State ex rel. McNew v. Ohio Dept. of Rehab. & Corr.

[Cite as State ex rel. McNew v. Ohio Dept. of Rehab. & Corr., 2022-Ohio-1859.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State ex rel. Michael A. McNew, :
Relator, :
No. 20AP-404
v. :
(REGULAR CALENDAR)
Ohio Department of Rehabilitation and :
Correction,
:
Respondent.
:
D E C I S I O N
Rendered on June 2, 2022
On brief: Michael A. McNew, pro se.
On brief: Dave Yost, Attorney General, and Mark W. Altier,
for respondent.
IN MANDAMUS
ON OBJECTIONS TO THE MAGISTRATE'S DECISION
SADLER, J.
{¶ 1} Relator, Michael A. McNew, requests this court issue a writ of mandamus
ordering respondent Ohio Department of Rehabilitation and Correction ("ODRC") to
respond to relator's public records requests.
{¶ 2} This matter was referred to a magistrate pursuant to Civ.R. 53(D) and Loc.R.
13(M) of the Tenth District Court of Appeals. The magistrate issued the appended decision,
including findings of fact and conclusions of law, recommending this court issue a partial
writ of mandamus and award relator statutory damages and court costs. More particularly,
the magistrate determined that ODRC failed to plead and prove facts establishing that one
of the documents relator requested, i.e., Lexis Nexis's May 24, 2019 response to ODRC's
No. 20AP-404 2
request for quote number DRCQ-20-2780 ("Lexis Response"), was exempt from disclosure
under the Public Records Act as a trade secret. Accordingly, the magistrate recommended
that this court issue a writ of mandamus ordering ODRC to provide relator an unredacted
copy of the Lexis Response. The magistrate also determined that ODRC failed to promptly
produce the public records requested by relator within a reasonable time; accordingly, the
magistrate recommended that this court award relator statutory damages and court costs.
{¶ 3} ODRC has filed objections to the magistrate's decision. Therefore, we must
independently review the decision to ascertain whether "the magistrate has properly
determined the factual issues and appropriately applied the law." Civ.R. 53(D)(4)(d). We
"may adopt or reject a magistrate's decision in whole or in part, with or without
modification." Civ.R. 53(D)(4)(b).
{¶ 4} In its first objection, ODRC asserts the magistrate erred by determining that
it abandoned its claim that the Lexis Response was exempt from disclosure because it
contained trade secrets. As explained in the magistrate's decision, ODRC asserted it
provided certain documents to relator on November 4, 2020. ODRC claimed this response
included a redacted copy of the Lexis Response. ODRC asserted it fully complied with the
Public Records Act by providing a redacted copy of the Lexis Response to relator and
notifying relator of the redactions.
{¶ 5} Ohio's Public Records Act, R.C. 149.43, "mandates access to public records
upon request unless the requested records are specifically excepted from disclosure." State
ex rel. Lucas Cty. Bd. of Commrs. v. Ohio Environmental Protection Agency, 88 Ohio St.3d
166, 170 (2000). Trade secrets are exempt from disclosure under the Public Records Act
under the "state and federal law" exemption of R.C. 149.43(A)(1)(v). State ex rel. Besser v.
Ohio State Univ., 89 Ohio St.3d 396, 399 (2000). ODRC argues the magistrate erred by
determining that it was "precluded from relying on the 'trade secrets' exception in defense
of its redactions," and by recommending that this court provide relator with an unredacted
copy of the Lexis Response without considering whether the trade secret exemption
applied. (ODRC Brief at 12.)
{¶ 6} Contrary to ODRC's characterization, the magistrate did not conclude ODRC
was precluded from relying on a trade secret exemption; rather, the magistrate concluded
ODRC failed to assert that exemption. The magistrate found that ODRC "failed to plead
No. 20AP-404 3
and prove facts clearly establishing the applicability of the [trade secret] exception" and
"completely failed to raise the trade-secret exception anywhere before this court." (Mag.
Decision at 37.) Our review of the record confirms the magistrate's conclusion. In its merit
brief before the magistrate, ODRC asserted relator's mandamus claim was moot because it
had provided him with all records responsive to his request. ODRC did not present any
argument to the magistrate that the Lexis Response, or any portion of it, was exempt from
disclosure because it contained trade secrets. The only reference to the trade secret
exemption appeared in the cover letter sent to relator on November 4, 2020,1 which was
part of the evidence ODRC submitted to this court.
{¶ 7} This court has held that an argument is waived when it is not asserted before
a magistrate and is raised for the first time in objections to the magistrate's decision. See
State ex rel. Maglis v. Indus. Comm., 10th Dist. No. 15AP-648, 2016-Ohio-4644, ¶ 10
("Relator did not argue before the magistrate that 10 weeks of death benefits was arbitrary
or that the commission failed to provide an adequate explanation. Consequently, this
argument is waived."); State ex rel. German v. Provider Servs. Holdings, LLC, 10th Dist.
No. 13AP-149, 2014-Ohio-3336, ¶ 18 ("[R]elator argues for the first time here that the
commission abused its discretion by not stating that the employer met its burden to
demonstrate voluntary abandonment. Because relator failed to raise this issue before the
magistrate, relator has waived this argument."); State ex rel. Durbin v. Indus. Comm., 10th
Dist. No. 10AP-712, 2012-Ohio-664, ¶ 10 ("Though relator's objections assert the
magistrate erred in not addressing her contentions that the commission failed to exercise
continuing jurisdiction on the basis of fraud, the issue was not raised by relator in either
her complaint or merit brief. In accordance with [State ex rel.] Hackenburg [v. Indus.
