THE STATE EX REL. WARE v. THE CITY OF AKRON ET AL.
No. 2019-1406
Supreme Court of Ohio
March 9, 2021
Slip Opinion No. 2021-Ohio-624
Submitted January 12, 2021
[Until this оpinion appears in the Ohio Official Reports advance sheets, it may be cited as State ex rel. Ware v. Akron, Slip Opinion No. 2021-Ohio-624.]
NOTICE
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SLIP OPINION NO. 2021-OHIO-624
THE STATE EX REL. WARE v. THE CITY OF AKRON ET AL.
[Until this opinion appears in the Ohio Official Reports advance sheets, it may be сited as State ex rel. Ware v. Akron, Slip Opinion No. 2021-Ohio-624.]
Mandamus—Public Records Act—A public office is required to make copies of public records available to any person upon request within a reasonable period of time—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
(No. 2019-1406—Submitted January 12, 2021—Decided March 9, 2021.)
IN MANDAMUS.
{¶ 1} In this original action, relator, Kimani Ware, seeks a writ of mandamus tо compel the production of public records that he had requested from respondents, the city of Akron and its police chief Kenneth R. Ball II (collectively, “the city“). For the reasons set forth below, we grant a writ of mandamus compelling the city to inform Ware of the cost for copying the public records he seeks, with a breakdown showing how the costs were calculated. In addition, we award Ware $1,000 in statutory damages. Finally, we deny Ware‘s motion asking this court to take judicial notice of certain facts.
{¶ 2} Ware is an inmate at the Trumbull Correctional Institutiоn. On February 4, 2019, he sent two letters to the Akron Police Department requesting various public records. In one letter, Ware asked for copies of (1) the department‘s policy regarding search warrants, (2) the department‘s disciplinary policy, (3) the department‘s body-camera рolicy, (4) the department‘s arrest policy, and (5) a roster of department employees. The other letter sought the personnel files of Franklin Harrah, Daniel Metzger, Anna Romito, and William Bosak.
{¶ 3} Ware sent his letters by certified mail, and a department employee signed the reсeipt acknowledgement on February 14. Ware did not receive a response to his public-records requests.
{¶ 4} On October 16, 2019, Ware filed a complaint for a writ of mandamus in this court. On November 8, 2019, the city filed a motion to dismiss Ware‘s complaint. On January 22, 2020, this court denied the city‘s motion to dismiss аnd issued an alternative writ, ordering the parties to submit evidence and file briefs in accordance with S.Ct.Prac.R. 12.05. 2020-Ohio-94, 137 N.E.3d 1221.
{¶ 5} According to the evidence submitted by the city, the police department and the city‘s law office first became aware of Ware‘s public-records requests on Octоber 20, 2019 (that is, after receiving the complaint). The city attributes this oversight to two possible causes: (1) the administrative assistant who signed the receipt for Ware‘s request was undergoing treatment for mesothelioma at the time, from which she eventually passed away and (2) according to an affidavit signed by the city-law department‘s executive assistant Elaine M. Stoeberman, in February 2019, Akron experienced a “City-wide cyber-event” that left e-mail communication between city departments practically unusable.
{¶ 6} On October 24, the city responded to Ware with two letters. With respect to the personnel files that Ware requested, the city informed him that Bosak‘s personnel file had been copied for him in response to a previous public-records request but that because he had never paid the fee for that record, the file would not be mаiled to him until he paid the invoice. Likewise, the city indicated that the personnel files of Harrah, Metzger, and Romito were copied and ready to be mailed to him, subject to redactions, once Ware paid the amount requested in the invoice that had been enclosеd with the city‘s response. A copy of that invoice is not in the record.
{¶ 7} In a separate letter, which was also dated October 24, the city responded to Ware‘s public-records request for the police department‘s various policies. The city informed Ware that the рolice department did not have a written “arrest policy.” As for his remaining requests—copies of the police department‘s policies on search warrants, discipline, and body cameras, and a copy of the police department‘s roster of certain еmployees—the city informed Ware that those records would be sent to him once he paid the amount requested in the invoice that had been enclosed with the letter. A copy of that invoice is also not part of the record.
{¶ 8} The city indicates in an affidavit that the total cost for copying all the records is $21.05. Ware has not submitted any payment to the city.
