State ex rel. Harris v. Rose

[Cite as State ex rel. Harris v. Rose, 2022-Ohio-3729.]
COURT OF APPEALS
RICHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE EX REL. BYRON HARRIS : JUDGES:
:
: Hon. John W. Wise, P.J.
Relator : Hon. Patricia A. Delaney, J.
: Hon. Craig R. Baldwin, J.
-vs- :
: Case No. 2022 CA 0022
:
KELLY ROSE :
:
:
Respondent : OPINION
CHARACTER OF PROCEEDING: Complaint for Writ of Mandamus
JUDGMENT: Granted in part and dismissed in part
DATE OF JUDGMENT ENTRY: October 19, 2022
APPEARANCES:
For: Relator For: Respondent
Byron Harris #690-477 Dave Yost
North Central Correctional Complex Ohio Attorney General
PO Box 1812 George Horvath
Marion, Ohio 43301 Kelly Becker
Assistant Attorney Generals
Criminal Justice Section
Corrections Litigation Unit
30 East Broad Street, 23rd Floor
Columbus, Ohio 43215
Richland County, Case No. 2022 CA 0022 2
Delaney, J.
{¶1} On February 28, 2022, Relator Byron Harris filed a Complaint for Writ of
Mandamus against Respondent Kelly Rose, Richland Correctional Institution. Harris
seeks to compel Rose to produce certain records and video surveillance recordings.
I. Factual background
{¶2} In his Complaint, Harris alleges he was moved to Restricted Housing on
November 16, 2021, while housed at the Richland Correctional Institution (“RICI”).
Restricted Housing allows a limited amount of property so Harris requested that his
property be moved from the housing unit to RICI’s property vault. On November 28, 2021,
a sprinkler broke and allegedly damaged several items of Harris’s property. At the time of
the flooding, Harris claims his property was in the custody of RICI Sergeant Abrams.
Harris did not learn of the alleged damage to his property until he was moved to North
Central Correctional Complex (“NCCC”).
{¶3} On December 14, 2021, Harris used the institution’s electronic system of
communication, JPay, to correspond with RICI prison officials regarding his alleged
destroyed property. On December 21, 2021, Harris transmitted a public records request
to Rose, in an electronic grievance via JPay, requesting the following: (1) the camera
footage for November 28, 2021; (2) the camera footage for December 10, 2021.
{¶4} Rose responded on December 22, 2021, allegedly ignoring Harris’s public
records request but asking him to produce his property as evidence. Thereafter, on
January 10, 2022, Harris asserted the camera footage is proof to support his claim. On
January 11, 2022, NCCC Unit Manager, Jones, took pictures of Harris’s damaged
property and sent the evidence to Rose.
Richland County, Case No. 2022 CA 0022 3
{¶5} Harris alleges on January 27, 2022, Rose sent a message indicating he
knew Harris’s property was damaged, but allegedly failed to acknowledge the public
records request. On January 13, 2022, Harris sent Rose a public records request by
certified mail. Harris requested the following information: “1) Camera footage from 12-10-
21 TPU hallway RH-Range; 2) Camera footage from 11/16/21 Location 5 upper correction
officer desk at 2:00 A.M. until 2:45; 3) Incident Report on or about 11.28.21; 4) Incident
Report on 11/16/21 from officer Mrs. Coffman M; 5) All Report’s (sic) Incident
documentation from LT Sipes the R.I.B. Board Officer on 11/16/21, 11/17/21, 11/19/21;
6) E-Mails from correctional officer Coffman M. to R.I.B. officer chairman LT Sipes.” RICI
received the request on January 25, 2022 and responded accordingly.
{¶6} In response to Harris’s Complaint, Rose filed an Answer and Affirmative
Defenses on April 28, 2022. On May 3, 2022, the Court issued a Judgment Entry ordering
the submission of evidence and briefs. On May 27, 2022, Rose filed a Motion for
Extension of Time to Submit Evidence. The Court granted the motion on June 3, 2022,
and simultaneously issued an amended scheduling order for the submission of evidence
and briefs.
{¶7} On June 16, 2022, Harris filed a Motion for Extension of Time to File
Appellant Brief. On this same date, Rose filed his evidence. The evidence includes an
affidavit from Michelle Turner, the warden’s assistant and public records coordinator for
RICI. The Court granted Harris’s motion on June 29, 2022, and issued an amended
scheduling order for the submission of evidence and briefs. The Court indicated no further
extensions would be granted. On July 29, 2022, Harris filed Instanter Pursuant to Civil
Rule 6(B) Exscusable (sic) Delay Beyond Relator (sic) Control and Instanter Pursuant to
Richland County, Case No. 2022 CA 0022 4
Civ. Rule 6B (sic) Denial Access to Court. The Court denied these motions on August 2,
2022. On August 1, 2022, Harris filed a Motion Requesting Preliminary Injunctions Denial
of Access to Legal Matrials (sic) Needed to Meet Deadline Total Disreguard (sic) to
Pending Legal or Active Case’s (sic) after Being Notified. The Court denied this motion
on August 3, 2022. On August 19, 2022, Harris filed Instataner (sic) Purusuant (sic) to
Civ (sic) Rule (6B) (sic) Were (sic) a Delay Was Caused and Outta (sic) of Relator Controll
(sic) Notice of Change of Address. The motion again requested an extension of time,
which we denied in a Judgment Entry filed on August 29, 2022.