Comm., 10th Dist. No. 06AP-938, 2007-Ohio-4181] and [State ex rel.] Advantage Tank
1 The cover letter sent to relator contained the following paragraph referring to the trade secret exemption:
Note that Lexis Nexis claims trade secret and copyright protections for the
May 24, 2019 response to the DRC Request for Quote number DRCQ-20-
2780, which are exceptions to the Ohio Public Records Act (see
R.C. 149.43(A)(1)(v), 17 U.S.C. § 102(a), and R.C. Chapter 1333). DRC is
working to resolve the applicability of these claimed exceptions to the
May 24, 2019 response and will supplement this response.
(Nov. 4, 2020 ODRC letter to relator.) The magistrate noted there was no indication in the record that ODRC
ever supplemented its response to relator.
No. 20AP-404 4
Lines [v. Indus. Comm., 10th Dist. No. 03AP-584, 2004-Ohio-3384], we conclude relator
waived the issue by presenting it for the first time in the objections to the magistrate's
decision."); State ex rel. Hackenburg v. Indus. Comm., 10th Dist. No. 06AP-938, 2007-
Ohio-4181, ¶ 4 ("[R]elator contends the commission abused its discretion when it
determined she had reached MMI as of January 13, 2006, based on the report of Dr. Martin.
A review of relator's brief, however, discloses that she failed to raise this issue before the
magistrate, and, therefore, it is considered waived."). In this case, ODRC waived its trade
secret exemption argument by failing to raise it before the magistrate. Accordingly, we
overrule ODRC's first objection.
{¶ 8} In its second objection, ODRC asserts the magistrate erred by recommending
that this court order it to provide an unredacted copy of the Lexis Response without
conducting an in camera review to determine whether the redacted material constituted
trade secrets. ODRC claims an in camera inspection is required when a government body
asserts an exemption from the Public Records Act, and that in this case the trade secret
protection belongs to Lexis Nexis and could not be waived by ODRC.
{¶ 9} The Public Records Act is construed liberally in favor of broad access and any
doubt must be resolved in favor of disclosure of public records. State ex rel. Rogers v. Ohio
Dept. of Rehab. & Corr., 155 Ohio St.3d 545, 2018-Ohio-5111, ¶ 6. Exceptions to the Public
Records Act are strictly construed and the custodian of the public records bears the burden
of establishing the applicability of an exception. Id. at ¶ 7. To meet this burden, the records
custodian "must prove that the requested records 'fall squarely within the exception.' " Id.,
quoting State ex rel. Cincinnati Enquirer v. Jones-Kelley, 118 Ohio St.3d 81, 2008-Ohio-
1770, ¶ 10.
{¶ 10} The Supreme Court of Ohio has held that in certain circumstances the
applicability of an exception to the Public Records Act may be apparent from the records
themselves. McDougald v. Greene, 162 Ohio St.3d 250, 2020-Ohio-4268, ¶ 10. In
McDougald, a prison inmate requested copies of shift-assignment duty rosters, which
detailed the assignments of guards within the prison. Id. at ¶ 1. The prison provided the
inmate heavily redacted copies of the documents. Id. When the inmate filed a mandamus
action seeking unredacted copies, the prison asserted the redacted matters were exempt
from disclosure under the infrastructure-records exemption and the security-records
No. 20AP-404 5
exemption. Id. at ¶ 5. After reviewing unredacted copies of the documents, the Supreme
Court concluded the records did not constitute infrastructure records but were exempt from
disclosure as security records. Id. at ¶ 8-12. The court found it to be "clear from the face of
the documents that [the security records] exemption applie[d] to the records at issue." Id.
at ¶ 9. Notably, the court held that "[b]ut for the fact that the relevance of the records to
the security of the prison is apparent from the face of the documents, we might well reach
a different result in this case." Id. at ¶ 10.
{¶ 11} The record in the present case presents the "different result" contemplated
by the majority opinion in McDougald. As explained in our analysis of the first objection,
ODRC did not argue for an exception to the Public Records Act before the magistrate,
instead asserting relator's claim was moot because it had provided the requested records to
relator. Additionally, ODRC did not present an unredacted copy of the Lexis Response to
the magistrate or request that he conduct an in camera review of it to determine whether it
contained trade secrets that were exempt from disclosure. Unlike McDougald, because the
relevant document is not before us, we cannot find it to be "clear from the face of the
documents" that the trade secret exemption applied to part or all of the Lexis Response. Id.
at ¶ 9.
{¶ 12} "[W]hen a public office claims an exception based on risks that are not
apparent within the records themselves, the office must provide more than conclusory
statements in affidavits to support its claim." State ex rel. Rogers at ¶ 15. In the present
case, ODRC provided less than conclusory statements in an affidavit to support the trade
secret exemption. There was no mention of the trade secret exemption in the affidavit
ODRC presented to the court, nor any attempt to explain why the Lexis Response was
covered by that exemption. The sole reference to trade secrets appeared in the cover letter
sent to relator, but ODRC did not present as evidence the records that accompanied that
cover letter.
{¶ 13} ODRC is correct that the Supreme Court has "consistently required an in
camera inspection of records before determining whether the records are excepted from
disclosure" under the Public Records Act. State ex rel. Lanham v. DeWine, 135 Ohio St.3d
191, 2013-Ohio-199, ¶ 22. That principle arises from cases in which the public office asserts
that an exemption applies. See Welsh-Huggins v. Jefferson Cty. Prosecutor's Office, 163
No. 20AP-404 6
Ohio St.3d 337, 2020-Ohio-5371, ¶ 29, quoting State ex rel. Natl. Broadcasting Co., Inc. v.
