State ex rel. IdeaStream Pub. Media v. Cuyahoga Metro. Hous. Auth.

2021 Ohio 2843

• Court: Ohio Court of Appeals
• Decided: August 17, 2021
• Docket: 110346
• Status: Published

Opinion

[Cite as State ex rel. IdeaStream Pub. Media v. Cuyahoga Metro. Hous. Auth., 2021-Ohio-2843.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

STATE EX REL., IDEASTREAM PUBLIC MEDIA, :

Relator, : No. 110346 v. :

CUYAHOGA METROPOLITAN HOUSING AUTHORITY, :

Respondent. :

JOURNAL ENTRY AND OPINION

JUDGMENT: WRIT DENIED DATED: August 17, 2021

Writ of Mandamus Motion No. 547061 Order No. 547953

Appearances:

First Amendment Clinic, Case Western Reserve University School of Law, Andrew Geronimo, and Gabrielle Wilson, Certified Legal Intern, for relator.

McDonald Hopkins Co., LLC, Tyler L. Mathews, Kevin M. Butler, and Theresa M. Lanese, for respondent.

KATHEEN ANN KEOUGH, J.:

Relator, IdeaStream Public Media (“IdeaStream”), seeks a writ of

mandamus directing respondent, the Cuyahoga Metropolitan Housing Authority (“CMHA”), a chartered public housing authority, to release any records responsive

to its records request. CMHA has now attested that it has released all records

responsive to IdeaStream’s requests. Therefore, the action is moot. For the reasons

that follow, we deny the requested writ as moot, but grant IdeaStream’s request for

statutory damages and costs.

Background

According to the complaint, filed on March 7, 2021, IdeaStream

submitted an inquiry to CMHA on November 13, 2020: “[T]here is a camera on the

corner of the building where the [officer-involved shooting] occurred that seems to

have been well-positioned to capture the entire thing. Was that camera on and

working and capturing video [at the time of the shooting]?” CMHA responded seven

days later informing IdeaStream that the incident was under investigation by

Cleveland Police, but otherwise did not answer the question posed. On November

30, 2020, CMHA followed up with a statement, saying, “The fatal shooting involving

a CMHA PD Officer on November 13, 2020, remains under investigation by the

Cleveland Division of Police. The Network Video Recorder for cameras in the vicinity

of the shooting is being held in evidence. All questions about the investigation,

including those about cameras or video, should be directed to the Cleveland Division

of Police.” On December 3, 2020, CMHA also provided an additional response,

stating,

At this time, the fatal shooting that took place on November 13, 2020 involving a CMHA Police Officer remains under investigation by the Cleveland Division of Police. They are in possession of the Network Video Recorder (“NVR”) for cameras in the area of the shooting, which is itself evidence in the investigation. CMHA recognizes the need for transparency through this process, and we remain committed to fully cooperate with investigators to discover the facts of that evening. Any additional inquiries regarding the details of the ongoing investigation should be directed to the Cleveland Division of Police.

On February 12, 2021, IdeaStream submitted a written request to

CMHA (the “video request”). The request sought “[v]ideo footage from any CMHA-

owned cameras that captured the incident, including any security cameras on the

exterior of buildings surrounding the site of the shooting and any footage from

police vehicle dashboard cameras at or near the scene at the time of the incident.”

This request was not properly received due to technical issues and was resent on

February 15, 2021. CMHA acknowledged receipt of this request the same day. This

is the same request IdeaStream sent to the city of Cleveland on February 16, 2021,

which is the subject of a related mandamus action in State ex rel. IdeaStream Pub.

Media v. Cleveland, 8th Dist. Cuyahoga No. 110345. The complaint alleges that

IdeaStream received no response to this records request from CMHA prior to filing

suit.

The complaint further alleges that IdeaStream sent a different request

for information to CMHA on November 20, 2020, seeking the identity of the CMHA

officer involved in the shooting. In a December 1, 2020 response, CMHA declined

to provide any information, claiming the identity of the officer was being withheld

under the Confidential Law Enforcement Investigatory Records Exemption

(“CLEIR”). On December 3, 2020, IdeaStream followed up on its second inquiry

by submitting a written records request (the “personnel file request”) to CMHA,

seeking “the personnel file for CMHA officer James Griffiths, including work history

prior to working at CMHA, any performance evaluations and disciplinary records

available for this officer.” IdeaStream alleged it received no response to this request.