II. Legal analysis
A. The request for judicial notice
{¶ 9} On July 31, 2020, we ordered the city to serve Ware its merit brief by August 5. In that same entry, we ordered Ware to file his reply brief by August
B. The merits of the suit
{¶ 11} The Ohio Public Records Act,
{¶ 12} To be entitled to the writ, Ware must demonstrate that he has a clear legal right to the requested relief and that the city 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. See id. However, the Public Records Act “is construed liberally in favor of brоad access, and any doubt is resolved in favor of disclosure of public records.” State ex rel. Cincinnati Enquirer v. Hamilton Cty., 75 Ohio St.3d 374, 376, 662 N.E.2d 334 (1996).
{¶ 13} In his first proposition of law, Ware contends that he is entitled to a writ of mandamus compelling the city to produce copies of the public records hе requested. But the Public Records Act does not require a public-records custodian to provide copies of public 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,
{¶ 14} However, the evidence does not establish that this occurred. Ware admits that he received the two October 24 letters in which the city agreed to provide copies of most of the records he had requested upon payment of the costs of copying those records, but Ware asserts that the city never enclosed the invoices with those letters. Ware‘s allegation that the city neglected to send the invoices is bolstered by thе fact that the city did not submit those invoices as evidence in this case. So, although the city offered to provide Ware the public records once he paid for the cost of the copies, the first time it identified the amount to be paid was in an affidavit to this court, and that affidаvit provided only an aggregate cost, not a breakdown of the charges.
{¶ 15} Because the city is willing to provide copies of the records once Ware has paid for the copies, a writ of mandamus compelling the city to provide the records is neither warrantеd nor necessary. However, we do grant a writ ordering
C. Statutory damages
{¶ 16} In his second proposition of law, Ware contends that he is entitled to an award of $2,000 in statutory damages. 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 [
{¶ 17} As a preliminary matter, Ware has satisfied the threshold requirement of a qualifying delivery method. To qualify for statutory damages, a requester must transmit the public-records request by “hand delivery, electronic submission, or certified mail.”
{¶ 18} Statutory damages will be awarded when a public-records custodian takes an unreasonable length of time to produce the requested records. State ex rel. Kesterson v. Kent State Univ., 156 Ohio St.3d 13, 2018-Ohio-5108, 123 N.E.3d 887, ¶ 13. The city does not suggest that nine months was a reasonable amount of time for it to respond. Instead, the city asks this court to focus on the fact that once it became aware of Ware‘s public-records requests in October 2019, it responded within six days. Implicit within the city‘s argument is a request for this court to excuse its failure to resрond timely to Ware‘s public-records requests due to the illness of its employee and the cyber disruption that restrained the city‘s ability to communicate via e-mail. However, statutory-damage awards under the Public Records Act are not contingent on the good or bad faith of the public-records custodian. Rather, under
{¶ 19} Alternatively, the city argues that damages are inappropriate because Ware has not suffered an injury from his lost use of thе records. The purpose of awarding statutory damages, however, is to compensate “for injury arising from the lost use of the requested information.”
{¶ 20} The city also suggests that any injury is the result of Ware‘s own failure to pay the invoices. But that claim overlooks both the city‘s failure to respond fоr nearly nine months and the city‘s apparent failure to include the invoices with its responsive letters.
{¶ 22} Ware asks the court to award $2,000 on the theory that he served two separate requests and is entitled to the maximum for each. But the fact that he spread his public-records requests across two letters does not automatically mean that each letter constitutes a separate request for purposes of calculating statutory damages.
{¶ 23} For these reasons, we decline to award $2,000 in stаtutory damages.
III. Conclusion
{¶ 24} Based on the foregoing, we deny the motion for judicial notice, we grant a writ of mandamus compelling the city to inform Ware of the cost for copying the records he seeks and to provide a breakdown of the charges, and we award Ware $1,000 in statutory damages.
Writ granted.
O‘CONNOR, C.J., and KENNEDY, FISCHER, DEWINE, DONNELLY, STEWART, and BRUNNER, JJ., concur.
Kimani Ware, pro se.
Eve V. Belfance, Akron Director of Law, and John Christopher Reece, Assistant Director of Law, for respondents.