State ex rel. Ware v. Andrews

[Cite as State ex rel. Ware v. Andrews, 2021-Ohio-4257.]
IN THE COURT OF APPEALS OF OHIO
ELEVENTH APPELLATE DISTRICT
LAKE COUNTY
STATE OF OHIO ex rel. CASE NO. 2020-L-043
KIMANI WARE,
Relator, Original Action for
Writ of Mandamus
-v-
FAITH ANDREWS, LAKE
COUNTY CLERK OF COURTS,
Respondent.
PER CURIAM
OPINION
Decided: December 6, 2021
Judgment: Petition denied
Kimani Ware, pro se, PID# A470-743, Trumbull Correctional Institution, 5701 Burnett
Road, P.O. Box 901, Leavittsburg, OH 44430 (Relator).
Charles E. Coulson, Lake County Prosecutor; Michael L. DeLeone and Harrison L.
Crumrine, Assistant Prosecutors, Lake County Administration Building, 105 Main Street,
P.O. Box 490, Painesville, OH 44077 (For Respondent).
PER CURIAM.
{¶1} Kimani Ware (“Relator”) seeks a writ of mandamus against the Lake County
Clerk of Courts (“Respondent”)1 to compel the production of public records. In addition,
Relator seeks an award of statutory damages. The matter is now decisional on Relator’s
motion for summary judgment and Respondent’s brief in response. For the reasons set
1. The named public officer in this original action was Maureen G. Kelly, Lake County Clerk of Courts.
Pursuant to App.R. 29(C)(1), Kelly’s successor, Faith Andrews, Lake County Clerk of Courts, has been
automatically substituted as the named party.
forth below, we deny as moot the petition for a writ of mandamus and grant the request
for statutory damages.
{¶2} Relator is an inmate at the Trumbull Correctional Institution. Relator alleges
that on April 19, 2019, he submitted an envelope containing seven public records
requests to Respondent by way of certified mail. “Request One” includes a request for
copies of the complaint and motion to dismiss in Eleventh District Court of Appeals case
number 2018-L-127, an original action initiated by another inmate incarcerated at
Trumbull Correctional Institution. Also requested in “Request One” are copies of the Lake
County Clerk of Courts public records policy; the roster listing (current employees) of the
Lake County Clerk of Courts office; the Lake County Clerk of Courts oath of office; and
the Lake County Clerk of Courts record retention schedule. Relator alleges that all seven
requests were returned to him with a post-it note, stating: “Mr. Ware, We do not have any
case with that # nor any case with your name on it. Did you have a different name at [sic]
time?”
{¶3} At all relevant times, Maureen G. Kelly was the duly elected Lake County
Clerk of Courts. In an affidavit, Kelly acknowledges receipt of “Request One,” but not the
other six requests, and avers the request was returned to Ware with a note seeking
clarification.
{¶4} Relator further alleges that on May 14, 2019, he sent a letter to Respondent
by way of regular U.S. mail, which read: “You sent all seven of my public records requests
back to me, stating that there is no case with my case number [sic] or that case number,
I’m re-submitting all seven of my public records requests (see the attached public records
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requests) you wrongfully reviewed all seven of them [sic].” Kelly denies receipt of this
letter. It is undisputed that Relator received no further response to his records request(s).
{¶5} Relator filed this complaint for a writ of mandamus on March 30, 2020.
Copies of Relator’s April 19 requests, certified mail receipts, the post-it note response,
and May 14 letter are attached to his complaint, as well as his affidavit in support. Kelly
directed her staff to assemble the records and her legal counsel to respond. The
response letters, with copies of the requested records, were mailed to Relator on April 27
and April 28, 2020. Relator acknowledges receipt of the records on April 30, 2020. There
were no documents responsive to a few of Relator’s requests.
{¶6} In his motion for summary judgment, Relator states he “is now happy in all
aspects in regards to his seven public records requests as the public records have been
provided to him in full, even though some of the records were not provided, see exhibit
#12, still relator is okay with the records that were provided.” Relator continues to seek
statutory damages in the amount of $1,000.00 “per public record request[.]” Respondent
opposes his request for damages.
{¶7} R.C. 149.43(B)(1) requires a public office to make copies of requested
public records available to the requester at cost and within a reasonable period of time.
A “public record” is a record “kept by any public office.” R.C. 149.43(A)(1).