IdeaStream then initiated the present action. As a part of a court-

ordered status update, on April 5, 2021, CMHA certified that it had produced to

IdeaStream the personnel file of Officer Griffiths, with redactions for home address,

social security number, and phone number. The same order required CMHA to

submit under seal for in camera inspection any responsive records for which it was

claiming an exception or made any redaction. CMHA provided the unredacted

personnel file of Officer Griffiths and a single, roughly 20-minute surveillance

camera video. In the course of this action, IdeaStream acknowledged that CMHA

had satisfied its personnel file request. This left the video request as the remaining

unfulfilled records request in this case.

Mediation was initially set and then canceled at IdeaStream’s request.

After a motion to dismiss filed by CMHA was dismissed, mediation was later

attempted at CMHA’s request, but was ultimately unsuccessful. The briefing of the

parties indicates that, during mediation, the video produced by CMHA for in camera

inspection was shown to IdeaStream by CMHA. CMHA did not produce the video

or let IdeaStream record it at that time. CMHA filed a motion for summary judgment on June 4, 2021. On

June 28, 2021, IdeaStream filed a brief in opposition, and Cleveland 19 News

(WOIO), News 5 Cleveland (WEWS), WKYC Channel 3, The Ohio Association of

Broadcasters, the Ohio News Media Association, The Society of Professional

Journalists, the National Association of Black Journalists, and the National Press

Club Institute filed an amicus brief. On July 6, 2021, CMHA filed a reply brief.

Finally, the next day, CMHA filed a notice stating that it had released

the video in question, the only responsive record it had to IdeaStream’s remaining

records request.

Law and Analysis

The public has a right, enshrined in Ohio’s Public Records Act, R.C.

149.43, to access public records maintained by public offices in this state. State ex

rel. Summers v. Fox, 163 Ohio St.3d 217, 2020-Ohio-5585, 169 N.E.3d 625, ¶ 26.

Mandamus is one of the appropriate means for vindicating the public’s right to

access public records. R.C. 149.43(C)(1)(b). To be successful,

the requester must demonstrate that the requester has a clear legal right to compel the public office or person responsible for public records to allow the requester to inspect or copy the public record and that the public office or person responsible for public records has a clear legal duty to do so. State ex rel. Cincinnati Enquirer v. Sage, 142 Ohio St.3d 392, 2015-Ohio-974, 31 N.E.3d 616, ¶ 10. “[U]nlike in other mandamus cases, ‘[requesters] in public records cases need not establish the lack of an adequate remedy in the ordinary course of law.’” State ex rel. Caster v. Columbus, 151 Ohio St.3d 425, 2016-Ohio-8394, 89 N.E.3d 598, ¶ 15, quoting State ex rel. Data Trace Information Servs., L.L.C. v. Cuyahoga Cty. Fiscal Officer, 131 Ohio St.3d 255, 2012-Ohio-753, 963 N.E.2d 1288, ¶ 25. Welsh-Huggins v. Jefferson Cty. Prosecutor’s Office, Slip Opinion No. 2020-Ohio-

5371, ¶ 24.

The matter is before this court on summary judgment. Pursuant to

Civ.R. 56, summary judgment is appropriate when “an examination of all relevant

materials filed in the action reveals that there is no genuine issue as to any material

fact and that the moving party is entitled to judgment as a matter of law.” State ex

rel. Ames v. Portage Cty. Bd. of Commrs., Slip Opinion No. 2021-Ohio-2374, ¶ 11,

citing Civ.R. 56(C).

Mootness

“‘In general, providing the requested records to the relator in a public-

records mandamus case renders the mandamus claim moot.’” State ex rel. Striker

v. Smith, 129 Ohio St.3d 168, 2011-Ohio-2878, 950 N.E.2d 952, ¶ 22, quoting 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, ¶ 14. “A court considering a claim of mootness must

first determine what records were requested, and then whether all responsive

records were provided.” Andes v. Ohio Attorney Gen. Office, Ct. of Cl. No. 2017-

00144-PQ, 2017-Ohio-4251, ¶ 8.

