COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70274 STATE OF OHIO, EX REL. BENJAMIN : W. JOHNSON : : Relator : : JOURNAL ENTRY -vs- : AND : OPINION CLEVELAND POLICE DEPARTMENT : : Respondent : : DATE OF ANNOUNCEMENT : OF DECISION : AUGUST 30, 1996 CHARACTER OF PROCEEDING : Petition for Writ of Mandamus : JUDGMENT : Dismissed. DATE OF JOURNALIZATION : APPEARANCES: For Relator: For Respondent: Benjamin W. Johnson, Pro se Sharon Sobol Jordan Reg. No. A224-954 Dir. of Law P.O. Box 788 John Cullen Mansfield, Ohio 44901-0788 Assistant Dir. of Law Room 106 - City Hall 601 Lakeside Avenue Cleveland, Ohio 44114 -2- HARPER, P.J.: On February 28, 1996, pursuant to R.C. 149.43, the Ohio Public Records Act, the relator, Benjamin Johnson, commenced this mandamus action against the respondent, the Cleveland Police Department, Criminal Records Division (hereinafter "Cleveland"), to compel Cleveland to disclose all records relating to him, including witness statements, his own statements, Miranda statements, booking logs, warrants, capiases, detainers, investigatory reports, notes, scientific reports, transfer log books, and rap sheets. On April 30, 1996, Cleveland moved for summary judgment. Mr. Johnson filed his opposition on June 11, 1996, and Cleveland filed a reply brief on June 12, 1996. For the following reasons, this court grants Cleveland's motion for summary judgment and dismisses this mandamus action. Mr. Johnson is incarcerated in the Mansfield Correctional Institute. In letters to Cleveland, apparently sent in July 1995 and January 1996, Mr. Johnson requested, pursuant to the Federal Freedom of Information Act, disclosure of all records relating to 1 him. In the first letter Mr. Johnson agreed to pay any reasonable costs provided by Ohio statutes or regulations for searching, copying, and mailing the requested records. However, he also attached a poverty affidavit. Nowhere in the complaint or 1 The first letter is undated, but the next page in the attachments is a certificate of identity, dated July 6, 1995 and certifies that Mr. Johnson is a person seeking to obtain public records pursuant to R.C. 149.43. Apparently it was submitted with the first letter. -3- attachments does Mr. Johnson indicate that he has a designee who could come to Cleveland to obtain the requested records for him. The gravamen of Cleveland's dispositive motion is that under R.C. 149.43, State ex rel. Fenley v. Ohio Historical Society (1992), 64 Ohio St.3d 509, 597 N.E.2d 120 and State ex rel. Nelson v. Fuerst (1993), 66 Ohio St.3d 47, 607 N.E.2d 836, it has no duty to mail records to anyone, including incarcerated prisoners, such as Mr. Johnson. In these cases the supreme court reasoned that the wording of R.C. 149.43 requires only that records be made available for inspection and copying during regular business hours. The statute does not explicitly require a custodian of records to send copies by mail. The word "available" is not synonymous with "available by mail." The court opined that to impose the duty to send copies by mail, when no such duty is explicitly stated would amend the statute, usurping the role of the General Assembly. However, in State ex rel. Steckman v. Jackson (1994), 70 Ohio St.3d 420, 639 N.E.2d 83, the Supreme Court of Ohio held that a person who could not physically go to the records could appoint a designee to inspect, copy and obtain them. The supreme court and this court have repeatedly followed and applied this holding. In State ex rel. Carpenter v. Tubbs Jones (1994), 68 Ohio St.3d 181, 624 N.E.2d 1048, the supreme court affirmed a dismissal of a public records mandamus, because no designee came to inspect the records. In State ex rel. Nelson v. Tubbs Jones (1993) 67 Ohio St.3d 438, 619 N.E.2d 687, cert. denied (1994), 128 L.Ed.2d 751, 114 S.Ct. 1402 and State ex rel. Cheren v. -4- Chief of Police, Akron Municipal Police Department (1993), 67 Ohio St.3d 461, 619 N.E.2d 1024, the court affirmed dismissals because the respondents had no duty to perform the requested relief, mail copies of requested records. See also, State ex rel. Larson v. Cleveland Public Safety Director (July 21, 1995), Cuyahoga App. No. 69087, unreported and State ex rel. Dussell v. City of Lakewood (Sept. 26, 1994), Cuyahoga App. No. 66742, unreported. Additionally, Cleveland argued that it had no duty under the Federal Freedom of Information Act and no duty to provide copies for free. In his brief in opposition, Mr. Johnson clarified that he was not proceeding under the Federal Freedom of Information Act, but under R.C. 149.43. He further clarified that he was seeking Cleveland to mail him the records because he did not have a designee who could come to Cleveland to obtain the records for him. Mr. Johnson then argues that this court should not follow Fenley and its progeny because as applied to him it would violate the constitution and because those cases frustrate the remedial intent of the statute. In the first argument, Mr. Johnson asserts that as an incarcerated prisoner, he is a member of a protected class and Fenley deprives him of the liberty interest of obtaining public records. He then contends that the legislature intended the Ohio Public Records Act to be liberally construed to make records easily available to everyone. He attacks the distinctions the supreme court has made by noting that the court strictly construed the statute to formulate the "no duty to mail" rule because that -5- was not explicitly stated in the statute. However, the court allows designees, but R.C. 149.43 does not explicitly allow for designees either. These distinctions create an unfair condition in which persons, who cannot travel and cannot arrange a designee, are prevented from obtaining public records. These are powerful arguments. In Fenley Justices Douglas, Wright and Resnick dissented because that decision ran counter to the statute's explicitly stated purpose "to facilitate broader access to public records." Justice Douglas noted that R.C. 149.43 is a remedial statute and should be liberally construed to promote its object and assist parties in obtaining justice. Furthermore, the decision was a deviation from the court's earlier holdings to broaden access to public records. In Nelson in which Justices Douglas, Wright and Pfeifer dissented, Justice Wright voiced his fear that these decisions might violate the equal protection clause and sanction violations of the American with Disabilities Act of 1990. This court also has concern over the ramifications of Fenley and its progeny. If R.C. 149.43 is not amended to permit response through the mail, then it could appear that "the right to public records" is a function of wealth or circumstances. There are many people who want or need public records but who cannot travel to the government offices to obtain them. Those in prison, those who are too poor to afford transportation, and those who are too ill come immediately to mind. Many of these will be unwilling or unable to impose on friends or relatives to act as designees. Even if they are able to obtain a designee or travel the necessary distance, -6- this is an unnecessary and burdensome inconvenience and a waste of resources when the mail or electronic transfer can do the job more efficiently. Such conditions make the law appear arbitrary, capricious and unfair. Legislation should permit access by mail and other appropriate means. Nevertheless, Mr. Johnson's arguments are not legally sufficient. As noted above, the dissenting opinions in Fenley and Nelson raised the same or similar objections, but the Supreme Court of Ohio approved the "no duty to mail" rule and thus, rejected those arguments. Accordingly, this court, pursuant to stare decisis, must follow Fenley and its progeny and rule that mandamus does not lie in the present case, because Cleveland has no duty to mail records to anyone under R.C. 149.43. Thus, Cleveland's motion for summary judgment is granted, and this mandamus action is dismissed. Relator to pay costs. TERRENCE O'DONNELL, J., CONCUR; JOHN T. PATTON, J., CONCURS IN JUDGMENT ONLY. .