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Andes v. Ohio Attorney General's Office

Court of Claims of Ohio

May 10, 2017

JODI ANDES, Requester
v.
OHIO ATTORNEY GENERAL'S OFFICE, Respondent

          Sent to S.C. Reporter 6/13/17

          Halli Brownfield Watson Assistant Attorney General

          Matthew J. Donahue Assistant Attorney General

          REPORT AND RECOMMENDATION

          JEFFERY W. CLARK Special Master

         {¶1} 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.

         {¶2} 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."[1] (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.

         {¶3} 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.)

         {¶4} 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).

         {¶5} 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.

         Motion to Dismiss

         {¶6} 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 required ...


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