State ex rel. Miller v. Ohio State Highway Patrol

Decision Date03 September 2013
Docket NumberNo. 2012–2132.,2012–2132.
PartiesThe STATE ex rel. MILLER, Appellant, v. OHIO STATE HIGHWAY PATROL et al., Appellees.
CourtOhio Supreme Court


The Law Firm of Curt C. Hartman and Curt C. Hartman, Amelia; and Finney, Stagnaro, Saba & Patterson, Christopher P. Finney, and Bradley M. Gibson, Cincinnati, for appellant.

Michael DeWine, Attorney General, and Morgan A. Linn, Assistant Attorney General, for appellees.


[Ohio St.3d 350]{¶ 1} This is an appeal of a public-records mandamus case filed initially in the Twelfth District Court of Appeals in Clermont County. Appellant, Mark Miller, asserts that he made a public-records request of appellees, the Ohio State Highway Patrol and its employee Jeff Maute (collectively, the Patrol), seeking records related to traffic incidents involving a particular trooper. The Patrol provided some records, but Miller asserts that it continues to withhold video and audio recordings and reports involving the traffic stop and arrest of a particular person on July 15 or 16, 2011. The Patrol acknowledges that “information regarding open/pending criminal cases is being withheld” because of the investigatory-work-product exception to the Public Records Act, R.C. 149.43.

{¶ 2} On motion by the Patrol, the Twelfth District dismissed the action. Although the court found that Miller's evidence had not been presented in a timely manner or in the required form—a fact that mandates dismissal by local rule—it nevertheless considered the evidence, which includes a letter from the Patrol establishing on its face that the Patrol has refused to release certain documents requested by Miller. Because the Patrol must support its contention that the withheld material falls under the “confidential law enforcement investigatory record” exception to the Public Records Act, we remand to the Twelfth District for that court to determine whether the documents fall within the asserted exception.


{¶ 3} Miller filed a mandamus action in the Twelfth District Court of Appeals alleging that he sent a public-records request to the Patrol on September 9, 2011. [Ohio St.3d 351]In support of this allegation, he attached to the complaint a copy of the letter making the request. The letter is undated. Miller also alleged that the letter was sent by certified mail and, as evidence, attached a return receipt to the complaint. Miller asserts that the return receipt indicates that the public-records request “was received on September 19, 2011,” but the return receipt indicates that the item was delivered on June 3, 2011.

{¶ 4} The letter requested a number of records, some of which relate to Trooper Joseph Westhoven during the summer of 2011. Miller asserts that none of the records sought in the letter are exempt from disclosure under the Public Records Act.

{¶ 5} As of October 27, 2011, apparently because of a mix-up dealing with an e-mail address, Miller believed that the Patrol had not responded to his public-records request. As a result, he filed a mandamus action in the Twelfth District. The Patrol pointed out that it had provided responsive documents to the e-mail address in the letter, and Miller dropped the mandamus action.

{¶ 6} Miller alleges that while it was true that the Patrol had provided some of the requested documents, it refused to produce several requested records that it claimed were not subject to disclosure. The only records at issue in this action are video and audio recordings from Trooper Westhoven's cruiser and impaired-driver reports dealing with the traffic stop, detention, arrest, and transport of Ashley Ruberg on July 15 or July 16, 2011.

{¶ 7} In a letter addressed to Miller's attorney on March 20, 2012, the Patrol confirmed its refusal to provide the records at issue and explained that the refusal was based on its belief that the documents were investigatory work product for an ongoing criminal investigation and were not subject to disclosure under the Public Records Act, specifically, R.C. 149.43(A)(1)(h) and (2). The March 20, 2012 letter, rather than being a response to the undated request letter as Miller asserts, responded to a February 16, 2012 request that evidently asked more specifically for records regarding Ashley Ruberg. Miller asserts that the records do not constitute investigatory work product, but are public records not subject to any exemption. Miller's complaint prays for a writ of mandamus compelling the release of these records and the payment of statutory damages, attorney fees, and costs.

