State ex rel. Ware v. Rhodes

Ohio Court of Appeals, 10th District

Jul 13, 2023

22AP-59

Versions:

D E C I S I O N

Rendered on July 13, 2023

On brief: Kimani E. Ware, pro se.

On briеf: Dave Yost, Attorney General, Marcy Vonderwell, and Salvatore Messina, for respondents.

IN MANDAMUS ON OBJECTIONS TO THE MAGISTRATE‘S DECISION

EDELSTEIN, J.

{¶ 1} Relator, Kimani E. Ware, an inmate currently incarcerated at an institution operated by the Ohio Department of Rehabilitation and Correction (“ODRC“), filed a complaint for a writ of mandamus requesting this court order respondents, the Bureau of Sentence Computation (“bureau“) and Leanne Rhodes, an employee of the bureau, to process his public records request. Without action from this court, however, respondents produced the requestеd records. Because those records were produced 256 days after they were requested, Mr. Ware seeks statutory damages for the delay, pursuant to R.C. 149.43(C)(2). Respondents argue he is procedurally barred from obtaining statutory damages under this provision.

{¶ 2} Having found that Mr. Ware‘s May 30, 2021 public records request did not fairly describe the record he was seeking, the magistrate has recommended that we: (1) grant Mr. Ware‘s motion for leave to file a late reply to respondents’ motion for summary judgment (filed December 27, 2022); (2) deny Mr. Ware‘s motion for summary judgment on his statutory damаges claim (filed March 15, 2022); and (3) grant respondents’ motion for summary judgment (filed November 8, 2022). Mr. Ware objects to the magistrate‘s determination that his public records request failed to fairly describe the record sought. For the following reasons, we sustain Mr. Ware‘s objections and remand this case to the magistrate with instructions to determine whether Mr. Ware satisfied the filing requirements set forth in R.C. 2969.26.

I. BACKGROUND

{¶ 3} On May 30, 2021, Mr. Ware, an inmate of an ODRC institution, submitted a public records request described as “Sentence Calculation” via the prison‘s electronic kite system,¹ asking for “a copy of journal entry from court of common pleas case no. 2003-11-3491.” (Jan. 25, 2022 Mandamus Compl., Ex. A.) On June 9, 2021, a bureau employee responded to Mr. Ware‘s request, stating that “[e]ntries have to be requested from the courts.” (Mandamus Compl., Ex. A.) According to Mr. Ware, his request was denied.

{¶ 4} Mr. Ware commenced this action on January 25, 2022, seeking a writ of mandamus compelling the bureau to provide him “with a copy of the requested public record that is maintained in it[]s possession and under its control.” (Mandamus Compl. at ¶ 13.) He also requested that, pursuant to R.C. 149.43(C)(1) and (C)(2), we award him statutory damages “beginning on the date of the filing of this action,” court costs, filing fees, and any other relief to which he is entitled. (Mandamus Compl. at ¶ 14-16.)

{¶ 5} On February 9, 2022, respondents provided Mr. Ware with a copy of the requested records.² (Mar. 15, 2022 Relator‘s Mot. for Summ. Jgmt., Ex. B.)

{¶ 6} Mr. Ware concedes his mandamus complaint is now moot because the bureau has fulfilled his public records request. (Mar. 15, 2022 Relator‘s Mot. for Summ. Jgmt. at 5.) Indeed, the Supreme Court of Ohio has recognized that “[a] public-records mandamus claim generally becomes moot when the public office provides the requested documents.” State ex rel. Frank v. Clermont Cty. Prosecutor, 164 Ohio St.3d 552, 2021-Ohio-623, ¶ 15.

{¶ 7} Nonetheless, on March 15, 2022, Mr. Ware filed a motion for summary judgment arguing that “[t]his court can come but to one conclusion, and that is the respondents violated their duties pursuant to [R.C.] 149.43(B)(1).” (Relator‘s Mot. for Summ. Jgmt. at 1.) He also contends he is entitled to statutory damages under R.C. 149.43(C)(2) and court costs “for respondents acting in bad faith.” (Id. at 4-7.)

