Welin v. Hamilton

[Cite as Welin v. Hamilton, 2022-Ohio-2661.]

PETER WELIN, ESQ. Case No. 2021-00748PQ

Requester Special Master Jeff Clark

v. REPORT AND RECOMMENDATION

CITY OF HAMILTON, OHIO

Respondent

{¶1} The Public Records Act requires a public office to make copies of requested
public records available at cost and within a reasonable period of time. R.C. 149.43(B)(1).
The Act is construed liberally in favor of broad access, with any doubt resolved in favor
of disclosure. State ex rel. Hogan Lovells U.S., L.L.P. v. Dept. of Rehab. & Corr., 156
Ohio St.3d 56, 2018-Ohio-5133, 123 N.E.3d 928, ¶ 12. R.C. 2743.75 provides an
expeditious and economical procedure to resolve public records disputes in the Court of
Claims.
{¶2} In a letter dated July 6, 2021, requester Peter Welin made a public records
request to respondent City of Hamilton, Ohio as follows:
Pursuant to Ohio Revised Code §149.43(B), I hereby request the production
of, or the opportunity to inspect and copy, any and all documents, files,
records and other information and materials in the possession, custody or
control of the City of Hamilton, Ohio, created or received between January
1, 2006, and the date of this letter, concerning, discussing, relating to, or
referring in any manner to the following hydroelectric projects (collectively,
the “Hydroelectric Projects”) owned, constructed, funded, and/or operated,
in whole or in part, by American Municipal Power, Inc. (“AMP”), and/or its
parent companies, sister companies, subsidiaries, or other related
companies, including but not limited to, all documents referring or relating
to any claims by or against AMP relating to the Hydroelectric Projects:
(1) The Meldahl Hydroelectric Project (“Meldahl”) located on the
Kentucky side of the existing USACE Captain Anthony Meldahl Lock and
Dam facility on the Ohio River;
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(2) The Cannelton Hydroelectric Project (“Cannelton”) located on the
Kentucky side of the existing USACE Cannelton Locks and Dam facility on
the Ohio River;
(3) The Willow Island Hydroelectric Project (“Willow Island”) located on
the West Virginia side of the existing USACE Willow Island Locks and Dam
facility on the Ohio River; and
(4) The Smithland Hydroelectric Project (“Smithland”) located on the
Kentucky side of the existing USACE Smithland Locks and Dam facility on
the Ohio River.
Without limiting the foregoing request, and as background, the City
investigated and evaluated the prospect of developing, constructing, and
operating a hydroelectric power plant at the Meldahl site, and subsequently
worked with AMP to do so. The City has also had employees or
representatives participate as board members of AMP or its affiliates, or on
boards or committees related to these power plants, and would therefore
also have records developed, sent or received as a result of such
participation. This request includes, among other things, all records which
are about the feasibility assessment, licensing, planning, contracting,
financing, development, and operation of all of the projects, and all claims
and disputes arising from or related to their construction or operation.
(Complaint at 8-9.) The City responded through its law director on July 30, 2021:
Your request for records associated with the Cannelton, Willow Island, and
Smithland projects is denied as these are not records kept by the City. See
State ex rel. Evans v. City of Parma, 8th Dist. Cuyahoga No. 81236, 2003-
Ohio-1159. Your request for records associated with the Meldahl project is
denied as ambiguous and overly broad. Your request does not provide
reasonable clarity so that the City can identify responsive records based on
the manner in which the City ordinarily maintains and accesses records.
See O.R.C. Section 149.43(8)(2); State ex rel. Glasgow v. Jones, 119 Ohio
St. 3d 391, 2008-Ohio-4788, P 19.
If you would like to clarify or revise your request, please feel free to contact
me.
(Id. at 10.) Welin replied by objecting that the City’s denial based on ambiguity,
overbreadth and non-existent records was unjustified (Id. at 11-12.) The City responded
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that it stood by its July 30, 2021 letter and asked again if Welin would like to clarify or
revise his request as to the Meldahl project. (Id. at 14.)
{¶3} On December 29, 2021, Welin filed a complaint pursuant to R.C. 2743.75
alleging denial of access to public records by the City in violation of R.C. 149.43(B).
Following mediation, the City filed its response to the complaint on April 1, 2022. On April
19, 2022, Welin filed a reply. On May 16, 2022, the City filed a sur-reply and filed a
supplement thereto on May 18, 2022.
Burden of Proof
{¶4} The requester in an action under R.C. 2743.75 bears an overall burden to
establish a public records violation by clear and convincing evidence. Hurt v. Liberty Twp.,
2017-Ohio-7820, 97 N.E.3d 1153, ¶ 27-30 (5th Dist.). The requester bears an initial
burden of production “to plead and prove facts showing that the requester sought an
identifiable public record pursuant to R.C. 149.43(B)(1) and that the public office or
records custodian did not make the record available.” Welsh-Huggins v. Jefferson Cty.
Prosecutor’s Office, 163 Ohio St.3d 337, 2020-Ohio-5371, 170 N.E.3d 768, ¶ 33.
No Cause of Action for Modified Requests
{¶5} Welin argues that the City’s provision of 400 pages of records during
mediation demonstrates it always knew they were responsive to his original July 6, 2021
requests. (Reply at 2-5.) However, these records were produced in response to a new
set of narrowed requests that just as arguably show Welin could have crafted his earlier
requests to identify records with sufficient specificity. (Sur-reply at 2-4, Exhs. A, B.)1
{¶6} Regardless, new requests made during public records litigation do not relate
back to the complaint. There is no cause of action based on violation of R.C. 149.43(B)

