State ex rel. Carr v. London Corr. Inst. , 2014 Ohio 1325 ( 2014 )

[Cite as State ex rel. Carr v. London Corr. Inst., 2014-Ohio-1325.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
MADISON COUNTY
STATE OF OHIO EX REL. JAMES M. :
CARR, SR.,
: CASE NO. CA2012-10-023
Relator,
: DECISION
3/31/2014
- vs - :
:
LONDON CORRECTIONAL INSTITUTION,
:
Respondent.
:
ORIGINAL ACTION IN MANDAMUS
James M. Carr, Sr., #A459-931, London Correctional Institution, P.O. Box 69, London, Ohio
43140, relator, pro se
Michael DeWine, Ohio Attorney General, Caitlyn A. Nestleroth, 150 East Gay Street, 16th
Floor, Columbus, Ohio 43215, for respondent
Per Curiam.
{¶ 1} The current case is before this court pursuant to a complaint for a writ of
mandamus brought by relator, James M. Carr, Sr., seeking production of public records by
respondent, London Correctional Institution, according to the Ohio Public Records Act.
Relator is also seeking statutory damages for respondent's nonproduction of the requested
records.
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{¶ 2} Carr is an inmate incarcerated in the London Correctional Institution (the
prison). In February 2012, Carr became aware of an interoffice memorandum sent by a
prison chaplain, Steven Cahill, to the prison mailroom employees. The memorandum listed
ministries that regularly sent religious materials to inmates at the prison, and Carr requested
a copy of the memorandum through a public records request.
{¶ 3} During December 2011 to January 2012, the prison's mailroom staff was
replaced by a new group of contract workers. The new workers, who were unaware of how
to process incoming religious materials, needed guidance on how to process and distribute
the materials. In response to the need, Chaplain Cahill wrote the memorandum to identify
which religious organizations were known to the prison's religious services for regularly
sending religious materials to inmates. Chaplain Cahill's memorandum was first sent to the
mailroom employees on January 30, 2012. A different prison chaplain, Thomas Davis,
resent the memorandum at the request of mailroom personnel on March 5, 2012. Chaplain
Davis changed the date on the memorandum and added his name as a sender, but the body
of the memorandum was identical to the original sent by Chaplain Cahill.
{¶ 4} On March 5, 2012, Carr made a written public request to Vickey Justus, the
Acting Administrative Assistant to the prison's warden. The request reads, in pertinent part:
I went to see Chaplain Cahill on 2/28/2012, and requested that
Chaplain Cahill provide me with a copy of an interoffice memo
sent from his office to the mail room. You can contact Chaplain
Cahill to find out exactly the memo I am speaking of. I request a
copy of the following record: I request a copy of the inter-office
memo between the Chaplains [sic] office and the mail room.
This memo was sent during January or February of 2012. This
memo contains information related to religious ministries
regularly dealt with by the Chaplains [sic] office. This memo was
sent to the mail room to assist the mail room with the religious
material received by the institution.
{¶ 5} On March 8, 2012, Justus responded to Carr's request and denied such, stating
that the request was "ambiguous, overbroad and unduly burdensome to produce." Justus
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also indicated that because of the ambiguity, overbreadth, and burden, the Ohio Public
Records Act did not require production as stated in R.C. 149.43(B)(2).
{¶ 6} On March 15, 2012, Carr submitted a revised public records request to Justus.
This revised version requested "copies of all e-mails and interoffice memo's [sic] sent from
Chaplain Cahill, to the mail room (including it's supervisor's [sic]) during the months of
January and February for 2012." Justus responded to Carr's amended request, denying it
again. Justus stated, "again, your request is ambiguous, overbroad, and unduly burdensome
to produce. Such requests do not require production of records per R.C. 149.43(B)(2). Once
you narrow your request, you may resubmit it."
