State ex rel. Bell v. LondonState ex rel. Bell v. London
Zahid H. Siddiqi, London City Law Director, 102 South Main Street, P.O. Box 724, London, Ohio 43140, for respondents-appellees, City of London, Mayor David Eades, and Police Chief David Wiseman
Edwin Davila, 15 Federal Avenue, Massillon, Ohio 44646-0564, nonparty appellant, pro se
O P I N I O N
PIPER, J.
{¶1} Relator-appellant, George F. Bell, appeals from a decision of the Madison County Common Pleas Court denying his claim for civil forfeiture under
{¶2} In January 2009, Bell sent a public records request to the London Police Department in care of London‘s then-Chief of Police, Peter Tobin, stating that Bell was “conducting a survey concerning the trends of response times for Ohio‘s safety forces over the years[,]” and that it was his understanding that the London Police Department “used a reel-to-reel audio recording device” that “recorded telephone calls and radio traffic on both a primary and back-up set of 24 hour reel-to-reel tapes” that “were routinely changed at midnight.” Bell requested access to the police “departments [sic] collection of the above described reel-to-reel tapes[,]” “includ[ing] both the primary and back-up tapes that your department used over the years during the time that such a tape recording system was used.”
{¶3} London Law Director Zahid Siddiqi sent Bell a letter informing him that Chief Tobin was leaving his position as London‘s chief of police that very day, and therefore Bell‘s public records request was being forwarded to the city‘s acting chief of police, Sergeant David Litchfield. Siddiqi‘s letter asked Bell, “[i]n the meantime,” to be “more specific” in his public records request “by identifying a range of dates you are interested in reviewing,” in order to “better allow us to respond to your request.” Several days later, London Police Dispatcher James D. Spriggs sent Bell a letter informing him that “[i]t has been some time since we used the reel-to-reel system for recording” and that the city currently has “a digital system that utilizes a hard drive for storage.” Dispatcher Spriggs reiterated Law Director Siddiqi‘s request that Bell be more specific regarding his public records request, stating “we would need much more definite parameters on dates and times if you would like us to fulfill your request.”
{¶5} In July 2009, Bell filed in the Madison County Common Pleas Court a verified complaint seeking a writ of mandamus ordering appellees to comply with their obligations under the Ohio Public Records Act in
{¶6} Several weeks prior to the scheduled hearing on his claims, Bell submitted a witness list that included the names of two persons, one of whom was Davila. Appellees moved to exclude the testimony of those witnesses at the upcoming trial on the ground that
{¶7} After holding a hearing on Bell‘s mandamus and civil forfeiture claims, the trial court entered judgment in favor of appellees. The trial court initially determined that for purposes of
{¶8} Bell now appeals, assigning the following as error:
{¶9} Assignment of Error No. 1:
{¶10} “THE TRIAL COURT ERRED TO BELL‘S PREJUDICE WHEN IT ERRONEOUSLY FOUND THAT ‘SUBSTANTIAL COMPLIANCE’ IS A SUBSTITUTE FOR ‘ACTUAL COMPLIANCE’ UNDER THE LAW.”
{¶12} “NOTWITHSTANDING THE FACT THAT THERE IS NO SUBSTITUTE FOR ‘ACTUAL COMPLIANCE‘; [sic] THE TRIAL COURT ERRED TO BELL‘S PREJUDICE WHEN IT ERRONEOUSLY FOUND THAT THERE WAS ‘SUBSTANTIAL COMPLIANCE’ – BECAUSE THERE IS NO EVIDENCE THAT THE LONDON RECORDS COMMISSION APPROVED THE DESTRUCTION OF THE RECORDS AT ISSUE OR NOTIFIED THE STATE ARCHIVEDS AS REQUIRED BY LAW.”
{¶13} Assignment of Error No. 3:
{¶14} “THE TRIAL COURT ERRED TO BELL‘S PREJUDICE WHEN IT SUA SPONTE RAISED THE AFFIRMATIVE DEFENSE UNDER THE CIVIL RULES.”
{¶15} We shall address Bell‘s assignments of error jointly, since they are interrelated.
{¶16} Bell argues the trial court erred in finding that appellees could avoid liability under
{¶18}
{¶19} “(A) All records are the property of the public office concerned and shall not be removed, destroyed, mutilated, transferred, or otherwise damaged or disposed of, in whole or in part, except as provided by law or under the rules adopted by the records commissions provided for under sections 149.38 to 149.42 of the Revised Code.
{¶20} “(B) Any person who is aggrieved by a violation or threatened violation of division (A) may commence either or both of the following in the court of common pleas of the county in which division (A) of this section allegedly was violated or is threatened to be violated:
{¶21} “(1) A civil action for injunctive relief to compel compliance with division (A) of this section, and to obtain an award of the reasonable attorney‘s fees incurred by the person in the civil action;
{¶22} “(2) A civil action to recover a forfeiture in the amount of one thousand dollars for each violation, and to obtain an award of the reasonable attorney‘s fees incurred by the person in the civil action.”
