[Cite as HSH Investigations, L.L.C. v. Stark Cty. Sheriff's Office, 2021-Ohio-2705.]
HSH INVESTIGATIONS LLC Case No. 2021-00285PQ
Requester Special Master Jeff Clark
v. REPORT AND RECOMMENDATION
STARK COUNTY
SHERIFF'S OFFICE
Respondent
{¶1} The Ohio Public Records Act (PRA) requires copies of public records to be
made available to any person upon request. The state policy underlying the PRA is that
open government serves the public interest and our democratic system. To that end, the
public records statute must be construed liberally in favor of broad access, with any
doubt resolved in favor of disclosure of public records. State ex rel. Rogers v. Dept. of
Rehab. & Corr., 155 Ohio St.3d 545, 2018-Ohio-5111, 122 N.E.3d 1208, ¶ 6. This
action is filed under R.C. 2743.75, which provides an expeditious and economical
procedure to enforce the PRA in the Court of Claims.
{¶2} On or about April 6, 2021, requester HSH Investigations made a public
records request to respondent Stark County Sheriff’s Office for
any and all records/evidence pertaining to case, regarding Daemon Ford
DOB: 6/8/77, who was arrested on indictment issued 12/12/14. Mr. Ford
was arrested on 12/16/2014 by Stark County Sheriff’s Department on 25
different charges. Any reports to include investigative reports, warrants,
witness statements (video or written), lab reports, body cams, wire taps,
evidence, deputy’s involved and/or any other information about this case
or charges. Any Confidential Informants and promises or payments made
to them in the investigation. I would also like to obtain any charges,
statements, interviews (video, recorded, or written) promises made
pertaining to individuals listed. Please send all requested information
electronically to hshinvestigation@gmail.com or by mail to HSH
Investigations PO BOX 201722, Denver CO 80220. Thank you for your
time and consideration of my request.
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Others involved:
[16 names with DOBs]
(Complaint at 3.) On May 4, 2021, the Sheriff’s Office denied the request because HSH
made the request on behalf of a client who was a person incarcerated pursuant to a
criminal conviction and had not submitted the court finding required for an inmate to
obtain records concerning any criminal investigation or prosecution. (Id. at 4.) On
May 25, 2021, HSH filed a complaint pursuant to R.C. 2743.75 alleging failure of the
Sheriff’s Office to provide access to public records in violation of R.C. 149.43(B).
Following unsuccessful mediation, the Sheriff’s Office filed a motion to dismiss or
alternatively for summary judgment (Response).
Motion to Dismiss
{¶3} To dismiss a complaint for failure to state a claim upon which relief can be
granted, it must appear beyond doubt that the claimant can prove no set of facts
warranting relief after all factual allegations of the complaint are presumed true and all
reasonable inferences are made in claimant’s favor. State ex rel. Findlay Publishing Co.
v. Schroeder, 76 Ohio St.3d 580, 581, 669 N.E.2d 835 (1996). As long as there is a set
of facts consistent with the complaint that would allow the claimant to recover, dismissal
for failure to state a claim is not proper. State ex rel. V.K.B. v. Smith, 138 Ohio St.3d 84,
2013-Ohio-5477, 3 N.E.3d 1184, ¶ 10.
{¶4} The Sheriff’s Office argues the complaint fails to state a claim because 1)
R.C. 149.43(B)(8) bars the designee of an incarcerated person from requesting records
of any law enforcement investigation, 2) state and federal law prohibits disclosure of
requested electronic surveillance records, 3) the claim for production of records is
barred by res judicata, 4) records that would disclose the identity of uncharged
suspects, confidential sources, and specific confidential investigatory techniques or
procedures are excepted from disclosure, and 5) the complaint is moot. On review,
none of these defenses is conclusively shown on the face of the complaint and the
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attachments. Moreover, as the matter is now fully briefed these arguments are
subsumed in the Sheriff’s Office’s defense on the merits. It is therefore recommended
that that the motion to dismiss be denied.
Initial Burden of Proof
{¶5} A requester must establish a public records violation by clear and convincing
evidence. Hurt v. Liberty Twp., 2017-Ohio-7820, 97 N.E.3d 1153, ¶ 27-30 (5th Dist.). At
the outset, a requester bears the burden to show that he seeks identifiable public
records pursuant to R.C. 149.43(B)(1). Welsh-Huggins v. Jefferson Cty. Prosecutor’s
Office, Slip Opinion No. 2020-Ohio-5371, ¶ 33. The parties do not dispute that many
requested items are records kept by the Sheriff’s Office.
{¶6} Analysis next turns to two threshold defenses; res judicata and R.C.
