The Ohio Supreme Court has largely sided with the Department of Rehabilitation and Correction (DRC) in a public records dispute brought by an incarcerated individual, Thomas Clark. The court denied requests for body-worn camera recordings, citing their non-existence, and dismissed a claim regarding altered documents. However, the court has paused its decision on a request for “post orders,” requiring the DRC to submit them for confidential review.
Clark, who is incarcerated at Lebanon Correctional Institution, petitioned the court for a writ of mandamus to compel the DRC to release 11 specific records under Ohio’s Public Records Act. He also sought $11,000 in statutory damages.
The per curiam opinion, joined by five justices, granted Clark relief on only one narrow point, ordering the DRC to provide sealed copies of the disputed post orders for the court’s own inspection. For the other ten records requested, Clark’s demands were denied.
Latent Recordings Deemed Non-Existent
The most contentious part of the request involved two separate requests for “latent recordings” from DRC employees’ body-worn cameras. Clark sought footage from two specific incidents where he alleged misconduct by prison staff: one involving alleged retaliation by a unit manager, and another concerning a supervisor threatening to double the fee for sending legal mail.
DRC policy allows body-worn cameras to passively record low-resolution video and audio—termed “latent recordings”—for up to 18 hours, even when not actively recording, in case an incident occurs that should have been recorded.
Clark argued that since the cameras were powered on during these interactions, the latent recordings existed and were subject to the Public Records Act upon his request. He made these requests shortly after the alleged incidents, potentially within the 18-hour window during which the data could have been preserved.
However, the Supreme Court majority ruled against Clark on this point, concluding he failed to prove the recordings currently exist or ever existed. The DRC asserted the recordings did not exist, or that the events did not qualify as a “qualifying event” under department policy necessary to officially download and preserve the latent footage. Because the DRC policy dictates that latent recordings are overwritten if not preserved within the narrow window, the court held that a writ of mandamus cannot command the impossible.
A significant dissent, authored by Chief Justice Kennedy and joined by Justice Brunner, strongly disagreed with the majority’s reasoning regarding the latent recordings. The dissenting justices argued that the recordings *did* exist as public records the moment Clark requested them, as they documented the DRC’s activities and were stored on state equipment for a defined period (18 hours). The dissent contended that the majority’s interpretation—requiring conscious preservation by the public office before a record attains public status—creates a loophole allowing the government to destroy records simply by not downloading them before they are overwritten.
Despite this strong disagreement on the status of the records at the time of the request, the dissenting justices ultimately concurred with denying the writ for the recordings because, by the time the court ruled, the data had indeed been overwritten and no longer existed.
Kite Audit Log Dispute Mooted
Clark also requested unaltered paper copies of eight of his previous electronic “kites” (inmate-to-staff correspondence). He claimed that the audit logs attached to these copies, which track when the kites were viewed or acted upon, had been altered by the public information officer, Ellen Myers, to remove an entry showing an administrator viewed one specific kite shortly after it was sent.
The DRC provided the court with a “true and accurate” version of the audit log that included the missing entry, while acknowledging the version previously sent to Clark omitted it.
The majority found Clark had received a complete copy of the requested kite and audit log as evidence during the mandamus proceedings, thus rendering the request for production moot. Furthermore, the court denied statutory damages for this issue, reasoning that Clark had only requested the kite itself, not the detailed viewing history in the audit log.
The dissenting opinion countered that providing an incomplete record in response to a request violates the duty under R.C. 149.43(B)(1) to provide *all* non-exempt information in the record. The dissent would have awarded statutory damages for the delayed production of the complete, unaltered audit log.
Post Orders Headed for In Camera Review
The final category of records involved “post orders” for prison employees working in the Lebanon Correctional Institution property room. The DRC claimed these were exempt from disclosure as “security records” under R.C. 149.433(B).
The court noted that while post orders often fall under this exemption, the DRC failed to provide sufficient evidence beyond a conclusory affidavit stating they contained “sensitive operational details.” Unlike previous cases where the exemption was upheld, the department did not submit the orders themselves, even under seal.
Because the court lacked the necessary factual support to rule on the exemption, it ordered the DRC to file the post orders under seal for an *in camera* inspection. The final decision on whether these orders must be released, redacted, or remain exempt is held in abeyance pending the court’s review of the sealed documents.
The court also denied Clark’s request for statutory damages related to the latent recordings and kites, though the dissent would have awarded him $3,000 based on the DRC’s improper denials and delayed compliance.