[Cite as Townsend v. Cuyahoga Cty. Pros., 2019-Ohio-4604.]




ALBERT J. TOWNSEND                                   Case No. 2019-00922PQ

       Requester                                     Special Master Jeff Clark

       v.                                            REPORT AND RECOMMENDATION

CUYAHOGA COUNTY PROSECUTOR,
et al.

       Respondents
       {¶1} On August 30, 2019, requester Albert Townsend filed a complaint pursuant
to R.C. 2743.75 alleging denial of his requested access to public records by
respondents Michael O’Malley, Cuyahoga County Prosecutor (prosecutor), and Judge
Daniel Gaul, in violation of the Ohio Public Records Act, R.C. 149.43(B). Attached to the
complaint     are    letters   and    pleadings      requesting   records   of   various   criminal
investigations. (Complaint at 4-6, 12-18). Townsend did not attach any written
responses or other communications from respondents relating to the requests. On
September 25, 2019, the prosecutor filed a response asserting that 1) Townsend did not
make any public records request directly to the prosecutor, and 2) the prosecutor would
have no obligation to respond to a request from Townsend, an inmate, for records of
any criminal investigation.
        {¶2} 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. Glasgow v.
Jones, 119 Ohio St.3d 391, 2008-Ohio-4788, 894 N.E.2d 686, ¶ 13. Claims for
enforcement of the Act under R.C. 2743.75 are determined using the standard of clear
and convincing evidence. Hurt v. Liberty Twp., 2017-Ohio-7820, 97 N.E.3d 1153, ¶ 27-
30 (5th Dist.).




        Inmate Request for Records of Investigation or Prosecution
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       {¶3} Townsend lists his address as “Richland Corr. Inst., P.O. Box 8107,
Mansfield, Ohio.” (Complaint at 1.) The complaint states that “since I’ve been
incarcerated here at The Richland Correctional Inst., I’ve been requesting * * *.” (Id. at
3.) Townsend’s request to the Cuyahoga County Clerk of Court references his ongoing
incarceration at the Richland Correctional Institution. (Id. at 5.) Townsend represents
that he has been a person incarcerated pursuant to a criminal conviction at all times
relevant to this action.
       {¶4} Incarcerated persons must comply with specific requirements and
procedures to make public records requests concerning any 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.) R.C. 149.43(B)(8). If an incarcerated person does not follow these
requirements, an action to enforce his request will be dismissed. State ex rel. Russell v.
Thornton, 111 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.
       {¶5} Townsend states that he seeks the requested records in aid of appeal of his
criminal conviction. (Complaint 1-3.) On review, all of the requests attached to the
complaint appear to be for records “concerning criminal investigations or prosecutions”
Case No. 2019-00922PQ                             -3-      REPORT AND RECOMMENDATION


within the meaning of R.C. 149.43(B)(8).1 However, Townsend’s requests did not
include or allege the existence of the required finding of necessity by his sentencing
judge. Townsend therefore fails to show that he has followed the mandatory procedures
set out in R.C. 149.43(B)(8). The prosecutor thus had no obligation to permit Townsend
to obtain copies of any of the requested records.
        Failure to Show Delivery of Public Records Request
        {¶6} Separately, the prosecutor notes that Townsend “did not make an original
public records request directly to this office.” (Response at 1.) Townsend sent a FOIA
request to the Cuyahoga County Clerk of Court bearing a certificate of service date of
March 18, 2019, asking the clerk to thereafter serve the prosecutor.2 The complaint
does not allege actual receipt of the letter by the prosecutor, and does not attach any
written response from the prosecutor or other indicia of delivery of the request. Nor does
requester point to any requirement that the clerk transmit public records requests to the
prosecutor.
        {¶7} 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. The clerk of courts
and the county prosecutor are separate public offices, and delivery of a document to
one does not amount to delivery to the other under the facts and circumstances of this
case. I find that Townsend has not shown by clear and convincing evidence that he
actually delivered this public records request to the prosecutor, or triggered any
obligation for response thereto.


        1This language includes offense and incident reports for the purposes of the statute. Russell v.
Thornton at ¶ 15-16.
        2The title of the request includes “DATE 1-31-2019.” Requester does not explain the disparity
between these dates.
Case No. 2019-00922PQ                        -4-     REPORT AND RECOMMENDATION


       {¶8} Townsend attaches a “motion requesting all withheld Brady material”
pursuant to Crim.R. 16, and a “motion for all pretrial, trial transcripts, jury verdict forms
at state expense,” both of which are captioned as filings in Cuyahoga County Common
Pleas Case No. CR-17-614508-A (Complaint at 6, 13-15). By their express terms, these
pleadings are not public records requests, but are court filings alleging entitlement to
evidence and transcripts under criminal procedure. To the extent Townsend complains
that he received incomplete discovery responses in the course of his criminal litigation,
R.C. 2743.75 provides no authority to adjudicate such non-public records matters.
       {¶9} Although the prosecutor did not respond on behalf of respondent Judge
Daniel Gaul, the court may take notice that the record contains no public records
request made to Judge Gaul. Townsend’s FOIA request of March 18, 2019 to the clerk
of courts mentions Judge Gaul’s name in listing the records sought, but is not a public
records request made to the judge himself. The only attachment to the complaint
reflecting a public records request by Townsend to any judge is an undated “motion for
order compelling release of public records” in one of his earlier criminal actions
(Complaint at 18), but Townsend does not name the judge in that action as a
respondent here.
       {¶10} Townsend therefore fails to show by clear and convincing evidence that he
made any public records request to Judge Gaul in the first instance. Moreover, even
had he made a public records request to Judge Gaul, requests for court case records in
actions commenced after July 1, 2009, must be made pursuant to the Rules of
Superintendence, and not under the Public Records Act. Sup.R. 47(A)(1); State ex rel.
Village of Richfield v. Laria, 138 Ohio St.3d 168, 2014-Ohio-243, 4 N.E.3d 1040, ¶ 8.
This court may dismiss the request to enforce such a request for lack of subject matter
jurisdiction.
       The Federal Freedom of Information Act Does Not Apply To
       Nonfederal Agencies
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        {¶11} Townsend sent an otherwise uncaptioned “FREEDOM OF INFORMATION
ACT REQUEST” to the Cuyahoga County Clerk of Court on March 18, 2019. The
request stated as its sole basis: “This is a request under provision of Title 5 USC, Sec
552, The Freedom of Information Act.” (Complaint at 4.) However, requests for
government records from state or local agencies in Ohio are governed only by the
Public Records Act, R.C. 149.43. The federal Freedom of Information Act (FOIA) is a
federal law that does not apply to state or local agencies or officers. State ex rel.
Warren v. Warner, 84 Ohio St.3d 432, 433, 704 N.E.2d 1228 (1999); State v. Heid, 4th
Dist. Scioto No. 14CA3668, 14CA3669, 2015-Ohio-1502, ¶ 10; 5 U.S.C., Sections
551(1) and 552(f). This is an independently sufficient additional ground to deny any
request made in the March 18, 2019 document.
        Conclusion
        {¶12} Based on the above, requester has failed to show by clear and convincing
evidence that respondents have committed any violation of R.C. 149.43(B). I
recommend that the court DENY requester’s claim for production of records.
        {¶13} 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).




                                           JEFF CLARK
                                           Special Master
Filed October 4, 2019
Sent to S.C. Reporter 11/8/19
