State ex rel. Horton v. Kilbane (Slip Opinion), 2022 Ohio 205

Background

On Jan 14, 2019 relator Mary Jane Horton saw a news report about Independence police implementing a traffic-ticket quota and showing documents as evidence.
On Jan 16, 2019 Horton emailed a public-records request for four items: (1) a memo requiring 10 citations/month; (2) a memo requiring 2–3 enforcement actions/shift; (3) the written warning/reprimand given to the officer; and (4) the grievance filed by the officer.
The next day Chief Kilbane produced three pages (including an unsigned reprimand), said no records existed for items 2 and 4 (or that item 4 was held by the union), and invited more identifying information; Horton obtained those pages and paid copying fees.
Horton filed a mandamus action on March 9, 2020; the city later produced additional documents: an Aug. 8, 2018 memo, a signed version of the reprimand, and two versions of the grievance (one unsigned, one later signed).
The Supreme Court issued an alternative writ, received briefs and testimony, and considered (a) whether the city violated the Public Records Act by failing to produce responsive records in its possession and (b) whether statutory damages and attorney fees were warranted.
Outcome: writ denied; relator awarded $1,000 statutory damages (maximum under R.C. 149.43); attorney fees and costs denied.

Issues

Issue	Horton's Argument	Kilbane's Argument	Held
Reprimand (request 3): whether city failed to produce responsive document in full	Horton sought the written warning and later asserted she was entitled to versions without the officer's signature/handwriting	City produced the unsigned reprimand promptly and later produced the signed version; Horton impermissibly broadened her request after suit	Writ denied as to request 3 because relator later accepted the version produced and cannot expand the request; city produced responsive documents
Grievance (request 4): whether city had a duty to produce grievance containing the chief’s markings	Horton argued the city should produce the grievance containing Kilbane’s denial markings	City showed it did not possess the grievance with Kilbane’s markings because the chief returned it to the union; possession/control lacking	Writ denied for the grievance containing Kilbane’s markings because the record was not in the city’s possession or control
Timeliness/statutory damages: whether the city unreasonably delayed producing records (Aug memo, signed reprimand, grievance)	Horton argued 13+ month delays were unreasonable and sought statutory damages under R.C. 149.43(C)(2)	City argued searches were reasonable, requested specificity, and that some documents had been produced to a third party earlier	Court found unreasonable delay in producing the Aug memo, the signed reprimand, and one version of the grievance; because delay for a responsive grievance persisted more than 10 business days after suit, Horton awarded $1,000 statutory damages (no stacking)
Attorney fees and costs (bad-faith standard)	Horton alleged Kilbane acted in bad faith (incomplete searches, inconsistent testimony, possible purging of records) and sought fees/costs under R.C. 149.43(C)(3)(b)(iii)	City argued any failures were poor judgment or storage practices, not dishonest or deceptive intent; the missing grievance was given to the union per bargaining agreement	Court declined to find bad faith: conduct amounted to bad judgment or oversight, not conscious wrongdoing or intent to deceive; attorney fees and costs denied

Key Cases Cited

State ex rel. Striker v. Smith, 950 N.E.2d 952 (public office has no duty to produce records it does not possess)
State ex rel. McDougald v. Greene, 161 N.E.3d 575 (application of Public Records Act version and discussion of bad-faith standard)
State ex rel. Ware v. Akron, 174 N.E.3d 724 (good or bad faith is not dispositive for statutory-damages accrual analysis)
State ex rel. Morgan v. New Lexington, 857 N.E.2d 1208 (requester need not specify author and date; requests judged for reasonable clarity)
Kish v. Akron, 846 N.E.2d 811 (public-records accountability and limits on excusing a public office from duties)
State ex rel. Warren Newspapers, Inc. v. Hutson, 640 N.E.2d 174 (prior decision recognizing unreasonable delay in producing records)
State ex rel. Dehler v. Kelly, 939 N.E.2d 828 (no stacking of statutory damages for essentially the same records request)
State v. Powell, 971 N.E.2d 865 (definition and discussion of "bad faith" as requiring more than negligence)