[Cite as State ex rel. Morabito v. Cleveland, 2012-Ohio-6012.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 98829
STATE, EX REL. DEBORAH MORABITO
RELATOR
vs.
CITY OF CLEVELAND, ET AL.
RESPONDENTS
JUDGMENT:
WRIT DENIED
Writ of Mandamus
Motion Nos. 459559, 460360, 460701
Order No. 460900
RELEASE DATE: December 19, 2012
ATTORNEYS FOR RELATOR
Matthew M. Nee
Stephen D. Bittinger
Nee/Bittinger, L.L.C.
27476 Detroit Road, Suite 104
Westlake, Ohio 44145
ATTORNEYS FOR RESPONDENTS
Barbara A. Langhenry
Interim Director of Law
William M. Menzalora
Assistant Director of Law
Alejandro V. Cortes
Assistant Director of Law
City of Cleveland Department of Law
601 Lakeside Avenue, Room 106
Cleveland, Ohio 44114-1077
JAMES J. SWEENEY, P.J.:
{¶1} On August 20, 2012, the relator, Deborah Morabito, commenced this public
records mandamus action against the respondents, the city of Cleveland, Director of Public
Safety Martin Flask, and Interim Law Director Barbara Langhenry (hereinafter collectively
referred as “Cleveland”). Morabito seeks the videotapes of the sixth floor detention
center where her son, James Morabito, was confined from February 18-19, 2011. On
October 22, 2012, Cleveland filed a motion to dismiss, inter alia, on the grounds of
mootness. This court converted the motion to dismiss to a motion for summary judgment
under Civ.R. 56 and set forth a briefing schedule. On November 21, 2012, Morabito
filed her brief in opposition, an amended complaint, and a motion for attorney fees. On
December 5, 2012, the respondents moved to strike the amended complaint and filed a
brief in opposition to the motion for attorney fees. For the following reasons, this court
grants the respondents’ motion for summary judgment, denies the application for a writ of
mandamus, denies the motion for attorney fees, and denies the motion to strike the
amended complaint as moot.
FACTUAL AND PROCEDURAL BACKGROUND
{¶2} The parties agree that James Morabito was arrested in Cleveland on
February 18, 2011, and released the next day. Deborah Morabito asserts that the police
used excessive force on her son while he was in custody and that the mistreatment
contributed to his death. She states that he suffered from several conditions, including
Tourette syndrome, depression and bipolar disorder; that the police refused to get his
medication and beat him; and that subsequently he laid down on a road and was runover
by a motor vehicle on April 16, 2011.
{¶3} Pursuant to a Schedule of Records Retention and Disposition, adopted in
2008, surveillance video and audio recordings in Cleveland police district buildings are
retained for 30 days. (Ex. A-1 to Cleveland’s December 5, 2012 filing.) Upon the
expiration of the 30-day retention period, Cleveland’s DVR devices are programmed to
automatically overwrite the recorded data. This is a continuous process for all such data,
and the data is preserved only if there is a specific request for video footage. (Paragraph
5 of affidavit of Public Safety Systems Manager Quenton Cantionez.) In the instant case,
Cleveland Police Lt. David Carroll on February 22, 2011, requested various camera views
of the detention center for February 18, 2011, between 6:00 p.m. and 8:00 p.m.
Cantionez fulfilled that request the same day.
{¶4} On April 29, 2011, Morabito, through attorney Edwin Vargas, made a public
records request for a copy of all videotapes of the sixth floor detention center while James
Morabito was confined there. Although the letter request refers to documents, the
request does not specify any records other than the videotape. Cleveland replied on May
20, 2011 that it was unable to comply with the request at this time because there was an
ongoing investigation.
{¶5} Approximately one year later, on May 2, 2012, Morabito made another
public records request for “all documents, papers, written record either physical or
electronic and/or files related to Mr. Morabito’s entire detention and/or any investigation
into his detention.” (Ex. C to the Complaint.) That same day Cleveland responded to the
request by sending 113 pages of records to Morabito.1 However, Cleveland did not
provide any videotapes, stating that it had not received the tapes, and that there were
mechanical difficulties that were being addressed. On May 18, 2012, Morabito again
requested the videotapes. When Cleveland did not produce them, she commenced this
mandamus action.
{¶6} On August 30, 2012, Cleveland sent a “copy of the videotape that was
responsive to the request.” (Paragraph 7 of Kim Roberson’s affidavit.) On or about
September 11, 2012, Morabito supplemented her request by asking for records or
information on James Morabito’s booking, interrogation, discharge, and any other
documents to respond to the request for information that had not already been produced.
