2023 Ohio 1814
Ohio Ct. App.2023Background
- Marc D. Curtis was arrested for an alleged rape (incident Dec. 24, 2018); arrest Jan. 9, 2019; municipal warrant recalled and case bound over to Cuyahoga Common Pleas on Jan. 11, 2019.
- Common pleas received the municipal court record; court ordered DNA on Feb. 15, 2019; Curtis pleaded guilty July 25, 2019, and was sentenced in Sept. 2019 to an aggregate 18-year term.
- Between Nov. 9, 2021, and Jan. 22, 2022, Curtis made Sup.R. 44–47 public-records requests to the Cleveland Municipal Court clerk for eight items (arrest warrant and return; DNA search warrant, affidavit/complaint, and return; cell-phone search warrant, affidavit/complaint, and return).
- Curtis filed a mandamus complaint Aug. 25, 2022, alleging the clerk failed to produce those records; the clerk responded with an affidavit stating he produced all records he kept and that no additional responsive records exist in his custody.
- The clerk produced items he does maintain (e.g., complaint for rape, sworn affidavit establishing probable cause for an arrest warrant, bond request, warrant registry info, booking sheet, arraignment entry) and swore no arrest/search-warrant documents or returns are held by his office.
- The court denied the writ, finding Curtis failed to prove by clear and convincing evidence that the clerk was the custodian of the requested records (and courts do not require custodians to produce nonexistent records).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the municipal clerk must produce eight requested arrest/search-warrant records under Sup.R. 44–47 | Curtis: clerk has statutory duty (R.C. ch. 2303; Sup.R. 26.05(G)(7), Sup.R. 44–47) to file, preserve, index, and produce the requested warrants/returns and supporting affidavits | Clerk: produced all records he keeps; he does not possess the arrest/search warrants, affidavits, or returns responsive to Curtis’s requests | Denied — relator failed to prove clerk was custodian of the requested records; clerk has no duty to produce records he does not have |
| Whether mandamus is available where custodian swears nonexistence of responsive records | Curtis: custodian’s statutory filing and retention duties mean records should exist in clerk’s office | Clerk: affidavit showing nonexistence or that documents were not kept by clerk defeats relief; courts need not compel creation or production of nonexistent records | Denied — court accepted affidavit that no responsive records exist in clerk’s custody; mandamus unavailable to compel creation or production of nonexisting documents |
Key Cases Cited
- State ex rel. Pressley v. Indus. Comm., 11 Ohio St.2d 141 (1967) (mandamus requires relator to prove clear legal right and respondent clear legal duty)
- State ex rel. Pietrangelo v. Avon Lake, 149 Ohio St.3d 273 (2016) (public-records mandamus framework and burden on relator)
- State ex rel. Vindicator Printing Co. v. Youngstown, 104 Ohio St.3d 1436 (2004) (public-records law construed liberally in favor of disclosure)
- Morgan v. New Lexington, 112 Ohio St.3d 33 (2006) (government bears burden to establish applicability of disclosure exemptions)
- State ex rel. Lanham v. Smith, 112 Ohio St.3d 527 (2007) (custodian has no duty to create or provide access to nonexistent records)