We have added a new category – “Community Activist Training”. All articles that provide citizens with information about their rights to ensure transparency in government will be filed in this category.
Here is great article written by our friends at Auburntownship.org. It details a Geauga citizen’s fight for records from their Prosecutor. It also explains what a “mandamus” action is all about.
What is a public servant’s responsibility to provide and maintain transparency about his duties? The Ohio State Auditor says that Ohio’s Public Records Act exists”to Promote Open and Accountable Government” in its Certified Public Records Training Seminar “for Public Officials, Citizens, and the Media.” In fact, the State Auditor’s Office, under the leadership of Keith Faber, regularly presents its Certified Public Records Training Seminar free of cost multiple times during the year in various accessible locations across the State of Ohio.
This writer attended such a seminar on May 31 at the Dolan Auditorium on the campus of John Carroll University along with about thirty other individuals. It was a beautifully sunny day in northeast Ohio with temperatures in the seventies. In a conversation with the presenter, former Ohio Supreme Court Justice and present State Auditor employee, Mary DeGenero, born in Cleveland Heights, this writer was identified as one of two private citizens taking on the three-hour course. The public employees in attendance were doing so to meet the mandatory annual three-hour course required of all public officials; they were also eligible to earn a three-hour CEU certificate. While there, this writer did not recognize any public official, let alone anyone from the Geauga County Prosecutor’s Office, in attendance. Again, for the record, it was a beautifully sunny Friday right after the celebrated Memorial Day holiday: a time for high spirits and celebration.
Ms. DeGenero started out on page 1 of the course guide, answering the question,: Why Do We Care about transparency in the State of Ohio? She responded that “Transparency facilitates effective government. . .People who aim to be their own governors must be armed with knowledge. . .Public records are the people’s records.” This Seminar identified a Public Record on page 2 of the coursework as Ohio Revised Code Section 149.43: “records kept by any public office.” Anyone in a Public Office is responsible for holding these records and dispensing them to anyone in the public who requests the record in “fixed medium” of paper or electronic recording, including but not limited to calendars, schematics, CDs, flash drives, emails, etc. (as noted on pages 4 and 9 of the training manual).
This writer has become intrigued with the process of public information requests pursuant to ORC 149.43 because of the ongoing experiences of one Geauga County voter who has documentation that her public information requests regarding the practices of Geauga Prosecutor Jim Flaiz were delayed and/or ignored in bad faith to his office. It all started in early January 2018 when Chardon voter/private investigator Susan Daniels made multiple requests to Flaiz asking for the number of criminal cases pursued by Flaiz in 2018 and employment records regarding Prosecutor’ special investigators, Karen Sweet, Christopher Scott, Craig T. Young, and Richard Warner over the time period of January 2018 through December 31, 2018. Records demonstrate that Ms. Daniels, although not required to do so in making public information requests pursuant to ORC 149.43, requested the information three times during the course of 2018. Ultimately, she was able to obtain the same requested information from the Geauga County Auditor without delay or travail.
Nevertheless, as a result of failure of the Prosecutor to supply the requested public information documents, Ms. Daniels filed a Mandamus styled as 19M000156 on February 19, 2019. A Mandamus is a legal action filed to force public officials to engage in actions that are required of them because of their office and responsibility to the public.
In Ohio, a Mandamus that results in a victory for the filer of the action, known as a Relator, awards the Relator $500 per day to recompense him/her for the expense of being denied information that is his public right to receive. A Mandamus is always filed in the form of State of Ohio, Ex. Rel John/Jane Doe, Relator, v. Jack Smith, Respondent with the demand for denied public information guaranteed by the Ohio Public Records Act, legal expenses incurred by the Relator in order to get information that was fraudulently denied by the public officer, and/or a monetary award for damages caused by the public officer’s neglect or misuse of the Ohio Public Records Act.
In response to the Mandamus filed against him, Prosecutor Flaiz demanded a jury trial to prove that he had acted wisely to refuse Ms. Daniels her information and hired two attorneys, Todd Raskin and Frank Scialdone, both of Mazanec, Raskin, and Ryder Co., LPA, at Geauga County taxpayer expense. His defense argument was that the information requested by Ms. Daniels was not in the form of public information documents and that the request was overly broad. Case Judge Carolyn Paschke set the first pre-trial hearing for December 19, 2019. The Relator/Plaintiff, Ms. Daniels, continued to pay her own expenses in her quest for public information guaranteed by the Ohio Public Records Act to each and every Geauga County citizen.
On April 2, 2019, the national organization, Judicial Watch, also sent a public information request to the Geauga County Prosecutor’s Office, 231 Main Street, 3rd Floor, Chardon, Ohio4 44024. The communication requested
“All personnel records, training records, discipline records,resumes, expense
reports, and time sheets for Criminal Investigator Craig Young
All investigative records and reports generated by Criminal Investigator
All records of work-related communications, including but not limited to
email, text messages, and instant chats, between Criminal Investigator
Craig Young and any other federal, state or municipal government officials”
over the time period of December 2017 to April 2, 2019. In addition, pursuant to the Ohio Public Records Act, the letter from Judicial Watch noted, “If the request is denied, you are required to provide a written statement of the grounds for such denial. Such statement shall cite specific provisions of the law under which access is denied and shall be furnished to the requester no later than the end of the third business day following the date that the request for the statement is received.” ORC 149.43(B)(3). Also see WHY IS JUDICIAL WATCH INTERESTED IN THE PROSECUTOR?
