Graham v. Lake Cty. Jobs & Family Servs. & Child Support Enforcement Agency

2023 Ohio 4366, 230 N.E.3d 584

• Court: Ohio Court of Appeals
• Decided: December 4, 2023
• Docket: 2023-L-073
• Status: Published

Opinion

[Cite as Graham v. Lake Cty. Jobs & Family Servs. & Child Support Enforcement Agency, 2023-Ohio-4366.]

IN THE COURT OF APPEALS OF OHIO ELEVENTH APPELLATE DISTRICT LAKE COUNTY

DANIEL GRAHAM, CASE NO. 2023-L-073

Requester-Appellee, Administrative Appeal from the - vs - Court of Claims of Ohio

LAKE COUNTY JFS/CESA, Trial Court No. 2023-00048 PQ Respondent-Appellant.

OPINION

Decided: December 4, 2023 Judgment: Affirmed

Daniel Graham, pro se, 19256 Knowlton Parkway, Suite 205, Strongsville, OH 44149 (Requester-Appellee).

Charles E. Coulson, Lake County Prosecutor, and Kelly A. Echols, Assistant Prosecutor, Lake County Administration Building, 105 Main Street, P.O. Box 490, Painesville, OH 44077 (For Respondent-Appellant).

JOHN J. EKLUND, P.J.

{¶1} Appellant, Lake County Jobs and Family Services/Child Support

Enforcement Agency, appeals the judgment of the Court of Claims of Ohio ordering

appellant to produce certain records to appellee, Daniel Graham, as public records and

to pay appellee’s Court of Claims $25 filing fee.

{¶2} Appellant has raised two assignments of error arguing the trial court erred

by finding the requested documents were public records and that OAC 5101:12-1-

20.1(C)(2)(a)(i) sets forth an exception to non-disclosure. {¶3} Having reviewed the record and the applicable caselaw, we find appellant’s

assignments of error to be without merit. Appellee has demonstrated entitlement to the

requested records by clear and convincing evidence as OAC 5101:12-1-20.1(C)(2)(a)(i)

provides for the production of information about a non-custodial parent when the request

is directly connected to the support enforcement program.

{¶4} Therefore, we affirm the judgment of the Court of Claims of Ohio.

Substantive and Procedural History

{¶5} Appellant garnished funds from appellee’s bank account on December 2,

2022. On December 25, 2022, appellee submitted a complaint to appellant through a

web portal seeking the name of the JFS worker and supervisor that initiated the

garnishment as well as appellant’s public records policy for employee files to facilitate in

filing a complaint with a Lake County Commissioner.

{¶6} On December 27, 2022, the next business day, appellant, through

employee Amanda Hazel, responded through the portal system that a notice of the

garnishment had been mailed to appellee. However, the response did not address

appellee’s records requests. Appellee restated his requests from December 25 while also

asking to contact a supervisor. He indicated that failure to do so would result in him filing

further complaints and a claim in the Court of Claims. Appellant then provided the contact

information for supervisor Rebecca St. Julian.

{¶7} Hazel and St. Julian exchanged a series of emails about records responsive

to appellee’s requests, county practices, and discussed forwarding the issue to a higher-

level supervisor.

Case No. 2023-L-073 {¶8} On January 6, 2023, relevant to this appeal, appellee submitted a public

records request for “all emails concerning me, Daniel A. Graham, between Amanda Hazel

and any other public official between 12/25/2022 and 1/6/2023.” Appellant responded

through David Hackman of the Lake County Prosecutor’s Office on January 20, 2023.

Hackman said that “while there were several chains of emails concerning you between

the caseworker, Ms. Hazel, Ms. St. Julian, Administrator Baibak, and myself, such emails

were generated as the result of your reasonable inquiries, with which I am regularly

consulted as counsel to the agency. These emails are not a public record, as they are

merely informal communications that do not serve to document the organization,

functions, policies, decisions, procedures, operations, or other activities of the Lake

County Child Support Enforcement Agency. See R.C. 149.011.”

