Lakewood Hospital Public Records Case Comes To A Close
A three-year civil appeals case against the city of Lakewood came to an apparent end May 10 when a Cuyahoga County Appeals Court judge ordered the payment of statutory damages and attorneys' fees to resident Brian Essi, who'd urged for tens of thousands of pages of city records about the decision to close Lakewood Hospital to be released to the people. The judicial opinion brings one front of the contentious debate over what happened with the hospital to a tentative denouement.
Much of the Lakewood Hospital story has been debated in the court of public opinion and on op-ed pages—going back to the January 2015 announcement of the plan to sell off the hospital assets to the Cleveland Clinic and demolish the building at Detroit and Belle avenues. Sides were formed and taken in the city. Elections were won and lost. But the deeper philosophical history of the city—the portion of the story in which we ask “What happened?”—is written in large part in this court docket.
“Lakewood’s actions were not in accord with the principle that public records are the people’s record,” Judge Kathleen Ann Keough wrote, sealing the civil case in rebuke.
The city has an opportunity to appeal this decision. For now, the opinion casts a sunset glow on a divisive chapter in recent Lakewood history.
Out the door, the court awarded Essi $1,000 in damages. (Statutory damages are fixed at $100 “for each business day during which the records custodian fails to comply with an obligation,” with a maximum of $1,000.)
The damages awarded in this case are acknowledgment from the court that the city of Lakewood did not act in a timely manner.
In December 2018, Keogh had issued her judgment in this case—essentially writing that Lakewood had released some public records and withheld others. The judge conceded that the city had released 27,000 pages of records, but pointed out, too, that those documents had been released in several spurts in 2017—more than a year after the requests had been filed and well past any real relevance for local voters.
“Although Lakewood promptly complied with a few of the requests and although Essi’s requests were massive and often problematic,” Keough wrote in the May 10 opinion, “Lakewood took over 15 months from the filing of the complaint and approximately a year from the allowance of the amended complaint to satisfy Essi’s public records request on an important civic matter. The delay in over a year to fulfill the requests was not promptly making the records available within a reasonable time.”
As this case drew to a close over the past year, that became the central dispute: that the city had complied with some of Essi's records requests, but TOO LATE for any of it to matter, too late for the people to grasp the very people's record. (All told, 58 separate public records inquiries remain unfulfilled by the city.)
“In Ohio, public records are the people's records,” Keough wrote in her December opinion. “To that end, the public records act is to be construed liberally in favor of broad access and disclosure. The courts are to resolve any doubt in favor of disclosure.”
Essi filed for damages, citing the timeliness of those records releases. The judge acceded.
As far as attorneys’ fees in this case, it’s a little complicated.
Essi employed two firms during this litigation. Each amassed a cornucopia of hours on the clock, many of which were tossed by the judge (who characterized their breadth as “not reasonable”). McGown & Markling, which started the process and set the case in motion, was awarded $49,210.50 in the end. DannLaw, which picked up the case in 2017, was awarded $24,769.55.
To travel through the court docket of those two firms' work in this civil case is to observe a zig-zag argument layered with public debate and questions of democratic representation, of what it means to request public records and fight for timely release. Keough’s May 10 opinion introduces the narrative plainly enough: “Beginning on March 15, 2016, Essi began a comprehensive public records request endeavor to obtain the records relating to the closure and sale of Lakewood Hospital by sending the city of Lakewood 173 public records requests through certified mail.” He eventually filed a total of 318 separate requests.
The backdrop of this case is the November 2016 election, held eight months after Essi began his public records search. On the ballot, voters were asked whether to overturn City Council's December 2015 decision to close and demolish Lakewood Hospital and allow the Cleveland Clinic to build a three-story family health center at Detroit and Belle. As the summer of 2016 got under way, however, the Lakewood Hospital records—the fragmented internal documentation of how the December 2015 council decision was made—weren't showing up.
“On June 24, 2016, [Essi] had no alternative but to file an action in mandamus in the hopes that the records he was seeking would be available to assist the public before the scheduled vote on the referendum to reverse the city council's decision to close Lakewood hospital in November of 2016,” according to a document filed in late December 2018.
“What happened after the election, by [the city] delaying through the legal posturing of the production of the records, is that there's two notable documents that came out after the election cycle that pretty much decided the hospital's fate,” Essi told The Lakewood Observer. (Essi has written bylined articles for the Observer on this very topic.)
The narrative is almost old hat in Lakewood at this point.
Chief among the city's early assertions was the reported $120 million of investment coming into the city. When the proposed deal to shutter and demolish Lakewood Hospital was announced in January 2015, that figure was the linchpin. “This plan includes a $120-million investment in Lakewood to transition from the current model to a future one which will modernize healthcare and deliver a more sustainable way to meet the long-term needs of the Lakewood community,” according to the city's Jan. 15, 2015, press release. The figure was repeated at community meetings about the deal.
