State ex rel. Pietrangelo v. Avon Lake (Slip Opinion)

2016 Ohio 5725, 74 N.E.3d 419, 149 Ohio St. 3d 273
Ohio Supreme Court·Decided September 13, 2016·No. 2015-0197·Published·Cited by 48 cases

Opinions

Per Curiam.

{¶ 1} Relator, James Pietrangelo II, submitted a public-records request to the records clerk for the police department of the city of Avon Lake. Pietrangelo claims that he personally hand-delivered to the clerk a written public-records request on December 30, 2014, and that the department was completely unresponsive to the request until Pietrangelo filed this lawsuit in February 2015 against respondents, the city of Avon Lake and Duane Streator, the Avon Lake police chief. The department asserts that although Pietrangelo verbally requested an incident report and other records on December 30 regarding events that occurred on December 29, 2014, he did not submit a written request. The department also asserts that the clerk told Pietrangelo when the requested incident report would be available but that Pietrangelo neglected to come back and pick it up.

{¶ 2} Because the only requested records that have so far not been produced to Pietrangelo by respondents no longer exist, the case is moot. We therefore deny [274]*274the request for a writ of mandamus. And because Pietrangelo fails to prove that he made a hand-delivered written request, we deny statutory damages.

Facts

{¶ 3} On December 29, 2014, two Avon Lake police officers responded to a complaint made by Pietrangelo about juveniles at a skate park. The officers spoke to Pietrangelo and the juveniles and took handwritten notes, which they assert were for their personal convenience to help them recall what was said when they later prepared the incident report. Both officers attest that soon after the report was prepared, they destroyed the notes.

{¶ 4} Respondents assert that on December 30, 2014, Pietrangelo telephoned the police department and asked whether a report had been generated for the skate-park incident that occurred the day before. The records clerk, Michael Cipro, asserts that during the phone conversation, he advised Pietrangelo that no report had yet been generated. Cipro asserts that Pietrangelo came to the police station later that day, again inquiring about the incident report. Cipro informed Pietrangelo that the report was being prepared but would not be ready for two or three days and that he should check back at that time to obtain a copy. Cipro asserts that he did not use the term “draft” or “rough draft” when referring to the report and that Pietrangelo did not ask for a draft of the report.

{¶ 5} Respondents further assert that Pietrangelo did not make arrangements to have the report faxed, mailed, or otherwise delivered to him and that he did not submit a written request for records relating to the December 29, 2014 incident at the skate park. Respondents assert that Pietrangelo never followed up to obtain a copy of the report.

{¶ 6} According to respondents, Pietrangelo never delivered the December 30, 2014 letter attached to his mandamus complaint to the police department. Lieutenant Scott Fishburn asked each of the employees of the department whether he or she had received a December 30 written request from Pietrangelo, and each assured him that he or she had not. Lt. Fishburn also searched the department files in which written requests for records are kept and found no such request.

{¶ 7} Pietrangelo, however, asserts that he hand-delivered a written records request to the police department on December 30, 2014. Pietrangelo claims that when he hand-delivered the written request, he verbally asked Cipro if the police report was available for immediate release that day. Pietrangelo asserts that he never withdrew or modified the written request. According to Pietrangelo, in response to his verbal request, Cipro told him that only a draft version was available at that time, but Cipro did not offer to release it.

[275]*275{¶ 8} Pietrangelo further asserts that he suspected that the department would ignore his December 30, 2014 request, so he put the request in writing, rather than making only a verbal request. Pietrangelo asserts that the officers who responded to the skate park on December 29 had repeatedly “displayed opposition” to him. He asserts that he has filed a lawsuit against Avon Lake alleging that the skate park is a nuisance and that he believed that the department would withhold the records in order to frustrate the suit.

{¶ 9} Pietrangelo filed this original action for a writ of mandamus on February 5, 2015, asking for a writ ordering respondents to comply with the Public Records Act, R.C. 149.43, and to produce the requested records. Pietrangelo also seeks redress for a “pattern of refusal” by Avon Lake respondents regarding his records requests. He prays for statutory damages, costs, and attorney fees.

{¶ 10} We referred the case to mediation on February 17, 2015, but mediation was unsuccessful. On March 17, 2015, which Pietrangelo asserts was the day after the mediation failed, the department left Pietrangelo a telephone message telling him that the records he requested were ready for pickup. On March 18, Pietrangelo went to the police station, where a dispatcher gave him a compact disc containing, according to Pietrangelo, many, but not all, of the records sought in the request.

{¶ 11} The records had been assembled by Lt. Fishburn. The records on the disc are described by Lt. Fishburn as consisting of seven audio clips, one video clip, two calls for service reports, a public-records-redactions-and-exemptions form, and an incident report with Social Security numbers redacted, all relating to the December 29 skate-park incident.

{¶ 12} On March 24, 2015, the court returned the case to the regular docket, and respondents filed an answer and a motion for judgment on the pleadings, to which Pietrangelo responded.

Analysis

Mandamus

{¶ 13} “Mandamus is the appropriate remedy to compel compliance with R.C. 149.43, Ohio’s Public Records Act.” State ex rel. Physicians Commt. for Responsible Medicine v. Ohio State Univ. Bd. of Trustees, 108 Ohio St.3d 288, 2006-Ohio-903, 843 N.E.2d 174, ¶ 6; R.C. 149.43(C)(1).

{¶ 14} Although the Public Records Act is accorded liberal construction in favor of access to public records, “the relator must still establish entitlement to the requested extraordinary relief by clear and convincing evidence.” State ex rel. McCaffrey v. Mahoning Cty. Prosecutor’s Office, 133 Ohio St.3d 139, 2012-Ohio-4246, 976 N.E.2d 877, ¶ 16. Clear and convincing evidence is “that measure or degree of proof which is more than a mere ‘preponderance of the evidence,’ but [276]*276not to the extent of such certainty as is required ‘beyond a reasonable doubt’ in criminal cases, and which will produce in the mind of the trier of facts a firm belief or conviction as to the facts sought to be established.” Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954), paragraph three of the syllabus. In addition, unlike in other mandamus cases, “[r]elators in public-records cases need not establish the lack of an adequate remedy in the ordinary course of law.” 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.

Mootness

{¶ 15} Respondents correctly assert that “[i]n general, providing the requested records to the relator in a public-records mandamus case renders the mandamus claim moot.”

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State ex rel. Pietrangelo v. Avon Lake (Slip Opinion), 2016 Ohio 5725, 74 N.E.3d 419, 149 Ohio St. 3d 273 (Ohio 2016).

2016 Ohio 5725 (State ex rel. Pietrangelo v. Avon Lake (Slip Opinion)) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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