Lethal Injection protocol meeting notes and communications (Ohio Department of Rehabilitation and Correction)

Hello,

I am currently out of the office. If you need immediate assistance please call 614-752-1150 or email Grant.Doepel@odrc.state.oh.us.

Thank you.

________________________________

Please note that an e-mail message, or a portion thereof, may be releasable as a public record in accordance with Chapter 149 of the Ohio Revised Code.

Hello,
I am confirming receipt of this request and it has been forwarded to the Office of Legal Services for review.
Thank you.
JoEllen Smith

Thank you. I've forwarded your email to the Office of Legal Services for follow up.

Dear Sir/Madam:

This email shall serve as the response of the Ohio Department of Rehabilitation and Correction (ODRC) to your September 28, 2017 public record request (originally made below), in which you request:

All emails and meeting minutes for members of a lethal injection protocol committee, or equivalent regulatory body, regarding the lethal injection protocol and/or lethal injection drugs from 2010 to present. If there is not a lethal injection protocol committee, then any and all meeting minutes and communications within the Department of Corrections that mention the lethal injection protocol and/or lethal injection drugs from 2010 to present.
First, DRC objects to the time period parameters of your request which seeks records "from 2010 to the present." ODRC construes "2010" to mean January 1, 2010. Under Ohio's Public Records law, Ohio Revised Code (R.C.) 149.43, there is no entitlement to records that are created after the date of your request. Therefore, the proper subject of your requests are records that were created between January 1, 2010 and September 28, 2017 and records that actually existed on September 28, 2017. See State ex rel. Toledo Blade Co. v. Seneca Cty. Bd. of Commrs., 120 Ohio St.3d 372, 2008-Ohio-6253, ¶ 23 ("[I]n cases in which public records...are properly disposed of in accordance with a duly adopted records-retention policy, there is no entitlement to these records under the Public Records Act."); State ex rel. Taxpayers Coalition v. Lakewood, 86 Ohio St.3d 385, 389 (1999); State ex rel. White v. Goldsberry, 85 Ohio St.3d 153, 154 (1999) (holding that a public office has "no duty under R.C. 149.43 to create new records by searching for and compiling information from existing records"); State ex rel. Cioffi v. Stuard, 11th Dist. No. 2009-T-0057, 2010-Ohio-829, ¶¶ 21-23 (finding no violation of the Public Records Act when a clerk of courts failed to provide a hearing transcript that had never been created).

Additionally, there is no duty for ODRC to provide records that were not in existence on September 28, 2017-the date of your request. See State ex rel. McCaffrey v. Mahoning Cty. Prosecutor's Office, 133 Ohio St.3d 139, 2012-Ohio-4246, ¶¶ 22-26; State ex rel. Striker v. Smith, 129 Ohio St.3d 168, 2011-Ohio-2878, ¶ 25; State ex rel. Lanham v. Smith, 112 Ohio St.3d 527, 2007-Ohio-609, ¶ 15; State ex rel. Ohio Patrolmen's Benevolent Assn. v. Mentor, 89 Ohio St.3d 440, 448 (2000); State ex rel. Gambill v. Opperman, 135 Ohio St.3d 298, 2013-Ohio-761, ¶ 16. Nor is there any duty for DRC to provide records that came into existence after the time of your June 16, 2017 request. State ex rel. Taxpayers Coalition v. Lakewood, 86 Ohio St.3d 385, 392 (1999); State ex rel. Scanlon v. Deters, 45 Ohio St.3d 376 (1989), overruled on other grounds, State ex rel. Steckman v. Jackson, 45 Ohio St.3d 376 (1994); Starks v. Wheeling Twp. Trustees, 5th Dist. Nos. 2008 CA 000037, 2009 CA 000003, 2009-Ohio-4827.

1) The first part of your request seeks:

"All emails and meeting minutes for members of a lethal injection protocol committee, or equivalent regulatory body, regarding the lethal injection protocol and/or lethal injection drugs."

This request is overly broad and ambiguous. State ex rel. Glasgow v. Jones, 119 Ohio St.3d 391, 2008-Ohio-4788, ¶ 19; State ex rel. Zidonis v. Columbus State Community College, 133 Ohio St.3d 122. As initial matter, emails are not records, but the medium on which certain public records may be maintained. Moreover, assuming you are seeking records maintained via email that are considered "meeting minutes," ODRC does not have a "lethal injection protocol committee" or "equivalent regulatory body" regarding ODRC's execution protocol. Therefore, ODRC has no responsive records to this first part of your request. To the extent you wish to clarify this part of your request to indicate the specific records you seek, DRC will produce any and all responsive public records.

2) The second part of your request states,

"If there is not a lethal injection protocol committee, then any and all meeting minutes and communications within the Department of Corrections that mention the lethal injection protocol and/or lethal injection drugs from 2010 to present."

This request is overly broad and ambiguous. State ex rel. Glasgow v. Jones, 119 Ohio St.3d 391, 2008-Ohio-4788, ¶ 19; State ex rel. Zidonis v. Columbus State Community College, 133 Ohio St.3d 122. This request does not properly identify with clarity the actual, existing records you seek. A request for "meeting minutes" and "communications" mentioning "lethal injection protocol" or "drugs" does not describe specifically and particularly what specific records of this agency are being sought. As written, the request does not specifically identify the persons (by name or title) or departments within ODRC who might have responsive public records. DRC is unable to reasonably identify what public records are being sought. To the extent you wish to clarify what specific records you seek, DRC will produce any and all responsive public records.

Subject to, and without waiving, the above objections and responses, ODRC states that it has a written execution protocol, which is Policy Number 01-COM-11. Although the policy is not a public record responsive to your public records request, as a courtesy only, ODRC is providing the attached copy.

Steve Gray
Chief Counsel and Managing Director of Risk Management
Ohio Department of Rehabilitation and Correction
614-752-1773

This message and any response to it may constitute a public record and thus may be publicly available to anyone who requests it.