[Cite as Dillingham v. Butler Cty. Prosecutor's Office, 2018-Ohio-3654.]




CHARLES S. DILLINGHAM                                   Case No. 2018-01034PQ

        Requester                                       Special Master Jeffery W. Clark

        v.                                              REPORT AND RECOMMENDATION

BUTLER COUNTY
PROSECUTOR'S OFFICE

        Respondent


        {¶1} 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 policy underlying the
Act is that “open government serves the public interest and our democratic system.”
State ex rel. Dann v. Taft, 109 Ohio St.3d 364, 2006-Ohio-1825, 848 N.E.2d 472, ¶ 20.
Therefore, the Act is construed liberally in favor of broad access, and any doubt is
resolved in favor of disclosure of public records. State ex rel. Glasgow v. Jones, 119
Ohio St.3d 391, 2008-Ohio-4788, 894 N.E.2d 686, ¶ 13. 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.
        {¶2} On July 2, 2018, requester Charles Dillingham filed a complaint alleging 1)
failure of the Butler County Prosecutor’s Office to adhere to a court order, and 2) denial
of access to public records in violation of R.C. 149.43(B). Attached to the complaint was
an entry of referral for investigation (Complaint, Exh. A) and a public records request
naming the Prosecutor’s Office. The request seeks:
        Copy of all preliminary investigation, including investigator files, all
        newspaper articles, press release, and subpoenas and any and all related
        undisclosed evidence not admitted into the discovery package, which
        includes investigation into perjury charges against Officer Shawn Fryman
        (H.P.D.)
Case No. 2018-01034PQ                                 -2-       REPORT AND RECOMMENDATION


(Id., Exh. B.) On July 30, 2018, respondent filed a motion to dismiss (Response) on the
grounds that 1) respondent had no record of having received Dillingham’s public
records request, and 2) respondent had no obligation to respond to the request from
Dillingham, as an inmate, for records of any criminal investigation. Respondent attached
copies of Dillingham’s Judgment of Conviction Entry (Response, Exh. B) and of the
docket in the criminal case from which Dillingham’s current incarceration arose. (Id.,
Exh. C.)1
        Motion to Dismiss
        {¶3} In construing a motion to dismiss pursuant to Civ.R. 12(B)(6), the court must
presume that all factual allegations of the complaint are true and make all reasonable
inferences in favor of the non-moving party. Mitchell v. Lawson Milk Co., 40 Ohio St.3d
190, 192, 532 N.E.2d 753 (1988). Then, before the court may dismiss the complaint, it
must appear beyond doubt that plaintiff can prove no set of facts entitling him to
recovery. O’Brien v. Univ. Community Tenants Union, Inc., 42 Ohio St.2d 242, 245,
327 N.E.2d 753 (1975). The unsupported conclusions of a complaint are, however, not
admitted and are insufficient to withstand a motion to dismiss. Mitchell at 193.
        {¶4} As analyzed in more detail below, Dillingham’s complaint and attachments
support the reasonable inference that Dillingham was incarcerated pursuant to a
criminal conviction at the time he allegedly made his public records request, and at the
time he filed his complaint. See State ex rel. Crabtree v. Franklin County Bd. of Health,
77 Ohio St.3d 247, 249, 673 N.E.2d 1281 (1997), fn. 1 (material “incorporated in a


        1   In addition to the pleadings filed by the parties, the court received letters from Mr. Dillingham on
July 26, 2018 and August 20, 2018. These documents bore no caption, Civ. R. 10(A), and were not
accompanied by proof of service on respondent. Civ.R. 5(B)(4). The contents of the letters are primarily
requests that the special master assist Dillingham in exoneration of his conviction, and prosecution
of Officer Fryman, and have no bearing on alleged violation of R.C. 149.43(B). Pursuant to
R.C. 2743.75(E)(2) (no additional pleadings to be filed unless approved in writing by the special master)
and Civ.R. 5(B)(4), these letters have been marked “received” on the court’s docket, but are not accepted
for filing.
Case No. 2018-01034PQ                                -3-    REPORT AND RECOMMENDATION


complaint may be considered part of the complaint for purposes of determining a
Civ.R. 12(B)(6) motion to dismiss.”) Further, the complaint and attachments do not
reference a finding from Dillingham’s sentencing judge that information in the requested
records is necessary to support what appears to be a justiciable claim of Dillingham.
Respondent’s allegation that Dillingham cannot state a claim for which relief may be
granted due to his failure to plead compliance with the mandatory procedures in
R.C. 149.43(B)(8) thus has substantial merit. However, as the matter is now fully briefed
and   the      record   contains        additional     evidence   regarding   the   elements   of
R.C. 149.43(B)(8), I find that this basis for dismissal is subsumed in the argument to
deny the claim on the merits. I therefore recommend that the motion to dismiss the
claim for access to records on the basis of R.C. 149.43(B)(8) be denied, and the
defense be determined on the merits.
       {¶5} In addition to his claim for public records access, Dillingham seeks
enforcement of a Butler County Court of Common Pleas “court order” pursuant to
“O.R.C. 2930.03, 2930.04, 2930.05, & 2930.06.” (Complaint at 1.) First, Dillingham does
not identify the court order he seeks to enforce. Attached to the complaint is a court
entry (Exh. A), but it merely refers a matter for investigation, and is not “an order to keep
[Dillingham]    notified   of   [the]     investigation.”   (Complaint   at 1.)   Second,   under
R.C. 149.43(C)(1)(a) and R.C. 2743.75, the Ohio Court of Claims has jurisdiction over
claims filed by a person aggrieved by the failure of a public office to comply with
R.C. 149.43(B). R.C. 2743.75 grants no collateral authority for this court to enforce the
orders of other courts in separate matters. Third, R.C. 2743.75 grants no authority for
this court to adjudicate non-public records actions against Ohio governmental
subdivisions. Other than as provided in R.C. 2743.75, the Ohio Court of Claims has
jurisdiction only over certain civil actions against the State of Ohio. See
R.C. 2743.03(A). I therefore recommend that Dillingham’s claims regarding enforcement
of any right under R.C. Chapter 2930 against the Butler County Prosecutor’s Office be
Case No. 2018-01034PQ                         -4-      REPORT AND RECOMMENDATION