{¶8} “Mandamus is an appropriate remedy to compel compliance with R.C.
149.43, Ohio’s Public Records Act. To prevail on a claim for mandamus relief in a public-
records case, a party must establish a clear legal right to the requested relief and a
corresponding clear legal duty on the part of the respondent to provide that relief.”
(Internal citations omitted.) State ex rel. Ellis v. Maple Hts. Police Dept., 158 Ohio St.3d
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25, 2019-Ohio-4137, 139 N.E.3d 873, ¶ 5; R.C. 149.43(C)(1)(b). “Unlike in other
mandamus cases, relators in public-records mandamus cases are not required to
establish the lack of an adequate remedy in the ordinary course of law.” (Citation
omitted.) State ex rel. Ullmann v. Klein, 160 Ohio St.3d 457, 2020-Ohio-2974, 158 N.E.3d
580, ¶ 11.
{¶9} “In general, a public-records mandamus case becomes moot when the
public office provides the requested records.” State ex rel. Martin v. Greene, 156 Ohio
St.3d 482, 2019-Ohio-1827, 129 N.E.3d 419, ¶ 7, citing 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, ¶
43; accord State ex rel. Martin v. Buchanan, 152 Ohio St.3d 68, 2017-Ohio-9163, 92
N.E.3d 869, ¶ 5, quoting State ex rel. Eubank v. McDonald, 135 Ohio St.3d 186, 2013-
Ohio-72, 985 N.E.2d 463, ¶ 1 (“‘Mandamus will not lie to compel an act that has already
been performed.’”).
{¶10} The parties agree that the requested public records have been provided and
received to Relator’s satisfaction. We therefore deny the petition for a writ of mandamus
as moot. That ruling does not, however, render moot Relator’s demand for statutory
damages. State ex rel. Martin v. Greene at ¶ 8.
{¶11} Even if a relator does not prevail on the mandamus claim, he or she may
still qualify for an award of statutory damages. State ex rel. McDougald v. Greene, 161
Ohio St.3d 130, 2020-Ohio-3686, 161 N.E.3d 575, ¶ 13, citing State ex rel. Kesterson v.
Kent State Univ., 156 Ohio St.3d 13, 2018-Ohio-5108, 123 N.E.3d 887, ¶ 22 and
Kesterson v. Kent State Univ., 156 Ohio St.3d 22, 2018-Ohio-5110, 123 N.E.3d 895, ¶
32. A request for the production of public records is governed by the version of Ohio’s
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Public Records Act that was in effect at the time that the request was made. Kesterson,
2018-Ohio-5108, at ¶ 11, fn. 1. The version in effect at the time Relator’s request was
made is included in 2018 Sub.H.B. No. 425, 2018 Ohio Laws 171.
{¶12} A requester of public records “shall be entitled to recover the amount of
statutory damages set forth in this division” if the requester made the request in writing
by hand delivery, electronic submission, or certified mail; the request fairly describes the
public record or class of public records; and the public office failed to comply with an
obligation in accordance with division (B) of this section. R.C. 149.43(C)(2); accord State
ex rel. McDougald v. Greene at ¶ 14 and State ex rel. Rogers v. Dept. of Rehab. & Corr.,
155 Ohio St.3d 545, 2018-Ohio-5111, 122 N.E.3d 1208, ¶ 23.
{¶13} “The amount of statutory damages shall be fixed at one hundred dollars for
each business day during which the public office or person responsible for the requested
public records failed to comply with an obligation in accordance with division (B) of this
section, 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). “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.” Id.; see also State ex rel. Walker v. Clark, 144 Ohio St. 305,
311, 58 N.E.2d 773 (1944) (defining “conclusive presumption” as “an inference which the
law makes so peremptory that it may not be overcome by any contrary proof, however
strong”).
{¶14} “The court may reduce an award of statutory damages or not award
statutory damages” if two conditions are satisfied under R.C. 149.43(C)(2). The court
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must determine that (1) based on the ordinary application of statutory law and case law
as it existed at the time of the conduct, a well-informed public office reasonably would
believe that the conduct of the public office did not constitute a failure to comply with an
obligation under R.C. 149.43(B), and (2) 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)(a)-(b). Accord
Rogers at ¶ 24; Kesterson, 2018-Ohio-5108, at ¶ 21; and State ex rel. Carr v. London
Corr. Inst., 144 Ohio St.3d 211, 2015-Ohio-2363, 41 N.E.3d 1203, ¶ 41.
