[Cite as Johnson v. Cleveland Police Dept., 2018-Ohio-1715.]




WILLIE JOHNSON                                         Case No. 2018-00569PQ

       Requester                                       Special Master Jeffery W. Clark

       v.                                              REPORT AND RECOMMENDATION

CLEVELAND POLICE DEPARTMENT

       Respondent


        {¶1} On January 1, 2018, requester Willie Johnson mailed a public records
request to the Cleveland Police Department asking for copies of investigatory records
related to Case No. CR-01-410922-2A. Neither party alleges that Cleveland PD has
responded to this request. On March 16, 2018, Johnson filed a complaint pursuant to
R.C. 2743.75 alleging failure to provide access to public records in violation of R.C.
149.43(B). The special master determined that the case should not be referred to
mediation, and directed Cleveland PD file its response, which it did on April 25, 2018.
        {¶2} Ohio’s Public Records Act, R.C. 149.43, provides a remedy for production of
records under R.C. 2743.75 if the court of claims determines that a public office has
denied access to public records in violation of R.C. 149.43(B). The Public Records Act
“is 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). Claims under R.C. 2743.75 are determined
using the standard of clear and convincing evidence. Hurt v. Liberty Twp., 5th Dist.
Delaware No. 17CAI050031, 2017-Ohio-7820, ¶ 27-30.
        {¶3} There is no dispute in this case that Cleveland PD possesses the requested
records, that the requests reasonably identify the records sought, and that
Cleveland PD failed to respond to Johnson’s requests as of the filing the complaint.
Case No. 2018-00569PQ                       -2-     REPORT AND RECOMMENDATION


      Cleveland PD is a Proper Party Respondent
      {¶4} Cleveland PD asserts that it is not sui juris for purposes of this action, citing
cases sounding in tort and civil rights, and asks that the complaint be dismissed for
failure to state a claim for which relief may be granted. However, the Ohio Public
Records Act itself makes Cleveland PD sui juris. Under the Act, every “public office”
must produce public records upon request. R.C. 149.43(B)(1). A police department is a
public office. R.C. 149.011(A); State ex rel. Plain Dealer Publishing Co. v. Cleveland,
106 Ohio St.3d 70, 2005-Ohio-3807, 831 N.E.2d 987, ¶ 21. Cleveland PD is therefore a
proper party respondent in this special statutory proceeding to determine alleged
violation of R.C. 149.43(B). R.C. 149.43(C)(1)(a); R.C. 2743.75. I recommend that
Cleveland PD’s motion to dismiss on this ground be denied.
      Inmate Request for Records of Criminal Prosecution
      {¶5} 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 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.

R.C. 149.43(B)(8) (formerly R.C. 149.43(B)(4)) “clearly was drafted to restrict the ability
of inmates to obtain what would otherwise be easily obtainable by noninmates.” State
ex rel. Russell v. Thornton, 111 Ohio St.3d 409, 2006-Ohio-5858, 856 N.E.2d 966, ¶ 15.
“The language of the statute is broad and encompassing,” and “[t]he General Assembly
clearly evidenced a public-policy decision to restrict a convicted inmate’s unlimited
access to public records in order to conserve law enforcement resources.” Id. at ¶ 14.
      {¶6} Cleveland PD avers that Johnson appears to be a person incarcerated as
the result of a criminal conviction at the time of his request, that the records request
Case No. 2018-00569PQ                      -3-     REPORT AND RECOMMENDATION


concerns the criminal investigation and/or prosecution of his criminal case, and that
Johnson did not provide the judicial finding required by R.C. 149.43(B)(8) with his
request. (Response at 2.) Cleveland PD provides an unsworn copy of a criminal docket
sheet supporting Johnson’s inmate status and failure to seek a judicial finding. These
averments and documentation are consistent with the inferences that may be drawn
from Johnson’s prison inmate number and correctional institution return address in the
complaint, his averments, and his failure to reference any judicial finding in his
correspondence or complaint.
       {¶7} I find that Cleveland PD has shown by clear and convincing evidence that
Johnson was and remains incarcerated for a criminal conviction, and has not complied
with the mandatory requirements of R.C. 149.43(B)(8). Accordingly, I find that Cleveland
PD is not required to permit Johnson to inspect or copy the withheld records of his
criminal investigation or prosecution.
       {¶8} I note that public records law does not deny Johnson future opportunities to
request these records. First, R.C. 149.43(B)(8) provides that he may seek a finding from
the sentencing court at any time that the information requested from the Cleveland PD
is necessary to support what appears to be a justiciable claim. Second, upon the
termination of Johnson’s status as an incarcerated person he may choose to make a
new public records request.
       Conclusion
       {¶9} Upon consideration of the pleadings and attachments, I find that Johnson
has failed to establish by clear and convincing evidence that Cleveland PD violated
R.C. 149.43(B) with respect to his requests for records related to a criminal prosecution.
I therefore recommend that the court issue an order denying Johnson’s request for
production of records.
       {¶10} 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
Case No. 2018-00569PQ                       -4-     REPORT AND RECOMMENDATION


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).




                                           JEFFERY W. CLARK
                                           Special Master



Filed April 30, 2018
Sent to S.C. Reporter 5/4/18
