[Cite as Tingler v. Ottawa Cty. Prosecutor's Office, 2017-Ohio-8451.]




CHARLES L. TINGLER                                      Case No. 2017-00248-PQ

        Requester                                       Special Master Jeffery W. Clark

        v.                                              REPORT AND RECOMMENDATION

OTTAWA COUNTY
PROSECUTOR’S OFFICE

        Respondent


        {¶1} On February 7, 2017, requester Charles Tingler made a public records
request to the Ottawa County Prosecutor’s Office for “all documentary reports regarding
a 2011 investigation of Magistrate Sarah Nation.”                       On February 10, 2017, Ottawa
County Prosecutor James VanEerten responded:
             a. “Unfortunately we are unable to provide any documents that are
                responsive to your request. The documents that are currently possessed
                by this office are exempted from disclosure pursuant to Ohio Revised
                Code Sections 149.43 (A)(1)(h), 149.43(A)(1)(p), 149.43(A)(2) and
                2151.421.”
        {¶2} On March 17, 2017, Tingler filed a complaint under R.C. 2743.75 alleging
denial of access to public records in violation of R.C. 149.43(B), attaching copies of his
public records request and the response letter. A mediation session was scheduled for
April 20, 2017, but Tingler failed to appear. The court was notified that the case was not
resolved and that mediation was terminated. On May 5, 2017, the Prosecutor’s Office
filed a verified response and motion to dismiss. Pursuant to R.C. 2743.75 (E)(3)(c), the
special master directed the Prosecutor’s Office to file an authenticated and unredacted
copy of all investigative documents regarding the 2011 investigation referenced in
the complaint, with an affidavit detailing how any specific portions of the
investigative records are excepted by each claimed exception. On July 18, 2017, the
Prosecutor’s Office completed its filings in response to the order. On July 28, 2017, the
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Prosecutor’s Office filed a renewed motion to dismiss. By order dated August 7, 2017,
requester was given the opportunity to reply to respondent’s public filings, and on
August 25, 2017, Tingler filed his reply.
       {¶3} R.C. 2743.75(F)(1) states that public records claims filed thereunder are to
be determined through “the ordinary application of statutory law and case law.” Case
law regarding the alternative statutory remedy of a mandamus action1 provides that a
relator must establish by “clear and convincing evidence” that they are entitled to relief.
State ex rel. Miller v. Ohio State Hwy. Patrol, 136 Ohio St.3d 350, 2013-Ohio-3720, ¶
14. Therefore, the merits of this claim shall be determined under the standard of clear
and convincing evidence. Hurt v. Liberty Twp., 5th Dist. Delaware No. 17CAI050031,
2017-Ohio-7820, ¶ 27-30.
       {¶4} The remedy of production of records is available under R.C. 2743.75 if “the
court of claims determines that the public office or person responsible for the public
record denied the aggrieved person access to the public records in violation of division
(B) of section 149.43 of the Revised Code * * *.” R.C. 2743(F)(3). R.C. 149.43(B)(1)
requires public offices to make public records available to any person upon request.
There is no dispute that the Ottawa County Prosecutor’s Office is a public office, that
the requested information exists in records kept by the Prosecutor’s Office, that the
request of February 7, 2017 reasonably identifies the information sought, and that the
Prosecutor’s Office denied the request in its entirety. I conclude that Tingler’s letter
contains a sufficiently specific request for public records, subject to any valid exemption
or exception to disclosure.
       Respondent’s Motion to Dismiss Based on Changed Circumstances
       {¶5} On October 31, 2016, Tingler was sentenced to a prison term of four years
pursuant to criminal conviction in Ottawa Co. Case No. 2014-CR-00044 CRCI. That
sentence was suspended and Tingler was placed on community control. (Requester’s

