[Cite as State ex rel. Ware v. Andrews, 2021-Ohio-4257.]

IN THE COURT OF APPEALS OF OHIO 

ELEVENTH APPELLATE DISTRICT 

LAKE COUNTY

STATE OF OHIO ex rel. 

KIMANI WARE, 

 Relator, 

 - v - 

FAITH ANDREWS, LAKE 

COUNTY CLERK OF COURTS, 

 Respondent. 

CASE NO. 2020-L-043

Original Action for

Writ of Mandamus 

P E R C U R I A M 

O P I N I O N 

Decided: December 6, 2021 

Judgment: Petition denied 

Kimani Ware, pro se, PID# A470-743, Trumbull Correctional Institution, 5701 Burnett 

Road, P.O. Box 901, Leavittsburg, OH 44430 (Relator). 

Charles E. Coulson, Lake County Prosecutor; Michael L. DeLeone and Harrison L. 

Crumrine, Assistant Prosecutors, Lake County Administration Building, 105 Main Street, 

P.O. Box 490, Painesville, OH 44077 (For Respondent). 

PER CURIAM. 

{¶1} Kimani Ware (“Relator”) seeks a writ of mandamus against the Lake County 

Clerk of Courts (“Respondent”)1 to compel the production of public records. In addition, 

Relator seeks an award of statutory damages. The matter is now decisional on Relator’s 

motion for summary judgment and Respondent’s brief in response. For the reasons set 

1. The named public officer in this original action was Maureen G. Kelly, Lake County Clerk of Courts. 

Pursuant to App.R. 29(C)(1), Kelly’s successor, Faith Andrews, Lake County Clerk of Courts, has been 

automatically substituted as the named party. 
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forth below, we deny as moot the petition for a writ of mandamus and grant the request 

for statutory damages. 

{¶2} Relator is an inmate at the Trumbull Correctional Institution. Relator alleges 

that on April 19, 2019, he submitted an envelope containing seven public records 

requests to Respondent by way of certified mail. “Request One” includes a request for 

copies of the complaint and motion to dismiss in Eleventh District Court of Appeals case 

number 2018-L-127, an original action initiated by another inmate incarcerated at 

Trumbull Correctional Institution. Also requested in “Request One” are copies of the Lake 

County Clerk of Courts public records policy; the roster listing (current employees) of the 

Lake County Clerk of Courts office; the Lake County Clerk of Courts oath of office; and 

the Lake County Clerk of Courts record retention schedule. Relator alleges that all seven 

requests were returned to him with a post-it note, stating: “Mr. Ware, We do not have any 

case with that # nor any case with your name on it. Did you have a different name at [sic] 

time?” 

{¶3} At all relevant times, Maureen G. Kelly was the duly elected Lake County 

Clerk of Courts. In an affidavit, Kelly acknowledges receipt of “Request One,” but not the 

other six requests, and avers the request was returned to Ware with a note seeking 

clarification. 

{¶4} Relator further alleges that on May 14, 2019, he sent a letter to Respondent 

by way of regular U.S. mail, which read: “You sent all seven of my public records requests 

back to me, stating that there is no case with my case number [sic] or that case number, 

I’m re-submitting all seven of my public records requests (see the attached public records 
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requests) you wrongfully reviewed all seven of them [sic].” Kelly denies receipt of this 

letter. It is undisputed that Relator received no further response to his records request(s). 

{¶5} Relator filed this complaint for a writ of mandamus on March 30, 2020. 

Copies of Relator’s April 19 requests, certified mail receipts, the post-it note response, 

and May 14 letter are attached to his complaint, as well as his affidavit in support. Kelly 

directed her staff to assemble the records and her legal counsel to respond. The 

response letters, with copies of the requested records, were mailed to Relator on April 27 

and April 28, 2020. Relator acknowledges receipt of the records on April 30, 2020. There 

were no documents responsive to a few of Relator’s requests. 

{¶6} In his motion for summary judgment, Relator states he “is now happy in all 

aspects in regards to his seven public records requests as the public records have been 

provided to him in full, even though some of the records were not provided, see exhibit 

#12, still relator is okay with the records that were provided.” Relator continues to seek 

statutory damages in the amount of $1,000.00 “per public record request[.]” Respondent 

opposes his request for damages. 

{¶7} R.C. 149.43(B)(1) requires a public office to make copies of requested 

public records available to the requester at cost and within a reasonable period of time. 

A “public record” is a record “kept by any public office.” R.C. 149.43(A)(1). 

{¶8} “Mandamus is an appropriate remedy to compel compliance with R.C. 

