[Cite as State ex rel. Saalim v. Lucas Cty. Sheriff's Office, 2022-Ohio-2290.]

IN THE COURT OF APPEALS OF OHIO

SIXTH APPELLATE DISTRICT

LUCAS COUNTY

State, ex rel. Lutfi Said Saalim Court of Appeals No. L-21-1135

Relator 

v.

Lucas County Sheriff's Office DECISION AND JUDGMENT

c/o Michael J. Navarre, in his 

capacity as Lucas County Sheriff Decided: June 30, 2022

Respondent

* * * * *

Thomas J. Walsh, II and Hassanayn M. Joseph, for Relator.

Julia R. Bates, Lucas County Prosecuting Attorney, and

John A. Borell and Kevin A. Pituch, Assistant Prosecuting 

Attorneys, for Respondent

* * * * *

PIETRYKOWSKI, J.

{¶ 1} This matter is before the court on the parties’ final merit briefs on relator’s 

petition for a writ of mandamus. For the reasons that follow, we deny relator’s petition 
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for a writ of mandamus as moot, award relator $1,000 in statutory damages, and deny any 

award of statutory attorney fees or court costs.

I. Facts and Procedural Background

{¶ 2} By way of background, the present matter was initiated on July 12, 2021, 

when relator, Lutfi Said Saalim, petitioned for a writ of mandamus seeking an order to 

compel respondent, the Lucas County Sheriff’s Office, to produce public records that 

were responsive to relator’s request for 17 different categories of documents. In his 

petition, relator asserted that his public records request was submitted on May 25, 2021, 

and he had not received a meaningful response to his request for approximately 50 days. 

Relator stated that the documents were “vital to the timely investigation and prosecution 

of the Relator’s civil claims” pertaining to an incident that took place between relator and 

a Lucas County Sheriff’s deputy. Relator subsequently filed a civil action in federal 

court based on the incident. On July 15, 2021, this court issued an alternative writ and 

ordered respondent to either do the act requested, or show cause why it was not required 

to do so by filing an answer or a motion to dismiss.

{¶ 3} In response to our alternative writ, respondent filed a motion to dismiss, 

arguing that the matter was now moot because on July 14, 2021, respondent complied 

with the public records request and turned over 259 pages of documents. Relator 

opposed the motion to dismiss, arguing that there were still several categories of 

documents that had not been provided. On September 8, 2021, we denied respondent’s 
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motion to dismiss, finding that respondent had not provided evidence showing that it had 

responded to all of relator’s public records requests.

{¶ 4} Thereafter, a pretrial hearing was held to clarify and narrow the issues before 

the court, in particular whether respondent had produced all responsive documents, or 

whether respondent was withholding additional documents and, if so, the reasons for nonproduction. As a result of this pretrial hearing, respondent agreed to conduct a search for 

additional documents.

{¶ 5} On September 29, 2021, respondent notified the court that it had produced a 

video and an additional 10 pages of reports to relator. Respondent further stated that it 

possessed no additional documents responsive to relator’s public records requests. 

Simultaneously, respondent filed an answer to relator’s mandamus complaint.

{¶ 6} On December 16, 2021, a status conference was held, at which the court 

reviewed the matters that were still in dispute amongst the parties. Respondent advised 

that additional production of certain body-camera videos would be made to relator. The 

court then ordered that relator would have an opportunity to conduct discovery by 

submitting interrogatories and requests for admissions. Following respondent’s response 

to the discovery, the parties would then have 20 days to submit their case in writing.

{¶ 7} On February 8, 2022, respondent answered relator’s interrogatories and 

requests for admissions. In its response, respondent objected to each of relator’s 

interrogatories on the basis that the interrogatory was not proper for a mandamus action, 

but instead sought information relevant only to relator’s civil claims in the federal court. 
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Respondent then filed a motion for summary judgment on February 25, 2022. On March 

28, 2022, relator filed his opposition to the motion for summary judgment, as well as a

motion to compel respondent to answer the interrogatories.