Here, CMHA has certified to this court that the only record it has

responsive to IdeaStream’s video request is the video that it filed with the court for

in camera inspection. It has further informed the court that this video was released

to IdeaStream on July 7, 2021. IdeaStream’s May 19, 2021 status report indicates

that its personnel file request was satisfied when CMHA produced the redacted personnel file of Officer Griffiths. “Absent contrary evidence in the record,” an

averment that all responsive records have been produced is sufficient to

demonstrate that a records request is moot. State ex rel. Kesterson v. Kent State

Univ., 156 Ohio St.3d 22, 2018-Ohio-5110, 123 N.E.3d 895, ¶ 18. Here, there is no

such contrary evidence.

IdeaStream has been afforded the relief to which it would be entitled

if it were successful in this action. It has been provided the personnel file and video

it seeks. The action is, therefore, moot. State ex rel. Chapnick v. E. Cleveland City

School Dist. Bd. of Edn., 93 Ohio St.3d 449, 451, 755 N.E.2d 883 (2001), citing State

ex rel. Jones v. O’Connor, 84 Ohio St.3d 426, 704 N.E.2d 1223 (1999) (“Mandamus

does not lie to compel an act that has already been performed”). This portion of the

action is moot.

Statutory Damages and Costs

Even where a public records mandamus is moot, a relator may still be

entitled to statutory damages, costs, or attorney fees. State ex rel. Cincinnati

Enquirer v. Heath, 121 Ohio St.3d 165, 2009-Ohio-590, 902 N.E.2d 976, ¶ 18, citing

State ex rel. Cincinnati Enquirer v. Dupuis, 98 Ohio St.3d 126, 2002-Ohio-7041,

781 N.E.2d 163, ¶ 9; State ex rel. Ohio Patrolmen’s Benevolent Assn. v. Mentor, 89

Ohio St.3d 440, 448, 732 N.E.2d 969 (2000). IdeaStream has sought an award of

statutory damages and costs in this action.

R.C. 149.43(C)(2) provides for the award of statutory damages: If a requester transmits a written request by hand delivery, electronic submission, or certified mail to inspect or receive copies of any public record in a manner that fairly describes the public record or class of public records to the public office or person responsible for the requested public records, except as otherwise provided in this section, the requester shall be entitled to recover the amount of statutory damages set forth in this division if a court determines that the public office or the person responsible for public records failed to comply with an obligation in accordance with division (B) of this section.

The amount of statutory damages shall be fixed at one hundred dollars for each business day during which the public office or person responsible for the requested public records failed to comply with an obligation in accordance with division (B) of this section, 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 injury arising from lost use of the requested information. The existence of this injury shall be conclusively presumed. The award of statutory damages shall be in addition to all other remedies authorized by this section.

In the present case, IdeaStream has established that the video request

and personnel file request were sent via email to CMHA. Those emails are attached

to the complaint as exhibit Nos. 4 and 7. This constitutes delivery by electronic

means, potentially entitling IdeaStream to statutory damages. See State ex rel.

Armatas v. Plain Twp. Bd. of Trustees, Slip Opinion No. 2021-Ohio-1176, ¶ 26.

To be entitled to statutory damages, this court must find that CMHA

failed to comply with an obligation imposed on it in R.C. 149.43(B). R.C.

149.43(B)(1) and (B)(3) provide,

Upon request and subject to division (B)(8) of this section, all public records responsive to the request shall be promptly prepared and made available for inspection to any person at all reasonable times during regular business hours. Subject to division (B)(8) of this section, upon request by any person, a public office or person responsible for public records shall make copies of the requested public record available to the requester at cost and within a reasonable period of time. If a public record contains information that is exempt from the duty to permit public inspection or to copy the public record, the public office or the person responsible for the public record shall make available all of the information within the public record that is not exempt. When making that public record available for public inspection or copying that public record, the public office or the person responsible for the public record shall notify the requester of any redaction or make the redaction plainly visible.

***

If a request is ultimately denied, in part or in whole, the public office or the person responsible for the requested public record shall provide the requester with an explanation, including legal authority, setting forth why the request was denied. If the initial request was provided in writing, the explanation also shall be provided to the requester in writing. The explanation shall not preclude the public office or the person responsible for the requested public record from relying upon additional reasons or legal authority in defending an action commenced under division (C) of this section.

