[Cite as State ex. rel. Crenshaw v. E. Cleveland Fin. Dept., 2022-Ohio-2134.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
STATE EX REL., MARIAH S. : CRENSHAW,
Relator, : No. 110891 v. :
CITY OF EAST CLEVELAND FINANCE DEPARTMENT, :
Respondent. :
JOURNAL ENTRY AND OPINION
JUDGMENT: COMPLAINT DISMISSED DATED: June 17, 2022
Writ of Mandamus Order No. 555526
Appearances:
Mariah S. Crenshaw, pro se.
Willa M. Hemmons, East Cleveland Director of Law, and Heather McCollough, Deputy Director of Law, for respondent.
FRANK DANIEL CELEBREZZE, III, P.J.:
On October 8, 2021, the relator, Mariah Crenshaw (“Crenshaw”)
commenced this public records mandamus action against the respondent, the city
of East Cleveland Finance Department (“East Cleveland”). Crenshaw seeks, inter alia, the payroll records of East Cleveland’s law director and assistant law director,
the personnel and disciplinary files of two police officers, specific financial records,
the police investigatory files for the homicide of Kevin Olds, and the required records
commission’s records for any missing or destroyed records. Because East Cleveland
has stated that some records are no longer available, Crenshaw also claims damages
for spoliation and forfeiture of records, along with statutory damages pursuant to
R.C. 149.43(C).
Crenshaw made the following specific requests: (1) On September 6,
2021, she requested by email the payroll records for Heather McCollough, East
Cleveland’s assistant law director, including overtime, vacation, bonuses,
breakdowns in the ledger accounts, and separation pay. (2) On September 10, 2021,
Crenshaw requested by email the personnel and disciplinary files for two police
officers, Tristan Homan and Jason Anderson. This included, applications, oaths of
office, SF400 forms, screening of officers training, cease function and reinstatement
letters, emails from the Ohio Attorney General’s Office of the Ohio Peace Officer
Training Academy (“OPOTA”), discipline, anything typically found in personnel
files, photographs, action forms, training records, school transcripts, citizen
complaints, proof of licensure, background checks, daily observation reports by
superiors, annual gun requalifications, and training certificates. (3) On July 1, 2021,
Crenshaw requested by email the homicide investigatory file for victim Kevin Olds
that occurred in October 1988. Further, if any of these records had been destroyed,
she asked for the records commission’s meeting minutes, which granted the destruction of the records and the public notice stating the intent to destroy the
records. On September 28, 2021, she requested by email the certificate of disposal
for any such missing files. (4) On September 29, 2021, Crenshaw requested by email
the financial general ledgers of disbursement made to Willa Hemmons and Heather
McCollough, including her separation pay and the general ledger accounts that
support McCollough’s separation pay; a copy of the current budget of 2021; and a
report reflecting receipts of and disbursement for 2020 Cares Stimulus funds.
(5) On October 1, 2021, again through email Crenshaw asked for invoices paid out
for the following expense accounts with their supporting invoices: Account
1110.2110.5246 jail repair in the amount of $213; Account 1110.2110.5248 clothing
expenses in the amount of $58,180; Account 1110.2110.5252 equipment expenses in
the amount of $39,638; Account 1110.2120.5234 in the amount of $126,493.84 for
professional expenses; Account 1110.2714.5238 in the amount of $220,907.26 for
grass cutting as a law department expense; Account 1110.2714.5239 in the amount
of $411,364.06 as a law department expense; Account 1110.2714.5243 for repair and
maintenance as a law department expense; Account 1110.2714.5280 in the amount
of $66,911.11 for electric as a law department expense; Account 1110.2714.5282 in
the amount of $25,422.58 for natural gas as a law department expense; Account
1110.2714.5283 in the amount of $50,556.22 for telephone expense as a law
department expense; and Account 1110.2714.5418 in the amount of $13,751.07 for
water and sewer expense as a law department expense. Crenshaw asked that these
records be delivered by email or put on a CD disc and sent to her. However, on October 4, 2021, she stated in an email that Mr. Iyahen, the finance director, should
prepare the records for public inspection and that she would come in and inspect
them.
