State v. May

240 N.E.3d 1016

2024-Ohio-1357

STATE EX REL. Ulysses L. FEAGIN, Relator

v.Sharon MAY, Human Resources Director, Respondent

Case No. 2023 CA 0060

Court of Appeals of Ohio, Fifth District, Richland County.

Date of Judgment: April 10, 2024

Writ of Mandamus.

ULYSSES L. FEAGIN, P.O. Box 540, St. Clairsville, OH 43950, For Relator.

MEL LUTE, JR. ESQ., Baker Dublikar, 400 South Main Street, North Canton, OH 44720, For Respondent.

JUDGES: Hon. Patricia A. Delaney, P.J., Hon. Craig R. Baldwin, J., Hon. Andrew J. King, J.

OPINION

King, J.

{¶ 1} On October 30, 2023, Relator Ulysses Feagin filed a Complaint in Mandamus against Respondent Sharon May, Human Resources Director for the City of Mansfield, Ohio. Feagin filed an Amended Complaint on November 15, 2023. Feagin seeks to compel the HR Director to provide documents in response to a public-records request. We deny the HR Director’s summary judgment motion¹ and order her to produce the documents identified in Exhibit B attached to Respondent’s Motion to Dismiss. Feagin’s request for statutory damages under R.C. 149.43(C)(2) is denied.

I. Background

{¶ 2} Feagin alleges on August 18, 2023, he served a public-records request, by certified mail, to Lori Cope, Safety Service Director for the City of Mansfield, Ohio. Feagin received a response to his request on September 13, 2023, from the HR Director, asking him to revise his request to include more specificity. Feagin did so resubmitting his revised request on September 18, 2023. The revised request is too extensive to include here but it generally requested documentation regarding police protocols, police rules and regulations, police disciplinary procedures, complaints filed against officers and use of force.

{¶ 3} At the time Feagin made his public-records request, he was actively engaged in a lawsuit against the City of Mansfield. See Ulysses Lee Feagin v. Mansfield Police Dept., et al., U.S. District Court for the Northern District of Ohio, Eastern Division, Case No. 1:22-CV-1201. Feagin previously made extensive document requests, in the course of discovery in the pending federal case, pertaining to the same public records that he now seeks through mandamus in the present matter. The HR Director worked with outside counsel, in the federal case, to produce the requested documents.

{¶ 4} On October 18, 2023, counsel for the city of Mansfield responded to Feagin’s public-records request in a letter referencing the federal lawsuit. Counsel for the HR Director acknowledges the response to the public-records request did not come directly from the HR Director. Attached to the HR Director’s Motion to Dismiss is Exhibit B, which is a list of documents produced in response to Feagin’s September 18, 2023 public-records request. Thus, the HR Director requests dismissal of Feagin’s mandamus action claiming it is moot since Feagin received the requested records as part of his federal lawsuit.

{¶ 5} On December 13, 2023, Feagin filed a Motion in Opposition to Respondent’s Motion to Dismiss. On page 3, paragraph 5 of his motion, Feagin states, "On or about October 25, 2023 Attorney Mel Lute Jr answered the public records request that was served upon Sharon May, the Mansfield City Human Resource Director."

{¶ 6} After the Court converted this matter to a summary judgment proceeding, in a Supplemental Brief filed by the HR Director, counsel again reiterated that he provided the requested documents to Feagin. The HR Director also stated the requested documents were provided to Feagin within 30 business days.

[1] {¶ 7} Attached to the Supplemental Brief is a letter dated October 5, 2023. It acknowledges receipt of Feagin’s public-records request and indicates the documents are already in the process of being produced as part of the pending federal lawsuit. The second document attached to Respondent’s Supplemental Brief is a letter dated October 18, 2023, from counsel representing the city of Mansfield in the federal case, advising that Feagin’s requested records are enclosed for the public-records request served on Sharon May, Human Resource Director for the City of Mansfield. Neither letter was properly authenticated Civ.R. 56(E) evidence.²

{¶ 8} Feagin filed a memorandum in opposition to Respondent’s summary judgment motion. Attached to the memorandum is Feagin’s affidavit where he avers in paragraph 3: "The Relator asserts that Sharon May have (sic) not provided any of the requested public records documents[.]"

II. Analysis

A. Mandamus elements and summary judgment standard

{¶ 9} Ohio’s Public Records Act requires a public office to make copies of public records available to any person on request and within a reasonable period of time. R.C. 149.43(B)(1). State ex rel. McDougald v. Greene, 161 Ohio St.3d 130, 2020-Ohio-3686, 161 N.E.3d 575, ¶ 9. The Ohio Supreme Court construes the Public Records Act " ‘liberally in favor of broad access’ " to public records. State ex rel. Cincinnati Enquirer v. Hamilton Cty., 75 Ohio St.3d 374, 376, 662 N.E.2d 334 (1996).

