Anthony Viola, Plaintiff-Appellant, v. Ohio Attorney General‘s Office, Public Records Unit, Defendant-Appellee.
No. 21AP-126
IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT
October 28, 2021
[Cite as Viola v. Ohio Atty. Gen., Pub. Record Unit, 2021-Ohio-3828.]
SADLER, J.
(Ct. of Cl. No. 2020-507PQ); (ACCELERATED CALENDAR)
Rendered on October 28, 2021
On brief: Anthony Viola, pro se. Argued: Anthony Viola.
On brief: Dave Yost, Attorney General, Ann Yackshaw, Bridget C. Coontz, and Julie M. Pfeiffer, for appellee Attorney General of Ohio, Public Records Unit. Argued: Ann Yackshaw.
APPEAL from the Court of Claims of Ohio
SADLER, J.
{¶ 1} Plaintiff-appellant, Anthony Viola, appeals from a judgment of the Court of Claims of Ohio adopting a special master‘s report and recommendation in favor of defendant-appellee, the Ohio Attorney General‘s Office, Public Records Unit, on appellant‘s public-records dispute claim brought under
{¶ 2} On June 28, 2020,1 appellant submitted a public records request to appellee asserting Assistant Attorney General Dan Kasaris used his personal Yahoo e-mail account for official business. Appellant included what he alleged to be a copy of such an e-mail as an example and requested appellee “look into” the personal e-mail account of Kasaris and “determine whether its use violates Ohio public records laws.” (Compl., Ex. D at 1.) Appellant also asked appellee:
[T]o review that Yahoo account and searc[h] for * * * all e mails from the inception of [Kasaris‘s] employment in 2013 until the present mentioning the following key words:
- -- Task Force or Mortgage Fraud Task Force
- -- Dawn Pasela
- -- Kathryn Clover
- -- Anthony or Tony Viola
- -- Mark Bennett
- -- Mortgage Fraud
- -- Bryan Butler
- -- Matt or Matthew Fairfield
- -- Jay Milano
- -- Peter Beck
- -- Arvin Clar
(Compl., Ex. D at 1.)
{¶ 3} Appellee denied appellant‘s request for public records in July 2020. In the denial, appellee stated, “[a]s to the portion of your request seeking personal Yahoo email account records, that request is denied because it does not seek public records” and asserted that “[a]ny emails from a personal Yahoo account do not fit within [the] definition” provided in
{¶ 4} On August 18, 2020, appellant filed a complaint in the Court of Claims pursuant to
{¶ 5} The Court of Claims appointed a special master to handle the case pursuant to
{¶ 6} Appellee then filed a combined response to appellant‘s complaint, motion to strike certain submissions, and motion to dismiss. Appellee attached an affidavit of Kasaris, averring in pertinent part that he has been employed in the Attorney General‘s Office since August 12, 2013, and that his participation in prosecuting appellant occurred during his previous employment with the Cuyahoga County Prosecutor‘s office. Kasaris further averred:
11. For the most part, I use my email account with Yahoo for personal communications unrelated to [his Ohio Attorney General Office] employment.
12. On very rare occasions, I have sent to my Yahoo email account copies of emails that I received on my AGO email account. The emails that I sent from my AGO email account to my Yahoo email account were all duplicates of AGO emails. Those emails involved a criminal prosecution that was separate and unrelated to any matter involving [appellant]. Once that criminal case concluded, I deleted the duplicate emails from my Yahoo account. I also saved the emails in my AGO email account to the AGO case file for that case, which are maintained in accordance with the AGO record retention policies.
13. I have no emails related to my AGO employment on my personal Yahoo account.
14. I searched my personal email account * * * using the search terms listed in the above public records request. That search yielded no emails that relate to any case or matter involving the AGO or that relate to my AGO employment.
(Kasaris Aff. at 2-3.) Appellant submitted a memorandum in opposition to appellee‘s motion to dismiss and supporting documents.
{¶ 7} On January 29, 2021, the special master issued a report and recommendation denying appellee‘s motion to dismiss for failure to state a claim, but concluding based on the pleadings, affidavits, and documents submitted in the action that appellant had not shown appellee violated
{¶ 8} On March 11, 2021, a judge of the Court of Claims overruled appellant‘s objections and adopted the special master‘s report and recommendation in favor of appellee in the
{¶ 9} Appellant filed a timely appeal pursuant to
II. ASSIGNMENT OF ERROR
{¶ 10} Appellant submits (what he styles as) one assignment of error for our review:
Following admissions by Assistant Ohio Attorney General Daniel Kasaris he utilized his private Yahoo email account for official business, the Ohio Court of Claims erred when it failed to order the Ohio Attorney General‘s Office to search that account for emails responsive to a records request, namely emails between Kasaris and government witness Kathryn Clover. According to the United States Attorney‘s Office in Cleveland, Clover committed perjury during her testimony in criminal trials, further confirming releasing emails between Kasaris and government witness Kathryn Clover is in the interest of justice.
The Court further erred by failing to determine whether or not emails between a prosecutor and a government witness constitute official business, since they relate to criminal prosecutions, a core function of the prosecutor‘s office.
