State ex rel. McDougald v. Greene (Slip Opinion) ( 2020 )

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
ex rel. McDougald v. Greene, Slip Opinion No. 2020-Ohio-3686.]
NOTICE
This slip opinion is subject to formal revision before it is published in an
advance sheet of the Ohio Official Reports. Readers are requested to
promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
South Front Street, Columbus, Ohio 43215, of any typographical or other
formal errors in the opinion, in order that corrections may be made before
the opinion is published.
SLIP OPINION NO. 2020-OHIO-3686
THE STATE EX REL. MCDOUGALD v. GREENE.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as State ex rel. McDougald v. Greene, Slip Opinion No.
2020-Ohio-3686.]
Mandamus—R.C. 149.43—Producing the requested records to a relator in a
public-records mandamus case moots the claim—A prison kite does not
constitute hand delivery—Writ denied.
(No. 2019-0880—Submitted April 28, 2020—Decided July 14, 2020.)
IN MANDAMUS.
________________
Per Curiam.
{¶ 1} Relator, Jerone McDougald, filed this original action for a writ of
mandamus to compel respondent, Larry Greene, the administrative assistant for the
warden at the Southern Ohio Correctional Facility (“SOCF”), to produce two public
records. For the reasons explained below, we deny the writ as moot and deny
McDougald’s requests for an award of court costs and for statutory damages. In
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addition, we deny McDougald’s motion for leave to amend his complaint and merit
brief.
I. BACKGROUND
{¶ 2} On December 5, 2018, McDougald, who had been an inmate at SOCF,
submitted a public-records request for a copy of the Department of Administrative
Services’s general schedule (“the DAS schedule”). And on February 3, 2019, he
submitted a second public-records request for a copy of a report that had been filed
by Brian Barney on December 20, 2018, concerning a use-of-force incident
involving McDougald (“the Barney report”).
{¶ 3} Greene, the SOCF official responsible for responding to inmates’
public-records requests, notified McDougald that the Barney report did not exist.
The record does not indicate what initial response Greene gave, if any, to
McDougald’s request for the DAS schedule.
{¶ 4} On June 28, 2019, McDougald filed a complaint for a writ of
mandamus in this court alleging that Greene had denied both public-records
requests. In Greene’s answer, he averred that he had provided the DAS schedule
to McDougald on July 22, 2019—after McDougald filed the complaint. Greene
continued to assert that the Barney report did not exist. On September 25, we issued
an alternative writ and ordered the parties to file briefs and submit evidence in
accordance with S.Ct.Prac.R. 12.05. 157 Ohio St. 3d 1414, 2019-Ohio-3797, 131
N.E.3d 949.
{¶ 5} Greene submitted his evidence on October 15, which included his
own affidavit. In the affidavit, Greene reiterated that he had provided the DAS
schedule to McDougald. Greene also attached a “document receipt,” which was
dated July 22, 2019, and signed by McDougald acknowledging that he had received
a copy of the DAS schedule. Greene also asserted once more that the Barney report
did not exist.
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{¶ 6} Two weeks later, however, Greene discovered that the Barney report
did exist. On October 31, he filed a motion for leave to file newly discovered
evidence. The motion stated that Greene’s staff had previously searched for a
stand-alone file containing the Barney report and had not found one. But on
October 31, according to Greene, he discovered the Barney report in a multipage
use-of-force report “issued by the Use of Force Committee on April 19, 2018
[sic].”1 According to the motion, Greene provided the report to McDougald that
same day. The motion requested leave to submit an additional affidavit attesting to
these facts.
{¶ 7} McDougald filed a motion to strike Greene’s motion for leave, and
Greene responded with a motion to strike McDougald’s motion. We denied both
motions to strike and granted Greene’s motion for leave to file the additional
evidence. 158 Ohio St. 3d 1404, 2020-Ohio-371, 139 N.E.3d 908. Greene then
filed his supplemental affidavit with the Barney report.
{¶ 8} On February 5, 2020, McDougald filed a motion for leave asking to
amend his complaint and merit brief so that he could allege the following additional
fact to bolster his request for statutory damages: “[T]hat his public records request
kite was hand delivered” to Greene. On February 12, we ordered the parties to brief
the following question: “When none of the statutory delivery methods are available
to an inmate, does a kite constitute hand delivery?” 158 Ohio St. 3d 1404, 2020-
Ohio-371, 139 N.E.3d 908. Both parties filed supplemental briefs. On May 21,
2020, we granted Greene’s motion for leave to file a corrected brief. 158 Ohio
St.3d 1519, 2020-Ohio-3019, 145 N.E.3d 307.
1. Given that the Barney report was not drafted until December 20, 2018, the Use of Force
Committee’s report was likely drafted on April 19, 2019, not 2018.
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II. LEGAL ANALYSIS
A. The merits of McDougald’s public-records case
{¶ 9} Ohio’s Public Records Act, R.C. 149.43(B)(1), requires a public
office to make copies of public records available to any person on request and
within a reasonable period of time. R.C. 149.43(B)(1). Mandamus is an
appropriate remedy by which to compel compliance with R.C. 149.43. R.C.
