[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State 

ex rel. Ware v. Crawford, Slip Opinion No. 2022-Ohio-295.]

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. 2022-OHIO-295

THE STATE EX REL. WARE v. CRAWFORD.

[Until this opinion appears in the Ohio Official Reports advance sheets, it 

may be cited as State ex rel. Ware v. Crawford, Slip Opinion No. 

2022-Ohio-295.]

Mandamus—Public Records Act—Statutory damages—Writ granted in part and 

denied in part.

(No. 2020-1498—Submitted July 13, 2021—Decided February 8, 2022.)

IN MANDAMUS.

__________________

Per Curiam Opinion announcing the judgment of the court.

{¶ 1} Relator, Kimani Ware, is an inmate at the Trumbull Correctional 

Institution (“TCI”). Ware seeks a writ of mandamus ordering respondent, Donna 

Crawford, an inspector with the prison’s office of institutional services, to produce 

public records that he requested on April 6 and April 29, 2020. Ware also seeks 

statutory damages under R.C. 149.43(C) for Crawford’s alleged failure to produce 

those records.
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{¶ 2} For the reasons below, we grant some, but not all, of Ware’s requested 

relief. We grant a writ of mandamus as to Ware’s April 6 public-records request, 

deny the writ as to the April 29 request, and award Ware $1,000 in statutory 

damages.

I. Background

{¶ 3} On April 6, 2020, Ware transmitted a public-records request to 

Crawford via the prison’s “JPay” electronic-kite-communication system. Crawford 

is the prison’s custodian of inmate-grievance records. Ware requested copies of 

four informal complaints identified as TCI0220000336, TCI03320000416, 

TCI030000844, and TCI0320001136. Crawford responded to Ware by electronic 

kite two days later, stating: “Your copies were placed in the institution mail today 

4/8/2020. There is no TCI0320001136.”

{¶ 4} On April 9, Ware sent another message to Crawford via electronic 

kite, which stated: “I need a copy of ICR#TCI0320001136 which was filed on 

3/13/20.” Ware’s message did not state whether he had received copies of the other 

documents he had requested on April 6. Crawford responded the same day, stating 

that she would print a copy of the requested document. (The record does not 

indicate why Crawford was able to locate the requested document that she

previously told Ware did not exist.) On April 11, Ware sent an electronic kite to 

Crawford, claiming he still had not received copies of the documents that Crawford 

purportedly mailed to him on April 8. On April 22, Crawford responded that she 

had sent the copies twice and that Ware should have received them.

{¶ 5} Ware claims that he sent three more public-records requests to 

Crawford on April 29, 2020, this time by certified mail. According to evidence 

presented by Ware, “Request I” sought copies of four informal complaints, two of 

which (TCI03320000416 and TCI0320001136) he had also asked for in the April 

6 request; “Request II” asked for copies of nine kites; and “Request III” sought a 

copy of an April 9, 2019 email related to the prison’s handling of “legal mail” and 
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3

copies of emails between Crawford and the prison cashier’s office from March 21 

through March 30, 2020, and from April 6 through April 29, 2020.

{¶ 6} Ware acknowledges that Crawford sent him copies of the informal 

complaints referred to in Request I. But Ware alleges that he has not received any 

of the documents identified in Request II or Request III. He also contends that 

Crawford still has not provided all of the documents identified in his April 6 publicrecords request.

{¶ 7} Ware commenced this action on December 10, 2020, seeking a writ 

of mandamus compelling Crawford to produce the requested records and an award 

of statutory damages under R.C. 149.43(C)(2). We granted an alternative writ and 

set a schedule for the presentation of evidence and briefs on the merits. 161 Ohio 

St.3d 1477, 2021-Ohio-801, 164 N.E.3d 485.

II. Ware’s Motions

{¶ 8} After Crawford filed her evidence, Ware filed a motion for leave to 

file additional evidence. And after Crawford filed her merit brief, Ware filed a

motion for judicial notice. Crawford has not responded to Ware’s motions.

{¶ 9} Ware did not submit the proposed evidence that he wants this court to 

consider with his motion for leave to file additional evidence. However, Ware’s 

“motion for judicial notice” includes additional evidence that Ware contends 

contradicts Crawford’s evidence, and he asks this court to “take judicial notice of 

the facts in the attached evidence.” In essence, the evidence that Ware submitted 

with his motion for judicial notice constitutes rebuttal evidence that he wants us to 

consider in this mandamus action.

{¶ 10} It is appropriate to seek leave of court to submit rebuttal evidence 

after the deadline for submitting evidence in an original action. See State ex rel. 

Gil-Llamas v. Hardin, 164 Ohio St.3d 364, 2021-Ohio-1508, 172 N.E.3d 998, ¶ 14 

(striking rebuttal evidence filed in a mandamus action because “relators failed to 

seek leave of this court to file the supplemental evidence”). We therefore grant the 
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motion for leave to file additional evidence and accept as evidence the documents 

attached to Ware’s motion for judicial notice.

{¶ 11} However, we deny the motion for judicial notice. Ware is asking us 

to take judicial notice of the facts contained in his rebuttal evidence. But judicial 

notice applies only to facts that are not subject to reasonable dispute. Evid.R. 201. 

Ware is asking us to take judicial notice of disputed facts and legal conclusions, 

which is improper. See, e.g., State ex rel. Harris v. Turner, 160 Ohio St.3d 506, 

2020-Ohio-2901, 159 N.E.3d 1121, ¶ 17.

III. Analysis

{¶ 12} Mandamus is the appropriate remedy to compel compliance with the 

Public Records Act. R.C. 149.43(C)(1)(b). To be entitled to a writ of mandamus, 

Ware must demonstrate by clear and convincing evidence that he has a clear legal 

right to the requested relief and that Crawford has a clear legal duty to provide it. 

