State ex rel. O'shea & Associates Co. v. Cuyahoga Metropolitan Housing Authority

941 N.E.2d 807, 190 Ohio App. 3d 218
CourtOhio Court of Appeals
DecidedJuly 20, 2010
DocketNo. 93275
StatusPublished
Cited by14 cases

This text of 941 N.E.2d 807 (State ex rel. O'shea & Associates Co. v. Cuyahoga Metropolitan Housing Authority) is published on Counsel Stack Legal Research, covering Ohio Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State ex rel. O'shea & Associates Co. v. Cuyahoga Metropolitan Housing Authority, 941 N.E.2d 807, 190 Ohio App. 3d 218 (Ohio Ct. App. 2010).

Opinion

Mary Eileen Kilbane, Judge.

{¶ 1} Relator, O’Shea & Associates Company, L.P.A. (“O’Shea”), made a written public-records request to respondent, Cuyahoga Metropolitan Housing Authority (“CMHA”), under R.C. 149.43. The request stated:

I hereby request the following information:
1. Copies of all liability insurance contracts which cover any and all premises liability issues for the last 20 years for any and all buildings owned or operated by CMHA;
2. Copies of all minutes of all meetings (for the last 10 years) wherein liability insurance and/or the process, methods and sources of paying legal claims for personal injury claims against CMHA are either discussed or decided; and
3. Copies of all documents which document any and all instances of lead poisoning in the last 15 years in any dwelling owned or operated by CMHA.

{¶ 2} In journal entries and opinions dated January 11, 2010, and May 25, 2010, this court considered the various arguments of the parties and determined the merits of O’Shea’s claim for relief in mandamus to compel release of the records. In the May 25 opinion, we also granted O’Shea leave to file a motion for attorney fees.

{¶ 3} This journal entry and opinion repeats the analysis and holdings of the January 11 opinion and the May 25 opinion as well as holding that relator is entitled to all of the attorney fees requested. The court is releasing this composite journal entry and opinion now because the prior opinions were not final orders and were therefore not sent to the Supreme Court of Ohio and other electronic services. Also, this journal entry and opinion determines the sole, remaining claim in this action — O’Shea’s request for attorney fees.

{¶ 4} Initially, CMHA filed a motion to dismiss the complaint. In the January 11 opinion we did the following:

A. With respect to item 1, we sua sponte converted the motion to dismiss to a motion for summary judgment and granted the parties leave to supple[222]*222ment their filings with evidentiary material as required by Civ.R. 56. See also Civ.R. 12(B).

B. We granted the motion to dismiss with respect to item 2 in O’Shea’s request.

C. With respect to item 3, we denied the motion to dismiss, granted relator leave to file a dispositive motion and permitted respondent to file a response.

Item 1

{¶ 5} In item 1, relator requested insurance policies. In the complaint, relator avers: “Respondent will not produce all of the insurance policies for the period 2006 through the present date as requested in item number 1 of the Request * * *_» Yet attached to the complaint is correspondence from respondent’s counsel stating: “I enclose a CD which contains a complete response to your request paragraphs 1 and 2.” In its motion to dismiss, counsel for CMHA states: “With respect to the insurance policies requested from 2006 through the present, each and every single one of those documents was provided and therefore that request is moot.”

{¶ 6} In its brief in opposition to the motion to dismiss, O’Shea does not directly acknowledge or dispute CMHA’s statement that it had provided all of the insurance policies to O’Shea. O’Shea does argue, however, that CMHA imper-missibly presented facts in its motion to dismiss that were not in the pleading.

Item 2

{¶ 7} In the motion to dismiss, CMHA argues that in items 2 and 3 above, O’Shea is requesting information rather than records. With respect to item 2 (meeting minutes), we agree.