149.43(C)(1)(b); State ex rel. Physicians Commt. for Responsible Medicine v. Ohio
State Univ. Bd. of Trustees, 108 Ohio St. 3d 288, 2006-Ohio-903, 843 N.E.2d 174,
¶ 6. However, producing the requested records to a relator in a public-records
mandamus case moots the claim. State ex rel. Glasgow v. Jones, 119 Ohio St. 3d
391, 2008-Ohio-4788, 894 N.E.2d 686, ¶ 27.
{¶ 10} Greene submitted his own affidavit and McDougald’s signed receipt
as evidence to establish that he gave the DAS schedule to McDougald in July 2019.
And McDougald has conceded in his merit brief that he received the DAS schedule.
Therefore, McDougald’s request for a writ of mandamus to compel Greene to
provide him with the DAS schedule is moot.
{¶ 11} As for the Barney report, Greene attests in his supplemental affidavit
that he located it and promptly turned it over to McDougald. Greene also submitted
McDougald’s signed acknowledgement that he received a copy of the Barney
report. These facts do not seem to be in dispute. Therefore, the mandamus claim
seeking the Barney report is also moot.
{¶ 12} We deny McDougald’s request for a writ of mandamus as moot.
B. Statutory damages
{¶ 13} A person requesting public records is entitled to an award of
statutory damages “if a court determines that the public office or the person
responsible for [the] public records failed to comply with an obligation in
accordance with division (B) of this section.” R.C. 149.43(C)(2). Statutory
damages shall be awarded “when a court determines that the public office failed to
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comply with an obligation to provide access to the records.” State ex rel. Rogers v.
Dept. of Rehab. & Corr., 155 Ohio St. 3d 545, 2018-Ohio-5111, 122 N.E.3d 1208,
¶ 23. But, even if a relator does not prevail on the mandamus claim, it is still
possible for him to receive an award of statutory damages. See, e.g., State ex rel.
Kesterson v. Kent State Univ., 156 Ohio St. 3d 13, 2018-Ohio-5108, 123 N.E.3d
887, ¶ 22 (holding that even though relator’s mandamus claims were moot, an
award of statutory damages was warranted nonetheless, because respondent took
an unreasonable length of time to produce the records); Kesterson v. Kent State
Univ., 156 Ohio St. 3d 22, 2018-Ohio-5110, 123 N.E.3d 895, ¶ 32 (same).
{¶ 14} A requester may qualify for statutory damages under the current
version of R.C. 149.432 only when he “transmits a written request [for the public
records] by hand delivery, electronic submission, or certified mail * * * to the
public office or person responsible for the requested public records.” R.C.
149.43(C)(2). A requester who fails to prove that delivery was accomplished by
one of the methods authorized in R.C. 149.43(C)(2) is ineligible to receive an award
of statutory damages. See State ex rel. Penland v. Dept. of Rehab. & Corr., 158
Ohio St. 3d 15, 2019-Ohio-4130, 139 N.E.3d 862, ¶ 16 (denying relator’s request
for an award of statutory damages under the applicable version of R.C. 149.43
because “no evidence suggest[ed] that [relator] delivered his request * * * by hand
or certified mail”); State ex rel. Hogan-Lovells U.S., L.L.P. v. Dept. of Rehab. &
Corr., 156 Ohio St. 3d 56, 2018-Ohio-5133, 123 N.E.3d 928, ¶ 35 (plurality
opinion) (concluding that under the applicable version of R.C. 149.43 , a public-
records request served by e-mail did not support an award of statutory damages).
A requester seeking statutory damages must prove the method of delivery by clear
2. Public-records requests are governed by the version of R.C. 149.43 that was in effect at the time
that the request was made. State ex rel. Cordell v. Paden, 156 Ohio St. 3d 394, 2019-Ohio-1216,
128 N.E.3d 179, ¶ 11. The current version of R.C. 149.43 as amended by 2018 Sub.H.B. No. 312,
took effect in November 2018 and governs McDougald’s requests.
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and convincing evidence. State ex rel. Martin v. Greene, 156 Ohio St. 3d 482, 2019-
Ohio-1827, 129 N.E.3d 419, ¶ 9.
1. A prison kite does not constitute hand delivery
{¶ 15} McDougald delivered his public-records requests through the
prison’s kite system. In his supplemental brief, McDougald argues that “when none
of the statutory delivery methods are available to an inmate, a kite constitutes hand
delivery.”
{¶ 16} The prison’s kite system is “the means of two-way communication
between all levels of staff and inmates.” DRC Policy 50-PAM-02, at 6,
https://drc.ohio.gov/Portals/0/Policies/DRC%20Policies/50-PAM-02%20(12-
2019).pdf?ver=2019-12-09-140951-550 (accessed May 15, 2020)
[https://perma.cc/CE3L-J99N]. In order to submit kites, inmates at SOCF use a
form that has been prepared by DRC. The inmate fills in identifying information
on the front of the form and then writes his question, concern, or public-records
request on the back of the form. Captain James Whitman, the officer in charge of
the mail operations at SOCF, stated in his affidavit attached to Greene’s
supplemental brief that each cell block has a sealed “Kite Drop-box,” into which
inmates drop their completed kites. The kite drop boxes are then taken to the
mailroom, where the mailroom staff sorts the kites and delivers them to the
appropriate recipients.
