State ex rel. McNew v. Ohio Dept. of Rehab. & Corr.State ex rel. McNew v. Ohio Dept. of Rehab. & Corr.
Rendered on June 2, 2022
On brief: Michael A. McNew, pro se.
On brief: Dave Yost, Attorney General, and Mark W. Altier, for respondent.
IN MANDAMUS
ON OBJECTIONS TO THE MAGISTRATE‘S DECISION
SADLER, J.
{¶ 1} Relator, Michael A. McNew, requests this court issue a writ of mandamus ordering respondent Ohio Department of Rehabilitation and Correction (“ODRC“) to respond to relator‘s public records requests.
{¶ 2} This matter was referred to a magistrate pursuant to
{¶ 3} ODRC has filed objections to the magistrate‘s decision. Therefore, we must independently review the decision to ascertain whether “the magistrate has properly determined the factual issues and appropriately applied the law.”
{¶ 4} In its first objection, ODRC asserts the magistrate erred by determining that it abandoned its claim that the Lexis Response was exempt from disclosure because it containеd trade secrets. As explained in the magistrate‘s decision, ODRC asserted it provided certain documents to relator on November 4, 2020. ODRC claimed this response included a redacted copy of the Lexis Response. ODRC asserted it fully complied with the Public Records Act by providing a redacted copy of the Lexis Response to relator and notifying relator of the redactions.
{¶ 5} Ohio‘s Public Records Act,
{¶ 6} Contrary to ODRC‘s characterization, the magistrate did not conclude ODRC was precluded from relying on a trade secret exemption; rather, the magistrate concluded ODRC failed to assert that exemption. The magistrate found that ODRC “failed to plead
{¶ 7} This court has held that an argument is waived when it is not asserted before a magistrate and is raised for the first time in objections to the magistrate‘s decision. See State ex rel. Maglis v. Indus. Comm., 10th Dist. No. 15AP-648, 2016-Ohio-4644, ¶ 10 (“Relator did not argue before the magistrate that 10 weeks of death benefits was arbitrary or that the commission failed to provide an adequate explanation. Consequently, this argument is waived.“); State ex rel. German v. Provider Servs. Holdings, LLC, 10th Dist. No. 13AP-149, 2014-Ohio-3336, ¶ 18 (“[R]elator argues for the first time here that the commission abused its discretion by not stating that the employer met its burden to demonstrate voluntary abandonment. Because relator failed to raise this issue before the magistrate, relator has waived this argument.“); State ex rel. Durbin v. Indus. Comm., 10th Dist. No. 10AP-712, 2012-Ohio-664, ¶ 10 (“Though relator‘s objections assert the magistrate erred in not addressing her contentions that the commission failed to exercise continuing jurisdiction on the basis of fraud, the issue was not raised by relator in either her complaint or merit brief. In accordance with [State ex rel.] Hackenburg [v. Indus. Comm., 10th Dist. No. 06AP-938, 2007-Ohio-4181] and [State ex rel.] Advantage Tank Lines [v. Indus. Comm., 10th Dist. No. 03AP-584, 2004-Ohio-3384], we conclude relator waived the issue by presenting it for the first time in the objections to the magistrate‘s decision.“); State ex rel. Hackenburg v. Indus. Comm., 10th Dist. No. 06AP-938, 2007-Ohio-4181, ¶ 4 (“[R]elator contends the commission abused its discretion when it determined she had reached MMI as of January 13, 2006, based on the report of Dr. Martin. A review of relator‘s brief, however, discloses that she failed to raise this issue before the magistrate, and, therefore, it is considered waived.“). In this case, ODRC waived its trade secret exemption argument by failing to raise it before the magistrate. Accordingly, we overrule ODRC‘s first objection.
{¶ 8} In its second objection, ODRC asserts the magistrate erred by recommending that this court order it to provide аn unredacted copy of the Lexis Response without conducting an in camera review to determine whether the redacted material constituted trade secrets. ODRC claims an in camera inspection is required when a government body asserts an exemption from the Public Records Act, and that in this case the trade secret protection belongs to Lexis Nexis and could not be waived by ODRC.
