An Avon Lake man’s attempt to prove he hand-delivered a public records request to the city police department through the use of cellphone video was rejected by the Ohio Supreme Court today.

The Supreme Court voted 5-2 to deny James Pietrangelo II statutory damages. Pietrangelo had sought damages after a three-month delay in the delivery of a police report and accompanying documents from Avon Lake police. The documents dealt with an incident between Pietrangelo and juveniles at a skate park near his home.

In a per curiam opinion, the Court denied Pietrangelo’s request for a writ of mandamus, indicating he received all requested records in existence about the December 2014 incident and that police lawfully destroyed notes they took at the time. Pietrangelo attempted to record his hand delivery of a written public records request, which would allow him to seek monetary damages if police did not fulfill his request in a timely manner. The Court found that the video did not by “clear and convincing evidence” reveal that he actually delivered his request to police.

In a dissenting opinion, Justice Sharon L. Kennedy wrote that, while Pietrangelo should have captured himself on video handing over his request, the video and audio he recorded taken together makes it clear that he handed his request to police and that he is owed damages from the city.

Pietrangelo Seeks Incident Report
On Dec. 29, 2014, two Avon Lake police officers responded to Pietrangelo’s complaint about juveniles at a skate park. The officers spoke to Pietrangelo and took handwritten notes, which they asserted were for their personal convenience to help them prepare an incident report. Both officers indicated that they destroyed their notes soon after the report was written.

The next day, Pietrangelo called the police department to inquire if a report had been generated from the incident. Michael Cipro, the records clerk, responded that he informed Pietrangelo that the report had not been completed. Pietrangelo went to the police department later in the day, and Cipro indicated he told Pietrangelo that the report would not be ready for two or three days and he should check back then. The department alleged that Pietrangelo did not make arrangements to have the report sent to him or to pick it up.

Pietrangelo attached to his writ a copy of what was purportedly his hand-delivered records request that he brought to the department on Dec. 30, but the police countered that he did not deliver a written request. Lt. Scott Fishburn reported that all the department employees denied receiving a request, and it was not among the department files where record requests were kept.

Pietrangelo claimed he delivered the request, asked Cipro in person if a police report would be available that day, and that Cipro told him at that time there was only a draft report that he would not release. Cipro denied that he told Pietrangelo there was a draft report.

Pietrangelo has filed a separate lawsuit against the city to declare the skate park a nuisance, and he asserted that he suspected the police would ignore his records request, which is why he put in it writing. Pietrangelo filed his writ action with the Court on Feb. 5, 2015, asking the police to comply with Ohio’s Public Records Act, R.C. 149.43, and alleged that because of the city’s “pattern of refusal” he was seeking statutory damages, costs, and attorney fees.

The Court referred the matter to mediation in mid-February, and the day after the mediation failed in mid-March, the city called Pietrangelo and informed him his records request was ready. He received a compact disc with most, but not all, of the records he requested.

Police Notes Not Public Record
Among the records Pietrangelo requested that were not delivered were the police officers’ handwritten notes, and the draft incident report he alleged Cipro mentioned. Citing its 2004 State ex rel. Cranford v. Cleveland and 1993 State ex rel. Steffen v. Kraft decisions, the Court wrote that notes taken by officers for their own convenience when used to later prepare a report are not department official records and are not public.

Pietrangelo countered that the police admitted they had a custom of keeping the notes of responding officers concerning violations of skate park rules. Pietrangelo sought the notes because he believes they contain fictitious addresses given by some of the juveniles that are not in the official report.

“If the notes have been destroyed, correctly or not, they cannot be produced at this point,” the Court wrote.

The Court ruled the city cannot be ordered to produce records that no longer exist. The police also admitted there was no “draft” report, but only an incomplete report at the time Pietrangelo requested it. Once it was completed, it was made available to Pietrangelo. The Court concluded all the public records Pietrangelo was entitled to receive were produced and made available.

Video Fails to Show Records Request
Pietrangelo argued he should be awarded damages because the department did not produce the records of the December incident until March. He asserted that the police failed to satisfy the requirement under R.C. 149.43(b)(1) to make requested records available “within a reasonable time.” The law allows a record requester to seek damages because of delay only if the request is delivered in writing by hand or certified mail. The law requires clear and convincing evidence proving a written request was delivered.

The police maintained Pietrangelo did not deliver a request and it was not in their department files. They did note that their records log indicated Pietrangelo made three other records requests between September 2013 and August 2014.

Pietrangelo recorded his Dec. 30 visit to the police department, but the Court determined that during most of the video the request is held over the camera lens. The Court concluded it was impossible to tell from the video where he was walking and while it briefly shows a sign with an arrow pointing to the police department, the recording is mostly of Pietrangelo’s feet.

“Once he is inside, the video briefly shows Pietrangelo’s hand holding the document, but it does not show him handing the document to anyone, or another hand taking the document from him,” the opinion stated. “Pietrangelo can be heard speaking to another person, indicating that he was seeking more than just the report and logs and was also requesting all documents relating to the incident. Neither he nor the other person who can be heard on the recording refer to a written request.”

The Court determined that video was inconclusive, and because there are contradictory accounts from Pietrangelo and police-department employees, Pietrangelo failed to show by clear and convincing evidence that he hand-delivered the request, and he is not entitled to damages.

Chief Justice Maureen O’Connor and Justices Paul E. Pfeifer, Terrence O’Donnell, and William M. O’Neill joined the opinion.

Justice Judith Ann Lanzinger concurred in judgment only without a written opinion.

Dissent Concludes Video Proved Delivery
Justice Kennedy wrote the video “clearly and convincingly” demonstrates Pietrangelo hand-delivered the request to police, and is entitled to damages. She noted that Pietrangelo is not a novice record requester:  he had previously hand-delivered three separate requests to the police department and had pursued a legal action in this Court earlier this year in a public records dispute with Avon Lake.

She maintained the majority did not give a “full and fair depiction of the contents of the recording,” in which the audio captures Pietrangelo describing his records request and that he is at the police department to hand-deliver the request. When he entered the building, he said: “Hi, Inspector Cipro. That’s a request.” She noted that a voice different from Pietrangelo’s responded “OK.”

“In this context, ‘that’ is a demonstrative pronoun; it refers to the document and conveys that the document is no longer in Pietrangelo’s hand,” Justice Kennedy wrote. “Cipro’s response of ‘OK’ indicates an acknowledgement. Accordingly, it is reasonable to infer that Pietrangelo handed the document to Cipro and Cipro received it.”

She stated that the majority has imposed aon Pietrangelo that is more than “clear and convincing,” and seems “to require evidentiary proof above even the criminal standard burden of beyond a reasonable doubt and require uncontrovertible evidence” to prove his actions. She noted in the future Pietrangelo ought to make sure to capture himself handing the document to the employee of the entity from which he is seeking public records

Justice Judith L. French joined Justice Kennedy’s dissent.

2015-0197. SER Pietrangelo v. Avon Lake, Slip Opinion No. 2016-Ohio-5725.

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