1 The City has not waived mediation communications privilege and confidentiality provisions of R.C.

2710.03 and .07. (Sur-reply at 2-3.) See R.C. 2710.02(A)(1); L.C.C.R. Rule 22(A) and (G). Because Welin’s
improper disclosure does little more than demonstrate that the parties are capable of greater cooperation
and clarification, and there is no substantive prejudice alleged by the City, the Special Master does not
recommend imposing any penalty for Welin’s violation.
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unless the request was made and denied prior to the complaint. See Strothers v. Norton,
131 Ohio St.3d 359, 2012-Ohio-1007, 965 N.E.2d 282, ¶ 14; State ex rel. Bardwell v.
Ohio Atty. Gen., 181 Ohio App.3d 661, 2009-Ohio-1265, 910 N.E.2d 504, ¶ 5 (10th Dist.).
The Special Master concludes that Welin’s new requests are not before the court. Nor do
they constitute evidence of the nature or validity of his initial requests.
Non-Records Need not be Provided
“Records” are defined in R.C. 149.011(G) as including:
any document, device, or item, regardless of physical form or
characteristic, * * *, 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.
(Emphasis added.) R.C. 149.011(G) requires more than mere receipt and possession for
an item to be a “record” subject to request under R.C. 149.43. State ex rel. Beacon
Journal Publ’g Co. v. Whitmore, 83 Ohio St.3d 61, 64, 697 N.E.2d 640 (1998). “By so
holding, we reject relators’ contention that a document is a ‘record’ under R.C. 149.011(G)
if the public office ‘could use’ the document to carry out its duties and responsibilities.” Id.
at 63. Accord State ex rel. Cincinnati Enquirer v. Ronan, 127 Ohio St.3d 236, 2010-Ohio-
5680, 938 N.E.2d 347, ¶ 13-16. Information that a public office happens to be storing, but
which does not serve to document any aspect of the office’s activities, does not meet the
statutory definition of a “record.” State ex rel. McCleary v. Roberts, 88 Ohio St.3d 365,
367-368, 725 N.E.2d 1144 (2000); State ex rel. Fant v. Enright, 66 Ohio St.3d 186, 188,
610 N.E.2d 997 (1993).
{¶7} Even where a document is received, reviewed, and integrated into a topical
office file, but is not used to document the office’s activities, it may not rise to the definition
of a “record.” In Whitmore, the Court found that unsolicited letters regarding an upcoming
sentencing did not serve to document a judge’s sentencing decision when she received
and stored but did not actually use them. Id. at 63-65. Likewise, electronic storage
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devices obtained by law enforcement during investigations often include voluminous
content that is personal, duplicative, or superfluous. If such incidental data constituted
“records” based on possession alone, the agency would be obliged to respond to public
records requests for them, but no such result is required by the language of
R.C. 149.011(G). See Narciso v. Powell Police Dept., Ct. of Cl. No. 2018-01195PQ, 2018-
Ohio-4590, ¶ 45-51; Andes v. Ohio AG’s Office, Ct. of Cl. No. 2017-00144-PQ, 2017-
Ohio-4251, ¶ 13-14 (contents of storage devices were either not relevant to the
investigation or were not used in the criminal prosecution).
{¶8} When a public office asserts that it has searched for and provided all existing
records responsive to a request, the requester has the burden to overcome that denial
with clear and convincing evidence that additional records exist. State ex rel. Cordell v.
Paden, 156 Ohio St.3d 394, 2019-Ohio-1216, 128 N.E.3d 179, ¶ 5-10. A requester’s mere
belief in the existence of additional records does not constitute clear and convincing
evidence. State ex rel. McCaffrey v. Mahoning Cty. Prosecutor’s Office, 133 Ohio St.3d
