The Peoples’ Records

The following was our brief in the Cuyahoga County Court of Common Pleas. The City was granted Summary Judgment denying our client his day in court. We are appealing. What do you think:

IN THE COURT OF COMMON PLEAS
CUYAHOGA COUNTY, OHIO

STATE OF OHIO, EX. REL. CHARLES SNODGRASS V. CITY OF MAYFIELD HTS
CASE NO.: 2007 CV 613149

JUDGE RONALD SUSTER

MEMORANDUM IN OPPOSITION TO SUMMARY JUDGMENT

I. STATEMENT OF THE CASE.
On April 3, 2006, Relator Charles Snodgrass (herein “Snodgrass”), a citizen of the City of Mayfield Heights (herein “City”) and a former member of the Mayfield Heights Auxiliary Police Department Unit (herein “Auxiliary Unit”), submitted a records request to Police Chief Joseph Donnelly (herein “Chief Donnelly”). On or about April 12, 2006, L. Bryan Carr (herein “Carr”), the assistant law director for the City, replied by letter that some of the documents may have been destroyed. However, the City admitted that they were compiling the requested documents. The City produced some of the records, but not all the records requested.
On January 18, 2007, Snodgrass filed this case seeking production of the additional documents or in the alternative a forfeiture of $1,000 for each document lost or destroyed. On February 22, 2007, Respondents filed their Answer and attached Counterclaim, claiming frivolous conduct. On February 28, 2007, Snodgrass filed his Answer to Respondents’ Counterclaim. On September 4, 2007, Respondents filed a Motion for Summary Judgment.
II. STATEMENT OF FACTS.
The Auxiliary Unit is a division of the Mayfield Heights Police Department. (Donnelly Depo., p. 16; Exhibits attached to the Deposition of Chief Donnelly (“Donnelly Depo.” Ex. 1). The City authorizes Chief Donnelly to hire up to 40 auxiliary members. (Donnelly Depo., p. 16, 17). Auxiliary membership is under the direction and control of the City safety director and police chief. (Donnelly Depo. Ex. 3, policy no. 1.01, 1.04, 1.05). The Auxiliary Unit is under the direct command of the police chief. (Donnelly Depo., p. 18; Donnelly Depo. Ex. 3, policy no. 4.01, 4.08). The police chief is responsible for the activities of the Auxiliary Unit. (Donnelly Depo., p. 18). Chief Donnelly delegated direct administrative responsibility of the Unit to the Unit Coordinator, Sergeant Greg Michl. (Donnelly Depo., pp. 18, 20, 61). Sergeant Michl, as administrator or the Auxiliary Unit, reported directly to Chief Donnelly. (Donnelly Depo., p. 60).
Auxiliary Unit members are paid $600.00 per year by the City for uniform allowance and are covered under the City’s workers compensation plan. (Donnelly Depo. Ex. 3, policy no. 1.04). Auxiliary Unit members are also eligible to work paid jobs through the Auxiliary Unit. (Snodgrass Depo., p. 99, 121; Donnelly Depo. Ex. 1). Auxiliary Unit members receive the uniform allowance only if the member has all the required hours donated up to that time. (Donnelly Depo. Ex. 3, policy no. 1.04). Members are required to donate at least 15 hours per month. (Donnelly Depo. Ex. 3, policy no. 1.07; Donnelly Depo., p. 17, 44).
Snodgrass joined the Auxiliary Unit in 1999. (Snodgrass Aff., 2). Snodgrass was sworn in as the Records Lieutenant of the Auxiliary Unit in April, 2000. (Snodgrass Depo., p. 65). Per the Policies and Procedures Manual, the Records Lieutenant was required to prepare and coordinate the regular monthly schedule and to maintain a roster of Auxiliary Unit members. (Donnelly Depo. Ex. 3, policy no. 8.4).
Sergeant Michl mandated that Auxiliary Unit members fill out the various forms related to the Auxiliary Unit. (Snodgrass Depo., p. 38; Donnelly Depo. Ex. 3, policy no. 5.01). These forms included the Daily Activity Log, Daily Fact Sheet and Time Card. (Donnelly Depo. Exs. 4, 5, 6, 7; Defendant Exs. 2, 7, 8, 11; Snodgrass Depo., pp. 33, 38, 82, 83, 117). The City used the Daily Activity Log to track the operations and activities of the Auxiliary Unit members, as well as, document the fuel and mileage of City vehicles. (Snodgrass Depo., p. 31, 33, 56, 117; see Donnelly Depo. Ex. 4). The Daily Fact Sheet was used to track what vehicles were in use, where it was going, who was driving and where they were going. (Snodgrass Depo., pp. 117-118; See Donnelly Depo. Ex. 5).
