State ex rel. McDougald v. GreeneState ex rel. McDougald v. Greene
- Reporters:
- , ,
- Before:
- Per Curiam, Stewart (per curiam)
Mandamus—
{¶ 1} Relator, Jerone McDougald, filed this original action for a writ of mandamus to compel respondent, Larry Greene, the administrative assistant for the warden at the Southern Ohio Correctional Facility (“SOCF”), to produce two public records. For the reasons explained below, we deny the writ as moot and deny McDougald’s requests for an award of court costs and for statutory damages. In addition, we deny McDougald’s motion for leave to amend his complaint and merit brief.
I. BACKGROUND
{¶ 2} On December 5, 2018, McDougald, who had been an inmate at SOCF, submitted a public-records request for a copy of the Department of Administrative Services’s general schedule (“the DAS schedule”). And on February 3, 2019, he submitted a second public-records request for a copy of a report that had been filed by Brian Barney on December 20, 2018, concerning a use-of-force incident involving McDougald (“the Barney report”).
{¶ 3} Greene, the SOCF official responsible for responding to inmates’ public-records requests, notified McDougald that the Barney report did not exist. The record does not indicate what initial response Greene gave, if any, to McDougald’s request for the DAS schedule.
{¶ 4} On June 28, 2019, McDougald filed a complaint for a writ of mandamus in this court alleging that Greene had denied both public-records requests. In Greene’s answer, he averred that he had provided the DAS schedule to McDougald on July 22, 2019—after McDougald filed the complaint.
{¶ 5} Greene submitted his evidence on October 15, which included his own affidavit. In the affidavit, Greene reiterated that he had provided the DAS schedule to McDougald. Greene also attached a “document receipt,” which was dated July 22, 2019, and signed by McDougald acknowledging that he had received a copy of the DAS schedule. Greene also asserted once more that the Barney report did not exist.
{¶ 6} Two weeks later, however, Greene discovered that the Barney report did exist. On October 31, he filed a motion for leave to file newly discovered evidence. The motion stated that Greene’s staff had previously searched for a stand-alone file containing the Barney report and had not found one. But on October 31, according to Greene, he discovered the Barney report in a multipage use-of-force report “issued by the Use of Force Committee on April 19, 2018 [sic].”1 According to the motion, Greene provided the report to McDougald that same day. The motion requested leave to submit an additional affidavit attesting to these facts.
{¶ 7} McDougald filed a motion to strike Greene’s motion for leave, and Greene responded with a motion to strike McDougald’s motion. We denied both motions to strike and granted Greene’s motion for leave to file the additional evidence. 158 Ohio St.3d 1404, 2020-Ohio-371, 139 N.E.3d 908. Greene then filed his supplemental affidavit with the Barney report.
{¶ 8} On February 5, 2020, McDougald filed a motion for leave asking to amend his complaint and merit brief so that he could allege the following additional fact to bolster his request for statutory damages: “[T]hat his public records request kite was hand delivered” to Greene. On February 12, we ordered the parties to brief the following question: “When none of the statutory delivery methods are available to an inmate, does a kite constitute hand delivery?” 158 Ohio St.3d 1404, 2020-Ohio-371, 139 N.E.3d 908. Both parties filed supplemental briefs. On May 21, 2020, we granted Greene’s motion for leave to file a corrected brief. 158 Ohio St.3d 1519, 2020-Ohio-3019, 145 N.E.3d 307.
II. LEGAL ANALYSIS
A. The merits of McDougald’s public-records case
{¶ 9} Ohio’s Public Records Act,
{¶ 10} Greene submitted his own affidavit and McDougald’s signed receipt as evidence to establish that he gave the DAS schedule to McDougald in July 2019. And McDougald has conceded in his merit
{¶ 11} As for the Barney report, Greene attests in his supplemental affidavit that he located it and promptly turned it over to McDougald. Greene also submitted McDougald’s signed acknowledgement that he received a copy of the Barney report. These facts do not seem to be in dispute. Therefore, the mandamus claim seeking the Barney report is also moot.
{¶ 12} We deny McDougald’s request for a writ of mandamus as moot.
B. Statutory damages
{¶ 13} A person requesting public records is entitled to an award of statutory damages “if a court determines that the public office or the person responsible for [the] public records failed to comply with an obligation in accordance with division (B) of this section.”
