HUNT ENGINEERING, LLC v. OHIO ENVIRONMENTAL PROTECTION AGENCY
Case No. 2022-00243PQ
Court of Claims of Ohio
August 23, 2022
2022-Ohio-3141
Special Master Jeff Clark
REPORT AND RECOMMENDATION
{¶1} The Public Records Act,
{¶2} On August 11, 2020, requester Hunt Engineering, LLC (Hunt) made identical public records requests to four divisions within the respondent Ohio Environmental Protection Agency (OEPA) for “all internal and external communications” to or from twenty-five agency employees “related in any way to” three sources of funding applications by eleven Ohio villages. (Complaint, Exh. A.) On October 1, 2020, OEPA denied the request аs ambiguous and overbroad, directed Hunt to a Public Records Checklist that describes how OEPA maintains its records, and invited Hunt to revise the request. (Id., Exh. B.)
{¶3} On October 12, 2020, Hunt made a revised request to the same agency divisions for “all internal and external emails, including all attachments * * * sent from or received by the [twenty-five] individuals below from 2015 through the present * * * regarding the allocation, denial, or request for [any of three funds], submitted by or on
{¶4} On February 11, 2022, Hunt filed a complaint pursuant to
Remaining Claims
{¶5} The complaint does not allege that denial оf Hunt‘s August 11, 2020 request violated
Burden of Proof
Motion to Dismiss
{¶7} In order to dismiss a complaint for failure to state a claim upon which relief can be granted, it must appear beyond doubt that the claimant can prove no set of facts warranting relief after all factual allegations of the complaint are presumed true and all reasonable inferences are made in claimant‘s favor. State ex rel. Findlay Publishing Co. v. Schroeder, 76 Ohio St.3d 580, 581, 669 N.E.2d 835 (1996). As long as there is a set of facts consistent with the complaint that would allow the claimant to recover, dismissal for failure to state a claim is not proper. State ex rel. V.K.B. v. Smith, 138 Ohio St.3d 84, 2013-Ohio-5477, 3 N.E.3d 1184, ¶ 10.
{¶8} OEPA moves to dismiss the complaint on the grounds that 1) it fails to state a claim for which relief may be granted, 2) that OEPA “properly denied Requestor‘s overly broad and ambiguous public records request,” and 3) that OEPA has provided Hunt with all records responsive to its revised requests. These will be addressed in reverse order.
Suggestion of Mootness
{¶9} In an action to enforce
Ambiguous or Overly Broad Request
{¶10} First, because Hunt has not challenged OEPA‘s denial of its August 11, 2020 request, there is no enforcement claim regarding that request and no need for the court to determine whether it was improperly ambiguous or overly broad. However, OEPA argues that the revised requests of October 12, 2020 and March 17, 2021 were fatally contaminated by the overbreadth of the initial request. OEPA cites no statute or case law for this proposition. A revised public records request is considered sui generis with respect to its scope and propriety, regardless of whether it supersedes or merely modifies a prior request. If an office believes a revised request remains ambiguous or overly broad, it must deny the new request on that basis and afford the requester an opportunity to correct the defect, or else the defense is waived.
OEPA alleges that Hunt is seeking enforcement of only its initial request:
Hunt Engineering does not assert error related to its revised requests. See generally Complaint. Instead, Hunt Engineering only requests that Ohio EPA produce records pursuant the Initial Request, which was properly denied as overly broad and ambiguous. Id.
