Opinion

Andes v. Ohio Atty. Gen.'s Office

2017 Ohio 4251

Court: Ohio Court of Claims
Filed: May 10, 2017
Status: Published
On the bench: Clark
Cited by: 8 cases
Authority: More cited than 57.4%

The opinion

[Cite as Andes v. Ohio Atty. Gen.'s Office, 2017-Ohio-4251.]

JODI ANDES Case No. 2017-00144-PQ

Requester Special Master Jeffery W. Clark

v. REPORT AND RECOMMENDATION

OHIO ATTORNEY

GENERAL’S OFFICE

Respondent

{¶1} R.C.149.43(C) provides that a person allegedly aggrieved by a violation of

division (B) of that section may either commence a mandamus action, or file a complaint

under R.C. 2743.75. In mandamus actions alleging violations of R.C. 149.43(B),

a relator must establish by “clear and convincing evidence” that they are entitled to

relief. State ex rel. Miller v. Ohio State Hwy. Patrol, 136 Ohio St.3d 350, 2013-Ohio-

3720, ¶ 14. As for actions under R.C. 2743.75 alleging violations of R.C. 149.43(B),

neither party has suggested that another standard should apply, nor is another standard

prescribed by statute. R.C. 2743.75(F)(1) states that such claims are to be determined

through “the ordinary application of statutory law and case law * * *.” Accordingly, the

merits of this claim shall be determined under a standard of clear and convincing

evidence, i.e., “that measure or degree of proof which is more than a mere

‘preponderance of the evidence,’ but not 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 (1954), paragraph three of the syllabus.

{¶2} On July 22, 2016, requester Jodi Andes sent an email to respondent

Ohio Attorney General’s Office (AGO) stating that she “would like to make a public

records request with the Ohio Attorney General’s Office for information on the case of

Bobby Thompson/John Donald Cody. * * * I am happy to the [sic] public records I am

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seeking now, if it is able to be considered, or I can wait if there is an appeal

pending. * * *. Can either of you check to see if information from the case file is able to

be released yet?” (Requestor Exhibits p. 11.) Andes added later the same day that “I

can give specifics on my request, just thought I would check first. No since [sic] in

itemizing if there is still a court case pending.”1 (Id. p. 10.) On July 27, 2016, the AGO

responded, “I checked on this for you and there is a pending appeal in the 8th District, so

therefore our records would not yet be public.” (Id.) Later the same day Andes sent an

email stating she believed “the issue is now closed in the Eighth District Court of

Appeals. * * *. If it is closed I will get you my formal request for records.” (Id. p. 8.) The

AGO replied the same day that the court of appeals had not yet ruled on a motion by

the defendant to reopen his direct appeal under App. R. 26. (Id.) Over the next four

months, no further correspondence was exchanged.

{¶3} On December 2, 2016, Andes sent an email to the AGO stating,

a. “I would like to go ahead and make a formal Open Record Request for

copies of Bobby Thompson’s computer files that were found on his

computer and shared with Ohio investigators by Florida investigators as

well as a digital copy of the computer files/hard drive files/flash drive files

found on Mr. Cody or his property after his arrest. These were all admitted

into evidence as part of his trial in Cuyahoga County Common Pleas

Court. These materials are not germane to his appeal and were part of the

evidence used to earn a conviction.”

(Id.) The AGO acknowledged receipt of the request the same day. (Id. p. 7.)

On January 3, 2017, Andes requested an update, and the AGO responded on

January 5, 2017 that there had been a new filing in the 8th appellate district. (Id. p. 6.)

On January 17, 2017, Andes again requested an update (Id.), and on January 19, 2017

the AGO responded:

1 Andes’ pleadings, and email of March 24, 2017 (Respondent’s Exhibit C) also refer to several

contacts with the AGO by telephone. Since the contents of the alleged telephone communications are

neither supported by affidavit, nor admitted by the AGO, assertions based on these contacts will not be

considered as evidence.

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b. “Your records request is still undergoing a legal review. Your request asks

for ‘computer files that were found on his computer and shared with Ohio

investigators by Florida investigators as well as a digital copy of the

computer files/hard drive files/flash drive files found on Mr. Cody or his

property after his arrest.’

c. As I mentioned on the phone, if the records you are in fact seeking were

the small portion of the above computer documents actually admitted into

evidence, you should be able to easily get them from the courts. The

exhibits used in court would be in the custody of the Cuyahoga County

Clerk of Courts, as the Clerk of Courts for the 8th Dist. Court of Appeals.”

(Id. p. 5.)

