[Until this opinion appears in the Ohio Official Reports advanc e sheets, it may be cited as State ex rel. Summers v. Fox , Slip Opinion No. 2020-Ohio-5585.]

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 -5585 [T HE S TATE EX REL .] S UMMERS v. F OX , P ROS
. A TTY ., ET AL
. [Until this opinion appears in t he Ohio Official Reports advanc e sheets, it may be cited as State ex rel. Summers v. Fox , Slip Opinion No. 2020-Ohio-5585.] Mandamus—Public records—Father who reque sted public records was not acting as his inmate-son’s designee—R.C. 149.43(B)(8)—Writ granted in part and denied in part. (No. 2018-0959—Submitted September 22, 2020—Decided December 10 , 2020.)
I N M ANDAMUS

.

________________ Per Curiam. {¶ 1} Relator, Charles A. Summers, seek s a writ of mandamus to compel the production of public records by respondents, Mercer County Prosecuting Attorney Matthew Fox and Mercer County Sheriff Jeff Grey (colle ctively, “the county”). We grant the writ in part and deny it in part.S UPREME C OURT OF O HIO

2 {¶ 2} Also pending are three motions: (1) the county’s motion for an order sealing its evidence, (2) the county’s motion to seal its merit brief, and (3) a motion filed by the Ohio Prosecuting A ttorneys Association (“OPAA”) fo r leave to file an amicus brief. We grant the motions to seal and deny as moot th e motion for leave
to file.
I. BACKGROUND A. The Mercer County prosecution {¶ 3} In February 2013, a Mercer County grand jury returned a 47-coun t indictment against Christopher Summers, which included two coun ts of rape and
more than 40 counts of felonious s exual battery. The alleged c rimes occurred when Christopher was employed by the Fort Recovery School District. {¶ 4} J.K. attended Fort Recovery High School, where Christopher was both her teacher and coach. In 2012, J.K. reported to law enfo rcement that Christopher had coerced her into a sexual relationship that had lasted more than two years. {¶ 5} The state voluntarily dismissed th e rape charges on the first d ay of trial. On the third day of trial, after J.K.’s testimony was n early complete, Christopher entered a plea of gu ilty to eight counts of sexual battery in violation of R.C. 2907.03, which prohibits sexua l conduct between a teacher or coach and a student who is enrolled at the school where the teacher is empl oyed. He was sentenced to an aggregate prison term of 20 years. The court o f appeals affirmed
his conviction and sentence in October 2014. State v. Summers , 2014-Ohio-4538, 21 N.E.3d 632, ¶ 53 (3d Dist.). B. The Darke County prosecution {¶ 6} In January 2013, Christopher was indicted on a single count of sexual battery against J.K. in Darke County. He was convicted and sen tenced to one year in prison, to be served consecutivel y to his sentence in the Me rcer County case.January Term, 2020

3 {¶ 7} On October 19, 2018, Darke County Prosecutor R. Kelly Ormsby II I
received an e-mail from a woman na med Joyce White, requesting “ everything you have on Chris Summers.” In December 2018, Ormsby provided Whit e with all the documents in his possession rela ting to Christopher’s prosecuti on in Darke County. The documents included what appears to be J.K.’s detailed accou nt of Christopher’s behavior, containing gra phic sexual content. C. The “Justice for Chris” Facebook page {¶ 8} Relator, Charles Summers, and Vicki Summers are Christopher’s parents. In May 2015, they started a Facebook page called “Jus tice for Chris.” The page states that it was created “with the hope that everyone wh o knows us will learn
the whole truth behind w hat happened to our son.” {¶ 9} Charles and Vicki have used the page as a platform to attack of ficials connected with the case against Christopher, calling the detect ives “bumbling fools” and the trial judge “a very vindictive and mean little m an” and accusing county officials of prosecuting Christopher in order to cover u p a larger rape
scandal. {¶ 10} But the primary target of the “Justice for Chris” site was J.K. , who is described in posts as “sick minded and a huge liar,” a “soci opathic liar,” and in need of “a psychological exam.” The posts routinely identified her by name. Charles and Vicki posted J.K.’s weight and photos of her eating , ostensibly to refute
her claim that the stress of her experience with Christopher ca used her to lose weight. They questioned how she could become engaged, married, and pregnant
so soon after the events involving Christopher. {¶ 11} In early postings, Charles and Vicki set out to prove that J.K. had lied in court, by comparing her trial testimony with that of ot her witnesses. They also insisted that Christopher should not have been prosecuted because J.K. had been a willing participant in the sexual relationship. They po inted to J.K.’s texts asS UPREME C OURT OF O HIO

