Whitehead v. Ohio Dept. of Rehab. & Corr.

[Cite as Whitehead v. Ohio Dept. of Rehab. & Corr., 2023-Ohio-424.]
IN THE COURT OF CLAIMS OF OHIO
DENNIS WHITEHEAD Case No. 2022-00436PQ
Requester Special Master Jeff Clark
v. REPORT AND RECOMMENDATION
OHIO DEPARTMENT OF
REHABILITATION AND CORRECTION –
BUREAU OF RECORD MANAGEMENT
Respondent
{¶1} The Ohio Public Records Act (PRA) requires copies of public records to be
made available to any person upon request. The state policy underlying the PRA is that
open government serves the public interest and our democratic system. State ex rel.
Gannett Satellite Information Network, Inc. v. Petro, 80 Ohio St.3d 261, 264, 685 N.E.2d
1223 (1997). To that end, the public records statute must be construed liberally in favor
of broad access, with any doubt resolved in favor of disclosure of public records. State ex
rel. Rogers v. Dept. of Rehab. & Corr., 155 Ohio St.3d 545, 2018-Ohio-5111, 122 N.E.3d
1208, ¶ 6. This action is filed under R.C. 2743.75, which provides for an expeditious and
economical procedure to enforce the PRA in the Court of Claims.
{¶2} On June 14, 2021, requester Dennis Whitehead made a public records
request to respondent Ohio Department of Rehabilitation and Correction (ODRC) seeking
all “ODRC documents * * * regarding Posteal LASKEY, Jr. (born June 18, 1937 Cincinnati,
Ohio; died May 26, 2007 Pickaway Correctional Institution) during his tenure in ODRC
custody.” (Complaint at 3-5.) Whitehead elaborated this comprehensive request with
additional requests and questions – some sweepingly broad, others relatively specific,
and many of them overlapping, including:
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Basic physical descriptions, including his eyesight (visual acuity) as eye
exams are exempt from the prohibitions of R.C. 5120.21. He wore glasses
– why? Also, whether he walked with assistance (cane or walker), not
asking about the condition, simply his physical appearance that all could
see and not a matter strictly between doctor and patient.
(Id.); and “public letters submitted to the Ohio Parole Board each time Posteal Laskey, Jr.
was eligible for review” (Id. at 3); and a second “catch-all” request for all “[n]on-medical
documents pertaining to Posteal Laskey, Jr.” (Id. at 4); and “[r]ecords pertaining to Posteal
Laskey, Jr. as inmate #323 926 at the Boys Correctional Institution (BCI) (Id.); and
[r]ecords pertaining to Posteal Laskey, Jr. as inmate #58249 at the Ohio State
Reformatory (OSR) from February 28, 1958 to his release on February 21, 1962” (Id.);
and “[r]ecords pertaining to Posteal Laskey, Jr. as inmate #124 990 beginning on May 8,
1967 when Laskey was sent to the Ohio State Penitentiary (OSP) in Columbus under a
sentence of death” (Id. at 5); and “[t]he roster of inmates transferred with Laskey and their
mode of transportation from OSP to SOCF on June 1, 1973” (Id.); and “[a] roster of
inmates transferring from the SOCF to LOCI with Laskey on April 1, 1975” (Id.); and “[a]
roster of inmates transferring from LOCI to Orient with Laskey on February 14, 1998” (Id.);
and “[d]ocuments pertaining to Laskey’s employment in the Psychology Department/
Psychological Services.” (Id.) ODRC acknowledged receipt of the June 14, 2021 request
on or about July 13, 2021 (Id. at 8) but never responded with either records or denial of
the requests (Id. at 6-7).
{¶3} On May 25, 2022, Whitehead filed a complaint under R.C. 2743.75 alleging
denial of timely access to public records. The matter was referred to mediation, where
both parties ignored the statutory procedures and orders of this court, as well as the
standards of the Public Records Act, as summarized in the court’s Sept. 2, 2022 order:
Since the filing of requester’s complaint on May 25, 2022, this action has
followed a course almost entirely free of compliance by either party with the
procedures and standards required in this special statutory proceeding.
