576 N.E.2d 828
No. 85-04448.Court of Claims of Ohio.
Decided August 19, 1988.
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Vorys, Sater, Seymour Pease, Duke Thomas and Elizabeth Smith,
for plaintiff.
Anthony J. Celebrezze, Jr., Attorney General, an Elizabeth Tarpy Kerns, Assistant Attorney General, for defendant.
FRED J. SHOEMAKER, Judge.
On April 22, 1985, plaintiff Bruce D. Dalton filed this action against the Bureau of Criminal Identification and Investigation (hereinafter “BCI”), alleging that it failed to accurately collect, update and disseminate plaintiff’s criminal history in BCI’s computer criminal history (hereinafter “CCH”) files. Plaintiff contends that, as a result of BCI’s alleged negligence, false information concerning his criminal history remained in and was transmitted through the BCI’s CCH files when accessed by Westlake Police Department officials on April 22, 1984.
Consequently, according to his complaint, plaintiff was (1) falsely incarcerated on April 22, 1984, as a result of the alleged defamatory statement, to wit, his prior felony arrest record; (2) deprived of his liberty without due process of law; (3) defamed; and (4) caused to suffer severe emotional distress, humiliation and anguish.
On May 11, 1988, BCI filed a motion for summary judgment based on four contentions. First, BCI moved for summary judgment on the grounds that its maintenance and design of the CCH system is discretionary and, therefore, misjudgment or negligence connected therewith is not actionable. Second, BCI contended, assuming arguendo that the court would find that it failed to maintain its CCH files in a reasonable and prudent manner, said breach was not the proximate cause of plaintiff’s arrest on April 22, 1984. Third, BCI argued that the Court of Claims did not have jurisdiction over plaintiff’s claimed violations of constitutional and civil rights. The final argument was that the Court of Claims did not have jurisdiction to entertain plaintiff’s claim for negligent infliction of emotional distress and trauma.
On June 29, 1988, Judge Leach issued an opinion wherein he denied BCI’s motion concerning the first and second contentions, but granted the motion as to the jurisdictional arguments. Trial on the remaining issues in this cause was held on July 18 and 19, 1988.
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Subsequent to trial, proposed findings of fact and conclusions of law were submitted by the parties. Based on the evidence and arguments presented at trial, the court renders the following findings of fact and conclusions of law.
Findings of Fact
1. The Identification Division of the Bureau of Criminal Identification and Investigation is the central repository of criminal history information in Ohio;
2. BCI maintains CCH files on every person arrested on a felony charge or a misdemeanor charge on the first offense;
3. Arrest data is sent to BCI by sheriff offices, local police departments, mayor’s courts, prisons, workhouses, reformatories, penitentiaries and other criminal justice agencies in Ohio on fingerprint cards furnished by BCI;
4. Disposition data on each case involving a felony or any crime constituting a misdemeanor on the first offense is required to be sent to BCI by every court of record in Ohio;
5. In order to facilitate the collection of disposition data, BCI provides every court in Ohio with final disposition report forms (BCI — Form 2-71);
6. The purpose of BCI — Form 2-71 is to record the initial data of an individual’s arrest and thereafter secure the final disposition of the arrest;
7. BCI — Form 2-71 contains instructions to every court of record that it should complete the disposition form when the arrested person is acquitted, convicted or the case is dismissed;
8. In addition to BCI — Form 2-71, BCI provides all criminal justice agencies, including every court of record in Ohio, with fingerprint cards containing an arrest disposition block and arrest disposition instructions;
9. Instructions contained on all fingerprint cards read, in pertinent part, as follows:
“1. Until otherwise directed, complete this form in addition to FBI form FD-249 (rev. 4-26-71), and forward directly to the Ohio State Bureau of Criminal Identification and Investigation (BCI).
“2. List final disposition in block on front side. If not now available, submit later on BCI form 2-71 for completion of record. If final disposition not available show pre-trial or arresting agency disposition, e.g. released, no formal charge, bail, turned over to, etc., in the arrest disposition block provided on this side.
“3. All information requested is essential.”