State ex rel. Cincinnati Enquirer v. Sage, 142 Ohio St.3d 392, 2015-Ohio-974, 31 

N.E.3d 616, ¶ 10. We construe the Public Records Act liberally in favor of broad 

access, with any doubt 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).

A. The April 6 Request

{¶ 13} Crawford does not dispute that the records Ware requested on April 

6, 2020, are public records subject to disclosure under R.C. 149.43. There is a 

factual dispute, however, regarding whether Crawford has already provided the 

records that Ware requested. Crawford contends that she provided the documents; 

Ware says she did not. Crawford argues that this factual dispute must be resolved 

against Ware because he has failed to prove by clear and convincing evidence that 

she did not send the requested records.

{¶ 14} Ware bears the burden to plead and prove facts showing that he 

requested a public record pursuant to R.C. 149.43(B)(1) and that Crawford did not 
January Term, 2022

5

make the record available. See Welsh-Huggins v. Jefferson Cty. Prosecutor’s 

Office, 163 Ohio St.3d 337, 2020-Ohio-5371, 170 N.E.3d 768, ¶ 26. Ware also 

bears the burden of persuasion to show entitlement to a writ of mandamus by clear 

and convincing evidence. Id. “Clear and convincing evidence” is a measure or 

degree of proof that is more than a preponderance of evidence, but it does not extend

the degree of certainty beyond a reasonable doubt as required in a criminal case; 

clear and convincing evidence produces in the trier of fact’s mind a firm belief of

the fact sought to be established. State ex rel. Miller v. Ohio State Hwy. Patrol, 

136 Ohio St.3d 350, 2013-Ohio-3720, 995 N.E.2d 1175, ¶ 14.

{¶ 15} There is no dispute that Ware requested public records in his April 

6, 2020 electronic kite to Crawford. But Crawford contends that Ware has not 

proved by clear and convincing evidence that she did not send the records to him

through the institutional mail as she claims to have done. To adopt Crawford’s 

position would require Ware to prove a negative. Crawford is in the better position 

to affirmatively show that she did, in fact, copy and transmit the records to Ware. 

For similar reasons, this court places the burden on the public office or records 

custodian to plead and prove facts showing the applicability of an exception under 

the Public Records Act. Welsh-Huggins at ¶ 27-28. Just as the custodian is in a 

better position than the requester to know the contents of a record and whether it 

fits within an exception, State ex rel. Natl. Broadcasting Co., Inc. v. Cleveland, 38 

Ohio St.3d 79, 83, 526 N.E.2d 786 (1988), so too is the custodian in the superior 

position to demonstrate compliance with the obligation to provide copies of public 

records, see 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, ¶ 33. In this case, Crawford presents 

no evidence to corroborate her assertion that she mailed the documents that Ware 
SUPREME COURT OF OHIO

6

requested, nor has she submitted copies of the documents that she claims to have 

sent to Ware in response to his April 6 request.

1

{¶ 16} Crawford also argues that Ware cannot meet his burden of 

persuasion, because he “acknowledged receipt of certain records” that she sent on 

April 8, 2020. This argument is unavailing because Crawford mischaracterizes 

what Ware said. In response to Ware’s April 6 request, in which Ware sought 

records of four informal complaints, Crawford stated that she placed three of the 

requested records in the institution mail on April 8, 2020. In response, Ware sent 

a follow-up communication to Crawford stating: “I need a copy of 

ICR#TCI0320001136 which was filed on 3/13/20.” Ware’s statement is not fairly 

characterized as acknowledging receipt of the other records that he had requested

on April 6. Ware is repeating his request for informal complaint TCI0320001136 

and providing additional detail in the form of the record’s filing date (which he had 

not provided in the original request), and nothing more. Crawford was able to 

locate TCI0320001136 after receiving the follow-up request, and she provided 

Ware with a copy of that document in May 2020.

{¶ 17} Of the four records sought by Ware in his April 6 request, the record 

before us shows that Crawford eventually provided two of them—the informal 

complaints identified as TCI03320000416 and TCI0320001136—after Ware asked 

for them again in his April 29 request. But the evidence does not show that 

Crawford has provided the other records that Ware identified in his April 6 request. 

We therefore grant a writ of mandamus as to the public-records request of April 6, 

2020, and order Crawford to provide copies of the informal complaints identified 

as TCI0220000336 and TCI030000844.

1. Crawford avers in an affidavit: “I have retained the original printouts of the records requested by 

[Ware], which displays the date printed, that is the [ap]proximate date the copies were sent to 

[Ware].” Crawford did not, however, submit those documents as corroborating evidence. In 

contrast, Crawford submitted copies of the documents that she sent to Ware in response to his April 

29, 2020 request.
January Term, 2022

7

B. The April 29 Request

{¶ 18} There is also a factual dispute about whether Crawford responded 

fully to Ware’s public-records request dated April 29, 2020. Ware contends that he 

sent three public-records requests to Crawford by certified mail on April 29, 

requesting copies of four informal complaints (Request I), various kites (Request 

II), and several emails (Request III). Ware has submitted a copy of his April 29 

requests—a two-page document with a handwritten, certified-mail tracking number 

at the bottom of each page. Crawford, however, disputes that the public-records 

requests that Ware has submitted as evidence are the actual requests that he sent to 

her.

{¶ 19} According to Crawford, she received only a one-page request 

seeking copies of informal complaints identified as TCI119000458, 

TCI03320000416, TCI0320001136, and TCI0420000107 (i.e., Ware’s “Request I” 

above). Moreover, unlike the request that Ware submitted as evidence, Crawford’s 

copy does not show a certified-mail tracking number. Crawford contends that the 

requests identified as “Request II” and “Request III” in Ware’s evidence were not 

part of the certified-mail request she had received from Ware. Crawford further 

contends that she responded fully to the only April 29 request she had received 

from Ware by sending copies of the four requested records.

