State ex rel. Ames v. Crestwood Local School Dist. Bd. of Edn.

[Cite as State ex rel. Ames v. Crestwood Local School Dist. Bd. of Edn., 2023-Ohio-4371.]

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

STATE OF OHIO ex rel. CASE NO. 2023-P-0014
BRIAN M. AMES,

Relator, Original Action for Writ of Mandamus

- vs -

CRESTWOOD LOCAL
SCHOOL DISTRICT
BOARD OF EDUCATION, et al.,

Respondents.

OPINION

Decided: December 4, 2023
Judgment: Petition denied

Brian M. Ames, pro se, 2632 Ranfield Road, Mogadore, OH 44260 (Relator).

Eric J. Johnson, Sara Ravas Cooper, and Peter T. Zawadski, Weston Hurd LLP, 1300
East Ninth Street, Suite 1400, Cleveland, OH 44114 (For Respondents).

MARY JANE TRAPP, J.

{¶1} Relator, Brian M. Ames (“Mr. Ames”), pro se, filed a verified petition for a

writ of mandamus against respondents, Crestwood Local School District Board of

Education (“the school board”) and Kathryn C. Hoffmeister (“Ms. Hoffmeister”) in her

official capacity as Treasurer (collectively, “respondents”). Mr. Ames seeks an order

directing respondents to provide copies of alleged public records he requested, to wit:

the results of a mental health survey the athletic director issued to school district staff.

The parties filed cross-motions for summary judgment.
 {¶2} Upon a careful review of the record and pertinent law, we find there are no

genuine issues of material fact and respondents are entitled to judgment as a matter of

law. The requested mental health survey results do not constitute “records” under R.C.

149.011(G) subject to disclosure as “public records” under R.C. 149.43. Thus, we grant

respondents’ motion for summary judgment and overrule Mr. Ames’ motion for summary

judgment. Mr. Ames’ petition for a writ of mandamus is denied.

Substantive and Procedural History

{¶3} Mr. Ames is a resident of Randolph Township in Portage County, Ohio. The

school board is the board of education for the Crestwood Local School District (“the school

district”) established pursuant to R.C. 3313.01. Ms. Hoffmeister is the school district’s

treasurer.

{¶4} In the spring of 2022, the school district’s athletic director issued a survey

entitled “Mental Health PD Survey” to school district staff via Google Forms. The

introductory section of the survey states:

{¶5} “This survey is to establish a baseline for how well Crestwood Local Schools

is doing with recognizing, acknowledging, and implementing strategies to address Mental

Health-Wellbeing/Burnout Feeling[.]

{¶6} “With this data, Crestwood Local Schools intends to recognize areas of

concern & improvement, acknowledge individuals [sic] anonymous statements and/or

opinions, and to implement strategies that can be utilized by both staff and students to

reduce the feeling of ‘burnout’ and increase Mental Health-Wellbeing[.]

{¶7} “**Your Personal responses and accounts will be anonymous. This Forum

does not collect email address or names.**”

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 {¶8} The survey requested responses to the following eight inquiries: (1) “Mental

Health-Wellbeing means what to you?”; (2) “Rate your current Mental Health-Wellbeing”;

(3) “Are you willing to improve your Mental Health-Wellbeing and utilize resources?”; (4)

“Is your rating from the previous question influenced by your personal/home life?”; (5) “AT

WORK, what NEGATIVELY influences your mental health-wellbeing?”; (6) “Of the

selection(s) made for the previous question, please provide a brief explanation as to why

it is a negative influencing factor”; (7) “What are you doing now to POSITIVELY influence

your mental hea[l]th-wellbeing”; and (8) “If you could suggest/implement one (1)

idea/action to improve the Mental Health-Wellbeing/Burnout Feeling, what would it be?”

{¶9} According to Karen Schulz (“Ms. Schulz”), the school board president, the

school board did not “authorize, direct, or otherwise approve” the survey’s “administration

or dissemination.” According to David Toth (“Dr. Toth”), the school district’s

superintendent, although the school board did not “authorize or otherwise approve” the

survey, he allowed it to be issued.

{¶10} There were 60 responses to the survey out of 210 total school district

employees. Ms. Hoffmeister has averred that “due to the low number of respondents, the

Survey results do not accurately represent the staff population.” Therefore, she did not

“use or otherwise rely upon the Survey results to make a decision or to take any action

on behalf of the District.” She is also “not aware of any District board member,

administrator, employee, agent or representative directly or indirectly using the results of

the Survey for any reason.”