Crenshaw also requested that if records were not disclosed or if
records were redacted or not provided in the requested form, that East Cleveland
provide the legal basis for such action complete with supporting legal authority. The
attachments to the complaint show that East Cleveland countered with multiple case
citations that a governmental entity has no duty to provide records it does not have
and no duty to make records to fulfill a request. Nor does a governmental entity
have a duty to keep records in any particular manner, even if the requester thinks
the records should be kept in that particular manner. East Cleveland further stated
that the need to make redactions required that paper copies be made and then
redacted. Crenshaw then commenced this mandamus action.
On October 21, 2021, pursuant to Loc.App.R. 20(B)(2), this court
ordered the matter to mediation. However, by the beginning of the new year,
mediation had not been able to resolve the case. Thus, on January 10, 2022, this
court ordered the parties to certify the status of the case by stating for each request
what records had been released. If East Cleveland had withheld records or made
redactions, it was to state with supporting legal authority why the records were
withheld or redacted. If Crenshaw was not satisfied with the disclosures, she was to
state what records she thought should be produced and why she believed they were
available. On January 14, 2022, East Cleveland filed its certification. It stated
that the payroll records for Heather McCollough were sent to Crenshaw on
September 28, 2021, on two pages: one containing the payroll records; the second
page was completely redacted because it contained personal privacy information.
Attachments to the complaint showed this. The two police officers’ personnel and
disciplinary files were ready in paper form upon the payment of $23.60, which
Crenshaw had not paid. The “financial general ledgers for the disbursements to
Heather McCollough and Willa Hemmons” could not be fulfilled because East
Cleveland does not keep its records that way; the certification stated that “Ms.
Crenshaw is free to revise her request and submit it again.” The 2021 budget and
the receipts and disbursement for the 2020 Cares Stimulus funds were emailed to
Crenshaw at no cost. Exhibit A to the certification indicates that these records were
released on or after October 28, 2021.
As for the 12 expense accounts, the certification said that the finance
director decided a few days before the drafting of the certification that he would
make the voluminous records available for inspection, rather than risk making the
many copies and having Crenshaw not pay for them. He also indicated that the
telephone expenses and the water and sewer expenses were not law department
expenses, and thus he could not honor the requests as written. Again, Crenshaw was
permitted to clarify her request.
The final request was for the homicide file for Kevin Olds from 1988.
These records could not be located. Initially, it was thought that the files were destroyed when the storage building’s roof collapsed during a storm and the room
was flooded. Then it was determined that Kevin Olds died in 1998 when struck by a
train. The coroner determined that the death was accidental. Thus, no homicide
file was ever created. As for the records commission’s records for destroyed or
missing files, the law director in a November 3, 2021 email explained that the
Records Retention Custodian/Commission Chair had been fired and his successor
was unable to retrieve the minutes. The law director cited State ex rel. Kerner v.
State Teachers Retirement Bd., 82 Ohio St.3d 273, 695 N.E.2d 256 (1998), for the
principle that a governmental entity does not have the responsibility to disclose
nonexistent records.1
Crenshaw filed her initial certification on January 21, 2022. Initially,
she complained that the finance director asked that the requests not be sent to him
directly, as compared to the law department; Crenshaw submitted that the finance
director was evading his responsibility as a public officer to comply with R.C. 149.43.
Crenshaw further complained that if East Cleveland maintained their financial
records like the entities she used to work for, there would be no problem fulfilling
her requests. She stated that she did not get the records relating to Hemmons.
Crenshaw admitted that she did receive redacted records for
McCollough’s payroll, but there were no explanations for the redactions as required
1 East Cleveland’s certification also addressed several other public records requests made by Crenshaw that were not listed in her complaint. The court is limiting its analysis to only those requests made in the complaint. by law. She further certified that she had not received the general ledger reflecting
where the funds were debited for McCollough’s separation pay or the necessary
approval for those funds.
Crenshaw agreed that she did not get the personnel files for the two
police officers and insisted on her right to have them sent to her electronically as she
requested. Similarly, she complained that she did not get any records commission
documents that are required by law to be kept. She also accused East Cleveland of
negligent care of public records and violating the law relating to their disposal.