{¶ 9} The Public Records Act is construed liberally in favor of broad access and any doubt must be resolved in favor of disclosure of public records. State ex rel. Rogers v. Ohio Dept. of Rehab. & Corr., 155 Ohio St.3d 545, 2018-Ohio-5111, ¶ 6. Exceptions to the Public Records Act are strictly construed and the custodian of the public records bears the burden of establishing the applicability of an exception. Id. at ¶ 7. To meet this burden, the records custodian “must prove that the requested records ‘fall squarely within the exception.‘” Id., quoting State ex rel. Cincinnati Enquirer v. Jones-Kelley, 118 Ohio St.3d 81, 2008-Ohio-1770, ¶ 10.
{¶ 10} The Supreme Court of Ohio has held that in certain circumstances the аpplicability of an exception to the Public Records Act may be apparent from the records themselves. McDougald v. Greene, 162 Ohio St.3d 250, 2020-Ohio-4268, ¶ 10. In McDougald, a prison inmate requested copies of shift-assignment duty rosters, which detailed the assignments of guards within the prison. Id. at ¶ 1. The prison provided the inmate heavily redacted copies of the documents. Id. When the inmate filed a mandamus action seeking unredacted copies, the prison asserted the redacted matters were exempt from disclosure under the infrastructure-records exemption and the security-records
{¶ 11} The record in the present case presents the “different result” contemplated by the majority opinion in McDougald. As explained in our analysis of the first objection, ODRC did not argue for an exception to the Public Records Act before the magistrate, instead asserting relator‘s claim was moot because it had provided the requested records to relator. Additionally, ODRC did not present an unredacted copy of the Lexis Response to the magistrate or request that he conduct an in camera review of it to determine whether it contained trade secrets that were exempt from disclosure. Unlike McDougald, because the relevant document is not before us, we cannot find it to be “clear from the face of the documents” that the trade secret exemption applied to part or all of the Lexis Response. Id. at ¶ 9.
{¶ 12} “[W]hen a public office claims an exception based on risks that are not apparent within the records themselves, the office must provide more than conclusory statements in affidavits to support its claim.” State ex rel. Rogers at ¶ 15. In the present case, ODRC provided less than conclusory statements in an affidavit to support the trade secret exemption. There was no mention of the trade secret exemption in the affidavit ODRC presented to the court, nor any attempt to explain why the Lexis Response was covered by that exemption. The sole reference to trade secrets appeared in the cover letter sent to relator, but ODRC did not present as evidence the records that accompanied that cover letter.
{¶ 13} ODRC is correct that the Suрreme Court has “consistently required an in camera inspection of records before determining whether the records are excepted from disclosure” under the Public Records Act. State ex rel. Lanham v. DeWine, 135 Ohio St.3d 191, 2013-Ohio-199, ¶ 22. That principle arises from cases in which the public office asserts that an exemption applies. See Welsh-Huggins v. Jefferson Cty. Prosecutor‘s Office, 163 Ohio St.3d 337, 2020-Ohio-5371, ¶ 29, quoting State ex rel. Natl. Broadcasting Co., Inc. v. Cleveland, 38 Ohio St.3d 79 (1988), at paragraph four of the syllabus (“When the government‘s asserted exemption is challenged, ‘the court must make an individualized scrutiny of the records in question.‘” (Emphasis added.)); Lanham at ¶ 20 (“The attorney general‘s office claims that the records at issue here are excepted from disclosure.“); State ex rel. Seballos v. School Emps. Retirement Sys., 70 Ohio St.3d 667, 671 (1994) (“When a governmental body asserts that public records are excepted from disclosure and this assertion is challenged, the court in which the action is brought must conduct an in camera inspection of the documents.” (Emphasis added.)). In this case, ODRC failed to assert the trade secret exemption until after the magistrate issued his decision. ODRC likewise failed to provide evidence to support a finding that the trade secret exemption applied. Under these circumstances, we cannot conclude the magistrate erred by failing to conduct an in camera review of the Lexis Response before ordering it to be provided to relator. Therefore, we overrule ODRC‘s second objection.