{¶ 8} Having failed to timely respond to that motion, respondents moved for leave to respond to Mr. Ware‘s summary judgment motion on June 23, 2022. Counsel for respondents, the Office of the Ohio Attorney General (“OAG“), explained unprecedented staff turnover resulted in its failure to timely respond. Although Mr. Ware opposed the OAG‘s motion for leave to rеspond, the magistrate recommended it be granted and ordered respondents to file their response within ten days of his October 31, 2022 order.

{¶ 9} On November 8, 2022, respondents filed their memorandum in opposition to Mr. Ware‘s summary judgment motion and moved for summary judgment in their favor. Respondents argued they were entitled to summary judgment because Mr. Ware failed to satisfy the mandatory filing requirements of R.C. 2969.26. Specifically, they asserted Mr. Ware did not include with his mandamus complaint an affidavit indicating he filed a grievance with the institution or copies of the grievance and resulting deсision. They opposed his summary judgment motion by arguing Mr. Ware is not entitled to statutory damages under R.C. 149.43(C)(2)

{¶ 10} On January 9, 2023, the assigned magistrate issued a decision with findings of fact and conclusions of law, which is appended hereto. In that decision, the magistrate found that Mr. Ware‘s request for a “copy of [the] journal entry from the court of common pleas case no. 2003-11-3491” “failed to fairly describe the public record or class of public

records to be disclosed.” (Jan. 9, 2023 Mag.‘s Decision at 5.) The decision did not address respondents’ claims regarding the mandatory filing requirements under R.C. 2969.26.

II. ANALYSIS

{¶ 11} Mr. Ware‘s objections to the magistrate‘s decision were timely filed under Civ.R. 53(D)(3)(d). We are therefore required to independently review the objected to matters and evaluate whether “the magistrate has properly determined the factual issues and appropriately applied the law.” Civ.R. 53(D)(4)(d).

{¶ 12} Mr. Ware objects to the magistrate‘s determination that his May 30, 2021 public records request did not fairly describe the record he was seeking. He also argues the magistrate erred in applying the holding of State ex rel. Griffin v. Sehlmeyer, 167 Ohio St.3d 566, 2022-Ohio-2189 to this case. These objections pertain to the magistrаte‘s recommendation that summary judgment be granted in respondents’ favor and that we deny Mr. Ware‘s summary judgment motion seeking statutory damages under R.C. 149.43(C)(2).

A. Summary Judgment Standard

{¶ 13} Under Civ.R. 56(C), summary judgment is appropriate if the trial court finds that the moving party demonstrated: ” ‘(1) there is no genuine issue of material fact, (2) the moving party is entitled to judgment as a matter of law, and (3) reasonable minds can come to but one conclusion and that conclusion is a[d]verse to the party against whom the motion for summary judgment is made.’ ” Drummond v. Ohio Dept. of Rehab. & Corr., 10th Dist. No. 21AP-327, 2022-Ohio-1096, ¶ 10, quoting Capella III, LLC v. Wilcox, 190 Ohio App.3d 133, 2010-Ohio-4746, ¶ 16 (10th Dist.).

{¶ 14} The party moving for summary judgment bears the initial burden of informing the trial court of the basis of the motion and identifying the portions of the record that demonstrate the absence of a genuine issue of fact on a material element of the nonmoving party‘s claim. Dresher v. Burt, 75 Ohio St.3d 280, 292 (1996).

