State ex rel. Holloman v. Dolan ( 2016 )

[Cite as State ex rel. Holloman v. Dolan, 2016-Ohio-577.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State ex rel. Martin L. Holloman, :
Relator, :
v. : No. 15AP-31
Ryan G. Dolan, Staff Counsel : (REGULAR CALENDAR)
Ohio Department of Rehabilitation
and Corrections and Jamie O'Toole- :
B[i]llingsley Executive Assistant
Ohio Parole Board, :
Respondents. :
DECISION
Rendered on February 18, 2016
Mart. L. Holloman, pro se.
Michael DeWine, Attorney General, and Gene D. Park, for
respondents.
IN MANDAMUS
HORTON, J.
{¶ 1} Relator, Martin L. Holloman, a former inmate at the Pickaway Correctional
Institution, requests a writ of mandamus ordering respondents to provide documents he
allegedly requested by letter dated July 8, 2014, pursuant to the Ohio Public Records Act,
R.C. 149.43.
{¶ 2} Pursuant to Civ.R. 53 and Loc.R. 13(M) of the Tenth District Court of
Appeals, this matter was referred to a magistrate who issued a decision, including findings
of fact and conclusions of law, which is appended hereto. Specifically, the magistrate
determined that the respondents only received a one-page letter from relator, that letter
contained a request for production of three items, and that respondents and other ODRC
employees conducted a diligent and reasonable search for the Ghee memo, but were
No. 15AP-31 2
unable to find it. The magistrate found that it is more probable than not that the Ghee
memo was destroyed pursuant to ODRC's records retention schedule.
{¶ 3} Based on the above and past precedent, the magistrate further found that
relator is not entitled to a writ of mandamus to compel the production of the four items
not included in his request, and that relator had not shown that the Ghee memo was in
the possession of ODRC at the time of the request. Therefore, the magistrate has
recommended that we deny relator's request for a writ of mandamus.
{¶ 4} No objections have been filed to the magistrate's decision.
{¶ 5} Finding no error of law or other defect on the face of the magistrate's
decision, we adopt the decision as our own, including the findings of fact and conclusions
of law contained therein. In accordance with the magistrate's decision, we deny relator's
request for a writ of mandamus.
Writ of mandamus denied.
KLATT and BRUNNER, JJ., concur.
_________________
No. 15AP-31 3
APPENDIX
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State ex rel. Martin L. Holloman, :
Relator, :
v. : No. 15AP-31
Ryan G. Dolan, Staff Counsel : (REGULAR CALENDAR)
Ohio Department of Rehabilitation
and Corrections and Jamie O'Toole- :
B[i]llingsley Executive Assistant
Ohio Parole Board, :
Respondents. :
MAGISTRATE'S DECISION
Rendered on November 24, 2015
Mart. L. Holloman, pro se.
Michael DeWine, Attorney General, and Gene D. Park, for
respondents.
IN MANDAMUS
{¶ 6} In this original action, relator, Martin L. Holloman, a former inmate of the
Pickaway Correctional Institution ("PCI"), requests a writ of mandamus ordering
respondents to provide him documents he allegedly requested by letter dated July 8, 2014
pursuant to the Ohio Public Records Act, R.C. 149.43.
Findings of Fact:
Part I—Procedural Chronology and Evidence Submitted
{¶ 7} 1. On January 15, 2015, relator filed this mandamus action against two
named employees of the Ohio Department of Rehabilitation and Correction ("ODRC").
No. 15AP-31 4
Named as a respondent is Ryan G. Dolan who is ODRC staff counsel at the Operations
Support Center. Also named is Jamie O'Toole-Billingsley who is executive assistant for
the Ohio Parole Board, a division of ODRC.
{¶ 8} 2. In his complaint, relator alleges that he mailed a public records request
to O'Toole-Billingsley on July 8, 2014. Relator did not attach to his complaint a copy of
the records request. However, relator endeavors to enumerate in his complaint seven
items allegedly requested in his July 8, 2014 request.
{¶ 9} 3. According to the complaint, by letter dated August 6, 2014, O'Toole-
Billingsley acknowledged receipt of relator's "letter dated July 8, 2014 in which you are
requesting several records." O'Toole-Billingsley informed relator that his "inquiry has
been forwarded to our department's Office of Legal Services for review and response."