Here, in response to a question about security cameras, CMHA stated

that the device on which any videos were stored was in the possession of the city of

Cleveland. However, during the deposition testimony of CMHA Lieutenant Gregory

Drew, he acknowledged that even though the NVR was taken by the city of

Cleveland, CMHA was provided with a copy of the video recording at issue shortly

after the NVR was taken. CMHA’s statement in response to IdeaStream’s question

leaves the mistaken impression that it did not possess any videos of the officer-

involved shooting when, in fact, it did. Further, this was in response to a request for

information. While IdeaStream sought information about video records in

November 2020, its actual records request was not made until February 15, 2021.1

In CMHA’s answer to the complaint, it admitted receiving and acknowledging the

video request. The complaint also alleges that CMHA never responded to this

request. CMHA’s answer denies that allegation, but CMHA has produced no

evidence that it responded to the request, other than its response to the earlier

inquiry about whether a camera was working on the day of the shooting incident.

CMHA’s motion for summary judgment and reply brief do not allege that CMHA

ever provided a written response to the February 15, 2021 video request. CMHA

never responded to IdeaStream’s actual records request and did not deny the

request based on specific exceptions to the Public Records Act with citation to legal

authority.

IdeaStream also submitted a records request for the personnel file of

Officer Griffiths on December 3, 2020. The complaint alleged that CMHA did not

respond to the personnel file request prior to IdeaStream initiating this action.

CMHA has not refuted that allegation with any evidence in this action.

1 There is a difference between a request for information and a public records request. State ex rel. Kesterson, 156 Ohio St.3d 22, 2018-Ohio-5110, 123 N.E.3d 895, at ¶ 28. IdeaStream’s November 16, 2020 communication with CMHA asked a question; it does not seek a public record: “[T]here is a camera on the corner of the building where the incident occurred that seems to have been well-positioned to capture the entire thing. Was that camera on and working and capturing video Friday?” The February 15, 2021 communication sought public records. Here, CMHA failed to respond at all to the records requests sent on

December 3, 2020 and February 15, 2021, prior to IdeaStream initiating this public

records action on March 7, 2021. This court finds that CMHA violated its duty under

R.C. 149.43(B) to promptly respond to the public records requests by either

producing records or notifying IdeaStream of the denial of its requests with

supporting justification.

A court may reduce an award of statutory damages if it finds both of

the following:

(a) That, based on the ordinary application of statutory law and case law as it existed at the time of the conduct or threatened conduct of the public office or person responsible for the requested public records that allegedly constitutes a failure to comply with an obligation in accordance with division (B) of this section and that was the basis of the mandamus action, a well-informed public office or person responsible for the requested public records reasonably would believe that the conduct or threatened conduct of the public office or person responsible for the requested public records did not constitute a failure to comply with an obligation in accordance with division (B) of this section;

(b) That a well-informed public office or person responsible for the requested public records reasonably would believe that the conduct or threatened conduct of the public office or person responsible for the requested public records would serve the public policy that underlies the authority that is asserted as permitting that conduct or threatened conduct.

R.C. 149.43(C)(2)(a)-(b).

We do not find either factor here. CMHA chose not to respond to

records requests either affirmatively or negatively. That is not an option under the

public records act and not something a well-informed public office or person would consider reasonable. See State ex rel. Ware v. Akron, Slip Opinion No. 2021-Ohio-

624.

Further, CMHA’s earlier responses to IdeaStream’s requests for

information cannot be considered as responses to its records requests. For instance,

a request for information about the name of the officer involved in an officer-

involved shooting and the response that the officer’s name would not be released

based on a CLEIR exception is not applicable to a request for a specific individual’s

personnel records. Police officer personnel records are public records not subject to

the CLEIR exception. State ex rel. Natl. Broadcasting Co. v. Cleveland, 38 Ohio

St.3d 79, 83, 526 N.E.2d 786 (1988), citing State ex rel. Dispatch Printing Co. v.

Wells, 18 Ohio St.3d 382, 481 N.E. 2d 632 (1985); Barton v. Shupe, 37 Ohio St.3d

308, 525 N.E. 2d 812 (1988). See also State ex rel. Multimedia, Inc. v. Snowden, 72

Ohio St.3d 141, 143, 647 N.E.2d 1374 (1995); State ex rel. Morgan v. New Lexington,

112 Ohio St.3d 33, 2006-Ohio-6365, 857 N.E.2d 1208, ¶ 49

The video request was not the same as the earlier request for

information. As explained earlier, the denial of the request for information about

videos intimated that CMHA did not possess any videos because they were taken by

the city. However, IdeaStream established that CMHA was in possession of one

video responsive to the records request. Neither factor in R.C. 149.43(C)(2) is

present here for the reduction of statutory damages.

