[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
ex rel. Pietrangelo v. Avon Lake, Slip Opinion No. 2016-Ohio-5725.]




                                           NOTICE
      This slip opinion is subject to formal revision before it is published in an
      advance sheet of the Ohio Official Reports. Readers are requested to
      promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
      South Front Street, Columbus, Ohio 43215, of any typographical or other
      formal errors in the opinion, in order that corrections may be made before
      the opinion is published.




                          SLIP OPINION NO. 2016-OHIO-5725
      THE STATE EX REL. PIETRANGELO v. THE CITY OF AVON LAKE ET AL.
  [Until this opinion appears in the Ohio Official Reports advance sheets, it
    may be cited as State ex rel. Pietrangelo v. Avon Lake, Slip Opinion No.
                                     2016-Ohio-5725.]
Mandamus—R.C. 149.43—Public-records mandamus case moot because all
        requested records either have been provided or no longer exist—Statutory
        damages denied for failure to prove hand-delivery of written request for
        records.
    (No. 2015-0197—Submitted May 3, 2016—Decided September 13, 2016.)
                                       IN MANDAMUS.
                                 _____________________
        Per Curiam.
        {¶ 1} Relator, James Pietrangelo II, submitted a public-records request to
the records clerk for the police department of the city of Avon Lake. Pietrangelo
claims that he personally hand-delivered to the clerk a written public-records
request on December 30, 2014, and that the department was completely
                             SUPREME COURT OF OHIO




unresponsive to the request until Pietrangelo filed this lawsuit in February 2015
against respondents, the city of Avon Lake and Duane Streator, the Avon Lake
police chief. The department asserts that although Pietrangelo verbally requested
an incident report and other records on December 30, regarding events that occurred
on December 29, 2014, he did not submit a written request. The department also
asserts that the clerk told Pietrangelo when the requested incident report would be
available, but that Pietrangelo neglected to come back and pick it up.
       {¶ 2} Because the only requested records that have so far not been produced
to Pietrangelo by respondents no longer exist, the case is moot. We therefore deny
the request for a writ of mandamus. And because Pietrangelo fails to prove that he
made a hand-delivered written request, we deny statutory damages.
                                        Facts
       {¶ 3} On December 29, 2014, two Avon Lake police officers responded to
a complaint made by Pietrangelo about juveniles at a skate park. The officers spoke
to Pietrangelo and the juveniles and took handwritten notes, which they assert were
for their personal convenience to help them recall what was said when they later
prepared the incident report. Both officers attest that soon after the report was
prepared, they destroyed the notes.
       {¶ 4} Respondents assert that on December 30, 2014, Pietrangelo
telephoned the police department and asked whether a report had been generated
for the skate-park incident that occurred the day before. The records clerk, Michael
Cipro, asserts that during the phone conversation, he advised Pietrangelo that no
report had yet been generated. Cipro asserts that Pietrangelo came to the police
station later that day, again inquiring about the incident report. Cipro informed
Pietrangelo that the report was being prepared but would not be ready for two or
three days and that he should check back at that time to obtain a copy. Cipro asserts
that he did not use the term “draft” or “rough draft” when referring to the report
and that Pietrangelo did not ask for a draft of the report.




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                                 January Term, 2016




        {¶ 5} Respondents further assert that Pietrangelo did not make
arrangements to have the report faxed, mailed, or otherwise delivered to him and
that he did not submit a written request for records relating to the December 29,
2014 incident at the skate park. Respondents assert that Pietrangelo never followed
up to obtain a copy of the report.
        {¶ 6} According to respondents, Pietrangelo never delivered the December
30, 2014 letter attached to his mandamus complaint to the police department.
Lieutenant Scott Fishburn asked each of the employees of the department whether
he or she had received a December 30 written request from Pietrangelo, and each
assured him that he or she had not. Lt. Fishburn also searched the department files
in which written requests for records are kept and found no such request.
        {¶ 7} Pietrangelo, however, asserts that he hand-delivered a written records
request to the police department on December 30, 2014. Pietrangelo claims that
when he hand-delivered the written request, he verbally asked Cipro if the police
report was available for immediate release that day. Pietrangelo asserts that he
never withdrew or modified the written request. According to Pietrangelo, in
response to his verbal request, Cipro told him that only a draft version was available
at that time, but Cipro did not offer to release it.
        {¶ 8} Pietrangelo further asserts that he suspected that the department
would ignore his December 30, 2014 request, so he put the request in writing, rather
than making only a verbal request. Pietrangelo asserts that the officers who
responded to the skate park on December 29 had repeatedly “displayed opposition”
to him. He asserts that he has filed a lawsuit against Avon Lake alleging that the
skate park is a nuisance and that he believed that the department would withhold
the records in order to frustrate the suit.
        {¶ 9} Pietrangelo filed this original action for a writ of mandamus on
February 5, 2015, asking for a writ ordering respondents to comply with the Public
Records Act, R.C. 149.43, and to produce the requested records. Pietrangelo also