Morabito also noted that the produced videotape did not appear to be complete for James
Morabito’s entire confinement; she asked Cleveland to determine whether any more
videotapes existed. Morabito confirmed this exchange in an October 2, 2012 letter.
{¶7} Cleveland responded by producing the records related to James Morabito’s
booking, discharge, citation, and summons. In a telephone conversation between
Morabito’s lawyer and an assistant director of law, it was represented that there were no
records related to an interrogation because there was no interrogation; that the city
1
In its cover letter, Cleveland indicated that it redacted certain information pursuant to
established exemptions, such as social security numbers. The redactions are not at issue in this case.
withheld James Morabito’s medical records because of federal law requirements, and that
the videotape was destroyed approximately 30 days after it was created pursuant to the
retention schedule. Morabito’s attorney then asked for written confirmation of the
following: (1) that there was no interrogation; (2) that the only videotape that ever existed
has either been released or destroyed; (3) how, when, and by whom the videotape was
destroyed; and (4) whether the tape had been digitally stored and available through
forensic retrieval. The attorney also asked for a copy of the retention schedule, the names
and ID badges of all police officers that appear in the videotape that has been released, and
the medical records upon presentation of the necessary release forms. The attorney
memorialized this conversation in an October 12, 2012 letter to the assistant director of
law. (Ex. J to the brief in opposition to the motion for summary judgment.)
{¶8} Cleveland filed its motion to dismiss on October 22, 2012, and argued
standing, procedural defects, and mootness.2 Cleveland did not file an answer. The court
converted the motion to dismiss to a motion for summary judgment.
{¶9} Morabito responded by her November 21, 2012 filings. Morabito argues
that the case is not moot because Cleveland has not confirmed in writing that the videotape
was destroyed, and has not explained exactly when and how and by whom it was
destroyed, and has not addressed whether the tape was saved to a digital hard drive and
2
Cleveland argued that in the requests, Vargas identified himself as the attorney for James
Morabito; thus, Deborah Morabito was not the person making the request and did not have standing to
commence the public records mandamus action. Additionally, the “swear to everything” affidavit
did not comply with Loc.App.R. 45 and State ex rel. Leon v. Cuyahoga Cty. Court of Common Pleas,
123 Ohio St.3d 124, 2009-Ohio-4688, 914 N.E.2d 402.
could be retrieved. Moreover, Cleveland has not identified the officers in the tape. Nor
has it released the retention schedule. Invoking the Civ.R. 15 right to amend the
complaint at any time before a responsive pleading is served, Morabito complains that
Cleveland violated the public records act, inter alia, by failing to provide a written
explanation for the denial of public records. However, the demand for relief seeks to
compel Cleveland to immediately make available the requested records for inspection and
copying in accordance with R.C. 149.43 along with statutory damages and mandatory
attorney fees.
{¶10} In its December 5, 2012 response, Cleveland attached the relevant retention
schedule and the affidavit of Cleveland’s Public Safety Systems Manager, Quenton
Cantionez. In that affidavit, Cantionez swears that after 30 days, Cleveland’s DVR
devices are programmed to automatically overwrite the recorded date on a continuous
basis, and that the recorded data cannot be retrieved once it has been overwritten.
LEGAL CONCLUSIONS
{¶11} Prescinding the issues of standing, pleading defects, and the propriety of the
amended complaint, this court concludes that this public records mandamus action is moot.
In Harless v. Willis Day Warehouse Co., Inc., 54 Ohio St.2d 64, 66, 375 N.E.2d 46
(1978), the Supreme Court of Ohio stated the appropriate standard for granting summary
judgment:
Appositeness of rendering a summary judgment hinges upon the tripartite
demonstration: (1) that there is no genuine issue as to any material fact; (2)
that the moving party is entitled to judgment as a matter of law, and (3) that
reasonable minds can come to but one conclusion, and that conclusion is
adverse to the party against whom the motion for summary judgment is
made, who is entitled to have the evidence construed most strongly in his
favor.
{¶12} Furthermore, when a motion for summary judgment is made, the nonmoving
party may not rest on the mere allegations of his pleading, but his response, by affidavit or
as otherwise provided in Civ.R. 56, must set forth specific facts establishing the existence
of a genuine triable issue. State ex rel. Flagner v. Arko, 83 Ohio St.3d 176, 177,
1998-Ohio-127, 699 N.E.2d 62.
