[Cite as State ex rel. Morabito v. Cleveland, 2012-Ohio-6012.]


                  Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                        No. 98829



               STATE, EX REL. DEBORAH MORABITO
                                                                 RELATOR

                                                       vs.

                         CITY OF CLEVELAND, ET AL.
                                                                 RESPONDENTS



                                           JUDGMENT:
                                           WRIT DENIED


                                         Writ of Mandamus
                                 Motion Nos. 459559, 460360, 460701
                                         Order No. 460900

       RELEASE DATE:                 December 19, 2012
ATTORNEYS FOR RELATOR

Matthew M. Nee
Stephen D. Bittinger
Nee/Bittinger, L.L.C.
27476 Detroit Road, Suite 104
Westlake, Ohio 44145

ATTORNEYS FOR RESPONDENTS

Barbara A. Langhenry
Interim Director of Law
William M. Menzalora
Assistant Director of Law
Alejandro V. Cortes
Assistant Director of Law
City of Cleveland Department of Law
601 Lakeside Avenue, Room 106
Cleveland, Ohio 44114-1077
JAMES J. SWEENEY, P.J.:

      {¶1} On August 20, 2012, the relator, Deborah Morabito, commenced this public

records mandamus action against the respondents, the city of Cleveland, Director of Public

Safety Martin Flask, and Interim Law Director Barbara Langhenry (hereinafter collectively

referred as “Cleveland”). Morabito seeks the videotapes of the sixth floor detention

center where her son, James Morabito, was confined from February 18-19, 2011.          On

October 22, 2012, Cleveland filed a motion to dismiss, inter alia, on the grounds of

mootness. This court converted the motion to dismiss to a motion for summary judgment

under Civ.R. 56 and set forth a briefing schedule. On November 21, 2012, Morabito

filed her brief in opposition, an amended complaint, and a motion for attorney fees.   On

December 5, 2012, the respondents moved to strike the amended complaint and filed a

brief in opposition to the motion for attorney fees. For the following reasons, this court

grants the respondents’ motion for summary judgment, denies the application for a writ of

mandamus, denies the motion for attorney fees, and denies the motion to strike the

amended complaint as moot.

                  FACTUAL AND PROCEDURAL BACKGROUND

      {¶2} The parties agree that James Morabito was arrested in Cleveland on

February 18, 2011, and released the next day. Deborah Morabito asserts that the police

used excessive force on her son while he was in custody and that the mistreatment

contributed to his death. She states that he suffered from several conditions, including
Tourette syndrome, depression and bipolar disorder; that the police refused to get his

medication and beat him; and that subsequently he laid down on a road and was runover

by a motor vehicle on April 16, 2011.

       {¶3} Pursuant to a Schedule of Records Retention and Disposition, adopted in

2008, surveillance video and audio recordings in Cleveland police district buildings are

retained for 30 days.    (Ex. A-1 to Cleveland’s December 5, 2012 filing.)          Upon the

expiration of the 30-day retention period, Cleveland’s DVR devices are programmed to

automatically overwrite the recorded data.    This is a continuous process for all such data,

and the data is preserved only if there is a specific request for video footage.   (Paragraph

5 of affidavit of Public Safety Systems Manager Quenton Cantionez.) In the instant case,

Cleveland Police Lt. David Carroll on February 22, 2011, requested various camera views

of the detention center for February 18, 2011, between 6:00 p.m. and 8:00 p.m.

Cantionez fulfilled that request the same day.

       {¶4} On April 29, 2011, Morabito, through attorney Edwin Vargas, made a public

records request for a copy of all videotapes of the sixth floor detention center while James

Morabito was confined there.       Although the letter request refers to documents, the

request does not specify any records other than the videotape.    Cleveland replied on May

20, 2011 that it was unable to comply with the request at this time because there was an

ongoing investigation.

       {¶5} Approximately one year later, on May 2, 2012, Morabito made another

public records request for “all documents, papers, written record either physical or
electronic and/or files related to Mr. Morabito’s entire detention and/or any investigation

into his detention.” (Ex. C to the Complaint.) That same day Cleveland responded to the

request by sending 113 pages of records to Morabito.1 However, Cleveland did not

provide any videotapes, stating that it had not received the tapes, and that there were

mechanical difficulties that were being addressed.          On May 18, 2012, Morabito again

requested the videotapes.      When Cleveland did not produce them, she commenced this

mandamus action.

      {¶6} On August 30, 2012, Cleveland sent a “copy of the videotape that was

responsive to the request.” (Paragraph 7 of Kim Roberson’s affidavit.) On or about

September 11, 2012, Morabito supplemented her request by asking for records or

information on James Morabito’s booking, interrogation, discharge, and any other

documents to respond to the request for information that had not already been produced.

