[Cite as State ex rel. Todd v. Canfield, 2014-Ohio-569.] STATE OF OHIO, MAHONING COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
STATE ex rel. EDWARD TODD ) CASE NO. 11 MA 209 ) PLAINTIFF-APPELLANT ) ) VS. ) OPINION ) THE CITY OF CANFIELD, et al. ) ) DEFENDANTS-APPELLEES )
CHARACTER OF PROCEEDINGS: Civil Appeal from the Court of Common Pleas of Mahoning County, Ohio Case No. 09 CV 2107
JUDGMENT: Affirmed. Mandamus and Forfeiture Dismissed.
APPEARANCES: For Plaintiff-Appellant: Atty. William E. Walker P.O. Box 192 Massillon, Ohio 44648-0192
Atty. R. Paul Cushion, II 75 Public Square, Suite 1111 Cleveland, Ohio 44113-2083
For Defendants-Appellees: Atty. John T. Mclandrich Frank H. Scialdone Mazanec, Raskin & Ryder Co., L.P.A 100 Franklin's Row 34305 Solon Road Cleveland, Ohio 44139
JUDGES: Hon. Cheryl L. Waite Hon. Joseph J. Vukovich Hon. Mary DeGenaro Dated: February 14, 2014 [Cite as State ex rel. Todd v. Canfield, 2014-Ohio-569.] WAITE, J.
{¶1} Appellant Edward Todd appeals the decision of the Mahoning County
Common Pleas Court to deny his mandamus action. Appellant sought the production
of all reel-to-reel tapes recorded by Appellee, the City of Canfield Police Department,
during the period when reel-to-reel tape was used by the department. The
department denied Appellant’s original records request due to the fact that this
system had not been in use since the 1980s and the tapes had since been
destroyed. The denial spurred suit by Appellant.
{¶2} On appeal, Appellant contends that Appellee should have been barred
from arguing that his request was overbroad because Appellee did not raise
overbreadth as an affirmative defense. Appellant also argues that the trial court
erred in concluding that the request was overbroad as a matter of law without an
evidentiary hearing when he claims that his complaint contained sufficient facts that
would entitle him to relief. Based on the record before us, Appellant’s four
assignments of error are without merit and are overruled. The judgment of the trial
court is affirmed.
Factual and Procedural History
{¶3} Appellant initiated the underlying mandamus and forfeiture action on
June 5, 2009 in response to the Canfield Police Department’s failure to respond to
his requests for records retention schedules, certificates of records disposal, and
applications for the disposal of obsolete records. In addition to seeking a response to
and production of the records related to retention policy and disposal protocols,
Appellant also sought performance of his previously denied request for copies of all -2-
reel-to-reel tape recordings made by the department when the reel-to-reel system
was in use. In the alternative, Appellant sought civil forfeiture, attorney fees, and
costs pursuant to R.C. 149.351(B)(2) for the destruction of the records. Appellant’s
mandamus action was filed in the Mahoning County Common Pleas Court.
{¶4} Appellant filed a first set of requests for admission simultaneously with
his complaint. Appellee and Appellant agreed to various extensions of time for
discovery responses, until Appellee’s answer and response to requests for admission
were filed on or about September 9, 2009.
{¶5} On February 17, 2010, before any trial date or deadlines for dispositive
motions had been scheduled, and while the parties were still engaged in discovery,
Appellee filed a motion for leave to file an amended answer instanter. Appellee’s
amended answer included a jury demand and affirmative defenses that were not
included in the original answer. Appellant opposed Appellee’s motion for leave to
amend and sought to strike the jury demand. The trial court granted Appellee’s
motion for leave instanter and denied Appellant’s motion in opposition.
{¶6} In October of 2010 the matter was stayed, at the request of the parties,
pending the Ohio Supreme Court’s ruling in Rhodes v. City of New Philadelphia, 129
Ohio St.3d 304, 2011-Ohio-1347. When the stay was lifted in July of 2011, Appellee
filed a motion for judgment on the pleadings. Appellant filed a motion for summary
judgment and sought additional time to respond to Appellee’s motion for judgment on
the pleadings. Appellee opposed Appellant’s motion for additional time and filed a
cross-motion for summary judgment. -3-
{¶7} The trial court denied Appellant’s motion for additional time to respond
to Appellee’s motion for judgment on the pleadings, and set this motion for hearing.
The trial court granted Appellee’s motion for judgment on the pleadings. Appellant
filed a timely appeal.
Argument and Law
ASSIGNMENT OF ERROR NO. 1
The trial court erred to Todd’s prejudice when it permitted Appellees to
assert an affirmative defense that they had waived under the civil rules
by not raising it in the pleadings.