139, 2012-Ohio-4246, 976 N.E.2d 877, ¶ 22-26; State ex rel. Morabito v. Cleveland, 8th
Dist. Cuyahoga No. 98829, 2012-Ohio-6012, ¶ 13. A requester seeking items withheld as
non-records must establish that they “create a written record of the structure, duties,
general management principles, agency determinations, specific methods, processes, or
other acts of the [public office].” State ex rel. Dispatch Printing Co. v. Johnson, 106 Ohio
St.3d 160, 2005-Ohio-4384, 833 N.E.2d 274, ¶ 22. Disclosure of incidental information is
not required if it reveals little or nothing about an agency’s own conduct and would do
nothing to further the purposes of the Act. State ex rel. Beacon Journal Publ’g Co. v.
Bond, 98 Ohio St.3d 146, 2002-Ohio-7117, 781 N.E.2d 180, ¶ 9-13; Dispatch at ¶ 27. See
State ex rel. Wilson-Simmons v. Lake County Sheriff’s Dept., 82 Ohio St.3d 37, 41, 693
N.E.2d 789 (1998); State ex rel. Glasgow v. Jones, 119 Ohio St.3d 391, 2008-Ohio-4788,
894 N.E.2d 686, ¶ 25.
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{¶9} The City attests that it “did not develop, fund, construct, or participate in the
operations of the Cannelton, Willow Island, and Smithland hydroelectric plants”
(Response, Block Aff. at ¶ 9) and therefore keeps no “records” of them. (Id. at ¶ 13-14.)
Welin concedes that “the City may not have been the actual owner of these projects, and
may not have been the Owner’s Agent or Operator of these projects.” (Reply at 7.) The
City notes that some information relating to the three non-City projects is incidentally
scattered within its records of the Meldahl project but does not document City operations.
(Block Aff. at ¶ 13-14.) Welin offers no evidence to the contrary. Welin asserts that AMP
serves as an agent for these other hydroelectric projects but does not explain how this
sweeps all AMP documents into the “records of” the City, which contracts only with the
Meldahl plant. Even the fact that some City employees also sit on the board of AMP does
not sweep all AMP documents into the keeping of the City as “records” without a showing
that particular records actually document City operations.
{¶10} Based on the evidence submitted, the Special Master finds that Welin has
not shown by clear and convincing evidence that records of the City exist for the
Cannelton, Willow Island, and Smithland Hydroelectric Projects.
Ambiguous and Overly Broad Requests
In general,
No pleading of too much expense, or too much time involved, or too much
interference with normal duties, can be used by the respondent to evade
the public’s right to inspect and obtain a copy of public records within a
reasonable time. The respondent is under a statutory duty to organize his
office and employ his staff in such a way that his office will be able to make
these records available for inspection and to provide copies when requested
within a reasonable time.
State ex rel. Beacon Journal Pub. Co. v. Andrews, 48 Ohio St.2d 283, 289, 358 N.E.2d
565 (1976). However, an ambiguous or overly broad request does not trigger an office’s
duty to make records available in the first instance. It is “the responsibility of the person
who wishes to inspect and/or copy records to identify with reasonable clarity the records
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at issue.” State ex rel. Zidonis v. Columbus State Community College, 133 Ohio St.3d
122, 2012-Ohio-4228, 976 N.E.2d 861, ¶ 21. A request that does not reasonably identify
what public records are being requested may be denied. R.C. 149.43(B)(2). See generally
Gupta v. Cleveland, Ct. of Cl. No. 2017-00840PQ, 2018-Ohio-3475, ¶ 22-29. Judicial
determination of whether an office has properly denied a request as ambiguous or overly
broad is based on the facts and circumstances in each case. Zidonis at ¶ 26.