{¶ 8} The express language of item 2 clearly requests records containing certain information- — -personal-injury claims. “Relator has not cited any authority under which this court could — pursuant to R.C. 149.43 — compel a governmental unit to do research or to identify records containing selected information. That is, relator has not established that a governmental unit has the clear legal duty to seek out and retrieve those records which would contain the information of interest to the requester. Cf. State ex rel Cartmell v. Dorrian (1984), 11 Ohio St.3d 177, 179[, 11 OBR 491], 464 N.E.2d 556. Rather, it is the responsibility of the person who wishes to inspect and/or copy records to identify with reasonable clarity the records at issue.” State ex rel. Fant v. Tober (May 20, 1993), Cuyahoga App. No. 63757, 1993 WL 173743, at *1, affirmed (1993), 68 Ohio St.3d 117, 623 N.E.2d 1202. See also State ex rel. Bardivell v. Cleveland State Univ., [223]*223Cuyahoga App. No. 91077, 2008-Ohio-2819, 2008 WL 2350884, at ¶ 12, citing State ex rel. Thomas v. Ohio State Univ. (1994), 70 Ohio St.3d 1438, 638 N.E.2d 1041.

{¶ 9} Respondent highlights the distinction between requesting records and requesting information: “Indeed, if [relator] simply wants all of CMHA’s Board Minutes for the last ten years, it may request same which would be provided.” Respondent’s Reply to Brief in Opposition to Motion to Dismiss. In item 2, O’Shea has not merely requested records. He has attempted to place the responsibility for reviewing records for specific information on a public office.

{¶ 10} In State ex rel. Dillery v. Icsman (2001), 92 Ohio St.3d 312, 750 N.E.2d 156, the relator requested that the Sandusky police chief “provide copies of ‘any and all records generated, in the possession of your department, containing any reference whatsoever to Kelly Dillery.’ ” The Supreme Court held that this request was overbroad. “Because Dillery did not specify in her first request that she wanted access only to offense and incident reports, she failed in her duty to identify the records she wanted with sufficient clarity.” Id. at 314, 750 N.E.2d 156.

{¶ 11} In light of the well-established authority prohibiting the use of a request for public records to require a public office or person responsible for public records “to search for records containing selected information,” Thomas, 70 Ohio St.3d 1438, 638 N.E.2d 1041, as well as the authority that prohibits overbroad requests, we must hold that relief in mandamus is not appropriate with respect to item 2 of O’Shea’s request.

Item S

{¶ 12} In item 3, O’Shea requested “documents which document any and all instances of lead poisoning in the last 15 years in any dwelling owned or operated by CMHA.”. CMHA argues that item 3 also is an impermissible request for information and not a request for records. We disagree.

{¶ 13} A request for records “must be considered in the context of the circumstances surrounding it.” State ex rel. Morgan v. New Lexington, 112 Ohio St.3d 33, 2006-Ohio-6365, 857 N.E.2d 1208, ¶ 33. In Morgan, the relator sought “to compel a city to provide access to certain records related to an employee’s discharge from employment.” Id. at ¶ 1. The Supreme Court in Morgan

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Warchol v. Superintendent of Washington Local School Dist.
2022 Ohio 3140 (Ohio Court of Claims, 2022)
Welin v. Hamilton
2022 Ohio 2661 (Ohio Court of Claims, 2022)
Recker & Assocs. Co. v. State Dental Bd.
2019 Ohio 3268 (Ohio Court of Claims, 2019)
Axelrod v. Dept. of Commerce
2019 Ohio 1821 (Ohio Court of Claims, 2019)
Buduson v. Cleveland
2019 Ohio 963 (Ohio Court of Claims, 2019)
Chillicothe Gazette v. Chillicothe City Schools
2018 Ohio 5445 (Ohio Court of Claims, 2018)
Gupta v. Cleveland
2018 Ohio 3475 (Ohio Court of Claims, 2018)
DeCrane v. Cleveland
2018 Ohio 3651 (Ohio Court of Claims, 2018)

Cite This Page — Counsel Stack

Bluebook (online)
941 N.E.2d 807, 190 Ohio App. 3d 218, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-oshea-associates-co-v-cuyahoga-metropolitan-housing-ohioctapp-2010.