The complaint was filed on March 7, 2021. CMHA filed a notice on

April 5, 2021, that it provided the personnel file to IdeaStream. CMHA further notified this court that it provided the video in its possession on July 7, 2021. At a

rate of $100 per day, this court finds that IdeaStream is entitled to the maximum

amount of $1,000. See State ex rel. Ware, Slip Opinion No. 2021-Ohio-624, at ¶ 22.

IdeaStream also seeks an award of costs in this action. Costs may be

awarded if “the court orders the public office or the person responsible for the public

record to comply with division (B) of this section, * * * or [i]f the court makes a

determination described in division (C)(3)(b)(iii) of this section * * *.” R.C.

149.43(C)(3)(a)(i)-(ii). The second finding requires this court to determine that

[t]he public office or the person responsible for the public records acted in bad faith when the office or person voluntarily made the public records available to the relator for the first time after the relator commenced the mandamus action, but before the court issued any order concluding whether or not the public office or person was required to comply with division (B) of this section. * * * This division shall not be construed as creating a presumption that the public office or the person responsible for the public records acted in bad faith when the office or person voluntarily made the public records available to the relator for the first time after the relator commenced the mandamus action, but before the court issued any order described in this division.

R.C. 149.43(C)(3)(b)(iii).

We have found that the action is moot with respect to CMHA’s

obligations under R.C. 149.43(B). Therefore, to award costs, this court must find

that CMHA acted in bad faith when it did not respond to the personnel file request

in the three-month period between the request and the filing of the instant action,

or respond to the video request between its submission and the filing of this action.

“‘The term “bad faith” generally implies something more than bad judgment or negligence.’” [State ex rel. McDougald v. Greene, 161 Ohio St.3d 130, 2020-Ohio-3686, 161 N.E.3d 575,] ¶ 26, quoting State v. Tate, 5th Dist. Fairfield No. 07 CA 55, 2008-Ohio-3759, ¶ 13. It “‘imports a dishonest purpose, moral obliquity, conscious wrongdoing, breach of a known duty through some ulterior motive or ill will partaking of the nature of fraud. It also embraces actual intent to mislead or deceive another.’” Id., quoting Slater v. Motorists Mut. Ins. Co., 174 Ohio St. 148, 187 N.E.2d 45 (1962), paragraph two of the syllabus, rev’d on other grounds, Zoppo v. Homestead Ins. Co., 71 Ohio St.3d 552, 644 N.E.2d 397 (1994), paragraph one of the syllabus.

State ex rel. Summers, Slip Opinion No. 2021-Ohio-2061, at ¶ 18.

CMHA acknowledged receiving the personnel file request, and its

failure to respond at all constitutes more than negligence. The personnel file of a

police officer is a public record. State ex rel. Natl. Broadcasting, 38 Ohio St.3d at

83, 526 N.E.2d 786 (1988). It is not subject to the CLEIR exception because those

files do not relate to and are not maintained in relation to any specific investigation.

Id. “[P]ersonnel records reflecting the discipline of police officers are required to be

disclosed pursuant to R.C. 149.43.” Id., citing State ex rel. Dispatch Printing, 18

Ohio St.3d 382, 481 N.E. 2d 632 (1985); and Barton, 37 Ohio St.3d 308, 525 N.E.2d

812 (1988). The personnel file was clearly a public record subject to redaction and

release. CMHA does not argue otherwise. Therefore, we find that it acted in bad

faith when it did not respond to IdeaStream’s December 3, 2020 request in the three

months prior to IdeaStream filing this action.

Accordingly, we award IdeaStream its costs in this action.

CMHA’s motion for summary judgment is granted in part and denied

in part as set forth above. The action is moot as to IdeaStream’s request for

mandamus directing CMHA to produce public records and is, therefore, denied. IdeaStream is awarded $1000 in statutory damages and costs in this action.

Respondent to bear the costs of this action. The clerk of courts is directed to serve

notice of this judgment upon all parties as provided in Civ.R. 58(B).

Writ denied.

_______________________________ KATHLEEN ANN KEOUGH, JUDGE

LARRY A. JONES, SR., P.J., and LISA B. FORBES, J., CONCUR