Supreme Court of Ohio Clerk of Court - Filed April 02, Case No IN THE SUPREME COURT OF OHIO

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1 Supreme Court of Ohio Clerk of Court - Filed April 02, Case No IN THE SUPREME COURT OF OHIO STATE OF OHIO ex rel. JAMES E. PIETRANGELO, II Case No Relator v. ORIGINAL ACTION IN MANDAMUS CITY OF AVON LAKE, OHIO, et al. Respondents ANSWER OF RESPONDENTS TO COMPLAINT/PETITION FOR WRIT OF MANDAMUS Abraham Lieberman ( ) Counsel of Record Law Director, City of Avon Lake, Ohio David M. Graves ( ) Assistant Law Director, City of Avon Lake, Ohio 150 Avon Belden Road Avon Lake, Ohio Telephone: (440) Fax: (440) alieberman@avonlake.org dgraves@avonlake.org Attorneys for Respondents, City of Avon Lake, Ohio and Duane Streator, Avon Lake Police Chief James E. Pietrangelo, II Fairport Drive Avon Lake, Ohio Telephone: (802) Relator, Pro Se

2 In response to the Complaint/Petition for a Writ of Mandamus filed by Relator, James E. Pietrangelo, II ( Pietrangelo ), Respondents, City of Avon Lake, Ohio (the City ) and Duane Streator ( Streator ), Avon Lake Police Chief, state as follows: 1. In response to Paragraph 1 of the Petition, Respondents admit that this is an original action and that this is the second mandamus action that Pietrangelo has filed against the City alleging violations of the Ohio Public Records Act and the Avon Lake Public Records Policy, but deny that public records are or were being illegally withheld now or on the previous occasion. Answering further, Respondents state that in the previous mandamus action, Pietrangelo v. City of Avon Lake, 9th Dist. Lorain No. 14CA (the First Mandamus Case ), which Pietrangelo filed to obtain invoices of the City s outside legal counsel, the Court of Appeals recently issued its decision requiring the City to disclose a certain portion of the invoices but upholding the City s right to redact other portions sought by Pietrangelo on the basis of attorney-client privilege. Respondents deny that the City refuses to comply with its publicrecords obligations. In fact, during the period commencing September 23, 2013 and ending on August 17, 2014, Pietrangelo requested records maintained by the Police Department on three other occasions. On each occasion those records requests were promptly fulfilled. Exhibit A hereto, Affidavit of Police Dispatcher/Records Clerk Michael Cipro at In response to Paragraph 2 of the Petition, Respondents admit that this Court is empowered to hear this lawsuit pursuant to its original jurisdiction under Ohio Constitution, Article IV, Section 2, R.C and R.C , admit the cases cited say what they say, but deny any implication that Respondents are not in compliance with R.C Respondents admit the allegations of Paragraph 3 of the Petition. 4. Respondents admit the allegations of Paragraph 4 of the Petition. 1

3 5. In response to Paragraph 5 of the Petition, Respondents admit that Pietrangelo has been trying to get the skate park shut down, admit that Pietrangelo claims that the skate park is a nuisance and a place of chronic crime and delinquency, admit that Pietrangelo has filed suit against the City in an attempt to shut down the skate park and that the suit is still ongoing. 1 However, Respondents deny that the skate park is a nuisance or a place of chronic crime or delinquency and further deny that Pietrangelo is entitled to have the skate park shut down. 6. In response to Paragraph 6 of the Petition, Respondents admit that Pietrangelo submitted a public records request to several of the City s officials for billing statements from the City s counsel in the skate park suit, including, among other things, the hours, dates and fee rates of legal services performed, admit that Pietrangelo did not request narratives on the billing statements, admit that that the City denied Pietrangelo s request in part, and admit that the case, statute and ordinance cited say what they say. Respondents deny that the information withheld was clearly non-exempt under this Court s precedents, deny that they failed to provide Pietrangelo with an explanation as to why certain information was redacted (having advised Pietrangelo that the redacted information was privileged) and deny that the City s denial to release the redacted information was either illegal or not in compliance with applicable laws. Answering further, Respondents state that in the First Mandamus Case, the Court of Appeals recently issued its decision requiring the City to disclose a certain portion of the invoices but upholding the City s right to redact other portions sought by Pietrangelo on the basis of attorneyclient privilege. Respondents deny all other allegations of Paragraph 6 of the Petition, because 1 See Lorain County Court of Common Pleas Case No. 13CV181561, Ninth Judicial District Court of Appeals Case Nos. 14CA010584, 14CA and 14CA and Supreme Court Case No