{¶ 7} On March 21, 2012, Carr sent a "kite" to Chaplain Cahill stating that he had
seen Chaplain Cahill in his office on February 27, 2012 and wanted a copy of the interoffice
1
memorandum that Chaplin Cahill sent to the mailroom. Carr stated in the kite that Chaplain
Cahill had declined to give him a copy of the memorandum, and Carr stated, "that would be
fine and I would request it through a public records request that I would need to file with Mrs.
Vickey Justus." Carr used the kite to ask Chaplain Cahill when he sent the memorandum to
the mailroom. In response to Carr's kite, Chaplain Cahill explained that he did not have the
original date and that "the last updated list for regularly utilized ministries that send literature
was March 5, 2012. This is not an approved list. All materials must pass the policy
requirements and are subject to denial."
{¶ 8} On April 9, 2012, Carr sent two public records requests to Justus. The first
request sought "a copy of all interoffice memos and e-mails sent by Chaplain Cahill to the
mail room or it's [sic] supervisors for the month of February 2012." On April 19, 2012, Justus
responded to this first request by again stating that the request was ambiguous, overbroad,
1. Carr defined a kite as a prison correspondence written by an inmate to a member of the prison staff.
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and unduly burdensome to produce. Justus again suggested that Carr narrow his request
and resubmit it.
{¶ 9} Carr's second April 9, 2012 request sought (1) a "copy of all interoffice memos
and e-mails sent by Chaplain Cahill to the mail room or it's [sic] supervisors on 3/5/12," and
(2) a "current copy of your records retention schedule." Justus responded to the second
request by making available the March 5, 2012 memorandum and advising Carr that the
records retention schedule was 46 pages. Justus informed Carr that copying costs at five
cents per page would total $2.30, and that Carr's request would be fulfilled once he submitted
payment for the copying fees.
{¶ 10} On April 24, 2012, Carr filed an informal complaint alleging the denial of public
records to the prison's warden, Deborah Timmerman-Cooper. Within the complaint, Carr
alleged that Justus continually denied his requests for the interoffice memorandum and
emails from Chaplain Cahill to the mailroom employees. Carr also indicated that he would
submit payment for copying fees, but only once all of his requests were met. Warden
Timmerman-Cooper replied that once the payment was received, "your complete request will
be filled."
{¶ 11} On May 1, 2012, Carr sent Justus a cash slip that did not contain a specific
amount designation. Carr included a note that he did not fill out the amount "since I do not
know how much the total for my request will be. Could you please fill in the amount that will
be needed when you complete my public records request?"
{¶ 12} On May 22, 2012, Carr filed a grievance with the prison's Institutional Inspector.
Carr's grievance was substantially similar to the complaint contained within his informal
complaint to Warden Timmerman-Cooper. Carr's grievance was denied on June 7, 2012.
However, the Institutional Inspector gave Carr another copy of the March 5, 2012
memorandum from Chaplains Cahill and Davis to the mailroom.
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{¶ 13} On June 14, 2012, Carr appealed the resolution of his grievance to the prison's
Assistant Chief Inspector. Carr argued that the March 5, 2012 memorandum provided to him
was not the original document he requested, but rather, was an "updated" list of the religious
organizations that sent material to the inmates. The disposition of Carr's grievance was
affirmed on July 9, 2012. In affirming the grievance, the Assistance Chief Inspector stated,
This office has read all of the information sent regarding your
request and complaint. In order for the institution and this office
to help you in this matter, it would be helpful if you state in your
ICR [informal complaint resolution] and NOG [notice of
grievance] what you are seeking as you did in your subsequent
revised public records request which was very clear and
complete. From the information in your ICR and NOG your
request was unclear, this office did not find staff violated a
department policy, administrative rule or procedure in this
instance.
