[Cite as State ex rel. Davis v. Metzger,

.]

COURT OF APPEALS LICKING COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO, ex rel. : JUDGES: JOHN H. DAVIS : Hon. William B. Hoffman, P.J. : Hon. Sheila G. Farmer, J. Relator : Hon. John W. Wise, J. : -vs- : Case No. 12-CA-36 : TERRA WOOLARD METZGER : AND ELIZABETH KRUG : : Respondents : OPINION

CHARACTER OF PROCEEDING: Mandamus Complaint

JUDGMENT: Dismissed

DATE OF JUDGMENT: April 25, 2013

APPEARANCES:

For Relator For Respondents

WESLEY T. FORTUNE MARC A. FISHEL 421 Hill Road North 400 S. Fifth Street Pickerington, OH 43147 Suite 200 Columbus, OH 43215 Licking County, Case No. 12-CA-36 2

Farmer, J.

{¶1} Relator, John W. Davis, has filed a complaint for writ of mandamus

requesting this Court issue a writ ordering Respondents Terra Woolard Metzger and

Elizabeth Krugh to produce certain personnel records. Respondent has filed an

Answer. Relator has filed a Motion for Summary Judgment.

{¶2} On December 13, 2011, Relator filed his first original action in this court

seeking a writ of mandamus ordering Respondent Metzger to produce certain public

records. In the course of taking Metzger’s deposition in that case, Relator discovered

certain other records he wanted Respondent to provide to him.

{¶3} On February 8, 2012, and February 9, 2012, Relator served Respondents

with two public records requests. Respondent Metzger is the Human Resources

Technician for the West Licking Joint Fire District (hereinafter “WLJFD”), and

Respondent Krugh is the fiscal officer for the WLJFD. The first request asked for

“complete copies of the employee files for yourself [Metzger] and David Fulmer,”

including “all drafts or final versions” of Fulmer’s “present and currently being

negotiated” contract. The second request stated:

{¶4} “Pursuant to the agreement we reached during our January 12, 2012

deposition, please provide Mr. Davis with complete copies of the employee and related

filed for Peggy Davis. Make sure you include in this request all evidentiary documents

considered by Chief David Fulmer, yourself, or any member of the Board between

November 1, 2010 and April 1, 2011. These documents must include all e-mails or

images thereof and attachments Chief Fulmer or you considered evidence of wrongful

acts by Mrs. Peggy Davis. Further, provide any and all ‘snapshot(s)’ of the e-mail Licking County, Case No. 12-CA-36 3

system between November 1, 2010 and April 1, 2011 of your, Chief Fulmer, or Peggy

Davis. Further, please provide a copy of every e-mail or text message you sent to Chief

Fulmer between August 1, 2010 and April 1, 2011.

{¶5} “Finally, please provide a copy of every e-mail or text message Chief

Fulmer sent to you between August 1, 2010 and April 1, 2011.”

{¶6} On February 12, 2012, Respondent notified Relator that Chief Fulmer’s

draft evaluation had been provided to Relator, and the remainder of the request failed to

identify specific documents. On February 16, 2012, counsel for Respondent notified

Relator that his request was not proper because it did not specify particular documents.

By a second letter dated the same day, counsel for Respondent notified Relator that the

WLJFD had contacted its IT provider to sort through and compile emails responsive to

the request, which would take some time to compile and review. Further, the letter

asked Relator to clarify the meaning of the terms “related files for Peggy Davis” and

“snapshots of the email system.” On February 24, 2012, Respondent notified Relator

that the records had been compiled but it would take some time for legal counsel to

review the records.

{¶7} On Friday, April 13, 2012, Respondent notified Relator by email that the

records would be available for pick up after 1:00 p.m. on Monday April 16, 2012. The

documents were not available on that date, and Relator filed the instant action on April

16, 2012, at 4:00 p.m. The records were provided to respondent on April 25, 2012.

{¶8} Relator asks this court to issue a writ of mandamus compelling

Respondents to make the requested public records available in accordance with R.C.

149.43 et seq. Relator also asks for statutory damages, attorney fees and costs. Licking County, Case No. 12-CA-36 4

{¶9} Relator filed a motion for summary judgment arguing that he was not

provided with the records within a reasonable period of time.

SUMMARY JUDGMENT STANDARD

{¶10} The Supreme Court of Ohio in State ex rel. Zimmerman v. Tompkins,

,

, 1996–Ohio–211,

explained the

standard for summary judgment: “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,

.”

