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Tingler v. Ottawa County Prosecutor's Office

Court of Claims of Ohio

October 20, 2017

CHARLES L. TINGLER Requester
v.
OTTAWA COUNTY PROSECUTOR'S OFFICE Respondent

          Sent to S.C. Reporter 11/7/17

          REPORT AND RECOMMENDATION

          Jeffery W. Clark Special Master.

         {¶1} On February 7, 2017, requester Charles Tingler made a public records request to the Ottawa County Prosecutor's Office for "all documentary reports regarding a 2011 investigation of Magistrate Sarah Nation." On February 10, 2017, Ottawa County Prosecutor James VanEerten responded:

a. "Unfortunately we are unable to provide any documents that are responsive to your request. The documents that are currently possessed by this office are exempted from disclosure pursuant to Ohio Revised Code Sections 149.43 (A)(1)(h), 149.43(A)(1)(p), 149.43(A)(2) and 2151.421."

         {¶2} On March 17, 2017, Tingler filed a complaint under R.C. 2743.75 alleging denial of access to public records in violation of R.C. 149.43(B), attaching copies of his public records request and the response letter. A mediation session was scheduled for April 20, 2017, but Tingler failed to appear. The court was notified that the case was not resolved and that mediation was terminated. On May 5, 2017, the Prosecutor's Office filed a verified response and motion to dismiss. Pursuant to R.C. 2743.75 (E)(3)(c), the special master directed the Prosecutor's Office to file an authenticated and unredacted copy of all investigative documents regarding the 2011 investigation referenced in the complaint, with an affidavit detailing how any specific portions of the investigative records are excepted by each claimed exception. On July 18, 2017, the Prosecutor's Office completed its filings in response to the order. On July 28, 2017, the Prosecutor's Office filed a renewed motion to dismiss. By order dated August 7, 2017, requester was given the opportunity to reply to respondent's public filings, and on August 25, 2017, Tingler filed his reply.

         {¶3} R.C. 2743.75(F)(1) states that public records claims filed thereunder are to be determined through "the ordinary application of statutory law and case law." Case law regarding the alternative statutory remedy of a mandamus action[1] provides that 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. Therefore, the merits of this claim shall be determined under the standard of clear and convincing evidence. Hurt v. Liberty Twp., 5th Dist. Delaware No. 17CAI050031, 2017-Ohio-7820, ¶ 27-30.

         {¶4} The remedy of production of records is available under R.C. 2743.75 if "the court of claims determines that the public office or person responsible for the public record denied the aggrieved person access to the public records in violation of division (B) of section 149.43 of the Revised Code * * *." R.C. 2743(F)(3). R.C. 149.43(B)(1) requires public offices to make public records available to any person upon request. There is no dispute that the Ottawa County Prosecutor's Office is a public office, that the requested information exists in records kept by the Prosecutor's Office, that the request of February 7, 2017 reasonably identifies the information sought, and that the Prosecutor's Office denied the request in its entirety. I conclude that Tingler's letter contains a sufficiently specific request for public records, subject to any valid exemption or exception to disclosure.

         Respondent's Motion to Dismiss Based on Changed Circumstances

         {¶5} On October 31, 2016, Tingler was sentenced to a prison term of four years pursuant to criminal conviction in Ottawa Co. Case No. 2014-CR-00044 CRCI. That sentence was suspended and Tingler was placed on community control. (Requester's brief, September 13, 2017, p. 1; Respondent's response, September 15, 2017, p. 1.) Tingler was not incarcerated on the date of the February 7, 2017 public records request. Id. However, Tingler was subsequently convicted of probation violation and conveyed to prison on June 30, 2017 (Id., Disposition entry.), where he remains at present.

         {¶6} On July 28, 2017, respondent filed a renewed motion to dismiss asserting that it is not required to permit Tingler, as a person incarcerated pursuant to a criminal conviction, to obtain records of a criminal investigation.[2] R.C. 149.43(B)(8) provides:

b. "A public office or person responsible for public records is not required to permit a person who is incarcerated pursuant to a criminal conviction * * * to inspect or to obtain a copy of any public record concerning a criminal investigation or prosecution * * *, unless the request to inspect or to obtain a copy of the record is for the purpose of acquiring information that is subject to release as a public record under this section and the judge who imposed the sentence * * *, or the judge's successor in office, finds that the information sought in the public record is necessary to support what appears to be a justiciable claim of the person."

         This restriction applies to an inmate's request for records of any criminal investigation, not just those from his own case. State ex rel. Papa v. Starkey, 5th Dist. Stark No. 2014CA00001, 2014-Ohio-2989. Tingler has not sought any finding from his sentencing judge with respect to the requested records. State v. Lather, 6th Dist. Sandusky No. S-08-036, 2009-Ohio-3215, ¶ 8-18.

         {¶7} Tingler argues that his status at the time the request was made, rather than at the time the court renders a decision on production, controls the duty of the office to produce the records. However, Tingler's intervening violation of the terms of his probation, resulting in his incarceration, changed the material facts and circumstances surrounding the request, bringing it squarely within the terms of R.C. 149.43(B)(8). A requester's status as an incarcerated person is not merely incidental or irrelevant to the purposes of the statute. In applying the identical language of former R.C. 149.43(B)(4), the Ohio Supreme Court stated that "our paramount concern in construing a statutory provision is legislative intent, " State ex rel. Russell v. Thornton, 111 Ohio St.3d 409, 2006-Ohio-5858, ¶ 11. The Court noted that "[t]he language of the statute is broad and encompassing, " and held that here, "[t]he General Assembly clearly evidenced a public-policy decision to restrict a convicted inmate's unlimited access to public records in order to conserve law enforcement resources." Id. at ¶ 14. The language of the statute "clearly was drafted to restrict the ability of inmates to obtain what would otherwise be easily obtainable by noninmates." Id. at ¶ 15. The statutory wording does not confer just an office's right to deny a request at the time it is made, but broadly restricts the ability of inmates to "access" and "obtain" records while incarcerated. Id. Thus, ordering the Prosecutor's Office to deliver criminal investigation records to Tingler in prison would violate its statutory right not "to permit a person who is incarcerated * * * to inspect or to obtain a copy of" such records.

         {¶8} All of the responsive records fall within the scope of R.C. 149.43(B)(8). Tingler requested from the Prosecutor's Office all documentary reports "regarding" a 2011 investigation of child abuse (Complaint; Respondent's verified response, May 17, 2017, p. 1.). The Supreme Court has determined that the type of records exempted from inmate requests, i.e., "any record concerning a criminal investigation, " is much broader than ...


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