State ex rel. Ware v. Akron (Slip Opinion) ( 2021 )

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
ex rel. Ware v. Akron, Slip Opinion No. 2021-Ohio-624.]
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. 2021-OHIO-624THE STATE EX REL. WARE v. THE CITY OF AKRON ET AL.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as State ex rel. Ware v. Akron, Slip Opinion No. 2021-Ohio-624.]
Mandamus—Public Records Act—A public office is required to make copies of
public records available to any person upon request within a reasonable
period of time—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)—Writ granted.
(No. 2019-1406—Submitted January 12, 2021—Decided March 9, 2021.)
IN MANDAMUS.
________________
Per Curiam.
{¶ 1} In this original action, relator, Kimani Ware, seeks a writ of
mandamus to compel the production of public records that he had requested from
respondents, the city of Akron and its police chief Kenneth R. Ball II (collectively,
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“the city”). For the reasons set forth below, we grant a writ of mandamus
compelling the city to inform Ware of the cost for copying the public records he
seeks, with a breakdown showing how the costs were calculated. In addition, we
award Ware $1,000 in statutory damages. Finally, we deny Ware’s motion asking
this court to take judicial notice of certain facts.
I. Background
{¶ 2} Ware is an inmate at the Trumbull Correctional Institution. On
February 4, 2019, he sent two letters to the Akron Police Department requesting
various public records. In one letter, Ware asked for copies of (1) the department’s
policy regarding search warrants, (2) the department’s disciplinary policy, (3) the
department’s body-camera policy, (4) the department’s arrest policy, and (5) a
roster of department employees. The other letter sought the personnel files of
Franklin Harrah, Daniel Metzger, Anna Romito, and William Bosak.
{¶ 3} Ware sent his letters by certified mail, and a department employee
signed the receipt acknowledgement on February 14. Ware did not receive a
response to his public-records requests.
{¶ 4} On October 16, 2019, Ware filed a complaint for a writ of mandamus
in this court. On November 8, 2019, the city filed a motion to dismiss Ware’s
complaint. On January 22, 2020, this court denied the city’s motion to dismiss and
issued an alternative writ, ordering the parties to submit evidence and file briefs in
accordance with S.Ct.Prac.R. 12.05. 2020-Ohio-94, 137 N.E.3d 1221.
{¶ 5} According to the evidence submitted by the city, the police
department and the city’s law office first became aware of Ware’s public-records
requests on October 20, 2019 (that is, after receiving the complaint). The city
attributes this oversight to two possible causes: (1) the administrative assistant who
signed the receipt for Ware’s request was undergoing treatment for mesothelioma
at the time, from which she eventually passed away and (2) according to an affidavit
signed by the city-law department’s executive assistant Elaine M. Stoeberman, in
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February 2019, Akron experienced a “City-wide cyber-event” that left e-mail
communication between city departments practically unusable.
{¶ 6} On October 24, the city responded to Ware with two letters. With
respect to the personnel files that Ware requested, the city informed him that
Bosak’s personnel file had been copied for him in response to a previous public-
records request but that because he had never paid the fee for that record, the file
would not be mailed to him until he paid the invoice. Likewise, the city indicated
that the personnel files of Harrah, Metzger, and Romito were copied and ready to
be mailed to him, subject to redactions, once Ware paid the amount requested in
the invoice that had been enclosed with the city’s response. A copy of that invoice
is not in the record.
{¶ 7} In a separate letter, which was also dated October 24, the city
responded to Ware’s public-records request for the police department’s various
policies. The city informed Ware that the police department did not have a written
“arrest policy.” As for his remaining requests—copies of the police department’s
policies on search warrants, discipline, and body cameras, and a copy of the police
department’s roster of certain employees—the city informed Ware that those
records would be sent to him once he paid the amount requested in the invoice that
had been enclosed with the letter. A copy of that invoice is also not part of the
record.
{¶ 8} The city indicates in an affidavit that the total cost for copying all the
records is $21.05. Ware has not submitted any payment to the city.
