[Until this opinion appears in the Ohio Official Reports advanc e sheets, it may be cited as State ex rel. McDougald v. Sehlmeyer , Slip Opinion No. 2020-Ohio-3927.]

NOTICE This slip opinion is subject to f ormal revision before it is pu blished in an advance sheet of the Ohio Official Reports. Readers are reques ted to promptly notify the Reporter of Decisions, Supreme Court of Ohi o, 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.

S LIP O PINION N O

. 2020-O HIO -3927

T HE S TATE EX REL

. M C D OUGALD v. S EHLMEYER

. [Until this opinion appears in t he Ohio Official Reports advanc e sheets, it

may be cited as State ex rel. McDougald v. Sehlmeyer , Slip Opinion No. 2020-Ohio-3927.]

Mandamus—Public Records Act—There is no justification for granting a writ of mandamus to compel a public-records custodian to allow an in-person inspection of requested records, es pecially when the public-records custodian has offered to make the records available by other means. (No. 2019-1212—Submitted April 7, 2020—Decided August 5, 2020.)

I N M ANDAMUS

.

________________ Per Curiam. {¶ 1} Relator, Jerone McDougald, seek s a writ of mandamus to compel respondent, Sonrisa Sehlmeyer, t o produce documents pursuant to a public-records request. Also pending is McDouga ld’s motion to submit this cas e to mediation.S UPREME C OURT OF O HIO

2 For the reasons set forth herei n, we deny his motion for mediat ion and his requests for a writ of mandamus, statuto ry damages, and court costs. I. Background {¶ 2} On August 13, 2019, McDougald, an inmate at the Toledo Correctional Institution, sent a public-records request to Sehl meyer, the warden’s

administrative assistant. He asked to inspect the following records:

(1) Ms. M. Manteuffel training course files. (2) Ms. M. Manteuffel position description. (3) Ms. M. Manteuffel forms documenting receipt of office policies, directives, etc. (4) Ms. M. Manteuffel forms documenting job classification changes.

{¶ 3} One week later, Sehlmeyer responded to McDougald’s request with a handwritten notation indicating the number of pages each reques ted record consisted of and stating , “The total for th is request would be $1.80. 1 Please send a cash slip for these records.” ( Footnote added.) Sehlmeyer’s r esponse provided no further explanation. McDougald understood this response as a d enial of his request to inspect the records in person. {¶ 4} According to Sehlmeyer’s affidavit that was submitted as eviden ce in this case, after McDougald received Sehlmeyer’s response, he “n ever followed-up this request with any indication that he was still seeking to i nspect these documents,” as opposed to receiving copies. Nor did he ever se nd Sehlmeyer a

1. Sehlmeyer calculated this amount by totaling the number of pages in the various requests (36) and multiplying that number by $.05.January Term, 2020

3 cash slip. Sehlmeyer also check ed McDougald’s inmate account a nd determined

that he did not have sufficient f unds to pay the cost of the co pies. {¶ 5} On September 3, 2019, McDougald filed the present complaint, asking this court to issue a writ of mandamus compelling Sehlme yer to allow him to inspect the records. He also requested an award of statutor y damages in the amount of $1,000 plus court costs. This court denied Sehlmeyer ’s motion to dismiss and issued an alternative writ and set a briefing sched ule. 157 Ohio St.3d 1516, 2019-Ohio-5289, 136 N.E.3d. 517. {¶ 6} The parties have f iled merit briefs and s ubmitted evidence. II. Analysis A. The motion for mediation {¶ 7} McDougald has filed a motion asking to submit this case to medi ation. S.Ct.Prac.R. 4.02 authorizes a party to “file a motion to refer a case to mediation pursuant to S.Ct.Prac.R. 19.01.” U nder S.Ct.Prac.R. 19.01(A)(1 ), we may refer to mediation “any civil case that t he Supreme Court deems appropri ate.” This case is not appropriate for mediation. {¶ 8} McDougald’s motion for mediation consists of a single sentence, in

which he asks us to refer the cas e to mediation “due to the cir cumstances and facts of this case.” The motion does not explain what these facts an d circumstances are and does not identify any dispute that mediation might help to resolve. As shown below, this case does not involve an ambiguous or overly broad public-records request that a mediator could he lp to narrow or clarify. The i ssue in this case is whether McDougald, an inmate in a maximum-security prison, has a statutory right to personally inspect public records (as opposed to receiving c opies of those records). Mediation is unlikely to help the parties resolve th at disagreement. {¶ 9} We deny McDougald’s motion to r efer this case to mediation.S UPREME C OURT OF O HIO

4 B. The merits of McDougald’s public-records claim {¶ 10} Ohio’s Public Records Act, R.C. 149.43, requires a public offic e, upon request, to promptly make public records available for ins pection or to provide copies of the records within a reasonable period of time, R.C. 149.43(B)(1). A “public record” is a record “kept by any public office.” R.C. 149.43(A)(1). Mandamus is an appropriate remedy by which to compel compliance with R.C.