4 they are without sufficient knowledge and information to form a belief as to the truth of those allegations. 7. Respondents deny the allegations of Paragraph 7 of the Petition. 8. In response to Paragraph 8 of the Petition, Respondents admit that certain individuals in the skate park were smoking cigarettes, admit that such smoking is a violation of skate park rules, admit that Pietrangelo reported the incident to the Avon Lake Police Department by phone call to it on its public non-emergency line, admit that calls on that line are normally recorded by the Avon Lake Police Department, admit that Avon Lake police officers arrived at the skate park and spoke with Pietrangelo as well as with the individuals, admit that at least one of the officers took notes of information relayed to him during his initial interviews of the incident, admit that Pietrangelo told the officers of what he claimed the individuals had done and said, including what they had said about and to Pietrangelo, admit that the individuals initially denied smoking, admit that Pietrangelo s video tape showed two individuals smoking at the skate park, admit that one of the individuals advised the investigating officer that he initially told Pietrangelo that his father was an Avon Lake police officer but that he was a Cleveland police officer, admit that Pietrangelo told one of the officers that he did not appreciate being defamed and threatened with police retaliation by the individual(s), and that Pietrangelo was going to pursue both issues through legal or official process, including by referring the second issue to the Cleveland Police Department for official review by the purported Cleveland police officer's commander, and admit that the officers ejected the individuals from the skate park. Respondents deny all other allegations of Paragraph 8 of the Petition, because they are without sufficient knowledge and information to form a belief as to the truth of those allegations. 3

5 9. In response to Paragraph 9 of the Petition, Respondents admit that Exhibit 2 to the Petition states what it states, but deny all other allegations of Paragraph 9 of the Petition and specifically deny that the request a copy of which Pietrangelo alleges is attached as Exhibit 2 to the Petition (the Exhibit 2 Letter ) or any other written request for the records described in Exhibit 2 was delivered to the Avon Lake Police Department. See Exhibit B hereto, Affidavit of Police Lieutenant Scott R. Fishburn at 3-5, and Cipro Affidavit at In response to Paragraph 10 of the Petition, Respondents admit that the Avon Lake Police Department had in its possession and/or control several specific records that would have been responsive to the Exhibit 2 Letter, including tapes of Pietrangelo s December 29, 2014 phone calls to the Avon Lake Police Department concerning his report of an alleged crime, tapes of the police dispatcher's and officers' resulting subsequent radio transmissions, the notes made by one of the police officers while investigating the December 29, 2014 incident, log entries on the December 29, 2014 incident, and a draft police report on the incident. Respondents deny, however, that Exhibit 2 Letter was delivered to the Avon Lake Police Department. Answering further, Respondents state that Pietrangelo visited the Avon Lake Police Department on December 30, 2014 and orally requested various records, that he was told it was customary for incident reports to be reviewed by a supervisor after they were printed, and that if he wanted them, Pietrangelo could have such reports and other materials in a few days. However, Pietrangelo never made arrangements to obtain such reports or any other records in connection with the December 29, 2014 incident. Cipro Affidavit at In response to Paragraph 11 of the Petition, Respondents admit that parts or all of the records described in Exhibit 2 to the Petition are non-exempt public records, including the one officer's notes from December 29, 2014, that previous to the December 29, 2014 incident, 4