Finally, Crenshaw states the full investigation for the death of Kevin
Olds should still be within the custody of the city or a certificate of disposal should
be available stating the disposition of the public records. Crenshaw attached to her
certification a “Coroner’s Office Cuyahoga County, Ohio Vital Statistic Report” for
Kevin Olds from October 1998 that listed the cause of death as “Blunt impacts to the
head with skull and brain injury TRAIN ACCIDENT, TRESPASSER.” She also
attached the first page of an East Cleveland Police Department supplementary
report for Kevin Olds. This states how the body was found and what steps were
taken next, including turning over the body to the coroner’s office. It also includes
a statement from a special agent from the railroad that Olds’s body was in too good
of shape to be hit by a train. From this, Crenshaw concludes that there must be
additional police investigatory records relating to Olds’s death.
On February 11, 2022, this court issued a briefing schedule. By
April 11, 2022, the parties were to complete discovery and submit evidence and briefs on all the issues, including whether this court has jurisdiction to adjudicate a
spoliation claim in a public records mandamus action. The court encouraged the
parties to resolve their differences and arrange for the release of the requested
records. This order directed East Cleveland to submit any withheld or redacted
records under seal for in camera inspection and to state what legal authority
supports its position. Similarly, the court ordered Crenshaw to certify whether she
was satisfied with the disclosures, and if not, what additional records should be
released or unredacted with supporting legal authority. Reply briefs were due on
April 22, 2022.
Crenshaw filed a status update March 29, 2022, in which she stated
that on March 11, 2022, East Cleveland provided her with partial files for the two
police officers. On March 14, 2022, she informed East Cleveland of the missing
statutorily required records from those files. These included the SF400 forms, the
“cease function” letter, the reinstatement letter, basic training certificates, school
transcripts, annual gun requalification, and other training certificates. Crenshaw
also admitted that on March 14, 2022, she made an in person inspection of records
and paid $28 for 213 copies of records that included audit trails.2
On April 8, 2022, Crenshaw filed her certification. Crenshaw states
that she received McCollough’s payroll printout with redactions, but there were no
2 Crenshaw also paid $28 for records on March 4, 2022. She complains that she overpaid because the records provided included duplicates and records she did not want. However, she does not identify those records or the request for which they were provided. written explanations for the redactions. Moreover, she did not receive the ledger
breakdown of the $15,000 separation payout, nor did she receive an explanation for
why these records were not provided.
For the 12 account expenses, Crenshaw certifies that on March 14,
2022, she received the requested records, except for Account 1110.2714.5243 the
repair and maintenance expense as a law department expense and Account
1110.2714.5283 for telephone expenses in the amount of $50,556.22, as a law
department expense. For the repair and maintenance expense account, she admits
that she received some of the requested records, but not the audit trail. For the
telephone expense, her certification indicates that she wants the supporting
invoices.
Crenshaw’s certification repeats her earlier certification concerning
the personnel files for the two police officers. Many records were disclosed, but the
SF400 form for Officer Anderson was missing, along with complete records for
screening officer training, action forms, grievances, records of disciplinary
proceedings, school transcripts, proof of licensure, background checks containing
education and resume, daily observation reports by supervisors, OPOTA certificates,
and advanced training certificates.
Similarly for Officer Homan, Crenshaw certified the SF400 form,
action forms, training records, disciplinary files, school transcripts, daily
observations reports, OPOTA certificates, and advanced training certificates are
missing. For Officer Homan, she stated that only some of the officer training records were provided. She noted that some of these records, such as cease function letters,
reinstatement letters, training records, annual gun requalifications, the OPOTA
certificates, and the advanced training certificates are statutorily required.
Crenshaw certified that no records had been provided for the
homicide investigation file for Kevin Olds. Furthermore, she complained that East
Cleveland has not provided her with a written legal explanation for missing,
destroyed, or transferred records, nor has East Cleveland provided her with a
certificate of disposal pursuant to R.C. 149.333. Indeed, East Cleveland has not had
the statutorily required records commission to fulfill the statutorily required duties.
