[Cite as State ex rel. Andrews v. Chardon Police Dept., 2013-Ohio-338.]


                                   IN THE COURT OF APPEALS

                               ELEVENTH APPELLATE DISTRICT

                                      GEAUGA COUNTY, OHIO


STATE OF OHIO                                            :           PER CURIAM OPINION
ex rel. JOHN MARK ANDREWS,
                                                         :
                 Relator,                                            CASE NO. 2012-G-3074
                                                         :
        - vs -
                                                         :
CHARDON POLICE DEPARTMENT,
et al.,                                                  :

                 Respondents.                            :


Original Action for Writ of Mandamus.

Judgment: Writ denied.


John Mark Andrews, pro se, 120 Court Street, Chardon, OH 44024 (Relator).

James M. Gillette, Chardon Village Law Director, National City Bank Building, 117
South Street, Suite 208, Chardon, OH 44024 (For Respondent, Chardon Police
Department).

David P. Joyce, Geauga County Prosecutor, and Bridey Matheney, Assistant
Prosecutor, Courthouse Annex, 231 Main Street, Chardon, OH  44024 (For
Respondent, Geauga County Sheriff’s Office).



PER CURIAM.

        {¶1}     This action in mandamus is before this court for final disposition of the

respective summary judgment motions of respondents, Chardon Police Department and

Geauga County Sheriff’s Office. As the basis for the motions, respondents maintain

that relator, John Mark Andrews, is not entitled to a writ of mandamus because they
have no obligation to satisfy his public records requests. Respondents explain that

those records not subject to exemption which actually exist have already been released

to relator. After a review of the evidentiary materials attached to both motions, and as

fully set forth below, we find summary judgment to be warranted under the facts of this

action.

          {¶2}   On May 1, 2012, relator filed a pro se petition for writ of mandamus

alleging that his requests for non-exempt public records were denied by respondents, in

violation of his statutory right to have access to public records under R.C. 149.43.

Relator subsequently reasserted these claims before this court in his “motion for

immediate consideration for order of mandamus.”

          {¶3}   The public records sought by relator relate to his arrest, which ultimately

led to charges of felonious assault and having weapons while under disability. As a

parenthetical note, we take notice that relator subsequently defended himself against

these charges acting pro se and, following a jury trial, was acquitted. The request

explains that on April 4, 2012, relator allegedly committed the crimes of felonious

assault and domestic violence within the city of Chardon. The records sought by relator

are materials relating to the incident, including police reports, audio recordings of police

radio transmissions, and video of dashboard camera recordings from April 2 and 3,

2012, as well as police procedures and officer records.

          {¶4}   Specifically, the request sought the following: (1) “any/all police reports,

witness statements, including the personal notes of the officers/deputies who

editorialized and transcribed it into typewritten complaint/reports”; (2) “the names of

any/all officers/deputies involving in responding, investigating, arresting/apprehending




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me, and processing/booking me in upon arrest, including the name(s) of City/County

Dispatchers on 4/2/12 till 4/3/12”; (3) “a copy of the actual Geauga County Sheriff Dept.

Dispatch audio recordings of the police radio transmissions concerning the alleged

incident * * *”; (4) “a copy of the actual video/audio recordings of all unknown

officers/deputies walkie-talkie radios of the entire alleged incident/crime on 4/2/12 and

4/3/12 * * *”; (5) “a copy of the actual video/audio recordings from the officers and

deputies dashboard cams and video/audio recording from within the patrol/police cars of

any/all officers/deputies involved, and of my entire apprehension of me from vehicle,

including the video/audio recordings of myself in back of patrol car until I am transported

to the jail”; (6) “a copy of any/all Geauga Co. Sheriff Dept. policies/procedures regarding

how officer/deputies are to process/obtain witness statements, collect evidence,

fingerprinting evidence, conducting BAC Datamaster Tests * * *, processing complaints,

and retaining/releasing videotapes and public records to the public”; (7) “a copy of

any/all officers/deputies personal records regarding any/all of their training as a

officer/deputy * * *” (sic throughout).

       {¶5}   Relator seeks a writ of mandamus to compel the release of this

documentation. Respondents have filed respective summary judgment motions. The

standard for summary judgment is well established.          To prevail on a motion for

summary judgment, the moving party has the initial burden to affirmatively demonstrate

that: (1) there is no genuine issue of material fact to be resolved in the case; (2) final

judgment as a matter of law is warranted; and (3) the nature of the evidentiary

materials, even when viewed in a light most favorable to the non-moving party, are such




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that a reasonable person could only reach a conclusion against the non-moving party.

State ex. rel. Dehler v. Spatny, 11th Dist. No. 2009-T-0075, 2010-Ohio-3052, ¶26.

       {¶6}    We first turn to the summary judgment motion filed by Respondent

Geauga County Sheriff’s Office.