ASSIGNMENT OF ERROR NO. 2
The trial court erred to Todd’s prejudice when it found that Todd’s public
records request was overly broad as a matter of law without considering
the context of the circumstances surrounding it.
ASSIGNMENT OF ERROR NO. 3
The trial court erred to Todd’s prejudice when it dismissed his
mandamus petition without an evidentiary hearing after Todd
established a prima facie case entitling him to mandamus relief.
ASSIGNMENT OF ERROR NO. 4
The trial court erred to Todd’s prejudice when it dismissed Todd’s
petition even though Todd pled sufficient facts that if true would have
entitled him to relief. -4-
{¶8} Appellant appeals the trial court’s decision to dismiss his mandamus
action pursuant to Civ.R. 12(C). Because Appellant’s four assignments of error all
address aspects of the Civ.R.12(C) decision to dismiss, and a finding that the
decision was proper will resolve all issues on appeal, the assignments will be
considered together.
{¶9} The instant action was filed by Appellant pursuant to R.C. 149.43(B),
which provides:
(1) Upon request * * * all public records responsive to the request shall
be promptly prepared and made available for inspection to any person
at all reasonable times during regular business hours. * * * [U]pon
request, a public office or person responsible for public records shall
make copies of the requested public record available at cost and within
a reasonable period of time. If a public record contains information that
is exempt from the duty to permit public inspection or to copy the public
record, the public office or the person responsible for the public record
shall make available all of the information within the public record that is
not exempt. * * *
***
(3) If a request is ultimately denied, in part or in whole, the public office
or the person responsible for the requested public record shall provide
the requester with an explanation, including legal authority, setting forth
why the request was denied. If the initial request was provided in -5-
writing, the explanation also shall be provided to the requester in
writing. The explanation shall not preclude the public office or the
person responsible for the requested public record from relying upon
additional reasons or legal authority in defending an action commenced
under division (C) of this section.
Appellant’s public record request was made in writing, in a letter dated January 11,
2009. Appellant directed his request to the Canfield Police Department as follows:
I understand that your department used a reel-to-reel audio recording
device similar to a “Dictaphone” style system. And, that this system
recorded telephone calls and radio traffic on both a primary and back-
up set of 24 hour reel-to-reel tapes. [sic] I also understand that these
tapes were routinely changed at midnight. With these facts in mind, I
am hereby making a public records request for the following:
Reel-to-Reel Tapes: I am requesting access to your departments [sic]
collection of the above described reel-to-reel tapes. This request
specifically includes both the primary and the back-up tapes that your
department used over the years during the time that such a tape
recording system was used.
(Complaint, Exh. A.) The department’s timely written response to Appellant’s request
was made on January 16, 2009:
The Reel to Reel tapes you inquired about reviewing for a response
time survey are not available. Canfield Police Department has not used -6-
this type of system since the 1980’s [sic] and the tapes have been
disposed of according to Ohio public records laws and procedures.
(Complaint, Exh. C.) Appellant responded to this denial of his public records request
by making a second request seeking the disposal protocols and disposal records
relevant to the destruction of the recordings. The department did not respond to
Appellant’s second request.
{¶10} “After the pleadings are closed but within such time as not to delay the
trial, any party may move for judgment on the pleadings.” Civ.R. 12(C). A Civ.R.
12(C) motion is specifically limited to resolving questions of law. Case Western
Reserve Univ. v. Friedman, 33 Ohio App.3d 347, 348, 515 N.E.2d 1004 (1986). The
Supreme Court of Ohio has held that this type of dismissal is appropriate only when
“a court (1) construes the material allegations in the complaint, with all reasonable
inferences to be drawn therefrom, in favor of the nonmoving party as true, and (2)
finds beyond doubt, that the plaintiff could prove no set of facts in support of his claim
that would entitle him to relief.” State ex rel. Midwest Pride IV, Inc. v. Pontious, 75
Ohio St.3d 565, 570, 664 N.E.2d 931 (1996).
{¶11} A judgment on the pleadings is improper if the plaintiff has raised a
reasonable inference that might entitle him to relief. Flanagan v. Williams, 87 Ohio
App.3d 768, 772, 623 N.E.2d 185 (1993). When considering a motion under Civ.R.
12(C), the trial court can consider only the face of the pleadings; the motion cannot
be supported by facts outside the pleadings. Epperly v. Medina City Bd. of Edn., 64
Ohio App.3d 74, 580 N.E.2d 807 (1989), citing Conant v. Johnson, 1 Ohio App.2d
133, 204 N.E.2d 100 (1964). Further, appellate review of a Civ.R. 12(C) motion is de -7-
novo, and a reviewing court will reverse a judgment on the pleadings if the plaintiffs
can prove a set of facts that would entitle them to relief. Flanagan, supra.