Sergeant Michl instructed the Unit to create the forms. (Snodgrass Aff., 7). The time sheets were produced and distributed by the City to track the operations and activities of the Auxiliary Unit. (Snodgrass Depo., p. 82). The time cards tracked the Auxiliary Unit members’ required minimum donation time. (Snodgrass Depo., p. 89, 114). Chief Donnelly acknowledged that police department personnel had to track the Auxiliary Unit members’ time. (Donnelly Depo., p. 42-43). The time cards also tracked each officer’s assignment and any equipment used. (Snodgrass Depo., pp. 82, 85, 89; see Donnelly Depo. Ex. 6, 7). The time sheets were used to produce the “Monthly Report,” which detailed each officers donated time. (Snodgrass Depo., p. 85, 89; Donnelly Depo. Ex. 3, policy no. 8.2; Donnelly Depo., p. 52, 56). After Auxiliary officers completed their daily assignment, they were to complete a daily activity log, fact sheet and time sheet, depending on their assignment. (Snodgrass Depo., p. 83; Snodgrass Aff., 8). Snodgrass knew that completed forms existed because he saw other officers complete the forms, as well as, he completed the documents himself. (Snodgrass Depo., p. 58, 118; Snodgrass Aff., 8 ). The forms were turned into police department dispatch and later to the City auditor. (Snodgrass Depo., p. 56, 118, 119).
Snodgrass was responsible for scheduling auxiliary unit members per the instruction of Sergeant Michl. (Snodgrass Depo., p. 29-30). Sergeant Michl required Snodgrass to make the monthly assignment sheets for the various assignments. (Snodgrass Depo., p. 77). The Auxiliary Unit members were assigned on a monthly basis, generally in pairs of two, to various assignments, including house watch and park patrol. (Donnelly Depo. Ex. 13; Snodgrass Depo., pp. 66, 82-83; Donnelly Depo., p. 97). Sergeant Michl actually requested and received copies all the Auxiliary Unit assignment sheets for 2002. (Snodgrass Depo., p. 73-74). Auxiliary Unit members were provided individual folders with their monthly assignment sheets. (Snodgrass Depo., p. 78).
The Auxiliary Unit also provided support to the police department for special events, including Community Unity Days, parades, traffic control, and concert duty. (Donnelly Depo., p. 19, 25-26; Donnelly Depo. Ex. 1; Donnelly Depo. Ex. 3, policy no. 1.01). The Community Unity Days schedule served to document the operations and activities of the regular police department, as well as, the Auxiliary Unit. (Donnelly Depo. Ex. 16; Snodgrass Depo., p. 47-48; Donnelly Depo., p. 86, 103, 149). The police department also provided a schedule of regular and auxiliary officer operations for parades. (Donnelly Depo. Ex. 17; Donnelly Depo., pp. 86, 149-150). The police department distributed these special event schedules to the regular and Auxuliary Unit officers on the day of the event. (Snodgrass Depo., p. 51). The special events and monthly assignment sheets were also posted in various places throughout the station and picked up by members of the Auxiliary Unit. (Snodgrass Depo., p. 71-73, 78). Sergeant Michl informed Chief Donnelly that the Auxiliary Unit had monthly schedules. (Donnelly Depo., p. 52-53). Chief Donnelly testified that either an auxiliary member or a City employee created the monthly schedules and special events calendars. (Donnelly Depo., p. 142-146).
Chief Donnelly admits he is the chief administrator for the Mayfield Heights police department and a public official. (Donnelly Depo., p. 14). Chief Donnelly admits that reports or forms submitted by the Auxiliary Unit would constitute a “record.” (Donnelly Depo., p. 53). Chief Donnelly admits that he is ultimately responsible for the records of the police department. (Donnelly Depo., p. 61). Chief Donnelly also admits he is responsible for the records retention policy for the police department. (Donnelly Depo., pp. 67, 131).