149.43. State ex rel. Physicians Commt. for Responsible Medicine v. Ohio State Univ. Bd. of Trustees , 108 Ohio St.3d 288, 2006-Ohio-903, 843 N.E.2d 174, ¶ 6; R.C. 149.43(C)(1)(b). {¶ 11} To be entitled to the writ, McDougald must demonstrate that he has a clear legal right to the requested relief and that Sehlmeyer has a clear legal duty to provide that relief. State ex rel. Cincinnati Enquirer v. Sage , 142 Ohio St.3d 392, 2015-Ohio-974, 31 N.E.3d 616, ¶ 10. McDougald must prove his right to relief by clear and convincing evidence. Id . However, Ohio’s Public Records Act “is construed liberally in favor of broad 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). {¶ 12} In his merit brief, McDougald makes three points. First, he ar gues that the requested documents are subject to inspection under R. C. 149.43. Second, he argues that Sehlmeyer may not condition his right to inspect the records on the prepayment of any fee. And third, he argues that his status as an incarcerated person does not restrict his rights under R.C. 149.43. {¶ 13} In response, Sehlmeyer does not dispute that the requested documents are public records. But she does deny conditioning McDougald’s right to inspect the records on the payment of a fee. According to S ehlmeyer, she would have been justified in denying McDougald’s request to inspect t he records outright. Instead, she “offered an appropriate alternative to give [McDou gald] copies of the documents at an app ropriate cost.”January Term, 2020

5 {¶ 14} “ ‘[T]he right of inspection, as opposed to the right to reques t copies, is not conditioned on the payment of any fee under R.C. 149.43. ’ ” State ex rel. Penland v. Ohio Dept. of Rehab. & Corr. , 158 Ohio St.3d 15, 2019-Ohio-4130, 139 N.E.3d 862, ¶ 12, quoting State ex rel. Warren Newspapers, Inc. v. Hutson , 70 Ohio St.3d 619, 624, 640 N.E.2d 174 (1994). However, the duty to al low inspection of public records “is not absolute.” State ex rel. Nelson v. Fuerst , 66 Ohio St.3d 47, 48, 607 N.E.2d 836 (1993). For example, permitting an inmate t o personally inspect records is not required when doing so would create secu rity issues, unreasonably interfere with the officials’ discharge of their d uties, and violate prison rules. State ex rel. Dehler v. Mohr , 129 Ohio St.3d 37, 2011-Ohio-959, 950 N.E.2d 156, ¶ 2. Sehlmeyer suggests that that rationale for no t permitting personal inspection of the records applies here because McDougald is an inmate in a maximum-security prison. {¶ 15} “ ‘With respect to penal institutions, prison administrators mu st be accorded deference in adopting * * * policies and practices to preserve internal order and to maintain institutional security.’ ” (Ellipsis in Dehler .) Id ., quoting Briscoe v. Ohio Dept. of Rehab. & Corr. , 10th Dist. Franklin No. 02AP-1109, 2003- Ohio-3533, ¶ 16. McDougald has not identified any instance in which a court has overruled the decision of prison officials and ordered them to permit an inmate to inspect records personally . Indeed, precluding maximum-security inmates from conducting in-person inspections o f prison records will very of ten be sensible. There is no justification for granting a writ of mandamus to co mpel Sehlmeyer to allow an in-person inspection, especially when, as here, the in stitution has offered to make the records available by other means. {¶ 16} We deny the request for a writ of mandamus. C. Statutory damages {¶ 17} In his merit brief, McDougald dem ands an award of statutory damages in the amount of $1,000. A person requesting public re cords is entitled toS UPREME C OURT OF O HIO

6 an award of statutory damages “if a court determines that the p ublic office or the person responsible for [the] pub lic records failed to comply wi th an obligation in accordance with division (B) of this section.” R.C. 149.43(C)( 2). However, a requester will qualify for statutory damages only if he “transm its a written request [for the public records] by hand delivery, electronic submissio n, or certified mail * * * to the public office or person responsible for the reques ted public records.”