{¶11} Dr. Toth has averred that “[a]fter receiving the Survey results, no decision

was made and no action was taken, or not taken, based on the Survey results by any

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District board member, administrator, employee, agent, or representative either directly

or indirectly.”

{¶12} Ms. Schulz has averred that the school board “has not discussed or

deliberated over the Survey results in a Board session” and “has not relied on the Survey

results either directly or indirectly to make any Board decision.”

{¶13} On April 3, 2023, Mr. Ames submitted, via email, a public records request

to Ms. Hoffmeister requesting copies of records “documenting the results of the public

health survey conducted using the attached form.” The next day, on April 4, 2023, Ms.

Hoffmeister responded to Mr. Ames’ request via email, attaching a letter signed by

herself. She wrote that the survey results do not constitute “public records” under R.C.

149.43(A)(1) and 149.011(G). Specifically, “the survey results you requested are

personal to the individual responding to the survey and were not relied upon by the Board

in taking any action; therefore, they ‘reveal little or nothing’ to the District’s own conduct

and do not document the organization, functions, policies, decisions, procedures,

operations, or other activities of the District.”

{¶14} The next day, on April 5, 2023, Mr. Ames filed a verified petition for a writ of

mandamus against respondents in this court, alleging they failed to comply with their legal

duty to provide public records pursuant to R.C. 149.43(B)(1). He requested a peremptory

writ directing respondents to provide copies of the survey results as well as statutory

damages, attorney fees, and costs. This court issued an alternative writ.

{¶15} Respondents appeared through counsel and filed an answer and a motion

for summary judgment. In support of their motion, respondents submitted affidavits from

Dr. Toth, Ms. Schulz, and Ms. Hoffmeister. Mr. Ames filed a brief in opposition and a

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cross-motion for summary judgment. Respondents filed a brief in opposition, and both

sides filed reply briefs.

{¶16} Mr. Ames filed a motion for an in camera inspection of the survey results,

and respondents filed a response. We granted Mr. Ames’ motion, and respondents filed

the survey results with this court under seal.

Summary Judgment Standard

{¶17} Civ.R. 56(C) provides that before summary judgment is granted, it must be

determined that (1) no genuine issue as to any material fact remains to be litigated, (2)

the moving party is entitled to judgment as a matter of law, and (3) it appears from the

evidence that reasonable minds can come to but one conclusion, and viewing the

evidence most strongly in favor of the nonmoving party, that conclusion is adverse to the

nonmoving party. State ex rel. Levin v. Schremp, 73 Ohio St.3d 733, 734, 654 N.E.2d

1258 (1995).

{¶18} In ruling on a motion for summary judgment, the court must construe the

record and all inferences therefrom in the nonmoving party’s favor. Civ.R. 56(C). The

moving party bears the initial responsibility of informing the court of the basis for the

motion and identifying those portions of the record which demonstrate no genuine issue

of material fact exists and the moving party is entitled to judgment in its favor as a matter

of law. Dresher v. Burt, 75 Ohio St.3d 280, 293, 662 N.E.2d 264 (1996). If the moving

party satisfies this burden, the nonmoving party has a reciprocal burden to set forth

specific facts demonstrating the existence of a genuine issue of material fact. Id. If the

nonmovant fails to do so, summary judgment, if appropriate, shall be entered against the

nonmoving party. Id.

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 Writ of Mandamus Standard

{¶19} “Mandamus is a writ, issued in the name of the state to an inferior tribunal,

a corporation, board, or person commanding the performance of an act which the law

specifically enjoins as a duty resulting from an office, trust, or station.” R.C. 2731.01.

“‘The function of mandamus is to compel the performance of a present existing duty as

to which there is a default.’” State ex rel. Willis v. Sheboy, 6 Ohio St.3d 167, 168, 451

N.E.2d 1200 (1983), quoting State ex rel. Fed. Homes Properties, Inc. v. Singer, 9 Ohio

St.2d 95, 96, 223 N.E.2d 824 (1967).

{¶20} Mandamus is the appropriate remedy to compel compliance with R.C.

149.43, Ohio’s Public Records Act. State ex rel. Cincinnati Enquirer, Div. of Gannett

Satellite Information Network, Inc. v. Dupuis, 98 Ohio St.3d 126, 2002-Ohio-7041, 781

N.E.2d 163, ¶ 11. To be entitled to a writ of mandamus, a party must establish, by clear

and convincing evidence, (1) a clear legal right to the requested relief, (2) a clear legal

duty on the part of the respondent to provide it, and (3) the lack of an adequate remedy

in the ordinary course of the law. State ex rel. Gadell-Newton v. Husted, 153 Ohio St.3d

225, 2018-Ohio-1854, 103 N.E.3d 809, ¶ 6. Relators in public-records mandamus cases,

however, do not need to establish the lack of an adequate remedy at law. State ex rel.

