State ex rel. Gregory v. Toledo ( 2023 )

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
ex rel. Gregory v. Toledo, Slip Opinion No. 2023-Ohio-651.]
NOTICE
This slip opinion is subject to formal revision before it is published in an
advance sheet of the Ohio Official Reports. Readers are requested to
promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
South Front Street, Columbus, Ohio 43215, of any typographical or other
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the opinion is published.
SLIP OPINION NO. 2023-OHIO-651THE STATE EX REL. GREGORY v. THE CITY OF TOLEDO.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as State ex rel. Gregory v. Toledo, Slip Opinion No.
2023-Ohio-651.]
Mandamus—Public-records requests—All items listed in relator’s request are not
records, have been provided, and/or are no longer a basis for any claim for
writ—City lacked reasonable basis to withhold all records requested simply
because some of them related to a criminal investigation or prosecution and
therefore were subject to R.C. 149.43(B)(8)’s requirement that requester
seek court approval before submitting request—Writ denied and statutory
damages awarded.
(No. 2022-0083—Submitted January 10, 2023—Decided March 7, 2023.)
IN MANDAMUS.
________________
SUPREME COURT OF OHIO
Per Curiam.
{¶ 1} Relator, LaRon Gregory, filed this original action seeking a writ of
mandamus to compel respondent, city of Toledo, to provide public records.
Gregory also requested an award of statutory damages. On March 23, 2022, we
granted an alternative writ of mandamus. 166 Ohio St.3d 1437, 2022-Ohio-798,
184 N.E.3d 126. For the reasons set forth below, we now deny the writ and award
statutory damages in the amount of $400.
I. Background
{¶ 2} On October 22, 2021, Gregory sent a public-records request to the
Toledo police department by certified mail. The request contained the following
list of records and questions:
1. A digital copy of the body cam footage from all officers
on November 28, 2019
2. Records retention schedule for body cam footage and
recordings.
3. List for all officers who worked 11/28/2019
4. Procedures for traffic stops
5. Who has the responsibility to turn on body cams or do they
turn on automatically?
6. How long is body camera footage stored?
7. At the end of shift where is body cam footage stored?
8. Dash cam video procedures on traffic stops
{¶ 3} On January 24, 2022, Gregory filed in this court a complaint for a writ
of mandamus, alleging that the city had failed to respond to his records request. He
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January Term, 2023
also demanded an award of statutory damages and court costs.1 Four days later, the
police department sent him a letter of apology and provided records responsive to
the list except for the first item: “body cam footage from all officers on November
28, 2019.” The city denied access to that item, characterizing the request as overly
broad.
{¶ 4} After we granted the alternative writ, the parties filed briefs and
evidence.
II. Analysis
A. The demand for a writ of mandamus
{¶ 5} R.C. 149.43(B)(1) requires a public office to make copies of public
records available to any person upon request and within a reasonable period.
Mandamus is an appropriate remedy by which to compel compliance with R.C.
149.43. R.C. 149.43(C)(1)(b); 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. A public-records mandamus case becomes moot if the public
office produces the requested records to the relator. State ex rel. Glasgow v. Jones,
119 Ohio St.3d 391, 2008-Ohio-4788, 894 N.E.2d 686, ¶ 27.
{¶ 6} We first note that item Nos. 5, 6, and 7 on the list Gregory sent the
police department are questions—not records—to which no response was required.
See State ex rel. Morgan v. New Lexington, 112 Ohio St.3d 33, 2006-Ohio-6365,
857 N.E.2d 1208, ¶ 30 (“Requests for information * * * are improper requests under
R.C. 149.43”). Therefore, we deny Gregory’s demand for a writ of mandamus as
to these three items, and we proceed to address the other five items listed in his
records request.
{¶ 7} At the time Gregory filed his mandamus complaint, the city had not
responded to his records request. By the time Gregory filed his merit brief,
1. Gregory filed an affidavit of indigency pursuant to S.Ct.Prac.R. 3.06(A), which this court
accepted, so there are no court costs to award.
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SUPREME COURT OF OHIO
however, he had received the city’s response, and he concedes in his merit brief
that the response satisfied his records request except for item No. 1. Therefore, we
deny as moot Gregory’s demand for a writ of mandamus compelling access to item
Nos. 2, 3, 4, and 8.
{¶ 8} The city denied as overbroad Gregory’s records request as to item No.
1: “[a] digital copy of the body cam footage from all officers on November 28,
2019.” In his merit brief, Gregory does not address the city’s overbreadth defense.
In fact, he does not present any argument in favor of a writ of mandamus to compel
access to item No. 1. Instead, his brief is devoted to the argument that the city’s
response was untimely and that statutory damages therefore should be awarded.
Likewise, in his affidavit, Gregory requests statutory damages but not a writ of
mandamus. We therefore hold that Gregory has waived the issue, and we deny the
writ with respect to item No. 1 on that basis. See, e.g., State ex rel. Moore v.
Malone, 96 Ohio St.3d 417, 2002-Ohio-4821, 775 N.E.2d 812, ¶ 39 (a relator who
raised other claims in her complaint waived those claims “by not pursuing [them]
in her merit brief”); see also State ex rel. Mun. Constr. Equip. Operators’ Labor
Council v. Cleveland, 114 Ohio St.3d 183, 2007-Ohio-3831, 870 N.E.2d 1174,
¶ 83 (relators who requested attorney fees in mandamus complaint waived the issue
by failing to include in their merit brief any argument in support of that request).
