State ex rel. McCaffrey v. Mahoning Cnty. Prosecutor's Office

• Decision Date: 20 September 2012
• Docket Number: No. 2010–1642.,2010–1642.
• Citation: 976 N.E.2d 877,133 Ohio St.3d 139
• Parties: The STATE ex rel. McCAFFREY v. MAHONING COUNTY PROSECUTOR'S OFFICE et al.
• Court: Ohio Supreme Court

133 Ohio St.3d 139
976 N.E.2d 877

The STATE ex rel. McCAFFREY
v.
MAHONING COUNTY PROSECUTOR'S OFFICE et al.

No. 2010–1642.

Supreme Court of Ohio.

Submitted July 10, 2012.
Decided Sept. 20, 2012.

[976 N.E.2d 879]

Baker & Hostetler, L.L.P., Stephen J. Schlegelmilch, Lisa M. Ghannoum, Cleveland, and Sara L. Witt, for relator.

[976 N.E.2d 880]

Paul J. Gains, Mahoning County Prosecuting Attorney, and Tim Tusek, for respondent.

PER CURIAM.

[Ohio St.3d 140]{¶ 1} This is a public-records mandamus action in which relator, John McCaffrey, an attorney representing defendants in criminal cases, seeks certain records from respondents, the Mahoning County Prosecutor's Office and Mahoning County Prosecuting Attorney Paul Gains. Because relator has established his entitlement to a few of the requested records, we grant the writ for those few records. For the remaining requested records, however, we deny the writ.

Facts

{¶ 2} In 2006, Mahoning County purchased real property located at 345 Oakhill Avenue in Youngstown. The county decided to purchase this Oakhill Renaissance Place property to relocate the county's Department of Job and Family Services from property owned by Ohio Valley Mall Company and built by the family of Anthony Cafaro Sr. Ohio Valley Mall Company filed a taxpayer lawsuit in the Mahoning County Court of Common Pleas challenging the county's decision to purchase the Oakhill property, naming Gains and certain elected officials represented by Gains as defendants. The case was settled in 2007, but the Ohio Ethics Commission and the Mahoning County Grand Jury investigated the company and certain officials concerning the litigation.

{¶ 3} In October 2008, Gains applied to the common pleas court to appoint Lorain County Prosecuting Attorney Dennis P. Will, Lorain County Assistant Prosecuting Attorneys Anthony D. Cillo and Billie Jo Belcher, and Ohio Ethics Commission Chief Investigative Counsel Paul M. Nick as special prosecutors to handle the ongoing investigation resulting from Mahoning County's acquisition of Oakhill Renaissance Place, for which the prosecutor's office had previously issued grand jury subpoenas to various public officials and others at the request of the Ohio Ethics Commission and the Mahoning County sheriff. Gains specified the importance of the appointment of a special prosecutor who could act independently of him to avoid the appearance of impropriety and accusations of a vengeful prosecution or of favorable treatment because the investigation involved numerous public officials, including two current judges and one retired judge, who might be witnesses or potential targets. On November 17, 2008, the common pleas court granted the application and appointed Lorain County Prosecuting Attorney Will, Assistant Prosecutors Cillo and Belcher, and Ohio Ethics Commission Chief Investigative Counsel Nick “to serve jointly as special prosecutors to assist the investigators and the grand jury and to perform all other prosecutorial functions deemed warranted in their independent professional judgment as it relates to the investigation of Mahoning County's acquisition of the Oak Hill Renaissance Place.”

{¶ 4} In July 2010, the Mahoning County Grand Jury returned a 73–count indictment charging Anthony M. Cafaro Sr., the Cafaro Company, Ohio Valley Mall Company, the Marion Plaza, Inc., John McNally IV, John Reardon, Michael [Ohio St.3d 141]V. Sciortino, John Zachariah, Martin Yavorcik, and Flora Cafaro with engaging in a pattern of corrupt activity, conspiracy, perjury, bribery, money laundering, conflict of interest, filing false financial-disclosure statements, and soliciting or accepting improper communications. The defendants, including several current and former county officials and companies and persons who had an interest in having the county Department of Job and Family Services remain where it was, had opposed the relocation. Relator,

[976 N.E.2d 881]

John McCaffrey, is an attorney who represented defendants Ohio Valley Mall Company and Marion Plaza, Inc., in the criminal cases.

{¶ 5} Before the indictment was returned, a newspaper article reported that Mahoning County Assistant Prosecuting Attorney Linette Stratford had been seen outside the grand jury room with the special prosecutors. On May 21, 2010, McCaffrey requested that respondent Mahoning County Prosecutor's Office “make available at cost copies of the following categories of documents”:

1. All records referring or relating to any support or assistance that has been provided by any employee or representative of the Prosecutor to Special Prosecutors Dennis Will and/or Paul Nick, or anyone acting in concert with either or both of them, including b[ut] not limited to any support or assistance provided by Linette Stratford.

