On September 13th, the Ohio Supreme Court denied a court action brought to compel a police department to produce records in the case of destroyed police officer incident notes. State ex rel. Pietrangelo v. City of Avon Lake, 2016-Ohio-5725, ¶ 2. Additionally, the court found the claimant was not entitled to statutory damages under Ohio public records law, because he failed to establish by clear and convincing evidence that he submitted a written records request.
James Pietrangelo II visited the Avon Lake Police Department on December 30, 2014 and requested an incident report and other records pertaining to events that occurred the previous day at a local skate park. The records clerk stated that an incident report had not yet been completed and he should return in two or three days. Whether the relator hand-delivered a written records request during this visit was disputed by the parties. The City also contended that Pietrangelo failed to provide any contact information by which the department could respond to his request.
In February, Pietrangelo filed suit to compel Avon Lake Police Department to produce the requested records. While in mediation, the department notified him that the records were available for collection at the station; however, the materials provided did not include hand-written notes taken by police during the incident. The City argued that such materials were created only for the personal convenience of responding officers and destroyed after the incident report was completed.
Under Ohio law, personal notes taken for the convenience of public officials are not public records; however, in the City’s pleadings it admitted that the department has a system of retaining officer notes concerning incidents at the skate park, which may place the notes outside of this exception. Id. at ¶ 19. In denying Pietrangelo’s action as moot, the court found that the records could no longer be produced regardless of if the notes were destroyed “correctly or not” under the law. Id. at ¶ 20.
Statutory damages are mandatory for a public office’s failure to produce records within a reasonable time if such person delivered a written request by hand or certified mail. Ohio Rev. Code §149.43(C)(1). The Court noted that nearly three months of delay in producing the requested records “arguably” would entitle Pietrangelo to damages, but found that he failed to prove by clear and convincing evidence that he delivered a written request on the December 30th visit. State ex rel. Pietrangelo, at ¶ 23.
Justice Kennedy authored a separate opinion in which Justice French joined dissenting from the Court’s finding that Pietrangelo failed to prove hand-delivery of the written request. Pietrangelo provided as evidence a video recording from December 30th featuring the written request in hand, footage of walking with the notice, a sign directing him to the police department as well as audio of a conversation in which the relator hands a records clerk the written request.