On April 11, 2022, East Cleveland filed records under seal with a brief
entitled, “Submission of Records Under Seal.” In this filing, East Cleveland
explained that it could no longer find an unredacted copy of the second page
recording the disbursement to McCollough. Efforts to provide the second page
included contacting ADP Management, the company that handles the city’s payroll,
but it appears that the company no longer stores the information or that it is lost in
archives. The person who initially redacted the second page no longer works for the
city, and the city cannot access his stored information. The chief accountant for the
city of East Cleveland submitted an affidavit that she has been unable to retrieve an
unredacted copy of the second page, including seeking it from ADP Management.
In an effort to provide Crenshaw with the requested information, it submitted
McCollough’s paystubs to Crenshaw. East Cleveland submitted Officer Anderson’s personnel file under
seal. The in camera inspection showed that his SF400 form and oath of office are
included. East Cleveland also proffered explanations why some records might not
be included in the file, such as the time for gun requalification had not expired.
On April 14, 2022, Crenshaw filed a reply stating that she was not
satisfied with the disclosures. Specifically, for McCollough’s separation pay, she
never received the requested audit trail or the general ledgers reflecting the
disbursement. Moreover, based upon her experience with ADP Management, she
contends that there should be no trouble accessing records for the last seven years.
She further complained that a breakdown of payroll dates and amounts is not what
she requested, and East Cleveland merely provided records not sought.
Crenshaw admitted that Anderson’s SF400 form with oath of office
has been disclosed to her but complained that it is incomplete because it appears
not to be approved by the OPOTA’s executive director. She noted that when she
made a public records request to OPOTA for Officer Anderson’s records, it did not
have his SF400. Similarly, East Cleveland did not submit a “cease function letter”
or reinstatement letter for Officers Anderson and Homan, which also should have
been in their files. She concluded that the city did not submit his SF400 form to
OPOTA or its executive director. Crenshaw admitted that she did receive Officer
Anderson’s Refresher Course certificate, but it was 188 days after the filing of the
mandamus action. Similarly, Crenshaw admitted that she belatedly received a gun
scorecard for Anderson. However, she argued that her request was not fulfilled
because there were no gun requalifications for all duty weapons, such as the squad
car rifles. She further complained that the explanations given for missing records
do not comply with R.C. 149.43 because they lack supporting legal authority.
Crenshaw concluded that East Cleveland failed to report to the state
of Ohio the hiring of Officer Anderson in 2021, and that statutorily required records
were never created. Furthermore, East Cleveland is deficient in complying with R.C.
149.43 by supplying personal opinion or ad hominem attacks on Crenshaw for
missing records instead of legal authority or admitting that it did not create
statutorily required records.
On April 22, 2022, East Cleveland filed a motion to dismiss on the
grounds of mootness, because all possible records have been released. Attached
were emails, a photograph, and additional records. The court takes this as an
additional certification and submission of evidence.
East Cleveland first endeavored to clarify that there are no police
investigatory files for the homicide of Kevin Olds. As shown by the “Coroner’s
Verdict,” which East Cleveland attached as an exhibit, Olds’s death was ruled as a
train accident. Therefore, no police investigatory records exist, except what
Crenshaw already has. If there never were any police investigatory files, there could
be no records commission minutes approving of their disposal or certificates of
disposal. Crenshaw’s insistence for those records is baseless. East Cleveland also responded to Crenshaw’s complaint that not all
of Officer Homan’s records were provided. East Cleveland submitted Officer
Homan’s personnel file for in camera inspection and indicated where in the file the
disputed records were.
Finally, East Cleveland explained that the two accounts (Account
1110.2714.5243 law department repair and maintenance expense and Account
1110.2714.5283 law department telephone expense) that Crenshaw complains were
not fulfilled could not be released because the accounts were not kept as law
department accounts. Thus, East Cleveland was not sure exactly what Crenshaw
was requesting. Furthermore, Crenshaw never clarified her request, despite East
Cleveland asking her to do so.
On April 23, 2022, Crenshaw filed her brief in opposition to the
motion to dismiss, arguing that East Cleveland’s motion was improper and beyond
this court’s order for certification, briefing, and evidence. Moreover, the motion
contained irrelevant material on Crenshaw’s other public records requests. She did
not contradict East Cleveland’s last statements that she had not revised her requests
for the two unfulfilled accounts.