{¶ 17} “Neither the statute nor case law [construing R.C. 149.43] indicates
exactly what ‘hand delivery’ means.” State ex rel. Carr v. London Corr. Inst., 144
Ohio St. 3d 211, 2015-Ohio-2363, 41 N.E.3d 1203, ¶ 40. Although “hand delivery”
does not necessarily require a face-to-face handoff with the ultimate recipient—
handing the request to another prison official can be sufficient. Id. According to
McDougald’s supplemental brief, “a kite constitutes hand delivery as it is a means
of two-way communication between all levels of staff within the institution and a
kite is handed to institution staff who address any issues an inmate may have.”
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January Term, 2020
(Emphasis added.) However, the evidence in the record does not support
McDougald’s unsworn description of the prison’s kite system. According to
Captain Whitman’s affidavit, the inmate places the kite into a sealed lockbox, and
the box is conveyed to a central location for sorting and distribution. A kite is
therefore more analogous to sending a letter through the regular U.S. mail, in which
correspondence is customarily retrieved from a box and passes through multiple
hands before being delivered to its intended recipient. And regular U.S. mail
delivery, unlike certified-mail delivery, does not qualify the sender of a public-
records request for statutory damages.
{¶ 18} Because the prison’s kite system more closely resembles an
insufficient form of delivery—i.e., regular U.S. mail delivery—we hold that
delivery of a public-records request through a prison’s kite system does not qualify
a requester for an award of statutory damages under R.C. 149.43(C)(2).
2. McDougald’s motion for leave to amend
{¶ 19} On February 5, 2020, McDougald filed a motion for leave to amend
his complaint and merit brief “to specify that his public records request kite was
hand delivered to Larry Greene during his inmate communication weekly rounds
pursuant to []DRC policy 50-PAM-02.”3 In Carr at ¶ 40, we held that “hand
delivery of the [public-records] requests to a prison official fulfilled the delivery
requirement of [R.C. 1493.43].” Presumably, McDougald is attempting to amend
his complaint and merit brief so that in the event that this court determines that his
kite does not qualify as hand delivery, he may still qualify for an award of statutory
damages.
{¶ 20} We deny McDougald’s motion for leave to amend his complaint and
merit brief because the amendment would be futile. See ISCO Indus., Inc. v. Great
Am. Ins. Co., 1st Dist. Hamilton No. C-180636, 2019-Ohio-4852, ¶ 52 (holding that
3. DRC policy 50-PAM-02 at 2-3, requires specific officers to visit inmate-living and inmate-
activity areas on a weekly basis.
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a court properly denies a request for leave to amend under Civ.R. 15(A) when an
amendment would be futile). To be eligible for statutory damages, McDougald
must prove that he used a qualifying method of delivery by clear and convincing
evidence. Martin, 156 Ohio St. 3d 482, 2019-Ohio-1827, 129 N.E.3d 419, at ¶ 9.
McDougald has sought to amend his complaint and his merit brief, but he has not
introduced evidence, such as an affidavit, to establish that he personally handed the
kites to Greene. Greene, however, has submitted evidence that he did not enter
McDougald’s cell block or speak to him on December 5, 2018, or February 3, 2019.
{¶ 21} The burden of proof as to the delivery method of a public-records
request falls on McDougald. Amending his complaint and merit brief will not
provide him with any additional evidence and certainly not with evidence sufficient
to meet his burden. The motion for leave is therefore denied.
{¶ 22} Based on the foregoing, we find that McDougald did not deliver his
two public-record requests by one of the qualifying statutory delivery methods and
therefore deny his request for an award of statutory damages.4
C. Court costs
{¶ 23} Finally, McDougald contends that he is entitled to an award of court
costs. Unlike statutory damages, court-cost awards are not dependent on the
requester’s use of any specific method of delivery. When a court grants a writ of
mandamus ordering a public official to produce records, the court shall order an
award of court costs, R.C. 149.43(C)(3)(a)(i). But we are not granting a writ of
mandamus in this case because the requested records have already been produced.
{¶ 24} Therefore, McDougald’s claim for an award of costs is governed by
R.C. 149.43(C)(3)(a)(ii), which states that “[i]f a court makes a determination
described in division (C)(3)(b)(iii) of this section, the court shall determine and
4. We note that McDougald could have sent his public-records requests by certified mail. As stated
by Captain Whitman in his affidavit, DRC policy “requires that all institutions provide certified mail
services for inmates,” and that SOCF “continue[s] to make certified mail available to all inmates.”
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award to the relator all court costs.” R.C. 149.43(C)(3)(b)(iii) states that a court
may award reasonable attorney’s fees to the relator when:
The public office or the person responsible for the public
records acted in bad faith when the office or person voluntarily made
the public records available to the relator for the first time after the
relator commenced the mandamus action, but before the court issued
any order concluding whether or not the public office or person was
required to comply with division (B) of this section. No discovery
may be conducted on the issue of the alleged bad faith of the public
office or person responsible for the public records. This division
shall not be construed as creating a presumption that the public office
or the person responsible for the public records acted in bad faith
when the office or person voluntarily made the public records
available to the relator for the first time after the relator commenced
the mandamus action, but before the court issued any order described
in this division.
