State ex rel. Doe v. TetraultState ex rel. Doe v. Tetrault
Christopher P. Finney, Joshua Bolinger, 2623 Erie Avenue, P.O. Box 8802, Cincinnati, Ohio 45208, for relator-appellant
Lawrence E. Barbiere, 5300 Socialville-Foster Road, Suite 200, Mason, Ohio 45040, for respondent-appellee, Christopher P. Tetrault
Robert Surdyk, Kevin Lantz, One Prestige Place, Suite 700, Miamisburg, Ohio 45342, for respondents-appellees, David Elmer and Pierce Township
O P I N I O N
HENDRICKSON, J.
{¶ 1} Relator-appellant, Barbara Hartman (“Relator“), appeals the decisions of the Clermont County Common Pleas Court denying summary judgment in her favor, granting summary judgment in favor of respondents-appellees, Christopher Tetrault, David Elmer, and
{¶ 2} In October of 2007, Pierce Township entered into an Employment Agreement with Tetrault where Tetrault would serve as Assistant Administrator for Development Facilitation. Tetrault was paid a base annual salary of $77,000 premised upon a 1,110 hour per year schedule, or 277.5 hours per calendar quarter. In addition, if Tetrault worked more than 277.5 hours per quarter, he would be paid $75 per hour for the overage, not to exceed $7,500. In order to track his hours, the Employment Agreement provided that Tetrault would maintain a daily log of his activities and time.
{¶ 3} From October of 2007 through June of 2009, Tetrault provided the Pierce Township trustees with quarterly reports, ranging from 20-82 pages in length, detailing his daily activities and listing the time spent on each task. However, sometime in June of 2009, Tetrault met with two Pierce Township trustees and was informed that the format he used in creating his quarterly reports was undesirable. Tetrault was then provided examples of trustee-approved formats by David Elmer, Pierce Township Administrator.
{¶ 4} After July 1, 2009, Tetrault began submitting quarterly one-page summary reports listing a monthly total of hours worked (“Summary Reports“). Tetrault testified that he compiled these reports by tracking the total number of hours he worked per day on a piece of scrap paper he kept in his vehicle. One piece of scrap paper could contain anywhere from one to three days listing the hours he worked. The scrap paper only contained the total number of hours worked without any references to dates, specific times, or what activities were performed during these hours. After one to three days of work, Tetrault would enter the number of hours listed on the scrap paper into the “Basecamp” website and then discard or recycle the scrap paper and start a new piece.
{¶ 5} Basecamp is an online project management website provided by a third party
{¶ 6} Tetrault utilized Basecamp through a laptop computer he was loaned by Pierce Township (the “Township Laptop“). Along with accessing Basecamp, Tetrault used the Township Laptop to generate emails, store files, and conduct non-Pierce Township business. Throughout his employment, Tetrault stated that he backed up the emails he created and received regarding his Pierce Township employment on an external hard drive. Tetrault testified that he saved all other files, notes, or documents relating to Pierce Township to Basecamp and that no document relating to his Pierce Township employment was ever saved specifically to the Township Laptop.
{¶ 7} On April 21, 2010, Relator filed a public records request with Pierce Township seeking, among other things:
All records documenting all time expended by Chris Tetrault for or on behalf of Pierce Township from July 1, 2009 to the present, including, any description of the work or tasks performed for all such time.
{¶ 8} Upon receiving the request, Elmer contacted Tetrault and asked that he transmit to Pierce Township any public records in his possession relating to his time worked. In addition, on April 29, 2010, Elmer contacted Relator‘s attorney and sought to have the request narrowed, as he felt the request was ambiguous and overly broad. Relator‘s attorney never responded to this communication.
{¶ 9} Tetrault provided his records to Elmer and, on May 14, 2010, Elmer forwarded 47 pages of documents to Relator which included references to the Basecamp website. Relator
{¶ 10} On June 30, 2010, Tetrault‘s employment with Pierce Township was terminated. Upon his termination, Tetrault made sure all Pierce Township information on the Township Laptop was saved to an external hard drive or Basecamp. He then set the Township Laptop back to its “factory setting,” effectively erasing all data from the Township Laptop, and returned the Township Laptop to Pierce Township. Tetrault testified that he erased the Township Laptop in order to protect his files which did not relate to Pierce Township work.
