State ex rel. Ware v. Giavasis (Slip Opinion) , 2020 Ohio 5453 ( 2020 )

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
ex rel. Ware v. Giavasis, Slip Opinion No. 2020-Ohio-5453.]
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-5453THE STATE EX REL. WARE v. GIAVASIS ET AL.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as State ex rel. Ware v. Giavasis, Slip Opinion No.
2020-Ohio-5453.]
Mandamus—Public Records Act—Relator must establish by clear and convincing
evidence entitlement to a writ of mandamus—There is no duty to provide to
an inmate any public record concerning a criminal investigation or
prosecution unless the judge who imposed the sentence finds that the
information sought in the public record is necessary to support what
appears to be a justiciable claim of the person—Requests for case
documents in cases commenced on or after July 1, 2009, are governed by
the Rules of Superintendence, not the Public Records Act—Writ denied.
(No. 2020-0043—Submitted July 21, 2020—Decided December 1, 2020.)
IN MANDAMUS.
________________
Per Curiam.
SUPREME COURT OF OHIO
{¶ 1} Relator, Kimani Ware, filed an original action in this court for a writ
of mandamus to compel the production of records in response to seven public-
records requests that he sent in May 2019 and an eighth request he sent in June
2019. He has also asked this court to conduct an in camera inspection of the
contested records and to award statutory damages pursuant to R.C. 149.43(C)(2).
On March 25, 2020, we issued an alternative writ and ordered that evidence be
submitted and briefs be filed pursuant to S.Ct.Prac.R. 12.05 for three respondents:
Stark County Clerk of Courts Louis P. Giavasis, Stark County Chief Deputy Clerk
of Courts Anthony J. Flex, and the Stark County Clerk of Court’s Office
(collectively, “the clerk’s office”). 158 Ohio St.3d 1442, 2020-Ohio-1032, 141
N.E.3d 967.
{¶ 2} For the reasons set forth herein, we deny Ware’s request for an in
camera inspection of the records, deny the writ of mandamus, and deny statutory
damages.
Background
{¶ 3} Ware is an inmate at the Trumbull Correctional Institution. On May
6, 2019, Ware prepared seven separate public-records requests directed to the Stark
County Clerk of Courts. He requested:
 Request one: A copy of the docket sheets for case Nos. 1991-CR-1164,
2009-CR-2044, 1999-CR-167B, 1996-CR-1277, and 2019-CA-00003; a
copy of the oath of office of Chief Deputy Clerk Flex; a copy of a roster
listing the employees of the Stark County Clerk of Court’s Office, a copy
of the employee handbook for the clerk’s office; and “a copy of the jury
questionnaire form (Blank copy).”
 Request two: A copy of the “Stark County Grand Jury reports from January
1, 2018 through May 6, 2019.”
 Request three: A copy of Giavasis’s oath of office and copies of the
employee-evaluation forms for Giavasis and Flex.
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 Request four: A copy of the leave and time-off requests submitted by
Giavasis and Flex from January 1, 2018, through May 6, 2019.
 Request five: A copy of the payroll records for Giavasis and Flex from
January 1, 2018, through May 6, 2019.
 Request six: A copy of the time cards for Giavasis and Flex from January
1, 2018, through May 6, 2019.
 Request seven: A copy of Giavasis’s and Flex’s personnel files.
Ware alleges that he sent all of these requests by certified mail, to the Stark County
Clerk of Courts. However, the clerk’s office claims that it received only request
one.
{¶ 4} The clerk’s office forwarded request one to the county prosecuting
attorney, who responded via letter to Ware on June 4, 2019. In that letter, the
prosecuting attorney declined to provide Ware copies of the docket sheets until and
unless Ware obtained an order from his sentencing judge. In response to Ware’s
request for “the jury questionnaire form (Blank copy),” the assistant prosecuting
attorney wrote that “we cannot provide you with [the] requested item * * * as there
is no such document in the possession of the Stark County Clerk of Courts that is
responsive to your request.” As for the remaining records sought in request one,
the letter indicated that copies for Ware had been made at a total cost of $5.20, and
that he would receive the records once he paid the invoice.
{¶ 5} Although Ware submitted his request to the clerk’s office, not to the
prosecutor’s office, the response letter from the prosecutor’s office stated: “On May
13, 2019 this office received your public records request, dated May 6, 2019.”