{¶24} “There is hereby created in each municipal corporation a records commission composed of the chief executive or the chief executive‘s appointed representative, as chairperson, and the chief fiscal officer, the chief legal officer, and a citizen appointed by the chief executive. The commission shall appoint a secretary, who may or may not be a member of the commission and who shall serve at the pleasure of the commission. The commission may employ an archivist or records manager to serve under its direction. The commission shall meet at least once every six months and upon call of the chairperson.
{¶25} “The functions of the commission shall be to provide rules for retention and disposal of records of the municipal corporation and to review applications for one-time disposal of obsolete records and schedules of records retention and disposition submitted by municipal offices. The commission may dispose of records pursuant to the procedure outlined in this section. The commission at any time may review any schedule it has previously approved and for good cause shown may revise that schedule.
{¶26} “When the municipal records commission has approved any application for one-time disposal of obsolete records or any schedule of records retention and disposition, the commission shall send that application or schedule to the Ohio historical society for its review. The Ohio historical society shall review the application or schedule within a period of not more than sixty days after its receipt of it. Upon completion of its review, the Ohio historical society shall forward the application for one-time disposal of obsolete records or the schedule of records retention and disposition to the auditor of state for the auditor‘s approval or disapproval. The auditor shall approve or disapprove the application or schedule within a period of not more than sixty days after receipt of it. Before public records are to be disposed of, the commission shall inform the Ohio historical society of the disposal through the submission of a certificate of records disposal and shall give the society the opportunity for a
{¶27}
{¶28} “Under its normal and customary meaning, an ‘aggrieved’ person is defined as one ‘having legal rights that are adversely affected; having been harmed by an infringement of legal rights.‘” Walker v. The Ohio State University Bd. of Trustees, Franklin App. No. 09AP-748, 2010-Ohio-373, ¶25, quoting Black‘s Law Dictionary (9th Ed.2009) 77. This court has held that a person is “aggrieved” for purposes of
{¶29} Bell argues in his first and second assignments of error that appellees failed to present evidence showing that they complied with the requirements set forth in
{¶30} First, despite Bell‘s assertion to the contrary, there was sufficient evidence in the record to support the trial court‘s finding that London‘s records commission approved a records retention schedule for the city‘s police department. Mayor Eades, who serves as the chairman of London‘s records commission by virtue of
{¶31} Second, there was sufficient evidence presented to support a finding that London‘s records commission sent the records retention schedule that it approved to the OHS for that entity‘s review and approval. Mayor Eades testified that he “believe[d]” the records retention schedule was sent to the OHS by London‘s auditor and records commission‘s secretary, Kathy McClellon. Mayor Eades acknowledged at one point in his
{¶32} Bell is correct, however, when he asserts that there is no evidence that London‘s records commission created any certificates of records disposal for the reel-to-reel 911 tapes, let alone, submitted them to the OHS. Moreover, the trial court‘s use of the substantial compliance standard in this case is problematic, since application of that standard generally has been limited to cases involving the criminal, juvenile, or civil rules of procedure, see, e.g., State v. Martin, 103 Ohio St. 3d 385, 2004-Ohio-5471, ¶38-45; and In the Matter of C.K. Alleged Delinquent Child, Washington App. No. 07CA4, 2007-Ohio-3234, ¶15, or provisions of the Ohio Administrative Code. State v. Burnside, 100 Ohio St. 3d 152, 2003-Ohio-5372, ¶27-28; and State ex rel. Potten v. Kuth, 61 Ohio St. 2d 321, paragraph three of the syllabus.
{¶33} In Burnside, the Ohio Supreme Court discussed the applicability of the substantial compliance standard in cases involving the determination of the admissibility of alcohol-test results regulated by
{¶34} “[W]e have observed that ‘there is leeway for substantial, though not literal,
{¶35} “***
{¶36} “‘[I]f we were to agree * * * that any deviation whatsoever from th[e] regulation rendered the results of a [test] inadmissible, we would be ignoring the fact that strict compliance is not always realistically or humanly possible.’ Plummer, 22 Ohio St. 3d at 294 ***. Precisely for this reason, we concluded in [State v.] Steele, 52 Ohio St. 2d at 187 that rigid compliance with the Department of Health regulations is not necessary for test results to be admissible. Id. at 187 *** (holding that the failure to observe a driver for a ‘few seconds’ during the 20–minute observation period did not render the test results inadmissible). To avoid usurping a function that the General Assembly has assigned to the Director of Health, however, we must limit the substantial-compliance standard set forth in Plummer to excusing only errors that are clearly de minimis. Consistent with this limitation, we have characterized those errors that are excusable under the substantial-compliance standard as ‘minor procedural deviations.’ State v. Homan (2000), 89 Ohio St. 3d 421, 426[.]” (Emphasis added.) Burnside at ¶27 and 34.
