THE STATE EX REL. WARE v. GIAVASIS ET AL.
No. 2020-0043
Supreme Court of Ohio
Decided December 1, 2020
2020-Ohio-5453
[Until this оpinion appears in the Ohio Official Reports advance sheets, it may be cited as State ex rel. Ware v. Giavasis, Slip Opinion No. 2020-Ohio-5453.]
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. 2020-OHIO-5453
THE STATE EX REL. WARE v. GIAVASIS ET AL.
[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State ex rel. Ware v. Giavasis, Slip Opinion No. 2020-Ohio-5453.]
Mandamus—Public Records Act—Relator must establish by clear and convincing evidence entitlement to a writ of mandamus—There is no duty to provide to an inmate any public record concerning a criminal investigation or prosecution unless the judge who imposed the sentence finds that the information sought in the public record is necessary to support what appears to be a justiciable claim of the person—Requests for case documents in cases commenced on or after July 1, 2009, are governed by the Rules of Superintendence, not the Public Records Act—Writ denied.
(No. 2020-0043—Submitted July 21, 2020—Decided December 1, 2020.)
IN
Per Curiam.
{¶ 1} Relator, Kimani Ware, filed an original action in this court for a writ of mandamus to compel the production of records in response to seven public-records requests that he sent in May 2019 and an eighth request he sent in June 2019. He has also asked this court to conduct an in camera inspection of the contested records and to award statutory damages pursuant to
{¶ 2} For the reasons set forth herein, we deny Ware’s request for an in camera inspection of the records, deny the writ of mandamus, and deny statutory damages.
{¶ 3} Ware is an inmate at the Trumbull Correctional Institution. On May 6, 2019, Ware prepared seven separate public-records requests directed to the Stark County Clerk of Courts. He requested:
- Request one: A copy of the docket sheets for case Nos. 1991-CR-1164, 2009-CR-2044, 1999-CR-167B, 1996-CR-1277, and 2019-CA-00003; a copy of the oath of offiсe of Chief Deputy Clerk Flex; a copy of a roster listing the employees of the Stark County Clerk of Court’s Office, a copy of the employee handbook for the clerk’s office; and “a copy of the jury questionnaire form (Blank copy).”
- Request two: A copy of the “Stark County Grand Jury reports from January 1, 2018 through May 6, 2019.”
- Request three: A copy of Giavasis’s oath of office and copies of the employee-evaluation forms for Giavasis and Flex.
January Term, 2020
- Request four: A copy of the leave and time-off requests submitted by Giavasis and Flex from January 1, 2018, through May 6, 2019.
- Request five: A copy of the payroll records for Giavasis and Flex from January 1, 2018, through May 6, 2019.
- Request six: A copy of the time cards for Giavasis and Flex from January 1, 2018, through May 6, 2019.
- Request seven: A copy of Giavasis’s and Flex’s personnel files.
Ware alleges that he sent all of these requests by certified mail, to the Stark County Clerk of Courts. However, the clerk’s office claims that it received only request one.
{¶ 4} The clerk’s office forwarded request one to the county prosecuting attorney, who responded via letter to Ware on June 4, 2019. In that letter, the prosecuting attorney declined to provide Ware copies of the docket sheets until and unless Ware obtained an order from his sentencing judge. In response to Ware’s request for “the jury questionnaire form (Blank copy),” the assistant prosecuting attorney wrote that “we cannot provide you with [the] requested item * * * as there is no such document in the possession of the Stark County Clerk of Courts that is responsive to your request.” As for the remaining records sought in request one, the letter indicated that copies for Ware had been made at a total cost of $5.20, and that he would receive the records once he paid the invoice.
{¶ 5} Although Ware submitted his request to the clerk’s office, not to the prosecutor’s office, the response letter from the prosecutor’s office stated: “On May 13, 2019 this office received your public records request, dated May 6, 2019.” (Emphasis added.) Although Ware acknowledges receiving this response from the prosecutor’s office, he complains that he should have received a response from the clerk’s office.
{¶ 6} On June 17, 2019, Ware sent another request (“request eight”). Request eight, which was also sent by certified mail, repeated the request for a copy of the “Juror Questionnaire Form (Blank Copy).” It also asked for a cоpy of the docket sheets for four additional cases: 1993-CR-3870, 2012-CR-1709, 2009-CR-828, and 2004-CR-2225.
