Memorandum in Opposition To Motion For in Camera Review and Protective Order

FIRST DISTRICT COURT OF APPEALS
HAMILTON COUNTY, OHIO
STATE OF OHIO ex rel. Mark W. : CASE No. C1800224

Miller
: RELATOR’S MEMORANDUM IN
Relator, OPPOSITION TO MOTION TO
: SUBMIT DOCUMENTS FOR IN
v. CAMERA INSPECTION, MOTION
: FOR PROTECTIVE ORDER, AND
ALEXANDER PAUL GEORGE MOTION TO MODIFY THE
SITTENFELD, et al. : SCHEDULING ORDER
Respondents. : DISCOVERY RESPONSES

ATTACHED HERETO
:
Comes now Mark Miller, on relation to the State of Ohio (“Miller” or “Relator”), by and
through undersigned counsel, and hereby tenders the following memorandum in opposition to the
Respondents’ motion to submit documents for an In Camera inspection, motion for a protective
order and motion to modify the scheduling order. Attached hereto as Exhibits 1-5 are copies of the
Respondents’ Responses to Relator’s Requests for Admission.
Respectfully submitted,
/s/ Brian C. Shrive

Brian C. Shrive (0088980)
Christopher P. Finney (0038998)
FINNEY LAW FIRM, LLC
4270 Ivy Pointe Blvd., Suite 225
Cincinnati, Ohio 45245
(513) 943-6656
(513) 943-6669 (fax)
brian@finneylawfirm.com
chris@finneylawfirm.com
Attorneys for Relator Mark W. Miller