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seeks redress for a “pattern of refusal” by Avon Lake respondents regarding to his
records requests. He prays for statutory damages, costs, and attorney fees.
       {¶ 10} We referred the case to mediation on February 17, 2015, but it was
unsuccessful. On March 17, 2015, which Pietrangelo asserts was the day after the
mediation failed, the department left Pietrangelo a telephone message telling him
that the records he requested were ready for pickup. On March 18, Pietrangelo
went to the police station, where a dispatcher gave him a compact disc containing,
according to Pietrangelo, many, but not all, of the records sought in the request.
       {¶ 11} The records had been assembled by Lt. Fishburn. The records on the
disc are described by Lt. Fishburn as consisting of seven audio clips, one video clip,
two calls for service reports, a public-records-redactions-and-exemptions form, and
an incident report with Social Security numbers redacted, all relating to the
December 29 skate-park incident.
       {¶ 12} On March 24, 2015, the court returned the case to the regular docket,
and respondents filed an answer and a motion for judgment on the pleadings, to
which Pietrangelo responded.
                                      Analysis
Mandamus
       {¶ 13} “Mandamus is the appropriate remedy to compel compliance with
R.C. 149.43, Ohio’s Public Records Act.” State ex rel. Physicians Commt. for
Responsible Medicine v. Ohio State Univ. Bd. of Trustees, 108 Ohio St.3d 288,
2006-Ohio-903, 843 N.E.2d 174, ¶ 6; R.C. 149.43(C)(1).
       {¶ 14} Although the Public Records Act is accorded liberal construction in
favor of access to public records, “the relator must still establish entitlement to the
requested extraordinary relief by clear and convincing evidence.” State ex rel.
McCaffrey v. Mahoning Cty. Prosecutor’s Office, 133 Ohio St.3d 139, 2012-Ohio-
4246, 976 N.E.2d 877, ¶ 16. Clear and convincing evidence is “that measure or
degree of proof which is more than a mere ‘preponderance of the evidence,’ but not




                                          4
                                January Term, 2016




to the extent of such certainty as is required ‘beyond a reasonable doubt’ in criminal
cases, and which will produce in the mind of the trier of facts a firm belief or
conviction as to the facts sought to be established.” Cross v. Ledford, 161 Ohio St.
469, 120 N.E.2d 118 (1954), paragraph three of the syllabus. In addition, unlike in
other mandamus cases, “[r]elators in public-records cases need not establish the
lack of an adequate remedy in the ordinary course of law.” 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, ¶ 25.
Mootness
       {¶ 15} Respondents correctly assert that “[i]n general, providing the
requested records to the relator in a public-records mandamus case renders the
mandamus claim moot.” State ex rel. Toledo Blade Co. v. Toledo-Lucas Cty. Port
Auth., 121 Ohio St.3d 537, 2009-Ohio-1767, 905 N.E.2d 1221, ¶ 14, citing State ex
rel. Toledo Blade Co. v. Ohio Bur. of Workers’ Comp., 106 Ohio St.3d 113, 2005-
Ohio-6549, 832 N.E.2d 711, ¶ 16.
       {¶ 16} Pietrangelo asserts that all the requested documents have not been
produced. Specifically, he asserts that copies of at least two records were not
released: the notes taken by officers at the skate park on December 29 and the draft
police report mentioned by Cipro on December 30, 2014. He points out that
respondents admitted in their answer that such records existed on December 30,
and that they were public records. He also asserts that none of the respondents’
affiants attested that the records produced are the only responsive records available.
       {¶ 17} Respondents claim in their brief that the notes taken by the
responding officers were for the personal convenience of the police officers in
preparing the incident report. Respondents assert that the personal notes are not
public records.
       {¶ 18} We have held that personal notes taken for the convenience of public
officials are not public records. State ex rel. Cranford v. Cleveland, 103 Ohio St.3d




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                               SUPREME COURT OF OHIO




