State ex rel. Shaughnessy v. Cleveland (Slip Opinion)

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
State ex rel. Shaughnessy v. Cleveland, Slip Opinion No. 2016-Ohio-8447.]
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 formal errors in the opinion, in order that corrections may be
made before the opinion is published.
SLIP OPINION NO. 2016-OHIO-8447THE STATE EX REL. SHAUGHNESSY v. THE CITY OF CLEVELAND ET AL.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as State ex rel. Shaughnessy v. Cleveland, Slip Opinion No.
2016-Ohio-8447.]
Mandamus—Public Records Act—R.C. 149.43—Relator did not show that
Cleveland had a clear legal duty to respond to his public-records requests
within eight business days—Writ denied—Statutory damages denied.
(No. 2015-0360—Submitted August 30, 2016—Decided December 29, 2016.)
IN MANDAMUS.
_____________________
Per Curiam.
{¶ 1} Relator, Matthew Shaughnessy, filed this original action in
mandamus alleging that respondents, the city of Cleveland and its public-records
administrator, Kim Roberson (collectively, “Cleveland”), violated R.C. 149.43,
Ohio’s Public Records Act, by failing to produce within eight business days the
police incident reports that Shaughnessy requested. We deny Shaughnessy’s
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request for relief and conclude that he has not shown that Cleveland had a clear
legal duty to produce, or that he had a clear legal right to receive, the records he
requested within eight business days. We also deny Shaughnessy’s request for
statutory damages.
FACTS AND PROCEDURAL HISTORY
{¶ 2} Shaughnessy is an attorney whose practice focuses on recovering
economic losses for crime victims through the Ohio Crime Victims Fund. He
requests and reviews police incident reports and then sends information about the
fund to individuals named in those reports who may be victims of crime.
{¶ 3} Shaughnessy alleges that on five different occasions, Cleveland
failed to produce copies of police incident reports in a reasonable amount of time,
which he quantifies as eight business days. Cleveland produced copies of the
requested records 12 to 31 business days after receipt of the initial requests.
Shaughnessy submitted evidence showing that the cities of Akron, Canton, and
Columbus have fulfilled his requests for police incident reports within four
business days.
{¶ 4} Shaughnessy typically requested police incident reports involving
felonious assaults or other assaults causing serious harm but excluding those
involving domestic violence, elder abuse or assault upon a minor. Cleveland’s
evidentiary submission explained the steps involved in fulfilling his requests.
Cleveland first had to search its database for reports that involved incidents of
assaults or aggravated assaults and then exclude records involving the types of
victims and offenses that Shaughnessy did not want. Then, to retrieve the actual
reports, the records custodian typed each police-report number into Cleveland’s
database to extract and print each individual report. Cleveland submitted each
report to its law department for review and redaction of information that the law
department deemed exempt from disclosure under the Public Records Act. The
information typically redacted from reports included Social Security numbers,
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criminal information obtained from the National Crime Information Center and
the Ohio Bureau of Criminal Investigation, the names of juveniles, medical
information, and information describing the details of sexual offenses.
{¶ 5} Shaughnessy also submitted supplemental evidence purporting to
show that on three different occasions after he initiated this action, Cleveland was
able to provide copies of responsive police incident reports within two to four
business days after Cleveland printed each report.
{¶ 6} Shaughnessy argues that Cleveland failed to respond to his requests
in a reasonable amount of time and asks this court to order Cleveland to respond
to future requests within eight business days, invoking our ruling in State ex rel.
Wadd v. Cleveland, 81 Ohio St.3d 50, 689 N.E.2d 25 (1998). He also requests
$1,000 in statutory damages, the maximum amount authorized in R.C.
149.43(C)(2), for each count of his five-count complaint.
ANALYSIS
Mootness
{¶ 7} As an initial matter, we consider Cleveland’s argument that the case
is moot because it has produced all the records at issue in the complaint. This
argument is misplaced: Shaughnessy challenges the timeliness of Cleveland’s
response, not a refusal to provide records. This case therefore does not fall within
the general rule that the production of requested records moots a public-records
case. See State ex rel. Consumer News Servs., Inc. v. Worthington City Bd. of
Edn., 97 Ohio St.3d 58, 2002-Ohio-5311, 776 N.E.2d 82, ¶ 31, citing Wadd, 81
Ohio St.3d at 52, 689 N.E.2d 25. We reject Cleveland’s mootness argument and
proceed to the merits.
Timeliness of Cleveland’s Responses
{¶ 8} The Public Records Act states that all public records responsive to a
request “shall be promptly prepared and made available for inspection,” R.C.
149.43(B)(1), and that “a public office or person responsible for public records
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shall transmit a copy of a public record to any person by United States mail or by
any other means of delivery or transmission within a reasonable period of time
after receiving the request for the copy,” R.C. 149.43(B)(7). The determination
whether a public office has complied with its duty to timely provide requested
records depends on “all of the pertinent facts and circumstances.” State ex rel.
