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

ex rel. McDougald v. Greene, Slip Opinion No. 2020-Ohio-5100.] 

NOTICE 

This slip opinion is subject to formal revision before it is published in an 

advance sheet of the Ohio Official Reports. Readers are requested to 

promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65 

South Front Street, Columbus, Ohio 43215, of any typographical or other 

formal errors in the opinion, in order that corrections may be made before 

the opinion is published. 

SLIP OPINION NO. 2020-OHIO-5100

THE STATE EX REL. MCDOUGALD v. GREENE.

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

may be cited as State ex rel. McDougald v. Greene, Slip Opinion No. 

2020-Ohio-5100.] 

Mandamus—Public records—A public office has no duty to provide a nonexistent 

record—Claim that records custodian satisfied statutory obligation by 

seeking clarification of public-records request is a defense on the merits, 

not an assertion of mootness—Confusion regarding records requested was 

not reasonable—Sending a public-records request through a prison’s kite 

system does not qualify a requester for statutory damages—Writ granted in 

part and denied in part—Statutory damages denied. 

(No. 2019-1183—Submitted August 18, 2020—Decided November 3, 2020.) 

IN MANDAMUS. 

________________ 

 

 
SUPREME COURT OF OHIO

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Per Curiam. 

{¶ 1} Relator, Jerone McDougald, seeks a writ of mandamus to compel 

respondent, Larry Greene, to provide documents in response to McDougald’s 

public-records request. Also pending is McDougald’s unopposed motion to 

consider the exhibits attached to his complaint as substantive evidence, and 

McDougald’s two motions for leave to amend. For the reasons set forth herein, we 

grant McDougald’s motion to consider his evidence. We grant the writ of 

mandamus in part and deny it in part. Finally, we deny McDougald’s request for 

an award of statutory damages, and we deny as moot his request for an award of 

court costs and his two motions for leave to amend. 

I. BACKGROUND 

{¶ 2} In January 2019, McDougald, who was then an inmate at the Southern 

Ohio Correctional Facility (“SOCF”),1

 sent a public-records request to Greene, the 

records custodian at SOCF. McDougald wrote: 

I would like to make a public records request pursuant to 

R.C. 149.43 for the following three DRC records that’s a part of the 

DRC record retention schedule/administrative/executive records 

section. 

I want to inspect the following records 

(1) DRC record 2693 

(2) DRC record 2611 

(3) DRC record 4181. 

 

1. McDougald is now incarcerated at the Toledo Correctional Institution. 
January Term, 2020 

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{¶ 3} According to Greene, “DRC 2611 and DRC 4181 are stock forms 

used when processing and documenting use of force incidents within the 

institution.” Specifically, “DRC 2611 is the Supervisor’s Use of Force Summary 

Report, and DRC 4181 is the Deputy Warden of Operation’s [R]eview of the Use 

of Force.” Greene asserts that there is no form known as DRC 2693. 

{¶ 4} Greene sent the following written response to McDougald: 

I am unable to identify a DRC 2693; it does not exist. 

As far as DRC 2611 and 4181 you have not been specific in 

your request to allow me to properly retrieve those two records for 

you. 

The Record Retention Schedule is not kept or maintained by 

any office at SOCF. If you are asking for the record I think you 

want please contact the author or office responsible [for] 

maintaining that record as Operations Support Center. 

{¶ 5} On August 23, 2019, McDougald filed the present complaint for a writ 

of mandamus. We issued an alternative writ and set a briefing schedule. 157 Ohio 

St.3d 1481, 2019-Ohio-4474, 134 N.E.3d 197. 

II. LEGAL ANALYSIS 

A. The motion to consider exhibits as evidence

{¶ 6} In this motion, McDougald asks us to consider as substantive 

evidence the documents attached as exhibits to his complaint. These exhibits 

include at least one document of significance that is not otherwise in the record, 

namely, Greene’s written response to McDougald’s public-records request. Greene 

has not opposed this motion or otherwise challenged the authenticity, relevance, or 

admissibility of the documents. We therefore grant the motion.

 
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B. The merits of the public-records case

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

of public records available to any person upon request. A “public record” is a 

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

appropriate action by which to compel compliance with the Public Records Act, 

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. 

