STATE, EX REL. DEBORAH MORABITO v. CITY OF CLEVELAND, ET AL.
No. 98829
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
December 19, 2012
[Cite as State ex rel. Morabito v. Cleveland, 2012-Ohio-6012.]
JOURNAL ENTRY AND OPINION; RELATOR vs. RESPONDENTS; Writ of Mandamus; Motion Nos. 459559, 460360, 460701; Order No. 460900
Matthew M. Nee
Stephen D. Bittinger
Nee/Bittinger, L.L.C.
27476 Detroit Road, Suite 104
Westlake, Ohio 44145
ATTORNEYS FOR RESPONDENTS
Barbara A. Langhenry
Interim Director of Law
William M. Menzalora
Assistant Director of Law
Alejandro V. Cortes
Assistant Director of Law
City of Cleveland Department of Law
601 Lakeside Avenue, Room 106
Cleveland, Ohio 44114-1077
{1} On August 20, 2012, the relator, Deborah Morabito, commenced this public records mandamus action against the respondents, the city of Cleveland, Director of Public Safety Martin Flask, and Interim Law Director Barbara Langhenry (hereinafter collectively referred as “Cleveland“). Morabito seeks the videotapes of the sixth floor detention center where her son, James Morabito, was confined from February 18-19, 2011. On October 22, 2012, Cleveland filed a motion to dismiss, inter alia, on the grounds of mootness. This court converted the motion to dismiss to a motion for summary judgment under
FACTUAL AND PROCEDURAL BACKGROUND
{2} The parties agree that James Morabito was arrested in Cleveland on February 18, 2011, and released the next day. Deborah Morabito asserts that the police used excessive force on her son while he was in custody and that the mistreatment contributed to his death. She states that he suffered from several conditions, including
{3} Pursuant to a Schedule of Records Retention and Disposition, adopted in 2008, surveillance video and audio recordings in Cleveland police district buildings are retained for 30 days. (Ex. A-1 to Cleveland‘s December 5, 2012 filing.) Upon the expiration of the 30-day retention period, Cleveland‘s DVR devices are programmed to automatically overwrite the recorded data. This is a continuous process for all such data, and the data is preserved only if there is a specific request for video footage. (Paragraph 5 of affidavit of Public Safety Systems Manager Quenton Cantionez.) In the instant case, Cleveland Police Lt. David Carroll on February 22, 2011, requested various camera views of the detention center for February 18, 2011, between 6:00 p.m. and 8:00 p.m. Cantionez fulfilled that request the same day.
{4} On April 29, 2011, Morabito, through attorney Edwin Vargas, made a public records request for a copy of all videotapes of the sixth floor detention center while James Morabito was confined there. Although the letter request refers to documents, the request does not specify any records other than the videotape. Cleveland replied on May 20, 2011 that it was unable to comply with the request at this time because there was an ongoing investigation.
{5} Approximately one year later, on May 2, 2012, Morabito made another public records request for “all documents, papers, written record either physical or
{6} On August 30, 2012, Cleveland sent a “copy of the videotape that was responsive to the request.” (Paragraph 7 of Kim Roberson‘s affidavit.) On or about September 11, 2012, Morabito supplemented her request by asking for records or information on James Morabito‘s booking, interrogation, discharge, and any other documents to respond to the request for information that had not already been produced. Morabito also noted that the produced videotape did not appear to be complete for James Morabito‘s entire confinement; she asked Cleveland to determine whether any more videotapes existed. Morabito confirmed this exchange in an October 2, 2012 letter.
{7} Cleveland responded by producing the records related to James Morabito‘s booking, discharge, citation, and summons. In a telephone conversation between Morabito‘s lawyer and an assistant director of law, it was represented that there were no records related to an interrogation because there was no interrogation; that the city
{8} Cleveland filed its motion to dismiss on October 22, 2012, and argued standing, procedural defects, and mootness.2 Cleveland did not file an answer. The court converted the motion to dismiss to a motion for summary judgment.
{9} Morabito responded by her November 21, 2012 filings. Morabito argues that the case is not moot because Cleveland has not confirmed in writing that the videotape was destroyed, and has not explained exactly when and how and by whom it was destroyed, and has not addressed whether the tape was saved to a digital hard drive and
{10} In its December 5, 2012 response, Cleveland attached the relevant retention schedule and the affidavit of Cleveland‘s Public Safety Systems Manager, Quenton Cantionez. In that affidavit, Cantionez swears that after 30 days, Cleveland‘s DVR devices are programmed to automatically overwrite the recorded date on a continuous basis, and that the recorded data cannot be retrieved once it has been overwritten.