Interestingly, on May 17, 2019, on behalf of Prosecutor Flaiz, Legal Assistant , Nancy Douglas, responded back to William Marshall of Judicial Watch, Inc, “Our office has begun compiling the records responsive to your request. However, they are voluminous. . .given the volume of records this may take another 30-45 days.”
Within the same time period (May 20, 2019) Flaiz’s attorneys filed a motion for summary judgment of 19M000156. RELATOR’S BRIEF IN OPPOSITION TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT AND RELATOR’S MOTION FOR ORDER REQUIRING RESPONDEN T TO PAY RELATOR’S COSTS PURSUANT TO CIVIL RULE 56(E) was filed Monday, May 17, 2019.
One of the issues covered at the May 31 Certified Public Records Training Seminar required annually of all public servants was what to do once an office releases public information documents for any entity or individual. During 2018 Prosecutor Flaiz refused public information requests regarding Craig Young and the other “special investigators” multiple times, identifying Ms. Daniels’ requests as “overly broad” and “not responsive to public information documents.” When Judicial Watch made substantially the same requests regarding Special Investigator Craig Young, her request filed in early 2018 remains refused on the grounds of “not responsive to public information documents” and “overly broad.” Page 17 of the Certified Public Records Training Seminar notes that once a public office makes a disclosure to anyone by choice, it is henceforth required to make the same disclosure to anyone else anytime the filer requests. The presenter of the Certified Public Records Training Seminar, former Ohio Supreme Court Justice Mary deGenero verbally responded to my inquiry regarding 19M000156 in Geauga County with the same response: The Prosecutor’s Office must treat all Relator’s and requesters of the same public information in the same manner. The Prosecutor must comply with the requested information, which the Prosecutor’s Office in its response to Judicial Watch and the Auditor’s transmission of information regarding Craig Young have demonstrated is indeed public information subject to public receipt under ORC 149.43.
Daniels’ BRIEF IN OPPOSITION TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT, filed by Cleveland Criminal Attorney, Kimberly Kendall Corral, cites Flaiz’s violation of Civil Rule 56C. “A summary judgment shall not be rendered unless it appears from the evidence or stipulation. . .that reasonable minds can come to but one conclusion and that conclusion is adverse to the party against whom the motion for summary judgment is made.” Additionally, the opposition brief cites 149.43 (C)(1)(b) and argues that “the Relator must be able to prove that 1) he/she as a clear legal right to have a specific act performed by a public official and 2) the public official has a corresponding duty to perform the act, and 3) there is no other legal remedy that could be pursued to adequately resolve the matter.” State ex rel Sanders v. Enlow. 11th Dist. 2010 Ohio 5053 at p.14
BRIEF IN OPPOSITION TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT argues the flaws in the Prosecutor’s actions and arguments. It argues that Respondent Flaiz’s claims that Relator’s requests have been fulfilled at the same time that they have been overly-broad demonstrates a contradiction and situations which cannot exist at the same time (page 9). Additionally, the brief points out the difficulty that the Prosecutor’s Office has provided for itself by fulfilling the voluminous public information requests of Judicial Watch, while refusing Daniels’. Finally, the opposition brief notes on page 11 that the “respondent has provided no explanation for the conclusion that the request was overly-broad,” in violation of ORC 149.43(B)(3) and therefore asks for attorney fees and Statutory damages and costs, per ORC 149.43(C)(2) and 149.43(C)(3)(a) and (b), and Civil Rule 56(E).
What will Judge Carolyn Paschke do? Will she issue a ruling within 30 days? Will she enable the charade to continue by waiting until December 2019 to hold a pretrial hearing and subsequently seat a jury at a cost of $1200 at the cost of Geauga County taxpayers or the Relator?
We will be following this case with intense interest. We remind everyone that the Ohio State Auditor provides mandatory, but free, public records training for ALL public officials on an annual basis. This training is open to ANYONE! Additionally, the State Auditor offers a yearly update of Ohio Sunshine Laws, affectionately known as The Yellow Book, a 120-page publication with 70 Appendices offered simply by contacting the Ohio State Auditor’s Office by phone or email at that website. In the words of Mary DeGenero, presenter for the Ohio State Auditor’s Certified Public Records Training, public officials need to foster good will by complying with reasonable public information requests, rather than denying reasonable requests and creating litigation for themselves and a bad impression of Ohio government.
We will revisit these topics of transparent government, irresponsible and arrogant public servants who disregard the law, and the valiant efforts of citizens to make public servants answerable to their constituencies.