JOURNAL ENTRY AND OPINION

JUDGMENT: WRIT DENIED

DATED: April 1, 2020

Writ of Mandamus

Motion No. 532888

Order No. 536400

Appearances:

Daveion Perry, pro se.

Michael C. O‘Malley, Cuyahoga County Prosecuting Attorney, and Brian R. Gutkoski, Assistant Prosecuting Attorney, for respondent.

KATHLEEN ANN KEOUGH, J.:

{¶ 1} On October 8, 2019, the relator, Daveion Perry, commenced this public records mandamus action against the respondent, Cuyahoga County Prosecutor Michael O‘Malley, to compel the prosecutor to disclose the following records: (1) the respondent‘s public records retention schedule, (2) his public records policy and (3) a list of his office‘s employees. On October 17, 2019, the respondent prosecutor moved for summary judgment because Perry did not fulfill the prerequisite of presenting the public records request before commencing the mandamus action. The respondent also moved to declare Perry a vexatious litigator. Perry filed his brief in opposition to the prosecutor‘s motions on November 19, 2019. For the following reasons, this court grants the prosecutor‘s motion for summary judgment, denies the application for a writ of mandamus, and denies the motion to declare Perry a vexatious litigator.

{¶ 2} Perry states that on August 15, 2019, he sent the respondent prosecutor by certified mail a public records request for his records retention schedule, his public records policy, and a list of all his office‘s employees. Perry attached to his mandamus complaint a copy of the handwritten request, a copy of a “Personal A/C Withdrawal Check Out-Slip,” dated August 15, 2019, for certified mail, and a U.S. Postal Service Certified Mail Receipt indicating that he had sent the Cuyahoga County Prosecutor certified mail in the middle of August 2019. Perry also attached a USPS Tracking request that stated the status of his certified mail to the prosecutor was not available. When there was no response to Perry‘s requests, he commenced this mandamus action.

{¶ 3} Pursuant to R.C. 149.43, mandamus is the appropriate remedy to compel compliance with Ohio‘s Public Records Act. State ex rel. Vindicator Printing Co. v. Youngstown, 104 Ohio St.3d 1436, 2004-Ohio-1120, 819 N.E.2d 1120. Because the statute specifies mandamus as the remedy, the relator does not have to show the lack of an adequate remedy at law to prevail. State ex rel. Morgan v. New Lexington, 112 Ohio St.3d 33, 2006-Ohio-6365, 857 N.E.2d 1208. As with all writ actions, the relator must establish the right to a writ by clear and convincing evidence. State ex rel. Pressley v. Indus. Comm., 11 Ohio St.2d 141, 228 N.E.2d 631 (1967); and State ex rel. Pietrangelo v. Avon Lake, 149 Ohio St.3d 273, 2016-Ohio-5725, 74 N.E.3d 419. Nevertheless in Ohio, public records are the people‘s records. To that end, the public records act is to be construed liberally in favor of broad access and disclosure. The courts are to resolve any doubt in favor of disclosure. Vindicator, supra. Exemptions to disclosure under the Public Records Act must be strictly construed against the public records custodian, and the government bears the burden of establishing the applicability of an exception. Morgan, 2006-Ohio-6365, ¶ 47. However, ”R.C. 149.43(C) requires a prior request as a prerequisite to a mandamus action.” State ex rel. Cincinnati Enquirer v. Deters, 148 Ohio St.3d 595, 2016-Ohio-8195, 71 N.E.2d 3d 1076, ¶ 20, quoting State ex rel. Taxpayers Coalition v. Lakewood, 86 Ohio St.3d 385, 390, 715 N.E.2d 179 (1999); State ex rel. Perry v. Byrd, 8th Dist. Cuyahoga No. 109006, 2020-Ohio-34; and Dillingham v. Butler Cty. Prosecutor‘s Office, Ct. of Cl. No. 2018-01034PQ, 2018-Ohio-3654.

{¶ 4} The respondent argues that he has no duty to respond to Perry‘s request because he never received it. Supporting the prosecutor‘s motion for summary judgment is the affidavit of Brian Gutkoski, counsel for the prosecutor, in which he swears that the Cuyahoga County Prosecutor‘s Office maintains a records database wherein it logs receipt of the public records requests, that he searched that database, and that no public records requests have ever been received by the prosecutor‘s office from Daveion Perry. Coupling this sworn statement with Perry‘s admission that the United States Postal Service could not track his certified mail proves that Perry has not established by clear and convincing evidence that he has fulfilled the prerequisite for a public records mandamus action, i.e., an actual request was made. Accordingly, this court grants the respondent‘s motion for summary judgment and denies the application for a writ of mandamus.

{¶ 5} The prosecutor also seeks to have Perry declared a vexatious litigator. In 2016, Perry confessed and pleaded guilty to the aggravated murder of a 15-year old boy; the state agreed not to seek the death penalty as part of the plea bargain. Since then Perry has filed a delayed direct appeal. After thorough examination of the case, this court concluded that the appeal lacked any meritorious grounds and dismissed it pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). State v. Perry, 8th Dist. Cuyahoga No. 105307, 2017-Ohio-7324. He also filed motions to withdraw his guilty plea and motions to vacate his convictions. This court has affirmed the rulings of the trial court denying those motions and has warned Perry twice against filing frivolous proceedings. State v. Perry, 8th Dist. Cuyahoga No. 107596, 2019-Ohio-547, and State v. Perry, 8th Dist. Cuyahoga No. 108258, 2019-Ohio-3668. This court will again decline to declare Perry a vexatious litigator, because of the very different nature of this case.

{¶ 6} Accordingly, this court denies the application for a writ of mandamus. Relator to pay costs. This court directs the clerk of courts to serve all parties notice of this judgment and its date of entry upon the journal as required by Civ.R. 58(B).

{¶ 7} Writ denied.

_______________________________

KATHLEEN ANN KEOUGH, JUDGE

MARY EILEEN KILBANE, P.J., and

FRANK D. CELEBREZZE, JR., J., CONCUR