{¶9} On January 23, 2023, appellant filed a complaint in the Court of Claims

pursuant to R.C. 2743.75(D) stating that appellant denied him access, in violation of R.C.

149.43, to “correspondence from JFS worker Hazel to any other public official that

concerned me.”

{¶10} Appellant argued that the requested emails were not “records” as defined

in R.C. 149.011, that some emails were not public records because they were subject to

attorney client privilege, and all were exempt from disclosure as confidential child support

enforcement case records under OAC 5101:12-1-20(G) and (H).

{¶11} On April 11, 2023, the Special Master issued a Report and

Recommendation, finding that the requested emails were “records” within the meaning of

R.C. 149.43(A)(1) because the emails were documents created or received by a public

office which documented the policies, decisions, and operations of the public office. Next,

Case No. 2023-L-073 the Special Master concluded that appellant had demonstrated that some of the emails

were exempt from disclosure due to attorney client privilege, however, the majority of the

requested emails were not exempt and appellant had not argued the balance of the

documents were similarly privileged. Finally, the Special Master determined that, based

on the circumstances of this case, OAC 5101:12-1-15(C)(2)(a)(i) allowed the release of

information in appellee’s child support enforcement agency case record because

appellee, is a non-custodial parent who owed child support and his request sought

records about himself which directly related to the support enforcement program.

{¶12} Appellant timely objected to the Special Master’s recommendation arguing

that the Special Master erred in determining the emails were public records and erred in

concluding OAC 5101:12-1-15(C)(2)(a)(i) exempted the emails from confidentiality. The

trial court addressed appellant’s objections finding that the emails were public records

and that under the circumstances of appellee’s case, the emails were subject to

disclosure. The trial court addressed appellant’s concern that its conclusion would allow

“anyone to request and receive any child support enforcement records relating to a non-

custodial parent.” The court said that “OAC 5101:12-1-15(C)(2)(a)(i) only permits

disclosure of information that pertains to the support order and information that pertains

to the non-custodial parent or the attorney of the non-custodial parent” where the

information is “requested for a purpose related to the support enforcement program.” The

court concluded that appellant had not demonstrated any exemption to disclosure

applied. Therefore, the Court of Claims ordered appellant “to produce to Requester the

records copied at pp. 21-25, Bates 18-22 of Respondents Sealed Submissions, filed

Case No. 2023-L-073 March 15, 2023” and to pay appellee’s $25 filing fee and any other costs associated with

the action.

{¶13} Appellant timely appealed raising two assignments of error. Appellee did

not file an answer brief.

Assignments of Error and Analysis

{¶14} Appellant’s assignments of error state:

{¶15} “[1.] The trial court committed prejudicial error in adopting the Special

Master’s Report and Recommendation finding that the disputed emails are public

records.”

{¶16} “[2.] The trial court committed prejudicial error in adopting the Special

Master’s Report and Recommendation, finding that OAC 5101:12-1-20.1(C)(2)(a)(i)

applies to the disputed emails.”

{¶17} Appellee filed his complaint pursuant to R.C. 2743.75, which provides an

alternative statutory procedure to a mandamus action to resolve disputes over public

records requests. R.C. 2743.75(A) provides in pertinent part:

In order to provide for an expeditious and economical procedure that attempts to resolve disputes alleging a denial of access to public records in violation of division (B) of section 149.43 of the Revised Code, except for a court that hears a mandamus action pursuant to that section, the court of claims shall be the sole and exclusive authority in this state that adjudicates or resolves complaints based on alleged violations of that section.

{¶18} Ohio’s Public Records Act provides that upon request, a public office “shall

make copies of the requested public record available to the requester at cost and within

a reasonable period of time.” R.C. 149.43(B)(1). Courts are to construe the Public

Records Act liberally in favor of broad access and are to resolve doubts in favor of

Case No. 2023-L-073 disclosure of the public records. State ex rel. McCaffrey v. Mahoning Cty. Prosecutor's

Office, 133 Ohio St.3d 139, 2012-Ohio-4246, 976 N.E.2d 877, ¶ 16.