149.43(B)(8).
Res Judicata
{¶7} The doctrine of res judicata provides that a “valid, final judgment rendered
upon the merits bars all subsequent actions based upon any claim arising out of the
transaction or occurrence that was the subject matter of the previous action.” Grava v.
Parkman Twp., 73 Ohio St.3d 379, 653 N.E.2d 226 (1995), syllabus. “[A]n existing final
judgment or decree between the parties to litigation is conclusive as to all claims which
were or might have been litigated in a first lawsuit.” Id. at 382.
{¶8} The Sheriff’s Office states that a previous determination precludes HSH
from asserting any set of facts upon which relief may be granted, referencing the
criminal court’s post-conviction denial of a request made by Daemon Ford “to release
108 lab reports along with the police reports that show the alleged incidents where we
were found in possession of the alleged drugs.” (Response at 9-10; Exh. F and G.)
However, HSH was not a party to the criminal proceeding. Nor is it clear that Ford was
requesting a finding from the criminal court “that the information sought in the public
record is necessary to support what appears to be a justiciable claim of the person” as
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required by R.C. 149.43(B)(8). What is clear is that the criminal court disposed of the
motion as a post-trial request for discovery rather than either a public records request or
a request for an R.C. 149.43(B)(8) finding. The trial court’s judgment entry held only that
“[t]here is no right to discovery or to compel production of documents in a postconviction
relief proceeding,” citing an appellate decision also limited to denial of any post-
conviction right to discovery: State v. Lange, 5th Dist. Stark No. 2009 CA 00187, 2010-
Ohio-3975, ¶ 21. (Exh. G.) The entry contains no determination as to whether the
records sought were “necessary to support what appears to be a justiciable claim of”
Mr. Ford.
{¶9} The Sheriff’s Office cites State ex rel. Barb v. Cuyahoga Cty. Jury Commr.,
8th Dist. Cuyahoga No. 95005, 2010-Ohio-6190, aff’d, 128 Ohio St.3d 528, 2011-Ohio-
1914, 947 N.E.2d 670, as an example of res judicata barring a public records request by
a subsequent designee. However, the facts of that case are inapposite. Barb framed his
request as one under the Public Records Act and sought to enforce it through a
mandamus action. Id. at ¶ 4. On the evidence before this court, the special master
concludes that the decision attached as Exh. G was not between the parties to this
action and did not determine a public records claim arising out of the transaction or
occurrence that is the subject matter of the instant action. The special master
recommends the court find that HSH’s claim is not barred by res judicata.
Inmate Request for Records of Criminal Investigation or Prosecution
{¶10} Although neither Ford nor HSH have obtained a prior determination to
which res judicata applies, HSH is bound by Ford’s R.C. 149.43(B)(8) requirements as
his designee or in privity at the time of the instant request. State ex rel. Barb v.
Cuyahoga Cty. Jury Commr., 128 Ohio St.3d 528, 2011-Ohio-1914, 947 N.E.2d 670 ¶
1. Accord State ex rel. Summers v. Fox, Slip Opinion No. 2020-Ohio-5585, ¶ 30. The
status of privity or designee must be shown by clear and convincing evidence. Id. at ¶
33.
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{¶11} R.C. 149.43(B)(8) provides:
A public office or person responsible for public records is not required to
permit a person who is incarcerated pursuant to a criminal conviction * * *
to inspect or to obtain a copy of any public record concerning a criminal
investigation or prosecution * * *, unless the request to inspect or to obtain
a copy of the record is for the purpose of acquiring information that is
subject to release as a public record under this section and the judge who
imposed the sentence * * *, or the judge’s successor in office, finds that
the information sought in the public record is necessary to support what
appears to be a justiciable claim of the person.
R.C. 149.43(B)(8) (formerly R.C. 149.43(B)(4)) “clearly was drafted to restrict the ability
of inmates to obtain what would otherwise be easily obtainable by noninmates.” State
ex rel. Russell v. Thornton, 111 Ohio St.3d 409, 2006-Ohio-5858, 856 N.E.2d 966, ¶ 15.
“The language of the statute is broad and encompassing,” and “[t]he General Assembly
clearly evidenced a public-policy decision to restrict a convicted inmate’s unlimited
access to public records in order to conserve law enforcement resources.” Id. at ¶ 14.
{¶12} In its denial letter, the Sheriff’s Office referenced HSH’s verbal confirmation
that inmate Daemon Ford was its “client” for the purposes of this public records request.