196, 2004-Ohio-4884, 814 N.E.2d 1218, ¶ 13-22; State ex rel. Steffen v. Kraft, 67
Ohio St.3d 439, 440, 619 N.E.2d 688 (1993). As we held in Steffen and Cranford,
if the notes were taken for the officers’ own convenience to recall events when later
preparing a report and not as part of the department’s official records, they are not
public.
          {¶ 19} However, Pietrangelo points out that in their answer, respondents
admitted that police-department employees had told him before the December 29
incident that the department “has a system or custom of recordkeeping whereby
responding-officer notes concerning violations of the skate park rules are kept at
[the department] for future reference.” Pietrangelo claims that this admission
shows that the notes are part of the official skate-park file and should have been
produced in response to his request. Pietrangelo believes that the notes may contain
information not in the official report, including allegedly fictitious addresses given
by some of the juveniles when interviewed by the police. Indeed, the answer also
admits that the notes may have contained information not in the report.
          {¶ 20} The officers state in their affidavits that the officer who wrote the
report used his notes to prepare it, and then both officers’ notes were destroyed. If
the notes have been destroyed, correctly or not, they cannot be produced at this
point. Respondents cannot be ordered to produce records that no longer exist.
          {¶ 21} As to the “draft” incident report, respondents’ answer admits that
there was a “draft” report in existence on December 30, 2014, but the department
now asserts that there was only one report, never a “draft.” Respondents assert
that the report was being prepared but was not complete at the time of Pietrangelo’s
original request. Nevertheless, once the report was completed, it was available to
Pietrangelo.
          {¶ 22} All existing documents related to the December 29, 2014 skate-park
incident have apparently been produced, and the case is moot. We therefore deny
the request for a writ.




                                           6
                                  January Term, 2016




Statutory damages
        {¶ 23} Pietrangelo also argues that the court should award damages.
Because the department did not produce the requested records to Pietrangelo until
March 2015, almost three months after the request, it arguably did not satisfy the
requirement of R.C. 149.43(B)(1) that requested records be made available “within
a reasonable time.” Pietrangelo may be entitled to statutory damages because of
the delay, but only if he delivered the request by hand or by certified mail. R.C.
149.43(C)(1). Pietrangelo asserts that he delivered the December 30, 2014 request
by hand.
        {¶ 24} Respondents claim that the letter was never delivered by hand or
otherwise. For proof, they submit the affidavits of Cipro and Lt. Fishburn, who
attest that the letter was not received, that it is not in the department’s files, and that
the department knew of the letter only because it was attached to the complaint in
this case. Respondents also assert that Cipro’s statements to Pietrangelo during
Pietrangelo’s visit to the police station on December 30, 2014, and on the voicemail
he left Pietrangelo on March 17, 2015, indicate the department’s willingness to
produce the requested records. The department maintains a log of requests for
records, and that log indicates that between September 23, 2013, and August 17,
2014, Pietrangelo requested records on three occasions. On each occasion, he
appeared in person to request the records and the request was promptly filled.
        {¶ 25} Pietrangelo asserts that his sworn affidavit is not the only evidence
he has to prove that he hand-delivered a request. He submitted a video that he made
of himself purportedly delivering the request letter on December 30, 2014.
Respondents assert that the video fails to show that Pietrangelo hand-delivered the
request letter.
        {¶ 26} Respondents’ assertion is correct. The video fails to establish by
clear and convincing evidence that Pietrangelo delivered a written public-records
request to the department.       The video shows Pietrangelo with the two-page




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December 30 public-records request.          It shows Pietrangelo exiting his car.
However, during most of the video, the paper is held over the camera lens so that it
is impossible to tell where he is walking. The video shows a brief glimpse of a sign
with an arrow pointing to the police department, but the video continues only with
views of the paper and Pietrangelo’s feet walking on the pavement. It shows him
entering a door, but the video shows only the pavement and does not show a sign
or other indication of what building or office he may be entering. Once he is inside,
the video briefly shows Pietrangelo’s hand holding the document, but it does not
show him handing the document to anyone, or another hand taking the document
from him. Pietrangelo can be heard speaking to another person, indicating that he
was seeking more than just the report and logs and was also requesting all
documents relating to the incident. Neither he nor the other person who can be heard
on the recording refer to a written request. After the brief view of his hand holding
the document, the video shows only Pietrangelo’s feet; it does not show the faces
of Pietrangelo or the person to whom he is speaking, and it does not show him
handing the letter to anyone.
       {¶ 27} Given that the video is inconclusive and that we have contradictory
affidavits from Pietrangelo and police-department employees, Pietrangelo has
failed to show by clear and convincing evidence that he delivered the December
30, 2014 public-records request by hand. He is therefore ineligible for statutory
damages.
       {¶ 28} Pietrangelo also asserts that even if respondents have turned over all
the requested documents in this case, the case is not moot, because they have
chronically violated their legal obligations toward him with regard to public
records. In support of this argument, he cites a case in which a court of appeals
granted in part his petition for a writ of mandamus against Avon Lake, holding that
Avon Lake should not have redacted the professional-fee summary from attorney
billing statements produced in response to Pietrangelo’s records request. He




