Ault v. Durbin

[Cite as Ault v. Durbin, 2022-Ohio-4826.]

IN THE COURT OF CLAIMS OF OHIO

KARA L. AULT Case No. 2022-00547PQ

Requester Special Master Jeff Clark

v. REPORT AND RECOMMENDATION

CITY OF GALION –

PAULA E. DURBIN,

COUNCIL WOMAN

Respondent

{¶1} The Ohio Public Records Act (PRA) requires copies of public records to be

made available to any person upon request. The state policy underlying the PRA is that

open government serves the public interest and our democratic system. State ex rel.

Gannett Satellite Information Network, Inc. v. Petro, 80 Ohio St.3d 261, 264, 685 N.E.2d

1223 (1997). To that end, the public records statute must be 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. This action is filed under R.C. 2743.75, which provides an expeditious and

economical procedure to enforce the PRA in the Court of Claims.

{¶2} On May 25, 2022, requester Galion City Councilwoman Kara Ault made a

public records request to respondent City of Galion’s Director of Communications Matt

Echelberry for

the document that Council Woman Durbin read from last night during the

council meeting on discussion during the discussion [sic] allowing outside

council. I am also requesting if she received the document from an outside

source (not written by her) any correspondence that came with the

document for review.

Case No. 2022-00547PQ -2- REPORT AND RECOMMENDATION

(Complaint at 3.) On June 27, 2022, Clerk of Council Julie Bell responded “We are

working on this. Thomas’ office is involved. We have been told that the audio recording

should be sufficient by Ms. Durbin.” (Id. at 5.) No responsive records were produced.

{¶3} On July 12, 2022, Ault filed a complaint under R.C. 2743.75 alleging denial of

timely access to public records in violation of R.C. 149.43(B). The case proceeded to

mediation, and on November 4, 2022, the court was notified that the case was not

resolved. On November 16, 2022, the City of Galion filed an answer/response (City

Response). On November 21, 2022, Durbin filed an answer/response (Durbin Response).

{¶4} As a preliminary matter, the City and Durbin note that Ault made her request

only to the City’s clerk of council and communications director. The City and Durbin each

make vague and ultimately inconsequential arguments as to which of them is “the actual

Respondent in the Court of Claims.” A requester may make a public records request to

either the public office or any “person responsible for public records,” R.C. 149.43(B)(1),

or both. Consistent with the duty to construe the Public Records Act liberally in favor of

broad access, a request made to an administrative official of a board or committee for the

records of a member of that entity is sufficient and proper delivery of the request. State

ex rel. ACLU of Ohio v. Cuyahoga County Bd. of Commrs., 128 Ohio St.3d 256, 2011-

Ohio-625, 943 N.E.2d 553, ¶ 33-34. The court need not address the issue at any greater

length since the documents sought - the personal notes of the council member involved

– are not shown to meet the definition of “records” of either the City or Durbin.

Burden of Proof

{¶5} 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.

Request for an Official’s Notes

Case No. 2022-00547PQ -3- REPORT AND RECOMMENDATION

{¶6} The Public Records Act applies only to “records kept by any public office.”

R.C. 149.43(A)(1). R.C. 149.011(G) provides a three-part definition of “records” as used

in Revised Code Chapter 149:

“Records” includes any document, device, or item, regardless of physical

form or characteristic * * *, 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 Ohio Supreme Court applies the definition of records broadly and inclusively in favor

of disclosure:

The [Public Records] Act represents a legislative policy in favor of the open

conduct of government and free public access to government records. As

we noted in [Dayton Newspapers, Inc., 45 Ohio St.2d 107, 109]:

“‘The rule in Ohio is that public records are the people’s records, and that

the officials in whose custody they happen to be are merely trustees for the

people; therefore anyone may inspect such records at any time * * *.’”

***

In R.C. 149.011(G), the General Assembly prefaces its definition of

“records” with the term “includes,” a term of expansion, not one of limitation

or restriction. * * *

State ex rel. Post v. Schweikert, 38 Ohio St.3d 170, 172-173, 527 N.E.2d 1230 (1988).

