Requester v. Budish, Case No. 2017-00690-PQ

• Decision Date: 17 January 2018
• Docket Number: Case No. 2017-00690-PQ
• Citation: 2018 Ohio 1539
• Parties: CORY A. SHAFFER Requester v. ARMOND BUDISH Respondent
• Court: Ohio Court of Claims

2018 Ohio 1539

CORY A. SHAFFER Requester
v.
ARMOND BUDISH Respondent

Case No. 2017-00690-PQ

Court of Claims of Ohio

Sent to S.C. Reporter: April 20, 2018
January 17, 2018

Special Master Jeffery W. Clark

REPORT AND RECOMMENDATION

{¶1} On August 9, 2017, requester Cory Shaffer, a crime reporter for Advance Ohio/Cleveland.com, made a public records request to Mary Louise Madigan, Director of Communications for respondent Cuyahoga County Executive Armond Budish, for "copies of any video used in the disciplinary hearings and/or arbitration hearings related to the June 23, 2016 termination of Brendan Johnson, a corporal in the Cuyahoga County Jail." (Complaint, p. 4.) On August 11, 2017, Madigan responded that the request was denied, 1) because "[v]ideo within the Correctional Facility constitutes a record of security and infrastructure" under R.C. 149.433(A), 2) by the "rationale" of an exception written for state prisons, R.C. 5120.21(F), and, 3) because electronic records are not public records pursuant to R.C. 1306.23. (Id. at 2-3.)

{¶2} On August 14, 2017, Shaffer filed a complaint under R.C. 2743.75 alleging denial of timely access to public records in violation of R.C. 149.43(B). The case proceeded to mediation, and on November 3, 2017, the court was notified that the case was not fully resolved. On November 17, 2017, Budish filed his motion to dismiss (Response). In compliance with the court's order of November 29, 2017 ("Order"), respondent filed an unredacted copy of the withheld videos, under seal. On December 20 and 21, 2017, respectively, Budish and Shaffer filed additional pleadings responding to requests posed by the special master in the order.

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{¶3} The remedy of production of records is available under R.C. 2743.75 if the court 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). The Public Records Act is construed liberally in favor of broad access, and any doubt is resolved in favor of disclosure. State ex rel. Cincinnati Enquirer v. Pike Cty. Coroner's Office, Slip Op. at 2017-Ohio-8988, ¶ 15.

{¶4} R.C. 2743.75(F)(1) states that determination of public records claims shall be based on "the ordinary application of statutory law and case law." Case law regarding the alternative public records remedy under R.C. 149.43(C)(1)(b) 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.

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Motion to Dismiss

{¶5} Respondent moves to dismiss the complaint on the grounds that, 1) he has now provided Shaffer with a redacted version of one requested video ("Video 1"), rendering production of that video moot, and, 2) that he properly withheld another video ("Video 2")¹ pursuant to statutory and constitutional exceptions to the Public Records Act. (Response at 3-7.) 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).

{¶6} Shaffer's complaint sets forth factual allegations and supporting correspondence that, if proven, would entitle him to a finding of denial of access in violation of R.C. 149.43(B), and an order to produce the requested records. I therefore recommend that the motion to dismiss be DENIED, and that the court determine the case on the merits.

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 render the claim for production moot. State ex rel. Striker v. Smith, 129 Ohio St.3d 168, 2011-Ohio-2878, ¶ 17-22. Respondent states he has provided Shaffer with a redacted copy of Video 1. (Response at 3.)

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{¶8} Shaffer "confirms respondent's claim that no dispute exists with relation to the first requested video" (Shaffer additional statement at 1.), an admission that this portion of the request has been satisfied. Striker at ¶ 19; State ex rel. DiFranco v. City of Euclid, 8th Dist. Cuyahoga No. 97823, 2012-Ohio-5158, ¶ 2. I therefore recommend that Shaffer's claim as it pertains to production of Video 1 be DENIED as moot.

Contents of Video 2

{¶9} Review of Video 2 in camera shows Tactical Unit officers confronting, physically controlling, and transporting a female inmate. Officers direct the inmate to remove her shirt, handcuff her, and remove her slacks before she is secured in a restraint chair and covered with a blanket. The inmate is wheeled first to a decontamination room to wash pepper spray from her eyes, and then to the infirmary. The inmate's breasts and underwear are visible for about four minutes of the 17 minutes and 44 seconds of Video 2(a) and about one minute of the 14 minutes and 29 seconds of Video 2(b). The inmate is transported through corridors and doorways on two floors of the jail, and taken by elevator between them. The videos were created by body-worn cameras visible in images of the officers taken by each other.

{¶10} Video 2 was generated and used by the Cuyahoga County jail for official purposes, including as evidence in discipline and arbitration hearings. (Response at 3; Budish additional statement at 1.) Cuyahoga County was required to copy the accused officer and union with documents used to support the charges. (Budish additional statement, Collective Bargaining Agreement between Cuyahoga County and the Correction Officer Corporals' Bargaining Unit, Article 44, Section 2.) The video is thus a record responsive to Shaffer's request for records of discipline and arbitration hearings regarding use of force by the corrections officer. (Budish additional statement, fn. 1.)

Claimed Exceptions

{¶11} R.C. 149.43(A)(1) sets forth specific exceptions from the definition of "public record" as well as a catch-all exception for "[r]ecords the release of which is

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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:

a. 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, paragraph two of the syllabus.

{¶12} Where a public record does not fall under any statutory exception, neither the courts nor other records custodians may create new exceptions based on a balancing of interests or generalized privacy concerns. State ex rel. WBNS TV, Inc. v. Dues, 101 Ohio St.3d 406, 2004-Ohio-1497, 805 N.E.2d 1116, ¶ 29-31. The General Assembly is the ultimate arbiter of public policy, and a public office may not withhold records simply because it disagrees with the policies behind the law permitting their release. Id. at ¶ 37; see State ex rel. James v. Ohio State Univ., 70 Ohio St.3d 168, 172, 637 N.E.2d 911 (1994):

b. [I]n enumerating very narrow, specific exceptions to the public records statute, the General Assembly has already weighed and balanced the competing public policy considerations between the public's right to know how its state agencies make decisions and the potential harm, inconvenience or burden imposed on the agency by disclosure.

For the same reasons, a public office may not utilize an exception that is limited to other agencies. State ex rel. Beacon Journal Publg. Co. v. Akron, 104 Ohio St.3d 399, 2004-Ohio-6557, 819 N.E.2d 1087, ¶ 36-45 (police department could not assert exception applying only to similar reports of children services agencies.); State ex rel. Gannett Satellite Info. Network v. Petro, 80 Ohio St.3d 261, 266, 685 N.E.2d 1223 (1997) (auditor could not assert grand jury records exception applying only to other officials); State ex rel. Thomas v. Ohio State Univ., 71 Ohio St.3d 245, 247-248, 643 N.E.2d 126

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(1994) (state university could not assert federal Freedom of Information Act ("FOIA"), which does not apply to state agencies); James at 170 (university promotion/tenure evaluators could not assert they were "confidential informants" under exception applying only to law enforcement agencies).

{¶13} In applying statutory...