{¶ 7} On July 1, 2019, the clerk’s office denied Ware the records that he sought in request eight. The clerk’s office stated that pursuant to
{¶ 8} The clerk’s office claims to have no record of requests two through seven and alleges that it became aware of those requests on January 17, 2020, upon receipt of the mandamus complaint. Thereafter, the clerk’s office sent an initial response letter, dated January 22, informing Ware that it had just learned of his additional requests and that it was “determining what records [Ware is] entitled to and compiling them to determine the cost of these records.”
{¶ 9} On January 29, 2020, the clerk’s office sent a formal response regarding requests two through seven. The office refused to provide Ware the grand-jury reports (request two) without a judicial finding from his sentencing judge in accordance with
January Term, 2020
{¶ 10} Ware has not provided an order from his sentencing judge for the case dockets sought in requests one and eight or the grand-jury reports sought in request two. Nor has he paid the copying costs for requests three through seven.
Procedural history
{¶ 11} Ware filed an original action for a writ of mandamus in this court on January 9, 2020. In addition to the clerk’s office, the complaint named as respondents Stark County Prosecuting Attorney John D. Ferrero, Assistant Prosecuting Attorney David E. Deibel, and the Stark County Prosecutor’s Office. Respondents filed a motion to dismiss, which was granted as to Ferrero, Deibel, and the Stark County Prosecutor’s Office. 158 Ohio St.3d 1442, 2020-Ohio-1032, 141 N.E.3d 967. The remaining parties have submitted evidence and filеd merit briefs in accordance with S.Ct.Prac.R. 12.05.1 See id.
Legal analysis
{¶ 12} Ohio’s Public Records Act,
{¶ 13} To be entitled to the writ, Ware must demonstrate that he has a clear legal right to the requested relief and that the clerk’s office has a clear legal duty to provide that relief. See State ex rel. Cincinnati Enquirer v. Sage, 142 Ohio St.3d 392, 2015-Ohio-974, 31 N.E.3d 616, ¶ 10. Ware must prove his right to relief by
clear and convincing evidence. Id. However, Ohio’s Public Records Act “is construed
Ware’s request for case-docket sheets and grand-jury reports
{¶ 14} Ware requested the docket sheets for various cases as well as specific grand-jury reports. The clerk’s office cited
{¶ 15}
{¶ 16} Exceptions to disclosure under the Public Records Act are strictly construed against the public-records custodian, who has the burden to establish the applicability of аn exception. State ex rel. Toledo Blade Co. v. Seneca Cty. Bd. of Commrs., 120 Ohio St.3d 372, 2008-Ohio-6253, 899 N.E.2d 961, ¶ 18. The evidence shows that Ware is an inmate and that he has not obtained a finding from his sentencing judge under
{¶ 17} In his merit brief, Ware does not present any legal argument to counter the exception included in
the docket sheets or grand-jury reports. His sole argument in his seсond proposition of law, which addresses only the docket sheets, asserts that the docket sheets are public records and therefore must be produced. But
{¶ 18} We note at least two of the docket sheets are not governed by the Public Records Act. Specifically, Ware requested the docket sheets for case Nos. 2019-CA-00003 and 2012-CR-1709. Requests for case documents in cases commenced on or after July 1, 2009, are governed by the Rules of Superintendence, not the Public Records Act. State ex rel. Parker Bey v. Byrd, 160 Ohio St.3d 141, 2020-Ohio-2766, 154 N.E.3d 57, ¶ 11, citing Sup.R. 47(A)(1); see also State ex rel. Striker v. Smith, 129 Ohio St.3d 168, 2011-Ohio-2878, 950 N.E.2d, ¶ 21, fn. 2 (holding that the superintendence rules were inapplicable to a request for case documents from a case commenced in 2006).2 Likewise, the requests for grand-jury reports from 2018 and 2019 are not governed by the Public Records Act. However, those facts do not change the outcome of this case.
{¶ 19} The fact that Ware cited only the Public Records Act in his public-records
{¶ 20} For these reasons, we hold that Ware is not entitled to a writ of mandamus as to the docket sheets and grand-jury reports.
