THE STATE EX REL. MOBLEY v. POWERS, PROS. ATTY.
No. 2023-0501
Supreme Court of Ohio
January 17, 2024
2024-Ohio-104
[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State ex rel. Mobley v. Powers, Slip Opinion No. 2024-Ohio-104.]
NOTICE
This slip opinion is subject to formal revision before it is published in an advance sheet of the Ohio Official Reports. Readers are requested to promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65 South Front Street, Columbus, Ohio 43215, of any typographical or other formal errors in the opinion, in order that corrections may be made before the opinion is published.
SLIP OPINION NO. 2024-OHIO-104
[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State ex rel. Mobley v. Powers, Slip Opinion No. 2024-Ohio-104.]
Mandamus—Public-records requests—
(No. 2023-0501—Submitted November 14, 2023—Decided January 17, 2024.)
IN MANDAMUS.
Per Curiam.
{¶ 1} This is an original action in mandamus brought under Ohio‘s Public Records Act,
Mobley requested in his complaint a writ of mandamus ordering the production of records relating to former
I. BACKGROUND
{¶ 2} On January 27, 2023, the prosecutor received Mobley‘s public-records request, which sought the records-retention schedule kept by the prosecutor and the “certified statements” prepared by the prosecutor under former
{¶ 3} The General Assembly repealed
{¶ 4} On March 23, Assistant Prosecuting Attorney Amy Clausing, who was the public-information officer for the prosecutor, located records responsive to Mobley‘s request. Near the end of March, Clausing drafted a letter in response to Mobley‘s request and, she thought, mailed it to him with the responsive records.
{¶ 5} On April 14, Mobley filed his mandamus complaint in this case. Upon being served with Mobley‘s complaint, Clausing realized that she had inadvertently failed to send him the response to his public-records request. Therefore, on April 20, Clausing mailed the response to Mobley, explaining to him that she had enclosed “the annual reports to the Hamilton County Board of County Commissioners for the years 2016-2020, submitted pursuant to
{¶ 7} Clausing attests that her response to Mobley provided him with all the records he had requested.
{¶ 8} This court denied the prosecutor‘s motion to dismiss Mobley‘s mandamus complaint, denied Mobley‘s combined motion to strike and request for sanctions, and granted an alternative writ and set a schedule for the submission of evidence and merit briefs. 170 Ohio St.3d 1488, 2023-Ohio-2348, 212 N.E.3d 934. Both parties filed merit briefs, but only the prosecutor filed evidence. On the day that the prosecutor filed her brief, Mobley filed a motion for leave to file rebuttal evidence, which the prosecutor has not opposed.
II. ANALYSIS
A. Mobley‘s motion for leave to file rebuttal evidence
{¶ 9} Mobley‘s motion for leave to file rebuttal evidence labels the proposed evidence as “Exhibit A” and “Exhibit B.” Exhibit A is a mail return-receipt card that was returned by the prosecutor. Exhibit B consists of a February 8, 2023 public-records request that Mobley sent to the Hamilton County Board of Commissioners, which sought the same public records he requested from the prosecutor in this matter, and the board‘s August 1 and 8 responses to that request.
{¶ 10} This court‘s rules provide that a “[r]elator may file a motion for leave to file rebuttal evidence within the time permitted for the filing of relator‘s reply brief.” S.Ct.Prac.R. 12.06(B). Because Mobley filed his motion for leave on the day that the prosecutor filed her merit brief, his motion was timely.
{¶ 11} The aim of Mobley‘s motion is the admission of evidence rebutting the evidence the prosecutor has submitted to show that Clausing has provided to Mobley all the records responsive to his records request. “Rebutting evidence is [evidence] given to explain, refute, or disprove new facts introduced into evidence by the adverse party; it becomes relevant only to challenge the evidence offered by the opponent, and its scope is limited by such evidence.” State v. McNeill, 83 Ohio St.3d 438, 446, 700 N.E.2d 596 (1998). A court has discretion in determining whether to admit rebuttal evidence. Id.
{¶ 12} We deny Mobley‘s motion as to Exhibit A because the exhibit lacks a proper rebuttal purpose. The fact that Mobley possesses a mail return-receipt card returned by the prosecutor shows nothing about whether the prosecutor has failed to provide Mobley with a complete set of the records he requested.
{¶ 13} Mobley is on stronger ground, however, regarding Exhibit B. The documents comprising that exhibit can be grouped into four categories.
{¶ 14} The first category consists of the public-records request that Mobley sent to the board and the board‘s cover letters responding to the request.
{¶ 15} The second category consists of cover letters sent by the prosecutor to the board from 2016 through 2020, which state that a report was enclosed and was being submitted pursuant to former
{¶ 16} The third category consists of the same documents that Clausing sent to
{¶ 17} The last category consists of a series of reports made by the prosecutor that differ from those in the third category. Each report contains a cover page stating that the information in the report was being submitted “pursuant to
{¶ 18} This last category of records has the most obvious rebuttal purpose. On their faces, the cover pages and itemized lists prepared by the prosecutor are documents that Mobley requested from the prosecutor as “certified statements” that her office had created under former
{¶ 19} We also admit the first, second, and third categories of documents as rebuttal evidence. We recognize that former
{¶ 20} We deny Mobley‘s motion for leave to file rebuttal evidence as to Exhibit A but grant it as to Exhibit B.