Am. Civ. Liberties Union of Ohio, Inc. v. Cuyahoga Cty. Bd. of Commrs., 128 Ohio St.3d

256, 2011-Ohio-625, 943 N.E.2d 553, ¶ 24.

The Public Records Act

{¶21} The Ohio Public Records Act provides that upon request, “all public records

responsive to the request shall be promptly prepared and made available for inspection

to the requester at all reasonable times during regular business hours.” (Emphasis

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added.) R.C. 149.43(B)(1). At issue is whether the mental health survey results

constitute “public records” subject to disclosure.

{¶22} “‘Public record’ means records kept by any public office, including, but not

limited to, state, county, city, village, township, and school district units * * *.” (Emphasis

added.) R.C. 149.43(A)(1). “‘Records’ includes [1] 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, [2] created or received by or coming under the

jurisdiction of any public office of the state or its political subdivisions, [3] which serves to

document the organization, functions, policies, decisions, procedures, operations, or

other activities of the office.” R.C. 149.011(G).

{¶23} The Supreme Court of Ohio’s precedent indicates not all documents

involving a public office qualify as “records” subject to disclosure as “public records.” For

instance, in State ex rel. Beacon Journal Publishing Co. v. Whitmore, 83 Ohio St.3d 61,

697 N.E.2d 640 (1998), a newspaper sought a writ of mandamus to compel a common

pleas court judge to disclose unsolicited letters she had received from members of the

public who were attempting to influence her sentencing decision in a criminal case. See

id. at 61-62. The Supreme Court held the letters were not “records” for purposes of R.C.

149.011(G) and 149.43. Id. at 63. The court explained that “[t]he R.C. 149.011(G)

definition of ‘records’ has been construed to encompass ‘“anything a governmental unit

utilizes to carry out its duties and responsibilities * * *.”’” (Emphasis added.) Id., quoting

State ex rel. Mazzaro v. Ferguson, 49 Ohio St.3d 37, 39, 550 N.E.2d 464 (1990), quoting

State ex rel. Jacobs v. Prudoff, 30 Ohio App.3d 89, 92, 506 N.E.2d 927 (9th Dist.1986).

Although Judge Whitmore reviewed the letters, “she never utilized the letters in her

sentencing decision.” (Emphasis added.) Id. “Therefore, the letters are not subject to

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disclosure because they do not serve to document the organization, functions, policies,

decisions, procedures, operations, or other activities of Judge Whitmore’s office.” Id.

{¶24} The court expressly rejected the relators’ contention that “a document is a

‘record’ under R.C. 149.011(G) if the public office ‘could use’ the documents to carry out

its duties and responsibilities,” reasoning as follows:

{¶25} “Just as R.C. 149.43(A)(1) ‘does not define a “public record” as any piece

of paper on which a public officer writes something,’ * * * R.C. 149.43 and 149.011(G) do

not define ‘public record’ as any piece of paper received by a public office that might be

used by that office. * * * A contrary conclusion would lead to the absurd result that any

document received by a public office and retained by that office would be subject to R.C.

149.43 regardless of whether the public office ever used it to perform a public function.

The plain language of R.C. 149.011(G), which requires more than mere receipt and

possession of a document in order for it to be a record for purposes of R.C. 149.43,

prohibits this result.” (Emphasis sic.) Id. at 64.

{¶26} In State ex rel. Wilson-Simmons v. Lake Cty. Sheriff’s Dept., 82 Ohio St.3d

37, 693 N.E.2d 789 (1998), a corrections officer employed in the county sheriff’s

department sought a writ of mandamus to compel the department to disclose email in

which other corrections officers made racial slurs against her. See id. at 38-39. The

Supreme Court of Ohio held the requested email did not constitute “records” under R.C.

149.011(G) subject to disclosure as “public records” under R.C. 149.43 because it “does

not serve to document the organization, functions, policies, decisions, procedures,

operations, or other activities of the sheriff’s department.” Id. at 41. The court explained,

“although the alleged racist e-mail was created by public employees via a public office’s

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e-mail system, it was never used to conduct the business of the public office * * *.”

(Emphasis added.) Id. at 42.