{¶ 14} On October 18, 2012, Carr filed a petition with this court for a writ of
mandamus. Carr indicated in his petition that pursuant to 42 U.S.C. 1983, he was preparing
a civil rights action against the prison for its discrimination against his white-separatist
religious organization. Carr essentially claimed that the prison staff denied his public records
request because it knew that Chaplain Cahill's memorandum could be used as evidence
against the prison in Carr's suit to show that the prison did not permit his white-separatist
religious organization to distribute religious materials to inmates through the mail as an entity
recognized by the prison's religious services. Carr also asserted that prison officials provided
only the updated memorandum, but continually refused to provide the memorandum in its
original state.
{¶ 15} Both parties filed motions for summary judgment. In its motion for summary
judgment, the prison attached a copy of the original memorandum, dated January 30, 2012,
which is virtually identical to the March 5, 2012 version given to Carr. The only difference
between the two versions is that Chaplain Davis' name is added as a sender, and the date is
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changed on the second memorandum. The prison also asserted in its motion for summary
judgment that prison staff was confused by Carr's request for the original memorandum when
that memorandum was never changed in any significant manner before it was resent on
March 5, 2012.
{¶ 16} Also attached to the prison's motion for summary judgment is an affidavit of
Chaplain Davis in which he described the manner in which he added his name to the
memorandum, changed the date, and resent the memorandum at the request of the
mailroom employees. Justus' affidavit is also included, in which she indicates that she was
unable to determine what Carr was requesting based upon his first two requests of March 5,
2012 and March 15, 2012. She also averred that she denied Carr's first April 9, 2012 request
that asked for all interoffice memoranda and emails sent by Chaplain Cahill to the mailroom
for the month of February 2012 because such request was overbroad. Justus averred that
once Carr submitted his second April 9, 2012 request for the March 5, 2012 memorandum
and a current copy of the records retention schedule, she considered that request specific
enough to act upon. Once Carr submitted payment, he was provided copies of the records
retention schedule and a copy of the March 5, 2012 memorandum.
{¶ 17} Within Carr's petition for a writ of mandamus, he sought an order directing the
prison to make his requests available to him, and also requested statutory damages pursuant
to R.C. 149.43(C)(1) in the amount of $100 per day for each day that the prison fails to
comply with his request. The prison also moved for summary judgment, asking that this court
deny Carr's petition for a writ of mandamus. This court denied both motions for summary
judgment, finding that while Carr's March 5, 2012 request was ambiguous, genuine issues of
material fact remained regarding Carr's subsequent requests of March 15, 2012 and the first
request of April 9, 2012.
{¶ 18} Carr and the prison then filed briefs with this court regarding Carr's petition for a
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writ of mandamus. After reviewing the submitted evidence, we turn to the merits of relator's
mandamus claim.
Ohio's Public Records Act
{¶ 19} "The Public Records Act reflects the state's policy that 'open government
serves the public interest and our democratic system.'" State ex rel. Morgan v. City of New
Lexington, 112 Ohio St.3d 33, 2006-Ohio-6365, ¶ 28, quoting State ex rel. Dann v. Taft, 109
Ohio St.3d 364, 2006-Ohio-1825, ¶ 20. Courts construe Ohio's Public Records Act liberally
in favor of broad access, with any doubt resolved in favor of disclosure of public records. Id.{¶ 20} According to R.C. 149.43(B)(1):
Upon request and subject to division (B)(8) of this section, all
public records responsive to the request shall be promptly
prepared and made available for inspection to any person at all
reasonable times during regular business hours. Subject to
division (B)(8) of this section, upon request, a public office or
person responsible for public records shall make copies of the
requested public record available at cost and within a reasonable
period of time.
{¶ 21} R.C. 149.43(C)(1) sets forth the proposition that an aggrieved party may pursue
a mandamus action and be entitled to statutory damages upon a public entity's failure to
provide public records in accordance with the statute.