(Emphasis added.) Although Ware acknowledges receiving this response from the
prosecutor’s office, he complains that he should have received a response from the
clerk’s office.
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{¶ 6} On June 17, 2019, Ware sent another request (“request eight”).
Request eight, which was also sent by certified mail, repeated the request for a copy
of the “Juror Questionnaire Form (Blank Copy).” It also asked for a copy of the
docket sheets for four additional cases: 1993-CR-3870, 2012-CR-1709, 2009-CR-
828, and 2004-CR-2225.
{¶ 7} On July 1, 2019, the clerk’s office denied Ware the records that he
sought in request eight. The clerk’s office stated that pursuant to R.C.
149.43(B)(8), it would not provide the docket sheets until Ware obtained a finding
from his sentencing judge that the requested information was “necessary to support
what appears to be a justiciable claim.” The clerk’s office also informed Ware that
“no such document titled ‘Juror Questionnaire Form (Blank Copy)’ exist[ed] with
[that] office.”
{¶ 8} The clerk’s office claims to have no record of requests two through
seven and alleges that it became aware of those requests on January 17, 2020, upon
receipt of the mandamus complaint. Thereafter, the clerk’s office sent an initial
response letter, dated January 22, informing Ware that it had just learned of his
additional requests and that it was “determining what records [Ware is] entitled to
and compiling them to determine the cost of these records.”
{¶ 9} On January 29, 2020, the clerk’s office sent a formal response
regarding requests two through seven. The office refused to provide Ware the
grand-jury reports (request two) without a judicial finding from his sentencing
judge in accordance with R.C. 149.43(B)(8). The letter further explained that
employee-evaluation forms for Giavasis and Flex (request three) did not exist, and
that the leave and time-off requests (request four) were included in the personnel
files (request seven). The office informed Ware that the remaining records totaled
255 pages and a payment of $25.50 for the copies was required along with a self-
addressed, postage-prepaid envelope. The letter explained to Ware that upon
receipt of the money and the envelope, the office would send the records to him.
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{¶ 10} Ware has not provided an order from his sentencing judge for the
case dockets sought in requests one and eight or the grand-jury reports sought in
request two. Nor has he paid the copying costs for requests three through seven.
Procedural history
{¶ 11} Ware filed an original action for a writ of mandamus in this court on
January 9, 2020. In addition to the clerk’s office, the complaint named as
respondents Stark County Prosecuting Attorney John D. Ferrero, Assistant
Prosecuting Attorney David E. Deibel, and the Stark County Prosecutor’s Office.
Respondents filed a motion to dismiss, which was granted as to Ferrero, Deibel,
and the Stark County Prosecutor’s Office. 158 Ohio St.3d 1442, 2020-Ohio-1032,
141 N.E.3d 967. The remaining parties have submitted evidence and filed merit
briefs in accordance with S.Ct.Prac.R. 12.05.1 See id.Legal analysis
{¶ 12} Ohio’s Public Records Act, R.C. 149.43, requires a public office to
make copies of public records available to any person upon request within a
reasonable period of time. R.C. 149.43(B)(1). A “public record” is a record “kept
by any public office.” R.C. 149.43(A)(1). Mandamus is an appropriate remedy by
which to compel compliance with the Public Records Act. 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.
{¶ 13} To be entitled to the writ, Ware must demonstrate that he has a clear
legal right to the requested relief and that the clerk’s office has a clear legal duty to
provide that relief. See State ex rel. Cincinnati Enquirer v. Sage, 142 Ohio St.3d
392, 2015-Ohio-974, 31 N.E.3d 616, ¶ 10. Ware must prove his right to relief by
1. In their merit brief, respondents suggest that the Stark County Clerk of Courts Office should be
dismissed as a party because it is not sui juris, and therefore cannot be sued. Because the legal
analysis relating to this argument is irrelevant to the outcome of the case, we decline to resolve this
issue.
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clear and convincing evidence. Id. However, Ohio’s Public Records Act “is
construed liberally in favor of broad access, and any doubt is resolved in favor of
disclosure of public records.” State ex rel. Cincinnati Enquirer v. Hamilton Cty.,
75 Ohio St.3d 374, 376, 662 N.E.2d 334 (1996).
Ware’s request for case-docket sheets and grand-jury reports
{¶ 14} Ware requested the docket sheets for various cases as well as specific
grand-jury reports. The clerk’s office cited R.C. 149.43(B)(8) as the basis for
denying Ware’s requests.
