CHARLES L. TINGLER Requester
OTTAWA COUNTY PROSECUTOR'S OFFICE Respondent
to S.C. Reporter 11/7/17
REPORT AND RECOMMENDATION
Jeffery W. Clark Special Master.
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."
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.
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 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.
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.
Motion to Dismiss Based on Changed Circumstances
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
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. R.C. 149.43(B)(8)
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."
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.
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.
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 ...