According to a Feb. 26, 2015, email sent by LHA trustee Bill Gorton, the number was a joke. “The $120 million slide was demolished at the last meeting,” Gorton wrote. “As it should be as it is bogus. My strong recommendation is to remove all reference to that unfortunate number.” Ken Haber, another LHA trustee, in a reply the following day, wrote, “Agreed.”
As Essi wrote at length for the Lakewood Observer at the time, council member Tom Bullock was cc'd on those emails, as was Mayor Mike Summers. Each knew of the improper framing of the hospital deal.
The other record that Essi cited was contained in the 2014 Subsidium Healthcare report, which explained that the appraisal of the 850 Columbia Road hospital facility wouldn't lend any material advantage to the city. (The property was eventually sold off to the Clinic as part of the broader Lakewood Hospital deal for a shade over $8 million.)
Those revelations and more were contained in the 27,000 pages of records released by the city in August 2017.
“The gist of some of the documents withheld was that they were hiding the $120-million investment number that they were using in both election cycles until after the election cycle,” Essi said, “when the mayor himself and Bullock were parties to an email where their colleagues in the LHA board were saying the number was bogus and indefensible. Even the Subsidium [report] said it was a negligible advantage to the city.”
By late 2018, and well into 2019, however, what all of that means is still clearly up for debate in Lakewood. The 2015 mayoral election, the 2015 council vote and the 2016 general election left their marks; now, with new development projects on the horizon and another mayoral race under way, the echoes of what happened during the Lakewood Hospital deal persist.
Essi said as much in his own December 2018 court filing: “Like justice, records delayed are records denied when it came to the ability of voters in Lakewood to make informed decisions about the hospital referendum.”
To address the broader need for a rich public records in policy, Lakewood City Council members Meghan George and Tristan Rader on May 20 introduced an ordinance that would create an easy-to-use web portal for requests. The system would require an initial response to a request within two days and would mandate public records training for top officials. “Having a chapter of our code dedicated to public records would not make Lakewood unique, nor is it intended to invalidate the city’s current records processes by which many in the community have been well served,” the two wrote in a letter to council colleagues. “In fact, an important objective of this proposed legislation is to maintain and reinforce important portions of the city’s current Public Records Policy by codifying them into permanent law.”
The initiative would build off the progress made by other communications efforts in the city: the mobile app and the Police-2-Citizen web portal.
“We intend that Lakewood city should strictly adhere to all its obligations under Ohio’s Public Records Law, and to exceed those obligations whenever it is practical and makes sense to do so,” George and Rader wrote.
City Council President Sam O’Leary provided a statement when asked for comment about the Lakewood Hospital records case from the perspective of Lakewood’s public officials: “The city of Lakewood has continued to act in the best interests of its residents throughout lengthy and protracted judicial proceedings, consistently winning judgments in support of the city. We are, thus, disappointed in the latest ruling by the Appeals Court which says the city took too long to respond to multiple public records and documentation requests that were part of those multi-year legal proceedings. During the several years in which the city successfully defended itself against unfounded and unproven accusations, we released more than 27,000 pages of records to the plaintiff and his attorneys.
“Importantly,” O'Leary's statement continued, “the Court of Appeals found that Lakewood applied the public records law in good faith, but simply took too long to produce certain records in the face of voluminous, convoluted, and often improper records requests. The Court called those records requests ‘massive and often problematic,’ but concluded that it ultimately took too much time to comply with a few of the burdensome requests. At the same time, the Court has determined that those legal fees are excessive and has reduced them by about two-thirds. The city of Lakewood will consider its options in light of the Appeals Court ruling, and will continue to act with deliberation and concern for our residents.”
The Lakewood Hospital deal, as it were, was finished by the time the bulldozers tore into the 99-year-old building and, later, when the 2016 referendum came up 52-48—in favor of the deal. But the public records case is a narrative that describes how information was doled out at a critical juncture in the city's recent history.
“It never made any sense, after review of the documents and financial statements and the proposed agreement, that there was anything close to $120 million coming into Lakewood,” Essi said.
“In fact, I think it was $120 million going out of Lakewood."
Essi further explained, "So, in other words, as a citizen and taxpayer of Lakewood, I think it was a complete giveaway of … something in the nature of $120 million. And … one of the major drivers on my end was the hospital, aside from providing all the care that a hospital does, per the audited financial statements, was giving $7 million of charity work to Lakewood and surrounding communities for the nine or 10 years that the Cleveland Clinic had been there, year in and year out.”
The Cleveland Clinic's family health center opened in July 2018. The next chapter of the Lakewood Hospital land is the proposed development of One Lakewood Place, a mixed-use project spearheaded by Westlake-based Carnegie Management & Development Corp. Planning is ongoing.
“My personal reaction is we did the best we could,” Essi said. “I'm not looking in the rearview on the woulda, shoulda, coulda.”
Eric Sandy is a local journalist. He formerly worked for the Sun Post-Herald.