2000 OHIO 137 - Norris v. Budgake

[This opinion has been published in Ohio Official Reports at

89 Ohio St.3d 208

.]




                NORRIS, APPELLANT, v. BUDGAKE, DIR., APPELLEE.
                    [Cite as Norris v. Budgake,

2000-Ohio-137

.]
Public records—Mandamus sought to compel director of county crime laboratory
        to provide relator access to requested records—Court of appeals’ denial
        of writ affirmed.
        (No. 00-323—Submitted April 25, 2000—Decided June 21, 2000.)
     APPEAL from the Court of Appeals for Stark County, No. 1999CA00359.
                                  __________________
        {¶ 1} In October 1999, appellant, Robert Lee Norris, an inmate at North
Central Correctional Institution, requested that appellee, Robert Budgake, Director
of the Canton-Stark County Crime Laboratory, provide him with access to the
following records: (1) a complete certification of laboratory test capability from
October 1992 through July 1993, (2) a written certification of the presence or
absence of an “in laboratory” electrophoresis test capability within those dates, and
(3) the identity, address, and telephone number of the state, county, city, or federal
agency to which the laboratory scientific test capability is certified. Budgake
refused Norris’s request because he did not have any of the records demanded.
        {¶ 2} Norris then filed a complaint in the Court of Appeals for Stark County
for a writ of mandamus to compel Budgake to provide access to the requested
records under Ohio’s Public Records Act, R.C. 149.43. Budgake moved for
summary judgment and supported the motion with his affidavit specifying that none
of the requested records existed. Norris failed to file any summary judgment
evidence to controvert Budgake’s affidavit.              The court of appeals granted
Budgake’s motion and denied the writ.
        {¶ 3} This cause is now before the court upon an appeal as of right.
                                  __________________
                            SUPREME COURT OF OHIO




       Robert Lee Norris, pro se.
       Mariella Mestel, Canton Assistant Law Director, for appellee.
                              __________________
       Per Curiam.
       {¶ 4} We affirm the judgment of the court of appeals.            Budgake’s
uncontroverted summary judgment evidence established that the records that Norris
requested did not exist. Budgake had no duty to create new documents to satisfy
Norris’s request. State ex rel. Taxpayers Coalition v. Lakewood (1999),

86 Ohio St.3d 385, 389-390

715 N.E.2d 179

, 183; State ex rel. White v. Goldsberry (1999),

85 Ohio St.3d 153, 154

707 N.E.2d 496, 497

. And Norris failed to respond by
affidavit or as otherwise provided by Civ.R. 56 to set forth specific facts showing
the existence of a genuine triable issue that would have precluded summary
judgment. See Mootispaw v. Eckstein (1996),

76 Ohio St.3d 383, 385

667 N.E.2d 1197, 1199

; Civ.R. 56(E). Therefore, Norris was not entitled to the writ.
                                                               Judgment affirmed.
       MOYER, C.J., DOUGLAS, RESNICK, F.E. SWEENEY, PFEIFER, COOK and
LUNDBERG STRATTON, JJ., concur.
                              __________________




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