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Ohio Crime Victim Justice Center v. City of Cleveland Police Division

Court of Claims of Ohio

November 17, 2017

OHIO CRIME VICTIM JUSTICE CENTER Requester
v.
CITY OF CLEVELAND POLICE DIVISION Respondent

          Sent to S.C. Reporter 12/11/17

          REPORT AND RECOMMENDATION

          JEFFERY W. CLARK Special Master

          {¶1} On November 18, 2016, requester Ohio Crime Victim Justice Center ("OCVJC") filed a complaint under R.C. 2743.75 alleging denial of timely access to public records in violation of R.C. 149.43(B) by respondent City of Cleveland, Police Division ("Cleveland PD"). The complaint alleged that:

Ohio Crime Victim Justice Center (OCVJC) has made requests concerning Kaley J. Furner, Dion Davis, and Tommie Lee Davis Jr. via fax. The requests concerning Ms. Furner, Mr. Davis, and Mr. Davis Jr. have been submitted five times with numerous phone calls in-between the requests. (See attached pages for summary of attempts and copies of each attempt.) Cleveland Division of Police has acknowledge [sic] the submission over the phone and the faxes went through without error. However, Cleveland Division of Police has refused to provide any response in writing or provide the requested records.

         OCVJC attached a copy of the original public records request concerning Kaley J. Furner, but did not attach copies of any request concerning Dion Davis or Tommie Lee Davis, Jr. The case proceeded to mediation, and on April 7, 2017, the court was notified that the case was not fully resolved. On April 21, 2017, Cleveland PD filed its response pursuant to R.C. 2743.75(E)(2). On May 9, 2017, OCVJC filed a statement that post-complaint records provided by Cleveland PD concerning the Kaylee Furner request were a satisfactory response. (Statement, p. 1.) On May 17, 2017, OCVJC complied with a court order to file the original public records request concerning Davis and Davis, Jr. The Davis request, dated August 23, 2016, asked for:

All incident reports and related files, including, but not limited to, interviews, whether audio or video, and narratives involving the following individuals: Tommie Lee Davis Jr.; Approximate Year of Birth: 1997 and Dion Davis; Date of Birth: 11/12/1983.

(Original public records request, p. 3.) On June 30, 2017, respondent filed an additional memorandum of law ("Memorandum") regarding the records withheld, and on July 7, 2017, it filed all records responsive to the Davis requests under seal ("Responsive records"). On July 10, 2017, OCVJC filed its reply to Cleveland PD's pleadings ("Response to memorandum"). On September 27, 2017, respondent filed notice that it had provided OCVJC with additional responsive documents, and filed an explanation under seal of all redactions. (Affidavit of Aviss Rollins.) OCVJC disputes the validity of Cleveland PD's application of the following exceptions to the withheld or redacted records: constitutional right of privacy, R.C. 5153.17, R.C. 5139.05(D), and R.C. 149.43(A)(1)(1). (Response to memorandum, p. 2-4.)

         {¶2} The remedy of production of records is available under R.C. 2743.75 if the court of claims determines that the public office denied the aggrieved person access to requested public records in violation of R.C. 149.43(B). R.C. 149.43(B)(1) requires a public office to make copies of public records available to any person upon request, within a reasonable period of time. The policy underlying the Public Records Act is that "open government serves the public interest and our democratic system." State ex rel. Dann v. Taft, 109 Ohio St.3d 364, 2006-Ohio-1825, 848 N.E.2d 472, ¶ 20. "[O]ne of the salutary purposes of the Public Records Law is to ensure accountability of government to those being governed." State ex rel. Strothers v. Wertheim, 80 Ohio St.3d 155, 158, 684 N.E.2d 1239 (1997). Therefore, R.C. 149.43 must be construed "liberally in favor of broad access, and any doubt is resolved in favor of disclosure of public records." State ex rel. Cincinnati Enquirer v. Hamilton Cty., 75 Ohio St.3d 374, 376, 662 N.E.2d 334 (1996).

         {¶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, 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, 120 N.E.2d 118 (1954), paragraph three of the syllabus. See Hurt v. Liberty Twp., 5th Dist. Delaware No. 17CAI050031, 2017-Ohio-7820, ¶ 27-30.

         Motion to Dismiss

         {¶4} Cleveland PD moves to dismiss the complaint on the grounds that, 1) OCVJC failed to attach copies of the Davis and Davis, Jr., request to its complaint, rendering the complaint deficient under R.C. 2743.75(D)(1), and, 2) Cleveland PD responded within a reasonable time with all responsive records not subject to withholding. (Response, p. 2-5; Memorandum, p. 2-3.) In construing a motion to dismiss pursuant to Civ.R. 12(B)(6), the court must presume that all factual allegations of the complaint are true and make all reasonable inferences in favor of the non-moving party. Mitchell v. Lawson Milk Co., 40 Ohio St.3d 190, 192, 532 N.E.2d 753 (1988). Then, before the court may dismiss the complaint, it must appear beyond doubt that plaintiff can prove no set of facts entitling him to recovery. O'Brien v. Univ. Community Tenants Union, Inc., 42 Ohio St.2d 242, 245, 327 N.E.2d 753 (1975). The unsupported conclusions of a complaint are, however, not admitted and are insufficient to withstand a motion to dismiss. Mitchell at 193.