Cleveland, 38 Ohio St.3d 79 (1988), at paragraph four of the syllabus ("When the
government's asserted exemption is challenged, 'the court must make an individualized
scrutiny of the records in question.' " (Emphasis added.)); Lanham at ¶ 20 ("The attorney
general's office claims that the records at issue here are excepted from disclosure."); State
ex rel. Seballos v. School Emps. Retirement Sys., 70 Ohio St.3d 667, 671 (1994) ("When a
governmental body asserts that public records are excepted from disclosure and this
assertion is challenged, the court in which the action is brought must conduct an in camera
inspection of the documents." (Emphasis added.)). In this case, ODRC failed to assert the
trade secret exemption until after the magistrate issued his decision. ODRC likewise failed
to provide evidence to support a finding that the trade secret exemption applied. Under
these circumstances, we cannot conclude the magistrate erred by failing to conduct an in
camera review of the Lexis Response before ordering it to be provided to relator. Therefore,
we overrule ODRC's second objection.
{¶ 14} In its third objection, ODRC asserts it is inappropriate for the court to award
costs to relator unless and until the court conducts an in camera review of the Lexis
Response and determines that it is not covered by the trade secret exemption. A relator
shall be awarded court costs "[i]f the court orders the public office or the person responsible
for the public record to comply with [R.C. 149.43(B)]" or "makes a determination described
in [R.C. 149.43(C)(3)(b)(iii)]"—i.e., that "[t]he 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 [R.C. 149.43(B)]." R.C. 149.43(C)(3)(a);
R.C. 149.43(C)(3)(b)(iii). ODRC notes the magistrate found relator presented no argument
or evidence that it acted in bad faith and therefore an award of costs under
R.C. 149.43(C)(3)(a)(ii) is inappropriate. ODRC asserts costs may only be awarded under
R.C. 149.43(C)(3)(a)(i) if the court enters a final judgment issuing a writ of mandamus
compelling it to provide an unredacted copy of the Lexis Response to relator. For the
reasons set forth above, we conclude the magistrate did not err in recommending that we
issue a writ of mandamus ordering ODRC to provide relator an unredacted copy of the Lexis
No. 20AP-404 7
Response. Therefore, because we are ordering ODRC to comply with R.C. 149.43(B), an
award of costs under R.C. 149.43(C)(3)(a)(i) is appropriate. Accordingly, we overrule
ODRC's third objection.
{¶ 15} Following an independent review of the magistrate's decision and the
objections filed by ODRC, we overrule ODRC's three objections. We adopt the magistrate's
decision as our own, including the findings of fact and conclusions of law contained therein.
For the reasons set forth herein, we issue a writ of mandamus ordering ODRC to produce
to relator an unredacted copy of Lexis Nexis's May 24, 2019 response to ODRC's request
for quote number DRCQ-20-2780. We award relator statutory damages in the amount of
$1,000 and order ODRC to pay the costs in this matter.
Objections overruled;
writ of mandamus granted;
statutory damages and costs awarded.
KLATT and BEATTY BLUNT, JJ., concur.
_____________
No. 20AP-404 8
APPENDIX
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State ex rel. Michael A. McNew, :
Relator, :
v. : No. 20AP-404
Ohio Department of Rehabilitation and : (REGULAR CALENDAR)
Correction,
:
Respondent.
:
MAGISTRATE'S DECISION
Rendered on January 7, 2022
Michael A. McNew, pro se.
Dave Yost, Attorney General, and Mark W. Altier, for
respondent.
IN MANDAMUS
{¶ 16} Relator, Michael A. McNew, has filed this original action seeking a writ of
mandamus ordering respondent, Ohio Department of Rehabilitation and Correction
("ODRC"), to comply with his requests for public records made pursuant to R.C. 149.43.
Relator has also filed a March 22, 2021, motion to supplement the evidence, which the
magistrate denies.
Findings of Fact:
{¶ 17} 1. Relator is a prisoner incarcerated at London Correctional Institution
("LCI").
No. 20AP-404 9
{¶ 18} 2. ODRC is a governmental agency that operates LCI.
{¶ 19} 3. Relator asserts in his petition for writ of mandamus that ODRC, in bad
faith, failed to produce public records in two separate requests for documents. With regard
to the first request ("first request"), relator alleges: (1) on April 13, 2020, relator sent a
public records request to Vicky Justus at LCI, requesting the itemized operating budget for
the education department at LCI (including the high school, vocational education
programs, the library, and law library) for the fiscal year starting July 1, 2019 and ending
June 30, 2020; (2) in a May 11, 2020, letter, Justus stated that LCI does not have these
records and directed relator to ODRC's operations support center ("central office"); (3) on
May 15, 2020, relator sent a public records request by regular mail to Annette Chambers-
Smith at ODRC's central office requesting the same records as requested from LCI. ODRC
did not respond to the May 15, 2020, request; (4) on June 8, 2020, relator sent the same
request via certified mail to Chambers-Smith at ODRC's central office; (5) the signed return
receipt for the June 8, 2020, request is undated, but has a postmarked return of June 12,
2020, and was received by relator on June 15, 2020; and (6) ODRC has not provided any
reply to the June 8, 2020, request.