Chief Donnelly recognized the Schedule of Records Retention and Disposition concerning the police department and acknowledged his signature. (Donnelly Depo. Ex. 11; Donnelly Depo., pp. 87, 122). Chief Donnelly stated that if the Auxiliary Unit created records, they qualify as being covered under the police department records retention policy. (Donnelly Depo., p. 92-93). According to the records retention policy, Chief Donnelly admits that the City is required to keep assignment schedules/fact sheets for three years. (Donnelly Depo., pp. 87, 123). Chief Donnelly also testified that Auxiliary officers were expected to fill out the forms to track the officers’ time. (Donnelly Depo., p. 121). When asked if he considered the “records of the auxiliary unit to be City of Mayfield Heights records,” Chief Donnelly replied, “Yes.” (Donnelly Depo., p. 111, 25).
With regard to the records requested in this case, Snodgrass made a written request for records directed to Chief Donnelly on April 3, 2006. (Donnelly Depo. Ex. 10; Donnelly Depo., p. 84; Respondent Ex. D). Snodgrass requested specific records, with attached examples, for the time period from February 1, 2002 through September 30, 2003. (Donnelly Depo. Ex. 10). Chief Donnelly received the request and instructed Sergeant Michl to compile the requested documents in a timely manner. (Donnelly Depo., p. 73). Carr reviewed the request and instructed Snodgrass that the police department was compiling the requested documents. (Donnelly Depo. Ex. 12). Carr also confirmed that Snodgrass had the right to the requested documents, but requested additional time to comply. (Id.)
On or about April 28, 2006, the City produced approximately 1,260 documents comprised of: approximately 1,100 documents related to the personnel files of Auxiliary Unit officers; 22 monthly calendars; 131 Auxiliary Unit Daily Activity Logs; and the Records Retention Policy. (Snodgrass Aff., 11). The City did not produce any Daily Fact Sheets or Time Cards (or a summary of officers’ time sheets compiled into monthly or yearly reports). (Snodgrass Aff., 12). The City produced no Daily Activity Logs from February, 2002 through August, 2002. (Snodgrass Aff., 13). After Snodgrass filed his Complaint, the City produced additional documents, including some not responsive to the initial request, consisting of two Daily Activity Logs from April, 2002 and two additional personnel files. (Snodgrass Aff., 14).
III. LAW AND ARGUMENT.
Pursuant to Rule 56 of the Ohio Rules of Civil Procedure, summary judgment is appropriate when: (1) no genuine issue as to any material fact exists, (2) the party moving for summary judgment is entitled to judgment as a matter of law, and (3) viewing the evidence most strongly in favor of the nonmoving party, reasonable minds can reach only one conclusion, which is adverse to the nonmoving party. Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327. The moving party carries an initial burden of setting forth specific facts that demonstrate his or her entitlement to summary judgment. Dresher v. Burt (1996), 75 Ohio St.3d 280, 292-293. If the movant fails to meet this burden, summary judgment is not appropriate; if the movant does meet this burden, summary judgment will be appropriate only if the nonmovant fails to establish the existence of a genuine issue of material fact. Id. at 293. A genuine issue of material fact exists unless it is clear that reasonable minds can come to but one conclusion and that conclusion is adverse to the non-moving party. Williams v. First United Church of Christ (1974), 37 Ohio St.2d 150, 151. The nonmoving party may not rest upon the mere allegations and denials in the pleadings but instead must point to or submit some evidentiary material that demonstrates a genuine dispute over a material fact. Henkle v. Henkle (1991), 75 Ohio App.3d 732, 735. Summary judgment is appropriate if the nonmoving party does not respond with specific facts showing that a genuine issue exists for trial. Dresher, at 293; Vahila v. Hall (1997), 77 Ohio St.3d 421, 430.
The Supreme Court has previously stated that in determining statutory construction, “a court’s paramount concern is the legislative intent in enacting the statute.” State v. S.R. (1992), 63 Ohio St.3d 590, 594. Further, in order to determine the legislative intent, a court first looks to the statute’s language. Shover v. Cordis (1991), 61 Ohio St.3d 213, 218. Unless a statute is ambiguous, the court must give effect to the plain meaning of a statute. Pennington v. Gundler (1996), 75 Ohio St.3d 171, 173 (citing State v. Waddell (1995), 71 Ohio St.3d 630, 631). “Words used in a statute are to be taken in their usual, normal and customary meaning.” Pennington, at 173 (citing R.C. 1.42).
