COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA No. 72199 STATE OF OHIO, EX REL., : PETITION FOR WRIT OF ROBERT COBB : MANDAMUS : Relator : : vs. : JOURNAL ENTRY : CHIEF MITCHELL GUYTON : AND : : OPINION Respondent : : DATE OF ANNOUNCEMENT : APRIL 16, 1998 OF DECISION : : JUDGMENT : WRIT DISMISSED. DATE OF JOURNALIZATION : APPEARANCES: For Relator: For Respondent: ROBERT COBB, PRO SE JAMES H. HEWITT, ESQ. #164-708 Director of Law Grafton Correctional Inst. RONDA G. CURTIS, ESQ. 2500 S. Avon-Belden Road Assistant Director of Law Grafton, OH 44094-9430 City of East Cleveland 14340 Euclid Avenue East Cleveland, OH 44112 PATTON, J. On March 17, 1997, the relator, Robert Cobb, commenced this mandamus action, pursuant to R.C. 149.43, the Ohio Public Records -2- Act, against the respondent, Mitchell Guyton, Chief of Police of the East Cleveland Police Department, to compel the release of a booking card and a personal inventory list, which were prepared when Mr. Cobb was arrested for assault, disorderly conduct and resisting arrest in East Cleveland on May 22, 1981. After the filing of preliminary motions and the respondent's answer, Mr. Cobb on September 2, 1997, filed a motion to show cause why the respondent should not be held in contempt for failing to disclose the requested records. The parties then filed briefs and reply briefs to this motion. On December 17, 1997, this court converted those filings to cross-motions for summary judgment and established a schedule to submit further briefs or evidentiary materials pursuant to Civ.R. 56. On March 2, 1998, Mr. Cobb filed the last brief pursuant to that order, and this matter is now ripe for resolution. For the following reasons, this court grants the respondent's motion for summary judgment, denies Mr. Cobb's his motion for summary judgment, and dismisses this writ action. -3- FACTUAL AND PROCEDURAL BACKGROUND On May 22, 1981, Mr. Cobb was arrested in East Cleveland for assault, disorderly conduct and resisting arrest. Since then Mr. Cobb has made on and off attempts to obtain copies of his booking card, personal inventory list or arrests sheet. Although Mr. Cobb did not present dated material, such as a letter, he stated in his affidavit that he sought release of these records in 1981 without success. Mr. Cobb did present an undated letter in which he asked the East Cleveland Police Department to send him a copy of his arrest sheet showing the time of his release from jail. At the bottom of this letter is a reply dated June 28, 1983, from Debra Eddie of the Records Division; she related that it was police department policy not to send police records through the mail unless there is a proper request from a government agency, such as the Adult Parole Authority. Approximately a month later, then Police Chief William Kelly responded that it was the department's policy not to make any of the booking records available for public consumption. He did recite the charges and the date of arrest. Beyond that Chief Kelly stated any records would have to be subpoenaed. Mr. Cobb a further stated in his affidavit that he tried to obtain the records again in 1991, but received no reply from East Cleveland. He presented no documentary evidence to support this statement. In early 1997, Mr. Cobb resumed his efforts to obtain the records. On February 4, 1997, he wrote to the respondent and made -4- a formal public records request for the two records. Because he was in prison, he appointed his wife as his designee or surrogate in obtaining public records. See generally, State ex rel. Steckman v. Jackson (1994), 70 Ohio St.3d 420, 639 N.E.2d 83 and State ex rel. Finnerty v. Custodian of Records, Strongsville Police Department (1994), 96 Ohio App.3d 569, 645 N.E.2d 780. Mr. Cobb stated that the East Cleveland police refused to cooperate; indeed, they treated his designee rudely in refusing to disclose the records. Accordingly, he commenced this public records mandamus action. The respondent's answer, filed on July 15, 1997, admitted that the booking card and personal inventory list has been identified and is available to the Relator or his designee during normal business hours at the office of the City of East Cleveland Law Department. (Paragraph Three of the Answer.) Furthermore, the respondent admitted the duty to disclose said records upon receiving a valid request, but denied that any such request had been appropriately tendered. (Paragraph Five of the Answer.) Additionally, the City of East Cleveland Law Director sent Mr. Cobb a letter stating that the records had been identified and explain- ing the protocol and costs for obtaining them. In his motion to show cause, filed September 2, 1997, Mr. Cobb stated that his designee went to the East Cleveland Law Department on July 22, 1997, and requested the records. She was informed that no such booking card and personal inventory list were available. On August 8, 1997, the designee went to the Police Chief's office -5- and spoke with the Chief's secretary, who informed her that the records were waiting at the record