Strothers v. Norton , 131 Ohio St. 3d 359 ( 2012 )

[Cite as Strothers v. Norton, 131 Ohio St.3d 359, 2012-Ohio-1007.]
STROTHERS, APPELLANT AND CROSS-APPELLEE, v. NORTON, MAYOR,
APPELLEE AND CROSS-APPELLANT.
[Cite as Strothers v. Norton, 131 Ohio St.3d 359, 2012-Ohio-1007.]
Public records—Portion of court of appeals’ judgment denying writ of mandamus
affirmed—Portion of judgment awarding statutory damages reversed.
(No. 2011-1483—Submitted March 7, 2012—Decided March 15, 2012.)
APPEAL and CROSS-APPEAL from the Court of Appeals for Cuyahoga County,
No. 96147, 2011-Ohio-3694.
__________________
Per Curiam.
{¶ 1} This is an appeal from a judgment denying the request of appellant
and cross-appellee, Gerald O. Strothers Jr., for a writ of mandamus to compel
appellee and cross-appellant, East Cleveland Mayor Gary Norton Jr., to provide
access to review, inspect, and copy at cost various records. Norton cross-appeals
from that portion of the judgment awarding Strothers $1,000 in statutory damages
on his public-records mandamus claim.
{¶ 2} We affirm the portion of the judgment denying the writ of
mandamus and reverse the portion awarding statutory damages.
Facts
{¶ 3} By certified letter dated December 1, 2010, Strothers requested
that Norton allow him “to review, inspect and or copy [certain] public records
pertaining to East Cleveland Ohio from (2009 to present)” relating to the East
Cleveland jail. These records included (1) copies of the contracts to provide
food/catering and laundry service for jail prisoners, (2) all financial records that
contain data about the jail—including “all payments made and received, amounts
paid to outside contractors, bid requests, proposals and resumes of any winning
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and non-winning bidder(s),” (3) documents related to all purchases of jail
bedding, pads, and sheets, (4) requests for “bids of jail plumbing problems
including the many non-working sinks and toilets in the facility, this may include
repairs made by in-house custodians; all plumbing invoices,” (5) “Certification to
provide medical care, dispense medications by jail personnel or written
authorization allowing non-medical personnel, correctional officers to dispense
prescription medications,” (6) “Extermination Contracts or requests for
extermination services made by jail personnel and prisoners, including the plan to
address rat, mice, and insect infestation at the jail facility; all service calls from
outside professional and nonprofessional exterminators,” (7) “Jail policy
pertaining to prisoners’ use of telephones, showers, and being able to step out of
their cells for exercise and recreation, or letter directing jail personnel to keep
prisoners caged up without release,” (8) inspection reports from the state and
Cuyahoga County offices tasked with monitoring jail facilities, and (9) “Written
jail policies pertaining to prisoner treatment, phone calls, medical attention, and
discipline including incidents where prisoners were stunned with electronic non-
lethal weapons and physically restrained using chains or handcuffs.”
{¶ 4} In his request, Strothers acknowledged the breadth of his request:
I realize that this is a large request for documents but it is
my intention to review the requested records within a reasonable
amount of time and perhaps help our fair city avoid any future
mistreatment of prisoners in the city jail facility.
{¶ 5} The certified-mail receipt indicates that the request was received
on behalf of the mayor on December 2, 2010. Strothers reiterated his request at
the December 7, 2010 regular meeting of the East Cleveland City Council.
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{¶ 6} On December 9, 2010, only a week after Strothers’s public-records
request was received by Norton, Strothers filed a petition in the Eighth District
Court of Appeals for a writ of mandamus to compel Norton to provide access to
the requested records.
{¶ 7} On December 21, Norton, through Brenda L. Blanks, the executive
assistant to the East Cleveland law director, provided copies of some of the
requested records to Strothers. On that same day, Strothers submitted a written
request for records pertaining to the city’s traffic cameras, including the revenue
generated by each of them.
{¶ 8} On January 13, 18, and 25, Norton provided Strothers with access
to the remaining records listed in his initial request. Some of these records were
sent to Strothers by certified mail, but they were returned because Strothers did
not sign for them. In a subsequent telephone conversation, Strothers advised
Blanks that he never requested that she send him copies of the records and that he
wanted instead to come to the office to review the records and scan the ones he
wanted into his personal computer. Blanks told Strothers that he could make an
appointment during regular business hours to review the records, but Strothers did
not make an appointment to do so.
{¶ 9} After Norton filed a response to Strothers’s mandamus petition and
Strothers filed a motion for summary judgment, the court of appeals ordered the
parties to file an inventory listing the records that had been requested and those
that had been made available. Attached to Norton’s inventory was the
uncontroverted affidavit of Blanks specifying that all of the requested records had
been made available to Strothers.
{¶ 10} The court of appeals denied the writ of mandamus, but awarded
Strothers $1,000 in statutory damages.
{¶ 11} This cause is now before the court upon Strothers’s appeal and
Norton’s cross-appeal.
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Analysis
Appeal
{¶ 12} In his appeal, Strothers asserts that the court of appeals erred in
denying the requested writ of mandamus. Strothers claims that the court of
appeals committed error by ruling that 45 days was a reasonable amount of time
for the mayor to take to make records available and that a request for public
records must be made by affidavit. But the court of appeals did not so hold.
{¶ 13} Instead, the court of appeals correctly held that Norton’s evidence,
which included the uncontroverted affidavit of Blanks and attached exhibits,
established that Strothers had been given access to all of the requested records,
which rendered his mandamus claim moot. See State ex rel. Striker v. Smith, 129
Ohio St.3d 168, 2011-Ohio-2878, 950 N.E.2d 952, ¶ 22, quoting 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’ ”). Strothers did not submit the requisite clear and convincing proof to the
contrary. See 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”).
