Whitehead v. Ohio Dept. of Rehab. & Corr.

[Cite as Whitehead v. Ohio Dept. of Rehab. & Corr., 2023-Ohio-424.]

IN THE COURT OF CLAIMS OF OHIO

DENNIS WHITEHEAD Case No. 2022-00436PQ

Requester Special Master Jeff Clark

v. REPORT AND RECOMMENDATION

OHIO DEPARTMENT OF

REHABILITATION AND CORRECTION –

BUREAU OF RECORD MANAGEMENT

Respondent

{¶1} The Ohio Public Records Act (PRA) requires copies of public records to be

made available to any person upon request. The state policy underlying the PRA is that

open government serves the public interest and our democratic system. State ex rel.

Gannett Satellite Information Network, Inc. v. Petro, 80 Ohio St.3d 261, 264, 685 N.E.2d

1223 (1997). To that end, the public records statute must be construed liberally in favor

of broad access, with any doubt resolved in favor of disclosure of public records. State ex

rel. Rogers v. Dept. of Rehab. & Corr., 155 Ohio St.3d 545, 2018-Ohio-5111, 122 N.E.3d

1208, ¶ 6. This action is filed under R.C. 2743.75, which provides for an expeditious and

economical procedure to enforce the PRA in the Court of Claims.

{¶2} On June 14, 2021, requester Dennis Whitehead made a public records

request to respondent Ohio Department of Rehabilitation and Correction (ODRC) seeking

all “ODRC documents * * * regarding Posteal LASKEY, Jr. (born June 18, 1937 Cincinnati,

Ohio; died May 26, 2007 Pickaway Correctional Institution) during his tenure in ODRC

custody.” (Complaint at 3-5.) Whitehead elaborated this comprehensive request with

additional requests and questions – some sweepingly broad, others relatively specific,

and many of them overlapping, including:

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Basic physical descriptions, including his eyesight (visual acuity) as eye

exams are exempt from the prohibitions of R.C. 5120.21. He wore glasses

– why? Also, whether he walked with assistance (cane or walker), not

asking about the condition, simply his physical appearance that all could

see and not a matter strictly between doctor and patient.

(Id.); and “public letters submitted to the Ohio Parole Board each time Posteal Laskey, Jr.

was eligible for review” (Id. at 3); and a second “catch-all” request for all “[n]on-medical

documents pertaining to Posteal Laskey, Jr.” (Id. at 4); and “[r]ecords pertaining to Posteal

Laskey, Jr. as inmate #323 926 at the Boys Correctional Institution (BCI) (Id.); and

[r]ecords pertaining to Posteal Laskey, Jr. as inmate #58249 at the Ohio State

Reformatory (OSR) from February 28, 1958 to his release on February 21, 1962” (Id.);

and “[r]ecords pertaining to Posteal Laskey, Jr. as inmate #124 990 beginning on May 8,

1967 when Laskey was sent to the Ohio State Penitentiary (OSP) in Columbus under a

sentence of death” (Id. at 5); and “[t]he roster of inmates transferred with Laskey and their

mode of transportation from OSP to SOCF on June 1, 1973” (Id.); and “[a] roster of

inmates transferring from the SOCF to LOCI with Laskey on April 1, 1975” (Id.); and “[a]

roster of inmates transferring from LOCI to Orient with Laskey on February 14, 1998” (Id.);

and “[d]ocuments pertaining to Laskey’s employment in the Psychology Department/

Psychological Services.” (Id.) ODRC acknowledged receipt of the June 14, 2021 request

on or about July 13, 2021 (Id. at 8) but never responded with either records or denial of

the requests (Id. at 6-7).

{¶3} On May 25, 2022, Whitehead filed a complaint under R.C. 2743.75 alleging

denial of timely access to public records. The matter was referred to mediation, where

both parties ignored the statutory procedures and orders of this court, as well as the

standards of the Public Records Act, as summarized in the court’s Sept. 2, 2022 order:

Since the filing of requester’s complaint on May 25, 2022, this action has

followed a course almost entirely free of compliance by either party with the

procedures and standards required in this special statutory proceeding.

Requester has filed a number of unsolicited, deficient, and irrelevant

pleadings, disposed of by orders dated June 3, 2022 and July 18, 2022, as

well as ex parte letters to the court. To his credit, requester has appeared

for two mediation sessions on July 15, 2022 and July 29, 2022. However,

respondent has failed to appear for either session, without advising the

court in advance or offering any excuse afterward. Upon termination of

mediation, respondent filed an “answer” one day out of rule that is a mere

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notice pleading instead of the full and final response pleading required

under R.C. 2743.75(E)(2). Rather than address any of the specific requests

and arguments in the complaint, respondent makes only a general denial

with fourteen affirmative defenses that are not accompanied by any

evidence or legal argument, and an affidavit that contains nothing more than

the bare assertion that “ODRC does not have any further public records that

it can provide in response to his public records request.”