       1   Formerly R.C. 149.43(C)(1), recodified in 2016 as R.C. 149.43(C)(1)(b), 2016 Sub.S.B. No. 321.
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brief, September 13, 2017, p. 1; Respondent’s response, September 15, 2017, p. 1.)
Tingler was not incarcerated on the date of the February 7, 2017 public
records request. Id. However, Tingler was subsequently convicted of probation violation
and conveyed to prison on June 30, 2017 (Id., Disposition entry.), where he remains at
present.
       {¶6} On July 28, 2017, respondent filed a renewed motion to dismiss asserting
that it is not required to permit Tingler, as a person incarcerated pursuant to a criminal
conviction, to obtain records of a criminal investigation.2 R.C. 149.43(B)(8) provides:
           b. “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.”
This restriction applies to an inmate’s request for records of any criminal investigation,
not just those from his own case.            State ex rel. Papa v. Starkey, 5th Dist. Stark
No. 2014CA00001, 2014-Ohio-2989.               Tingler has not sought any finding from his
sentencing judge with respect to the requested records.                State v. Lather, 6th Dist.
Sandusky No. S-08-036, 2009-Ohio-3215, ¶ 8-18.
       {¶7} Tingler argues that his status at the time the request was made, rather than
at the time the court renders a decision on production, controls the duty of the office to
produce the records.        However, Tingler’s intervening violation of the terms of his
probation, resulting in his incarceration, changed the material facts and circumstances
surrounding the request, bringing it squarely within the terms of R.C. 149.43(B)(8). A

        2 Respondent did not assert this exemption in its February 10, 2017 response to Tingler’s

request. However, the explanation provided when denying a public records request “shall not preclude
the public office * * * from relying upon additional reasons or legal authority in defending an action
commenced under division (C) of this section.” R.C. 149.43(B)(3).
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requester’s status as an incarcerated person is not merely incidental or irrelevant to the
purposes of the statute. In applying the identical language of former R.C. 149.43(B)(4),
the Ohio Supreme Court stated that “our paramount concern in construing a statutory
provision is legislative intent,” State ex rel. Russell v. Thornton, 111 Ohio St.3d 409,
2006-Ohio-5858, ¶ 11. The Court noted that “[t]he language of the statute is broad and
encompassing,” and held that here, “[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. The language of the statute
“clearly was drafted to restrict the ability of inmates to obtain what would otherwise be
easily obtainable by noninmates.” Id. at ¶ 15. The statutory wording does not confer
just an office’s right to deny a request at the time it is made, but broadly restricts the
ability of inmates to “access” and “obtain” records while incarcerated. Id. Thus, ordering
the Prosecutor’s Office to deliver criminal investigation records to Tingler in prison
would violate its statutory right not “to permit a person who is incarcerated * * * to
inspect or to obtain a copy of” such records.
      {¶8} All of the responsive records fall within the scope of R.C. 149.43(B)(8).
Tingler requested from the Prosecutor’s Office all documentary reports “regarding” a
2011 investigation of child abuse (Complaint; Respondent’s verified response, May 17,
2017, p. 1.). The Supreme Court has determined that the type of records exempted
from inmate requests, i.e., “any record concerning a criminal investigation,” is much
broader than the investigatory records exception in R.C. 149.43(A)(2)(c) (“investigatory
work product”):
          c. “The General Assembly's broad language clearly includes offense and
             incident reports as documents that are subject to the additional
             requirement to be met by inmates seeking records concerning a criminal
             investigation or prosecution.”
State ex rel. Russell v. Thornton, 111 Ohio St.3d 409, 2006-Ohio-5858, ¶ 14. Applying
the above standard, and upon review of the documents and audio recordings filed under
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seal with the court, I find that all of the responsive records are items “concerning a
criminal investigation.”3
        Requester’s Motion to Dismiss
        {¶9} Although not phrased as a motion to dismiss, Tingler makes the following
request regarding the effect of his status change to an incarcerated person: “Requester
asks this Court to view this case as one of first impression and to rule accordingly.”
(Requester’s Brief, September 13, 2017, p. 2.) Tingler’s request is an apparent
reference to R.C. 2743.75(C)(2), which provides:
            d. “(2) If the allegedly aggrieved person files a complaint under this section
               and the court of claims determines that the complaint constitutes a case of
               first impression that involves an issue of substantial public interest, the
               court shall dismiss the complaint without prejudice and direct the allegedly
               aggrieved person to commence a mandamus action in the court of
               appeals with appropriate jurisdiction as provided in division (C)(1) of
               section 149.43 of the Revised Code.”
(Emphasis added.) However, the special master is persuaded that the circumstances
here do not constitute “a case of first impression,” i.e., a “case that presents an entirely
novel question for the decision of the court, and cannot be governed by any existing
precedent.”     Black’s Law Dictionary 635 (6th Ed. 1990). See State ex rel. Wilson
v. Sunderland, 87 Ohio St.3d 548, 549, 721 N.E.2d 1055 (2000) (inmate’s claim for
trial transcript, valid when made, no longer enforceable under circumstances at the
time the court determined the writ); State ex rel. Ohio Republican Party v. FitzGerald,
145 Ohio St.3d 92, 2015-Ohio-5056, 47 N.E.3d 124, ¶¶ 24, 27-28 (“At the time of the
request, R.C. 149.433 exempted [County Executive] FitzGerald’s key-card-swipe data
from disclosure * * * [B]ecause FitzGerald is no longer the county executive, the key-
card-swipe data are no longer security records.”); State ex rel. Blandin v. Beck, 114
Ohio St.3d 455, 2007-Ohio-4562, 872 N.E.2d 1232, ¶ 19; Oregon v. Dansack,