{¶12} As a preliminary matter, Appellant contends that the trial court erred in
allowing Appellee to raise an affirmative defense not found in its answer in support of
its motion for judgment on the pleadings. Appellant is mistaken. Appellant does not
offer any legal basis for his contention that Appellee must assert “overbroad and
therefore unenforceable” as an affirmative defense. Compare State ex rel. Davila v.
E. Liverpool, 7th Dist. No. 10 CO 16, 2011-Ohio-1347, ¶30.
{¶13} As Appellee notes, legal defects in a party’s prayer for relief are not
among the affirmative defenses listed in Civ.R. 8(C). The rule does include a catch
all provision, which requires that “any other matter constituting an avoidance or
affirmative defense” be included in the pleading or incorporated as an amendment to
the pleading. Civ.R. 8(C). The Ohio Supreme Court describes an affirmative
defense as one which “assumes establishment of a prima facie case,” Gallagher v.
Cleveland Browns Football Co., 74 Ohio St.3d 427, 432, 659 N.E.2d 1232 (1996), fn.
3. An assertion that “directly attacks” an element of a prima facie case, “rather than
accepting the allegations of the complaint as true” is “not an affirmative defense.” Id.
“‘An affirmative defense is any defensive matter in the nature of a confession and
avoidance. It admits that the plaintiff has a claim (the “confession”) but asserts some
legal reason why the plaintiff cannot have any recovery on that claim (the
“avoidance”).’”) (Internal citation omitted). State ex rel. The Plain Dealer Pub. Co. v.
Cleveland, 75 Ohio St.3d 31, 33, 661 N.E.2d 182 (1996). -8-
{¶14} The assertion that a public records request is overly broad and
unenforceable is not an affirmative defense because it directly attacks an element of
Appellant’s prima facie case and does not assume or confess the elements of the
mandamus action. To establish a prima facie case for mandamus or forfeiture,
Appellant’s claims must be based on a valid records request. Raising a defect in the
underlying request is clearly not a confession of the elements of mandamus. Instead,
such a challenge directly addresses a necessary element of the prima facie claim.
The trial court did not err by allowing Appellee to argue that Appellant’s request was
overly broad and unenforceable because this legal assertion is not governed by
Civ.R. 8.
{¶15} In concluding that Appellant’s request is overly broad and
unenforceable the trial court determined that Appellant had not satisfied his burden to
establish a prima facie case justifying relief and was not subject to waiver under
Civ.R. 12. Having concluded that Appellee did not waive the enforceability issue, the
remaining question is whether the trial court’s legal conclusion that the request is
overbroad and unenforceable was error.
{¶16} The trial court’s decision dismissing Appellant’s complaint explicitly
relied on our decision in State ex rel. Davila, supra, and the Ohio Supreme Court’s
decision in Rhodes, supra. In Davila we evaluated a decision of the Columbiana
County Common Pleas Court finding that an identically worded public records
request was overly broad and unenforceable. The appellant in Davila sought all reel-
to-reel tapes used by the East Liverpool Police Department “during the time that such
a tape recording system was used” because he was “conducting a survey concerning -9-
the trends of response times for Ohio’s safety forces over the years.” Davila, supra,
¶3. This request contained the exact language used by Appellant. In Davila, unlike
the matter at bar, the department did not respond to the initial request or to the
subsequent request for record retention policies (which is again identical to the
request filed by Appellant), because the tapes were no longer in use and had been
destroyed. Despite the department’s failure to respond to the initial request and the
fact that the department did not raise overbreadth as a defense or in an argument in
support of its cross-motion for summary judgment, we affirmed the trial court’s sua
sponte decision that the request was overbroad and unenforceable as a matter of
law. Appellant does not address Davila in his brief, instead focusing on O’Shea &
Assocs. Co. L.P.A. v. Cuyahoga Metro. Housing Auth., 131 Ohio St.3d 149, 2012-
Ohio-115, 962 N.E.2d 297.
{¶17} Appellant is mistaken in his reliance on O’Shea and on State ex rel.
Morgan v. New Lexington, 112 Ohio St.3d 33, 2006-Ohio-6365, 857 N.E.2d 1208. In
both O’Shea and Morgan, the Ohio Supreme Court evaluated a public entity’s
contention that records requests were unenforceable because they were directed at
general types of information rather than specific records. In both decisions, the
Supreme Court granted the records requests only after subsequent clarifications of
the requests to include listing the specific records sought and the actual time periods
covered by the requests. The appellants in those cases never properly requested
records at all, however, the subsequent clarifications of their requests changed their
improper requests into appropriate records requests that resulted in the production of
records. -10-
{¶18} These facts do not in any way correspond to the request found in the
case at bar. In this matter, Appellant did seek specific records as opposed to
generalized categories of information. He sought production of certain tapes. His
request, however, was for all records made during an unspecified period of time that
was clearly vast in scope, encompassing entire days over a number of years. It is
equally apparent that Appellant would be aware that the documents sought would no
longer be in existence.