{¶ 14} Nor did the court of appeals abuse its discretion in refusing to
consider Strothers’s claim for records concerning the city’s traffic camera.
Strothers claims that the court refused to consider that claim because his request
was not made in an affidavit. Actually, the court held that it would not consider
that claim because Strothers had not included it in his mandamus petition. “R.C.
149.43(C) requires a prior request as a prerequisite to a mandamus action.” State
ex rel. Taxpayers Coalition v. Lakewood, 86 Ohio St.3d 385, 390, 715 N.E.2d 179(1999). Strothers did not submit his request for the traffic-camera records before
he filed his mandamus petition, and he did not thereafter seek leave to amend his
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petition to include the claim. In fact, even in this appeal, Strothers attempts to
include a claim related to yet another request for public records. Yet this request,
which did not precede the filing of his mandamus petition, was likewise not
included in his petition or in a motion to amend it. This claim was not even raised
in the court of appeals. State ex rel. DeGroot v. Tilsley, 128 Ohio St.3d 311,
2011-Ohio-231, 943 N.E.2d 1018, ¶ 9 (appellant in mandamus case waived claim
that she had failed to raise in the court of appeals).
{¶ 15} Therefore, we affirm the judgment of the court of appeals denying
the writ of mandamus.
Cross-Appeal
{¶ 16} In his cross-appeal, Norton asserts that the court of appeals erred in
awarding Strothers $1,000 in statutory damages. Norton first claims that
Strothers lacked standing to institute his mandamus action and receive an award
of statutory damages because he is not an aggrieved party for purposes of R.C.
149.43(C) since his request for public records was “merely a pretext to obtain
statutory damages.”
{¶ 17} R.C. 149.43(C)(1) provides:
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
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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.
{¶ 18} Norton waived this claim because he did not raise it in the court of
appeals. See State ex rel. Hawthorn v. Russell, 107 Ohio St.3d 269, 2005-Ohio-
6431, 838 N.E.2d 666, ¶ 8 (appellants waived legal-capacity issue by failing to
raise objection in the court of appeals).
{¶ 19} Moreover, as we recently emphasized in Rhodes v. New
Philadelphia, 129 Ohio St.3d 304, 2011-Ohio-3279, 951 N.E.2d 782, at ¶ 21:
The broad language used in R.C. 149.43 manifests the
General Assembly’s intent to jealously protect the right of the
people to access public records. We are acutely aware of the
importance of the right provided by the act and the vulnerability of
that right when the records are in the hands of public officials who
are reluctant to release them. For this reason, we stress that public
offices are obligated to honor public-record requests regardless of
the requester’s reasons for or objectives in requesting the records.
Allowing the genuineness of a person’s request to be within the
purview of the public office would invite recalcitrance and would
not promote the purpose of the act.
(Emphasis added.)
{¶ 20} Therefore, Strothers’s possible motive in requesting the public
records did not divest him of standing to sue under R.C. 149.43(C)(1).
{¶ 21} Nevertheless, we hold that Norton’s claim that the court of appeals
abused its discretion in granting statutory damages to Strothers has merit. An
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award of statutory damages under R.C. 149.43(C)(1) is premised on a violation of
R.C. 149.43(B). Under R.C. 149.43(B)(1), two primary means are specified for
providing access to public records: “(1) making the records ‘available for
inspection to any person at all reasonable times during regular business hours’ and
(2) making ‘copies of the requested public record[s] available at cost and within a
reasonable period of time.’ ” State ex rel. Patton v. Rhodes, 129 Ohio St.3d 182,
2011-Ohio-3093, 950 N.E.2d 965, ¶ 15, quoting R.C. 149.43(B)(1). Whether a
public office or a person responsible for public records can be deemed to have
complied with these duties is dependent upon the facts and circumstances
involved. See State ex rel. Wadd v. Cleveland, 81 Ohio St.3d 50, 53, 689 N.E.2d
25 (1998).
{¶ 22} The pertinent facts here include the following: (1) Strothers filed a
December 2010 request for myriad records relating to the East Cleveland jail, (2)
Strothers admitted that his request constituted a “large request for documents,” (3)
Strothers filed his mandamus action a mere week after Norton received his
request, (4) Strothers requested other records during the period in which Norton
was attempting to respond to his first request, (5) Norton provided access to all of
the records related to the initial request by January 25, 2011, and (6) Strothers
declined to accept delivery of some of the requested records and failed to contact
the city to set an appropriate time to review the records.
{¶ 23} Under these circumstances, we agree with the judge of the court of
appeals who dissented from the statutory-damages portion of the judgment:
Norton produced the records within a reasonable period of time. 2011-Ohio-
3694, 2011 WL 3211177, at ¶ 22-25 (Stewart, J., concurring in part and dissenting
in part).
{¶ 24} Therefore, we reverse that portion of the judgment granting $1,000
in statutory damages to Strothers.
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Conclusion
{¶ 25} Based on the foregoing, we affirm the portion of the judgment of
the court of appeals denying the writ of mandamus and reverse the portion
awarding statutory damages.
Judgment affirmed in part
and reversed in part.
O’CONNOR, C.J., and PFEIFER, LUNDBERG STRATTON, O’DONNELL,
LANZINGER, CUPP, and MCGEE BROWN, JJ., concur.
__________________
Gerald O. Strothers Jr., pro se.
Ronald K. Riley, East Cleveland Director of Law, for appellee and cross-
appellant.
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