MEMORANDUM
State of the Case
This case arises from the refusal of five members of the Cincinnati City Council to comply
with their obligations under Ohio’s Public Records Act, R.C. 149.43. Relator tendered a public
records request seeking copies of their communications regarding the public business during a
nineteen day period. Respondents, through the attached Responses to the Relator’s Requests for
Admission, admit that additional responsive records exist, but dispute whether the records are
“public records” as defined in the Public Records Act.
Respondents seek to have this case decided without participating in any meaningful
discovery or offering any stipulations to allow this court to limit the issues necessary for litigation.
For example, in response to Relator’s Requests for Admission, the Respondents refuse to even
admit that the Relator is a resident and taxpayer of the City of Cincinnati. By comparison, in a case
cited to by the Respondents, State ex rel. Glasgow v. Jones, 119 Ohio St.3d 391, 2008-Ohio-4788,
894 N.E.2d 686, an original mandamus action before the Ohio Supreme Court, the parties
submitted 3 volumes of stipulated evidence to the Supreme Court.
Respondents’ motion is disingenuous
While the Respondents’ motion speaks only to text messages, Relator seeks production of
not only text messages, but also emails from the Respondents. While admittedly, no Ohio Court
has specifically declared that text messages are records, neither has any Ohio Court specifically
stated categorically that text messages are not public records. In State ex rel. Glasgow v. Jones,
119 Ohio St.3d 391, 2008-Ohio-4788, 894 N.E.2d 686, the only Ohio Supreme Court case
addressing this issue, rested it decision with respect to text messages on the case specific
determination that the text messages at issue did not discuss public business. “The evidence is
2
uncontroverted that Jones's text messages do not document work-related matters. They are
therefore not records subject to R.C. 149.43.” Id., at ¶ 25.
In the present case, the uncontroverted evidence establishes that the text messages and
emails at issue most certainly do document work-related matters, and some of which were
transmitted between the Respondents during Cincinnati City Council meetings. Exhibits 1-5,
Respondents’ Responses to Relator’s Requests for Admissions Nos. 1-5. Unquestionably,
communications made during a public meeting document the functions and activities of the public
office. See, Foulk v. City of Upper Arlington, Ct. of Cl. No. 2017-00132-PQ, 2017-Ohio-4249, ¶
14 ( “. . . [p]ublic body members thus have no expectation to engage in confidential communication
during a public meeting conducted under the Open Meetings Act.”)
Further, a private citizen, Derek Bauman, recently filed motion to intervene in the open
meetings case before the Hamilton County Court of Common Pleas.1 Mr. Bauman’s proposed
Complaint included as an exhibit a text message chain that is responsive to the public records
request at the heart of this case. (A copy of Bauman’s Motion is attached hereto as Exhibit 6) In a
recent newspaper article about that filing, Mr. Bauman’s attorney acknowledged that he obtained
the text messages “from several councilmembers, including [Respondent] Sittenfeld.”2 Thus, the
Respondents’ motion is at best disingenuous, and at worst little more than a ploy to enmesh this
Court into petty political gamesmanship.
1
State Ex rel. Miller v. Sittenfeld, et al. Hamilton County Court of Common Pleas, Case No. A1801834.
2
Cincinnati Enquirer, “Smitherman vs. Sittenfeld: Texting dispute snags Cincinnati’s next mayoral
hopefuls” online at https://www.cincinnati.com/story/news/politics/2018/07/10/city-hall-texting-lawsuit-
snares-cincinnati-mayoral-hopefuls/773286002/ last accessed on July 11, 2018 at 3:30 p.m.
3
R.C. 149.43 is a remedial statute to be liberally construed
The Respondents suggest that because the Councilmembers themselves maintain the
requested records on their personal phones and email accounts (rather than being retained by the
Clerk of Council), that the requested records are not records. However, this argument is simply
too clever by half, and ignores both the requirements set forth in R.C. 1.11 and Ohio Supreme
Court precedent that R.C. 149.43 be liberally construed. “[T]here is no question that R.C. 149.43
is a remedial statute and, as a consequence, ‘[r]emedial laws and all proceedings under them shall
be liberally construed in order to promote their object and assist the parties in obtaining justice.’”
State ex rel. Fenley v. Ohio Historical Soc., 64 Ohio St.3d 509, 514, 1992-Ohio-2, 597 N.E.2d
120, quoting R.C. 1.11.
Further, the City’s own records retention schedule addresses this issue as it relates to
emails3:
The retention schedule identifies “City Council” as a “Department” of the City, of which
the Councilmembers are public officers. R.C. 149.011 defines “Public office” to include “any state
agency, public institution, political subdivision, or other organized body, office, agency,