{¶ 20} With regard to the second request ("second request"), relator alleges: (1) on
April 13, 2020, relator sent a public records request to Chambers-Smith, by regular mail,
requesting a copy of any contract, presently in effect, under which ODRC provides Lexis
Nexis access to inmates, regardless of whether the signatory is ODRC or the State of Ohio,
including any side letters or memoranda of understanding between the parties intended to
interpret, supplement, or amend the contract ("second request"); (2) on April 17, 2020,
ODRC, via staff counsel Sarah Pierce, produced the contract responsive to the April 13,
2020, request; however, the contract references additional terms and conditions set forth
in separate documents that were not produced although requested; (3) in an April 27, 2020,
letter to Pierce, relator informed her that there were other documents that fell within the
scope of the second request that were not produced, specifically, the request for quote
number DRCQ-20-2780; the May 24 and June 7, 2019 Lexis Nexis response to quote
number DRCQ-20-2780; the Lexis Nexis agreement for prison solutions; and the Lexis
Nexis additional terms for all products; (4) relator received no reply to the April 27, 2020,
request; (5) on May 15, 2020, relator sent a request to Chambers-Smith by regular mail for
No. 20AP-404 10
the records specifically requested in the April 27, 2020, letter; (6) relator received no reply
to the May 15, 2020, request; (7) on June 22, 2020, relator sent a written request to
Chambers-Smith via certified mail for the documents requested in the April 27, 2020,
letter; (8) the return receipt from the June 22, 2020, request indicated that ODRC received
the request on June 29, 2020; and (9) ODRC failed to produce the records requested in the
June 22, 2020, request or reply to the request.
{¶ 21} 4. On August 28, 2020, relator filed the present petition for writ of
mandamus, in which he claimed ODRC failed to comply with his first and second public
records requests pursuant to R.C. 149.43.
{¶ 22} 5. On November 4, 2020, Pierce sent a letter to relator that included the
records responsive to relator's first request. The letter indicated that the enclosed record
was responsive to the request with the most current data, and the budget data was itemized
by funding stream. The letter did not specify what responsive records had been provided.
{¶ 23} 6. On November 4, 2020, Pierce sent a letter to relator that included the
records responsive to relator's second request. Pierce noted that Lexis Nexis claims trade
secret and copyright protections for the May 24, 2019, response to the ODRC request for
quote number DRCQ-20-2780 (under R.C. 149.43(A)(1)(v), 17 U.S.C. 102(a), and
R.C. 1333), and ODRC was working to resolve the applicability of this claimed exception to
the May 24, 2019, response and would supplement the response. The letter did not specify
what responsive records had been provided.
{¶ 24} 7. In a November 5, 2020, affidavit, Pierce averred to the following: (1) with
regard to the first request, the ODRC central office staff worked to identify any records
available that would be responsive to the request; due to the COVID-19 emergency most
central office staff, including herself, worked from home with limited access to their regular
office space; two reports were identified as responsive and were provided to relator on
November 4, 2020, as evidenced by the November 4, 2020, letter; and (2) with regard to
relator's second request, ODRC central office staff located the additional contract records
requested by relator and provided these records to relator on November 4, 2020, as
evidenced by the November 4, 2020, letter. The affidavit concluded with an averment that,
as of November 4, 2020, the responsive records have been provided to relator.
No. 20AP-404 11
{¶ 25} 8. On November 20, 2020, ODRC filed a motion requesting a stay and
mediation through this court's mediation department, indicating that it believed it could
resolve the matter without the need for a judgment.
{¶ 26} 9. On December 1, 2020, this magistrate denied ODRC's motion to refer the
matter to mediation but granted a stay for the parties to pursue settlement.
{¶ 27} 10. On February 22, 2021, ODRC notified the court that negotiations had
failed, and this magistrate lifted the previously imposed stay.
Conclusions of Law:
{¶ 28} In order for this court to issue a writ of mandamus, a relator must ordinarily
show a clear legal right to the relief sought, a clear legal duty on the part of the respondent
to provide such relief, and the lack of an adequate remedy in the ordinary course of the law.
State ex rel. Pressley v. Indus. Comm., 11 Ohio St.2d 141 (1967). However, relators in
public-records mandamus cases need not establish the lack of an adequate remedy in the
ordinary course of law. State ex rel. ACLU of Ohio v. Cuyahoga Cty. Bd. of Commrs., 128
Ohio St.3d 256, 2011-Ohio-625, ¶ 24, citing State ex rel. Morgan v. New Lexington, 112
Ohio St.3d 33, 2006-Ohio-6365, ¶ 41.
{¶ 29} Under R.C. 149.43(B)(1), a public office is required to make copies of public
records available to any person on request and within a reasonable period of time. A "public
record" is a record "kept by any public office." R.C. 149.43(A)(1). A party who believes that
his request for a public record has been improperly denied may file a mandamus action in
order to compel production of the record. R.C. 149.43(C)(1)(b). See State ex rel. Physicians
Commt. for Responsible Medicine v. Ohio State Univ. Bd. of Trustees, 108 Ohio St.3d 288,
2006-Ohio-903, ¶ 6. The requester must establish by clear and convincing evidence a clear
legal right to the records and a corresponding clear legal duty on the part of the respondent
to provide them. See State ex rel. Cincinnati Enquirer v. Sage, 142 Ohio St.3d 392, 2015-
Ohio-974, ¶ 10. When a public office withholds responsive records, it has the burden of
showing that the records are statutorily exempted from disclosure. State ex rel. Cincinnati
Enquirer v. Jones-Kelley, 118 Ohio St.3d 81, 2008-Ohio-1770, paragraph two of the
syllabus. Exceptions to disclosure are strictly construed against the public office
withholding the records. Id. A writ of mandamus will not issue when the uncontroverted
No. 20AP-404 12
evidence shows that the requested documents do not exist. State ex rel. Lanham v. Smith,
112 Ohio St.3d 527, 2007-Ohio-609, ¶ 15.
{¶ 30} In the present case, relator presents arguments pertaining to both the first
request and second request. With regard to the first request, relator argues that he sent the
public records requests regarding the budget records pertaining to LCI's education
department to the central office on May 15, 2020, and, again, on June 8, 2020. However,
ODRC failed to respond to either request. Relator argues that the financial documents sent
with the November 4, 2020, letter from ODRC were not responsive to the request. Relator
argues that the produced documents are a spreadsheet showing the balance of several
ODRC accounts and a spreadsheet of accounts payable, neither of which can be construed
as an itemized budget.