        3 This conclusion does not require any finding regarding the application of the “investigatory work
product” exception in R.C. 149.43(A)(2)(c), and no such finding is made or implied.
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68 Ohio St.3d 1, 4, 623 N.E.2d 20 (1993) (in mandamus, court is not limited to
considering the facts and circumstances at the time the proceeding was instituted, but
should consider the facts and conditions at the time it determines the writ).
       {¶10} Further, and independently fatal to Tingler’s request, he fails to argue or
support the conjunctive requirement for dismissal under R.C. 2743.75(C)(2) that the
case “involves an issue of substantial public interest.” There is no evidence that a
substantial number of people are or will be affected by this issue, or that substantial
harm is occurring or is about to occur. See New Albany Park Condo. Ass'n v. Lifestyle
Cmtys., LTD, 195 Ohio App.3d 459, 468, 2011-Ohio-2806, 960 N.E.2d 992, ¶ 19 (10th
Dist.). I therefore recommend that requester’s implied motion to dismiss pursuant to
R.C. 2743.75(C)(2) be DENIED.
       {¶11} I conclude that under the facts and circumstances existing at the time of
this recommendation, the Ottawa County Prosecutor’s Office is not required to permit
Tingler to inspect or copy the withheld records.        I therefore recommend that the
complaint in this matter be DISMISSED for failure to state a claim for which relief may
be granted. Civ.R. 12(B)(6). In light of the recommendation to dismiss this action in its
entirety on the basis of R.C. 149.43(B)(8), it is unnecessary to address the merits of the
other statutory exceptions asserted by respondent.
       {¶12} I note that public records law does not deny Tingler 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
Prosecutor’s Office is necessary to support what appears to be a justiciable claim.
Second, upon the termination of Tingler’s status as an incarcerated person he may
choose to make a new public records request.
       Conclusion
       {¶13} Upon consideration of the pleadings and attachments, I find that Tingler
has failed to establish by clear and convincing evidence that the Prosecutor’s Office
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violated division (B) of R.C. 149.43.     I recommend that the court issue an order
DISMISSING the complaint for failure to state a claim.
        {¶14} 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).




                                                  JEFFERY W. CLARK
                                                  Special Master




cc:
Charles L. Tingler                           James VanEerten
Ottawa County Jail                           Ottawa County Prosecutor
315 Madison Street, Room 110                 315 Madison Street, 2nd Floor
Port Clinton, Ohio 43452                     Port Clinton, Ohio 43452


Charles L. Tingler, #A670-915
Loraine Correctional Facility
2075 South Avon Belden Road
Grafton, Ohio 44044

Filed October 20, 2017
Sent to S.C. Reporter 11/7/17