(Response at 10.) Contrary to OEPA‘s characterization of Hunt‘s claim, the complaint alleges that not all records responsive to the March 2021 request had been produced, referring to OEPA‘s representations that more were to come. (Complaint at 4, Exh. K.) Nothing in the context of the parties’ correspondence during the production of records suggests that the occasional reference to “the request,” singular, refers solely or at all to the August 11, 2020 request, which had clearly been superseded by the revised requests. The final March 17, 2021 request appears to have comprehended much of the October 12, 2020 revised request but expanded the list of communication correspondents, the types of records (adding “all documеnts” rather than just “emails“), and fund applicants (“any village” rather than just those listed on October 12, 2020). (Compare Complaint
{¶11} OEPA contradicts its assertion of a “unified request” by admitting that it retrieved, processed, and disclosed numerous documents in compliance with the two rеvised requests, one of which was made more than seven months after the initial request. A public office that does not timely deny a request as ambiguous or overly broad and provide the requester with the opportunity to cure that defect has waived the defense of overbreadth in subsequent enforcement litigation. State ex rel. Summers v. Fox, 163 Ohio St.3d 217, 2020-Ohio-5585, 169 N.E.3d 625, ¶ 74. OEPA has waived the defense of overbreadth with respect to the revised requests by accepting both without denying either as ambiguous or overly broad. (Complaint, Exhs. C, E, G.) The Special Master recommends the Court deny the motion to dismiss on the ground of overbreadth.
Failure to State a Claim – Privilege Log and Statutory Explanation
{¶12} OEPA argues the complaint fails to state a claim upon which relief may be granted regarding Hunt‘s demand for a privilege log. The complaint states that some of the records produced contain redactions (Complaint at 4.) Significantly, Hunt does not expressly allege that OEPA violated the requirement in
{¶13} Hunt likewise did not expressly allege that OEPA failed to provide it “with an explanation, including legal authority, setting forth why the request was denied” as required by
Ohio EPA has failed to provide an explanation for its withholding and redaction of numerous documents and, without said explanation, Hunt Engineering is unable to assess Ohio EPA‘s asserted privilege claim.
(Complaint at 4-5.) Hunt repeatedly asked OEPA for explanations, but only in the form of privilege logs. (Complaint at 3, Exh. F, Aug. 17, 2021 email.) OEPA correctly notes that
{¶14} Hunt‘s vague statement that he laсked sufficient explanation “to assess Ohio EPA‘s asserted privilege claim” is not inconsistent with OEPA‘s minimal satisfaction of
{¶15} Hunt was required to attach to its complaint “copies of the original records request and any written responses or other communications relating to the request from the public office or person responsible for public records.”
{¶16} Hunt‘s failure to attach all OEPA communications containing content relevant to the redaction and explanations that wеre provided, and failure to specifically allege any violation based on the elements of
Non-Existent Records
{¶17} “Public records” means records kept by a public office.
{¶18} When a public office asserts that it has no additional records in its possession, the burden is on the requester to prove by clear and convincing evidence that the records it requests do exist and are maintained by that оffice. State ex rel. Cordell v. Paden, 156 Ohio St.3d 394 2019-Ohio-1216, 128 N.E.3d 179, ¶ 6, 8. The office‘s affidavit may be rebutted by evidence showing a genuine issue of fact, but a requester‘s mere belief based on inference and speculation does not constitute the evidence necessary to establish that a document exists as a record. State ex rel. McCaffrey v. Mahoning Cty. Prosecutor‘s Office, 133 Ohio St.3d 139, 2012-Ohio-4246, 976 N.E.2d 877, ¶ 22-26.
{¶19} OEPA states that it produced approximаtely 43,926 files of documents pursuant to the March 17, 2021 request. (Response, Exh. 1 Kim Aff. at ¶ 4; Reply, Exh. C - List of Files Received.) Just the “email pull” for responsive documents returned over two gigabytes of data to review for identification of responsive records. (Complaint at 3-4, Exh. F, June 2, 2021 Kim to Miller email.) OEPA states that ultimately,
on March 4, 2022, Ohio EPA provided the remaining responsive documents to Hunt Engineering. Ex. 1, ¶ 3. * * * Because all of the records responsive to the revised requests have been provided to Hunt Engineering, this court should dismiss the complaint as moot.
(Response at 12, Exh. 1 at ¶ 3, Exh. 1-B.) The affidavit explaining the retrieval and production of all existing records shifts the burden of proof to Hunt.