[2] {¶ 10} Under R.C. 149.43(C)(1)(b), a mandamus action is the remedy for a person denied access to a public record. "To prevail on a claim for mandamus relief in a public-records case, a party must establish a clear legal right to the requested relief and a corresponding clear legal duty on the part of the respondents to provide that relief." State ex rel. Penland v. Ohio Dept. of Rehab, and Corr., 158 Ohio St.3d 15, 2019-Ohio-4130, 139 N.E.3d 862, ¶ 9, citing State ex rel. Am. Civ. Liberties Union of Ohio, Inc. v. Cuyahoga Cty. Bd. of Commrs., 128 Ohio St.3d 256, 2011-Ohio-625, 943 N.E.2d 553, ¶ 22-24.

{¶ 11} Further, we are deciding this matter on summary judgment. A court may grant summary judgment under Civ.R. 56 if it determines: (1) no genuine issues as to any material fact remain to be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) it appears from the evidence that reasonable minds can come to but one conclusion and viewing such evidence most strongly in favor of the party against whom the motion for summary judgment is made, that conclusion is adverse to that party. Temple v. Wean United, Inc., 50 Ohio St.2d 317, 327, 364 N.E.2d 267 (1977). The record on summary judgment must be viewed in the light most favorable to the party opposing the motion. Williams v. First United Church of Christ, 37 Ohio St.2d 150, 151, 309 N.E.2d 924 (1974).

[3, 4] {¶ 12} The moving party bears the burden of identifying the basis for the motion and those portions of the record that demonstrate the absence of a genuine issue of fact on a material element of the nonmoving party’s claim. Dresher v. Burt, 75 Ohio St.3d 280, 292, 662 N.E.2d 264 (1996). Once the moving party has met the burden, the nonmoving party then has a reciprocal burden of specificity and cannot rest on the allegations or denials in the pleadings, but must set forth "specific facts" by the means listed in Civ.R. 56(C) showing that a "triable issue of fact" exists. Mitseff v. Wheeler, 38 Ohio St.3d 112, 116, 526 N.E.2d 798 (1988).

B. Factual dispute regarding public-records’ production

[5] {¶ 13} A factual dispute exists regarding whether the HR Director has provided the public records requested by Feagin. The HR Director claims Feagin’s public-records request is moot because the records have been provided to him in the federal lawsuit. Feagin stated in his Motion in Opposition to Respondent’s Motion to Dismiss that Attorney Mel Lute answered his public-records request that was served upon Sharon May, the Mansfield City Human Resources Director. However, in a subsequent affidavit, attached to his opposition to the HR Director’s summary judgment motion, Feagin denied receiving any of the requested public-records documents from the HR Director.

{¶ 14} Two recent decisions, from the Ohio Supreme Court, shed light on how to resolve this dispute. In State ex rel. Ware v. Crawford, 167 Ohio St.3d 453, 2022-Ohio-295, 194 N.E.3d 323, the Ohio Supreme Court first explained relator has the burden to plead and prove facts showing that he requested a public record pursuant to R.C. 149.43(B)(1) and that respondent did not make the record available. (Citation omitted.) Id. at ¶ 14. Relator "also bears the burden of persuasion to show entitlement to a writ of mandamus by clear and convincing evidence." (Citation omitted.) Id.

{¶ 15} The respondent, in Crawford, argued relator did not prove by clear and convincing evidence that respondent did not send the requested records to relator as respondent claims to have done. Id. at ¶ 15. The Court ultimately concluded respondent was in the better position to affirmatively show that she transmitted the records to relator. Id. The Court explained:

Just as the custodian is in a better position than the requester to know the contents of a record and whether it fits within an exception * * * so too is the custodian in the superior position to demonstrate compliance with the obligation to provide copies of public records [.]

Id.

{¶ 16} In Crawford, the Court concluded respondent presented no evidence to corroborate her assertion that she mailed the documents that relator requested nor did she submit copies of the documents that she claims to have sent to relator in response to his public-records request. Id. The Court granted a writ of mandamus regarding records that were not produced in an initial response. Id. at ¶ 17.

{¶ 17} The second pertinent decision, from the Ohio Supreme Court, is State ex rel. Ware v. Kurt, 169 Ohio St.3d 223, 2022-Ohio-1627, 203 N.E.3d 665. In Kurt, respondent made a mootness argument and provided a list of records she allegedly provided to relator and also included two supporting affidavits. Id. at ¶ 28. The affiants explained that some documents were sent to relator but that other documents were not produced because the requests were overly broad and some of the documents did not exist. Id. The Court noted, "[a]s for the list of records that...