{¶ 20} As further corroboration for her testimony, Crawford submits the 

affidavit of Frank Cimmento Jr., a mail-room employee at TCI. Cimmento’s 

affidavit summarizes the procedure followed when an inmate requests that an item 

be sent by certified mail. Cimmento testified that on receiving a sealed, addressed 

item from an inmate to be sent by certified mail, the mail-room staff first obtains

approval for the cost of the postage from the inmate’s institution account through 

the TCI cashier’s office. Once sufficient funds are obtained from the inmate’s 

account, mail-room staff prepares the item to be sent via certified mail, which 

includes placing the tracking number on the outside of the sealed item. The 
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inference that follows is that the public-records requests that Ware submitted as

evidence cannot be copies of the requests that were sent to Crawford on April 29,

because Ware could not have known the certified-mail tracking number when he 

wrote his request and submitted it to the TCI mail room to be posted.

{¶ 21} Ware’s rebuttal evidence challenges certain aspects of Cimmento’s 

summary of the certified-mail process at the prison. Ware also submitted copies of 

certified-mail receipts, cash-withdrawal slips, and the envelope in which he sent his 

public-records requests to show his knowledge of the certified-mail tracking 

number. But Ware does not rebut Cimmento’s key point that the certified-mail 

tracking number is unknown to the inmate until after the envelope containing the 

mailed items is sealed. Ware does not explain how he could have written the 

certified-mail tracking number on his April 29 public-records requests when the 

requests would have been sealed in an envelope before the number was assigned.

{¶ 22} Thus, Ware has not proved by clear and convincing evidence that he 

sent the public-records requests identified above as Request II and Request III. And 

as to Request I, Ware admits that Crawford has provided copies of the records

sought in that request. We therefore deny the writ as to the April 29, 2020 publicrecords request.

C. Statutory Damages

{¶ 23} Ware seeks statutory damages for Crawford’s failure to comply with 

the Public Records Act. R.C. 149.43(C)(2) allows a relator to recover $100 for 

each business day during which a respondent failed to comply with the publicrecords law, beginning on the date of commencement of the public-records action, 

up to a maximum of $1,000.

{¶ 24} Because Ware has established a violation of the Public Records Act 

with regard to his April 6, 2020 request, he is eligible to recover statutory damages. 

Ware transmitted his request by electronic kite sent through the prison’s “JPay” 

system. This method of delivery qualifies him to recover statutory damages. See 
January Term, 2022

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State ex rel. Griffin v. Sehlmeyer, __ Ohio St.3d __, 2021-Ohio-1419, __ N.E.3d 

__, ¶ 21 (holding that the “JPay” kite system constitutes electronic delivery that 

satisfies R.C. 149.43(C)(2)).

{¶ 25} Crawford does not argue that the facts presented here justify a 

decision to reduce or to not award statutory damages. E.g., State ex rel. DiFranco 

v. S. Euclid, 144 Ohio St.3d 565, 2015-Ohio-4914, 45 N.E.3d 981, ¶ 30 (awarding 

statutory damages when public office made no argument concerning the R.C. 

149.43(C)(2)(a) and (b) factors). Her only argument against an award of statutory 

damages is that she complied with her obligations under the Public Records Act by 

sending Ware copies of the records he had requested. As set forth above, however, 

the record does not establish that Crawford provided Ware with all of the records 

identified in his April 6 request. We therefore award Ware $1,000 in statutory 

damages.

IV. Conclusion

{¶ 26} For the foregoing reasons, we grant a writ of mandamus ordering 

Crawford to provide copies of the records requested in Ware’s April 6, 2020 publicrecords request that have not been produced to date, namely, the informal 

complaints identified as TCI0220000336 and TCI030000844. We also award Ware 

$1,000 in statutory damages under R.C. 149.43(C)(2) for Crawford’s failure to 

respond fully to the April 6 request. We deny the writ as to Ware’s April 29, 2020 

public-records requests.

Writ granted in part 

and denied in part.

O’CONNOR, C.J., and FISCHER and DONNELLY, JJ., concur.

BRUNNER, J., concurs in judgment only.

KENNEDY, J., dissents, with an opinion joined by STEWART, J.

DEWINE, J., dissents, with an opinion.

_________________
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KENNEDY, J., dissenting.

{¶ 27} I agree with granting of a writ of mandamus and awarding statutory 

damages in this case, but I would grant both for the records requests that relator, 

Kimani Ware, made on April 29, 2020, rather than for the request that he made on 

April 6, 2020. Therefore, I dissent.

The April 6, 2020 Request

{¶ 28} My approach to the April 6, 2020 public-records request differs from 

that of the other dissent. The court need not evaluate the affidavits of Ware and 

respondent, Donna Crawford, an inspector with the office of institutional services 

at Trumbull Correctional Institution (“TCI”), from the perspective of determining 

who is telling the truth and who is lying. Instead, they should be evaluated from 

the perspective that both Ware and Crawford are telling the truth. And that certainly 

is possible here. Crawford could have placed the requested records in the 

institutional-mail system and Ware may not have received them. The statements 

of both Ware and Crawford could be true.

{¶ 29} Crawford claims to have in her possession copies of the documents 

that she sent to Ware. She further claims that on those documents is the date she 

printed them and placed them in the institutional-mail system. Her failure to 

include those documents as part of the evidence in this case is not fatal to her 

position, because she has provided an unequivocal statement that she responded to 

the April 6, 2020 records request that Ware made through the prison’s electronickite system.

{¶ 30} Crawford does not state in her affidavit that she delivered the records 

to Ware, and there is no affidavit from anyone else claiming to have delivered the 

records to Ware. Crawford simply asserts that she placed the records in the 

institutional-mail system for delivery. She also indicates that institutional-mail 

deliveries to inmates are not logged. So, neither party has a mail log on which to 

rely to show what truly happened. The question presented here is whether 
January Term, 2022

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Crawford’s duty ended when she placed the requested documents in the 

institutional-mail system for delivery. Based on the plain language of the statute, 

it did.

