[Cite as State ex rel. Darling v. Lake Cty.,

.]

IN THE COURT OF APPEALS

ELEVENTH APPELLATE DISTRICT

LAKE COUNTY, OHIO

STATE OF OHIO ex rel. : OPINION AMANDA DARLING, : Relator, CASE NO. 2012-L-079 : - vs - : LAKE COUNTY, et al., : Respondents.

Original Action for Writ of Mandamus.

Judgment: Petition denied and judgment for respondents.

Amanda Darling, pro se, 11864 Concord-Hambden Road, Concord Township, OH 44077 (Relator).

Charles E. Coulson, Lake County Prosecutor, and Joshua S. Horacek, Assistant Prosecutor, 105 Main Street, P.O. Box 490, Painesville, OH 44077 (For Respondent Lake County).

Michael C. Lucas, Wiles and Richards, 37265 Euclid Avenue, Willoughby, OH 44094; and John D. Latchney, Tomino & Latchney, L.L.C., L.P.A., 803 East Washington Street, Suite 200, Medina, OH 44256 (For Respondent Concord Township Trustees).

Mike DeWine, Ohio Attorney General, and Cynthia K. Frazzini and Gerald E. Dailey, Assistant Attorneys General, 2045 Morse Road, Building D-2, Columbus, OH 43229 (For Respondent Ohio Department of Natural Resources).

TIMOTHY P. CANNON, P.J.

{¶1} This action in mandamus is before this court for final disposition of the

respective motions of respondents, Ohio Department of Natural Resources (“ODNR”), Lake County, and Concord Township Trustees. After a review of the summary

judgment motions and the evidentiary material submitted in support of those motions,

we find that summary judgment as to all respondents is warranted.

{¶2} On July 16, 2012, relator filed a pro se petition for writ of mandamus

alleging that her request for public records was denied by respondents. In her request,

relator sought the following:

{¶3} (a) A copy of any/all investigation reports and complaints about a

flood issue that occurred on/between July 2006 to present day in

the area on Jordan Creek/ 11864 Concord-Hambden;

{¶4} (b) A copy of any/all geographical surveys of said area/address

listed in paragraph (3)(a), including historical records and surveys

listing said area/address as a ‘flood plain’ or similar terminology;

{¶5} (c) A copy of any/all Statutes, Laws, Regulations, including Policy

Directives and Procedures that this agency/department uses in it’s

responses to investigations, complaints, etc. concerning the

incident paragraph (3)(a) and this FOIA Request/Response;

{¶6} (d) A copy of complete blueprints, diagrams, and drainage/

STORMWATER MAPS, for the subdivisions call WOODCREST

AND CALLIWOODS both located in Concord Twp, Ohio. That

shows/reflects said drainage going into Jordan Creek in Concord

Twp, Ohio;

{¶7} (e) A copy of any/all names of City, County, State and Federal

Public Officials that approved the development of said Subdivisions

2 called Woodcrest and Cali woods in Concord Twp, Ohio, including

but not limited to the names of the inspectors of said drainage

lines/pipes, etc.;

{¶8} (f) A copy of any/all names of City, County, State and Federal

Public Officials that approved the development of home/property

11864 Concord-Hambden Rd in Concord Twp, Ohio. That knew or

reasonable should have know that said property/area was

historically known/designated as a ‘Flood Plain’ in 1978 when

house was built as was sold to Me in 2005;

{¶9} (g) A complete map of Concord Twp, Ohio reflecting any/all rivers,

streams, lakes and creeks within Concord Twp, including but not

limited to specifically a Jordan Creek aerial view going through

Concord Twp, Ohio” (sic throughout).

{¶10} Relator seeks a writ of mandamus to compel the release of the above

documentation. “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. Bd. of Trustees of Ohio State Univ.,

,

,

¶6; R.C. 149.43(C)(1). “Under the public records statute, the government has the duty

to supply records, not information, and the government has no duty to create records to

meet a requester’s demand.” State ex rel. Morabito v. City of Cleveland, 8th Dist. No.

98829,

.

{¶11} Respondents have filed respective motions for summary judgment. The

standard for summary judgment is well established. To prevail on a motion for

3 summary judgment, the moving party has the initial burden to affirmatively demonstrate

that: (1) there is no genuine issue of material fact to be resolved in the case; (2) final

judgment as a matter of law is warranted; and (3) the nature of the evidentiary

materials, even when viewed in a light most favorable to the non-moving party, are such

that a reasonable person could only reach a conclusion against the non-moving party.

