Brandt v. Solon Police Dep't

• Decision Date: 18 October 2022
• Docket Number: 2022-00299PQ
• Citation: 2022 Ohio 3948
• Parties: PATRICIA BRANDT Requester v. SOLON POLICE DEPARTMENT Respondent
• Court: Ohio Court of Claims

2022-Ohio-3948

PATRICIA BRANDT Requester v. SOLON POLICE DEPARTMENT Respondent

No. 2022-00299PQ

Court of Claims of Ohio

October 18, 2022

Sent to S.C. Reporter 11/4/22

DECISION AND ENTRY

PATRICK E. SHEERAN JUDGE

{¶1} Respondent Solon Police Department (Solon PD) objects to a Special Master's Report and Recommendation in this public-records case. The Court overrules Solon PD's objections for reasons set forth below.

I. Background

{¶2} On April 5, 2022, Requester Patricia Brandt (an Ohio attorney) "c/o The Spitz Law Firm" filed a Complaint against Solon PD wherein Brandt alleged a denial of access to public records in violation of R.C. 149.43(B). Brandt sought certain records concerning an incident at Swirl Wine Bar to which officers from the Solon Police Department were dispatched. In the Complaint, Brandt generally alleged that Solon PD failed to fully provide records as requested by Brandt in November 2021.

{¶3} The Court appointed a Special Master who referred the case to mediation. After mediation failed to successfully resolve all disputed issues between the parties, the case was returned to the Special Master's docket. Solon PD filed a response to Brandt's Complaint and Solon PD concurrently moved for a Civ.R. 12(B)(6) dismissal of Brandt's Complaint. Later Solon PD filed a supplemental response.

{¶4} On September 27, 2022, the Special Master issued a Report and Recommendation (R&R). The Special Master has recommended denying Solon PD's Civ.R. 12(B)(6) motion as the Special Master "[found] that neither mootness nor comprehensive application of the claimed exemption [that all withheld records are exempt from release as specific investigatory work product under R.C. 149.43(A)(1)(h) and (A)(2)(c)] is conclusively shown on the face of the complaint." (R&R, 3.) The Special Master has stated: "Moreover, as the matter is now fully briefed these grounds are subsumed in the arguments to deny the claim on the merits. It is therefore recommended the motion to dismiss be denied." (R&R, 3.)

{¶5} The Special Master "[found] the claim for production of records partially moot to the extent that portions of the first nine pages of the incident report have been produced." (R&R, 4.) The Special Master stated, "Based on timing, content, and authorship, the Special Master finds that Sealed Records/BATES STAMPED/Solon PD Records- In Camera Inspection-1-399, p. 1-12 and all contemporaneous records referenced therein constitute the initial incident report for Incident No. 21-00372." (R&R, 9-10.) The Special Master also "[found] after review in camera that form pages 13 through 73 of the Incident/Offense report, and all notes, reports, evidence, and other non-form report materials created and assembled after March 8, 2021 and not specifically addressed in [a table in the Report and Recommendation] did not initiate the investigation but constitute investigatory work product generated after the investigation was under way. Myers at ¶ 40 These later records are exempt from disclosure by R.C. 149.43(A)(1)(h) and (A)(2)(c) until the investigation has concluded by criminal trial or is otherwise closed. Id. at ¶ 32." (R&R, 15.)

{¶6} The Special Master further "[found] that [a] fifteen-day delay [to produce certain pages in an initial incident report] in the instant case is a violation of R.C. 149.43(B)(1)." (R&R, 16-17.) In support of this finding, the Special Master stated: "Routine offense and incident reports are subject to immediate release upon request." (Emphasis added.) See State ex rel. Steckman v. Jackson, 70 Ohio St.3d 420, 639 N.E.2d 83 (1994), paragraph five of the syllabus. Solon PD claims it made its pre- litigation response timely and with "good faith explanation, with legal authority, to justify the redactions and exemption of non-public records." (Response at 2.) However, Solon did not produce the first nine pages of the regular initial incident report for fifteen days and has not produced the contemporaneous narratives, interview video or other records referenced in the report for the last ten

months and counting. No well-informed public office would reasonably believe that failure to release at least the first nine pages of the initial incident report immediately did not constitute failure to comply with longstanding obligations imposed by R.C. 149.43(B)(1) and the relevant case law.

