State ex rel. McDougald v. Sehlmeyer

• Decision Date: 10 March 2021
• Docket Number: No. 2020-0349,2020-0349
• Citation: 164 Ohio St.3d 133,172 N.E.3d 126
• Court: Ohio Supreme Court
• Parties: The STATE EX REL. MCDOUGALD v. SEHLMEYER.

164 Ohio St.3d 133

172 N.E.3d 126

The STATE EX REL. MCDOUGALD

v.SEHLMEYER.

No. 2020-0349

Supreme Court of Ohio.

Submitted January 12, 2021

Decided March 10, 2021.

Jerone McDougald, pro se.

Dave Yost, Ohio Attorney General, and Lori H. Duckworth, Assistant Attorney General, for respondent.

Per Curiam.

{¶ 1} Relator, Jerone McDougald, an inmate at the Toledo Correctional Institution ("TCI"), seeks a writ of mandamus to compel respondent, Sonrisa Sehlmeyer, the public-records custodian at TCI, to make available for inspection a video of a use-of-force incident. Because Sehlmeyer has presented evidence supporting her claim that allowing McDougald to inspect the video would create undue security risks, we deny the writ.

Background

{¶ 2} On January 22, 2020, McDougald sent a public-records request to Sehlmeyer asking to inspect video-surveillance footage of a use-of-force incident involving him that had occurred ten days earlier. Sehlmeyer responded to McDougald in writing on January 28, 2020, telling him that the video was available but that TCI "does not allow offenders to have possession of" a compact disc ("CD") "as stated in ORC. 2921.36(E)." That statute makes it a crime to knowingly convey a cellular telephone, two-way radio, or other electronic-communications device to a prison inmate; it does not mention videos or CDs. McDougald responded to Sehlmeyer several days later, informing her that he had asked to inspect the video, not to obtain a copy of it. McDougald alleges that he did not receive any further response from Sehlmeyer regarding his request.

{¶ 3} McDougald filed this original action asking this court to compel Sehlmeyer to allow him to inspect the video. We issued an alternative writ and ordered the parties to submit evidence and file briefs in accordance with S.Ct.Prac.R. 12.05. 158 Ohio St.3d 1526, 2020-Ohio-3016, 145 N.E.3d 322.

{¶ 4} Sehlmeyer submitted evidence showing that McDougald has an extensive history of committing rule infractions at TCI, including threatening bodily harm to correctional officers, spitting at correctional officers, and throwing urine toward prison staff. In an affidavit, Sehlmeyer states that the Department of Rehabilitation and Correction ("DRC") informed McDougald "that he would not be permitted to inspect the requested records due to his lengthy history of destructive violence and [because he is a] high security risk." She further stated that "[d]ue to Inmate McDougald's history of rule violations and high security classification, extensive measures would need to be taken to permit him to inspect records, and it is believed that he poses a serious risk of destroying those records."

Analysis

Evidentiary motion

{¶ 5} When we granted an alternative writ in this case, we ordered the parties to file any evidence they intended to present by June 16, 2020. 158 Ohio St.3d 1526, 2020-Ohio-3016, 145 N.E.3d. 322. Although McDougald did not separately file evidence by the deadline, he had attached to his complaint an affidavit and a copy of his public-records request. He filed a motion on June 24, 2020, asking the court to consider those documents as evidence. He contends that the COVID-19 pandemic caused mail-processing delays within the prison, preventing him from separately filing evidence by the deadline. Sehlmeyer opposes the motion, arguing in her merit brief that McDougald has "failed to file any evidence in support of his complaint as instructed by the Court."

{¶ 6} S.Ct.Prac.R. 12.06 provides that "evidence shall be submitted by affidavits, stipulations, depositions, and exhibits. * * * Sworn or certified copies of all papers or parts of papers referred to in an affidavit shall be attached." The affidavit McDougald filed with his complaint qualifies as evidence under this rule. Sehlmeyer offers no support for her claim that McDougald had to refile the affidavit after we granted the alternative writ for it to be considered as evidence.

{¶ 7} It is less clear whether the public-records request that McDougald attached to the complaint was properly submitted as evidence, because McDougald did not authenticate that document in his affidavit. But there is no real dispute about the substance of the public-records request. In fact, Sehlmeyer herself identified the document in her answer, and she referred to the request in her own affidavit. Under these circumstances, we grant McDougald's motion and consider as evidence all the documents attached to his complaint.

The public-records claim

{¶ 8} R.C. 149.43(B)(1) requires a public office, upon request, to make a public record available for inspection. A person who is denied access to a public record may seek to compel its production through a mandamus action. R.C. 149.43(C)(1)(b). To prevail on such a claim, the requester must establish by clear and convincing evidence a clear legal right to the record and a corresponding clear legal duty on the part of the respondent to provide it. State ex rel. Am. Civ. Liberties Union of Ohio, Inc. v. Cuyahoga Cty. Bd. of Commrs. , 128 Ohio St.3d 256, 2011-Ohio-625, 943 N.E.2d 553, ¶ 22-24 ; State ex rel. Cincinnati Enquirer v. Deters , 148 Ohio St.3d 595, 2016-Ohio-8195, 71 N.E.3d 1076, ¶ 19.

{¶ 9} A "public record" is a record "kept by any public office." R.C. 149.43(A)(1). There is no question that the video McDougald has asked to inspect is a public record. See R.C. 149.011(G) ; State ex rel. Rogers v. Dept. of Rehab. & Corr. , 155 Ohio St.3d 545, 2018-Ohio-5111, 122 N.E.3d 1208, ¶ 6-7. In fact, Sehlmeyer concedes that DRC usually allows inmates to review video footage.

{¶ 10} Sehlmeyer nevertheless asks us to deny mandamus relief in this case because allowing McDougald to inspect the video would pose too great a risk to the order and safety of the prison.¹ She relies on State ex rel. Patterson v. Ayers , 171 Ohio St. 369, 171 N.E.2d 508 (1960), in which we adopted the rule that a public office has no duty to permit the inspection of a public record when the inspection would "endanger the safety of the records or unreasonably interfere with the discharge of the duties of the officer having custody of the same." Id. at paragraph one of the syllabus. She also cites Bell v. Wolfish , 441 U.S. 520, 547, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979), which recognized, in the context of a constitutional challenge to the conditions of confinement, that prison officials "should be accorded wide-ranging deference in the adoption and execution of policies and practices that in their judgment are needed to preserve internal order and...