{¶ 31} R.C. 149.43 states that all public records that are responsive to a 

requester’s demand shall be promptly prepared and made available for inspection. 

But not all records are inspected by the requester on-site where the records are kept. 

R.C. 149.43(B) addresses instances when the requester does not seek to review the 

records in person but asks for the public office to send the records to him. Pursuant 

to R.C. 149.43(B)(7)(a), “a public office or person responsible for public records 

shall transmit a copy of a public record to any person by United States mail or by 

any other means of delivery or transmission within a reasonable period of time after 

receiving the request for the copy.”

{¶ 32} In this case, Crawford had a duty to transmit the requested records 

to Ware. But the term “transmit” is not defined by the statute. “When a term is not 

defined in the statute, we give the term its plain and ordinary meaning.” Lingle v. 

State, 164 Ohio St.3d 340, 2020-Ohio-6788, 172 N.E.3d 977, ¶ 15. To “transmit” 

means “to cause to go or be conveyed to another person or place : SEND.” 

(Capitalization sic.) Webster’s Third New International Dictionary 2429 (1993).

{¶ 33} To cause something to go is not the same as to cause it to be received. 

As used by the General Assembly, the plain meaning of “transmit” does not require 

delivery—it means to cause something to go toward another person or destination, 

or to send. Therefore, the statute does not contemplate delivery by the public office 

or person responsible for the public record. And the remaining statutory language 

in the applicable sentence supports that meaning.

{¶ 34} R.C. 149.43(B)(7)(a) prescribes that the public office shall transmit 

the record “by United States mail or by any other means of delivery or 

transmission.” The statute recognizes that another entity may be responsible for 

the ultimate delivery of the requested records. The public office transmits the 
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record, and the United States Postal Service or another entity is responsible for 

delivering it. The public office’s duty is complete when it puts the record into the 

delivery stream. Crawford did that when she placed the documents in the 

institutional-mail system.

{¶ 35} To be entitled to a writ of mandamus, Ware must establish by clear 

and convincing evidence that Crawford failed to comply with R.C. 149.43(B)(7). 

See State ex rel. Doner v. Zody, 130 Ohio St.3d 446, 2011-Ohio-6117, 958 N.E.2d 

1235, paragraph three of the syllabus (“Relators in mandamus cases must prove 

their entitlement to the writ by clear and convincing evidence”). Ware is entitled 

to a writ of mandamus if Crawford did not copy and send the requested records to 

him. Ware does not have to have received the records for Crawford to have met 

her duty. Ware states in his affidavit that he did not receive the records that he 

requested on April 6, and that is some evidence that Crawford did not send them. 

But that evidence is overcome by Crawford’s affidavit, which strikes at the heart of 

the matter—she testifies that she sent the records. Since that is all she needs to have 

done, she did not fail to meet her duty under R.C. 149.43.

{¶ 36} As we wrote in State ex rel. Ellis v. Maple Hts. Police Dept., 158 

Ohio St.3d 25, 2019-Ohio-4137, 139 N.E.3d 873, ¶ 6, “Although it is possible that 

[the relator] has not received the documents, he has not contradicted the evidence 

showing that [the respondent] satisfied any duty it may have had by mailing him 

the responsive documents.” Ware has not contradicted Crawford’s evidence 

regarding her production of the records that he requested on April 6. Therefore, 

Ware’s mandamus claim is moot as to the April 6, 2020 request. See id. at ¶ 7.

The April 29, 2020 Requests

{¶ 37} I also depart from the lead opinion and the other dissent regarding 

Ware’s public-records requests of April 29, 2020, which he sent by certified mail. 

Crawford claims that all she received from Ware in the certified-mail envelope was 

a request for some informal complaints. She includes as an exhibit to her affidavit 
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a copy of the document that she says came from Ware. The document is set forth 

below as Image 1.

Image 1
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{¶ 38} But Ware claims that the request he sent to Crawford included more 

than the request for informal complaints; he claims that it also included a request 

for copies of electronic kites and a request for copies of emails. Ware claims to 

have sent the two-page document shown in Image 2 below.
January Term, 2022

15

Image 2

{¶ 39} When an original action in mandamus is filed in this court, each 

justice sits as the trier of fact. See State ex rel. Lindenschmidt v. Butler Cty. Bd. of 

Commrs., 72 Ohio St.3d 464, 466, 650 N.E.2d 1343 (1995). And as the trier of 

fact, each justice may believe or disbelieve, in whole or in part, the testimony 
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presented to this court. See Gillen-Crow Pharmacies, Inc. v. Mandzak, 5 Ohio St.2d 

201, 205, 215 N.E.2d 377 (1966).

{¶ 40} Compare Image 1 with Image 2. The lone paragraph in Image 1 is 

almost identical to the first paragraph in Image 2. The difference is that there are 

check marks on some of the document numbers in Crawford’s version (Image 1), 

but those same check marks do not appear in Ware’s version (Image 2).

{¶ 41} In order to believe that Crawford’s version (Image 1) is an actual 

copy of Ware’s request, you would have to believe that Ware placed the check 

marks on some of the document numbers. But Crawford’s process of handling 

requests for copies of informal complaints indicates that she placed those check 

marks on the document numbers. And Crawford’s duties reveal why she kept a 

copy of only a portion of Ware’s April 29 public-records requests—the portion that 

she was responsible for producing and transmitting.

{¶ 42} Crawford states in her affidavit: “Upon receiving a request for a copy 

of records from an inmate, I print the correspondence for reference when searching 

for the requested items.” Here, it appears that Crawford made a copy of the first 

paragraph of Ware’s April 29 request to use as a checklist as she searched for those 

requested items. She then checked off the document numbers as she found the 

corresponding documents. This is exactly what happened when Crawford 

responded to Ware’s April 6 request.