office. However, when the designee went to the record office, the officer informed her that no such records existed. The officer told the designee to call somebody else, who told her to call yet somebody else, who informed her that the records never existed. On August 12, 1997, Mr. Cobb prepared a notarized special power of attorney formally appointing Elnorris Brown, his wife, as designee. Again, the designee, presenting the power of attorney, asked for the records at the East Cleveland Law Department, and again, she was informed that there were no such records. Mr. Cobb in his motion repeated that Elnorris Brown was treated discourte- ously throughout this process and argued that the respondent has been acting in bad faith over the last two decades. He concluded by asking this court to order the respondent to show cause why he should not be held in contempt of his duty to perform his lawful duty. (9-2-97 motion, pg. 5.) On September 30, 1997, the respondent filed his response to Mr. Cobb's motion to show cause and supported it with his own affidavit and the affidavit of David Dearden who is the commander of the Administrative Services Division. Although Chief Guyton maintained that he never received the February 7, 1997 letter requesting the relevant records, when Mr. Cobb filed the mandamus action, a search was conducted of the police records to retrieve the requested records. All that was found was an arrest history card. The respondent believed in good faith that this was the -6- record sought and made it available to Mr. Cobb and/or his designee. However, the designee stated that the arrest history card did not satisfy the request. Thereafter, the East Cleveland Police Department extensively reviewed their records, and could not find the requested records. Accordingly, the respondent concluded that pursuant to department policy to destroy old records, the requested records had been destroyed during the sixteen years since the arrest. In the last two paragraphs of his affidavit Commander Dearden stated that he supervised a search of records and must advise that the booking card and personal inventory lists from the May 22, 1981 arrest no longer exist. *** [I]t has been the City of East Cleveland's practice to maintain records for a period of ten (10) years. Thereafter, the records are destroyed. In his response Mr. Cobb maintained that the excuses, admissions, withdrawals and inconsistencies he experienced over the last sixteen years can only establish the bad faith of the City of East Cleveland in refusing to release the requested records. After reviewing this material this court converted the parties' filings to cross-motions for summary judgment and established a schedule for the submission of briefs and other evidentiary materials. Mr. Cobb filed a discovery request asking the respondent to provide (1) the requested records, (2) the specific ordinance or rule which provides for the disposal of records and (3) and records relating to disposals. He also filed motions to compel discovery. -7- On February 17, 1998, the respondent filed its supplemental brief which included another affidavit from Commander Dearden. In the affidavit Commander Dearden stated that the City of East Cleveland does not have a specific ordinance pertaining to the retention and/or disposal of police records. Instead, the police department uses a schedule of record retention and destruction pursuant to R.C. 149.39; the affidavit also authenticated a copy of that schedule which was attached as Exhibit A-1. Pursuant to this schedule, which was approved in 1978, the police department would keep the property slip for two years and the booking card for ten years before destroying them. Commander Dearden reiterated that he conducted a search for the requested records in his department and was unable to find them. He opined that they no longer existed. Mr. Cobb filed two responses, one on February 24, 1998, and the other on March 2. The February 24 response was Mr. Cobb's affidavit, authenticatingthe letters and records he had previously attached and reiterating his long standing, good faith efforts to obtain the records. The March 2 filing argued that the respondent could still fulfill his duty to release the public record by recreating the booking card and property slip; indeed, this court should find the respondent negligent in executing his duties under the public record law and order him to recreate the records and release them. DISCUSSION OF LAW First, this court denies Mr. Cobb's discovery motions as moot. The attachments to the respondent's supplement to the motion for -8- summary judgment fulfill Mr. Cobb's request. His first discovery item, the requested records themselves, are not available. Furthermore, it is rather anomalous in a public records mandamus action to seek discovery of the requested, disputed records themselves. Mr. Cobb's other requests were for the specific city ordinance and/or rule providing for disposal of records and any rules or records of such disposals. Commander Dearden's affidavit satisfies