COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 67402 STATE OF OHIO EX REL. : FLORENCE STARR : : RELATOR : JOURNAL ENTRY : v. : AND : CITY OF BROOKPARK, OHIO : OPINION : : MOTION NO. 56000 RESPONDENT : DATE OF ANNOUNCEMENT OF DECISION: APRIL 30, 1996 CHARACTER OF PROCEEDING: MANDAMUS JUDGMENT: DISMISSED DATE OF JOURNALIZATION: APPEARANCES: For Relator: Florence Starr, pro se 3625 East 59 Street Cleveland, OH 44105 For Respondent: David A. Lambros, Esq. 5709 Smith Road Brook Park, OH 44142 -2- MATIA, P.J. Relator, Florence Starr, commenced this public records mandamus action against the respondent, the City of Brookpark, Ohio, Brookpark Police Department. In her complaint Ms. Starr alleges that the Brookpark police arrested her son, Anthony Starr, searched and confiscated his automobile, and seized certain items of personal property, including a leather vest, a leather jacket, two blankets, a box of tools and other items. On May 14, 1994, she requested copies of the following records from the respondent: all investigatory records, witness statements, police reports, inventory search records, the respondent's policy relating to inventory searches, records relating what happened to the property and any other records in the file. She also sought the return of the property taken in the search. When the respondent refused, she brought this action to compel the respondent to provide her with the confiscated property and copies of the requested records. After the respondent filed its answer, this court ordered the parties to brief the issues presented in this case: (1) Whether State ex rel. Steckman v. Jackson (1994), 70 Ohio St.3d 420 controls the release of the law enforcement records. (2) What is the legal basis for Ms. Starr's claim that the respondent provide her with Anthony Starr's personal property. If the basis is other than R.C. 149.43 (the Public Records Act), then is mandamus the proper remedy and does she have standing to bring such a claim. (3) Whether the written policy and records required by -3- R.C. 2933.41 (disposition of property held by law enforcement agency) are public records. This court further ordered the respondent to certify if it has such a policy and maintains the required records, whether it kept such records for the property confiscated from Mr. Starr, whether the respondent still has the property and, if not, what happened to it. The order explicitly provided for reply briefs. Both parties filed initial briefs substantially addressing the issues. Ms. Starr attacked Steckman as unwise and contrary to federal and common law. As for the personal property claim, she indicated that she was basing her claim upon R.C. 149.43 and would be satisfied by viewing the property. The respondent stated that it had mistakenly denied Ms. Starr her right to inspect and receive copies of records. Accordingly, it attached to its brief copies of the requested records, including incident reports, investigatory reports, cover letters and forms transmitting property to the BCI lab, waivers signed by Anthony Starr, inventory lists, prisoner receipt form, reports, various policies, addendums, and the relevant page from the Property Log Book. In addition, the Chief of Police in an affidavit stated that the two blankets and the box of tools were not confiscated, and that he has no knowledge concerning the disposition of the leather vest and two leather jackets. The court notes, however, that other records indicated that the clothing was submitted to the BCI lab. Neither party filed a reply brief. -4- The respondent attached the records directly to its brief and did not file them under seal. In addition to the admissions made in the brief, the respondent asked this court to rule that it had disclosed the records pursuant to R.C. 149.43. Ms. Starr did not dispute this, nor did she submit any evidence that other records existed which were not released. Thus, as to the requested records, as distinguished from personal property, this mandamus action is moot. Ms. Starr has received the requested relief, the release of the records. State ex rel. Fant v. Flaherty (1992), 62 Ohio St.3d 426, 583 N.E.2d 1313. It also appears that the claim for viewing the personal property is moot. For whatever reason, the respondent can no longer physically produce the property. Some of the items were never confiscated, some were introduced as evidence at trial, and some are unaccounted for after approximately ten years. If a respondent cannot fulfill a public records request because it does not have possession of the record, then there is no duty. Flaherty, 62 Ohio St.3d at 428. Moreover, Ms. Starr has not established that personal property is a record for purposes of R.C. 149.43. In order for the Public Records Act to apply, the request must be for a record. R.C. 149.011(G) defines "record" as "any document, device, or item, regardless of physical form or characteristic, created by or received by or coming under the jurisdiction of any public office of the state or its political subdivisions, which serves to document the organization, functions, policies, decisions, -5- procedures, operations, or other activities of the office." R.C. 1.42 provides the necessary rule of statutory construction: words shall be construed according to common usage. Articles of clothing, blankets, tools and other pieces of personal property are not generally considered records, nor do they document functions, policies or activities. Black's Law Dictionary (4 Ed. Rev. 1968) 568 defines "document" in terms of writing. Moreover, R.C. 2933.41's specific rules regarding the disposition of personal property substantiates that such articles are not records; rather, personal property confiscated in a search is held apart and requires its own rules. Therefore, because the articles of personal property were not records, the respondent had no duty under R.C. 149.43 to provide them for viewing, and mandamus will not lie pursuant to that statute to compel such disclosure. State ex rel. Fant v. Enright (1993), 66 Ohio St.3d 186, 610 N.E.2d 997; State ex rel. Fant v. Mengel (1992), 62 Ohio St.3d 455, 584 N.E.2d 664. Accordingly, the above-captioned mandamus action is dismissed. Respondent to pay costs. DAVID T. MATIA, PRESIDING JUDGE .