State ex rel. Saalim v. Lucas Cty. Sheriff's Office , 2022 Ohio 2290 ( 2022 )

[Cite as State ex rel. Saalim v. Lucas Cty. Sheriff's Office, 2022-Ohio-2290.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
LUCAS COUNTY
State, ex rel. Lutfi Said Saalim Court of Appeals No. L-21-1135
Relator
v.
Lucas County Sheriff's Office DECISION AND JUDGMENT
c/o Michael J. Navarre, in his
capacity as Lucas County Sheriff Decided: June 30, 2022
Respondent
*****
Thomas J. Walsh, II and Hassanayn M. Joseph, for Relator.
Julia R. Bates, Lucas County Prosecuting Attorney, and
John A. Borell and Kevin A. Pituch, Assistant Prosecuting
Attorneys, for Respondent
*****
PIETRYKOWSKI, J.
{¶ 1} This matter is before the court on the parties’ final merit briefs on relator’s
petition for a writ of mandamus. For the reasons that follow, we deny relator’s petition
for a writ of mandamus as moot, award relator $1,000 in statutory damages, and deny any
award of statutory attorney fees or court costs.
I. Facts and Procedural Background
{¶ 2} By way of background, the present matter was initiated on July 12, 2021,
when relator, Lutfi Said Saalim, petitioned for a writ of mandamus seeking an order to
compel respondent, the Lucas County Sheriff’s Office, to produce public records that
were responsive to relator’s request for 17 different categories of documents. In his
petition, relator asserted that his public records request was submitted on May 25, 2021,
and he had not received a meaningful response to his request for approximately 50 days.
Relator stated that the documents were “vital to the timely investigation and prosecution
of the Relator’s civil claims” pertaining to an incident that took place between relator and
a Lucas County Sheriff’s deputy. Relator subsequently filed a civil action in federal
court based on the incident. On July 15, 2021, this court issued an alternative writ and
ordered respondent to either do the act requested, or show cause why it was not required
to do so by filing an answer or a motion to dismiss.
{¶ 3} In response to our alternative writ, respondent filed a motion to dismiss,
arguing that the matter was now moot because on July 14, 2021, respondent complied
with the public records request and turned over 259 pages of documents. Relator
opposed the motion to dismiss, arguing that there were still several categories of
documents that had not been provided. On September 8, 2021, we denied respondent’s
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motion to dismiss, finding that respondent had not provided evidence showing that it had
responded to all of relator’s public records requests.
{¶ 4} Thereafter, a pretrial hearing was held to clarify and narrow the issues before
the court, in particular whether respondent had produced all responsive documents, or
whether respondent was withholding additional documents and, if so, the reasons for non-
production. As a result of this pretrial hearing, respondent agreed to conduct a search for
additional documents.
{¶ 5} On September 29, 2021, respondent notified the court that it had produced a
video and an additional 10 pages of reports to relator. Respondent further stated that it
possessed no additional documents responsive to relator’s public records requests.
Simultaneously, respondent filed an answer to relator’s mandamus complaint.
{¶ 6} On December 16, 2021, a status conference was held, at which the court
reviewed the matters that were still in dispute amongst the parties. Respondent advised
that additional production of certain body-camera videos would be made to relator. The
court then ordered that relator would have an opportunity to conduct discovery by
submitting interrogatories and requests for admissions. Following respondent’s response
to the discovery, the parties would then have 20 days to submit their case in writing.
{¶ 7} On February 8, 2022, respondent answered relator’s interrogatories and
requests for admissions. In its response, respondent objected to each of relator’s
interrogatories on the basis that the interrogatory was not proper for a mandamus action,
but instead sought information relevant only to relator’s civil claims in the federal court.
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Respondent then filed a motion for summary judgment on February 25, 2022. On March
28, 2022, relator filed his opposition to the motion for summary judgment, as well as a
motion to compel respondent to answer the interrogatories.
{¶ 8} On May 18, 2022, this court entered its judgment denying relator’s motion
to compel, and granting respondent’s motion for summary judgment, in part. As to the
motion for summary judgment, this court held that no genuine issue of material fact
existed, and that respondent had provided nearly all of the requested records listed in
relator’s mandamus complaint. However, this court held that a genuine issue of fact
remained over whether a February 10, 2021 audio recording existed and was produced to
relator. Thus, this court found that the mandamus action would proceed solely as it
related to the February 10, 2021 audio recording. We then ordered the parties to submit
their final merit briefs regarding whether a writ of mandamus should issue, and whether
relator is entitled to, and the amount of, any statutory damages, reasonable attorney fees
and/or court costs under R.C. 149.43.
{¶ 9} The parties have submitted their merit briefs, and the matter is now
decisional.
II. Analysis
{¶ 10} This mandamus action presents three issues, only one of which is in dispute
between the parties.