institution, or entity established by the laws of this state for the exercise of any function of
3
Available online at https://www.cincinnati-oh.gov/law/linkservid/7A3B4C7F-EEC8-6152-
F36146B4842B9D3D/showMeta/0/ last accessed on July 11, 2018 at 3:30 p.m.
4
government.”4 The Ohio Supreme Court declared in Glasgow that, “The Ohio House of
Representatives is a public office, and Representative Jones is a public official subject to R.C.
149.43.” Glasgow, at ¶ 15. Likewise, the Cincinnati City Council is a public office, and the
Respondent City Councilmembers are public officials subject to R.C. 149.43.
With respect to the records at issue in this case, because the Councilmembers failed to
forward the records on to the Clerk of Council, the members themselves are the “person
responsible” for the records, and as such, the request was properly directed to the members
themselves:
“Subject to division (B)(8) of this section, upon 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.” (R.C. 149.43(B)(1)). Upon the failure of a public office
or person responsible to provide the requested records, the requester is authorized to, “[c]ommence
a mandamus action to obtain a judgment that orders the public office or the person responsible for
the public record to comply with division (B) of this section” (R.C. 149.43(C)(1)(b)).
The Councilmember Respondents are the persons responsible for the public records, they
have refused to provide the requested records, and as such, this action is appropriate to obtain a
judgment that orders them to comply with the Public Records Act.
The Respondents’ arguments only hold water if the Court ignores the express direction of
the Ohio Legislature and Ohio Supreme Court to construe R.C. 149.43 liberally, and that liberal
construction means reaching beyond the specific words of the statute when necessary to suppress
the targeted mischief:
4
Available online at https://www.cincinnati-oh.gov/law/linkservid/7A439C75-F7DF-137D-
999F0300243F309D/showMeta/0/ last accessed on July 11, 2018 at 3:30 p.m.
5
The words of a remedial statute are to be construed largely and beneficially, so as
to suppress the mischief and advance the remedy. It is by no means unusual, in
construing remedial statutes, to extend the enacting words beyond their natural
import and effect, in order to include cases within the same mischiefs.
Lape v. Lape, 99 Ohio St. 143, 149, 124 N.E. 51 (1918), quoting, Admx. of Tracy v. Admr. of Card,
2 Ohio St., 431 further quoting (Quoting Dwarr. on Stats., 734, 735.)
In this instance, the mischief to be suppressed is the secreting away of public records and
communications between public officials about public business. For the Respondents’ to prevail
in this case would require a rigid reading of the statute, which as noted above is forbidden.
Respondents’ motion is premature
While ultimately an in camera inspection may be necessary to decide this case, it should
not be done without at least some discovery aimed at narrowing the issues for the Court. Attached
hereto are the Respondents’ responses to the Relator’s Requests for Admission. Relator intends to
pursue full responses to requests 6-15, as they involve the application of law to fact and are thus
appropriate for Requests for Admission. Irrespective of that issue, the Respondents responses to
the first five Requests for Admission make clear that there are additional records of
communications between Cincinnati City Councilmembers about the public business (some during
public meetings), both in text message and email format to be produced.
Essentially, the respondents seek to have this Court reward them for their bad behavior in
failing to comply with their obligations to turn over their communications to the clerk of Council,
and to somehow allow that failure to provide them safe harbor from Ohio’s public records laws.
While it may be that a specific discovery request in this case may appropriately be limited,
additional interrogatories and depositions aimed at determining the general nature of the
communications are necessary to narrow the issues and facts to present to the Court, and to allow
6
the establishment of a factual record so as to permit Relator to make an informed argument to the
Court.
Conclusion
In light of the Respondents’ delay in responding to discovery requests, and the further delay
resulting from the Respondents’ filing of the motion at hand, Relator respectfully suggests that the
Court issue a new scheduling order that establishes a deadline for providing joint stipulations (and
ordering good faith efforts toward such stipulations); permits discovery, including depositions
(although not requiring the production of the contested documents as part of the discovery in this
case) and permits the filing of motions within a reasonable time after the close of discovery and
filing of agreed stipulations.
Then, should the Court find it necessary to conduct an in camera review of the contested
records, the Court would be able to conduct a review fully informed of the stipulated and contested
facts and points of law.
/s/ Brian C. Shrive

