[Cite as State ex rel. Cushion v. Massillon,

.]

COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT

: JUDGES: STATE OF OHIO, ex rel., : W. Scott Gwin, P.J. R. PAUL CUSHION, II : John W. Wise, J. : Julie A. Edwards, J. Relator-Appellee : : Case No. 2010CA00199 -vs- : : : OPINION THE CITY OF MASSILLON, et al.,

Respondents-Appellants

CHARACTER OF PROCEEDING: Civil Appeal from Stark County Court of Common Pleas Case No. 2009CV02719

JUDGMENT: Affirmed In Part and Reversed and Remanded In Part

DATE OF JUDGMENT ENTRY: September 12, 2011

APPEARANCES:

For Relator-Appellee For Respondents-Appellants

WILLIAM E. WALKER GREGORY A. BECK P.O. Box 192 Baker, Dublikar, Beck, Massillon, Ohio 44648-0192 Wiley & Mathews 400 South Main Street North Canton, Ohio 44720

PERICLES G. STERGIOS Massillon City Law Director Two James Duncan Plaza Massillon, Ohio 44646 [Cite as State ex rel. Cushion v. Massillon,

.]

Edwards, J.

{¶1} Respondents-appellants, City of Massillon, Pericles Stergios, Jayne

Ferrero and Francis Cicchinelli, Jr., appeal from the June 30, 2010 Judgment Entry of

the Stark County Court of Common Pleas. Relator-appellee, State of Ohio ex rel R. Paul

Cushion, II, has filed a Cross-appeal.

STATEMENT OF THE FACTS AND CASE

{¶2} On or about May 7, 2009, appellee sent a public records request via

certified mail to appellant Pericles Stergios, Law Director for the City of Massillon.

Appellee specifically requested the following:

{¶3} “‘the amount of expenditures or legal fees paid to the following law firms,

special counsel law firms, outside law firms, appointed legal counsel, legal or other

consulting fees, attorneys at law or bond counsel fees that your offices, or other offices

under you authority paid to the following individuals, law firms or entities for the period

2003, 2004, 2005, 2006, 2007, 2008 and 2009. Please include the City Council

Resolution authorizing the payment of these fees and the Law Director’s letter or

determination designating the following legal entities to act on behalf of the City and the

Law Department:

{¶4} “(1) Bricker & Eckler, LLP of Columbus, Ohio;

{¶5} “(2) Becky Princehorn Attorney at Law, and Chris Slagle, Attorney at Law,

Columbus, Ohio;

{¶6} “(3) Krugliak, Wilkins and Griffiths, LLP of Canton, Ohio (Jackson

Township, Stark County Ohio);

{¶7} “(4) Leslie Iams Kuntz, Attorney at Law; Stark County App. Case No. 2010CA00199 3

{¶8} “(5) Buckingham, Doolittle and Burroughs, LLP of Canton, Ohio;

{¶9} (6) J. Fred Stergios, Attorney at Law;

{¶10} “(7) John L. Kurtzman, Attorney at Law;

{¶11} “(8) Stergios, Kurtzman & Stergios, LLP (Massillon, Ohio) or Law firm with

similar name;

{¶12} “(9) Any other Law Firms, Attorneys or Special Counsel not stated above

that you code or specify as legal fees or consulting fees.”

{¶13} On or about May 7, 2009, the same public records request was sent via

certified mail to appellant Jayne Ferrero, Auditor for the City of Massillon, and appellant

Francis Cicchnelli, Jr., Mayor for the City of Massillon. The same were delivered on

May 11, 2009.

{¶14} As memorialized in a letter dated May 20, 2009 to appellee, appellant

Pericles Stergios responded to appellee’s request for public records. Appellant Stergios,

in such letter, indicated that he was enclosing the only documents in the possession of

his office he had been able to assemble that he believed were responsive to appellee’s

request. Appellant Jayne Ferrero responded to appellee’s public records request via a

letter to appellee dated May 20, 2009.

{¶15} On July 14, 2009, appellee filed a verified complaint against appellants

seeking a writ of mandamus pursuant to R.C. 149.43, forfeiture pursuant to R.C.