149.43, Ohio’s Public Records Act. To prevail on a claim for mandamus relief in a publicrecords case, a party must establish a clear legal right to the requested relief and a 

corresponding clear legal duty on the part of the respondent to provide that relief.” 

(Internal citations omitted.) State ex rel. Ellis v. Maple Hts. Police Dept., 158 Ohio St.3d 
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25, 2019-Ohio-4137, 139 N.E.3d 873, ¶ 5; R.C. 149.43(C)(1)(b). “Unlike in other 

mandamus cases, relators in public-records mandamus cases are not required to 

establish the lack of an adequate remedy in the ordinary course of law.” (Citation 

omitted.) State ex rel. Ullmann v. Klein, 160 Ohio St.3d 457, 2020-Ohio-2974, 158 N.E.3d 

580, ¶ 11. 

{¶9} “In general, a public-records mandamus case becomes moot when the 

public office provides the requested records.” State ex rel. Martin v. Greene, 156 Ohio 

St.3d 482, 2019-Ohio-1827, 129 N.E.3d 419, ¶ 7, citing 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, ¶ 

43; accord State ex rel. Martin v. Buchanan, 152 Ohio St.3d 68, 2017-Ohio-9163, 92 

N.E.3d 869, ¶ 5, quoting State ex rel. Eubank v. McDonald, 135 Ohio St.3d 186, 2013-

Ohio-72, 985 N.E.2d 463, ¶ 1 (“‘Mandamus will not lie to compel an act that has already 

been performed.’”). 

{¶10} The parties agree that the requested public records have been provided and 

received to Relator’s satisfaction. We therefore deny the petition for a writ of mandamus 

as moot. That ruling does not, however, render moot Relator’s demand for statutory 

damages. State ex rel. Martin v. Greene at ¶ 8. 

{¶11} Even if a relator does not prevail on the mandamus claim, he or she may 

still qualify for an award of statutory damages. State ex rel. McDougald v. Greene, 161 

Ohio St.3d 130, 2020-Ohio-3686, 161 N.E.3d 575, ¶ 13, citing State ex rel. Kesterson v. 

Kent State Univ., 156 Ohio St.3d 13, 2018-Ohio-5108, 123 N.E.3d 887, ¶ 22 and 

Kesterson v. Kent State Univ., 156 Ohio St.3d 22, 2018-Ohio-5110, 123 N.E.3d 895, ¶ 

32. A request for the production of public records is governed by the version of Ohio’s 
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Public Records Act that was in effect at the time that the request was made. Kesterson, 

2018-Ohio-5108, at ¶ 11, fn. 1. The version in effect at the time Relator’s request was 

made is included in 2018 Sub.H.B. No. 425, 2018 Ohio Laws 171. 

{¶12} A requester of public records “shall be entitled to recover the amount of 

statutory damages set forth in this division” if the requester made the request in writing 

by hand delivery, electronic submission, or certified mail; the request fairly describes the 

public record or class of public records; and the public office failed to comply with an 

obligation in accordance with division (B) of this section. R.C. 149.43(C)(2); accord State 

ex rel. McDougald v. Greene at ¶ 14 and State ex rel. Rogers v. Dept. of Rehab. & Corr., 

155 Ohio St.3d 545, 2018-Ohio-5111, 122 N.E.3d 1208, ¶ 23. 

{¶13} “The amount of statutory damages shall be fixed at one hundred dollars for 

each business day during which the public office or person responsible for the requested 

public records failed to comply with an obligation in accordance with division (B) of this 

section, beginning with the day on which the requester files a mandamus action to recover 

statutory damages, up to a maximum of one thousand dollars.” R.C. 149.43(C)(2). “The 

award of statutory damages shall not be construed as a penalty, but as compensation for 

injury arising from lost use of the requested information. The existence of this injury shall 

be conclusively presumed.” Id.; see also State ex rel. Walker v. Clark, 144 Ohio St. 305, 

311, 58 N.E.2d 773 (1944) (defining “conclusive presumption” as “an inference which the 

law makes so peremptory that it may not be overcome by any contrary proof, however 

strong”). 

{¶14} “The court may reduce an award of statutory damages or not award 

statutory damages” if two conditions are satisfied under R.C. 149.43(C)(2). The court 
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must determine that (1) based on the ordinary application of statutory law and case law 

as it existed at the time of the conduct, a well-informed public office reasonably would 

believe that the conduct of the public office did not constitute a failure to comply with an 

obligation under R.C. 149.43(B), and (2) a well-informed public office reasonably would 

believe that the conduct of the public office would serve the public policy that underlies 

the authority that is asserted as permitting that conduct. R.C. 149.43(C)(2)(a)-(b). Accord

Rogers at ¶ 24; Kesterson, 2018-Ohio-5108, at ¶ 21; and State ex rel. Carr v. London 

Corr. Inst., 144 Ohio St.3d 211, 2015-Ohio-2363, 41 N.E.3d 1203, ¶ 41. 

