[Cite as State ex rel. Todd v. Canfield,

.] STATE OF OHIO, MAHONING COUNTY

IN THE COURT OF APPEALS

SEVENTH DISTRICT

STATE ex rel. EDWARD TODD ) CASE NO. 11 MA 209 ) PLAINTIFF-APPELLANT ) ) VS. ) OPINION ) THE CITY OF CANFIELD, et al. ) ) DEFENDANTS-APPELLEES )

CHARACTER OF PROCEEDINGS: Civil Appeal from the Court of Common Pleas of Mahoning County, Ohio Case No. 09 CV 2107

JUDGMENT: Affirmed. Mandamus and Forfeiture Dismissed.

APPEARANCES: For Plaintiff-Appellant: Atty. William E. Walker P.O. Box 192 Massillon, Ohio 44648-0192

Atty. R. Paul Cushion, II 75 Public Square, Suite 1111 Cleveland, Ohio 44113-2083

For Defendants-Appellees: Atty. John T. Mclandrich Frank H. Scialdone Mazanec, Raskin & Ryder Co., L.P.A 100 Franklin's Row 34305 Solon Road Cleveland, Ohio 44139

JUDGES: Hon. Cheryl L. Waite Hon. Joseph J. Vukovich Hon. Mary DeGenaro Dated: February 14, 2014 [Cite as State ex rel. Todd v. Canfield,

.] WAITE, J.

{¶1} Appellant Edward Todd appeals the decision of the Mahoning County

Common Pleas Court to deny his mandamus action. Appellant sought the production

of all reel-to-reel tapes recorded by Appellee, the City of Canfield Police Department,

during the period when reel-to-reel tape was used by the department. The

department denied Appellant’s original records request due to the fact that this

system had not been in use since the 1980s and the tapes had since been

destroyed. The denial spurred suit by Appellant.

{¶2} On appeal, Appellant contends that Appellee should have been barred

from arguing that his request was overbroad because Appellee did not raise

overbreadth as an affirmative defense. Appellant also argues that the trial court

erred in concluding that the request was overbroad as a matter of law without an

evidentiary hearing when he claims that his complaint contained sufficient facts that

would entitle him to relief. Based on the record before us, Appellant’s four

assignments of error are without merit and are overruled. The judgment of the trial

court is affirmed.

Factual and Procedural History

{¶3} Appellant initiated the underlying mandamus and forfeiture action on

June 5, 2009 in response to the Canfield Police Department’s failure to respond to

his requests for records retention schedules, certificates of records disposal, and

applications for the disposal of obsolete records. In addition to seeking a response to

and production of the records related to retention policy and disposal protocols,

Appellant also sought performance of his previously denied request for copies of all -2-

reel-to-reel tape recordings made by the department when the reel-to-reel system

was in use. In the alternative, Appellant sought civil forfeiture, attorney fees, and

costs pursuant to R.C. 149.351(B)(2) for the destruction of the records. Appellant’s

mandamus action was filed in the Mahoning County Common Pleas Court.

{¶4} Appellant filed a first set of requests for admission simultaneously with

his complaint. Appellee and Appellant agreed to various extensions of time for

discovery responses, until Appellee’s answer and response to requests for admission

were filed on or about September 9, 2009.

{¶5} On February 17, 2010, before any trial date or deadlines for dispositive

motions had been scheduled, and while the parties were still engaged in discovery,

Appellee filed a motion for leave to file an amended answer instanter. Appellee’s

amended answer included a jury demand and affirmative defenses that were not

included in the original answer. Appellant opposed Appellee’s motion for leave to

amend and sought to strike the jury demand. The trial court granted Appellee’s

motion for leave instanter and denied Appellant’s motion in opposition.

{¶6} In October of 2010 the matter was stayed, at the request of the parties,

pending the Ohio Supreme Court’s ruling in Rhodes v. City of New Philadelphia,

,

. When the stay was lifted in July of 2011, Appellee

filed a motion for judgment on the pleadings. Appellant filed a motion for summary

judgment and sought additional time to respond to Appellee’s motion for judgment on

the pleadings. Appellee opposed Appellant’s motion for additional time and filed a

cross-motion for summary judgment. -3-

{¶7} The trial court denied Appellant’s motion for additional time to respond

to Appellee’s motion for judgment on the pleadings, and set this motion for hearing.