149.351 and attorney fees pursuant to R.C. 149.43. Appellee, in his complaint, alleged

that appellants had failed to produce public records including e-mail correspondences

and Ethernet memorandum of “any nature” and that appellant Francis Cicchinelli, Jr.

had “wholly failed to respond whatsoever” to appellee’s request. Stark County App. Case No. 2010CA00199 4

{¶16} Thereafter, in a letter to appellee dated July 17, 2009, appellant Stergios

indicated that his May 20, 2009, response to appellee’s public records request “was

meant to be on behalf of all three (3) entities from which you requested records,

including Mayor Cicchinelli (sic) office. As I said in my May 20, 2009, letter, ‘I believe

that these are the only documents responsive to your request.’ This statement was

meant to be on behalf of the entire City.”

{¶17} Appellant Francis Cicchinelli, Jr, in a separate letter to appellee also dated

July 17, 2009, stated as follows:

{¶18} “In response to your May 7, 2009 Public Records Request I am writing to

clarify that my office was not in possession of any of the documents you requested.

Specifically, you made the request of both the Law Director and the City Auditor who

provided you with the documents that you requested. The response of these two (2)

officials was the response of my office. There are no additional documents to provide

based upon the request that you made.”

{¶19} Thereafter, in a letter to appellant Stergios dated July 27, 2009, appellee

stated, in relevant part, as follows:

{¶20} “I am also seeking all e-mail and tangible correspondences of any nature

whatsoever, between, to, or from the Law Director’s Office, the Auditor’s Office, and the

Mayor’s Office relevant to the matter at issue. I am also seeking all e-mail and tangible

correspondences of any nature whatsoever, between, to, or from the Law Director’s

Office, the Auditor’s Office, and the Mayor’s Office relevant to the matter at issue to, or

from, any law firm(s), attorney(s) or other such agent(s), that were contained in my May Stark County App. Case No. 2010CA00199 5

7, 2009 request during the period between and including the years 2003, 2004, 2005,

2006, 2007, 2008, and 2009.

{¶21} Subsequently, in a letter to appellee dated August 5, 2009, appellant

Stergios stated, in relevant part, as follows: “I am not in possession nor do I control e-

mail and tangible correspondence from the Auditor or Mayor’s office. Therefore, if you

wish to request documents from the Auditor or the Mayor I suggest that you direct such

request specifically to them so that the request can be answered.”

{¶22} On August 21, 2009, appellee filed a Motion to Compel. Appellee, in his

motion, asked the court for an order compelling appellants to respond to all discovery

requests propounded on appellants by appellee on July 14, 2009. The discovery

request had included Request for Production of Documents. In his request for

Production of Documents, appellee, in addition to requesting the documents originally

requested in his May 7, 2009, public records request, sought additional documents.

Among the additional documents that appellee requested were the following:

{¶23} “3. Produce copies of all correspondences, including e-mails, between the

‘City’ and/or any of the entity’s and/or individuals set forth in paragraph 1 above, and all

correspondences, including e-mails between the entities and the ‘City’ relevant to those

entities and/or individuals set forth in paragraph 1 above;

{¶24} “4. Produce any and all purchase orders, or other such documents

including e-mails, submitted by the entities for any services used or sought in retaining

and/or gathering and/or recovering the requested public records from the entities listed

above. Stark County App. Case No. 2010CA00199 6

{¶25} “5. Produce any and all work orders and logs pertaining to the services

and entities listed in paragraph 1, above.

{¶26} “6. Produce all correspondences concerning the services and entities

listed in paragraph 1 above.

{¶27} “7. Produce all correspondences from and between the entities (including

any of its individual members) to or from the City (including any of its individual of its

individual members), concerning the services and entities listed in paragraph 1 above.

{¶28} “8. Produce all correspondences from the City’s Law Department

(including any of its individual member) to the City (including any of its individual

members) relevant to and/or concerning the services and entities listed in paragraph 1

above.

{¶29} “9. Produce any and all documents, including e-mails, generated by the

present request for public documents.

{¶30} “10. Produce a phone listing of any and all calls made to and received

between the City, the Respondents, to or from any of the entities set forth in Paragraph

1 above.”

{¶31} The entities or individuals referred to are the same as listed in appellee’s

original public records request.

{¶32} The trial court, in an Order filed on September 16, 2009, stated in relevant

part, as follows: “upon the Court conducting a telephonic status conference with counsel

for the parties…, the Court has been informed that the parties have agreed upon the

requested documents being submitted to the Realtor/Plaintiff within ten (10) days of this

Order.” On September 25, 2009, appellants filed a notice stating that on September 25, Stark County App. Case No. 2010CA00199 7

2009, they had provided their responses to requests for production of documents to

appellee. The Motion to Compel was ordered withdrawn via an order filed on

September 25, 2009.