Ware’s remaining public-records requests
{¶ 21} Ware argues in his first proposition of law that he is entitled to the public records in his requests one through seven. This claim has two facets. His primary concern is that the clerk’s office took an unreasonable amount of time to respond to requests two through seven, a contention that is addressed below. Alternatively, he makes a merits-based argument.
{¶ 22} Apart from the docket sheets and grand-jury rеports discussed above, the only requests that the clerk’s office failed to honor were those seeking employee-evaluation forms for Giavasis and Flex and “Juror Questionnaire Form (Blank Copy),” both of which the office claims do not exist. Ware has presented no argument or evidence to suggest that these records do exist, and as the party seeking the writ of mandamus, he carries the burden of proof.
{¶ 23} As to the remaining records, the clerk’s office has not denied those requests; it has simply demanded payment in advance before providing the copies. The Public Records Act dоes not require a public-records custodian to provide copies of records free of charge. State ex rel. Call v. Fragale, 104 Ohio St.3d 276, 2004-Ohio-6589, 819 N.E.2d 294, ¶ 6. Instead, the statute “requires only that copies of public records be made available at cost.” Id. Thus,
{¶ 24} The clerk’s office has offered to make the records available and has identified the cost for copying them. Ware has not paid the cost or challenged the reasonableness of the amount. Consequently, he is not entitled tо a writ of mandamus as to those public-records requests.
Ware’s request for an in camera inspection
{¶ 25} In his complaint, Ware asked for an order compelling the clerk’s office to file the records under seal for an in camera inspection. As our preceding discussion has shown, the legal analysis of Ware’s mandamus complaint and the clerk’s office’s defense against the complaint does not depend on the content of the records. An inspection of the records is therefore unnecessary, and so we deny this request.
{¶ 26} In his third proposition of law, Ware argues for an award of statutory damages. Under the Public Recоrds Act, a requester seeking statutory damages must prove that the request was delivered “by hand delivery, electronic submission, or certified mail.”
{¶ 27} A person requesting public records “shall” be entitled to recover 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 [R.C. 149.43(B)].”
{¶ 28} First, he contends that the clerk’s office failed in its duty to provide the records he requested. As indicated above, we conclude that the clerk’s office did not breach any duty under the Public Records Act. Alternatively, Ware objects to the length of time the clerk’s office took to respond to requests one through
seven.
{¶ 29} With respect to request one, the evidence shows that the prosecutor’s office responded on June 4, 2019, approximately three weeks after the request first reached the clerk’s office. Ware does not allege that three weeks was an unreasonable length of time; rather, he refuses to accept the June 4 letter as a response written on behalf of the clerk’s office and therefore concludes that the clerk’s office never responded at all.
{¶ 30} By statute, the county prosecuting attorney is counsel for the clerk’s office.
{¶ 31} A different analysis applies to requests two through seven. If those requests were served at the same time as request one, then the clerk’s office did not respond in a timely fashion. See, e.g., State ex rel. DiFranco v. S. Euclid, 138 Ohio St.3d 367, 2014-Ohio-538, 7 N.E.3d 1136, ¶ 21 (holding that a requester was entitled to statutory damages when the city failed to respond to her request for two months), superseded by statute on other grounds, State ex rel. Cincinnati Enquirer v. Cincinnati, 157 Ohio St.3d 290, 2019-Ohio-3876, 135 N.E.3d 772. But Ware
has not proved by clear and convincing evidence that he placed all seven requests in a single envelope.
{¶ 33} We deny Ware’s request for statutory damages.
Conclusion
{¶ 34} We deny Ware’s request for an in camera review of the requested records, deny the writ of mandamus, and deny statutory damages.
Writ denied.
O’CONNOR, C.J., and FRENCH, FISCHER, DONNELLY, and STEWART, JJ., concur.
DEWINE, J., concurs in judgment only.
KENNEDY, J., dissents, with an opinion.
KENNEDY, J., dissenting.