{¶ 25} For purposes of this opinion, we are going to assume that it is
possible for a pro se requester like McDougald to be eligible for court costs under
R.C. 149.43(C)(3)(a)(ii) without issuing a holding on that exact issue.5 McDougald
contends that Greene’s bad faith is demonstrated by the fact that Greene did not
produce the DAS schedule until after McDougald filed a complaint for a writ of
5. We have not yet decided whether an award of attorney’s fees under R.C. 149.43(C)(3)(b)(iii) is a
condition precedent to an award of court costs under R.C. 149.43(C)(3)(a)(ii). Two appellate courts
have held that R.C 149.43(C)(3)(a)(ii) does not make an actual award of attorney’s fees a condition
precedent to an award of court costs. See Crenshaw v. Cleveland Law Dept., 8th Dist. Cuyahoga
No. 108519, 2020-Ohio-921, ¶ 57 (contemplating award of court costs in favor of pro se requester
who was ineligible for an award of attorney’s fees); State ex rel. Bristow v. Baxter, 6th Dist. Erie
No. E-18-026, 2019-Ohio-214, ¶ 47 (same).
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mandamus. But R.C. 149.43(C)(3)(b)(iii) does not create a presumption that the
person responsible for retrieving the public records acted in bad faith when he
makes the records available to the requester for the first time after the requester
files a petition for a writ of mandamus, but before a court issues a writ. In other
words, a court’s finding of “bad faith” under R.C. 149.43(C)(3)(b)(iii) must be
based on more evidence than what McDougald has produced.
{¶ 26} “ ‘The term “bad faith” generally implies something more than bad
judgment or negligence.’ ” State v. Powell, 132 Ohio St. 3d 233, 2012-Ohio-2577,
971 N.E.2d 865, ¶ 81, quoting State v. Tate, 5th Dist. Fairfield No. 07 CA 55, 2008-
Ohio-3759, ¶ 13. Bad faith “ ‘ “imports a dishonest purpose, moral obliquity,
conscious wrongdoing, breach of a known duty through some ulterior motive or ill
will partaking of the nature of fraud. It also embraces actual intent to mislead or
deceive another.” ’ ” Id., quoting Hoskins v. Aetna Life Ins. Co., 6 Ohio St. 3d 272,
276, 452 N.E.2d 1315 (1983), quoting Slater v. Motorists Mut. Ins. Co., 174 Ohio
St. 148, 187 N.E.2d 45 (1962), paragraph two of the syllabus, overruled on other
grounds, Zoppo v. Homestead Ins. Co., 71 Ohio St. 3d 552, 664 N.E.2d 397 (1994),
paragraph one of the syllabus. McDougald has not alleged any facts to suggest that
Greene acted in bad faith in his handling of McDougald’s request for the DAS
schedule.
{¶ 27} Nor is there evidence of bad faith regarding the Barney report. As
recently as October 2019, Greene swore in an affidavit that he believed the Barney
report did not exist. Greene reached this conclusion because he looked for the
report in a stand-alone file, but failed to find it. When Greene later found the report
in a package of documents, he provided it to McDougald that very same day.
{¶ 28} McDougald suggests that Greene was untruthful when he claimed
that the Barney report did not exist. As evidence, McDougald submitted a conduct
report prepared by a different officer, describing an incident involving McDougald
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and Barney, in which Barney “deployed a short burst of OC spray”6 for purposes
of restraining McDougald. McDougald’s argument appears to be that since DRC
regulations require Barney to prepare a report after such an incident, the report must
have been prepared. Although this line of reasoning may prove that Barney should
have written a report, it does not prove that he actually wrote a report, and it
certainly does not prove that Greene was untruthful when he said that he could not
locate the report and believed that it did not exist.
{¶ 29} We deny McDougald’s request for court costs.
III. CONCLUSION
{¶ 30} Based on the foregoing, we deny McDougald’s motion for leave to
amend his complaint and merit brief, deny the writ of mandamus as moot, and
decline to award McDougald statutory damages or court costs.
Writ denied.
O’CONNOR, C.J., and FRENCH, FISCHER, DEWINE, and DONNELLY, JJ.,
concur.
KENNEDY, J., dissents, with an opinion joined by STEWART, J.
_________________
KENNEDY, J., dissenting.
{¶ 31} Ohio’s Public Records Act, R.C. 149.43, allows for statutory
damages when a public-records request that was delivered by hand goes
unanswered for an unreasonable length of time. R.C. 149.43(C)(2); State ex rel.
Kesterson v. Kent State Univ., 156 Ohio St. 3d 13, 2018-Ohio-5108, 123 N.E.3d
887, ¶ 22. The issue in this case is whether the use of a kite—a means of
communication approved by the Ohio Department of Rehabilitation and
Corrections (“DRC”) and used by incarcerated individuals to communicate with
prison officials—constitutes “hand delivery” for purposes of R.C. 149.43. If a kite
6. “OC spray” is another term for pepper spray. See Henley v. Dept. of Rehab. & Corr., Ct. of
Claims No. 2014-00275, 2016-Ohio-1276, ¶ 5.