The trial court granted Appellee’s motion for judgment on the pleadings. Appellant

filed a timely appeal.

Argument and Law

ASSIGNMENT OF ERROR NO. 1

The trial court erred to Todd’s prejudice when it permitted Appellees to

assert an affirmative defense that they had waived under the civil rules

by not raising it in the pleadings.

ASSIGNMENT OF ERROR NO. 2

The trial court erred to Todd’s prejudice when it found that Todd’s public

records request was overly broad as a matter of law without considering

the context of the circumstances surrounding it.

ASSIGNMENT OF ERROR NO. 3

The trial court erred to Todd’s prejudice when it dismissed his

mandamus petition without an evidentiary hearing after Todd

established a prima facie case entitling him to mandamus relief.

ASSIGNMENT OF ERROR NO. 4

The trial court erred to Todd’s prejudice when it dismissed Todd’s

petition even though Todd pled sufficient facts that if true would have

entitled him to relief. -4-

{¶8} Appellant appeals the trial court’s decision to dismiss his mandamus

action pursuant to Civ.R. 12(C). Because Appellant’s four assignments of error all

address aspects of the Civ.R.12(C) decision to dismiss, and a finding that the

decision was proper will resolve all issues on appeal, the assignments will be

considered together.

{¶9} The instant action was filed by Appellant pursuant to R.C. 149.43(B),

which provides:

(1) Upon request * * * 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. * * * [U]pon

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. * * *

***

(3) If a request is ultimately denied, in part or in whole, the public office

or the person responsible for the requested public record shall provide

the requester with an explanation, including legal authority, setting forth

why the request was denied. If the initial request was provided in -5-

writing, the explanation also shall be provided to the requester in

writing. The explanation shall not preclude the public office or the

person responsible for the requested public record from relying upon

additional reasons or legal authority in defending an action commenced

under division (C) of this section.

Appellant’s public record request was made in writing, in a letter dated January 11,

2009. Appellant directed his request to the Canfield Police Department as follows:

I understand that your department used a reel-to-reel audio recording

device similar to a “Dictaphone” style system. And, that this system

recorded telephone calls and radio traffic on both a primary and back-

up set of 24 hour reel-to-reel tapes. [sic] I also understand that these

tapes were routinely changed at midnight. With these facts in mind, I

am hereby making a public records request for the following:

Reel-to-Reel Tapes: I am requesting access to your departments [sic]

collection of the above described reel-to-reel tapes. This request

specifically includes both the primary and the back-up tapes that your

department used over the years during the time that such a tape

recording system was used.

(Complaint, Exh. A.) The department’s timely written response to Appellant’s request

was made on January 16, 2009:

The Reel to Reel tapes you inquired about reviewing for a response

time survey are not available. Canfield Police Department has not used -6-

this type of system since the 1980’s [sic] and the tapes have been

disposed of according to Ohio public records laws and procedures.

(Complaint, Exh. C.) Appellant responded to this denial of his public records request

by making a second request seeking the disposal protocols and disposal records

relevant to the destruction of the recordings. The department did not respond to

Appellant’s second request.

{¶10} “After the pleadings are closed but within such time as not to delay the

trial, any party may move for judgment on the pleadings.” Civ.R. 12(C). A Civ.R.

12(C) motion is specifically limited to resolving questions of law. Case Western

Reserve Univ. v. Friedman,

,

(1986). The

Supreme Court of Ohio has held that this type of dismissal is appropriate only when

“a court (1) construes the material allegations in the complaint, with all reasonable

inferences to be drawn therefrom, in favor of the nonmoving party as true, and (2)

finds beyond doubt, that the plaintiff could prove no set of facts in support of his claim

that would entitle him to relief.” State ex rel. Midwest Pride IV, Inc. v. Pontious,

,

(1996).

{¶11} A judgment on the pleadings is improper if the plaintiff has raised a

reasonable inference that might entitle him to relief. Flanagan v. Williams,

,

(1993). When considering a motion under Civ.R.

12(C), the trial court can consider only the face of the pleadings; the motion cannot

be supported by facts outside the pleadings. Epperly v. Medina City Bd. of Edn.,

,

(1989), citing Conant v. Johnson,

,

(1964). Further, appellate review of a Civ.R. 12(C) motion is de -7-

novo, and a reviewing court will reverse a judgment on the pleadings if the plaintiffs

can prove a set of facts that would entitle them to relief.