{¶27} In State ex rel. Beacon Journal Publishing Co. v. Bond, 98 Ohio St.3d 146,

2002-Ohio-7117, 781 N.E.2d 180, a newspaper sought a writ of mandamus to compel a

common pleas court judge to disclose, among other items, prospective juror

questionnaires completed in connection with a criminal prosecution that inquired into the

jurors’ medical histories, criminal records, and religious beliefs. See id. at ¶ 1-5. The

Supreme Court of Ohio held the questionnaire responses were not “records” under R.C.

149.011(G) subject to disclosure as “public records” under R.C. 149.43. The court

reasoned that “[t]he disclosure of information regarding prospective and impaneled jurors

does little to ensure the accountability of government or shed light on the trial court’s

performance of its statutory duties.” Id. at ¶ 11. In addition, “the trial court * * * did not

use the requested information in rendering its decision, but rather collected the

questionnaires for the benefit of litigants in selecting an impartial jury * * *.” (Emphasis

added.) Id. at ¶ 12.

{¶28} The court distinguished between “the responses to the juror questionnaires

and the actual questions from which the responses were solicited.” (Emphasis sic.) Id.

at ¶ 13. “Whereas responses to juror questionnaires are completed by individual jurors,

the questions that elicit such responses are invariably written or approved by the trial

court.” (Emphasis sic.) Id. Therefore, “such questions serve to document the activities

of a public office and thereby satisfy the statutory definition of a ‘record’ under R.C.

149.011(G).” Id. Accordingly, the court held the “questionnaires without responses” were

subject to disclosure under the Public Records Act. Id.

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 {¶29} In State ex rel. Cincinnati Enquirer v. Ronan, 127 Ohio St.3d 236, 2010-

Ohio-5680, 938 N.E.2d 347, the Supreme Court of Ohio addressed the question of when

applications for the position of superintendent of a public school system became “records”

that could be obtained through R.C. 149.43. In that case, applicants submitted their

materials to a post office box, and the school district did not retrieve them until a specified

date. Id. at ¶ 2-3. A newspaper filed a complaint for a writ of mandamus, arguing that

the requested records became public records the moment the school district received

them in its post office box, regardless of when it opened the box and reviewed them. Id.

at ¶ 9. The Supreme Court of Ohio rejected this argument, concluding “the [newspaper]

was not entitled to the requested records until they were retrieved and used by the school

district in their job-selection process.” (Emphasis added.) Id. at ¶ 18.

Legal Analysis

{¶30} “[I]n order to establish that [the mental health survey results] are records for

purposes of R.C. 149.011(G) and 149.43,” Mr. Ames “must prove that [the survey results]

are (1) documents, devices, or items, (2) created or received by or coming under the

jurisdiction of the [public office], (3) which serve to document the organization, functions,

policies, decisions, procedures, operations, or other activities of the office. If Mr. Ames

“fails to prove any of these three requirements, [he] will not be entitled to a writ of

mandamus to compel access to the requested [survey results] because those records are

not subject to disclosure under the Public Records Act.” State ex rel. Dispatch Printing

Co. v. Johnson, 106 Ohio St.3d 160, 2005-Ohio-4384, 833 N.E.2d 274, ¶ 19.

{¶31} The mental health survey results satisfy the first and second requirements.

Specifically, they are “document[s]” or “electronic record[s]” that were “received by” a

“public office.” R.C. 149.011(G). However, based on the Supreme Court of Ohio’s

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precedent, the survey results do not meet the third requirement. The evidence submitted

on summary judgment indicates the survey results reflect the responses of a small

number of individual school district employees stating their personal opinions. The school

district made no decisions and took no action based on the survey results. Since the

school district did not conduct any business based on the survey results, it did not

“utilize[]” the survey results “to carry out its duties and responsibilities,” Mazzaro, supra,

at 39. Consequently, the results do not “serve[] to document the organization, functions,

policies, decisions, procedures, operations, or other activities of” the school district, R.C.

149.011(G), and disclosure would not ensure the accountability of the school district or

shed light on the school district’s performance of its statutory duties. See Bond, supra,

at ¶ 11.

{¶32} Mr. Ames’ opposition to summary judgment asserts legal arguments that

lack merit. For instance, Mr. Ames contends the athletic director made “decisions” and

took “actions” in creating the survey, implementing the survey via Google forms,

submitting it to school district staff, and compiling the results, while Dr. Toth made a

“decision” and took “action” in allowing the survey to be issued.

{¶33} Mr. Ames’ assertions may be valid if he were seeking the disclosure of the

survey itself. See Bond at ¶ 11. However, Mr. Ames did not request the survey, and it

appears he is already in possession of it. The survey results, by contrast, are

distinguishable. See id. at ¶ 13.