If a person allegedly is aggrieved by the failure of a public office
or the person responsible for public records to promptly prepare
a public record and to make it available to the person for
inspection in accordance with division (B) of this section or by
any other failure of a public office or the person responsible for
public records to comply with an obligation in accordance with
division (B) of this section, the person allegedly aggrieved may
commence a mandamus action to obtain a judgment that orders
the public office or the person responsible for the public record to
comply with division (B) of this section, that awards court costs
and reasonable attorney's fees to the person that instituted the
mandamus action, and, if applicable, that includes an order fixing
statutory damages under division (C)(1) of this section.
***
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If a requestor transmits a written request by hand delivery or
certified mail to inspect or receive copies of any public record in
a manner that fairly describes the public record or class of public
records to the public office or person responsible for the
requested public records, except as otherwise provided in this
section, the requestor shall be entitled to recover the amount of
statutory damages set forth in this division 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.
The amount of statutory damages shall be fixed at one hundred
dollars for each business day during which the public office or
person responsible for the requested public records failed to
comply with an obligation in accordance with division (B) of this
section, beginning with the day on which the requester files a
mandamus action to recover statutory damages, up to a
maximum of one thousand dollars. The award of statutory
damages shall not be construed as a penalty, but as
compensation for injury arising from lost use of the requested
information. The existence of this injury shall be conclusively
presumed. The award of statutory damages shall be in addition
to all other remedies authorized by this section.
{¶ 22} "It is the responsibility of the person who wishes to inspect and/or copy records
to identify with reasonable clarity the records at issue." Morgan, 2006-Ohio-6365 at ¶ 29.
R.C. 149.43(B)(2) permits a custodian to deny a public records request if that request is
ambiguous or overly broad so that the custodian "cannot reasonably identify what public
records are being requested." "A records request is not specific merely because it names a
broad category of records listed within an agency's retention schedule." State ex rel. Zidonis
v. Columbus State Community College, 10th Dist. Franklin No. 10AP-961, 2011-Ohio-6817, ¶
5. When identifying the records within a given request, the Public Records Act does not
contemplate that a requesting party has the right to a "complete duplication of voluminous
files kept by government agencies." State ex rel. Glasgow v. Jones, 119 Ohio St.3d 391,
2008-Ohio-4788, ¶ 17
Carr's March 15, 2012 and April 9, 2012 Requests
{¶ 23} In Carr's two public records requests that remain at issue, he asked the prison
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to produce (1) "copies of all e-mails and interoffice memo's [sic] sent from Chaplain Cahill, to
the mail room (including it's supervisor's [sic]) during the months of January and February
2012," and (2) a "copy of all inter-office memos and e-mails sent by Chaplain Cahill to the
mail room or it's [sic] supervisors for the month of February 2012." Although Carr has since
been provided a copy of the original memorandum from January 31, 2012 from Chaplain
Cahill to the mailroom employees, he contends that he is still entitled to any and all memos
and emails sent from Chaplain Cahill to the mailroom over the two-month period. Justus
originally denied Carr's requests because those requests were overbroad. We agree.
{¶ 24} Instead of providing the prison with a specific request by identifying with
reasonable clarity the records at issue, Carr simply asked for an entire body of
communication. The request for all emails and memoranda sent between Chaplain Cahill
and the mailroom employees did not make any reference to a particular work-related activity,
such as training the new employees on sorting religious material, or some equally-specific
request.
{¶ 25} Rather, Carr expected the prison to duplicate its entire volume of emails and
memoranda between Chaplain Cahill and the mailroom and/or its supervisors over a two-
month period without any clarification or restrictions. See State ex rel. Zauderer v. Joseph,
62 Ohio App.3d 752, 756 (10th Dist.1989) (noting that "a general request, which asks for
everything, is not only vague and meaningless, but essentially asks for nothing. At the very
least, such a request is unenforceable because of its overbreadth. At the very best, such a
request is not sufficiently understandable so that its merit can be properly considered").
