Supreme Court of Ohio Clerk of Court - Filed December 16, 2019 - Case No.

2019-1735

Case No. ______________

STATE OF OHIO ex rel. MARK W. MILLER,

Relator,

v.

MT. HEALTHY COMMUNITY IMPROVEMENT CORP.,

and

JOHN DOE Nos. 1 to 9,

Respondents.

Original Action in Mandamus

VERIFIED COMPLAINT FOR WRIT OF MANDAMUS

Counsel for Relator:

Curt C. Hartman (0064242) Brian C. Shrive (0088980)

Counsel of Record Christopher P. Finney (0038998)
THE LAW FIRM OF CURT C. HARTMAN FINNEY LAW FIRM, LLC
7394 Ridgepoint Drive, Suite 8 4270 Ivy Pointe Blvd., Suite 225
Cincinnati, OH 45230 Cincinnati, OH 45245
(513) 379-2923 (513) 943-6656
hartmanlawfirm@fuse.net brian@finneylawfirm.com
chris@finneylawfirm.com
 SUPREME COURT OF THE STATE OF OHIO

STATE OF OHIO ex rel. : Case No.

MARK W. MILLER, :
℅ Brian Shrive, Attorney :
Finney Law Firm, LLC :
4270 Ivy Pointe Blvd., Suite 225 :
Cincinnati, Ohio 45245, :
:
Relator, :
: COMPLAINT FOR
v. : WRIT OF MANDAMUS
:
MT. HEALTHY COMMUNITY :
IMPROVEMENT CORPORATION, :
℅ Bill Kocher, Statutory Agent :
7700 Perry Street :
Mt. Healthy, Ohio 45231, :
:
and :
:
JOHN DOE Nos. 1 to 9, :
Members, Board of Directors of the :
Mt. Healthy Community Improvement Corp. :
℅ Mt. Healthy Community Improvement Corp. :
7700 Perry Street :
Mt. Healthy, Ohio 45231, :
:
Respondents. :

Comes now the STATE OF OHIO, by and through MARK W. MILLER, and in support

of its claim for the issuance of a writ of mandamus and an award of statutory damages, attorney

fees, and costs, alleges as follows:

1. This is an action for, inter alia, issuance of a writ of mandamus to compel the MT.

HEALTHY COMMUNITY IMPROVEMENT CORPORATION to comply with its legal duties

under the Public Records Act (R.C. 149.43), including, without limitation: (i) the legal duty to

respond affirmatively or negatively to a public records request within a reasonable period of time;

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and (ii) the legal duty to make copies of requested public records available to a requestor within a

reasonable period of time.

2. To the extent the requested public records do not exist, this action seeks alternatively

the issuance of a writ of mandamus to compel the MT. HEALTHY COMMUNITY

IMPROVEMENT CORPORATION and the members of its Board of Directors, JOHN DOE Nos.

1 TO 9, to comply with their legal duties under the Open Meeting Act (R.C. 121.22) to prepare,

file, and maintain full and accurate minutes for the meetings of the Board of Directors of the MT.

HEALTHY COMMUNITY IMPROVEMENT CORPORATION.

3. Relator MARK W. MILLER is an individual, residing in Hamilton County, Ohio.

4. Respondent MT. HEALTHY COMMUNITY IMPROVEMENT CORPORATION is

a “public office” as that phrase is used in R.C. 149.43 whose public records are at issue in this

case. See Ohio Att’y Gen’l Opin. No. 2006-037 (“information kept in the records of a community

improvement corporation designated as an agency of a county under R.C. 1724.10 is a public

record for purposes of R.C. 149.43”).

5. Respondents JOHN DOE Nos. 1 TO 9 are the members of the Board of Directors of

the MT. HEALTHY COMMUNITY IMPROVEMENT CORPORATION, but whose identity is

currently unknown and could not readily be ascertained through a search on the internet.

Public Records Request

6. On July 29, 2019, MARK W. MILLER, by and through his legal counsel, tendered a

Public Records Request Letter to the MT. HEALTHY COMMUNITY IMPROVEMENT

CORPORATION, seeking copies of the following public records: “the meeting minutes for all

meetings of the board of directors of the Mt. Healthy Community Improvement Corporation, and

all committees or subcommittees thereof, from January 1, 2019 to present.”