{¶33} On December 4, 2009, appellants filed a Motion for Summary Judgment.

Appellants, in their motion, argued that appellee had received all of the existing

documents that he requested and that his initial records requests were met promptly by

appellants. Appellee, on December 21, 2009, filed a combination memorandum in

opposition to appellants’ Motion for Summary Judgment and Motion for Summary

Judgment.

{¶34} Pursuant to a Judgment Entry filed on June 30, 2010, the trial court

granted both Motions for Summary Judgment in part. The trial court found that

appellants had failed to provide twelve documents to appellee with their initial response

to appellee’s document request. The trial court, in its Judgment Entry, stated, in relevant

part, as follows:

{¶35} “Upon review of the Realtor’s public records request, this Court finds that

the Realtor requested ‘the amount of expenditures or legal fees paid to the following law

firms…’ The majority of documents that were not initially provided to the Realtor were

Ordinances or documents relating to arbitrator fees paid to attorneys or law firms.

These documents include Relator’s Exhibits H, I, K, O, P, Q, R, S, T, U, V, and W. All

of these documents were provided by Respondents to Realtor in September 2009. This

Court finds that ‘expenditures’ does in fact include arbitrator fees paid to ‘law firms,

special counsel law firms, outside law firms, appointed legal counsel, legal or other

consulting fees, attorneys at law or bond counsel fees…’ Because the Relator’s public Stark County App. Case No. 2010CA00199 8

records request does not just include ‘legal fees’ paid to law firms, etc., but also

includes ‘expenditures’ paid to ‘law firms, special counsel law firms, outside law firms,

appointed legal counsel, legal or other consulting fees, attorneys at law or bond counsel

fees…’ this Court finds that the Relator identified with reasonable clarity the documents

relating to arbitrator fees. Therefore, the documents listed above should have been

provided with the Respondent’s initial response to the public records request.”

{¶36} The trial court also denied appellee’s writ of mandamus, finding, with

respect to specified documents, that appellee had not provided any evidence that such

documents, which he asserted had been destroyed by appellant, had in fact been

destroyed. The trial court awarded appellee $12,000.00 in statutory damages for

appellants’ failure to promptly make certain records available, but denied appellee’s

request for attorney fees.

{¶37} Appellants now raise the following assignments of error on appeal:

{¶38} “I. THE TRIAL COURT ERRED IN FINDING APPELLEE IS ENTITLED

[TO] STATUTORY DAMAGES.

{¶39} “II. THE TRIAL COURT ERRED IN AWARDING STATUTORY

DAMAGES IN THE AMOUNT OF $12,000.”

{¶40} Appellee has filed a cross-appeal, raising the following assignments of

error:

{¶41} “I. A PUBLIC OFFICE HOLDER MUST BE HELD RESPONSIBLE FOR

PUBLIC RECORDS WHICH THE PUBLIC OFFICIAL WERE [SIC] REQUIRED BY LAW

TO GENERATE AND KEEP AVAILABLE FOR PUBLIC INSPECTION, BUT THROUGH

NEGLIGENCE OR MALFEASANCE THE PUBLIC OFFICE HOLDER FAILED TO Stark County App. Case No. 2010CA00199 9

GENERATE AND MAKE AVAILABLE TO THE PUBLIC RECORDS REQUESTER

THOSE PUBLIC RECORDS; AND THEREFORE A PUBLIC RECORDS REQUESTER

MUST BE DEEMED TO BE AN ‘AGGRIEVED’ PARTY AND THE PUBLIC RECORDS

SOUGHT, BUT WHICH ARE NON-EXISTENT, MUST BE DEEMED TO HAVE BEEN

‘DESTROYED.’1

{¶42} “II. THE TRIAL COURT ERRED IN DENYING THE APPELLEE-

RELATOR-CROSS-APPELLANT ATTORNEY FEES WHEN HE WAS THE

INDIVIDUAL THAT WAS ‘AGGRIEVED’, AS THAT TERM IS DEFINED IN THE PUBLIC

RECORDS ACT, WAS A LICENSED ATTORNEY THAT WAS ON ACTIVE STATUS

AND AUTHORIZED TO PRACTICE LAW IN THE STATE OF OHIO, AND WAS SO

AUTHORIZED THROUGHOUT THE ENTIRETY OF THE INSTANT CASE, AND WHEN

THE RECORD CLEARLY INDICATES THAT THE APPELLEE-REALTOR-CROSS-

APPELLANT HIRED A RESEARCH ATTORNEY, ALSO LICENSED TO PRACTICE

LAW IN THE STATE OF OHIO, AND WHICH ATTORNEY GENERATED BILLABLE

ATTORNEY FEES BEYOND THOSE GENERATED BY THE APPELLEE-RELATOR-

CROSS-APPELLANT.