{¶ 14} In its third objection, ODRC asserts it is inappropriate for the court to award costs to relator unless and until the court conducts an in camera review of the Lexis Response and determines that it is not covered by the trade secret exemption. A relator shall be awarded court costs “[i]f the court orders the public office or the person responsible for the public record to comply with [
{¶ 15} Following an independent review of the magistrate‘s decision and the objections filed by ODRC, we overrule ODRC‘s three objections. We adopt the magistrate‘s decision as our own, including the findings of fact and conclusions of law contained therein. For the reasons set forth herein, we issue a writ of mandamus ordering ODRC to produce to relator an unredacted copy of Lexis Nexis‘s May 24, 2019 response to ODRC‘s request for quote number DRCQ-20-2780. We award relator statutory damages in the amount of $1,000 and order ODRC to pay the costs in this matter.
Objections overruled;
writ of mandamus granted;
statutory damages and costs awarded.
KLATT and BEATTY BLUNT, JJ., concur.
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State ex rel. Michael A. McNew, :
Relator, :
v. : No. 20AP-404
Ohio Department of Rehabilitation and : (REGULAR CALENDAR)
Correction, :
Respondent. :
MAGISTRATE‘S DECISION
Rendered on January 7, 2022
Michael A. McNew, pro se.
Dave Yost, Attorney General, and Mark W. Altier, for respondent.
IN MANDAMUS
{¶ 16} Relator, Michael A. McNew, has filed this original action seeking a writ of mandamus ordering respondent, Ohio Department of Rehabilitation and Correction (“ODRC“), to comply with his requests for public records made pursuant to
Findings of Fact:
{¶ 17} 1. Relator is a prisoner incarcerated at London Correctional Institution (“LCI“).
{¶ 19} 3. Relator asserts in his petition for writ of mandamus that ODRC, in bad faith, failed to produce public records in two separate requests for documents. With regard to the first request (“first request“), relator alleges: (1) on April 13, 2020, relator sent a public records request to Vicky Justus at LCI, requesting the itemized operating budget for the education department at LCI (including the high school, vocational education programs, the library, and law library) for the fiscal year starting July 1, 2019 and ending June 30, 2020; (2) in a May 11, 2020, letter, Justus stated that LCI does not have these records and directed relator to ODRC‘s operations support center (“central office“); (3) on May 15, 2020, relator sent a public records request by regular mail to Annette Chambers-Smith at ODRC‘s central office requesting the same records аs requested from LCI. ODRC did not respond to the May 15, 2020, request; (4) on June 8, 2020, relator sent the same request via certified mail to Chambers-Smith at ODRC‘s central office; (5) the signed return receipt for the June 8, 2020, request is undated, but has a postmarked return of June 12, 2020, and was received by relator on June 15, 2020; and (6) ODRC has not provided any reply to the June 8, 2020, request.
{¶ 20} With regard to the second request (“second request“), relator alleges: (1) on April 13, 2020, relator sent a public records request to Chambers-Smith, by regular mail, requesting a copy of any contract, presently in effect, under which ODRC provides Lexis Nexis access to inmates, regardless of whether the signatory is ODRC or the State of Ohio, including any side letters or memoranda of understanding between the parties intended to interpret, supplement, or amend the contract (“second request“); (2) on April 17, 2020, ODRC, via staff counsel Sarah Pierce, produced the contract responsive to the April 13, 2020, request; however, the contract references additional terms and conditions set forth in separate documents that were not produced although requested; (3) in an April 27, 2020, letter to Pierce, relator informed her that there were other documents that fell within the scope of the second request that were not produced, specifically, the request for quote number DRCQ-20-2780; the May 24 and June 7, 2019 Lexis Nexis response to quote number DRCQ-20-2780; the Lexis Nexis agreement for prison solutions; and the Lexis Nexis additional terms for all products; (4) relator received no reply to the April 27, 2020, request; (5) on May 15, 2020, relator sent a request to Chambers-Smith by regular mail for
{¶ 21} 4. On August 28, 2020, relator filed the present petition for writ of mandamus, in which he claimed ODRC failed to comply with his first and second public records requests pursuant to
{¶ 22} 5. On November 4, 2020, Pierce sent a letter to relator that included the records responsive to relator‘s first request. The letter indicated that the enclosed record was responsive to the request with the most current data, and the budget data was itemized by funding stream. The letter did not specify what responsive records had been provided.