{¶34} Mr. Ames also contends Ms. Hoffmeister made a “decision” based on the

survey results when, because of the low response rate, she “did not, and would not, use

or otherwise rely upon the Survey results to make a decision or to take any action on

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behalf of the District.” According to Mr. Ames, this shows “a decision [was made] not to

proceed with the [survey’s] original-purpose * * * based on seeing the survey result[s].”

{¶35} In support, Mr. Ames cites this court’s decision in State ex rel. Ames v.

Portage Cty. Bd. of Commrs., 11th Dist. Portage No. 2016-P-0057, 2017-Ohio-4237. In

that case, Mr. Ames sued the Portage County Board of Commissioners for alleged

violations of R.C. 121.22, i.e., the Open Meetings Act. See id. at ¶ 1-2. Mr. Ames

asserted a claim based on R.C. 121.22(F), which provides, “A public body shall not hold

a special meeting unless it gives at least twenty-four hours’ advance notice to the news

media that have requested notification, except in the event of an emergency requiring

immediate official action.” R.C. 121.22(F). The board published notice of a “special

emergency meeting” on the same date it was held for the stated purposes of meeting with

the park district to discuss a hiking/biking trail and conducting budget meetings. Id. at ¶

2. The minutes reflected that the board held discussions and agreed to ask a county

official to send correspondence. See id. at ¶ 11, ¶ 38.

{¶36} Mr. Ames argued that because the board took no “official action” as a result

of the emergency session, there was no emergency to justify giving less than 24 hours’

notice. See id. at ¶ 36-37. We declined to reach the question of whether the board’s

activity during the meeting constituted “official action” under R.C. 121.22(F). Id. at ¶ 39.

Instead, we found no support for Mr. Ames’ assertion that “an emergency session is

invalid under R.C. 121.22(F) where a public body decides not to take official action at the

close of the session.” Id. We commented that “[t]he decision not to take action is

sometimes the best one and certainly not contrary to the purpose and intent of the

statute.” Id.

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 {¶37} The foregoing case involved a distinguishable setting and a different statute.

In addition, the board in that case held a public meeting, discussed public issues, and

agreed on at least one course of action. Under the Open Meetings Act, a “‘meeting’

means any prearranged discussion of the public business of the public body by a majority

of its members.” R.C. 121.22(B)(2). Here, by contrast, Ms. Schulz has averred that the

school board “has not discussed or deliberated over the Survey results in a Board

session” and “has not relied on the Survey results either directly or indirectly to make any

Board decision.”

{¶38} Mr. Ames next contends that since the school officials have seen the survey

results and cannot “unsee” them, the school district cannot say it has not “used” them.

{¶39} A similar situation was presented in Whitmore. Judge Whitmore conceded

“she could not ‘absolutely * * * wipe [her] mind clean of everything [she] receive[d] outside

of the presentence investigation,’ including the letters.” Id. at 62. However, she asserted

she “did not rely on any of the letters * * * to make her sentencing decision.” Id. While

the dissent argued Judge Whitmore’s review of the letters was legally sufficient, see id.

at 64-65 (Cook, J., dissenting), the majority rejected this reading of the statute.

{¶40} Here, only Ms. Hoffmeister’s affidavit supports an inference that she saw

the survey results. Unlike Judge Whitmore’s issuance of a sentencing decision in

Whitmore, the school district in this case did not subsequently implement any policies.

Thus, to the extent the school officials saw the survey results, it was not equivalent to the

school district using them to carry out its statutory duties.

{¶41} Finally, Mr. Ames contends that the school district’s “promise” to take

“beneficial action” in response to the survey results is sufficient. In particular, he notes

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the survey explicitly stated the school intended to implement strategies based on the

identified concerns.

{¶42} As explained, the Supreme Court of Ohio expressly rejected the argument

that a document is a “record” under R.C. 149.011(G) if the public office “could use” the

documents to carry out its public functions. (Emphasis sic.) Whitmore at 63. In addition,

in Ronan, supra, the court held that a public office’s solicitation of documents did not

create a dispositive distinction, stating, “Although [relator] attempts to distinguish our

holding in Whitmore based on the unsolicited nature of the letters at issue there as

opposed to the information solicited by the school district in this case, we do not find this

distinction dispositive.” (Emphasis added.) Id. at ¶ 15.

{¶43} The dissent contends that Mr. Ames is entitled to summary judgment. The

dissent’s arguments reflect a misapprehension of the applicable law and the evidentiary

record.

{¶44} For instance, the dissent contends this court is required to liberally construe

the Public Records Act in favor of access and to strictly construe exceptions to disclosure.