(Complaint at 4.) The parties do not dispute that Ford was a person incarcerated
pursuant to a criminal conviction at the time of the request. (Id.; Response at 10.) HSH
responded with “Thank you for your response in regard to my request for Mr. Ford [sic]
Public Records Request,” stating that it was “requesting the information in order to
provide legal aid (investigative/paralegal) to my client which is a ‘Constitutional Right of
all Citizens!’” (Exh. K.) Although HSH added that it did not intend to send the records to
Mr. Ford (Id.), the relationship of privity is one of contractually shared interest, not
necessarily of shared possession.1 Unlike the requester in Summers, who sought only
to independently benefit his inmate son by publishing public records on a Facebook
page, HSH was employed by Ford to provide investigative/paralegal legal aid regarding
1 See https://thelawdictionary.org/privity/ (Accessed July 2, 2021.)
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his criminal conviction. The facts here resemble those in State ex rel. Barb v. Cuyahoga
Cty. Jury Commr., 8th Dist. Cuyahoga No. 95005, 2010-Ohio-6190, ¶ 7, where the
requester “was seeking the records in an effort to prove that [the inmate] was denied a
fair trial.” Summers at ¶ 32-34.
{¶13} Separately, HSH’s assertion of “my request for Mr. Ford [sic] Public
Records Request,” establishes that as part of their professional relationship Ford
designated HSH to make the request on his behalf. The special master finds that HSH
was both the designee of, and in contractual privity with, Ford for the purposes of R.C.
149.43(B)(8).
{¶14} A person who is incarcerated pursuant to a criminal conviction “cannot
circumvent the requirement of R.C. 149.43(B)(8), which requires a finding by his
sentencing judge or the judge’s successor that the requested information is necessary
to support what appears to be a justiciable claim, by designating [another person] to
request the records for him.” Barb, 128 Ohio St.3d 528, 2011-Ohio-1914, 947 N.E.2d
670 ¶ 1. Because HSH has not produced the required finding from “the judge who
imposed the sentence * * *, or the judge’s successor in office” that “the information
sought in the public record is necessary to support what appears to be a justiciable
claim of the person,” it cannot demonstrate an enforceable claim to the requested
investigatory records. Staats v. Ferrero, 5th Dist. Stark No. 2015CA00173, 2016-Ohio-
4789, ¶ 7-8.
{¶15} The special master finds the Sheriff’s Office has shown by clear and
convincing evidence that HSH was in privity with and the designee of a person who is
incarcerated pursuant to a criminal conviction. There is no evidence in the record that
either HSH or its client Daemon Ford complied with R.C. 149.43(B)(8) to obtain the
mandatory finding of the sentencing judge prerequisite to any public records request for
investigatory records on Mr. Ford’s behalf. The special master concludes that the
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Sheriff’s Office was not required to allow HSH to inspect or copy records of any criminal
investigation.
Suggestion of Mootness
{¶16} In an action to enforce R.C. 149.43(B), a public office may produce
requested records prior to the court’s decision and thereby render the claim for
production moot. State ex rel. Striker v. Smith, 129 Ohio St.3d 168, 2011-Ohio-2878,
950 N.E.2d 952, ¶ 22. The Sheriff’s Office asserts that prior to the filing of the complaint
it acted in conjunction with the Stark County Prosecutor’s Office to provide HSH with
1,582 pages of responsive “records consisting of docket entries, journal entries, and
voluminous other records consisting mostly of information publicly available on court
dockets.” (Response at 13.) The Sheriff’s Office attached copies of a number of these
records to its response. Although these criminal court documents clearly do not
constitute all the Sheriff’s Office investigatory records responsive to HSH’s request, the
special master finds the claim for production is moot as to the particular records so
provided.
Claimed Exceptions
{¶17} Because the claim is conclusively barred for failure to comply with R.C.
149.43(B)(8), it is unnecessary to address any federal or state statutory exception that
the Sheriff’s Office asserts for the requested records. See Staats at ¶ 8.
Conclusion
{¶18} Upon consideration of the pleadings and attachments, the special master
recommends the court find that HSH has failed to establish by clear and convincing
evidence that the Sheriff’s Office violated R.C. 149.43(B) with respect to its request for
records related to criminal investigations and prosecution. The special master
recommends that costs be assessed to requester.
{¶19} Pursuant to R.C. 2743.75(F)(2), either party may file a written objection
with the clerk of the Court of Claims of Ohio within seven (7) business days after
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receiving this report and recommendation. Any objection shall be specific and state with
particularity all grounds for the objection. A party shall not assign as error on appeal the
court’s adoption of any factual findings or legal conclusions in this report and
recommendation unless a timely objection was filed thereto. R.C. 2743.75(G)(1).
JEFF CLARK
Special Master
Filed July 6, 2021
Sent to S.C. Reporter 8/6/21