maintains a personal email account but denies that Viola has shown that AGO records are kept there. The AGO notes there is no evidence that Kasaris affixed his "official government signature" as an assistant attorney general to email from his personal account. The AGO denies it has an obligation to conduct a search of Kasaris' personal account under the circumstances in this case.
Records and Non-Records
"Records" are defined in R.C. 149.011(G) as including:
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.The definition of a "record" does not include every piece of paper on which a public officer writes something. State ex rel. Cincinnati Enquirer v. Ronan, 127 Ohio St.3d 236, 2010-Ohio-5680, 938 N.E.2d 347, ¶ 13. Even for email within a public office's official account, a requester must show that the email actually serves to document "an official duty or activity of the office" to qualify as a record of the office. State ex rel. Wilson-Simmons v. Lake Cty. Sheriff's Dept., 82 Ohio St.3d 37, 41-42, 693 N.E.2d 789 (1998) (e-mail consisting of racist slurs against a co-worker, although reprehensible, was not used to conduct sheriff's department business). Accord State ex rel. Beacon Journal Publ. Co. v. Whitmore, 83 Ohio St.3d 61, 63-64, 697 N.E.2d 640 (1998). The test is not whether a requester feels an email could be useful or of interest to him, but only whether it was used by the public office to document its official duties and activities.
Records "Kept By" a Public Office
{¶9} A person may only request public records from the public office or person responsible for them. Cvijetinovic v. Cuyahoga Cty. Auditor, 8th Dist. Cuyahoga No. 96055, 2011-Ohio-1754, ¶ 4. The search terms used by Viola to identify the desired emails appear to relate to Kasaris' previous employment as an assistant prosecuting attorney, see Viola v. Cuyahoga Cty. Prosecutor's Office, Ct. of Cl. No. 2020-00506PQ (Report and Recommendation Jan. 7, 2021). Although identical documents may serve as records documenting the activities of more than one public office, State v. Sanchez, 79 Ohio App.3d 133, 136, 606 N.E.2d 1058 (6th Dist.1992), Viola has made no such assertion here. Instead, Viola argues that because he believes Kasaris has used his personal email account for official correspondence of previous employers, the AGO must perform a search for any such email.
The special master previously determined that Viola has not proven these assertions by clear and convincing evidence. Viola v. Cuyahoga Cty. Prosecutor's Office, Ct. of Cl. No. 2020-00506PQ (Report and Recommendation Jan. 7, 2021), and Viola v. North Royalton, Ct. of Cl. No. 2020-00477PQ (Report and Recommendation Jan. 22, 2021).
Non-Existent Records
{¶10} 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, 138 Ohio St.3d 343, 2014-Ohio-869, 6 N.E.3d 471, ¶ 5, 8-9. An office may establish by affidavit that all existing records have been provided. State ex rel. Fant v. Flaherty, 62 Ohio St.3d 426, 427, 583 N.E.2d 1313 (1992); State ex rel. Toledo Blade Co. v. Toledo-Lucas Cty. Port Auth., 121 Ohio St.3d 537, 2009-Ohio-1767, 905 N.E.2d 1221, ¶ 15. Although the office's 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, 133 Ohio St.3d 139, 2012-Ohio-4246, 976 N.E.2d 877, ¶ 22-26.
Evidence Submitted
{¶11} Former Assistant Prosecuting Attorney Daniel Kasaris maintains a private email account, danieljkasaris@yahoo.com. (Kasaris Aff. at ¶ 10.) With respect to Viola's requests, Kasaris attests 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 account to my Yahoo email account were all(Kasaris Aff. at ¶ 12-14.) There is no evidence that the convenience copies of AGO emails sent by Kasaris to his personal account still exist, or that Kasaris violated any records retention provision by copying and then deleting them. See State ex rel. Wilson-Simmons v. Lake Cty. Sheriff's Dept., 82 Ohio St.3d 37, 42-43, 693 N.E.2d 789 (1998).
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 Yahoo email account to the AGO case file for that case, which are maintained in accordance with the AGO record retention policies.
I have no emails related to my AGO employment on my personal Yahoo account.
I searched my personal email account, daniel jkasaris@vahoo.com using the search terms listed in the above public records request. That search yielded no emails that relate to any case or matter involving the AGO or that relate to my AGO employment.
