E-mails containing search terms

Hal Flak filed this request with the Oakwood City School District of Oakwood, OH.

It is a clone of this request.

Submitted Nov. 15, 2021
Est. Completion None
Status
Awaiting Response

Communications

From: Hal Flak

Subject: Ohio Open Records Law Request: E-mails containing search terms

Email

To Whom It May Concern:

Pursuant to the Ohio Open Records Law, I hereby request the following records:

All e-mails under the control of the Oakwood City School District that may be found using the following search terms, case insensitive:

E-mails containing:

critical + race + theory OR
white + privilege OR
CRT OR
race OR
white + supremacy OR
Anti + racist OR
racist OR
trans OR
Gender OR
LBGT

For the dates:

1 January 2020 to 1 March 2021

Please provide in a text format where text is searchable, including pdf that is text searchable and links are active.

Include email account where message is found for each message, sender and recipient.

The requested documents will be made available to the general public, and this request is not being made for commercial purposes.

In the event that there are fees, I would be grateful if you would inform me of the total charges in advance of fulfilling my request. I would prefer the request filled electronically, by e-mail attachment if available or CD-ROM if not.

Thank you in advance for your anticipated cooperation in this matter. I look forward to receiving your response to this request within 10 business days.

Sincerely,

Hal Flak

From: Oakwood City School District

Subject: Fw: Ohio Open Records Law Request: E-mails containing search terms

Email

Receipt of this public records request is acknowledged. The search is being run as requested to determine how many documents it generates. Once that information is known, I will let you know what you can expect in terms of estimated response time and/or whether the request is objectionable for reasons such as its overbreadth and ambiguity.

Janet Cooper
Of Counsel
BRICKER & ECKLER LLP
312 N. Patterson Blvd., Suite 200
Dayton, OH 45402
jcooper@bricker.com

From: Oakwood City School District

Subject: Re: Ohio Open Records Law Request: E-mails containing search terms

Email

Hal,

I represent Oakwood City Schools, and am acknowledging receipt of your request pursuant to Ohio’s Public Records Act.

The District’s search based on the terms you provided for the 14-month period you identified generated 65,955 documents. This request is overly broad. State ex rel. Dillery v. Icsman, 92 Ohio St.3d 312, 2001-Ohio-193, 750 N.E. 2d 156; Kanter v. City of Cleveland Hts., Ct. of Cl. No. 2018-01092PQ, 2018-Ohio-4592.

You are asking the District to completely duplicate email files, and the Public Records Act does not contemplate that a person is entitled to a “complete duplication” of a public office’s “voluminous files.” State ex rel. Glasgow v. Jones, 19 Ohio St. 3d 91, 2008-Ohio-4788, 894 N.E.2d 686, at ¶17; see also, e.g., State ex rel. Bristow v. Baxter, 6th Dist. Erie No. E-17-060, 2018-Ohio-1973.

I am requesting that you revise your request, perhaps by reducing the number of search terms, and reducing the time period involved, so that it is not overly broad.

In the meantime, please direct any further communication regarding this request to me.

​Thank you.

Janet Cooper
Of Counsel
BRICKER & ECKLER LLP
312 N. Patterson Blvd., Suite 200
Dayton, OH 45402
jcooper@bricker.com

From: Hal Flak

Subject: RE: Ohio Open Records Law Request: E-mails containing search terms

Email

Thank you for the reply.

If you remove race, racist, and gender does that reduce the number of documents to a manageable number?

If not, can you tell me which single search term produced the most results and if that is a manageable number?

From: Hal Flak

Subject: RE: Ohio Open Records Law Request: E-mails containing search terms

Email

Hello,

Can you provide a non-binding update for this request?

Thank you.

From: Hal Flak

Subject: RE: Ohio Open Records Law Request: E-mails containing search terms

Email

Dear Ms. Sauber:

Could you please provide an update on this long-outstanding request regarding electronic messages?

You will get similar e-mails regarding other overdue requests.

Sincerely,

Hal

From: Oakwood City School District

Subject: Ohio Open Records Law Request: E-mails containing search terms

Email

Hal,

After the terms “race,” “racist,” and “gender” were removed from the set of 65,955 documents that were retrieved for this request, 10,102 documents remained. The first review of these documents is ongoing.

The term “race” generated 41,810 hits, the term “racist” generated 7,193 hits, and the term “gender” generated 19,488 hits.
Please confirm that you are in agreement with eliminating these terms from the generated documents.

We have discovered during the initial review of the 10,102 documents that the term “trans” appears in some documents as an abbreviated form of “transaction,” and “transportation.” In other documents it appears as “trans fat” in nutrition information. Could you agree to limit responsive documents to those in which the term “trans” refers to gender?