{¶ 14} A requester may qualify for statutory damages under the current version of
1. A prison kite does not constitute hand delivery
{¶ 15} McDougald delivered his public-records requests through the prison’s kite system. In his supplemental brief, McDougald argues that “when none of the
{¶ 16} The prison’s kite system is “the means of two-way communication between all levels of staff and inmates.” DRC Policy 50-PAM-02, at 6, https://drc.ohio.gov/Portals/0/Policies/DRC%20Policies/50-PAM-02%20(12-2019).pdf?ver=2019-12-09-140951-550 (accessed May 15, 2020) [https://perma.cc/CE3L-J99N]. In order to submit kites, inmates at SOCF use a form that has been prepared by DRC. The inmate fills in identifying information on the front of the form and then writes his question, concern, or public-records request on the back of the form. Captain James Whitman, the officer in charge of the mail operations at SOCF, stated in his affidavit attached to Greene’s supplemental brief that each cell block has a sealed “Kite Drop-box,” into which inmates drop their completed kites. The kite drop boxes are then taken to the mailroom, where the mailroom staff sorts the kites and delivers them to the appropriate recipients.
{¶ 17} “Neither the statute nor case law [construing
{¶ 18} Because the prison’s kite system more closely resembles an insufficient form of delivery—i.e., regular U.S. mail delivery—we hold that delivery of a public-records request through a prison’s kite system does not qualify a requester for an award of statutory damages under
2. McDougald’s motion for leave to amend
{¶ 19} On February 5, 2020, McDougald filed a motion for leave to amend his complaint and merit brief “to specify that his public records request kite was hand delivered to Larry Greene during his inmate communication weekly rounds pursuant to []DRC policy 50-PAM-02.”3 In Carr at ¶ 40, we held that “hand delivery of the [public-records] requests to a prison official fulfilled the delivery requirement of [
{¶ 20} We deny McDougald’s motion for leave to amend his complaint and merit brief because the amendment would be futile. See ISCO Indus., Inc. v. Great Am. Ins. Co., 1st Dist. Hamilton No. C-180636, 2019-Ohio-4852, ¶ 52 (holding that a court properly denies a request for leave to amend under
{¶ 21} The burden of proof as to the delivery method of a public-records request falls on McDougald. Amending his complaint and merit brief will not provide him with any additional evidence and certainly not with evidence sufficient to meet his burden. The motion for leave is therefore denied.
{¶ 22} Based on the foregoing, we find that McDougald did not deliver his two public-record requests by one of the qualifying statutory delivery methods and therefore deny his request for an award of statutory damages.4
C. Court costs
{¶ 23} Finally, McDougald contends that he is entitled to an award of court costs. Unlike statutory damages, court-cost awards are not dependent on the requester’s use of any specific method of delivery. When a court grants a writ of mandamus ordering a public official to produce records, the court shall order an award of court costs,
{¶ 24} Therefore, McDougald’s claim for an award of costs is governed by
The public office or the person responsible for the public records acted in bad faith when the office or person voluntarily made the public records available to the relator for the first time after the relator commenced the mandamus action, but before the court issued any order concluding whether or not the public office or person was required to comply with division (B) of this section. No discovery may be conducted on the issue of the alleged bad faith of the public office or person responsible for the public records. This division shall not be construed as creating a presumption that the public office or the person responsible for the public records acted in bad faith when the office or person voluntarily made the public records available to the relator for the first time after the
relator commenced the mandamus action, but before the court issued any order described in this division.
{¶ 25} For purposes of this opinion, we are going to assume that it is possible for a pro se requester like McDougald to be eligible for court costs under
{¶ 26} “‘The term “bad faith” generally implies something more than bad judgment or negligence.’” State v. Powell, 132 Ohio St.3d 233, 2012-Ohio-2577, 971 N.E.2d 865, ¶ 81, quoting State v. Tate, 5th Dist. Fairfield No. 07 CA 55, 2008-Ohio-3759, ¶ 13. Bad faith “‘“imports a dishonest purpose, moral obliquity, conscious wrongdoing, breach of a known duty through some ulterior motive or ill will partaking of the nature of fraud. It also embraces actual intent to mislead or deceive another.”’” Id., quoting Hoskins v. Aetna Life Ins. Co., 6 Ohio St.3d 272, 276, 452 N.E.2d 1315 (1983), quoting Slater v. Motorists Mut. Ins. Co., 174 Ohio St. 148, 187 N.E.2d 45 (1962), paragraph two of the syllabus, overruled on other grounds, Zoppo v. Homestead Ins. Co., 71 Ohio St.3d 552, 664 N.E.2d 397 (1994), paragraph one of the syllabus. McDougald has not alleged any facts to suggest that Greene acted in bad faith in his handling of McDougald’s request for the DAS schedule.