{¶ 15} R.C. 149.43(B)(8), an exception to disclosure, provides that there is
no duty to provide to an inmate “any public record concerning a criminal
investigation or prosecution” unless “the judge who imposed the sentence * * *
finds that the information sought in the public record is necessary to support what
appears to be a justiciable claim of the person.” For example, an inmate who seeks
a copy of his indictment cannot compel the production of those public records
without a finding by the sentencing judge that the record supports a valid claim.
See McCain v. Huffman, 151 Ohio St.3d 611, 2017-Ohio-9241, 91 N.E.3d 749,
¶ 12.
{¶ 16} Exceptions to disclosure under the Public Records Act are strictly
construed against the public-records custodian, who has the burden to establish the
applicability of an exception. State ex rel. Toledo Blade Co. v. Seneca Cty. Bd. of
Commrs., 120 Ohio St.3d 372, 2008-Ohio-6253, 899 N.E.2d 961, ¶ 18. The
evidence shows that Ware is an inmate and that he has not obtained a finding from
his sentencing judge under 149.43(B)(8). And Ware does not dispute that the
docket sheets and grand-jury reports are “public record(s) concerning a criminal
investigation or prosecution,” id. Therefore, the clerk’s office has proven the
applicability of this statutory exception.
{¶ 17} In his merit brief, Ware does not present any legal argument to
counter the exception included in R.C. 149.43(B)(8) or show why he is entitled to
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the docket sheets or grand-jury reports. His sole argument in his second proposition
of law, which addresses only the docket sheets, asserts that the docket sheets are
public records and therefore must be produced. But R.C. 149.43(B)(8) assumes
that the records in question are public records and fashions an exception to
disclosure despite the fact that they are public records.
{¶ 18} We note at least two of the docket sheets are not governed by the
Public Records Act. Specifically, Ware requested the docket sheets for case Nos.
2019-CA-00003 and 2012-CR-1709. Requests for case documents in cases
commenced on or after July 1, 2009, are governed by the Rules of Superintendence,
not the Public Records Act. State ex rel. Parker Bey v. Byrd, 160 Ohio St.3d 141,
2020-Ohio-2766, 154 N.E.3d 57, ¶ 11, citing Sup.R. 47(A)(1); see also State ex rel.
Striker v. Smith, 129 Ohio St.3d 168, 2011-Ohio-2878, 950 N.E.2d, ¶ 21, fn. 2
(holding that the superintendence rules were inapplicable to a request for case
documents from a case commenced in 2006).2 Likewise, the requests for grand-
jury reports from 2018 and 2019 are not governed by the Public Records Act.
However, those facts do not change the outcome of this case.
{¶ 19} The fact that Ware cited only the Public Records Act in his public-
records requests is not fatal to his demand for documents that are governed by the
Rules of Superintendence. “Generally, it is not necessary to cite a particular rule
or statute in support of a records request until the requester attempts to satisfy the
more demanding standard applicable when claiming that he is entitled to a writ of
mandamus to compel compliance with the request.” Parker Bey at ¶ 14. However,
because Ware has invoked only the Public Records Act in this action, Ware is not
entitled to a writ of mandamus as to any documents governed by the Rules of
Superintendence. State ex rel. Parisi v. Dayton Bar Assn. Certified Grievance
2. Ware also requested two docket sheets from 2009: case Nos. 2009-CR-2044 and 2009-CR-828.
It is unclear from this record when in 2009 those cases were commenced, and hence, it is unclear
whether the Rules of Superintendence or Ohio’s Public Records Act governs those requests.
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Commt., 159 Ohio St.3d 211, 2019-Ohio-5157, 150 N.E.3d 43, ¶ 21; see also State
ex rel. Richfield v. Laria, 138 Ohio St.3d 168, 2014-Ohio-243, 4 N.E.3d 1040, ¶ 8
(“Sup.R. 44 through 47 deal specifically with the procedures regulating public
access to court records and are the sole vehicle for obtaining records in actions
commenced after July 1, 2009”).
{¶ 20} For these reasons, we hold that Ware is not entitled to a writ of
mandamus as to the docket sheets and grand-jury reports.