{¶12} Kasaris attests that his assigned duties with the AGO have not included any criminal litigation involving Viola. (Kasaris Aff. at ¶ 5-7.) In a revised request for email topics, made during mediation, Viola cites criminal actions and civil cases in which he alleges Kasaris participated as an attorney or otherwise. (Oct. 30, 2020 Supplemental Pleading, Exh. A at 1.) However, Viola does not assert that Kasaris participated in these actions as an assistant attorney general. Kasaris' sworn testimony is evidence supporting the non-existence of responsive AGO records in his personal account.
{¶13} In support of his claim, Viola provides a short string of email exemplars from the danieljkasaris@yahoo.com account. (Complaint at 6,17.) The exemplars appear to be entirely personal in nature and predate Kasaris' employment with the AGO. Overall, Viola does not point to any content in any email submitted that document the official duties or activities of Kasaris as an assistant attorney general.
Request to Compel Office Search of a Personal Email Account
{¶14} Viola argues that the AGO must conduct its own search of Kasaris' personal email account based on Viola's belief that responsive AGO records may exist there. Viola cites no statutory or case law requiring a public office to conduct such a search under these circumstances, nor any requirement that individual employees must always review their personal accounts in response to a public records request. See Gupta v. Cleveland, Ct. of Cl. No. 2017-00840PQ, 2018-Ohio-3475, ¶ 19. The special master takes notice that a public office's response to a request for an individual official's correspondence may often rely appropriately, even necessarily, on identification and retrieval of responsive records by the official himself.
{¶15} A public office does have a duty to retrieve its public records from wherever they are "kept" within the meaning of the Public Records Act, including electronic records stored only on an employee's personal device. See Sinclair Media III v. Cincinnati, Ct. of Cl. No. 2018-1357PQ, 2019-Ohio-2624, ¶ 5-12 and cases cited therein. As Viola notes, the AGO's own public records policy, based on the model public records policy it has published for the guidance of Ohio public offices, expressly accepts this duty:
ELECTRONIC RECORDSMoreover, if a requester provides prima facie evidence that an office has improperly deleted emails that are public records, the office may be ordered to recover those records by reasonable means. State ex rel. Toledo Blade Co. v. Seneca Cty. Bd. of Commrs., 120 Ohio St.3d 372, 2008-Ohio-6253, 899 N.E.2d 961, ¶ 26-41.
Records in the form of e-mail, text messaging, and instant messaging, including those sent and received via a hand-held communications device, are to be treated in the same fashion as records in other formats, such as paper or audiotape.
Public record content transmitted to or from private accounts or personal devices is subject to disclosure. All employees or representatives of this office are required to retain their e-mail records and other electronic records in accordance with applicable records retention schedules.
https://www.ohioattorneygeneral.gov/Files/About/Public-Records-Access/Public-Records-Request-Policy.aspx; https://www.ohioattorneygeneral.gov/Files/Government-Entities/Model-Public-Records-Policy.aspx. (both accessed Jan. 25, 2021.) --------
{¶16} However, in the absence of any evidence to the contrary the AGO 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., 121 Ohio St.3d 537, 2009-Ohio-1767, 905 N.E.2d 1221, ¶ 29. Although an office has no duty under R.C. 149.43 to detail for a requester the steps taken to identify and retrieve requested records, State ex rel. McCaffrey v. Mahoning Cty. Prosecutor's Office, 133 Ohio St.3d 139, 2012-Ohio-4246, 976 N.E.2d 877, ¶ 26, the AGO obtained the sworn testimony of its employee regarding the contents of his personal account. (Motion to Dismiss at 8; Kasaris Aff. at ¶ 2, 9-14.)
{¶17} Under the facts and circumstances of this case, the special master finds Viola has not shown by clear and convincing evidence that the manner in which the AGO processed his public records request violated R.C. 149.43(B). None of the materials submitted persuade the special master that an in-camera inspection of the email in Kasaris' personal account is required. The special master finds that Viola has not met his burden to prove that any responsive records of the AGO exist in Kasaris' personal email account.
Conclusion
{¶18} Based on the pleadings, affidavits, and documents submitted in this action, the special master recommends the court find that requester has not shown that respondent violated R.C. 149.43(B). It is recommended that costs be assessed to requester.
{¶19} 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 January 29, 2021
Sent to S.C. Reporter 3/12/21