Thank you,

Janet

Janet K. Cooper
Of Counsel
BRICKER & ECKLER LLP
312 N. Patterson Blvd., Suite 200
Dayton, OH 45402

From: Hal Flak

Subject: RE: Ohio Open Records Law Request: E-mails containing search terms

Email

Thank you for the message.

I am in agreement with all of your suggestions to include removing the search terms specified and limiting trans to refer to gender.

Thank you for your assistance!

From: Oakwood City School District

Subject: RE: Ohio Open Records Law Request: E-mails containing search terms

Email

One other thing, Hal. The acronym “CRT” apparently has numerous meanings. For example, it appears on numerous material safety data sheets for chemicals used in cleaning and disinfecting. It is also used when referring to E-waste, and it is shorthand for big, boxy monitors. Is it fair to assume that you are only interested in the “critical race theory” meaning of CRT? Can we eliminate the other documents as being non-responsive?

Thank you,

Janet

Janet K. Cooper
Of Counsel
BRICKER & ECKLER LLP
312 N. Patterson Blvd., Suite 200
Dayton, OH 45402

From: Hal Flak

Subject: RE: Ohio Open Records Law Request: E-mails containing search terms

Email

Hi,

Yes. Your recommendations on limiting CRT to critical race theory is a good suggestion and I agree.

Thank you!

From:

Subject: FW: Ohio Open Records Law Request: E-mails containing search terms

Email

Hal,

I represent Oakwood City School District regarding public records requests. You requested: All e-mails under the control of the Oakwood City School District that may be found using the following search terms, case insensitive: E-mails containing:

Critical + race + theory OR
White + privilege OR
CRT OR
Race OR
White + supremacy OR
Anti + racist OR
Racist OR
Trans OR
Gender OR
LBGT

For the dates:1 January 2020 to 1 March 2021.

Despite some subsequent narrowing of your request, your request is still overbroad, and is therefore not a valid request. A request for “all emails, text messages or other correspondence” under the control of a school district (including every email, or reply email, including attachments, sent or received by every email account in the District) containing ten different parameters for a fourteen-month period is not a valid records request. State ex rel. Dillery v. Icsman, 92 Ohio St. 3d 312, 2001-Ohio-193 (requests for any and all records that contained reference to a specific topic/individual was overbroad). Requests seeking an entire class of records are invalid. State ex rel. Daugherty v. Mohr, 2011-Ohio-6453 (10th Dist.) (request for all policies, emails, or memos regarding a certain subject is invalid, because the Public Records Act does not contemplate that an individual has “the right to receive a complete duplication of files kept by government agencies.”); Hicks v. Newtown, 2017-Ohio-8952, modified by 2018-Ohio-1540 (“a request for information ‘regarding,’ or ‘relating’ to a topic is generally improper.”). Moreover, requests which mimic those ordinarily seen during the discovery process involved in civil litigation (i.e., requests that seek “all records relating to or reflecting certain types of information.”) are also overly broad. See Paramount Advantage v. Ohio Dept. of Medicaid, Ct. of Cl. No. 2021-00262PQ, 2021-Ohio-4180.

We are happy to provide you with responsive public records, but you must narrow record request in order for us to do so. The manner by which Oakwood maintains records depends on the type of record sought. Oakwood generally maintains email records by sender/recipient, subject matter, and date. In prior requests you issued to Oakwood, you narrowed the request to a specific employee email account, such as the Superintendent.
Thanks,
Jack

Jack B. Hemenway
Attorney at Law |
Frost Brown Todd LLP

From: Hal Flak

Subject: RE: Ohio Open Records Law Request: E-mails containing search terms

Email

Thank you for the reply.

This request was submitted NOVEMBER 2021.

In March 2023 you are claiming the request is over broad, after significant periods of the district being non responsive to requests for updates.

Raising further objections after a period of time vastly in excess of what is reasonable is bad faith.

If the district had objections, there has been ample time to raise them; the passage of excessive time is constructively a waiver by the district.

Please complete the open records request.

It is unlikely that the court will find in your favor given the incredible delay in this request.

From: Oakwood City School District

Subject: RE: Ohio Open Records Law Request: E-mails containing search terms

Email

I understand your position and the District is sympathetic to your concerns regarding the extended time. Due in part to the concerns raised in your email, the District engaged me and my firm to assist with public record matters moving forward.

Nevertheless, you were correctly advised back on December 8, 2021, that your request was overbroad. Despite some attempts to narrow with certain keywords, the request is still significantly overbroad today. Please let me know if you would like to narrow your email record request by identifying the sender/recipient(s), subject matter, and dates, as you have done in other record requests.

