Parks v. Blanchester Bd. of Pub. Affairs

[Cite as Parks v. Blanchester Bd. of Pub. Affairs, 2021-Ohio-4653.]

JOSHUA PARKS Case No. 2021-00524PQ

Requester Special Master Jeff Clark

v. REPORT AND RECOMMENDATION

BLANCHESTER BOARD OF PUBLIC

AFFAIRS, VILLAGE OF BLANCHESTER

Respondent

{¶1} The Public Records Act (PRA or Act) requires a public office to make copies

of requested public records available at cost and within a reasonable period of time.

R.C. 149.43(B)(1). The Act is construed liberally in favor of broad access, with any

doubt resolved in favor of disclosure. 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.

{¶2} On August 14, 2021, requester Joshua Parks sent an email request to the

records clerk of respondent Village of Blanchester:

Please send me any and all emails related to Blanchester Board of Public

Affairs Director Ram Reddy, just send me the copies of his emails, you

can forward them over to me if that’s easier. Dates (January, 1 2021 to

current which is August, 14 2021)

If Ram Reddy is using his personal email for any business, Government,

or Work use then that would also be available as public records and I

would like those forwarded to me as well. If you need me to clarify more

on the record request please let me know.

(Complaint at 3.) The clerk responded that the request was ambiguous and overly broad

and invited Parks to provide the subject matter and time frame of the communications

sought. She attached a copy of the Attorney General’s 2021 Sunshine Law Manual as

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guidance for revising the request. (Id.) On August 31, 2021 the records clerk advised

the request had been closed for lack of the subject matter of emails sought. (Id. at 2.)

Parks declined to provide that information or otherwise revise the request. (Id.)

{¶3} On September 14, 2021, Parks 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 28, 2021, the Village filed an answer (Response). Following unsuccessful

mediation, the court offered the Village an opportunity to submit additional response by

December 8, 2021. No further pleading has been filed.

Burden of Proof

{¶4} The Ohio Public Records Act, R.C. 149.43, is construed liberally in favor of

broad access, with any doubt resolved in favor of disclosure of public records. State ex

rel. Rogers v. Dept. of Rehab. & Corr., 155 Ohio St.3d 545, 2018-Ohio-5111, 122

N.E.3d 1208, ¶ 6. The requester in an action under R.C. 2743.75 bears an overall

burden to establish a public records violation by clear and convincing evidence. Hurt v.

Liberty Twp., 2017-Ohio-7820, 97 N.E.3d 1153, ¶ 27-30 (5th Dist.). The requester bears

an initial burden of production “to plead and prove facts showing that the requester

sought an identifiable public record pursuant to R.C. 149.43(B)(1) and that the public

office or records custodian did not make the record available.” Welsh-Huggins v.

Jefferson Cty. Prosecutor’s Office, 163 Ohio St.3d 337, 2020-Ohio-5371, 170 N.E.3d

768, ¶ 33.

Ambiguous and Overly Broad Requests

{¶5} 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 does not reasonably identify what public records are being

requested may be denied. R.C. 149.43(B)(2). See generally Gupta v. Cleveland, Ct. of

Cl. No. 2017-00840PQ, 2018-Ohio-3475, ¶ 22-29, and cases cited therein. Judicial

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determination of whether an office has properly denied a request as ambiguous or

overly broad is based on the facts and circumstances in each case. Zidonis at ¶ 26.

{¶6} In this case, the request is ambiguous and overly broad in multiple,

overlapping ways. First, the request seeks “any and all emails related to” a named

employee for an eight- and one-half month period. “Any and all” is a term of broad and

complete inclusion, rather than one of specification and identification. It includes all

email the employee has sent, received, or was cc’d or bcc’d on. It includes email about

internal employment matters, office-distributed policies, training notices, other

administrative correspondence, personal communications, and even spam messages,

without exception. The Supreme Court has held that a request for “all e-mails sent or

received by” a public official for a six-month period was overly broad and therefore

improper. State ex rel. Glasgow v. Jones, 119 Ohio St.3d 391, 2008-Ohio-4788, 894

N.E.2d 686, ¶ 4-5, 16-19. See also State ex rel. Bristow v. Baxter, 6th Dist. Erie Nos. E-

17-060, E-17-067, E-17-070, 2018-Ohio-1973, ¶ 11-16. As used here, the demand for

“any and all” emails is independently sufficient to render the request ambiguous and

overly broad.

{¶7} Separately, the broad but vague inclusion of all emails “related to [the

employee]” sweeps in not just email to which the employee was a correspondent but

any other email referring to the employee or referencing office matters with which he is

involved. This is language of expansion and research rather than identification and

clarity. It requires the Village to comb through each office email for any relationship with

the employee rather than retrieve those reasonably identified by subject matter, search

terms, and the like. State ex rel. Dillery v. Icsman, 92 Ohio St.3d 312, 314, 750 N.E.2d

156 (2001). Accord State ex rel. Chasteen v. Ohio Dept. of Rehab. & Corr., 10th Dist.