this request by stating that no specific ordinance exists for the disposal of records and by authenticating the attached schedule for the retention and disposal of records. R.C. 149.43(B) requires that all public records shall be promptly made available for inspection to any person during regular business hours. Subsection (C) provides a mandamus action as the remedy for the failure of governmental unit to disclose public records. For public records mandamus actions, the relator must establish the clear, legal right to disclosure and the respondent's clear legal duty to do so. Because mandamus is the statutorily mandated remedy for nondisclosure of public records, it is not necessary to establish a lack of adequate remedies. State ex rel. Steckman v. Jackson (1994), 70 Ohio St.3d 420, 639 N.E.2d 83. Moreover, mandamus is an extraordinary remedy which is to be exercised with caution and only when the right is clear. It should not issue in doubtful cases. State ex rel. Taylor v. Glasser (1977), 50 Ohio St.2d 165, 364 N.E.2d 1; State ex rel. Shafer v. Ohio Turnpike Commission (1953), 159 Ohio St. 581, 113 N.E.2d 14; State ex rel. Connole v. Cleveland Board of Education (1993), 87 -9- Ohio App.3d 43, 621 N.E.2d 850; and State ex rel. Dayton-Oakwood Press v. Dissinger (1940), 32 Ohio Law Abs. 308. It is further well established that the issuance of a writ of mandamus rests within the discretion of the court. State ex rel. Pressley v. Industrial Commission of Ohio (1967), 11 Ohio St.2d 141, 228 N.E.2d 631; State ex rel. Bennet v. Lime (1978), 55 Ohio St.2d 62, 378 N.E.2d 152; and State ex rel. Mettler v. Stratton (1941), 139 Ohio St.86, 38 N.E.2d 393. R.C. 149.39 creates in each municipality a records commission to provide rules for retention and disposal of records. This statute also provides that the auditor of state and the Ohio historical society shall review the schedule of records to be disposed for their approval or disapproval. The City of East Cleveland's schedule for record retention and destruction fully complies with R.C. 149.39. It is based directly on the statute, and the City Records Commission, the auditor of state and the Ohio historical society approved the schedule. In State ex rel. Robert Pinkava v. Clerk, Euclid Municipal Court (Dec. 13, 1994), Cuyahoga App. No. 69014, unreported, the relator sought a copy of a 1972 citation against him for disturbing the peace and the narrative that served in lieu of transcript in his case. The respondent established that pursuant to court order and the relevant statute, records from old cases, including the relator's case, had been properly destroyed. This court held that the respondent had no duty to disclose records which no longer existed. Similarly, in State ex rel. Alfred Calabrese v. Clerk of -10- Courts (Jan. 2, 1997), Cuyahoga App. No. 71534, unreported, the relator sought disclosure of records relating to his arrest and conviction in 1981. The respondent's dispositive motion estab- lished that most of the requested records had been destroyed as permitted by the proper statutes. As to the destroyed records this court ruled that a writ of mandamus will not issue to compel a custodian of public records to furnish records which are not in his possession or control. Id. at pg. 3. See also, State ex rel. Fant v. Mengel (1991), 62 Ohio St.3d 197, 580 N.E.2d 1085 and Hughes v. City of North Olmsted (Jan. 23, 1997), Cuyahoga App. No. 70705, unreported. In the present case in the exercise of its discretion, this court declines to issue a writ of mandamus compelling the respon- dent to disclose the requested records. It is undisputed that the requested records were made seventeen years ago. The City of East Cleveland since 1978 has had a proper schedule for the disposal of old records. The relevant records come within the schedule for disposal. This court has ruled that custodians of public records have no duty to disclose records which do not exist because they have been destroyed pursuant to the relevant statutes, rules, schedules and procedures. So too, in this case the age and nature of the requested records, the schedule of retention and disposal, and affidavits affirming that the records are not to be found convince this court that the records no longer exist. Prolonging this case or conducting exhaustive discovery will not change that reality. -11- Moreover, declaring a custodian negligent for failing to execute his duties under R.C. 149.43 over the span of two decades is beyond the scope of mandamus and beyond the jurisdiction of this court. State ex rel. Coyne v. Todia (1989), 45 Ohio St.3d 232, 543 N.E.2d 1271 and State ex rel. Neer v. Industrial Commission of Ohio (1978), 53 Ohio St.2d 22, 371 N.E.2d 842. A custodian also has no duty to create records to satisfy a public records request. Fant, supra. and State ex rel. Scanlon v. Deters (1989), 45 Ohio St.3d 376, 544 N.E.2d 680. Accordingly, the respondent's motion for summary judgment is granted, and this writ action is dismissed. Relator to pay costs. NAHRA, P.J. SPELLACY, J., CONCUR. .