{¶12} As a preliminary matter, Appellant contends that the trial court erred in

allowing Appellee to raise an affirmative defense not found in its answer in support of

its motion for judgment on the pleadings. Appellant is mistaken. Appellant does not

offer any legal basis for his contention that Appellee must assert “overbroad and

therefore unenforceable” as an affirmative defense. Compare State ex rel. Davila v.

E. Liverpool, 7th Dist. No.

,

.

{¶13} As Appellee notes, legal defects in a party’s prayer for relief are not

among the affirmative defenses listed in Civ.R. 8(C). The rule does include a catch

all provision, which requires that “any other matter constituting an avoidance or

affirmative defense” be included in the pleading or incorporated as an amendment to

the pleading. Civ.R. 8(C). The Ohio Supreme Court describes an affirmative

defense as one which “assumes establishment of a prima facie case,” Gallagher v.

Cleveland Browns Football Co.,

,

(1996), fn.

3. An assertion that “directly attacks” an element of a prima facie case, “rather than

accepting the allegations of the complaint as true” is “not an affirmative defense.”

“‘An affirmative defense is any defensive matter in the nature of a confession and

avoidance. It admits that the plaintiff has a claim (the “confession”) but asserts some

legal reason why the plaintiff cannot have any recovery on that claim (the

“avoidance”).’”) (Internal citation omitted). State ex rel. The Plain Dealer Pub. Co. v.

Cleveland,

,

(1996). -8-

{¶14} The assertion that a public records request is overly broad and

unenforceable is not an affirmative defense because it directly attacks an element of

Appellant’s prima facie case and does not assume or confess the elements of the

mandamus action. To establish a prima facie case for mandamus or forfeiture,

Appellant’s claims must be based on a valid records request. Raising a defect in the

underlying request is clearly not a confession of the elements of mandamus. Instead,

such a challenge directly addresses a necessary element of the prima facie claim.

The trial court did not err by allowing Appellee to argue that Appellant’s request was

overly broad and unenforceable because this legal assertion is not governed by

Civ.R. 8.

{¶15} In concluding that Appellant’s request is overly broad and

unenforceable the trial court determined that Appellant had not satisfied his burden to

establish a prima facie case justifying relief and was not subject to waiver under

Civ.R. 12. Having concluded that Appellee did not waive the enforceability issue, the

remaining question is whether the trial court’s legal conclusion that the request is

overbroad and unenforceable was error.

{¶16} The trial court’s decision dismissing Appellant’s complaint explicitly

relied on our decision in State ex rel.

and the Ohio Supreme Court’s

decision in

In Davila we evaluated a decision of the Columbiana

County Common Pleas Court finding that an identically worded public records

request was overly broad and unenforceable. The appellant in Davila sought all reel-

to-reel tapes used by the East Liverpool Police Department “during the time that such

a tape recording system was used” because he was “conducting a survey concerning -9-

the trends of response times for Ohio’s safety forces over the years.”

. This request contained the exact language used by Appellant. In Davila, unlike

the matter at bar, the department did not respond to the initial request or to the

subsequent request for record retention policies (which is again identical to the

request filed by Appellant), because the tapes were no longer in use and had been

destroyed. Despite the department’s failure to respond to the initial request and the

fact that the department did not raise overbreadth as a defense or in an argument in

support of its cross-motion for summary judgment, we affirmed the trial court’s sua

sponte decision that the request was overbroad and unenforceable as a matter of

law. Appellant does not address Davila in his brief, instead focusing on O’Shea &

Assocs. Co. L.P.A. v. Cuyahoga Metro. Housing Auth.,

, 2012-

Ohio-115,

.

{¶17} Appellant is mistaken in his reliance on O’Shea and on State ex rel.