{¶ 15} If the moving party has satisfied its initial burden under Civ.R. 56(C), then the nonmoving party ” ‘has ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍a reciprocal burden outlined in Civ.R. 56(E) to set forth specific facts showing that there is a genuine issue for trial and, if the nonmovant does not so respond, summary judgment, if appropriate, shall be entered against the nonmoving party.’ ” Heimberger v. Zeal Hotel Group Ltd., 10th Dist. No. 15AP-99, 2015-Ohio-3845,

¶ 14, quoting Dresher at 293. The nonmoving party may not rest on the mere allegations and denials in the pleadings but instead must рoint to or submit some evidentiary material that shows the existence of a genuine dispute over the material facts. A.M. v. Miami Univ., 10th Dist. No. 17AP-156, 2017-Ohio-8586, ¶ 30, citing Henkle v. Henkle, 75 Ohio App.3d 732, 735 (12th Dist.1991). In the summary judgment context, a “material” fact is one that might affect the outcome of the case under the applicable substantive law. Turner v. Turner, 67 Ohio St.3d 337, 340 (1993). A genuine dispute exists if the evidence presents a sufficient disagreement between the parties’ positions. Id.

B. Independent Evaluation of Magistrate‘s Decision

{¶ 16} R.C. 149.43(B)(1), provides, in relevant part: “Upon request by any person and subject to division (B)(8) of this section, all public records responsive to the request shall be promptly prepared and made available for inspection to the requester at all reasonable times during regular business hours.” When a public records request is denied, in whole or in part, R.C. 149.43(B)(3) requires “the public office or the person responsible for the requested public record” to “provide the requester with an explanation, including legal authority, setting forth why the request was denied.”

{¶ 17} R.C. 149.43(C)(2) provides that a requester who has transmitted “a written request by hand delivery, electronic submission, or certified mail to inspect or receive copies of any public record in a mannеr that fairly describes the public record or class of public records to the public office or person responsible for the requested public records” may be entitled to receive statutory damages if “a court determines that the public office or the person responsible for public records failed to comply with an obligation in accordance with division (B) of this section.” R.C. 149.43(C)(2).

{¶ 18} The Supreme Court instructs that “[w]e construe R.C. 149.43 liberally in favor of broad access and resolve any doubt in favor of disclosure.” State ex rel. Mobley v. Ohio Dept. of Rehab. & Corr., 169 Ohio St.3d 39, 2022-Ohio-1765, ¶ 7, citing State ex rel. Toledo Blade Co. v. Seneca Cty. Bd. of Commrs., 120 Ohio St.3d 372, 2008-Ohio-6253, ¶ 17. “Exceрtions to disclosure under the Public Records Act are strictly construed against the public-records custodian, and the custodian has the burden to establish the applicability of an exception.” State ex rel. Miller v. Ohio State Hwy. Patrol, 136 Ohio St.3d 350, 2013-Ohio-3720, ¶ 23. To meet this burden, the records custodian must prove that the requested

records “fall squarely within the exception.” State ex rel. Cincinnati Enquirer v. Jones-Kelley, 118 Ohio St.3d 81, 2008-Ohio-1770, ¶ 10.

{¶ 19} Here, respondents provided Mr. Ware with the requested public records 256 days (8 months, 11 days) after he requested them. And, these records were provided only after he initiated this mandamus action. Mr. Ware contends that respondents had an obligation under R.C. 149.43(B) to promptly provide the requested rеcords to him. He argues that because respondents failed to comply with their statutory obligation, he is entitled to statutory damages³ under R.C. 149.43(C)(2). Mr. Ware‘s summary judgment motion sought judgment, as a matter of law, on these matters. In opposing that motion, respondents contended Mr. Ware‘s request was vague and incomplete, meaning he is not entitled to statutory damages under R.C. 149.43(C).

{¶ 20} The magistrate recommends we grant respondents’ summary judgment motion and deny Mr. Ware‘s summary judgment motion because Mr. Ware‘s May 30, 2021 public records request did not “fairly describe” or identify the records he requested. (Mag.‘s Decision at 5-6.) Thus, the magistrate concludes respondents “did not fail to comply with R.C. 149.43(B), in that they did not need to provide access to records [Mr. Ware] failed to sufficiently identify.” (Id. at 6, citing Griffin, 2022-Ohio-2189 at ¶ 13; State ex rel. Summers v. Fox, 164 Ohio St.3d 583, 2021-Ohio-2061, ¶ 24).

