THE STATE EX REL. WARE, APPELLANT, v. PARIKH, CLERK, APPELLEE.
No. 2022-0543
SUPREME COURT OF OHIO
Decided July 26, 2023
172 Ohio St.3d 49, 2023-Ohio-2536
Submitted January 10, 2023
APPEAL from the Court of Appeals for Hamilton County, No. C-190563.
Per Curiam.
{¶ 1} Appellant, Kimani Ware, appeals the judgment of the First District Court of Appeals denying his petition for a writ of mandamus against the Hamilton County clerk of courts to compel the production of public records and his request for statutory damages. At the time Ware filed his petition, Aftab Pureval was the Hamilton County clerk of courts. The current clerk of courts is Pavan Parikh, who is automatically substituted as the appellee in this action. See S.Ct.Prac.R. 4.06(B).
{¶ 2} Ware also appeals the court’s judgment denying his motions for default judgment against the clerk and for summary judgment. We affirm the court of appeals’ judgment and award Ware $700 in statutory damages.
I. Background
{¶ 3} Ware is an inmate at Richland Correctional Institution. On January 23, 2019, while incarcerated at Trumbull Correctional Institution, he sent public-records requests to the clerk by certified mail.
“Public Records Request # 1” asked for “a copy of the Hamilton County clerk of courts office: (1) Records retention schedule [and] (2) Public records policy.” - “Public Records Request # 2” asked for “a copy of the Hamilton County clerk of courts office: Table of organization of employees and/or roster listing of the Hamilton County clerk of courts office.”
- “Public Records Request # 3” asked for “a copy of the Hamilton County clerk of courts office: (1) Application of one-time disposal for obsolete records (RC-1), for year 2018.”
- “Public Records Request # 4” asked for “a copy of the Hamilton County clerk of courts office: (1) Employee’s manual and/or employee’s handbook [and] (2) Certificate of records disposal (RC-3) for employee time records, leave forms.”
- “Public Records Request # 5” asked for “a copy of the Hamilton County clerk of courts office: (1) Acknowledgement receipt, of the employee who has custody and/or control of the Hamilton County clerk of courts office records, and received and signed an acknowledgment receipt that received a copy of the Hamilton County clerk of courts public records policy.”
- “Public Records Request # 6” asked for a copy of the personnel files of Richard Hofmann (who Ware indicates is a deputy clerk) and Aftab Pureval.
- “Public Records Request # 7” asked for a copy of the oath of office of Richard Hofmann and Aftab Pureval.
- “Public Records Request # 8” asked for “a copy of the Hamilton County clerk of courts: (1) Certificate of election of Aftab Pureval [and] (2) A copy of all oath[s] of office of each deputy clerk of the Hamilton County clerk of courts office.”
“Public Records Request # 9” asked for a copy of all time-off requests by Richard Hofmann and Aftab Pureval from December 1, 2018, through January 23, 2019. - “Public Records Request # 10” asked for copies of the indictment, docket sheet, bill of particulars, and criminal complaint in case No. B-0107629.
All ten requests indicated that they were “Public Records Request[s] pursuant to
{¶ 4} The clerk responded separately to each request, but each response was a form letter denying the request, stating, “Your public records request is subject to approval from the Judge who sentenced you (or their successor) according to
II. Procedural history
{¶ 5} On October 1, 2019, Ware filed a petition for a writ of mandamus in the First District Court of Appeals. He filed an amended petition shortly thereafter but continued to assert the same claims. On October 10, the clerk sent documents in response to eight of Ware’s requests. The clerk indicated that with respect to the fifth request, there were no records that matched the description Ware had provided. And as to the tenth request, the clerk continued to assert that Ware was required to comply with
{¶ 6} The clerk filed a motion to dismiss, arguing that Ware had failed to attach an affidavit listing his prior civil actions, as required by
{¶ 8} On appeal, we found evidence that Ware may have submitted the required affidavit and that the affidavit had not been included in the court file due to a clerical error. State ex rel. Ware v. Pureval, 160 Ohio St.3d 387, 2020-Ohio-4024, 157 N.E.3d 714, ¶ 7. We reversed the First District’s judgment dismissing the case and remanded the matter for the court of appeals to determine whether a proper affidavit had in fact been presented for filing. Id. at ¶ 8.