{¶ 8} To be entitled to the writ, McDougald must demonstrate that he has a 

clear legal right to the requested relief and that Greene 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, the 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). 

1. DRC 2693 

{¶ 9} McDougald asserts that DRC 2693 is a use-of-force-report form, but 

he has submitted no evidence to substantiate that assertion. And the evidence that 

is in the record establishes that there is no form known as DRC 2693. In his 

affidavit, Greene attests that “after an exhaustive search, I determined that DRC 

2693 does not exist.” 

{¶ 10} A public office is under no duty to create new documents to satisfy 

a public-records request. Norris v. Budgake, 89 Ohio St.3d 208, 209, 729 N.E.2d 

758 (2000). It necessarily follows that when a requester seeks a nonexistent record, 

a public office has no duty to provide it. Therefore, McDougald is not entitled to a 

writ of mandamus with respect to his request for DRC 2693. 

 
January Term, 2020 

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2. DRC 2611 and DRC 4181 

{¶ 11} Greene concedes that forms DRC 2611 and DRC 4181 exist, and he 

has not asserted that any statutory exemption would prevent him from turning them 

over to McDougald. Instead, Greene asserts that he complied with his legal 

obligation under the Public Records Act by asking McDougald to clarify his 

request, and McDougald never did so. Therefore, he argues, McDougald’s 

mandamus claim is moot. 

{¶ 12} As a preliminary matter, Greene’s reliance on the doctrine of 

mootness is misplaced. A public-records mandamus claim generally becomes moot 

when the public office provides the requested documents. See State ex rel. Striker 

v. Smith, 129 Ohio St.3d 168, 2011-Ohio-2878, 950 N.E.2d 952, ¶ 22. Greene’s 

claim—that he satisfied his statutory obligation when he sought clarification of 

Greene’s request—is a defense on the merits, not an assertion of mootness. 

{¶ 13} A person requesting public records must identify the records sought 

with reasonable clarity. State ex rel. Glasgow v. Jones, 119 Ohio St.3d 391, 2008-

Ohio-4788, 894 N.E.2d 686, ¶ 17. And R.C. 149.43(B)(2) provides: 

If a requester makes an ambiguous * * * request * * * such 

that the public office or the person responsible for the requested 

public record cannot reasonably identify what public records are 

being requested, the public office or the person responsible for the 

requested public record may deny the request but shall provide the 

requester with an opportunity to revise the request by informing the 

requester of the manner in which [the] records are maintained * * * 

and accessed * * *. 

But a request is not presumptively ambiguous merely because the public officer 

says that it is. See State ex rel. Carr v. London Corr. Inst., 144 Ohio St.3d 211, 
SUPREME COURT OF OHIO

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2015-Ohio-2363, 41 N.E.3d 1203, ¶ 23 (rejecting argument that a request was 

ambiguous because it did not identify the precise date on which the requested memo 

was sent). 

{¶ 14} In his affidavit, submitted as evidence in this mandamus action, 

Greene asserts that he 

informed [McDougald] that to provide him with the requested 

documents, more information was required. Specifically, 

information required to locate the specific use of force incident to 

which he was seeking information. 

But nothing in McDougald’s request suggests that he was asking for anything more 

than the blank forms. He did not mention any specific incidents or any specific 

dates. 

{¶ 15} R.C. 149.43(B)(2) authorizes the rejection of a public-records 

request as ambiguous only when the office cannot “reasonably” identify the records 

sought. Greene’s confusion regarding whether McDougald was seeking reports for 

specific dates was not reasonable. And if Greene’s demand for clarification was 

not reasonable, then there is no authority for the proposition that McDougald must 

nevertheless try to satisfy that demand before he may file suit. Accordingly, we 

grant a writ of mandamus ordering Greene to provide forms DRC 2611 and DRC 

4181 to McDougald. 

C. The February 3 motion for leave to amend

{¶ 16} On February 3, 2020, McDougald filed a motion for leave to amend 

his merit brief. He made that request in order “to change the wording in his brief 

to better articulate and describe the records he requested to inspect.” According to 

McDougald, he wished “to change the wording from blank forms to stock forms of 

use of force reports.” 
January Term, 2020 

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{¶ 17} As discussed above, McDougald’s request (for “blank” or “stock”

forms; the two terms appear interchangeable in this context) is already clear. 

