Opinion
No. 109682
01-22-2021
REGINALD E. BARNES, SR., Relator, v. CITY OF CLEVELAND DIVISION OF RECORDS ADMINISTRATION, Respondent.
Appearances: Reginald E. Barnes, Sr., pro se. Barbara A. Langhenry, Cleveland Director of Law, and Michael J. Pike, Assistant Director of Law, for respondent.
JOURNAL ENTRY AND OPINION JUDGMENT: WRIT DENIED Writ of Mandamus
Motion No. 541176
Order No. 109682
Appearances:
Reginald E. Barnes, Sr., pro se. Barbara A. Langhenry, Cleveland Director of Law, and Michael J. Pike, Assistant Director of Law, for respondent. ANITA LASTER MAYS, P.J.:
{¶ 1} Relator, Reginald E. Barnes Sr., seeks a writ of mandamus directing respondent, the city of Cleveland Division of Records Administration (the city), to produce records pursuant to public records requests made by Barnes. Barnes also seeks an award of statutory damages and costs. We grant the city's motion for summary judgment, deny Barnes's motion for summary judgment, deny the writ of mandamus as moot, and deny Barnes's request for an award of statutory damages and costs in this action.
I. Procedural and Factual History
{¶ 2} On April 13, 2020, Barnes filed a complaint for a writ of mandamus together with a motion for a temporary restraining order and injunction that sought to prohibit respondent from destroying any responsive records that may still exist. In the complaint, Barnes alleged that on or about January 28, 2020, he made a written public records request to the city using an unspecified means. The request asked for two things: (1) to inspect records related to "[a]ll vehicles impounded by the City whether due to immobilization, forfeiture, or seizure, and stored at the city operated impound lot or stored at a third-party provider — only including the month of September 2016[,]" and (2) the names of each third-party tow company used by the city during that time. Barnes alleged that the city promptly acknowledged his request and provided him with a tracking number where he could monitor his request online.
{¶ 3} On January 31, 2020, Barnes states the city denied his first request because the city does not keep separate records with the information requested. The city also indicated this request was vague and overbroad. The city did provide a response to the second request by providing a list of names of each third-party tow company the city worked with in September 2016.
Barnes acknowledges that the city provided records responsive to this request, rendering the mandamus action moot as to this claim. However, he asserts that future records requests may be denied. The present action cannot be used to govern future actions regarding potential violation of Ohio's Public Records Act or possible future denials of access to public records on behalf of others. State ex rel. Toledo Blade Co. v. Seneca Cty. Bd. of Commrs., 120 Ohio St.3d 372, 2008-Ohio-6253, 899 N.E.2d 961, ¶ 44.
{¶ 4} Barnes alleges that he revised his first request to attempt to make a complying request and also sought direction from the city on how to make a proper request. The request generally restated Barnes's first request: "Please provide all records with identifying information of all motor vehicles impounded by the City during the month of September 2016. This excludes protected personal identifiers." However, the request went on:
So that I can make a satisfying request, what do you mean by "separate record," and then by what method or manor [sic] does the City maintains [sic] the records in relation with impounded vehicles? * * * what are the existing records the City compiles and maintains on impounded motor vehicles in accordance with Cleveland Ordinances Chapter 405 Impounding, and also specifically, Cleveland Codified Ordinance 495.67 Pound Records?
{¶ 5} The city responded to Barnes's second communication by specifying what records existed and in what form they were maintained so that Barnes could make a complying request. The city also indicated that, pursuant to its records retention schedule, the records were set for destruction. Barnes did not further attempt to make a complying request after receiving the city's communication. Instead, Barnes filed the instant complaint seeking access to records, statutory damages, and costs. The city filed an answer on August 5, 2020, and a dispositive motion schedule was set by the court. The city then filed a motion for summary judgment on September 17, 2020, and supplemental exhibits on September 21, 2020. The city indicated that Barnes was free to inspect the records he sought, which were being stored at the city's law department. Through a motion to quash discovery filed by the city on September 29, 2020, and a brief in opposition filed by Barnes, Barnes indicated to this court that additional time was needed to conduct discovery. So, on October 2, 2020, a discovery schedule was set, followed by dates for the filing of dispositive motions together with any evidence permitted by Civ.R. 56(C). The order also set a timeframe within which Barnes could inspect the records. Despite the fact that the discovery order gave the parties until October 30, 2020, to complete discovery and dispositive motions were not due until November 6, 2020, Barnes filed a motion for summary judgment on October 5, 2020. The court held the motion in abeyance pending discovery. Both parties filed notices that they intended to rely on their previously filed motions for summary judgment, supplemented by additional arguments and evidence. Briefs in opposition were filed by both parties on November 20, 2020.