Morgan v. New Lexington,

,

,

. In

both O’Shea and Morgan, the Ohio Supreme Court evaluated a public entity’s

contention that records requests were unenforceable because they were directed at

general types of information rather than specific records. In both decisions, the

Supreme Court granted the records requests only after subsequent clarifications of

the requests to include listing the specific records sought and the actual time periods

covered by the requests. The appellants in those cases never properly requested

records at all, however, the subsequent clarifications of their requests changed their

improper requests into appropriate records requests that resulted in the production of

records. -10-

{¶18} These facts do not in any way correspond to the request found in the

case at bar. In this matter, Appellant did seek specific records as opposed to

generalized categories of information. He sought production of certain tapes. His

request, however, was for all records made during an unspecified period of time that

was clearly vast in scope, encompassing entire days over a number of years. It is

equally apparent that Appellant would be aware that the documents sought would no

longer be in existence.

{¶19} In addition to Appellant’s misplaced reliance on O’Shea and Morgan,

Appellant also relies on responses to requests for admission or affidavits. However,

that material is outside the record and irrelevant in our review of the trial court’s

decision to grant relief under Civ.R. 12(C). Epperly v. Medina City Bd. of Edn., supra.

Appellant completely ignores the relevant context provided by the trial court and by

Appellee, and ignores the law found in Rhodes and Davila, which dealt with identical

requests filed in this state and which have as their only apparent purpose the

explanation of the statutory damages provision of R.C. 149.43.

{¶20} In Davila, we determined that a request for identifiable records may

nevertheless be “so voluminous that it is overbroad and unenforceable.” Id. at ¶29.

We adopted the reasoning of the Ohio Supreme Court in State ex rel. Glasgow v.

Jones,

,

,

, where that Court

rejected a request for all email messages, text messages, and written

correspondence sent and received by a public official from the time he took office

until the date of the request, stating: -11-

It is the responsibility of the person who wishes to inspect and/or copy

records to identify with reasonable clarity the records at issue. 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.”

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 * * * 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. (Internal citations omitted)

Id. at ¶17-18.

{¶21} We also noted in Davila our reliance on a sister district’s opinion that a

much narrower request for production seeking all traffic reports of the Ohio State

Highway Patrol on a specific date was nevertheless unenforceably broad:

The indefiniteness of such a request renders it incapable of being acted

upon and certainly unsuitable for mandamus. Moreover, this general

request, even if it could be defined, is, first, unreasonable in scope and,

second, if granted, would interfere with the sanctity of the -12-

recordkeeping process itself. R.C. 149.43 does not contemplate that

any individual has the right to a complete duplication of the voluminous

files kept by government agencies.

State ex rel. Zauderer v. Joseph,

,

(1989).

More recently, the Ohio Supreme Court held that a prison inmate's request for

access to all the records of the prison quartermaster's orders for, and receipt of,

clothing and shoes for a period of over seven years was overbroad and

unenforceable. State ex rel. Dehler v. Spatny,

,

,

, ¶3.

{¶22} Again, Davila is virtually factually identical with this case. As Appellant

has failed to address Davila, he has clearly failed to provide any legal or factual

argument why this case should be readdressed and overturned. Davila remains the

law in this district and is consistent with the law statewide on this issue. The trial

court did not err in ruling that Appellant’s request was overbroad and unenforceable.

Appellant failed to establish a prima facie case that he was entitled to mandamus

relief, and has failed to assert any legal basis for a show cause hearing on the

subject. Because Appellant has not made a valid public records request, he is not

entitled to either mandamus relief or forfeiture. Appellant’s forfeiture claim is

contingent on an enforceable records request. Our affirmation of the trial court’s

finding that Appellant’s request was overbroad and unenforceable renders his

forfeiture claim moot. Based on the judicial principle of stare decisis and consistent

with the decisions of the Ohio Supreme Court in Glasgow and Dehler, Appellant’s

four assignments of error are without merit and are overruled. -13-

Conclusion

{¶23} Appellant’s public records request was facially overbroad and

unenforceable as a matter of law. Appellant failed to establish a prima facie case

supporting his claim for mandamus relief. The trial court properly applied controlling

precedent, and did not err in dismissing Appellant’s complaint under Civ.R.12(C).

Appellant’s forfeiture claim was contingent upon the validity of the mandamus action.

The dismissal of Appellant’s mandamus action renders his forfeiture claim moot.

Appellant’s four assignments of error are overruled. The judgment of the trial court is

affirmed in full and Appellant’s mandamus and forfeiture claims are hereby

dismissed.

Vukovich, J., concurs.

DeGenaro, P.J., concurs.