{¶ 21} Mr. Ware has objected to the magistrate‘s determination that his request—“I request a copy of journal entry from court of common pleas case no. 2003-11-3491“—did not fairly describe or identify the record being requested. (Mag.‘s Decision at 2.) He also objects to the magistrate‘s determination that, because of this failure, respondents were not obligated to provide the requested records to him. For the following reasons, we find Mr. Ware‘s objections to the magistrate‘s decision to be well-taken.

{¶ 22} We first reject the magistrate‘s finding that respondents denied Mr. Ware‘s public records request on June 9, 2021 on the basis that his overly vague request prevented them from ” ‘reasonably’ identifying” the records he sought. (Mag.‘s Decision at 5-6.) As the magistrate acknowledged in his decision, Ms. Rhodes (a bureau employee) stated in her June 9 written response to Mr. Ware‘s public records request that court “[e]ntries must be

request[ed] from the court.” (Id. at 5; Mandamus Compl., Ex. A.) And, evidence in the record shows that Ms. Rhodes marked Mr. Ware‘s “case” associated with his public records request as “closed” a minute after she sent this response. (See Mandamus Compl., Ex. A.) Respondents only produced the requested record for Mr. Ware after he filed his mandamus complaint.

{¶ 23} Nonetheless, the magistrate found respondents denied Mr. Ware‘s public records request for an alternative reason: because it was ambiguous. (Mag.‘s Decision at 5-6.) To reach this determination, the magistrate referenced respondents’ February 25, 2023 answer and November 8, 2022 summary judgment motion, wherein, the magistrate found, respondents asserted that the ambiguity of Mr. Ware‘s request was the basis for the June 9, 2021 denial. (Id.)

{¶ 24} We find this determination is not supported by the record. To the contrary, it is belied by respondents’ February 9, 2022 production of the precise record requested by Mr. Ware on May 30, 2021. From this production, we can conclude that respondents were able to reasonably identify the record sought in Mr. Ware‘s original request. It is thus disingenuous to claim—after the records have been produced—that respondents denied Mr. Ware‘s request because it was too ambiguous for them to reasonably identify the records sought.

{¶ 25} For this same reason, and those described below, we reject the magistrate‘s finding that Mr. Ware‘s request “was inadequate and did not fairly describe the public record he sought.” (Mag.‘s Decision at 5-6.)

{¶ 26} The magistrate is correct in finding that Mr. Ware‘s public records request “did not specify the date of the journal entry, * * * the common pleas court in which the entry was filed, or the parties to the case.” (Mag.‘s Decision at 6.) But Mr. Ware‘s failure to include such information in his request does not, under the facts and circumstances of this case, mean Mr. Ware failed to sufficiently identify the record he sought.

{¶ 27} A search of Mr. Ware‘s name on ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍ODRC‘s “Offender Search” website⁴ shows he is currently incarcerated for one case: Summit County Court of Common Pleas case No. CR03113491. This series of numbers is identical to the series of numbers included in

Mr. Ware‘s public records request. (See Mandamus Compl., Ex. A.) The fact that Mr. Ware failed to include “CR” before this series of numbers does not render his public records request so vague that respondents could not reasonably identify the case number from which the record was sought. (Compare with Mag.‘s Decision at 6.) And, sinсe Mr. Ware is incarcerated on just one case, we believe respondents could have easily ascertained his request pertained to a case out of the Summit County Court of Common Pleas.

{¶ 28} We also reject the magistrate‘s finding that Mr. Ware‘s request did not specify “the subject-matter of the journal entry” or adequately identify which journal entry he sought. (Compare with Mag.‘s Decision at 5-6.) Mr. Ware‘s public records request was directed to the Bureau of Sentence Computation. (Mandamus Compl., Ex. A.) The stated description of his request was “Sentence Cаlculation.” (Id.) With this context in mind, it is clear the sentence imposed in the only criminal case for which he is presently incarcerated was the subject-matter of Mr. Ware‘s request.

