State ex rel. McDougald v. Sehlmeyer (Slip Opinion)

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
ex rel. McDougald v. Sehlmeyer, Slip Opinion No. 2021-Ohio-666.]
NOTICE
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advance sheet of the Ohio Official Reports. Readers are requested to
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South Front Street, Columbus, Ohio 43215, of any typographical or other
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SLIP OPINION NO. 2021-OHIO-666THE STATE EX REL. MCDOUGALD v. SEHLMEYER.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as State ex rel. McDougald v. Sehlmeyer, Slip Opinion No.
2021-Ohio-666.]
Mandamus—Public Records Act—A public office has no duty to permit the
inspection of a public record when the inspection would endanger the safety
of the records or unreasonably interfere with the discharge of the duties of
the officer having custody of the same—Writ denied.
(No. 2020-0349—Submitted January 12, 2021—Decided March 10, 2021.)
IN MANDAMUS.
__________________
Per Curiam.
{¶ 1} Relator, Jerone McDougald, an inmate at the Toledo Correctional
Institution (“TCI”), seeks a writ of mandamus to compel respondent, Sonrisa
Sehlmeyer, the public-records custodian at TCI, to make available for inspection a
video of a use-of-force incident. Because Sehlmeyer has presented evidence
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supporting her claim that allowing McDougald to inspect the video would create
undue security risks, we deny the writ.
Background
{¶ 2} On January 22, 2020, McDougald sent a public-records request to
Sehlmeyer asking to inspect video-surveillance footage of a use-of-force incident
involving him that had occurred ten days earlier. Sehlmeyer responded to
McDougald in writing on January 28, 2020, telling him that the video was available
but that TCI “does not allow offenders to have possession of” a compact disc
(“CD”) “as stated in ORC. 2921.36(E).” That statute makes it a crime to knowingly
convey a cellular telephone, two-way radio, or other electronic-communications
device to a prison inmate; it does not mention videos or CDs. McDougald
responded to Sehlmeyer several days later, informing her that he had asked to
inspect the video, not to obtain a copy of it. McDougald alleges that he did not
receive any further response from Sehlmeyer regarding his request.
{¶ 3} McDougald filed this original action asking this court to compel
Sehlmeyer to allow him to inspect the video. We issued an alternative writ and
ordered the parties to submit evidence and file briefs in accordance with
S.Ct.Prac.R. 12.05. 158 Ohio St.3d 1526, 2020-Ohio-3016, 145 N.E.3d 322.
{¶ 4} Sehlmeyer submitted evidence showing that McDougald has an
extensive history of committing rule infractions at TCI, including threatening
bodily harm to correctional officers, spitting at correctional officers, and throwing
urine toward prison staff. In an affidavit, Sehlmeyer states that the Department of
Rehabilitation and Correction (“DRC”) informed McDougald “that he would not
be permitted to inspect the requested records due to his lengthy history of
destructive violence and [because he is a] high security risk.” She further stated
that “[d]ue to Inmate McDougald’s history of rule violations and high security
classification, extensive measures would need to be taken to permit him to inspect
records, and it is believed that he poses a serious risk of destroying those records.”
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January Term, 2021
Analysis
Evidentiary motion
{¶ 5} When we granted an alternative writ in this case, we ordered the parties
to file any evidence they intended to present by June 16, 2020. 158 Ohio St.3d 1526,
2020-Ohio-3016, 145 N.E.3d. 322. Although McDougald did not separately file
evidence by the deadline, he had attached to his complaint an affidavit and a copy of
his public-records request. He filed a motion on June 24, 2020, asking the court to
consider those documents as evidence. He contends that the COVID-19 pandemic
caused mail-processing delays within the prison, preventing him from separately
filing evidence by the deadline. Sehlmeyer opposes the motion, arguing in her merit
brief that McDougald has “failed to file any evidence in support of his complaint as
instructed by the Court.”
{¶ 6} S.Ct.Prac.R. 12.06 provides that “evidence shall be submitted by
affidavits, stipulations, depositions, and exhibits. * * * Sworn or certified copies
of all papers or parts of papers referred to in an affidavit shall be attached.” The
affidavit McDougald filed with his complaint qualifies as evidence under this rule.
Sehlmeyer offers no support for her claim that McDougald had to refile the affidavit
after we granted the alternative writ for it to be considered as evidence.
{¶ 7} It is less clear whether the public-records request that McDougald
attached to the complaint was properly submitted as evidence, because McDougald
did not authenticate that document in his affidavit. But there is no real dispute about
the substance of the public-records request. In fact, Sehlmeyer herself identified the
document in her answer, and she referred to the request in her own affidavit. Under
these circumstances, we grant McDougald’s motion and consider as evidence all the
documents attached to his complaint.
The public-records claim
{¶ 8} R.C. 149.43(B)(1) requires a public office, upon request, to make a
public record available for inspection. A person who is denied access to a public
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record may seek to compel its production through a mandamus action. R.C.