State ex rel. Dehler v. Spatny, 11th Dist. No. 2009-T-0075,

, ¶26;

Dresher v. Burt,

(1996).

{¶12} We first address ODNR’s motion for summary judgment. ODNR attached

relator’s request for public records to its motion for summary judgment. It also attached

the affidavits of Christopher Thoms, the program manager of the Floodplain

Management Program, and Charles Rowan, the Deputy Chief Counsel of ODNR.

{¶13} Mr. Thoms averred that he was “unable to locate any records relating to

[relator’s] request.” Mr. Thoms explained that ODNR’s Floodplain Management

Program “does not have any enforcement authority or jurisdiction in Concord Township,

Lake County, Ohio.” ODNR’s Floodplain Management Program does not “prepare or

maintain any maps, surveys or investigation reports.” Mr. Thoms further explained that

“[t]he authority having jurisdiction over floodplain management in Concord Township,

Lake County, Ohio is the Lake County Drainage Engineer with offices at 550 Blackbrook

Road, Painesville, Ohio.”

{¶14} In Mr. Rowan’s affidavit, he averred that when he received relator’s written

request for public records, he “determined that the most likely program to have records

responsive to [relator’s] request would be the Floodplain Management Program.” Upon

further inquiry to Mr. Thoms, Mr. Rowan learned that ODNR “has no enforcement

4 authority or jurisdiction over floodplain matters in Concord Township, Lake County,

Ohio.” Mr. Rowan explained that he informed relator, by letter, that he was unable to

identify any public records responsive to her request.

{¶15} In her “motion to strike and/or for objection,” relator makes the conclusory

statement that the affidavits of Messrs. Rowan and Thoms were “intentionally filed in

‘bad faith.’” Additionally, citing to various sections of the Ohio Revised Code, relator

claims that ODNR does have the records requested, as ODNR is responsible for

floodplain management in Concord Township, Ohio.

{¶16} In its response, ODNR reasserts that its affidavits confirm that ODNR

does not have enforcement authority or jurisdiction over floodplain matters in Concord

Township; that the Lake County Drainage Engineer is the authority having jurisdiction;

and that ODNR’s role is that of an advisor to local communities regarding floodplain

management issues.

{¶17} In construing these evidentiary materials in a light most favorable to

relator, we determine no genuine issue of material fact remains to be litigated. The

evidence illustrates that ODNR has made a diligent effort in response to relator’s public

records request and found no such records. Moreover, ODNR has submitted

evidentiary material demonstrating that it has no enforcement authority or jurisdiction

over floodplain management issues in Concord Township, Ohio. Conversely, relator

has not put forth any evidentiary material under Dresher to establish these records

exist. Under the Public Records Act, ODNR does not have any duty to create records

that do not exist. State ex rel. Chatfield v. Gammill,

, 2012-Ohio-

1862, ¶3.

5 {¶18} Next, in its motion for summary judgment, Lake County claims the only

records relator did not receive are those that do not exist. Attached to Lake County’s

motion for summary judgment is the affidavit of Michael DeLeone, Assistant Lake

County Prosecuting Attorney. Mr. DeLeone explained that upon receiving relator’s

public records request, a meeting was held with relator and her family at the Lake

County Administration Building on November 2, 2011. At this meeting, relator and her

family were able to inspect “all the documents in possession of the Board of Lake

County Commissions (including the Lake County Planning Commission) and the Lake

County Engineer that in any way related” to her public records request. Mr. DeLeone

indicated that relator was provided with copies of the documents. During a follow-up

conversation, Mr. DeLeone informed relator that the general statement pages from the

Noble Ridge and Wood Crest subdivision and the “no-rise certificates” for Jordan Creek

do not exist. The nonexistence of these items was reaffirmed by the affidavit of George

Hadden, Construction Engineer in the Office of the Lake County Engineer, who averred

that the general pages from the Noble Ridge and Wood Crest subdivisions did not exist

and that Jordan Creek does not have a “no-rise certificate.”

{¶19} Lake County also attached the affidavit of Amy Elszasz, Clerk of the Board

of Lake County Commissioners, who essentially averred that after the November 2,

2011 inspection of records, relator was satisfied upon receiving the records that were in

existence.