{¶ 35} I disagree with the majority’s continued exercise of raw judiciаl power in relying upon the Rules of Superintendence instead of Ohio’s Public
Records Act to govern the requests for case documents in cases commenced on or after July 1, 2009. All of relator Kimani Ware’s requests—and any remedies that may be available to him in the event he is successful—should be considered pursuant to the Public Records Act’s statutory framework. Also, the record establishes by clear and convincing evidence that Ware served respondents, Stark County Clerk of Courts Louis P. Giavasis, Stark County Chief Deputy Clerk of Courts Anthony J. Flex, and the Stark County Clerk of Court’s Office (collectively, “the clerk’s оffice”) by certified mail with public-records requests two through seven and I would award him statutory damages in the amount of $1,000.
{¶ 36} Therefore, I dissent.
Ohio’s Public Records Act versus Rules of Superintendence
{¶ 37} Recently, this court “implicitly overturn[ed] decades of caselaw holding that the Public Records Act applies to the courts,” State ex rel. Parisi v. Dayton Bar Assn. Certified Grievance Commt., 159 Ohio St.3d 211, 2019-Ohio-5157, 150 N.E.3d 43, ¶ 50 (Kennedy, J., concurring in part and concurring in judgment only in part), and conclusively held that a party seeking to obtain access to case documents in actions commenced on or after July 1, 2009 must utilize the process set forth in Sup.R. 44 through 47, id. at ¶ 27. Consequently, “[i]f a party seeks to obtain judicial records through means other than Sup.R. 44 through 47, the party is not entitled to a writ of mandamus, as the Rules of Superintendence are the sole vehicle by which a party may seek to obtain such records.” Id. at ¶ 20.
{¶ 38} Today, this court applies this reasoning to Ware’s requests for the docket sheets for case Nos. 2019-CA-00003 and 2012-CR-1709. However, the docket sheets are records kept by the clerk’s office and access to the docket sheets is governed by the Public Records Act; the docket sheets are not a “court record” within the meaning of the Rules of Superintendence. In
{¶ 39} The Rules of Superintendence were promulgated pursuant to our authority in Article IV, Section 5(A)(1) of the Ohio Constitution. Section 5(A)(1) states: “In addition to all other powers vested by this article in the supreme court, the supreme court shall have general superintendence оver all courts in the state. Such general superintending power shall be exercised by the chief justice in accordance with rules promulgated by the supreme court.”
{¶ 40} Commentators have noted that “the purpose of this provision was to remedy case-management problems that had caused backlogs in resolving cases.” Parker Bey at ¶ 38 (Kennedy, J., concurring in judgment only in part and dissenting in part), citing Marburger & Idsvoog, Access with Attitude: An Advocate’s Guide to Freedom of Information in Ohio 151-152 (2011); Milligan & Pohlman, The 1968 Modern Courts Amendment to the Ohio Constitution, 29 Ohio St.L.J. 811, 821-822 (1968). We have also recognized that the “Rules of Superintendence ‘аre designed “(1) to expedite the disposition of both criminal and civil cases in the trial courts of this state, while at the same time safeguarding the inalienable rights of litigants to the just processing of their causes; and (2) to serve that public interest which mandates the prompt disposition of all cases before the courts.” ’ ” Id., quoting State v. Steffen, 70 Ohio St.3d 399, 409, 639 N.E.2d 67 (1994), quoting State v. Singer, 50 Ohio St.2d 103, 109-110, 362 N.E.2d 1216 (1977).
{¶ 41} Article IV, Section 5(B) authorizes a second type of court rules: “The supreme court shall prescribe rules governing practice and procedure in all courts of the state, which rules shall not abridge, enlarge, or modify any substantive right. * * * All laws in conflict with such rules shall be of no furthеr force or effect after
such rules have taken effect.” “Section 5(B) expressly empowers this court to adopt procedural rules that supersede the enactments of the General Assembly.” Parker Bey, 160 Ohio St.3d 141, 2020-Ohio-2766, 154 N.E.3d 57, at ¶ 39 (Kennedy, J., concurring in judgment only in part and dissenting in part), citing Morris v. Morris, 148 Ohio St.3d 138, 2016-Ohio-5002, 69 N.E.3d 664, ¶ 30. However, the framers of the Modern Courts Amendment of 1968 placed two important limitations on our authority to supplant the enactments of the General Assembly. Id. First, “our procedural rules may not abridge, enlarge, or modify any substantive right; and second, the General Assembly has oversight because the legislature by joint resolution may disaрprove any proposed procedural rule prior to its taking effect.” Id., citing Article IV, Section 5(B), Ohio Constitution.
