Langer v. The Ohio State Univ. Office of Univ. Compliance & Integrity

1

2023-Ohio-2323

JESSICA F. LANGER Requester v. THE OHIO STATE UNIVERSITY OFFICE OF UNIVERSITY COMPLIANCE AND INTEGRITY Respondent

No. 2023-00195PQ

Court of Claims of Ohio

June 13, 2023

Sent to S.C. Reporter 7/7/23

REPORT AND RECOMMENDATION

Todd Marti Special Master.

{¶1} This matter is before the special master for a report and recommendation pursuant to R.C. 2743.75(F)(1). I recommend that:

- Respondent Ohio State University ("OSU") be ordered to produce a copy of the November 14, 2022 "Agreement and General Release" between it and its former president;

- Requester recover her filing fee and other costs in this action; and

- Requester be denied all other relief sought.

I. Background.

{¶2} This case arises from the announcement that Kristina Johnson OSU's then president, would be stepping down. It seeks to enforce four public records requests exploring the circumstances of her departure.

{¶3} Three of those requests were made by Aubrey Wright, the managing editor of The Lantern, OSU's student newspaper ("the Wright Requests"). Those requests were all submitted on behalf of The Lantern and were made to the OSU. They were as follows:

I am requesting an opportunity to inspect or obtain copies of public records of emails and text messages within the last three months between President Kristina M. Johnson and executive vice president of research, innovation and knowledge Grace Wang in regard to any messages about the Board of Trustees and Johnson's departure.

I am making a public records request for emails and text messages between President Kristina M. Johnson, Chief of Staff JR Blackburn, and the Board of Trustees within the last three months in regard to Johnson's annual performance review, any disciplinary action against Johnson and any indication of Johnson's departure.

I am requesting an opportunity to inspect or obtain copies of public records of any report by a third party that addresses President Kristina M. Johnson's annual performance or any external or internal review from the last year of Johnson.

OSU responded, asserting that no responsive records existed as to two of the requests, by providing redacted records for the remaining request, and by withholding records for the remaining request based on the attorney-client privilege. Complaint, filed March 17, 2023, at pp. 2, 4, 6, 7; Respondent The Ohio State University Office of University Compliance and Integrity's Response To, and motion to Dismiss, Complaint, filed May 18, 2023 ("MTD"), at pp. 22, 28, 41, 65-66 ¶ 4, 66 ¶¶ 5, 6, 67 ¶¶ 7,8.^[1]

{¶4} The fourth request was made by Jessica Langer, The Lantern's editor in chief, to OSU:

I would like to obtain a copy of any contract, memorandum of understanding, nondisclosure agreement or other signed document between the university/and or the Board of Trustees and University President Kristina M. Johnson related to her resignation, cessation or separation of her employment from Ohio State University.

This request was also made on behalf of The Lantern. OSU responded by providing redacted records and withholding other records based on attorney-client privilege. Complaint at p. 10; MTD at 50-64, 67 ¶ 10.

{¶5} This case was filed by Ms. Langer. Neither Ms. Wright nor The Lantern are parties. The undersigned was appointed as special master, and following unsuccessful mediation, set a schedule for the parties to file evidence and memoranda supporting their positions. The times for those filings have passed, and the case is ready for decision. Order Terminating Mediation, entered May 4, 2023.

II. Analysis.

A. OSU's motion to dismiss should be granted as to claims based on the Wright Requests, but denied as to claims based on Ms. Langer's request.

{¶6} OSU moves to dismiss this case pursuant to R.C. 2743.75(E)(2) and Civ. R. 12(B)(6). It argues that Ms. Langer cannot sue on claims arising from the Wright Requests and that claims based on her own request should be dismissed because her complaint did not include copies of all the responses to that request. I recommend that OSU's motion be granted as to claims based on the Wright Requests, but denied as to claims based on Ms. Langer's request.

1. Ms. Langer cannot sue on claims arising from the Wright Requests

{¶7} There are two independently dispositive reasons why Ms. Langer cannot sue on claims based on the Wright Requests.

{¶8} First, she was not an "aggrieved" person with regard to those requests. This case was filed pursuant to R.C. 2743.75. Both R.C. 149.43(C)(1) and R.C. 2743.75(D)(1) require that a person invoking R.C. 2743.75 be allegedly "aggrieved" by a violation of R.C. 149.43(B). One cannot be aggrieved unless he or she makes the public records request at issue, either directly or through a designee. That is established by State ex rel. Cincinnati Enquirer v. Deters, 148 Ohio St.3d 595, 2016-Ohio-8195, 71 N.E.3d 1076; State ex rel. Quolke v. Strongsville City School Dist. Bd. of Edn., 142 Ohio St.3d 509, 2015-Ohio-1083, 33 N.E.3d 30, and their progeny.

