State ex rel. Saalim v. Lucas Cty. Sheriff's Office

2022 Ohio 2290

• Court: Ohio Court of Appeals
• Decided: June 30, 2022
• Docket: L-21-1135
• Status: Published

Opinion

[Cite as State ex rel. Saalim v. Lucas Cty. Sheriff's Office, 2022-Ohio-2290.]

IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT LUCAS COUNTY

State, ex rel. Lutfi Said Saalim Court of Appeals No. L-21-1135

Relator

v.

Lucas County Sheriff's Office DECISION AND JUDGMENT c/o Michael J. Navarre, in his capacity as Lucas County Sheriff Decided: June 30, 2022

Respondent

*****

Thomas J. Walsh, II and Hassanayn M. Joseph, for Relator.

Julia R. Bates, Lucas County Prosecuting Attorney, and John A. Borell and Kevin A. Pituch, Assistant Prosecuting Attorneys, for Respondent

PIETRYKOWSKI, J.

{¶ 1} This matter is before the court on the parties’ final merit briefs on relator’s

petition for a writ of mandamus. For the reasons that follow, we deny relator’s petition for a writ of mandamus as moot, award relator $1,000 in statutory damages, and deny any

award of statutory attorney fees or court costs.

I. Facts and Procedural Background

{¶ 2} By way of background, the present matter was initiated on July 12, 2021,

when relator, Lutfi Said Saalim, petitioned for a writ of mandamus seeking an order to

compel respondent, the Lucas County Sheriff’s Office, to produce public records that

were responsive to relator’s request for 17 different categories of documents. In his

petition, relator asserted that his public records request was submitted on May 25, 2021,

and he had not received a meaningful response to his request for approximately 50 days.

Relator stated that the documents were “vital to the timely investigation and prosecution

of the Relator’s civil claims” pertaining to an incident that took place between relator and

a Lucas County Sheriff’s deputy. Relator subsequently filed a civil action in federal

court based on the incident. On July 15, 2021, this court issued an alternative writ and

ordered respondent to either do the act requested, or show cause why it was not required

to do so by filing an answer or a motion to dismiss.

{¶ 3} In response to our alternative writ, respondent filed a motion to dismiss,

arguing that the matter was now moot because on July 14, 2021, respondent complied

with the public records request and turned over 259 pages of documents. Relator

opposed the motion to dismiss, arguing that there were still several categories of

documents that had not been provided. On September 8, 2021, we denied respondent’s

2. motion to dismiss, finding that respondent had not provided evidence showing that it had

responded to all of relator’s public records requests.

{¶ 4} Thereafter, a pretrial hearing was held to clarify and narrow the issues before

the court, in particular whether respondent had produced all responsive documents, or

whether respondent was withholding additional documents and, if so, the reasons for non-

production. As a result of this pretrial hearing, respondent agreed to conduct a search for

additional documents.

{¶ 5} On September 29, 2021, respondent notified the court that it had produced a

video and an additional 10 pages of reports to relator. Respondent further stated that it

possessed no additional documents responsive to relator’s public records requests.

Simultaneously, respondent filed an answer to relator’s mandamus complaint.

{¶ 6} On December 16, 2021, a status conference was held, at which the court

reviewed the matters that were still in dispute amongst the parties. Respondent advised

that additional production of certain body-camera videos would be made to relator. The

court then ordered that relator would have an opportunity to conduct discovery by

submitting interrogatories and requests for admissions. Following respondent’s response

to the discovery, the parties would then have 20 days to submit their case in writing.

{¶ 7} On February 8, 2022, respondent answered relator’s interrogatories and

requests for admissions. In its response, respondent objected to each of relator’s

interrogatories on the basis that the interrogatory was not proper for a mandamus action,

but instead sought information relevant only to relator’s civil claims in the federal court.

3. Respondent then filed a motion for summary judgment on February 25, 2022. On March

28, 2022, relator filed his opposition to the motion for summary judgment, as well as a

motion to compel respondent to answer the interrogatories.

{¶ 8} On May 18, 2022, this court entered its judgment denying relator’s motion

to compel, and granting respondent’s motion for summary judgment, in part. As to the

motion for summary judgment, this court held that no genuine issue of material fact

existed, and that respondent had provided nearly all of the requested records listed in

relator’s mandamus complaint. However, this court held that a genuine issue of fact

remained over whether a February 10, 2021 audio recording existed and was produced to

relator. Thus, this court found that the mandamus action would proceed solely as it

related to the February 10, 2021 audio recording. We then ordered the parties to submit

their final merit briefs regarding whether a writ of mandamus should issue, and whether

relator is entitled to, and the amount of, any statutory damages, reasonable attorney fees

and/or court costs under R.C. 149.43.

