COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71616 STATE, EX REL. HENRY J. FANT, : : JOURNAL ENTRY RELATOR-APPELLEE : : AND v. : : OPINION RONALD J. TOBER, : General Manager/Secretary : Greater Cleveland Regional : Transit Authority : : RESPONDENT-APPELLANT : : DATE OF ANNOUNCEMENT OF DECISION: NOVEMBER 26, 1997 CHARACTER OF PROCEEDING: Civil appeal from Court of Common Pleas, Case No. CV-301652. JUDGMENT: Reversed as modified. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: Henry J. Fant, pro se P.O. Box 14833 Cleveland, Ohio 44114 For Defendant-appellant: Elise Hara Assoc. Counsel-GCRTA The Root-McBride Building 1240 W. 6th Street, 6th Floor Cleveland, Ohio 44113 2 SWEENEY, JAMES D., C.J.: Respondent-appellant Ronald J. Tober, General Manager of the Greater Cleveland Regional Transit Authority ( GCRTA ), appeals from the October 22, 1996 order granting relator-appellee Henry J. Fant's ( Fant ) Motion for Summary Judgment. For the reasons adduced below, we reverse as modified the judgment of the trial court. A review of the record on appeal indicates that Fant filed his Complaint for a Writ of Mandamus on January 16, 1996, seeking the release of GCRTA records, allegedly public records, relative to a series of customer communication reports made by Fant concerning the allegedly improper driving practices of unidentified GCRTA bus drivers during the years 1990 through 1993 on a number of buses and routes utilized by Fant as a passenger. The customer communication reports, which were attached to the Complaint, centered upon the following driving practices: boarding or discharging passengers too far from the curb; the bus arriving or departing late, or not arriving at all, according to the bus schedule; the bus not stopping to pick up passengers; drivers allowing certain passengers to ride the bus without paying the fare upon boarding; drivers not keeping the aisles of the bus clear for passengers, or not paying undivided attention to driving; and the driver not assisting Fant1. Fant sought the following information, as computer printouts and photos, for the unidentified drivers on the identified routes, and 1Fant is a disabled, Korean War veteran. See Fant v. Greater Cleveland Regional Transit Authority (June 9, 1994), Cuyahoga App. No. 66415, unreported, at 2. 3 for the bus numbers, named in the materials attached to the Complaint: the names, residential mailing addresses, employee payroll numbers, dates of hiring, and photographs of the drivers. See Complaint, at paragraph 4; R.C. 149.43(B) and (C). GCRTA filed its Answer and Counterclaim on March 28, 1996. The Counterclaim alleged that the information had been supplied to Fant, but the $70 fee, for which the GCRTA seeks judgment, had not been received. On April 5, 1996, Fant filed his Motion for Summary Judgment (this Motion was supplemented on July 8, 1996). In this Motion, Fant admitted to receiving the thirty pages of computer printout and the bill for $70, but claimed his refusal to pay the $70 bill was because he did not request the volume of information provided. Instead, Fant claimed that he only requested the information on three specific unnamed drivers, and would pay for those three items if the GCRTA provided the information in a format which correlated or matched the particular driver to the search criteria provided in his customer communication reports. See Motion for Summary Judgment, at 2. On July 3, 1996, the GCRTA filed a Motion in Opposition to Relator's Motion for Summary Judgment ... This Motion also sought dismissal of the writ pursuant to Civ.R. 12(B)(6) for failure to state a claim for relief and, in the alternative, summary judgment in favor of the GCRTA. Attached to the GCRTA's incorrectly named brief in opposition was the affidavit of Mr. Edward Ovett, an attorney for GCRTA, in which it was averred that he had forwarded to Fant thirty computer printout sheets of information (drawn from the GCRTA's data control department 4 computer) and an invoice for seventy dollars ($70) to cover th cost of providing such information2. The thrust of the GCRTA's brief in opposition is that the documents provided Fant contained the requested information and there is no record maintained by the CRTA which feG ulfills Fant's request in the manner Fant seeks. The GCRTA argued that it was under no duty to cull its records and, based on the search terms presented by Fant in his customer communicationreports, create a document not previously maintained to fulfill Fant's request. Fant filed a Reply to the GCRTA's opposition on July 11, 1996. The trial court granted Fant's dispositive motion, without explanation, using a half-sheet status form entry3. See Journal Vol. 2013, page 269. This appeal followed presenting the following assignment of error: THE COURT OF COMMON PLEAS COMMITTED REVERSIBLE ERROR IN GRANTING THE PLAINTIFF-APPELLEE'S MOTION FOR SUMMARY JUDGMENT HOLDING THAT THE DEFENDANT-APPELLANT IS REQUIRED TO CREATE A RECORD PURSUANT TO R.C. 149.43. The standard of review for a motion for summary judgment was 2These thirty computer generated pages of information, which listed 1306 individual drivers, contained the information requested by Fant in his customer communication reports but did not match a particular driver to a particular customer communications report. Fant refused to pay the invoice because he did not request information on 1306 drivers. Fant wanted the GCRTA to match the information provided to the particular drivers identified by the date, route and bus number in the exhibits attached to his Complaint, in effect, creating a new public record where none had existed. See Fant's Motion for Summary Judgment, at 2. 3This order also granted judgment to Fant on all claims and counterclaims. 