{¶ 43} On page 2 of Exhibit A attached to her affidavit, Crawford includes 

a copy of Ware’s April 6 request sent by electronic kite. Three of the four document 

numbers have check marks on them. The fourth document—document number 

1136, the one Crawford states she could not locate at the time of responding to the 

April 6 request—has no check mark.

{¶ 44} Ware’s version of his April 29 records requests (Image 2) shows that 

his requests covered three types of documents: informal complaints, kites, and 

emails. Since each request sought different types of documents, it makes sense that 
January Term, 2022

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Crawford would make a copy of the portion of the request seeking the discrete type 

of document that she is responsible for—informal complaints. This explains why 

Image 1 ends abruptly with a semicolon. Nothing follows the semicolon. Not 

another request, not a signature, not an address to send the records to.

{¶ 45} Examining Crawford’s April 2021 affidavit in conjunction with the 

other evidence, I reject that part of the affidavit in which she asserts that, 

notwithstanding the passage of almost one year, she could independently remember 

the exact contents of the April 29, 2020 public-records request that Ware submitted 

and that she could testify with certainty that the “request did not have anything

written below ‘TCI0420000107;’.” (Emphasis sic.) The doubt that Crawford could 

remember receiving this specific records request in such detail is increased by all 

of the physical discrepancies between Image 1 and Image 2, such as the checkmarks 

and the size of the font. It therefore becomes less reasonable to believe that Ware 

made a public-records request that cut off midsentence, ending in a semicolon, and 

that failed to include his name and return address.

{¶ 46} In my view, Image 2, with the exception of the certified-mail 

tracking number, is a copy of the actual request that Ware submitted to Crawford. 

The writing in the first paragraph of Image 2 is identical to the writing in the lone 

paragraph in Image 1, except for the check marks. Every stroke of every letter is 

the same, every slant of every line. Ware’s submission lists an initial request for 

informal complaints, followed by a semicolon. Two additional requests follow the 

semicolon. The document is signed. The return address for transmitting the records 

is provided.

{¶ 47} The fact that Crawford has a copy of only the first paragraph of 

Ware’s requests does not alter this conclusion. In paragraph 17 of her affidavit she 

states, “As part of my job responsibilities, I respond to copy requests by Inmates 

for their individual grievance records. According to ODRC Legal Services, Inmate 

Grievance records are confidential and not public records pursuant to R.C. 
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5120.21(F) and O.A.C. 5120-9-31(H).” She also explains in paragraphs 15 and 16 

of her affidavit:

Any requests for public records that I may receive are 

immediately forwarded to the designated Public Records Request 

Officer, which is the TCI Warden’s Assistant. It is not my 

obligation to respond to public records requests, ODRC [the Ohio 

Department of Rehabilitation and Correction] has specially trained 

designees for such duties.

Any requests for kites and/or emails would be considered 

public records and would be forwarded to the appropriately trained 

public records designee.

{¶ 48} Ware’s two additional requests are for kites and emails. That is why 

in paragraph 14 of her affidavit, Crawford states, “After a thorough review of my 

records, I have no record of receiving the version of the documents presented by 

Relator in his Affidavit of Support and identified as ‘Exhibits G and H’ [Image 2, 

the two-page April 29 request sent by certified mail] in this matter.” Crawford 

would not have a copy of Ware’s actual public-records requests, because she would 

not have produced and transmitted copies of kites and emails. Upon receipt of those 

requests, she would have sent them on to the “appropriately trained public records 

designee.”

{¶ 49} While the exhibits she submitted might be “true and accurate copies 

of records as kept in the normal course of business at TCI,” Image 1 is a document 

that Crawford created to attend to Ware’s April 29 request, and her averment is not 

sufficient to prove that it is a copy of the document that Ware sent to TCI.
January Term, 2022

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{¶ 50} Crawford did not respond to Ware’s other requests for public 

records, because she responds only to requests for inmate grievance records. The 

other two April 29 requests were forwarded to someone else.

{¶ 51} Crawford’s affidavit demonstrates that she would have sent any 

requests for records not involving an informal grievance to someone else in the 

prison. Crawford’s testimony confirms that she would not have retained Ware’s 

April 29 public-records requests herself, and her testimony explains why it is 

unlikely that the document that she submitted as evidence would contain all of 

Ware’s April 29 records requests. It is likely that she created and retained a copy 

of the portion of the requests that she was responsible for producing and that she 

used that copy to check off the documents that she located and produced to Ware, 

just as she did when she responded to Ware’s April 6 request. This does not require 

the assumption that public officials lied in their affidavits or that Crawford 

photocopied only a single paragraph of the two-page request (for example, by 

covering up subsequent writing with a blank piece of paper). Rather, Crawford 

testified that when she receives certain types of requests, she forwards them to “the 

designated Public Records Request Officer.” It does not require a great leap of 

logic to infer that Crawford physically separated the individual records requests and 

retained only the request that she needed to fulfill in her capacity as an inspector 

with the office of institutional services while forwarding the rest of the requests to 

someone else.

{¶ 52} In contrast, there is no reason to believe that the copy of the April 29 

request that Ware claims he sent to Crawford (Image 2) does not contain all of the 

records requests that he claims to have sent. Therefore, Ware has submitted clear 

and convincing evidence that the public office in this case failed to respond to two 

parts of his public-records requests that were sent by certified mail on April 29. 

Ware has “prove[d] facts showing that he * * * requested a public record pursuant 

to [the statute] and that the public office or records custodian did not make the 
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record available.” See Welsh-Huggins v. Jefferson Cty. Prosecutor’s Office, 163 

Ohio St.3d 337, 2020-Ohio-5371, 170 N.E.3d 768, ¶ 26. Therefore, I would grant 

a writ of mandamus for the documents identified in his second and third publicrecords requests sent by certified mail on April 29.

{¶ 53} Since the public office failed to comply with a requirement of R.C. 