{¶ 23} 6. On November 4, 2020, Pierce sent a letter to relator that included the records responsive to relator‘s second request. Pierce noted that Lexis Nexis claims trade secret and copyright protections for the May 24, 2019, response to the ODRC request for quote number DRCQ-20-2780 (under
{¶ 24} 7. In a November 5, 2020, affidavit, Pierce averred to the following: (1) with regard to the first request, the ODRC central office staff worked to identify any records available that would be responsive to the request; due to the COVID-19 emergency most central office staff, including herself, worked from home with limited access to their regular office space; two reports were identified as responsive and were provided to relator on November 4, 2020, as evidenced by the November 4, 2020, letter; and (2) with regard to relator‘s second request, ODRC central office staff located the additional contract records requested by relator and provided these records to relator on November 4, 2020, as evidenced by the November 4, 2020, letter. The affidavit concluded with an averment that, as of November 4, 2020, the responsive records have been provided to relator.
{¶ 26} 9. On December 1, 2020, this magistrate denied ODRC‘s motion to refer the matter to mediation but granted a stay for the parties to pursue settlement.
{¶ 27} 10. On February 22, 2021, ODRC notified the court that negotiations had failed, and this magistrate lifted the previously imposed stay.
Conclusions of Law:
{¶ 28} In order for this court to issue a writ of mandamus, a relator must ordinarily show a clear legal right to the relief sought, a clear legal duty on the part of the respondent to provide such relief, and the lack of an adequate remedy in the ordinary course of the law. State ex rel. Pressley v. Indus. Comm., 11 Ohio St.2d 141 (1967). However, relators in public-records mandamus cases need not estаblish the lack of an adequate remedy in the ordinary course of law. State ex rel. ACLU of Ohio v. Cuyahoga Cty. Bd. of Commrs., 128 Ohio St.3d 256, 2011-Ohio-625, ¶ 24, citing State ex rel. Morgan v. New Lexington, 112 Ohio St.3d 33, 2006-Ohio-6365, ¶ 41.
{¶ 29} Under
{¶ 30} In the present case, relator presents arguments pertaining to both the first request and second request. With regard to the first request, relator argues that he sent the public records requests regarding the budget records pertaining to LCI‘s education department to the central office on May 15, 2020, and, again, on June 8, 2020. However, ODRC failed to respond to either request. Relator argues that the financial documents sent with the November 4, 2020, letter from ODRC were not responsive to the request. Relator argues that the produced documents are a spreadsheet showing the balance of several ODRC accounts and a spreadsheet of accounts payable, neither of which can be construed as an itemized budget.
