Mitchell v. Ohio Ethics Comm.

[Cite as Mitchell v. Ohio Ethics Comm., 2020-Ohio-5590.]

GEOFFREY C. MITCHELL Case No. 2019-01182PQ

Requester Special Master Jeff Clark

v. REPORT AND RECOMMENDATION

OHIO ETHICS COMMISSION

Respondent

{¶1} Ohio’s Public Records Act, R.C. 149.43, 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.

{¶2} On October 9, 2019, requester Geoffrey Mitchell made a public records

request to Paul Nick, the Executive Director for respondent the Ohio Ethics Commission

(OEC or commission):

Please produce copies of any records, documents and/or communications

pertaining financial [sic] compensation or any other "thing of value" paid to

or on behalf of any UT trustee from 2013 - present. This request includes

but is not necessarily Iimited to annual financial disclosure statements by

UT Trustees which I assert should be available for public inspection

pursuant to R.C. § 102.02(B).

(Complaint at 6.) On October 11, 2019, Nick sent a response (Complaint at 9-10)

enclosing redacted copies of financial disclosure statements filed by University of

Toledo trustees for the calendar years 2013-2018. (Reply, Bates Nos. 000001-000305.)

{¶3} On December 23, 2019, Mitchell filed this action pursuant to R.C. 2743.75

alleging denial of access to public records in violation of R.C. 149.43(B). Following

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unsuccessful mediation, the OEC filed a combined motion to dismiss and response to

complaint (Response) on February 13, 2020. Mitchell filed a reply on March 2, 2020,

and filed supplemental documents on October 14, 2020.

Burdens of Proof

{¶4} Ohio’s Public Records Act (PRA or 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. In

an enforcement action under R.C. 2743.75, a requester must establish public records

violations by clear and convincing evidence. Hurt v. Liberty Twp., 2017-Ohio-7820, 97

N.E.3d 1153, ¶ 27-30 (5th Dist.).

{¶5} If a public office asserts an exception to the PRA, 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 under the Act must be strictly construed against the public-

records custodian, and the custodian bears the burden to establish applicability of an

exception. 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

of public records. State ex rel. James v. Ohio State Univ., 70 Ohio St.3d 168, 169, 637

N.E.2d 911 (1994).

Motion to Dismiss

{¶6} In construing a motion to dismiss pursuant to Civ.R. 12(B)(6), the court must

presume that all factual allegations of the complaint are true and make all reasonable

inferences in favor of the non-moving party. Mitchell v. Lawson Milk Co., 40 Ohio St.3d

190, 192, 532 N.E.2d 753 (1988). Then, before the court may dismiss the complaint, it

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must appear beyond doubt that plaintiff can prove no set of facts entitling him to

recovery. O’Brien v. Univ. Community Tenants Union, Inc., 42 Ohio St.2d 242, 245, 327

N.E.2d 753 (1975).

{¶7} The OEC moves to dismiss the complaint on the grounds that the request

was overly broad, but that it has rendered all claims moot by providing Mitchell with

copies of responsive financial disclosure forms. The OEC asserts that the redacted

portions of the forms are exempt from disclosure pursuant to R.C. 102.02(B) and .07.

Ambiguous or Overly Broad Request

{¶8} 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 request that is ambiguous or overly broad may be denied. R.C.

149.43(B)(2). 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.

{¶9} The court need only consider the portion of a public records request that the

requester claims has been denied in violation of R.C. 149.43(B). Although several

broader requests are apparent in the attachments, Mitchell’s complaint states:

Requestor submits this complaint under R.C. 2743.75(D) alleging to this

Court that the Ohio Ethics Commission (“OEC”) has refused to produce

certain annual financial disclosure statements of public university trustees

as required by R.C. 149.43 and particularly 102.02(B).

This limited claim matches the specific request for “annual financial disclosure

statements by UT Trustees” that is embedded in Mitchell’s broader demand for “any

records, documents and/or communications pertaining financial [sic] compensation or

any other ‘thing of value’ paid to or on behalf of any UT trustee from 2013 - present.”