{¶37} The problem, then, with using the substantial compliance standard in determining whether London‘s records commission complied with
{¶38} In order for a person to recover a $1,000 civil forfeiture award plus reasonable attorney fees under
{¶39} In his action against appellees, Bell sought to exploit the failure of London‘s records commission to strictly comply with the requirements in
{¶40} Furthermore, in light of the fact that appellees followed the established policies of OHS regarding the reel-to-reel 911 tapes, requiring London‘s records commission to create certificates of records disposal for the tapes after they had been reused and thus erased, thereby destroying any information recorded on them (as permitted by OHS‘s suggested records retention policy), and then to send said certificates to the OHS, would have been tantamount to requiring the commission to perform a vain or useless act, which the law generally does not require parties to perform. Showe Mgt. Corp. v. Moore, Licking App. No. 08 CA 10, 2009-Ohio-2312, ¶42. It is also clear that the procedural irregularities that Bell seeks to rely on in support of his claim for a civil forfeiture award under
{¶41} Even if appellees should be faulted for failing to strictly comply with the requirements of
{¶42} Bell, Davila and Rhodes refer to themselves as the “public records police,” and relying on the civil forfeiture provision in
{¶43} The evidence presented in this case shows that like the police departments in
{¶44} In State ex rel. Davila v. East Liverpool, 2011-Ohio-1347 at ¶22-30, the Seventh District Court of Appeals upheld a trial court‘s decision rejecting Davila‘s public records request for access to the reel-to-reel 911 tapes recorded over a period of 2,191 days by the city of East Liverpool‘s police department. The Seventh District held that Davila‘s request was “overbroad and therefore unenforceable.” In support of its decision, the Seventh District cited the Tenth District Court of Appeals’ decision in State ex rel. Zauderer v. Joseph (1989), 62 Ohio App. 3d 752, and the Ohio Supreme Court‘s decisions in State ex rel. Glasgow v. Jones (2008), 119 Ohio St. 3d 391, 2008–Ohio–4788, ¶ 16–19; and State ex rel. Dehler v. Spatny, 127 Ohio St. 3d 312, 2010–Ohio–5711, ¶3. The Davila court found that these decisions “stand for the proposition that a request can become so voluminous that it is overbroad and unenforceable.” Davila at ¶28.
{¶45} The Seventh District‘s reliance on Zauderer, Glasgow, and Dehler may be questionable, however, as those cases involve instances in which the requester sought a writ
{¶46} While this case has been pending on appeal, the Ohio Supreme Court issued its decision in Rhodes v. New Philadelphia, Slip Opinion No. 2011-Ohio-3279. In that case, Timothy Rhodes made a public records request of the city of New Philadelphia‘s police department, asking for access to the reel-to-reel 911 tapes that recorded all the department‘s daily telephone calls and radio dispatches from 1975 through 1995. Id. at ¶2. Upon learning that New Philadelphia had erased its reel-to-reel 911 tapes 30 days after each recording was made without having established an approved records-retention schedule in violation of
{¶47} Rhodes testified at his trial that “he had requested the tapes because he planned to listen to them to see how the police department handled dispatch calls.” Id. at ¶6. However, Rhodes admitted that, in making a similar public records request of the city of Dover, he had stated that “he would like to request certain public records only if the city did not have an approved record-disposition schedule.” Id. The jury returned a unanimous
{¶48} The Fifth District Court of Appeals reversed the jury‘s verdict, finding that the trial court should not have allowed the issue of whether Rhodes was “aggrieved” for purposes of
{¶49} The Ohio Supreme Court reversed the Fifth District‘s decision, finding that for purposes of
{¶50} “The requirement of aggrievement indicates that a forfeiture is not available to ‘any person’ who has made a request and discovered that the records were not available due to the public office‘s violation of
{¶51} The Rhodes court stated that a public records request cannot be denied merely on the basis that the requester intended to use the records for “a bad purpose,” explaining at ¶25-27:
{¶52} “In Morgan, this court held that the relator was entitled to access public records that related to her discharge from employment with the city of New Lexington due to her alleged falsification of official records and misappropriation of funds. Interpreting the phrase ‘any person,’ as used in
{¶53} “Like the relator in Morgan, Rhodes was under no obligation to explain his reason for wanting the public records in order for his request to be valid. What distinguishes Rhodes‘s case from cases such as Morgan and Kish is the simple fact that Rhodes did not actually want the records.