Id . The party seeking statutory damages must prove the method of delivery by clear and convincing evidence. State ex rel. Martin v. Greene , 156 Ohio St.3d 482, 2019- Ohio-1827, 129 N.E.3d 419, ¶ 9. McDougald delivered his public -records request through the prison kite system. We have recently held that a p rison kite is not one of the delivery methods iden tified in R.C. 149.43(C)(2), and de livering a request by this method therefore does not allow a requester to ask for statutory damages. State ex rel. McDougald v. Greene , __ Ohio St.3d __, 2020-Ohio-3686, __ N.E.3d __, ¶ 15-18. We deny the request for statutory damages.

D. Court costs {¶ 18} In his complaint, McDougald requests an award of court costs. R.C. 149.43(C)(3)(a)(i) authorizes a court to award court costs when it has granted

a writ of mandamus. Alternativ ely, R.C. 149.43(C)(3)(a)(ii) al lows a court to award court costs when an official provides records for the first tim e after a complaint for

a writ of mandamus is filed but before the court issues a writ and the court

determines that the official acted in bad faith. Neither situa tion is applicable to the present set of facts, and we the refore deny McDougald’s request for an award of

court costs.

III. Conclusion {¶ 19} For the reasons stated, we deny the motion for mediation and de ny the requests for a writ of manda mus, for statutory damages, and for court costs.

Writ denied.

O’C ONNOR , C.J., and F ISCHER , D E W INE , and D ONNELLY , JJ., concur.January Term, 2020

7 S TEWART , J., concurs in judgment only and would find that a one-week response time does not constitute a n unreasonable delay and wou ld therefore deny statutory damages.

F RENCH , J., concurs in part and disse nts in part, with an opinion.

K ENNEDY , J., dissents, with an opinion.

_________________ F RENCH , J., concurring in part a nd dissenting in part. {¶ 20} I agree with the dissenting opi nion’s conclusion that relator, Jerone McDougald, is entitled to inspect the requested records because respondent, Sonrisa Sehlmeyer, failed to support the denial of McDougald’s request with any reasoning or evidence. But I agree with the majority’s decision to deny McDougald’s request for statutory damages because we have concluded that delivery o f a public-records request by a prison’s kite system does not satisfy any of the d elivery requirements in R.C. 149.43(C)(2). State ex rel. McDougald v. Greene , __ Ohio St.3d __, 2020- Ohio-3686, __ N.E.3d __, ¶ 15-18. I therefore concur in part a nd dissent in part.

_________________ K

ENNEDY , J., dissenting. {¶ 21} I dissent because I must. Sonr isa Sehlmeyer, the warden’s

administrative assistant at the Toledo Correctional Institution (“TCI”), may well have had good reasons for refusing to allow relator, Jerone McD ougald, to review in person the records he sought to inspect. But because she fa iled to provide any reasoning to McDougald or this court regarding her refusal, I w ould grant a writ of mandamus and order Sehlmeyer to allow McDougald to inspect the records at issue in this case. I would also award McDougald $1,000 in statutory damages. Factual and procedural background {¶ 22} McDougald, who is incarcerated at TCI, submitted a public-recor ds request to Sehlmeyer on August 13, 2019, asking to inspect spec ific records. Sehlmeyer responded on August 20, 2019. But Sehlmeyer’s respon se ignoredS UPREME C OURT OF O HIO

8 McDougald’s actual request—instead of addressing his desire to inspect the records, she responded as though he had sought copies of the records. She wrote, “The total for this request would be $1.80. Please send a cash slip for these records.” On that same day, M cDougald submitted another public -records request that was identical to his first one. Sehlmeyer never respondedto that second publicrecords request. Sehlmeyer does not suggest that her response to McDougald was anything other than a denial o f his request to inspect the reco rds. That denial is at

the heart of this case. {¶ 23} On September 3, 2019, McDougald filed a complaint for a writ of mandamus in this court asking tha t we order Sehlmeyer to allow him to inspect the records. Sehlmeyer filed a motion to dismiss. This court deni ed that motion, issued an alternative writ, and set a schedule for the parties to file briefs and submit

evidence in accordance with S.Ct.Prac.R. 12.05. 157 Ohio St.3d 1516, 2019-Ohio5289, 136 N.E.3d 517. {¶ 24} In Sehlmeyer’s affidavit, which was filed as evidence in this c ase, she states that she sent a response to McDougald’s first public -records request setting forth the price for the copies of the requested documen ts. She does not state that she denied McDougald’s request to inspect the records for security reasons.