The current state of the pleadings would require the Special Master to

render a determination based primarily on which party has most clearly

failed to meet its burden of proof under R.C. 2743.75 and public records

case law. Before taking that course, or imposing any sanctions available to

the court, the Special Master directs the return of this case to mediation with

the previously assigned mediator. This cause of action under R.C. 2743.75

is intended to provide an expeditious and economical procedure to resolve

public records disputes, with express reliance on initial mediation with court

mediators knowledgeable in public records law. Respondent is now

ORDERED to comply fully with that statutory process. The parties are

encouraged to discuss and make good faith efforts to resolve any properly

framed requests for specific, existing records contained in the request of

June 14/July 13, 2021. (Complaint at 3-5.)

Two ensuing mediation sessions resulted in disclosure by ODRC of additional records,

and additional explanations as to the non-existence of some requested records, and

answers to some of requester’s non-public records questions.1 (Reply and attachments.)

However, because mediation did not resolve the entire case, on November 7, 2022,

ODRC filed a combined response to complaint and motion to dismiss (Response). On

November 17, 2022, Whitehead filed a reply.

Burden of Proof

{¶4} The requester in an action under R.C. 2743.75 bears an overall burden to

establish a public records violation by clear and convincing evidence. Hurt v. Liberty Twp.,

2017-Ohio-7820, 97 N.E.3d 1153, ¶ 27-30 (5th Dist.). The requester bears an initial

burden of production “to plead and prove facts showing that the requester sought an

1 Whitehead complains that ODRC made these additional responses (Reply at 3, Exh. 2) in

response to his original request rather than to the revised request he submitted during mediation. (Reply,

Exh. 1.) However, new requests made during public records litigation do not relate back to the complaint.

There is no cause of action based on violation of R.C. 149.43(B) unless the request was made and denied

prior to the complaint. See Strothers v. Norton, 131 Ohio St.3d 359, 2012-Ohio-1007, 965 N.E.2d 282, ¶ 14;

State ex rel. Bardwell v. Ohio Atty. Gen., 181 Ohio App.3d 661, 2009-Ohio-1265, 910 N.E.2d 504, ¶ 5 (10th

Dist.). Whitehead’s requests as revised during mediation are therefore not before the court.

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identifiable public record pursuant to R.C. 149.43(B)(1) and that the public office or

records custodian did not make the record available.” Welsh-Huggins v. Jefferson Cty.

Prosecutor’s Office, 163 Ohio St.3d 337, 2020-Ohio-5371, 170 N.E.3d 768, ¶ 33.

Motion to Dismiss

{¶5} To dismiss a complaint for failure to state a claim upon which relief can be

granted, it must appear beyond doubt 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.

{¶6} ODRC moves to dismiss the complaint on the grounds that any claims based

on requests identical to those considered in Whitehead v. Ohio Department of

Rehabilitation and Correction, Ct. of Cl. No. 2020-00116PQ are barred by the doctrines

of res judicata and claim preclusion. ODRC further argues that it has produced all

requested records that actually exist, other than records subject to withholding under R.C.

5120.21(F) or R.C. 5120.60(G) and O.A.C. 5120:1-1-36. ODRC further argues that some

requests impermissibly ask it to compile dispersed information or give narrative answers

to questions. On review, the Special Master finds that none of these defenses is

conclusively shown on the face of the complaint to cover all of the current requests.

Moreover, as the matter is now fully briefed these defenses are subsumed in the

arguments to deny the claims on the merits. It is therefore recommended the motion to

dismiss be denied.

Res Judicata and Claim Preclusion

{¶7} The doctrine of res judicata provides that a “valid, final judgment rendered

upon the merits bars all subsequent actions based upon any claim arising out of the

transaction or occurrence that was the subject matter of the previous action.” Grava v.

Parkman Twp., 73 Ohio St.3d 379, 653 N.E.2d 226 (1995), syllabus. “[A]n existing final

judgment or decree between the parties to litigation is conclusive as to all claims which

were or might have been litigated in a first lawsuit.” Id. at 382. For the purposes of res

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judicata, a “transaction” is defined as a “common nucleus of operative facts,” which in turn

rests on whether the same facts or evidence would sustain both the previous and the

current action. Bd. of Cty. Commrs. v. Roop, 4th Dist. Ross No. 13CA3369, 2013-Ohio-

5926, ¶ 14-17. See State ex rel. Barb v. Cuyahoga Cty. Jury Commr., 8th Dist. Cuyahoga

No. 95005, 2010-Ohio-6190, ¶ 10-12, aff’d, 128 Ohio St.3d 528, 2011-Ohio-1914, 947

N.E.2d 670 (repeat public records request, previously adjudicated as to the same person

or designee, was res judicata).