{¶ 29} This begets the conclusion that Mr. Ware had requested on May 30, 2021 a copy of the journal entry of sentence in Summit County Court of Common Pleas Case No. CR03113491. A search of the Summit County Clerk of Courts’ criminal records website⁵ shows there is only one criminal case associated with his name, and only one journal entry related to his sentence on the docket for that case. That entry is dated July 1, 2004. And, ODRC‘s offender website shows an admission date of July 8, 2004.

{¶ 30} Based on the foregoing, we find Mr. Ware‘s public records request adequately identified the record sought: the July 1, 2004 sentencing entry. ”R.C. 149.43(B)(2) authorizes the rejection of a public-records request as ambiguous only when the office cannot ‘reasonably’ identify the records sought.” State ex rel. McDougald v. Greene, 163 Ohio St.3d 471, 2020-Ohio-5100, ¶ 15. While it is true that his public records request could have been more detailed, we disagree with the magistrate‘s determination that respondents were prevented from reasonably identifying the record Mr. Ware sought. Thus, the magistrate‘s reliance on Griffin is misguided in that

respondents did fail to comply with R.C. 149.43(B) because they hаd an obligation to provide access to record Mr. Ware sufficiently identified.

{¶ 31} Accordingly, we sustain Mr. Ware‘s objection to the magistrate‘s decision.

{¶ 32} That does not, however, end this court‘s analysis of Mr. Ware‘s request for statutory damages. In addition to asserting Mr. Ware‘s public records request was ambiguous, respondents also argued summary judgment should be granted in their favor because Mr. Ware failed to comply with the mandatory filing requirements in R.C. 2969.26(A)(1) and (2). Specifically, respondents alleged Mr. Ware failed to include with his complaint for a writ of mandamus an affidavit indicating he filed a grievance with ODRC and copies of the grievance and resulting decision. The magistrate‘s decision contains no analysis of this argument—including whether the affidavit requirements of R.C. 2969.26(A) apply to the facts and circumstances of this case. See, e.g., State ex rel. Ware v. Bratton, 10th Dist. No. 20AP-347, 2021-Ohio-3157.

{¶ 33} Accordingly, we remand this case to the magistrate with instructions to evaluate respondents’ alternative basis for seeking summary judgment in a manner consistent with the process set forth in Ware, 2021-Ohio-3157. Upon making these determinations, the magistrate may reconsider the parties’ summary judgment motions or otherwise determine the appropriate manner to proceed at that time.

III. CONCLUSION

{¶ 34} Having conducted an examination of the magistrate‘s decision and an independent review of the record, pursuant to Civ.R. 53(D)(4)(d), we find the magistrate improperly applied the relevant law to the salient facts when it reached the conclusion that Mr. Ware‘s summary judgment motion should be denied and respondents’ summary judgment motion should be granted on the basis that Mr. Ware‘s public records request was ambiguous and therefore did not trigger a duty under R.C. 149.43. We therefore sustain Mr. Ware‘s objections and remand this case for further proceedings consistent with this decision.

Objections sustained;

magistrate‘s decision vacated;

case remanded to magistrate.

JAMISON and LELAND, JJ., concur.

M A G I S T R A T E ‘ S D E C I S I O N

Rendered on January 9, 2023

Kimani E. Ware, pro se.

Dave Yost, Attorney General, Marcy Vonderwell, and Salvatore Messina, for respondents.

IN MANDAMUS ON MOTIONS FOR SUMMARY JUDGMENT

{¶ 35} Relator, Kimani E. Ware, has filed this original action requesting that this court issue a writ of mandamus ordering respondents, Leanne Rhodes (“Rhodes“) and the Bureau of Sentence Computation (“bureau“), to respond to and process his public records request. Relator has filed a March 15, 2022, motion for summary judgment on his claim for statutory damages pursuant to R.C. 149.43(C)(2). Respondents have also filed a November 8, 2022 motion for summаry judgment.

Findings of Fact:

{¶ 36} 1. Relator is an inmate incarcerated at Trumbull ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍Correctional Institution, in Leavittsburg, Ohio.

{¶ 37} 2. The bureau is a governmental agency responsible for computing release dates for Ohio inmates.