Morgan v. Strickland, 121 Ohio St.3d 600, 2009-Ohio-1901, 906 N.E.2d 1105,
¶ 10, citing Consumer News Servs. at ¶ 37-38. As we detail below, Shaughnessy
made frequent requests and those requests required Cleveland to search for
records containing specific retrieval criteria, to cull out certain records that he did
not want, and then to redact protected information. When we consider
Shaughnessy’s requests in the context of these circumstances, we conclude that
Cleveland’s responses were timely with respect to the requests identified in each
count of the complaint, and we deny Shaughnessy’s request for relief.
Count One
{¶ 9} Count one concerns Shaughnessy’s October 10, 2014, faxed request
for police reports within a two-week period “from the first and second districts for
all non domestic violence related aggravated assaults or assaults where the
victims sought medical care at a hospital.”
{¶ 10} This was an improper public-records request, because it required
Cleveland to do research for Shaughnessy and to identify a specific subset of
records containing selected information. Cleveland had to search its database for
reports that involved (1) incidents of “aggravated assaults” or “assaults,” (2)
occurring within a specific geographical location, (3) with victims who sought
medical care at a hospital, but (4) who were not victims of domestic violence.
The Public Records Act does not compel a public office “to do research or to
identify records containing selected information.” See State ex rel. Fant v. Tober,
8th Dist. Cuyahoga No. 63737, 1993 WL 173743, *1 (Apr. 28, 1993), aff’d, 68
Ohio St.3d 117, 623 N.E.2d 1202 (1993). See also Morgan, 121 Ohio St.3d 600,
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2009-Ohio-1901, 906 N.E.2d 1105, at ¶ 14-15 (request for “[a]ny and all e-mail
communications * * * which reference * * * the ‘evidence-based model’ or
education funding in general” was overbroad) (first ellipsis sic); State ex rel.
Thomas v. Ohio State Univ., 71 Ohio St.3d 245, 246, 643 N.E.2d 126 (1994)
(noting denial of writ of mandamus where request for records sought selected
information “regarding or related to” any pro-animal-rights action group or
individual), citing Fant.
{¶ 11} For this reason, Cleveland could have denied Shaughnessy’s
request outright and asked him to revise it. See R.C. 149.43(B)(2). Instead,
Cleveland searched its database for incident reports that referred to assaults or
aggravated assaults and generated a list of police-report numbers. Cleveland
produced that list the same day of Shaughnessy’s request. But Cleveland’s work
did not end there. In order to retrieve the actual reports, the records custodian had
to type each police-report number into Cleveland’s records-management system
to extract and print out each individual report. Cleveland then submitted each
report to the law department for review and redaction. After taking these steps,
Cleveland produced copies of the incident reports on November 17, 2014, or 24
business days after Shaughnessy’s request.
{¶ 12} R.C. 149.43(A)(1) excludes certain information from the definition
of a public record, some of which is prohibited from public release by law. Public
offices therefore often find it necessary to conduct a legal review of responsive
records and to redact non-public-record information. This court has recognized
that the Public Records Act envisions an opportunity for the public office to
examine records prior to release in order to redact exempt materials appropriately.
Morgan, 121 Ohio St.3d 600, 2009-Ohio-1901, 901 N.E.2d 1105, at ¶ 16, citing
State ex rel. Warren Newspapers, Inc. v. Hutson, 70 Ohio St.3d 619, 623, 640
N.E.2d 174 (1994). And we have stated that police incident reports are subject to
redactions to prevent the disclosure of exempt information. See State ex rel.
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Beacon Journal Publishing Co. v. Akron, 104 Ohio St.3d 399, 2004-Ohio-6557,
819 N.E.2d 1087, ¶ 55-56 (police incident reports may be redacted to eliminate
personal victim information). It was therefore reasonable for Cleveland to delay
disclosure a bit longer to conduct a legal review. Our analysis of the timeliness of
Cleveland’s response must take into account the practical and legal restrictions
that Cleveland faces.
{¶ 13} Shaughnessy’s supplemental evidence purports to show that
Cleveland was able to complete its legal review and produce responsive records
within two to four business days after Cleveland printed each incident report. But
the possibility that Cleveland may be able to complete its legal review within a
shorter time frame does not transform Shaughnessy’s improper requests into
proper ones. See State ex rel. Dispatch Printing Co. v. Johnson, 106 Ohio St.3d
160, 2005-Ohio-4384, 833 N.E.2d 274, ¶ 38 (past disclosure of information does
not transform a nonrecord into a record under the Public Records Act).
{¶ 14} Shaughnessy bases his argument that Cleveland had a legal duty to
respond to his public-records requests within eight business days on Wadd, 81
Ohio St.3d 50, 689 N.E.2d 25, in which we concluded that Cleveland must
provide access to accident reports within eight days after the accidents occur. Id.
at 55. However, Wadd is inapposite. The relator in Wadd requested access to
reports for motor-vehicle accidents occurring on one specific day. Id. at 51.