Snodgrass’ claim in this matter was brought pursuant to Ohio Revised Code (“R.C.”) §149.43. R.C. §149.43(A)(1) defines “public record” as records kept by any public office, unless the records are specifically excluded by statute. “Records” is defined in R.C. §149.011(G) as “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 * * * which serves to document the organization, functions, policies, decisions, procedures, operations, or other activities of the office.” The Ohio Supreme Court holds that a “record,” “as used in R.C. 149.351 and defined in R.C. 149.011, may be a single document within a larger file of documents as well as a compilation of documents, and can be any document, regardless of physical form or characteristic, whether in draft, compiled, raw, or refined form, that is created or received or used by a public office or official in the organization, functions, policies, decisions, procedures, operations, or other activities of the office.” Kish v. Akron (2006), 109 Ohio St.3d 162, paragraph one of syllabus, 2006-Ohio-1244. The Supreme Court also notes that, “There can be no dispute that there is great breadth in the definition of ‘records’ for purposes here. Unless otherwise exempted or excepted, almost all documents memorializing the activities of a public office can satisfy the definition of ‘record.’” Kish, at 167, citing State ex rel. Beacon Journal Publishing Co. v. Bond (2002), 98 Ohio St.3d 146, 2002-Ohio-7117.
R.C. §149.43(B)(1) provides that, “Subject to division (B)(4) of this section, all public records shall be promptly prepared and made available for inspection to any person at all reasonable times during regular business hours.” R.C. §149.351(B) provides that:
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.

In regard to the legislation’s intent, with the enactment of Ohio’s public record statute, the legislature intended to provide the public with broad access to public records. In 1976, the Ohio Supreme Court stated,
The rule in Ohio is that public records are the people’s records, and that the officials in whose custody they happen to be are merely trustees for the people; therefore, anyone may inspect such records at any time, subject only to the limitation that such inspection does not endanger the safety of the record, or unreasonably interfere with the discharge of the duties of the officer having custody of the same.

Dayton Newspapers v. Dayton (1976), 45 Ohio St.2d 107, 109.
The Court has recently stated, “R.C. 149.43 must be construed liberally in favor of broad access to records kept by public offices, and any doubt is to be resolved in favor of disclosure of the records.” State ex rel. Cincinnati Enquirer, Div. of Gannett Satellite Info. Network, Inc. v. Cincinnati Bd. of Edn. (2003), 99 Ohio St.3d 6, 8, 2003-Ohio-2260, citing State ex rel. Wallace v. State Med. Bd. of Ohio (2000), 89 Ohio St.3d 431, 433; State ex rel. Beacon Journal Publishing Co. v. Bond (2002), 98 Ohio St.3d 146, 2002-Ohio-7117.
The Ohio Supreme Court has “consistently construed the Public Records Act to provide the broadest access to government records.” State ex rel. Cincinnati Enquirer v. Winkler (2004), 101 Ohio St.3d 382, 383, 2004-Ohio-1581, citing State ex rel. Natl. Broadcasting Co. v. Cleveland (1988), 38 Ohio St.3d 79, 83, 526 N.E.2d 786. The “liberal construction” does not end at R.C. 149.43, but must also be extended to terms used in R.C. 149.351. As the right of access to records is meaningless unless records are preserved, Ohio’s Public Records Act must also be construed to ensure and encourage the preservation of public records.
A. Statute of Limitations.
Respondents’ argument regarding the statute of limitations is misplaced and must be denied. Respondents argue that Snodgrass’ claims arose when he first discovered that he was being denied side jobs in 2002. Respondents rely on Snodgrass’ complaints to superiors about the paying side-jobs and other issues within the Auxiliary Unit as evidence to apply the discovery rule. The discovery of unequal treatment within the Auxiliary Unit is wholly irrelevant to when Snodgrass knew or should have discovered that records were destroyed.
Respondent’s point to no evidence that Snodgrass was ever on actual or constructive notice that the requested records were to be disposed of or destroyed and, therefore, Respondents fail to establish their initial burden for summary judgment. Respondents cite to a series of memos and emails from Snograss (Respondent Ex. 9) complaining about auxiliary officers receiving side-work pay jobs without meeting their minimum donation time. Respondents claim, “To illustrate, Snodgrass, feeling aggrieved by the ‘side job’ issue, made his ‘record request’ in 2003.” (Respondent Brief in Support, p. 9). Respondents somehow infer that Snodgrass’ complaints regarding the side-job issue put him on notice that the City failed to maintain or destroyed City records. Exhibit 9 contains no such request.