{¶43} “III. A PUBLIC OFFICIAL AND/OR ENTITY IS REQUIRED TO RESPOND

ON ITS OWN BEHALF AND HAS AN INDEPENDENT OBLIGATION TO RESPOND

TO A PROPERLY SUBMITTED PUBLIC RECORDS REQUEST WHICH WAS

SPECIFICALLY SUBMITTED TO THAT PUBLIC OFFICE.”

1 Prior to oral arguments in this case, Judge Julie A. Edwards contacted counsel for both parties and indicated that Tom Ferrero, the husband of appellant Jayne Ferrero, had contributed to her reelection campaign. Appellee Paul Cushion, in an e-mail to Judge Edwards dated January 15, 2011, stated as follows: “Please allow this correspondence to serve as a waiver by the Appellee of any actual or potential conflict by any judge in the appellate court, Case No. 2010CA00199, captioned State ex rel Cushion v. City of Massillon et al.” Stark County App. Case No. 2010CA00199 10

SUMMARY JUDGMENT STANDARD

{¶44} We review the assignments of error pursuant to the standard set forth in

Civ.R. 56. Said rule was reaffirmed by the Supreme Court of Ohio in State ex rel.

Zimmerman v. Tompkins,

,

,

,

: “Civ.R. 56(C) provides that before summary judgment may be granted, it

must be determined that (1) no genuine issue as to any material fact remains to be

litigated, (2) the moving party is entitled to judgment as a matter of law, and (3) it

appears from the evidence that reasonable minds can come to but one conclusion, and

viewing such evidence most strongly in favor of the nonmoving party, that conclusion is

adverse to the party against whom the motion for summary judgment is made. State ex.

rel. Parsons v. Fleming (1994),

,

, citing

Temple v. Wean United, Inc. (1977),

, 4 O.O3d 466, 472,

.”

{¶45} As an appellate court reviewing summary judgment motions, we must

stand in the shoes of the trial court and review summary judgments on the same

standard and evidence as the trial court. Smiddy v. The Wedding Party, Inc. (1987),

,

.

{¶46} It is pursuant to this standard that we review the assignments of error.

I

{¶47} Appellants, in their first assignment of error, argue that the trial court erred

in finding that appellee was entitled to statutory damages. Appellants specifically

contend that they provided the requested documents to appellee in response to his

public records request. Stark County App. Case No. 2010CA00199 11

{¶48} Appellee made his request for public records pursuant to R.C. 149.43.

Such section states, in relevant part, as follows: “(B)(1) Upon request and subject to

division (B)(8) of this section, all public records responsive to the request shall be

promptly prepared and made available for inspection to any person at all reasonable

times during regular business hours. Subject to division (B)(8) of this section, upon

request, a public office or person responsible for public records shall make copies of the

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

public record contains information that is exempt from the duty to permit public

inspection or to copy the public record, the public office or the person responsible for

the public record shall make available all of the information within the public record that

is not exempt. When making that public record available for public inspection or copying

that public record, the public office or the person responsible for the public record shall

notify the requester of any redaction or make the redaction plainly visible. A redaction

shall be deemed a denial of a request to inspect or copy the redacted information,

except if federal or state law authorizes or requires a public office to make the redaction.

{¶49} “(2) To facilitate broader access to public records, a public office or the

person responsible for public records shall organize and maintain public records in a

manner that they can be made available for inspection or copying in accordance with

division (B) of this section….”

{¶50} “‘Mandamus is the appropriate remedy to compel compliance with R.C.

149.43, Ohio's Public Records Act.’ State ex rel. Physicians Commt. for Responsible

Medicine v. Ohio State Univ. Bd. of Trustees,

,

,

; R.C. 149.43(C). The Public Records Act implements the state's policy Stark County App. Case No. 2010CA00199 12

that ‘open government serves the public interest and our democratic system.’ State ex

rel. Dann v. Taft,

,

,

.