4 “irrefutable proof that the rela tionship was mutual and consens ual,” not a product
of force or coercion. {¶ 12} As they acquired documents related to the case, Charles and Vic ki posted them online, along with their comments. In April 2018, they posted excerpts from J.K.’s written statement to the police, apparently the sam e one provided to White by Darke County, with a link to the full document. On Ja nuary 21, 2018, they wrote that “[r]ecently, some of the interview videos have been posted on another website.” They then repos ted clips of police interview ing J.K., adding captions and summaries for each clip. {¶ 13} In June 2019, Charles and Vicki were indicted in Celina Municip al Court for 62 counts of menacing b y stalking, telecommunications harassment, and attempts to commit those offenses. On February 10, 2020, the m unicipal court stayed all proceedings in the case pending the resolution of re lated litigation between the parties. D. Charles’s public-records requests {¶ 14} On or about February 1, 2017, Charles sent a public-records req uest to the Mercer County Prosecutor’s Office. He requested the fol lowing:

[1] Any and all video recordings of interviews with the accuser and any other witnesses that were interviewed in the ca se of State of OH vs Christopher A. Summers 12-CRM-129 and 13-CRM
030. [2] Any and all audio recordings of interviews or phone calls made with the accuser or potential witness [sic] in the case of State of OH vs Christopher A. S ummers 12-CRM-129 and 13-CRM 030. [3] Any and all notes made by t he prosecutor or [a] member of his staff or the sheriff’s detectives during interviews with theJanuary Term, 2020

5 accuser or any potential witnesses in the case of State of OH v s Christopher A. Summe rs 12-CRM-129 and 13-CRM 030. [4] Any and all police reports filed by members of the Mercer County Sheriff’s Dept in the case of State of OH vs Christopher A. Summe rs 12-CRM-129 and 13-CRM 030. [5] Recordings of any phone calls made to the sheriff’s office or 911 from the mother of the accuser on or about November 5, 2012. Also any other recordings of phone calls to central disp atch or sheriff’s office concerning the case of State of OH vs Chris topher
A. Summers 12-CRM-129 and 13-CRM 030. [6] Copies of letters sent to potential defense witnesses by the prosecutor or any member of his staff in the case of State of OH vs Christopher A. Su mmers 12-CRM-129 and 13-CRM 030. [7] Any pictures or notes taken during the search of the home
of Chris and Laurie Summe rs on or about November 6, 2012. [8] Any correspondence between the prosecutor and/or members of his staff to the defense lawyers, Howell and Lammers
in the case of State of OH vs Christopher A. Summers 12-CRM-129
and 13-CRM 030. [9] Any statements (written or recorded) made by the accuser [J.K.] to any member of the Sheriff’s Dept or the
Prosecutor’s Office. [10] Any statements (written or recorded) made by the accuser’s mother [L.K.] or any member of the [K.] family.

{¶ 15} On March 6, 2017, he sent a similar public-records request to t he Mercer County sheriff. He r equested the following:S UPREME C OURT OF O HIO

6 [1] Any and all video recordings of interviews with the accuser [J.K.] and any other witnesses that were interviewed in the
case of State of OH vs Christ opher A. Summers 12-CRM-129 and
13-CRM 030. [2] Any and all audio recordings of interviews or phone calls made with the accuser or potential witnesses in the case of Sta te of OH vs Christopher A. Su mmers 12-CRM-129 and 13-CRM 030. [3] Any and all notes made by the sheriff’s detectives during interviews with the accuser or any potential witnesses in the c ase of State of OH vs Christopher A. Summers 12-CRM-129 and 13-CRM
030. [4] Any and all police reports filed by members of the Mercer County Sheriff’s Dept in the case of State of OH vs Christopher A. Summe rs 12-CRM-129 and 13-CRM 030. [5] Recordings of any phone calls made to the sheriff’s office or 911 from the mother of the accuser on or about November 5, 2012. Also any and all other recordings of phone calls to cent ral dispatch or sheriff’s office concerning the case of State of OH vs Christopher A. Summe rs 12-CRM-129 and 13-CRM 030. [6] Any pictures or notes taken during the search of the home
of Chris and Laurie Summe rs on or about November 6, 2012. [7] Any correspondence between members of the Mercer County Sheriff’s Department to [sic] the Mercer County Prosecut or of member [sic] of his staff in the case of State of OH vs Chri stopher
A. Summers 12-CRM-129 and 13-CRM 030. [8] Any statements (written or recorded) made by the accuser [J.K.] to any member of the Sheriff’s Department.January Term, 2020

7 [9] Any statements (written or recorded) made by the accuser’s mother [L.K.] or any member of the [K.] family.