10. A large number of arrest dispositions are not forwarded by the courts to BCI;
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11. In 1984, BCI maintained approximately 756,000 CCH files, but only one half of those files contained disposition data on the arrest(s) in file;
12. In 1984, it would have cost BCI $400,000 to $800,000 to update its CCH files to include disposition data;
13. BCI has no legislative authority to impose fines, sanctions or otherwise penalize a court for not forwarding disposition data;
14. CCH files maintained at BCI are not public records;
15. CCH files maintained at BCI are not disseminated to non-criminal-justice agencies without the written consent, and the fingerprint card, of the subject of the record;
16. Only criminal justice agencies, with passwords, can access BCI’s CCH files;
17. A member of a criminal justice agency is eligible for a password only after he or she has been trained in CCH data processing at BCI;
18. The information transmitted through BCI’s CCH system, on April 22, 1984, regarding plaintiff’s prior felony arrest for aggravated arson, was provided by BCI, in good faith, to a law enforcement agent in the line of duty and was factually accurate;
19. BCI is aware and was aware in 1984 that BCI-Form 2-71 is not frequently sent by criminal justice agencies;
20. BCI is and was aware that it does not receive any weekly summaries, which are to include disposition information, from the courts of Ohio as required under R.C. 109.57;
21. BCI knew in 1984 that it was not receiving all of the disposition information that was available for the charges and arrests on its system;
22. BCI knew in 1984 that it was not receiving the disposition information or weekly summaries from the Cuyahoga County Common Pleas Court that it should be receiving as required by R.C. 109.57;
23. BCI did not contact the Cuyahoga County Court of Common Pleas and inquire as to its failure to send weekly summaries containing disposition information;
24. Approximately one and one-half weeks before trial in this matter, BCI, for the first time since the computerized system was started in 1972, made an inquiry of its computer as to how many arrests and charges were on the system without disposition information;
25. As a result of that inquiry, it learned that over one half of the arrests and charges on its system were without disposition information;
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26. On November 25, 1980, plaintiff was indicted by the Cuyahoga County Grand Jury for aggravated arson;
27. On December 29, 1980, plaintiff was arrested by the Cleveland Police for aggravated arson;
28. On August 17, 1981, the Cuyahoga County Court of Common Pleas issued a nolle prosequi on the aggravated arson charge;
29. The August 17, 1981, disposition of the indictment against plaintiff was not forwarded to BCI by the Cuyahoga County Court of Common Pleas until May 20, 1985;
30. On April 22, 1984, at approximately 3:30 a.m., plaintiff was driving through the city of Westlake to make a night deposit at a local bank. Plaintiff had a large amount of cash with him and also had a gun concealed under the front-seat armrest;
31. At approximately 3:59 a.m., on April 22, 1984, Westlake Police Officer Lt. Heckelmoser stopped plaintiff for a traffic violation, to wit, plaintiff’s car taillights were out. The officer issued a traffic citation to plaintiff for violation of Section 438.04(A) of the Ordinances of Westlake, which requires operating taillights, and arrested him for carrying a concealed weapon, a violation of R.C. 2923.12;
32. Plaintiff was thereafter incarcerated in the Westlake City Jail from 5:00 a.m. until approximately 10:00 a.m. on April 22, 1984, because of said concealed weapon;
33. In April 1984, every person arrested by the Westlake Police for carrying a concealed weapon was automatically booked and incarcerated until the Westlake City Prosecutor reviewed the charge;
34. Plaintiff was not incarcerated, detained or otherwise deprived of his liberty on said date because of his prior felony arrest record. In fact, the Westlake Police did not learn the disposition of plaintiff’s prior felony arrest until April 23, 1984, the day after plaintiff was released from the Westlake Police Department.
Conclusions of Law
1. As aforementioned, plaintiff was arrested by Lt. Heckelmoser for carrying a concealed weapon, in violation of R.C. 2923.12.
R.C. 2923.12 states, in part:
“(A) No person shall knowingly carry or have, concealed on his person or concealed ready at hand, any deadly weapon or dangerous ordnance.
“(B) * * *
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“(C) It is an affirmative defense to a charge under this section of carrying or having control of a weapon other than dangerous ordnance, that the actor was not otherwise prohibited by law from having the weapon, and that any of the following apply:
“(1) The weapon was carried or kept ready at hand by the actor for defensive purposes, while he was engaged in or was going to or from his lawful business or occupation, which business or occupation was of such character or was necessarily carried on in such manner or at such a time or place as to render the actor particularly susceptible to criminal attack such as would justify a prudent man in going armed.” (Emphasis added.)
Thus, plaintiff had the burden of showing that he had an affirmative defense to explain his carrying a concealed weapon at that particular time. The suspicion raised by the large sum of money and the firearm plaintiff was carrying were the reasons he was arrested and detained in jail. The fact that BCI furnished information of plaintiff’s previous arrest, without indicating the disposition, was not a proximate cause of plaintiff’s arrest or detainer.
2. The authority conferred upon the Superintendent of BCI to operate a statewide communications system for the storage and retrieval of information pertaining to criminals, criminal activity, crime prevention and law enforcement is discretionary. R.C. 109.57 provides, in pertinent part, as follows:
“(A) The superintendent of the bureau of criminal identification and investigation shall procure and file for record photographs, pictures, descriptions, fingerprints, measurements, and such other information as may be pertinent, of all persons who have been convicted of a felony or any crime constituting a misdemeanor on the first offense and a felony on subsequent offenses, within the state, and of all well known and habitual criminals, from wherever procurable.