Here, by contrast, Shaughnessy requested copies of reports for incidents spanning
a two-week period, and he made several subsequent, similar requests, which
generally resulted in 100 to 300 pages of responsive reports. In addition, Wadd
involved the availability of accident reports for in-person inspection and copying
by the requestor. Id. at 50-51. Here, the issue is not the records’ availability for
inspection; rather, a public office had to locate, retrieve, copy, redact, and
transmit copies of the responsive records. Wadd does not provide a comparable
basis to impose an eight-business-day deadline on Cleveland in this case.
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{¶ 15} Nor does Shaughnessy’s comparison of Cleveland’s response times
to response times in other cities, without more context, justify imposing an eight-
business-day deadline on Cleveland. Shaughnessy offers no evidence as to the
manner in which those cities keep, organize or retrieve incident reports or whether
those cities conducted legal review and redaction.
{¶ 16} To be sure, Cleveland could have done things differently. In
conformity with the Public Records Act, Cleveland’s public-records policy states
that if a request is overbroad, the city may deny the request but must inform the
requestor about the manner in which the city keeps and accesses its records so that
the requestor can revise the request. Accord R.C. 149.43(B)(2). If it cannot
immediately fulfill a request, Cleveland’s policy requires it to estimate the time
necessary to do so. Cleveland’s failure to comply with its own policy does not in
itself compel relief in mandamus, however. In Morgan, although the governor’s
office failed to provide the requestor with an estimated response time in
accordance with its policy, we determined that the office otherwise acted
reasonably given the broad scope of the request and the office’s decision to
review records before production. See Morgan, 121 Ohio St.3d 600, 2009-Ohio-
1901, 906 N.E.2d 1105, at ¶ 12-17.
{¶ 17} Similarly, here, Cleveland’s response time of 24 business days was
reasonable given the steps Cleveland took to search for responsive records by
subject matter, exclude the records that Shaughnessy did not want, retrieve and
print each individual police incident report, and then review and redact exempt
information. In the context of these circumstances, Cleveland’s response to the
request at issue in count one was timely.
Count Two
{¶ 18} Count two concerns Shaughnessy’s November 13, 2014, hand-
delivered request for nine specific police incident reports listed by date, address,
and offense. Cleveland produced responsive records 25 business days after
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Shaughnessy’s request. Unlike the request involved in count one, this request did
not require a subject-matter search. As explained above, however, it is not the
initial search but Cleveland’s subsequent retrieval and review of each document
that requires more than a few days. Cleveland was also simultaneously
responding to Shaughnessy’s October 10, 2014 request, which it completed on
November 17, 2014. Given these circumstances, Cleveland’s response was
timely.
Count Three
{¶ 19} Count three concerns Shaughnessy’s January 26, 2015, certified-
mail request for every police incident report from January 8 through January 14,
2015, involving felonious assault or assaults causing serious harm, but excluding
domestic violence, elder abuse by a caregiver or assault upon a minor. Cleveland
received Shaughnessy’s request on January 29, 2015, and on that same day
produced a list of 19 responsive reports. Cleveland produced 68 pages of
responsive records on February 17, 2015, or 12 business days after receipt of
Shaughnessy’s request.
{¶ 20} Once again, Shaughnessy’s request was improper, because it asked
Cleveland to search for records containing select information and excluding other
information. Shaughnessy requested reports that referred to felonious assaults or
assaults causing serious harm and then asked Cleveland to cull out the reports that
involved domestic violence, elder abuse by a caregiver or assault upon a minor.
As in count one, Cleveland could have denied Shaughnessy’s request and asked
him to revise it. But once again, Cleveland obliged him by searching for
responsive records by subject matter, retrieving the search results by police-report
number, excluding the records that he specified, and then reviewing and redacting
exempt information before producing the reports. Given all these steps,
Cleveland’s response was timely.
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Counts Four and Five
{¶ 21} On February 2, 2015, Shaughnessy requested by certified mail
copies of every police incident report made during a seven-day period involving
felonious assault or assaults causing serious harm, but excluding domestic
violence, elder abuse by a caregiver or assault upon a minor. On February 6,
2015, he sent an identical request for reports made during a different seven-day
period. In response to the February 2 request, Cleveland produced 136 pages of
records on March 24, 2015, or 31 business days after Cleveland’s receipt of the
request on February 6, 2015. In response to the February 6 request, Cleveland
produced 141 pages of records on March 25, 2015, also 31 business days after
receipt of the request on February 9, 2015.
