Special master issues recommendation


By D. Anthony Botkin - abotkin@aimmediamidwest.com



The Ohio Court of Claims has received the recommendation of Special Master Jeff Clark in the claim of denying public records to a resident by Orange Township officials.

Stacey Neff, Orange Township resident, filed a complaint with the court Oct. 10, 2017, when she did not receive requested public documents.

Trustee Lisa Knapp is named in Neff’s case, but Clark points out in his recommendation that, “… Neff’s request was directed to Fiscal Officer Spitzer, who is by statute the person responsible for the administrative records of the township. … The duty to produce responsive records in compliance with (Ohio Revised Code) may thus fall on the township, Spitzer, and/or Knapp, depending on the facts and circumstances of each request.”

According to court documents, Neff made a public records request to Spitzer in September asking for:

1) The personnel file of Knapp

2) Any records of requests from Knapp for the township’s financial records

3) Any communications from or to Knapp related to a forensic audit, including communications sent to the state auditor or a private auditing firm

4) The attendance record for Knapp, including the meeting type and date, since taking office

5) Any communications regarding legal implications of videotaping or recording of township meetings or internet posts

6) Any information regarding the cost of insurance to protect Orange Township against lawsuits related to YouTube videos or trustee internet posts

Clark states, “The parties do not dispute that the requested documents constitute “records” within the meaning of … or that Orange Township is a respondent to this action as a public office.”

“When statutes impose a duty on a particular official to oversee records, that official is the ‘person responsible’ under the (Ohio Revised Code),” Clark states. “However, Spitzer did not provide Neff with copies of requested records in his keeping, or reject the request as ambiguous or overly broad, or assert any exception, or respond that the records did not exist.”

In a March 5 trustee meeting discussing the Court of Claims case, Spitzer told trustees, “(The records were) intentionally not provided to the Court of Claims as I was waiting on representation from the county prosecutor, but they said they were conflicted out.”

According to Clark, the Public Records Act requires cooperation in clarifying ambiguous and overly broad requests with the goal of identifying the sought out records. He states that when such a request is denied, the Ohio Revised Code requires the public office to provide an opportunity for the requester to revise the request.

“Respondent (township, Spitzer, and/or Knapp) offers no evidence that the township informed Neff of the manner in which its records are maintained and accessed, or that it invited a revised request … ,” Clark states. “Spitzer’s failure to provide township records responsive to this request was a violation of (Ohio Revised Code), and his failure to provide an explanation for denial of production was a violation of (Ohio Revised Code).

Court documents indicate that Spitzer was able to supply many of the requested items except those not under his control because those items were controlled by Knapp.

Clark states, “Neff may of course file a new public record request for any additional township records she believes to exist.”

Clark’s recommendation to the court is, “I recommend that the court deny Neff’s claim for production of records responsive to request No. 2 as moot.”

A change in township policy on public document request was made March 5 naming the Township Administrator Lee Bodnar as the new public records custodian.

Bodnar delivered the records in Neff’s N0. 2 request, “any records of requests from Knapp for the township’s financial records.”

“I further recommend that the court grant Neff’s claim for production of the records responsive to request No. 3 submitted under seal,” Clark states.

Knapp had submitted what she claimed to be records of a sensitive nature under seal to the court.

“Neff has shown clear and convincing evidence that the township violated (Ohio Revised Code) by not offering evidence that informed Neff of the manner in which its records are maintained and accessed, or that it invited a revised request of No. 5 nor No.3. This constitutes a per se violation of (Ohio Revised Code),” Clark states. “However, … Neff does not ask that respondent be ordered to inform her of the way the township maintains its records and thus is not entitled to relief other than this finding of violation.

Both parties have filed responses to the special master’s recommendation. The case will now go before a judge of the court for a ruling.

By D. Anthony Botkin

abotkin@aimmediamidwest.com

Contact D. Anthony Botkin at 740-413-0902 or follow him on Twitter @dabotkin.

Contact D. Anthony Botkin at 740-413-0902 or follow him on Twitter @dabotkin.

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