‘Consistent with this policy, we construe R.C. 149.43 liberally in favor of broad access

and resolve any doubt in favor of disclosure of public records.’ State ex rel. Glasgow v.

Jones,

,

,

.” State ex rel.

Perrea v. Cincinnati Pub. Schools,

,

,

.

{¶51} Generally to be entitled to the issuance of a writ of mandamus, the Relator

must demonstrate: (1) a clear legal right to the relief prayed for; (2) a clear legal duty on

the respondent's part to perform the act; and, (3) that there exists no plain and adequate

remedy in the ordinary course of law. State ex rel. Master v. Cleveland (1996),

,

; State ex rel. Harris v. Rhodes (1978),

,

, citing State ex rel. National City Bank v. Bd of Education (1977)

,

. However, where the allegation relates solely to

public records request, the Supreme Court has held that the requirement of the lack of

an adequate legal remedy, as an element of a petition for writ of mandamus, does not

apply to public-records cases. State ex rel. Glasgow v. Jones (2008),

,

,

at paragraph 12.

{¶52} At issue in this case is whether or not appellee, in his public records

request, requested documents relating to arbitrator fees. The trial court found that the

term “expenditures” as used in appellee’s initial May 7, 2009 public records request,

included arbitrator fees paid to “law firms, special counsel law firms, outside law firms,

appointed legal counsel or other consulting fees, attorneys at law or bond counsel Stark County App. Case No. 2010CA00199 13

fees…” and that the same should have been provided with appellants’ initial response to

the public records request. The same were not provided by appellants to appellee until

September of 2009.

{¶53} The trial court specifically found that appellants had failed to timely

produce Exhibits H, I, K,O,P,Q,R,S,T,U,V and W. These documents were provided to

appellee in September of 2009 after appellee filed his Motion to Compel appellants to

respond to his discovery request propounded on July 14, 2009. Exhibit H was

Ordinance 87-2009, Exhibit I was Ordinance 128-2008 and Exhibit K was Ordinance

111-2006. Exhibit W concerned arbitrator fees paid to the Krugliak law firm, the

ordinance authorizing the work and the determination letter. The remaining exhibits

related to arbitrator fees paid to Jerry Fulmore (Exhibit O), Sharon Ellis (Exhibit P),

Lawrence Loeb (Exhibits Q and R), Charles Adamson (Exhibit S), Colman Lalka (Exhibit

T), Joseph Gardner (Exhibit U) and Bricker & Eckler (Exhibit V).

{¶54} We find that it was not clear that appellee, in his initial request for public

records, was requesting documents relating to arbitration fees. As noted by the court in

State of Ohio ex rel. Zauderer v. Joseph (1989),

,

, “Like a motion, under Civ.R. 7(B)(1), however, a [public records] request must be

specific and particularly describe what it is that is being sought. See Mitseff v. Wheeler

(1988),

,

.” It is the responsibility of the person making

the public-records request to identify the records with reasonable clarity. State ex rel.

Consumer News Serv., Inc. v. Worthington City Bd. of Edn.,

, 2002-

Ohio-5311,

at ¶42, citing Taxpayers Coalition v. Lakewood (1999),

, 391,

; quoting State ex rel. Fant v. Tober (May 20, Stark County App. Case No. 2010CA00199 14

1993), Cuyahoga App. No. 63737,

, affirmed (1993),

,

.

{¶55} As noted by appellant in their reply brief, “[t]he arbitrator expenses

delineated by Realtor were not specifically requested, do not fit within his request, and

are thus not subject to this mandamus action.” The request specifically lists attorneys

and law firms who have represented appellants in litigation or previous legal matters.

The request further asks for the amount of expenditures or legal fees paid to “[a]ny

other law firms, attorneys or special counsel not stated above that you code or specify

as legal fees or consulting fees.”(Emphasis added). The arbitration documents that

appellee sought, via Exhibits O,P,Q,R,S,T,U,V and W were not related to legal or

consulting fees and/or did not relate to any of the law firms or attorneys specified by

appellee in this request. We concur with appellants that a reasonable person,

considering the public records request, would not think that appellee was requesting

arbitrator fee records. We note that the word “arbitrator” is defined as a “neutral person

either chosen by the parties to a dispute or appointed by a court, to hear the parties

claims and render a decision.” Black’s Law Dictionary (Sixth Edition 1990). (Emphasis

added). An arbitrator would not represent appellants in litigation or legal matters.