{¶ 8} Miller's complaint was filed on May 10, 2012. The Patrol's answer was filed on June 6, 2012. Under local rules, all evidence must be presented and the relator's brief filed within four months of the filing of an original action; if these actions are not taken, the action “shall be dismissed” unless good cause is shown. Loc.R. 20(N) of the Twelfth District Court of Appeals. Under these rules, the evidence and Miller's brief were due no later than September 10, 2012. Loc.R. 20(G) and (H). Counsel for Miller sent an e-mail to counsel for the Patrol on [Ohio St.3d 352]September 6, 2012, stating that he was planning on drafting an agreed statement of facts that day. Counsel for the Patrol responded that she would not be able to review the statement with her clients or agree to a statement by the September 10 deadline, less than three business days later. Counsel for the Patrol said that she would not agree to a joint motion for extension of time, but pointed out that counsel for Miller could file such a motion. Miller's counsel responded that he would simply file the brief on September 10 with no stipulations.

{¶ 9} However, rather than filing a brief, counsel for Miller filed an affidavit with exhibits on September 10, 2012. The exhibits are the same ones attached to the complaint—the undated letter, the certified-mail return, and the March 20, 2012 response. The Patrol filed a motion to strike the affidavit and a motion to dismiss. The Twelfth District then issued a show-cause order directing Miller to explain why the action should not be dismissed. The next day, Miller filed a brief on the merits, and a week later, a response to the motion and show-cause order. The Patrol replied to Miller's response and moved to strike his brief on the basis that Miller's “entire case rests on information that does not comport” with the local rules.

{¶ 10} The Twelfth District determined that although Miller had failed to comply with the local rule requiring that evidence be presented in the form of an agreed statement of facts, stipulations, or depositions, see Loc.R. 20(G), it would nevertheless consider Miller's affidavit and attachments “for whatever evidentiary value [they] may have.”

{¶ 11} The court of appeals then found that Miller had not established a clear legal right to relief. In so finding, the court detailed numerous defects in Miller's case, including procedural defaults, contradictory and unsupported factual claims, and a faulty timeline. The court concluded that Miller had not established a clear legal right, by clear and convincing evidence, to the records involving Ashley Ruberg. “No evidence, other than the statements in relator's affidavit, has been submitted indicating that relator's specific request, which did not even mention the name Ashley Ruberg,’ was ever denied, improperly or otherwise.” State ex rel. Miller v. Ohio State Hwy. Patrol, 12th Dist. Clermont No. CA2012–05–034, at 5 (Nov. 21, 2012).

{¶ 12} Miller appealed to this court.

Legal Analysis

{¶ 13} “Mandamus is the appropriate remedy to compel compliance with R.C. 149.43, Ohio's Public Records Act.” State ex rel. Physicians Commt. for Responsible Medicine v. Ohio State Univ. Bd. of Trustees, 108 Ohio St.3d 288, 2006-Ohio-903, 843 N.E.2d 174, ¶ 6;R.C. 149.43(C)(1).

[Ohio St.3d 353]{¶ 14} Although [w]e construe the Public Records Act liberally in favor of broad access and resolve any doubt in favor of disclosure of public records,” State ex rel. Rocker v. Guernsey Cty. Sheriff's Office, 126 Ohio St.3d 224, 2010-Ohio-3288, 932 N.E.2d 327, ¶ 6, the relator must still establish entitlement to the requested extraordinary relief by clear and convincing evidence. State ex rel. Doner v. Zody, 130 Ohio St.3d 446, 2011-Ohio-6117, 958 N.E.2d 1235, paragraph three of the syllabus (“Relators in mandamus cases must prove their entitlement to the writ by clear and convincing evidence”).

Clear and convincing evidence is “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.”

State ex rel. Husted v. Brunner, 123 Ohio St.3d 288, 2009-Ohio-5327, 915 N.E.2d 1215, ¶ 18, quoting Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954), paragraph three of the syllabus.

{¶ 15} In this case, the standard of “clear and convincing evidence” is especiallyproblematic for Miller. Miller's evidence of his public-records request and of the Patrol's response to it was incomplete and confusingly presented.

{¶ 16} For example, Miller states that his request was sent on September 9, 2011, but the letter attached as an exhibit is undated. The exhibit purporting to be the return receipt for this letter shows a delivery date of June 3, 2011, which predates the creation of the records Miller claims he wants from the Patrol. The other exhibit attached to Miller's affidavit is a letter from the Patrol dated March 20, 2012, which is a response to a different records request, although one that pertains to similar subject matter.

{¶ 17} The Patrol pointed out Miller's failure to submit evidence and a brief in compliance with local rules. Nevertheless, the Twelfth District—albeit reluctantly—considered...

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