“* * *
“(C) The superintendent may operate a center for electronic, automated, or other data processing for the storage and retrieval of information, data, and statistics pertaining to criminals, criminal activity, crime prevention, law enforcement, and criminal justice, and may establish and operate a statewide communications network to gather and disseminate information, data, and statistics for the use of law enforcement agencies.” (Emphasis added.)
It is evident from the foregoing that the superintendent’s decision to operate a data processing center and his determination of the type of information to maintain are discretionary. It is well established that use of the word “may” in a statute means that the statute is permissive. Dorrian v. Scioto
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Conserv. Dist. (1971), 27 Ohio St.2d 102, 56 O.O.2d 58, 271 N.E.2d 834; Dennison v. Dennison (1956), 165 Ohio St. 146, 59 O.O. 210, 134 N.E.2d 574.
The decision to install or forgo a computer program solely for the purpose of soliciting disposition data from courts in Ohio is a “planning function” involving basic policy considerations and the exercise of a high degree of official discretion. The factors involved in determining the necessity or advisability of establishing such a program include creation of a computer program, fiscal priorities, and staffing considerations.
It follows, therefore, that BCI is immune from tort liability under Reynolds v. State (1984), 14 Ohio St.3d 68, 14 OBR 506, 471 N.E.2d 776. Most recently, the Franklin County Court of Appeals, citing Reynolds, reaffirmed the proposition that neither the state, nor its agencies, can be held liable in making a basic policy decision. Walden v. State (May 5, 1988), Franklin App. No. 87AP-1060, unreported, 1988 WL 44531. See, also, Pottenger v. Ohio Dept. of Transp. (Aug. 11, 1988), Ct. of Claims No. 86-08722, unreported, affirmed (Dec. 12, 1989), Franklin App. No. 88AP-832, unreported, 1989 WL 147998. BCI did not owe a duty to plaintiff to solicit disposition data for his CCH file.
3. One of the basic principles of law is that negligence does not exist unless there is a breach of a duty owed. Stamper v. Parr-Ruckman Home Town Motor Sales (1971), 25 Ohio St.2d 1, 54 O.O.2d 1, 265 N.E.2d 785. This court has long and consistently held that statutes requiring employees of the state to perform statutory duties do not create a duty owed to any particular person, but, rather, pertain to the general public. Thus, it has been held that the performance or nonperformance of such statutory duties cannot be the basis of an action by an individual private party. See Shelton v. Indus. Comm. (1976), 51 Ohio App.2d 125, 5 O.O.3d 386, 367 N.E.2d 51 (worker injured by explosion of boiler could not recover against commission for negligent performance of its duty to inspect workplace, even though worker alleged commission knew or should have known of inherently dangerous condition); Smith v. Wait (1975), 46 Ohio App.2d 281, 75 O.O.2d 560, 350 N.E.2d 431 (duty of Division of Securities to make express findings that business of issuer was not fraudulently conducted held to be a public duty only; division could not be held liable for registration of fraudulent issue of securities even though plaintiff alleged division had actual knowledge of the fraud); Oregon v. Ferguson (1978), 57 Ohio App.2d 95, 385 N.E.2d 1084 (no liability will lie against Auditor of State for alleged negligence in auditing municipal accounts); Cain v. State (1984), 14 Ohio App.3d 105, 14 OBR 119, 470 N.E.2d 208 (state not held liable when its agents issued a driver’s license to a person who could not read or write the English language, who passed an
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examination written in Spanish, and who later caused an accident); Applegate v. Ohio Dept. of Agriculture (1984), 19 Ohio App.3d 221, 19 OBR 366, 483 N.E.2d 1220 (department’s improper performance of its duty to ascertain solvency of grain elevator before issuing a license held not to state a claim upon which relief could be granted); Metzger v. Superintendent of Building Loan Assns. (1986), 31 Ohio App.3d 212, 31 OBR 482, 510 N.E.2d 404 (superintendent’s failure to properly regulate savings and loan institution did not give rise to a claim for relief).
Recently, the Ohio Supreme Court reaffirmed the “public duty” rule in Sawicki v. Ottawa Hills (1988), 37 Ohio St.3d 222, 525 N.E.2d 468. The court held in paragraph four of the syllabus:
“In order to demonstrate a special duty or relationship, the following elements must be shown to exist: (1) an assumption by the [state], through promises or actions, of an affirmative duty to act on behalf of the party who was injured; (2) knowledge on the part of the [state’s] agents that inaction could lead to harm; (3) some form of direct contact between the [state’s] agents and the injured party; and (4) that party’s justifiable reliance on the [state’s] affirmative undertaking.”
