to S.C. Reporter 6/13/17
Brownfield Watson Assistant Attorney General
Matthew J. Donahue Assistant Attorney General
REPORT AND RECOMMENDATION
JEFFERY W. CLARK Special Master
R.C.149.43(C) provides that a person allegedly aggrieved by a
violation of division (B) of that section may either commence
a mandamus action, or file a complaint under R.C. 2743.75. In
mandamus actions alleging violations of R.C. 149.43(B), a
relator must establish by "clear and convincing
evidence" that they are entitled to relief. State ex
rel. Miller v. Ohio State Hwy. Patrol, 136 Ohio St.3d
350, 2013-Ohio-3720, ¶ 14. As for actions under R.C.
2743.75 alleging violations of R.C. 149.43(B), neither party
has suggested that another standard should apply, nor is
another standard prescribed by statute. R.C. 2743.75(F)(1)
states that such claims are to be determined through
"the ordinary application of statutory law and case law
* * *." Accordingly, the merits of this claim shall be
determined under a standard of clear and convincing evidence,
i.e., "that measure or degree of proof which is more
than a mere 'preponderance of the evidence, ' but not
to the extent of such certainty as is required 'beyond a
reasonable doubt' in criminal cases, and which will
produce in the mind of the trier of facts a firm belief or
conviction as to the facts sought to be established."
Cross v. Ledford, 161 Ohio St. 469 (1954), paragraph
three of the syllabus.
On July 22, 2016, requester Jodi Andes sent an email to
respondent Ohio Attorney General's Office (AGO) stating
that she "would like to make a public records request
with the Ohio Attorney General's Office for information
on the case of Bobby Thompson/John Donald Cody. * * * I am
happy to the [sic] public records I am seeking now, if it is
able to be considered, or I can wait if there is an appeal
pending. * * * Can either of you check to see if information
from the case file is able to be released yet?"
(Requestor Exhibits p. 11.) Andes added later the same day
that "I can give specifics on my request, just thought I
would check first. No since [sic] in itemizing if there is
still a court case pending." (Id. p. 10.) On
July 27, 2016, the AGO responded, "I checked on this for
you and there is a pending appeal in the 8th
District, so therefore our records would not yet be
public." (Id.) Later the same day Andes sent an
email stating she believed "the issue is now closed in
the Eighth District Court of Appeals. * * * If it is closed I
will get you my formal request for records."
(Id. p. 8.) The AGO replied the same day that the
court of appeals had not yet ruled on a motion by the
defendant to reopen his direct appeal under App. R. 26.
(Id.) Over the next four months, no further
correspondence was exchanged.
On December 2, 2016, Andes sent an email to the AGO stating,
a. "I would like to go ahead and make a formal Open
Record Request for copies of Bobby Thompson's computer
files that were found on his computer and shared with Ohio
investigators by Florida investigators as well as a digital
copy of the computer files/hard drive files/flash drive files
found on Mr. Cody or his property after his arrest. These
were all admitted into evidence as part of his trial in
Cuyahoga County Common Pleas Court. These materials are not
germane to his appeal and were part of the evidence used to
earn a conviction."
(Id.) The AGO acknowledged receipt of the request
the same day. (Id. p. 7.) On January 3, 2017, Andes
requested an update, and the AGO responded on January 5, 2017
that there had been a new filing in the 8th appellate
district. (Id. p. 6.) On January 17, 2017, Andes
again requested an update (Id.), and on January 19,
2017 the AGO responded:
b. "Your records request is still undergoing a legal
review. Your request asks for 'computer files that were
found on his computer and shared with Ohio investigators by
Florida investigators as well as a digital copy of the
computer files/hard drive files/flash drive files found on
Mr. Cody or his property after his arrest.'
c. As I mentioned on the phone, if the records you are in
fact seeking were the small portion of the above computer
documents actually admitted into evidence, you should be able
to easily get them from the courts. The exhibits used in
court would be in the custody of the Cuyahoga County Clerk of
Courts, as the Clerk of Courts for the 8th Dist.
Court of Appeals."
(Id. p. 5.)
On February 10, 2017, Andes filed a complaint under R.C.
2743.75 alleging unreasonable delay in responding to her
request and denial of access to public records in violation
of R.C. 149.43(B). The case proceeded to mediation, and on
April 17, 2017, the court was notified that the case was not
resolved and that mediation was terminated. On May 1, 2017,
the AGO filed a combined response and motion to dismiss
pursuant to R.C. 2743.75(E)(2).
For the reasons stated below, the special master concludes
that subsequent to the filing of the complaint, the AGO has
provided Andes with copies of all public records responsive
to her request of December 2, 2016. However, because the AGO
failed to provide the responsive records within a reasonable
period of time, Andes is entitled to recover her filing fee
and other costs incurred.
The AGO asserts that Andes' complaint is deficient on its
face for failure to comply with R.C. 2743.75(D)(1), which
states that a requester "shall attach to the complaint
copies of the original records request and any written
response or other communications relating to the request from
the public office * * *." The AGO argues that Andes'
failure to attach the original records request constitutes a
failure to "make a short and plain statement of the
claim showing that the party is entitled to relief" as