{¶ 16} The county denied Charles’s requests, offering multiple justifications. As an inmate, Christopher would have had to se cure approval from the judge who sentenced him before he could demand records rela ting to his case. R.C. 149.43(B)(8). The county took the position that Charles, because he was Christopher’s father, was subject t o the same requirement. It also denied the requests as overbroad and subject to various privileges. {¶ 17} On May 4, 2017, Charles sent a second request, in which he deni ed that he was acting as Christopher’s designee. The county again rejected the requests, in a lette r dated May 31, 2017.
II. PROCEDURAL HISTORY {¶ 18} On July 12, 2018, Charles commenced this action for a writ of mandamus. After court-ordered mediation, Fox provided some res ponsive records
to Charles’s counsel. {¶ 19} On June 26, 2019, we granted an a lternative writ of mandamus. 156 Ohio St.3d 1440, 2019-Ohio-2496, 125 N.E.3d 903. J.K. filed a motion for leave to intervene as a respondent , which we granted. 156 Ohio St.3d 1480, 2019-Ohio3170, 128 N.E.3d 247. {¶ 20} The county filed six volumes of evidence, which did not include copies of the records at issue in this case. It also filed a m otion for leave to file portions of that evidence under s eal and moved for leave to hav e its merit brief placed under seal. We also receive d three amicus briefs in sup port of the county, from (1) the National Crime Victim Law Institute, the Ohio Dome stic Violence Network, and the Ohio Alliance to End Sexual Violence, (2) The Buckeye State Sheriffs’ Association, and (3) the OPAA, which submitted its br ief along with its
motion for leave to file.S UPREME C OURT OF O HIO

8 {¶ 21} The parties all requested oral ar gument, which we granted. 157 Ohio St.3d 1501, 2019-Ohio-4768, 134 N.E.3d 1225. We heard oral arg ument on April 8, 2020, after which we ordered Fox to submit the disputed reco rds for inspection.
Our order also commanded: “R espondent Fox shall * * * file with the court a document-by-document list of each document that he claims is pr ivileged and/or subject to a statutory excepti on. The list shall include a det ailed explanation of the reason(s) that each document is subject to privilege or a statu tory exception.” 158 Ohio St.3d 1462, 2020-Ohio-1424, 142 N.E.3d 684. On May 28, 20 20, Fox complied with that order.
III. LEGAL ANALYSIS A. Preliminary matters {¶ 22} Before we reach the substance of Charles’s public-records reque sts, we must address several preliminary issues. {¶ 23} First, the OPAA filed a motion for leave to file an amicus brie f in support of the county, along with a copy of the proposed brief. However, under our rules, “an amicus curiae may file a merit brief in an original action without leave of
court.” State ex rel. Duke Energy Ohio, Inc. v. Hamilton Cty. Court of Common
Pleas , 126 Ohio St.3d 41, 2010-Ohio-2450, 930 N.E.2d 299, ¶ 11; see also S.Ct.Prac.R. 12.07(A) and 16.06(A). Because leave is not requi red, we deny the
motion as moot. {¶ 24} Second, when it filed its evidence, the county also filed a mot ion for
leave to file the exhibits under seal. One month later, the co unty moved to have its merit brief placed under seal. T he county asked to have specif ic items of evidence sealed, including the affidavits of J.K., Fox, and Sergeant Det ective Megan Baker of the Mercer County Sheriff’s Office, as well as copies of pos ts from the Justice for Chris Facebook page. We have reviewed the filings and find that much of the information they contain is personal and sensitive and pertains to people who didJanuary Term, 2020