{¶19} The requester must still establish entitlement to the requested records by

clear and convincing evidence. Welsh-Huggins v. Jefferson Cty. Prosecutor's Office, 163

Ohio St.3d 337, 2020-Ohio-5371, 170 N.E.3d 768, ¶ 26, 34. If the public office withholds

a record on the basis of a statutory exception, the “burden of production” is on the public

office to plead and prove facts clearly establishing the applicability of the exemption. Id.

at ¶ 27. Nevertheless, the “burden of persuasion” at all times remains on the requester

to prove a right to relief under R.C. 2743.75 by the requisite quantum of evidence. Id. at

¶ 34. A case brought under R.C. 2743.75 is to be governed under standards “consistent

with the standards that are applicable to mandamus-enforcement actions.” Id. at ¶ 32.

{¶20} Clear and convincing evidence “‘is a measure or degree of proof that is

more than a preponderance of the evidence, but not to the extent of such certainty as

proof beyond a reasonable doubt, which is the requisite burden of proof in a criminal case,

and that will produce in the trier of fact's mind a firm belief as to the fact sought to be

established.’” State ex rel. Griffin v. Doe, 165 Ohio St.3d 577, 2021-Ohio-3626, ¶ 5,

quoting State ex rel. Miller v. Ohio State Hwy. Patrol, 136 Ohio St.3d 350, 2013-Ohio-

3720, ¶ 14.

{¶21} Whether a record is exempt from disclosure is a question of law, although

the application of the statutory exemption necessarily depends on a factual application of

the record. Welsh-Huggins at ¶ 37. When presented with a mixed question of fact and

law, a reviewing court independently reviews the legal question de novo but will defer to

the trial court’s underlying factual findings, reviewing them only for clear error. Id.

Case No. 2023-L-073 {¶22} Appellant argues that the requested emails are not “public records” because

they are child support enforcement case records, the “release of which is prohibited by

state or federal law. R.C. 149.43(A)(1)(v).” Appellant asserts that OAC 5101:12-1-20(G)

and (H) prohibit the disclosure of information contained in a child support case record.

Anyone who discloses such information is subject to a fine and incarceration. OAC

5101:12-1-20(J). Appellant argues that under OAC 5101:12-10-06(B), the requested

records qualify as child support enforcement agency case records because the emails

constitute any information pertaining to a case record including: “[a] record of the date of,

reason for, and results of any contacts with any individual in the case;” “[a] narrative that

chronologically traces support enforcement program activities;” and “[a] record of any

actions taken to establish * * * support obligations and to enforce or modify support

obligations, including the dates and results of such actions, when applicable.”

{¶23} Under R.C. 149.43(A) a “‘public record’ means records kept by any public

office * * *.” R.C. 149.011(G) defines “records” as:

any document, device, or item, regardless of physical form or characteristic, including an electronic record as defined in section 1306.01 of the Revised Code, 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.

R.C. 149.011(A) defines “public office” to include “any state agency, public institution,

political subdivision, or other organized body, office, agency, institution, or entity

established by the laws of this state for the exercise of any function of government.”

Case No. 2023-L-073 {¶24} “Unless otherwise exempted or excepted, almost all documents

memorializing the activities of a public office can satisfy the definition of ‘record.’” Kish v.

Akron, 109 Ohio St.3d 162, 2006-Ohio-1244, 846 N.E.2d 811, ¶ 20.

{¶25} Here, the requested emails are public records within the meaning of R.C.

149.43 because they are “documents * * * regardless of physical form or characteristic,

including an electronic record.” The documents were “created or received by” Lake

County JFS/CSEA, which is a public office. State ex rel. Wilson-Simmons v. Lake Cty.