                                         8
                                January Term, 2016




appealed from the portion of the judgment that denied the writ as to other aspects
of his request. We recently affirmed the court of appeals’ denial. State ex rel.
Pietrangelo v. Avon Lake, 146 Ohio St.3d 292, 2016-Ohio-2974, 55 N.E.3d 1091.
Pietrangelo has not shown that respondents are chronically violating their public-
records obligations.
       {¶ 29} We also deny Pietrangelo’s consolidated motions for sanctions
and/or for an order to show cause, to hold a hearing, and for leave to conduct
discovery, all of which are related to his assertion that respondents engaged in
misconduct by suborning perjury and destroying public records.
                                    Conclusion
       {¶ 30} We deny Pietrangelo’s request for a writ because the only documents
requested but not produced no longer exist. And because Pietrangelo cannot show
by clear and convincing evidence that he hand-delivered the request, he is ineligible
for statutory damages.
                                                                        Writ denied.
       O’CONNOR, C.J., and PFEIFER, O’DONNELL, and O’NEILL, JJ., concur.
       LANZINGER, J., concurs in judgment only.
       KENNEDY, J., concurs in part and dissents in part, with an opinion joined by
FRENCH, J.
                               _________________
       KENNEDY, J., concurring in part and dissenting in part.
       {¶ 31} I agree with the majority that the request for a writ of mandamus is
moot. However, I disagree with its determination that relator, James Pietrangelo
II, failed to demonstrate by clear and convincing evidence that he hand-delivered
his public-records request to the Avon Lake Police Department. The recording
clearly and convincingly demonstrates that Pietrangelo hand-delivered his public-
records request to the police department. Therefore, I would hold that he is entitled
to statutory damages. Accordingly, I concur in part and dissent in part.




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                             SUPREME COURT OF OHIO




       {¶ 32} R.C. 149.43(C)(1) mandates the award of statutory damages for
unreasonable delay in responding to a public-records request that was delivered by
hand or by certified mail. The burden is on the requester to prove the delivery by
clear and convincing evidence. State ex rel. Miller v. Ohio State Hwy. Patrol, 136
Ohio St.3d 350, 2013-Ohio-3720, 995 N.E.2d 1175.              Clear and convincing
evidence is “ ‘that measure or degree of proof which is more than a mere
“preponderance of the evidence,” but not to the extent of such certainty as is
required “beyond a reasonable doubt” in criminal cases, and which will produce in
the mind of the trier of facts a firm belief or conviction as to the facts sought to be
established.’ ” State ex rel. Husted v. Brunner, 123 Ohio St.3d 288, 2009-Ohio-
5327, 915 N.E.2d 1215, ¶ 18, quoting Cross v. Ledford, 161 Ohio St. 469, 120
N.E.2d 118 (1954), paragraph three of the syllabus.
       {¶ 33} Pietrangelo is not a novice requester of public records. The Avon
Lake Police Department records clerk, Michael Cipro, stated in his affidavit that
Pietrangelo hand-delivered three separate requests to the police department from
September 23, 2013, to August 17, 2014. Moreover, a review of this court’s docket
reveals that this is the second legal action Pietrangelo has filed to obtain a public
record and statutory damages. See State ex rel. Pietrangelo v. Avon Lake, 146 Ohio
St.3d 292, 2016-Ohio-2974, 55 N.E.3d 1091.
       {¶ 34} In this matter, the majority correctly points out that there are
contradictory affidavits from Pietrangelo and the police-department employees on
whether the request was hand-delivered on December 30, 2014. Majority opinion
at ¶ 27. Accordingly, the recording that Pietrangelo submitted is critical evidence
in resolving this dispute.
       {¶ 35} The majority accurately depicts those portions of the recording that
it has chosen to describe. However, the majority falls far short of giving a full and
fair depiction of the contents of the recording.