{¶4} On February 10, 2017, Andes filed a complaint under R.C. 2743.75 alleging

unreasonable delay in responding to her request and denial of access to public records

in violation of R.C. 149.43(B). The case proceeded to mediation, and on April 17, 2017,

the court was notified that the case was not resolved and that mediation was

terminated. On May 1, 2017, the AGO filed a combined response and motion to

dismiss pursuant to R.C. 2743.75(E)(2).

{¶5} For the reasons stated below, the special master concludes that subsequent

to the filing of the complaint, the AGO has provided Andes with copies of all public

records responsive to her request of December 2, 2016. However, because the AGO

failed to provide the responsive records within a reasonable period of time, Andes is

entitled to recover her filing fee and other costs incurred.

Motion to Dismiss

{¶6} The AGO asserts that Andes’ complaint is deficient on its face for failure to

comply with R.C. 2743.75(D)(1), which states that a requester “shall attach to the

complaint copies of the original records request and any written response or other

communications relating to the request from the public office * * *.” The AGO argues

that Andes’ failure to attach the original records request constitutes a failure to “make a

short and plain statement of the claim showing that the party is entitled to relief” as

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required by Civ.R. 8(A), and further constitutes “failure to state a claim upon which relief

may be granted.” Civ.R. 12(B)(6).

{¶7} Andes submitted the missing copies of the original request and related

correspondence as “Requestor Exhibits” on March 13, 2017. While the AGO correctly

notes that the submission was not in the form of an amended complaint, the Rules of

Civil Procedure, to the extent that they would by their nature be clearly inapplicable, do

not apply to procedure in special statutory proceedings. Civ.R. 1(C)(6). R.C. 2743.75 is

a special statutory proceeding providing, at (E)(2), that other than the complaint and

response, “[n]o further motions or pleadings shall be accepted by the clerk of the court

of claims or by the special master * * * unless the special master directs in writing that a

further motion or pleading be filed.” Subsequent to the AGO’s filing of its response, the

special master directed that Andes’ Exhibits be accepted for filing. (Order, May 3, 2017.)

Andes’ initial failure to submit required documents pursuant to R.C. 2743.75(D)(1) has

been rectified, and it is therefore recommended that the motion to dismiss be

OVERRULED.

Suggestion of Mootness

{¶8} In an action to enforce R.C. 149.43(B), a public office may produce the

requested records prior to the court’s decision, and thereby render the claim for

production of records moot. State ex rel. Striker v. Smith, 129 Ohio St.3d 168, 2011-

Ohio-2878, ¶ 18-22. A court considering a claim of mootness must first determine what

records were requested, and then whether all responsive records were provided.

{¶9} As summarized above, Andes’ July 2016 correspondence with the AGO

expressed her intent to make a public records request, at some future date that she

conditioned on the conclusion of a particular appellate case. I find that Andes’

correspondence with the AGO prior to December 2, 2016 constituted, at most,

preliminary inquiries as to whether the time was ripe for her to make a detailed “formal”

public records request. The correspondence nowhere submitted an actual request for

Case No. 2017-00144-PQ -5- REPORT AND RECOMMENDATION

specified records. Over four months later, on December 2, 2016, Andes wrote to the

AGO:

d. “I would also like to go ahead and make a formal Open Record Request

for copies of Bobby Thompson’s computer files that were found on his

computer and shared with Ohio investigators by Florida investigators as

well as a digital copy of the computer files/hard drive files/flash drive files

found on Mr. Cody or his property after his arrest. These were all admitted

into evidence as part of his trial in Cuyahoga County Common Pleas

Court. These materials are not germane to his appeal and were part of

the evidence used to earn a conviction.”

(Requestor Exhibits p. 8.) Thus, the only public records request presented is for

computer files located on particular storage devices, expressly described as and limited

to the files “admitted into evidence as part of [Thompson’s] trial in Cuyahoga County

Common Pleas Court.”

{¶10} The AGO acknowledged this request on December 2, 2016 (Id. p. 7), but

did not provide any responsive records prior to the filing of this action. On March 15,

2017, after the referral of this case to mediation and the filing of Andes’ Requestor

Exhibits, the AGO sent Andes a letter enclosing its first production of records.

(Respondent’s Ex. A.) The letter enclosed a copy of the State’s Exhibit List from the

Thompson trial, with an invitation to Andes to prioritize production of the exhibits if

desired. The AGO advised that it would not be charging for these records. On March

22, 2017, the AGO sent a letter with an enclosure continuing the production of records.