{¶ 10} 4. Relator attached to his complaint a copy of a letter from Dolan informing
him:
The Ohio Parole Board is in receipt of your public records
request dated July 8, 2014. You request copies of: (1) 2006
Agreed Remedial Order in a Federal class action lawsuit; (2)
a memo titled "Ghee to all concerned" regarding Policy No.
105-PBD-08; and (3) any and all post-release control
screening records related to you.
Please be advised that the Parole Board cannot
accommodate requests (1) and (2) above. With respect to
item (1), the 2006 Agreed Remedial Order is not a Parole
Board record and thus cannot be provided. I suggest you
contact the Federal Court, as it is a Federal Court document.
With respect to item (2), Parole Board staff searched for the
requested item, but was not able to locate a copy. The Parole
Board is unable to verify whether such a document ever
existed.
With respect to item (3), attached please find a "PRC Result
Notification" dated October 22, 2010.
{¶ 11} While the Dolan letter is dated July 8, 2014, that date is incorrect.
Apparently, the Dolan letter was mailed on August 25, 2015.
{¶ 12} 5. According to the complaint, of the seven enumerated items allegedly
requested by relator's July 8, 2014 letter, respondents failed to respond to four of the
requests.
No. 15AP-31 5
{¶ 13} 6. Also attached to the complaint as an exhibit, is the three-page affidavit of
Harry Hageman, executed July 28, 2006. In the affidavit, Hageman avers that he is the
"Deputy Director of the Division of Parole and Community Services" and that he is
"Acting Chief of the Ohio Adult Parole Authority."
In the affidavit, Hageman avers at paragraph seven:
Following enactment of the PRC statutes, the APA followed
screening guidelines set forth in a memorandum from
Margarette Ghee, who was then the Chair of the Parole
Board, dated December 9, 1996. A copy of that
memorandum is attached as Exhibit A-2.
{¶ 14} Apparently, attached to the Hageman affidavit is a memorandum from
Margarette T. Ghee, Chair of the Ohio Parole Board, dated December 9, 1996. "Post
Release Control Screening" is one of the subjects of the Ghee memorandum.
{¶ 15} Relator attaches to his complaint a copy of the Hageman affidavit and the
Ghee memorandum to show that, despite the Dolan letter indicating that the Ghee
memorandum could not be located in an ODRC search, that the Ghee memorandum does
indeed exist because relator is in possession of the Ghee memorandum that he requested
a copy of in his July 8, 2014 request.
{¶ 16} On February 17, 2015, respondents O'Toole-Billingsley and Dolan each filed
an answer to the complaint. In their answers, respondents each deny that relator
requested other than the three items identified in the Dolan letter dated July 8, 2014.
{¶ 17} 7. On February 20, 2015, relator moved for summary judgment under
Civ.R. 56. In his memorandum in support of summary judgment, relator alleged that
respondents failed to address four of the seven items relator allegedly sought by his
July 8, 2014 letter. However, relator did not submit a copy of his July 8, 2014 letter for
this court's consideration. Furthermore, in his memorandum, relator asserts that his
production of the Ghee memorandum in this mandamus action is evidence that the Ghee
memorandum existed as an ODRC public record at the time of the ODRC search for the
record in response to relator's July 8, 2014 letter.
{¶ 18} 8. On March 3, 2015, respondent's filed a memorandum contra relator's
motion for summary judgment. In their memorandum contra, respondents point out that
No. 15AP-31 6
relator did not attach a copy of his July 8, 2014 letter to his complaint nor did he submit
the letter in support of summary judgment.
{¶ 19} In the memorandum, respondents state that ODRC holds a copy of the
July 8, 2014 letter and the accompanying envelope and that relator only asked for three
items. However, respondent did not submit a copy of the letter and envelope in support
of their opposition to summary judgment.
{¶ 20} 9. On April 24, 2015, the magistrate issued notice of a summary judgment
hearing. The notice states that relator's February 20, 2015 motion for summary judgment
is set for hearing on May 11, 2015.