The response stated the city maintained "a copy of tow report sheets, copies of owner notifications sent by certified mail, disposition paperwork including either vehicle release paperwork or 'junked' affidavits, and printouts of related LEADS information."
Barnes filed an untimely supplemental brief on November 9, 2020. In the city's brief in opposition to Barnes's motion for summary judgment, it asked this court to strike the November 9, 2020 filing, which we did by separate journal entry.
II. Law and Analysis
{¶ 6} The case is before this court on cross-motions for summary judgment. Civ.R. 56(C) provides:
Summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence, and written stipulations of fact, if any, timely filed in the action, show 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. No evidence or stipulation may be considered except as stated in this rule. A summary judgment shall not be rendered unless it appears from the evidence or stipulation, and only from the evidence or stipulation, that reasonable minds can come to but one conclusion and that conclusion is adverse to the party against whom the motion for summary judgment is made, that party being entitled to have the evidence or stipulation construed most strongly in the party's favor.Under Civ.R. 56, summary judgment is appropriate when no genuine issue exists as to any material fact. When viewing the evidence most strongly in favor of the nonmoving party, a court will grant summary judgment when reasonable minds can reach only one conclusion that is adverse to the nonmoving party, entitling the moving party to judgment as a matter of law.
A. Standard for Mandamus in a Public Records Action
{¶ 7} R.C. 149.43, Ohio's Public Records Act, imposes a responsibility on public offices and officials throughout Ohio to ensure the public has access to public records maintained by those entities. "'Public record' means records kept by any public office." R.C. 149.43(A)(1). Unless an exception to disclosure enumerated in the Act applies, records maintained by a public office are open and available for inspection. After all, these are the people's records. Public offices, including the city and its divisions, have a responsibility to maintain a system of records that ensures easy public access. R.C. 149.43(B)(2). Its failure to do so is not grounds for denying a proper records request. State ex rel. Fox v. Cuyahoga Cty. Hosp. Sys., 39 Ohio St.3d 108, 111, 529 N.E.2d 443 (1988), quoting State ex rel. Beacon Journal Publishing Co. v. Andrews, 48 Ohio St.2d 283, 289, 358 N.E.2d 565 (1976).
{¶ 8} Where a public office or official has failed to provide records in a reasonable time, mandamus is one appropriate avenue of relief made available by R.C. 149.43(C)(1). State ex rel. Cincinnati Enquirer v. Pike Cty. Coroner's Office, 153 Ohio St.3d 63, 2017-Ohio-8988, 101 N.E.3d 396, ¶ 15, citing 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. The Public Records Act is also to be liberally construed so as to ensure broad access to records. Id.
{¶ 9} As with other mandamus actions, the relator has the burden of establishing that he or she has a clear legal right to the relief sought, and that the respondent has a clear legal duty to provide the requested relief. Here, that means that Barnes must show that he has a clear right to the records and the city has a clear legal duty to provide the records. McDougald v. Greene, Slip Opinion No. 2020-Ohio-4268, ¶ 4, citing State ex rel. Cincinnati Enquirer v. Sage, 142 Ohio St.3d 392, 2015-Ohio-974, 31 N.E.3d 616, ¶ 10. A public records mandamus action differs from other mandamus actions because whether there exists another adequate remedy at law is not considered. Welsh-Huggins v. Jefferson Cty. Prosecutor's Office, Slip Opinion No. 2020-Ohio-5371, ¶ 24, quoting 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.
B. Preliminary Matters
1. Injunctive Relief
{¶ 10} Along with the complaint, Barnes sought injunctive relief and a restraining order to preserve requested records after the city informed Barnes that the records, pursuant to the city's records retention schedule, were scheduled for destruction. However, this court generally does not have jurisdiction to grant injunctive relief. State ex rel. Pressley v. Indus. Comm., 11 Ohio St.2d 141, 150, 228 N.E.2d 631 (1967), citing State ex rel. Stine v. McCaw, 136 Ohio St. 41, 44, 23 N.E.2d 631 (1939). Instead, the court, on April 14, 2020, sua sponte issued an alternative writ directing the city to preserve the records during these proceedings. As such, Barnes's claim for injunctive relief and temporary restraining order are moot.
An action under R.C. 149.351 seeking injunctive relief for the unlawful destruction or threatened destruction of public records must be brought in a common pleas court with appropriate jurisdiction. Patriot Water Treatment, LLC v. Ohio Dept. of Natural Resources, 10th Dist. Franklin No. 13AP-370, 2013-Ohio-5398, ¶ 34.
{¶ 11} Therefore, Barnes's claim for injunctive relief and restraining order are denied.
2. Improper Respondent
{¶ 12} The city argues that the complaint should be dismissed because the city of Cleveland, Division of Records is not a proper party. The city claims its individual divisions are not sui juris — separate entities that are capable of being sued.
{¶ 13} The city's argument is not well-taken. R.C. 149.43(C)(1)(b) provides that the relief that may be obtained in mandamus is an order directing a public office or person responsible for the records to comply with the Act. A public office is defined to include "any state agency, public institution, political subdivision, or other organized body, office, agency, institution, or entity established by the laws of this state for the exercise of any function of government." R.C. 149.011(A).
{¶ 14} The Ohio Court of Claims has previously addressed a similar argument raised by the city of Cleveland, Division of Police in a public records mandamus action. Johnson v. Cleveland Police Dept., Ct. of Cl. No. 2018-00569PQ, 2018-Ohio-1715 (recommendation of the special master adopted May 16, 2018). There, the court of claims held that the obligations to maintain and allow access to public records is imposed by statute on every "public office" and the Cleveland Police Department is a public office. Id. at ¶ 4. For the purposes of this special statutory proceeding defined in the Public Record Act, any public office or official that maintains public records may be a proper respondent, including divisions of the city of Cleveland.
{¶ 15} The city cites two cases in support of its argument, but neither case supports the city's position in the present context. The first case dealt with an appeal from a civil tort action that held that a city police department was not an entity capable of being sued because it was not sui juris. Richardson v. Grady, 8th Dist. Cuyahoga Nos. 77381 and 77403, 2000 Ohio App. LEXIS 5960 (Dec. 18, 2000). This case does not address a statute that burdens "any public office" with a duty that may be enforced in mandamus.
{¶ 16} The second case involved a disputed tax lien placed on a parcel of land by a municipal utility pursuant to R.C. 2723.03. Johnson v. Clark Cty. Util. Dept., 2d Dist. Clark No. 2014-CA-31, 2014-Ohio-3356. The court recognized that the utilities department sued in that case may be sui juris for the purposes of that statute, but if the statute did not apply as the plaintiff argued, then the utilities department may not be capable of being sued. Id. at ¶ 9, fn. 2. Contrary to the city's argument, this case recognizes that whether a division of a political subdivision is sui juris may depend on whether a statute imposes an obligation on the division. The city's argument ignores the fact that the Public Records Act makes any public office subject to the act sui juris.
{¶ 17} Further, the city does not assert that Barnes has failed to name the proper party because the named respondent does not actually maintain the records he seeks. The city has only alleged that its individual divisions are not sui juris, and may not be sued. As Johnson demonstrates, the Public Records Act makes the city's divisions sui juris for the purposes of these special mandamus actions established in the Act. This is consistent with the numerous public records mandamus actions where employees or divisions of a political subdivision were named as respondent. See, e.g., State ex rel. Bardwell v. Rocky River Police Dept., 8th Dist. Cuyahoga No. 91022, 2009-Ohio-727, ¶ 54 (holding that the law department of a city is a public office capable of being sued and recognizing that it was well-settled that a city police department is a "public office" for purposes of R.C. 149.47).
C. Mootness
{¶ 18} Barnes has requested to inspect records relating to vehicles impounded by the city during the month of September 2016. In its motion for summary judgment, the city argues that beginning on September 8, 2020, it has made those records available for inspection, and on several occasions, Barnes has inspected them.
{¶ 19} Generally, making records available for inspection during the pendency of an action renders a claim for relief in mandamus moot. Strothers v. Norton, 131 Ohio St.3d 359, 2012-Ohio-1007, 965 N.E.2d 282, ¶ 21, quoting R.C. 149.43(B)(1). See also Johns v. Allen, 11th Dist. Trumbull No. 2013-T-0007, 2013-Ohio-2045, ¶ 11. The city has alleged, supported by affidavit, that it has made the records available for inspection during its limited business hours necessitated by state and county emergency health declarations, and that Barnes has inspected the records on several occasions.
{¶ 20} Michael J. Pike executed an affidavit attached to the city's notice filed November 6, 2020. He averred that, on September 8, 2020, Pike emailed Barnes and informed him that records were ready for inspection. However, Barnes did not review the records at that time. After this court extended the period for discovery on October 5, 2020, Barnes sought to review the records by emailing Pike on October 7, 2020. Pike further averred that the city made records available for inspection on four days between October 3 through October 21, and that Barnes in fact inspected records on three of those days. Pike averred that the records were available for inspection by appointment during the current hours of operations of the city. The city alleges that as a result of it making the records available for inspection and Barnes inspecting the records, this action is moot.
The city's hours of operations and access to city buildings has been impacted by the COVID-19 pandemic. The affidavit indicates that the city has limited hours of operation. --------
{¶ 21} In Strothers, a public records requestor had requested to inspect certain records. In response, a public official informed the requestor that he could make an appointment during regular business hours to inspect the records, but the requestor failed to do so. Strothers at ¶ 8. The Strothers Court affirmed the decision of the court of appeals finding that the only evidence in the records before the court was the uncontroverted affidavit offered by the appellee-respondent that the records were made available for inspection, rendering the action moot. Id. at ¶ 13.
{¶ 22} The same is true here. Pike's affidavit provides unrebutted evidence that the records were made available for inspection by appointment and during the city's reduced business hours that were in place.
{¶ 23} The city has carried its burden of demonstrating, using evidence allowed under Civ.R. 56, that no material question of fact exists in this regard. This triggers Barnes's obligation to come forward with evidence to demonstrate that a question of fact exists. Dresher v. Burt, 75 Ohio St.3d 280, 293, 1996-Ohio-107, 662 N.E.2d 264 ("[I]f the moving party has satisfied its initial burden, the nonmoving party then has a reciprocal burden * * * to set forth specific facts showing that there is a genuine issue for trial * * *.").
{¶ 24} In response to the city's motion, Barnes has not offered any evidentiary quality materials to rebut the city's claim.
Civ.R. 56(C) sets forth the types of evidence that may be considered in granting a motion for summary judgment — namely, "pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence, and written stipulations of fact." When deciding a summary-judgment motion, it is generally error for a court to rely on other types of evidence that has not been authenticated by way of an attached affidavit. State ex rel. Boggs v. Springfield Local School Dist. Bd. of Edn., 72 Ohio St.3d 94, 97, 647 N.E.2d 788 (1995); Rogoff v. King, 91 Ohio App.3d 438, 446, 632 N.E.2d 977 (8th Dist.1993) ("The proper procedure for the introduction of evidentiary matter not specifically authorized by Civ.R. 56(C) is to incorporate the material by reference into a properly framed affidavit").State ex rel. Parker v. Russo, 158 Ohio St.3d 123, 2019-Ohio-4420, 140 N.E.3d 602, ¶ 10.
"'Mere speculation and unsupported conclusory assertions are not sufficient'" to meet the nonmovant's reciprocal burden to set forth specific facts to show that a genuine issue exists. Bank of New York Mellon v. Bobo, 4th Dist., 2015-Ohio-4601, ¶ 13, 50 N.E.3d 229, quoting Loveday v. Essential Heating, Cooling & Refrigeration, Inc., 4th Dist. Gallia No. 08CA4, 2008-Ohio-4756, ¶ 9. Thus, "'resting on mere allegations against a motion for summary judgment * * * is insufficient'" to defeat a properly supported summary judgment motion.Graf v. Nelsonville, 4th Dist. Athens No. 18CA28, 2019-Ohio-2386, ¶ 40, citing Jackson v. Alert Fire & Safety Equip., Inc., 58 Ohio St.3d 48, 52, 567 N.E.2d 1027 (1991), quoting King v. K.R. Wilson Co., 8 Ohio St.3d 9, 10-11, 455 N.E.2d 1282 (1983).
{¶ 25} Barnes's own motion for summary judgment is not supported by any evidentiary quality materials that show that the action is not moot. Barnes's motion for summary judgment has no evidence permissible under Civ.R. 56 that suggests the city refused Barnes an opportunity to review the records after September 8, 2020. Barnes's affidavit in support of his motion for summary judgment states that he has yet to receive the requested records, but this affidavit was first submitted on October 5, 2020, but it was unsworn. The same affidavit, properly executed, was then filed on October 7, 2020. The affidavit or any supplemental affidavit fails to address the events that occurred after early October, including Barnes actually reviewing the records offered by the city on three days in mid-to-late October, as averred by Pike. "In extraordinary-writ cases, courts are not limited to the facts at the time a proceeding is commenced, but should consider facts at the time it determines whether to grant the writ." State ex rel. Everhart v. McIntosh, 115 Ohio St.3d 195, 2007-Ohio-4798, 874 N.E.2d 516, ¶ 11.
{¶ 26} Barnes had an opportunity to present such evidence, either in a motion for summary judgment or in opposition to the city's motion for summary judgment, but failed to do so. Barnes has merely alleged in his motion for summary judgment and brief in opposition to the city's motion for summary judgment that the city has limited access or denied him access to the records, but he does not point to any evidence supporting this claim. In order to create a material question of fact, a factual allegation such as this must be supported by evidence permissible under Civ.R. 56.
{¶ 27} Barnes has offered no "pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence, or written stipulations of fact" that address the city's averments that the city offered Barnes the opportunity to inspect records and Barnes has inspected the records at issue. No evidence, properly authenticated, rebuts the city's argument.
{¶ 28} Therefore, the city's motion for summary judgment is granted. Barnes's claim for relief in mandamus is moot in light of the city's sworn statements that Barnes has been provided with the opportunity to inspect records beginning in early September, and has in fact inspected the records at issue in this case.
D. Statutory Damages
{¶ 29} Even when a claim for relief in mandamus becomes moot, a court may award statutory damages pursuant to R.C. 149.43(C)(2). State ex rel. Kesterson v. Kent State Univ., 156 Ohio St.3d 13, 2018-Ohio-5108, 123 N.E.3d 887, ¶ 22.
{¶ 30} Barnes has requested statutory damages in his complaint. Therefore, Barnes must demonstrate, by clear and convincing evidence, that he is entitled to statutory damages in this action. Such damages may only be awarded where 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." R.C. 149.43(C)(2). "Under the Public Records Act, a requester seeking statutory damages must prove that the request was delivered 'by hand delivery, electronic submission, or certified mail.'" State ex rel. Ware v. Giavasis, Slip Opinion No. 2020-Ohio-5453, ¶ 26, quoting R.C. 149.43(C)(2).
{¶ 31} The Supreme Court of Ohio has recently reiterated that only these three means of transmission entitle a relator to statutory damages. State ex rel. McDougald, Slip Opinion No. 2020-Ohio-3686, at ¶ 14. There, it was determined that using a written communication system established for prisoner communications to administrative staff of a correctional facility, known as a "kite system," did not satisfy this requirement. Id. at ¶ 18.
{¶ 32} Here, Barnes has not alleged in his complaint, motion for summary judgment, or any affidavit in support that his records request was made by any of these three means.
The "burden of production" in a civil case requires that the plaintiff produce sufficient evidence to support the case and that the defendant produce sufficient evidence of any affirmative defenses. [State v. Robinson, 47 Ohio St.2d 103, 107, 351 N.E.2d 88 (1976)]. The party having the burden on any given issue will lose on that issue as a matter of law if sufficient evidence is not produced. Id.Welsh-Huggins, Slip Opinion No. 2020-Ohio-5371, at ¶ 21.
{¶ 33} Barnes's complaint only states that a public records request was made on or about a certain date, not how the request was made. The affidavits in support of his complaint, motion for summary judgment, and opposition to the city's motion for summary judgment are similarly vague about how this request or subsequent requests were made.
{¶ 34} The method of delivery is also not apparent from the documents Barnes has submitted in this case. A document purported to be Barnes's initial records request contains a certificate of service that states: "This document was received by the City of Cleveland, Division of Records Administration, on January 28, 2020, by the following person." The document then contains the purported signature of "Elena Bermudez." This certificate of service does not indicate by what method it was served or received, or who Bermudez is in relation to the records request. The modified request, dated February 3, 2020, has a substantially similar certificate of service.
{¶ 35} Barnes has failed to show by clear and convincing evidence a necessary element of his claim — that he used one of the methods of delivery that make the award of statutory damages available under R.C. 149.47(C)(2). Therefore, Barnes has failed to show entitlement to statutory damages. His request for statutory damages is denied.
E. Costs
{¶ 36} Where a court does not order the release of records, the award of costs is governed by R.C. 149.43(C)(3)(a)(ii). State ex rel. McDougald, Slip Opinion No. 2020-Ohio-3686, at ¶ 24. This section allows for an award of costs where a court makes a "bad faith" finding under R.C. 149.43(C)(3)(a)(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. * * * 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.
{¶ 37} Therefore, Barnes must show that the city acted in bad faith in denying his request or in failing to timely allow inspection of the records at issue in this case.
"'The term "bad faith" generally implies something more than bad judgment or negligence.'" State v. Powell, 132 Ohio St.3d 233, 2012-Ohio-2577, 971 N.E.2d 865, ¶ 81, quoting State v. Tate, 5th Dist. Fairfield No. 07 CA 55, 2008-Ohio-3759, ¶ 13. 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 Hoskins v. Aetna Life Ins. Co., 6 Ohio St.3d 272, 276, 452 N.E.2d 1315 (1983), quoting Slater v. Motorists Mut. Ins. Co., 174 Ohio St. 148, 187 N.E.2d 45 (1962), paragraph two of the syllabus, overruled on other grounds, Zoppo v. Homestead Ins. Co., 71 Ohio St.3d 552, 664 N.E.2d 397 (1994), paragraph one of the syllabus.State ex rel. McDougald at ¶ 26.
{¶ 38} Here, Barnes has not shown that the city acted in bad faith. Barnes's initial request was filed on or about January 28, 2020. Barnes acknowledges that the city promptly responded with a denial based on the fact that the city did not maintain separate records that could be provided because of the vagueness of the request on January 31, 2020. When, on February 5, 2020, Barnes filed a modified request and sought direction from the city on the form of records that were available, the city responded with the form of records and how they were stored on April 7, 2020. Barnes did not further attempt to make a complying request. Instead, he initiated this action on April 13, 2020. The city then made records available for inspection on and after September 8, 2020.
{¶ 39} Barnes argues the city acted improperly when the city indicated in response to his second communication that the records were set for destruction. However, "Ohio law * * * permits a public servant to dispose of public records in accord with a valid retention schedule." Patriot Water Treatment, LLC, 10th Dist. Franklin No. 13AP-370, 2013-Ohio-5398, at ¶ 32. Barnes relies on only speculation to suggest that the city acted improperly. Barnes has not pointed to any records retention schedule, municipal ordinance, or statutory duty that would prohibit the destruction of records in accordance with the city's records retention schedule. Barnes has failed to demonstrate that the city's actions were unlawful or in bad faith in this respect.
{¶ 40} We find that the city has not acted in bad faith in this case. In the midst of a global pandemic, the city responded to Barnes's modified records request in approximately two months. It provided him with the type and format of records that were maintained by the city in relation to impounded vehicles. The volume of records sought by Barnes are voluminous, containing some 14,000 pages by the city's estimation. Barnes's broad, discovery-style request for "all records" without specifying the records sought is the type of request that has been classified as overbroad and vague.
{¶ 41} For instance, the Ohio Supreme Court found that a records request that requested an undefined subset of records for a two-week period was improper. State ex rel. Shaughnessy v. Cleveland, 149 Ohio St.3d 612, 2016-Ohio-8447, 76 N.E.3d 1171, ¶ 10.
{¶ 42} There, a requestor sought records from the Cleveland Police Department that requested police reports from a certain district of the police department for "all domestic violence related aggravated assaults or assaults where the victims sought medical care at a hospital." Id. at ¶ 9. The court held that such a request was invalid and could be refused by a records custodian because the request required the city to research within its records to identify those records that may comply with the request. Id. at ¶ 10. Barnes's request for records related to "all vehicles impounded by the City whether due to immobilization, forfeiture, or seizure, and stored at the city operated impound lot[,] or stored at a third-party provider * * * " would require the city to research within several subsets of records to provide responses. What Barnes classifies as his revised request suffers from the same problem.
{¶ 43} In a case with a similar type of request as the one presented by Barnes, the Ohio Court of Claims was faced with a request for "'[a]ll records generated while processing public-records request 15-2220.'" Decrane v. Cleveland, Ct. of Cl. No. 2018-00358PQ, 2018-Ohio-3651, ¶ 1, adopted by DeCrane v. Cleveland, 2018-Ohio-4363, 2018 Ohio Misc. LEXIS 2091 (Ohio Ct. Cl., Sept. 20, 2018). Even though the request was limited in duration, the court of claims determined that the public agency was justified in denying such a request based on vagueness. The court determined "[a] discovery-style demand to conduct an officewide search for records containing information 'regarding or related to' an agency, program or person is improper as a public records request." Id. at ¶ 6, citing State ex rel. Thomas v. Ohio State Univ., 71 Ohio St.3d 245, 245-246, 643 N.E.2d 126 (1994). The court recognized that "a request for 'any and all records generated * * * containing any reference whatsoever to [the requester]' fails to identify the records sought with sufficient clarity." Id., citing State ex rel. Dillery v. Icsman, 92 Ohio St.3d 312, 314, 750 N.E.2d 156 (2001); State ex rel. Morgan v. Strickland, 121 Ohio St.3d 600, 2009-Ohio-1901, 906 N.E.2d 1105, ¶ 14-15; State ex rel. O'Shea & Assocs. Co., L.P.A. v. Cuyahoga Metro. Hous. Auth., 190 Ohio App.3d 218, 2010-Ohio-3416, 941 N.E.2d 807, ¶ 7-11 (8th Dist.), rev'd in part on other grounds, 131 Ohio St. 3d 149, 2012-Ohio-115, 962 N.E.2d 297; State ex rel. Youngstown Publishing Co. v. Youngstown, 7th Dist. Mahoning No. 05MA66, 2006-Ohio-7272, ¶ 28-32; Gannett GP Media, Inc. v. Ohio Dept. of Pub. Safety, Ct. of Cl. No. 2017-00051-PQ, 2017-Ohio-4247, ¶ 12.
{¶ 44} Also, similar to the present case, the requestor in Decrane did not attempt to make a complying request once the city's objections to the request were known. Id. at ¶ 8. Here, the city informed Barnes of the type of records it maintained that related to the subject matter of Barnes's request, and in what form they were kept. Thereafter, Barnes did not attempt to make a revised request.
{¶ 45} This court does not need to decide the propriety of the city's denials of Barnes's requests because that portion of the action is moot. However, based on the above rationale, we find that the city's actions in this case were not in bad faith. Therefore, the award of costs is unjustified.
{¶ 46} The present action for the release of records is moot because the city has made the requested records available for inspection. The request for statutory damages is denied because Barnes has not shown that he is entitled to statutory damages by serving his request in the manner specified by R.C. 149.43(C)(2). Finally, Barnes has failed to show that the city acted in bad faith, so an award of costs is not justified in this case. The city's motion for summary judgment is granted. Barnes's motion for summary judgment is denied. The alternative writ, issued on April 14, 2020, is dissolved. Each party to bear its own costs. The clerk is directed to serve upon the parties notice of this judgment and its date of entry upon the journal. Civ.R. 58(B).
{¶ 47} Writ denied. /s/_________
ANITA LASTER MAYS, PRESIDING JUDGE KATHLEEN ANN KEOUGH, J., and
MARY EILEEN KILBANE, J., CONCUR