{¶13} In viewing all the evidence in the light most favorable to Morabito, this
court rules that there are no genuine issues of fact to be resolved. The facts before the
court are that Cleveland videotapes the detention center. Unless a request is made to save
a recording, the video recorder automatically overwrites the recording after 30 days. Once
the recording is overwritten, it cannot be retrieved. In the instant case, a request was
made for part of the desired recordings within the 30 days; that what was saved was
released. Morabito made her request for the video recordings more than 60 days after the
incident. There is no evidence that any of the desired recording survived until April 29,
2011, except for that portion that Lt. Carroll requested. Morabito does not set forth
specific facts to raise a genuine issue of fact, but through a series of questions endeavors to
conjure the specter of doubt. Such questions are not the requisite clear and convincing
evidence that more of the recording exists. Strothers v. Norton, 131 Ohio St.3d 359,
2012-Ohio-1007, 965 N.E.2d 282; and State ex rel. Chatfield v. Gammill, 132 Ohio St.3d
36, 2012-Ohio-1862, 968 N.E.2d 477. Furthermore, the other actual record requested,
the retention schedule, has been released. Cleveland had previously released the other
requested records.
{¶14} The other matters arguably requested in the amended complaint —
written confirmation of the following: (1) that James Morabito was not interrogated; (2)
that no more of the videotape showing James Morabito exists; (3) the names and ID
badges of all police officers that appear in the video; (4) that other video showing James
Morabito existed; and (5) why, how, when, and by whom the video was destroyed — are
not authentic public records requests, but requests for information outside the scope of
R.C. 149.43. Under the public records statute, the government has the duty to supply
records, not information, and the government has no duty to create records to meet a
requester’s demand. State ex rel. Lanham v. Ohio Adult Parole Auth., 80 Ohio St.3d 425,
1997-Ohio-104, 687 N.E.2d 283; State ex rel. Mayrides v.Whitehall, 62 Ohio St.3d 203,
580 N.E.2d 1089 (1991); State ex rel. Warren v. Warner, 84 Ohio St.3d 432,
1999-Ohio-475,704 N.E.2d 1228; and State ex rel. Fant v. Tober, 8th Dist. No. 63737,
1993 Ohio App. LEXIS 2591. Nor is there a duty to provide records that no longer exist.
State ex rel. Chatfield. Therefore, the public records claim is moot. Cleveland has
provided all the requested existing, non-exempt records, and has established that the
desired videotapes no longer exist.
{¶15} Although Morabito sought statutory damages in her demand for judgment,
she is not entitled to them. First, she did not specifically argue for them in her R.C.
149.43(C) motion. State ex rel. Data Trace Information Servs., L.L.C. v. Cuyahoga Cty.
Fiscal Officer, 131 Ohio St.3d 255, 2012-Ohio-753, 963 N.E.2d 1288. More importantly,
there is no evidence before this court that she transmitted her public records request by
hand delivery or certified mail. R.C. 149.43(C)(1) conditions an award of statutory
damages upon transmitting the request by hand delivery or certified mail.
{¶16} Similarly, the court declines to award attorney fees. Recently, the
Supreme Court of Ohio has ruled that an award of attorney fees or statutory damages is
dependent upon showing the release of the records is more for the public benefit than for
the requester’s benefit. State ex rel. Dawson v. Bloom-Carroll Local School Dist., 131
Ohio St.3d 10, 2011-Ohio-6009, 959 N.E.2d 524 ¶ 34; and State ex rel. Beacon Journal
Publishing Co. v. Akron, 104 Ohio St.3d 399, 2004-Ohio-6557, 819 N.E.2d 1087. In
her motion for attorney fees, Morabito does not proffer a public benefit, other than
ensuring the fulfillment of public records duties. This court has ruled that such a proffer
is insufficient. State ex rel. Petranek v. Cleveland, 8th Dist. No. 98026, 2012-Ohio-2396.
Furthermore, the facts of this case indicate the request is for a personal benefit, e.g., an
auxiliary discovery tool. Such is an insufficient basis for attorney fees. State ex rel.
Cavanagh v. Cleveland, 8th Dist. No. 96116, 2011-Ohio-3840.
{¶17} Accordingly, this court grants the respondents’ motion for summary
judgment, denies the application for a writ of mandamus, and denies the relator’s motion
for attorney fees. Respondents to pay costs. This court directs the clerk of court to
serve all parties notice of this judgment and its date of entry upon the journal as required
by Civ.R. 58(B).
{¶18} Writ denied.
JAMES J. SWEENEY, PRESIDING JUDGE
COLLEEN CONWAY COONEY, J., and
SEAN C. GALLAGHER, J., CONCUR