The court notes that this litigation was very contentious with both
parties accusing the other of bad faith and incompetence.
DISCUSSION OF LAW
Mandamus is the appropriate remedy to compel compliance with
R.C. 149.43, Ohio’s Public Records Act. State ex rel. McCaffrey v. Mahoning Cty. Prosecutor’s Office, 133 Ohio St.3d 139, 2012-Ohio-4246, 976 N.E.2d 877.3 Because
the statute specifies mandamus as the remedy, the relator does not have to show the
lack of an adequate remedy at law to prevail. State ex rel. Morgan v. New
Lexington, 112 Ohio St.3d 33, 2006-Ohio-6365, 857 N.E.2d 1208. As with all writ
actions, the relator must establish the right to a writ by clear and convincing
evidence. State ex rel. Pressley v. Indus. Comm. of Ohio, 11 Ohio St.2d 141, 228
N.E.2d 631 (1967); and State ex rel. Pietrangelo v. Avon Lake, 149 Ohio St.3d 273,
2016-Ohio-5725, 74 N.E.3d 419. The requester must request records before
bringing the mandamus action, and the “request must be specific and particularly
describe what it is that is being sought.” State ex rel. Zauderer v. Joseph, 62 Ohio
App.3d 752, 756, 577 N.E.2d 444 (10th Dist.1989).
In Ohio, public records are the people’s records. To that end, the
public records act is to be construed liberally in favor of broad access and disclosure.
The courts are to resolve any doubt in favor of disclosure. State ex rel. Vindicator
Printing Co. v. Youngstown, 104 Ohio St.3d 1436, 2004-Ohio-7079, 819 N.E.2d
1120. Exemptions to disclosure under the public records act must be strictly
construed against the public records custodian, and the government bears the
burden of establishing the applicability of an exception. Morgan at ¶ 47.
3 The requisites for mandamus are well established: (1) the relator must have a clear legal right to the requested relief, (2) the respondent must have a clear legal duty to perform the requested relief, and (3) there must be no adequate remedy at law. State ex rel. Harris v. Rhodes, 54 Ohio St.2d 41, 374 N.E.2d 641 (1978). However, the government has no duty under R.C. 149.43 to give
information or to create new records by searching for and compiling information
from existing records. State ex rel. Lanham v. Ohio Adult Parole Auth., 80 Ohio
St.3d 425, 687 N.E.2d 283 (1997); and State ex rel. White v. Goldsberry, 85 Ohio
St.3d 153, 707 N.E.2d 496 (1999). Similarly, there is no duty to produce records that
never existed or no longer exist. Pietrangelo at 273. “Thus, to obtain mandamus
relief, the relator must show, by clear and convincing evidence, that public records,
he or she requested exist and are in possession of the respondent.” Crenshaw v.
City of Cleveland Law Dept., 8th Dist. Cuyahoga No. 108519, 2020-Ohio-921, ¶ 39.
Mandamus is an extraordinary remedy that is to be exercised with
caution and only when the right is clear. It should not issue in doubtful cases. State
ex rel. Taylor v. Glasser, 50 Ohio St.2d 165, 364 N.E.2d 1 (1977); State ex rel. Shafer
v. Ohio Turnpike Comm., 159 Ohio St. 581, 113 N.E.2d 14 (1953).
Furthermore, the court has discretion in issuing mandamus. In State
ex rel. Pressley, 11 Ohio St.2d 141, 228 N.E.2d 631, at paragraph seven of the
syllabus, the Supreme Court of Ohio ruled that “in considering the allowance or
denial of the writ of mandamus on the merits, [the court] will exercise sound, legal
and judicial discretion based upon all the facts and circumstances in the individual
case and the justice to be done.” The court elaborated that in exercising that
discretion the court should consider
the exigency which calls for the exercise of such discretion, the nature and extent of the wrong or injury which would follow a refusal of the writ, and other facts which have a bearing on the particular case. * * * Among the facts and circumstances which the court will consider are the applicant’s rights, the interests of third persons, the importance or unimportance of the case, the applicant’s conduct, the equity and justice of the relator’s case, public policy and the public’s interest, whether the performance of the act by the respondent would give the relator any effective relief, and whether such act would be impossible, illegal, or useless.