Contrary to the dissent’s assertion, however, this case does not involve an “exception”

under the Public Records Act. It involves the meaning of “records,” and we are bound by

the Supreme Court of Ohio’s construction of this statutory term.

{¶45} The dissent erroneously claims the school board “created” and/or “issued”

the survey and “collected” the “data” from the district employees. The evidentiary record

does not support these assertions. As stated, the school district’s athletic director issued

the survey, and it is not clear from the record who created the survey or collected the

responses. In any event, the second requirement for a “record” is met if the public office

created or received the document. See Johnson, supra, at ¶ 19. The school district

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concedes it received the survey results. Therefore, in addition to being incorrect, the

dissent’s assertions do not support a contrary result.

{¶46} The dissent also erroneously claims R.C. 149.011(G) does not require a

public office to “utilize or make decisions based on a particular document in order for it to

constitute a public record.” However, the Supreme Court of Ohio has consistently

construed the statute in this manner. While the dissent may believe Whitmore and its

progeny were wrongly decided, this court has no authority to issue a decision in conflict

with Supreme Court decisions that have not been reversed or overruled. See State v.

Haynes, 11th Dist. Lake No. 2022-L-009, 2022-Ohio-4464, ¶ 39.

{¶47} The dissent then acknowledges Whitmore’s holding but claims the fact

Judge Whitmore did not “utilize” the letters in that case was only “material” because she

neither “created” nor “solicited” them. Whitmore says no such thing, and the Supreme

Court of Ohio’s subsequent precedent holds otherwise. In Wilson-Simmons, supra, the

creation of racist email by public employees via the public office’s email system did not

render them public records. See id. at 42. In Ronan, the public office’s solicitation of

documents did not render them public records. See id. ¶ 15.

{¶48} The dissent next contends the survey results “document the operation of

the district” because “they reflect the negative influence of work on the employees’ mental

health.” (Emphasis added.) The dissent is apparently referencing the contents of the

survey results that the respondents filed under seal in this case, which is wholly improper.

Further, the dissent’s focus on the word “operations” in R.C. 149.011(G) does not

meaningfully distinguish this case from the Supreme Court’s precedent.

{¶49} Finally, the dissent claims our decision is contrary to the Supreme Court of

Ohio’s decisions in Mazzaro, supra; State ex re. Data Trace Information Servs., L.L.C. v.

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Cuyahoga Cty. Fiscal Officer, 131 Ohio St.3d 255, 2012-Ohio-753, 963 N.E.2d 1288; and

State ex rel. O’Shea & Assocs. Co., L.P.A. v. Cuyahoga Metro. Hous. Auth., 131 Ohio

St.3d 149, 2012-Ohio-115, 962 N.E.2d 297. The dissent fails to articulate how this is

purportedly so. A review of those cases demonstrates they are inapposite.

{¶50} In sum, the record and the applicable precedent demonstrate there are no

genuine issues of material fact and respondents are entitled to judgment as a matter of

law. The requested mental health survey results do not constitute “records” under R.C.

149.011(G) subject to disclosure as “public records” under R.C. 149.43. Our in camera

review of the results does not compel a contrary conclusion. Accordingly, Mr. Ames does

not have a clear legal right to a writ of mandamus directing respondents to provide the

mental health survey results, and respondents do not have a corresponding clear legal

duty to provide them.

{¶51} For the foregoing reasons, respondents’ motion for summary judgment is

granted, and Mr. Ames’s motion for summary judgment is overruled. Mr. Ames’ petition

for a writ of mandamus is denied.

JOHN J. EKLUND, P.J., concurs,

MATT LYNCH, J., dissents with a Dissenting Opinion.

____________________

MATT LYNCH, J., dissents with a Dissenting Opinion.

{¶52} I respectfully dissent and would grant summary judgment in favor of Relator,

Brian M. Ames, and issue a writ of mandamus directing the Respondents to provide him

with copies of the requested survey results. These responses from public employees to

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a survey issued by a public office for the purpose of addressing the public employees’

performance and the public office’s handling of the employees’ feelings of “burnout” are

quintessentially public records. Accordingly, Ames is entitled to the writ of mandamus.

{¶53} When considering a public records request, the Supreme Court of Ohio has

consistently affirmed that the courts should “construe the Public Records Act liberally in

favor of broad access and resolve any doubts in favor of disclosure of public records.”

State ex rel. Sultaana v. Mansfield Corr. Inst., __ Ohio St.3d __, 2023-Ohio-1177, __

N.E.3d __, ¶ 21. Conversely, “[e]xceptions to disclosure under the Public Records Act

are strictly construed against the public-records custodian, and the custodian has the

burden to establish the applicability of an exception.” State ex rel. Miller v. Ohio State

Hwy. Patrol, 136 Ohio St.3d 350, 2013-Ohio-3720, 995 N.E.2d 1175, ¶ 23.