{¶ 8} On May 18, 2022, this court entered its judgment denying relator’s motion 

to compel, and granting respondent’s motion for summary judgment, in part. As to the 

motion for summary judgment, this court held that no genuine issue of material fact 

existed, and that respondent had provided nearly all of the requested records listed in 

relator’s mandamus complaint. However, this court held that a genuine issue of fact 

remained over whether a February 10, 2021 audio recording existed and was produced to 

relator. Thus, this court found that the mandamus action would proceed solely as it 

related to the February 10, 2021 audio recording. We then ordered the parties to submit 

their final merit briefs regarding whether a writ of mandamus should issue, and whether 

relator is entitled to, and the amount of, any statutory damages, reasonable attorney fees 

and/or court costs under R.C. 149.43.

{¶ 9} The parties have submitted their merit briefs, and the matter is now 

decisional.

II. Analysis

{¶ 10} This mandamus action presents three issues, only one of which is in dispute 

between the parties.
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A. Writ of Mandamus

{¶ 11} The first issue is whether a writ of mandamus should be entered. Both 

parties agree that the remaining public record, the February 10, 2021 audio recording has 

been produced to relator, thereby rendering the mandamus petition moot. See State ex 

rel. Ellis v. Maple Heights Police Dept., 158 Ohio St.3d 25, 2019-Ohio-4137, 139 N.E.3d 

873, ¶ 7 (mandamus claim is moot where the respondent has provided all of the requested 

records); 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, ¶ 14 (“In general, providing the requested 

records to the relator in a public-records mandamus case renders the mandamus claim 

moot.”). Accordingly, we deny relator’s petition for a writ of mandamus.

B. Statutory Damages

{¶ 12} The second issue is whether relator is entitled to statutory damages under 

R.C. 149.43(C)(2), which provides, in relevant part,

If a requester transmits a written request by hand delivery, electronic 

submission, or certified mail to inspect or receive copies of any public 

record in a manner that fairly describes the public record or class of public 

records to the public office or person responsible for the requested public 

records, except as otherwise provided in this section, the requester shall be 

entitled to recover the amount of statutory damages set forth in this division 

if a court determines that the public office or the person responsible for 
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public records failed to comply with an obligation in accordance with 

division (B) of this section.

The amount of statutory damages shall be fixed at one hundred 

dollars for each business day during which the public office or person 

responsible for the requested public records failed to comply with an 

obligation in accordance with division (B) of this section, beginning with 

the day on which the requester files a mandamus action to recover statutory 

damages, up to a maximum of one thousand dollars. The award of 

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

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

of this injury shall be conclusively presumed. The award of statutory 

damages shall be in addition to all other remedies authorized by this 

section.

{¶ 13} Again, the parties agree that relator is entitled to statutory damages in the 

maximum amount of $1,000.00. Accordingly, we hold that relator is entitled to statutory 

damages under R.C. 149.43(C)(2), and respondent is ordered to pay to relator the 

maximum amount of $1,000.00.

C. Statutory Award of Attorney Fees and Court Costs

{¶ 14} Finally, the third issue is whether relator is entitled to reasonable attorney 

fees and/or court costs under R.C. 149.43(C)(3).

{¶ 15} As to attorney fees, R.C. 149.43(C)(3) provides,
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(b) If the court renders a judgment that orders the public office or the 

person responsible for the public record to comply with division (B) of this 

section or if the court determines any of the following, the court may award 

reasonable attorney’s fees to the relator, subject to division (C)(4) of this 

section:

(i) The public office or the person responsible for the public records 

failed to respond affirmatively or negatively to the public records request in 

accordance with the time allowed under division (B) of this section.

(ii) The public office or the person responsible for the public records 

promised to permit the relator to inspect or receive copies of the public 

records requested within a specified period of time but failed to fulfill that 

promise within that specified period of time.