Morabito also noted that the produced videotape did not appear to be complete for James

Morabito’s entire confinement; she asked Cleveland to determine whether any more

videotapes existed. Morabito confirmed this exchange in an October 2, 2012 letter.

      {¶7} Cleveland responded by producing the records related to James Morabito’s

booking, discharge, citation, and summons.              In a telephone conversation between

Morabito’s lawyer and an assistant director of law, it was represented that there were no

records related to an interrogation because there was no interrogation; that the city


       1
          In its cover letter, Cleveland indicated that it redacted certain information pursuant to
established exemptions, such as social security numbers. The redactions are not at issue in this case.
withheld James Morabito’s medical records because of federal law requirements, and that

the videotape was destroyed approximately 30 days after it was created pursuant to the

retention schedule.     Morabito’s attorney then asked for written confirmation of the

following: (1) that there was no interrogation; (2) that the only videotape that ever existed

has either been released or destroyed; (3) how, when, and by whom the videotape was

destroyed; and (4) whether the tape had been digitally stored and available through

forensic retrieval.   The attorney also asked for a copy of the retention schedule, the names

and ID badges of all police officers that appear in the videotape that has been released, and

the medical records upon presentation of the necessary release forms.                The attorney

memorialized this conversation in an October 12, 2012 letter to the assistant director of

law. (Ex. J to the brief in opposition to the motion for summary judgment.)

       {¶8} Cleveland filed its motion to dismiss on October 22, 2012, and argued

standing, procedural defects, and mootness.2 Cleveland did not file an answer.           The court

converted the motion to dismiss to a motion for summary judgment.

       {¶9}    Morabito responded by her November 21, 2012 filings.              Morabito argues

that the case is not moot because Cleveland has not confirmed in writing that the videotape

was destroyed, and has not explained exactly when and how and by whom it was

destroyed, and has not addressed whether the tape was saved to a digital hard drive and

        2
          Cleveland argued that in the requests, Vargas identified himself as the attorney for James
Morabito; thus, Deborah Morabito was not the person making the request and did not have standing to
commence the public records mandamus action. Additionally, the “swear to everything” affidavit
did not comply with Loc.App.R. 45 and State ex rel. Leon v. Cuyahoga Cty. Court of Common Pleas,
123 Ohio St.3d 124, 2009-Ohio-4688, 914 N.E.2d 402.
could be retrieved.   Moreover, Cleveland has not identified the officers in the tape.   Nor

has it released the retention schedule.      Invoking the Civ.R. 15 right to amend the

complaint at any time before a responsive pleading is served, Morabito complains that

Cleveland violated the public records act, inter alia, by failing to provide a written

explanation for the denial of public records.     However, the demand for relief seeks to

compel Cleveland to immediately make available the requested records for inspection and

copying in accordance with R.C. 149.43 along with statutory damages and mandatory

attorney fees.

       {¶10}     In its December 5, 2012 response, Cleveland attached the relevant retention

schedule and the affidavit of Cleveland’s Public Safety Systems Manager, Quenton

Cantionez.     In that affidavit, Cantionez swears that after 30 days, Cleveland’s DVR

devices are programmed to automatically overwrite the recorded date on a continuous

basis, and that the recorded data cannot be retrieved once it has been overwritten.

                                 LEGAL CONCLUSIONS

       {¶11} Prescinding the issues of standing, pleading defects, and the propriety of the

amended complaint, this court concludes that this public records mandamus action is moot.

 In Harless v. Willis Day Warehouse Co., Inc., 54 Ohio St.2d 64, 66, 375 N.E.2d 46

(1978), the Supreme Court of Ohio stated the appropriate standard for granting summary

judgment:

       Appositeness of rendering a summary judgment hinges upon the tripartite
       demonstration: (1) that there is no genuine issue as to any material fact; (2)
       that the moving party is entitled to judgment as a matter of law, and (3) that
       reasonable minds can come to but one conclusion, and that conclusion is
       adverse to the party against whom the motion for summary judgment is
       made, who is entitled to have the evidence construed most strongly in his
       favor.

       {¶12} Furthermore, when a motion for summary judgment is made, the nonmoving

party may not rest on the mere allegations of his pleading, but his response, by affidavit or

as otherwise provided in Civ.R. 56, must set forth specific facts establishing the existence

of a genuine triable issue.     State ex rel. Flagner v. Arko, 83 Ohio St.3d 176, 177,

1998-Ohio-127, 699 N.E.2d 62.