{¶54} The purpose of the Public Records Act “is to expose government activity to

public scrutiny, which is absolutely essential to the proper working of a democracy.”

(Citation omitted.) State ex rel. Gannett Satellite Information Network, Inc. v. Petro, 80

Ohio St.3d 261, 264, 685 N.E.2d 1223 (1997); State ex rel. Strothers v. Wertheim, 80

Ohio St.3d 155, 158, 684 N.E.2d 1239 (1997) (“[o]ne of the salutary purposes of the Public

Records Law is to ensure accountability to those being governed”). “Scrutiny of public

records allows citizens to evaluate the rationale behind government decisions so that

government officials can be held accountable.” State ex rel. Fair Housing Opportunities

of Northwest Ohio v. Ohio Fair Plan, 2022-Ohio-385, 184 N.E.3d 952, ¶ 48 (10th Dist.).

{¶55} Public Records are defined as “records kept by any public office, including

* * * school district units.” R.C. 149.43(A)(1). Records are defined to include “any

document * * * created or received by * * * any public office of the state * * * which serves

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to document the organization, functions, policies, decisions, procedures, operations, or

other activities of the office.” R.C. 149.011(G).

{¶56} Ames requested from the Respondents “the records documenting the

results of the public health survey” conducted by the Crestwood LSD Board of Education.

As noted by the majority, this survey was issued to school district employees “to establish

a baseline for how well Crestwood Local Schools is doing with recognizing,

acknowledging, and implementing strategies to address Mental Health-

Wellbeing/Burnout Feeling. With this data, Crestwood Local Schools intends * * * to

implement strategies that can be utilized by both staff and students to reduce the feeling

of ‘burnout’ and increase Mental Health-Wellbeing.” Among the questions comprising the

survey, employees were asked “AT WORK, what NEGATIVELY influences your mental

health-wellbeing” and “why is it a negative influencing factor.” Under a plain reading of

the Public Records Act, the collection of data by a public office from its own employees

relating to their employment for the purpose of adopting “strategies” for use not only by

employees but also by students constitutes a public record. Disclosure of the survey

results would allow citizens to evaluate the rationale behind the Respondents’ decisions

so as to ensure accountability.

{¶57} To reiterate, Ames’ records request falls squarely within the statutory

definition given above: the documents requested were created and received by the Board

of Education to document the “mental health-wellbeing” of its employees and how the

work environment affects their mental health-wellbeing for the purpose of adopting

policies to improve their mental health-wellbeing. The majority concludes, however, that

the documents fail to even meet the “threshold” definition of what constitutes a public

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record. The majority reaches its conclusion through a misapplication of case law in

derogation of the plain and ordinary meaning of the statutory definition.

{¶58} The majority concludes the survey results do not constitute public records

because the Board of Education did not “utilize” the survey results, i.e., “made no

decisions and took no action based on the survey results.” Supra at ¶ 33. It cannot be

overemphasized that there is no requirement in R.C. 149.011(G) that a public office utilize

or make decisions based on a particular document in order for it to constitute a public

record. If a record otherwise documents the organization, functions, policies, decisions,

procedures, operations, or other activities of a public office, the fact that the record was

not utilized to make a decision should not exempt it from being considered a public record.

{¶59} As an initial matter, it can be fairly argued that both the survey and its results

were actions taken by the Board of Education. The survey was created by an employee

of the district for the purpose of assisting the district in creating policies applicable to both

staff and students. The survey was sent to other school district employees who, by

responding to the survey, created the survey results. These results were then reviewed

by another district employee who concluded that “due to the low number of respondents,

the Survey results did not accurately represent the staff population.” The responses to

the survey document the operation of the district inasmuch as they reflect the negative

influence of work on the employees’ mental health. There is no reason why these results

should not be subject to public scrutiny. Likewise, it was determined that these responses

were not representative of the staff population. Again, there is no reason why this

decision should not be subject to public scrutiny. Compare State ex rel. Ames v. Portage

Cty. Bd. of Commrs., 11th Dist. Portage No. 2016-P-0057, 2017-Ohio-4237, ¶ 39

(rejecting the argument that the decision not to take official action during an emergency

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session violated the Open Meetings Act: “[t]he decision not to take action is sometimes

the best one”).

{¶60} The majority relies on State ex rel. Beacon Journal Publishing Co. v.