McDougald’s merit brief requires no clarification on this point. We therefore deny 

as moot the February 3 motion for leave to amend. 

D. The request for an award of court costs 

{¶ 18} McDougald has requested an award of court costs. As a general rule, 

when a relator prevails on a public-records mandamus claim, an award of court 

costs is mandatory. R.C. 149.43(C)(3)(a)(i). However, in this case, McDougald 

filed an affidavit of indigence, which waives his obligation to pay costs. We 

therefore deny as moot his request for an award of court costs.

E. Statutory damages and the February 5 motion for leave to amend 

{¶ 19} A person requesting public records “shall” be entitled to recover an 

award of statutory damages “if a court determines that the public office or the 

person responsible for public records failed to comply with an obligation in 

accordance with division (B) of this section.” R.C. 149.43(C)(2). However, 

McDougald qualifies for statutory damages only if he proves that he delivered his 

request “by hand delivery, electronic submission, or certified mail.” Id. 

{¶ 20} McDougald has not submitted clear evidence to prove the manner of 

service, but it appears that he delivered his requests through the prison kite system. 

Sending a public-record request through the prison kite system does not qualify a 

requester for statutory damages. State ex rel. McDougald v. Greene, ___ Ohio 

St.3d ___, 2020-Ohio-3686, ___ N.E.3d ___, ¶ 18. 

{¶ 21} To avoid this result, on February 5, 2020, McDougald filed a motion 

seeking to amend both his complaint and his merit brief “to specify that his public 

records request kite was hand delivered to Larry Greene during his inmate 

communication weekly rounds * * * on January 3, 2019.” However, permitting 

McDougald to amend his complaint and brief would be a vain act.
SUPREME COURT OF OHIO

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{¶ 22} It is not sufficient for McDougald to allege that he hand-delivered 

his request to Greene. To qualify for an award of statutory damages, a requester 

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. The

allegations in McDougald’s complaint and merit brief are not evidence. See State 

ex rel. Luonuansuu v. King, ___ Ohio St.3d ___, 2020-Ohio-4286, ___ N.E.3d ___, 

¶ 17 (noting that the briefs and memoranda of the parties are not evidence). 

Therefore, we deny the February 5 motion for leave to amend and hold that 

McDougald is not entitled to statutory damages. 

III. CONCLUSION

{¶ 23} For the reasons stated above, we grant the writ of mandamus in part 

and deny it in part. We grant the motion to consider McDougald’s exhibits as 

evidence. We deny the request for statutory damages. And we deny as moot the 

request for court costs and both motions for leave to amend. 

Writ granted in part 

and denied in part. 

O’CONNOR, C.J., and FRENCH, FISCHER, DEWINE, DONNELLY, and 

STEWART, JJ., concur. 

KENNEDY, J., concurs in part and dissents in part, with an opinion. 

_________________ 

KENNEDY, J., concurring in part and dissenting in part. 

{¶ 24} I agree with the majority’s decision that relator, Jerone McDougald, 

is entitled to a writ of mandamus to compel respondent, Larry Greene, the official 

responsible for public-records requests at the Southern Ohio Correctional Facility 

(“SOCF”), to produce to McDougald for inspection two forms from the Ohio 

Department of Rehabilitation and Correction: DRC records 4181 and 2611. Unlike 

the majority, however, I would hold that delivery of a public-records request 

through a prison’s kite system is equivalent to hand delivery and that McDougald 
January Term, 2020 

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is therefore eligible for statutory damages. Because Greene has not produced the 

records for inspection since McDougald first sought them on January 3, 2019, I 

would award McDougald statutory damages pursuant to R.C. 149.43(C)(2). 

Therefore, I concur in part and dissent in part. 