Requester has filed a number of unsolicited, deficient, and irrelevant
pleadings, disposed of by orders dated June 3, 2022 and July 18, 2022, as
well as ex parte letters to the court. To his credit, requester has appeared
for two mediation sessions on July 15, 2022 and July 29, 2022. However,
respondent has failed to appear for either session, without advising the
court in advance or offering any excuse afterward. Upon termination of
mediation, respondent filed an “answer” one day out of rule that is a mere
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notice pleading instead of the full and final response pleading required
under R.C. 2743.75(E)(2). Rather than address any of the specific requests
and arguments in the complaint, respondent makes only a general denial
with fourteen affirmative defenses that are not accompanied by any
evidence or legal argument, and an affidavit that contains nothing more than
the bare assertion that “ODRC does not have any further public records that
it can provide in response to his public records request.”
The current state of the pleadings would require the Special Master to
render a determination based primarily on which party has most clearly
failed to meet its burden of proof under R.C. 2743.75 and public records
case law. Before taking that course, or imposing any sanctions available to
the court, the Special Master directs the return of this case to mediation with
the previously assigned mediator. This cause of action under R.C. 2743.75
is intended to provide an expeditious and economical procedure to resolve
public records disputes, with express reliance on initial mediation with court
mediators knowledgeable in public records law. Respondent is now
ORDERED to comply fully with that statutory process. The parties are
encouraged to discuss and make good faith efforts to resolve any properly
framed requests for specific, existing records contained in the request of
June 14/July 13, 2021. (Complaint at 3-5.)
Two ensuing mediation sessions resulted in disclosure by ODRC of additional records,
and additional explanations as to the non-existence of some requested records, and
answers to some of requester’s non-public records questions.1 (Reply and attachments.)
However, because mediation did not resolve the entire case, on November 7, 2022,
ODRC filed a combined response to complaint and motion to dismiss (Response). On
November 17, 2022, Whitehead filed a reply.
Burden of Proof
{¶4} The requester in an action under R.C. 2743.75 bears an overall burden to
establish a public records violation by clear and convincing evidence. Hurt v. Liberty Twp.,
2017-Ohio-7820, 97 N.E.3d 1153, ¶ 27-30 (5th Dist.). The requester bears an initial
burden of production “to plead and prove facts showing that the requester sought an
1 Whitehead complains that ODRC made these additional responses (Reply at 3, Exh. 2) in
response to his original request rather than to the revised request he submitted during mediation. (Reply,
Exh. 1.) However, new requests made during public records litigation do not relate back to the complaint.
There is no cause of action based on violation of R.C. 149.43(B) unless the request was made and denied
prior to the complaint. See Strothers v. Norton, 131 Ohio St.3d 359, 2012-Ohio-1007, 965 N.E.2d 282, ¶ 14;
State ex rel. Bardwell v. Ohio Atty. Gen., 181 Ohio App.3d 661, 2009-Ohio-1265, 910 N.E.2d 504, ¶ 5 (10th
Dist.). Whitehead’s requests as revised during mediation are therefore not before the court.
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identifiable public record pursuant to R.C. 149.43(B)(1) and that the public office or
records custodian 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, ¶ 33.
Motion to Dismiss
{¶5} To dismiss a complaint for failure to state a claim upon which relief can be
granted, it must appear beyond doubt the claimant can prove no set of facts warranting
relief after all factual allegations of the complaint are presumed true and all reasonable
inferences are made in claimant’s favor. State ex rel. Findlay Publishing Co. v. Schroeder,
76 Ohio St.3d 580, 581, 669 N.E.2d 835 (1996). As long as there is a set of facts
consistent with the complaint that would allow the claimant to recover, dismissal for failure
to state a claim is not proper. State ex rel. V.K.B. v. Smith, 138 Ohio St.3d 84, 2013-Ohio-
5477, 3 N.E.3d 1184, ¶ 10.