5 generally stated in State, ex rel. Zimmerman v. Tompkins (1996), 75 Ohio St.3d 447, 448-449, as follows: Civ.R. 56(C) provides that before summary judgment may be granted, it must be determined that (1) no genuine issue as to any material fact remains to be litigated, (2) the moving party is entitled to judgment as a matter of law, and (3) it appears from the evidence that reasonable minds can come to but one conclusion, and viewing such evidence most strongly in favor of the nonmoving party, that conclusion is adverse to the party against whom the motion for summary judgment is made. State, ex rel. Parsons v. Fleming (1994), 68 Ohio St.3d 509, 511, 628 N.E.2d 1377, 1379, citing Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327, 4 O.O.3d 466, 472, 364 N.E.2d 267, 274. * * * Summary judgment is appropriate where the nonmoving party does not produce evidence on any issue for which that party bears the burden of production at trial. Wing v. Anchor Media, Ltd. of Texas (1991), 59 Ohio St.3d 108, 570 N.E.2d 1095, paragraph three of the syllabus; State, ex rel. Morley v. Lordi (1995), 72 Ohio St.3d 510, 513, 651 N.E.2d 937, 940. When a motion for summary judgment is made and supported as provided in Civ.R. 56, the nonmoving party may not rest on the mere allegations of his pleading, but his response, by affidavit or as otherwise provided in Civ.R. 56, must set forth specific facts showing that there is a genuine triable issue. Civ.R. 56(E); Jackson v. Alert Fire & Safety Equip., Inc. (1991), 58 Ohio St.3d 48, 52, 567 N.E.2d 1027, 1031. (Emphasis added.) Also see Celotex v. Catrett (1986), 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265. Subsequent to Tompkins, in the recent case of Kulch v. Structural Fibers, Inc. (1997), 78 Ohio St.3d 134, 144-145, the Ohio Supreme Court limited the third paragraph of the syllabus of Wing, supra, by reasserting reliance on Dresher v. Burt (1996), 75 6 Ohio St.3d 280, 293: [A] party seeking summary judgment, on the ground that the nonmoving party cannot prove its case, bears the initial burden of informing the trial court of the basis for the motion, and identifying those portions of the record that demonstrate the absence of a genuine issue of material fact on the essential element(s) of the nonmoving party's claims. The moving party cannot discharge its initial burden under Civ.R. 56 simply by making a conclusory assertion that the nonmoving party has no evidence to prove its case. Rather, the moving party must be able to specifically point to some evidence of the type listed in Civ.R. 56(C) which affirmatively demonstrates that the nonmoving party has no evidence to support the nonmoving party's claims. If the moving party fails to satisfy its initial burden, the motion for summary judgment must be denied. However, if the moving party has satisfied its initial burden, the nonmoving party then has a reciprocal burden outlined in Civ.R. 56(E) to set forth specific facts showing there is a genuine issue for trial and, if the nonmovant does not so respond, summary judgment, if appropriate, shall be entered against the nonmoving party. (Footnote omitted; Italization in original.) The Ohio Open Records Act, R.C. 149.43, provides the following at section (B): (B) All public records shall be promptly prepared and made available for inspection to any person at all reasonable times during regular business hours. Upon request, a person responsible for public records shall make copies available at cost, within a reasonable period of time. In order to facilitate broader access to public records, governmental units shall maintain public records in a manner that they can be made available for inspection in accordance with this division. The question posed by Fant's dispositive motion at issue is whether the GCRTA was obligated, as a matter of law pursuant to 7 Civ.R. 56, to compile and provide the requested information in a format which was not maintained by the record-keeping authority so as to facilitate review by Fant. This question must be answered in the negative. In State, ex rel. Fant v. Mengel (1992), 62 Ohio St.3d 455, 456, the Supreme Court, citing State, ex rel. Scanlon v. Deters (1989), 45 Ohio St.3d 376, 379, stated that ...the Public Records Act does not compel appellee (Mengel) to create a new document to satisfy appellant's (Fant) demands. (Explanation added.) Also State, ex rel. Margolius v. Cleveland (1992), 62 Ohio St.3d 456. The Deters court, at 379, which was presented with a factually similar situation as the one sub judice in which an appellant citizen had sought information in a compilation not maintained by the record keeper, expounded on this reasoning stating: As to whether such a compilation exists as a document included within the definition of records in R.C. 149.011, Cincinnati Post, supra, suggests that a compilation of information must already exist in public records before access to it will be ordered. Id. at 173, 527 N.E.2d at 1232. We hold that the clerk could not be required to create a new document by compiling material to facilitate review of the public records. Conversely, if the clerk's computer were already programmed to produce the desired printout, the document would already exist for the purpose of an R.C. 149.43 request. (Underlining added.) See also State, ex rel. Cincinnati Post v. Schweikert (1988), 38 Ohio St.3d 170, 527 N.E.2d 1230. We hold that the GCRTA was under no obligation to create a new document for purposes of Fant's R.C. 149.43 request since such a 8 compilation did not already exist in the GCRTA's computer databank. Thus, there being no clear legal right to the relief prayed for or that the GCRTA is under a clear legal duty to perform the requested act, the writ of mandamus sought by Fant in his Complaint must not issue. State, ex rel. Nat'l Broadcasting Co. v. Cleveland (1988), 38 Ohio St.3d 79. Further, Fant was obligated to pay the $70 invoice for the information provided in response to his request pursuant to the counterclaim of the GCRTA. See R.C. 149(B) ( ...copies available at cost, ... ). Accordingly, the trial court's order granting summary judgment in favor of Fant is reversed and summary judgment is granted in favor of the GCRTA on its counterclaim for $70. Assignment affirmed. Judgment reversed as modified. 9 This cause is reversed as modified. It is, therefore, considered that said appellant(s) recover of said appellee(s) his costs herein. It is ordered that a special mandate be sent to said court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions. JOSEPH J. NAHRA, J., and TIMOTHY E. McMONAGLE, J., CONCUR. ______________________________ JAMES D. SWEENEY CHIEF JUSTICE N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .