Opinion
Case No. 2019-01143PQ
05-21-2020
LARRY D. FIELDS Requester v. POLICE PUBLIC RECORDS SECTION Respondent
REPORT AND RECOMMENDATION
{¶1} The Public Records Act, R.C. 149.43, provides that upon request, a public office "shall make copies of the requested public record available to the requester at cost and within a reasonable period of time." R.C. 149.43(B)(1). Ohio courts construe the Public Records Act liberally in favor of broad access, with any doubt resolved in favor of disclosure of public records. State ex rel. Hogan Lovells U.S., L.L.P. v. Dept. of Rehab. & Corr., 156 Ohio St.3d 56, 2018-Ohio-5133, 123 N.E.3d 928, ¶ 12. R.C. 2743.75 provides "an expeditious and economical procedure" to resolve public records disputes in the Court of Claims. A claim under R.C. 2743.75 to enforce the Public Records Act must be established by clear and convincing evidence. Hurt v. Liberty Twp., 2017-Ohio-7820, 97 N.E.3d 1153, ¶ 27-30 (5th Dist.).
{¶2} On November 4, 2019, requester Larry Fields filed a complaint pursuant to R.C. 2743.75 alleging denial of access to public records by respondent [Cincinnati Police Department] Police Public Records Section in violation of R.C. 149.43(B). Following unsuccessful mediation, respondent filed a response and motion to dismiss (Response) on February 18, 2020. On March 5, 2020, Fields filed additional information pursuant to court order of February 21, 2020, and on March 6, 2020, respondent filed additional information in response to the same order. On March 19, 2020, Fields filed additional information, including a copy already in his possession of unredacted portions of certain requested records. On April 2, 2020, respondent filed a copy of the requested body worn camera (BWC) footage. On April 7, 2020, respondent filed a supplemental pleading, and on April 10, 2020, filed copies of the redacted pages of requested documents, under seal, all pursuant to court order of March 13, 2020. On May 14, 2020, Fields filed an explanation of his inability to view the video recordings that respondent has provided of the BWC footage.
Motion to Dismiss
{¶3} In order to dismiss a complaint for failure to state a claim upon which relief can be granted, it must appear beyond doubt that the claimant can prove no set of facts warranting relief after all factual allegations of the complaint are presumed true and all reasonable inferences are made in claimant's favor. State ex rel. Findlay Publishing Co. v. Schroeder, 76 Ohio St.3d 580, 581, 669 N.E.2d 835 (1996). As long as there is a set of facts consistent with the complaint that would allow the claimant to recover, dismissal for failure to state a claim is not proper. State ex rel. V.K.B. v. Smith, 138 Ohio St.3d 84, 2013-Ohio-5477, 3 N.E.3d 1184, ¶ 10.
{¶4} Respondent asserts that Fields has failed to state a claim upon which relief can be granted because it has now provided him with copies of all requested records. Respondent further alleges that one of the complaints requested by Fields does not exist in its files. Under the abbreviated pleading procedure in this action (see R.C. 2743.75(D)(1) and (E)(2)) respondent's defenses have been filed as a combined response and motion to dismiss. On review, I find that the facts required to support the allegations of mootness and non-existence are not shown on the face of the complaint and attachments. Moreover, as the matter is now fully briefed I find that all the arguments to dismiss are subsumed in the arguments to deny the claim on the merits. I therefore recommend that that the motion to dismiss be denied, and the matter determined on the merits.
Suggestion of Mootness
{¶5} In an action to enforce R.C. 149.43(B), a public office may produce requested records prior to the court's decision and thereby render a claim for their production moot. State ex rel. Striker v. Smith, 129 Ohio St.3d 168, 2011-Ohio-2878, 950 N.E.2d 952, ¶ 18-22. Respondent asserts that subsequent to the filing of the complaint it has twice provided Fields with digital copies of the requested body-worn camera (BWC) footage. (Response at 1; April 6, 2020 Bookwalter Aff. at ¶ 3-5; Respondent's April 30, 2020 Certificate of Service). Fields agrees that he has been provided with the DVDs purportedly containing the requested BWC video (Fields March 19, 2020 filing at 1; Fields May 14, 2020 filing, but states that he "was unsuccessful in getting the disk to play on my standard DVD player." (Fields May 14, 2020 filing.)
{¶6} The files copied on both the DVD filed by respondent with the court, and the DVD sent to the court by Fields as an enclosure to his May 14, 2020 filing, are MP4 (MPEG-4 Part 14) video files that the special master was able to view with standard office computer equipment and software. The special master takes notice that the MP4 format is a common digital video standard that can be viewed on most computers and current video playback software, including software available for free download online.