{¶ 21} 10. On June 18, 2015, the magistrate issued his order denying relator's
motion for summary judgment. In his order, the magistrate states:
The magistrate finds that a genuine issue of material fact
exists. That is, there is an unresolved dispute as to what
relator actually requested in his July 8, 2014 letter. The letter
has not been submitted to this court by relator or the
respondents.
{¶ 22} 11. It can be noted that respondents did not file a cross motion for summary
judgment.
{¶ 23} 12. On June 8, 2015, the magistrate issued an order setting forth a schedule
for the filing of evidence and briefs.
{¶ 24} 13. In response to the magistrate's scheduling order, respondents
submitted the affidavit of O'Toole-Billingsley executed July 23, 2015. The affidavit
presents ten enumerate paragraphs. The affidavit avers:
[Two] I currently serve as the Executive Assistant to the Ohio
Parole Board, a division of the Ohio Department of
Rehabilitation and Correction ("ODRC"). My job
responsibilities include receiving and responding to
correspondences made to the Parole Board. These
correspondences include public records requests, and
assisting the Board's responses to the requests by contacting
individuals with knowledge of the requested records and
public records law.
[Three] On about July 11, 2014, I received in my office a
letter from former inmate Martin Holloman. * * * Although
faded, an ink stamp below the date on the letter appears to
indicate it was received by the office on July 11, 2014. The
No. 15AP-31 7
envelope does not indicate that the letter was sent by
certified mail. This letter, dated July 8, 2014, was one page in
length — there were no other pages in the attached envelope
that I received from Mr. Holloman. In this letter, Mr.
Holloman made public records requests for the following
items:
1) 2006 Agreed Remedial Order in the federal class action
lawsuit captioned, Heny [sic] Hernandez et al. - vs -Reginald
Wilkinson, Case No. 1:06-cv-158 filed against the former
DRC Director in the United States District Court for the
Northern District of Ohio, Eastern Division. Any and all
other papers related to the case.
2) Memo, "Ghee to All Concerned" dated 12/9/96 concerning
post-release control screening; Policy No. 105-PBD-08.
3) Any and all post-release control screening related to
inmate Martin L. Holloman #509-086 from the parole board
staff at the London Correctional Inst. to the Parole Board
Office.
These three records requests were the only records requests
contained in the letter I received from Mr. Holloman on
July 11, 2014.
[Four] On July 18, 2014, I emailed then-Chair of the Ohio
Parole Board, Cynthia Mausser, regarding Mr. Holloman's
public records request. * * * I emailed Ms. Mausser because,
as the Chair of the Ohio Parole Board, she would have
knowledge regarding internal memoranda and litigation
records involving the Parole Board. In the email, I asked Ms.
Mausser regarding the first and second items in the letter, as
I was not familiar with the documents Mr. Holloman had
requested. In response, on July 18, 2014, Ms. Mausser
emailed me, stating that the remedial order in the
Hernandez case referenced in Mr. Holloman's request was
not a parole board record. * * * Ms. Mausser also informed
me that she did not have a copy of the memorandum that
Mr. Holloman requested, and advised me to check with the
chief hearing officers of the Board, as they may have had
copies of memos in their post release control manual. She
also advised me to contact staff counsel at the ODRC Office
of Legal Services, Ryan Dolan.
[Five] In response to Ms. Mausser's email, on July 18, 2014, I
then emailed Mr. David Lomax, Ms. Debra Hearns, and Ms.
No. 15AP-31 8
Brigid Slaton, the chief hearing officers of the Ohio Parole
Board. * * * In that email, I asked the officers if they had the
memo from former Ohio Parole Board Chair Margarette
Ghee from December 9, 1996. I received an email from Ms.
Hearns that same day, stating she did not have anything
from that far back. * * * Mr. Lomax "emailed me on July 20,
2014, stating he did not have the record. * * * On July 21,
2014, Ms. Slaton mailed me back, stating that while she
received memoranda regarding violation sanction process
and post release control when she started working as a
hearing officer, she could not find a memo from 1996. * * * I
later received a verbal confirmation from Ms. Slaton after
she searched for the memo in her Dayton office, and
informed me that she could not find the memo.