{¶9} Enquirer held that it "that in order to be a person aggrieved *** one must first request records from the public office." 148 Ohio St.3d 595, ¶ 20. It denied relief to media requesters who did not themselves request the records at issue, even though other requesters sharing the same objective requested the same records. Quolke and its progeny hold that a party other than the one who actually made the request can sue to enforce it if the person who made the request was the party's designee. 142 Ohio St.3d 509, ¶¶ 21-24; Ellis v. Cuyahoga Cty. Prosecutor's Office, Ct. of Cl. No. 2018-00782PQ, 2018-Ohio-3480, ¶ 3. Accord State ex rel. Steckman v. Jackson, 70 Ohio St.3d 420, 422-423, 427, 639 N.E.2d 83 (1994) and State ex rel. Nelson v. Fuerst, 101 Ohio App.3d 436, 438, 655 N.E.2d 825 (8th Dist. 1995).

{¶10} The Wright Requests were not made by Ms. Langer. She is therefore not aggrieved as to those requests pursuant to the rule set in the Enquirer case. She has not pled or argued that Ms. Wright was her designee. She had the burden of production on that point as because it goes to the existence of a proper request. Welsh-Huggins v. Jefferson Cty. Prosecutor's Office, 163 Ohio St.3d 337, 2020-Ohio-5371, 170 N.E.3d 768, ¶¶ 33 (general burden of production); Ryan v. City of Ashtabula, Ct. of Cl. Nos. 2022-00660PQ, 2022-00665PQ, 2022-00680PQ, 2023-Ohio-621, ¶ 9, adopted 2023-Ohio01487 (Sadler, J)(requester must plead a proper request). The special master therefore recommends that the court find that Ms. Langer is not an aggrieved person as to the Wright Requests.

{¶11} Second, Ms. Langer cannot be deemed to be suing on behalf of Ms. Wright or The Lantern because that would be the unauthorized practice of law. R.C. 4705.01 provides that no "person shall *** commence*** any action or proceeding in which the person is not a party *** unless the person has been admitted to the bar by order of the supreme court[.]" Because of that statute, "only a licensed attorney may file pleadings on behalf of another party in court." State ex rel. Army of the Twelve Monkeys v. Warren Cty. Court of Common Pleas, 156 Ohio St.3d 346, 2019-Ohio-901, 126 N.E.3d 1113, ¶ 5. Complaints filed on behalf of another party by a non-attorney are a legal nullity and the resulting cases are dismissed without prejudice. Cannabis for Cures, LLC. v. State Bd. of Pharmacy, 2d Dist. Clark No. 2018-CA-12, 2018-Ohio-3193, ¶ 10. Those principles apply to cases brought pursuant to R.C. 2743.75. Y-City News v. Tri-Valley Local School Bd. of Edn., Ct. of Cl. No. 2022-00113PQ, 2022-Ohio-2664, ¶¶ 9, 10 (Sheeran, J.).

{¶12} The Ohio Supreme Court's Attorney Directory^[2] does not list Ms. Langer as a licensed attorney. The court may take judicial notice of that public record. State ex rel. Pike Cty. Convention & Visitor's Bur. v. Pike Cty. Bd. of Commrs., 165 Ohio St.3d 590, 2021-Ohio-4031, 180 N.E.3d 1135, ¶ 3, fn. 2; Johnson v. Clerk, Cleveland Police Dept, Ct. of Cl. No. 2023-00031PQ, 2023-Ohio-628, ¶ 6, adopted 2023-Ohio-1859 (Sadler, J.). Both Ms. Wright and The Lantern are parties distinct from Ms. Langer. R.C. 4705.01 therefore prohibits Ms. Langer from pressing claims on their behalf.^[3]

2. Ms. Langer has stated a claim based on her own request and her failure to attach some documents to her complaint does not warrant dismissal.

{¶13} The special master recommends that the court deny OSU's motion to dismiss Ms. Langer's claims based on her own public records request, for two reasons.

{¶14} First, Ms. Langer has alleged sufficient facts to state a claim. A party invoking R.C. 2743.75 must "plead *** facts showing that the requester sought an identifiable public record pursuant to R.C. 149.43(B)(1) and that the public office or records custodian did not make the record available." Welsh-Huggins, 163 Ohio St.3d 337, ¶ 33. Ms. Langer's complaint shows that she made a public records request for identifiable public records. Complaint, p. 10. There are no facially obvious defects in that request. She also pled that the request was denied by a public office. Id. at p. 9. Those facts must be presumed to be true and state a claim.

{¶15} Second, OSU's argument that dismissal is warranted because Ms. Langer's complaint did not include all of the documents related to her request is at odds with precedent. This court has declined to dismiss complaints because of requesters' failure to attach documents when the missing documentation came into the record later in the proceedings and it was clear that the respondent was aware of the true state of affairs. Ohio Crime Victim Justice Ctr v. City of Cleveland Police Div., Ct. of Cl. No. 2016-00872-PQ 2017-Ohio-8950, ¶¶ 5, 6, adopted by order of Dec. 12, 2017 (McGrath, J.); Andes v. Ohio Attorney...