{¶ 31} However, a public office has no duty to provide records that do not exist, or
that it does not possess. State ex rel. Gooden v. Kagel, 138 Ohio St.3d 343, 2014-Ohio-869,
¶ 5, 8-9. See also State ex rel. McDougald v. Greene, 163 Ohio St.3d 471, 2020-Ohio-5100,
¶ 10 (when a requester seeks a nonexistent record, a public office has no duty to provide it).
In the absence of evidence to the contrary, the public office may be presumed to have
performed its duties including public records identification and retrieval regularly and in a
lawful manner. State ex rel. Toledo Blade Co. v. Toledo-Lucas Cty. Port Auth., 121 Ohio
St.3d 537, 2009-Ohio-1767, ¶ 29. An office may establish by affidavit that all existing
records have been provided. Id. at ¶ 15. Although the affidavit may be rebutted by evidence
showing a genuine issue of fact, a requester's mere belief based on inference and
speculation does not constitute the evidence necessary to establish that a document exists
as a record. State ex rel. McCaffrey v. Mahoning Cty. Prosecutor's Office, 133 Ohio St.3d
139, 2012-Ohio-4246, ¶ 22-26 (a requester's mere disbelief in a public office's assertion of
nonexistence does not constitute the clear and convincing evidence necessary to establish
that responsive documents do exist). The "burden of persuasion" is at all times on the
requester of records to prove his right to relief by the requisite quantum of evidence. Welsh-
Huggins v. Jefferson Cty. Prosecutor's Office, 163 Ohio St.3d 337, 2020- Ohio-5371, ¶ 34.
Consequently, the requester must establish entitlement to relief by clear and convincing
evidence. Id. 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
No. 20AP-404 13
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."
Cross v. Ledford, 161 Ohio St. 469 (1954), paragraph three of the syllabus.
{¶ 32} In the present case, relator has failed to sustain his burden. Relator does not
present any evidence that there are any public records pertaining to his first request that
ODRC has not provided. Although relator argues that the financial documents sent with the
November 4, 2020, letter from ODRC were not responsive to the request, relator presents
no evidence that the type of "itemized budget" that he envisions or desires exists. In her
November 5, 2020, affidavit, Pierce averred that ODRC produced two reports as responsive
to relator's first request, and as of that date, the responsive records have been provided to
relator. Thus, relator having failed to sustain his burden that there exist additional public
records responsive to his first records request, ODRC fulfilled its obligation and did not
violate R.C. 149.43.
{¶ 33} With regard to the second request, relator argues that on April 13, 2020, he
originally requested from the central office the records that were part of the contract
between ODRC and Lexis Nexis, and that request specifically defined "contract" to include
side letters or memoranda of understanding between the parties intended to interpret,
supplement, or amend the contract. However, relator contends, ODRC produced only a
bare-bones agreement between the parties and did not include the other documents
referenced in that agreement. Relator points out that he made another request for these
records on May 15, 2020, but he received no reply, so he made another request on June 22,
2020, specifically requesting the request for quote known as DRCQ-20-2780, the May 24
and June 7, 2019 Lexis Nexis response to DRCQ-20-2780, the Lexis Nexis agreement for
prison solutions, and the Lexis Nexis additional terms for all products, which were all
mentioned in the contract. ODRC also did not respond to his June 22, 2020, request.
Relator asserts that the documents ODRC did produce with the November 4, 2020, letter
(i.e., the request for quote number DRCQ-20-2780) were insufficient because: (1) the letter
raises for the first time that the May 24, 2019, response from Lexis Nexis is protected by
trade secrets; (2) the documents do not address the June 7, 2019, Lexis Nexis response to
the request for quote and does not claim a trade secret exception; and (3) the documents
do not contain the Lexis Nexis agreement for prison solutions or the Lexis Nexis additional
No. 20AP-404 14
terms for all products. Relator contends that if the claim of trade secrets cannot be resolved
by redaction, then this court should review the document in camera.
{¶ 34} ODRC counters that relator concedes that respondent produced some of the
requested records prior to initiation of the action, namely, the contract between ODRC and
Lexis Nexis. ODRC also points to Pierce's affidavit, in which she stated that, as of November
4, 2020, responsive records to relator's requests have been provided to him.
{¶ 35} As with relator's first request for public records, relator has failed to meet his
burden of persuasion with regard to his claims that more records exist than ODRC
produced with regard to his second request. Relator claims ODRC has not produced the
Lexis Nexis agreement for prison solutions or the Lexis Nexis additional terms for all
products. However, relator presents no evidence to contradict Pierce's affidavit, in which
she indicates that ODRC has delivered to relator its existing records responsive to his
request. Relator has not rebutted Pierce's affidavit by presenting this magistrate evidence
showing a genuine issue of fact remains, and relator's speculation that ODRC possesses
these records is insufficient. Lacking clear and convincing evidence of the existence of these
documents, this argument must be rejected.
{¶ 36} However, with regard to relator's request for the response to the request for
quote number DRCQ-20-2780, Pierce admits in the November 4, 2020, letter that ODRC
possesses records responsive to this request, but Pierce states in the letter that Lexis Nexis
claims trade secret and copyright protections under R.C. 149.43(A)(1)(v), 17 U.S.C. 102(a),
and R.C. 1333. Pierce goes on to aver that ODRC is working to resolve the applicability of
this claimed exception to the May 24, 2019, response and would supplement the response.