Cincinnati, Ohio 45245
(513) 943-6656
(513) 943-6669 (fax)
Attorneys for Relator Mark W. Miller
7
CERTIFICATE OF SERVICE
The undersigned counsel does hereby certify that a copy of the foregoing will be served
upon the following via email this 12 day of July 2018:
Terrance A. Nestor (0065840)

Deputy City Solicitor
Emily E. Woerner (0089349)
Assistant City Solicitor
801 Plum Street, Suite 214
Cincinnati, OH 45202
(513) 352-3327
(513) 352-1515 (fax)
terry.nestor@cincinnati-oh.gov
emily.woerner@cincinnati-oh.gov
Attorneys for Respondents
/s/ Brian C. Shrive

8
EXHIBIT 1
IN THE COURT OF APPEALS

FIRST APPELLATE DISTRICT OF OHIO

Miller
:
Relator, RESPONDENT WENDELL
: YOUNG’S RESPONSE TO
v. RELATOR’S REQUESTS FOR
: ADMISSION
ALEXANDER PAUL GEORGE
SITTENFELD, et al. :
Respondents. :
Requests for Admissions Responses
1. Admit that on at least one occasion between March 1, 2018, and March 19, 2018
(inclusive), you Communicated via text message with at least one other member of
the Cincinnati City Council about either John Cranley or Harry Black.
Response: Admit.
2. Admit that at least one of the Communications admitted to in response to Request
No. 1 was in a text message other than the text message chain attached to the
Complaint in this matter as Exhibit 4. A copy of Exhibit 4 is provided herewith.
Response: Admit.
3. Admit that on at least one of the Communications admitted to in response to
Request No. 2 occurred during a meeting of the Cincinnati City Council at which
you were physically present and at least one other person with whom you were
communicating was also physically present.
Response: Deny.
{00262030-1}
(inclusive), you communicated via email with at least one other member of the
Cincinnati City Council about either John Cranley or Harry Black.
Response: Admit.
Request No. 4 was in an email or group of emails other than the emails attached to
the Complaint in this matter as Exhibit 6. A copy of Exhibit 6 is provided herewith.
Response: Admit.
6. Admit that the Complaint filed in this litigation does not fail to state a claim for
which relief can be granted.
Response: Objection – this request calls for a legal conclusion that is not a proper
request under Civil Rule 36, and the request is denied.
7. Admit that the Ohio Court of Appeals for the First Appellate District has subject
matter jurisdiction over the Litigation.
8. Admit that, other than the writ of mandamus or alternative writ of mandamus
prayed for in the Complaint, Relator does not have an adequate remedy at law with
respect to the Litigation.
{00262030-1} 2
9. Admit that Relator has standing to bring the Litigation.
10. Admit that with respect to the Litigation, the case is justiciable.
11. Admit that the Complaint is not barred by the doctrine of res judicata.
12. Admit that the Complaint is not barred by collateral estoppel.
13. Admit that the Complaint was filed within the applicable statute of limitations.
request under Civil Rule 36, and Respondent is unable to admit or deny the request
as discovery is ongoing.
14. Admit that there are no additional parties whose joinder is necessary to a just
adjudication of the Litigation.
request under Civil Rule 36, and, further, Respondent is unable to admit or deny
the request as discovery is ongoing.
{00262030-1} 3
15. Admit that the Relator Mark Miller is a taxpayer and resident of the City of
Cincinnati.
Response: Respondent is unable to admit or deny this request as discovery has not
been conducted on this topic.
s/ Emily E. Woerner
(513) 352-3327
(513) 352-1515 (fax)
I certify that a true and accurate copy of the foregoing will be served, via electronic
and regular mail, on the 3rd day of July 2018, upon the following:
(513) 943-6656
(513) 943-6669 (fax)
Attorneys for Relator
s/Emily E. Woerner
{00262030-1} 4
EXHIBIT 2


Miller
:
Relator, RESPONDENT CHRISTOPHER
: SEELBACH’S RESPONSE TO
: ADMISSION
Respondents. :
Response: Admit.
Response: Admit.
{00262019-1}
Response: Respondent is unable to truthfully admit or deny this request without
matching the timestamps of any communications with the exact times that Council
was in session, including any recesses; however, Respondent’s best recollection is
to deny the request.
Response: Admit.
Response: Admit.
{00262019-1} 2
{00262019-1} 3
Cincinnati.
s/ Emily E. Woerner
(513) 352-3327
(513) 352-1515 (fax)
(513) 943-6656
(513) 943-6669 (fax)
{00262019-1} 4
s/Emily E. Woerner
{00262019-1} 5
EXHIBIT 3


Miller
:
Relator, RESPONDENT P.G.
: SITTENFELD’S RESPONSE TO
: ADMISSION
Respondents. :
Response: Admit.
Response: Admit.
Response: Admit.
{00262018-1}
Response: Admit.
Response: Admit.
{00262018-1} 2
{00262018-1} 3
Cincinnati.
s/ Emily E. Woerner
(513) 352-3327
(513) 352-1515 (fax)
(513) 943-6656
(513) 943-6669 (fax)
s/Emily E. Woerner
{00262018-1} 4
EXHIBIT 4


Miller
:
Relator, RESPONDENT WENDELL
: YOUNG’S RESPONSE TO
: ADMISSION
Respondents. :
Response: Admit.
Response: Admit.
Response: Admit.
{00262024-1}
Response: Admit.
Response: Admit.
{00262024-1} 2
{00262024-1} 3
Cincinnati.
s/ Emily E. Woerner
(513) 352-3327
(513) 352-1515 (fax)
(513) 943-6656
(513) 943-6669 (fax)
s/Emily E. Woerner
{00262024-1} 4
EXHIBIT 5