BCI is under no statutory obligation to solicit or order from or otherwise require courts to submit disposition data for BCI’s CCH files. Rather, R.C. 109.57(A) places a very specific duty on the courts to send the disposition data to BCI. R.C. 109.57(A) provides, in pertinent part, that:
“Every court of record in this state shall send to the superintendent of the bureau a weekly report containing a summary of each case involving a felony or any crime constituting a misdemeanor on the first offense and a felony on subsequent offenses. The summary shall include the style and number of the case, the dates of arrest, commencement of trial, and conviction, a statement of the offense and the conduct that constituted it, and the sentence or terms of probation imposed, or other disposition of the offender.” (Emphasis added.)
4. As heretofore stated, assuming arguendo that this court could find that BCI had a duty to solicit and collect plaintiff’s disposition data, the breach of said duty was not the proximate cause of plaintiff’s arrest on April 22, 1984.
5. Plaintiff’s remaining claim against BCI, charging BCI with defamation as a result of the communication transmitted through BCI’s CCH files regarding his prior arrest, fails because the communication was privileged.
In a defamation action, a communication is conditionally or qualifiedly privileged where a common interest exists between the publisher (BCI) and
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the recipient (Westlake Police Department) and the communication is of a kind reasonably calculated to protect that interest Knecht v. Vandalia Medical Ctr., Inc. (1984), 14 Ohio App.3d 129, 14 OBR 145, 470 N.E.2d 230. See, also, Costanzo v. Gaul
(1980), 62 Ohio St.2d 106, 16 O.O.3d 134, 403 N.E.2d 979.
In the case sub judice, the common interest between BCI and the Westlake Police Department is readily apparent; said agencies are law enforcement agencies concerned with crime prevention.
R.C. 109.52 provides, in part, that:
“The bureau of criminal identification and investigation may operate and maintain a criminal analysis laboratory and mobile units thereof, create a staff of investigators and technicians skilled in the solution and control of crimes and criminal activity, keep statistics and other necessary data, assist in the prevention of crime, and engage in such other activities as will aid law enforcement officers in solving crimes and controlling criminal activity.”
In turn, the legislature requires that county and municipal law enforcement agencies furnish BCI with information and fingerprints of all persons arrested for felonies and misdemeanors on the first offense. See R.C. 109.60.
In the interest of adding to the effectiveness of law enforcement agencies throughout the state, the General Assembly created a Law Enforcement Communications Committee, of which the Superintendent of BCI is a member. R.C. 109.571(A). It is the function of the committee to aid and encourage coordination and cooperation among law enforcement agencies in the operation and utilization of a statewide law enforcement communications network. R.C. 109.571(C).
The function and authority of BCI are set forth, in complete detail, in R.C. 109.51 through 109.63. Upon review of the above-cited references, the court is satisfied that a common interest between BCI and the Westlake Police Department exists.
In addition to establishing the existence of a common interest between said agencies, BCI demonstrated that the dissemination of the information through its CCH files, regarding plaintiff’s prior criminal history, was accomplished in a manner calculated to protect its confidentiality.
Conditional or qualified privilege is based on public policy. It does not change the actionable quality of the words published, but merely rebuts the inference of malice that is imputed in the absence of privilege, and makes a showing of falsity and actual malice essential to the right of recovery. 35 Ohio Jurisprudence 3d (1982) 505, Defamation and Privacy, Section 65; 50 American Jurisprudence 2d (1970) 698, Libel and Slander, Section 195.
The type of malice required to be established by plaintiff in connection with a qualified privilege case is clearly indicated in the Cuyahoga County Court of
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Appeals’ decision of DeAngelo v. W.T. Grant Co. (1952), 64 Ohio Law Abs. 366, 111 N.E.2d 773. The court stated the following:
“In the case of a privileged communication * * * express malice as distinguished from malice in law must be shown; that is to say, if the occasion be privileged, the plaintiff may not recover, although he proves that defendant used language actionable per se and that the same was false, unless he goes further and shows that in using same defendant was moved by actual malice, such as ill will, spite, grudge or some ulterior motive.” (Emphasis added.) Id. at 370, 111 N.E.2d at 776. See, also, Hahn v. Kotten (1975), 43 Ohio St.2d 237, 72 O.O.2d 134, 331 N.E.2d 713.
The court finds that plaintiff failed to introduce any evidence that BCI had been motivated by actual malice in making the “statement” about plaintiff to the Westlake Police Department through its CCH system.
Upon review of the evidence, applicable law and submitted briefs, and for the aforestated reasons, the court finds that plaintiff’s complaint is not well-taken and thus it is DISMISSED; judgment is rendered in favor of the defendant. It should be noted that the first conclusion of law is dispositive of this case. However, I made the additional findings and conclusions in the interest of judicial economy.
Judgment for defendant.
FRED J. SHOEMAKER, J., retired, of the Franklin County Court of Common Pleas, sitting by assignment.