“The R.C. 149.011(G) definition of ‘records’ has been construed to encompass ‘anything

a governmental unit utilizes to carry out its duties and responsibilities.’” (Citations

omitted.) State ex rel. Beacon Journal Publishing Co. v. Whitmore, 83 Ohio St.3d 61, 63,

697 N.E.2d 640 (1998).

{¶7} However, the statutory definition of “records” does not include every piece of

paper on which a public official or employee writes anything. As relevant to this action:

Notes may not constitute “records” subject to the Public Records Act if they

are (1) kept as personal papers, not official records; (2) kept for the

employee’s own convenience; and (3) other employees did not use or have

access to the notes. State ex. rel. Cranford v. Cleveland, 103 Ohio St.3d

196, 2004-Ohio-4884, 814 N.E.2d 1218, ¶ 18. Notes taken by public officials

for their convenience as interviewers, evaluators, or assessors, and

subsequently used in deliberative processes that result in written

summaries or decisions, generally do not constitute “records” of the public

office. Cranford at ¶ 14-22 (predisciplinary conference notes); Barnes v.

Columbus, 10th Dist. Franklin No. 10AP-637, 2011-Ohio-2808, ¶ 9-27 (civil

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service commission assessors’ notes); State ex rel. Murray v. Netting, 5th

Dist. Guernsey No. 97-CA-24, 1998 Ohio App. LEXIS 4719 (police chief

interviewers’ notes). While such notes are often destroyed when of no

further use to the drafter, retaining them in public office files does not

automatically make them “records.” Cranford at ¶ 21; Silberstein v.

Montgomery Cty. Cmty. College Dist., 2nd Dist. Montgomery No. 23439,

2009-Ohio-6138, ¶ 54, 67. Nor do personal notes lose their non-record

status merely because they contain information that is not transferred to an

official report. State ex rel. Summers v. Fox, 163 Ohio St.3d 217, 2020-

Ohio-5585, 169 N.E.3d 625, ¶ 65-66.

Paramount Advantage v. Ohio Dept. of Medicaid, Ct. of Cl. No. 2021-00262PQ, 2021-

Ohio-4180, ¶ 13. The Supreme Court holds that when notes are taken by an official for

their own personal convenience and such notes not required to be maintained they are

not records of the office, regardless of the substance of the information contained in the

record. Summers at ¶ 66.

{¶8} Ault’s request sought a document of unknown provenance and size that

Durbin allegedly “read from” at a May 24, 2022 council meeting. (Complaint at 3.) Ault

does not assert that any other city employees used or had access to the document. Durbin

attests that the documents she read from were “my notes, which were both typewritten

and handwritten.” (Durbin Response, Durbin Aff.) Durbin’s characterization of the nature

of the documents is consistent with her referral to the requested papers as “notes” in an

internal June 14, 2022 email. (Id., Durbin Aff., attachment.) Since Ault affirmatively states

that she did not know the nature of the document read from, Durbin’s testimony that the

requested documents were merely her notes stands uncontested.

{¶9} In State ex rel. Cranford v. Cleveland, 103 Ohio St.3d 196, 2004-Ohio-4884,

814 N.E.2d 1218, ¶ 18-19, the Supreme Court found that notes taken by an official

conducting a predisciplinary conference, which he used to refresh his memory of the

conference at a subsequent civil service commission hearing, were not “records” because

they were merely notes kept for his own convenience to recall events and were not kept

as part of the city’s or the planning commission’s official records. The court found it

significant that no information had been lost because the requester had also been present

at the predisciplinary conference and could have taken his own notes or obtained a

transcription. Further, most of the notes were actually read into the transcribed civil

Case No. 2022-00547PQ -5- REPORT AND RECOMMENDATION

service commission hearing. The court noted as a sixth factor that there was no evidence

other city officials had access to or used the notes.

{¶10} The facts here closely resemble those in Cranford. The documents were the

personal notes of Durbin, were used by her to make a statement at a council meeting,

and the portions Durbin read were recorded in the council meeting video recording that

was then posted on the Galion Facebook page. (City Response at 3, 14.) Considering the

evidence before the court, the Special Master finds that Ault has not met her burden to

show by clear and convincing evidence that the document(s) she requested were

“records” as defined in R.C. 149.011(G).

Conclusion

{¶11} Upon consideration of the pleadings and attachments, the Special Master

recommends the court find that the requested documents were not records of the Galion

City Council or any member thereof and are therefore not subject to the Public Records

Act. The Special Master recommends that requester’s claim for production of documents

be DENIED. It is recommended that 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, 2022

Sent to S.C. Reporter 1/9/23