2012 Ohio 4214

Ohio

2012

THE STATE EX REL. FERNBACH, APPELLANT, v. BRUSH, CLERK, APPELLEE.

No. 2012-0105

Supreme Court of Ohio

Submitted September 12, 2012-Decided September 20, 2012

133 Ohio St.3d 151, 2012-Ohio-4214

contrast, a review of the sealed records here establishes that the records have everything to do with the criminal cases and nothing to do with McCaffrey‘s assertions of prosecutorial misconduct. And the mere fact that the cases have now been dismissed without prejudice by the state does not prevent the records from remaining exempt because “[o]nce a record becomes exempt from release as a ‘trial preparation record,’ that record does not lose its exempt status unless and until all ‘trials,’ ‘actions’ and/or proceedings’ have been fully completed.” Steckman at paragraph four of the syllabus.

Conclusion

{42} Therefore, relator has, for the most part, not established his entitlement to the requested extraordinary relief in mandamus for most of the requests that are the subject of his complaint, and we deny the writ for most of his claims. Relator, however, has established his entitlement to a writ of mandamus to compel respondents to provide copies of those portions of the requested calendars of Gains, Stratford, and Bricker that are work-related entries for the period of November 1, 2008, to July 2010, and we grant the writ to that limited extent.

Writ granted in part and denied in part.

O‘CONNOR, C.J., and PFEIFER, LUNDBERG STRATTON, O‘DONNELL, LANZINGER, CUPP, and MCGEE BROWN, JJ., concur.

Baker & Hostetler, L.L.P., Stephen J. Schlegelmilch, Lisa M. Ghannoum, and Sara L. Witt, for relator.

Paul J. Gains, Mahoning County Prosecuting Attorney, and Tim Tusek, for respondent.

Per Curiam.

{1} We affirm the judgment of the court of appeals denying the request of appellant, Richard Fernbach, for a writ of mandamus to compel appellee, Montgomery County Clerk of Courts Gregory A. Brush, to turn over certain records to him under R.C. 149.43, the Public Records Act.

{2} R.C. 149.43(B)(8) requires an incarcerated criminal offender who seeks records relating to an inmate‘s criminal prosecution to obtain a finding by the sentencing judge or the judge‘s successor that the requested information is necessary to support what appears to be a justiciable claim. State ex rel. Chatfield v. Flautt, 131 Ohio St.3d 383, 2012-Ohio-1294, 965 N.E.2d 304. Fernbach did not obtain such a finding.

{3} Insofar as Fernbach claims on appeal that R.C. 149.43(B)(8) is unconstitutional, he waived this claim by failing to raise it below. State ex rel. Boyd v. Ward, 132 Ohio St.3d 90, 2012-Ohio-2359, 969 N.E.2d 263, ¶ 3.

Judgment affirmed.

O‘CONNOR, C.J., and PFEIFER, LUNDBERG STRATTON, O‘DONNELL, LANZINGER, CUPP, and MCGEE BROWN, JJ., concur.

Richard Fernbach, pro se.