Sheriff's Dept., 82 Ohio St.3d 37, 42, 693 N.E.2d 789 (1998). Finally, the requested

emails addressed appellee’s questions, complaints, and requests. The emails

documented the internal decision making in the office, discussed office and county policy,

and demonstrated the functioning and organization of the office in executing those

decisions. Thus, the requested documents are “public records.”

{¶26} Appellant argues that the requested documents are otherwise excepted.

He cites Walsh v. Ohio Dept. of Health, 10th Dist. No. 21AP-109, 2022-Ohio-272, 183

N.E.3d 1281, to support its argument. In Walsh, the Tenth District Court of Appeals held

that records relating to decedents’ cause of death were not a public record under R.C.

149.43(A)(1)(v) because the information constituted protected health information under

R.C. 3701.17. R.C. 3701.17 bars the release of protected health information “without the

written consent of the individual who is the subject of the information” or under

circumstances set forth under R.C. 3701.17(B). Id. at ¶ 13.

{¶27} Appellant argues that the records appellee requested were similarly barred

from release under OAC 5101:12-1-20. However, Walsh acknowledged that protected

health information could be released under certain circumstances. The same is true here

Case No. 2023-L-073 of child support enforcement case records. OAC 5101:12-1-20 (H) prohibits the

disclosure of child support enforcement case records “except for an authorized purpose

in accordance with this rule and its supplemental rules.”

{¶28} OAC 5101:12-1-20.1(C)(2)(a)(i) provides:

(C) The CSEA, OCS, or a contractor shall disclose information that the CSEA, OCS, or contractor obtains from a source other than the state or federal PLS upon the request of an individual or entity in the following manner:

(2) Request for information about a non-custodial parent or attorney of a non-custodial parent.

(a) The CSEA, OCS, or contractor may disclose information about a non-custodial parent or attorney of a non-custodial parent when the request is for a purpose directly connected to any of the following:

(i) The support enforcement program.

OAC 5101:12-1-20.1(C)(2)(c) sets forth a list of restrictions on information disclosure.

{¶29} OAC 5101:12-1-20(H) states that there are exceptions to non-disclosure

that are permitted “for an authorized purpose in accordance with this rule and its

supplemental rules.” OAC 5101:12-1-20.1(C)(2)(a)(i) sets forth such an exception to non-

disclosure. Under that rule, a Child Support Enforcement Agency “shall disclose

information” obtained from a source “upon the request of an individual” when the

individual requests “information about a non-custodial parent” and when the purpose of

the request is “directly connected to the support enforcement program.” OAC 5101:12-

1-20.1(C)(2)(a)(i).

{¶30} Here, appellee is a non-custodial parent who owed child support. His

request sought records about himself which directly related to the support enforcement

Case No. 2023-L-073 program because his request related to his dissatisfaction with how his garnishment was

implemented and how his inquiries about it were handled. Therefore, he satisfies the

exception provided under OAC 5101:12-1-20.1(C)(2)(a)(i).

{¶31} Finally, appellant has not asserted that any of the restrictions on information

disclosure set forth in OAC 5101:12-1-20.1(C)(2)(c) apply under these circumstances. As

appellant withheld the requested records on the basis of a statutory exception, appellant

bears the burden of production to prove facts clearly establishing the applicability of the

exemption. Welsh-Huggins, 163 Ohio St.3d 337, 2020-Ohio-5371, 170 N.E.3d 768, ¶ 27.

{¶32} OAC 5101:12-1-20(H) provides that otherwise confidential child support

enforcement case records may not be disclosed except for an authorized purpose set

forth in the Administrative Code. OAC 5101:12-1-20.1(C)(2)(a)(i) sets forth an exception

to non-disclosure that appellee has satisfied in this case and appellant has failed to

demonstrate that any restriction to that rule applies. Accordingly, appellant’s assignments

of error are without merit.

{¶33} For the foregoing reasons, the judgment of the Court of Claims of Ohio is

affirmed.

MARY JANE TRAPP, J.,

ROBERT J. PATTON, J.,

concur.

Case No. 2023-L-073