Medina County Courthouse

Wednesday, July 21, 2010

Court Rules Police Not Required to Convert Records Submitted on File Cards to Other Format

Under State Public Records Act

State ex rel. Bardwell v. Cleveland, Slip Opinion No. 2010-Ohio-3267.
Cuyahoga App. No. 91831, 2009-Ohio-5688. Judgment of the court of appeals reversed.
Pfeifer, Lundberg Stratton, O'Connor, and Lanzinger, JJ., concur.
Brown, C.J., and O'Donnell and Cupp, JJ., concur separately.

(July 15, 2010) In a 7-0 decision announced today, the Supreme Court of Ohio ruled that the Cleveland Division of Police did not violate the Ohio Public Records Act by maintaining its archive of the daily reports it receives from local pawnbrokers on 3-by-5 inch index cards – the format in which those reports are submitted by the pawnbrokers.

The Court’s per curiam decision left in place a writ of mandamus and award of $1,000 in statutory damages against the city for failing to promptly provide a complete list of pawnbrokers in response to a public records request by a private citizen, Brian Bardwell. However, the Court reversed a ruling by 8th District Court of Appeals that the city had also violated its duty under a separate provision of the Public Records Act that requires government agencies “to organize and maintain public records in a manner that allows them to be made available for inspection and copying.”

The Court wrote: “R.C. 4727.09 requires that pawnbrokers provide to police chiefs on a daily basis (1) a description of all property pledged with or purchased by the pawnbroker and (2) the number of the form used to document the pledge or purchase, but the statute does not require that the information be supplied in any particular form. Pawnbrokers have submitted this information on both sides of preprinted index cards. There is no evidence that the city requires that pawnbrokers submit the information on these cards. Once these cards are received by the police chief, they are public records. Although R.C. 149.43(B)(2) imposes a duty on appellants to ‘organize and maintain public records in a manner that they can be made available for inspection and copying,’ there is no duty imposed on public offices and officials to store the records in a different form than the form in which they were received. There is also ‘no duty to create or provide access to nonexistent records.’”

“ ... Although from a policy standpoint, appellants could reduce delays in satisfying public-records requests in the future by requesting pawnbrokers to submit this information on an 8½- by 11-inch, one-sided paper form, there is no requirement under R.C. 149.43(B)(2) that appellants do so, and the court of appeals was not authorized to create such a duty. ... Under these circumstances, the court of appeals erred in holding that appellants violated R.C. 149.43(B)(2). Appellants did not fail to organize and maintain the index cards they received from pawnbrokers in such a manner that they could be made available for inspection and copying.”

Justices Paul E. Pfeifer, Evelyn Lundberg Stratton, Maureen O’Connor and Judith Ann Lanzinger joined the Court’s opinion.

Justice Terrence O’Donnell entered a separate concurring opinion, joined by Chief Justice Eric Brown and Justice Robert R. Cupp, in which he wrote: “(A)lthough I agree that the city did not violate R.C. 149.43(B)(2) in this case, R.C. 149.43(B)(1) mandates that public records be ‘promptly prepared and made available.’ Accordingly, when its budget allows, the city could take advantage of technological advances to upgrade its public-records system to minimize any delay in responding to public-records requests.”

Jerome A. Payne Jr., 216.664.2800, for the City of Cleveland.

Brian Bardwell did not oppose the city’s appeal.

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