If you would like to discuss this further, please feel free to give me a call.
Thanks,
Jack

Jack B. Hemenway
Attorney at Law |
Frost Brown Todd LLP

From: Hal Flak

Subject: RE: Ohio Open Records Law Request: E-mails containing search terms

Email

Thank you for the reply.

As you mention, on 12/8/2021 the district asserted that the request was over-broad.

I replied to the message on 12/8/2021 negotiating to reduce the number of records.

The district did not reply to my message until 2023, with multiple follow up messages sent every few weeks as have been documented.

On 1/30/2023 the district did reply and I agreed with the suggestions of the district to remove certain search terms with discussion completed 2/1/2023.

You are now asserting that after this exceptional passage of time and after I have agreed with all of the district's suggestions that the request is still over-broad. This is not good faith compliance with the Ohio Open Records Act. Zealous representation within the bounds of the law is the ideal, facilitation of bad faith behavior on behalf of a public agency is problematic.

This exceptional delay is without defense and will not be look upon favorably in any legal process. It also establishes a pattern of behavior by the public agency to not comply with the Ohio Open Records Law, an additional factor that may be looked upon unfavorably in any other records request litigation the district may be forced to respond to.

I assert that given the exceptional time delay in district response and that I have negotiated in good faith with the district that further assertions at this point to deny records are not valid, as the district has already waived its objections.

Nonetheless, I do not intend to create an undue burden. If you will identify the number of records that are responding to the remaining search terms agreed upon, I will further eliminate terms that create undue burden.

I prefer to communicate regarding the open records request via e-mail rather than via telephone to create a record should mandamus or court of claims process be needed in the future.

Sincerely,

Hal

From: Oakwood City School District

Subject: RE: Ohio Open Records Law Request: E-mails containing search terms

Email

Thanks for your email. Whether a records request is overbroad is determined by the language of the request, and not necessarily by the volume of pages of responsive documents. The issue here is your request does not identify specific emails or specific email accounts. Rather, you ask for every email under the control of the District (including every email, or reply email, including attachments, sent or received by every email account in the District) containing ten different keyword parameters for a fourteen-month period. It should also be noted that emails “under the control” of the District could potentially include hard copy email documents that are delivered to District employees, or emails sent to personal email accounts (for which the District cannot conduct “keyword searches”).

This is a request for an entire class of records, which is invalid. Please narrow your request by identifying the sender/recipient(s), subject matter, and date range for your email search—which you have done in previous requests.
Thanks,
Jack

Jack B. Hemenway
Attorney at Law |
Frost Brown Todd LLP

From: Hal Flak

Subject: RE: Ohio Open Records Law Request: E-mails containing search terms

Email

Mr. Hemenway,

Thank you for the prompt reply.

Your point regarding paper records is valid and not intended. Please exclude any records outside of the district's email database, most commonly a Microsoft exchange database.

Personal email accounts should not be under the control of the district, nor should they be used to conduct official business. If the district is aware of public records being maintained outside of the record system, these records should be imported into the exchange server. Is the district aware of public records being created and stored outside of the record system in private email accounts?

This request is not for an entire class of records, it is for a specified sub-set of public records and is not a duplication of the entire record system (which would be over broad).

Records maintained in a Microsoft exchange or similar database are indexable by many parameters including key words, by the inherent nature of electronic databases. This reasoning would not apply to paper records.

Are you trying to assert that any search by specific terms in the message body is invalid but search by subject field or sender / recipient field is not? This does not make sense to me.

Sincerely,

Hal

From: Oakwood City School District

Subject: RE: Ohio Open Records Law Request: E-mails containing search terms

Email

Hal,
The District is not aware of any hard copy or personal emails that are responsive to your request. My prior email simply provided additional examples of why your request, as written, is overbroad.
I explained that the District generally maintains emails by sender/recipient, subject matter, and date range. When the District does a keyword email search of the subject(s) identified by a requester, it will collect emails with the keyword located in the “subject line” of the email as well as emails with the keyword located within the body of the email message (or in an attachment). You have provided 10 keywords for the subject matter, and a date range of 14 months—January 1, 2020 to March 1, 2021. But you have not identified the sender(s)/recipient(s). Once you identify specific email account(s), the District will conduct a search.
Thanks,
Jack
Jack B. Hemenway
Attorney at Law |
Frost Brown Todd LLP

From: Hal Flak

Subject: RE: Ohio Open Records Law Request: E-mails containing search terms

Email

Mr. Hemenway,

Thank you for the reply.