LEGAL CONCLUSIONS
{11} Prescinding the issues of standing, pleading defects, and the propriety of the amended complaint, this court concludes that this public records mandamus action is moot. In Harless v. Willis Day Warehouse Co., Inc., 54 Ohio St.2d 64, 66, 375 N.E.2d 46 (1978), the Supreme Court of Ohio stated the appropriate standard for granting summary judgment:
Appositeness of rendering a summary judgment hinges upon the tripartite demonstration: (1) that there is no genuine issue as to any material fact; (2) that the moving party is entitled to judgment as a matter of law, and (3) that reasonable minds can come to but one conclusion, and that conclusion is
adverse to the party against whom the motion for summary judgment is made, who is entitled to have the evidence construed most strongly in his favor.
{12} Furthermore, when a motion for summary judgment is made, the nonmoving party may not rest on the mere allegations of his pleading, but his response, by affidavit or as otherwise provided in
{13} In viewing all the evidence in the light most favorable to Morabito, this court rules that there are no genuine issues of fact to be resolved. The facts before the court are that Cleveland videotapes the detention center. Unless a request is made to save a recording, the video recorder automatically overwrites the recording after 30 days. Once the recording is overwritten, it cannot be retrieved. In the instant case, a request was made for part of the desired recordings within the 30 days; that what was saved was released. Morabito made her request for the video recordings more than 60 days after the incident. There is no evidence that any of the desired recording survived until April 29, 2011, except for that portion that Lt. Carroll requested. Morabito does not set forth specific facts to raise a genuine issue of fact, but through a series of questions endeavors to conjure the specter of doubt. Such questions are not the requisite clear and convincing evidence that more of the recording exists. Strothers v. Norton, 131 Ohio St.3d 359, 2012-Ohio-1007, 965 N.E.2d 282; and State ex rel. Chatfield v. Gammill, 132 Ohio St.3d 36, 2012-Ohio-1862, 968 N.E.2d 477. Furthermore, the other actual record requested,
{14} The other matters arguably requested in the amended complaint — written confirmation of the following: (1) that James Morabito was not interrogated; (2) that no more of the videotape showing James Morabito exists; (3) the names and ID badges of all police officers that appear in the video; (4) that other video showing James Morabito existed; and (5) why, how, when, and by whom the video was destroyed — are not authentic public records requests, but requests for information outside the scope of
{15} Although Morabito sought statutory damages in her demand for judgment, she is not entitled to them. First, she did not specifically argue for them in her
{16} Similarly, the court declines to award attorney fees. Recently, the Supreme Court of Ohio has ruled that an award of attorney fees or statutory damages is dependent upon showing the release of the records is more for the public benefit than for the requester‘s benefit. State ex rel. Dawson v. Bloom-Carroll Local School Dist., 131 Ohio St.3d 10, 2011-Ohio-6009, 959 N.E.2d 524 ¶ 34; and State ex rel. Beacon Journal Publishing Co. v. Akron, 104 Ohio St.3d 399, 2004-Ohio-6557, 819 N.E.2d 1087. In her motion for attorney fees, Morabito does not proffer a public benefit, other than ensuring the fulfillment of public records duties. This court has ruled that such a proffer is insufficient. State ex rel. Petranek v. Cleveland, 8th Dist. No. 98026, 2012-Ohio-2396. Furthermore, the facts of this case indicate the request is for a personal benefit, e.g., an auxiliary discovery tool. Such is an insufficient basis for attorney fees. State ex rel. Cavanagh v. Cleveland, 8th Dist. No. 96116, 2011-Ohio-3840.
{17} Accordingly, this court grants the respondents’ motion for summary judgment, denies the application for a writ of mandamus, and denies the relator‘s motion for attorney fees. Respondents to pay costs. This court directs the clerk of court to serve all parties notice of this judgment and its date of entry upon the journal as required by
JAMES J. SWEENEY, PRESIDING JUDGE
COLLEEN CONWAY COONEY, J., and
SEAN C. GALLAGHER, J., CONCUR