149.43(B), and because Ware submitted his request by certified mail, he is eligible 

for statutory damages of $100 per day, beginning the day he filed this mandamus 

action, up to a maximum of $1,000. R.C. 149.43(C)(2). Since he filed the action 

more than 10 days ago, I would award $1,000. Neither of the reduction factors in 

R.C. 149.43(C)(2)(a) or (b) applies in this case. This is not an instance of a public 

office believing that the Public Records Act would not require a production of 

records. Rather, it is a failure of process.

Conclusion

{¶ 54} For the reasons set forth above, I dissent from the majority’s decision 

granting a writ of mandamus and statutory damages for the April 6, 2020 records 

request. I further dissent from the majority’s decision to deny the writ of mandamus 

and to deny statutory damages for the April 29, 2020 records requests that Ware 

sent by certified mail. I would grant a writ of mandamus and award $1,000 in 

statutory damages for the April 29, 2020 requests.

STEWART, J., concurs in the foregoing opinion.

_________________

DEWINE, J., dissenting.

{¶ 55} We have long held that it is the relator’s burden to prove a violation 

of the Public Records Act by clear and convincing evidence. Thus, when there is 

conflicting evidence on a material issue that points with equal weight in both 

directions, we will not issue a writ of mandamus.

{¶ 56} We have consistently applied these rules in cases where there is 

conflicting evidence about whether a government entity has produced documents 
January Term, 2022

21

in response to a public-records request. See, e.g., State ex rel. Ellis v. Maple Hts. 

Police Dept., 158 Ohio St.3d 25, 2019-Ohio-4137, 139 N.E.3d 873, ¶ 6. Today 

though, the lead opinion declines to follow these rules. It says that when a 

governmental entity provides sworn testimony that it provided public records and 

a requesting party swears that it did not receive them, the tie goes to the relator 

unless the governmental entity produces some unknown quantum of additional 

evidence “corroborating” its sworn statement.

{¶ 57} That the lead opinion would change the rules about the burden of 

proof in public-records cases is remarkable enough. But what’s even more 

remarkable is that it does so in a case where it determines that the relator created a 

fake document and submitted an affidavit that contained material falsehoods. 

Despite rejecting part of Kimani Ware’s affidavit, the lead opinion assumes that the 

rest of it must be true. Then, applying the new burden-shifting presumption that it 

announces today, the lead opinion awards Ware a writ of mandamus, and statutory 

damages to boot. Because this result is inconsistent with our precedent and is 

impossible to square with the lead opinion’s conclusion that Ware made false 

statements in his affidavit, I respectfully dissent.

I. Ware’s public-records requests

{¶ 58} Ware’s mandamus claim alleges public-records-law violations based 

upon (1) a request for informal prison complaints that he first sent on April 6, 2020, 

and (2) a request that he sent by certified mail, dated April 29, and postmarked May 

4.

A. The April 6 request

{¶ 59} The basic facts concerning Ware’s initial request for informal 

complaints are documented in a series of electronic communications that are part 

of the record. On April 6, 2020, Ware sent a public-records request through the 

prison’s internal-communication system, asking for four informal complaints: 
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#336, #416, #844, #136.2 Two days later, Donna Crawford responded on behalf of 

the prison. Crawford informed Ware that copies of the first three documents had 

been sent to him via “institution mail” but that there was no complaint #136.

{¶ 60} The next day, Ware wrote back saying only, “I need a copy of [#136] 

which was filed on 3/13/20.” If Ware had not received the other documents at this 

point, he did not say so. Crawford responded to Ware’s renewed request for 

complaint #136 by stating that she would print a copy.

{¶ 61} Ware followed up a few days later, on April 11, complaining, “[I] 

still have not receive[d] copies of the [informal complaint] that [I] requested on 4/

/2020, that you stated was placed in the institu[t]ion mail on 4/8/2020.” Crawford 

responded, “I sent your copies twice you should have them.”

{¶ 62} On April 22, Ware wrote back: “[I] [have] not received any copies 

of the [internal complaints] today or any other day! [Y]ou said that you have sent 

them to me two times but I have not received them at all!” Crawford answered: “I 

placed the copies in the institution mail on both occasions. In fact the last time you 

stated you were only missing one copy and I sent that one to you.”

{¶ 63} Both parties have submitted affidavits attesting to their version of 

the facts. Ware swears that he never received two of the documents requested in 

his April 6 communication.3 Crawford attests that she provided all the documents 

requested by Ware.

B. Ware’s April 29 certified-mail request: someone is not telling the truth

{¶ 64} The parties agree that Ware also sent Crawford an envelope by 

certified mail, dated April 29, 2020, and postmarked May 4, 2020, that contained a 

2. The informal complaint numbers are shortened herein for ease of reference.

3. Ware’s affidavit contains contradictory statements regarding his April 6 request. In one 

paragraph, he attests that Crawford has not provided him with copies of the four informal complaints 

he asked for on April 6. But in another paragraph, he admits that Crawford did comply with his 

April 29, 2020 certified-mail letter, which asked for two of the informal complaints.
January Term, 2022

23

public-records request. But they disagree as to what was contained within that 

envelope.

{¶ 65} Ware has submitted a two-page document that he swears is the 

request that he sent by certified mail. Ware’s version of the document asks for three 

discrete categories of information. The first two requests are contained on the first 

page of the document. In “request #1,” he asks for four informal complaints. (Two 

of the informal complaints were records that Ware had requested in his April 6 

communication.) In “Public Records Request #II,” he asks for several prison kites. 

“Public Records Request #III” is on the second page of the document and seeks 

certain email correspondence. At the bottom of both pages is a handwritten 

certified-mail tracking number. As part of the exhibit containing the requests, Ware 

includes a United States Postal Service Certified Mail Receipt, postmarked May 4, 

2020, with the same tracking number.

