Case Information
*1
[Cite as
Anderson v. Greater Cleveland Regional Transit Auth.
,
Requester Special Master Jeffery W. Clark v.
GREATER CLEVELAND REGIONAL
TRANSIT AUTHORITY
Respondent
Ohio’s Public Records Act, R.C. 149.43, provides a remedy for production of
records under R.C. 2743.75 if the court of claims determines that a public office has
denied access to public records in violation of R.C. 149.43(B). The policy underlying the
Act is that “open government serves the public interest and our democratic system.”
State ex rel. Dann v. Taft,
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 no records responsive to some requests. (Response at 2, 5-6; Jackson Aff. at ¶ 5-17; Exhs. C-E, G, I.) On April 4, 2018, Anderson filed a complaint under R.C. 2743.75 alleging
public records access violations by the RTA. The complaint failed to attach the responses of the RTA as required by R.C. 2743.75(D)(1), or to state with clarity how access to public records had been denied. The court directed Anderson to submit an amended complaint separately listing each request for which he was seeking relief and referencing the request letter(s) in which it was made. (April 9, 2018, Order.) On April 27, 2018, Anderson filed an amended complaint in which he alleged that the RTA had failed to make records available within a reasonable period of time with respect to fourteen of the original 94 requests. R.C. 149.43(B)(1). (Am. Complaint at 2-3.) On July 11, 2018, the court was notified that the case had not been fully resolved in mediation. On July 24, 2018, the RTA filed its response to the amended complaint (Response) asserting that under the facts and circumstances of this case it had provided records within a reasonable period of time. On August 13, 2018, Anderson filed a reply.
Requirement to Provide Records Timely
A public office must “promptly” prepare records if inspection is requested,
and must provide copies “within a reasonable period of time.” R.C. 149.43(B)(1).
“Promptly” means “without delay and with reasonable speed” and its meaning “depends
largely on the facts in each case.” State ex rel. Wadd v. Cleveland,
counsel, Robert Smith, III. (Response, Exh. B; Complaint at 2-5.) Anderson references fourteen specific requests [2] 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
Nos. 7, 24, 27, 16, and 26.) Therefore, Anderson’s statement regarding the RTA’s
collective response to both letters is not necessarily inconsistent with Jackson’s
testimony that the responses to the Smith requests that form the basis of Anderson’s
claim were completed on February 26, 2018.
In determining
the
facts and
circumstances of this case, Anderson’s largely inaccurate statement does not amount to
clear and convincing evidence that the RTA’s response to the January 23, 2018
requests took any longer than the period stated by Jackson. The RTA has established
by affidavit that the responsive records were provided within twenty-three business
days, and Anderson fails to rebut this assertion with any evidence showing a genuine
issue of fact. See Strothers v. Norton ,
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 ref. Fox v. Cuyahoga
Cty. Hosp. Sys. (1988), 39 Ohio St.3d 108, 111, 529 N.E.2d 443, 446,
quoting State ex ref. Beacon Journal Publishing Co. v. Andrews (1976), 48
Ohio St.2d 283, 289,
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. 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,
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 Shaugnessy, 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 under the facts and circumstances of this case the 23 business days taken by the RTA to provide records responsive to Smith’s requests was a reasonable period of time.
{¶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. Civ.R. 8(A). However, even were the court to consider Anderson’s March 29, 2018 requests, the RTA submitted testimony that the responsive records thereto were provided by May 10, 2018. (Jackson Aff. at ¶ 15-17.) The response time for the March 29, 2018 requests was thus 29 business days. Under the facts and circumstances of the case, this response was reasonable for the same reasons stated above.
Conclusion 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. Pursuant to R.C. 2743.75(F)(2), either party may file a written objection
with the clerk of the Court of Claims of Ohio within seven (7) business days after receiving this report and recommendation. Any objection shall be specific and state with particularity all grounds for the objection. A party shall not assign as error on appeal the court’s adoption of any factual findings or legal conclusions in this report and recommendation unless a timely objection was filed thereto. R.C. 2743.75(G)(1). JEFFERY W. CLARK Special Master
Filed August 21, 2018 Sent to S.C. Reporter 9/10/18
Notes
[1] Anderson attached a request dated January 16, 2018 from Robert Smith, III. The RTA attached an identical request, except for a January 23, 2018 date of creation and receipt. The RTA’s correspondence with Anderson references the January 23, 2018 date. Although the dates do not affect the analysis significantly, the January 23, 2018 date is supported by the greater weight of evidence.
[2] Anderson references incorrect paragraphs in Smith’s letter for the last three requests. Instead of 24, 28 and 29, the subject matter described for these requests is found in paragraphs 27, 31 and 32.