Ware’s remaining public-records requests
{¶ 21} Ware argues in his first proposition of law that he is entitled to the
public records in his requests one through seven. This claim has two facets. His
primary concern is that the clerk’s office took an unreasonable amount of time to
respond to requests two through seven, a contention that is addressed below.
Alternatively, he makes a merits-based argument.
{¶ 22} Apart from the docket sheets and grand-jury reports discussed
above, the only requests that the clerk’s office failed to honor were those seeking
employee-evaluation forms for Giavasis and Flex and “Juror Questionnaire Form
(Blank Copy),” both of which the office claims do not exist. Ware has presented
no argument or evidence to suggest that these records do exist, and as the party
seeking the writ of mandamus, he carries the burden of proof.
{¶ 23} As to the remaining records, the clerk’s office has not denied those
requests; it has simply demanded payment in advance before providing the copies.
The Public Records Act does not require a public-records custodian to provide
copies of records free of charge. State ex rel. Call v. Fragale, 104 Ohio St.3d 276,
2004-Ohio-6589, 819 N.E.2d 294, ¶ 6. Instead, the statute “requires only that
copies of public records be made available at cost.” Id. Thus, R.C. 149.43(B)(1)
“authorizes a public office to require the prepayment of costs before providing
copies of public records.” State ex rel. Dehler v. Spatny, 127 Ohio St.3d 312, 2010-
Ohio-5711, 939 N.E.2d 831, ¶ 4.
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{¶ 24} The clerk’s office has offered to make the records available and has
identified the cost for copying them. Ware has not paid the cost or challenged the
reasonableness of the amount. Consequently, he is not entitled to a writ of
mandamus as to those public-records requests.
Ware’s request for an in camera inspection
{¶ 25} In his complaint, Ware asked for an order compelling the clerk’s
office to file the records under seal for an in camera inspection. As our preceding
discussion has shown, the legal analysis of Ware’s mandamus complaint and the
clerk’s office’s defense against the complaint does not depend on the content of the
records. An inspection of the records is therefore unnecessary, and so we deny this
request.
Statutory damages
{¶ 26} In his third proposition of law, Ware argues for an award of statutory
damages. Under the Public Records Act, a requester seeking statutory damages
must prove that the request was delivered “by hand delivery, electronic submission,
or certified mail.” R.C. 149.43(C)(2). The evidence in this case shows that Ware
delivered at least some of his requests by certified mail. However, Ware is not
entitled to statutory damages.
{¶ 27} A person requesting public records “shall” be entitled to recover 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 [R.C. 149.43(B)].” R.C. 149.43(C)(2). Ware suggests two
interrelated violations by the clerk’s office of duties owed to him under the Public
Records Act.
{¶ 28} First, he contends that the clerk’s office failed in its duty to provide
the records he requested. As indicated above, we conclude that the clerk’s office
did not breach any duty under the Public Records Act. Alternatively, Ware objects
to the length of time the clerk’s office took to respond to requests one through
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seven. R.C. 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.)
According to Ware, the clerk’s office took “seven months to respond to [his] seven
written public records requests served by certified mail on May 13, 2019.”
{¶ 29} With respect to request one, the evidence shows that the prosecutor’s
office responded on June 4, 2019, approximately three weeks after the request first
reached the clerk’s office. Ware does not allege that three weeks was an
unreasonable length of time; rather, he refuses to accept the June 4 letter as a
response written on behalf of the clerk’s office and therefore concludes that the
clerk’s office never responded at all.
{¶ 30} By statute, the county prosecuting attorney is counsel for the clerk’s
office. R.C. 309.09(A). Ware has cited no authority for the proposition that it is
improper or insufficient for a public-records response to be sent by counsel for the
public office, rather than by the public office itself. As shown above, the assistant
prosecuting attorney wrote that “this office received your public records request.”
(Emphasis added.) But elsewhere in the letter, the assistant prosecuting attorney
made clear that he was responding on behalf of the clerk’s office, writing that “we
cannot provide you with [the jury questionnaire form (Blank copy)], as there is no
such document in the possession of the Stark County Clerk of Courts that is
responsive to your request.” (Emphasis added.) Therefore, we hold that the clerk’s
office did not fail in its duty to respond timely to request one.