       {¶13}    In viewing all the evidence in the light most favorable to Morabito, this

court rules that there are no genuine issues of fact to be resolved.     The facts before the

court are that Cleveland videotapes the detention center.    Unless a request is made to save

a recording, the video recorder automatically overwrites the recording after 30 days. Once

the recording is overwritten, it cannot be retrieved.     In the instant case, a request was

made for part of the desired recordings within the 30 days; that what was saved was

released.   Morabito made her request for the video recordings more than 60 days after the

incident.   There is no evidence that any of the desired recording survived until April 29,

2011, except for that portion that Lt. Carroll requested.       Morabito does not set forth

specific facts to raise a genuine issue of fact, but through a series of questions endeavors to

conjure the specter of doubt.    Such questions are not the requisite clear and convincing

evidence that more of the recording exists. Strothers v. Norton, 131 Ohio St.3d 359,

2012-Ohio-1007, 965 N.E.2d 282; and State ex rel. Chatfield v. Gammill, 132 Ohio St.3d

36, 2012-Ohio-1862, 968 N.E.2d 477.        Furthermore, the other actual record requested,
the retention schedule, has been released.   Cleveland had previously released the other

requested records.

       {¶14}    The other matters arguably requested in the amended complaint —

written confirmation of the following: (1) that James Morabito was not interrogated; (2)

that no more of the videotape showing James Morabito exists; (3) the names and ID

badges of all police officers that appear in the video; (4) that other video showing James

Morabito existed; and (5) why, how, when, and by whom the video was destroyed — are

not authentic public records requests, but requests for information outside the scope of

R.C. 149.43. Under the public records statute, the government has the duty to supply

records, not information, and the government has no duty to create records to meet a

requester’s demand. State ex rel. Lanham v. Ohio Adult Parole Auth., 80 Ohio St.3d 425,

1997-Ohio-104, 687 N.E.2d 283; State ex rel. Mayrides v.Whitehall, 62 Ohio St.3d 203,

580 N.E.2d 1089 (1991); State ex rel. Warren v. Warner, 84 Ohio St.3d 432,

1999-Ohio-475,704 N.E.2d 1228; and State ex rel. Fant v. Tober, 8th Dist. No. 63737,

1993 Ohio App. LEXIS 2591. Nor is there a duty to provide records that no longer exist.

 State ex rel. Chatfield.   Therefore, the public records claim is moot.   Cleveland has

provided all the requested existing, non-exempt records, and has established that the

desired videotapes no longer exist.

       {¶15} Although Morabito sought statutory damages in her demand for judgment,

she is not entitled to them. First, she did not specifically argue for them in her R.C.

149.43(C) motion.    State ex rel. Data Trace Information Servs., L.L.C. v. Cuyahoga Cty.
Fiscal Officer, 131 Ohio St.3d 255, 2012-Ohio-753, 963 N.E.2d 1288. More importantly,

there is no evidence before this court that she transmitted her public records request by

hand delivery or certified mail.      R.C. 149.43(C)(1) conditions an award of statutory

damages upon transmitting the request by hand delivery or certified mail.

       {¶16}    Similarly, the court declines to award attorney fees.         Recently, the

Supreme Court of Ohio has ruled that an award of attorney fees or statutory damages is

dependent upon showing the release of the records is more for the public benefit than for

the requester’s benefit. State ex rel. Dawson v. Bloom-Carroll Local School Dist., 131

Ohio St.3d 10, 2011-Ohio-6009, 959 N.E.2d 524 ¶ 34; and State ex rel. Beacon Journal

Publishing Co. v. Akron, 104 Ohio St.3d 399, 2004-Ohio-6557, 819 N.E.2d 1087.             In

her motion for attorney fees, Morabito does not proffer a public benefit, other than

ensuring the fulfillment of public records duties.   This court has ruled that such a proffer

is insufficient. State ex rel. Petranek v. Cleveland, 8th Dist. No. 98026, 2012-Ohio-2396.

Furthermore, the facts of this case indicate the request is for a personal benefit, e.g., an

auxiliary discovery tool. Such is an insufficient basis for attorney fees.     State ex rel.

Cavanagh v. Cleveland, 8th Dist. No. 96116, 2011-Ohio-3840.

       {¶17}    Accordingly, this court grants the respondents’ motion for summary

judgment, denies the application for a writ of mandamus, and denies the relator’s motion

for attorney fees. Respondents to pay costs. This court directs the clerk of court to

serve all parties notice of this judgment and its date of entry upon the journal as required

by Civ.R. 58(B).
     {¶18}   Writ denied.




JAMES J. SWEENEY, PRESIDING JUDGE

COLLEEN CONWAY COONEY, J., and
SEAN C. GALLAGHER, J., CONCUR