Miller
:
Relator, RESPONDENT TAMAYA
: DENNARD’S RESPONSE TO
: ADMISSION
Respondents. :
Response: Admit.
Response: Admit.
Response: Admit.
{00262017-1}
Response: Admit.
Response: Admit.
{00262017-1} 2
{00262017-1} 3
Cincinnati.
s/ Emily E. Woerner
(513) 352-3327
(513) 352-1515 (fax)
(513) 943-6656
(513) 943-6669 (fax)
s/Emily E. Woerner
{00262017-1} 4
EXHIBIT 6

Memorandum in Opposition To Motion For in Camera Review and Protective Order

Uploaded by

Document Information

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Memorandum in Opposition To Motion For in Camera Review and Protective Order

Uploaded by

Copyright:

Available Formats

FIRST DISTRICT COURT OF APPEALS

HAMILTON COUNTY, OHIO

STATE OF OHIO ex rel. Mark W. : CASE No. C1800224

Respondents. : DISCOVERY RESPONSES

Respondents’ Responses to Relator’s Requests for Admission.

/s/ Brian C. Shrive

Attorneys for Relator Mark W. Miller

State of the Case

“public records” as defined in the Public Records Act.

submitted 3 volumes of stipulated evidence to the Supreme Court.

Respondents’ motion is disingenuous

therefore not records subject to R.C. 149.43.” Id., at ¶ 25.

Respondents’ Responses to Relator’s Requests for Admissions Nos. 1-5. Unquestionably,

14 ( “. . . [p]ublic body members thus have no expectation to engage in confidential communication

during a public meeting conducted under the Open Meetings Act.”)

Court into petty political gamesmanship.

120, quoting R.C. 1.11.

Respondent City Councilmembers are public officials subject to R.C. 149.43.

the targeted mischief:

Respondents’ motion is premature

public meetings), both in text message and email format to be produced.

filing of agreed stipulations.

facts and points of law.

/s/ Brian C. Shrive

Attorneys for Relator Mark W. Miller

upon the following via email this 12 day of July 2018:

Terrance A. Nestor (0065840)

Attorneys for Respondents

/s/ Brian C. Shrive

IN THE COURT OF APPEALS

STATE OF OHIO ex rel. Mark W. : CASE No. C1800224

Requests for Admissions Responses

2. Admit that at least one of the Communications admitted to in response to Request

Complaint in this matter as Exhibit 4. A copy of Exhibit 4 is provided herewith.

3. Admit that on at least one of the Communications admitted to in response to

communicating was also physically present.

Cincinnati City Council about either John Cranley or Harry Black.

5. Admit that on at least one of the Communications admitted to in response to

the Complaint in this matter as Exhibit 6. A copy of Exhibit 6 is provided herewith.

which relief can be granted.

matter jurisdiction over the Litigation.

respect to the Litigation.

12. Admit that the Complaint is not barred by collateral estoppel.

adjudication of the Litigation.

Attorneys for Relator

IN THE COURT OF APPEALS

STATE OF OHIO ex rel. Mark W. : CASE No. C1800224

Requests for Admissions Responses

2. Admit that at least one of the Communications admitted to in response to Request

Complaint in this matter as Exhibit 4. A copy of Exhibit 4 is provided herewith.

3. Admit that on at least one of the Communications admitted to in response to

communicating was also physically present.

was in session, including any recesses; however, Respondent’s best recollection is

to deny the request.

Cincinnati City Council about either John Cranley or Harry Black.

5. Admit that on at least one of the Communications admitted to in response to

the Complaint in this matter as Exhibit 6. A copy of Exhibit 6 is provided herewith.

which relief can be granted.

matter jurisdiction over the Litigation.

respect to the Litigation.

9. Admit that Relator has standing to bring the Litigation.

12. Admit that the Complaint is not barred by collateral estoppel.

adjudication of the Litigation.