{¶ 31} A different analysis applies to requests two through seven. If those
requests were served at the same time as request one, then the clerk’s office did not
respond in a timely fashion. See, e.g., State ex rel. DiFranco v. S. Euclid, 138 Ohio
St.3d 367, 2014-Ohio-538, 7 N.E.3d 1136, ¶ 21 (holding that a requester was
entitled to statutory damages when the city failed to respond to her request for two
months), superseded by statute on other grounds, State ex rel. Cincinnati Enquirer
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January Term, 2020
v. Cincinnati, 157 Ohio St.3d 290, 2019-Ohio-3876, 135 N.E.3d 772. But Ware
has not proved by clear and convincing evidence that he placed all seven requests
in a single envelope.
{¶ 32} The envelope itself is in the record, but it does not prove anything
about its contents one way or the other. Ware states in his affidavit that he sent
seven requests. The clerk’s office, on the other hand, submitted affidavit testimony
that the office had received only a single request and that a search of the office did
not locate Ware’s other six requests. Thus, the evidence on this point is evenly
balanced. And in such a situation, the requester has not satisfied the heightened
burden of proof necessary for an award of statutory damages. See State ex rel.
Pietrangelo v. Avon Lake, 149 Ohio St.3d 273, 2016-Ohio-5725, 74 N.E.3d 419,
¶ 27 (holding that the requester failed to prove hand-delivery by clear and
convincing evidence, given that the video that the requester submitted was
inconclusive and there was contradictory evidence that had been submitted by the
respondent”).
{¶ 33} We deny Ware’s request for statutory damages.
Conclusion
{¶ 34} We deny Ware’s request for an in camera review of the requested
records, deny the writ of mandamus, and deny statutory damages.
Writ denied.
O’CONNOR, C.J., and FRENCH, FISCHER, DONNELLY, and STEWART, JJ.,
concur.
DEWINE, J., concurs in judgment only.
KENNEDY, J., dissents, with an opinion.
_________________
KENNEDY, J., dissenting.
{¶ 35} I disagree with the majority’s continued exercise of raw judicial
power in relying upon the Rules of Superintendence instead of Ohio’s Public
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Records Act to govern the requests for case documents in cases commenced on or
after July 1, 2009. All of relator Kimani Ware’s requests—and any remedies that
may be available to him in the event he is successful—should be considered
pursuant to the Public Records Act’s statutory framework. Also, the record
establishes by clear and convincing evidence that Ware served respondents, Stark
County Clerk of Courts Louis P. Giavasis, Stark County Chief Deputy Clerk of
Courts Anthony J. Flex, and the Stark County Clerk of Court’s Office (collectively,
“the clerk’s office”) by certified mail with public-records requests two through
seven and I would award him statutory damages in the amount of $1,000.
{¶ 36} Therefore, I dissent.
Ohio’s Public Records Act versus Rules of Superintendence
{¶ 37} Recently, this court “implicitly overturn[ed] decades of caselaw
holding that the Public Records Act applies to the courts,” State ex rel. Parisi v.
Dayton Bar Assn. Certified Grievance Commt., 159 Ohio St.3d 211, 2019-Ohio-
5157, 150 N.E.3d 43, ¶ 50 (Kennedy, J., concurring in part and concurring in
judgment only in part), and conclusively held that a party seeking to obtain access
to case documents in actions commenced on or after July 1, 2009 must utilize the
process set forth in Sup.R. 44 through 47, id. at ¶ 27. Consequently, “[i]f a party
seeks to obtain judicial records through means other than Sup.R. 44 through 47, the
party is not entitled to a writ of mandamus, as the Rules of Superintendence are the
sole vehicle by which a party may seek to obtain such records.” Id. at ¶ 20.
{¶ 38} Today, this court applies this reasoning to Ware’s requests for the
docket sheets for case Nos. 2019-CA-00003 and 2012-CR-1709. However, the
docket sheets are records kept by the clerk’s office and access to the docket sheets
is governed by the Public Records Act; the docket sheets are not a “court record”
within the meaning of the Rules of Superintendence. In applying the Rules of
Superintendence, the majority preempts the Public Records Act and “abridg[es]
[Ware’s] substantive right to access” public records, State ex rel. Parker Bey v.