See State ex rel. Glasgow v. Jones, 119 Ohio St.3d 391, 2008-Ohio-4788, 894 N.E.2d

686, ¶ 1, 17-24 (a request for six months-worth of email was found overly broad, but an

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embedded request, “including, but not limited to [a particular legislative bill],” was

sufficiently narrow to be a proper request); Axelrod v. Ohio DOC, Div. of Sec., Ct. of Cl.

2018-01458PQ, 2019-Ohio-1821, ¶ 9-10. I find that the embedded request here is not

ambiguous or overly broad, and reasonably identifies the records sought.

{¶10} Neither the complaint nor the reply seek production beyond the specified

financial disclosure statements, and the OEC’s production of redacted financial

disclosure statements in the requested date range shows that the office was aware of

the particular records requested. State ex rel. Morgan v. New Lexington, 112 Ohio St.3d

33, 2006-Ohio-6365, 857 N.E.2d 1208, ¶ 37. Further, if the OEC had found the

“disclosure statements” portion of the request ambiguous, it was under a mandatory

duty to offer Mitchell an opportunity to revise the request. R.C. 149.43(B)(2). The OEC’s

perfunctory invitation to “contact me if you have any questions” did not satisfy the

requirement in R.C. 149.43(B)(2) to “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.” However, clarification of the embedded request was apparently unnecessary,

as the OEC readily identified, processed, and delivered the financial disclosure

statements responsive to the request.

{¶11} I recommend the court deny the motion to dismiss for ambiguity or

overbreadth.

Suggestion of Mootness

{¶12} In an action to enforce R.C. 149.43(B), a public office may produce the

requested records prior to the court’s decision and thereby render the claim for

production moot. State ex rel. Striker v. Smith, 129 Ohio St.3d 168, 2011-Ohio-2878,

950 N.E.2d 952, ¶ 18-22. Between its October 11, 2019 response, and its later

production of responsive records during mediation, the OEC asserts that it has provided

Mitchell with copies of all records responsive to his request. Mitchell does not dispute

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that the OEC provided him with redacted versions of all requested financial disclosure

statements. I recommend the court find the claim moot only as to the unredacted

portions that were produced.

{¶13} The remaining determination for the court is whether the OEC has proven

that the redacted portions of the records fall squarely within a public records exception.

Exception Claimed

{¶14} R.C. 149.43(A)(1) sets forth a catch-all exception for “[r]ecords the release

of which is prohibited by state or federal law.” R.C. 149.43(A)(1)(v). The OEC asserts

that the requested records are excepted from disclosure by R.C. 102.02 and R.C.

102.07. As relevant here, these statutes provide that:

Disclosure statements filed under this division with the Ohio ethics

commission by members of boards, commissions, or bureaus of the state

for which no compensation is received other than reasonable and

necessary expenses shall be kept confidential,

R.C. 102.02(B), and, “No person shall divulge information that appears on a disclosure

statement and is required to be kept confidential under division (B) of section 102.02 of

the Revised Code.” R.C. 102.07. The analysis of these exceptions will focus on the

terms of R.C. 102.02(B), as the provisions of R.C. 102.07 are redundant.

{¶15} To meet its burden as the party asserting the exception, the OEC is

required to prove, first, that the withheld records are 1) financial disclosure statements,

2) filed under R.C. 102.02(B) with the Ohio Ethics Commission, 3) by members of an

eligible board of the state, and 4) were determined by the OEC not to indicate a

possible conflict of interest. R.C. 102.02(B). However, division (B) next goes on to

provide a conditional exclusion from the exception:

If the commission determines that a potential conflict of interest exists, it

shall notify the person who filed the disclosure statement and shall make

the portions of the disclosure statement that indicate a potential conflict of

interest subject to public inspection in the same manner as is provided for

other disclosure statements. Any portion of the disclosure statement that

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the commission determines does not indicate a potential conflict of interest

shall be kept confidential by the commission and shall not be made

subject to public inspection, except as is necessary for the enforcement of

Chapters 102. and 2921. of the Revised Code and except as otherwise

provided in this division.

(Emphasis added.) R.C. 102.02(B). Thus, after a record’s initial status as an excepted

disclosure statement is established, subsequent proof of a commission determination

that a potential conflict of interest exists in any portion of the disclosure statement

triggers an “exception to the exception,” making that portion subject to public inspection.

