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Supreme Court of Ohio.


No. 97–797.

Decided: May 20, 1998

Joseph R. Compoli, Jr., and James R. Goodluck, Cleveland, for relator. Charles E. Coulson, Lake County Prosecuting Attorney, and Michael P. Brown, Assistant Prosecuting Attorney, for respondent.

Motion to Dismiss for Lack of Subject–Matter Jurisdiction

The sheriff's department filed a motion to dismiss for lack of subject-matter jurisdiction.   In response, Wilson–Simmons filed a motion to strike the sheriff's  department's motion because it was filed after the sheriff's department had filed an answer.

 We overrule Wilson–Simmons's motion to strike.   Contrary to her claims, the issue of subject-matter jurisdiction cannot be waived and therefore can be raised at any time during the proceedings.  In re Byard (1996), 74 Ohio St.3d 294, 296, 658 N.E.2d 735, 737, citing Civ.R. 12(H)(3);  S.Ct.Prac.R. X(2) (“All original actions shall proceed under the Ohio Rules of Civil Procedure, unless clearly inapplicable.”).

 As to the merits of its motion, the sheriff's department contends that the court should dismiss for lack of subject-matter jurisdiction Wilson–Simmons's discrimination and attorney fee claims under Sections 1983 and 1988, Title 42, U.S.Code because the federal district court's October 1997 judgment is res judicata on these claims.   The sheriff's department's contention lacks merit.   Res judicata is an affirmative defense that does not divest the second tribunal of subject-matter jurisdiction.  Whitehall ex rel. Wolfe v. Ohio Civ. Rights Comm. (1995), 74 Ohio St.3d 120, 122, 656 N.E.2d 684, 687;  State ex rel. Flower v. Rocker (1977), 52 Ohio St.2d 160, 162, 6 O.O.3d 375, 376, 370 N.E.2d 479, 480.

 In addition, the sheriff's department's additional claim, that this entire action is moot because Wilson–Simmons's only reason for seeking e-mail records was to support her federal case, is meritless.   Wilson–Simmons's purpose in requesting these records is irrelevant.   See, e.g., State ex rel. Fant v. Enright (1993), 66 Ohio St.3d 186, 610 N.E.2d 997, syllabus (“A person may inspect and copy a ‘public record,’ as defined in R.C. 149.43[A], irrespective of his or her purpose for doing so.”).

Based on the foregoing, we overrule the sheriff's department's motion to dismiss for lack of subject-matter jurisdiction.

Motion for Partial Summary Judgment

Following the submission of evidence and briefs pursuant to our alternative writ and schedule for the presentation of evidence and briefs, Wilson–Simmons filed a motion for partial summary judgment, and the sheriff's department filed a motion to strike Wilson–Simmons's motion.

 We grant the sheriff's department's motion to strike Wilson–Simmons's motion for partial summary judgment.  Civ.R. 56 motions for summary judgment are clearly inapplicable in original actions in this court under the procedure specified in S.Ct.Prac.R. X. See State ex rel. Findlay Publishing Co. v. Schroeder (1996), 76 Ohio St.3d 580, 581, 669 N.E.2d 835, 837.   Following the submission of evidence and briefs in an original action in this court under S.Ct.Prac.R. X(6) and (7), the case is ready to be “tried” on the merits.   No summary judgment motion is necessary or appropriate.   Here, the parties, including Wilson–Simmons, had  already presented evidence and briefs on the merits.   Her subsequently filed motion for partial summary judgment is merely a poorly disguised attempt to authenticate evidence that was the subject of the sheriff's department's motion to strike evidence.

R.C. 149.43;  Public Records

 Wilson–Simmons contends that she is entitled to a writ of mandamus to compel the disclosure of the requested e-mail.

 Mandamus is the appropriate remedy to compel compliance with Ohio's Public Records Act, R.C. 149.43.  State ex rel. Steckman v. Jackson (1994), 70 Ohio St.3d 420, 426, 639 N.E.2d 83, 89.   A “public record” is “any record that is kept by any public office * * *.”  R.C. 149.43(A)(1).   R.C. 149.011(G) broadly defines “records” to include “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, decisions, procedures, operations, or other activities of the office.”   See, e.g., State ex rel. Thomas v. Ohio State Univ. (1994), 71 Ohio St.3d 245, 246–247, 643 N.E.2d 126, 128.

The sheriff's department asserts that the requested e-mail does not constitute “records” for purposes of R.C. 149.011(G), and therefore it is not accessible as “public records” under R.C. 149.43.   The sheriff's department is correct.

 The requested e-mail does not constitute “records” for purposes of R.C. 149.011(G) and 149.43.  R.C. 149.43(A)(1) “does not define a ‘public record’ as any piece of paper on which a public officer writes something.”  State ex rel. Steffen v. Kraft (1993), 67 Ohio St.3d 439, 440, 619 N.E.2d 688, 689.  “To the extent that any item * * * is not a ‘record,’ i.e., does not serve to document the organization, etc., of the public office, it is not a public record and need not be disclosed.”  State ex rel. Fant v. Enright, 66 Ohio St.3d at 188, 610 N.E.2d at 999.   If, as alleged by Wilson–Simmons, the requested e-mail consists of racist slurs against her by individual co-workers, then, although reprehensible, the e-mail does not serve to document the organization, functions, policies, decisions, procedures, operations, or other activities of the sheriff's department.   There is no evidence or allegation that the alleged racist e-mail documented sheriff's department policy or procedures.   It was allegedly circulated only to a few co-workers and was not used to conduct sheriff's department business.

