[Until this opinion appears in the Ohio Official Reports advanc e 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 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 -5100
T HE S TATE EX REL
. M C D OUGALD v. G REENE . [Until this opinion appears in t he Ohio Official Reports advanc e 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 re quest is a defense on the merits, not an assertion of mootness—Confusi on 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, 20 20.)
I N M ANDAMUS

.

________________S UPREME C OURT OF O HIO

2 Per Curiam. {¶ 1} Relator, Jerone McDougald, seek s a writ of mandamus to compel respondent, Larry Greene, to pr ovide documents in response to M cDougald’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 se t forth herein, we grant McDougald’s motion to consider his evidence. We grant th e writ of mandamus in part and deny it in part. Finally, we deny McDouga ld’s request for an award of statutory damages, a nd we deny as moot his request for an award of
court costs and his two mo tions for leave to amend.
I. BACKGROUND {¶ 2} In January 2019, McDougald, who was then an inmate at the South ern Ohio Correctional Facility (“SOCF”), 1 sent a public-records request to Greene, the
records custodian at SO CF. 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 o f 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 In stitution.January Term, 2020

3 {¶ 3} According to Greene, “DRC 2611 and DRC 4181 are stock forms used when processing and documen ting use of force incidents wit hin 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]evi ew of the Use
of Force.” Greene asserts that there is no form known as DRC 2 693. {¶ 4} Greene sent the following w ritten 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 y ou want please contact the aut hor 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 other wise in the record, namely, Greene’s written respons e to McDougald’s public-records request. Greene has not opposed this motion or oth erwise challenged the authent icity, relevance, or admissibility of the documents. We therefore grant the motion.S UPREME C OURT OF O HIO

4 B. The merits of the public-records case {¶ 7} R.C. 149.43(B)(1) requires a public office to promptly make cop ies of public records available to any person upon request. A “pub lic record” is a record “kept by any public office.” R.C. 149.43(A)(1). Mandam us is an appropriate action by which to co mpel compliance with the Publi c Records Act,
R.C. 149.43. State ex rel. Physicians Commt. fo r 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 r ight 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 i n 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 s ubstantiate tha t assertion. A nd the evidence that
is in the record establishes that there is no form known as DRC 2 693. In his affidavit, Greene attests that “after an exhaustive search, I d etermined that DRC
2693 does not exist.” {¶ 10} A public office is under no duty to create new documents to sat isfy 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, McDougal d is not entitled to a writ of mandamus with resp ect to his request for DRC 2693.January Term, 2020

5 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 wi th his legal obligation under the Public Records Act by asking McDougald to clarify his request, and McDougald never did so. Therefore, he argues, McD ougald’s
mandamus claim is moot. {¶ 12} As a preliminary matter, Greene’s reliance on the doctrine of mootness is misplaced. A public-re cords mandamus claim general ly 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. Gr eene’s claim—that he satisfied his statutory obligation when he sought clarification of Greene’s request—is a defens e on the merits, not an assertion o f mootness. {¶ 13} A person requesting public records must identify the records so ught 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) provide s:

If a requester makes an ambiguous * * * request * * * such that the public office or the per son responsible for the reques ted public record cannot reasonably identify what public records ar e being requested, the public office or the person responsible fo r the requested public record may deny the request but shall provide the requester with an opportunity to r evise the request by informin g 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,S UPREME C OURT OF O HIO

6 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 p rovide him with the requested documents, more information was required. Specifically, information required to locate th e specific use of force incide nt 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 incident s 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” i dentify the records sought. Greene’s confusion regarding whether McDougald was see king 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 2 611 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 amen d 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 i nspect.” According to McDougald, he wished “to change the wording from blank forms to stock forms of use of force reports.”January Term, 2020

7 {¶ 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 require s no clarification on this point . We therefore deny as moot the February 3 mo tion 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 reque st 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 recov er an award of statutory damages “if a court determines that the publ ic office or the person responsible for public reco rds 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 tha t he delivered his request “by hand delivery, elect ronic 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 t hrough 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 mo tion seeking to amend both his compla int and his merit brief “to spe cify 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.S UPREME C OURT OF O HIO

8 {¶ 22} It is not sufficient for McDougald to allege that he hand-delivered his request to Greene. To qualify for an award of statutory da mages, a requester must prove the method of delivery by clear and convincing evide nce. 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 ev idence. 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 n ot evidence). Therefore, we deny the February 5 motion for leave to amend and hold that McDougald is not entitled t o 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 d eny as moot the request for court costs and bot h motions for leave to amend. Writ granted in part and denied in part.
O’C ONNOR , C.J., and F RENCH , F ISCHER , D E W INE , D ONNELLY , and
S TEWART , JJ., concur.
K ENNEDY , J., concurs in part and dissent s in part, with an opinion.