{¶56} As is stated above, the trial court, in its June 30, 2010, Judgment Entry

found that appellants failed to produce Exhibits H, I and K. Exhibit I, which is Ordinance

No. 87-2009, is dated July 6, 2009, which is after the date of the May 7, 2009, public

records request. Thus, the same could not have been requested in appellee’s initial

public records request. Exhibit I (Ordinance 128-2008) states that $5,000.00 is

transferred from the 2008 appropriation from within the General Fund for the year Stark County App. Case No. 2010CA00199 15

ending December 31, 2008, for arbitrator fees while Exhibit K states that $10,000.00 is

appropriated from the unappropriated balance of the General Fund for the year ending

December 31, 2006 for an account entitled “Arbitrator Services/Contracts.”

{¶57} We find that Exhibits I and K fall outside the scope of appellee’s public

records request. Because such Exhibits concern arbitrator fees, as is stated above,

appellee’s initial public records request did not request the same.

{¶58} The record further reveals that appellee, in a letter to appellant Stergios

dated July 27, 2009, stated, in relevant part, as follows:

{¶59} “I am also seeking all e-mail and tangible correspondences of any nature

whatsoever, between, to, or from the Law Director’s Office, the Auditor’s Office, and the

Mayor’s Office relevant to the matter at issue. I am also seeking all e-mail and tangible

correspondences of any nature whatsoever, between, to, or from the Law Director’s

Office, the Auditor’s Office, and the Mayor’s Office relevant to the matter at issue to, or

from, any law firm(s), attorney(s) or other such agent(s), that were contained in my May

7, 2009 request during the period between and including the years 2003, 2004, 2005,

2006, 2007, 2008, and 2009.

{¶60} As noted by appellants, appellee’s request for such information was not

made clear until this second request for public records which was presented to

appellants after the case sub judice was filed. Appellant, therefore, could not have

provided such information earlier.

{¶61} Appellants’ first assignment of error is, therefore sustained. Stark County App. Case No. 2010CA00199 16

II

{¶62} Appellants, in their second assignment of error, argue that the trial court

erred in awarding statutory damages to appellee.

{¶63} In the case sub judice, the trial court awarded appellee damages in the

amount of $12,000.00. The trial court arrived at such figure by multiplying the twelve

documents (Exhibits H, I, K, O, P, Q, R, S, T, U, V and W) that it found appellants had

failed to provide to appellee as part of the initial public records request by $1,000.00.

{¶64} R.C. 149.43(C)(1) provides for statutory damages of $100.00 for each

business day during which the public office failed to comply with the public records law,

up to a maximum of $1,000.00. The trial court, in its Judgment Entry, found that when

the twelve records were disclosed, more than ten days had elapsed and that appellee

had experienced a “loss of use” of the records. The trial court, on such basis, found that

“relief in forfeiture shall be granted in that Respondents shall pay Realtor $1,000 for

each of the records not disclosed for a total of $12,000 as statutory damages for failing

to promptly make certain records available.”

{¶65} Based on disposition of appellants’ first assignment of error in which this

Court held that the trial court erred in finding that such documents should have been

provided with appellant’s initial response to the public records request, appellant’s

second assignment of error is moot.

CROSS-APPEAL

I

{¶66} Appellee, in his first assignment of error on cross-appeal, argues that

appellants had a duty under law to generate and keep available for public inspection Stark County App. Case No. 2010CA00199 17

certain documents, that appellants, either through negligence or misfeasance, failed to

do so. Appellee contends that the trial court erred in failing to deem such documents to

have been destroyed.

{¶67} R.C. 149.351(A) provides that public records “shall not be removed,

destroyed, mutilated, transferred, or otherwise damaged or disposed of, in whole or in

part, except as provided by law….”

{¶68} R.C. 149.351(B) provides that “[a]ny person who is aggrieved by the

removal, destruction, mutilation, or transfer of, or by other damage to or disposition of a

record in violation of division (A) * * * may commence either * * * either [a] civil action for

injunctive relief to compel compliance with division (A) or * * * [a] civil action to recover a

forfeiture in the amount of one thousand dollars for each violation, and to obtain an

award of the reasonable attorney's fees incurred by the person in the civil action.”