MANDAMUS

{¶11} “‘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,

, 2006–Ohio–903,

; R.C. 149.43(C). The Public Records Act implements the state's policy

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

rel. Dann v. Taft,

, 2006–Ohio–1825,

.

‘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. Licking County, Case No. 12-CA-36

Ohio St.3d 391, 2008–Ohio–4788,

.” State ex rel.

Perrea v. Cincinnati Pub. Schools,

, 2009–Ohio–4762,

.

{¶12} In the instant case, Relator was provided with the requested records

approximately fifty-four business days after he served Respondent with his request.

Relator argues that this was not a reasonable amount of time.

{¶13} R.C. 149.43(B)(1) provides in pertinent part:

{¶14} “(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.”

{¶15} The statute does not define the term “reasonable period of time.”

Therefore, the determination of whether the Respondent complied with its duty to

provide Relator with the requested documents within a reasonable period of time

depends on all of the pertinent facts and circumstances. State ex rel. Morgan v.

Strickland,

,

,

. R.C.

149.43(A), which exempts certain types of records from disclosure, envisions an

opportunity on the part of the public office to examine records prior to inspection in order

to make appropriate redactions of exempt materials. Id. at ¶16.

{¶16} In the instant case, Relator’s request encompassed a potentially

voluminous amount of records which required the cooperation of an IT service to Licking County, Case No. 12-CA-36 6

compile. The Ohio Supreme Court has held that a request for complete duplication of a

government file including all emails and text messages is overly broad:

{¶17} “Glasgow requested broad categories of records (e-mail messages, text

messages, written correspondence) sent and received by Jones for the entire time from

when she took office until the date of the request. ‘[I]t 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. Morgan v. New Lexington,

,

,

, quoting State ex rel. Fant v. Tober (Apr. 28, 1993), Cuyahoga

App. No. 63737,

, *1, affirmed in State ex rel. Fant v. Tober (1993),

,

. In identifying the records at issue, the Public Records

Act ‘does not contemplate that any individual has the right to a complete duplication of

voluminous files kept by government agencies.’ State ex rel. Warren Newspapers, Inc.

v. Hutson (1994),

,

, citing State ex rel. Zauderer

v. Joseph (1989),

,

.

{¶18} “For example, in Zauderer,

,

, the

court held that a request that a police chief, county sheriff, and highway patrol

superintendent provide access to ‘all traffic reports’ was improper because it was ‘first

unreasonable in scope and, second, if granted, would interfere with the sanctity of the

recordkeeping process itself.’ And in State ex rel. Dillery v. Icsman (2001),

,

, we held that a request to a police chief for ‘any and all

records generated * * * containing any reference whatsoever to Kelly Dillery’ was

overbroad and failed to identify that the relator actually wanted only offense and incident

reports referring to her. Licking County, Case No. 12-CA-36 7

{¶19} “Based on this precedent, we hold that insofar as Glasgow broadly sought

all of Jones's work-related e-mail messages, text messages, and correspondence

during her entire tenure as state representative, his request was improper because it

was overly broad. In essence, Glasgow's general request impermissibly sought what

approximated a ‘complete duplication’ of Jones's files.” State ex rel. Glasgow v. Jones,

,

,

.

{¶20} In the instant case, Relator’s requests were in effect asking for complete

duplication of the WLJFD’s files. Respondents requested clarification and kept Relator

informed of the process concerning compilation and review of the files. Under the facts

and circumstances of this case, we find that the time within which Respondents

provided the records was reasonable. Further, as Relator received the records after he

filed the instant action, his petition is moot.

{¶21} Relator’s motion for summary judgment is overruled. Relator’s complaint

in mandamus is dismissed.

By: Farmer, J.

Hoffman, P. J. and

Wise, J. concur

_s / Sheila G. Farmer_____________

_s / William B. Hoffman___________

__s / John W. Wise______________

JUDGES [Cite as State ex rel. Davis v. Metzger,

.]

IN THE COURT OF APPEALS FOR LICKING COUNTY, OHIO

FIFTH APPELLATE DISTRICT

STATE OF OHIO, ex rel. : JOHN H. DAVIS : : Relator : : -vs- : JUDGMENT ENTRY : TERRA WOOLARD METZGER : AND ELIZABETH KRUG : : Respondents : CASE NO. 12-CA-36

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

Complaint is dismissed. Costs assessed to Relator.

_s / Sheila G. Farmer_____________

_s / William B. Hoffman___________

__s / John W. Wise______________

JUDGES