[Cite as Strothers v. Mayor of E. Cleveland, 2011-Ohio-3694.]


          Court of Appeals of Ohio
                                 EIGHTH APPELLATE DISTRICT
                                    COUNTY OF CUYAHOGA



                            JOURNAL ENTRY AND OPINION
                                     No. 96147



                      GERALD O. STROTHERS, JR.
                                                                RELATOR

                                                     vs.

             MAYOR OF EAST CLEVELAND, OHIO
                   GARY NORTON, JR.
                                                                RESPONDENT




                              JUDGMENT:
                             WRIT DENIED;
                      STATUTORY DAMAGES AWARDED


                                          Writ of Mandamus
                                          Motion No. 440450
                                          Order No. 446174
      RELEASE DATE:          July 26, 2011


FOR RELATOR

Gerald O. Strothers, Jr., pro se
14019 Northfield Avenue
East Cleveland, Ohio 44112


ATTORNEY FOR RESPONDENT

Ronald K. Riley
Director of Law
City of East Cleveland
14340 Euclid Avenue
East Cleveland, Ohio 44112




FRANK D. CELEBREZZE, JR., J.:

      {¶ 1} Relator, Gerald O. Strothers, Jr., requests that this court compel

respondent, Gary Norton, Jr., Mayor of East Cleveland (“the mayor”), “to

provide access to review, inspect and copy ‘at cost’” various records.

Complaint, at 4.    Strothers also requests that this court award statutory

damages for the delay in making the records available to him.         For the

reasons stated below, we deny his request for relief in mandamus and enter

judgment for statutory damages in the amount of $1,000.
        {¶ 2} Strothers sent a letter to the mayor requesting records relating to

the operation of the East Cleveland jail including:       food service; laundry

service; financial records; purchases of jail bedding; plumbing repairs;

medical care and dispensing medications; extermination contracts; jail policy

regarding various prisoner rights and treatment of prisoners; and state and

county inspection reports.     The letter was dated December 1, 2010.        The

certified mail return receipt indicates that it was received on December 2,

2010.

        {¶ 3} Strothers filed the complaint in this action on December 9, 2010.

On December 27, 2010, the mayor filed a “response” in which he argues that

he had not been provided a reasonable opportunity to respond to the request

for records when Strothers filed this action. Also on December 27, Strothers

filed a motion for summary judgment.

        {¶ 4} On April 13, 2011, this court ordered the parties to each file an

inventory listing the category of records requested and whether and to what

extent respondent had made the records available. Each party responded.

        {¶ 5} In his inventory, Strothers attempts to expand the scope of this

action to include records regarding East Cleveland’s use of traffic cameras.

He requested these records in a December 21, 2010 letter to the mayor and

members of the city council. Although this letter is attached to his motion

for summary judgment, Strothers has not moved to amend his complaint to
include this additional request for records, which occurred after the filing of

this action on December 9, 2010. See Civ.R. 15. As a consequence, we hold

that the scope of this action is limited to the request for records in the

December 1, 2010 letter.

      {¶ 6} Strothers acknowledges that he has received records.            He

contends, however, that he has not received all or the correct records. We

note, however, that none of these representations is made in an affidavit or

other material of evidentiary quality.

      {¶ 7} By contrast, the mayor filed a “supplemental response,” which is

supported by the affidavit of Brenda L. Blanks, Executive Assistant/Paralegal

to the city’s law director.    Blanks avers that she was responsible for

responding to the request for records.

      {¶ 8} In her affidavit, Blanks states that she mailed records to

Strothers. The accompanying copy of a certified mail receipt reflects that,

although the records were sent to the same address that Strothers used in

filing this action, the item was returned “unclaimed.” She also avers that,

although she and the law director have invited Strothers by telephone and by

letter to schedule an appointment to examine records, he has not done so.

      {¶ 9} Blanks also refers to respondent’s inventory of records made

available to Strothers.     The inventory accompanies the “supplemental
response” and reflects that records were transmitted to Strothers primarily

on December 21, 2010 but also on January 13, 18 and 25, 2011.

