Case Information
*1
[Cite as
Dye v. Cleveland
,
IN THE COURT OF CLAIMS OF OHIO
JAKIMAH R. DYE Requester Special Master Todd Marti v.
CITY OF CLEVELAND
Respondent
This case is before me for a R.C. 2743.75(F) report and recommendation. I recommend that the court: (1) order respondent to produce the records listed in the appendix to this report and recommendation and to certify that it has no other records responsive to the underlying requests; (2) order respondent to do so within 30 days of the entry of a judgment on this report and recommendation; (3) order respondent to file and serve a certification that it has taken those actions within 40 days of the entry of a judgment on this report and recommendation; (4) find that respondent unreasonably delayed the production of the records requested, (3) order respondent to pay requester’s filing fee and costs and the balance of the costs of this case; and (4) deny all other relief. I. Background. Requester Jakimah Dye was discharged from her employment with the
respondent City of Cleveland and contested that action. She made six public records requests to Cleveland for materials related to her discharge. Cleveland produced redacted and unredacted records before this case was filed. See generally, Respondent’s Notice of Filing Evidence , filed April 28, 2025 (“ ”), pp. 3-13, ¶¶ 5- 10. Ms. Dye filed this case to compel the production of additional records. She
also sought a declaration that Cleveland unreasonably delayed the production of records and damages based on R.C. 149.43(C). Mediation was bypassed because of how long Ms. Dye’s requests had been pending. A schedule was set for the parties to file evidence and memoranda supporting their positions. That schedule has run its course, making this case ripe for decision. Order Bypassing Mediation , entered April 14, 2025.
II. Analysis .
A. All pending motions should be denied, and the case should be decided on the merits .
{¶4} The parties have made several motions in this case. Requester filed two motions going to the merits. Cleveland moved to refer the case to mediation and its response to the complaint includes a motion to dismiss on procedural grounds. PQ Motions filed March 5, April 14, and 28, 2025 ; Motion to Dismiss , filed May 5, 2025. I recommend that all those motions be denied and the case resolved on the merits. Respondent’s March 5 motion to refer the case to mediation was implicitly DENIED by the Order Bypassing Mediation . Requester’s April 14 and 28 motions are barred by R.C. 2743.75(E)(2). That
statute provides that “No . . . motions” other than a motion to dismiss, “shall be accepted . . . unless the special master directs in writing that . . . a . . . motion . . . be filed.” I did not direct that requester’s motions be filed. They should therefore be DENIED. Respondent’s May 5 motion to dismiss argues that this case should be dismissed because requester’s motions are improper in light of R.C. 2743.75(E)(2), because her evidence was not filed in the way required by the scheduling order controlling this case, and because those missteps impeded the efficient and economical resolution of this case. Motion to Dismiss , pp. 7-9. I recommend that respondent’s motion be denied for three reasons. First,
cases should be decided on the merits if possible, and requester’s procedural foibles are
not so egregious as to prevent a decision on the merits. Second, R.C. 2743.75 is intended
to provide a forum for those who are not “schooled in the law,” so the court should be
hesitant to dispose of potentially meritorious claims based on a lay person’s inartful
submissions.
Welsh-Huggins v. Jefferson Cty. Prosecutor’s Office
,
B. Requester’s claim for production of records responsive to Request No. P01654-80724 is moot, but her claim that respondent unreasonably delayed the production of records is valid. This request was made August 7, 2024, and sought records related to other
employees’ disciplinary proceedings and oaths of office. Cleveland produced 219 pages of responsive records between October 28, 2024, and April 14, 2025. It has submitted affidavit testimony that its production constituted a “full release,” which I construe to mean that it has produced all responsive records. PQ Miscellaneous, Respondent’s Notice of Filing and Service of Responsive Records with flash drive containing Redacted Records , filed April 28, 2025 (“ Redacted Records ”), pp. 4189-4404; , p. 11, ¶ 9.
1. Production claim
.
“In general, the provision of requested records to a [requester] in a public-
records *** case renders the *** claim moot.”
State ex rel. Cincinnati Enquirer v. Dupuis,
records. Ms. Dye’s claim is therefore moot unless she has presented clear and convincing evidence that additional records exist. She has not. Although her memoranda argue that additional records exist,
those memoranda are not sworn and hence are not evidence.
Hickman v. Ford Motor Co
.,
May 15, 2025,
Requester’s Opposition to Respondent’s Motion to Dismiss
. Those
affidavits were filed well after the April 28, 2025, deadline for filing evidence and hence
cannot be considered over Cleveland’s objection.