         Failure to Attach Davis Request to Complaint

         {¶5} Cleveland PD asserts that OCVJC's complaint is deficient 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." Cleveland PD presumably argues that either OCVJC fails to invoke the jurisdiction of the court, or fails to state a claim upon which relief may be granted. Civ.R. 12(B)(1), (6).

         {¶6} To the extent that they would by their nature be clearly inapplicable, the Rules of Civil Procedure do not apply to procedure in special statutory proceedings. Civ.R. 1(C)(6). R.C. 2743.75 is a special statutory proceeding providing, at division (E)(2), that other than the complaint and response, "[n]o further motions or pleadings shall be accepted by the clerk of the court of claims or by the special master * * * unless the special master directs in writing that a further motion or pleading be filed." The special master directed in writing that OCVJC's original Davis request be filed. (Order, May 11, 2017.) Further, Cleveland PD affirms that it received the original Davis request on September 8, 2016 (Response, p. 1-2.). OCVJC filed a copy of the original Davis request with the court on May 17, 2017. Respondent addressed the major exceptions to release of the Davis records in its initial response, and supplemented its arguments in its memorandum of June 30, 2017, and with the Rollins Affidavit of September 27, 2017. OCVJC's initial failure to submit the Davis request has been rectified, and respondent does not allege any prejudice as a result. I therefore recommended that the motion to dismiss the claim for production of the Davis records on this basis be OVERRULED.

          Suggestion of Mootness

         {¶7} In an action to enforce R.C. 149.43(B), a public office may produce the requested records prior to the court's decision, and thereby render the claim for production of records moot. State ex rel. Striker v. Smith, 129 Ohio St.3d 168, 2011-Ohio-2878, ¶ 18-22. A court considering a claim of mootness must first determine what records were requested, and then whether all responsive records were provided. OCVJC requested certain records pertaining to Kaylee Furner, and states that Cleveland PD provided these records subsequent to the filing of the complaint. (Statement, p. 1.) I therefore recommend that the claim for production of records pertaining to Kaylee Furner be DISMISSED as moot.

         {¶8} With regard to records concerning Dion Davis and Tommie Lee Davis, Jr., Cleveland PD has provided OCVJC with a number of records, but redacted or withheld some. OCVJC disputes that the responsive records were properly redacted or withheld. I therefore recommend that the claim for the Davis and Davis, Jr., records be DISMISSED as moot as to the records provided without redaction. The court should PROCEED to determine on the merits whether the remaining records and portions of records were withheld in violation of R.C. 149.43(B).

         Records Excluded by OCVJC

On May 9, 2017, OCVJC effectively amended its claim by stating that it is not seeking any Child and Family Services records. If Cleveland Police Department is in possession of Child and Family Services records, those should not be included in the response to the request.

(Statement, p. 5.) Cleveland PD has identified Child and Family Services ("CFS") records within the responsive documents submitted under seal as: pp. 111, 121-161, 169, and 174-215. In addition, records at pp. 105-106 and 110 are duplicates of CFS records. Upon independent review, I conclude that the listed documents are self-authenticating records of CFS. These records should therefore be excluded from any order of the court to produce records concerning Davis or Davis, Jr.

          The Public Records Act Applies to "Records"

         {¶9} Respondent asserts that some of the responsive records "are not City of Cleveland documents." (Rollins Aff., re: Bates-numbered documents pp. 115-161, 169, 174-221, 224-229, 231-232, and 246.) The court construes this as an assertion that the listed documents are not "records" of the Cleveland PD and therefore not subject to production by the office in response to a public records request. However, a document may serve as a record for more than one public office. State v. Sanchez, 79 Ohio App.3d 133, 136, 606 N.E.2d 1058 (6th Dist.1992). Regardless of whether they also function as records elsewhere, the only question in this action is whether the items serve as records of Cleveland PD.

         {¶10} R.C. 149.011(G) provides a three-part definition of "records" as used in Revised Code Chapter 149:

The term "records" includes "any document, device, or item, regardless of physical form or characteristic, including an electronic record as defined in section 1306.01 of the Revised Code, created or received by or coming under the jurisdiction of any public office of the state or its political subdivisions, which serves to document the organization, functions, policies, decisions, procedures, operations, or other activities of the office.