Id. at 161-162. State ex rel. Bennett v. Lime, 55 Ohio St.2d 62, 378 N.E.2d 152
(1978); and State ex rel. Dollison v. Reddy, 55 Ohio St.2d 59, 378 N.E.2d 150 (1978).
Crenshaw’s first request was for the payroll records for Heather
McCollough, including overtime, vacation, bonuses, and separation pay. In
response, East Cleveland provided a page summary for McCollough, that included
regular time, comp time, holiday, Hazard Dif Pol, sick time, and separation time.
There was also a second page that was completely redacted on the grounds that it
contained private information, a recognized exemption.
East Cleveland was unable to provide an unredacted copy of the
second page, because it was lost, and efforts to retrieve it from the record
management company were not successful, as evidenced by the affidavit of East
Cleveland’s chief accountant. Instead, East Cleveland provided Crenshaw with all
of McCollough’s pay stubs for the relevant period. Crenshaw countered that the pay
stubs were unsolicited records and that in her experience the management company
should be able to provide the unredacted second page.
Although the disappearance of the second page is problematic, the
court declines to issue a writ of mandamus for a record that it is not certain is available. Crenshaw’s unsworn remarks that it should be available is not clear and
convincing evidence that the record is available.
Crenshaw’s second request was for the personnel and disciplinary
files for two police officers. The request specified, inter alia, their applications,
SF400 forms, oaths of office, training records, cease functions and reinstatement
letters, emails from OPOTA, photographs, school transcripts and records,
complaints, and disciplinary matters. East Cleveland released the files to Crenshaw
and submitted them to this court for in camera inspection. Crenshaw mainly
complains that various, statutorily required forms are not in the files and that East
Cleveland should have just stated that the records were never created. Indeed, in
her April 14, 2022 reply brief, she stated that reasonable minds could conclude that
the statutorily required records were never created.
The court has reviewed the two files in camera and found no internal
inconsistencies to indicate that other requested records exist in the files. Crenshaw’s
argument that the records should be there is not clear and convincing evidence that
they exist. Thus, the court declines to issue a writ of mandamus to compel the
release of records that the court is not convinced actually exist. Crenshaw, 2020-
Ohio-921, at ¶ 42.
Among the attachments to her complaint, Crenshaw included
requests for disbursements to Willa Hemmons, East Cleveland’s budget for 2021,
and the receipts and disbursement for 2020 Cares Stimulus funds. East Cleveland
stated that these records were provided. Crenshaw does not deny this and does not address these records in her April 8, 2022 “Final Certified Brief of Record Status.”
Accordingly, this court rules that these requests have been fulfilled.
Crenshaw’s next request was for 12 specified expense accounts,
including audit trails and purchase orders. She admits that on March 14, 2022, she
was able to inspect the files, and received 213 physical copies of audit trails and
purchase orders. She further admits that 10 of the 12 requests were fulfilled. For
the disputed requests for Law Department Expense Account 1110.2714.5243 for
repair and maintenance expenses and Law Department Expense Account
1110.2714.5283 for telephone expenses, Crenshaw admits that she received a partial
release for the repair and maintenance expenses, but that the audit trail was missing.
East Cleveland countered that it could not fulfill these requests as
submitted because those account numbers were not law department numbers.
Thus, East Cleveland was uncertain what she wanted. East Cleveland notified her
of this problem and asked her to clarify her request. There is no evidence in the
record that she did so; rather, she insisted that the request be fulfilled as made.
R.C. 149.43(B)(2) provides in pertinent part as follows:
If a requester makes an ambiguous or overly broad request or has difficulty in making a request * * * such that the public officer or the person responsible for the requested public record cannot reasonably identify what public records are being requested, the public office or the person responsible for the requested public records may deny the request but shall provide the requester with 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. In the present case, East Cleveland could not reasonably identify what public records
were being requested, and informed Crenshaw why the request was uncertain and
asked her to revise the request, which she did not do. Accordingly, the court finds
that East Cleveland fulfilled its duties under R.C. 149.43(B)(2). The court declines
to issue a writ of mandamus to fulfill an uncertain request.
