State ex rel. Ellis v. Cleveland Police Forensic Laboratory (Slip Opinion)

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
ex rel. Ellis v. Cleveland Police Forensic Laboratory, Slip Opinion No. 

.]




                                           NOTICE
      This slip opinion is subject to formal revision before it is published in an
      advance sheet of the Ohio Official Reports. Readers are requested to
      promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
      South Front Street, Columbus, Ohio 43215, of any typographical or other
      formal errors in the opinion, in order that corrections may be made before
      the opinion is published.


                          SLIP OPINION NO. 

  THE STATE EX REL. ELLIS, APPELLANT, v. CLEVELAND POLICE FORENSIC
                                LABORATORY, APPELLEE.
  [Until this opinion appears in the Ohio Official Reports advance sheets, it
   may be cited as State ex rel. Ellis v. Cleveland Police Forensic Laboratory,
                          Slip Opinion No. 

.]
Mandamus—Public records—R.C. 149.43(B)(8)—The custodian of a public record
        has no clear legal duty to produce a record requested by an incarcerated
        person who failed to request a finding that the record is necessary to
        support what appears to be a justiciable claim of the incarcerated person—
        Denial of writ affirmed but cause remanded for resolution of a motion for
        statutory damages.
      (No. 2019-0398—Submitted July 9, 2019—Decided October 16, 2019.)
      APPEAL from the Court of Appeals for Cuyahoga County, No. 107571,
                                       

.
                                   __________________
                             SUPREME COURT OF OHIO




       Per Curiam.
       {¶ 1} Appellant, L’Ddaryl Ellis, a prison inmate, filed an action in the Eighth
District Court of Appeals seeking a writ of mandamus to compel appellee, Cleveland
Police Forensic Laboratory (“CPFL”), to provide public records he had requested.
The court of appeals granted the writ concerning certain records but denied the writ
concerning others. Ellis has appealed to this court as a matter of right. We affirm.
                                    Background
       {¶ 2} In June 2018, Ellis requested the following records from CPFL:


               (1) All Investigative Reports, All Laboratory or Hospital
       Reports, books, papers, documents, photographs, tangible object,
       buildings, or places, All Scientific Tests, any memorandum, memo
       notes, emails etc . . . (Police, Detective, Witness and Victim
       Statements & Reports. Ballistic Test of the following weapon: Skyy
       9mm caliber pistol, Model CPX-1, with serial #018313.
               (2) Copies of all Records Retention Schedule, Records
       Retention Policy, and Public Records Policy.


The request also referred to “Lab Report No. 2012-001569.”
       {¶ 3} In August 2018, Ellis filed a mandamus action in the Eighth District
alleging that CPFL had not responded to his request. In addition to seeking an order
compelling CPFL to provide the requested records, Ellis sought statutory damages
under R.C. 149.43(C)(2).
       {¶ 4} CPFL moved for summary judgment. In his response to CPFL’s
motion, Ellis disclosed that CPFL had provided a copy of the lab report, but he argued
that CPFL still had not fully responded to his request. Among other things, he noted
that CPFL had not given him a copy of a records-retention schedule, records-
retention policy, or public-records policy.




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       {¶ 5} The court of appeals determined that the first part of Ellis’s request was
extremely vague and overly broad and that Ellis had not obtained court approval
before requesting public records concerning a criminal investigation or prosecution,
as he was required to do under R.C. 149.43(B)(8). The court therefore denied the
writ as to the first part of Ellis’s request. But the court noted that R.C. 149.43(B)(8)
did not apply to the second part of Ellis’s request, which did not seek records
concerning a criminal investigation or prosecution.          Because CPFL had not
responded to that part of the request, either by producing the documents or by
showing that no responsive documents exist, the court granted the writ in part.
       {¶ 6} In response to the court’s order, CPFL provided a records-retention
schedule, a records-retention policy, and a public-records policy to Ellis. At the
court of appeals’ invitation, Ellis filed a motion for statutory damages based on
CPFL’s failure to timely produce those records. Because the court of appeals had
determined under Civ.R. 54(B) that there was no just reason for delay, Ellis
appealed to this court while his statutory-damages motion remained pending.
                                       Analysis
       {¶ 7} Ellis challenges the court of appeals’ determination that he was
required, under R.C. 149.43(B)(8), to obtain court approval before requesting
records concerning a criminal investigation or prosecution.            There is some
indication in the record that this claim may be moot, because Ellis acknowledged that
CPFL gave him a copy of the report he requested and it is unclear that additional
responsive records exist. See State ex rel. Toledo Blade Co. v. Toledo-Lucas Cty.
Port Auth., 

, 

, 

 (“In
general, providing the requested records to the relator in a public-records
mandamus case renders the mandamus claim moot”). CPFL, however, did not file
a brief in this appeal, never argued that Ellis’s claim is moot, and presented no
evidence verifying that it has provided all responsive documents. Thus, in the




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absence of a record clearly demonstrating mootness, we will address the merit of
Ellis’s appeal.
        {¶ 8} R.C. 149.43(B)(8) provides:


                  A public office or person responsible for public records is
        not required to permit a person who is incarcerated pursuant to a
        criminal conviction * * * to inspect or to obtain a copy of any public
        record concerning a criminal investigation or prosecution * * *,
        unless the request to inspect or to obtain a copy of the record is for
        the purpose of acquiring information that is subject to release as a
        public record under this section and the judge who imposed the
        sentence or made the adjudication with respect to the person, or the
        judge’s successor in office, finds that the information sought in the
        public record is necessary to support what appears to be a justiciable
        claim of the person.


        {¶ 9} “The language of the statute is broad and encompassing” and “clearly
sets forth heightened requirements for inmates seeking public records.” (Emphasis
sic.) State ex rel. Russell v. Thornton, 

, 

, 

 (involving former R.C. 149.43(B)(4), now R.C. 149.43(B)(8)).
Because Ellis does not dispute that the first part of his request sought public records
concerning a criminal investigation or prosecution, R.C. 149.43(B)(8) plainly
applied.
        {¶ 10} But, relying on State ex rel. Caster v. Columbus, 

,

, 

, ¶ 38, Ellis argues that Crim.R. 16(H)—not R.C.
149.43(B)(8)—governed his request.        Crim.R. 16(H) provides that “[a] public
records request made by the defendant, directly or indirectly, shall be treated as a




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demand for discovery in a criminal case if, and only if, the request is made to an
agency involved in the prosecution or investigation of that case.”
       {¶ 11} Ellis misapprehends both Caster and Crim.R. 16(H). The issue in
Caster was whether the specific-investigatory-work-product exception (R.C.
149.43(A)(2)(c)) applies after an underlying criminal case has concluded. Caster at
¶ 1. Caster did not involve the obligation of an incarcerated person to comply with
R.C. 149.43(B)(8). And contrary to what Ellis suggests, Crim.R. 16(H) does not
provide an independent basis for accessing public records. It merely explains how a
request for public records may affect a defendant’s discovery obligations in a
criminal case.
       {¶ 12} Ellis, therefore, had to comply with R.C. 149.43(B)(8). Because he
did not obtain court approval as the statute requires, CPFL had no clear legal duty to
produce the records identified in the first part of his request. We therefore affirm the
judgment of the court of appeals and remand the cause for resolution of Ellis’s
pending motion for statutory damages.
                                                                   Judgment affirmed
                                                                 and cause remanded.
       O’CONNOR, C.J., and KENNEDY, FRENCH, FISCHER, DEWINE, DONNELLY,
and STEWART, JJ., concur.
                           ________________________
       L’Ddaryl Ellis, pro se.
                           ________________________




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