State ex rel. Bott Law Group, L.L.C. v. Ohio Dept. of Natural Resources
2013 Ohio 5219
Ohio Ct. App.2013Background
- Bott Law Group (relator) submitted three contested public-records requests to the Ohio Department of Natural Resources (ODNR) (May 17, 2011; Oct. 27, 2011; Feb. 3, 2012) seeking records about brine/fracking pretreatment and related communications.
- ODNR initially produced batches of responsive records in June–Nov. 2011 and March 2012, but additional responsive emails and ~7,000 pages were produced after a deposition in April 2012 revealed a 2009 Husted email not previously produced.
- ODNR maintained a two-year email retention practice and had journal recovery capability only for emails received after Sept. 2010; some records resided on former employees’ personal computers.
- Relator filed a mandamus action seeking an order compelling ODNR to produce all non-exempt responsive records and sought attorney fees (but not statutory damages).
- The magistrate recommended denial, finding ODNR’s response timely and complete; the appellate panel conducted independent review and sustained six of seven objections to the magistrate, granting relief limited to ordering ODNR to promptly prepare and make available all non-exempt responsive records and to search its journal and former employees’ files.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether ODNR promptly prepared and produced all records responsive to the three requests | ODNR omitted responsive records and produced a large set of responsive documents only months after requests; therefore responses were not prompt or complete | ODNR responded within reasonable time given breadth/complexity of requests and produced records in several weeks; later production followed discovery-triggered re-review | Court held ODNR failed to promptly prepare and provide all responsive records and granted mandamus to compel full production |
| Whether ODNR had a duty to search for and recover deleted emails and records on former employees’ computers | Relator: ODNR must perform steps to recover deleted emails (including journal searches) and identify files on former employees’ PCs implicated by requests | ODNR: retention policy and practical limits meant some older emails were beyond routine recovery; it took steps when alerted | Court held ODNR must perform journal searches for deleted emails and reasonably attempt to locate responsive records on shared servers and former employees’ personal computers |
| Whether ODNR had to notify/requestor and assist in narrowing allegedly ambiguous or overbroad requests under R.C. 149.43(B)(2) | Relator: ODNR failed to inform relator that certain requests were ambiguous/overbroad and denied opportunity to revise, as statute and ODNR policy require | ODNR: it informed relator the Oct. 27 request was overbroad and nonetheless proceeded to locate records; breadth justified longer processing | Court held ODNR breached duty by not informing relator about ambiguity/overbreadth for the May 17 and Feb. 3 requests and by providing incomplete responses without offering the statutorily required revision opportunity |
| Whether relator (a law firm) is entitled to recover attorney fees under R.C. 149.43(C)(1) | Relator argues fees are appropriate because it was aggrieved and litigated to obtain records | ODNR argues relator acted pro se for itself and did not demonstrate payment or obligation to pay outside counsel, so fees are not recoverable | Court held relator is not entitled to attorney fees because it did not show it paid or was obligated to pay an attorney to prosecute the action (relator itself was the aggrieved party) |
Key Cases Cited
- State ex rel. Physicians Commt. for Responsible Medicine v. Ohio State Univ. Bd. of Trustees, 108 Ohio St.3d 288 (2006) (mandamus is appropriate remedy to compel compliance with Ohio Public Records Act)
- State ex rel. Beacon Journal Publishing Co. v. Andrews, 48 Ohio St.2d 283 (1976) (public agency may not avoid records-production burdens by pleading cost/time; duty to make records available)
- State ex rel. Toledo Blade Co. v. Seneca Cty. Bd. of Commrs., 120 Ohio St.3d 372 (2008) (public offices must recover unlawfully deleted emails when required by R.C. 149.43)
- State ex rel. Citizens for Open, Responsive & Accountable Govt. v. Register, 116 Ohio St.3d 88 (2007) (attorney-fee awarding principles under public-records statute)
- State ex rel. Rocker v. Guernsey Cty. Sheriff's Office, 126 Ohio St.3d 224 (2010) (Public Records Act construed liberally in favor of disclosure)