{¶ 22} While 31 business days may appear to stretch the outer limits of
reasonableness, we should note that, again, Shaughnessy’s requests were
improper because they asked Cleveland not only to retrieve records containing
selected information but also to cull out the ones that he did not want. In addition,
we have to examine Cleveland’s response time in the context of the frequency and
volume of Shaughnessy’s requests. He submitted three requests in the span of
two weeks. His requests on January 26, February 2, and February 6 combined
resulted in 345 pages of responsive records. And each of these requests required
the city to search for responsive records by subject matter, exclude the records
Shaughnessy did not want, retrieve responsive records by police-report number,
and then review the records for possible redactions. Under these circumstances,
and considering that Shaughnessy’s requests were improper from the outset,
Cleveland’s response time was reasonable.
CONCLUSION
{¶ 23} We conclude that Shaughnessy has not shown that Cleveland had a
clear legal duty to produce, or that he had a clear legal right to receive, the records
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he requested within eight business days. We deny Shaughnessy’s request for a
writ of mandamus and deny his request for statutory damages.
Writ denied.
O’CONNOR, C.J., and PFEIFER, O’DONNELL, LANZINGER, FRENCH, and
O’NEILL, JJ., concur.
KENNEDY, J., dissents, with an opinion.
_________________
Kennedy, J., dissenting.
{¶ 24} When a public office does not reject a public-records request as
being “ambiguous or overly broad” pursuant to R.C. 149.43(B)(2) or deny the
request with explanation pursuant to R.C. 149.43(B)(3), the Public Records Act
requires the public office to produce responsive records in a “reasonable period of
time” given the pertinent facts and circumstances of the case. R.C. 149.43(B)(1);
accord State ex rel. Morgan v. Strickland, 121 Ohio St.3d 600, 2009-Ohio-1901,
906 N.E.2d 1105, ¶ 10. Because relator, Matthew Shaughnessy, complied with
the city of Cleveland’s request form, which asked for the “specific details about
what” the requestor wanted, the public-records requests described in counts 1, 2,
3, 4, and 5 of the complaint were proper. Therefore, I dissent.
{¶ 25} Because the totality of the evidence demonstrates that Cleveland
was capable of identifying, printing, reviewing and redacting, and producing
responsive records within three to five business days, I would hold that the eight-
business-day standard established in State ex rel. Wadd v. Cleveland, 81 Ohio
St.3d 50, 689 N.E.2d 25 (1998) is reasonable. Therefore, I would grant the writ
of mandamus as to counts 1, 2, 3, 4, and 5 of the complaint and order Cleveland
to produce responsive records to future similar written public-records requests
within eight business days. Moreover, I would grant Shaughnessy $2,000 in
statutory damages pursuant to R.C. 149.43(C)(2).
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{¶ 26} “In Ohio, public records are the people’s records, and officials in
whose custody they happen to be are merely trustees for the people; therefore,
anyone may inspect these records at any reasonable time.” State ex rel. Warren
Newspapers, Inc. v. Hutson, 70 Ohio St.3d 619, 640 N.E.2d 174 (1994). To that
end, we have construed the Public Records Act liberally in favor of disclosure of
public records. State ex rel. Rocker v. Guernsey Cty. Sheriff’s Office, 126 Ohio
St.3d 224, 2010-Ohio-3288, 932 N.E.2d 327, ¶ 6.
{¶ 27} To facilitate broad access to public records, the Public Records Act
requires a public office to “organize and maintain public records in a manner that
they can be made available for inspection or copying.” R.C. 149.43(B)(2).
However, it is “ ‘the responsibility of the person who wishes to inspect and/or
copy records to identify with reasonable clarity the records at issue.’ ” State ex
rel. Morgan v. New Lexington, 112 Ohio St.3d 33, 2006-Ohio-6365, 857 N.E.2d
1208, ¶ 29, quoting State ex rel. Fant v. Tober, 8th Dist. Cuyahoga No. 63737,
1993 WL 173743, *1 (Apr. 28, 1993), aff’d, 68 Ohio St.3d 117, 623 N.E.2d 1202(1993).
{¶ 28} “If a requester makes an ambiguous or overly broad request,” then
the public office may deny the request. R.C. 149.43(B)(2). If a request is denied
on this basis, then the public office must give the requestor “an opportunity to
revise the request by informing the requester of the manner in which records are
maintained by the public office and accessed in the ordinary course of the public
office’s or person’s duties.” Id. If the public office “ultimately” denies the
public-records request, the public office must “provide the requester with an
explanation, including legal authority, setting forth why the request was denied.”
R.C. 149.43(B)(3).
{¶ 29} In denying the writ of mandamus, the majority concludes that
Shaughnessy’s requests in counts 1, 3, 4, and 5 of the complaint were improper
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because they required Cleveland to research its database in order to identify
selected information in a subset of records. I disagree.
{¶ 30} The evidence demonstrates that Shaughnessy made all of the
public-records requests at issue on Cleveland’s public-records-request form and
specifically conformed his requests to the requirements of the form, which asked
for, in addition to the requestor’s name and contact information, the “specific
details about what [the requestor wanted], including time frame, locations, etc. (if
applicable).”