{¶ 27} Nor is there evidence of bad faith regarding the Barney report. As recently as October 2019, Greene swore in an affidavit that he believed the Barney report did not exist. Greene reached this conclusion because he looked for the report in a stand-alone file, but failed to find it. When Greene later found the report in a package of documents, he provided it to McDougald that very same day.
{¶ 28} McDougald suggests that Greene was untruthful when he claimed that the Barney report did not exist. As evidence, McDougald submitted a conduct report prepared by a different officer, describing an incident involving McDougald and Barney, in which Barney “deployed a short burst of OC spray”6 for purposes of restraining McDougald. McDougald’s argument appears to be that since DRC regulations require Barney to prepare a report after such an incident, the report must
{¶ 29} We deny McDougald’s request for court costs.
III. CONCLUSION
{¶ 30} Based on the foregoing, we deny McDougald’s motion for leave to amend his complaint and merit brief, deny the writ of mandamus as moot, and decline to award McDougald statutory damages or court costs.
Writ denied.
O’CONNOR, C.J., and FRENCH, FISCHER, DEWINE, and DONNELLY, JJ., concur.
KENNEDY, J., dissents, with an opinion joined by STEWART, J.
KENNEDY, J., dissenting.
{¶ 31} Ohio’s Public Records Act,
{¶ 32} The majority opinion does answer the question, but does so without applying the plain language of the statute. Instead, in reaching its holding, the majority opinion resorts to an inapt analogy comparing the prison’s kite system to the United States mail system. In the end, the majority opinion makes clear that analysis is immaterial; the important thing is that the majority opinion’s desired result will stand: prison officials may ignore or unreasonably delay responding to public-records requests made by incarcerated individuals without the fear of any penalty. That includes instances like the one in this case in which respondent, Larry Greene, unreasonably delayed responding to the public-records request from relator, Jerone McDougald, for a report regarding a correctional officer’s use of force against him. Today, this court diminishes the right of a particular group of people—incarcerated individuals—to receive the public records that they have properly requested under
Factual background
{¶ 33} At the time that McDougald made his public-records requests, he was incarcerated at the Southern Ohio Correctional Facility (“SOCF”). Greene is the administrative assistant to the warden and is the person tasked with responding to incarcerated individuals’ public-records requests
{¶ 34} On February 13, 2019, Greene sent a response to McDougald stating, “Your request for an Incident Report filed by Brian Barney on December 20, 2018 does not exist. This is according to the secretary that searched the records to fulfill this public record request.” The record in this case does not contain a response from Greene regarding McDougald’s request for the DAS schedule.
{¶ 35} On June 28, 2019, McDougald filed a complaint for a writ of mandamus in this court claiming that Greene denied his request for the DAS schedule on December 7, 2018, and his request for the Barney report on February 13, 2019. Noting that “[a] person who transmits a valid written request for public records by hand delivery is entitled to receive statutory damages,” McDougald sought statutory damages in the amount of $1,000.
{¶ 36} Greene filed an answer on July 22, 2019, stating that he had provided the DAS schedule to McDougald that same day—July 22. Greene also asserted that on February 13, he had told McDougald that the Barney report did not exist. On September 25, this court issued an alternative writ and ordered the parties to file briefs and submit evidence in accordance with S.Ct.Prac.R. 12.05. 157 Ohio St.3d 1414, 2019-Ohio-3797, 131 N.E.3d 949.
{¶ 37} Greene submitted evidence on October 15, 2019, including his own affidavit, in which he stated, “My response to Relator McDougald that an incident report filed by Brian Barney on December 20, 2018 does not exist, still stands as it is the correct response to his request.” But in an October 31, 2019 motion for leave to file newly discovered evidence, Greene changed course, admitting that the Barney report did exist, stating that “it was just discovered that the Incident Report was included in a packet of information and documents reviewed and maintained by the SOCF Use of Force Committee.” Greene reported that he provided McDougald the Barney report on October 31, 2019, almost nine months from when he had asked for it. The Barney report was drafted on December 20, 2018, so it existed when McDougald made his public-records request.