Order Bypassing Mediation
, ¶ B (setting
deadline),
Schaffer v. Ohio State Univ
.,
improperly redacted, and although some records produced in response to this request
were redacted, those redactions do not keep Ms. Dye’s production claim alive. A court will
only undertake individualized scrutiny of redactions if they are specifically challenged.
State ex rel. Sultaana v. Mansfield Corr. Inst
.,
2. Delay claim.
R.C. 149.43(B)(1) mandates that “upon request *** a public office *** shall
make copies of the requested public record available to the requester ***
within a
reasonable period of time
.” (Emphasis added). A public office’s compliance with that
requirement is evaluated based on the facts and circumstances of the request.
State ex
rel. Morgan v. Strickland
,
Although each delay claim turns on its own facts, some guidance is provided by similar
cases. This request was made on August 7, 2024. Cleveland did not complete its
response until April 14, 2025, 168 working days later. , p. 11, ¶ 9.
That is longer than the delays found to be unreasonable in other cases. See
State ex rel.
Ware v. Bur. of Sentence Computation
,
limited review/redaction issues. Public offices are given more time to respond to requests
for large volumes or diverse types of records. Conversely, they are allowed less time for
narrower requests. Compare
State ex rel. Shaughnessy v. City of Cleveland
, 2016-Ohio-
8447, ¶ 14;
Kesterson
,
Quantitively, it generated a relatively small volume of responsive records, 219 pages. Qualitatively, the review/redaction issues were straight forward. It should not have taken Cleveland 168 working days to determine what redactions were needed. Third, the production only occurred after litigation commenced . Courts are
more likely to find delayed production unreasonable if it occurs after commencement of
litigation.
Miller
,
{¶20} I therefore recommend that the court find that Cleveland violated R.C. 149.43(B)(1) by unreasonably delaying its response this request.
C. Requester’s claim for production of records responsive to Request No. C001779-80724 is moot, but her claim that respondent unreasonably delayed the production of records is valid. This request was also made on August 7, 2024, and sought records related
to Ms. Dye’s termination and the personnel files of officials involved in her termination. Cleveland produced 717 pages of records through rolling productions from November 2024 through March 10, 2025. Cleveland provided affidavit testimony that this constituted a “full release,” which I understand to be an assertion that all responsive records have been produced. Redacted Records , pp. 3471-4188; , pp. 9-11, ¶ 8.
1. Production claim. As explained in connection with Request No. P01654-080724, a claim for production of records becomes moot if the public office produces the requested records. As also explained there, a requester has the burden of proving by clear and convincing evidence that additional responsive records exist if the public office provides affidavit testimony that it has provided all responsive records. Cleveland provided affidavit testimony that it has made a full release of all
records responsive to this request. Although Ms. Dye has made arguments as to why she believes additional records exist, she has not submitted any evidence that they do. That is also true with regard to metadata; she has submitted no evidence that Cleveland has the metadata related to these records. Her claim for production of records is therefore moot. Further, the redactions to the records produced in response to this request
do not keep Ms. Dye’s production claim alive. None of those redactions are based on
attorney-client privilege, the only redactions she specifically challenged.
Sultaana
, 2023-
Ohio-1177, ¶ 24, n. 2;
Schutte
,
2. Delay claim.
This request was made on August 7, 2024, and Cleveland did not produce
all responsive records until March 11, 2025, 143 working days later. That is longer than
response times other courts have found to be unreasonable.
Ware
v,
D. Requester’s production claim should be granted in part regarding Request No. C0030307-120524, and her delay claim should be sustained. This request was made on December 4, 2024, and sought personnel records
of certain of Cleveland’s employees, records related to a staff retreat, and communications related to that retreat. Cleveland produced 2,891 pages of responsive records through a series of rolling productions beginning in February 2025 and ending March 7, 2025. Cleveland’s evidence indicates that a number of records were withheld based on attorney-product privilege and other bases. Redacted Records , pp. 579-3470; , pp. 8-9, 14, ¶¶ 7, 12; pp. 18-23, ¶ 11.
1. Production Claim
.
Unlike its response to the requests previously discussed, Cleveland did not
provide affidavit testimony that it provided all records responsive to this request. Instead,
it simply attested that the request was “closed in the system.” Ms. Dye is therefore entitled
to any other records that are responsive to this request, or a certification that no additional
records exist, if there is “some evidence” that additional responsive records exist.
Sell v.