{¶ 31} In keeping with the generalized request form, Cleveland’s Public
Records Policy stated that the requestor “must clearly state the records and/or
information being sought to allow the City of Cleveland to identify, retrieve and
review records” and that “[i]f a request is vague and overbroad, the City may
deny the request.”
Count 1
{¶ 32} Shaughnessy sent the request described in Count 1 of the complaint
on October 10, 2014. It stated:
I am an attorney who advocates for crime victims. I would like to
recieve [sic] copies of initial police reports from the first and
second districts for all non domestic violence related aggravated
assaults or assaults where the victims sought medical care at the
hospital. Maybe you can help me with the best way to word this
request to best meet my requirements as I would like to make
requests for this information on a weekly basis and do not want to
cause you unnecessary work. I would like copies of these reports
for Sunday September 21, 2014 through Saturday October 5, 2014.
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{¶ 33} Cleveland’s law department stamped the request received on
October 10, 2014. In response to the request, Cleveland did not indicate that
Shaughnessy’s request was “vague or overbroad.” On the contrary, Nancy
Diemer, a public-records assistant in Cleveland’s law department, responded by e-
mail on October 10, 2014, stating, “In response to your public record request
above, we’ve attached is [sic] a list of all assaults in D1 and D2 for the time
period requested. If you would like this on a weekly basis the information is
available online at: http://clevelandgis.org/pub/index/html?config=crime.xml.”
{¶ 34} After further clarification that Shaughnessy wanted a copy of the
actual police incident reports, on November 17, 2014, Carol A. Harvanek, another
public-records assistant in Cleveland’s law department, sent Shaughnessy an e-
mail that provided a link to the incident reports.
Count 2
{¶ 35} Shaughnessy’s second request, dated November 13, 2014,
requested the “initial * * * Police Report * * * created for the Following
incidents” and thereafter listed nine incidents, setting forth the date, location, and
type of offense for each one. The format of this request—the listing of the nine
incidents by date, location, and offense type—was consistent with the information
retrievable by the hyperlink that Diemer provided to Shaughnessy on October 10,
2014. Cleveland Gis Crime Calls, http://www.clevelandgis.org/pub/
index.html?config=crime.xml (accessed December 14, 2016).
{¶ 36} The law department stamped the request received on November 13,
2014. In response, Cleveland did not indicate that Shaughnessy’s request was
“vague or overbroad.” On December 19, 2014, Harvanek sent Shaughnessy an e-
mail with an electronic file containing the responsive records and indicated that
redactions had been made pursuant to law.
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Counts 3, 4, and 5
{¶ 37} Shaughnessy’s third request, dated January 26, 2015, was worded
differently from the first two requests:
Please provide 1 copy of each police incident report made
by the Cleveland Police Department within the time frame of
January 8, 2015, and January 14, 2015, with regard to the crimes of
Felonious Assault (R.C. 2903.11) and Assaults causing serious
harm (R.C. 2903.13)[.]
For purposes of this request you may omit entirely, without
explanation, any reports with regard to Domestic Violence; Elder
Abuse by caregiver, or assault upon victims who are minors.
This request is not made in preparation of any criminal
defense whatsoever * * *.
Please call if you need any clarification[.]
{¶ 38} The law department stamped the request received on January 29,
2015. Again, Cleveland did not reject Shaughnessy’s request because the request
was “vague or overbroad.” Thereafter, a reported-crimes report was generated for
the date range requested, setting forth the report numbers and locations for 19
incidents of aggravated assault. On February 17, 2015, Harvanek e-mailed
Shaughnessy a link to the responsive documents.
{¶ 39} Shaughnessy’s fourth and fifth requests followed the exact same
format as his third request. The law department stamped the requests received on
February 10, 2015, and February 9, 2015, respectively. Again, Cleveland did not
reject Shaughnessy’s requests because the requests were “vague or overbroad.”
On March 25 and 24, 2015, respectively, Harvanek e-mailed Shaughnessy links to
the responsive documents for his fourth and fifth public-records requests.
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All of Shaughnessy’s public-records requests were proper
{¶ 40} I disagree with the majority’s conclusion that the public-records
requests detailed in counts 1, 3, 4, and 5 of Shaughnessy’s complaint were
“improper,” because I conclude that Shaughnessy specifically complied with the
instructions provided on Cleveland’s public-records-request form. Cleveland has
a standard, generalized form for public-records requests. The form asks
requestors to provide specific information that would enable Cleveland to locate,
retrieve, and review the records sought.
{¶ 41} The majority concludes that Cleveland could have done things
differently—but it didn’t. Cleveland’s public-records form asked requestors to be
specific about the facts of the report being requested and provided, as an example
of the specific information needed, the “time frame” and location of the requested
reports. Cleveland’s public-records policy also required specificity by requiring a
requestor to “clearly state the records and/or information being sought” in order to
allow Cleveland the opportunity to “identify, retrieve and review the records.”