{¶8} Thereafter, Rose filed a Brief in Opposition to Relator-Inmate Harris’
Complaint for Mandamus on August 22, 2022. Harris filed his Brief & Response & Reply
to respondent’s (sic) brief & Evidence Instatainer (sic) Persuant (sic) to Civl (sic) (R) (sic)
6(B) on September 12, 2022.
II. ANALYSIS
{¶9} Mandamus is the appropriate remedy to compel compliance with the Public
Records Act. R.C. 149.43(C)(1)(b). To be entitled to mandamus relief, Harris must
demonstrate by clear and convincing evidence that he has a clear legal right to the
requested relief and that Rose has a clear legal duty to provide it. State ex rel. Cincinnati
Enquirer v. Sage, 142 Ohio St.3d 392, 2015-Ohio-974, 31 N.E.3d 616, ¶ 10. “Clear and
convincing evidence” is a measure or degree of proof that is more than a preponderance
of the evidence but less than the beyond-a-reasonable-doubt standard required in a
criminal case. State ex rel. Miller v. Ohio State Hwy. Patrol, 136 Ohio St.3d 350, 2013-
Richland County, Case No. 2022 CA 0022 5
Ohio-3720, 995 N.E.2d 1175, ¶ 14. Such evidence produces in the trier of fact’s mind a
firm belief of the fact sought to be established. Id.{¶10} Harris bears the burden to plead and prove facts showing that he requested
a public record pursuant to R.C. 149.43(B)(1) and that Rose did not make the record
available. Welsh-Huggins v. Jefferson Cty. Prosecutor’s Office, 163 Ohio St.3d 337,
2020-Ohio-5371, 170 N.E.3d 768, ¶ 26. Finally, the Public Records Act is construed
liberally and any doubt resolved in favor of disclosure of public records. State ex rel.
Cincinnati Enquirer v. Hamilton Cty., 75 Ohio St.3d 374, 376, 662 N.E.2d 334 (1996).
A. The December 21, 2021 Request
{¶11} On December 21, 2021, Harris sent the following public records request
via JPay:
mr. sipes is awere (sic) of the water sprinkler being busted in restricted
housing on 11/28/21 from 2:00 a.m. untill (sic) 8:00 a.m. that morning my
legal property was in the office on the floor in stg abrams office i have
retain (sic) legal counsel and requet (sic) a public records request for the
camera footage on this date and the date my legal mail was brought down
for my inspection on 12/10/21 * * *
(Emphasis added.) See Complaint for Writ of Mandamus, Exhibit B.
{¶12} In Turner’s Affidavit, submitted as Exhibit A as part of Respondent’s
evidence, Turner characterizes Harris’s December 21, 2021 request as an “electronic
grievance” and avers “[t]his system is not intended to accommodate public records
request (sic). There are two separate and distinct functions. Inmates may use electronic
kites or mail to address public records requests to ODRC staff.” Respondent’s Evidence,
Richland County, Case No. 2022 CA 0022 6
Exhibit A, Turner Affidavit, ¶ 13. Turner does not allege that Harris did not use the JPay
system in submitting his public records request but rather the JPay system may not be
used for such requests.
{¶13} This statement by Turner is incorrect. The Ohio Supreme Court recently
held in State ex rel. Griffin v. Sehlmeyer, 165 Ohio St.3d 315, 2021-Ohio-1419, 179
N.E.3d 60, ¶ 21: “The evidence in this case shows that Griffin used ‘JPay,’ a different
system that allowed him to transmit his kite electronically. We hold that Griffin made his
request by electronic submission and satisfied the transmission requirement under R.C.
149.43(C)(2).” Based on the Griffin decision, we find Harris properly presented his public
records request via JPay.
{¶14} The next question becomes whether Rose had public records in his
possession that were responsive to Harris’s December 21, 2021 request. Turner
addresses the retention of security camera footage at paragraph 8 of her affidavit. She
states, in pertinent part:
Section 10(c) governs the retention of videos such as those requested,
which provides:
Video images not reviewed as part of an official DRC investigation
or official DRC administrative process; not specifically captured on DRC
surveillance cameras to record a planned event or transaction, or not part
of any matter being litigated or being retained pursuant to a “litigation hold
letter” shall be retained a minimum of 14 calendar days. * * *
Richland County, Case No. 2022 CA 0022 7
{¶15} In Exhibits B and C, attached to the Complaint for Writ of Mandamus, Rose
never acknowledged Harris’s December 21, 2021 public records request. Based on
Turner’s Affidavit and the Ohio Department of Rehabilitation and Correction’s Policy 09-
INV-01, the video surveillance, if it existed, should have been preserved for a minimum
of 14 calendar days. Therefore, Harris’s December 21, 2021 public records request
transmitted via JPay was timely as to the request for video surveillance footage from
December 10, 2021 when Harris’s legal property was delivered to him on this date. Harris
never received a response to the timely request.