{¶15} Relator provided evidentiary materials demonstrating that he delivered to
Respondent by certified mail a written request fairly describing the public records
requested. Respondent does not dispute this fact. Relator also demonstrated that
Respondent failed to comply with the obligation in R.C. 149.43(B)(1) to provide copies of
requested public records within a reasonable period of time. Even assuming Respondent
only received “Request One,” and not Relator’s other six requests, the documents
requested in “Request One” were not provided to Relator until 365 days after his initial
request. Respondent does not dispute this fact and does not contend that this was a
reasonable period of time. Therefore, Relator is entitled to summary judgment on the
issue of statutory damages.
{¶16} Relator’s request is for an award of $1,000.00 for each of his seven records
requests. Respondent responds that Relator’s award should be limited to a total of
$1,000.00. We agree. Relator’s requests, while listed separately on seven sheets of
paper, were all delivered at the same time in one certified mailing. R.C. 149.43 “does not
permit stacking of statutory damages based on what is essentially the same records
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request. No windfall is conferred by the statute.” State ex rel. Dehler v. Kelly, 127 Ohio
St.3d 309, 2010-Ohio-5724, 939 N.E.2d 828, ¶ 4, citing R.C. 149.43(C)(2); accord State
ex rel. Ware v. Akron, 164 Ohio St.3d 557, 2021-Ohio-624, 174 N.E.3d 724, ¶ 22.
{¶17} We further decline to reduce Relator’s statutory damages award, as the
condition in R.C. 149.43(C)(2)(a) has not been satisfied. This court would have to
conclude that based on the ordinary application of statutory and case law as it existed at
the time of Respondent’s failure to produce the records, a well-informed public office or
person responsible for the requested public records reasonably would believe that the
failure to produce the records did not constitute a failure to comply with the obligation of
R.C. 149.43(B)(1) to produce copies of the records within a reasonable period of time.
{¶18} Respondent contends that a well-informed clerk of courts reasonably would
believe that seeking clarification to ensure the requester received the correct records
would not constitute a failure to comply with the obligations of R.C. 149.43(B)(1) because
(B)(2) permits a public office to deny a request that is ambiguous or overly broad, which
serves the public policy of allowing the public office to reasonably identify what public
records are being requested.
{¶19} None of the evidentiary materials provided to this court demonstrate that
Relator’s requests were ambiguous or overly broad. In fact, when Respondent responded
to Relator’s requests in light of this mandamus action, the only reason listed for not
providing a requested record was that “there are no documents responsive to this
request.” There is no mention of an ambiguous or overly broad request. The documents
from case number 2018-L-127, which were requested in Relator’s “Request One”—the
only request Kelly acknowledges having received in April 2019—were provided to Relator
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without issue and to his satisfaction.
{¶20} More importantly, Relator requested four other records in “Request One”
unrelated to case number 2018-L-127, to wit: the clerk of courts’ public records policy, a
roster listing of current employees, the clerk of courts’ oath of office, and the clerk of
courts’ record retention schedule. There is no identifiable or provided explanation as to
why those four records were not produced upon request, even assuming there was
confusion or concern with the request for 2018-L-127 documents.
{¶21} Therefore, this court determines that the reduction factors in R.C.
149.43(C)(2) have not been satisfied. Statutory damages must be awarded at a rate of
$100.00 per business day measured from the filing of the mandamus complaint until the
production of records sought. As more than ten days passed between those two dates,
we award Relator the statutory maximum of $1,000.00 in statutory damages. See, e.g.,
Carr, 2015-Ohio-2363, at ¶ 44; see also State ex rel. Moore v. Montgomery Cty. Clerk of
Courts, 2d Dist. Montgomery No. 24937, 2012-Ohio-5782, ¶ 13 (“we must presume that
Respondent’s non-compliance caused an injury to [Relator]”).
{¶22} Relator’s motion for summary judgment is granted in part and denied in part.
The petition for a writ of mandamus is denied as moot. The request for statutory damages
is granted.
CYNTHIA WESTCOTT RICE, J., THOMAS R. WRIGHT, J., MATT LYNCH, J., concur.
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