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constitutes hand delivery, then an incarcerated individual who submits his public-
records request by kite is eligible for statutory damages if the public office from
which he requests the record fails to comply with R.C. 149.43. Before today, this
court has not explicitly held whether a public-records request transmitted by kite
constitutes hand delivery.
{¶ 32} The majority opinion does answer the question, but does so without
applying the plain language of the statute. Instead, in reaching its holding, the
majority opinion resorts to an inapt analogy comparing the prison’s kite system to
the United States mail system. In the end, the majority opinion makes clear that
analysis is immaterial; the important thing is that the majority opinion’s desired
result will stand: prison officials may ignore or unreasonably delay responding to
public-records requests made by incarcerated individuals without the fear of any
penalty. That includes instances like the one in this case in which respondent, Larry
Greene, unreasonably delayed responding to the public-records request from
relator, Jerone McDougald, for a report regarding a correctional officer’s use of
force against him. Today, this court diminishes the right of a particular group of
people—incarcerated individuals—to receive the public records that they have
properly requested under R.C. 149.43, and thereby has created a collateral
consequence of incarceration. The plain language of R.C. 149.43 requires this court
to hold that a public-records request submitted by kite constitutes hand delivery and
that the incarcerated individual who submitted the request is therefore eligible for
statutory damages. Accordingly, I dissent.
Factual background
{¶ 33} At the time that McDougald made his public-records requests, he
was incarcerated at the Southern Ohio Correctional Facility (“SOCF”). Greene is
the administrative assistant to the warden and is the person tasked with responding
to incarcerated individuals’ public-records requests at SOCF. On December 5,
2018, McDougald used a kite to request a copy of the Department of Administrative
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Services’ general schedule (“the DAS schedule”). On February 3, 2019, using
another kite, he submitted a second public-records request for a copy of a report
that had been filed by Brian Barney on December 20, 2018, concerning a use-of-
force incident involving McDougald (“the Barney report”). Greene confirms that
the warden’s office received both requests.
{¶ 34} On February 13, 2019, Greene sent a response to McDougald stating,
“Your request for an Incident Report filed by Brian Barney on December 20, 2018
does not exist. This is according to the secretary that searched the records to fulfill
this public record request.” The record in this case does not contain a response
from Greene regarding McDougald’s request for the DAS schedule.
{¶ 35} On June 28, 2019, McDougald filed a complaint for a writ of
mandamus in this court claiming that Greene denied his request for the DAS
schedule on December 7, 2018, and his request for the Barney report on February
13, 2019. Noting that “[a] person who transmits a valid written request for public
records by hand delivery is entitled to receive statutory damages,” McDougald
sought statutory damages in the amount of $1,000.
{¶ 36} Greene filed an answer on July 22, 2019, stating that he had provided
the DAS schedule to McDougald that same day—July 22. Greene also asserted
that on February 13, he had told McDougald that the Barney report did not exist.
On September 25, this court issued an alternative writ and ordered the parties to file
briefs and submit evidence in accordance with S.Ct.Prac.R. 12.05. 157 Ohio St. 3d
1414, 2019-Ohio-3797, 131 N.E.3d 949.
{¶ 37} Greene submitted evidence on October 15, 2019, including his own
affidavit, in which he stated, “My response to Relator McDougald that an incident
report filed by Brian Barney on December 20, 2018 does not exist, still stands as it
is the correct response to his request.” But in an October 31, 2019 motion for leave
to file newly discovered evidence, Greene changed course, admitting that the
Barney report did exist, stating that “it was just discovered that the Incident Report
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was included in a packet of information and documents reviewed and maintained
by the SOCF Use of Force Committee.” Greene reported that he provided
McDougald the Barney report on October 31, 2019, almost nine months from when
he had asked for it. The Barney report was drafted on December 20, 2018, so it
existed when McDougald made his public-records request.
{¶ 38} On February 5, 2020, McDougald filed a motion for leave to amend
his complaint and brief, asking to amend his complaint “to specify that his public
records request kite was hand delivered to Larry Greene during his inmate
communication weekly rounds * * * on December 5, 2018 and February 3, 2019.”
McDougald submitted no affidavit in support of that motion, and the majority
denies the motion today.
{¶ 39} On February 12, this court ordered briefing on the following issue:
“When none of the statutory delivery methods are available to an inmate, does a
kite constitute hand delivery?” 158 Ohio St. 3d 1404, 2020-Ohio-371, 139 N.E.3d
908. It is regrettable that the phrasing of the question is imprecise; the wording
seems to assume that a kite is not “a statutory delivery method[ ] available to an
inmate,” and that if an incarcerated individual has the financial wherewithal to send
a certified-mail request or has access to e-mail, a kite cannot constitute hand
delivery. What the court really asks—and the question the majority answers—is
whether a kite constitutes hand delivery.