_________________ K

ENNEDY , J., concurring in part and dissenting in part. {¶ 24} I agree with the majority’s d ecision that relator, Jerone McDou gald, is entitled to a writ of mandamus to compel respondent, Larry G reene, the official responsible for public-records requests at the Southern Ohio Co rrectional Facility (“SOCF”), to produce to McDougald for inspection two forms from the Ohio Department of Rehab ilitation and Correction: DRC records 4181 a nd 2611. Unlike the majority, however, I would hold that delivery of a public-r ecords request through a prison’s kite system is equivalent to hand delivery a nd that McDougaldJanuary Term, 2020

9 is therefore eligible for stat utory damages. Because Greene ha s not produced the records for inspection since McDo ugald first sought them on Jan uary 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, usin g 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 pub lic records. Those records should have been produced for McDougald to inspect. Al though “[p]ermitting an inmate to inspect records personally is not re quired when doing so would create security issues, unreasonably interfere with offic ials’ 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 mad e 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 incarc erated at SOCF, see id . at ¶ 2, and since McDougald seeks only blank, form documents, Greene should mail them to McDougald at his pres ent address at no cost to McD ougald. Statutory Damages {¶ 26} R.C. 149.43(C)(2) provides for statutory damages of $100 for ea ch business day that the public office “failed to comply with an o bligation in accordance with [R.C. 149.43(B)],” up to $1,000, if a court det ermines that the requester transmitted by certified mail, e-mail, or hand delive ry a written request that “fairly describes the pub lic record.” When a public offic e receives a publicrecords request, it is obligated to promptly provide any respon sive records. R.C. 149.43(B)(1). And when it denies a public-records request, a p ublic office must inform the requester of that d enial and provide the reasons for the denial. R.C. 149.43(B)(1) and (3).S UPREME C OURT OF O HIO

10 {¶ 27} Whether the public office complied with its statutory duty to r espond within a reasonable period of time “ ‘depends upon all of the p ertinent 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 r equesting the
records “bears the burden of d emonstrating that the [public off ice’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-reco rds request on January 3, 2019. The majority holds that his reque st fairly described the record s he sought. He has yet to receive the documents. B ut the majority concludes that McDougald is not eligible for statutory damages because he sent his public-recor ds request through SOCF’s kite system and because a request by kite does not const itute hand delivery. I disagree and would hold that delivery by kite is the equivale nt of hand delivery.
See State ex rel. McDougald v. Greene , ___ Ohio St.3d ___, 2020-Ohio-3686, ___ N.E.3d ___, ¶ 60 (Kennedy, J., dissenting). Therefore, McDouga ld’s method of delivery did not preclude an awa rd of statutory damages. {¶ 29} A court may decline to award statutory damages or may reduce th e amount of the award if it finds that (1) based on the public-re cords law that existed at the time of the alleged c onduct that constituted the failure to comply with R.C. 149.43, “a well-informed public office or person responsible fo r the requested public records reasonably woul d 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 reque sted public records reasonably would believe that the conduct * * * would serve the public policy that underlies the authority that is asserted as permitting that con duct,” R.C. 149.43(C)(2)(b). Neither of those reduction factors apply in t his case. Failing toJanuary Term, 2020

11 produce the records McDougald sought based on a supposed lack o f specificity in the request is not defensible unde r Ohio’s Public Records Act, R.C. 149.43. {¶ 30} Statutory damages are awarded at a rate of $100 per day “for ea ch business day during which the public office or person responsib le for the requested public records failed to comply with an obligation in accordanc e 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 do cuments for McDougald to inspect since McDo ugald filed his mandamus action on August 23, 2019, I would award McDougald t he 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 i nspect the records he sought from SOCF, I concur in part. But because I would hol d 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 pr eclude him from being awarded such damages, I accordingly dissent in part.

_________________ Jerone McDougald, pro se. Dave Yost, Attorney General, and Jared S. Yee, Assistant Attorn ey General, for respondent.

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