Initially, the magistrate notes that the record does not indicate that ODRC ever
supplemented the response; therefore, relator's request appears to remain unfulfilled as of
this decision. Regardless, nowhere in her November 5, 2020, affidavit does Pierce raise any
claim regarding trade secrets and does not disclose or explain the nature of the trade secret.
Furthermore, nowhere in ODRC's merit brief before this court does ODRC raise or even
mention a trade-secret exception. "If a public office or person responsible for public records
withholds a record on the basis of a statutory exception, the 'burden of production' is on the
public office or records custodian to plead and prove facts clearly establishing the
applicability of the exemption." Welsh-Huggins at ¶27. Furthermore, if the requester files
No. 20AP-404 15
a petition for a writ of mandamus after being initially denied public records on the basis of
an exception, "the public office may not rest on assertions in a brief or conclusory
statements in an affidavit, but rather, it bears the burden to affirmatively establish through
specific, relevant evidence that an exception to disclosure applies." McDougald v. Greene,
162 Ohio St.3d 250, 2020-Ohio-4268, ¶ 16 (Kennedy, J., dissenting).
{¶ 37} In the present case, ODRC has not only failed to plead and prove facts clearly
establishing the applicability of the exception, ODRC has completely failed to raise the
trade-secret exception anywhere before this court, including Pierce's affidavit and ODRC's
merit brief. Under these circumstances, the magistrate finds that ODRC has failed to
properly assert and establish before this court an exception to the public records
requirements; thus, the magistrate recommends that a writ of mandamus be issued
ordering ODRC to provide relator with unredacted copies of the May 24, 2019, response to
the ODRC request for quote number DRCQ-20-2780. See id. (Kennedy, J., dissenting)
(failure of the public office to raise or make a meaningful case for the applicability of a
previously asserted public-records exception before the court in a subsequent mandamus
action constitutes an abandonment of the exception, and the court should not address it;
thus, the public office should provide the requester with an unredacted copy of the record).
{¶ 38} In addition, relator asserts that, even if the November 4, 2020, financial-
budget documents produced by ODRC can be construed as being responsive to his request,
ODRC did not produce these records within a reasonable time, thereby entitling him to
court costs and statutory damages. Likewise, relator argues that ODRC failed to produce
the Lexis Nexis contract documents within a reasonable time, and even the records it did
produce were not produced within a reasonable time, thereby entitling him to court costs
and statutory damages.
{¶ 39} ODRC counters that relator has acknowledged that it responded to his
April 13, 2020, request on April 17, 2020, by forwarding a copy of the contract between
ODRC and Lexis Nexis. Furthermore, ODRC contends that it delivered responsive records
to relator regarding both requests on November 4, 2020, and such timeframes were
reasonable, given the limitations and restrictions imposed upon Pierce and the central
office staff as a result of the COVID-19 pandemic. ODRC points to Pierce's averment that
No. 20AP-404 16
due to the COVID-19 emergency, most central office staff, including herself, worked from
home with limited access to their regular office space.
{¶ 40} R.C. 149.43(B)(1) provides that the public office must "promptly prepare" all
records responsive to a public records request within a "reasonable period of time." R.C.
149.43(C)(1) permits a party aggrieved by the failure of the public office to promptly prepare
a public record to receive statutory damages under R.C. 149.43(C)(2) in the amount of one
hundred dollars for each business day during which the public office failed to comply with
the obligation under R.C. 149.43(B)(1), beginning with the day on which the requester files
a mandamus action to recover statutory damages, up to a maximum of one thousand
dollars. The phrase "reasonable period of time" is not defined in the statute, but the " '
"determination of what is 'reasonable' depends upon all the pertinent facts and
circumstances." ' " State ex rel. Stuart v. Greene, 161 Ohio St.3d 11, 2020-Ohio-3685, ¶ 7,
quoting State ex rel. Kesterson v. Kent State Univ., 156 Ohio St.3d 13, 2018-Ohio-5108,
¶ 16, quoting State ex rel. Cincinnati Enquirer v. Deters, 148 Ohio St.3d 595, 2016-Ohio-
8195, ¶ 23. In Stuart, the Supreme Court of Ohio contrasted Kesterson, in which the court
awarded statutory damages because the public office did not provide the requested records
until six months after the relator commenced her mandamus action, and State ex rel.
Shaughnessy v. Cleveland, 149 Ohio St.3d 612, 2016-Ohio-8447, in which a response time
of 24 days was considered a reasonable period of time to respond to a broad records request
when the public office had to search for responsive documents, exclude nonresponsive
documents, print the documents, and then review them to redact exempt information. In
Stuart, the public office provided a substantially redacted record of 18 pages to the
requester 31 days after it received the request, and the court found it was a reasonable
response time lacking any suggestion to the contrary.
{¶ 41} A selection of other cases addressing whether public records were produced
within a reasonable time pursuant to R.C. 149.43 is as follows: Anthony v. Columbus City
Schools, Ct. of Cl. No. 2021-00069PQ, 2021-Ohio-3241 (in the five weeks between the
request and the filing of the complaint, the public office neither provided records nor
offered the required explanation, including legal authority for why they were denied, and
such did not constitute a "reasonable time"); Hodge v. Montgomery Cty. Prosecutor's
Office, Ct. of Cl. No. 2019-01111PQ, 2020-Ohio-4520 (prosecutor's office timely
No. 20AP-404 17
acknowledged public records request three business days after its receipt; however, for its
substantive response, even though a public office is entitled to time for legal review of the
request, the 45 days taken just to determine that the trial preparation records exception
would apply to case records clearly exceeded the reasonable period of time necessary to
assess the response); Burfitt v. Greene, Ct. of Cl. No. 2019-00766PQ, 2020-Ohio-639,
rejected in part and adopted in part in Burfitt v. Greene, Ct. of Cl. No. 2019-00766PQ,
2020-Ohio-843 (public records were not produced timely when the public office initially
denied the request in its entirety, the public office subsequently created a redacted version
of the same documents for another requester two months later, and the public office failed
to promptly provide the same redacted documents to the relator until more than six months
after it was created and three months after the action was filed); State ex rel. Schumann v.