Trumbull Cty
.,
responsive to the request based on the attorney-client privilege.
Redacted Records
, pp.
3466-3470. That is some evidence that those records exist. Further, Cleveland has not
met its burden of proving that those records did in fact fall within the privilege.
Welsh-
Huggins
,
3. Delay claim.
This request was made on December 4, 2024, and Cleveland did not
produce all responsive records until March 7, 2025, 61 working days later. Further, that
production was not complete, as just discussed. That is longer than response times other
courts have found to be unreasonable.
Ware
,
E. Requester’s production claim regarding Request No. C003178-122624 should be granted in part; requester’s delay claim regarding this request should be sustained. This request was made on December 26, 2024, and sought communications
from various officials during 2024 containing certain search terms. Cleveland produced 467 pages of records responsive to this request between March 18 and April 10, 2025. Portions of those records were redacted, and Cleveland withheld a large number of records. Respondent’s Evidence , pp. 3-6, 14, ¶¶ 5, 12; pp. 18-23, ¶ 11.
1. Requester’s production claim regarding this request is moot except as to documents improperly redacted or withheld based on the attorney-client privilege. As discussed earlier, a production claim is moot to the extent that the
respondent has produced all public records responsive to the underlying request.
Cleveland produced affidavit testimony that it made a “full release” of all responsive public
records, which I take to be an attestation that it produced all responsive public records.
, p. 6, ¶ 5. That would moot Ms. Dye’s production claim (except
as to improper redactions/withholdings) unless she came forward with clear and
convincing evidence that Cleveland has additional responsive public records.
McCaffrey
,
offered unsworn memoranda. The court should therefore find that her production claim regarding this request is moot, except as to records improperly redacted or withheld based on the attorney-client privilege.
2. Requester improperly redacted or withheld some records based on the attorney-client privilege . Ms. Dye’s production claim is not moot to the extent that Cleveland
improperly redacted or withheld records based on claimed exemptions from the Public
Records Act. Cleveland did redact and withhold records responsive to this request
pursuant to various exemptions, but the only redactions/withholding Ms. Dye has
specifically challenged are those based on the attorney-client privilege. Those are
therefore the only redactions/withholding at issue.
Sultaana
,
that the privilege applies[.]”
Westfield
,
“‘(1) Where legal advice of any kind is sought (2) from a professional legal adviser in his capacity as such, (3) the communications relating to that purpose, (4) made in confidence (5) by the client, (6) are at his instance permanently protected (7) from disclosure by himself or by the legal adviser, (8) unless the protection is waived.’” State ex rel. Lanham v. DeWine , 2013- Ohio-199, ¶ 27. Cleveland filed copies of the records it produced in redacted form and
unredacted copies of all records it redacted or withheld based on the attorney-client
privilege.
In Camera Records.
It identified those redactions and withholdings by
referencing both the pages of the redacted records it produced and the pages of the
In
Camera Records
. pp. 18-23, ¶ 11. I have carefully reviewed the
unredacted records and find that all the redactions/withholding identified there were
proper except those discussed below. The propriety of the redactions/withholdings not
discussed below was established by the contents of the records themselves, the affidavit
testimony Cleveland produced in support of those redactions/withholdings, or both.
[2]
Welsh-Huggins
,
Cleveland’s lawyers’ interaction with its public relations staff concerning responses to
-11- REPORT AND RECOMMENDATION
media inquiries. Communications about public relations concerns are not protected by
the attorney-client privilege absent evidence that the public relations participants were
involved in the formulation of legal, rather than public relations, advice.
Cincinnati
Enquirer v. Hamilton Cty. Bd. of Commrs
.,
3. Delay Claim
.
This request was made on December 26, 2024. Cleveland did not fully
respond until April 10, 2025, 71 working days later. That is longer than response times
other cases have found to be unreasonable.
State ex rel. Clark-Shawnee Local School
Dist. Bd. of Edn. v. City of Springfield
,
G. Respondent should be ordered to produce all records responsive to Request Nos. C003190-12304 and C003191-123024, subject to appropriate redactions. These requests were made on December 30, 2024. Cleveland did not
respond to them until after this case was filed, when it objected to on overbreadth grounds. , pp. 6-8, 11-12, ¶¶ 6,10. -12- REPORT AND RECOMMENDATION
{¶40}
Overbreadth is the only defense Cleveland has asserted to these requests,
but that fails because overbreadth was not raised before this case was filed. A public
office waives an overbreadth objection if it does not assert it before the case is filed.