The kite system
{¶ 40} “A ‘kite’ is written by an inmate to a member of the prison staff and
is ‘a means for inmates to contact staff members inside [an] institution.’ ” State ex
rel. Martin v. Greene, 156 Ohio St. 3d 482, 2019-Ohio-1827, 129 N.E.3d 419, ¶ 3,
fn. 1, quoting State v. Elmore, 5th Dist. Richland No. 16CA52, 2017-Ohio-1472,
¶ 15. Pursuant to a DRC policy, “[t]he inmate kite system shall be utilized as the
means of two-way communication between all levels of staff and inmates.” DRC
Policy 50-PAM-02, at 6, https://drc.ohio.gov/Portals/0/Policies/DRC%20Policies
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/50-PAM-02%20(12-2019).pdf?ver=2019-12-09-140951-550 (accessed June 15,
2020) [https://perma.cc/R42H-UHK2]. DRC’s protocol for responding to kites is
to answer each kite “within seven (7) calendar days.” Id. Kites must also receive
an entry in the prison’s kite log. Id. And responses must be “either written directly
on the kite received or on the Kite Response form.” Id. Here, Greene used the kite-
response form.
{¶ 41} The kite form that inmates use is created by the DRC. Each kite is
preprinted and contains instructions. The instructions include, “[W]rite only to the
Department that handles the problem you have. Others will merely forward your
kite,” and, “Kites are to be used only for communication between inmates and
Institutional Staff and not for any other purpose.” Inmates name the person to
whom they want the kite delivered and also circle the job title or work area of the
person to whom they want it delivered from a list that includes: warden, deputy
warden, the Library, Records, and others. At SOCF, incarcerated individuals
deposit their completed kites in a locked container. Each cell block has a kite
lockbox. If an incarcerated individual is unable to leave his cell, an on-duty
corrections officer will walk the lockbox to the inmate so that he can drop the kite
into the secured lockbox. The lockboxes are then taken to the mailroom, where the
kites are sorted and then delivered to the addressee.
Statutory damages
{¶ 42} Pursuant to R.C. 149.43(C)(2),7 a person who makes a public-
records request “shall be entitled to recover * * * statutory damages * * * if a court
determines that the public office or the person responsible for public records failed
to comply with an obligation in accordance with” R.C. 149.43(B). R.C.
7. Public-records requests are governed by the version of R.C. 149.43 that was in effect at the time
that the request was made. State ex rel. Cordell v. Paden, 156 Ohio St. 3d 394, 2019-Ohio-1216,
128 N.E.3d 179, ¶ 11. The version of the Public Records Act that governs McDougald’s requests,
R.C. 149.43 as amended by 2018 Sub.H.B. No. 312, took effect in November 2018 and governs
McDougald’s requests.
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149.43(B)(1) states that “a public office or person responsible for public records
shall make copies of the requested public record available to the requester at cost
and within a reasonable period of time.” (Emphasis added.) Greene does not argue
that he provided the records to McDougald within a reasonable period of time. He
unquestionably failed to comply with an obligation imposed by R.C. 149.43(B).
{¶ 43} Therefore, McDougald is substantively eligible for statutory
damages. The purpose of awarding statutory damages is to provide “compensation
for injury arising from lost use of the requested information. The existence of this
injury shall be conclusively presumed.” R.C. 149.43(C)(2). Statutory damages are
calculated at the rate of $100 for every business day the public office or person
responsible for the requested public records fails to comply with an obligation
under R.C. 149.43(B), starting from the date of the filing of a complaint in
mandamus, with a maximum award of $1,000. R.C. 149.43(C)(2). Given the time
that passed from when McDougald filed his complaint to when Greene produced
the Barney report, McDougald is eligible for the statutory maximum.
{¶ 44} However, a court may reduce or decline to award statutory damages
if it finds that based on the law as it existed at the time that the public office
allegedly failed to comply with R.C. 149.43, “a well-informed public office * * *
reasonably would believe that the conduct * * * did not constitute a failure to
comply * * * with [R.C. 149.43(B)],” R.C. 149.43(C)(2)(a), and that “a well-
informed public office * * * reasonably would believe that the conduct * * * of the
public office * * * would serve the public policy that underlies the authority that is
asserted as permitting that conduct,” R.C. 149.43(C)(2)(b).
{¶ 45} Under this standard, McDougald would be entitled to a full award of
statutory damages. The factors that allow a court to reduce statutory damages under
R.C. 149.43(C)(2) do not apply here. No well-informed public office or person
responsible for the requested public records would believe that failing to provide
McDougald the Barney report for nearly nine months or the DAS schedule for more
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than seven months constituted compliance with R.C. 149.43. And no such public
office or person would believe that Greene’s failure to provide the public records
served any public policy underlying R.C. 149.43.
{¶ 46} Therefore, the only thing keeping McDougald from being awarded
statutory damages in this case is the procedural hurdle that such damages are
available to him only if he “transmit[ted] a written request by hand delivery,
electronic submission, or certified mail.” And that brings us to the question upon
which we ordered briefing.
A kite qualifies as hand delivery under R.C. 149.43(C)(2)
{¶ 47} Our main objective in applying a statute is to determine and then
give effect to the legislature’s intent, State ex rel. Solomon v. Police & Firemen’s
Disability & Pension Fund Bd. of Trustees, 72 Ohio St. 3d 62, 65, 647 N.E.2d 486
(1995), which is decided by reviewing the language of the statute itself, Stewart v.
Trumbull Cty. Bd. of Elections, 34 Ohio St. 2d 129, 130, 296 N.E.2d 676 (1973).