Further, Respondents are correct in stating, “An action upon a statute for a penalty or forfeiture shall be commenced within one year after the cause of action accrues.” R.C. 2305.11(A)(1). However, “Under Ohio law, a cause of action pursuant to R.C. 149.351 does not accrue until either of the following occur: (1) Relator discovers, or should discover, that the public records sought for review have been destroyed or (2) Relator requests the records and is notified that he cannot review them because they have been destroyed.” State ex rel. Delmonte v. Woodmere (8th Dist. 2004), 2004-Ohio-2340, 20. Thus, the statute of limitations under R.C. 149.351 begins to run when the aggrieved person discovers that the records have been destroyed, or when upon a request for records the aggrieved is notified that the records have been destroyed.
That date, in this case, is the same whether using the discovery rule or the notification rule. Prior to the April 3, 2006 request, Snodgrass had never previously requested documents from the City. (Snodgrass Aff., 15). Snodgrass had asked Sergeant Michl and Lieutenant Ondercin to investigate whether some auxiliary officers were receiving pay jobs without performing their minimum monthly donation time. (Id.) However, Sergeant Michl never responded. (Id.) Snodgrass had no knowledge that records were destroyed or possibly destroyed until receiving a reply from L. Bryan Carr, the assistant law director, on April 12, 2006. (Donnelly Depo. Ex. 12). Thus, Snodgrass had until April 12, 2007 to file his claim.
Respondents reliance on State ex rel. Hunter v. Alliance, unreported, Stark App. No. 2001CA00101, 2002-Ohio-1130, 2002 WL 391692, indicates Respondents’ failure to understand the holding, since Hunter actually supports Snodgrass’ claim. The Hunter court found that, “If the discovery rule is applied, the statute of limitations was triggered when appellants discovered, or should have discovered, that the public records they sought to review had been destroyed” or under the damage theory, “damages did not occur until after the appellees had made a request for the public records and had been notified they would not be getting them because the records had been destroyed. In other words, as the trial court found, ‘[appellees] became aggrieved parties within the meaning of R. C. 149.351 when they made a proper request for public records and such records were not made available to them due to the fact that Mayor Carr had destroyed them.’” Hunter at *3. Hunter reaffirms that the statute of limitations, in this case, did not begin to run until April 12, 2006.
Respondents also cite to Hughes v. City of North Olmsted (8th Dist.), 1997 WL 25515 (attached to Respondents’ brief). Hughes is inapplicable to the present case because in Hughes, the City actually informed the plaintiff that the City would destroy the requested records more than 12 months prior to plaintiff’s claim. Id. at 2.
Respondents fail to establish their initial burden for summary judgment. Viewing the evidence most strongly in favor of Snodgrass, the evidence establishes that the statute of limitations began to run on April 12, 2006.
B. Respondents Argue That Snodgrass Has No Evidence to Support Claims.
Respondents claim that, “Snodgrass has no evidence that the documents he is litigating ever existed or were destroyed.” (Respondents Brief in Support, p. 10.).
The City, upon Snodgrass’ initial request of April 3, 2006, produced approximately 1,260 documents comprised of: approximately 1,100 documents related to the personnel files of Auxiliary Unit officers; 22 monthly calendars; 131 Auxiliary Unit Daily Activity Logs; and the Records Retention Policy. (Snodgrass Aff., 11). The City did not produce any Daily Fact Sheets or Time Cards (or a summary of officers’ time sheets compiled into a monthly or yearly reports). (Snodgrass Aff., 12). The City produced no Daily Activity Logs from February, 2002 through August, 2002. (Snodgrass Aff., 13). After Snodgrass filed his Complaint, the City produced additional documents, including some not responsive to the initial request, consisting of Daily Activity Logs from April, 2002 and additional personnel files. (Snodgrass Aff., 14). As a matter of law, the City is precluded from asserting summary judgment as the City produced additional documents in response to Snodgrass’ Complaint.
Moreover, there remained a gap of Daily Activity Logs from April 21, 2002 through September 24, 2002. Chief Donnelly agreed that since records existed before April 21, 2002 and after September 24, 2002, that records were likely created during the months in between. (Donnelly Depo., p. 125-126).