(iii) The public office or the person responsible for the public 

records acted in bad faith when the office or person voluntarily made the 

public records available to the relator for the first time after the relator 

commenced the mandamus action, but before the court issued any order 

concluding whether or not the public office or person was required to 

comply with division (B) of this section. No discovery may be conducted 

on the issue of the alleged bad faith of the public office or person 

responsible for the public records. This division shall not be construed as 

creating a presumption that the public office or the person responsible for 
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the public records acted in bad faith when the office or person voluntarily 

made the public records available to the relator for the first time after the 

relator commenced the mandamus action, but before the court issued any 

order described in this division.

{¶ 16} Of the four justifications for an award of attorney fees listed above, relator 

argues that two of them apply: (1) this court “render[ed] a judgment that order[ed] the 

public office or the person responsible for the public record to comply with division (B) 

of this section” when it entered the alternative writ on July 15, 2021; and (2) respondent 

acted in bad faith as set forth in R.C. 149.43(C)(3)(b)(iii).

{¶ 17} Notably, the two justifications relied upon by relator for an award of 

attorney fees are the same two that would entitle relator to receive court costs. See State 

ex rel. Hedenberg v. North Central Correctional Complex, 162 Ohio St.3d 85, 2020-

Ohio-3815, 164 N.E.3d 358, ¶ 13 (“Court costs may be awarded in a public-records case 

in two circumstances. First, an award of court costs is mandatory when the court grants a 

writ of mandamus compelling a public office to comply with its duties under the Public 

Records Act. R.C. 149.43(C)(3)(a)(i). Second, court costs shall be awarded when the 

court determines that the public office ‘acted in bad faith when [it] made the public 

records available to the relator for the first time after the relator commenced the 

mandamus action, but before the court issued any order concluding whether or not’ to 

grant a writ of mandamus. See R.C. 149.43(C)(3)(a)(ii) and (iii).”). Specifically, as to 

court costs, R.C. 149.43(C)(3) provides,
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(a)(i) If the court orders the public office or the person responsible 

for the public record to comply with division (B) of this section, the court 

shall determine and award to the relator all court costs, which shall be 

construed as remedial and not punitive.

(ii) If the court makes a determination described in division 

(C)(3)(b)(iii) of this section, the court shall determine and award to the 

relator all court costs, which shall be construed as remedial and not 

punitive.

{¶ 18} Because relator relies upon the same justifications for both an award of 

attorney fees and an award of court costs, we will address those two items together.

{¶ 19} First, relator argues that the July 15, 2021 alternative writ was an order for 

respondent to comply with R.C. 149.43(B). This is incorrect. An alternative writ is a 

procedural mechanism whereby the court instructs the respondent to respond to the 

petition by either doing the act requested, or by showing cause why it is not required to 

do so by filing an answer or a motion to dismiss. It is not an order for the respondent to 

comply with R.C. 149.43(B) as described in R.C. 149.43(C)(3)(a)(i). See, e.g., State ex 

rel. Horton v. Kilbane, Slip Opinion No. 2022-Ohio-205, ¶ 38 (relator not entitled to 

court costs because the court did not grant a writ of mandamus, even though the court 

entered an alternative writ); Hedenberg at ¶ 13; State ex rel. McDougald v. Greene, 161 

Ohio St.3d 130, 2020-Ohio-3686, 161 N.E.3d 130, ¶ 23. Thus, relator is not entitled to

attorney fees under R.C. 149.43(C)(3)(b), or to court costs under R.C. 149.43(C)(3)(a)(i).
10.

{¶ 20} Alternatively, relator argues that he is entitled to attorney fees and court 

costs because respondent acted in bad faith. “The term ‘bad faith’ generally implies 

something more than bad judgment or negligence.” McDougald at ¶ 26, quoting State v. 

Powell, 132 Ohio St.3d 233, 2012-Ohio-2577, 971 N.E.2d 865, ¶ 81. “Bad faith ‘imports 

a dishonest purpose, moral obliquity, conscious wrongdoing, breach of a known duty 

through some ulterior motive or ill will partaking of the nature of fraud. It also embraces 

actual intent to mislead or deceive another.’” Id., quoting Powell at ¶ 81.