{¶ 38} 3. Rhodes is an employee of the bureau.

{¶ 39} 4. On January 25, 2022, relator filed the instant mandamus action asking this court to respond to and process his public-records request. In his complaint, relator alleged the following: (1) on May 30, 2021, relator made the following public-records request to the bureau via electronic submission (using the prison‘s internal “kite” communication system): “I request a copy of journal entry from court of common pleas case no. 2003-11-3491“; and (2) on June 9, 2021, the bureau, through Rhodes, responded to the public-records request by indicating: “Entries have to be requested from the courts.”

{¶ 40} 5. On February 9, 2022, respondents provided relator with a copy of the requested records.

{¶ 41} 6. On February 25, 2022, respondents filed an answer, generally denying the substantive allegations raised in relator‘s complaint.

{¶ 42} 7. On March 11, 2022, relator filed a motion for default judgment pursuant to Civ.R. 55, arguing he was entitled to default judgment based upon relator‘s failure to file an answer to the complaint.

{¶ 43} 8. On March 15, 2022, relatоr filed a motion for summary judgment, acknowledging that his claim is now moot with regard to the production of the requested records but that he is entitled to statutory damages pursuant to R.C. 149.43(C)(2) because respondents only provided the requested records after he was forced to file his mandamus action, and respondents failed to make the public records available to him within a reasonable time.

{¶ 44} 9. On June 23, 2022, respondents filed a memorandum in opposition to relator‘s motion for default judgment and motion for leave to file a response to relator‘s mоtion for summary judgment out of time.

{¶ 45} 10. On July 7, 2022, relator filed a reply to respondents’ motion for leave to file a response to relator‘s motion for summary judgment, requesting that the motion be denied.

{¶ 46} 11. On October 31, 2022, the magistrate issued an order denying relator‘s March 11, 2022, motion for default judgment; granting respondents’ June 23, 2022, motion for leave to file a response to relator‘s motion for summary judgment out of time; and deferring ruling on relator‘s March 15, 2022, motion for summary judgment on his claim for statutory damages until respondents’ response in opposition to relator‘s motion for summary judgment is submitted and relator has filed a reply in further support of his motion for summary judgment.

{¶ 47} 12. On November 8, 2022, respondents filed a motion for summary judgment.

{¶ 48} 13. On December 27, 2022, relator filed a reply to respondents’ motion for summary judgment and motion for leave to file a late reply.

Conclusions of Law:

{¶ 49} The magistrate recommends that this court grant relator‘s December 27, 2022, motion for leave to file a late reply to respondents’ motion for summary judgment, deny relator‘s March 15, 2022, motion for summary judgment on his claim for statutory damages, and grant respondents’ November 8, 2022, motion for summary judgment.

{¶ 50} In order for this court to issue а writ of mandamus, a relator must ordinarily show a clear legal right to the relief sought, a clear legal duty on the part of the respondent to provide such relief, and the lack of an adequate remedy in the ordinary course of the law. State ex rel. Pressley v. Indus. Comm., 11 Ohio St.2d 141 (1967).

{¶ 51} Summary judgment is appropriate only when the moving party demonstrates: (1) no genuine issue of material fact exists, (2) the moving party is entitled to judgment as a matter of law, and (3) reasonable minds could come to but one conclusion and that conclusion is adverse to the party against whom the motion for summary judgment is madе, that party being entitled to have the evidence most strongly construed in its favor. Civ.R. 56(C).

{¶ 52} Under R.C. 149.43(B)(1), a public office is required to make copies of public records available to any person on request and within a reasonable period of time. A “public record” is a record “kept by any public office.” R.C. 149.43(A)(1). A party who believes that his request for a public record has been improperly denied may file a mandamus action in order to compel production of the record. R.C. 149.43(C)(1)(b). See State ex rel. Physicians Commt. for Responsible Medicine v. Ohio State Univ. Bd. оf Trustees, 108 Ohio St.3d 288, 2006-Ohio-903, ¶ 6. The requester must establish by clear and convincing evidence a clear legal right to the records and a corresponding clear legal duty on the part of the respondent to provide them. See State ex rel. Cincinnati Enquirer v. Sage, 142 Ohio St.3d 392, 2015-Ohio-974, ¶ 10. When a public office withholds responsive records, it has the burden of showing that the records are statutorily exempted from disclosure. State ex rel. Cincinnati Enquirer v. Jones-Kelley, 118 Ohio St.3d 81, 2008-Ohio-1770, paragraph two of the syllabus. Exceptions to disclosure are strictly construed against the public office withholding the records. Id.