{¶69} Appellants have no duty to create or provide access to nonexistent

records. State ex rel. Ohio Patrolmen's Benevolent Assn. v. Mentor,

,

,

. See also State ex rel. Lanham v. Smith,

,

,

at ¶ 15.

{¶70} In the case sub judice, appellee specifically claims, in his brief, that

appellants refused to disclose the following as “non-existent”, that other documentary

evidence supports the existence of such documents, and that such documents,

therefore, should be deemed destroyed by appellants:

{¶71} Exhibit G (Engagement Letter from Baker firm)

{¶72} Exhibit M (Black & McCuskey Engagement Letter for Massillon City

School District Matter) Stark County App. Case No. 2010CA00199 18

{¶73} Exhibit N (Law Director’s Letter or City’s Determination and/or

Engagement Letter for other Black & McCuskey matters)

{¶74} Exhibit W (Determination/Law Director Letter Krugliac [sic] Firm)

{¶75} Exhibit W (Krugliac [sic] Firm Ordinance Authorizing Work)

{¶76} Exhibit X (Attorney Fred Stergios Engagement Letter)

{¶77} Exhibit Y (Engagement Letter/Determination to Bricker & Eckler LLP for

Perry-Navarre Project)

{¶78} However, there is no evidence that such documents ever existed.

Appellee attempts to prove the existence of such documents by referencing other

documentary evidence. For example, in support of his argument that Exhibit M (Black &

McCuskey Engagement Letter for Massillon City School District Matter) must exist,

appellee references a copy of a June 17, 2003 letter from Black McCuskey to appellant

Cicchinelli stating as follows: “Enclosed herewith please find a copy of the Notice of

Cross-Appeal of Appellee City of Massillon that was filed with the Supreme Court of

Ohio on October 30, 2003” in such matter. However, the fact that the June 17, 2003

letter exists does not prove that there was an engagement letter. Rather, appellee asks

this Court to infer that the documents referred to above exist.

{¶79} In short, we agree with the trial court that appellee has not provided any

evidence that the documents that he claims have been destroyed have, in fact, been

destroyed. This Court cannot deem documents to have been destroyed when the

existence of these documents has not been established. To do so would enable a

litigant to request documents that he or she knows do not exist and then seek damages

when the same are not provided in response to a public records request. Stark County App. Case No. 2010CA00199 19

{¶80} Appellant’s first assignment of error on cross-appeal is, therefore

overruled.

III

{¶81} Appellee, in his third assignment of error on cross-appeal, argues that

each public official and/or entity has an independent obligation to respond on its/his/her

own behalf to a properly submitted public records request. In short, appellee argues that

appellant Pericles Stergios, Law Director for the City of Massillon, appellant Jayne

Ferrero, Auditor for the City of Massillon, and appellant Francis Cicchnelli, Jr., Mayor

for the City of Massillon each individually should have provided him with the documents

that he requested.

{¶82} Appellant specifically cites to R.C. 149.43(B)(1) and (B)(2) in support of

his argument. R.C. 149.43 states, in relevant part, as follows: “(B)(1) Upon request and

subject to division (B)(8) of this section, all public records responsive to the request

shall be promptly prepared and made available for inspection to any person at all

reasonable times during regular business hours. Subject to division (B)(8) of this

section, upon request, a public office or person responsible for public records shall

make copies of the requested public record available at cost and within a reasonable

period of time. If a public record contains information that is exempt from the duty to

permit public inspection or to copy the public record, the public office or the person

responsible for the public record shall make available all of the information within the

public record that is not exempt. When making that public record available for public

inspection or copying that public record, the public office or the person responsible for Stark County App. Case No. 2010CA00199 20

the public record shall notify the requester of any redaction or make the redaction

plainly visible. A redaction shall be deemed a denial of a request to inspect or copy the

redacted information, except if federal or state law authorizes or requires a public office

to make the redaction.

{¶83} “(2) To facilitate broader access to public records, a public office or the

person responsible for public records shall organize and maintain public records in a

manner that they can be made available for inspection or copying in accordance with

division (B) of this section. A public office also shall have available a copy of its current

records retention schedule at a location readily available to the public….”

{¶84} The Ohio Revised Code defines a public office, pursuant to R.C.

149.011(A), as “any state agency, public institution, political subdivision, or any other

organized body, office, agency, institution, or entity established by the laws of this state

for the exercise of any function of government.” A public official, pursuant to R.C.