Per the Policies and Procedures Manual, the Records Lieutenant was required to prepare and coordinate the regular monthly schedule and to maintain a roster of Auxiliary Unit members. (Donnelly Depo. Ex. 3, policy no. 8.4). Sergeant Michl actually requested and received copies all the Auxiliary Unit assignment sheets for 2002. (Snodgrass Depo., p. 73-74). The Auxiliary Unit members were assigned on a monthly basis, generally in pairs of two, to various assignments, including house watch and park patrol. (Donnelly Depo. Ex. 13; Snodgrass Depo., pp. 66, 82-83; Donnelly Depo., p. 97). For each assignment on the monthly schedule, there should exist a Daily Fact Sheet and Time Sheet.
The time sheets were produced and distributed by the City to track the operations and activities of the Auxiliary Unit. (Snodgrass Depo., p. 82). The time cards tracked the Auxiliary Unit members’ required minimum donation time. (Snodgrass Depo., p. 89, 114). Chief Donnelly acknowledged that police department personnel had to track the Auxiliary Unit members’ time. (Donnelly Depo., p. 42-43). The time cards also tracked each officer’s assignment and any equipment used. (Snodgrass Depo., pp. 82, 85, 89; see Donnelly Depo. Ex. 6, 7). The time sheets were used to produce the “Monthly Report,” which detailed each officers donated time. (Snodgrass Depo., p. 85, 89; Donnelly Depo. Ex. 3, policy no. 8.2; Donnelly Depo., p. 52, 56). Sergeant Michl and the Policies and Procedures Manual mandated that Auxiliary Unit members fill out the various forms related to the Auxiliary Unit. (Snodgrass Depo., p. 38; Donnelly Depo. Ex. 3, policy no. 5.01).
Snodgrass agreed that he did not know for a certainty that all officers completed the required forms. However, Snodgrass testified that he had personal knowledge that completed forms existed because he observed other employees complete the forms, as well as, he completed the documents himself. (Snodgrass Depo., p. 58, 118; Snodgrass Aff., 9). Upon completing an assignment, Snodgrass transferred the completed forms to police department dispatch. (Snodgrass Depo., p. 56, 118, 119). Therefore, at a minimum, the City received the completed forms Snodgrass completed himself. Since the City did not produce any Daily Fact Sheets or Time Sheets, even in discovery in this case, those forms must have been removed, destroyed, mutilated, or by other damage, disposed of.
For the foregoing reasons, in construing all inference in favor of Snodgrass, there exist genuine issues of material fact regarding this issue and summary judgment must be denied.
C. Respondents Argue That Auxiliary Unit Is Not A Public Office.
Respondents’ argument with regard to this issue cannot support a motion for summary judgment and is, in fact, contrary to law. Respondents argue that the Auxiliary Unit is somehow separate and apart from the City of Mayfield Heights and not a public office. (Respondents Brief in Support, pp. 3, 12; Michl Aff., 4). Respondents urge that because the Auxiliary Unit is volunteer, the City no longer has a duty or responsibility to maintain records. (Respondents Brief in Support, pp. 3, 4, 12; Michl Aff., 6).
Pursuant to R.C. §737.051, a city may establish an auxiliary police unit by ordinance. R.C. §737.051 provides:
(A) The legislative authority of a city may establish, by ordinance, an auxiliary police unit within the police department of the city, and provide for the regulation of auxiliary police officers. The director of public safety shall be the executive head of the auxiliary police unit, shall make all appointments and removals of auxiliary police officers, subject to any general rules prescribed by the legislative authority by ordinance, and shall prescribe rules for the organization, training, administration, control, and conduct of the auxiliary police unit. Members of the auxiliary police unit shall not be in the classified service of the city.

In fact, the Police Department adopted this very provision in its Policies and Procedures. (Donnelly Depo. Ex. 3, policy no. 4.08). Clearly, both the General Assembly and the City provided for the Auxiliary Unit, if created, to come under the control of the police department. Chief Donnelly admits that the Auxiliary Unit is a division of the Mayfield Heights Police Department. (Donnelly Depo., p. 16; Donnelly Depo. Ex. 1). The City authorized Chief Donnelly to hire up to 40 auxiliary members. (Donnelly Depo., p. 16, 17). Auxiliary membership is under the direction and control of the City safety director and is under the direct command of the police chief. (Donnelly Depo., p. 18; Plaitiff Ex. 3, policy no. 1.01, 1.04, 1.05, 4.01, 4,08). Chief Donnelly also admits he is responsible for the activities of the Auxiliary Unit. (Donnelly Depo., p. 18). Additionally, the City pays the Auxiliary Unit officers $600.00 per year for uniform allowance, provides the officers with a badge and covers the officers under the City’s workers compensation plan. (Donnelly Depo. Ex. 3, policy no. 1.04).