{¶8} Whitehead made a previous request in 2020 for all “available public records

from the incarceration of Posteal LASKEY from 1967 to his death in 2007.” Whitehead v.

Ohio Dept. of Rehab. & Corr., Ct. of Cl. No. 2020-00116PQ, 2021-Ohio-1600, ¶ 2. The

court found the request in that case for was for all categories of Laskey records for the

listed time period, Id., and that the discretionary public records exemption in “R.C.

5120.21(F) applied to the remaining records withheld by ODRC.” Id. at ¶ 3-5; adopted in

Whitehead v. Ohio Dept. of Correction – Bureau of Record Mgmt. (“Whitehead I”), Ct of

Cl. No. 2020-00116PQ, 2021-Ohio-1900, ¶ 10.2 Because this court has already

determined that ODRC had no duty to provide any additional records responsive to

Whitehead’s comprehensive request for “available public records from the incarceration

of Posteal LASKEY from 1967 to his death in 2007,” Whitehead’s subsequent public

records claims, to the extent they seek the same records from that time frame, are barred

by the valid, final judgment in Court of Claims Case No. 2020-00116PQ under both res

judicata and claim preclusion.

{¶9} ODRC erroneously asserts that “[w]hile Requester’s requests for information

this time may be worded differently than in Whitehead I, the requests seek the same exact

information pertaining to Laskey.” (Response at 6.) Among the current claims that were

not part of the previous determination of requests for information from 1967 through 2007,

Whitehead has newly requested records pertaining to a Laskey incarceration from 1958

to 1962 and a stint in “the Boys Correctional Institution” ending in 1954. (Complaint at 4;

Reply, Exh. 1 at 5, Exh. 2 at 5.) Two other claims seek records of certain prison conditions

2Despite this broad ruling, and to its credit, ODRC apparently complied with the recommendation

of the Special Master to reexamine a list of records to which the claimed medical exemption did not apply

and provided Whitehead with additional documents. (Response at 4-5, Exh. C - Pierce Aff. at ¶ 5.)

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without specific reference to Laskey and were not before the court in Whitehead I. The

court must therefore address these claims on their merits.

Non-Existent Records – Additional Records Earlier than 1967

{¶10} “Public records” means records kept by a public office. R.C. 149.43(A)(1). 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. An office may establish by affidavit that all existing records in its keeping have been

provided. State ex rel. Fant v. Flaherty, 62 Ohio St.3d 426, 427, 583 N.E.2d 1313 (1992);

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, ¶ 15. The public office must clearly deny the existence of

the specifically requested records. State ex rel. Morgan v. New Lexington, 112 Ohio St.3d

33, 2006-Ohio-6365, 857 N.E.2d 1208, ¶ 56-57.

{¶11} In this case ODRC has submitted an affidavit broadly stating that it “does not

have any further public records that it can provide in response to his public records

request.” (Response at 5, Exh. C – Pierce Aff. at ¶ 5-6). Although the affidavit lacks

specificity as to records prior to 1967, ODRC did clearly deny the existence of records

responsive to the requests for records of Laskey as an inmate at the Boys Corrections

Institution and as an inmate at the OSR from 1958 to 1962 in an October 25, 2022 letter

to Whitehead. (Reply, Exh. 2 at 5.) Whitehead does not provide any evidence to the

contrary or show that ODRC maintains records of any institution for juvenile correction as

named in his request or otherwise.

{¶12} On consideration of ODRC’s minimally sufficient but uncontested denial of

the existence of records responsive to these requests, the Special Master finds that

Whitehead has failed to meet his burden to show by clear and convincing evidence that

any records responsive to these requests exist in the possession of ODRC.

No Duty to Answer Questions or to Assemble Dispersed Information

{¶13} Whitehead made several requests that are not specific to the incarceration

of Posteal Laskey, including asking for a description of “conditions on Death Row” with

“[g]eneral description and photographs” during a particular time period (Complaint at 4)

and for a “[d]escription of Ward 3 (Dormitory 3-A) at PCI. Is this a special ward that is part

of the Frazier Health Center?” (Id.) These questions are not encompassed in or barred

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by the previously litigated request in Case No. 2020-000116PQ, nor do they seek “records

of inmates” as that term is used in R.C. 5120.21(F). However, the initial burden remains

on Whitehead to prove that the requests sought identifiable public records. Welsh-

Huggins, at ¶ 33.