149.43(C)(1)(b). To prevail on such a claim, the requester must establish by clear
and convincing evidence a clear legal right to the record and a corresponding clear
legal duty on the part of the respondent to provide it. State ex rel. Am. Civ. Liberties
Union of Ohio, Inc. v. Cuyahoga Cty. Bd. of Commrs., 128 Ohio St.3d 256, 2011-
Ohio-625, 943 N.E.2d 553, ¶ 22-24; State ex rel. Cincinnati Enquirer v. Deters, 148
Ohio St.3d 595, 2016-Ohio-8195, 71 N.E.3d 1076, ¶ 19.
{¶ 9} A “public record” is a record “kept by any public office.” R.C.
149.43(A)(1). There is no question that the video McDougald has asked to inspect
is a public record. See R.C. 149.011(G); State ex rel. Rogers v. Dept. of Rehab. &
Corr., 155 Ohio St.3d 545, 2018-Ohio-5111, 122 N.E.3d 1208, ¶ 6-7. In fact,
Sehlmeyer concedes that DRC usually allows inmates to review video footage.
{¶ 10} Sehlmeyer nevertheless asks us to deny mandamus relief in this case
because allowing McDougald to inspect the video would pose too great a risk to the
order and safety of the prison.1 She relies on State ex rel. Patterson v. Ayers, 171
Ohio St. 369, 171 N.E.2d 508 (1960), in which we adopted the rule that a public
office has no duty to permit the inspection of a public record when the inspection
would “endanger the safety of the records or unreasonably interfere with the
discharge of the duties of the officer having custody of the same.” Id. at paragraph
one of the syllabus. She also cites Bell v. Wolfish, 441 U.S. 520, 547, 99 S.Ct. 1861,
60 L.Ed.2d 447 (1979), which recognized, in the context of a constitutional
challenge to the conditions of confinement, that prison officials “should be accorded
wide-ranging deference in the adoption and execution of policies and practices that
1. Sehlmeyer initially told McDougald that she was denying his request under R.C. 2921.36(E), which
prohibits the conveyance of a communications device to a prison inmate. That statute does not support
Sehlmeyer’s decision, and she does not rely on it in this case. Under R.C. 149.43(B)(3), however,
Sehlmeyer may “rely * * * upon additional reasons or legal authority in defending” this mandamus
action.
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January Term, 2021
in their judgment are needed to preserve internal order and discipline and to maintain
institutional security.”
{¶ 11} Sehlmeyer’s argument is consistent with a recent case in which we
permitted her to deny another request by McDougald to inspect a public record
because “doing so would create security issues, unreasonably interfere with the
[prison] officials’ discharge of their duties, and violate prison rules.” State ex rel.
McDougald v. Sehlmeyer, __ Ohio St.3d __, 2020-Ohio-3927, __ N.E.3d __, ¶ 14.
In applying the security-risk exception, we have noted that “ ‘prison administrators
must be accorded deference in adopting * * * policies and practices to preserve
internal order and to maintain institutional security.’ ” (Ellipsis added in Dehler.)
State ex rel. Dehler v. Mohr, 129 Ohio St.3d 37, 2011-Ohio-959, 950 N.E.2d 156,
¶ 2, quoting Briscoe v. Ohio Dept. of Rehab. & Corr., 10th Dist. Franklin No.
02AP-1109, 2003-Ohio-3533, ¶ 16.
{¶ 12} Sehlmeyer states that in evaluating McDougald’s request, she
considered his security classification, housing assignment, and the many rule
infractions he had committed. She submitted evidence showing that from January
2019 to June 2020, McDougald was cited at least 16 times for rule infractions,
including having threatened bodily harm to correctional officers and throwing or
expelling bodily fluids toward prison staff. She argues that allowing McDougald to
inspect the video “would require multiple correctional officers to oversee the process,
and this still could not guarantee the safety of the records.” McDougald, for his part,
does not dispute his significant history of infractions, but he argues that it is irrelevant
because any misconduct was unrelated to the inspection of public records.
{¶ 13} Sehlmeyer’s claim that McDougald could destroy the video while
inspecting it is questionable: Although it is not hard to imagine ways that he could
destroy original paper records, he would not need to have physical contact with any
electronic equipment or the video recording itself to be able to watch it. But
Sehlmeyer has shown that allowing McDougald to inspect the video would be
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disruptive and create security risks within the prison. We therefore hold that
Sehlmeyer does not have a clear legal duty to allow McDougald to inspect the video.
{¶ 14} McDougald’s requests for statutory damages and court costs are
denied.
Writ denied.
O’CONNOR, C.J., and KENNEDY, FISCHER, DEWINE, DONNELLY, STEWART,
and BRUNNER, JJ., concur.
_________________
Jerone McDougald, pro se.
Dave Yost, Ohio Attorney General, and Lori H. Duckworth, Assistant
Attorney General, for respondent.
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