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January Term, 2020
Byrd, 160 Ohio St.3d 141, 2020-Ohio-2766, 154 N.E.3d 57, ¶ 35 (Kennedy, J.,
concurring in judgment only in part and dissenting in part), and to attorney fees,
costs, and statutory damages as established by the legislature under the Public
Records Act, id. at ¶ 57 (Kennedy, J., concurring in judgment only in part and
dissenting in part).
{¶ 39} The Rules of Superintendence were promulgated pursuant to our
authority in Article IV, Section 5(A)(1) of the Ohio Constitution. Section 5(A)(1)
states: “In addition to all other powers vested by this article in the supreme court,
the supreme court shall have general superintendence over all courts in the state.
Such general superintending power shall be exercised by the chief justice in
accordance with rules promulgated by the supreme court.”
{¶ 40} Commentators have noted that “the purpose of this provision was to
remedy case-management problems that had caused backlogs in resolving cases.”
Parker Bey at ¶ 38 (Kennedy, J., concurring in judgment only in part and dissenting
in part), citing Marburger & Idsvoog, Access with Attitude: An Advocate’s Guide
to Freedom of Information in Ohio 151-152 (2011); Milligan & Pohlman, The 1968
Modern Courts Amendment to the Ohio Constitution, 29 Ohio St.L.J. 811, 821-822
(1968). We have also recognized that the “Rules of Superintendence ‘are designed
“(1) to expedite the disposition of both criminal and civil cases in the trial courts of
this state, while at the same time safeguarding the inalienable rights of litigants to
the just processing of their causes; and (2) to serve that public interest which
mandates the prompt disposition of all cases before the courts.” ’ ” Id., quoting
State v. Steffen, 70 Ohio St.3d 399, 409, 639 N.E.2d 67 (1994), quoting State v.
Singer, 50 Ohio St.2d 103, 109-110, 362 N.E.2d 1216 (1977).
{¶ 41} Article IV, Section 5(B) authorizes a second type of court rules: “The
supreme court shall prescribe rules governing practice and procedure in all courts
of the state, which rules shall not abridge, enlarge, or modify any substantive right.
* * * All laws in conflict with such rules shall be of no further force or effect after
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such rules have taken effect.” “Section 5(B) expressly empowers this court to adopt
procedural rules that supersede the enactments of the General Assembly.” Parker
Bey, 160 Ohio St.3d 141, 2020-Ohio-2766, 154 N.E.3d 57, at ¶ 39 (Kennedy, J.,
concurring in judgment only in part and dissenting in part), citing Morris v. Morris,
148 Ohio St.3d 138, 2016-Ohio-5002, 69 N.E.3d 664, ¶ 30. . However, the framers
of the Modern Courts Amendment of 1968 placed two important limitations on our
authority to supplant the enactments of the General Assembly. Id. First, “our
procedural rules may not abridge, enlarge, or modify any substantive right; and
second, the General Assembly has oversight because the legislature by joint
resolution may disapprove any proposed procedural rule prior to its taking effect.”
Id., citing Article IV, Section 5(B), Ohio Constitution.
{¶ 42} Article IV, Section 5(A)(1), which empowers our superintendence
over the courts, stands in stark contrast. It does not grant “this court a similar power
to preempt the lawful enactments of the legislative branch of government by
adopting a rule under our authority to supervise the lower courts.” Parker Bey at
¶ 40 (Kennedy, J., concurring in judgment only in part and dissenting in part). And
it “does not provide that the Superintendence Rules supersede all laws that are in
conflict with them, nor does it contain any requirement to submit proposed
superintendence rules to the General Assembly for review.” Id. The
Superintendence Rules therefore, “do not have the same force of law as our
procedural rules or a statute.” Id. Instead, as the preface to the Superintendence
Rules explains, the rules are “simply to ensure the ‘prompt disposition of all causes,
at all times, in all courts of this state.’ ” Id.{¶ 43} As I previously stated:
The Rules of Superintendence are neither a statute nor a product of
common law. The Public Records Act, R.C. 149.43, defines a
“public record” as a record kept by any public office, R.C.
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149.43(A)(1), including the clerk’s office, R.C. 149.011(A).
Therefore, the clerk is required to provide access to case documents
and administrative records pursuant to the Public Records Act.
Id. at ¶ 25 (Kennedy, J., concurring in judgment only in part and dissenting in part).