As the Supreme Court stated in Myers: In Steckman, 70 Ohio St.3d 420, 639 N.E.2d 83, and in later cases, we stated that incident reports constitute public records and do not constitute confidential work product. Here, the city did not misunderstand Myers's request; instead, it misunderstood its clearly established duties under R.C. 149.43. Accordingly, the city violated its statutory obligation under R.C. 149.43(B)(1) to promptly provide the incident-report forms to Myers, and Myers is entitled to statutory damages.

Myers at ¶ 61-62. The Supreme Court found that as little as three days from a request for an incident report to its disclosure constituted failure to promptly provide the report. Id. at ¶ 27-28, 60.

(R&R, 16.)

In the Report and Recommendation, the Special Master states in conclusion:

Upon consideration of the pleadings, attachments, and responsive records filed under seal, the Special Master recommends the court issue an order granting the claim for production of records as detailed in the text and table [ contained in the Report and Recommendation]. The Special Master further recommends the court find that respondent may redact exempt items from its records as expressly provided in the report. It is the responsibility of respondent to release any additional records, properly redacted, in conformity with the findings and order issued by the court. State ex rel. Toledo Blade Co. v. Telb, 50 Ohio Misc.2d 1, *11-12, 552 N.E.2d 243, 251 (C.P.1990). The Special Master further recommends the court find that respondent failed to produce all public records in a reasonable period of time. The Special Master recommends the court order that requester is entitled to recover from respondent the costs associated with this action, including the twenty-five-dollar filing fee. R.C. 2743.75(F)(3)(b).

(R&R, 17.)

{¶7} On October 6, 2022, Solon PD filed written objections to the Special Master's Report and Recommendation. Solon PD's counsel certifies that a copy of Solon PD's objections was filed electronically and that notice of the filing "will be sent to all parties by operation of the Court's electronic filing system and by certified mail[.]"

{¶8} Seven days later-on October 13, 2022-Brandt filed a written response to Solon PD's objections, urging that the Special Master made the correct and proper finding that Solon PD delayed in producing the first nine pages of the initial incident report for fifteen days, and that this delay was a violation of R.C. 149.43(B)(1). Brandt's response is not accompanied by a completed proof of service that states the date and manner of service of Brandt's response.

II. Law and Analysis

{¶9} The General Assembly created an alternative means to resolve public-records dispute through the enactment of R.C. 2743.75. Welsh-Huggins v. Jefferson Cty. Prosecutor's Office, 163 Ohio St.3d 337, 2020-Ohio-5371, 170 N.E.3d 768, ¶ 11. See R.C. 2743.75(A). Under R.C. 2743.75(F)(1), not later than seven business days after receiving a response of a public office or person responsible for public records, or a motion to dismiss a complaint, if applicable, a special master is required to "submit to the court of claims a report and recommendation based on the ordinary application of statutory law and case law as they existed at the time of the filing of the complaint." However, for good cause shown, a special master "may extend the seven-day period for the submission of the report and recommendation to the court of claims under this division by an additional seven business days." R.C. 2743.75(F)(1).

{¶10} R.C. 2743.75(F)(2) governs the filing of objections to a special master's report and recommendation. Under R.C 2743.75(F)(2), either party "may object to the report and recommendation within seven business days after receiving the report and recommendation by filing a written objection with the clerk and sending a copy to the other party by certified mail, return receipt requested. * * * If either party timely objects, the other party may file with the clerk a response within seven business days after receiving the objection and send a copy...