149.011(D), is defined as “all officers, employees, or duly authorized representatives or

agents of a public office.” Appellants were all public officials and /or public offices.

{¶85} As noted by appellants, R.C. 149.43(C)(1) authorizes the recovery of

statutory damages as “compensation for injury arising from loss of use of the requested

information.” In the case sub judice, the three public records requests stated the same

thing. In a letter to appellee dated July 17, 2009, appellant Stergios indicated that his

May 20, 2009, response to appellee’s public records request “was meant to be on

behalf of all three (3) entities from which you requested records, including Mayor

Cicchinelli (sic) office.” We concur with the trial court that there was “no need for each

office of the City of Massillon that was sent the public records request to send the exact Stark County App. Case No. 2010CA00199 21

same documents” and that appellee did not experience a “loss of use” because

appellants’ Pericles Stergios and Jayne Ferrero, the Auditor, provided the documents

that they had.

{¶86} While appellee argues that each appellant had a duty to provide him

independently with the documents that he requested, he cites no cases for such

proposition. Nor is this Court aware of any such case law or other legal authority.

{¶87} Based on the foregoing, appellee’s third assignment of error on cross-

appeal is overruled.

II

{¶88} Appellee, in his second assignment of error on cross-appeal, argues that

the trial court erred in denying his request for attorney’s fees pursuant to R.C. 149.43.

{¶89} Because we have concluded that appellants did not fail to comply with

appellee’s public records request and, therefore, appellee did not prevail on his

mandamus claim, we find that appellee is not entitled to attorney fees under R.C.

149.43(C). As noted by the court in State ex rel. Lanham v. Smith,

,

,

, “[w]e have never extended an award of attorney fees

in public-records mandamus cases to encompass mandamus claims that are ultimately

held to be without merit.” Id. at ¶18.

{¶90} Appellee’s second assignment of error on cross-appeal is, therefore,

overruled.

{¶91} Based on the foregoing, we find that the trial court erred in failing to grant

appellants’ Motion for Summary Judgment in its entirety and in granting appellee’s Stark County App. Case No. 2010CA00199 22

Motion for Summary Judgment in part. We further find that the trial court erred in

awarding appellee $12,000.00 in damages.

{¶92} Accordingly, the judgment of the Stark County Court of Common Pleas is

affirmed in part and reversed and remanded in part.

By: Edwards, J.

Gwin, P.J. and

Wise, J. concur

______________________________

______________________________

______________________________

JUDGES

JAE/d0126 Stark County App. Case No. 2010CA00199 23

IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO

FIFTH APPELLATE DISTRICT

STATE OF OHIO ex rel. R. PAUL CUSHION : : Plaintiff-Appellee : : : JUDGMENT ENTRY - vs - : : CASE NO. 2010CA00199 : THE CITY OF MASSILLON, et al., : : Defendant-Appellant : :

This Court issued an Opinion and Judgment Entry in this matter on June 6,

2011. On August 12, 2011, appellee filed a Motion to Vacate such Opinion and

Judgment Entry on the basis that appellee was not timely served with the same until

July 29, 2011. Attached to appellee’s motion is an affidavit from the Stark County Clerk

of Courts stating that appellee was not served with a copy of the Court of Appeals’

decision in this matter until July 29, 2011. Stark County App. Case No. 2010CA00199 24

Pursuant to the dictates of State ex rel. Sautter, et al. v. Grey, Judge, et al.,

,

,

, appellee’s Motion to Vacate is

granted. We, therefore, vacate our Opinion and Judgment Entry of June 6, 2011, and

shall reissue our Opinion and Judgment Entry forthwith.

IT IS SO ORDERED.

_________________________________

_________________________________

_________________________________ JUDGES JAE/dr/rmn [Cite as State ex rel. Cushion v. Massillon,

.]

IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO

FIFTH APPELLATE DISTRICT

STATE OF OHIO, ex rel., : R. PAUL CUSHION, II : : Relator-Appellee : : : -vs- : JUDGMENT ENTRY : THE CITY OF MASSILLON, et al., : : Respondents-Appellants : CASE NO. 2010CA00199

For the reasons stated in our accompanying Memorandum-Opinion on file, the

judgment of the Stark County Court of Common Pleas is affirmed in part and reversed

and remanded in part. Costs assessed to R. Paul Cushion, II.

_________________________________

_________________________________

_________________________________

JUDGES