Schaffer v. Ohio State Univ
.,
F. Requester is entitled to recover her filing fee and costs; respondent should bear the balance of the costs .
{¶41} R.C. 2743.75(F)(3)(b) provides that the “aggrieved person shall be entitled to recover from the public office *** the amount of the filing fee *** and any other costs associated with the action[.]” Ms. Dye was aggrieved by Cleveland’s failure to produce the records listed in the appendix to this report and by its delay in responding to her requests. I therefore recommend that she recover her filing fee and the costs she incurred in this case. I also recommend that Cleveland bear the balance of the costs of this case.
G. Other claims. Ms. Dye asserts several claims that are not limited to specific requests, but
none support relief. Damages . Ms. Dye seeks damages pursuant to R.C. 149.43(C), but they are
not available in cases brought pursuant to R.C. 2743.75. Doe v. Ohio State Univ ., 2024- Ohio-5891, ¶¶ 42-55 (10th Dist.). R.C. 149.43(B)(3) . Ms. Dye asserts that Cleveland violated R.C.
149.43(B)(3) by failing to provide adequate legal bases for its denials, but that claim was
not pled in her complaint. That relief is therefore unavailable.
Schutte
,
not provide a privilege log fails on two independently dispositive grounds. Procedurally,
that claim was not pled in her complaint. Substantively, R.C. 149.43 does not require
public offices to provide privilege logs.
State ex rel. Lanham v. DeWine
,
describe the searches it undertook in response to her requests also fails on two levels.
The claim was not pled in her complaint. Further, the Supreme Court has held that “there
is no duty under R.C. 149.43 for respondents to detail the steps taken to search for
records responsive to the requests.”
McCaffrey
,
requests. However, a party must specifically request metadata to be entitled to it.
McCaffrey
,
III. Conclusion . In light of the foregoing, I recommend that the court:
(A) Order respondent to produce the records listed in the appendix to this report and to certify that it has no other records responsive to the corresponding requests;
(B) Order respondent to take those actions within 30 days of the entry of a judgment on this report and recommendation;
(C) Order respondent to file and serve a certification that it has taken those actions within 40 days of the entry of a judgment on this report and recommendation;
(D) Find that respondent unreasonably delayed the production of the records requested;
(E) Deny all pending motions;
(F) Order respondent to pay requester’s filing fee and costs and the balance of the costs of this case, and
(G) Deny all other relief. 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 -14- REPORT AND RECOMMENDATION 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).
TODD MARTI
Special Master
Filed June 3, 2025 Sent to S.C. Reporter 7/3/25 -15- REPORT AND RECOMMENDATION
Appendix
Records to be Produced
Request No. C0030307-120524
Unredacted copies of the records referenced at pp. 3466-3470 of the Redacted Records .
All other records responsive to this request that have not been previously produced, subject to redactions to protect third parties’ statutory privacy rights.
Request No. C003178-122624
Unredacted copies of the records filed at pp. 12-14, 1562-1567, and 1571 of the In Camera Records .
Request No. C003190-12304
All other records responsive to this request that have not been previously produced, subject to redactions to protect third parties’ statutory privacy rights.
Request No. C003191-123024
All other records responsive to this request that have not been previously produced, subject to redactions to protect third parties’ statutory privacy rights.
Notes
[1] Cleveland’s submissions are less than clear on this point. Pages 3466-3470 of the Redacted Record s refer to specific pages where the allegedly privileged records are found, but they do not appear to be either pages of the Redacted Records or pages of the records on the flash drive referenced in Respondent’s Notice of Manual Filing Under Seal of Exempt Records , filed April 8, 2025 (“ In Camera Records ”). It therefore appears that the allegedly privileged records are not actually in the record of this case. And although Cleveland provided affidavit testimony supporting claims of privilege in connection with other requests, it did not provide affidavit testimony regarding the allegedly privileged records referenced at pp. 3466-3470 of the Redacted Records . See Respondent’s Evidence , pp. 18-23, ¶ 11. The resulting doubts about these records’ privileged status should therefore be resolved against Cleveland. Welsh-Huggins , 2020- Ohio-5371, ¶ 28.
[2] It should be noted that most of Cleveland’s redactions and withholdings were based on
the attorney work product doctrine.
In Camera Records
pp. 16-407, 410-1561. The work
product doctrine is distinct from the attorney-client privilege and fits within a different
exemption from the Public Records Act.
Squire, Sanders & Dempsey, L.L.P. v. Givaudan
Flavors Corp
.,