{¶ 44} Therefore, I would consider all of Ware’s public-records requests—
including the 2012 and 2019 docket-sheet requests—pursuant to the Public Records
Act.
Statutory Damages
{¶ 45} The majority concludes that Ware is not entitled to statutory
damages. With respect to requests two through seven, the majority has determined
that Ware failed to prove by clear and convincing evidence that he placed all seven
requests in a single envelope. I disagree. Contrary to the position of the majority,
the record in this matter proves by clear and convincing evidence that Ware placed
all seven requests in a single envelope, and therefore he is substantively eligible for
statutory damages as to those requests.
{¶ 46} R.C. 149.43(B)(1)3 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.” Pursuant to R.C.
149.43(C)(2), 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)].” If a requester who makes a written request by
hand-delivery, electronic submission, or certified mail to the public office is
3. 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 Ware’s requests, R.C.
149.43 as amended by 2018 Sub.H.B. No. 425, took effect in April 2019.
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wrongfully denied public records, he “shall” be entitled to statutory damages of
$100 each business day—“beginning with the day on which the requester files a
mandamus action to recover statutory damages, up to a maximum of one thousand
dollars.” R.C. 149.43(C)(2); see also State ex rel. Rogers v. Dept. of Rehab. &
Corr., 155 Ohio St.3d 545, 2018-Ohio-5111, 122 N.E.3d 1208, ¶ 23.
{¶ 47} The burden is on the requester to prove the requester’s delivery
method by clear and convincing evidence. See State ex rel. McDougald v. Greene,
___ Ohio St.3d ___, 2020-Ohio-3686, ___ N.E.3d ___, ¶ 14. Clear and convincing
evidence is “ ‘that measure or degree of proof which is more than a mere
“preponderance of the evidence,” but not to the extent of such certainty as is
required “beyond a reasonable doubt” in criminal cases, and which will produce in
the mind of the trier of facts a firm belief or conviction as to the facts sought to be
established.’ ” State ex rel. Husted v. Brunner, 123 Ohio St.3d 288, 2009-Ohio-
5327, 915 N.E.2d 1215, ¶ 18, quoting Cross v. Ledford, 161 Ohio St. 469, 120
N.E.2d 118 (1954), paragraph three of the syllabus.
{¶ 48} Ware attests that he sent public-records requests one through seven
to the clerk’s office in a single, certified-mail envelope, with the envelope having
the tracking No. 9590 9402 4371 8190 6964 48. The clerk’s office maintains that
it had received only request one and that a search of the office did not locate
requests two through seven. The majority contends that the evidence is evenly
balanced, but there is more evidence before this court that should be considered.
{¶ 49} The return-address section of the certified-mail envelope contains
Ware’s handwritten notation “*7 Public Records Requests*.” The certified-mail
receipt also references the seven requests. Underneath the address for the Stark
County Clerk of Courts is Ware’s handwritten notation “Attn. 7 Public Request
Records.” Finally, Ware has provided copies of requests one through seven, all
dated May 6, 2019. This demonstrates, by clear and convincing evidence, that
Ware placed all seven requests in the certified-mail envelope, with the tracking No.
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January Term, 2020
9590 9402 4371 8190 6964 48, that was received by the clerk’s office on May 13,
2019. Therefore, Ware is substantively eligible for statutory damages for his
public-records requests two through seven. And, given the time that has passed
from the date on which Ware filed his complaint to when the clerk’s office
responded, Ware is eligible for the statutory maximum of $1,000.
{¶ 50} 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).
{¶ 51} The factors that allow a court to reduce statutory damages under R.C.
149.43(C)(2) do not apply. Therefore, Ware is entitled to the full award of statutory
damages.
Conclusion
{¶ 52} The majority continues to deny the citizens of Ohio the substantive
right to access court records and to the available remedies under the Public Records
Act. It is the Public Records Act, not the Rules of Superintendence, that govern
our review of requests for public records, regardless of whether the record is a case
document. Additionally, the record establishes by clear and convincing evidence
that Ware served the clerk’s office by certified mail with public-records requests
two through seven and I would award Ware statutory damages in the amount of
$1,000.
{¶ 53} Therefore, I dissent.
_________________
Kimani Ware, pro se.
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John D. Ferrero, Stark County Prosecuting Attorney, and Jessica L.
Logothetides, Assistant Prosecuting Attorney, for respondents.
_________________
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