         As information recorded on fixed media of either paper or electronic files, all the listed items meet the first element of the definition of a record, as documents. Regarding the second element, the listed documents were all received by the Cleveland PD from the CFS (Responsive records, transmission cover letters at pp. 121, 159, 174 and 212) or through the Ohio Law Enforcement Gateway ("OHLEG"). The third part of the definition, that records are items that "serve to document" the activities of the office, is broad and inclusive:

We previously have held that the General Assembly's use of "includes" in R.C. 149.011(G) as a preface to the definition of "records" is an indication of expansion rather than constriction, restriction, or limitation and that the statute's use of the phrase "any document" is one encompassing all documents that fit within the statute's definition, regardless of "form or characteristic." * * * There can be no dispute that there is great breadth in the definition of "records" for the purposes here. Unless otherwise exempted or excepted, almost all documents memorializing the activities of a public office can satisfy the definition of "record." * * * Indeed, any record that a government actor uses to document the organization, policies, functions, decisions, procedures, operations, or other activities of a public office can be classified reasonably as a record.

Kish v. Akron, 109 Ohio St.3d 162, 2006-Ohio-1244, 846 N.E.2d 811, ¶ 20. The listed records were gathered and compiled within the requested case files, in aid of Cleveland PD's investigation of criminal offenses. Thus, the records obtained from the CFS, BMV, and OHLEG document Cleveland PD's official "functions, * * * procedures, operations, and other activities."

         {¶11} I conclude that the listed documents all meet the definition of "records" of Cleveland PD, and none may be withheld on the basis that they "are not City of Cleveland documents."

         The Assembled CFS Documents are "Kept By" Cleveland PD

         {¶12} "'Public record' means records kept by any public office." R.C. 149.43(A)(1). "Kept by" means records maintained by the public office as provided by law or under the rules adopted by the relevant records commission (i.e., approved records retention schedules). Once created, received, or coming under the jurisdiction of a public office,

All records are the property of the public office concerned and shall not be removed, destroyed, mutilated, transferred, or otherwise damaged or disposed of, in whole or in part, except as provided by law or under the rules adopted by the records commissions provided for under sections 149.38 to 149.42 of the Revised Code * * * Those records shall be delivered by outgoing officials and employees to their successors and shall not be otherwise removed, destroyed, mutilated, or transferred unlawfully.

R.C. 149.351(A); see also R.C. 149.40, Making only necessary records. Remedies for unlawful removal or transfer of a public office's records include civil actions for injunctive relief and forfeiture, and replevin by the attorney general if requested by the department of administrative services. R.C. 149.351(B); R.C. 149.352; and R.C. Chapter 2737.[2] Cleveland PD has maintained, and does not allege disposal of, the listed CFS and other outside agency documents. I conclude that these records initially meet the definition of "public records" of Cleveland PD.

         Application of Claimed Exceptions

         {¶13} R.C. 149.43(A)(1) enumerates specific exceptions from the definition of "public record, " as well as a catch-all exception for, "[r]ecords the release of which is prohibited by state or federal law." R.C. 149.43(A)(1)(v). The public office bears the burden of proof to establish the applicability of any exception:

Exceptions to disclosure under the Public Records Act, R.C. 149.43, are strictly construed against the public-records custodian, and the custodian has the burden to establish the applicability of an exception. * * * A custodian does not meet this burden if it has not proven that the requested records fall squarely within the exception.

State ex rel. Cincinnati Enquirer v. Jones-Kelley, 118 Ohio St.3d 81, 2008-Ohio-1770, 886 N.E.2d 206, ¶ 10; accord State ex rel. Thomas v. Ohio State Univ., 71 Ohio St.3d 245, 247, 643 N.E.2d 126 (1994).

         {¶14} Where a public office claims an exception based on risks that are not evident within the records themselves, the office must provide more than conclusory statements in affidavits to support that claim. State ex rel. Besser v. Ohio State Univ., 89 Ohio St.3d 396, 400-404, 732 N.E.2d 373 (2000). Cleveland PD asserts that specified portions of the withheld records are subject to the constitutional right of privacy of a crime victim and exceptions for children services records provided in R.C. 5153.17, R.C. 5139.05(D), and R.C. 149.43(A)(1)(1). (Answer, p. 5-7; Memorandum, p. 3-7.) Cleveland PD also asserts R.C. 2151.421(H), R.C. 149.43(A)(1)(h) and (A)(2), R.C. 4501.27(C), R.C. 149.43(A)(1)(a), the federal Health Insurance and Accountability Act of 1996 ("HIPAA"), common law attorney-client work product, and the constitutional right of privacy of persons in their social security number (Affidavit of Aviss Rollins, filed under seal.). Respondent asserts that all withheld and redacted records are subject to one or more of these exceptions.[3]

         Constitutional ...


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