This conclusion, that the requested e-mail is not a record for purposes of R.C. 149.43, is supported by both state and federal precedent.   See Steffen, 67 Ohio St.3d at 439, 619 N.E.2d at 689 (“A trial judge's personal handwritten notes made during the course of a trial are not public records.”), and cases cited at 67 Ohio St.3d at 440, 619 N.E.2d at 689;  Internatl. Union, United Auto., Aerospace &  Agricultural Implement Workers of Am. v. Voinovich (1995), 100 Ohio App.3d 372, 654 N.E.2d 139 (Governor's personal calendars and appointment books did not constitute records subject to disclosure under R.C. 149.43 because they did not serve to document any official activities or functions.);  Bur. of Natl. Affairs, Inc. v. United States Dept. of Justice (C.A.D.C.1984), 742 F.2d 1484, 1492 (“Where, as here, a document is created by an agency employee, consideration of whether and to what extent that employee used the document to conduct agency business is highly relevant for determining whether that document is an ‘agency record’ within the meaning of FOIA [the federal Freedom of Information Act].”);  Gallant v. Natl. Labor Relations Bd. (C.A.D.C.1994), 26 F.3d 168, 172 (“[E]ven though employing agency resources in the creation of the correspondence is a relevant factor in the agency record analysis, the utilization of agency resources in this case is not as significant as the other factors employed in our precedents, which compel a conclusion that the * * * correspondence was personal, rather than attributable to the agency.”).

 Therefore, although the alleged racist e-mail was created by public employees via a public office's e-mail system, it was never used to conduct the business of the public office and did not constitute records for purposes of R.C. 149.011(G) and 149.43.1  See Bureau of Natl. Affairs and Gallant.

 In addition, even assuming that the requested e-mail constitutes “records” under R.C. 149.011(G) and 149.43, Wilson–Simmons would still not be entitled to a writ of mandamus.   Due to Wilson–Simmons's more than two-year delay in bringing this action after the sheriff's department refused to provide access to the requested e-mail without Wilson–Simmons's paying a reconstruction fee, the requested records are no longer available.   State ex rel. Leonard v. White (1996), 75 Ohio St.3d 516, 517, 664 N.E.2d 527, 528, quoting State ex rel. Fant v. Mengel (1991), 62 Ohio St.3d 197, 198, 580 N.E.2d 1085, 1086 (“The Public Records Act, R.C. 149.43, does not require that a public office create new documents to meet a requester's demand.”).   There is no evidence or assertion that the sheriff's department violated any applicable records retention provision by writing over the records in the routine operation of its computer system.   See Cal–Almond, Inc. v. United States Dept. of Agriculture (C.A.9, 1992), 960 F.2d 105, 109, citing Nolen v. Rumsfeld (C.A.5, 1976), 535 F.2d 890, 891 (“Absent a showing that the government has improperly destroyed ‘agency records,’ FOIA does not require  these records to be recreated.”);  Jones v. Thompkins (July 14, 1995), Summit App. No. 16937, unreported, 1995 WL 434353 (“Respondents submitted an affidavit which said that it is routine practice to erase and recycle hearing tapes thirty days from issuance of the hearing decision.   This court cannot order a public agency to provide copies of items that do not exist.”).

 Wilson–Simmons contends that she is nevertheless entitled to a writ of mandamus despite the nonexistence of the requested e-mail because she is also challenging the sheriff's department's charge for reconstruction of e-mail and standard fee schedule.   This contention is meritless.   Under R.C. 149.43(C), a mandamus action is appropriate only “ ‘[i]f a person allegedly is aggrieved by the failure of the governmental unit to promptly prepare a public record and make it available to the person for inspection in accordance with [R.C. 149.43(B) ].’ ” State ex rel. Wadd v. Cleveland (1998), 81 Ohio St.3d 50, 52–53, 689 N.E.2d 25, 28.   Because the records requested by Wilson–Simmons were not records for purposes of R.C. 149.43, she was not aggrieved so as to be entitled to a writ of mandamus.   Additionally, she is thus not entitled to attorney fees under R.C. 149.43(C).

Sections 1983 and 1988, Title 42, U.S.Code

 To the extent that Wilson–Simmons seeks a writ of mandamus and attorney fees pursuant to Sections 1983 and 1988, Title 42, U.S.Code, she has an adequate remedy in the ordinary course of law through her Section 1983 action in federal court and an appeal from the adverse judgment rendered by that court.  State ex rel. Carter v. Schotten (1994), 70 Ohio St.3d 89, 91–92, 637 N.E.2d 306, 309.

Other Motions

The parties' remaining motions and requests are moot.   Denial of the writ and attorney fees is warranted even if we considered Wilson–Simmons's amended complaint and all of her submitted evidence.

Based on the foregoing, we deny the writ and the request for attorney fees.

Writ denied.


1.   In so holding, we reject the sheriff's department's broader assertion that no public office e-mail would ever be public records under R.C. 149.011(G) and 149.43.   In other words, sometimes, public office e-mail can document the organization, functions, policies, decisions, procedures, operations, or other activities of the public office.   See Armstrong v. Executive Office of the President (C.A.D.C.1996), 97 F.3d 575 (access to e-mail relating to government activities sought under FOIA);  see, also, State ex rel. Margolius v. Cleveland (1992), 62 Ohio St.3d 456, 461, 584 N.E.2d 665, 670, holding that it is unnecessary for an expression to be in a particular medium for it to be a public record.