{¶ 9} The parties have submitted their merit briefs, and the matter is now

decisional.

II. Analysis

{¶ 10} This mandamus action presents three issues, only one of which is in dispute

between the parties.

4. A. Writ of Mandamus

{¶ 11} The first issue is whether a writ of mandamus should be entered. Both

parties agree that the remaining public record, the February 10, 2021 audio recording has

been produced to relator, thereby rendering the mandamus petition moot. See State ex

rel. Ellis v. Maple Heights Police Dept., 158 Ohio St.3d 25, 2019-Ohio-4137, 139 N.E.3d

873, ¶ 7 (mandamus claim is moot where the respondent has provided all of the requested

records); 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 (“In general, providing the requested

records to the relator in a public-records mandamus case renders the mandamus claim

moot.”). Accordingly, we deny relator’s petition for a writ of mandamus.

B. Statutory Damages

{¶ 12} The second issue is whether relator is entitled to statutory damages under

R.C. 149.43(C)(2), which provides, in relevant part,

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

5. 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.

{¶ 13} Again, the parties agree that relator is entitled to statutory damages in the

maximum amount of $1,000.00. Accordingly, we hold that relator is entitled to statutory

damages under R.C. 149.43(C)(2), and respondent is ordered to pay to relator the

maximum amount of $1,000.00.

C. Statutory Award of Attorney Fees and Court Costs

{¶ 14} Finally, the third issue is whether relator is entitled to reasonable attorney

fees and/or court costs under R.C. 149.43(C)(3).

{¶ 15} As to attorney fees, R.C. 149.43(C)(3) provides,

6. (b) If the court renders a judgment that orders the public office or the

person responsible for the public record to comply with division (B) of this

section or if the court determines any of the following, the court may award

reasonable attorney’s fees to the relator, subject to division (C)(4) of this

section:

(i) The public office or the person responsible for the public records

failed to respond affirmatively or negatively to the public records request in

accordance with the time allowed under division (B) of this section.

(ii) The public office or the person responsible for the public records

promised to permit the relator to inspect or receive copies of the public

records requested within a specified period of time but failed to fulfill that

promise within that specified period of time.

(iii) 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

concluding whether or not the public office or person was required to

comply with division (B) of this section. No discovery may be conducted

on the issue of the alleged bad faith of the public office or person

responsible for the public records. This division shall not be construed as

creating a presumption that the public office or the person responsible for

7. 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.

{¶ 16} Of the four justifications for an award of attorney fees listed above, relator

argues that two of them apply: (1) this court “render[ed] a judgment that order[ed] the

public office or the person responsible for the public record to comply with division (B)

of this section” when it entered the alternative writ on July 15, 2021; and (2) respondent

acted in bad faith as set forth in R.C. 149.43(C)(3)(b)(iii).

{¶ 17} Notably, the two justifications relied upon by relator for an award of

attorney fees are the same two that would entitle relator to receive court costs. See State

ex rel. Hedenberg v. North Central Correctional Complex, 162 Ohio St.3d 85, 2020-

Ohio-3815, 164 N.E.3d 358, ¶ 13 (“Court costs may be awarded in a public-records case

in two circumstances. First, an award of court costs is mandatory when the court grants a

writ of mandamus compelling a public office to comply with its duties under the Public

Records Act. R.C. 149.43(C)(3)(a)(i). Second, court costs shall be awarded when the

court determines that the public office ‘acted in bad faith when [it] 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’ to

grant a writ of mandamus. See R.C. 149.43(C)(3)(a)(ii) and (iii).”). Specifically, as to

court costs, R.C. 149.43(C)(3) provides,

8. (a)(i) If the court orders the public office or the person responsible

for the public record to comply with division (B) of this section, the court

shall determine and award to the relator all court costs, which shall be

construed as remedial and not punitive.

(ii) If the court makes a determination described in division

(C)(3)(b)(iii) of this section, the court shall determine and award to the

relator all court costs, which shall be construed as remedial and not

punitive.

{¶ 18} Because relator relies upon the same justifications for both an award of

attorney fees and an award of court costs, we will address those two items together.

{¶ 19} First, relator argues that the July 15, 2021 alternative writ was an order for

respondent to comply with R.C. 149.43(B). This is incorrect. An alternative writ is a

procedural mechanism whereby the court instructs the respondent to respond to the

petition by either doing the act requested, or by showing cause why it is not required to

do so by filing an answer or a motion to dismiss. It is not an order for the respondent to

comply with R.C. 149.43(B) as described in R.C. 149.43(C)(3)(a)(i). See, e.g., State ex

rel. Horton v. Kilbane, Slip Opinion No. 2022-Ohio-205, ¶ 38 (relator not entitled to

court costs because the court did not grant a writ of mandamus, even though the court

entered an alternative writ); Hedenberg at ¶ 13; State ex rel. McDougald v. Greene, 161

Ohio St.3d 130, 2020-Ohio-3686, 161 N.E.3d 130, ¶ 23. Thus, relator is not entitled to

attorney fees under R.C. 149.43(C)(3)(b), or to court costs under R.C. 149.43(C)(3)(a)(i).