      {¶ 10} R.C. 149.43 establishes the standards for making public records

available. “That statute specifies two primary means of providing access to

public records: (1) making the records ‘available for inspection to any person

at all reasonable times during regular business hours’ and (2) making ‘copies

of the requested record[s] available at cost and within a reasonable time.’ R.C.

149.43(B)(1).”    State ex rel. Patton v. Rhodes, __ Ohio St.3d __,

2011-Ohio-3093, __ N.E.2d __, at ¶15.

      {¶ 11} As noted above, Blanks represents that the mayor has provided to

Strothers either copies of the records he requested or the opportunity to

inspect the records during regular business hours.        She also avers that

Strothers has not acted on the opportunities to inspect records and that

copies of records that were mailed to him were returned “unclaimed.”

Strothers has not submitted any material of evidentiary quality to rebut the

averments by Blanks.

      {¶ 12} The evidence in the record in this action indicates that the mayor

has made the records available to Strothers by providing him copies as well

as the opportunity to inspect the records. We must conclude, therefore, that

respondent has discharged his duty to make the records available to
Strothers. As a consequence, we deny the request for relief in mandamus as

moot.

        {¶ 13} Strothers has also requested that this court award statutory

damages.

        {¶ 14} “If a requestor transmits a written request by hand delivery or

certified mail to inspect or receive copies of any public record in a manner

that fairly describes the public record or class of public records to the public

office or person responsible for the requested public records, except as

otherwise provided in this section, the requestor shall be entitled to recover

the amount of statutory damages set forth in this division if a court

determines that the public office or the person responsible for public records

failed to comply with an obligation in accordance with division (B) of this

section.” R.C. 149.43(C)(1).

        {¶ 15} Strothers contends that the mayor did not timely make the

records available.    R.C. 149.43(B)(1) provides, in part: “a public office or

person responsible for public records shall make copies of the requested

public record available at cost and within a reasonable period of time.”

        {¶ 16} The mayor received the request for records on December 2, 2010.

Strothers filed this action on December 9. The first delivery of records was

on December 21. Additional transmittals of records occurred on January 13,

18 and 25, 2011. In a letter from the law director dated February 11, 2011,
Strothers was advised to contact Blanks “to arrange a day for any future

visits to review, inspect and/or copy records.” Blanks Affidavit, at 10.

      {¶ 17} The record in this case, therefore, reflects that the mayor did not

fully respond to the public records request by Strothers for at least seven

weeks after receipt of the request and more than a month after Strothers

commenced this action. Strothers contends that the mayor did not make the

records available “within a reasonable period of time” as required by R.C.

149.43(B)(1).

      {¶ 18} In State ex rel. Bardwell v. Rocky River Police Dept., Cuyahoga

App. No. 91022, 2009-Ohio-727, the relator hand-delivered a public records

request on January 18, 2008. The respondents transmitted records between

February 7 and March 28, 2008.       We observed that 45 days (32 business

days) elapsed between the filing of the action in mandamus and the

transmittal of the last record. As a consequence, we entered judgment for

the maximum amount of statutory damages — $1,000.

      {¶ 19} “The amount of statutory damages shall be fixed at one hundred

dollars for each business day during which the public office or person

responsible for the requested public records failed to comply with an

obligation in accordance with division (B) of this section, beginning with the

day on which the requester files a mandamus action to recover statutory

damages, up to a maximum of one thousand dollars. The award of statutory
damages shall not be construed as a penalty, but as compensation for injury

arising from lost use of the requested information. The existence of this injury

shall be conclusively presumed. The award of statutory damages shall be in

addition to all other remedies authorized by this section.” R.C. 149.43(C)(1).

       {¶ 20} The mayor has not presented to this court any authority for

delaying the release of the records for 12 to 47 calendar days after the filing of

this action on December 9, 2010. Clearly, some of the records were made

available to Strothers more than ten calendar days after the filing of this

action. The language of R.C. 149.43(C)(1) is clear and Bardwell exemplifies

that we must enter judgment for Strothers in the amount of $1,000 for

statutory damages.1

       {¶ 21} Accordingly, relator’s motion for summary judgment for relief in

mandamus to compel the mayor to make records available is denied.

Judgment for Strothers in the amount of $1,000 statutory damages.