{¶ 9} On remand, the First District determined that Ware had filed a complying affidavit and therefore permitted the case to proceed. Ware then filed a new motion for default judgment, again asserting that the clerk had failed to file an answer or responsive pleading within the time permitted by rule. Ware did not renew his summary-judgment motion.
{¶ 10} In March 2022, the First District denied Ware’s motion for default judgment and his petition for a writ of mandamus. Ware appealed.
III. Legal analysis
A. Denial of Ware’s motion for default judgment and petition for writ of mandamus
{¶ 11} In his first proposition of law, Ware contends that the First District should have granted his motion for default judgment against the clerk. Because Ware has not challenged the sufficiency of the clerk’s responses to eight of his public-records requests, his mandamus claims with respect to those eight requests are moot. See State ex rel. Striker v. Smith, 129 Ohio St.3d 168, 2011-Ohio-2878, 950 N.E.2d 952, ¶ 22 (generally, a public-records mandamus claim becomes moot when the records custodian provides the requested documents). Likewise, his motion for default judgment as to those eight requests is moot. The sole remaining issue with
{¶ 12} A court may, upon motion, enter a default judgment in a mandamus action against a respondent who has failed to timely plead in response to an affirmative pleading. Civ.R. 55(A); State ex rel. Davidson v. Beathard, 165 Ohio St.3d 558, 2021-Ohio-3125, 180 N.E.3d 1105, ¶ 15. However, Civ.R. 55(D) provides that “[n]o judgment by default shall be entered against the state, a political subdivision, or officer in his representative capacity or agency of either unless the claimant establishes his claim or right to relief by evidence satisfactory to the court.” The First District did not dispute Ware’s contention that the clerk had failed to timely answer or plead in the case. But citing Civ.R. 55(D), the court of appeals held: “Because [Ware] failed to establish that he had a clear legal right to compel [the clerk] to produce the requested documents, he is not entitled to a writ of mandamus or a default judgment.” 1st Dist. Hamilton No. C-190563 (Mar. 29, 2022). In other words, the question of Ware’s right to a default judgment is inextricably bound up with the merits of his mandamus claim.
{¶ 13} We review a decision denying a writ of mandamus as if the matter had originally been filed in this court. State ex rel. Matheis v. Russo, 50 Ohio St.3d 204, 205, 553 N.E.2d 653 (1990). To be entitled to a writ of mandamus, a relator generally must establish by clear and convincing evidence (1) a clear legal right to the requested relief, (2) a clear legal duty on the part of the respondent to provide it, and (3) the lack of an adequate remedy in the ordinary course of the law. State ex rel. Love v. O’Donnell, 150 Ohio St.3d 378, 2017-Ohio-5659, 81 N.E.3d 1250, ¶ 3. Mandamus is an appropriate remedy to compel compliance with the Public Records Act,
{¶ 14} As to Ware’s fifth public-records request, to be entitled to a writ of mandamus, Ware must show by clear and convincing evidence that he requested a record that exists and is maintained by the clerk. See State ex rel. Gooden v. Kagel, 138 Ohio St.3d 343, 2014-Ohio-869, 6 N.E.3d 1170, ¶ 8. The First District properly denied the mandamus claim as to Ware’s fifth request because Ware did not present evidence showing that the clerk has any records matching the description provided.
{¶ 15} Ware’s tenth public-records request sought the indictment, docket sheet, bill of particulars, and criminal complaint in case No. B-0107629, which is the Hamilton County Common Pleas Court case number for a criminal case against Dorie Terrell. The First District correctly held that this request was subject to
{¶ 16}
A public office or person responsible for public records is not required to permit a person who is incarcerated pursuant to a criminal conviction * * * to inspect or to obtain a copy of any public record concerning a criminal investigation or prosecution * * * unless the request to inspect or to obtain a copy of the record is for the purpose of acquiring information that is subject to release as a public record under this section and the judge who imposed the sentence or made the adjudication with respect to the person, or the judge’s successor in office, finds that the information sought in the public record is necessary to support what appears to be a justiciable claim of the person.