9. {¶ 20} Alternatively, relator argues that he is entitled to attorney fees and court

costs because respondent acted in bad faith. “The term ‘bad faith’ generally implies

something more than bad judgment or negligence.” McDougald at ¶ 26, quoting State v.

Powell, 132 Ohio St.3d 233, 2012-Ohio-2577, 971 N.E.2d 865, ¶ 81. “Bad faith ‘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 Powell at ¶ 81.

{¶ 21} Relator contends that bad faith is demonstrated by respondent’s failure to

timely respond to the public records request before the writ of mandamus was filed, by

respondent’s inaccurate representations to the court on two occasions that it had turned

over all requested documents, and by the fact that respondent just recently—and more

than a year after the original request—finally provided the audio recording from the

February 10, 2021 internal affairs interview.

{¶ 22} We find this case to be analogous to the facts in McDougald. In that case,

McDougald submitted a public records request on December 5, 2018, for the Department

of Administrative Services’ general schedule (“DAS schedule”), and a request on

February 3, 2019, for a copy of a report that had been filed by Brian Barney concerning a

use-of-force incident involving McDougald (“Barney report”). McDougald at ¶ 2.

Greene, the individual responsible for responding to public records requests, notified

McDougald that the Barney report did not exist. Id. at ¶ 3. On June 28, 2019,

McDougald filed a complaint for a writ of mandamus. Greene answered that he provided

10. the DAS report to McDougald on July 22, 2019, after McDougald had filed the

complaint. Id. at ¶ 4. Greene also continued to assert that the Barney report did not exist.

Id. An alternative writ was issued, and on October 15, 2019, Greene once again asserted

that the Barney report did not exist. Id. at ¶ 5. However, two weeks later, Greene

discovered that the Barney report did exist, and he averred that he provided the report to

McDougald on the same day. Id. ¶ 6.

{¶ 23} In determining that McDougald was not entitled to an award of court costs,

the Ohio Supreme Court reasoned that “R.C. 149.43(C)(3)(b)(iii) does not create a

presumption that the person responsible for retrieving the public records acted in bad

faith when he makes the records available to the requester for the first time after the

requester files a petition for a writ of mandamus but before a court issues a writ.” Id. at ¶

25. In addition, the court found that there was no evidence of bad faith regarding the

Barney report, noting, “As recently as October 2019, Greene swore in an affidavit that he

believed the Barney report did not exist. Greene reached this conclusion because he

looked for the report in a stand-alone file but failed to find it. When Greene later found

the report in a package of documents, he provided it to McDougald that very same day.”

Id. at ¶ 27.

{¶ 24} Similarly, in this case, respondent’s failure to timely respond to relator’s

original public records request does not create a presumption that respondent acted in bad

faith. Furthermore, like McDougald, respondent’s representations to the court that it had

turned over all requested document does not demonstrate bad faith where it had

11. conducted a search and produced a plethora of documents, and then later, in consultation

with relator, respondent searched for additional documents and disclosed them once

located.

{¶ 25} Therefore, we find that relator has not demonstrated that respondent acted

in bad faith under R.C. 149.43(C)(3)(b)(iii), and thus relator is not entitled to a statutory

award of attorney fees or court costs under R.C. 149.43(C)(3).

III. Conclusion

{¶ 26} Accordingly, upon review, we find that relator’s petition for a writ of

mandamus is moot, and it is hereby denied. In addition, we find that relator is not

entitled to an award of attorney fees or court costs under R.C. 149.43(C)(3), and his

request for the same is denied. Finally, we find that relator is entitled to an award of

statutory damages under R.C. 149.43(C)(2), and we hereby order respondent to pay the

maximum award of $1,000.00 to relator.

{¶ 27} Each party is responsible for its own costs.

Writ denied.

To the clerk: Manner of service.

The clerk of court is directed to serve upon all parties, within three days, a copy of

this decision in a manner prescribed by Civ.R. 5(B).

It is so ordered.

12. State, ex rel. Lutfi Said Saalim v. Lucas County Sheriff's Office C.A. No. L-21-1135

Mark L. Pietrykowski, J. ____________________________ JUDGE Christine E. Mayle, J. ____________________________ Myron C. Duhart, J. JUDGE CONCUR. ____________________________ JUDGE

This decision is subject to further editing by the Supreme Court of Ohio’s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.

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