II. Legal analysis
A. The request for judicial notice
{¶ 9} On July 31, 2020, we ordered the city to serve Ware its merit brief by
August 5. In that same entry, we ordered Ware to file his reply brief by August 20,
2020. Ware attempted to file a reply brief, but because it was received by this court
on August 24, it was rejected as untimely.
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{¶ 10} On September 3, Ware filed a motion asking this court to take
judicial notice of those facts. It is unclear, however, in what manner granting such
notice would assist his case. He does not ask this court for any relief in his motion,
and the facts that he relates are not relevant to the substantive issues before us. We
therefore deny the motion.
B. The merits of the suit
{¶ 11} The Ohio 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.
{¶ 12} To be entitled to the writ, Ware must demonstrate that he has a clear
legal right to the requested relief and that the city 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 clear and
convincing evidence. See id. However, the 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).
{¶ 13} In his first proposition of law, Ware contends that he is entitled to a
writ of mandamus compelling the city to produce copies of the public records he
requested. But the Public Records Act does not require a public-records custodian
to provide copies of public 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, R.C. 149.43(B)(1)
“requires only that copies of public records be made available at cost.” Call at ¶ 6.
Indeed, R.C. 149.43(B)(1) “authorizes a public office to require the prepayment of
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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. So, if the city informed
Ware how much copies of the records would cost and offered to send copies of
those records to him once he paid those costs, then the city would have satisfied its
obligations under the statute.
{¶ 14} However, the evidence does not establish that this occurred. Ware
admits that he received the two October 24 letters in which the city agreed to
provide copies of most of the records he had requested upon payment of the costs
of copying those records, but Ware asserts that the city never enclosed the invoices
with those letters. Ware’s allegation that the city neglected to send the invoices is
bolstered by the fact that the city did not submit those invoices as evidence in this
case. So, although the city offered to provide Ware the public records once he paid
for the cost of the copies, the first time it identified the amount to be paid was in an
affidavit to this court, and that affidavit provided only an aggregate cost, not a
breakdown of the charges.
{¶ 15} Because the city is willing to provide copies of the records once
Ware has paid for the copies, a writ of mandamus compelling the city to provide
the records is neither warranted nor necessary. However, we do grant a writ
ordering the city to provide the invoices to Ware, so he may decide whether he
wishes to pay for the copies. See State ex rel. Mayrides v. Whitehall, 62 Ohio
App.3d 225, 228-229, 575 N.E.2d 224 (10th Dist.1990) (granting a writ of
mandamus ordering the public-records custodians to notify the requester of the cost
of the public records that had been requested).
C. Statutory damages
{¶ 16} In his second proposition of law, Ware contends that he is entitled to
an award of $2,000 in statutory damages. 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
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comply with an obligation in accordance with [R.C. 149.43(B)].” R.C.
149.43(C)(2). Ware alleges that the city breached its duty under the statute by
failing to respond to his public-records requests for nearly nine months.
{¶ 17} As a preliminary matter, Ware has satisfied the threshold
requirement of a qualifying delivery method. To qualify for statutory damages, a
requester must transmit the public-records request by “hand delivery, electronic
submission, or certified mail.” R.C. 149.43(C)(2). The evidence is undisputed that
Ware served the public-records requests by certified mail.
{¶ 18} Statutory damages will be awarded when a public-records custodian
takes an unreasonable length of time to produce the requested records. State ex rel.
Kesterson v. Kent State Univ., 156 Ohio St.3d 13, 2018-Ohio-5108, 123 N.E.3d
887, ¶ 13. The city does not suggest that nine months was a reasonable amount of
time for it to respond. Instead, the city asks this court to focus on the fact that once
it became aware of Ware’s public-records requests in October 2019, it responded
within six days. Implicit within the city’s argument is a request for this court to
excuse its failure to respond timely to Ware’s public-records requests due to the
illness of its employee and the cyber disruption that restrained the city’s ability to
communicate via e-mail. However, statutory-damage awards under the Public
Records Act are not contingent on the good or bad faith of the public-records
custodian. Rather, under R.C. 149.43(C)(2), statutory damages are mandatory
whenever a public-records custodian fails to comply with her obligation.