{¶ 17} In sum, the First District correctly denied the writ as to Ware’s fifth and tenth requests, and the other eight requests are moot. And because Ware was not entitled to a writ of mandamus, the First District did not err when it denied his new motion for default judgment.
B. Statutory damages
{¶ 18} A person requesting public records “shall” be entitled to an award of statutory damages “if a court determines that the public office or the person responsible for the public records failed to comply with an obligation in accordance with [
{¶ 19} Here, the clerk initially responded to all ten of Ware’s requests but erroneously denied eight of them. Because the clerk did not fail to comply with an obligation under
{¶ 20} Ware filed this mandamus action on October 1, 2019. The clerk met his obligations under the statute when he provided the records responsive to Ware’s requests on October 10, meaning the clerk complied with his obligation seven
1. Are the requests governed by the Public Records Act or the Rules of Superintendence?
{¶ 21} The clerk has consistently argued that Ware’s petition is subject to dismissal because Ware allegedly sought relief under the wrong authority. Ware expressly invoked
{¶ 22} In this case, all but one of Ware’s requests sought records pertaining to the administration of the clerk’s office: the records-retention schedule and public-records policy (Request # 1), the table of organization and/or roster of employees (Request # 2), documents relating to the disposal of records (Requests # 3 and # 4), the employee handbook (Request # 4), a clerk employee’s “acknowledgement receipt” (Request # 5), employee personnel files (Request # 6), the clerk’s and deputy clerks’ oaths of office (Requests # 7 and # 8), Pureval’s certificate of election (Request # 8), and employee time-off requests (Request # 9).
{¶ 23} This court has previously held that requests for records documenting the operations of the clerk of court’s office are governed by the Public Records Act.
2. Is Ware entitled to a single award of damages or multiple awards?
{¶ 24}
{¶ 25} The statutory text ties the award of damages to the public office’s violation of an obligation under
{¶ 26} In this case, the clerk failed to comply with his obligation to make available to Ware “all public records responsive to the request,”
{¶ 27} Ware’s claim for damages is premised on the idea that he is entitled to a $700 damages award for each category of records requested, simply because he divided his request into separate envelopes.
{¶ 28} In State ex rel. Ware v. Akron, 164 Ohio St.3d 557, 2021-Ohio-624, 174 N.E.3d 724, Ware sent two letters asking for nine categories of records. The letters were sent at the same time to the same office. We construed these two letters as a single records request and therefore ordered a single damages award. We explained, “
{¶ 29} Subsequently, in Myers, 169 Ohio St.3d 536, 2022-Ohio-1915, 207 N.E.3d 579, we ordered multiple awards for multiple requests. While we emphasized that some requests were transmitted through separate emails, we also focused on the fact that they were submitted on different days in concluding that separate requests had been made. Id. at ¶ 59.
{¶ 30} In State ex rel. Ware v. Wine, 169 Ohio St.3d 791, 2022-Ohio-4472, 207 N.E.3d 807, Ware requested four different records by way of six prison kites. Although there were six transmissions in total, we found that Ware had made only four requests: two of the kites were duplicative of others sent on the same day to the same prison representative. Ware did not establish entitlement to mandamus relief with respect to one of the four requests, so this court denied his request for damages related to that request. As to the remaining three requests, we concluded that he was entitled to a separate damages award for each. Id. at ¶ 10-15. Significantly, each of those requests were sent on different days, concerned different records, and were sent to different records custodians. Id. at ¶ 2, 3, 5.
{¶ 31} We have never held that a requester who transmits a public-records request via multiple communications is entitled to separate damages awards for each transmission. The communications requesting the eight records at issue were divided into eight separate envelopes. But the envelopes were sent on the same day, were submitted to the same office, and concerned the same general subject matter. As we have explained, the statutory-damages provision does not permit a “windfall,” Dehler, 127 Ohio St.3d 309, 2010-Ohio-5724, 939 N.E.2d 828, at ¶ 4. Instead, the statute makes clear that an “award of statutory damages shall not be
{¶ 32} We award statutory damages of $700.