6 Pietrangelo had been told by the Avon Lake Police Department or personnel thereof that the Avon Lake Police Department has a system or custom of recordkeeping whereby respondingofficer notes concerning violations of the skate park rules are kept at the Avon Lake Police Department for future reference, including in determining whom to eject from the skate park for a second offense, and that the one officer's December 29, 2014 notes may also have contained/contain non-exempt public information not reflected in the logs or police reports of the incident. However, Respondents deny that the Exhibit 2 Letter was ever delivered to the Avon Lake Police Department. Cipro Affidavit at 9; Fishburn Affidavit at In response to Paragraph 12 of the Petition, Respondents admit that parts or all of the records described in the Exhibit 2 Letter were/are records that could have been reasonably released to Pietrangelo within thirty days. However, Respondents deny that the Exhibit 2 Letter was ever delivered to the Avon Lake Police Department. Cipro Affidavit at 9; Fishburn Affidavit at Respondents deny the allegations of Paragraph 13 of the Petition. Respondents responded to Pietrangelo s oral request for records by advising him that the report would be ready in two to three days and suggesting that he check back at that time to obtain a copy of the report. Cipro Affidavit at 7. Respondents did not initially respond to the Exhibit 2 Letter because the Exhibit 2 Letter was never delivered to the Avon Lake Police Department. Cipro Affidavit at 9; Fishburn Affidavit at 3-5. However, on March 17, 2015, Pietrangelo was advised that the records described in the Exhibit 2 Letter could be picked up at the Avon Lake Police Department at his convenience. Cipro Affidavit at 11. On March 18, 2015, Pietrangelo picked up those records at the Police Department. Exhibit C hereto, Affidavit of Police Dispatcher Patricia Schroer at 3. 5

7 14. In response to Paragraph 14 of the Petition, Respondents admit that the statutes and ordinances cited say what they say, but deny all other allegations of Paragraph Respondents deny the allegations of Paragraph 15 of the Petition. 16. In response to Paragraph 16 of the Petition, Respondents admit that Pietrangelo has the right to obtain records pertaining to the December 29, 2014 incident, and further state that those records would have been provided to him within a few days had he only followed up to obtain them. Cipro Affidavit at 7. Respondents deny that the Exhibit 2 Letter was ever delivered to the Avon Lake Police Department and further deny that Pietrangelo has any right to the relief requested in the Petition. Cipro Affidavit at 9; Fishburn Affidavit at 3-5. Answering further, Respondents state that they have complied with R.C (B) and Avon Lake Ord Answering further, Respondents state that, although the Exhibit 2 Letter was never delivered to the Avon Lake Police Department, the City did provide the records described in the Exhibit 2 Letter to Pietrangelo on March 18, Schroer Affidavit at In response to Paragraph 17 of the Petition, Respondents state that they have complied with R.C (B) and Avon Lake Ord , and that they have provided Pietrangelo with the records requested. 18. Respondents deny the allegations of Paragraph 18 of the Petition. Because Respondents have provided Pietrangelo with the records he requested, this action is moot. 19. Respondents deny all other allegations of the Petition not specifically admitted herein. granted. AFFIRMATIVE DEFENSES 1. In light of this Answer, the Petition fails to state a claim upon which relief can be 6

8 2. Respondents have provided Pietrangelo with the records requested. Therefore, this action is moot. 3. Pietrangelo is not entitled to an award of costs or attorney s fees, because this action is moot and because Pietrangelo is acting pro se. 4. Pietrangelo is not entitled to an award of statutory damages, because he failed to transmit a written request for the public records requested to the public office or person responsible for such records as required by R.C (C)(a). 5. Statutory damages should not be awarded because of the factors set forth in R.C (C)(1)(a) & (b). WHEREFORE, Respondents demand that Pietrangelo s Petition for a Writ of Mandamus be denied and the case dismissed with prejudice at Pietrangelo s costs. Respectfully submitted, /s/ Abraham Lieberman Abraham Lieberman ( ) Law Director, City of Avon Lake, Ohio David M. Graves ( ) Assistant Law Director, City of Avon Lake, Ohio Attorneys for Respondents, City of Avon Lake, Ohio and Duane Streator, Avon Lake Police Chief 7

9 CERTIFICATE OF SERVICE This is to certify that a copy of the foregoing Answer has been sent by ordinary U.S. mail, postage prepaid, this 2nd day of April, 2015, to: James E. Pietrangelo, II Fairport Drive Avon Lake, Ohio Relator, Pro Se /s/ Abraham Lieberman Abraham Lieberman Law Director, City of Avon Lake, Ohio Attorney for Respondents, City of Avon Lake, Ohio and Duane Streator, Avon Lake Police Chief April 2, 2015 U:\ALieberman\Litigation\Pietrangelo v. Avon Lake Police Mandamus\Answer1.docx 8