{¶20} In her pro se “motion to strike and/or for objection,” relator claims the

affidavits remain completely silent as to whether no-rise certificates exist for other

subdivisions named in her request—namely, the Cali Wood Subdivision—and other

6 subdivisions within a one-mile radius of her address. Relator further claims that all of

the permits required to alter the floodplain through the draining of stormwater/sewage

into Jordan Creek were not disclosed.

{¶21} After ODNR and Lake County filed its motions for summary judgment and

relator filed her responses to each, this court held a pretrial hearing. At that hearing,

Construction Engineer George Hadden of the Lake County Engineer’s Office indicated

that a voluminous amount of material had been prepared and left for relator for pick up

at the Lake County Prosecutor’s Office. Relator indicated she did not recall being

informed of the availability of this material and/or did not have any recollection of picking

it up. The court then requested that Lake County produce the material again. Lake

County agreed that regardless of whether it had already provided the documentation

mentioned in relator’s pro se motion to strike, additional copies would be made available

to relator. Thereafter, on December 20, 2012, Lake County filed a notice with this court,

stating:

{¶22} On December 13, 2012, counsel for Lake County had a telephone

conversation with Relator wherein counsel notes that the above

referenced material was available to be picked up from the Lake

County Prosecutor’s Office. Counsel for Lake County also

indicated that Construction Engineer George Hadden of the Lake

County Engineer’s office would make himself available to review

the information with Relator if she so chose. Relator indicated to

counsel that she was not, at this time, willing to accept the

materials from Lake County. Counsel indicated to Relator that the

7 material would remain available for her to pick up from the Lake

County Prosecutor’s Office at her convenience, though counsel

requested that she call ahead.

{¶23} In her responsive pleadings, relator has never denied or otherwise

challenged the assertions contained in this notice. Therefore, it is not refuted that a

significant amount of material has been made available to relator that, for whatever

reason, she simply refuses to pick up. This puts relator in a position where she is

unable to deny that the material has been provided to her.

{¶24} After a review of the evidentiary materials, we determine no genuine issue

of material fact remains to be litigated. To reiterate, under the Public Records Act, Lake

County does not have any duty to create records that do not exist.

And, to the

extent that relator is entitled to the requested documents within the purview of R.C.

149.43, the evidence illustrates that Lake County has performed its obligation by

making them available to relator. Relator’s mandamus action, therefore, is essentially

seeking performance of an obligation that either does not exist, or has already been

met, thereby rendering it moot. See generally State ex rel. Gannett Satellite Info.

Network v. Shirey,

(1997) (“provision of the requested records

to the relator in a mandamus action brought under R.C. 149.43 renders the mandamus

claim moot”).

{¶25} Lastly, to support its motion for summary judgment, Concord Township

attached the affidavit of Amy L. Dawson, Fiscal Officer, averring that after she received

relator’s request for public records, she conducted a search and responded to relator by

letter, dated October 5, 2011. The letter to relator was also attached to Concord

8 Township’s motion; it indicated that all of the records Concord Township has on file from

July 2006 to the present were enclosed. Concord Township also has informed relator

that it is in possession of a map, created by Lake County Stormwater Management

(“LCSM”), which may arguably constitute a public record, yet Concord Township does

not have the necessary equipment to copy the map internally. Upon relator paying the

cost of reproducing the map, Concord Township indicated it would provide her with a

copy. See generally State ex rel. Gibbs v. Concord Twp. Trustees,

,

, ¶20-32 (11th Dist.).

{¶26} In her pro se “motion to strike and/or for objection,” relator does not

provide any material of evidentiary quality required by Civ.R. 56 or Dresher. Instead,

relator claims she “will not accept [a map] now by the Respondents.”

{¶27} After a review of the evidentiary materials, we determine no genuine issue

of material fact remains to be litigated. Under the Public Records Act, Concord

Township does not have any duty to create records that do not exist. State ex rel.

. And, as Concord Township is willing to make the map available to

relator, her mandamus action is essentially seeking performance of an obligation that

either does not exist or has already been met, thereby rendering it moot. See generally

State ex rel. Gannett Satellite Info.

{¶28} Accordingly, respondents’ motions for summary judgment are granted. It

is the order of this court that final judgment is hereby entered in favor of respondents as

to relator’s entire mandamus petition. All pending motions are overruled as moot.

THOMAS R. WRIGHT, J., concurs, COLLEEN MARY O’TOOLE, J., concurs in judgment only.

9