State ex rel. Horton v. Kilbane

167 Ohio St.3d 413

194 N.E.3d 288

The STATE EX REL. HORTON

v.KILBANE, Chief of Police, et al.

No. 2020-0348

Supreme Court of Ohio.

Submitted September 7, 2021

Decided February 1, 2022.

The Chandra Law Firm, L.L.C., Subodh Chandra, Donald P. Screen, Cleveland, and Brian Bardwell, for relator.

Taft, Stettinius & Hollister, L.L.P., Gregory J. O'Brien, Cleveland, and Philip D. Williamson, Cincinnati, for respondents.

Per Curiam.

{¶ 1} In this public-records case, relator, Mary Jane Horton, requests a writ of mandamus ordering respondents, Police Chief Michael Kilbane and the city of Independence (collectively, "the city"), to produce documents relating to the city's implementation of a traffic-ticket quota. She also seeks statutory damages, attorney fees, and costs. For the reasons that follow, we deny her request for a writ, award her $1,000 in statutory damages, and deny her requests for attorney fees and costs.

I. FACTUAL BACKGROUND

{¶ 2} On January 14, 2019, Horton saw a local-news broadcast notifying viewers that Independence had implemented a policy requiring each of its police officers to issue ten or more traffic citations per month and requiring at least two to three traffic-enforcement actions per shift. The broadcast displayed documents as evidence of this policy. The broadcast also informed viewers that an officer had filed a grievance with the city through his union after receiving a written warning for not writing enough tickets.

{¶ 3} On January 16, 2019, Horton emailed a public-records request to the police department requesting the following records:

1. The police memo that shows a "... Productivity Standard ... Patrol Officers shall meet or exceed 10 traffic citations/month."

2. The memo that refers to "... at least 2-3 traffic enforcement actions per shift." Those can include warnings or crash investigation and more, not just tickets.

3. A copy of the written warning given to the police officer who did not write enough tickets.

4. A copy of the grievance that was filed by the police officer in this case.

(Ellipses sic.)

{¶ 4} The next day, Kilbane responded to Horton's email as follows:

• Item 1: Email from Lt. Mazzola to the patrol officers regarding performance standards

• Item 2: We have no records responsive to this request. If you have a specific date, sender, receiver or any other identifying information to more specifically identify a record we can attempt to locate it.

• Item 3: Written reprimand for failure to adhere to performance standards.

• Item 4: We have no records responsive to this request. Per the terms of the collective bargaining agreement the grievance was denied by the Chief and returned to the union. The union subsequently withdrew their grievance and it is in possession of the union, not the city. The union is not a public entity and as such they are not required to release any of their records to the public.

There are a total of three pages in response to your records request and you may obtain copie[s] from the police department records division Monday through Friday between 8:00 A.M. and 4:00 P.M. at a cost of ten cents per page.

Horton paid for and retrieved the records.

{¶ 5} On March 9, 2020, more than 400 days after her request, Horton brought this action, alleging that the city had violated the Public Records Act, R.C. 149.43, in responding to request Nos. 2, 3, and 4.

{¶ 6} The city then produced four additional documents. On March 11, 2020, the city produced a memo dated August 8, 2018 ("the August memo"), in response to request No. 2 and a new version of the reprimand, which had been issued to Patrolman Brian Dalton, in response to request No. 3. The new version of the reprimand contained markings on the bottom half of the page that were not present on the prior version produced. On March 17, 2020, the city produced an unsigned version of the grievance described in request No. 4. And on March 26, 2021, the city produced another version of the grievance, this one containing Dalton's signature.

{¶ 7} On March 17, 2021, we granted an alternative writ ordering the submission of evidence and briefs. 161 Ohio St.3d 1477, 2021-Ohio-801, 164 N.E.3d 486. Before turning to our analysis, we note that we will not consider the new arguments that Horton has raised for the first time in her reply brief. See State ex rel. Am. Subcontractors Assn., Inc. v. Ohio State Univ. , 129 Ohio St.3d 111, 2011-Ohio-2881, 950 N.E.2d 535, ¶ 40 ("[the relator's] new argument in its reply brief is forbidden").