“When the statutory language is plain and unambiguous, and conveys a clear and
definite meaning, we must rely on what the General Assembly has said.” Jones v.
Action Coupling & Equip., Inc., 98 Ohio St. 3d 330, 2003-Ohio-1099, 784 N.E.2d
1172, ¶ 12, citing Symmes Twp. Bd. of Trustees v. Smyth, 87 Ohio St. 3d 549, 553,
721 N.E.2d 1057 (2000). “An unambiguous statute is to be applied, not
interpreted.” Sears v. Weimer, 143 Ohio St. 312, 55 N.E.2d 413 (1944), paragraph
five of the syllabus.
{¶ 48} R.C. 149.43(C)(2) states:
If a requester transmits a written request by hand delivery
* * * to inspect or receive copies of any public record * * * to the
public office or person responsible for the requested public records,
* * * the requester shall be entitled to recover the amount of
statutory damages set forth in this division if a court determines that
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the public office or the person responsible for public records failed
to comply with an obligation in accordance with division (B) of this
section.
{¶ 49} “Hand delivery” is not defined in R.C. 149.43 and we therefore
construe its meaning according to its common usage. R.C. 1.42. We do not need
to employ dictionaries to know that “hand delivery” means delivery by hand or
personally transporting something. For purposes of this case, the key language
from the statute is that hand delivery of a public-records request does not have to
be made to a specific person. Instead, the request may be transmitted by hand
delivery to the public office. Therefore, if hand delivery is made to the public office,
the requester is eligible for statutory damages. “ ‘Public office’ includes any state
agency, public institution, political subdivision, or other organized body, office,
agency, institution, or entity established by the laws of this state for the exercise of
any function of government.” R.C. 149.011(A). Because SOCF is a public
institution operated by a state agency, it qualifies as a “public office.” See State ex
rel. Rogers v. Dept. of Rehab. & Corr., 155 Ohio St. 3d 545, 2018-Ohio-5111, 122
N.E.3d 1208, ¶ 6.
{¶ 50} McDougald hand delivered his public-records requests to SOCF
when he deposited his kite into the receptacle within the public office that is
designated to accept public-records requests from incarcerated individuals. The
fact that McDougald resided within the very public office where he made his hand
delivery does not matter. R.C. 149.43(C)(2) does not care that his trip was short.
The only thing that matters is that he achieved delivery by hand to the public office.
{¶ 51} The majority neither applies nor interprets R.C. 149.43(C)(2).
Instead, the majority reaches its desired result by using a faulty analogy. The
majority focuses on SOCF’s kite procedure and fixates on the words “sealed
lockbox,” majority opinion at ¶ 17, and concludes that since the regular U.S. mail
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January Term, 2020
delivery also uses secured boxes to hold mail, the SOCF kite system is the same as
regular U.S. mail. According to the majority, because an incarcerated individual
places his kite into a sealed lockbox and the box is conveyed to a central location
for sorting and distribution, a kite request is “therefore more analogous to sending
a letter through the regular U.S. mail, in which correspondence is customarily
retrieved from a box and passes through multiple hands before being delivered to
its intended recipient.” Majority opinion at ¶ 17. The majority then reasons that
since regular U.S. mail delivery does not qualify a requester of public records for
statutory damages, a person who makes a request using a kite does not qualify to
receive statutory damages.
{¶ 52} But an incarcerated individual’s hand delivery of a public-records
request to the public office has been achieved once he places the kite in the lockbox.
How the public office routes the public-records request once it has been received is
irrelevant under R.C. 149.43(C)(2). Whether the public office moves a sealed
lockbox to a central-distribution point or whether it distributes the request by carrier
pigeon does not matter. Ohio’s Public Records Act does not involve itself with the
minutiae of how a request moves through a bureaucracy. Ohio’s Public Records
Act simply provides that when the public office receives a public-records request,
it must respond within a reasonable amount of time. If the public office fails to
respond or takes too long to respond, it is liable for statutory damages if the request
was delivered by a qualifying method. Here, hand delivery occurred when the
requests went into the lockbox.
{¶ 53} Further, SOCF’s kite system is nothing like the regular U.S. mail.
The incarcerated person is not paying a separate entity to deliver his message. The
kite never leaves SOCF. No personnel other than employees of the recipient public
office ever touch the kite. There is no separate agency acting as an intermediary.
The sealed-lockbox system would be analogous to the U.S. mail only if U.S. mail
delivery were achieved by each sender carrying his own letter to the recipient’s
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address himself, entering the recipient’s home or place of business, and placing the
piece of mail in a receptacle inside the recipient’s home or business. In other words,
the two delivery methods are not analogous at all.
{¶ 54} If the majority truly believes the kite system is analogous to the U.S.
mail—which it is assuredly not for the reasons stated above—it is analogous to a
certain species of U.S. mail: certified mail. DRC policy requires that the recipient
respond within seven days after receiving the kite by returning the kite with an
answer written on it or by completing and delivering a kite-response form. See
DRC Policy 50-PAM-02, at 6. Through the use of the kite log and the receipt
system, an inmate can be assured that his kite was delivered, as with certified mail.