{¶6} ODRC moves to dismiss the complaint on the grounds that any claims based
on requests identical to those considered in Whitehead v. Ohio Department of
Rehabilitation and Correction, Ct. of Cl. No. 2020-00116PQ are barred by the doctrines
of res judicata and claim preclusion. ODRC further argues that it has produced all
requested records that actually exist, other than records subject to withholding under R.C.
5120.21(F) or R.C. 5120.60(G) and O.A.C. 5120:1-1-36. ODRC further argues that some
requests impermissibly ask it to compile dispersed information or give narrative answers
to questions. On review, the Special Master finds that none of these defenses is
conclusively shown on the face of the complaint to cover all of the current requests.
Moreover, as the matter is now fully briefed these defenses are subsumed in the
arguments to deny the claims on the merits. It is therefore recommended the motion to
dismiss be denied.
Res Judicata and Claim Preclusion
{¶7} The doctrine of res judicata provides that a “valid, final judgment rendered
upon the merits bars all subsequent actions based upon any claim arising out of the
transaction or occurrence that was the subject matter of the previous action.” Grava v.
Parkman Twp., 73 Ohio St.3d 379, 653 N.E.2d 226 (1995), syllabus. “[A]n existing final
judgment or decree between the parties to litigation is conclusive as to all claims which
were or might have been litigated in a first lawsuit.” Id. at 382. For the purposes of res
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judicata, a “transaction” is defined as a “common nucleus of operative facts,” which in turn
rests on whether the same facts or evidence would sustain both the previous and the
current action. Bd. of Cty. Commrs. v. Roop, 4th Dist. Ross No. 13CA3369, 2013-Ohio-
5926, ¶ 14-17. See State ex rel. Barb v. Cuyahoga Cty. Jury Commr., 8th Dist. Cuyahoga
No. 95005, 2010-Ohio-6190, ¶ 10-12, aff’d, 128 Ohio St.3d 528, 2011-Ohio-1914, 947
N.E.2d 670 (repeat public records request, previously adjudicated as to the same person
or designee, was res judicata).
{¶8} Whitehead made a previous request in 2020 for all “available public records
from the incarceration of Posteal LASKEY from 1967 to his death in 2007.” Whitehead v.
Ohio Dept. of Rehab. & Corr., Ct. of Cl. No. 2020-00116PQ, 2021-Ohio-1600, ¶ 2. The
court found the request in that case for was for all categories of Laskey records for the
listed time period, Id., and that the discretionary public records exemption in “R.C.
5120.21(F) applied to the remaining records withheld by ODRC.” Id. at ¶ 3-5; adopted in
Whitehead v. Ohio Dept. of Correction – Bureau of Record Mgmt. (“Whitehead I”), Ct of
Cl. No. 2020-00116PQ, 2021-Ohio-1900, ¶ 10.2 Because this court has already
determined that ODRC had no duty to provide any additional records responsive to
Whitehead’s comprehensive request for “available public records from the incarceration
of Posteal LASKEY from 1967 to his death in 2007,” Whitehead’s subsequent public
records claims, to the extent they seek the same records from that time frame, are barred
by the valid, final judgment in Court of Claims Case No. 2020-00116PQ under both res
judicata and claim preclusion.
{¶9} ODRC erroneously asserts that “[w]hile Requester’s requests for information
this time may be worded differently than in Whitehead I, the requests seek the same exact
information pertaining to Laskey.” (Response at 6.) Among the current claims that were
not part of the previous determination of requests for information from 1967 through 2007,
Whitehead has newly requested records pertaining to a Laskey incarceration from 1958
to 1962 and a stint in “the Boys Correctional Institution” ending in 1954. (Complaint at 4;
Reply, Exh. 1 at 5, Exh. 2 at 5.) Two other claims seek records of certain prison conditions
2Despite this broad ruling, and to its credit, ODRC apparently complied with the recommendation
of the Special Master to reexamine a list of records to which the claimed medical exemption did not apply
and provided Whitehead with additional documents. (Response at 4-5, Exh. C - Pierce Aff. at ¶ 5.)
