State ex rel. Harris v. Rose

2022 Ohio 3729

• Court: Ohio Court of Appeals
• Decided: October 19, 2022
• Docket: 2022 CA 0022
• Status: Published

Opinion

[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.