{¶ 11} On July 16, 2010, Relator commenced the within action, seeking a writ of mandamus. In an amended complaint, Relator set forth two issues: (1) whether Respondents provided the public records responsive to Relator‘s request within a reasonable period of time under
{¶ 12} Tetrault moved for summary judgment on his own, followed by Elmer and Pierce Township (together, the “Township Respondents“). Relator also moved for summary judgment on her claim as to
{¶ 13} From the trial court‘s decisions on summary judgment, and its failure to address Relator‘s discovery request, Relator appeals, raising three assignments of error. For ease of discussion, we will address Relator‘s first and second assignments together.
{¶ 14} Assignment of Error No. 1:
{¶ 15} THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN GRANTING SUMMARY JUDGMENT IN FAVOR OF [RESPONDENTS] AND IN DENYING PARTIAL SUMMARY JUDGMENT IN FAVOR OF [RELATOR] WITH RESPECT TO THE CLAIM BROUGHT PURSUANT TO
{¶ 16} Assignment of Error No. 2:
{¶ 17} THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN GRANTING SUMMARY JUDGMENT IN FAVOR OF [RESPONDENTS] AND IN DENYING PARTIAL SUMMARY JUDGMENT IN FAVOR OF [RELATOR] WITH RESPECT TO THE CLAIM
{¶ 18} In her first and second assignments of error, Relator argues that the trial court erred in granting summary judgment in favor of Tetrault and, separately, the Township Respondents as to both causes of action in the amended complaint.
{¶ 19} This court reviews a trial court‘s decision on summary judgment under a de novo standard of review. State ex rel. Doe v. Register, 12th Dist. No. CA2008-08-081, 2009-Ohio-2448, ¶ 20. Summary judgment is proper when: (1) there is no genuine issue of material fact; (2) the moving party is entitled to judgment as a matter of law; and (3) reasonable minds can only come to a conclusion adverse to the party against whom the motion is made, construing the evidence most strongly in that party‘s favor.
{¶ 20} Relator makes three arguments as to why the trial court‘s granting of summary judgment was improper: (1) the trial court improperly determined that Tetrault was not a “person responsible” under
{¶ 21} We shall first address the trial court‘s granting of summary judgment on Relator‘s mandamus claim. It is settled that Relator, to secure a writ of mandamus, must demonstrate (1) a clear legal right to the relief prayed for; (2) that Respondents are under a clear duty to perform the acts; and (3) that Relator has no plain and adequate remedy in the ordinary course of law. State ex rel. Cincinnati Post v. Schweikert, 38 Ohio St.3d 170, 172 (1988). However, where the allegations relate solely to a public records request, the Ohio Supreme Court has held that “[t]he requirement of the lack of an adequate legal remedy, as an element of a petition for writ of mandamus, does not apply to public-records cases to compel compliance with the Public Records Act.” State ex rel. Glasgow v. Jones, 119 Ohio St.3d 391, 2008-Ohio-4788, ¶ 12.
{¶ 22} Relator argues that Tetrault and, separately, the Township Respondents, violated
{¶ 23}
{¶ 25} Only “public offices” and those “persons responsible” for public records have a duty to disclose public records under the Public Records Act.
{¶ 26} Thus, one who is not a “particular official” imposed with a duty to oversee records is not a “person responsible” for those records. In this case, Tetrault was an employee of Pierce Township and, therefore, a “public official” pursuant to
{¶ 27} We shall next turn to the application of
{¶ 28} First, Relator argues that the Township Respondents failed to produce the scrap paper and any other documents Tetrault used in generating his quarterly Summary Reports through Basecamp. However, Relator fails to establish that any of these documents were in the possession or control of the Township Respondents. Rather, the evidence clearly shows that Tetrault created his Summary Reports through Basecamp with the assistance of the scrap paper, which he then discarded or recycled. There is no evidence that the Township Respondents ever received, or were aware of, the scrap paper or any other documents. As there “can be no clear legal duty on one to furnish records which are not in his possession or control,” reasonable minds could only conclude in the Township Respondents’ favor. State ex rel. Bradley v. Shannon, 24 Ohio St.2d 115, 116 (1970).
{¶ 29} Second, Relator argues that the Township Respondents violated
{¶ 30} Finally, Relator argues that the records were not produced by the Township Respondents within a reasonable amount of time as required by
{¶ 31} For the foregoing reasons, we find that no genuine issues of material fact exist, Respondents are entitled to judgment as a matter of law, and reasonable minds could only conclude in favor of Respondents as to Relator‘s cause of action pursuant to
R.C. 149.351 – Prohibiting Destruction or Damage of Records
{¶ 32} We shall next address Relator‘s contention that Tetrault, in his capacity as a Pierce Township employee, violated
{¶ 33}
{¶ 34} Relator contends that Tetrault violated
1. Scrap Paper
{¶ 35} The issue is whether the scrap paper used by Tetrault to track his daily hours constitute “records” within the meaning of the Public Records Act.
any document, device, or item, regardless of physical form or characteristic, including an electronic record * * * created or received by or coming under the jurisdiction of any public office of the state or its political subdivisions, which serves to document the organization, functions, policies, decisions, procedures, operations, or other activities of the office.