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without specific reference to Laskey and were not before the court in Whitehead I. The
court must therefore address these claims on their merits.
Non-Existent Records – Additional Records Earlier than 1967
{¶10} “Public records” means records kept by a public office. R.C. 149.43(A)(1). A
public office has no duty to provide records that do not exist, or that it does not possess.
State ex rel. Gooden v. Kagel, 138 Ohio St.3d 343, 2014-Ohio-869, 6 N.E.3d 471, ¶ 5, 8-
9. An office may establish by affidavit that all existing records in its keeping have been
provided. State ex rel. Fant v. Flaherty, 62 Ohio St.3d 426, 427, 583 N.E.2d 1313 (1992);
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, ¶ 15. The public office must clearly deny the existence of
the specifically requested records. State ex rel. Morgan v. New Lexington, 112 Ohio St.3d
33, 2006-Ohio-6365, 857 N.E.2d 1208, ¶ 56-57.
{¶11} In this case ODRC has submitted an affidavit broadly stating that it “does not
have any further public records that it can provide in response to his public records
request.” (Response at 5, Exh. C – Pierce Aff. at ¶ 5-6). Although the affidavit lacks
specificity as to records prior to 1967, ODRC did clearly deny the existence of records
responsive to the requests for records of Laskey as an inmate at the Boys Corrections
Institution and as an inmate at the OSR from 1958 to 1962 in an October 25, 2022 letter
to Whitehead. (Reply, Exh. 2 at 5.) Whitehead does not provide any evidence to the
contrary or show that ODRC maintains records of any institution for juvenile correction as
named in his request or otherwise.
{¶12} On consideration of ODRC’s minimally sufficient but uncontested denial of
the existence of records responsive to these requests, the Special Master finds that
Whitehead has failed to meet his burden to show by clear and convincing evidence that
any records responsive to these requests exist in the possession of ODRC.
No Duty to Answer Questions or to Assemble Dispersed Information
{¶13} Whitehead made several requests that are not specific to the incarceration
of Posteal Laskey, including asking for a description of “conditions on Death Row” with
“[g]eneral description and photographs” during a particular time period (Complaint at 4)
and for a “[d]escription of Ward 3 (Dormitory 3-A) at PCI. Is this a special ward that is part
of the Frazier Health Center?” (Id.) These questions are not encompassed in or barred
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by the previously litigated request in Case No. 2020-000116PQ, nor do they seek “records
of inmates” as that term is used in R.C. 5120.21(F). However, the initial burden remains
on Whitehead to prove that the requests sought identifiable public records. Welsh-
Huggins, at ¶ 33.
{¶14} In response to questions or requests for information that do not reasonably
identify the particular records sought, a public office cannot be compelled
to do research or to identify records containing selected information. That
is, relator has not established that a governmental unit has the clear legal
duty to seek out and retrieve those records which would contain the
information of interest to the requester. Cf. State ex rel. Cartmell v. Dorrian
(1984), 11 Ohio St.3d 177, 179, 464 N.E.2d 556. Rather, 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. Fant v. Tober, 8th Dist. Cuyahoga No. 63737, 1993 Ohio App. LEXIS 2591,
*3-4 (April 28, 1993), aff’d, 68 Ohio St.3d 117, 623 N.E.2d 1201 (1993). Accord State ex
rel. Lanham v. State Adult Parole Auth., 80 Ohio St.3d 425, 427, 687 N.E.2d 283 (1997)
(request for “qualifications of APA members”). This includes requests for records
supporting an agency decision. State ex rel. Morabito v. Cleveland, 8th Dist. Cuyahoga
No. 98820, 2012-Ohio-6012, ¶ 14 (for information, including “why, how, when, and by
whom” a video was destroyed); Kovach v. Geauga Cty. Auditor’s Office, Ct. of Cl. No.