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 7. A true and accurate copy of the Public Records Request Letter is attached hereto as

Exhibit 1.

8. The Public Records Request Letter was sent via certified mail, return receipt

requested.

9. The Public Records Request Letter was received by the MT. HEALTHY

COMMUNITY IMPROVEMENT CORPORATION on July 30, 2019, as indicated by the

Returned Receipt.

10. A true and accurate copy of the Returned Receipt is attached hereto as Exhibit 2.

11. The MT. HEALTHY COMMUNITY IMPROVEMENT CORPORATION is a

“public office” as defined in R.C. 149.011(A).

12. The records sought pursuant to the Public Records Request Letter were created or

received by or come under the jurisdiction of the MT. HEALTHY COMMUNITY

IMPROVEMENT CORPORATION.

13. The records sought pursuant to the Public Records Request Letter serve to document

the organization, functions, policies, decisions, procedures, operations, or other activities of the

MT. HEALTHY COMMUNITY IMPROVEMENT CORPORATION.

14. The records sought pursuant to the Public Records Request Letter are kept by the

MT. HEALTHY COMMUNITY IMPROVEMENT CORPORATION.

15. The records sought pursuant to the Public Records Request Letter are “public

records” as defined in R.C. 149.49(A)(1).

16. To date, the MT. HEALTHY COMMUNITY IMPROVEMENT CORPORATION

has not responded, in any manner, to the Public Records Request Letter.

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 17. To date, the MT. HEALTHY COMMUNITY IMPROVEMENT CORPORATION

has not indicated whether it will provide the public records sought by the Public Records Request

Letter or whether it will deny providing the public records sought by the Public Records Request

Letter.

18. The MT. HEALTHY COMMUNITY IMPROVEMENT CORPORATION has failed

to produce any public records, let alone all public records, responsive to the Public Records

Request Letter.

19. R.C. 149.43(B)(1) imposes the legal duty upon public offices, including the MT.

HEALTHY COMMUNITY IMPROVEMENT CORPORATION, to make copies of requested

public record available to a requester within a reasonable period of time.

20. R.C. 149.43(B)(3) imposes the legal duty upon public offices, including the MT.

HEALTHY COMMUNITY IMPROVEMENT CORPORATION, to provide a requester seeking

public records with an explanation, including legal authority, if a public records request is denied,

in whole or in part.

21. If a public office is denying a request to inspect or for copies of public records, R.C.

149.43(B)(3) imposes the legal duty upon public offices, including the MT. HEALTHY

COMMUNITY IMPROVEMENT CORPORATION, to provide an explanation for such denial in

writing if the initial public records request was in writing.

22. The MT. HEALTHY COMMUNITY IMPROVEMENT CORPORATION has

violated its legal duties under the Public Records Act (R.C. 149.43) as it relates to the Public

Records Request Letter tendered on behalf of MARK W. MILLER.

23. The MT. HEALTHY COMMUNITY IMPROVEMENT CORPORATION has

violated its legal duties under the Public Records Act (R.C. 149.43) as it relates to the Public

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Records Request Letter tendered on behalf of MARK W. MILLER by failing to provide copies of

all responsive records within a reasonable period of time.

24. To the extent the failure of the MT. HEALTHY COMMUNITY IMPROVEMENT

CORPORATION to provide all public records responsive to the Public Records Request Letter

may be construed as a denial of the request, the MT. HEALTHY COMMUNITY

IMPROVEMENT CORPORATION has violated its legal duties under the Public Records Act

(R.C. 149.43) as it relates to the Public Records Request Letter tendered on behalf of MARK W.

MILLER by failing to provide an explanation, including legal authority, for such denial and for

failing to provide such explanation in writing.

25. The public records sought pursuant to the Public Records Request Letter would

expose to the general public the activities of the MT. HEALTHY COMMUNITY

IMPROVEMENT CORPORATION and its Board of Directors.

26. The public records sought pursuant to the Public Records Request Letter would allow

the community-at-large to be fully informed of the activities of the MT. HEALTHY

COMMUNITY IMPROVEMENT CORPORATION and its Board of Directors, including

whether the Board of Directors complies with Ohio law with respect to how it conducts its

meetings and whether the Board of Directors properly creates and maintains minutes of its

meetings.

