Login | April 23, 2019

Ruling illustrates transparency alone insufficient in public records request

KEITH ARNOLD
Special to the Legal News

Published: April 16, 2019

The Ohio Supreme Court articulated in a recent ruling of a public records request that timelines or diligence, at least, is just as essential as the underlying record requested.

The court wrote per curiam that the woman who originally requested public records related to a 2007 criminal case in Guernsey County was entitled to damages in the amount of $1,000.

State law provides for statutory damages of $100 per business day, up to $1,000, if a court determines that a public office failed to comply with a public records request.

"The primary duty of a public office when it has received a public records request is to promptly provide any responsive records within a reasonable amount of time and when a records request is denied, to inform the requester of that denial and provide the reasons for that denial," justices wrote.

LaDonna Cordell, on Aug. 9, 2017, sent Guernsey County Sheriff Jeffrey Paden a letter by regular U.S. Mail seeking public records relating to the criminal case (State v. Bates, Guernsey C.P. No. 07 CR 117) against Bryan Bates.

The request sought copies of scientific tests, as well as the scientists' notes and reports, police investigative records and work product, and any witness statements, according to the case summary.

Paden, in response, sent Cordell an incident report from a search warrant that had been executed against Bates pursuant to the sheriff's office's continuing criminal investigation against him.

Justices noted that while the incident report possibly addressed one of Cordell's requests, there is no evidence that the sheriff included a responsive letter with the incident report addressing Cordell's other five record requests.

Cordell claimed that the incident report was nonresponsive, prompting her to send a second request by certified mail Aug. 18, 2017.

Paden did not respond to that second request, the summary noted.

Cordell filed Oct. 5, 2017 an original action in the Supreme Court seeking a writ of mandamus to compel the sheriff to provide the requested records.

During the mandamus action's pendency, Paden - through the Guernsey County Prosecuting Attorney - provided Cordell with Bates' file and the same incident report he had sent in August.

The prosecuting attorney also informed Cordell that other agencies had conducted the forensic tests and that certain documents were not subject to disclosure.

The woman continued requesting the records and the sheriff continued responding that other than the incident report, his office had no additional records and that other requested records were exempt from disclosure.

The parties do not dispute that the sheriff's office is a public office subject to the requirements of the Public Records Act, the court continued.

"The sheriff, however, has no duty to create or provide access to nonexistent records," justices wrote, citing State ex rel. Lanham v. Smith, 112 Ohio St.3d 527, 2007-Ohio-609, 861 N.E.2d 530. "It is Cordell's burden to prove, by clear and convincing evidence, that the records that she requested exist and are public records maintained by the sheriff's office.

"Cordell argues that because the state could not have arrested and convicted Bates without forensic tests, witness statements, investigative reports, etc., those records must exist. But the sheriff has repeatedly informed Cordell that his office did not conduct any of those tests and therefore does not have the results and other state or federal agencies that may have conducted the tests would likely have custody of any test results."

On the basis that the woman failed to prove that the requested records exist or that they are in the custody of the sheriff's office, her mandamus claim for the production of records was denied.

"Regarding Cordell's first records request, Cordell has shown that the sheriff's response was incomplete," justices concluded. "Other than sending the incident report, which was arguably responsive to one category of records, there is no evidence that the sheriff responded to the rest of Cordell's public-records requests.

"And the sheriff failed to respond to Cordell's second request until almost three months after Cordell made the request by certified mail and approximately 43 days after she filed her mandamus petition, making the sheriff's second response unreasonably delayed."

State law required Paden to not only provide the relevant records that he had but to state clearly that no additional records were in his custody.

The high court has previously awarded statutory damages when a public office ignored a records request for several months, the decision noted.

Justices reasoned the woman was entitled to the maximum amount of statutory damages on the basis that the sheriff never provided the court with an explanation of why he failed to appropriately respond to Cordell's requests within a reasonable period of time.

"Therefore, we find no basis to reduce the amount of statutory damages awarded in this case," justices wrote.

The case is cited as State ex rel. Cordell v. Paden, Slip Opinion No. 2019-Ohio-1216.

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