{¶ 26} We note that "R.C. 149.43 contemplates that the requester and the public-
records custodian cooperate in fulfilling a request." State ex rel. Morgan v. Strickland, 121
Ohio St.3d 600, 2009-Ohio-1901, ¶ 18. If a requester makes an ambiguous or overly broad
request, R.C. 149.43(B)(2) requires the custodian to "provide the requester with an
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opportunity to revise the request * * *." Justus twice informed Carr that his requests were
ambiguous and overbroad, and twice Carr responded by actually widening his request rather
than pinpointing what specific record he was seeking.
{¶ 27} Again, Carr's first request, which this court already concluded during the
summary judgment phase was ambiguous, requested "a copy of the inter-office memo
between the Chaplain's office and the mail room. This memo was sent during January or
February of 2012. This memo contains information related to religious ministries regular
dealt with by the Chaplins [sic] office." Within the request, Carr explained that he had spoken
to Chaplain Cahill about the memorandum, that Chaplain Cahill could be consulted for help in
locating the memorandum, and also gave a synopsis of the memorandum's purpose. Even
so, this court found the request to be ambiguous because the request did not specifically or
particularly describe the document Carr was requesting.
{¶ 28} Instead of making a subsequent request that specifically and particularly
described the request in better detail, Carr simply broadened his request to include any and
all memoranda and emails between Chaplain Cahill and the mailroom and/or its supervisors.
These requests also broadened the timeframe to include two months, and asked for every
single communication via email or memorandum between Chaplain Cahill and the mailroom
and/or its supervisors that occurred over that two-month period. The requests, however,
never became specific enough for Justus to fulfill because of the overbreadth inherent within
them.
{¶ 29} We compare these two requests to the second request Carr made on April 9,
2012 in which he asked for a "copy of all interoffice memos and e-mails sent by Chaplain
Cahill to the mail room or it's [sic] supervisors on 3/5/12," and a "current copy of your records
retention schedule." This request was not ambiguous because it specifically identified that
Carr was seeking the interoffice memoranda sent by Chaplain Cahill to the mailroom or its
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supervisors on a specific date, as well as the prison's records retention schedule. Justus
filled this request because she was able to specifically target what documents Carr
requested, and was able to access and provide such with clarity.
{¶ 30} Carr's two requests that remain an issue in the petition currently before this
court were overly broad. Carr's requests were too general, and sought an entire duplication
of communications through all memoranda and all emails between Chaplain Cahill and the
mailroom and/or its supervisors. By asking for everything, while not offering any specific
reference to a particular work-related activity, Carr's requests were overly broad. Therefore,
the prison was proper in denying Carr's request as being overly broad, and the writ is denied.
Statutory Damages
{¶ 31} Carr also moves this court to order the prison to pay statutory damages. "[I]n
general, providing the requested records to the relator in a public-records mandamus case
renders the mandamus claim moot." State ex rel. Toledo Blade Co. v. Seneca Cty. Bd. of
Commrs., 120 Ohio St.3d 372, 2008-Ohio-6253, ¶ 43. However, the production of requested
documents does not, according to the Public Records Act, moot a claim for statutory
damages, court costs, and attorney fees. State ex rel. Cincinnati Enquirer v. Heath, 121
Ohio St.3d 165, 2009-Ohio-590, ¶ 18. According to R.C. 149.43(C)(1):
If a person allegedly is aggrieved by the failure of a public office
or the person responsible for public records to promptly prepare
a public record and to make it available to the person for
inspection in accordance with division (B) of this section or by
any other failure of a public office or the person responsible for
public records to comply with an obligation in accordance with
division (B) of this section, the person allegedly aggrieved may
commence a mandamus action to obtain a judgment that orders
the public office or the person responsible for the public record to
comply with division (B) of this section, that awards court costs
and reasonable attorney's fees to the person that instituted the
mandamus action, and, if applicable, that includes an order fixing
statutory damages under division (C)(1) of this section.
