2021 Ohio 623
Ohio2021Background
- In March 2018 the Clermont County Prosecutor issued a grand-jury subpoena to Ohio State University (OSU); OSU returned a packet of disciplinary records on a flash drive and a cover letter to the prosecutor.
- On February 22, 2019 attorney Kevin L. Murphy requested from the prosecutor (without initially stating he represented Andrew Frank) correspondence with OSU about Frank and any documents provided to OSU.
- The prosecutor first produced only OSU’s cover letter and asserted no other responsive public records were in its possession, declining to produce the subpoena and flash-drive documents as relating to grand-jury/sealed matters.
- Frank filed an original mandamus action; the prosecutor thereafter treated the request as an application by the subject of sealed records and progressively produced the subpoena and the flash-drive contents (final production March 18, 2020), and attested that all responsive records in his possession had been provided.
- The Supreme Court granted an alternative writ but, after considering the record and the prosecutor’s attestations, denied the writ as moot and found no clear-and-convincing evidence of withheld records; it also denied requests for statutory damages, attorney fees, and costs.
Issues
| Issue | Plaintiff's Argument (Frank) | Defendant's Argument (Prosecutor) | Held |
|---|---|---|---|
| Whether a writ of mandamus should compel production of any additional responsive records | Prosecutor previously misrepresented what he had and therefore may still withhold records; mandamus needed to compel full production | Prosecutor produced all responsive records and attested that nothing else exists in his possession; production moots mandamus | Denied — production rendered claim moot; Frank failed to rebut prosecutor’s affidavit by clear and convincing evidence |
| Whether the prosecutor acted in bad faith by producing records only after litigation (entitling Frank to attorney fees and costs) | Prosecutor delayed and lied about records, demonstrating bad faith | Prosecutor reasonably qualified responses, properly treated sealed-records request, and produced records once acting on subject’s application | Denied — no bad faith; fees and costs not awarded |
| Whether statutory damages are warranted for failure to comply with Public Records Act | Statutory damages requested because initial refusal and delay violated R.C. 149.43 | Records were subject to sealing/grand-jury rules and once subject clarified, records were released; no statutory breach shown | Denied — prosecutor did not violate Public Records Act obligations in a way that warrants statutory damages |
| Whether sealed/grand-jury-related materials are subject to public-records disclosure | N/A (implied: Frank contends documents should be public) | Sealed records and grand-jury-related materials are excluded from Public Records Act and must be handled under sealing statutes and Crim.R. protections | Held that many of the contested records fall outside Public Records Act protections; prosecutor appropriately handled sealed-records requests |
Key Cases Cited
- State ex rel. Striker v. Smith, 129 Ohio St.3d 168 (2011) (production of requested records generally moots a public-records mandamus claim)
- State ex rel. Toledo Blade Co. v. Toledo-Lucas Cty. Port Auth., 121 Ohio St.3d 537 (2009) (public office may establish mootness by affidavit attesting all responsive records were produced)
- State ex rel. McCaffrey v. Mahoning Cty. Prosecutor’s Office, 133 Ohio St.3d 139 (2012) (attestations can be rebutted only by clear-and-convincing evidence that additional records exist)
- State ex rel. Rogers v. Dep’t of Rehab. & Corr., 155 Ohio St.3d 545 (2018) (statutory damages may be awarded when a public office fails to comply with R.C. 149.43)
- State ex rel. Kesterson v. Kent State Univ., 156 Ohio St.3d 13 (2018) (statutory damages can be awarded even if mandamus is rendered moot where production was unreasonably delayed)
- State ex rel. Cincinnati Enquirer v. Winkler, 101 Ohio St.3d 382 (2004) (records sealed under R.C. 2953.52 cease to be public records)
- State v. S.R., 63 Ohio St.3d 590 (1992) (definition of "official records" for sealing statutes is broad and includes all records possessed by public agencies that relate to the criminal case)
- Physicians Committee for Responsible Medicine v. Ohio State Univ. Bd. of Trustees, 108 Ohio St.3d 288 (2006) (mandamus is an appropriate remedy to compel compliance with the Public Records Act)