{¶ 42} Article IV, Section 5(A)(1), which empowers our superintendence over the courts, stands in stark contrast. It does not grant “this court a similar power to preempt the lawful enactments of the legislative branch of government by adopting a rule under our authority to supervise the lower courts.” Parker Bey at ¶ 40 (Kennedy, J., concurring in judgment only in part and dissenting in part). And it “does not provide that the Superintendence Rules supersede all laws that are in conflict with them, nor does it contain any requirement
{¶ 43} As I previously stated:
The Rules of Superintendence are neither a statute nor a product of common law. The Public Records Act,
January Term, 2020
Id. at ¶ 25 (Kennedy, J., concurring in judgment only in part and dissenting in part).
{¶ 44} Therefore, I would consider all of Ware’s public-records requests—including the 2012 and 2019 docket-sheet requests—pursuant to the Public Records Act.
Statutory Damages
{¶ 45} The majority concludes that Ware is not entitled to statutory damages. With respect to requests two through seven, the majority has determined that Ware failed to prove by clear and convincing evidence that he placed all seven requests in a single envelope. I disagree. Contrary to the position of the majority, the record in this matter proves by clear and convincing evidence that Ware placed all seven requests in a single envelope, and therefore he is substantively eligible for statutory damages as to those requests.
{¶ 46}
wrongfully denied public records, he “shall” be entitled to statutory damages of $100 each business day—“beginning with the day on which the requester files a mandamus action to recover statutory damages, up to a maximum of one thousand dollars.”
{¶ 47} The burden is on the requester to prove the requester’s delivery method by clear and convincing evidence. See State ex rel. McDougald v. Greene, ___ Ohio St.3d ___, 2020-Ohio-3686, ___ N.E.3d ___, ¶ 14. Clear and convincing evidence is “ ‘that measure or degree of proof which is more than a mere “preponderance of the evidence,” but not to the extent of such certainty as is required “beyond a reasonable doubt” in criminal cases, and which will produce in the mind of the trier of facts a
{¶ 48} Ware attests that he sent public-records requests one through seven to the clerk’s office in a single, certified-mail envelope, with the envelope having the tracking No. 9590 9402 4371 8190 6964 48. The clerk’s office maintains that it had received only request one and that a search of the office did not locate requests two through seven. The majority contends that the evidence is evenly balanced, but there is more evidence before this court that should be considered.
{¶ 49} The return-address section of the certified-mail envelope contains Ware’s handwritten notation “*7 Public Records Requests*.” The certified-mail receipt also references the seven requests. Underneath the address for the Stark County Clerk of Courts is Ware’s handwritten notation “Attn. 7 Public Request Records.” Finally, Ware has provided copies of requests one through seven, all dated May 6, 2019. This demonstrates, by clear and convincing evidence, that Ware placed all seven requests in the certified-mail envelope, with the tracking No.
9590 9402 4371 8190 6964 48, that was received by the clerk’s office on May 13, 2019. Therefore, Ware is substantively eligible for statutory damages for his public-records requests two through seven. And, given the time that has passed from the date on which Ware filed his complaint to when the clerk’s office responded, Ware is eligible for the statutory maximum of $1,000.
{¶ 50} A court may reduce or dеcline to award statutory damages if it finds that based on the law as it existed at the time that the public office allegedly failed to comply with
{¶ 51} The factors that allow a court to reduce statutory damages under
Conclusion
{¶ 52} The majority continues to deny the citizens of Ohio the substantive right to access court records and to the available remedies under the Public Records Act. It is the Public Records Act, not the Rules of Superintendence, that govern our review of requests for public records, regardless of whether the record is a case document. Additionally, the record establishes by clear and convincing evidence that Ware served the clerk’s office by certified mail with public-records requests two through seven and I would award Ware statutory damages in the amount of $1,000.
{¶ 53} Therefore, I dissent.
Kimani Ware, pro se.
John D. Ferrero, Stark County Prosecuting Attorney, and Jessica L. Logothetides, Assistant Prosecuting Attorney, for respondents.