{¶ 31} However, a public office has no duty to provide records that do not exist, or that it does not possess. State ex rel. Gooden v. Kagel, 138 Ohio St.3d 343, 2014-Ohio-869, ¶ 5, 8-9. See also State ex rel. McDougald v. Greene, 163 Ohio St.3d 471, 2020-Ohio-5100, ¶ 10 (when a requester seeks a nonexistent record, a public office has no duty to provide it). In the absence of evidence to the contrary, the public office may be presumed to have performed its duties including public records identification and retrieval regularly and in a lawful manner. State ex rel. Toledo Blade Co. v. Toledo-Lucas Cty. Port Auth., 121 Ohio St.3d 537, 2009-Ohio-1767, ¶ 29. An office may establish by affidavit that all existing records have been provided. Id. at ¶ 15. Although the affidavit may be rebutted by evidence showing a genuine issue of fact, a requester‘s mere belief based on inference and speculation does not constitute the evidence necessary to establish that a document exists as a record. State ex rel. McCaffrey v. Mahoning Cty. Prosecutor‘s Office, 133 Ohio St.3d 139, 2012-Ohio-4246, ¶ 22-26 (a requester‘s mere disbelief in a public office‘s assertion of nonexistence does not constitute the clear and convincing evidence necessary to establish that responsive documents do exist). The “burden of persuasion” is at all times on the requester of records to prove his right to relief by the requisite quantum of evidence. Welsh-Huggins v. Jefferson Cty. Prosecutor‘s Office, 163 Ohio St.3d 337, 2020-Ohio-5371, ¶ 34. Consequently, the requester must establish entitlement to relief by clear and convincing evidence. Id. Clear and convincing evidence is “that measure or degree of proof which is more than a mere ‘preponderance of the evidence,’ but not to the extent of such certainty
{¶ 32} In the present case, relator has failed to sustain his burden. Relator does not present any evidence that there are any public records pertaining to his first request that ODRC has not provided. Although relator argues that the financial documents sent with the November 4, 2020, letter from ODRC were not responsive to the request, relator presents no evidence that the type of “itemized budget” that he envisions or desires exists. In her November 5, 2020, affidavit, Pierce averred that ODRC produced two reports as responsive to relator‘s first request, and as of that date, the responsive records have been provided to relator. Thus, relator having failed to sustain his burden that there exist additional public records responsive to his first records request, ODRC fulfilled its obligation and did not violate
{¶ 33} With regard to the second request, relator argues that on April 13, 2020, he originally requested from the central office the records that were part of the contract between ODRC and Lexis Nexis, and that request specifically defined “contract” to include side letters or memoranda of understanding between the parties intended to interpret, supplement, or amend the contract. However, relator contends, ODRC produced only a bare-bones agreement between the parties and did not include the other documents referenced in that agreement. Relator points out that he made another request for these records on May 15, 2020, but he received no reply, so he made another request on June 22, 2020, specifically requesting the request for quote known as DRCQ-20-2780, the May 24 and June 7, 2019 Lexis Nexis response to DRCQ-20-2780, the Lexis Nexis agreement for prison solutions, and the Lexis Nexis additional terms for all products, which were all mentioned in the contract. ODRC also did not respond to his June 22, 2020, request. Relator asserts that the documents ODRC did produce with the November 4, 2020, letter (i.e., the request for quote number DRCQ-20-2780) were insufficient because: (1) the letter raises for the first time that the May 24, 2019, response from Lexis Nexis is protected by trade secrets; (2) the documеnts do not address the June 7, 2019, Lexis Nexis response to the request for quote and does not claim a trade secret exception; and (3) the documents do not contain the Lexis Nexis agreement for prison solutions or the Lexis Nexis additional
{¶ 34} ODRC counters that relator concedes that respondent produced some of the requested records prior to initiation of the action, namely, the contract between ODRC and Lexis Nexis. ODRC also points to Pierce‘s affidavit, in which she stated that, as of November 4, 2020, responsive records to relator‘s requests have been provided to him.
{¶ 35} As with relator‘s first request for public records, relator has failed to meet his burden of persuasion with regard to his claims that more records exist than ODRC рroduced with regard to his second request. Relator claims ODRC has not produced the Lexis Nexis agreement for prison solutions or the Lexis Nexis additional terms for all products. However, relator presents no evidence to contradict Pierce‘s affidavit, in which she indicates that ODRC has delivered to relator its existing records responsive to his request. Relator has not rebutted Pierce‘s affidavit by presenting this magistrate evidence showing a genuine issue of fact remains, and relator‘s speculation that ODRC possesses these records is insufficient. Lacking clear and convincing evidence of the existence of these documents, this argument must be rejected.
