State ex rel. Conley v. Park

[Cite as State ex rel. Conley v. Park, 2016-Ohio-5199.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
STATE EX REL. CRAIG T. CONLEY : Hon. W. Scott Gwin, P.J.
: Hon. Sheila G. Farmer, J.
Relator : Hon. Patricia A. Delaney, J.
:
-vs- :
: Case No. 2014CA00169
DIXIE N. PARK, JUDGE AND CLERK :
STARK COUNTY COURT OF :
COMMON PLEAS, PROBATE : OPINION
DIVISION
Respondent
CHARACTER OF PROCEEDING: Mandamus Public Records
JUDGMENT: Dismissed
DATE OF JUDGMENT ENTRY: August 1, 2016
APPEARANCES:
For Relator For Respondent
CRAIG T. CONLEY JOHN FERRERO
220 MARKET AVENUE SOUTH BY ROSS RHODES
SUITE 604 110 CENTRAL PLAZA S., STE. 510
CANTON, OH 44702 CANTON, OH 44702
Stark County, Case No. 2014CA00169 2
Gwin, P.J.
PROCEDURAL HISTORY:
{¶1} This cause came before this Court upon a Complaint for Writ of Mandamus
based upon Respondent’s alleged failure to supply records pursuant to a public records
request as required under the Rules of Superintendence. Upon review of the Complaint
filed in this case, we issued a peremptory writ ordering Respondent to respond to a public
records request.
{¶2} Respondent appealed to the Supreme Court. The Supreme Court reversed
this Court holding, “The court of appeals acted prematurely by issuing a writ ordering
Judge Park to produce the requested documents before she had a chance to explain the
reasoning behind her refusal to treat the faxed letter as a public-records request.” State
ex rel. Conley v. Park, 2015-Ohio-5226, ¶ 10 (Ohio).1
{¶3} Upon remand, Respondent has filed a motion to dismiss for failure to state
a claim upon which relief may granted. Both parties have filed motions for summary
judgment.
FACTS:
September 4, 2014
{¶4} On September 4, 2014, Relator faxed a public records request to
Respondent requesting copies of narrative reports from Dr. Robert Devies. According to
the court’s docket, the narrative reports were listed as attachments to Dr. Devies’ Expert
Evaluations filed on July 30, 2014 and August 6, 2014. In his public records request,
1
Respondent denies failing to treat the faxed request as a public records request. She maintains that her letter,
enclosing the faxed request and advising Relator that faxed filings were not accepted without prior approval, was
not a denial of the request.
Stark County, Case No. 2014CA00169 3
Relator explained that he had gone to the public computer terminals in the probate court
but was unable to access narrative reports which were referenced on the court’s docket.
{¶5} Upon receipt of the fax, Respondent sent Relator a letter that same day
wherein she returned Relator’s request and indicated faxed filings were not permitted
without prior court approval.
September 9, 2014
{¶6} Relator faxed a letter to Respondent stating, “I take your letter and attendant
return of my public records request to be a refusal to comply with Sup R 45(B)(1) and
therefore will very promptly avail myself of the remedy set forth in Sup R 47(B).”
{¶7} Respondent sent a second letter reiterating the fax filing prohibition but also
advising Relator that the requested records were available for viewing at the court’s public
computer terminals. The letter also advised Relator that the file was available at the court
for his review. Finally, the letter informed Relator that a portion of the records sought
were not available because “facsimile transmission cover pages/letters are not docketed.”
{¶8} Respondent’s letter appears to have been mailed. There is no indication
the letter was faxed to Relator.
September 10, 2014
{¶9} Relator filed the instant “Verified Complaint for Writ of Mandamus.”
According to a letter sent to the Stark County Prosecutor who is counsel for Respondent,
Relator acknowledged receipt of Respondent’s September 9, 2014 letter only after he
had already filed the Complaint for Writ of Mandamus.
Stark County, Case No. 2014CA00169 4
September 23, 2014
{¶10} This Court issued a peremptory writ of mandamus requiring Respondent to
respond to the public records request.
September 25, 2014
{¶11} Respondent mailed copies of the documents requested and repeated her
explanation as to the nonexistence of the fax cover sheets.
I.
{¶12} Respondent urges this Court to dismiss the complaint based upon
mootness as the records were made available via the September 9, 2014 letter. Relator
argues an exception to the mootness doctrine exists because the circumstances
presented herein are capable of repetition.
{¶13} Relator also argues not all of the records requested have been provided
because Respondent has not provided requested copies of fax cover sheets. Therefore,
it is Relator’s position that Respondent has not fully complied with the public records
request. Further, Relator maintains Respondent unlawfully destroyed records namely the
fax cover sheets.
Fax Cover Sheets
{¶14} We find the fax cover sheets are not public records once they have been
destroyed in the normal course of business.
{¶15} Superintendence Rule 26.01(E) provides, “Correspondence and general
office records: Correspondence and general office records, including all sent and
received correspondence, in any medium, may be destroyed in the normal course of
Stark County, Case No. 2014CA00169 5
business as soon as they are considered to be of no value by the person holding the
records.”
{¶16} According to her affidavit, Respondent does not retain fax cover sheets. We
find Respondent’s destruction of the fax cover sheets complies with Sup.R. 26.01(E).
Because they are not retained, they no longer exist. Respondent has “no duty to create
or provide access to nonexistent records.” State ex rel. Lanham v. Smith, 112 Ohio St. 3d
527, 2007-Ohio-609, 861 N.E.2d 530, ¶ 15.
Mootness
{¶17} “The law provides that a respondent meets its burden of proving that a
public records claim is moot by providing an affidavit that the requested public records
have been provided. State ex rel. Toledo Blade Co. v. Toledo–Lucas Cty. Port Auth., 121
Ohio St. 3d at 540, 905 N.E.2d 1221.” State ex rel. Strothers v. Keenon, 8th Dist.
Cuyahoga No. 103313, 2016-Ohio-405, ¶ 40.
{¶18} Respondent has filed an affidavit stating all requested records in her
possession have been provided to Relator.
{¶19} As to whether this case presents circumstances which qualify under the
exception to mootness, “This exception applies only in exceptional circumstances in
which the following two factors are both present: (1) the challenged action is too short in
duration to be fully litigated before its cessation or expiration, and (2) there is a reasonable
expectation that the same complaining party will be subject to the same action again.”
(Emphasis added.) State ex rel. Calvary v. Upper Arlington (2000), 89 Ohio St. 3d 229,
231, 729 N.E.2d 1182.” State ex rel. Cincinnati Enquirer v. Ronan, 124 Ohio St. 3d 17,
18, 2009-Ohio-5947, 918 N.E.2d 515, 516-17, ¶ 5 (2009).
Stark County, Case No. 2014CA00169 6
{¶20} In support of his contention that an exception to mootness exists, Relator
points out this is the second complaint regarding public records he has filed against
Respondent. The first action was voluntarily dismissed by Relator after the requested
records were supplied.
{¶21} We do not find the exception to mootness applies based upon one prior
filing of a complaint. In both instances, Respondent did provide the requested records.
{¶22} Because the requested records have been provided and because no
exception to mootness exists, we dismiss the complaint on the basis of mootness.
By Gwin, P.J.,
Farmer, J., and
Delaney, J., concur