{¶16} Under R.C. 149.43(C)(2), if a public-records custodian fails to comply with
an obligation under R.C. 149.43(B) and the requester transmitted the public-records
request by hand-delivery, electronic submission, or certified mail, the requester may be
entitled to recover an award of statutory damages. As noted above, Harris’s video
surveillance footage request from December 10, 2021 was timely transmitted by
electronic submission. Further, if it existed, it should have still been available when it was
requested on December 21, 2021. Harris is therefore substantively and procedurally
eligible for an award of statutory damages. Damages accrue at the rate of $100 for each
business day the public-records custodian fails to comply with an obligation under R.C.
149.43(B), starting from the date of the filing of a mandamus complaint, with a maximum
of $1,000. Because Harris filed his Complaint for Writ of Mandamus in February 2021 and
Rose still has not properly responded to his December 21, 2021 request, Harris is entitled
to the statutory maximum amount of $1,000.
{¶17} However, Harris’s JPay public records request for security camera footage
from November 28, 2021 was not timely because more than 14 days had passed from
Richland County, Case No. 2022 CA 0022 8
the November incident date until Harris made his request in JPay on December 21, 2021.
Therefore, Harris is not entitled to statutory damages with regard to the November 28,
2021 public records request.
B. The January 13, 2022 Request
{¶18} Harris also made a public records request by certified mail on January 13,
2022. Turner acknowledges, in her affidavit, that RICI received the request on January
25, 2022. Respondent’s Evidence, Exhibit A, Turner Affidavit, ¶ 8. Harris’s letter
requested six records:
1. Camera footage from 12-10-21 TPU Hallway RH-Range.
2. Camera footage from 11/16/21. Location 5 upper correction officer Desk
at 2:00 A.M. until 2:45
3. Incident Report on or about 11/28/21
4. Incident Report on 11/16/21 from officer Mrs. Coffman M.
5. All Reports Incident documentation from LT Sipes. The R.I.B. Board
Officer on 11/16/21 11/17/21 11/18/21 11/19/21
6. E-mails from correctional officer Coffman M. to R.I.B. officer Chairman
LT Sipes
See Complaint for Writ of Mandamus, Exhibit D.
{¶19} On February 15, 2022, Turner responded to Harris’s written public records
request. Respondent’s Evidence, Exhibit A, Turner Affidavit, ¶ 5. Harris received the
response on February 19, 2022. Id. In her response, Turner indicated the surveillance
camera footage for December 10, 2021 and November 16, 2021 were no longer available
on the server. Id. at ¶ 6. Turner further indicated she could not find any incident reports
on or about 11/28/21; 11/16/21 by CO Coffman, no incident reports from Lt. Sipes on
Richland County, Case No. 2022 CA 0022 9
11/16/21, 11/17/21, 11/18/21 or 11/19/21. Id. Finally, with regard to the emails from
Officer M. Coffman to RIB chair Lt. Sipes, Harris was asked to specify a time frame. Id.
Harris never provided the time frame for the requested emails. Id. at ¶ 7.
{¶20} In her affidavit, Turner avers Harris waited until January 13, 2022 to request
the aforementioned December 10, 2021 and November 16, 2021 videos. Id. at ¶ 8. RICI
received the written request on January 25, 2022. Id. As noted above, Harris timely
requested the December 10, 2021 surveillance camera footage on December 21, 2021
via JPay. However, Turner is correct that under RICI’s Ohio Department of Rehabilitation
and Correction Policy 09-INV-01, “Surveillance,” the video from November 16, 2021 was
not timely requested and was no longer available on the server. Id. at ¶ 6.
{¶21} Thus, Rose did not fail to comply with Harris’s public records request
received on January 25, 2022. The requested records no longer exist or never existed.
Further, Harris failed to provide information needed to locate requested emails. Therefore,
Harris’s January 13, 2022 public records request cannot serve as a basis for statutory
damage.
CONCLUSION
{¶22} We grant Harris’s writ of mandamus as it pertains to the December 21, 2021
JPay request for video surveillance footage from December 10, 2021. The remaining
claims in the writ are dismissed. We also award Harris statutory damages in the amount
of $1,000. The clerk of courts is hereby directed to serve upon all parties not in default
notice of this judgment and its date of entry upon the journal. See Civ.R. 58(B).
Richland County, Case No. 2022 CA 0022 10
WRIT GRANTED IN PART AND DISMISSED IN PART.
COSTS TO RESPONDENT.
IT IS SO ORDERED.
By: Delaney, J.,
Wise, John, P.J. and
Baldwin, J., concur.