Mitchell argues that the requested records are excluded from the confidentiality

protection of the statute because additional potential conflicts of interest exist in the

redacted portions of one or more of the disclosure statements. Mitchell invited the court

to examine the disclosure statements in camera and, considering the news articles and

other material he has submitted in support, determine whether the OEC’s

determinations were correct or incorrect. However, the statutory basis for mandated

public disclosure is not whether a potential (or actual) conflict of interest exists, but only

whether the commission has determined that one exists. It is thus irrelevant to this

court’s task whether a potential conflict of interest exists for a trustee.

{¶16} Where an exception to the Public Records Act requires a public office to

prove that a record meets substantive definitional standards, such as the exceptions for

trade secret, R.C. 1333.61, et seq.; security and infrastructure records, R.C.

149.433(A); and attorney-client privilege, State ex rel. Lanham v. DeWine, 135 Ohio

St.3d 191, 2013-Ohio-199, 985 N.E.2d 467, ¶ 21-27, the court must review evidence

and determine whether the public office has proven each substantive element of the

exception for each withheld record. Where an exception is based instead on the

outcome of an administrative or judicial process, the court may consider only whether

that process was properly followed and resulted in an outcome that that mandates

confidentiality. For example, when a criminal conviction has been sealed pursuant to

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R.C. 2953.32, a public records requester may challenge whether the sealing court

followed the correct procedures under the sealing statute, but not how the judge

weighed the sealing factors in his or her ultimate decision. See, generally, State ex rel.

Cincinnati Enquirer v. Lyons, 140 Ohio St.3d 7, 2014-Ohio-2354, 14 N.E.3d 989.

Mitchell does not appear to contest the first three elements of the four listed above for

application of R.C. 102.02(B). Analysis thus turns to the fourth element of the exception,

the commission’s review and determination of potential conflicts of interest.

{¶17} The commission is required to review all newly submitted disclosure

statements for potential conflicts of interest. R.C. 102.02(B). Although he disputes the

accuracy of the determinations reached, Mitchell does not dispute that the commission

made determinations as to which portions of each disclosure statement did and did not

indicate potential conflicts of interest. The OEC’s executive director affirmatively attests

that commission staff reviewed the requested financial disclosure statements and

requested relevant information from the agency for which the subject of the disclosure

serves, and that the commission then applied the review and agency responses to

make the determinations reflected in the records as released. (Response at 6-7, Nick

Aff. at ¶ 10-12.) The OEC asserts that “[a]ny potential conflicts of interest that the

Commission identified were left unredacted and open for inspection on the Trustees’

financial disclosure statements provided to Mr. Mitchell, including those of Mr.

Cavanaugh.” (Response at 6-7.) While the OEC has not provided the court with its

records documenting what potential conflicts were found,1 or precisely where those

potential conflicts exist in the unredacted sections of each disclosure statement, the

1 The OEC describes records resulting from inspection of financial disclosure reports as “marked

lists” created by commission staff. (Response, Nick Aff. at ¶ 10-12; Respondent’s Aug. 19, 2020

Additional Filing at 7.) The decisions made by the commission based on these lists, and any other staff

research and recommendations, are presumably documented as well. Mitchell’s October 9, 2019 letter

did not request any financial disclosure statement conflict lists, reviews, reports, or commission

determinations as records sought.

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sworn assertion that it has made the determinations and has disclosed those portions of

the statements is sufficient to satisfy the terms of R.C. 102.02(B).

{¶18} I find that the OEC has met its burden of proof to show that the requested

records fall squarely within the initial exception for state board member financial

disclosure statements in R.C. 102.02(B) and R.C. 102.07. I further find that the OEC

has submitted evidence that the redacted portions of the records as released are not

subject to the conditional “exception to the exception” for records that the commission

determines indicate a potential conflict of interest.

Conclusion

{¶19} Upon consideration of the pleadings, attachments, and responsive records

filed under seal, I recommend the court find that the claim is moot as to the unredacted

portions of the records provided by the OEC before and during litigation. I further

recommend the court issue an order denying requester’s claim for disclosure of

additional information from the redacted portions of the records. I recommend that costs

be assessed to requester.

{¶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).

JEFF CLARK

Special Master

Filed November 3, 2020

Sent to S.C. Reporter 12/8/20