Respondents also argue that Auxiliary Unit officers do not have the authority to arrest, therefore presumably relieving the City of any obligation to monitor the records produced by the Unit. R.C. § 2901.01(K)(4) defines a “law enforcement officer” as: “A member of an auxiliary police force organized by county, township, or municipal law enforcement authorities, within the scope of such member’s appointment or commission.” While municipalities may choose not to confer arrest powers on all auxiliary officers, “that observation does not address the fact that auxiliary police officers generally possess the power to enforce the law.” Conover v. Lake Cty. Metro Parks Sys. (11th Dist. 1996), 114 Ohio App.3d 570, 578. “A law enforcement officer, which includes an auxiliary police officer, necessarily has the power to enforce the law.” State v. Clark (3rd Dist. 1983), 10 Ohio App.3d 308, 309.
Respondents argument envisions a system where the City creates the Auxiliary Unit, “oversees” the staffing and scheduling, directs their operations and activities, requires the officers to use City vehicles and equipment and receives the benefit of their service, but disclaims any responsibility. The City cannot dispute that the Auxiliary Unit is a “division” of the police department. (Donnelly Depo., p. 16; Donnelly Depo. Exs. 1, 3). There should, likewise, be no dispute that the Unit is also a public office.
D. Respondents Argue Snodgrass Was Not Aggrieved.
Respondents argue that Snodgrass was not aggrieved because the documents would not support his complaints regarding inequity in the assignment of for-pay side-work. Respondents misconstrue the definition of “aggrieved” related to a public records request. The Supreme Court indicated that harm flows to the taxpayers of a city, who are entitled to look at the records to review the actions of public servants and to ascertain whether their elected officials and their designees were properly performing their duties, “and to all Ohioans (who own the records). As the statute’s plain wording declares, any person aggrieved may seek relief.” Kish, 109 Ohio St.3d at 172, citing R.C. 149.43(C). A person is aggrieved, “where the improper disposition of a record infringes upon a person’s legal right to scrutinize and evaluate a governmental decision.” State ex rel. Cincinnati Enquirer v. Allen (1st Dist.), 2005-Ohio-4856, 15. The Supreme Court has also noted that a person is aggrieved “by the failure of any public office to afford access to a public record.” State ex rel. Highlander v. Rudduck (2004), 103 Ohio St.3d 370, 373, 2004-Ohio-4952. As the Court in Hunter, supra, indicated, a party becomes aggrieved “within the meaning of R. C. 149.351 when they made a proper request for public records and such records were not made available to them.” Hunter, 2002-Ohio-1130.
In this case, Respondents do not dispute that Snodgrass’ request for records was proper. In fact, Carr reviewed the request and instructed Snodgrass that the police department was compiling the requested documents. (Donnelly Depo. Ex. 12). Carr confirmed that Snodgrass had the right to the requested documents, but requested additional time to comply. (Id.). Carr also indicated that some of the documents may have been destroyed. (Id.). Since not all the documents requested were produced, Snodgrass was aggrieved.
E. Respondents Argue Documents Are Not Public Records and Have No Use.
Defendant claims that the function served by each of the documents requested was not to document the organization, functions, policies, decisions, procedures, operations, or other activities of the Auxiliary Unit, but were generated only for the Auxiliary Unit’s convenience. (Respondents Brief in Support, p. 13). This statement is a mischaracterization of the evidence and omits relevant facts. Each of the files requested contained a single document that was used to “tally” the Auxiliary Unit members donated time that month. The time cards tracked the Auxiliary Unit members’ required minimum donation time. (Snodgrass Depo., p. 89, 114). Chief Donnelly acknowledged that police department personnel had to track the Auxiliary Unit members’ time. (Donnelly Depo., p. 42-43). Chief Donnelly admits that reports or forms submitted by the Auxiliary Unit would constitute a “record.” (Donnelly Depo., p. 53). Yet, as discussed below, the individual forms served a greater purpose than simply running a tally of time earned.