{¶11} Welin’s request is ambiguous and overly broad in multiple, overlapping ways.
The request seeks “any and all documents, files, records and other information and
materials” over a fifteen-year period “concerning, discussing, relating to, or referring in
any manner to” four hydroelectric projects. (Complaint, Exh. B.) First, fifteen years is a
lengthy period of time. Zidonis at ¶ 21. Next, “any and all” is a term of complete inclusion
that improperly asks for everything to do with the infrastructure projects.
A general request, which asks for everything, is not only vague and
meaningless, but essentially asks for nothing. At the very least, such a
request is unenforceable because of its overbreadth. At the very best, such
a request is not sufficiently understandable so that its merit can be properly
considered.
State ex rel. Zauderer v. Joseph, 62 Ohio App.3d 752, 756, 577 N.E.2d 444 (10th Dist.
1989). Accord Zidonis at ¶ 28-32 (all email between two employees for six years). See
Salemi v. Cleveland Metroparks, 8th Dist. Cuyahoga No. 100761, 2014-Ohio-3914, ¶ 26
(all checks, agreements, meeting minutes, emails, and letters relating to golf course
marketing). Compare State ex rel. Carr v. London Corr. Inst., 144 Ohio St.3d 211, 2015-
Ohio-2363, 41 N.E.3d 1203, ¶ 25-29 (request for communication between one person
and a specific department for two months was found not overly broad).
{¶12} After noting that the relator’s request for all complaint and litigation files
“covered a lengthy period of time – at least six years,” the Supreme Court in Zidonis
affirmed that
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[i]n identifying records for purposes of presenting a viable request, the
Public Records Act “does not contemplate that any individual has the right
to a complete duplication of voluminous files kept by government agencies.”
State ex rel. Warren Newspapers, Inc. v. Hutson, 70 Ohio St.3d 619, 624,
1994 Ohio 5, 640 N.E.2d 174 (1994), citing State ex rel. Zauderer v. Joseph,
62 Ohio App.3d 752, 577 N.E.2d 444 (1989).
Zidonis at ¶ 21. See also State ex rel. Dissell v. Cleveland, 8th Dist. Cuyahoga No.
110425, 2021-Ohio-2937, ¶ 20. The City here has submitted testimony of the Hamilton
hydroelectric plants manager that there are millions of pages of non-communication City
records related to the Meldahl Hydroelectric Project. (Sur-reply, Martin Aff. at ¶ 7-8.) The
City gave no estimate of communications records but noted they would have to be located
and retrieved from among large individual files maintained by nearly 600 City employees.
(Id. at ¶ 12-17.)2 Welin does not dispute these numbers. Based on the evidence
submitted, the Special Master finds that Welin’s requests amount to a demand for the
complete duplication of voluminous files.
{¶13} Separately, a public records request is unenforceable if it is too vague or
indefinite to be properly acted on by the records holder. State ex rel. Dehler v. Spatny,
11th Dist. No. 2009-T-0075, 2010-Ohio-3052, ¶ 4, 18, aff’d, 127 Ohio St.3d 312, 2010-
Ohio-5711, 939 N.E.2d 831. As used here, the demand for records “discussing, relating
to, or referring in any manner to” the hydroelectric projects is independently sufficient to
render the request ambiguous and overly broad. Indeed, without sufficient specificity as
to the particular records sought a court cannot issue an order for production of specific
responsive records or determine and enforce non-compliance therewith. Welin’s request
requires the City to comb through all communications records to evaluate their “relation”
to any aspect of the projects - rather than retrieve communications reasonably identified
by specific correspondents, subject matter, search terms, and the like. State ex rel. Dillery