(Respondent’s Ex. B.) On March 24, 2017, Andes sent an email in response to the

AGO letter of March 15, 2017 in which she agreed that the records provided by “Florida”

were actually records shared by the IRS and are those labeled as State’s Exhibits

110-112 in the Thompson case. (Respondent’s Ex. C.) She also utilized the master

exhibit list to provide the AGO with the remaining “list of records I believe would satisfy

my records request.” (Id. p. 2.) The AGO sent a letter on April 13, 2017, in which it

acknowledged Andes’ March 24, 2017 correspondence, made a final production of

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documents, and stated that it believed “we have now satisfied your public records

request.” (Respondent’s Ex. D.) On April 28, 2017, the AGO sent a final letter

correcting a misstatement in its letter of April 13, 2017 regarding files contained in one

of the exhibits. (Respondent’s Ex. E.) The author of the AGO letters avers that as of

May 1, 2017, Andes had not contacted him since he sent the April 13, 2017 letter.

(Response, Donahue Aff. ¶ 9.)

AGO Required to Provide Only Items Responsive to the Request and that

are “Public Records”

{¶11} The policy underlying the Public Records Act is that “open government

serves the public interest and our democratic system.” State ex rel. Dann v. Taft, 109

Ohio St.3d 364, 2006-Ohio-1825, ¶ 20. Therefore, R.C. 149.43 must be construed

“liberally in favor of broad access, and any doubt is resolved in favor of disclosure of

public records.” State ex rel. Cincinnati Enquirer v. Hamilton Cty., 75 Ohio St.3d 374,

376, 662 N.E.2d 334 (1996).

{¶12} However, a public office is only required to produce records that are

responsive to the specific terms of the request. “R.C. 149.43(C) requires a prior request

as a prerequisite to a mandamus action.” State ex rel. Lanham v. Smith, 112 Ohio

St.3d 527, 2007-Ohio-609, ¶ 14. “There can be no ‘failure’ of a public office to make a

public record available ‘in accordance with division (B),’ without a request for the record

under division (B).” State ex rel. Bardwell v. Ohio Atty. Gen., 181 Ohio App.3d 661,

2009-Ohio-1265, ¶ 5 (10th Dist.). Andes’ request was for the “computer files” that were

“admitted into evidence” in the Thompson trial, and the AGO attests that all responsive

records to this request have been provided. The lead prosecutor in the Thompson

case, Senior Assistant Attorney General Brad Tammaro, verifies that,

e. “Any files on the electronic storage devices seized from Mr. Cody

[Thompson] that were actually used were admitted into evidence in Mr.

Cody’s criminal trial as Exhibit 26, 26-1 and 124. Redacted versions of

these exhibits were produced to the Requester after legal review.”

Case No. 2017-00144-PQ -7- REPORT AND RECOMMENDATION

(Tammaro Aff. ¶ 8.) The terms of this assertion of completion mirror Andes’ request for

all computer files “admitted into evidence” in Thompson’s trial.

{¶13} The AGO provides additional, detailed explanation regarding those trial

exhibits that were not responsive to the request. Tammaro testifies that certain exhibits

(35, 36, 101, and 104-112) were introduced only as data storage devices to establish

the chain of custody of the evidentiary information they contained. Any evidentiary data

or “files” contained in these exhibits that were used as evidence in the trial were

introduced separately in Exhibits 26, 26-1, and 124. (Tammaro Aff. ¶16.) A container

of record information is not itself a “record” as defined at R.C. 149.011(G):

f. “(G) ‘Records’ includes any document, device, or item, regardless of

physical form or characteristic, including an electronic record as defined in

section 1306.01 of the Revised Code, created or received by or coming

under the jurisdiction of any public office of the state or its political

subdivisions, which serves to document the organization, functions,

policies, decisions, procedures, operations, or other activities of the

office.”

Physical storage media such as hard drives, compact disks, or flash drives do not,

separate from the information they contain, serve to document the activities of a public

office under the facts and circumstances of this case. This is most apparent when

electronic storage media are unused and blank. It is equally true of a piece of physical

evidence thought to contain information, but from which no information was extracted by

the office. 2007 Ohio Op. Atty. Gen. No. 2007-034 (untested cigarette butt taken from a

crime scene is not a “record”). Any computer files contained in the state exhibit storage

devices, but that were not separately used as evidence by the State, are thus

non-responsive to Andes’ request for computer files that were admitted into evidence.