{¶ 9} For the above reasons, we deny Gregory’s complaint for a writ of
mandamus in part as moot (as to item Nos. 2, 3, 4, and 8) and in part on the merits
(as to item Nos. 1, 5, 6, and 7).
B. Statutory damages
{¶ 10} A person requesting public records “shall” be entitled to recover an
award of statutory damages “if a court determines that the public office or the
person responsible for public records failed to comply with an obligation in
accordance with division (B) of this section.” R.C. 149.43(C)(2). Statutory
damages are calculated at the rate of $100 for every business day the public office
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January Term, 2023
or person responsible for the requested public records fails to comply with an
obligation under R.C. 149.43(B), starting from the date of the filing of the
mandamus complaint, up to a maximum award of $1,000. R.C. 149.43(C)(2).
Assuming that the city failed to comply with its statutory obligations, Gregory
would be eligible to receive a maximum of $400: Gregory filed his complaint on
January 24, and the city provided the records four business days later.
{¶ 11} However, a court may reduce the amount if it makes two findings:
(a) [t]hat, based on the ordinary application of statutory law
and case law as it existed at the time of the conduct * * * of the
public office or person responsible for the requested public records
* * * that allegedly constitutes a failure to comply with an obligation
* * *, a well-informed public office or person responsible for the
requested public records reasonably would believe that the conduct
* * * did not constitute a failure to comply with an obligation in
accordance with division (B) of this section; [and]
(b) [t]hat a well-informed public office or person responsible
for the requested public records reasonably would believe that the
conduct * * * would serve the public policy that underlies the
authority that is asserted as permitting that conduct * * *.
R.C. 149.43(C)(2).
{¶ 12} The city argues that we should make the above two findings and
reduce any statutory damages awarded to Gregory accordingly.2 In support of this
argument, the city alleges that Gregory was indicted and convicted of criminal
2. In its merit brief, the city repeatedly suggests that its delay in responding to Gregory’s records
request resulted from staff shortages, but the city never connects this claim to any substantive
argument in opposition to a writ or in favor of a reduction in the statutory damages awarded.
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SUPREME COURT OF OHIO
offenses that occurred in Lucas County on November 28, 2019, and it asserts that
R.C. 149.43(B)(8) therefore required him to seek court approval before requesting
body-camera footage and the names of the officers working on that date.3
{¶ 13} R.C. 149.43(B)(8) requires inmates to obtain court approval before
requesting documents relating to a criminal investigation or prosecution. In State ex
rel. Ellis v. Cleveland Police Forensic Laboratory, 167 Ohio St.3d 193, 2021-Ohio-
4487, 190 N.E.3d 605, we addressed a claim for statutory damages under the Public
Records Act when some but not all the records the inmate was seeking fell within the
scope of R.C. 149.43(B)(8). The public office claimed that it had acted reasonably
when it rejected the entire records request for noncompliance with R.C.
149.43(B)(8) without determining whether any of the requested records fell outside
the scope of the provision. We rejected that argument because the plain language
of R.C. 149.43(B)(8) “excuses a public office or official from having to provide a
record when it relates to a criminal proceeding.” (Emphasis sic.) Id. at ¶ 15. We
explained that R.C. 149.43(B)(8) “does not create a blanket rule that an office or
official may disregard an entire request when a portion thereof is subject to the
prerelease approval of the sentencing judge.” (Emphasis sic.) Id. at ¶ 15.
{¶ 14} This case presents the same scenario as Ellis. On the one hand, the
city argues that R.C. 149.43(B)(8) required Gregory to seek court approval before
requesting body-camera footage and the names of the officers working on the date
of his offenses. On the other hand, some of the records he requested did not
implicate R.C. 149.43(B)(8). Noting that Ellis was not decided until December
2021—after Gregory sent his public-records request—the city asserts that before
Ellis was decided, “a public office could reasonably have believed it had no
3. Implicit in the city’s argument is the assumption that Gregory was an inmate at the time he sent
his records request. Although the city does not cite any evidence verifying that assumption, we join
in the assumption for purposes of our analysis.
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January Term, 2023
obligation to respond to [Gregory]’s requests as they included requests covered by
R.C. 149.43(B)(8), without [him] having obtained the necessary judicial approval.”
{¶ 15} Ellis contradicts the city’s argument. If a reasonable public official
could have concluded, prior to Ellis, that the entire records request could be
disregarded, then we would have denied statutory damages in Ellis. But we
awarded statutory damages in that case because the language of R.C. 149.43(B)(8)
was clear. Id. at ¶ 15-17. Even before Ellis was decided, the city had no reasonable
basis to withhold all the records Gregory requested simply because he was required
to seek court approval before requesting some of them.
{¶ 16} Accordingly, we award Gregory $400 in statutory damages.
III. Conclusion
{¶ 17} Based on the foregoing, we deny the writ of mandamus and award
Gregory statutory damages in the amount of $400.
Writ denied.
KENNEDY, C.J., and DEWINE, DONNELLY, STEWART, BRUNNER, and
DETERS, JJ., concur.
FISCHER, J., concurs in part and dissents in part and would not award
damages.
_________________
LaRon Gregory, pro se.
Dale R. Emch, Toledo Director of Law, and Tammy G. Lavalette, Assistant
Director of Law, for respondent.
_________________
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