[Six] Concerning the third item requested by Mr. Holloman
in his letter — post release control screening documentation
from the Parole Board while at the London Correctional
Institution — I located a copy of a document we had on file,
dated October 22, 2010, which notified the result of the
Parole Board's March 5, 2009 assessment at London for post
release control. * * *
[Seven] On August 6, 2014, I wrote and sent a response letter
to Mr. Holloman, informing him of our receipt of his July 8,
2014 records request. * * * I informed him that his request
was forwarded to our department's Office of Legal Services.
[Eight] I emailed Mr. Dolan on August 7, 2014, as Ms.
Mausser had advised, in order for Mr. Dolan to offer a legal
review of Mr. Holloman's records requests, and so that he
could draft the response to Mr. Holloman. * * * I also
attached to the email a copy of Mr. Holloman's July 8, 2014
letter * * *, and a copy of the October 22, 2010 post release
control result notification * * *. In my email, I informed Mr.
Dolan that the memo Mr. Holloman requested could not be
found, and that it was the opinion of Ms. Mausser that the
remedial order that Mr. Holloman requested was not a
parole board record. * * * On that same day, Mr. Dolan
emailed me back, asking if there were any other documents
associated with the March 5, 2009 assessment. I had found
none, so I emailed Mr. Dolan again on the same day,
attaching the post release control result notification * * *,
identifying it as the document that would correspond to the
March 5, 2009 assessment. * * *
No. 15AP-31 9
[Nine] On August 25, 2014, I received an email from Cheryl
Jordan, an administrative assistant at ODRC. * * * Attached
to this email was a letter sent from Mr. Dolan to Mr.
Holloman, indicating that while the first and second items in
Mr. Holloman's July 8, 2014 public records request could
not be accommodated, a "PRC Result Notification," dated
October 22, 2010, was attached. * * * This PRC Result
Notification (the same one that I had found and previously
sent to Mr. Dolan) * * * was also attached in the email I
received from Ms. Jordan. Ms. Jordan stated in the email,
"Mailed 8/25/15," which I understood to mean that she had
mailed Mr. Dolan's letter and the PRC Result Notification to
Mr. Holloman on that date.
[Ten] I have not received any additional public records
requests or other correspondences from Mr. Holloman after
August 25, 2014.
{¶ 25} 14. In further response to the magistrate's scheduling order, respondents
submitted the affidavit of Brigid Slaton, executed July 23, 2015. In her five-paragraph
affidavit, Slaton avers:
[Two] I currently serve as a chief hearing officer for the Ohio
Parole Board, a division of the Ohio Department of
Rehabilitation and Correction. I have held this position since
I began working at a temporary work level in July of 2008,
before moving in to the position permanently in January of
2009. I have worked for the Adult Parole Authority ("APA")
since 1987 in various positions.
***
[Five] On July 18, 2014, I received an email from Jamie
O'Toole-Billingsley directed to all the chief hearing officers,
concerning whether any of us possessed a December 9, 1996
memo from former Ohio Parole Chair Margarette Ghee * * *
I searched my files and emails to see if I had a copy of this
memo, but I could not find it. I emailed Ms. O'Toole-
Billingsley on July 21, 2014, and informed her that I could
not find the memo. * * * I also checked with my Dayton APA
office to determine if I could locate any old memos that were
transitioned to me when I became a chief hearing officer in
2008, but I could not locate any.
No. 15AP-31 10
{¶ 26} 15. In further response to the magistrate's scheduling order, respondents
submitted the affidavit of Cheryl Jordan, executed July 23, 2015. In her three-paragraph
affidavit, Jordan avers:
[Two] I am currently employed as an Administrative
Professional 4 at the central office of the Ohio Department of
Rehabilitation and Correction ("ODRC"), a position that is
similar to an executive secretary. Part of my responsibilities
includes sending correspondences on behalf of some of the
employees in this office. That would include Mr. Ryan Dolan,
a staff attorney for the Ohio Parole Board, which is a division
of the ODRC.
[Three] On August 25, 2014, I was working in this capacity at
ODRC on behalf of Mr. Dolan. On that day, I received from
Mr. Dolan a letter that had been written by him * * *, and an
attachment entitled "PRC Result Notification" * * *. Mr.
Dolan instructed me to send the letter and attachment to Mr.
Martin Holloman, an inmate at the Pickaway Correctional
Institution. Although the date on Mr. Dolan's letter is July 8,
2014, I actually mailed the letter on the date he gave it to me,
August 25, 2014. This is verified by the email I sent to Ms.