{¶ 66} Crawford attests that what Ware claims to have sent is not what she 

received. She attaches to her affidavit a one-page communication from Ware, also 

dated April 29, 2020, that asks only for the four informal complaints reflected in 

request #1. She avers that this one-paragraph request is all that was included within 

the certified-mail letter that she received from Ware. Crawford includes with her 

affidavit a photocopy of the envelope in which she received the April 29 request, 

which bears the same tracking number as the certified-mail receipt submitted by 

Ware.

{¶ 67} Thus, Ware attests that he sent one version of the document; 

Crawford attests that she received a different version. Ware attests that he mailed 

his version in the same envelope in which Crawford attests that she received her 

version. So, unless the document transformed itself while in the hands of the postal 

service, someone isn’t telling the truth.

{¶ 68} And as the lead opinion correctly concludes, the evidence strongly 

favors Crawford. The record contains an affidavit from Frank Cimmento Jr., the 
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mail clerk screener at the Trumbull Correctional Institution, detailing the prison’s 

method for handling certified-mail requests. An inmate submits a sealed letter to 

prison officials, prison officials deliver the sealed envelope to post-office officials 

for processing, and only later does the inmate receive a receipt that includes the 

tracking number. Ware’s request, however, contains the tracking number at the 

bottom of his letter. As the lead opinion points out, “Ware does not explain how 

he could have written the certified-mail tracking number on his April 29 publicrecords requests when the requests would have been sealed in an envelope before 

the number was assigned.” Lead opinion, ¶ 21.

{¶ 69} Common sense also corroborates Crawford’s version. It is 

undisputed that she provided the informal complaints requested by Ware in his 

April 29 request. If the correspondence had also included requests for other 

information, why would she not have responded to those requests as well?

{¶ 70} Moreover, the version that Crawford proffered is in Ware’s 

handwriting and is dated April 29, 2020. If this is not the request that Crawford 

received from Ware, how did it come into her possession? Did she sneak into his 

cell and find an unsent request crumpled in the trash can? Did she enlist a talented 

forger in a scheme to create a false document to thwart Ware’s request?

{¶ 71} Ware offers no explanation, though he had ample opportunity to do 

so in his rebuttal-evidence submission. Thus, the only reasonable conclusion is that 

Crawford is telling the truth and that Ware is not.

{¶ 72} The other dissent has its own theory of the April 29 document 

requests. It determines, based on a side-by-side comparison of scanned images of 

the evidence both parties submitted, that Crawford copied only a portion of the 

material she received. Under this view, Crawford must have made a photocopy of 

the first page of Ware’s request but, in doing so, obscured the bottom three-fourths 

of the page so that only the top portion of the page was copied. As for Requests #2 

and #3, the other dissent asserts with confidence, Crawford must have forwarded 
January Term, 2022

25

them to someone else in the prison system without copying them. Then, ignoring 

the uncontradicted affidavit testimony that Ware could not have known the tracking 

numbers until after he sent his public-records request, the other dissent proclaims 

that “there is no reason to believe that the copy of the April 29 request that Ware 

claims he sent to Crawford” lacks reliability. Dissenting opinion of Kennedy, J., 

¶ 52.

{¶ 73} To buy into the other dissent’s imaginings requires one to make a 

number of other assumptions. First, that Crawford, a public official, lied in her 

affidavit when she swore that she received only a one-page letter from Ware that 

“contained [her] name, TCI address, date, and three lines of the copy request.” 

Second, that Crawford went to the extra effort of photocopying only a single 

paragraph of one page of Ware’s request (request #1) without copying the entire 

request, even though in Ware’s evidence requests #1 and #2 were written on the 

same sheet of paper. Third, that Cimmento, another public official, is lying in his 

affidavit when he explains that there is no way for an inmate to know the certifiedmail tracking number until after a certified-mail item is sealed in an envelope.

{¶ 74} But even if one accepts the other dissent’s speculation about what 

might have happened, it is still just speculation. The other dissent’s conjecture is 

refuted by sworn affidavit testimony to the contrary. By no stretch of the 

imagination has Ware shown by clear and convincing evidence that Crawford 

violated the Public Records Act in regard to the April 29 request. See State ex rel. 

Cincinnati Enquirer v. Sage, 142 Ohio St.3d 392, 2015-Ohio-974, 31 N.E.3d 616, 

¶ 10. Thus, I agree with the majority that Ware is not entitled to a writ of mandamus 

as to his April 29 request.

II. Ware is not entitled to a writ of mandamus as to the April 6 request

{¶ 75} As for the two documents from the April 6 request that remain in 

dispute, Crawford swears that she sent the documents. Ware swears that he did not 
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receive them. Under our existing precedent, Ware has failed to meet his burden to 

establish a violation of the Public Records Act.

A. This should be an easy case

{¶ 76} It is Ware who bears the burden of proving a violation of the act. To 

be entitled to a writ of mandamus in a public-records case, a party must show by 

clear and convincing evidence a clear legal right to the requested relief and a 

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

Sage at ¶ 10. Thus, Ware must “prove facts showing that he * * * requested a 

public record * * * and that the public office or records custodian did not make the 

record available.” See Welsh-Huggins v. Jefferson Cty. Prosecutor’s Office, 163 

Ohio St.3d 337, 2020-Ohio-5371, 170 N.E.3d 768, ¶ 26.

{¶ 77} Consistent with this standard, we have refused to grant a writ of

mandamus when a respondent presents uncontroverted evidence that he mailed 

requested documents even though a relator swears that he did not receive the 

documents. See State ex rel. Ware v. DeWine, 163 Ohio St.3d 332, 2020-Ohio5148, 170 N.E.3d 763, ¶ 25; Ellis, 158 Ohio St.3d 25, 2019-Ohio-4137, 139 N.E.3d 

873, at ¶ 6; see also State ex rel. McDougald v. Greene, 160 Ohio St.3d 82, 2020-

Ohio-2782, 153 N.E.3d 75, ¶ 9 (refusing to grant a writ of mandamus when a public 

office produced an affidavit that the requested records did not exist and relator 

failed to produce evidence to rebut that assertion).