Finally, there is Crenshaw’s request for the 1998 homicide
investigation file for Kevin Olds. This request has been the subject of much dispute.
Initially, Crenshaw framed her request for the homicide of victim “Keith Olds” from
“October 1988.” She also requested that if the records had been destroyed, she
wanted the records commission meeting minutes, which granted the destruction of
the records and the public notice stating the intent to destroy the records. She
amended the request to Kevin Olds. East Cleveland initially thought that records
that old were lost because they were stored in a building that flooded. However,
when it was learned that Olds died in 1998 because of a train accident, East
Cleveland stated that there was no homicide file. The parties submitted an initial
police report about finding the body by the railroad track and turning the corpse
over to the coroner, and coroner’s office records finding the death to be an accident.
In rebuttal, Crenshaw points to a railroad investigator’s statements that the body
was in too good of a condition for a train accident. From this Crenshaw asserts that
Olds’s death must have been a homicide and there must be a homicide investigatory
file and if there is not, there must be the records for their destruction. After reviewing all of the submissions, this court rules that Crenshaw
has not persuaded this court by clear and convincing evidence that a homicide file
for Kevin Olds ever existed. Thus, this court declines to issue a writ of mandamus
for East Cleveland to produce such records, including record commission records.
In summary, the court declines to issue a writ of mandamus to compel
the release of more records; East Cleveland has fulfilled its duty to release records
under R.C. 149.43.
In her second claim, Crenshaw seeks statutory, spoliation, and
forfeiture damages. Crenshaw mainly seeks damages for the missing records
relating to the criminal investigation files for Kevin Olds and the lack of the records
commission’s records authorizing their destruction. She also seeks such damages
for any missing financial records. In her final certified brief, she clarifies that she
seeks forfeiture under R.C. 149.351 and damages under the intentional tort of
spoliation, as well as civil forfeiture for repeated violation of Ohio’s Sunshine Laws.
However, the Ohio Constitution in Article IV, Section 3(B)(1),
specifically limits the courts of appeals’ original jurisdiction to the five enumerated
writs. Arnoff v. State, 9th Dist. Lorain No. 20CA011681, 2021-Ohio-883, and State
ex rel. Bosley v. D’Apolito, 7th Dist. Mahoning No. 20 MA 0050, 2021-Ohio-2498.
Therefore, this court lacks jurisdiction to rule on the forfeiture and spoliation claims.
Moreover, R.C. 149.351, prohibition against destruction or damage of records,
provides in division (B) that claims of forfeiture are to be commenced in the court
of common pleas. Finally, as the court has already ruled, Crenshaw has failed to establish by clear and convincing evidence that records for the criminal
investigatory file have been destroyed.
R.C. 149.43(C)(2) provides that if a requester transmits a written
request by electronic submission, the requester shall be entitled to recover statutory
damages if a court determines that the public office failed to comply with an
obligation in accordance with division (B) of R.C. 149.43, e.g., an unreasonable delay
in releasing the records. The amount of statutory damages shall be fixed at one
hundred dollars for each business day during which the public office failed to comply
with an obligation under division (B), beginning with the day on which the requester
files a mandamus action to recover statutory damages up to a maximum of one
thousand dollars. The award of statutory damages shall not be construed as a
penalty but as compensation for the lost use of the requested information.
Moreover, the Supreme Court of Ohio has ruled that the statute does not generally
permit stacking of statutory damages. State ex rel. Dehler v. Kelly, 127 Ohio St.3d
309, 2010-Ohio-5724, 939 N.E.2d 828.
In the present case, the two parties have treated each other so
obstinately that the court cannot discern who is responsible for any delay in the
release of the records. Under such conditions, the court declines to award statutory
damages.
Accordingly, this court dismisses this writ action as moot; the
respondent has fulfilled its duties to release the requested records to the best of its
ability. Each side to pay its own costs. This court directs the clerk of courts to serve all parties notice of the judgment and its date of entry upon the journal as required
by Civ.R. 58(B).
Writ dismissed.
________________________________________ FRANK DANIEL CELEBREZZE, III, PRESIDING JUDGE
EILEEN T. GALLAGHER, J., and CORNELIUS J. O’SULLIVAN, JR., J., CONCUR