II. ANALYSIS

A. Writ of mandamus

{¶ 8} "Mandamus is the appropriate remedy to compel compliance with R.C. 149.43, Ohio's Public Records Act." State ex rel. Physicians Commt. for Responsible Medicine v. Ohio State Univ. Bd. of Trustees , 108 Ohio St.3d 288, 2006-Ohio-903, 843 N.E.2d 174, ¶ 6 ; R.C. 149.43(C)(1)(b). To obtain the writ, Horton must show that she has a clear legal right to the requested relief and that the city has a clear legal duty to provide it. State ex rel. Ellis v. Maple Hts. Police Dept. , 158 Ohio St.3d 25, 2019-Ohio-4137, 139 N.E.3d 873, ¶ 5. Although we construe the Public Records Act liberally in favor of broad access and resolve any doubts in favor of disclosure, the relator still bears the burden to establish entitlement to the requested relief by clear and convincing evidence. State ex rel. Carr v. London Corr. Inst. , 144 Ohio St.3d 211, 2015-Ohio-2363, 41 N.E.3d 1203, ¶ 19.¹

1. The reprimand (request No. 3)

{¶ 9} The third item Horton requested was a copy of the reprimand issued to Dalton. The city has already produced two versions of this document. First, the day after Horton made her request, the city produced a copy of the reprimand. This copy did not contain Dalton's signature acknowledging his receipt of the reprimand ("the unsigned reprimand"). The document contained typewritten text on the top half of the page and showed the sender (Lt. Len Mazzola), the direct recipient (Dalton), the copied recipient (Kilbane), the date (January 7, 2019), and the reason for the reprimand. After Horton brought this action, the city produced a signed version ("the signed reprimand") containing text on the bottom half of the page. A typewritten sentence, authored by Mazzola, states: "Please sign below acknowledging receipt of this written reprimand." Below that sentence is a line for Dalton's signature and another typewritten sentence that states: "Please let me know if there is anything I can do to help moving forward to avoid any issues." In the space near the signature line, Dalton added his handwritten signature and the following handwritten statement: " REFUSED NO JUST CAUSE! I HAVE THREATENED [sic] AND AM SIGNING THIS UNDER DURESS !" (Capitalization sic.)

{¶ 10} Dispositive here is that Horton specified in her merit brief that the document she received on March 11, 2020, satisfied her request. And to the extent that she indicates in her reply brief that she now seeks a third version of the reprimand—one containing Mazzola's typewritten statements but not Dalton's signature or handwritten statement—Horton has impermissibly broadened the scope of her request. It follows that we must deny the writ as to request No. 3.

2. The grievance (request No. 4)

{¶ 11} Horton argues that with regard to the fourth item she requested, the city should have responded by providing a version of Dalton's grievance that contains Kilbane's written markings memorializing his decision to deny the grievance. But the city presented evidence establishing that it does not possess the record, because Kilbane gave it to the union. Because a public office does not have a clear legal duty to furnish records that are not in its possession or control, see State ex rel. Striker v. Smith , 129 Ohio St.3d 168, 2011-Ohio-2878, 950 N.E.2d 952, ¶ 28 (collecting cases), we deny the writ as to request No. 4.

{¶ 12} The line of decisions that Horton cites does not require a different result. Unlike in State ex rel. Toledo Blade v. Seneca Cty. Bd. of Commrs. , 120 Ohio St.3d 372, 2008-Ohio-6253, 899 N.E.2d 961, our issuance of a writ here would require a search of the union's property, not a public office's. And unlike the county board of commissioners and the lawyer in possession of the record at issue in State ex rel. Findlay Publishing Co. v. Hancock Cty. Bd. of Commrs. , 80 Ohio St.3d 134, 684 N.E.2d 1222 (1997), nothing establishes that an agency relationship exists between the city and the union. True, we held in State ex rel. Dispatch Printing Co. v. Columbus , 90 Ohio St.3d 39, 41-43, 734 N.E.2d 797 (2000), that a collective-bargaining agreement between a police department and a union could not defeat a newspaper's request for records held by the department. But here, the record in question is not held by the department.

{¶ 13} Horton also errs in her reliance on State ex rel. Carr v. Akron , 112 Ohio St.3d 351, 2006-Ohio-6714, 859 N.E.2d 948, and State ex rel. Gannett Satellite Information Network v. Shirey , 78 Ohio St.3d 400, 678 N.E.2d 557 (1997). First, she ignores Carr ’s tripartite test for evaluating a mandamus claim when a private entity has responsibility for the requested record. Second, she fails to show that the union's actions in this case are of similar character to those of the company in Gannett that rendered employee-hiring services to the public office.

B. Statutory damages

{¶ 14} Horton requests statutory damages with respect to the August memo, the reprimand, and the grievance.

{¶ 15} R.C. 149.43(C)(2) provides that a requester who transmits a public-records request by electronic submission, as Horton did, in a manner that fairly describes the requested records, shall be entitled to statutory damages if a court determines that the public office failed to comply with an obligation of R.C. 149.43(B). Statutory damages accrue at the rate of $100 for each business day the office failed to meet one of R.C. 149.43(B) ’s obligations, beginning on the day the requester files a mandamus action, up to...