The Peoples’ Records

The following is the Amended Complaint in that case:

IN THE COURT OF COMMON PLEAS
SUMMIT COUNTY, OHIO

State of Ohio ex rel. JULLIE KELLEY, et al.,
Relators,
vs.
VILLAGE OF MOGADORE,
Respondent.

Case No. CV 2006-04-2378

JUDGE BRENDA BURNHAM UNRUH

AMENDED COMPLAINT
Mandamus and Forfeiture, Ohio Public Records Act, R.C. §§ 149.43, 149.351; Negligence

Jury Demand Endorsed Hereon

Now come the Relators, by and through undersigned counsel, to plead their Amended Complaint as follows:
JURISDICTION
1. This Court has original jurisdiction over the Ohio Public Records Act counts in this action pursuant to R.C. § 149.43(C) and R.C. § 149.351(B).
STATEMENT OF FACTS
2. Relators Jullie Kelley and Judy Moyer live in the Village of Mogadore, Summit County, Ohio.
3. Mogadore is a Village form of political subdivision organized under Ohio law.
4. On October 28, 2004, Moyer and Kelley both signed a letter directed to Juliann McCulley, Mogadore Clerk/Treasurer, requesting copies of the following: a) Every Mogadore purchase order from January 1, 1997, until January 1, 2004; and b) all village receipts from January 1, 1997, until January 1, 2000.
5. On May 13, 2005, McCulley sent Moyer a letter informing Moyer that the requested copies had been made, that the 8,356 copies could be received from McCulley at her office during regular office hours, and that the cost would be $836.60, or 10 cents per page.
6. Upon information and belief, McCulley and/or Village of Mogadore employee Lisa Grenus and/or other Village of Mogadore employees compiled and copied the 8,356 records that were produced to Moyer and Kelley.
7. Kelley paid the $835.60 bill to the Village and received the copies on October 3, 2005.
8. Upon information and belief, the Ohio Auditor’s Office requires villages to issue and maintain consecutively-numbered purchase orders.
9. Missing from the documents the Village of Mogadore produced to Kelley and Moyer are more than 500 of the purchase orders they requested.
10. Upon information and belief, Respondent has destroyed many if not all of the missing purchase orders.
11. Upon information and belief, many of the documents that were produced to Moyer and Kelley were duplicates.
COUNT I: Public Records Production

12. Relators incorporate paragraphs 1 through 11 as if fully rewritten herein.
13. Respondent is a public body required to release and disclose public records pursuant to R.C. § 149.43.
14. Under the Ohio Public Records Act, Respondent is required to charge requesters only the actual charge of reproduction of public records.
15. R.C. § 149.011(G) defines “Records” as follows:
“Records” includes 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, decision, procedures, operations of other activities of the office.

16. The records sought by Relators from Respondent were public records within the meaning of R.C. § 149.43.
17. Relators are entitled to production of the public records and an award of the reasonable attorneys’ fees incurred in this civil action.
18. Relators are also entitled to reimbursement of the difference between the 10 cents-per-page cost Respondent charged them for the records, and the actual cost of reproducing the records.

COUNT II: Public Records Destruction

19. Relators incorporate paragraphs 1 through 18 as if fully rewritten herein.
20. Ohio Revised Code Section 149.351, which governs the destruction of public records, reads:
All records are the property of the public office concerned and shall not be removed, destroyed, mutilated, transferred or otherwise damaged or disposed of, in whole or in part, except as provided by law or under the rules adopted by the records commissions provided for under sections 149.38 to 149.42 of the Revised Code or under the records programs established by the board of trustees of state-supported institutions of higher education under section 149.33 of the Revised Code. Such records shall be delivered by outgoing officials and employees to their successors and shall not be otherwise removed, transferred or destroyed unlawfully.

(B) Any person who is aggrieved by the removal, destruction, mutilation or transfer of, or by other damage to or disposition of a record in violation of division (A) of this section, or by threat of such removal, destruction, mutilation, transfer or other damage to or disposition of such a record, may commence either or both of the following in the Court of Common Pleas of the County in which division (A) of this section allegedly was violated or is threatened to be violated:

(1) A civil action for injunctive relief to compel compliance with division (A) of this section, and to obtain an award of the reasonable attorney’s fees incurred by the person in the civil action;
(2) A civil action to recover a forfeiture in the amount of one thousand dollars for each violation, and to obtain an award of the reasonable attorney’s fees incurred by the person in the civil action.

21. Relators are persons aggrieved by the destruction of public records by Respondent.
22. Relators are entitled to recover a forfeiture in the amount of $1,000 for each violation of R.C. § 149.351 by Respondents and to obtain an award of the reasonable attorney’s fees incurred in this civil action.
COUNT III: Negligence
23. Relators incorporate paragraphs 1 through 22 as if fully rewritten herein.
24. Respondent was under a duty imposed by R.C. § 149.43 to produce public records to all requestors, including the Relators.
25. Under R.C. § 149.43, production of public records is a ministerial act.
26. Respondent’s agents, including but not limited to McCulley, were negligent in their performance of the ministerial act of producing public records to Relators.
27. Respondent’s acts and omissions have proximately caused Relators damage, entitling them to compensatory damages.

WHEREFORE, Relators pray that a writ of mandamus issue to the Respondent directing it to produce the requested records, for a forfeiture of $1,000 for each public record destroyed, injunctive relief against any further public records destruction, a refund of money paid above and beyond the cost of reproduction of the records, a refund of money paid for duplicate copies of records, compensatory damages, and for an award of reasonable attorney’s fees pursuant to R.C. §§ 149.43 (C) and 149.351.

JURY DEMAND
Relators hereby request a jury trial for all issues in their Amended Complaint.

________________________________
Counsel for Relators

Respectfully submitted,

_______________________________
Warner D. Mendenhall, #0070165
Jacquenette S. Corgan, #0072778
190 North Union St., Suite 201
Akron, Ohio 44304
330-535-9160; fax 330-762-9743
warnermendenhall@hotmail.com
j.corgan@justice.com

COUNSEL FOR RELATORS