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A. Writ of Mandamus
{¶ 11} The first issue is whether a writ of mandamus should be entered. Both
parties agree that the remaining public record, the February 10, 2021 audio recording has
been produced to relator, thereby rendering the mandamus petition moot. See State ex
rel. Ellis v. Maple Heights Police Dept., 158 Ohio St.3d 25, 2019-Ohio-4137, 139 N.E.3d
873, ¶ 7 (mandamus claim is moot where the respondent has provided all of the requested
records); State ex rel. Toledo Blade Co. v. Toledo-Lucas Cty. Port Auth., 121 Ohio St.3d
537, 2009-Ohio-1767, 905 N.E.2d 1221, ¶ 14 (“In general, providing the requested
records to the relator in a public-records mandamus case renders the mandamus claim
moot.”). Accordingly, we deny relator’s petition for a writ of mandamus.
B. Statutory Damages
{¶ 12} The second issue is whether relator is entitled to statutory damages under
R.C. 149.43(C)(2), which provides, in relevant part,
If a requester transmits a written request by hand delivery, electronic
submission, 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 requester 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
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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.
{¶ 13} Again, the parties agree that relator is entitled to statutory damages in the
maximum amount of $1,000.00. Accordingly, we hold that relator is entitled to statutory
damages under R.C. 149.43(C)(2), and respondent is ordered to pay to relator the
maximum amount of $1,000.00.
C. Statutory Award of Attorney Fees and Court Costs
{¶ 14} Finally, the third issue is whether relator is entitled to reasonable attorney
fees and/or court costs under R.C. 149.43(C)(3).
{¶ 15} As to attorney fees, R.C. 149.43(C)(3) provides,
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(b) If the court renders a judgment that orders the public office or the
person responsible for the public record to comply with division (B) of this
section or if the court determines any of the following, the court may award
reasonable attorney’s fees to the relator, subject to division (C)(4) of this
section:
(i) The public office or the person responsible for the public records
failed to respond affirmatively or negatively to the public records request in
accordance with the time allowed under division (B) of this section.
(ii) The public office or the person responsible for the public records
promised to permit the relator to inspect or receive copies of the public
records requested within a specified period of time but failed to fulfill that
promise within that specified period of time.
(iii) The public office or the person responsible for the public
records acted in bad faith when the office or person voluntarily made the
public records available to the relator for the first time after the relator
commenced the mandamus action, but before the court issued any order
concluding whether or not the public office or person was required to
comply with division (B) of this section. No discovery may be conducted
on the issue of the alleged bad faith of the public office or person
responsible for the public records. This division shall not be construed as
creating a presumption that the public office or the person responsible for
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the public records acted in bad faith when the office or person voluntarily
made the public records available to the relator for the first time after the
relator commenced the mandamus action, but before the court issued any
order described in this division.
{¶ 16} Of the four justifications for an award of attorney fees listed above, relator
argues that two of them apply: (1) this court “render[ed] a judgment that order[ed] the
public office or the person responsible for the public record to comply with division (B)
of this section” when it entered the alternative writ on July 15, 2021; and (2) respondent
acted in bad faith as set forth in R.C. 149.43(C)(3)(b)(iii).
{¶ 17} Notably, the two justifications relied upon by relator for an award of
attorney fees are the same two that would entitle relator to receive court costs. See State
ex rel. Hedenberg v. North Central Correctional Complex, 162 Ohio St.3d 85, 2020-
Ohio-3815, 164 N.E.3d 358, ¶ 13 (“Court costs may be awarded in a public-records case
in two circumstances. First, an award of court costs is mandatory when the court grants a
writ of mandamus compelling a public office to comply with its duties under the Public
Records Act. R.C. 149.43(C)(3)(a)(i). Second, court costs shall be awarded when the
court determines that the public office ‘acted in bad faith when [it] made the public
records available to the relator for the first time after the relator commenced the
mandamus action, but before the court issued any order concluding whether or not’ to
grant a writ of mandamus. See R.C. 149.43(C)(3)(a)(ii) and (iii).”). Specifically, as to
court costs, R.C. 149.43(C)(3) provides,
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(a)(i) If the court orders the public office or the person responsible
for the public record to comply with division (B) of this section, the court
shall determine and award to the relator all court costs, which shall be
construed as remedial and not punitive.
(ii) If the court makes a determination described in division
(C)(3)(b)(iii) of this section, the court shall determine and award to the
relator all court costs, which shall be construed as remedial and not
punitive.
{¶ 18} Because relator relies upon the same justifications for both an award of
attorney fees and an award of court costs, we will address those two items together.
{¶ 19} First, relator argues that the July 15, 2021 alternative writ was an order for
respondent to comply with R.C. 149.43(B). This is incorrect. An alternative writ is a
procedural mechanism whereby the court instructs the respondent to respond to the
petition by either doing the act requested, or by showing cause why it is not required to
do so by filing an answer or a motion to dismiss. It is not an order for the respondent to
comply with R.C. 149.43(B) as described in R.C. 149.43(C)(3)(a)(i). See, e.g., State ex
rel. Horton v. Kilbane, Slip Opinion No. 2022-Ohio-205, ¶ 38 (relator not entitled to
court costs because the court did not grant a writ of mandamus, even though the court
entered an alternative writ); Hedenberg at ¶ 13; State ex rel. McDougald v. Greene, 161
Ohio St.3d 130, 2020-Ohio-3686, 161 N.E.3d 130, ¶ 23. Thus, relator is not entitled to
attorney fees under R.C. 149.43(C)(3)(b), or to court costs under R.C. 149.43(C)(3)(a)(i).