{¶20} Hunt counters vaguely that “[w]hile the Ohio EPA has produced a lot of records that were requested, the Ohio EPA has not produced all of the records requested.” (Reply at 2.) To facilitate determination, the Special Master had directed Hunt, in its reply, “to evidence in as much detail as possible what additional records exist in respondent‘s keeping that are responsive to each request.” (June 29, 2022 Order.) In response, Hunt provided no listing of what additional records exist, responsive to which rеquest, and no probative evidence that any such records have been withheld. Hunt makes the bare assertion that email correspondence was not provided from several EPA staff whom he claims, without proof, “were involved in decisions of funding for the list of communities” (Id. at 6, 15), and that the email response of an OEPA employee stating that he is “confident” that he “can add no documents germane to the PRR [public records
{¶21} The Special Master finds that Hunt has not shown by clear and convincing evidence that additional OEPA records exist responsive to the requests. Accordingly, the Special Master finds that any remaining claim for production of records is moot. This is not an affirmative finding that no such records exist or ever existed, only that Hunt has failed to meet its burden to prove their existence in OEPA‘s keeping at the time of this request by the requisite quantum of evidence.
Claim of Untimely Production
{¶22} The Public Records Act requires that a public office “shall make copies of the requested public record available to the requester * * * within a reasonable period of time.”
{¶23} OEPA had no obligation to make records available in response to the ambiguous and overly broad request of August 11, 2020, but unreasonably delayed its denial of that request for a period of seven weeks. Further, OEPA provided no records in response to the October 12, 2020 and March 17, 2021 requests that it did accept until approximately three months after each request was mаde. The requests themselves were admittedly numerous, ambiguous, voluminous, diverse, and required legal review, but the special master finds clear and convincing evidence that at least the initial delays in providing records responsive to the revised requests constituted an unreasonable period of time under the facts and circumstances of this case. See Shaughnessy v. Cleveland, 149 Ohio St.3d 612, 2016-Ohio-8447, ¶ 3-23; Strothers v. Norton, 131 Ohio St.3d 359, 2012-Ohio-1007, 965 N.E.2d 282, ¶ 21-23. To its credit, OEPA eventually provided an enormous number of responsive records on a rolling basis in the fifteen months between the first non-overly broad request and the filing of the complaint and provided the remainder shortly thereafter. The finding of untimeliness is not inconsistent with commending OEPA‘s performance once it commenced disclosure.
Opportunity for Future Revision
{¶24} While OEPA did not properly deny the revised requests, the Special Master notes that they were ambiguous or overly broad in the multiple and overlapping ways asserted in OEPA‘s response. Like the August 11, 2020 version, these were discovery-style requests requiring research and judgment calls as to responsive content rather than properly identifying public records. Fortunately, nothing in this report prevents Hunt from making new, properly framed requests for additional rеcords. Under these circumstances, courts have encouraged parties to persevere to achieve a mutually acceptable resolution of currently deficient records requests. The parties’ relationship resembles that in State ex rel. Morgan v. Strickland, 121 Ohio St.3d 600, 2009-Ohio-1901, 906 N.E.2d 1105, ¶ 14-20. Hunt has demonstrated a willingness to amend its requests. (Reply at 7-9.) OEPA has endeavored to satisfy requests that it has found sufficiently specific. As in Morgan, the parties are encouraged to build on these cooperative efforts to narrow the request on the basis of how OEPA organizes files of the management of the relevant funds, and utilizing statutory tools intended to optimize the scope, speed, format, economy, and delivery of records. See
Conclusion
{¶25} The Special Master recommends the court dismiss the claim fоr production of a privilege log for failure to state a claim for which relief may be granted. The Special Master recommends the court find that respondent failed to properly raise the defense of ambiguity or overbreadth as required by
{¶26} Pursuant to
JEFF CLARK
Special Master
Filed August 23, 2022
Sent to S.C. Reporter 9/8/22