State ex rel. Ware v. DeWine (Slip Opinion), 2020 Ohio 5148

Background:

Relator Kimani Ware, an inmate at Trumbull Correctional Institution (TCI), sent a certified-mail public-records request to the Governor’s Office on January 3, 2019 seeking six categories of records (retention schedule, public-records policy, records-management manual, index of county commissioners, index of appointments, and current employee roster).
The Governor’s Office acknowledged receipt on January 28 and later, per affidavit of assistant chief counsel Sean McCullough, mailed responsive records to Ware on March 13, 2019 and re-sent them on May 28 after Ware claimed nonreceipt.
TCI’s legal-mail log (submitted by the warden’s assistant) shows legal mail from the Governor’s Office for Ware was received at the institution on March 19, 2019.
Ware filed an original mandamus action March 19 alleging no response; he later submitted a June 14 affidavit asserting the Governor’s March/May productions were incomplete (no records-management manual or index of county commissioners; incomplete appointments index).
The magistrate treated Ware’s June 14 affidavit as non-evidentiary legal argument, credited McCullough’s affidavits that (1) some requested records did not exist in the Governor’s Office and (2) everything in the office’s possession was produced, and concluded mailing to the institution satisfied the office’s duty to make records available.
The Tenth District adopted the magistrate’s findings and denied the writ and statutory damages; the Ohio Supreme Court affirmed.

Issues:

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the June 14 affidavit should be considered substantive evidence	Ware: affidavit was sworn, so it must be considered as evidence of nonreceipt and incompleteness	DeWine: affidavit is largely legal argument/conclusion and improperly admissible; factual evidence (affidavits, mail log) shows records were sent	Court: affidavit contained legal arguments/conclusions and was properly disregarded as evidentiary; exclusion caused no prejudice
Whether the Governor’s records-retention schedule creates a factual issue that the Office maintains an index of county commissioners	Ware: retention schedule entry for “Record of Commissioners (R.C. 107.10(C))” proves the Office keeps that index	DeWine: retention schedule listing does not prove the Office actually maintains the record; affidavit denies existence	Court: existence on a retention schedule does not create a fact issue; court credited McCullough that the Office did not maintain such a manual/index
Whether statutory damages are warranted because Ware did not receive records until May	Ware: did not receive records promptly and thus is entitled to statutory damages	DeWine: the Office satisfied its duty by mailing responsive records by certified mail to the prison in March; what happened thereafter was beyond the Office’s control	Court: mailing to TCI satisfied the duty to make records available; no basis for statutory damages

Key Cases Cited

State ex rel. Cincinnati Enquirer v. Pike Cty. Gen. Health Dist., 154 Ohio St.3d 297 (2018) (mandamus relief under Public Records Act requires relator to prove by clear and convincing evidence a clear right and clear duty)
Smith v. McBride, 130 Ohio St.3d 51 (2011) (de novo review of summary-judgment decision and summary-judgment standard)
State ex rel. Columbia Res., Ltd. v. Lorain Cty. Bd. of Elections, 111 Ohio St.3d 167 (2006) (courts may disregard affidavits that contain legal conclusions and argument)
State ex rel. Kesterson v. Kent State Univ., 156 Ohio St.3d 13 (2018) (statutory damages may be awarded when a public office unreasonably delays production of records)