Whitmore, 83 Ohio St.3d 61, 697 N.E.2d 640 (1998), for the proposition that a public entity

must utilize a document before it constitutes a public record. In Whitmore, a sentencing

judge received letters from the public which she read but did not utilize when imposing

sentence. The supreme court concluded that, because the judge “never utilized the

letters in her sentencing decision,” they were “not subject to disclosure because they do

not serve to document the organization, functions, policies, decisions, procedures,

operations, or other activities of Judge Whitmore’s office.” Id. at 63. The majority

misinterprets this to mean that unless a document is utilized in making a decision it cannot

constitute a public record. That interpretation greatly narrows and restricts the scope of

the public records law contrary to the supreme court’s intent. The fact that the judge in

Whitmore did not utilize the letters in making her decision was material only because the

letters were neither created nor solicited by the sentencing judge. They did not otherwise

fall squarely within the statutory definition of a public record. Interpreting the definition

broadly, the court recognized that even such records should be subject to disclosure if

duly and appropriately utilized in the operation of the public office.

{¶61} The court in Whitmore cited other supreme court case law stating that the

definition of a public record in “R.C. 149.011(G) is broad enough to encompass ‘anything

a governmental unit utilizes to carry out its duties and responsibilities.’” State ex rel.

Mazzaro v. Ferguson, 49 Ohio St.3d 37, 39, 550 N.E.2d 464 (1990), citing State ex rel.

Jacobs v. Prudoff, 30 Ohio App.3d 89, 92, 506 N.E.2d 927 (9th Dist.1986); see also State

ex rel. Rea v. Ohio Dept. of Edn., 81 Ohio St.3d 527, 530, 692 N.E.2d 596 (1998) (“R.C.

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149.43 has been construed broadly to include ‘anything a public office utilizes to carry out

its duties and responsibilities’”). Two points should be emphasized here. First, the

allowance that anything utilized by a public office in carrying out its duties and

responsibilities could be considered a public record is consistent with the principle that

the records act should be construed liberally in favor of broad access to public records.

Second, the utilization of the documents does not have to have been made in connection

with a formal decision or act of the public office. The document need only be utilized in

carrying out the duties and responsibilities of the public office, such as formulating policies

for the health and well-being of staff and students. The majority’s emphasis on the failure

of the Board of Education to “utilize” the survey results to take affirmative action on behalf

of the district is contrary to both points.

{¶62} Under the majority’s approach to the public records law, there are broad

categories of documents, such as meeting minutes, investigative reports, and internal

assessments, that could be excluded from scrutiny merely because they were not used

as a basis for taking formal action. Such a strict utility-based approach is not reconcilable

with the results of the following cases: Mazzaro at 39-40 (documents used in preparation

of a municipal audit); State ex rel. Data Trace Information Servs., L.L.C. v. Cuyahoga Cty.

Fiscal Officer, 131 Ohio St.3d 255, 2012-Ohio-753, 963 N.E.2d 1288, ¶ 28-41 (deeds,

mortgages, liens, leases, releases and other documents maintained in the county

recorder’s office); State ex rel. O’Shea & Assocs. Co., L.P.A. v. Cuyahoga Metro. Hous.

Auth., 113 Ohio St.3d 149, 2012-Ohio-115, 962 N.E.2d 297, ¶ 23-36 (questionnaires and

medical-release authorizations documenting incidents of lead poisoning).

{¶63} Of course, not every “piece of paper” or document created or received by a

public employee constitutes a public record. Whitmore at 64. Thus, racist emails and

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information about prospective jurors’ medical histories, criminal records, and religious

beliefs are not public records primarily because they do not document the operation of a

public office (although they could be deemed public records if utilized by a public office in

carrying out its duties and responsibilities). Supra at ¶ 28-29. The survey results at issue

herein are not such incidental documents unrelated to the operation of the school district.

They were created by the district and for the purpose of “establish[ing] a baseline for how

well Crestwood Local Schools is doing with recognizing, acknowledging, and

implementing strategies to address Mental Health-Wellbeing/Burnout Feeling” in order “to

implement strategies that can be utilized by both staff and students to reduce the feeling

of ‘burnout’ and increase Mental Health-Wellbeing.” Thus, the results already document

the operation of the district without any need of further utilization by the district to justify

their disclosure.

{¶64} For the foregoing reasons, Ames is entitled to judgment on his Petition for

Writ of Mandamus. Disclosure of the survey results serves the Public Records Act’s goal

of holding public offices accountable and is consistent with the liberal construction of the

Act mandated by the supreme court. I respectfully dissent.

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