C. Ware’s motion for summary judgment
{¶ 33} As previously noted, the First District denied Ware’s summary-judgment motion, along with all other pending motions, as moot when it dismissed the petition for failure to comply with
IV. Conclusion
{¶ 34} We affirm the judgment of the First District Court of Appeals and award Ware $700 in statutory damages.
Judgment affirmed.
FISCHER, DEWINE, DONNELLY, STEWART, and BRUNNER, JJ., concur.
KENNEDY, C.J., concurs in part and concurs in judgment only in part, with an opinion.
DETERS, J., not participating.
KENNEDY, C.J., concurring in part and concurring in judgment only in part.
{¶ 35} I join the majority opinion insofar as it affirms the First District Court of Appeals’ judgment denying a writ of mandamus to appellant, Kimani
{¶ 36} A public-records requester is entitled to statutory damages if a court determines that (1) the person or public office responsible for the public records failed to comply with
{¶ 37} The majority holds, and I agree, that the clerk of courts violated
{¶ 38} As the majority opinion finds, Ware made eight legitimate public-records requests. A review of the record reveals that those requests were transmitted together in one certified-mail envelope to the clerk of courts:
Each of the record requests contains a certificate of service indicating a certified-mail “receipt” number, but the receipt number on each of the certificates of service is the same. - Ware’s complaint includes an exhibit containing a copy of his single certified-mail receipt.
- In the “Article addressed to” area of the receipt, under the address for the clerk of courts, is written “Attn: Ten Public Records Requests.”
- In his complaint, Ware mentions only a single receipt when he states: “A true and accurate copy of the certified mail Return Receipt is attached to Exhibit A.”
{¶ 39} The requests were not duplicative—they did not ask for the same record. Despite the evidence that the eight requests were not duplicative, the majority points to their sameness in limiting Ware to “only a single damages award,” majority opinion at ¶ 31. In doing so, the majority concludes that the eight requests made by Ware “were sent on the same day, were submitted to the same office, and concerned the same general subject matter,” and it therefore “construe[s] Ware’s mailings as a single records request.” Id.
{¶ 40} When confronted with a case involving multiple public-records requests made by the same requester, this court has found the transmission of the requests controlling of our
{¶ 41} In State ex rel. Ware v. Akron, 164 Ohio St.3d 557, 2021-Ohio-624, 174 N.E.3d 724, Ware mailed two separate public-records requests to the Akron police department in the same certified-mail envelope. In one letter, Ware asked for copies of various police-department policies and a copy of the department’s employee roster. Id. at ¶ 2-3. In the second letter, he sought the personnel files of
{¶ 42} This court did not grant the writ of mandamus, because the city responded to Ware’s public-records requests after he filed his petition, informing him how much copies of the requested records would cost. Id. at ¶ 6-8, 15. But it took the city nearly nine months to respond to Ware, so this court awarded Ware statutory damages. Id. at ¶ 18, 21. Ware requested a total award of $2,000 in statutory damages—$1,000 each for what he considered to be two separate requests. Id. at ¶ 22. But this court awarded him $1,000 for a single request. Id. at ¶ 21. We looked at the number of transmissions to determine how many public-records requests were made for purposes of calculating statutory damages. Because both requests were transmitted in the same certified-mail envelope, we concluded that that transmission constituted one public-records request. Id. at ¶ 22.
{¶ 43} I agreed with that holding; Ware had transmitted one certified-mail envelope containing two requests.
{¶ 44} In State ex rel. Myers v. Meyers, 169 Ohio St.3d 536, 2022-Ohio-1915, 207 N.E.3d 579, ¶ 59, Myers, on eight different dates, sent emails to the city of Chillicothe requesting incident reports for separate incidents that had occurred over the span of a few months in that city. One email contained two requests. Id. Therefore, Myers submitted nine total requests that were transmitted by eight emails. Id.
{¶ 45} The city responded but held back certain reports on the ground they were confidential law-enforcement investigatory records. Id. at ¶ 67-70. This court granted a writ of mandamus to Myers and awarded him statutory damages for the public-records requests he made in each of the eight separate emails. Id. at ¶ 64-
{¶ 46} And in State ex rel. Ware v. Wine, 169 Ohio St.3d 791, 2022-Ohio-4472, 207 N.E.3d 807, ¶ 1-5, Ware made public-records requests by way of prison kites sent to three different prison officials on June 18, 21, and 22, 2021, requesting copies of various prison schedules. The officials did not produce the records Ware sought, telling him that they were posted and available to view in areas accessible by prison inmates. Id. at ¶ 10.