{¶54} “When a party requests access to public records with the specific desire for access to be denied, it cannot be said that the party is using the request in order to access
{¶55} The Rhodes court concluded by stating:
{¶56} “The destruction of a public record in violation of
{¶57} Rhodes indicates that the determination as to whether a person who requests access to records actually wanted the records, or instead merely wanted proof that the records did not exist and had been destroyed or disposed of in violation of
{¶58} For example, Bell‘s claim that he was seeking to review the reel-to-reel 911 tapes to help mount opposition to a sales tax in his home county, which was earmarked to fund an emergency dispatch system in that county, was highly implausible in light of the facts that Bell acknowledged at trial that he did not know if London imposed a sales tax to pay for its emergency dispatch service, and that Bell never asked to see anything with regards to London‘s current emergency dispatch system.
{¶59} Also, when the city‘s law director and later the city‘s emergency dispatcher asked Bell to narrow his request to facilitate gathering the information Bell sought, Bell responded by “clarifying” that he was requesting access to the London Police Department‘s “entire collection” of such tapes, which, of course, did nothing to narrow his request. This is inconsistent with Bell acknowledging at trial that he and Davila wanted to see only a random sample of 10% of the tapes—a sample that Bell and Davila could have chosen from the 2,007 days between January 1, 1994 and July 1, 1999 without first seeing the entire collection of tapes. Bell never offered any explanation as to why he wanted access to the entire collection of tapes when he merely needed a random sample of 10% of the tapes. Once again, the obvious reason for not choosing the random sample beforehand, and instead, requesting the entire collection of tapes was to increase the size of the civil forfeiture award he hoped to obtain from appellees.
{¶60} Furthermore, when Bell requested copies of the department‘s retention schedule (Form RC-2), certificates of records disposal (Form RC-3), and applications of one-time disposal for obsolete records (Form RC-1) that had been sent to both the OHS and state auditor, he also requested that any copies of the forms sent to him “bear the stamp” of the
{¶61} In light of the foregoing, the trial court properly concluded that Bell was not an “aggrieved” person for purposes of
{¶62} Accordingly, Bell‘s first, second, and third assignments of error are overruled.
{¶63} Davila‘s sole assignment of error states:
{¶64} “THE TRIAL COURT IN ITS SEPTEMBER 17, 2010 JUDGMENT ABUSED ITS DISCRETION AND VIOLATED DAVILA‘S DUE PROCESS RIGHTS UNDER THE STATE AND FEDERAL CONSTITUTION WHEN IT DENIED HIS MOTION TO INTERVENE BUT THEN ENTERED A VITRIOLIC JUDGMENT ON OCTOBER 28, 2010 AGAINST RELATOR THREE DAYS BEFORE THE NOVEMBER, 2010 ELECTION CRITICIZING DAVILA WHERE THERE WAS NO EVIDENCE PRESENT AT TRIAL TO JUSTIFY THE CRITICISM.”
{¶65} Davila argues the trial court deprived him of his due process rights by denying his motion to intervene in Bell‘s action as a matter of right under
{¶66} Both a motion to intervene in an action as a matter of right under
{¶67} Factors to considered in determining timeliness include (1) the point to which the action in which intervention is sought has progressed, (2) the purpose for which intervention is sought, (3) the length of time between the point at which the party who seeks to intervene knew or reasonably should have known of his interest in the case, (4) any prejudice to the original parties resulting from the proposed intervenor‘s failure to seek to intervene earlier in the proceedings, and (5) the existence of unusual circumstances militating against or in favor of the proposed intervention. Univ. Hosps. of Cleveland, Inc. v. Lynch, 96 Ohio St. 3d 118, 2002-Ohio-3748, ¶48.
{¶68} Here, Davila did not seek to intervene in Bell‘s action until less than a week before trial. Davila‘s purpose in seeking to intervene was to make an argument concerning Bell‘s standing to bring the action—an argument that the trial court rejected, and an issue that has not been raised in this appeal. Moreover, we agree with the trial court‘s observation that it appears Davila sought to intervene in the action merely as a way of circumventing the trial court‘s refusal to allow Bell to name him as one of Bell‘s potential witnesses at trial, after Bell failed to timely disclose Davila‘s name to appellees. Under these circumstances, the trial court did not deny Davila his due process rights by overruling his motion to intervene as a matter of right in Bell‘s action under
{¶69} Davila also claims that the trial court was biased and prejudiced against him. However, that claim is not properly before us, since “[o]nly the Chief Justice of the Ohio Supreme Court or his designee has the authority to determine a claim that a common pleas court judge is biased or prejudiced.” Ford Motor Credit Co., L.L.C. v. Ryan & Ryan, Inc.,
{¶70} In light of the foregoing, Davila‘s sole assignment of error is overruled.
{¶71} Judgment affirmed.
POWELL, P.J., and RINGLAND, J., concur.