Cleveland, 8th Dist. No. 109776, 2020-Ohio-4920 (public records were not provided within
a reasonable time when over two months elapsed from the time of the request to the release
of the first records, over four months elapsed from the time of the request to its completion,
the relator was compelled to file a mandamus to obtain the records and 27 days lapsed
before he received his first records, and the relator did not have use of all of the requested
records until three months after he filed his mandamus action, much more than the ten
business days envisioned by the statute before awarding full damages for loss of use);
Crenshaw v. Cleveland Law Dept., 8th Dist. No. 108519, 2020-Ohio-921 (trial court erred
when it granted summary judgment to the public office on the issue of statutory damages,
as the public office responded to the public records request 76 days after it received the
request, and such time was not reasonable because the case did not involve voluminous
documents, involved only a single police officer's record for one year, and involved only 65
pages of documents with only routine and ordinary redactions and review necessary); State
ex rel. Korecky v. Cleveland, 8th Dist. No. 108965, 2020-Ohio-273 (21 days between the
records request and the public office's response, which was two days after the filing of the
mandamus action, was unreasonable when the records were readily available, did not
require redaction, did not require examination of multiple indices for retrieval, did not
require the retrieval of information from dusty archives, and timeliness was important for
purposes of appeal; however, 18 days between another records request and the public
office's response was reasonable when the public office required additional time and
No. 20AP-404 18
scrutiny to determinate whether any information contained within should be redacted, and
timeliness was not important); Easton Telecom Servs., L.L.C. v. Village of Woodmere, 8th
Dist. No. 107861, 2019-Ohio-3282 (a two-month period of time taken to provide responsive
records was reasonable when the request was broad and extensive, comprised requests of
several departments and spanned two years; required the involvement of several
department officials, all of whom were part-time employees who had to locate, retrieve, and
transmit the documents to the village's counsel; counsel was required to review, analyze,
redact, and copy the responsive documents; the public office maintained communication
with the requester, providing status updates on the progress of the compilation of the
responsive records; and there was no evidence the public office ever refused to produce any
of the requested records); State ex rel. Bristow v. Baxter, 6th Dist. No. E-18-026, 2019-
Ohio-214 (delay of two and a half months – and 22 business days after the mandamus filing
– before producing the records or in any way responding to relator's requests was
unreasonable under R.C. 149.43(B)(1)); State ex rel. Miller v. Ohio Dept. of Edn., 10th Dist.
No. 15AP-1168, 2016-Ohio-8534, ¶ 19 (public office's delay of 61 days after the public-
records request was received and 7 days after the mandamus action was filed was
unreasonable, given there was no explanation for the delay, and the request did not seek a
voluminous number of records); State ex rel. Simonsen v. Ohio Dept. of Rehab. & Corr.,
10th Dist. No. 08AP-21, 2009-Ohio-442 (37-day delay was unreasonable for purposes of
statutory damages for response to a public records request seeking contracts and materials
about the negotiation of contracts between a prison facility and one of its suppliers when
ODRC did not respond at all to the request until 3 months later, when it did so it gave no
explanation for the 3-month delay, and ODRC did not respond fully to the request until
after the court ordered ODRC to provide conclusive evidence that it had done so).
{¶ 42} In the present case, relator does not dispute that ODRC's April 17, 2020,
response to his April 13, 2020, request for the request for quote number DRCQ-20-2780
(by forwarding a copy of the contract between ODRC and Lexis Nexis) was within a
reasonable time under the circumstances. However, that was the only document with
regard to any of relator's requests that ODRC produced prior to relator's filing of this
mandamus petition. Relator made requests on April 27, 2020 (documents relating to the
second request that were already requested on April 13, 2020); May 15, 2020 (documents
No. 20AP-404 19
relating to the first request); May 15, 2020 (request for the documents requested in the
April 27, 2020, letter); June 8, 2020 (documents relating to the first request); and June 22,
2020 (request for the documents requested in the April 27, 2020, letter). ODRC responded
to none of these requests. On August 28, 2020, relator filed a petition for writ of mandamus.
It was not until November 4, 2020, that Pierce sent letters to relator that included records
responsive to relator's outstanding requests. In one November 4, 2020, letter, Pierce noted
for the first time that Lexis Nexis was claiming trade secret and copyright protections for
the May 24, 2019, response to the ODRC request for quote number DRCQ-20-2780, and
ODRC was working to resolve the applicability of this claimed exception and would
supplement the response. However, there is no indication in the record that ODRC did
anything to resolve the claimed exception or provide a supplemental response. Thus, after
the initial incomplete response in April 2020, ODRC did not respond to relator's various
requests until over two months after relator filed his mandamus complaint, and six and
seven months elapsed since relator had filed the original requests in April and May 2020,
respectively.
{¶ 43} Based upon all of the circumstances in this case, the magistrate finds that
ODRC failed to promptly produce the public records requested by relator within a
reasonable time, as contemplated by R.C. 149.43. Except for the main contract between
ODRC and Lexis Nexis, ODRC did not produce the requested records for six to seven
months after the public records requests and over two months after relator filed his
mandamus complaint. ODRC does not claim that it had to conduct a wide-ranging search,
comb through voluminous documents, undertake unusually burdensome redactions or
legal review, or search dusty archives. To the contrary, the requested records appear to be
of recent vintage and readily available. Furthermore, except for the partial response to the
first public records request, ODRC wholly failed to respond or acknowledge the requests,
maintained no contact with relator throughout the period of delay, and offered no
explanation for the delay or any denial. ODRC's lack of any response forced relator to file
the instant mandamus in order to obtain records to which the public is entitled to view.