Cleveland did not reject Shaughnessy’s public-records requests as being
“ambiguous or overly broad” under R.C. 149.43(B)(2), ask Shaughnessy to revise
his requests, or deny his request with explanation under R.C. 149.43(B)(3).
{¶ 42} In the majority’s view, this specificity, which Cleveland required,
made the request improper, because Shaughnessy was seeking information from a
subset of records, which required a search of the records. However, as set forth
above, Cleveland’s form and policy specifically asked Shaughnessy for the
specific details of the reports sought. By prompting a requestor to provide details,
Cleveland recognized that every request will seek a subset of police reports, not
all police reports. Moreover, as is demonstrated in this case, because of the way
Cleveland chooses to organize and maintain its records, a search of the record
database is always required in order to provide a subset of the records—whether
that is one report, nine reports, or more. The supplemental affidavit of Kim
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Roberson, a public-records administrator for Cleveland, and the supplemental
exhibits demonstrate that Cleveland does retrieve police-incident-report numbers
based on the type of offense, i.e., “felonious assault and assaults causing serious
harm.”
{¶ 43} Shaughnessy’s public-records request described in count 1asked for
police reports for a specific time period, for a specific location, and for specific
crimes. Cleveland responded with a hyperlink that mapped out the responsive
incidents. When he clarified that he wanted the actual reports and not just the
information provided in the hyperlink, Cleveland followed up with a second e-
mail directing him to a file with the incident reports he sought.
{¶ 44} The request also asked Cleveland to advise Shaughnessy if he was
not wording his request properly and stated that he would make the request
consistent with Cleveland’s wishes. As set forth above, however, Cleveland’s
only response was the production of the responsive records.
{¶ 45} Shaughnessy’s public-records request in count 2 followed the
outline of the information provided in the hyperlink that Cleveland provided to
Shaughnessy in its initial response to his first public-records request. The
majority concludes that this request was proper because “this request did not
require a subject-matter search.” Majority opinion at ¶ 18. However, the majority
misses the point that the information Shaughnessy provided was essentially the
same information that he provided in the request in count 1. Shaughnessy still
specified the records sought by date, location, and offense—which is what
Cleveland’s public-records form required. Moreover, regardless of which request
Cleveland received—the request in count 1 of the complaint or the one in count
2—Cleveland still had to conduct a search of its records to produce a subset of the
entire record. How Cleveland searched the database for the police-incident-report
numbers to fulfill the records request in count 2 of the complaint is unknown and
irrelevant.
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{¶ 46} Moreover, the majority’s conclusion that the request in count 2 was
proper because it “did not require a subject-matter search,” majority opinion at
¶ 18 does not comport with our past precedent, in which we have held that a
request is only improper if it requires a government agency to “search through
voluminous documents for those that contain certain information or to create a
new document by searching for and compiling information from existing
records.” State ex rel. Carr v. London Corr. Inst., 144 Ohio St.3d 211, 2015-
Ohio-2363, 41 N.E.3d 1203, ¶ 22, citing State ex rel. Morgan v. New Lexington,
112 Ohio St.3d 33, 2006-Ohio-6365, 857 N.E.2d 1208, ¶ 30-31, 35, and State ex
rel. Kerner v. State Teachers Retirement Bd., 82 Ohio St.3d 273, 274, 695 N.E.2d
256 (1998). Our precedent does not disallow requests for records that require
subject-matter searches.
{¶ 47} By finding the request in count 2 proper, the majority admits that a
request for a specific subset of incident reports is permissible. It appears then that
the majority views the requirement of “a subject-matter search” as the crucial
factor that determines whether or not a request is proper. The only difference
between Shaughnessy’s request in count 2 and the requests at issue in counts 1, 3,
4, and 5 is that the request in count 2 listed the nine incidents by a specific date,
specific location, and offense type for each police incident report requested, while
the other requests listed a date by range, location by district, and offense type for
each police incident report requested.
{¶ 48} Shaughnessy’s request described in count 3, while worded
differently, still provided Cleveland with the same general information that the
city’s form requested and that Shaughnessy had provided in the requests set forth
in counts 1 and 2 of the complaint. Shaughnessy’s requests in counts 4 and 5
mirrored the request in count 3.
{¶ 49} The requests in counts 3, 4, and 5 of the complaint also gave
Cleveland discretion not to provide reports involving domestic violence, elder
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abuse by a caregiver, or assault of a juvenile. Importantly, Shaughnessy stated
that Cleveland “may omit entirely” these categories. Use of the term “may”
should be construed as permissive, not mandatory. In re Application of Ormet
Primary Aluminum Corp., 129 Ohio St.3d 9, 2011-Ohio-2377, 949 N.E.2d 991,
¶ 17. Therefore, it was within the discretion of Cleveland to cull out those records
or not to cull out those records.
{¶ 50} In reaching the conclusion that Wadd is “inapposite,” majority
opinion at ¶ 14, the majority focuses on the fact that Wadd wanted a single day’s
worth of vehicle crash reports while Shaughnessy requested a series of reports.
