STATE OF OHIO, ex rel., JOHN H. DAVIS v. TERRA WOOLARD METZGER
Case No. 11-CA-130
COURT OF APPEALS LICKING COUNTY, OHIO FIFTH APPELLATE DISTRICT
April 17, 2013
2013-Ohio-1620
Hon. William B. Hoffman, P.J.; Hon. Sheila G. Farmer, J.; Hon. John W. Wise, J.
CHARACTER OF PROCEEDING: Mandamus Complaint; JUDGMENT: Dismissed
For Relator
WESLEY T. FORTUNE
421 Hill Road North
Pickerington, OH 43147
For Respondents
MARC A. FISHEL
400 S. Fifth Street
Suite 200
Columbus, OH 43215
{¶1} Relator, John W. Davis, has filed a complaint for writ of mandamus requesting this Court issue a writ ordering Respondent Terra Woolard Metzger to produce certain personnel records. Respondent has filed an Answer as well as a Motion for Summary Judgment. Relator has also filed a Motion for Summary Judgment.
{¶2} On Thursday, December 8, 2011, at approximately 9:00 p.m., Relator served Respondent with a public records request for personnel records for six employees of the West Licking Joint Fire District (hereinafter “WLJFD“). Respondent is the Human Resources Technician for the fire district. As to these six employees, each request sought to “secure any and all records” that would support the employee‘s work performance, any disciplinary actions in his or her file, and any other document “that would give us any indication that he is unable to perform the job at hand.” The records request stated that Relator would like the records emailed to him.
{¶3} The WLJFD was closed on Saturday, December 10, and Sunday, December 11, 2011. On Tuesday, December 13, 2011, at approximately 11:30 a.m., Relator telephoned Respondent to ask about the status of his public records request. She advised Relator that the requests were being reviewed by counsel for the WLJFD before they would be released. At 1:59 p.m. that afternoon, Relator filed the instant complaint in mandamus. The records were provided to him at 3:46 p.m. the same afternoon.
{¶4} Relator asks this court to issue a writ of mandamus compelling Respondent to make the requested public records available in accordance with
{¶5} Respondent filed a motion for summary judgment arguing that the public records request was complied with in a reasonable amount of time. Respondent also requests fees and expenses pursuant to
SUMMARY JUDGMENT STANDARD
{¶6} The Supreme Court of Ohio in State ex rel. Zimmerman v. Tompkins, 75 Ohio St.3d 447, 448, 663 N.E.2d 639, 1996-Ohio-211, 663 N.E.2d 639 explained the standard for summary judgment: “Civ.R. 56(C) provides that before summary judgment may be granted, it must be determined that (1) no genuine issue as to any material fact remains to be litigated, (2) the moving party is entitled to judgment as a matter of law, and (3) it appears from the evidence that reasonable minds can come to but one conclusion, and viewing such evidence most strongly in favor of the nonmoving party, that conclusion is adverse to the party against whom the motion for summary judgment is made. State ex. rel. Parsons v. Fleming (1994), 68 Ohio St.3d 509, 511, 628 N.E.2d 1377, 1379, citing Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327, 4 O.O.3d 466, 472, 364 N.E.2d 267, 274.”
{¶7} “‘Mandamus is the appropriate remedy to compel compliance with
{¶8} In the instant case, Relator was provided with the requested records less than three business days after he served Respondent with his request. Relator argues that this was not a reasonable amount of time.
{¶9}
{¶10} “(B)(1) Upon request and subject to division (B)(8) of this section, all public records responsive to the request shall be promptly prepared and made available for inspection to any person at all reasonable times during regular business hours. Subject to division (B)(8) of this section, upon request, a public office or person responsible for public records shall make copies of the requested public record available at cost and within a reasonable period of time.”
{¶12} Relator requested any and all records that would support the employee‘s work performance, any disciplinary actions in the employee‘s file, and any other document that would give any indication that the employee is unable to perform the job at hand as to six individual employees. Respondent was entitled to an opportunity to inspect the files and seek legal advice to determine what records were responsive to the broad request, and to determine if any of the information was exempt from disclosure. The documents were emailed to Relator less than three full business days from the time he served his request. Under the facts and circumstances of this case, we find this time to be reasonable and grant Respondent‘s motion for summary judgment on the issue of the timeliness of the response.
{¶13} Relator also claims that during discovery in the instant case, he discovered that a draft evaluation of Fulmer and emails concerning this evaluation were not provided to him. Relator has not amended his complaint to allege that Respondent withheld documents to which he was entitled, and Relator used the discovery process in this case to discover materials which were not in the personnel files of the requested
{¶14} Respondent‘s motion for summary judgment is granted, and Relator‘s complaint in mandamus is dismissed.
SANCTIONS
{¶15} Respondents have requested sanctions in the form of costs and attorney fees based upon their contention the complaint for writ of mandamus is frivolous.
{¶16}
{¶17}
{¶18} “(i) * * * [conduct that] serves merely to harass or maliciously injure another party to the civil action or appeal or is for another improper purpose, including, but not limited to, causing unnecessary delay or a needless increase in the cost of litigation.
{¶20} “(iii) * * * [conduct that] consists of allegations or other factual contentions that have no evidentiary support or, if specifically identified, are not likely to have evidentiary support after a reasonable opportunity for further investigation or discovery.”
{¶21} A motion for sanctions brought under
{¶22} Relator filed the instant action a matter of hours after he had been told by Respondent that counsel was reviewing his public records request. After receiving the records later that same day, Relator did not dismiss the instant action nor did he amend his complaint to reflect the fact that he received documents in response to his request. Rather, Relator proceeded to engage in a lengthy discovery process and file numerous motions with this court concerning a mandamus action which was resolved on the same day it was filed.
By: Farmer, J.
Hoffman, P. J. and
Wise, J. concur
s / Sheila G. Farmer
s / William B. Hoffman
s / John W. Wise
JUDGES
SGF/ads0221
STATE OF OHIO, ex rel. JOHN H. DAVIS v. TERRA WOOLARD METZGER
CASE NO. 11-CA-130
IN THE COURT OF APPEALS FOR LICKING COUNTY, OHIO FIFTH APPELLATE DISTRICT
JUDGMENT ENTRY
For the reasons stated in our accompanying Memorandum-Opinion on file, the Complaint is dismissed. Costs assessed to Relator.
s / Sheila G. Farmer
s / William B. Hoffman
s / John W. Wise
JUDGES