{¶ 47} This court granted Ware’s petition for a writ of mandamus, ordered the prison officials to produce the records, and awarded Ware $3,000 in statutory damages—$1,000 for each of the three kites he transmitted requesting the records. Id. at ¶ 13-15, 17. I agreed with the majority’s decision to grant the writ of mandamus in that case and to award Ware $3,000 in statutory damages, but I would have awarded additional statutory damages for a fourth kite that Ware had sent requesting public records. Id. at ¶ 28-55 (Kennedy, J., concurring in part and dissenting in part).
{¶ 48} What can be gleaned from this caselaw is that transmission controls the amount of statutory damages to be awarded in an action filed under the Public Records Act. Without a transmission by hand delivery, certified mail, or electronic means, statutory damages are not available.
{¶ 49} Now the majority is adding new elements to what constitutes a public-records request for purposes of awarding statutory damages under the Public Records Act. Here, the majority says that Ware’s eight public-records requests entitle him to an award of statutory damages for one public-records request because the envelopes containing the requests were sent on the same day, were submitted to the same office, and concerned the same general subject matter. But these qualifiers do not exist in
{¶ 50} When calculating statutory damages, the general content of the public-records request does not matter. In Akron, the requester sought police-department policies and an employee roster. Id. at ¶ 2. In Myers, the requester sought incident reports. Id. at ¶ 1. In Wine, Ware sought a variety of different prison records. 169 Ohio St.3d 791, 2022-Ohio-4472, 207 N.E.3d 807, at ¶ 2-5. The plain, unambiguous language of the statute does not require an assessment of whether multiple requests “concerned the same general subject matter,” majority opinion at ¶ 31, when calculating statutory damages. This court also has never before considered it and it should not do so now. Similarly, the timing of the transmissions does not matter.
{¶ 51} When calculating statutory damages, what matters—and what is tied to the statutory language—is whether the public-records requests were made in the same transmission, i.e., in the same envelope or email. Here, Ware transmitted his
{¶ 52} Today, without enunciating guideposts or rules, the majority has consigned this court to the job of determining in every case in which multiple public-records requests have been made whether those requests are related to the same general topic. Just how alike is alike enough for a public-records request to not constitute a separate request? How many elements will the weighing test require?
{¶ 53} Here, why aren’t Ware’s Request #1 (requesting a copy of the Hamilton County clerk of courts office’s records-retention schedule and public-records policy) and Request #9 (requesting a copy of all time-off requests made by Richard Hoffmann and Aftab Pureval from December 1, 2018, through January 23, 2019) dissimilar enough to be considered separate requests? How alike are the oaths of office of Hoffman and Pureval in Request #6 and the clerk of courts’ employees’ handbook in Request #4? It will be fascinating to see how the majority fine-tunes a standardless standard.
{¶ 54} The majority bases its decision in part on this court’s language in State ex rel. Dehler v. Kelly, 127 Ohio St.3d 309, 2010-Ohio-5724, 939 N.E.2d 828, ¶ 4, stating that the statutory-damages provision “does not permit stacking of statutory damages based on what is essentially the same records request.” In Dehler, the relator had sent the requests for the same records to two different offices. That is not the situation in this case.
{¶ 55} I acknowledge that this court has held that a reiterated request for the same records does not require an additional response by the public office. See State ex rel. Laborers Internatl. Union of N. Am., Local Union No. 500 v. Summerville, 122 Ohio St.3d 1234, 2009-Ohio-4090, 913 N.E.2d 452, ¶ 6. But that also is not the situation in this case. The majority is correct that a requester is not entitled to multiple damages awards if the requester sought the same public record by
{¶ 56} An award of statutory damages is guaranteed and fixed under
{¶ 57} In
{¶ 58} Therefore, I concur in the majority’s judgment awarding $700 but not in its reasoning for awarding that amount.
Kimani Ware, pro se.
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Philip R. Cummings, Assistant Prosecuting Attorney, for appellee.