{¶ 53} R.C. 149.43(B)(1) provides that the public office must “promptly prepare” all records responsive ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍to a public-records request within a “reasonable period of time.” R.C. 149.43(C)(1) permits a party aggrieved by the failure of the public office to promptly prepare a public record to receive statutory damages under R.C. 149.43(C)(2) in the amount of one hundred dollars for each business day during which the public office failed to comply with the obligation under R.C. 149.43(B)(1), beginning with the day on which the requester files a mandamus action to recover statutory damages, up to a maximum of one thousand dollars. The phrase “reasonаble period of time” is not defined in the statute, but the ” ’ “determination of what is ‘reasonable’ depends upon all the pertinent facts and circumstances.” ’ ” State ex rel. Stuart v. Greene, 161 Ohio St.3d 11, 2020-Ohio-3685, ¶ 7, quoting State ex rel. Kesterson v. Kent State Univ., 156 Ohio St.3d 13, 2018-Ohio-5108, ¶ 16, quoting State ex rel. Cincinnati Enquirer v. Deters, 148 Ohio St.3d 595, 2016-Ohio-8195, ¶ 23.

{¶ 54} In the present case, relator has admitted that the bureau has fulfilled his public-records request, and, therefore, that issue is moot. Notwithstanding, relator contends that he is still entitled to summary judgment on statutory damages, pursuant to

R.C. 149.43(C)(2), because the bureau failed to make the public records available to relator within a reasonable time.

{¶ 55} Respondents have also filed a November 8, 2022, motion for summаry judgment, in which they argue: (1) relator has failed to satisfy the mandatory filing requirements under R.C. 2969.26 by failing to file an affidavit stating that a grievance and decision was filed, as well as a copy of the written decision; and (2) relator is not entitled to statutory damages because the request was vague and incomplete, contrary to the requirements in R.C. 149.43(C).

{¶ 56} ” ‘Under R.C. 149.43(C)(2), the “requester shall be entitled to recover” statutory damages if (1) he submits a written request “by hand delivery, electronic submission, or certified mail,” (2) the request “fairly describes the public record or class of public records,” and (3) “a court determines that the public office or the person responsible for public records failed to comply with an obligation” imposed by R.C. 149.43(B).’ ” State ex rel. Griffin v. Sehlmeyer, 167 Ohio St.3d 566, 2022-Ohio-2189, ¶ 13, quoting State ex rel. Armatas v. Plain Twp. Bd. of Trustees, 163 Ohio St.3d 304, 2021-Ohio-1176, ¶ 25, quoting R.C. 149.43(C)(2). Thus, a person requesting public records must identify the records sought with reasonable clarity. State ex rel. Glasgow v. Jones, 119 Ohio St.3d 391, 2008-Ohio-4788, ¶ 17. However, a request is not presumptively ambiguous merely because the public officer says that it is. State ex rel. McDougald v. Greene, 163 Ohio St.3d 471, 2020-Ohio-5100, ¶ 13, citing State ex rel. Carr v. London Corr. Inst., 144 Ohio St.3d 211, 2015-Ohio-2363, ¶ 23 (rejecting argument that a request was ambiguous because it did not identify the precise date on which the requested memo was sent). R.C. 149.43(B)(2) authorizes the rejection of a public-records request as ambiguous only when the office cannot “reasonably” identify the records sought, and the public office must provide the requester with an opportunity to revise the request. Under R.C. 149.43(B)(3), the public office must also provide the requester with an explanation, including legal authority, setting forth why the request was denied. If the requester subsequently files a petition for a writ of mandamus, the public office may “rely[] upon additional reasons or legal authority in defending” the mandamus action. R.C. 149.43(B)(3).