{¶ 38} On February 5, 2020, McDougald filed a motion for leave to amend his complaint and brief, asking to amend his complaint “to specify that his public records request kite was hand delivered to Larry Greene during his inmate communication weekly rounds * * * on December 5, 2018 and February 3, 2019.” McDougald submitted no affidavit in support of that motion, and the majority denies the motion today.
{¶ 39} On February 12, this court ordered briefing on the following issue: “When none of the statutory delivery methods are available to an inmate, does a kite constitute hand delivery?” 158 Ohio St.3d 1404, 2020-Ohio-371, 139 N.E.3d 908. It is regrettable that the phrasing of the question is imprecise; the wording seems to assume that a kite is not “a statutory delivery method[ ] available to an inmate,” and that if an incarcerated individual has the financial wherewithal to send a certified-mail request or has access to e-mail, a kite cannot constitute hand delivery. What the court really asks—and the question the
The kite system
{¶ 40} “A ‘kite’ is written by an inmate to a member of the prison staff and is ‘a means for inmates to contact staff members inside [an] institution.’” State ex rel. Martin v. Greene, 156 Ohio St.3d 482, 2019-Ohio-1827, 129 N.E.3d 419, ¶ 3, fn. 1, quoting State v. Elmore, 5th Dist. Richland No. 16CA52, 2017-Ohio-1472, ¶ 15. Pursuant to a DRC policy, “[t]he inmate kite system shall be utilized as the means of two-way communication between all levels of staff and inmates.” DRC Policy 50-PAM-02, at 6, https://drc.ohio.gov/Portals/0/Policies/DRC%20Policies/50-PAM-02%20(12-2019).pdf?ver=2019-12-09-140951-550 (accessed June 15, 2020) [https://perma.cc/R42H-UHK2]. DRC’s protocol for responding to kites is to answer each kite “within seven (7) calendar days.” Id. Kites must also receive an entry in the prison’s kite log. Id. And responses must be “either written directly on the kite received or on the Kite Response form.” Id. Here, Greene used the kite-response form.
{¶ 41} The kite form that inmates use is created by the DRC. Each kite is preprinted and contains instructions. The instructions include, “[W]rite only to the Department that handles the problem you have. Others will merely forward your kite,” and, “Kites are to be used only for communication between inmates and Institutional Staff and not for any other purpose.” Inmates name the person to whom they want the kite delivered and also circle the job title or work area of the person to whom they want it delivered from a list that includes: warden, deputy warden, the Library, Records, and others. At SOCF, incarcerated individuals deposit their completed kites in a locked container. Each cell block has a kite lockbox. If an incarcerated individual is unable to leave his cell, an on-duty corrections officer will walk the lockbox to the inmate so that he can drop the kite into the secured lockbox. The lockboxes are then taken to the mailroom, where the kites are sorted and then delivered to the addressee.
Statutory damages
{¶ 42} Pursuant to
{¶ 43} Therefore, McDougald is substantively eligible for statutory damages. The purpose of awarding statutory damages is to provide “compensation for injury arising from lost use of the requested information. The existence of this injury shall be conclusively presumed.”
{¶ 44} However, a court may reduce or decline to award statutory damages if it finds that based on the law as it existed at the time that the public office allegedly failed to comply with
{¶ 45} Under this standard, McDougald would be entitled to a full award of statutory damages. The factors that allow a court to reduce statutory damages under
{¶ 46} Therefore, the only thing keeping McDougald from being awarded statutory damages in this case is the procedural hurdle that such damages are available to him only if he “transmit[ted] a written request by hand delivery, electronic submission, or certified mail.” And that brings us to the question upon which we ordered briefing.