{¶14} In response to questions or requests for information that do not reasonably

identify the particular records sought, a public office cannot be compelled

to do research or to identify records containing selected information. That

is, relator has not established that a governmental unit has the clear legal

duty to seek out and retrieve those records which would contain the

information of interest to the requester. Cf. State ex rel. Cartmell v. Dorrian

(1984), 11 Ohio St.3d 177, 179, 464 N.E.2d 556. Rather, it is the

responsibility of the person who wishes to inspect and/or copy records to

identify with reasonable clarity the records at issue.

State ex rel. Fant v. Tober, 8th Dist. Cuyahoga No. 63737, 1993 Ohio App. LEXIS 2591,

*3-4 (April 28, 1993), aff’d, 68 Ohio St.3d 117, 623 N.E.2d 1201 (1993). Accord State ex

rel. Lanham v. State Adult Parole Auth., 80 Ohio St.3d 425, 427, 687 N.E.2d 283 (1997)

(request for “qualifications of APA members”). This includes requests for records

supporting an agency decision. State ex rel. Morabito v. Cleveland, 8th Dist. Cuyahoga

No. 98820, 2012-Ohio-6012, ¶ 14 (for information, including “why, how, when, and by

whom” a video was destroyed); Kovach v. Geauga Cty. Auditor’s Office, Ct. of Cl. No.

2019-00917PQ, 2019-Ohio-5455, ¶ 9-10 (seeking explanations or reasons for the

execution of public functions, and to admit or deny factual representations).

{¶15} Requests that seek only narrative answers to questions, or ask for a

gathering of explanatory information, do not even rise to the level of requests for records

that would be subject to objection as “ambiguous” or “overly broad” per R.C. 149.43(B)(2).

They are simply not requests for records at all and thus cannot invoke any duty found in

R.C. 149.43(B). Whitehead’s inquiries regarding general “conditions” and a “description”

of a housing unit seek narrative answers to questions or request a search for information

and are therefore not actionable under the Public Records Act.3

3 Many of the narrower requests regarding Laskey during his incarceration, dispositively barred as res

judicata, are also improper narrative questions or requests for information, e.g., “He wore glasses – why?

Also, whether he walked with assistance” (Complaint at 3); whether any records show that he assisted other

inmates “as something of an informal counselor” (Id. at 4); “Is [Ward 3 (Dormitory 3-A)] where Laskey was

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{¶16} The Special Master finds that these requests did not create a duty for ODRC

to respond under the Public Records Act.

Suggestion of Mootness

{¶17} ODRC asserts that it has already released to Mr. Whitehead all of the public

records available in Mr. Laskey’s ODRC records, other than those subject to a recognized

exemption. Although some of these properly withheld records are subject to mandatory

exemption as medical records, the Special Master notes that ODRC has the discretion to

release any records not subject to mandatory withholding.

{¶18} The wording of the exception in R.C. 5120.21(F), that ODRC inmate records

“shall not be considered public records as defined in section 149.43 of the Revised Code,”

does not expressly prohibit their disclosure. It merely provides that their disclosure is not

mandated. Bello v. Ohio Dept. of Rehab. & Corr., Ct. of Cl. No. 2020-00129PQ, 2020-

Ohio-4559, ¶ 12; 2000 Ohio Op.Atty.Gen. No. 021. The administrative rules adopted by

ODRC amplify R.C. 5120.21 in this regard, providing that

Non-public records of the department may, in the sole discretion of the

director, or designee, be made available to counsel of record of an inmate

or releasee, researchers, law enforcement agencies, or other persons with

a need for access to such documents, subject to other restrictions on such

access as may be provided by law.

(Emphasis added.) O.A.C. 5120:9-49(G). ODRC is not prohibited from disclosing

additional records of inmate Laskey unless a particular record is subject to some other,

mandatory, exemption provided by law.

{¶19} Despite the inartful and improper nature of many of Whitehead’s requests,

nothing recommended in this report precludes Whitehead from attempting to craft new,

proper requests for reasonably identified ODRC records that are not records of a specific

inmate, or for the parties to continue to negotiate in good faith over records that are

subject to ODRC’s discretionary release.

Conclusion

housed during his entire time at PCI?” (Id.); requests for lists of inmates sharing transportation with Laskey

during institution transfers (Id.); and “[s]tatus of Laskey DNA on file, as previously requested.” (Id.)

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{¶20} Upon consideration of the pleadings and attachments, the Special Master

recommends the court DENY the claim for production of additional records. It is

recommended that court costs be assessed to requester.

{¶21} 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).

JEFF CLARK

Special Master

Filed January 24, 2023

Sent to S.C. Reporter 2/14/23