{¶ 36} The trial court found that the scrap paper did not serve to document the organization, functions, policies, decisions, procedures, operations, or other activities of the office of Pierce Township and, therefore, were not records. We agree.
{¶ 37} While Tetrault was an employee of Pierce Township, he was considered a public official.
{¶ 39} As Tetrault did not violate
2. The Township Laptop Hard drive
{¶ 40} The is whether Tetrault failed to copy all of the files from the Township Laptop‘s hard drive to the external hard drive and, therefore, erased records in contravention of
{¶ 41} Just as with the scrap paper, we do not find that the Hours Document constituted a “record.” The Hours Document contains various time entries from July 1 to July 25. However, the document does not specify a year to which this information applies; it is just a listing of numbers with some unspecified dates. There is no evidence that the Hours Document was used by Tetrault as a time sheet or even used to input time onto Basecamp. In fact, Tetrault testified that he did not know what the document was or to what time period it referred. In addition, no evidence was presented that the Hours Document was provided to the Township Respondents as a time sheet. Thus, there is no evidence that the Hours Document was used to document the organization, functions, policies, decisions, procedures, operations, or other activities of Pierce Township. Therefore, the Hours Document does not constitute a “record” within the meaning of
{¶ 42} As the Hours Document is the only document that Relator argues was not produced on the flash drive, Relator‘s claim that Tetrault and, through him, the Township Respondents, violated
3. Aggrieved Party Status
[She] must have requested public records, the public office must have been obligated to honor that request, * * *, the office must have disposed of the public records in violation of
R.C. 149.351(A) , and [the relator] must be aggrieved by the improper disposal.
{¶ 44} Rhodes v. New Philadelphia, 129 Ohio St.3d 204, 2011-Ohio-3279, ¶ 16. Here, Relator satisfies the first two prongs of the test, as she made a public records request and Pierce Township was obligated to honor that request. However, Relator fails to obtain aggrieved party status because Pierce Township did not dispose of any pertinent public record in violation of
{¶ 45} Based upon the foregoing, we find that the trial court did not err in granting summary judgment to Respondents on Relator‘s claims pursuant to
{¶ 46} Assignment of Error No. 3:
{¶ 47} THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN IMPLICITLY OVERRULING [RELATOR‘S] OPPORTUNITY TO OBTAIN DISCOVERY FROM AN OUT-OF-STATE WITNESS.
{¶ 49} “[A]bsent an abuse of discretion, an appellate court must affirm a trial court‘s disposition of discovery issues.” State ex rel. Doe v. Register, 12th Dist. No. CA2008-08-081, 2009-Ohio-2448, ¶ 40, quoting State ex rel. The V Cos. v. Marshall, 81 Ohio St.3d 467, 469, 1998-Ohio-329. “An abuse of discretion connotes more than a mere error of law or judgment, and instead, requires that the court‘s attitude was unreasonable, arbitrary, or unconscionable.” Id., citing Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983).
{¶ 50} “[W]hen a trial court fails to rule on a pretrial motion, it may ordinarily be presumed that the court overruled it.” Id. at ¶ 42, quoting Marshall at 469. Assuming, therefore, that the trial court overruled Relator‘s motion to conduct out-of-state discovery, we find that its decision to do so was not an abuse of discretion.
{¶ 51} Relator was likely aware of the existence of Basecamp as early as May 14, 2010, when the Township Respondents produced the first 47 pages of public records. However, it is clear that Relator knew about the Basecamp website, at the latest, by January 25, 2011, when Relator received Tetrault‘s discovery responses disclosing that all of the documents related to the public records request could be found on Basecamp. Yet, Relator waited until June of 2011, six days before the trial court‘s discovery deadline, to request permission to depose a Basecamp employee.
{¶ 52} As Relator had ample time to conduct discovery after learning of the existence of Basecamp, the trial court‘s implicit overruling of the Motion for Commission for Out-of-State Discovery was not arbitrary, unreasonable, or unconscionable. Therefore, Relator‘s third and
{¶ 53} Judgment affirmed.
POWELL, P.J., and PIPER, J., concur.