Moreover, even if Defendant’s argument were true, and the forms were used as “convenience” for the Auxiliary Unit, this still does not render the forms exempt from being individual public records. In arguing that the forms are not “public records,” Respondents rely upon several cases holding that the term “public records” does not include a public official’s personal memoranda created for their own benefit. See State ex rel. Steffen v. Kraft (1993), 67 Ohio St.3d 439, 440, 619 N.E.2d 688, 689; Internatl. Union, United Auto., Aerospace & Agricultural Implement Workers of Am. v. Voinovich (1995), 100 Ohio App.3d 372. “The Supreme Court in Steffen held that a trial judge’s personal handwritten notes made during trial are not public records, as they were personal papers kept for the judge’s own convenience, no other court officials had access to these notes, and the clerk of court did not have custody of them.” State ex rel. Dist. 1199, Health Care & Social Serv. Union, SEIU, AFL-CIO v. Gulyassy (10th Dist. 1995), 107 Ohio App.3d 729, 735. However, the Court noted that the cases “upon which respondents rely concern documents that are personal to the writer and written for the writer’s convenience,” whereas in that case, the documents were circulated beyond the writer and were kept in a manner not solely for personal use. Id. at 735-736. The Court held that, “nothing in this record suggests that the drafts are personal documents created solely for a public official’s own convenience, or that other public officials did not access or use them.” Id. at 735.
Defendant also misrepresents the evidence by stating that each document was only a transient document and was meaningless beyond the personal use of the Auxiliary Unit. (Respondents Brief in Support, p. 13). Snodgrass and Donnelly testified that these documents also were used to document use of the City vehicle, mileage, fuel use, equipment and the face of the documents show various other purposes. (Snodgrass Depo., p. 31, 33, 56, 117; Donnelly, Depo., p. 77; see Donnelly Depo. Exs. 4, 5, 6). The City used the Daily Activity Log to track the operations and activities of the Auxiliary Unit members, as well as, document the fuel and mileage of City vehicles. (Snodgrass Depo., p. 31, 33, 56, 117; see Donnelly Depo. Ex. 4). The Daily Fact Sheet was used to track the vehicles in use, who was driving and where they were going. (Snodgrass Depo., pp. 117-118; See Donnelly Depo. Ex. 5). The time sheets were used to produce the “Monthly Report,” which detailed each officers donated time. (Snodgrass Depo., p. 85, 89; Donnelly Depo. Ex. 3, policy no. 8.2; Donnelly Depo., p. 52, 56). The forms were turned into police department dispatch or to Sergeant Michl. (Snodgrass Depo., p. 56, 118, 119).
Further, there is no evidence supporting Defendant’s claim that these documents were “meaningless.” Snodgrass requested all records to determine the hours worked by each Auxiliary Unit member, but outside of that specific purpose, individual documents certainly had meaning to document the operations and activities of the police department and the Auxiliary Unit.
IV. CONCLUSION.
R.C. §149.011(G) defines “record” as “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.” Chief Donnelly admits that the policies and procedures regarding records retention for the police department and the Auxiliary Unit are his responsibility. (Donnelly Depo., pp. 67). Chief Donnelly also considers the records of the Auxiliary Unit to be City records. (Donnelly Depo., p. 111). Yet, the City never adopted a procedure to monitor the Auxiliary Unit records. (Donnelly Depo., p. 68-69).
The City wants all the benefits of the Auxiliary Unit, but disclaims any responsibility for its actions. The City now paints the Auxiliary Unit as some rogue state operating outside the knowledge of the City. The City may not turn a blind eye and remain ignorant of its responsibilities and ask this Court to accept its ignorance.
This is a very simple case. Snodgrass testified that he was required by the City to create various schedules for the Auxiliary Unit. He did. Upon completing their assignments, the Auxiliary Unit members filled out paperwork prescribed by the City. Snodgrass knew that he and others completed the required paperwork and turned them in to Sergeant Michl. The City lost or destroyed the records.
For all the foregoing reasons, Respondents Motion for Summary Judgment must be denied as there exist genuine issues of material fact.

____________________________________
Daniel J. Leffler (0076540)
190 North Union Street, Suite 201
Akron, Ohio 44304
330-253-5996; (Fax) 330-762-9743
danielleffler@sbcglobal.net

and

Warner D. Mendenhall (0070165)
Jacquenette S. Corgan (0072778)
The Law Offices of Warner Mendenhall, Inc.
190 N. Union St., Ste. 201
Akron, OH 44304
330-535-9160; (Fax) 330-762-9743
warnermendenhall@hotmail.com
j.corgan@justice.com

Attorneys for Relator

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