She does state in her affidavit that she considers the followin g factors when responding to public-records reque sts for the inspection of rec ords:

While evaluating inmate record requests for inspection versus copies, I consider, among other factors, the inmate’s se curity classification, housing assignment , and relevant rule violation s committed by the inmate which would pertain to their ability to view the documents requested. Regardless, to aid their public recor ds requests, we nevertheless permit inmates to obtain copies of th ese documents of which they seek for inspection.January Term, 2020

9 {¶ 25} But Sehlmeyer does not state that she considered those factors before she denied McDougald’s request to inspect certain documents. S he does not mention McDougald’s security c lassification, housing assignment , or any rule violations that may have prevented him from having access to th e records. Nor does she indicate that her response was simply a misunderstandi ng, that she thought McDougald was asking for copies of records rather than to inspe ct the actual records. Therefore, her affida vit confirms that she purposeful ly denied McDougald access to the records without stating a reason.

Limiting an incarcerated individual’s ab ility to inspect an institution’s records {¶ 26} In other cases involving the denia l of an inmate’s request to i nspect a prison’s records, “the prison officials submitted evidence th at granting that request might have unreasonably interfered with the discharge o f their duties.” State ex rel. Dehler v. Spatny , 127 Ohio St.3d 312, 2010-Ohio-5711, 939 N.E.2d 831, ¶ 5. The majority cites State ex rel. Dehler v. Mohr , 129 Ohio St.3d 37, 2011- Ohio-959, 950 N.E.2d 156, ¶ 2, as support for the statement tha t “permitting an inmate to personally inspect rec ords is not required when doing so would create security issues, unreasonably interfere with the officials’ dis charge of their duties, and violate prison rules.” Majority opinion at ¶ 14. In Mohr , this court affirmed a court of appeals’ opinion that contained specific findings rega rding an inmate’s request to review a prison’s purchase orders for peanut butter. The court of appeals

stated:

Apparently, some records about peanut butter purchases for TCI do exist, but the practical aspects of providing such recor ds to Dehler made the provision of the records challenging at best. With

Dehler’s transfer to Mansfield Correctional Institution, provid ingS UPREME C OURT OF O HIO

10 the records has transitioned from challenging at best to close to impossible. While Dehler was housed at TCI, the institution could only provide the records requested by duplicating a large number of documents or by providing Dehler extended access to the origina l documents. The staffing levels a t TCI were such that the warde n there could not assign a correctional officer to full-time duty of watching over Dehler’s shoulder while Dehler waded through all the purchase orders regarding food for TCI to find the orders regar ding peanut butter purchases. The cost of duplicating such a huge number of food purchase documents was prohibitive. Further, Dehler and all other inmates are only allowed to store a very limited number of items in their cells. TCI, with the overcrowding of inmates in Ohio being what it is, could not set aside a separate room or rooms to hous e the duplicated documents unti l Dehler could make a complete review.

State ex rel. Dehler v. Collins , 10th Dist. Franklin No. 09AP-703, 2010-Ohio-5436, ¶ 10-13. Sehlmeyer provides no reas on to limit McDougald’s access

to the records in this case {¶ 27} In contrast, in this case, Sehlmeyer offers no evidence that McDougald’s request was too difficult for TCI to respond to, or that allowing him to inspect the records caused a specific threat based upon his record in the institution. She determined that the records McDougald sought totaled only 36 pages, and she submitted no evidence of how allowing McDougald to view thatJanuary Term, 2020