However, this conclusion is contrary to Cleveland’s own admission that it has
identified documents responsive to Shaughnessy’s requests on the same day that
his requests have been made. And it is contrary to the evidence that Cleveland
produced nine police incident reports in 20 minutes when a request (which was
not included in Shaughnessy’s complaint) was made in person. It was only when
Shaughnessy made a written request for nine police incident reports that
Cleveland took 26 days to produce the responsive records.
{¶ 51} Moreover, the majority concludes that Shaughnessy’s similar
requests to other large metropolitan police departments cannot “justify” imposing
the Wadd eight-business-day requirement on Cleveland “without more context”
because Shaughnessy does not offer “evidence as to the manner in which those
cities keep, organize or retrieve incident reports or whether those cities conduct
legal review and redaction.” Majority opinion at ¶ 15. While I agree that the
record is silent as to how these other cities store police incident reports or whether
they conduct legal review and redaction of responsive records, the most
reasonable interpretation of this silence is not that these other police departments
have ignored their obligations under the Public Records Act but that these cities
have created efficient processes that ensure records are produced in a reasonable
amount of time with protected information shielded from disclosure.
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{¶ 52} Shaughnessy submitted evidence showing that the Cincinnati
Police Department provided all police incident reports involving felonious
assaults and assaults causing serious harm committed within a one-week time
period within two days of Shaughnessy’s request. Likewise, the Columbus
Division of Police provided all police incident reports involving felonious assaults
and assaults causing serious harm committed within a two-week period, for a total
of 399 pages of records, within one day of Shaughnessy’s request. The
responsive-record production from Columbus is far larger than any of the
responsive-record productions from Cleveland, which were 68 pages, 136 pages,
141 pages, and likely less than 50 pages, respectively. Yet it took Columbus one
day and Cleveland anywhere from 12 to 31 days to respond to Shaughnessy’s
written public-records requests.
{¶ 53} The Canton Police Department provided all police incident reports
involving felonious assaults committed within a 30-day period on the same day of
the request, for a total of 30 responsive pages. The city of Akron posts police
incident reports online within a few days of the incident, and as a result,
Shaughnessy does not need to make individual public-records requests of Akron.
{¶ 54} Shaughnessy has demonstrated that Cleveland should be able to
produce the requested records within three to five business days. Specifically,
Cleveland admitted in its answer that it can identify responsive records on the
same day they are requested. And Shaughnessy’s supplemental affidavit and its
exhibits show that the remaining steps have been completed in two to four
business days. Exhibits I, J, and K show the dates on which the reports were
printed and also the dates they were e-mailed to Shaughnessy. The time in
between is presumably the time for review and redaction, which is two to four
days. Therefore, Cleveland should be able to produce records within three to five
business days.
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{¶ 55} Moreover, while the majority concludes that Shaughnessy’s
requests in counts 1, 3, 4, and 5 were improper, it is noteworthy that
Shaughnessy’s requests to the other large metropolitan police departments
mirrored his requests to Cleveland, with the exception that he sought all
responsive police reports made throughout those cities, while his request to
Cleveland was limited to districts one and two.
{¶ 56} Just as in Wadd, I believe the time other cities take to respond to
similar requests and the way Cleveland responded to Shaughnessy’s requests after
the mandamus action was filed are pertinent facts that provide an illustrative
standard for a “reasonable” time for responding to a public-records request. See
Wadd, 81 Ohio St.3d at 53, 689 N.E.2d, 25. In light of all the pertinent facts, I
believe that the eight-business-day standard of Wadd is applicable here.
{¶ 57} Additionally, the majority’s reliance on Fant, 8th Dist. Cuyahoga
No. 63737, 1993 WL 173743, is misplaced. As the Fant court recognized, the
public-records requestor did not request a specific record. Id. at *1. Instead, he
requested “information,” specifically, the “names, payroll numbers, residential
mailing addresses, and dates of employment” of certain bus operators. Id. Here,
Shaughnessy requested police incident reports. Shaughnessy did not ask for
information from the police incident reports. Cleveland did, however, ask
Shaughnessy for specific information about his request (i.e. date and location) in
order to fulfill that request.
{¶ 58} Seemingly, the majority places great emphasis on the procedural
process that Cleveland undertakes to produce records responsive to
Shaughnessy’s requests. However, all public offices will engage in some rote
process of locating, retrieving, and reviewing a public record prior to release to a
requestor. The process that Cleveland has designed and implemented, which
includes checks and balances to ensure that a records request does not slip
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through the cracks, is not at issue. The length of time that Cleveland takes in
completing that process when the request is made in writing is the issue.
{¶ 59} While the facts are distinguishable because of the length of the
delay and the type of records sought, this court should nevertheless adopt the legal
reasoning of the Twelfth District Court of Appeals in State ex rel. Hartkemeyer v.