            Additionally, we note that the complaint has various defects. The action is not on relation
       1


of the state as required for an action in mandamus by R.C. 2731.04. State v. Grunden, Cuyahoga
App. No. 96114, 2011-Ohio-744. Loc.App.R. 45(B)(1)(a) requires that a complaint in an original
action be verified and supported by an affidavit specifying the details of the claims. Strothers filed
an affidavit that states, “the statements made in the Petition are proper and true.” “It is
well-established that a relator’s conclusory statement in an affidavit does not comply with the
requirement of Loc.App.R. 45(B)(1)(a) that an affidavit specify the details of the claim. Failure to
do so is a basis for denying relief. See, e.g., State ex rel. Castro v. Corrigan, Cuyahoga App. No.
96488, 2011-Ohio-1701.” State ex rel. Wright v. Cuyahoga Cty. Court of Common Pleas, Cuyahoga
App. No. 96397, 2011-Ohio-2159, at ¶4.
Respondent to pay costs.    The clerk is directed to serve upon the parties

notice of this judgment and its date of entry upon the journal. Civ.R. 58(B).

      Writ denied; statutory damages awarded.



      FRANK D. CELEBREZZE, JR., JUDGE

      MARY EILEEN KILBANE, A.J., CONCURS;
      MELODY J. STEWART, J., CONCURS IN PART AND DISSENTS IN
      PART (SEE SEPARATE OPINION)


      MELODY J. STEWART,             J.,   CONCURRING        IN   PART    AND
      DISSENTING IN PART:

      {¶ 22} I agree that the city of East Cleveland has produced the records

requested by Strothers for the reasons stated in the majority opinion and that

the writ is properly denied. I disagree, however, with the majority’s finding

that the city did not produce those records within a reasonable period of time

and consequently disagree with the majority decision to award statutory

damages.

      {¶ 23} The rote application of the 45-day standard applied in State ex

rel. Bardwell v. Rocky River Police Dept., 8th Dist. No. 91022, 2009-Ohio-727,

is wholly contrary to the statutory directive that public records be turned over

within a “reasonable” time.     The concept of “reasonableness” under R.C.

149.43(B)(1) is elastic, not static, and at all events depends on the particular

facts and circumstances of each case.      In Bardwell, we concluded that 45
days to respond to a records request seeking certain police logs expense

account records for a two-month period was too long.

      {¶ 24} Strothers sought significantly more records covering a larger

period of time in this case. He requested two years of records for contracts

relating to food services at the city jail; contracts relating to laundry service;

financial records paid to “outside contractors” including “bid requests,

proposals and resumes of any winning and non-winning bidder(s)”; records

documenting all purchases of jail bedding, pads and sheets; records of bid

requests for jail “plumbing problems” including repairs made by in-house

custodians and “all plumbing invoices minor or major”; records showing

certification to provide medical care and dispensation of medications by jail

personnel; records relating to contracts for extermination services, including

“service calls from outside professional and non-professional exterminators”;

jail policy pertaining to prisoner access to telephones, showers, exercise or

recreation; inspection reports from state or county offices tasked with

monitoring jail conditions; and jail policies relating to prisoner treatment,

medical care, and discipline encompassing prisoner control by non-lethal

means or confinement with handcuffs or chains.

      {¶ 25} Any rational application of the reasonable time standard set forth

in R.C. 149.43(B)(1) would show that the records request in this case was far

more onerous than that made in Bardwell.           Unlike the two-month time
period for which records were sought in Bardwell, Strothers sought, without

time limitation, virtually every record documenting the operation of the East

Cleveland jail.   Indeed, Strothers himself acknowledged in the records

request that “I realize that this is a large request of documents * * *.” We

might also acknowledge that Strothers made his records request toward the

end of the year and approaching the Christmas and New Year holidays when

it could reasonably be presumed that offices were understaffed. But despite

acknowledging that he requested a large number of documents, Strothers

filed this complaint in mandamus just eight days after the city received his

request.   These facts make Strothers less a good-faith victim of delay in

producing public records and more an opportunist seeking to manipulate the

statutory damages provisions of the public records law.           Given the

circumstances described, I would find that the city’s production of all

requested documents within 47 days was certainly accomplished within a

reasonable period of time.