B. Mandamus
{¶ 21} Mandamus is an appropriate remedy to compel compliance with Ohio‘s Public Records Act. State ex rel. Physicians Commt. for Responsible Medicine v. Ohio State Univ. Bd. of Trustees, 108 Ohio St.3d 288, 2006-Ohio-903, 843 N.E.2d 174, ¶ 6;
1. Vagueness
{¶ 22} We first address whether the prosecutor is correct in arguing that she had no duty to provide Mobley with any “annual report” that accompanied a “certified statement” for the years 2016 through 2020 submitted under former
{¶ 23} A public-records requester has a duty “‘to identify with reasonable clarity the records at issue.‘” State ex rel. Morgan v. New Lexington, 112 Ohio St.3d 33, 2006-Ohio-6365, 857 N.E.2d 1208, ¶ 29, quoting State ex rel. Fant v. Tober, Cuyahoga App. No. 63737, 1993 WL 173743, *1 (Apr. 28, 1993). But the vagueness argument here is almost certainly not supported by any failure of Mobley to articulate with sufficient clarity the records he was seeking in his request. After all, Mobley cited former
{¶ 24} It is true that a public-records requester may not broaden the scope of a request through a legal brief filed in pursuit of the records requested. See State ex rel. Horton v. Kilbane, 167 Ohio St.3d 413, 2022-Ohio-205, 194 N.E.3d 288, ¶ 10. But Mobley has not done that here. The records request he submitted to the prosecutor sought the certified statements prepared by her office under former
{¶ 25} The prosecutor notes that Mobley‘s brief occasionally uses the term “annual report” to describe the records he has not yet received. Even so, the prosecutor mistakenly argues that Mobley‘s use of that term amounts to a request for records that he did not ask for in his original request. On page two of his brief, Mobley states that the prosecutor “has failed to provide the Annual Report[s] that were given to the Hamilton County Board of Commissioners pursuant to
{¶ 26} Nor is Mobley the only party who has employed differing terminology in describing the records that former
{¶ 27} We reject the prosecutor‘s vagueness argument.
{¶ 28} The prosecutor argues that this court should deny Mobley‘s mandamus claim as moot because, she says, Clausing has already sent him all the records he requested. Generally, a public-records mandamus claim becomes moot when the records custodian provides the requested documents. See State ex rel. Striker v. Smith, 129 Ohio St.3d 168, 2011-Ohio-2878, 950 N.E.2d 952, ¶ 22. “A public office may establish by affidavit that all existing public records have been provided.” State ex rel. Frank v. Clermont Cty. Prosecutor, 164 Ohio St.3d 552, 2021-Ohio-623, 174 N.E.3d 718, ¶ 15.
a. The records-retention schedule and records created to meet the requirements of former R.C. 309.16(A)(2)
{¶ 29} Clausing‘s affidavit and the exhibit attached to it establish that after Mobley filed his mandamus action, she sent him the prosecutor‘s records-retention schedule and the records that the prosecutor‘s office created to meet the requirements of former
b. Records created to meet the requirements of former R.C. 309.16(A)(1)
{¶ 30} Again, Clausing attests that after receiving Mobley‘s request, she provided him with all the records he had requested. But given the records that Mobley submitted with his motion for leave to file rebuttal evidence, which we have admitted into evidence and which evince records that the prosecutor‘s office created to meet the requirements of former
{¶ 31} Based on Mobley‘s rebuttal evidence, we conclude that there is a genuine question of fact regarding whether the prosecutor provided Mobley with all the records that her office created to meet the requirements of former
State ex rel. Sultaana v. Mansfield Corr. Inst., ___ Ohio St.3d ___, 2023-Ohio-1177, ___ N.E.3d ___, ¶ 43 (granting a limited writ of mandamus ordering a records custodian “to produce [the requested] records or to certify that no such records exist” because there were factual questions regarding whether the records existed); State ex rel. Barr v. Wesson, ___ Ohio St.3d ___, 2023-Ohio-3028, ___ N.E.3d ___, ¶ 29 (same).
C. Statutory damages
{¶ 32} A requester who transmits by certified mail a fairly described public-records request to a public office is entitled to an award of statutory damages if a court
{¶ 33} Here, Clausing has acknowledged that Mobley sent his request by certified mail. And we have already determined that Mobley‘s request was sufficiently specific. Thus, the remaining question is whether, as Mobley argues, the prosecutor‘s office failed to meet its obligation to provide him with responsive records “within a reasonable period of time,”
{¶ 34} We do not answer that question now. Because we are granting a limited writ of mandamus, we defer our ruling on Mobley‘s request for statutory damages until the prosecutor has complied with the limited writ. See State ex rel. Barr v. Wesson, ___ Ohio St.3d ___, 2023-Ohio-3645, ___ N.E.3d ___, ¶ 18 (deferring determination of whether statutory damages were appropriate until records custodian complied with the limited writ).
D. Court costs
{¶ 35} Mobley requests an award of court costs. But “there are no court costs to award,” because he filed an affidavit of indigency, State ex rel. Straughter v. Dept. of Rehab. & Corr., 172 Ohio St.3d 335, 2023-Ohio-1543, 223 N.E.3d 475, ¶ 16.
III. CONCLUSION
{¶ 36} We deny the writ in part as moot. We grant a limited writ of mandamus ordering the prosecutor to, within 14 days, either provide Mobley with a copy of the records the prosecutor‘s office created to meet the requirements of former
Limited writ granted.
KENNEDY, C.J., and FISCHER, DEWINE, DONNELLY, STEWART, and BRUNNER, JJ., concur.
DETERS, J., not participating.
Alphonso Mobley Jr., pro se.
Melissa A. Powers, Hamilton County Prosecuting Attorney, and James S. Sayre, Assistant Prosecuting Attorney, for respondent.