A kite qualifies as hand delivery under R.C. 149.43(C)(2)
{¶ 47} Our main objective in applying a statute is to determine and then give effect to the legislature’s intent, State ex rel. Solomon v. Police & Firemen’s Disability & Pension Fund Bd. of Trustees, 72 Ohio St.3d 62, 65, 647 N.E.2d 486 (1995), which is decided by reviewing the language of the statute itself, Stewart v. Trumbull Cty. Bd. of Elections, 34 Ohio St.2d 129, 130, 296 N.E.2d 676 (1973). “When the statutory language is plain and unambiguous, and conveys a clear and definite meaning, we must rely on what the General Assembly has said.” Jones v. Action Coupling & Equip., Inc., 98 Ohio St.3d 330, 2003-Ohio-1099, 784 N.E.2d 1172, ¶ 12, citing Symmes Twp. Bd. of Trustees v. Smyth, 87 Ohio St.3d 549, 553, 721 N.E.2d 1057 (2000). “An unambiguous statute is to be applied, not interpreted.” Sears v. Weimer, 143 Ohio St. 312, 55 N.E.2d 413 (1944), paragraph five of the syllabus.
{¶ 48}
If a requester transmits a written request by hand delivery * * * to inspect or receive copies of any public record * * * to the public office or person responsible for the requested public records, * * * the requester 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.
{¶ 50} McDougald hand delivered his public-records requests to SOCF when he deposited his kite into the receptacle within the public office that is designated to accept public-records requests from incarcerated individuals. The fact that McDougald resided within the very public office where he made his hand delivery does not matter.
{¶ 51} The majority neither applies nor interprets
{¶ 52} But an incarcerated individual’s hand delivery of a public-records request to the public office has been achieved once he places the kite in the lockbox. How the public office routes the public-records request once it has been received is irrelevant under
{¶ 53} Further, SOCF’s kite system is nothing like the regular U.S. mail. The incarcerated person is not paying a separate entity to deliver his message. The kite never leaves SOCF. No personnel other
{¶ 54} If the majority truly believes the kite system is analogous to the U.S. mail—which it is assuredly not for the reasons stated above—it is analogous to a certain species of U.S. mail: certified mail. DRC policy requires that the recipient respond within seven days after receiving the kite by returning the kite with an answer written on it or by completing and delivering a kite-response form. See DRC Policy 50-PAM-02, at 6. Through the use of the kite log and the receipt system, an inmate can be assured that his kite was delivered, as with certified mail.
{¶ 55} But analogies are unnecessary. McDougald did all he needed to do in order to qualify for an award of statutory damages under
{¶ 56} SOCF designated the place where public-records requests are to be deposited, and McDougald deposited his requests there. Had he not been an inmate, but a person who delivered his public-records requests to SOCF and deposited them in a secure lockbox designated for the delivery of public-records requests, would the majority hesitate to award him statutory damages? Obviously, the secured lockbox is employed by the institution to prevent allegations of destruction or the accidental misplacement of an inmate’s kite. The secured lockbox also achieves a level of trust between the incarcerated individual and staff of the institution that the kite will not be tampered with and assures incarcerated individuals that they will be heard. That is why SOCF’s policy requires that when someone who is on restriction and confined to a cell wants to deposit a kite, the correctional officer has to take the secured lockbox to the incarcerated individual.
{¶ 57} Even if McDougald were required to hand deliver his request to the “person responsible for the requested records,”
{¶ 58} This is what McDougald did in this case. The kite form told him that his public-records requests would be delivered to the department that would handle his request. SOCF’s kite system allows an inmate to hand deliver a public-records request that he knows that will be delivered, pursuant to prison policy, by a prison official to the person listed on the kite. Therefore, as in Carr, McDougald’s delivery to an intermediary constitutes hand delivery.
Conclusion
{¶ 59} “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.”
{¶ 60} Incarcerated individuals at SOCF have no access to an e-mail system to make public-records requests and the cost of certified mail is prohibitive. The majority holds that the limitation on how incarcerated individuals make public-records requests prevents them from receiving compensation for injury from the lost use of the requested information. Today, this court determines that when an incarcerated individual deposits a public-records request by hand into a receptacle designated to collect such requests in the facility from which he seeks the record, that his deposit does not constitute “hand delivery” to the public office under
{¶ 61} Today it is this court, not the General Assembly, that is responsible for the disparate treatment of incarcerated individuals under the Public Records Act engendered by this opinion. The majority acknowledges that by not even analyzing the words the General Assembly uses in the Public Records Act.
{¶ 62} McDougald’s incarceration makes him no less deserving of the benefit of
{¶ 63} Therefore, I dissent.
STEWART, J., concurs in the foregoing opinion.