       {¶7}    The Geauga County Sheriff’s Office (“the Sheriff”) attached relator’s

request for public records to its summary judgment motion. It also attached the Sheriff’s

letter in response, with relator’s address, noting it enclosed a CD-ROM of (1) the

incident report; (2) the audio recordings of the incident; (3) a copy of the personnel files

of the deputies that responded to the incident; and (4) a copy of the pertinent sections of

the Sheriff’s manual regarding certain policies and procedures. The letter explains all

other requested documents do not exist. The final line of the letter states: “Please

advise if, upon the receipt of these document[s] in fulfillment of your public records

request, you will dismiss your mandamus action against the Sheriff’s Office.” It also

attached an affidavit of Lt. John Hiscox, records custodian, who explained that he

mailed the May 24, 2012 letter with the enclosed CD-ROM to relator; that the CD-ROM

contained the documentation as set forth in the letter; and that the parcel was never

returned for failure of service.   Lt. Hiscox additionally averred that, other than the

records provided to relator, no other requested public records exist in possession of the

Sheriff’s Office.

       {¶8}    In evaluating this motion, we must first address relator’s contention that

the affidavit of Lt. Hiscox is defective and should not be considered. As relator correctly

points out, the affidavit does not bear a notary seal. However, the affidavit contains Lt.

Hiscox’s signature, the name of the notary public, the expiration date of the notary




                                             4
public’s commission, the signature of the notary public, and the date upon which the

affiant’s signature was witnessed.     Further, we take notice that the notary public’s

commission is on file with the Ohio Secretary of State and has been recorded by the

clerk of the Geauga County Common Pleas Court. As such, the missing seal does not

render the affidavit defective in this case, as it can be readily ascertained that the sworn

affidavit has been taken before the proper officer. See Benedict v. Peters, 58 Ohio St.

527, 536-537 (1898). Relator also contends the affidavit is defective because it lacks a

sworn statement that, under penalty of perjury, the affidavit is truthful. However, the

affidavit states that the affiant had been “first duly sworn and cautioned.” Moreover, this

court has previously noted that, under the Ohio Revised Code, “no particular form of an

oath is necessary to create an affidavit.” Karkow v. Keefner, 11th Dist. No. 96-T-5483,

1996 Ohio App. LEXIS 5792 (Dec. 20, 1996), citing R.C. 3.21. Thus, the affidavit is of

proper evidentiary quality and may be considered.

       {¶9}   In construing these evidentiary materials in a light most favorable to

relator, we determine no genuine issue of material fact remains to be litigated. The

evidence illustrates that relator received copies of the non-exempt requested materials

which existed after the mandamus case was filed; such “post-action disclosure” of

records render relator’s claims moot. See generally State ex rel. Gannett Satellite Info.

Network v. Shirey, 78 Ohio St.3d 400, 401 (1997) (“provision of the requested records

to the relator in a mandamus action brought under R.C. 149.43 renders the mandamus

claim moot”). Even accepting relator’s insistence that other materials exist (though he

did not submit any evidentiary materials so suggesting), he is still not entitled to the

extraordinary relief requested. The remainder of his request, such as the personal




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notes or impressions of the officers who transcribed the police reports, is simply not in

the purview of R.C. 149.43.

      {¶10} We next turn to the summary judgment motion filed by Respondent

Chardon Police Department.

      {¶11} Chardon Police Department (“Chardon Police”) attached relator’s requests

for public records to its summary judgment motion. It also attached its initial letter in

response as well as a receipt, signed by relator, noting that he had received the

following documents: (1) the requested written policies of the Chardon Police; (2) the

operator permit for the BAC Datamaster; (3) the audio of the incident report; and (4)

personnel files for six employees. Pursuant to R.C. 149.43, personal information of the

law enforcement officers was withheld or redacted from the files. The Chardon Police

also attached an itemized list of the documents within the files released to relator, the

specifics of which are too exhaustive to detail in this opinion. Additional attachments

include the affidavit of Sally Harmasek, records custodian, and James Gillette, Chardon

city law director, who averred the contents of the material released to relator and further

averred that the additional requested records did not exist.

      {¶12} Relator does not attack these evidentiary materials in his motion to “strike

and/or for objection” to Chardon Police’s summary judgment motion. After a review of

the evidentiary materials, we determine no genuine issue of material fact remains to be

litigated. The affidavits, as well as a copy of the signed receipt of documents illustrate

that those nonexempt materials which exist have already been released to relator.




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      {¶13} Accordingly, respondents’ motions for summary judgment are granted. It

is the order of this court that final judgment is hereby entered in favor of respondents as

to relator’s entire mandamus petition. All pending motions are overruled as moot.



TIMOTHY P. CANNON, P.J., CYNTHIA WESTCOTT RICE, J., MARY JANE TRAPP, J.,
concur.




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