2 Although Welin’s only actionable request does not specifically mention communications records,
the “any and all” language broadly sweeps in records of every type.
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v. Icsman, 92 Ohio St.3d 312, 314, 750 N.E.2d 156 (2001). Accord State ex rel. Chasteen
v. Ohio Dept. of Rehab. & Corr., 10th Dist. Franklin No. 13-AP-779, 2014-Ohio-1848, ¶
23-27; DeCrane v. Cleveland, Ct. of Cl. No. 2018-00358PQ, 2018-Ohio-3651, ¶ 6-7,
adopted by DeCrane v. Cleveland, Ct. of Cl. No. 2018-00358PQ, 2018-Ohio-4363, cited
with approval in Barnes v. Cleveland Div. of Records Admin., 2021-Ohio-212, 167 N.E.3d
51, ¶ 43 (8th Dist.). Compare State ex rel. Kesterson v. Kent State Univ., 156 Ohio St.3d
22, 2018-Ohio-5110, 123 N.E.3d 895, ¶ 23-27 (A request for email is not overly broad if
it is reasonably circumscribed by time period, subject matter, author or sender/recipient,
and the like). The special master finds that the request for fifteen years of all
communications records related to hydroelectric projects, without naming any individual
correspondents or other specifying information, is ambiguous, overly broad, and fails to
reasonably identify the records sought.
{¶14} Finally, a request is ambiguous and overly broad when it amounts to a
research assignment throughout voluminous records of the office. A public office is not
obliged to individually “seek out and retrieve those records which would contain the
information of interest to the requester.” State ex rel. Fant v. Tober, 8th Dist. Cuyahoga
No. 63737, 1993 Ohio App. LEXIS 2591, *3 (April 28, 1993). See Shaughnessy v.
Cleveland, 149 Ohio St.3d 612, 2016-Ohio-8447, 76 N.E.3d 1171, ¶ 10-11, 19-22
(request to retrieve records containing selected information, and cull out the ones
requester did not want); State ex rel. O’Shea & Assocs. Co., L.P.A. v. Cuyahoga Metro.
Hous. Auth., 190 Ohio App.3d 218, 2010-Ohio-3416, ¶ 7-11, 941 N.E.2d 807 (8th Dist.)
(request for records containing information about personal injury claims), rev’d in part on
other grounds, 131 Ohio St. 3d 149, 2012-Ohio-115, 962 N.E.2d 297; State ex rel. Morgan
v. Strickland, 121 Ohio St.3d 600, 2009-Ohio-1901, 906 N.E.2d 1105, ¶ 14-15 (request
for “[a]ny and all email communications * * * which reference * * * the ‘evidence-based
model’ or education funding in general”) (first ellipsis sic). A request for communications
is ambiguous or overly broad when it identifies correspondents only as belonging to titles,
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groups or categories for which research is required to establish their membership. State
ex rel. Oriana House, Inc. v. Montgomery, 10th Dist. Franklin Nos. 04AP-492, 04AP-504,
2005-Ohio-3377, ¶ 9, overturned on other grounds, 107 Ohio St. 3d 1694, 2005-Ohio-
6763, 840 N.E.2d 201; Gannett GP Media, Inc. v. Ohio Dept. of Pub. Safety, Ct. of Cl.
No. 2017-00051-PQ, 2017-Ohio-4247, ¶ 11.
{¶15} To be sure, a requester may utilize public records requests to obtain records
of interest in connection with civil litigation to which he is a party. Gilbert v. Summit
County, 104 Ohio St.3d 660, 2004-Ohio-7108, 821 N.E.2d 564, ¶ 8-11. Accord State ex
rel. Morgan v. New Lexington, 112 Ohio St.3d 33, 2006 Ohio 6365, 857 N.E.2d 1208,
¶ 43-45. However, this does not mean he is entitled to frame the request as he would a
discovery demand for production of documents under Civ.R. 34. “R.C. 149.43 codifies the
Ohio Public Records Act and does not involve civil discovery procedures.” Hance v.
Cleveland Clinic, 2021-Ohio-1493, 172 N.E.3d 478, ¶ 33 (8th Dist.). A broad discovery-
style demand to conduct an officewide search for records is often improper when
submitted as a public records request. State ex rel. Thomas v. Ohio State Univ. 71 Ohio
St.3d 245, 246, 1994-Ohio-261, 643 N.E.2d 126 (1994), cited with approval in State ex
rel. Shaughnessy v. Cleveland, 149 Ohio St.3d 612, 2016-Ohio-8447, 76 N.E.3d 1171, ¶
10; State ex rel. Thomas v. Ohio State Univ. 70 Ohio St. 3d 1438, 638 N.E.2d 1041
(1994); Gupta v. Cleveland, Ct. of Cl. No. 2017-00840PQ, 2018-Ohio-3475, ¶ 22. On their
face, Welin’s requests make sweeping, discovery-style demands rather than reasonably
identifying the particular records sought. None are narrowed by identification of files,
reports, or even records retention categories. Instead, they require the City to comb
through all office records for “any and all” peripheral communications, memoranda, plans,
policies, etc. that are in any way “related to” broad subjects, regardless of a record’s
location or the nature of its “relation” to the functions, operations, relationships,
communications, etc. referenced in the requests. Zidonis at ¶ 21, 26; State ex rel. Dillery
v. Icsman, 92 Ohio St.3d 312, 314, 750 N.E.2d 156 (2001). Accord State ex rel. Chasteen
Case No. 2021-00748PQ -11- REPORT AND RECOMMENDATION