2019-00917PQ, 2019-Ohio-5455, ¶ 9-10 (seeking explanations or reasons for the
execution of public functions, and to admit or deny factual representations).
{¶15} Requests that seek only narrative answers to questions, or ask for a
gathering of explanatory information, do not even rise to the level of requests for records
that would be subject to objection as “ambiguous” or “overly broad” per R.C. 149.43(B)(2).
They are simply not requests for records at all and thus cannot invoke any duty found in
R.C. 149.43(B). Whitehead’s inquiries regarding general “conditions” and a “description”
of a housing unit seek narrative answers to questions or request a search for information
and are therefore not actionable under the Public Records Act.3
3 Many of the narrower requests regarding Laskey during his incarceration, dispositively barred as res
judicata, are also improper narrative questions or requests for information, e.g., “He wore glasses – why?
Also, whether he walked with assistance” (Complaint at 3); whether any records show that he assisted other
inmates “as something of an informal counselor” (Id. at 4); “Is [Ward 3 (Dormitory 3-A)] where Laskey was
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{¶16} The Special Master finds that these requests did not create a duty for ODRC
to respond under the Public Records Act.
Suggestion of Mootness
{¶17} ODRC asserts that it has already released to Mr. Whitehead all of the public
records available in Mr. Laskey’s ODRC records, other than those subject to a recognized
exemption. Although some of these properly withheld records are subject to mandatory
exemption as medical records, the Special Master notes that ODRC has the discretion to
release any records not subject to mandatory withholding.
{¶18} The wording of the exception in R.C. 5120.21(F), that ODRC inmate records
“shall not be considered public records as defined in section 149.43 of the Revised Code,”
does not expressly prohibit their disclosure. It merely provides that their disclosure is not
mandated. Bello v. Ohio Dept. of Rehab. & Corr., Ct. of Cl. No. 2020-00129PQ, 2020-
Ohio-4559, ¶ 12; 2000 Ohio Op.Atty.Gen. No. 021. The administrative rules adopted by
ODRC amplify R.C. 5120.21 in this regard, providing that
Non-public records of the department may, in the sole discretion of the
director, or designee, be made available to counsel of record of an inmate
or releasee, researchers, law enforcement agencies, or other persons with
a need for access to such documents, subject to other restrictions on such
access as may be provided by law.
(Emphasis added.) O.A.C. 5120:9-49(G). ODRC is not prohibited from disclosing
additional records of inmate Laskey unless a particular record is subject to some other,
mandatory, exemption provided by law.
{¶19} Despite the inartful and improper nature of many of Whitehead’s requests,
nothing recommended in this report precludes Whitehead from attempting to craft new,
proper requests for reasonably identified ODRC records that are not records of a specific
inmate, or for the parties to continue to negotiate in good faith over records that are
subject to ODRC’s discretionary release.
Conclusion
housed during his entire time at PCI?” (Id.); requests for lists of inmates sharing transportation with Laskey
during institution transfers (Id.); and “[s]tatus of Laskey DNA on file, as previously requested.” (Id.)
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{¶20} Upon consideration of the pleadings and attachments, the Special Master
recommends the court DENY the claim for production of additional records. It is
recommended that court costs be assessed to requester.
{¶21} Pursuant to R.C. 2743.75(F)(2), either party may file a written objection with
the clerk of the Court of Claims of Ohio within seven (7) business days after receiving this
report and recommendation. Any objection shall be specific and state with particularity all
grounds for the objection. A party shall not assign as error on appeal the court’s adoption
of any factual findings or legal conclusions in this report and recommendation unless a
timely objection was filed thereto. R.C. 2743.75(G)(1).
JEFF CLARK
Special Master
Filed January 24, 2023
Sent to S.C. Reporter 2/14/23