{¶ 19} Alternatively, the city argues that damages are inappropriate because
Ware has not suffered an injury from his lost use of the records. The purpose of
awarding statutory damages, however, is to compensate “for injury arising from the
lost use of the requested information.” R.C. 149.43(C)(2). The existence of this
injury is “conclusively presumed.” Id. The city argues that while “R.C.
149.43(C)(2) states that the injury is conclusively presumed, * * * there has to be
an actual injury connected to the loss of those records in order for the injury to be
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conclusively presumed.” But requiring a requester to make even a minimal
showing of actual injury would be contrary to the statutory command that injury is
conclusively presumed. See, e.g., Black v. Mecca Twp. Bd. of Trustees, 91 Ohio
App.3d 351, 355, 632 N.E.2d 923 (11th Dist.1993) (holding that a person asserting
an action under the Ohio Sunshine Law is not required to show injury because R.C.
122.22(I)(3) states that “irreparable harm and prejudice” are “conclusively and
irrebuttably presumed”).
{¶ 20} The city also suggests that any injury is the result of Ware’s own
failure to pay the invoices. But that claim overlooks both the city’s failure to
respond for nearly nine months and the city’s apparent failure to include the
invoices with its responsive letters.
{¶ 21} We hold that Ware is entitled to an award of damages, but not in the
amount he seeks. The amount of statutory damages is fixed at $100 per business
day during which the public office failed to comply with its statutory obligation, up
to a maximum of $1,000. R.C. 149.43(C)(2). A court may reduce the amount of
the damages if it finds both (1) that based on existing law, a “well-informed”
public-records custodian would reasonably believe that her conduct did not fail to
comply with the Public Records Act, R.C. 149.43(C)(2)(a), and (2) a “well-
informed” public-records custodian would reasonably believe that her conduct
would serve the public policy underlying the authority that has been asserted for
the response to the requester, R.C. 149.43(C)(2)(b). Neither reduction factor
applies here. We therefore conclude that Ware is entitled to the maximum of
$1,000.
{¶ 22} Ware asks the court to award $2,000 on the theory that he served two
separate requests and is entitled to the maximum for each. But the fact that he
spread his public-records requests across two letters does not automatically mean
that each letter constitutes a separate request for purposes of calculating statutory
damages. R.C. 149.43(C)(1) “does not permit stacking of statutory damages based
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on what is essentially the same records request.” State ex rel. Dehler v. Kelly, 127
Ohio St.3d 309, 2010-Ohio-5724, 939 N.E.2d 828, ¶ 4. Ware presents no legal
argument to suggest that the letters constitute separate public-records requests. And
the evidence in the record suggests that the two letters were sent to the city in a
single envelope. In the first paragraph of his affidavit, Ware identifies his exhibit
A as the letter requesting the police department’s policies and exhibit B as the letter
requesting the police department’s personnel files. Both exhibits show certified-
mail receipts attached to the letters. But the two receipts are identical, down to the
22-digit tracking code on each: 9590 9402 4371 8190 6966 77.
{¶ 23} For these reasons, we decline to award $2,000 in statutory damages.
III. Conclusion
{¶ 24} Based on the foregoing, we deny the motion for judicial notice, we
grant a writ of mandamus compelling the city to inform Ware of the cost for
copying the records he seeks and to provide a breakdown of the charges, and we
award Ware $1,000 in statutory damages.
Writ granted.
O’CONNOR, C.J., and KENNEDY, FISCHER, DEWINE, DONNELLY, STEWART,
and BRUNNER, JJ., concur.
_________________
Kimani Ware, pro se.
Eve V. Belfance, Akron Director of Law, and John Christopher Reece,
Assistant Director of Law, for respondents.
_________________
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