{¶ 57} In the present case, after a review of relator‘s and respondents’ respective motions for summary judgment, thе magistrate finds that respondents are entitled to summary judgment. Relator‘s request failed to fairly describe the public record or class of public records to be disclosed. Relator requested “a copy of journal entry from court of common pleas case no. 2003-11-3491.” Although respondents initially denied the request on the basis that court entries must be requested from the court, in answering relator‘s petition for a writ of mandamus, respondents asserted that the request was ambiguous and further clarified the basis for denial in their motion for summary judgment. The magistrate agrees with respondents that relator‘s request was inadequate and did not fairly describe the public record he sought, preventing respondents from “reasonably” identifying the records. Relator‘s request did not specify the date of the journal entry, the subject-matter of the journal entry, the common pleas court in which the entry was filed, or the parties to the case. The magistrate also notes that the case citation included in relator‘s public-records request─“2003-11-3491“─does not contain the correct case citation─“CR 03 11 3491“─which would have further identified the record as one filed in a criminal case. Therefore, respondents did not fail to comply with R.C. 149.43(B), in that they did not need to provide access to records that relator failed to sufficiently identify. See, e.g., Griffin at ¶ 13 (because relator‘s request sought information, it did not fairly describe the public record or the class of public records to be disclosed, and relator is not entitled to statutory damages); State ex rel. Summers v. Fox, 164 Ohio St.3d 583, 2021-Ohio-2061, ¶ 24 (relator‘s request for “certain records” did not identify with any specificity the records sought and, thus, is not a qualifying communication under R.C. 149.43(C)(2), and relator is not entitled tо an award of statutory damages). It follows that respondents are entitled to judgment as a matter of law, and no reasonable mind could conclude that relator is entitled to an award of statutory damages, even construing the evidence most strongly in his favor.

{¶ 58} Accordingly, it is the magistrate‘s recommendation that the court grant relator‘s December 27, 2022, motion for leave to file a late reply to respondents’ motion for summary judgment, deny relator‘s March 15, 2022, motion for summary judgment on his claim for statutory damages, and grant respondents’ November 8, 2022, motion for summary judgment.

/S/ MAGISTRATE

THOMAS W. SCHOLL III

NOTICE TO THE PARTIES

Civ.R. 53(D)(3)(a)(iii) provides that a party shall not assign as error on appeal the court‘s adoption of any factual finding or legal conclusion, whether or not specifically designated as a finding of fact or conclusion of law under Civ.R. 53(D)(3)(a)(ii), unless the party timely and specifically objects to that factual finding or legal conclusion as required by Civ.R. 53(D)(3)(b).

Notes

A “kite” is a communication “written by an inmate to a member of the prison staff and is ‘a means for inmates to contact staff members inside [an] institution.’ ” , quoting .

Although respondents filed an answer to Mr. Ware‘s mandamus complaint on Fеbruary 25, 2022, Mr. Ware moved for default judgment on March 11, 2022 (likely because he had not yet received respondents’ answer in the mail). The magistrate recommended dismissal of that motion. (Oct. 31, 2022 Mag.‘s Order.) Accordingly, based on our independent review of the record and the procedural posture of this case, we deny Mr. Ware‘s March 11, 2022 motion for default judgment.

Mr. Ware also argued in his mandamus complaint and summary ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍judgment motion that he was entitled to court costs under R.C. 149.43(C)(1)(b) and (C)(2).

“Kimani E. Ware,” Offender Details, OHIO DEPT. OF REHAB. & CORR., https://appgateway.drc.ohio.gov/OffenderSearch/Search/Details/A470743 (accessed June 23, 2023).

Records Search, SUMMIT COUNTY CLERK OF COURTS, https://clerkweb.summitoh.net/RecordsSearch/Disclaimer.asp?toPage=SelectDivision.asp (accessed June 23, 2023).