Anderson v. Greater Cleveland Regional Transit Auth.Anderson v. Greater Cleveland Regional Transit Auth.
{¶1} Ohio’s Public Records Act,
{¶2} On January 18, 2018, January 23, 2018,1 and March 29, 2018, requester Jason Anderson and representatives acting on his behalf made 94 public records requests to respondent Greater Cleveland Regional Transit Authority (RTA). (Complaint at 2-15; Response, Exh. B.) The RTA provided thousands of pages of responsive records, noted that several of the requests were overly broad, and indicated that it had
{¶3} On April 4, 2018, Anderson filed a complaint under
Requirement to Provide Records Timely
{¶4} A public office must “promptly” prepare records if inspection is requested, and must provide copies “within a reasonable period of time.”
{¶5} The requests at issue were made on January 23, 2018 by Anderson’s counsel, Robert Smith, III. (Response, Exh. B; Complaint at 2-5.) Anderson references fourteen specific requests2 from Smith’s letter as having not been turned over in a reasonable amount of time. (Am. Complaint at 2-3.) In response, the RTA provides the following testimony from Associate Counsel Jennifer B. Jackson, who supervised its responses to the requests at issue:
By February 26, 2018, GCRTA had responded to all of Attorney Smith’s public records requests from January 23, 2018. The response included 1284 pages of records from the files of 30 TP officers, including video and audio files. A true and correct copy of GCRTA’s response (excluding the records themselves) is attached as Exhibit E.
(Jackson Aff. at ¶ 14.) Anderson does not directly contradict Jackson’s account, stating instead:
The initial request for the records listed was on 1/16/2018 by my Attorney Robert Smith III. I resubmitted an additional request listing the same requests on 03/29/2018. April 26, 2017 [sic] made 100 days since the requests were made along with the additional records requests that were submitted by myself.
(Reply at 2.) Anderson appears to allege that he had not received all records responsive to both Smith’s letter, and Anderson’s March 29, 2018 letter, by April 26, 2018. Although Anderson states that he “resubmitted an additional request listing the same requests on 03/29/2018” as the Smith request (Id.), comparison of the two letters shows that Smith requests Nos. 2, 3, 9, 10, 13, 15, 18, 20, and 29 are not repeated in Anderson’s March 29, 2018 letter. Of the five Smith requests that do correspond to requests in the March 29, 2018 letter, one has no overlap as to the records requested, and none are identical. (Compare Smith requests Nos. 8, 11, 14, 24 [sic], and 28 [sic] with Anderson requests
{¶6} In defending this response time as reasonable, the RTA asserts that it received hundreds of other public records requests in 2017 and 2018, and that “[d]ue to the sensitivity of peace officer records, it is GCRTA’s practice to permit affected TP officers to review what GCRTA is releasing in response to public records requests.” (Response at 4, 5, fn. 6; Jackson Aff. at ¶ 12-13, 18.) However, the fact that a public office deals with many other public records requests is not an acceptable excuse for delay:
Respondents emphasize that Cleveland faces a “volume of reports that would undoubtedly overwhelm * * * smaller communities.” These assertions, however, do not absolve respondents’ failure to act with the requisite promptness in preparing and providing access to accident reports because “‘no pleading of too much expense, or too much time involved, or too much interference with normal duties, can be used by the respondent to evade the public’s right to inspect and obtain a copy of public records within a reasonable time.’” State ex rel. Fox v. Cuyahoga Cty. Hosp. Sys. (1988), 39 Ohio St.3d 108, 111, 529 N.E.2d 443, 446, quoting State ex rel. Beacon Journal Publishing Co. v. Andrews (1976), 48 Ohio St.2d 283, 289, 2 Ohio Op.3d 434, 437, 358 N.E.2d 565, 569.
Wadd v. Cleveland, supra, at 53-54. Likewise, no Ohio case holds that an office practice of permitting employees to review personnel files before release may be used to excuse delay in producing the records. Therefore, these factors will not be taken into account in determining whether the RTA responded within a reasonable period of time.
{¶7} The RTA further noted that peace officer personnel files are subject to more public records exceptions than typical employee files, that personnel files of retired or former RTA peace officers were archived in offsite storage facilities and had to be ordered back from storage, and that the records were evaluated by legal staff to determine that appropriate redactions had been made and justified. (Response at 6; Jackson Aff. at ¶ 9, 11.) These are relevant factors in evaluating timeliness. Public offices may take the time reasonably necessary to retrieve, analyze, and redact requested records, including time to secure legal advice. Shaughnessy, supra, at ¶ 12, 22; State ex rel. Patituce & Assocs. v. Cleveland, 8th Dist. Cuyahoga No. 104837, 2017-Ohio-300, ¶ 9-10 (January 20, 2017) (police personnel files). Finally, the RTA commenced this process immediately on receipt of Smith’s request letter; that is, without delay. (Response at 5, Jackson Aff. at ¶ 6.)
{¶8} Anderson and his representatives made voluminous, overlapping requests that required clarification, off-site retrieval, scanning to .pdf format for the requested email delivery, and legal counsel’s review of thousands of pages of law enforcement records. (Response at 2, 5-6; Jackson Aff. at ¶ 5-14; Exhs. B, F, H.) In Shaughnessy, a case involving requests for searches for types of criminal offenses and careful review of law enforcement records, the Supreme Court found that response times of 12 to 31 business days for each such request was reasonable. Id. at ¶ 17, 19, 21. See also Patituce at ¶ 2, 7-10 (75 calendar days to provide personnel records of nine Gang Impact Unit employees was found to be a reasonable period of time). I find that
{¶9} Although some wording in the amended complaint remains confusing, I find that Anderson specifically listed only the fourteen requests evaluated above as the basis for his claim. His general reference to one of the additional request letters, from March 29, 2018 (Am. Complaint at 3), does not specify any individual request for which he claims untimely response, and thus did not satisfy the court’s order to provide a short and plain statement showing that he is entitled to relief.
Conclusion
{¶10} Upon consideration of the pleadings and attachments, I recommend that the court issue an order DENYING Anderson’s claim that the RTA failed to provide requested public records within a reasonable period of time.
{¶11} Pursuant to
JEFFERY W. CLARK
Special Master
Filed August 21, 2018
Sent to S.C. Reporter 9/10/18