{¶19} In addition to Appellant’s misplaced reliance on O’Shea and Morgan,
Appellant also relies on responses to requests for admission or affidavits. However,
that material is outside the record and irrelevant in our review of the trial court’s
decision to grant relief under Civ.R. 12(C). Epperly v. Medina City Bd. of Edn., supra.
Appellant completely ignores the relevant context provided by the trial court and by
Appellee, and ignores the law found in Rhodes and Davila, which dealt with identical
requests filed in this state and which have as their only apparent purpose the
explanation of the statutory damages provision of R.C. 149.43.
{¶20} In Davila, we determined that a request for identifiable records may
nevertheless be “so voluminous that it is overbroad and unenforceable.” Id. at ¶29.
We adopted the reasoning of the Ohio Supreme Court in State ex rel. Glasgow v.
Jones, 119 Ohio St.3d 391, 2008-Ohio-4788, 894 N.E.2d 686, where that Court
rejected a request for all email messages, text messages, and written
correspondence sent and received by a public official from the time he took office
until the date of the request, stating: -11-
It is the responsibility of the person who wishes to inspect and/or copy
records to identify with reasonable clarity the records at issue. In
identifying the records at issue, the Public Records Act “does not
contemplate that any individual has the right to a complete duplication
of voluminous files kept by government agencies.”
For example, in Zauderer, * * *, the court held that a request that a
police chief, county sheriff, and highway patrol superintendent provide
access to “all traffic reports” was improper because it was “first
unreasonable in scope and, second, if granted, would interfere with the
sanctity of the recordkeeping process itself.” And * * * we held that a
request to a police chief for ‘any and all records generated * * *
containing “any reference whatsoever to Kelly Dillery” was overbroad
and failed to identify that the relator actually wanted only offense and
incident reports referring to her. (Internal citations omitted)
Id. at ¶17-18.
{¶21} We also noted in Davila our reliance on a sister district’s opinion that a
much narrower request for production seeking all traffic reports of the Ohio State
Highway Patrol on a specific date was nevertheless unenforceably broad:
The indefiniteness of such a request renders it incapable of being acted
upon and certainly unsuitable for mandamus. Moreover, this general
request, even if it could be defined, is, first, unreasonable in scope and,
second, if granted, would interfere with the sanctity of the -12-
recordkeeping process itself. R.C. 149.43 does not contemplate that
any individual has the right to a complete duplication of the voluminous
files kept by government agencies.
State ex rel. Zauderer v. Joseph, 62 Ohio App.3d 752, 756, 577 N.E.2d 444 (1989).
More recently, the Ohio Supreme Court held that a prison inmate's request for
access to all the records of the prison quartermaster's orders for, and receipt of,
clothing and shoes for a period of over seven years was overbroad and
unenforceable. State ex rel. Dehler v. Spatny, 127 Ohio St.3d 312, 2010-Ohio-5711,
939 N.E.2d 831, ¶3.
{¶22} Again, Davila is virtually factually identical with this case. As Appellant
has failed to address Davila, he has clearly failed to provide any legal or factual
argument why this case should be readdressed and overturned. Davila remains the
law in this district and is consistent with the law statewide on this issue. The trial
court did not err in ruling that Appellant’s request was overbroad and unenforceable.
Appellant failed to establish a prima facie case that he was entitled to mandamus
relief, and has failed to assert any legal basis for a show cause hearing on the
subject. Because Appellant has not made a valid public records request, he is not
entitled to either mandamus relief or forfeiture. Appellant’s forfeiture claim is
contingent on an enforceable records request. Our affirmation of the trial court’s
finding that Appellant’s request was overbroad and unenforceable renders his
forfeiture claim moot. Based on the judicial principle of stare decisis and consistent
with the decisions of the Ohio Supreme Court in Glasgow and Dehler, Appellant’s
four assignments of error are without merit and are overruled. -13-
Conclusion
{¶23} Appellant’s public records request was facially overbroad and
unenforceable as a matter of law. Appellant failed to establish a prima facie case
supporting his claim for mandamus relief. The trial court properly applied controlling
precedent, and did not err in dismissing Appellant’s complaint under Civ.R.12(C).
Appellant’s forfeiture claim was contingent upon the validity of the mandamus action.
The dismissal of Appellant’s mandamus action renders his forfeiture claim moot.
Appellant’s four assignments of error are overruled. The judgment of the trial court is
affirmed in full and Appellant’s mandamus and forfeiture claims are hereby
dismissed.
Vukovich, J., concurs.
DeGenaro, P.J., concurs.