{¶7} The evidence in this case shows that respondent provided Fields with a copy of the requested BWC video recordings on November 18, 2019, and again on April 30, 2020. Fields could have, but did not, request the BWC videos in any specific electronic format. Parks v. Webb, Ct. of Cl. No. 2017-00995PQ, 2018-Ohio-1578, ¶ 10-12. Respondent complied with the request by providing the recordings in a readable, common video format. I find that Field's request for production of the BWC videos has been rendered moot.
Fields may wish to access more capable equipment on which to view the video recordings. Alternatively, Fields may wish to contact respondent to accept its offer for him to view the recordings at its offices. (Response at 12.) The disk that Fields sent to the court will be returned to him with his copy of this report and recommendation. --------
{¶8} With regard to the information redacted from the police report provided to Fields (pages 6 of 8, and 7 of 8, attached to the affidavit of Lt. Michael Fern), I find that the claim for these records is also moot. Fields submitted his own, unredacted copy of these pages with his filing March 19, 2020. Comparison of the data on the same pages filed by respondent under seal on April 10, 2020 with those submitted by requester shows that they are identical. Although Fields does not explain how he obtained an unredacted version of the report, the evidence demonstrates that he has obtained it. Under the facts and circumstances on the record, I find that the request for these two pages of records is now moot. It is therefore unnecessary for the court to consider any exception asserted by respondent to justify redacting the information therein.
Non-Existent Records
{¶9} In addition to the citizen complaint that the parties agree was produced by respondent (Complaint at 5-10; Fern Aff. at 14-17), Fields alleges that respondent failed to produce a separate "trifold complaint" that "was filled out on 7-25-2019." (Complaint at 1, 9-10; Fields' March 5, 2020 filing at 1, copy of 7-25-2019 complaint attached.) In response respondent attests that, after reviewing the department's file in the matter, the police lieutenant with direct oversight of public records responses "cannot find any other complaint in its possession that was filed by Mr. Fields about the February 21, 2019 incident." (Fern Aff., passim.)
{¶10} A public office has no duty to provide records that do not exist, or that it does not possess. State ex rel. Gooden v. Kagel, 138 Ohio St.3d 343, 2014-Ohio-869, 6 N.E.3d 471, ¶ 5, 8-9. Lieutenant Fern's affidavit is some evidence supporting the non-existence of a 7-25-19 citizen complaint in its keeping. State ex rel. Fant v. Flaherty, 62 Ohio St.3d 426, 427, 583 N.E.2d 1313 (1992). See also State ex rel. Toledo Blade Co. v. Toledo-Lucas County Port Auth., 121 Ohio St.3d 537, 2009-Ohio-1767, 905 N.E.2d 1221, ¶ 14-15. Assuming that Fields properly taped and mailed the trifold complaint in compliance with its instructions, the fact of mailing raises a presumption but is not direct evidence of delivery of the mailing. Under the facts and circumstances of this case, I find that Fields has not proven by clear and convincing evidence that records responsive to his request and claim for a 7-25-2019 citizen complaint existed in respondent's files at the time of the request. See State ex rel. Morabito v. Cleveland, 8th Dist. Cuyahoga No. 98829, 2012-Ohio-6012, ¶ 13.
Non-actionable Claims
{¶11} Fields makes allegations of records concealment, falsification, and destruction that, if proven, would be actionable only in other courts. This court has no jurisdiction over violations of records retention statutes, the remedy for which is provided in R.C. 149.351(B) (Person aggrieved by improper disposition of records may file injunctive and/or forfeiture action in court of common pleas). Nor does this court have jurisdiction over the other omissions and offenses that Fields suggests respondent may have committed.
Conclusion
{¶12} Upon consideration of the pleadings, attachments, and affidavits filed in this case, I recommend the court find that requester's claims for production of records have been rendered moot by production subsequent to the filing of the complaint, and by requester's demonstrated possession of the only redacted portions of those records. I further recommend the court find that requester has failed to show by clear and convincing evidence that any additional responsive records existed in respondent's possession at the time of the request. I recommend that court costs be assessed equally between the parties.
{¶13} Note: the following requirements for filing objections have been tolled by the March 27, 2020 Order of Chief Justice of the Supreme Court of Ohio and the Governor's declaration of a public health emergency until July 30, 2020 or the end of the emergency, whichever is sooner. See 03/27/2020 Administrative Actions, 2020-Ohio-1166.
{¶14} Pursuant to R .C. 2743.75(F)(2), either party may file a written objection with the clerk of the Court of Claims of Ohio within seven (7) business days after receiving this report and recommendation. Any objection shall be specific and state with particularity all grounds for the objection. A party shall not assign as error on appeal the court's adoption of any factual findings or legal conclusions in this report and recommendation unless a timely objection was filed thereto. R.C. 2743.75(G)(1).
/s/_________
JEFF CLARK
Special Master Filed May 21, 2020
Sent to S.C. Reporter 9/21/20