11 many pages in his cell or elsewhere would overly burden the ins titution. She merely denied McDougald’s reque st without any explanation. {¶ 28} Pursuant to R.C. 149.43(B)(3), when a public office denies a pu blicrecords request in part or in whole, “the public office or the person responsible for the requested public record sha ll provide the requester with an explanation, including legal authority, setting forth why the request was de nied.” If a mandamus action is filed against the public office, the public office ma y rely on additional reasons or legal authority in defending the action. Id . Sehlmeyer, however, has offered no specific reason for he r denial of McDougald’s reques t. If anything, setting forth the list of facto rs she should consider when resp onding to an inmate’s public-records request without a discussion of their relevance in this case is an admission that she failed to appl y them to McDougald’s request. Sehlmeyer has

not asserted that she denied McD ougald’s public-records request because of security concerns. Accordingly, this court should grant McDoug ald a writ of

mandamus and order Seh lmeyer to allow him to inspect the 36 pag es of records he requested access to. Statutory damages {¶ 29} The majority opinion denies McDougald’s request for statutory damages. I would hold that McDougald meets the statutory crite ria for an award of statutory damages. To be eligible for such an award, the re quester must transmit the public-records request by “hand delivery, electronic submis sion, or certified mail.” R.C. 149.43(C)(2). 2 “Hand delivery” is not define d in the statute. There is no dispute in this case that McDougald made his public-records request through the prison’s “kite” system. “A ‘kite’ is written by an inmate to a member of the prison

2. Public-records requests are governed by the version of R.C. 149.43 that was in effect at the time that the request was made. State ex rel. Cordell v. Paden , 156 Ohio St.3d 394, 2019-Ohio-1216, 128 N.E.3d 179, ¶ 11. The version of the Public Records Act th at governs McDougald’s requests, R.C. 149.43 as amended by 2018 Sub.H.B. No. 425, took effect in April 2019.S UPREME C OURT OF O HIO

12 staff and is ‘a means for inmates to contact staff members insi de [an] institution.’ ”

State ex rel. Martin v. Greene , 156 Ohio St.3d 482, 2019-Ohio-1827, 129 N.E.3d 419, ¶ 3, fn. 1, quoting State v. Elmore , 5th Dist. Richland No. 16CA52, 2017- Ohio-1472, ¶ 15. Because I would hol d that a public-records re quest made by kite constitutes hand delivery, I would hold that McDougald is eligi ble to receive statutory damages. See State ex rel. McDougald v. Greene , ___ Ohio St.3d. ___, 2020-Ohio-3686, ___ N.E.3d ___, ¶ 60 (Kennedy, J., dissenting). {¶ 30} Pursuant to R.C. 149.43(C)(2), a person who makes a public-reco rds request “shall be entitled to r ecover * * * 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” R.C. 149.43(B) . R.C. 149.43(B)(1) states that “all public records responsive to the request shall be promptly prepared and made availa ble for inspection to any pers on at all reasonable times during regular business hours.” And when a public office denies a publicrecords request, it must inform the requester of that denial an d provide the reasons for the denial. R.C. 149.43(B)(1) and (3); see also State ex rel. Cordell v. Paden , 156 Ohio St.3d 394, 2019-Ohio-1216, 128 N.E.3d 179, ¶ 11. {¶ 31} In Cordell , this court noted that even when a public office has no responsive records to produce, its failure to respond in a time ly manner makes it liable for statutory damages. Whether the public office compli ed with its statutory duty to respond within a reasonable period of time “ ‘depends u pon all of the pertinent facts and circumstances.’ ” Id . at ¶ 12, quoting State ex rel. Morgan v.

Strickland , 121 Ohio St.3d 600, 2009-Ohio-1901, 906 N.E.2d 1105, ¶ 10. T he requester “bears the burden of demonstrating that the [public o ffice’s] response to [the] public-records requests was unreasonably delayed.” Id. , citing State ex rel. Dispatch Printing Co. v. Johnson , 106 Ohio St.3d 160, 2005-Ohio-4384, 833 N.E.2d 274, ¶ 44.January Term, 2020

13 {¶ 32} McDougald has proved that Sehlmeyer’s response to his publicrecords request in this case was unreasonably delayed. McDouga ld submitted his public-records request on August 13, 2019, and he has yet to le arn from Sehlmeyer why he was denied the ability to inspect the records. {¶ 33} Statutory damages are calculate d at the rate of $100 “for each business day during which the public office or person responsib le for the requested public records failed” to comply with an obligation under R.C. 149.43(B), starting from the date on which the requester filed a complaint for a wr it of mandamus, with a maximum award of $1,000. R.C. 149.43(C)(2). {¶ 34} A court may reduce or decline to award statutory damages if it finds that based on the law that existed at the time of the alleged c onduct that allegedly constitutes a failure to comply with R.C. 149.43, “a well-infor med public office * * * reasonably would believe t hat the conduct * * * did not c onstitute a failure to comply * * * with [R.C. 149.43(B)], R.C. 149.43(C)(2)(a), and that “a wellinformed public office * * * reas onably would believe that the conduct * * * of the public office * * * would serve the public policy that underlie s the authority that is asserted as permitting that conduc t or threatened conduct,” R.C . 149.43(C)(2)(b).