Fairfield Twp., 12th Dist. Butler No. CA2012-04-080, 2012-Ohio-5842. In
Hartkemeyer, a resident of Fairfield Township made a public-records request on
July 27, 2011, via certified mail, for the following public records maintained by
Fairfield Township:
(1) audio recordings of all meetings of the Fairfield Township
Board of Trustees from May 1 through July 27, 2011, (2) meeting
minutes from all meetings of the Fairfield Township Board of
Trustees from May 1 through July 27, 2011, and (3) meeting
agendas from all meetings of the Fairfield Township Board of
Trustees from May 1 through July 27, 2011.
Id. at ¶ 3.
{¶ 60} The assistant township administrator acknowledged receipt of the
public-records request via e-mail, and she stated, “I * * * will make the items
available to you as soon as possible.” Id. at ¶ 4. In October 2011, Fairfield
Township provided some of the requested records. Id. at ¶ 8. After some back-
forth between the requestor and the township, the township finally provided all of
the remaining responsive records on July 20, 2012, after the requestor had already
filed a complaint for a writ of mandamus. Id. at ¶ 10.
{¶ 61} In granting the writ, the Twelfth District rejected Fairfield
Township’s argument that the burdensome nature of the public-records requests
excused its tardy response:
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The statute does not offer exceptions to public offices that are
understaffed or otherwise unable to comply with the statutory
mandates because of the way the entity chooses to use its
resources. While such circumstances may be considered to a
limited degree when determining the reasonableness of a public
office’s response, the statute itself gives little latitude to
circumventing the affirmative responsibilities placed upon those
that maintain public records.
Id. at ¶ 26. The majority accepts essentially the same argument from Cleveland
that Fairfield Township made in Hartkemeyer. The majority excuses Cleveland’s
late response, stating that Shaughnessy’s “frequent requests * * * containing
specific retrieval criteria, to cull out certain records” made Cleveland’s response
timely. Majority opinion at ¶ 8. The burden that a specific request places on a
public entity cannot, in isolation, make a delay in responding to the request
reasonable.
{¶ 62} In Hartkemeyer, the Twelfth District also considered that the
public-records request was confusing and that some of the requested meeting
minutes were not available. Hartkemeyer, 2012-Ohio-5842, at ¶ 27-28. This is
similar to the majority’s conclusion that Shaughnessy’s requests were improper
because they “required Cleveland to do research for Shaughnessy and to identify a
specific subset of records containing selected information.” Majority opinion at
¶ 10. The Twelfth District in Hartkemeyer found it determinative that “[t]he
township never informed relator that it did not understand the July 27 request or
that it found the request ambiguous or overly broad.” Hartkemeyer at ¶ 27.
Likewise, this court should not excuse Cleveland’s slow response because
Shaughnessy’s requests were “improper.” Cleveland could have denied the
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requests, but it did not. As a result, we should ensure that Cleveland “promptly”
produces requested records. In the end, I predict that the long-term effect of the
majority’s decision will be that Cleveland will endure more expansive, time-
consuming public-records requests.
{¶ 63} The majority does not explain the distinction that it makes between
the requests described in counts 1, 3, 4, and 5 of the complaint, which were
deemed improper, and the one set forth in count 2 of the complaint, which it
deemed proper, other than to state that the request in count 2 did not request a
search by offense. It is undeniably apparent, however, from the majority’s
statement of Cleveland’s procedural process, that in order to fulfill the public-
records request described in count 2 of the complaint, Cleveland had to conduct a
search of the database using the information that Shaughnessy had provided (i.e.,
the date, location, and type of offense) to obtain each offense-report number in
order to retrieve the actual incident reports. The distinction between a more-
general request giving a time frame, a location by district, and a type of offense
versus a more-specific request providing a date, address, and type of offense is a
distinction without a difference. In both cases, Cleveland must conduct a search
of the database to find the police-incident-report numbers.
{¶ 64} Because Shaughnessy used Cleveland’s public-records-request
form and provided Cleveland with the specific information for the records he
sought and Cleveland did not reject the request as being vague or overly broad,
ask Shaughnessy to revise his request, or deny the request with explanation, the
public-records requests in counts 1, 2, 3, 4, and 5 of the complaint were proper.
Therefore, I dissent. Because the totality of the evidence demonstrates that
Cleveland has the ability to prepare records responsive to requests similar to those
in counts 1, 2, 3, 4, and 5 of the complaint in three to five days, I would hold that
the eight-business-day standard established in Wadd is reasonable. Therefore, I
would grant the writ of mandamus as to counts 1, 2, 3, 4, and 5 of the complaint
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and order Cleveland to produce responsive records to future similar written
public-records requests within eight business days. Moreover, I would grant
Shaughnessy $2,000 in statutory damages pursuant to R.C. 149.43(C)(2).
_________________
Matthew Shaughnessy, pro se.
Barbara A. Langhenry, Cleveland Director of Law, and Shawn M.
Mallamad, Assistant Director of Law, for respondents.
_________________
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