                                          10
                                January Term, 2016




       {¶ 36} At the beginning of the recording, a cell phone display is shown,
indicating the time and date as “11:54 AM, Tue, Dec 30,” and Pietrangelo’s two-
page typed public-records request is shown.        The document is titled “Public
Records Request,” is dated December 30, 2014, and states “via personal hand
delivery to Avon Lake Police Department Safety Center.” During this part of the
recording, Pietrangelo says, “OK, its 11:54 a.m., December 30, 2014, and I’ve got
this public-records request, which I’m going to be—it’s a two pager—hand-
delivering to the police department here in a second.”
       {¶ 37} Pietrangelo was carrying the camera, so the video is shot from his
perspective. The recording shows Pietrangelo exiting a vehicle and walking past a
sign that states “Police Department Municipal Court Entrance,” with an arrow
pointing toward an entrance to an office building behind the sign. It is evident from
the recorded movement that Pietrangelo is walking in the direction of the police
department and toward this entrance. Pietrangelo then enters an office building,
holding the document, and says, “Hi, Inspector Cipro. That’s a request. I’m
seeking more than just the reporter log, that’s like an actual request, so I’m
requesting everything the department has relative to that incident.” Thereafter, a
voice different from Pietrangelo’s responds, “OK.”
       {¶ 38} The majority finds Pietrangelo’s recording to be inconclusive and
states that Pietrangelo can be heard speaking to another person, indicating the he
was seeking all documents relating to the incident, but that neither he nor the other
person are heard referring to a written request. Majority opinion at ¶ 26. I disagree;
when all aspects of the recording are considered, both the video and audio,
Pietrangelo does refer to the written request and has proved by clear and convincing
evidence that he hand-delivered it.
       {¶ 39} It is undisputed that Pietrangelo went to the police station on
December 30, 2014. The recording establishes that Pietrangelo walked into the
building, holding the document, and greeted “Inspector Cipro” and was not




                                         11
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corrected with respect to the identity of the person he greeted. Therefore, it is
reasonable to infer from the video that Pietrangelo was greeting Cipro after walking
into the police station with the document on December 30, 2014. After greeting
Cipro, Pietrangelo states, “That’s a request.”         In this context, “that” is a
demonstrative pronoun; it refers to the document and conveys that the document is
no longer in Pietrangelo’s hand. See Chicago Manual of Style, Section 5.51, 217
(16th Ed.2010).     Cipro’s response of “OK” indicates an acknowledgement.
Accordingly, it is reasonable to infer that Pietrangelo handed the document to Cipro
and Cipro received it.
       {¶ 40} A fair reading of the majority’s interpretation of what happened is
that Pietrangelo, a frequent public-records requester, failed to deliver his written
request despite recording himself holding the written request and saying it was his
intention to hand-deliver it to the police station, walking into a building located
behind a sign for the police station, and informing another person within the
building that he had a public-records request. This conclusion is unreasonable.
       {¶ 41} Moreover, with its holding, the majority has imposed upon
Pietrangelo a burden of proof that far exceeds the evidentiary standard needed for
proving hand-delivery of a public-records request. The majority seems to require
evidentiary proof above even the criminal standard of beyond a reasonable doubt
and require incontrovertible evidence. Pietrangelo should take note of the burden
placed upon him by the majority, and if he attempts a similar method to
memorialize his hand-delivery of a public-records request in the future, he should
be sure to capture himself handing the document to the employee of the entity from
which he is seeking the public records.
       {¶ 42} Nevertheless, as stated above, the standard of proof to be applied is
clear and convincing evidence, Miller, 136 Ohio St.3d 350, 2013-Ohio-3720, 995
N.E.2d 1175, which is that measure of proof that “ ‘will produce in the mind of the
trier of facts a firm belief or conviction as to the facts sought to be established,’ ”




                                          12
                                January Term, 2016




Husted, 123 Ohio St.3d 288, 2009-Ohio-5327, 915 N.E.2d 1215, ¶ 18, quoting
Cross, 161 Ohio St. 469, 120 N.E.2d 118, paragraph three of the syllabus. Because
Pietrangelo has demonstrated by clear and convincing evidence that he hand-
delivered his public-records request and that Cipro received his public-records
request, I would hold that he is entitled to statutory damages.
       {¶ 43} Accordingly, I concur in part and dissent in part.
       FRENCH, J., concurs in the foregoing opinion.
                               _________________
       James E. Pietrangelo II, pro se.
       Abraham Lieberman, Avon Lake Law Director, and David M. Graves,
Assistant Law Director, for respondents.
                               _________________




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