The district likely uses a Microsoft exchange email database.

As such, it is electronic, machine searchable, and distinctions based upon "how it is maintained" are largely arbitrary (except to the limitatation it is maintained by text characters, words generally, and not graphics, images, or standardized topics) . You are using these arbitrary distinctions in order to restrict the response to the records request, such as concealing a message from or to an unknown party within the public record.

The over broad exception is designed to prevent requests for duplication of an entire record system (i.e. give me every email), or a search designed to produce the same result, such as a search for the word "the". The courts have not stated over broad applies to email in that specific accounts must be identified.

Could you please specifically explain, using case law, why a search of an email database must be restricted to specific user accounts?

I am not aware that this is true, and if you can demonstrate the basis for your claim, I will gladly modify the request. I assume there is a legitimate legal basis for your denial.

Thank you,

Hal

From: Hal Flak

Subject: RE: Ohio Open Records Law Request: E-mails containing search terms

Mail

Ms. Sauber,

I am still waiting on a reply for this open records request. It doesn't appear the district is acting in good faith.

Please follow the Ohio Open Records Act. It is the ethical thing to do and public employees have a duty to follow it.

Best,

Hal

From: Oakwood City School District

Subject: RE: Ohio Open Records Law Request: E-mails containing search terms

Email

Hal,

As I explained several times, this request is overbroad. Here is some additional legal authority, in addition to the legal authority I already provided to you:

* Sinclair Media III, Inc. v. City of Cincinnati, 2019 WL 2342507 (Court of Claims of Ohio, 2019) (holding that a request for text messages sent/received by any employee, during a 6-week period, regarding a specified subject matter is overbroad).

* State ex rel. Kersterson v. Kent State Univ., 156 Ohio St.3d 22 (Ohio 2018) (explaining that expansive request for emails may be valid if the requester places sufficient limitations on the scope of the request, and noting that a voluminous request for communications between various individuals regarding certain subjects is proper when the request is limited: temporally, by subject matter, and by the specific employees concerned).

* State ex rel. Oriana House, Inc. v. Montgomery, 2005-Ohio-3377 (a request for documents to or from “employees” would improperly require the public entity to do research to determine which persons were classified as “employees,” and thus is overbroad).

* DeCrane v. Cleveland, 2018-Ohio-3476 (Ct. of Claims 2018) (a request for correspondence that is “not limited to correspondence between identified persons” is a factor supporting a determination that the request is overbroad).

* Kanter v. City of Cleveland Heights, 2018-Ohio-4592, 2018 WL 6594442, and 2018-Ohio-5016 (Ct. of Claims 2018) (request for all communications or messages between the City (without identifying specific City employees) and employees of a news media company during a 1-month period regarding a specific subject matter is overbroad).

* State ex rel. Morgan v. Strickland, 2009-Ohio-1901 (explaining that a requester “should refine, narrow and further clarify” an overbroad request for all email communications within a public office (without identifying specific employees) that refer to the “evidence-based model” or “education funding”).

* State ex rel. Daughterty v. Mohr, 2011-Ohio-6453 (request for all policies, emails, or memos concerning a specific subject is overbroad).

The District has denied this request as overbroad multiple times and has given you the opportunity to narrow your request accordingly. Any repeated submissions of this same request will not be considered a new records request that necessitate further response. See State ex rel. Laborers Intl Union of N. Am. Local Union No. 500 v. Summerville, 2009-Ohio-4090 (Ohio 2009).

Feel free to narrow your request.
Thanks,
Jack

Jack B. Hemenway
Attorney at Law |
Frost Brown Todd LLP

From: Hal Flak

Subject: RE: Ohio Open Records Law Request: E-mails containing search terms

Email

Please narrow the search to the following terms only:

trans AND gender

This should produce a very small number of records.

From: Oakwood City School District

Subject: RE: Ohio Open Records Law Request: E-mails containing search terms

Email

Hal,

As I have explained, and based on the authority in this email chain, this request is overbroad. The District generally maintains emails by sender/recipient, subject matter, and date range. If you would like to narrow your request by providing sender/recipient email account information, you may do so.
Thanks,
Jack

Jack B. Hemenway
Attorney at Law |
Frost Brown Todd LLP

From: Hal Flak

Subject: RE: Ohio Open Records Law Request: E-mails containing search terms

Email

Sir,

To be clear, you assert this type of request to be over broad due to method of electronic search,
even if it only returned 5 emails or 1 email?

Would you agree to run the search and if an unreasonable volume is returned then I would agree to further narrow the search terms?

Best,

Hal

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