Neither of those factors are re levant in this case. Without an y knowledge of Sehlmeyer’s reasons for denying McDougald access to the records , we cannot know whether she legitimately wit hheld access from McDougald. McDougald sought to personally inspect various public records, and Sehlme yer’s reply setting forth the cost of copies charg es was nonresponsive to that requ est. A well-informed public office would not reasonably believe that a denial of a p ublic-records request without an explanation of the denial would not constitute a fai lure to comply with R.C. 149.43(B). Therefore, given that the above factors do not apply here and that more than ten business days have passed since McDougald filed h is complaint, I would award McDougald $1,000 i n statutory damages.S UPREME C OURT OF O HIO

14 The potential impact of this case is far-reaching {¶ 35} Sehlmeyer gives the majority so little to work with here that i ts holding is based on a series of a ttempted justifications rather than on the plain language of R.C. 149.43 and the caselaw associated with R.C. 14 9.43. First, the majority faults McDougald for not identifying “any instance in which a court has overruled the decision of prison officials and ordered them to permit an inmate to inspect records personally .” (Emphasis sic.) Majority opinion at ¶ 15. This is a peculiar approach. There is a dearth of cases involving prison officials’ denials of requests from incarcerated indivi duals for in-person inspection of public records. But in an underdeveloped area of the law, the majority decides that because this court has never overruled a prison official’s decision, we do n ot need to look into the particular facts of this case. The majority implies that because in cases such as State ex rel. Dehler v. Spatny, 127 Ohio St.3d 312, 2010-Ohio-5711, 939 N.E.2d 831, ¶ 5, and State ex rel. Dehler v. Mohr, 129 Ohio St.3d 37, 2011-Ohio-959, 950 N.E.2d 156, ¶ 2, the prison officials presented reasoning to su pport their decisions not to allow access, Sehlmeyer is absolved of producing similar evidence to support her decision not to allow access in this case. Under the major ity’s reasoning, there

will never be an instance in which an incarcerated individual w ill be able to overcome a public office’s decision to deny him the ability to inspect a public record because, after all, it’s never been done before. {¶ 36} Second, the majority makes the broad statement that “precluding maximum-security inmates from conducting in-person inspections of prison records will very oft en be sensible.” Majority opinion at ¶ 15 . But being sensible in the abstract is not enough. Sehlmeyer has done nothing to i nform this court that her denial of McDougald’s insp ection request was necessary in this case. The majority’s statement creates a presumption that a blanket refus al of any request from an individual who is incarcerated in a maximum-security fa cility to inspect a public record in person meets the requirements of R.C. 149.43. Does thisJanuary Term, 2020

15 presumption apply to reports doc umenting the excessive use of f orce against

incarcerated individuals—is it sensible that an incarcerated in dividual may access such a report only if he is not classified as a maximum-securit y risk or he has enough money in his inmate account to purchase a copy? Does po verty become an automatic bar to a maximum-security inmate’s ability to review public records? If a maximum-security inmate has no money, is it sensible that he cannot review his records documenting incidents involving an excessive use of for ce against him? Or must the institution prove that its denial of an inmate’s reque st to inspect a record was appropriate because a grant o f the request would actually h ave unreasonably interfered with the discharge of the duties of the institution, as this court stated in Spatny , 127 Ohio St.3d 312, 2010-Ohio-5711, 939 N.E.2d 831, at ¶ 5? {¶ 37} Finally, the majority says that “[t]here is no justification fo r granting a writ of mandamus to compel Sehlmeyer to allow an in-person in spection, especially when, as here, the institution has offered to make t he records available by other means.” Majority opinion at ¶ 15. The justification is in R.C. 149.43(B)(1), which allows a requester to inspect a public reco rd in person, and requires a public office to fac ilitate such a request: “Upon re quest and subject to division (B)(8) of this section, all public records responsive to the request shall be promptly prepared and made availa ble for inspection to any pers on at all reasonable times during regular business hours.” R.C. 149.43(B)(2) also j ustifies McDougald’s request to conduct an in-person inspection of the r ecords: “To

facilitate broader access to public records, a public office or the person responsible for public records shall organi ze and maintain public records i n a manner that they can be made available for inspection or copying in accordance w ith division (B) of this section.” R.C. 149.43 does not provide a choice to a publ ic office regarding how it responds to a request to inspect records; it provides on ly a duty to perform. But the majority holds that if a public office can make the rec ords available to the requester by providing copies, it does not have to allow the re quester to personallyS UPREME C OURT OF O HIO