Jamie O'Toole-Billingsley on August 25, 2014. * * * In that
email, I wrote to Ms. O'Toole-Billingsley, "Mailed 8/25/14,"
meaning that I was notifying her that I had mailed Mr.
Dolan's letter and the accompanying attachment on that
date.
{¶ 27} 16. In further response to the magistrate's scheduling order, respondents
submitted the affidavit of Carolyn Young, executed July 23, 2015. Young is currently
employed as the Assistant Chief of the Bureau of Records Management for ODRC. In her
affidavit, Young explains the ODRC records retention policy.
{¶ 28} 17. In response to the magistrate's scheduling order of June 8, 2015, relator
submitted his own affidavit, executed August 6, 2015. In his five-page affidavit, relator
avers:
[Two] On or about July 8, 2014, I mailed a two page letter to
Jamie O'Toole-Billingsley the Executive Assistant to the Ohio
Parole Board requesting several public records from the
Parole Board.
[Three] My letter was not sent by certified mail from the
Pickaway Correctional Institution. My letter, dated July 8,
No. 15AP-31 11
2014, was two pages in length. In my letter I requested
several public records as follows.
1) 2006 Agreed Remedial Order in the federal class action
lawsuit against the Ohio Department of Rehabilitation and
Correction in Henry Hernandez v. Reginald Wilkerson, Case
No. 1:06-CV-00158 in the United States District Court for
the Northern District of Ohio.
2) The December 9, 1996, Memo by Mrs. Margret [sic] Ghee,
former Chairman of the Ohio Parole Board concerning the
changes in the parole board post release control screening
process.
3) Any and all post-release control screening records related
to inmate Martin L. Holloman #509-086.
4) The post-release control result notification assessment
paperwork completed on or about March 5, 2009, placing
inmate Martin L. Holloman #509-086 on 5 years of post-
release control supervision.
5) The July 18, 2005, Departmental Memo by Mr. Gary Croft
the former Chairman of the Ohio Parole Board to all parole
board staff concerning PRC screening after careful
consideration of the Ohio Supreme Court's decision in
State v. Jordan, 104 Ohio St. 3d 21.
6) The December 1998 Bill Board Article by John Kinkela the
former Chief of the Ohio Adult Parole Authority concerning
post-release control changes in the relationship with the
Ohio court system.
7) The April 23, 2014 Audio and Video CD of his post-release
control violation hearing held at the Corrections Reception
Center by Parole Board Hearing Officer Jennifer A. Pribe and
Parole Officer Terry Bodell.
The above records requests were the only documents that I
requested in my two page letter I sent to Jamie O'Toole-
Billingsley the Executive Assistant to the Ohio Parole Board.
[Four] Shortly after my release from the Pickaway
Correctional Institution[,] I obtained from the clerk's office
of the Ohio Supreme Court copies of the three-page affidavit
executed July 28, 2006 of Harry Hageman the former
Deputy Director of the Division of Parole and Community
No. 15AP-31 12
Service and Acting Chief of the Ohio Adult Parole Authority
concerning the memorandum from Margarette T. Ghee, the
former Chair of the Ohio Parole Board, dated December 9,
1996 "Post Release control Screening" as one of the subjects
of the Ghee memorandum.
[Five] Also, I obtained a copy of the original memorandum
from Margarette T. Ghee, the former Chair of the Ohio
Parole Board, dated December 9, 1996 concerning post-
release control screening process.
Part II—The magistrate's findings based upon his
weighing of the evidence.
{¶ 29} Based upon the above-described documentary evidence, including the
various affidavits, the magistrate weighs the evidence and renders two findings of fact
enumerated below:
{¶ 30} 1. The magistrate determines that respondents only received a one-page
letter from relator dated July 8, 2014, and that one-page letter only contained a request
for production of the three items described by Dolan in his letter to relator that is
incorrectly dated July 8, 2014 (but mailed August 25, 2015).
{¶ 31} 2. The magistrate determines that respondents and other ODRC employees
conducted a diligent and reasonable search of the December 9, 1996 Ghee memorandum,
but were unable to find it. It is more probable than not that the December 9, 1996 Ghee
memorandum was destroyed pursuant to ODRC's records retention schedule.