{¶ 78} In this same vein, we have held that “a public office may establish 

by affidavit that all existing public records have been provided.” State ex rel. Frank 

v. Clermont Cty. Prosecutor, 164 Ohio St.3d 552, 2021-Ohio-623, 174 N.E.3d 718, 

¶ 15, citing State ex rel. Toledo Blade Co. v. Toledo-Lucas Cty. Port Auth., 121 

Ohio St.3d 537, 2009-Ohio-1767, 905 N.E.2d 1221, ¶ 15. Such attestations are 

only overcome “by clear and convincing evidence showing a genuine issue of fact 

that additional responsive records exist.” Id.
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{¶ 79} Indeed, in a previous action involving the same relator and very 

similar facts, we reached a result opposite to the one the majority reaches today. 

State ex rel. Ware v. Giavasis, 163 Ohio St.3d 359, 2020-Ohio-5453, 170 N.E.3d 

788, ¶ 32. In that case, Ware averred that he had submitted seven public-records 

requests in a single envelope to the Stark County Clerk of Courts. Id. at ¶ 31-32. 

The clerk’s office, however, submitted an affidavit that it had received just a single 

request. Id. at ¶ 32. Because there were conflicting affidavits on the point, we 

deemed the evidence “evenly balanced” and found that Ware had “not satisfied the 

heightened burden of proof necessary” to establish a violation of the Public Records 

Act. Id.

{¶ 80} Under our existing precedent then, we should deny the request for a 

writ of mandamus. Ware has not shown his entitlement to the writ—and he 

certainly has not done so by clear and convincing evidence.

{¶ 81} Moreover, the case for denying the writ here is significantly stronger 

than in other “he-said, she-said” situations. The majority has already determined 

that part of Ware’s affidavit is untruthful. And while the lead opinion doesn’t come 

right out and say that Ware fabricated a document to collect damages for a violation 

of the Public Records Act, that is the only reasonable reading of its opinion.

{¶ 82} So, if the lead opinion will discredit Ware’s sworn averments 

regarding his April 29 public-records request, why will it presume that he is telling 

the truth when it comes to his April 6 request? “Falsus in uno, falsus in omnibus—

false in one, false in all.” Masiko v. Holder, 562 Fed. Appx. 469, 473 (6th 

Cir.2014); accord Peckham v. Ronrico Corp., 171 F.2d 653, 658 (1st Cir.1948) 

(when affidavits “state[] some facts that are not true,” the “ultimate trier of fact is 

free to disregard the entire testimony of those affiants”). In light of the strong 

evidence that Ware lied in at least part of his affidavit, I see no reason to credit any 

other part.
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B. The majority’s burden-shifting excursion

{¶ 83} Remarkably, though, the lead opinion finds that a writ of mandamus 

is warranted and that Ware is entitled to statutory damages. It does so by effectively 

flipping the burden of proof and failing to even consider whether Ware’s untruthful 

averments call into question the veracity of Ware’s entire affidavit.

{¶ 84} The lead opinion says that because a records custodian is “in the 

superior position to demonstrate compliance with the obligation to provide copies 

of public records,” the records custodian must submit evidence to corroborate her 

sworn assertion that she provided the requested records. Lead opinion at ¶ 15. It’s 

hard to know what to make of this new corroborating-evidence requirement. 

Nothing in the text of the Public Records Act supports such a requirement. And it 

is certainly inconsistent with our prior caselaw.

{¶ 85} It is not even clear what the lead opinion means by “corroborating 

evidence.” Crawford’s affidavit explained in detail the procedure she uses to 

comply with public-records requests. It also specifically described her handling of 

Ware’s requests. The facts in Crawford’s affidavit were corroborated by an internal 

log that she submitted documenting her interactions with Ware.

{¶ 86} The majority’s objection seems to be not that Crawford failed to 

submit corroborating evidence, but that she didn’t submit the right kind of 

corroborating evidence. Crawford averred, “I have retained the original printouts 

of the records requested by Inmate Ware #470-743, which displays the date printed, 

that is the proximate date the copies were sent to Inmate Ware #470-743.” The 

majority’s basis for granting the writ seems to be that Crawford did not attach these 

documents to her affidavit. See lead opinion at ¶ 15, fn. 1 (“Crawford did not, 

however, submit those documents as corroborating evidence”).

{¶ 87} No doubt, submission of these materials would have provided 

additional support for Crawford’s attestations. But up until today, there was no 
January Term, 2022

29

requirement that she do so. And unlike the majority, I am unwilling to presume 

that she is lying about having produced and retained copies of those records.

{¶ 88} Nor am I comfortable with the open-endedness of the lead opinion’s 

new corroborating-evidence requirement. Under the lead opinion, a relator would 

no longer need to “prove * * * a records custodian did not make the record 

available.” Welsh-Huggins, 163 Ohio St.3d 337, 2020-Ohio-5371, 170 N.E.3d 768, 

at ¶ 26. Instead, the records custodian would have to prove that the documents were 

received by the relator. Further, a sworn statement wouldn’t cut it for proof; some 

kind of additional “corroborating evidence” would also have to be provided. But 

what counts as corroborating evidence and how much corroboration must be 

provided are questions the lead opinion leaves unanswered.

{¶ 89} There is absolutely no reason in this case to credit Ware’s account 

over Crawford’s. Rather than set sail on the lead opinion’s make-it-up-as-you-go 

burden-shifting excursion, I would stick to our established precedent. I would deny 

the writ because Ware has failed to demonstrate his entitlement to such a remedy.

III. Conclusion

{¶ 90} Because Ware has failed to meet his burden to demonstrate a 

violation of the Public Records Act, I would deny the requests for a writ of 

mandamus and for statutory damages. The majority chooses to do otherwise, so I 

respectfully dissent.

_________________

Kimani Ware, pro se.

Dave Yost, Attorney General, and Tony H. Shang, Assistant Attorney 

General, for respondent.

_________________