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{¶ 20} Alternatively, relator argues that he is entitled to attorney fees and court
costs because respondent acted in bad faith. “The term ‘bad faith’ generally implies
something more than bad judgment or negligence.” McDougald at ¶ 26, quoting State v.
Powell, 132 Ohio St.3d 233, 2012-Ohio-2577, 971 N.E.2d 865, ¶ 81. “Bad faith ‘imports
a dishonest purpose, moral obliquity, conscious wrongdoing, breach of a known duty
through some ulterior motive or ill will partaking of the nature of fraud. It also embraces
actual intent to mislead or deceive another.’” Id., quoting Powell at ¶ 81.
{¶ 21} Relator contends that bad faith is demonstrated by respondent’s failure to
timely respond to the public records request before the writ of mandamus was filed, by
respondent’s inaccurate representations to the court on two occasions that it had turned
over all requested documents, and by the fact that respondent just recently—and more
than a year after the original request—finally provided the audio recording from the
February 10, 2021 internal affairs interview.
{¶ 22} We find this case to be analogous to the facts in McDougald. In that case,
McDougald submitted a public records request on December 5, 2018, for the Department
of Administrative Services’ general schedule (“DAS schedule”), and a request on
February 3, 2019, for a copy of a report that had been filed by Brian Barney concerning a
use-of-force incident involving McDougald (“Barney report”). McDougald at ¶ 2.
Greene, the individual responsible for responding to public records requests, notified
McDougald that the Barney report did not exist. Id. at ¶ 3. On June 28, 2019,
McDougald filed a complaint for a writ of mandamus. Greene answered that he provided
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the DAS report to McDougald on July 22, 2019, after McDougald had filed the
complaint. Id. at ¶ 4. Greene also continued to assert that the Barney report did not exist.
Id. An alternative writ was issued, and on October 15, 2019, Greene once again asserted
that the Barney report did not exist. Id. at ¶ 5. However, two weeks later, Greene
discovered that the Barney report did exist, and he averred that he provided the report to
McDougald on the same day. Id. ¶ 6.
{¶ 23} In determining that McDougald was not entitled to an award of court costs,
the Ohio Supreme Court reasoned that “R.C. 149.43(C)(3)(b)(iii) does not create a
presumption that the person responsible for retrieving the public records acted in bad
faith when he makes the records available to the requester for the first time after the
requester files a petition for a writ of mandamus but before a court issues a writ.” Id. at ¶
25. In addition, the court found that there was no evidence of bad faith regarding the
Barney report, noting, “As recently as October 2019, Greene swore in an affidavit that he
believed the Barney report did not exist. Greene reached this conclusion because he
looked for the report in a stand-alone file but failed to find it. When Greene later found
the report in a package of documents, he provided it to McDougald that very same day.”
Id. at ¶ 27.
{¶ 24} Similarly, in this case, respondent’s failure to timely respond to relator’s
original public records request does not create a presumption that respondent acted in bad
faith. Furthermore, like McDougald, respondent’s representations to the court that it had
turned over all requested document does not demonstrate bad faith where it had
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conducted a search and produced a plethora of documents, and then later, in consultation
with relator, respondent searched for additional documents and disclosed them once
located.
{¶ 25} Therefore, we find that relator has not demonstrated that respondent acted
in bad faith under R.C. 149.43(C)(3)(b)(iii), and thus relator is not entitled to a statutory
award of attorney fees or court costs under R.C. 149.43(C)(3).
III. Conclusion
{¶ 26} Accordingly, upon review, we find that relator’s petition for a writ of
mandamus is moot, and it is hereby denied. In addition, we find that relator is not
entitled to an award of attorney fees or court costs under R.C. 149.43(C)(3), and his
request for the same is denied. Finally, we find that relator is entitled to an award of
statutory damages under R.C. 149.43(C)(2), and we hereby order respondent to pay the
maximum award of $1,000.00 to relator.
{¶ 27} Each party is responsible for its own costs.
Writ denied.
To the clerk: Manner of service.
The clerk of court is directed to serve upon all parties, within three days, a copy of
this decision in a manner prescribed by Civ.R. 5(B).
It is so ordered.
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State, ex rel. Lutfi Said Saalim v.
Lucas County Sheriff's Office
C.A. No. L-21-1135
Mark L. Pietrykowski, J. ____________________________
JUDGE
Christine E. Mayle, J.
____________________________
Myron C. Duhart, J. JUDGE
CONCUR.
____________________________
JUDGE
This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.supremecourt.ohio.gov/ROD/docs/.
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