Even after filing his mandamus action, relator still had to wait over two months to receive
any responsive documents.
No. 20AP-404 20
{¶ 44} Although ODRC urges this court, in general terms, to consider all of the facts
and circumstances at issue in the present case when analyzing the reasonableness of its
response time to relator's records requests, it offers but one specific circumstance: the
limitations and restrictions imposed upon the staff of ODRC as a result of the COVID-19
pandemic. In her November 5, 2020, affidavit Pierce avers that due to the COVID-19
emergency, most central office staff, including Pierce, worked from home with limited
access to their regular office space. However, the magistrate finds that the COVID-19
pandemic does not render reasonable the substantial delay relator suffered in receiving
responsive public records in this case. Initially, as mentioned, ODRC did not even respond
to any of relator's requests, except the partial response to the first request on April 13, 2020.
The COVID-19 pandemic would not excuse ODRC's failure to provide, at a minimum, an
acknowledgement of relator's public records requests. Furthermore, the respondent is
under a statutory duty to organize its office and employ its staff in such a way that its office
will be able to make public records available for inspection and to provide copies when
requested within a reasonable time. See State ex rel. Beacon Journal Pub. Co. v. Andrews,
48 Ohio St.2d 283, 289 (1976). The court in State ex rel. Schumann v. Cleveland, 8th Dist.
No. 109776, 2020-Ohio-4920, concluded that the COVID-19 pandemic did not excuse the
public office from promptly responding to public records request within a reasonable time.
In Schumann, over two months elapsed from the time of the request in May 2020 until the
release of the first records, and over four months elapsed from the time of the request to its
completion in September 2020. The requester was compelled to file a mandamus to obtain
the records, and then 27 days elapsed before he received his first records. The relator did
not have use of all of the requested records until three months after he filed his mandamus
action. Although the court acknowledged the difficulties caused by the pandemic and the
respondents' efforts to provide the records after mandamus was filed, the court found that
the limitations on work caused by the COVID-19 pandemic that respondents claimed
prevented them from fulfilling the request, including the fact that the person assigned to
fulfill the request could only physically access her office as little as one day per week, did
not excuse untimely response to a public records request. The court awarded $1,000 in
statutory damages, the maximum permitted by statute, to relator.
No. 20AP-404 21
{¶ 45} Therefore, in this case, the magistrate finds that because ODRC failed to
promptly produce the public records requested by relator within a reasonable time, as
contemplated by R.C. 149.43, relator is entitled to $1,000 in statutory damages, the
maximum amount permitted under the statute.
{¶ 46} In his petition and brief, relator also seeks an award for court costs associated
with bringing the present mandamus action. Under certain circumstances, a court may
award attorney fees, R.C. 149.43(C)(3)(b)(iii), and court costs, R.C. 149.43(C)(3)(a)(ii). As
a pro se litigant, relator is ineligible for an award of attorney fees. See State ex rel. Fant v.
Mengel, 62 Ohio St.3d 197, 198 (1991). As for court costs, court costs shall be awarded to a
requester if a court instructs a public office to comply with an obligation imposed by R.C.
149.43(B). R.C. 149.43(C)(3)(a)(i). Costs are also available under R.C. 149.43(C)(3)(a)(ii) if
the court makes a determination described in division (C)(3)(b)(iii) of this section, which
requires the court to find that the respondent acted in bad faith when the office or person
voluntarily made the public records available to the relator during the course of a
mandamus action. Further, the subsection provides that there is no presumption of bad
faith. Id. "Bad faith" generally implies something more than bad judgment or negligence.
McDougald at ¶ 26, quoting State v. Tate, 5th Dist. No. 07 CA 55, 2008-Ohio-3759, ¶ 13. It
" '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 Slater v. Motorists
Mut. Ins. Co., 174 Ohio St. 148 (1962), paragraph two of the syllabus, rev'd on other
grounds, Zoppo v. Homestead Ins. Co., 71 Ohio St.3d 552 (1994), paragraph one of the
syllabus.
{¶ 47} Here, relator presents no substantive argument or evidence regarding
ODRC's alleged bad faith. Notwithstanding, this court has instructed ODRC to comply with
an obligation imposed by R.C. 149.43(B); that is, the magistrate has found that a writ of
mandamus should be issued ordering ODRC to provide relator with unredacted copies of
the May 24, 2019, response to the ODRC request for quote number DRCQ-20-2780.
Because R.C. 149.43(C)(3)(a)(i) indicates the court "shall" award all court costs to a relator
under these circumstances, the magistrate recommends that relator be awarded all court
costs.
No. 20AP-404 22
{¶ 48} Accordingly, it is the magistrate's decision that a partial writ of mandamus be
issued. ODRC is ordered to provide relator with unredacted copies of the May 24, 2019,
response to the ODRC request for quote number DRCQ-20-2780, relator is awarded
$1,000 in statutory damages, and relator is awarded court costs.
/S/ MAGISTRATE
THOMAS W. SCHOLL III
NOTICE TO THE PARTIES
Civ.R. 53(D)(3)(a)(iii) provides that a party shall not assign as
error on appeal the court's adoption of any factual finding or
legal conclusion, whether or not specifically designated as a
finding of fact or conclusion of law under Civ.R.
53(D)(3)(a)(ii), unless the party timely and specifically objects
to that factual finding or legal conclusion as required by Civ.R.
53(D)(3)(b).