What does a person need to do to get statutory damages in a public records case? More than video tape the delivery of the written request according to a recent Ohio Supreme Court ruling.
In the case of State ex rel. Pietrangelo v. Avon Lake, Slip Opinion No. 2016-Ohio-5725, the plaintiff requested that the Ohio Supreme Court award statutory damages due to a police department’s failure to produce the requested records until almost three months after the initial request was made. This is arguably a violation of the city’s obligation to make records available “within a reasonable time.” R.C. 149.43(B)(1).
Under the Ohio Public Records Act, a requestor may be entitled to statutory damages because of a delay, but only if the requester delivers the request by hand or by certified mail. R.C. 149.43(C)(1).
Here, the video showed the plaintiff with the dated public records request, it showed the plaintiff exiting his car, and it showed a brief glimpse of a sign with an arrow pointing to the police department. According to the Ohio Supreme Court, however, this footage “fail[ed] to establish by clear and convincing evidence that [the plaintiff] delivered a written public-records request to the department.” Pieterangelo at ¶ 26. The Ohio Supreme Court reached this conclusion because the plaintiff held the public records request over the camera lens during most of the video and, as a result, “it [did] not show [the plaintiff] handing the document to anyone, or another hand taking the document from him.” Pieterangelo at ¶ 26.
Future public records requestors should take note of the high standard imposed by the Ohio Supreme Court in proving delivery. As the dissent noted, “the majority has imposed upon [the plaintiff] a burden of proof that far exceeds the evidentiary standard needed for proving hand-delivery of a public-records request. The majority seems to require evidentiary proof above even the criminal standard of beyond a reasonable doubt and require incontrovertible evidence. [The plaintiff] should take note of the burden placed upon him by the majority, and if he attempts a similar method to memorialize his hand-delivery of a public-records request in the future, he should be sure to capture himself handing the document to the employee of the entity from which he is seeking the public records.” Pieterangelo at ¶ 12.
To read this case, please click here.
Authors: Matthew John Markling and Patrick Vrobel
Note: This blog entry does not constitute – nor does it contain – legal advice. Legal jurisprudence is like the always changing Midwestern weather. As a result, this single blog entry cannot substitute for consultation with a McGown & Markling attorney. If legal advice is needed with respect to a specific factual situation, please feel free to contact a McGown & Markling attorney.