16 inspect those records. The majority’s reasoning is certainly n ovel: it posits that if a public office can charge a citizen for copies of records, why should that citizen get to inspect those records in person for free? The majority sets a new statutory course, but it is not its course to set. {¶ 38} To sum up, in attempting to justify its result, the majority su ggests that there will never be a “first” case in which a prison offic ial’s decision to

withhold an incarcerated indivi dual’s access to records would v iolate R.C. 149.43. The majority further creates a presumption against allowing an individual who is incarcerated at a maximum-security institution to access public records in person. And finally, the majority gives a public office the choice of w hether to allow a requester to conduct an in-pers on inspection of a public record or to instead charge the requester for a copy of the r ecord. It is unfortunate that the majority goes to these lengths to keep McDougald from accessing the public recor ds he seeks to inspect in this case. As a result, records of consequence will be unavailable to other

incarcerated individuals in the future. Questioning the precedent {¶ 39} The idea that a public office may reject a public-records reque st if its production might “unreasonably interfere with the discharge of the duties of the officer having custody” of the records is from State ex rel. Patterson v. Ayers , 171 Ohio St. 369, 171 N.E.2d 508 (1960), paragraph one of the sylla bus, a case interpreting the common law regar ding access to public records before the passage of Ohio’s Public Records Act, R.C. 149.43. Our duty is to cons true R.C. 149.43, and there is no provision in the statute that says a public rec ord need not be produced if producing the recor d will inconvenience the public office. {¶ 40} R.C. 149.43(B)(1) provides that “[u]pon request 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 any person at all reasonable times during regular business hour s.” (Emphasis added.) R.C. 149.43(B)(8)January Term, 2020

17 recognizes that an incarcerated person may “inspect or * * * ob tain a copy of” a public record as long as it doe s not involve a criminal investi gation or prosecution. However, the incarcerated person may inspect a public record in volving a criminal investigation or prosecution if “the judge who * * * made the a djudication with respect to the person * * * finds that the information sought i n the public record is necessary to support what appears to be a justiciable claim of the person.” Id

. {¶ 41} According to R.C. 149.43, an inmate who makes a public-records request and is not seeking a criminal file is included within “ any person” whose public-records request seeking an inspection of public records must be honored at a reasonable time during regular business hours. Pursuant to a Department of Rehabilitation and Correction (“DRC”) policy, “[p]ublic records are to be available for inspection Monday through Friday between 8:00 a.m. and 5:00 p.m. with the exception of published holidays. Public records must be made a vailable for inspection promptly.” DRC Policy 07-ORD-02, at 3, https://www. drc.ohio.gov/

Portals/0/Policies/DRC%20Po licies/07-ORD-02.pdf ?ver=2016-09-01- 142045- 303 (accessed June 29, 2020) [https://perma.cc/3432-ZRXB].

Conclusion {¶ 42} Today, the majority unnecessarily strikes a major blow against incarcerated individuals’ rights to inspect public records and creates another collateral consequence to being an incarcerated individual. At its core, the majority opinion holds that a prison official’s denial of an incarcerate d individual’s publicrecords request is reasonable whe n that incarcerated individual is categorized as a maximum-level security risk. {¶ 43} Sehlmeyer provided no reason for denying McDougald’s request to inspect the records he asked to have access to. Although in he r affidavit that she submitted to this court as evidence she speaks broadly of the f actors she might consider in deciding whether to grant an incarcerated individua l’s request for access to public records, she did not apply any of those factors to Mc Dougald’s request.S UPREME C OURT OF O HIO

18 Rather, this case simply involves a public office denying a pub lic-records request without an explanati on for that denial i n violation of R.C. 149 .43(B)(3). {¶ 44} I dissent and would order Sehlmeyer to allow McDougald to inspe ct the records. I would also award McDougald statutory damages in the amount of $1,000.

_________________ Jerone McDougald, pro se. Dave Yost, Attorney General, and Zachary M. Holscher, Assistant Attorney General, for respondent.

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