State ex rel. Kesterson v. Kent State Univ.

123 N.E.3d 887, 2018 Ohio 5108, 156 Ohio St. 3d 13
Ohio Supreme Court·Decided December 20, 2018·No. No. 2016-0615·Published·Cited by 63 cases

Opinion

Analysis

{¶ 14} Kent State contends that it fully responded to Kesterson's February 2, 2016 request by February 25, 2016. In contrast, Kesterson asserts that Kent State did not complete its response.

Timeliness of Kent State's production of responsive records

{¶ 15} Kesterson argues that because Kent State provided additional responsive documents in October and November 2016, up to nine months after her request, it violated its statutory duty under R.C. 149.43(B) to promptly prepare and provide all responsive records "within a reasonable period of time." Indeed, "[s]tatutory damages may be awarded if the public record has not been provided promptly." State ex rel. Cincinnati Enquirer v. Deters , 148 Ohio St.3d 595, 2016-Ohio-8195, 71 N.E.3d 1076, ¶ 22 ; see also R.C. 149.43(C)(1).

{¶ 16} "Reasonable period of time" is not defined in the Public Records *892Act, but "the determination of what is 'reasonable' depends upon all the pertinent facts and circumstances." Deters at ¶ 23. Moreover, " R.C. 149.43(A) envisions an opportunity on the part of the public office to examine records prior to inspection in order to make appropriate redactions of exempt materials." State ex rel. Warren Newspapers, Inc. v. Hutson , 70 Ohio St.3d 619, 623, 640 N.E.2d 174 (1994).

{¶ 17} Kent State's production, by February 25, 2016, of over 700 pages of responsive records was not untimely under the circumstances. Kesterson requested full personnel files for five Kent State employees, in addition to all Title IX/sexual-assault training materials provided to the softball team and all student-athlete reviews of Linder from the 2010-2011 academic year until her resignation in August 2015. Kent State promptly acknowledged Kesterson's request the next day, immediately began to compile the responsive records, and provided those records to Kesterson approximately three weeks later. These actions contradict *18any claim that the university's response was untimely. See State ex rel. Shaughnessy v. Cleveland , 149 Ohio St.3d 612, 2016-Ohio-8447, 76 N.E.3d 1171, ¶¶ 11, 17 (24-day delay in producing responsive records was not unreasonable in light of steps city took to respond, including a comprehensive database search and submission of records to the law department for review and redaction).

{¶ 18} Kent State's own evidence demonstrates that it did not complete its response on February 25, 2016, as it contends; the response was not complete until November 9, 2016. The additional materials that Kent State produced in October and November 2016 also amounted to "public records" and were responsive to the second category of records in Kesterson's request. The records produced on October 28 included PowerPoint slideshow presentations provided annually to incoming students addressing issues such as consent to sexual activity, "sexual misconduct," "acts of violence," and the processes for responding to inappropriate student conduct. The slides also provide the contact information for campus police, psychological services, and the Sexual Assault Response Team. These records were provided to all incoming students, including those on the varsity softball team. And the production on November 9 included a PowerPoint slideshow presentation created by the Office of Sexual and Relationship Violence Support Services addressing consent, power-based personal violence, sexual assault, rape and related crimes, statistics of sexual assault on campuses, and what rights and resources are afforded to students (including the contact information for the university's Title IX coordinator).

{¶ 19} Kent State does not dispute that it "created" these items, all of which appear to "document the organization, functions, policies, decisions, procedures, operations, or other activities" of the university. See R.C. 149.011(G). Moreover, Kent State has not alleged that the records produced in October and November 2016 were not available in February of that year, nor has it contended that it was required to create these records. See State ex rel. Lanham v. Smith , 112 Ohio St.3d 527, 2007-Ohio-609, 861 N.E.2d 530, ¶ 15 ("Respondents have no duty to create or provide access to nonexistent records"). Kent State also concedes that it made no redactions to the documents produced in October and November 2016. See Warren Newspapers , 70 Ohio St.3d at 623, 640 N.E.2d 174. Those facts, together with its assertion that upon receiving the public-records request in February, DeCaprio contacted "relevant departments and individuals" such as *893Kent State's Human Resources Records, Human Resources Training and Development, and Athletics departments, belie Kent State's argument that it timely provided all responsive records.

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State ex rel. Kesterson v. Kent State Univ., 123 N.E.3d 887, 2018 Ohio 5108, 156 Ohio St. 3d 13 (Ohio 2018).

123 N.E.3d 887 (State ex rel. Kesterson v. Kent State Univ.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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