Franklin No. 13-AP-779, 2014-Ohio-1848, ¶ 23-27; DeCrane v. Cleveland, Ct. of Cl. No.

2018-00358PQ, 2018-Ohio-3651, ¶ 6-7, adopted by DeCrane v. Cleveland, Ct. of Cl.

No. 2018-00358PQ, 2018-Ohio-4363, cited with approval in Barnes v. Cleveland Div. of

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Records Admin., 2021-Ohio-212, 167 N.E.3d 51, ¶ 43 (8th Dist.). Compare State ex rel.

Kesterson v. Kent State Univ., 156 Ohio St.3d 22, 2018-Ohio-5110, 123 N.E.3d 895,

¶ 23-27 (A request for email is not overly broad if it is reasonably circumscribed by time

period, subject matter, author or sender/recipient, and the like). The special master finds

that the all-encompassing request for any email related to the employee is ambiguous,

overly broad, and fails to reasonably identify the records sought.

{¶8} An office record kept on an employee’s personal device as the record copy

of email communication can be a public record. See Sinclair Media III v. Cincinnati, Ct.

of Cl. No. 2018-01357PQ, 2019-Ohio-2624, ¶ 5-12 and cases cited therein. However,

Parks’ second request, in the second paragraph of his August 14, 2021 email, is even

broader than the first in demanding personal email “for any business, Government, or

Work use” without identifying particular correspondents, subject matter or even the date

range sought. A request is ambiguous and overly broad when it identifies

correspondents only as belonging to titles, groups, or categories for which research is

required to establish membership. State ex rel. Oriana House, Inc. v. Montgomery, 10th

Dist. Franklin Nos. 04AP-492, 04AP-504, 2005-Ohio-3377, ¶ 9, overturned on other

grounds, 107 Ohio St.3d 1694, 2005-Ohio-6763, 840 N.E.2d 201. Even more so is

Parks’ request that the village research all of an employee’s personal emails to identify

those relating to “any business, Government, or Work use” without identifying the

business, government, or work correspondents involved. The special master finds that

Parks’ second request, for records from the employee’s personal email account, is

ambiguous, overly broad, and does not reasonably identify the records sought.

Opportunity to Revise an Ambiguous or Overly Broad Request

When denying an ambiguous or overly broad request, a public office must

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.

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R.C. 149.43(B)(2). In his August 14, 2021 request, Parks offered: “If you need me to

clarify more on the record request please let me know.” (Complaint at 3.) The Village

informed Parks the request was overly broad and took him up on his offer to clarify by

asking him to provide subject matter and time frame for the emails sought. The Village

further invited Parks to “[p]lease advise if you have any questions.” (Id.) Parks did not

provide any additional information or ask any questions. On August 31, 2021 the village

advised Parks that the request was closed, i.e., denied, for lack of identifying subject

matter. (Id. at 2, Answer at ¶ 3.) Parks apparently took this as a second request for

subject matter and responded: “The matter will be filed in Court of Claims this week. I

prefer the courts to determine what is available to me and what is not at this time.”

(Complaint at 2.) Based on the Village’s invitation to revise the request, its repeated

advice that email could be located based on subject matter, and its repeated urging that

Parks consult the Attorney General’s 2021 Ohio Sunshine Manual for guidance in

crafting a proper request, the special master finds that the Village at least minimally met

the requirements of R.C. 149.43(B)(2) to assist Parks in revising his request.

{¶9} Under these circumstances, courts have encouraged parties to persevere to

achieve a mutually acceptable resolution of currently deficient records requests. See

State ex rel. Morgan v. Strickland, 121 Ohio St.3d 600, 2009-Ohio-1901, 906 N.E.2d

1105, ¶ 14-19. The General Assembly provides statutory tools to optimize the scope,

speed, format, economy, and delivery of public records. See R.C. 149.43(B)(2), (3), (5),

(6), (7) and (9). The parties are encouraged to cooperate fully in negotiating any future

revision of this request.

{¶10} The special master finds that Parks’ public records request was not limited

to email identified by a reasonable time period, by topic, or by identified correspondents.

Parks has not proven by clear and convincing evidence that he made a request that

reasonably identified the records sought, and the request is thus unenforceable. This

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conclusion does not restrict Parks from filing a new public records request that does

reasonably identify the public records sought.

Conclusion

{¶11} Upon consideration of the pleadings and attachments, the special master

recommends the court deny the claim for production of records. It is recommended

costs be assessed to requester.

{¶12} 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 December 22, 2021

Sent to S.C. Reporter 1/21/22