III. STANDARD OF REVIEW
{¶ 11} “When an issue presents * * * a mixed question of law and fact, a reviewing court will independently review the legal question de novo but will defer to the trial court‘s underlying factual findings, reviewing them only for clear error.” Welsh-Huggins v. Jefferson Cty. Prosecutor‘s Office, 163 Ohio St.3d 337, 2020-Ohio-5371, ¶ 37. See also Hurt v. Liberty Twp., 5th Dist. No. 17 CAI 05 0031, 2017-Ohio-7820, ¶ 32 (“We review questions of law de novo and questions of fact under an abuse of discretion standard.“).
IV. ANALYSIS
{¶ 12} Appellant‘s assignment of error collectively challenges the Court of Claims’ decision in favor of appellee on appellant‘s
{¶ 13} “Ohio‘s Public Records Act, codified at
{¶ 14} “The Public Records Act reflects the state‘s policy that ‘open government serves the public interest and our democratic system.’ ” State ex rel. Glasgow v. Jones, 119 Ohio St.3d 391, 2008-Ohio-4788, ¶ 13, quoting State ex rel. Dann v. Taft, 109 Ohio St.3d 364, 2006-Ohio-1825, ¶ 20. “Consistent with this policy, we construe
{¶ 15} Traditionally, a
{¶ 16} “While the process established for proceedings under
{¶ 17} In this case, appellant first asserts that the Court of Claims erred when it failed to order appellee to search Kasaris‘s personal Yahoo account for e-mails responsive to a records request, namely e-mails between Kasaris and Kathryn Clover, a witness for the prosecution in appellant‘s previous state and federal criminal trials. Appellee counters that appellant failed to establish by clear and convincing evidence that “records” responsive to his request exist. (Appellee‘s Brief at 12.) On the record of this case, we agree with appellee.
{¶ 18} Only the public office and official responsible for the requested records has a duty to provide copies of public records under
{¶ 19} Pursuant to
{¶ 21} Appellant has not demonstrated in this appeal that the trial court erred in this determination. First, appellant cites to Glasgow at ¶ 20-282 for the proposition that Kasaris‘s personal e-mail account must be searched for work-related e-mails between Kasaris and Clover. (Appellant‘s Brief at 4.) Glasgow does support the proposition that, in certain circumstances, e-mails sent by a public official and kept by a public office may constitute public records subject to
{¶ 22} Regardless, the test outlined in Glasgow to determine whether requested e-mail messages are “records” subject to the Public Records Act includes the requirement that the e-mails were “created or received by or coming under the jurisdiction of the state
Insofar as [the requester] claims that he has “a reasonable and good faith belief that [these] [d]ocuments do, in fact, exist, and is entitled to know what steps, if any, [the county prosecuting attorney] took to search for the * * * [d]ocuments,” his belief does not constitute sufficient evidence to establish that the documents do exist, and there is no duty under
R.C. 149.43 for respondents to detail the steps taken to search for records responsive to the requests. State ex rel. Patton v. Rhodes, 129 Ohio St.3d 182, 2011-Ohio-3093, 950 N.E.2d 965, ¶ 17, quoting State ex rel. Pipoly v. State Teachers Retirement Sys., 95 Ohio St.3d 327, 2002-Ohio-2219, 767 N.E.2d 719, ¶ 18.
Like the requestor in McCaffrey, appellant “has not established that these records exist by the requisite clear and convincing evidence” in this case. Id. As a result, appellant has not met his burden to plead and prove facts showing that he sought an “identifiable public record pursuant to
{¶ 23} Appellant next contends that releasing e-mails between Kasaris and Clover is “in the interests of justice” considering Clover committed perjury in criminal trials. (Appellant‘s Brief at 1.) However, appellant has not provided any legal authority stating the culpability of the target of a citizen‘s public records request determines whether the public records request is granted. See State v. Hubbard, 10th Dist. No. 11AP-945, 2013-Ohio-2735, ¶ 34 (“An appellant must support their assignments of error with an argument, which includes citation to legal authority.“), citing
{¶ 24} Finally, appellant contends that the Court of Claims erred by failing to determine whether “emails between a prosecutor and a government witness constitute official business, since they relate to criminal prosecutions, a core function of the prosecutor‘s office.” (Appellant‘s Brief at 1.) Appellant has also not provided an argument or legal authority specific to this contention and thus has not met his burden of demonstrating error on appeal. State v. Sims, 10th Dist. No. 14AP-1025, 2016-Ohio-4763, ¶ 11 (stating general rule that an appellant bears the burden of affirmatively demonstrating error on appeal); Hubbard at ¶ 34;
{¶ 25} Considering all of the above, we find appellant has not demonstrated that the Court of Claims erred in overruling appellant‘s objections and adopting the report and recommendation of the special master in this case.
{¶ 26} Accordingly, appellant‘s assignment of error is overruled.
V. CONCLUSION
{¶ 27} Having overruled appellant‘s assignment of error, we affirm the judgment of the Court of Claims of Ohio.
Judgment affirmed.
BROWN and MENTEL, JJ., concur.