dismissed for lack of personal and subject matter jurisdiction, and failure to state a claim
for which relief may be granted. Civ.R. 12(B)(1), (2) and (6).
       Inmate Request for Records of Investigation or Prosecution
       {¶6} The evidence before the court shows that Dillingham is a person
incarcerated pursuant to a criminal conviction. Dillingham listed his address in the
complaint as 1001 Olivesburg Rd., Mansfield, Ohio. The poverty statement attached to
the complaint is supported by a Cashier’s Statement from the Richland Correctional
Institution, 1001 Olivesburg Rd., P.O Box 8107, Mansfield, Ohio, and further identifies
Dillingham as Inmate Number 647-315. (Poverty Statement and attachments.) Butler
County Assistant Prosecuting Attorney Dan Ferguson attests that Dillingham remains
an Ohio prison inmate. (Ferguson Aff. at ¶ 2.) The Prosecutor’s Office submitted
authenticated copies of Dillingham’s sentencing entry and criminal case docket.
(Response, Exh. B, C.) I find that Dillingham has been a person incarcerated pursuant
to a criminal conviction at all times relevant to this action.
       {¶7} As an incarcerated person, Dillingham is subject to the requirements and
procedures in R.C. 149.43(B)(8) in making any public records request concerning a
criminal investigation or prosecution:
       (8) 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 made the adjudication with
       respect to the person, 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.
(Emphasis added.) If an inmate requesting public records concerning a criminal
investigation or prosecution does not follow the requirements in R.C. 149.43(B)(8), any
action to enforce his request will be dismissed. State ex rel. Russell v. Thornton, 111
Case No. 2018-01034PQ                       -5-     REPORT AND RECOMMENDATION


Ohio St.3d 409, 2006-Ohio-5858, 856 N.E.2d 966, ¶ 9-17 (under prior codification as
R.C. 149.43(B)(4)); Hall v. State, 11th Dist. Trumbull No. 2008-T-0073, 2009-Ohio-404.
      {¶8} Dillingham seeks investigatory or prosecution records related to two criminal
matters. First, records from his own criminal case, CR2010-10-1742, and second,
records of “investigation into perjury charges against Officer Shawn Fryman” in Butler
County Common Pleas Case No. IR2018-01-0003 (Complaint, Exh. B.). Dillingham’s
Exhibit A demonstrates that the second matter was referred pursuant to R.C. 2935.10
Filing of affidavit or complaint procedure, which initiates a criminal investigation. Both
parts of Dillingham’s request are thus for “records concerning a criminal investigation or
prosecution.”
      {¶9} Dillingham’s request did not include or allege the existence of the required
finding of necessity by the sentencing judge. A review of the docket of Dillingham’s
criminal case (Response, Exh. C) does not reflect any filing requesting such a finding. I
find that Dillingham failed to follow the mandatory procedures set out in
R.C. 149.43(B)(8) for an inmate request for records concerning a criminal investigation
or prosecution. It thus appears beyond doubt that Dillingham can prove no set of facts
entitling him to an order to produce the requested records, and he therefore fails to state
a claim for which relief may be granted. Civ.R. 12(B)(6).
      Failure to Show Delivery of Public Records Request
      Separately, respondent attests that
      After a diligent search and enquiries within the office of the Butler County
      Prosecuting Attorney, it appears that the Petitioner's alleged public
      records request was never sent to or obtained by the office of the Butler
      County Prosecuting Attorney.
(Response, Ferguson Aff. at ¶ 1.) Dillingham provides no affirmative evidence to the
contrary. Neither the complaint nor the request lists the email address to which the
request was allegedly sent. The complaint does not allege a date or time of sending,
receipt of confirmation, copy of written response, or any other indicia of delivery
Case No. 2018-01034PQ                       -6-     REPORT AND RECOMMENDATION


of the request. After respondent filed its response, the court issued an order
on August 1, 2018, providing Dillingham the opportunity to respond to the defenses
asserted. However, Dillingham has made no further filing containing evidence of
delivery of his request.
        {¶10} A claim that a public office has failed to comply with R.C. 149.43(B) is not
ripe until a specific request has been made and denied. Strothers v. Norton, 131 Ohio
St.3d 359, 2012-Ohio-1007, 965 N.E.2d 282, ¶ 14; State ex rel. Bardwell v. Cordray,
181 Ohio App.3d 661, 664, 2009-Ohio-1265, 910 N.E.2d 504, ¶ 5. I find that Dillingham
has not shown by clear and convincing evidence that he actually delivered his public
records request to respondent, and has thus not triggered any obligation for response.
        {¶11} Based on the above, I recommend that the court DISMISS the claim of
“failure to adhere to court order.” I further recommend that the court DENY the claim for
production of records under R.C. 149.43.
        {¶12} 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

Filed August 22, 2018
Sent to S.C. Reporter 9/10/18