{¶ 36} However, with regard to relator‘s request for the response to the request for quote number DRCQ-20-2780, Pierce admits in the November 4, 2020, letter that ODRC possesses records responsive to this request, but Pierce states in the letter that Lexis Nexis claims trade sеcret and copyright protections under
{¶ 37} In the present case, ODRC has not only failed to plead and prove facts clearly establishing the applicability of the exception, ODRC has completely failed to raise the trade-secret exception anywhere before this court, including Pierce‘s affidavit and ODRC‘s merit brief. Under these circumstances, the magistrate finds that ODRC has failed to properly assert and establish before this court an exception to the public records requirements; thus, the magistrate recommends that a writ of mandamus be issued ordering ODRC to provide relator with unredacted copies of the May 24, 2019, response to the ODRC request for quote number DRCQ-20-2780. See id. (Kennedy, J., dissenting) (failure of the public office to raise or make a meaningful case for the applicability of a previously asserted public-records exception before the court in a subsequent mandamus action constitutes an abandonment of the exception, and the court should not address it; thus, the public office should provide the requester with an unredacted copy of the record).
{¶ 38} In addition, relator asserts that, even if the November 4, 2020, financial-budget documents produced by ODRC can be construed as being responsive to his request, ODRC did not produce these records within a reasonable time, thereby entitling him to court costs and statutory damages. Likewise, relator argues that ODRC failed to produce the Lexis Nexis contract documents within a reasonable time, and even the records it did produce were not produced within a reasonable time, thereby entitling him to court costs and statutory damages.
{¶ 39} ODRC counters that relator has acknowledged that it responded to his April 13, 2020, request on April 17, 2020, by forwarding a copy of the contract between ODRC and Lexis Nexis. Furthermore, ODRC contends that it delivered responsive records to relator regarding both requests on November 4, 2020, and such timeframes were reasonable, given the limitations and restrictions imposed upon Pierce and the central office staff as a result of the COVID-19 pandemic. ODRC points to Pierce‘s averment that
{¶ 40}
{¶ 41} A selection of other cases addressing whether public records were produced within a reasonable time pursuant to
{¶ 42} In the present case, relator does not dispute that ODRC‘s April 17, 2020, response to his April 13, 2020, request for the request for quote number DRCQ-20-2780 (by forwarding a copy of the contract between ODRC and Lexis Nexis) was within a reasonable time under the circumstances. However, that was the only document with regard to any of relator‘s requests that ODRC produced prior to relator‘s filing of this mandamus petition. Relator made requests on April 27, 2020 (documents relating to the second request that were already requested on April 13, 2020); May 15, 2020 (documents
{¶ 43} Based upon all of the circumstances in this case, the magistrate finds that ODRC failed to promptly produce the public records requested by relator within a reasonable time, as contemplated by
{¶ 46} In his petition and brief, relator also seeks an award for court costs associated with bringing the present mandamus action. Under certain circumstances, a court may award attorney fees,
{¶ 47} Here, relator presents no substantive argument or evidence regarding ODRC‘s alleged bad faith. Notwithstanding, this court has instructed ODRC to comply with an obligation imposed by
/S/ MAGISTRATE
THOMAS W. SCHOLL III
NOTICE TO THE PARTIES
Notes
(Nov. 4, 2020 ODRC letter to relator.) The magistrate noted there was no indication in the record that ODRC ever supplemented its response to relator.Note that Lexis Nexis claims trade secret and copyright protections for the May 24, 2019 response to the DRC Request for Quote number DRCQ-20-2780, which are exceptions to the Ohio Public Records Act (see R.C. 149.43(A)(1)(v), 17 U.S.C. § 102(a), and R.C. Chapter 1333). DRC is working to resolve the applicability of these claimed exceptions to the May 24, 2019 response and will supplement this response.