{¶15} Relator provided evidentiary materials demonstrating that he delivered to 

Respondent by certified mail a written request fairly describing the public records 

requested. Respondent does not dispute this fact. Relator also demonstrated that 

Respondent failed to comply with the obligation in R.C. 149.43(B)(1) to provide copies of 

requested public records within a reasonable period of time. Even assuming Respondent 

only received “Request One,” and not Relator’s other six requests, the documents 

requested in “Request One” were not provided to Relator until 365 days after his initial 

request. Respondent does not dispute this fact and does not contend that this was a 

reasonable period of time. Therefore, Relator is entitled to summary judgment on the 

issue of statutory damages. 

{¶16} Relator’s request is for an award of $1,000.00 for each of his seven records 

requests. Respondent responds that Relator’s award should be limited to a total of 

$1,000.00. We agree. Relator’s requests, while listed separately on seven sheets of 

paper, were all delivered at the same time in one certified mailing. R.C. 149.43 “does not 

permit stacking of statutory damages based on what is essentially the same records 
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request. No windfall is conferred by the statute.” State ex rel. Dehler v. Kelly, 127 Ohio 

St.3d 309, 2010-Ohio-5724, 939 N.E.2d 828, ¶ 4, citing R.C. 149.43(C)(2); accord State 

ex rel. Ware v. Akron, 164 Ohio St.3d 557, 2021-Ohio-624, 174 N.E.3d 724, ¶ 22. 

{¶17} We further decline to reduce Relator’s statutory damages award, as the 

condition in R.C. 149.43(C)(2)(a) has not been satisfied. This court would have to 

conclude that based on the ordinary application of statutory and case law as it existed at 

the time of Respondent’s failure to produce the records, a well-informed public office or 

person responsible for the requested public records reasonably would believe that the 

failure to produce the records did not constitute a failure to comply with the obligation of 

R.C. 149.43(B)(1) to produce copies of the records within a reasonable period of time. 

{¶18} Respondent contends that a well-informed clerk of courts reasonably would 

believe that seeking clarification to ensure the requester received the correct records 

would not constitute a failure to comply with the obligations of R.C. 149.43(B)(1) because 

(B)(2) permits a public office to deny a request that is ambiguous or overly broad, which 

serves the public policy of allowing the public office to reasonably identify what public 

records are being requested. 

{¶19} None of the evidentiary materials provided to this court demonstrate that 

Relator’s requests were ambiguous or overly broad. In fact, when Respondent responded 

to Relator’s requests in light of this mandamus action, the only reason listed for not 

providing a requested record was that “there are no documents responsive to this 

request.” There is no mention of an ambiguous or overly broad request. The documents 

from case number 2018-L-127, which were requested in Relator’s “Request One”—the 

only request Kelly acknowledges having received in April 2019—were provided to Relator 
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without issue and to his satisfaction. 

{¶20} More importantly, Relator requested four other records in “Request One” 

unrelated to case number 2018-L-127, to wit: the clerk of courts’ public records policy, a 

roster listing of current employees, the clerk of courts’ oath of office, and the clerk of 

courts’ record retention schedule. There is no identifiable or provided explanation as to 

why those four records were not produced upon request, even assuming there was 

confusion or concern with the request for 2018-L-127 documents.

{¶21} Therefore, this court determines that the reduction factors in R.C. 

149.43(C)(2) have not been satisfied. Statutory damages must be awarded at a rate of 

$100.00 per business day measured from the filing of the mandamus complaint until the 

production of records sought. As more than ten days passed between those two dates, 

we award Relator the statutory maximum of $1,000.00 in statutory damages. See, e.g., 

Carr, 2015-Ohio-2363, at ¶ 44; see also State ex rel. Moore v. Montgomery Cty. Clerk of 

Courts, 2d Dist. Montgomery No. 24937, 2012-Ohio-5782, ¶ 13 (“we must presume that 

Respondent’s non-compliance caused an injury to [Relator]”). 

{¶22} Relator’s motion for summary judgment is granted in part and denied in part. 

The petition for a writ of mandamus is denied as moot. The request for statutory damages 

is granted. 

CYNTHIA WESTCOTT RICE, J., THOMAS R. WRIGHT, J., MATT LYNCH, J., concur.