to S.C. Reporter 5/4/18
REPORT AND RECOMMENDATION
JEFFERY W. CLARK Special Master
On January 1, 2018, requester Willie Johnson mailed a public
records request to the Cleveland Police Department asking for
copies of investigatory records related to Case No.
CR-01-410922-2A. Neither party alleges that Cleveland PD has
responded to this request. On March 16, 2018, Johnson filed a
complaint pursuant to R.C. 2743.75 alleging failure to
provide access to public records in violation of R.C.
149.43(B). The special master determined that the case should
not be referred to mediation, and directed Cleveland PD file
its response, which it did on April 25, 2018.
Ohio's Public Records Act, R.C. 149.43, provides a remedy
for production of records under R.C. 2743.75 if the court of
claims determines that a public office has denied access to
public records in violation of R.C. 149.43(B). The Public
Records Act "is 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). Claims under R.C. 2743.75 are determined using the
standard of clear and convincing evidence. Hurt v.
Liberty Twp., 5th Dist. Delaware No. 17CAI050031,
2017-Ohio-7820, ¶ 27-30.
There is no dispute in this case that Cleveland PD possesses
the requested records, that the requests reasonably identify
the records sought, and that Cleveland PD failed to respond
to Johnson's requests as of the filing the complaint.
PD is a Proper Party Respondent
Cleveland PD asserts that it is not sui juris for
purposes of this action, citing cases sounding in tort and
civil rights, and asks that the complaint be dismissed for
failure to state a claim for which relief may be granted.
However, the Ohio Public Records Act itself makes Cleveland
PD sui juris. Under the Act, every "public
office" must produce public records upon request. R.C.
149.43(B)(1). A police department is a public
office. R.C. 149.011(A); State ex rel. Plain
Dealer Publishing Co. v. Cleveland, 106 Ohio St.3d 70,
2005-Ohio-3807, 831 N.E.2d 987, ¶ 21. Cleveland PD is
therefore a proper party respondent in this special statutory
proceeding to determine alleged violation of R.C. 149.43(B).
R.C. 149.43(C)(1)(a); R.C. 2743.75. I recommend that
Cleveland PD's motion to dismiss on this ground be
Request for Records of Criminal Prosecution
R.C. 149.43(B)(8) provides:
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.
R.C. 149.43(B)(8) (formerly R.C. 149.43(B)(4)) "clearly
was drafted to restrict the ability of inmates to obtain what
would otherwise be easily obtainable by noninmates."
State ex rel. Russell v. Thornton, 111 Ohio St.3d
409, 2006-Ohio-5858, 856 N.E.2d 966, ¶ 15. "The
language of the statute is broad and encompassing, " and
"[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.
Cleveland PD avers that Johnson appears to be a person
incarcerated as the result of a criminal conviction at the
time of his request, that the records request concerns the
criminal investigation and/or prosecution of his criminal
case, and that Johnson did not provide the judicial finding
required by R.C. 149.43(B)(8) with his request. (Response at
2.) Cleveland PD provides an unsworn copy of a criminal
docket sheet supporting Johnson's inmate status and
failure to seek a judicial finding. These averments and
documentation are consistent with the inferences that may be
drawn from Johnson's prison inmate number and
correctional institution return address in the complaint, his
averments, and his failure to reference any judicial finding
in his correspondence or complaint.
I find that Cleveland PD has shown by clear and convincing
evidence that Johnson was and remains incarcerated for a
criminal conviction, and has not complied with the mandatory
requirements of R.C. 149.43(B)(8). Accordingly, I find that
Cleveland PD is not required to permit Johnson to inspect or
copy the withheld records of his criminal investigation or
I note that public records law does not deny Johnson future
opportunities to request these records. First, R.C.
149.43(B)(8) provides that he may seek a finding from the
sentencing court at any time that the information requested
from the Cleveland PD is necessary to support what appears to
be a justiciable claim. Second, upon the termination of