{¶ 32} A relator is not entitled to statutory damages unless the custodian failed to
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comply with an obligation in accordance with R.C. 149.43(B). State ex rel. Patton v. Rhodes,
129 Ohio St.3d 182, 2011-Ohio-3093, ¶ 21; R.C. 149.43(C)(1). Whether a respondent
complied with the statutory duty to timely provide copies of the requested records depends
upon all of the pertinent facts and circumstances. State ex rel. Morgan, 2009-Ohio-1901 at ¶
10.
{¶ 33} The record is clear that Carr made his public records request in order to obtain
a copy of the memorandum written by Chaplain Cahill to the mailroom, which was created in
order to address the new employees' concerns regarding sorting religious mail. Carr was
aware that within the memo, Chaplain Cahill included a nonexhaustive list of religious
institutions known by the prison's religious services to send inmates mail. This memorandum
was originally dated January 30, 2012, and later duplicated and resent in its exact form on
March 5, 2012, with the only changes being the date and Chaplain Davis' name added as a
sender. Once Carr specifically requested the March 5, 2012 memorandum, such was
provided to him by both Justus and Inspector Blackwell, thus fulfilling his public records
request for the memorandum he sought.
{¶ 34} Carr argues that the addition of Chaplain Davis' name and the changed date
rendered the two documents different, requiring production of both. However, we disagree.
The two changes to the document merely added an additional sender and updated the date
on which the memorandum was resent. The body of the memorandum, however, remained
completely unchanged.
{¶ 35} The circumstances of this case indicate that Carr wants to use the
memorandum to support his cause of action alleging discrimination by the prison against his
white-separatist religious organization. The memorandum lists the religious organizations
known to the prison's religious services, and that list remained the same in both memoranda.
The addition of Chaplain Davis as a sender and the change of the date do not in any way
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indicate that the substance of the memoranda changed. Instead, the memoranda, for all
intents and purposes, were identical.
{¶ 36} In a similar situation, this court found that a custodian fulfilled a request for
public records by providing an updated version of the request. State ex rel. Doe v. Register,
12th Dist. Clermont No. CA2008-08-081, 2009-Ohio-2448. In Register, the relator requested
draft copies of the minutes from a township's board of trustees meeting. The custodian was
not able to produce the draft copies, but made available the official minutes that had since
been adopted and formalized by the board. The custodian averred that the draft minutes
were identical to the officially-adopted minutes, save the fact that they had since been
officially adopted. Because the body and substance of the official meeting minutes were
identical to the draft minutes, we found that relator's request had been fulfilled when he was
given the official minutes.
{¶ 37} Similarly, and since the inception of his very first request, Carr requested the
memorandum written by Chaplain Cahill to the mailroom indicating which religious entities
sent materials to inmates for distribution. The body and substance of the resent
memorandum were identical to the original, so that Carr's request was fulfilled once the
prison gave Carr copies of the March 5, 2012 memorandum. This is especially true where
the prison attached the original version of the memorandum to its motion for summary
judgment. Carr was given the opportunity to see that the bodies of the memoranda are
identical, and his argument that the prison has still failed to produce the original memo is
unreasonable.
{¶ 38} The prison had a statutory duty to provide Carr with the public records he
requested once Carr made a request that was not ambiguous or overbroad. The prison
satisfied that duty when it fulfilled Carr's second April 9, 2012 request, which was Carr's only
valid request. Given the pertinent facts and circumstances of this case, we find that relator is
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not entitled to statutory damages because the prison complied with its obligation in
accordance with R.C. 149.43(B).2
{¶ 39} Writ denied.
HENDRICKSON, P.J., PIPER and M. POWELL, JJ., concur.
2. We also note that the prison has moved for dismissal of Carr's petition because of technical flaws in Carr's
affidavit of past lawsuits, which is required pursuant to R.C. 2969.25(A). However, given our disposition of the
merits of Carr's petition, we find the prison's argument moot.
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