{¶ 6} In June 2010, Gains responded to McCaffrey's request by providing 16 pages of documents, including his application for the appointment of special prosecutors, the common pleas court order appointing special prosecutors, an e-mail in which he forwarded a copy of the newspaper article to Special Prosecutor Will, and an e-mail indicating that there were no records, receipts, or requests for reimbursement or any other type of record associated with travel to Lorain County for any prosecutor's office employee for the period from December 2009 through May 2010.

{¶ 7} On July 28, 2010, McCaffrey requested that the prosecutor's office “make available at cost copies of the following categories of documents”:

1. All calendars of Mahoning County Prosecutor Paul Gains (“Gains”), Assistant Mahoning County Prosecuting Attorney Linette Stratford (“Stratford”), and Assistant Mahoning County Prosecuting Attorney Gina Bricker (“Bricker”) for the period of November 1, 2008 to the present.

2. All records of hours worked and duties performed by Gains, Stratford, and Bricker for the period of November 1, 2008 to the present.

[Ohio St.3d 142]3. All e-mail messages sent or received by Gains, Stratford, and Bricker for the period of 2008 to the present referring or relating to Oakhill Renaissance Place (“Oakhill”), referring or relating to Special Prosecutors of the Mahoning County Prosecutors Office, representatives of the Ohio Ethics Commission, and/or the Mahoning County Grand Jury (term beginning on or about January 2010 and expiring on July 30, 2010).

4. All expense reports submitted by or on behalf of Gains, Stratford, and Bricker for the period of November 1, 2008 to the present.

5. Records of any complaint, claim, or grievance generated by or against the Mahoning County Prosecutor[']s Office (or any of its employees) concerning matters involving the Mahoning County Grand Jury (term beginning on or about January 2010 and expiring on July 30, 2010).

6. Records of communications between the Mahoning County Prosecutor[']s Office (including any one of its employees) and Mahoning County Common Pleas Judge [James C.] Evans concerning matters

[976 N.E.2d 882]

involving the Mahoning County Grand Jury (term beginning on or about January 2010 and expiring on July 30, 2010).

7. Records of communications between the Mahoning County Prosecutor[']s Office (including any one of its employees) and persons comprising the Mahoning County Grand Jury (term beginning on or about January 2010 and expiring on July 30, 2010).

{¶ 8} By letter dated August 19, 2010, Gains responded to the second request by (1) denying the request for calendars, (2) providing copies of the civil-division case logs for Prosecutor Gains and Assistant Prosecutors Stratford and Bricker from 2008 to that time, with portions of the records redacted based on attorney-client privilege, (3) stating that records relating to the third category of records requested had been provided in the response to McCaffrey's previous records request, (4) providing expense reports for Gains and Bricker and stating that no expense reports existed for Stratford, (5) stating, without confirming or denying the existence of records in the fifth category of requested records, that the requested records were exempt from disclosure under Gov.Bar R. V(11)(E), and (6) stating that the records requested in the sixth and seventh categories of McCaffrey's records request did not exist. Gains's response did not contain metadata concerning the requested documents.

{¶ 9} A month later, on September 20, 2010, McCaffrey filed this action for a writ of mandamus to compel Gains and the Mahoning County Prosecutor's Office to provide access to all of the requested records in the first, fifth, sixth, and seventh categories of his July 28, 2010 records request in their possession, including metadata, that had not been produced, and to submit for in camera [Ohio St.3d 143]inspection unredacted records in the second category. Respondents filed an answer and a motion for judgment on the pleadings. In December 2010, respondents submitted additional records responsive to McCaffrey's May 21, 2010 request, and in March 2011, respondents submitted additional records responsive to the third category of McCaffrey's July 28, 2010 request.

{¶ 10} We denied respondents' motion for judgment on the pleadings, granted an alternative writ, and issued a schedule for the presentation of evidence and briefs. 128 Ohio St.3d 1442, 2011-Ohio-1618, 944 N.E.2d 692. During discovery in this case, we granted respondents' motion to quash McCaffrey's deposition of Diane Stokes, a clerical assistant in the Mahoning County Prosecutor's Office. 128 Ohio St.3d 1451, 2011-Ohio-1702, 944 N.E.2d 1176. We later suppressed the Stokes deposition and denied McCaffrey's motion to compel the court reporter and videographer to produce to him the transcript and DVD of the Stokes deposition. 128 Ohio St.3d 1491, 2011-Ohio-2229, 946 N.E.2d 761. Further, we denied McCaffrey's motion for leave to file and serve an amended complaint, which would have added claims concerning all of the categories specified in his May 21, 2010 and July 28, 2010 records requests based, in...