Conclusions of Law:
{¶ 32} Two issues are presented: 1) given that respondents did not receive relator's
request for four of the items he allegedly requested in his July 8, 2014 letter, is relator
nevertheless entitled to a writ of mandamus ordering respondents to now provide him
with those four items, and 2) given that respondents exercised reasonable diligence in
endeavoring to find a copy of the Ghee memorandum, but were unable to find such copy,
is there any relief to which relator may be entitled with respect to the Ghee memorandum.
First Issue
{¶ 33} R.C. 149.43(C) requires a prior request as a prerequisite to a mandamus
action. State ex rel. Lanham v. Smith, 112 Ohio St. 3d 527, 2007-Ohio-609, ¶ 14. There
No. 15AP-31 13
can be no failure of a public office to make a public record available in accordance with
R.C. 149.43(B) without a request under R.C. 149.43(B) . State ex rel. Bardwell v. Ohio
Atty. Gen., 181 Ohio App. 3d 661 (10th Dist. 2009).
{¶ 34} Given the above authorities, it is clear that relator is not entitled to a writ of
mandamus to compel the production of the four items that relator did not include in his
July 8, 2014 letter.
Second Issue
{¶ 35} In cases in which public records are properly disposed of in accordance with
a duly adopted records-retention policy, there is no entitlement to those records under the
Public Records Act. State ex rel. Toledo Blade Co. v. Sencea Cty Bd. of Commrs., 120
Ohio St. 3d 372, 2008-Ohio-6253, ¶ 23.
{¶ 36} According to his August 6, 2015 affidavit, relator obtained a copy of the
Ghee memorandum from the clerk's office of the Supreme Court of Ohio shortly after his
release from PCI. Relator does not state the date that he actually received the Ghee
memorandum from the Supreme Court of Ohio. However, relator apparently wants this
court to infer that, if the clerk's office of the Supreme Court of Ohio provided the
document upon relator's request following his release from PCI, then respondents must
be able to provide the document from ODRC records. Clearly, relator's suggested
inference is not mandated nor warranted under the circumstances here.
{¶ 37} Respondents ask this court to observe that the copy of the Ghee
memorandum attached to relator's complaint and also submitted in relator's submission
of certified evidence contains the stamp marking "Case 1:06-cv-00158-JG Document 50
Filed 07/28/2006 Page 11 of 19." According to respondents, the stamp marking on
relator's copy of the Ghee memorandum indicates that the document was filed in a federal
case styled "Hernandez, et al. v. Wilkinson, No. 1:06-cv-158, 2006 WL 3420186 (N.D.
Ohio 2006)." (Respondent's Brief, 11.) Relator does not deny that the stamp markings
on his copy of the Ghee memorandum indicate that the document was filed in the
Hernandez case in July 2006.
{¶ 38} Regardless of the origin of the Ghee memorandum apparently in relator's
possession, relator has not shown that the document was being kept by ODRC as a public
record at the time of the search for the Ghee memorandum by respondents and other
No. 15AP-31 14
ODRC employees during July and August 2014 as indicated by the affidavits submitted by
the respondents.
{¶ 39} The writ of mandamus will not issue to compel a custodian of public records
to furnish records which are not in his possession or control. State ex rel. Hubbard v.
Fuerst, 8th Dist. No. 94799, 2010-Ohio-2489, ¶ 3, citing State ex rel. Fant v. Mengel, 62
Ohio St. 3d 197 (1991).
{¶ 40} Based upon the above analysis, relator is not entitled to a writ of mandamus
with respect to his July 8, 2014 request for the Ghee memorandum.
{¶ 41} Accordingly, it is the magistrate's decision that this court deny relator's
request for a writ of mandamus.
/S/ MAGISTRATE
KENNETH W. MACKE
NOTICE TO THE PARTIES
Civ.R. 53(D)(3)(a)(iii) provides that a party shall not assign as
error on appeal the court's adoption of any factual finding or
legal conclusion, whether or not specifically designated as a
finding of fact or conclusion of law under Civ.R.
53(D)(3)(a)(ii), unless the party timely and specifically objects
to that factual finding or legal conclusion as required by Civ.R.
53(D)(3)(b).