27. Alternatively, if the MT. HEALTHY COMMUNITY IMPROVEMENT

CORPORATION has failed to provide the public records responsive to the Public Records Request

Letter because such records do not exist, the MT. HEALTHY COMMUNITY IMPROVEMENT

CORPORATION and JOHN DOE Nos. 1 to 9 have violated their legal duties under the Open

Meeting Act (R.C. 149.22) to prepare, file, and maintain full and accurate minutes for the meetings

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of the Board of Directors of the MT. HEALTHY COMMUNITY IMPROVEMENT

CORPORATION.

Writ of Mandamus – Public Records

28. The records sought pursuant to the Public Records Request Letter constitute “public

records” as defined in R.C. 149.43(A).

29. To date, the MT. HEALTHY COMMUNITY IMPROVEMENT CORPORATION has

failed to comply with the legal duties imposed upon it by the Public Records Act.

30. The MT. HEALTHY COMMUNITY IMPROVEMENT CORPORATION is the public

office in possession, custody or control of the public records sought pursuant to the Public Records

Request Letter.

31. MARK W. MILLER, as the Relator, has a clear legal right to copies of the public records

sought pursuant to the Public Records Request Letter and Respondents have a clear legal duty to

promptly make those records available for inspection and copying.

32. MARK W. MILLER, as the Relator, has no adequate remedy in the ordinary course of

law to obtain the public records sought pursuant to the Public Records Request Letter and the

Public Records Act specifically provides for the issuance of a writ of mandamus to compel a public

office or the person responsible for the requested public record to comply with the legal obligations

imposed by the Public Records Act.

33. There is no legally valid excuse for the continued refusal of the MT. HEALTHY

COMMUNITY IMPROVEMENT CORPORATION to provide the public records sought

pursuant to the Public Records Request Letter.

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 34. The issuance of a writ of mandamus will serve the public interest and provide a public

benefit by encouraging and promoting compliance in the future by public offices and public

officials with the terms of the Public Records Act, as well as court decisions thereon.

35. The issuance of a writ of mandamus will serve the public interest and provide a public

benefit by ensuring that the MT. HEALTHY COMMUNITY IMPROVEMENT CORPORATION

officials operate openly so that such operations will be subject to public scrutiny.

36. The issuance of a writ of mandamus will serve the public interest and provide a public

benefit by exposing to public view the activities which occur during the official meetings of the

Board of Directors of the MT. HEALTHY COMMUNITY IMPROVEMENT CORPORATION.

Writ of Mandamus – Meeting Minutes

37. Alternatively, to the extent JOHN DOE Nos. 1 to 9 have failed to prepare, file, and

maintain full and accurate minutes for its meetings, JOHN DOE Nos. 1 to 9 have the legal duty

under the Open Meetings Act to prepare, file, and maintain full and accurate minutes for its

meetings. See State ex rel. Long v. Cardington Village Council, 2001-Ohio-130, 92 Ohio St.3d

54, 748 N.E.2d 58.

38. To the extent JOHN DOE Nos. 1 to 9 have failed to prepare, file, and maintain full and

accurate minutes for its meetings, MARK W. MILLER, as the Relator, has a clear legal right to

have full and accurate minutes of the meetings of the Board of Directors of the MT. HEALTHY

COMMUNITY IMPROVEMENT CORPORATION prepared, filed, and maintained.

39. To the extent the JOHN DOE Nos. 1 to 9 have failed to prepare, file, and maintain full

and accurate minutes for its meetings, MARK W. MILLER, as the Relator, has no adequate

remedy in the ordinary course of law to have full and accurate minutes of the meetings of the Board

of Directors of the MT. HEALTHY COMMUNITY IMPROVEMENT CORPORATION

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prepared, filed, and maintained. State ex rel. Long v. Cardington Village Council, 2001-Ohio-130,

92 Ohio St.3d 54, 748 N.E.2d 58.

40. There is no legally valid excuse for the failure of JOHN DOE Nos. 1 to 9 to have full and

accurate minutes of the meetings of the Board of Directors of the MT. HEALTHY COMMUNITY

IMPROVEMENT CORPORATION prepared, filed, and maintained.

