State ex rel Minor v. Cleveland Police Department8/7/1996
PETITION FOR WRIT OF MANDAMUS
JUDGMENT WRIT DISMISSED.
On April 11, 1996, the relator, Bruce A. Minor, Sr., commenced this mandamus action pursuant to R.C. 149.43, the Ohio Public Records Act, against the respondent, the Cleveland Police Department, Custodian of Records, to compel the respondent to forward to him all records relating to his underlying criminal case, State of Ohio v. Bruce A. Minor, Cuyahoga County Common Pleas Court Case No. Cr. 235033, so he could prepare a post-conviction petition. The requested records include all witness statements, police reports, "Form-one" reports, photographs, laboratory tests and reports, tape recordings and any other relevant records. On May 6, 1996, the Cleveland Police Department moved to dismiss. On May 22, 1996, Mr. Minor filed his opposition to that motion. For the following reasons, this court grants the respondent's motion and dismisses this writ action.
Mr. Minor is imprisoned at the Lorain Correctional Institute. In his complaint Mr. Minor did not assert that he had a designee who could inspect, copy and obtain for him the requested records. Rather, he asked that Cleveland forward the records or a price list for them to him. Cleveland argues that pursuant to 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 send records by mail or to respond to requests by mail, including informing requesters of the number, types or costs of records. In Fenley and its progeny the courts have held that mandamus does not lie to compel custodians of public records to mail such records to requesters because the duty to mail is not explicitly stated in R.C. 149.43. The statute requires only that the records be made available for inspection and copying during regular business hours. The word available is not synonymous with available by mail. State ex rel. Cheren v. Chief of Police, Akron Municipal Police Department (1993), 67 Ohio St.3d 461, 619 N.E.2d 1024; 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; State ex rel. Larson v. Cleveland Public Safety Director (July 21, 1995), Cuyahoga App. No. 69087, unreported; State ex rel. Dussell v. City of Lakewood (Sept. 26, 1994), Cuyahoga App. No. 66742, unreported.
In response Mr. Minor argues that Fenley and Nelson are inconsistent with the wording of R.C. 149.43, the remedial nature of that statute, and Ohio's public policy favoring open records and open government. He further argues that these decisions sanction violations of the Americans with Disabilities Act of 1990, and he suggests unspecified violations of the constitution. However, these arguments are unpersuasive. The dissenting opinions in Fenley and Nelson raised the very same 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 or a price list to anyone under R.C. 149.43. Moreover, Mr. Minor never even suggests in his filings that he has a designee through whom he could inspect and obtain copies of the records. State ex rel. Carpenter v. Tubbs Jones (1994), 68 Ohio St.3d 181, 624 N.E.2d 1048.
Additionally, as a matter of law, Mr. Minor, who is seeking the records to support post-conviction relief, is barred from utilizing R.C. 149.43 for that purpose. The Supreme Court of Ohio ruled that " defendant in a criminal case who has exhausted the
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