{¶ 55} But analogies are unnecessary. McDougald did all he needed to do
in order to qualify for an award of statutory damages under R.C. 149.43(C)(2)—he
hand delivered his public-records requests to the public office. R.C. 149.43(C)(2)
concerns itself with the manner of delivery—hand delivery, e-mail, or certified
mail. It leaves to the public office where to take delivery; R.C. 149.43(E)(2) allows
the public office to adopt its own public-records policy for responding to public-
records requests. SOCF has determined that public-records requests may be
dropped into lockboxes in each cell block. Once the kite enters the lockbox,
delivery has been made to the public office. The majority is wrapped up in how
the request is routed through SOCF after delivery has been made to the public
office. But the public office’s determination of what employee or official should
address the request and how that request reaches that person once it is delivered to
the public office are irrelevant, since R.C. 149.43(C)(2) requires only delivery by
hand to the public office. The majority wants to point to the multiple hands the kite
may go through until it reaches its destination within the public office. The majority
confuses distribution with delivery. The simple, statutory truth is that once a kite
hits the lockbox, it is delivered.
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January Term, 2020
{¶ 56} SOCF designated the place where public-records requests are to be
deposited, and McDougald deposited his requests there. Had he not been an inmate,
but a person who delivered his public-records requests to SOCF and deposited them
in a secure lockbox designated for the delivery of public-records requests, would
the majority hesitate to award him statutory damages? Obviously, the secured
lockbox is employed by the institution to prevent allegations of destruction or the
accidental misplacement of an inmate’s kite. The secured lockbox also achieves a
level of trust between the incarcerated individual and staff of the institution that the
kite will not be tampered with and assures incarcerated individuals that they will be
heard. That is why SOCF’s policy requires that when someone who is on restriction
and confined to a cell wants to deposit a kite, the correctional officer has to take the
secured lockbox to the incarcerated individual.
{¶ 57} Even if McDougald were required to hand deliver his request to the
“person responsible for the requested records,” R.C. 149.43(C)(2), and not just to
the public office, he did just that. In State ex rel. Carr v. London Corr. Inst., 144
Ohio St. 3d 211, 2015-Ohio-2363, 41 N.E.3d 1203, ¶ 40, this court determined that
a prisoner hand delivered his public-records request when he gave the request to a
prison official who he knew would deliver it to the public-records custodian. In
Carr, the requesting prisoner was not allowed into the restricted area where the
public-records custodian worked and therefore could not personally hand his
public-records request to the public-records custodian. This court determined that
Carr’s hand delivery of his public-records request to a prison official who could
then pass on the request to the public-records custodian fulfilled the statute’s hand-
delivery requirement.
{¶ 58} This is what McDougald did in this case. The kite form told him that
his public-records requests would be delivered to the department that would handle
his request. SOCF’s kite system allows an inmate to hand deliver a public-records
request that he knows that will be delivered, pursuant to prison policy, by a prison
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SUPREME COURT OF OHIO
official to the person listed on the kite. Therefore, as in Carr, McDougald’s
delivery to an intermediary constitutes hand delivery.
Conclusion
{¶ 59} “The award of statutory damages shall not be construed as a penalty,
but as compensation for injury arising from lost use of the requested information.
The existence of this injury shall be conclusively presumed.” R.C. 149.43(C)(2).
McDougald waited nearly nine months to receive the Barney report regarding an
incident in which force was used against him in a restraint incident and more than
seven months for the DAS schedule. Pursuant to R.C. 149.43, he is entitled to
compensation for the delay.
{¶ 60} Incarcerated individuals at SOCF have no access to an e-mail system
to make public-records requests and the cost of certified mail is prohibitive. The
majority holds that the limitation on how incarcerated individuals make public-
records requests prevents them from receiving compensation for injury from the
lost use of the requested information. Today, this court determines that when an
incarcerated individual deposits a public-records request by hand into a receptacle
designated to collect such requests in the facility from which he seeks the record,
that his deposit does not constitute “hand delivery” to the public office under R.C.
149.43(C)(2). I disagree, and would hold that a public-records request made by
kite constitutes hand delivery under the plain and unambiguous language of R.C.
149.43(C)(2). To hold otherwise not only misconstrues the plain language of the
statute but also encourages the delay and obfuscation that has happened in this case.
{¶ 61} Today it is this court, not the General Assembly, that is responsible
for the disparate treatment of incarcerated individuals under the Public Records Act
engendered by this opinion. The majority acknowledges that by not even analyzing
the words the General Assembly uses in the Public Records Act.
{¶ 62} McDougald’s incarceration makes him no less deserving of the
benefit of R.C. 149.43(C)(2) than any other citizen. The General Assembly is the
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January Term, 2020
sole “arbiter of public policy in Ohio,” Pelletier v. Campbell, 153 Ohio St. 3d 611,
2018-Ohio-2121, 109 N.E.3d 1210, ¶ 31, and until the General Assembly strips
away or reduces an incarcerated individual’s right to make a public-records request,
McDougald stands equal in the eyes of the law.
{¶ 63} Therefore, I dissent.
STEWART, J., concurs in the foregoing opinion.
_________________
Jerone McDougald, pro se.
Dave Yost, Attorney General, and Tracy L. Bradford, Senior Assistant
Attorney General, for respondent.
_________________
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