v. Ohio Dept. of Rehab. & Corr., 10th Dist. Franklin No. 13-AP-779, 2014-Ohio-1848, ¶
23-27; DeCrane v. Cleveland, Ct. of Cl. No. 2018-00358PQ, 2018-Ohio-3651, ¶ 1,
adopted by DeCrane v. Cleveland, Ct. of Cl. No. 2018-00358PQ, 2018-Ohio-4363, cited
with approval in Barnes v. Cleveland Div. of Records Admin., 2021-Ohio-212, 167 N.E.3d
51, ¶ 43 (8th Dist.). For the reasons set forth above, the Special Master finds that the
June 21, 2021 requests are ambiguous, overly broad, and fail to reasonably identify the
records sought.
Embedded Requests
Part of Welin’s request states:
This request includes, among other things, all records which are about the
feasibility assessment, licensing, planning, contracting, financing,
development, and operation of all of the projects, and all claims and
disputes arising from or related to their construction or operation.
(Complaint at 8-9.) While this sentence is slightly more descriptive than the remainder of
the request, it still broadly seeks “all records which are about” a list of general topics.
Although a closer question, the Special Master finds this language still does not constitute
a request sufficiently specific for the City to “reasonably identify what public records are
being requested.” R.C. 149.43(B)(2).
{¶16} The Special Master finds that Welin has not proven by clear and convincing
evidence that his request reasonably identified any of the records sought, and the request
is thus unenforceable. This conclusion does not restrict Welin from filing properly revised
requests. During mediation Welin provided a narrowed request and the City produced
copies of the Power Sales Contract Regarding the Meldahl Hydroelectric Project and
Appendices (278 p.); Project Operating Agreement Among [the City and AMP] (20 p.);
Meldahl, LLC First Amendment to Operating Agreement (3 p.); Operating Agreement of
Meldahl, LLC Between [the City and AMP] (20 p.); Meldahl Project Development and
Agency Agreement Among [the City and AMP] (18 p.); Meldahl-Greenup Participation
Agreement Among [the City and AMP] (56 p.); and the Meldahl Purchase, Construction
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and Ownership Agreement Between [AMP] and Meldahl, LLC Regarding the Meldahl
Hydroelectric Project (5 p.). (March 18, 2022 Supplement to Sur-Reply.) The request as
to these specific records is thus moot. Under similar circumstances, courts have
encouraged parties to persevere to achieve a mutually acceptable resolution of currently
deficient records requests and responses. See State ex rel. Morgan v. Strickland, 121
Ohio St.3d 600, 2009-Ohio-1901, 906 N.E.2d 1105, ¶ 14-19. The parties here have
demonstrated the ability to negotiate, clarify, and produce at least some of the records
sought. The General Assembly provides statutory tools to optimize the scope, speed,
format, economy, and delivery of public records. See R.C. 149.43(B)(2), (3), (5), (6), (7)
and (9). The parties are encouraged to cooperate fully in negotiating future revisions using
those tools.
Opportunity to Revise an Ambiguous or Overly Broad Request
Finally, when denying an ambiguous or overly broad request, a public office must
provide the requester with an opportunity to revise the request by informing
the requester of the manner in which records are maintained by the public
office and accessed in the ordinary course of the public office’s or person’s
duties.
R.C. 149.43(B)(2). Welin complains the City never informed him “of the manner in which