{¶14} Such files also do not qualify as “records” to which the Public Records Act

applies. Information that a public office happens to be storing, but which does not serve

to document any aspect of the office’s activities, does not meet the statutory definition of

a “record.” State ex rel. McCleary v. Roberts, 88 Ohio St. 3d 365, 367-368, 725 N.E.2d

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1144 (2000) (children’s identity and address information contained in files of summer

pool programs did nothing to document any aspect of the Recreation and Parks

Department). The AGO has submitted evidence that, other than the files entered into

evidence in the criminal trial, the contents of the storage devices were either not

relevant to its investigation, or were not used in the criminal prosecution. (Tammaro Aff.

¶ 5-8.) R.C. 149.011(G) requires more than mere receipt and possession of an item in

order for it to be a record for purposes of R.C. 149.43. State ex rel. Beacon Journal

Publ'g Co. v. Whitmore, 83 Ohio St. 3d 61, 64, 697 N.E.2d 640 (1998). This has

especially significant practical consequences for criminal investigations, where seized

computer or other storage devices may contain voluminous extraneous content that is

personal, business, or otherwise unrelated to the criminal investigation. If such contents

were considered “records” merely by receipt and possession, the public office would be

obliged to respond fully to requests for them, including analysis of potentially applicable

exceptions for intellectual property, personal information, medical records – any of

myriad public records exceptions, many of which could only be asserted or supported

by the person from whom the storage device was seized. No such absurd result is

required by the language of R.C. 149.011(G). Id. The testimony in this case is that the

AGO never used the contents of these devices to perform its public function, other than

as the contents were separately introduced into evidence and have been fully copied to

Andes. I conclude that the unused contents of storage devices seized in the criminal

investigation of Thompson were not “records” of the AGO, and the AGO had no

obligation to produce such contents in response to Andes’ public records request.

{¶15} The AGO also argues that an item temporarily outside of a public office’s

possession and control is not subject to production by the public office until it is returned

to its possession. State ex rel. Striker v. Smith, 129 Ohio St.3d 168, 2011-Ohio-2878,

¶¶ 2, 16, 28. The AGO submitted evidence that Exhibits 35 and 36 are in the

possession of the Cuyahoga County Clerk of Courts, having been physically admitted

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into evidence at trial. (Tammaro Aff. ¶ 11.) I conclude that these exhibits have been

unavailable for response to Andes’ requests.

{¶16} Finally, the AGO states that it redacted excepted information from within

evidentiary documents that it provided to Andes. In asserting exceptions to an

otherwise proper public records request, a public office bears the burden of proof:

g. “Exceptions to disclosure under the Public Records Act, R.C. 149.43,

are strictly construed against the public-records custodian, and the

custodian has the burden to establish the applicability of an exception. * *

* A custodian does not meet this burden if it has not proven that the

requested records fall squarely within the exception.”

State ex rel. Cincinnati Enquirer v. Jones-Kelley, 118 Ohio St.3d 81, 2008-Ohio-1770,

886 N.E.2d 206, ¶ 10.

{¶17} Social Security Numbers may be redacted from most records. State ex rel.

Office of Montgomery County Pub. Defender v. Siroki, 108 Ohio St. 3d 207, 2006-Ohio-

662, ¶ 17-18; R.C. 149.43(A)(1)(dd). Bank and credit card account numbers may also

be redacted. R.C. 149.43(A)(1)(dd). Although these redactions were not performed

until after Andes had filed her pleadings in this action, her correspondence of

March 24, 2017 does not reflect any concern for the redactions

{¶18} Based on the above principles, the table below summarizes the responses

made by the AGO regarding each trial exhibit that has been referenced by the parties:

Exhibit AGO Response Support/Authority

26, and 26-1 March 15, 2017 – copies (348 pgs.) Donahue Aff. ¶ 4; Siroki;

(files introduced provided. SSNs and banking Nos. R.C. 149.43(A)(1)(dd)

as evidence) redacted

35 (computer April 13, 2017 – introduced as a Tammaro Aff. ¶¶ 9, 11, 16:

disk) container, not in AGO possession Striker v. Smith

[Cite as Andes v. Ohio Atty. Gen.'s Office, 2017-Ohio-4251.]

36 (Portable hard April 13 and April 28, 2017 – Tammaro Aff. ¶¶ 10-11, 16;

drive) introduced as a container, not in AGO Moore Aff. ¶ 5-9: Striker v.

possession, contents introduced in Smith

Exhibits 110-112

66-74 March 22, 2017 – copies (1,926 pgs.) Donahue Aff. ¶ 5; Siroki

80-92 provided. SSNs redacted

95-98

101 April 13, 2017 – introduced as Tammaro Aff. ¶¶ 12, 16

(flash drive) container, all evid. contents