{¶ 21} Relator contends that bad faith is demonstrated by respondent’s failure to 

timely respond to the public records request before the writ of mandamus was filed, by 

respondent’s inaccurate representations to the court on two occasions that it had turned 

over all requested documents, and by the fact that respondent just recently—and more 

than a year after the original request—finally provided the audio recording from the 

February 10, 2021 internal affairs interview.

{¶ 22} We find this case to be analogous to the facts in McDougald. In that case, 

McDougald submitted a public records request on December 5, 2018, for the Department 

of Administrative Services’ general schedule (“DAS schedule”), and a request on 

February 3, 2019, for a copy of a report that had been filed by Brian Barney concerning a 

use-of-force incident involving McDougald (“Barney report”). McDougald at ¶ 2. 

Greene, the individual responsible for responding to public records requests, notified 

McDougald that the Barney report did not exist. Id. at ¶ 3. On June 28, 2019, 

McDougald filed a complaint for a writ of mandamus. Greene answered that he provided 
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the DAS report to McDougald on July 22, 2019, after McDougald had filed the 

complaint. Id. at ¶ 4. Greene also continued to assert that the Barney report did not exist. 

Id. An alternative writ was issued, and on October 15, 2019, Greene once again asserted 

that the Barney report did not exist. Id. at ¶ 5. However, two weeks later, Greene 

discovered that the Barney report did exist, and he averred that he provided the report to 

McDougald on the same day. Id. ¶ 6.

{¶ 23} In determining that McDougald was not entitled to an award of court costs, 

the Ohio Supreme Court reasoned that “R.C. 149.43(C)(3)(b)(iii) does not create a 

presumption that the person responsible for retrieving the public records acted in bad 

faith when he makes the records available to the requester for the first time after the 

requester files a petition for a writ of mandamus but before a court issues a writ.” Id. at ¶ 

25. In addition, the court found that there was no evidence of bad faith regarding the 

Barney report, noting, “As recently as October 2019, Greene swore in an affidavit that he 

believed the Barney report did not exist. Greene reached this conclusion because he 

looked for the report in a stand-alone file but failed to find it. When Greene later found 

the report in a package of documents, he provided it to McDougald that very same day.” 

Id. at ¶ 27.

{¶ 24} Similarly, in this case, respondent’s failure to timely respond to relator’s 

original public records request does not create a presumption that respondent acted in bad 

faith. Furthermore, like McDougald, respondent’s representations to the court that it had 

turned over all requested document does not demonstrate bad faith where it had 
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conducted a search and produced a plethora of documents, and then later, in consultation 

with relator, respondent searched for additional documents and disclosed them once 

located.

{¶ 25} Therefore, we find that relator has not demonstrated that respondent acted 

in bad faith under R.C. 149.43(C)(3)(b)(iii), and thus relator is not entitled to a statutory 

award of attorney fees or court costs under R.C. 149.43(C)(3).

III. Conclusion

{¶ 26} Accordingly, upon review, we find that relator’s petition for a writ of 

mandamus is moot, and it is hereby denied. In addition, we find that relator is not 

entitled to an award of attorney fees or court costs under R.C. 149.43(C)(3), and his 

request for the same is denied. Finally, we find that relator is entitled to an award of 

statutory damages under R.C. 149.43(C)(2), and we hereby order respondent to pay the 

maximum award of $1,000.00 to relator.

{¶ 27} Each party is responsible for its own costs.

Writ denied.

To the clerk: Manner of service.

The clerk of court is directed to serve upon all parties, within three days, a copy of 

this decision in a manner prescribed by Civ.R. 5(B).

It is so ordered.
13.

State, ex rel. Lutfi Said Saalim v. 

Lucas County Sheriff's Office

C.A. No. L-21-1135

Mark L. Pietrykowski, J. ____________________________

JUDGE

Christine E. Mayle, J. 

____________________________

Myron C. Duhart, J. JUDGE

CONCUR. 

____________________________

JUDGE

This decision is subject to further editing by the Supreme Court of

Ohio’s Reporter of Decisions. Parties interested in viewing the final reported

version are advised to visit the Ohio Supreme Court’s web site at:

http://www.supremecourt.ohio.gov/ROD/docs/.