Mandamus 

{¶ 25} On January 3, 2019, McDougald, using the prison’s kite system, 

made a public-records request for three records: “DRC record[s]” 2693, 2611, and 

4181. There is no dispute that two of the forms are indeed public records. Those 

records should have been produced for McDougald to inspect. Although 

“[p]ermitting an inmate to inspect records personally is not required when doing so 

would create security issues, unreasonably interfere with officials’ discharge of 

their duties, and violate prison rules,” State ex rel. McDougald v. Sehlmeyer, ___ 

Ohio St.3d ___, 2020-Ohio-4637, ___N.E.3d ___, ¶ 10, Greene made no claim 

about any such issues affecting McDougald’s ability to inspect the documents in 

this case. Since it appears that McDougald is no longer incarcerated at SOCF, see

id. at ¶ 2, and since McDougald seeks only blank, form documents, Greene should 

mail them to McDougald at his present address at no cost to McDougald. 

Statutory Damages 

{¶ 26} R.C. 149.43(C)(2) provides for statutory damages of $100 for each 

business day that the public office “failed to comply with an obligation in 

accordance with [R.C. 149.43(B)],” up to $1,000, if a court determines that the 

requester transmitted by certified mail, e-mail, or hand delivery a written request 

that “fairly describes the public record.” When a public office receives a publicrecords request, it is obligated to promptly provide any responsive records. R.C. 

149.43(B)(1). And when it denies a public-records request, a public office must 

inform the requester of that denial and provide the reasons for the denial. R.C. 

149.43(B)(1) and (3). 
SUPREME COURT OF OHIO

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{¶ 27} Whether the public office complied with its statutory duty to respond 

within a reasonable period of time “ ‘depends upon all of the pertinent facts and 

circumstances.’ ” State ex rel. Cordell v. Paden, 156 Ohio St.3d 394, 2019-Ohio1216, 128 N.E.3d 179, ¶ 12, quoting State ex rel. Morgan v. Strickland, 121 Ohio 

St.3d 600, 2009-Ohio-1901, 906 N.E.2d 1105, ¶ 10. The person requesting the 

records “bears the burden of demonstrating that the [public office’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. 

{¶ 28} McDougald made his public-records request on January 3, 2019. 

The majority holds that his request fairly described the records he sought. He has 

yet to receive the documents. But the majority concludes that McDougald is not 

eligible for statutory damages because he sent his public-records request through 

SOCF’s kite system and because a request by kite does not constitute hand delivery. 

I disagree and would hold that delivery by kite is the equivalent of hand delivery. 

See State ex rel. McDougald v. Greene, ___ Ohio St.3d ___, 2020-Ohio-3686, ___ 

N.E.3d ___, ¶ 60 (Kennedy, J., dissenting). Therefore, McDougald’s method of 

delivery did not preclude an award of statutory damages. 

{¶ 29} A court may decline to award statutory damages or may reduce the 

amount of the award if it finds that (1) based on the public-records law that existed 

at the time of the alleged conduct that constituted the failure to comply with R.C. 

149.43, “a well-informed public office or person responsible for the requested 

public records reasonably would believe that the conduct * * * did not constitute a 

failure to comply * * * with [R.C. 149.43(B)],” R.C. 149.43(C)(2)(a), and (2) “a 

well-informed public office or person responsible for the requested public records 

reasonably would believe that the conduct * * * would serve the public policy that 

underlies the authority that is asserted as permitting that conduct,” R.C. 

149.43(C)(2)(b). Neither of those reduction factors apply in this case. Failing to 
January Term, 2020 

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produce the records McDougald sought based on a supposed lack of specificity in 

the request is not defensible under Ohio’s Public Records Act, R.C. 149.43. 

{¶ 30} Statutory damages are awarded at a rate of $100 per day “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 [R.C. 

149.43(B)], beginning with the day on which the requester files a mandamus action 

to recover statutory damages.” Since Greene has produced no documents for 

McDougald to inspect since McDougald filed his mandamus action on August 23, 

2019, I would award McDougald the statutory maximum of $1,000. 

Conclusion 

{¶ 31} Because I agree with the majority that McDougald is entitled to a 

writ of mandamus compelling Greene to allow him to personally inspect the records 

he sought from SOCF, I concur in part. But because I would hold that Greene’s 

failure to produce the documents made McDougald eligible for an award of 

statutory damages and because his method of delivery did not preclude him from 

being awarded such damages, I accordingly dissent in part. 

_________________ 

Jerone McDougald, pro se. 

Dave Yost, Attorney General, and Jared S. Yee, Assistant Attorney General, 

for respondent. 

_________________