WHEREFORE, Relator prays: (i) for the issuance of a peremptory writ of mandamus, or,

in the alternative, an alternative writ of mandamus commanding the MT. HEALTHY

COMMUNITY IMPROVEMENT CORPORATION to immediately provide to Relator copies of

all of the public records sought pursuant to the Public Records Request Letter; (ii) in the

alternative, for the issuance of a peremptory writ of mandamus, or, in the alternative, an alternative

writ of mandamus commanding the MT. HEALTHY COMMUNITY IMPROVEMENT

CORPORATION and JOHN DOE Nos. 1 to 9 to prepare, file, and maintain full and accurate

minutes for the meetings of the Board of Directors of the MT. HEALTHY COMMUNITY

IMPROVEMENT CORPORATION; and (iii) an award of court costs, including reasonable

attorney fees, together with any other relief to which Relator may be entitled in law or in equity.

Respectfully submitted,

/s/ Brian C. Shrive

Curt C. Hartman (0064242) Brian C. Shrive (0088980)
Counsel of Record Christopher P. Finney (0038998)
THE LAW FIRM OF CURT C. HARTMAN FINNEY LAW FIRM, LLC
7394 Ridgepoint Drive, Suite 8 4270 Ivy Pointe Blvd., Suite 225
Cincinnati, OH 45230 Cincinnati, OH 45245
(513) 379-2923 (513) 943-6656
hartmanlawfirm@fuse.net brian@finneylawfirm.com
chriz@finneylawfirm.com

Attorneys for Relator

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Brian C. Shrive, Esq.
E-Mail Address: brian@finneylawfirm.com
(513) 943-6656 Direct Dial
(513) 943-6669 Direct Fax
July 29, 2019

VIA CERTIFIED MAIL

MT. HEALTHY COMMUNITY
IMPROVEMENT CORPORATION
c/o William Kocher, Statutory Agent
7700 Perry Street
Mt. Healthy, Ohio 45231
Tracking No.9314 8699 0430 0061 5937 43

Re: Public records request

Dear Mr. Kocher:

Pursuant to the Ohio Public Records Act, and on behalf of a client, I am requesting a copy of the meeting
minutes for all meetings of the board of directors of the Mt. Healthy Community Improvement Corporation, and all
committees or subcommittees thereof, from January 1, 2019 to present.

I request that responsive records be produced in an electronic medium to the extent possible. Specifically, with
respect to any word processor documents (e.g. word), I request that you provide copies of such records in their native
word processor format (e.g. .doc), and in a common read only format (e.g. .pdf). Furthermore, I request that the files be
emailed to me at the following email address brian@finneylawfirm.com; if some of the records cannot be produced in
an electronic medium, I would request that copies be provided. I am willing to pay the reasonable costs of copying such
records up to $30.00; if you anticipate the costs will exceed this amount, please advise me so that I might inspect the
records initially and identify the specific records for which I desire copies

If you have any questions or need clarification, please feel free to contact me.

Very truly yours,

FINNEY LAW FIRM

By: _________________________________
Brian C. Shrive, Esq.

EXHIBIT 1
September 12, 2019

Dear Brian Shrive:

The following is in response to your request for proof of delivery on your item with the tracking number:
9314 8699 0430 0061 5937 43.

Item Details

Status: Delivered, Left with Individual

Status Date / Time: July 30, 2019, 9:45 am
Location: CINCINNATI, OH 45231
Postal Product: First-Class Mail®
Extra Services: Certified Mail™
Return Receipt Electronic
Recipient Name: MT HEALTHY COMMUNITY IMPROVEMENT
CORPORATION
Shipment Details

Weight: 1.0oz
Recipient Signature

Signature of Recipient:

Address of Recipient:

Note: Scanned image may reflect a different destination address due to Intended Recipient's delivery instructions on file.

Thank you for selecting the United States Postal Service® for your mailing needs. If you require additional
assistance, please contact your local Post Office™ or a Postal representative at 1-800-222-1811.

Sincerely,
United States Postal Service®
475 L'Enfant Plaza SW
Washington, D.C. 20260-0004

EXHIBIT 2