records are maintained by the public office and accessed in the ordinary course of the
public office’s or person’s duties.” (Id., Exh. D.) He contends the City could have but did
not explain how it maintains records related to what it knows to be its role “as the Project
Owner’s Agent for the construction of the Meldahl project, or any of several other things
that Requester specified (i.e. the project licensing records, the project planning records,
the project contract records, etc.).” (Reply at 2.) Instead, the City merely offered, “If you
would like to clarify or revise your request, please feel free to contact me.” (Complaint,
Exh. C.) Welin later asked “whether the City uses any third-party document custodians to
maintain records on the City’s behalf,” a matter that could be relevant to the accessibility
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of records but not to their identification. (Id., Exh. E.) Welin did not attempt to clarify or
revise his request before commencing this action.
{¶17} The Special Master finds that a public office’s invitation to “clarify and revise”
a public records request is a necessary but not sufficient component of its obligation to
provide “an opportunity to revise the request by informing the requester of the manner in
which records are maintained by the public office and accessed in the ordinary course of
the public office’s or person’s duties.” R.C. 149.43(B)(2). The City did not provide this
required records management information. See Gupta v. Cleveland, Ct. of Cl. No. 2017-
00840PQ, 2018-Ohio-3475, ¶ 59-60. But see State ex rel. Bristow v. Baxter, 6th Dist. Erie
Nos. E-17-060, E-17-067, E-17-070, 2018-Ohio-1973, ¶ 13. The court may also take
notice that Welin holds himself out as knowledgeable in public records law and requests,
and evidences some familiarity with the types, identity, location, relevant personnel, and
previous production in litigation of some hydroelectric facility development documents.
(Complaint, Exh. D.) The City also notes that its records retention schedule is posted
online (Response, Exh. A at ¶ 18) but offers no evidence it directed Welin to the schedule
prior to the filing of the complaint.
{¶18} Under the totality of the facts and circumstances presented, the Special
Master finds that the City failed to satisfy its obligations under R.C. 149.43(B)(2).
Conclusion
{¶19} Upon consideration of the pleadings and attachments, the Special Master
recommends the court deny the claim for production of records. The Special Master
further recommends the court find that respondent failed to provide requester with the
information required when denying a request on the ground that it is ambiguous and
overly broad, in violation of R.C. 149.43(B)(2). It is recommended costs be assessed
equally between the parties.
{¶20} Pursuant to R.C. 2743.75(F)(2), either party may file a written objection with
the clerk of the Court of Claims of Ohio within seven (7) business days after receiving this
Case No. 2021-00748PQ -14- REPORT AND RECOMMENDATION

report and recommendation. Any objection shall be specific and state with particularity all
grounds for the objection. A party shall not assign as error on appeal the court’s adoption
of any factual findings or legal conclusions in this report and recommendation unless a
timely objection was filed thereto. R.C. 2743.75(G)(1).

JEFF CLARK
Special Master

Filed July 5, 2022
Sent to S.C. Reporter 8/4/22