9 not choose to file this lawsuit or place this information befor e the public. Moreover, Charles has not opposed the moti ons. We therefore grant them. {¶ 25} Finally, several of Charles’s public-records requests are no lo nger live controversies because the p arties appear to agree that the county provided the responsive records during mediation. The county represents tha t these records include police reports (Charles’ s fourth request to both Fox an d Grey), calls to 911 or the sheriff’s office (Charles’s fifth request to both Fox an d Grey), notes and pictures taken during the sear ch of Christopher’s home (Charles ’s seventh request to Fox and sixth request to Grey), and statements made by the a ccuser’s family (Charles’s tenth request to Fox and ninth request to Grey). Ch arles has not contested this representation; indeed, in his filings, he does not list these records among his outstanding requests. As a result, we hold that Char les’s requests for
these records are moot. B. The public-records requests {¶ 26} The Public Records Act, R.C. 149.43, requires a public office t o promptly make copies of public records available to any person upon request. R.C. 149.43(B)(1). A “public record” is a record “kept by any publi c office.” R.C. 149.43(A)(1). Mandamus is an appr opriate action by which to co mpel compliance with the Public Records Act. R.C. 149.43(C)(1)(b); 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. {¶ 27} To be entitled to the writ, Charles must demonstrate by clear a nd convincing evidence that he has a clear legal right to the requ ested relief and that the county has a clear legal duty to provide that relief. See State ex rel. Cincinnati Enquirer v. Sage , 142 Ohio St.3d 392, 2015-Ohio-974, 31 N.E.3d 616, ¶ 10. Ohio ’s Public Records Act “is construed liberally in favor of broad ac cess, 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).S UPREME C OURT OF O HIO

10 {¶ 28} The two offices involved here, the Mercer County prosecuting attorney and the Mercer County sheriff, are public offices subj ect to the requirements of the P ublic Records Act. State ex rel. McCaffrey v. Mahoning Cty. Prosecutor’s Office , 133 Ohio St.3d 139, 2012-Ohio-4246, 976 N.E.2d 877, ¶ 1; State ex rel. Rocker v. Guernsey Cty. Sheriff’s Office , 126 Ohio St.3d 224, 2010- Ohio-3288, 932 N.E.2d 327, ¶ 14. Because the county has invoke d a number of statutory exceptions to the Public Records Act’s disclosure req uirement, it bears the burden of proof with respect to those exceptions. State ex rel. Besser v. Ohio
State Univ. , 89 Ohio St.3d 396, 398, 732 N.E.2d 373 (2000). To meet this burden, a custodian must prove that the requested records fall squarely within the exception. State ex rel. Miller v. Ohio State Hwy. Patrol , 136 Ohio St.3d 350, 2013-Ohio3720, 995 N.E.2d 1175, ¶ 23.
1. The evidence that Charles w as a designee for Christopher {¶ 29} As an initial matter, the county cites R.C. 149.43(B)(8) as one basis for its refusal to comply with any of Charles’s public-records requests. R.C. 149.43(B)(8) states that there is no duty to provide to an inma te “any public record concerning a criminal investigation or prosecution” unless “the judge who imposed the sentence * * * finds that the information sought in the pub lic record is necessary to support what appears to be a ju sticiable claim of the person .” For example, an inmate who seeks records of his arraignment cannot compel the p roduction of those public records without a finding by the sentencing judge that t he record supports a
valid claim. McCain v. Huffman , 151 Ohio St.3d 611, 2017-Ohio-9241, 91 N.E.3d 749, ¶ 12. {¶ 30} The county contends that R.C. 149.43(B)(8) applies in this case because Charles was acting as Christopher’s designee, citing State ex rel. Barb v. Cuyahoga Cty. Jury Commr. , 128 Ohio St.3d 528, 2011-Ohio-1914, 947 N.E.2d 670 (“ Barb II ”). In that case, the Eighth District Court of Appeals held th at Herbert Barb was acting as his inmate-brother Danny’s “designee” in req uesting recordsJanuary Term, 2020

11 related to Danny’s conviction. State ex rel. Barb v. Cuyahoga Cty. Jury Commr. , 8th Dist. Cuyahoga No. 95005, 2010-Ohio-6190, ¶ 7 (“ Barb I ”). The court of appeals denied the writ for two reasons. First, Danny had alre ady made four prior unsuccessful attempts to obtain a writ of mandamus, so res judi cata applied to requests made by Danny, wheth er directly or indirectly. Id . at ¶ 11-12. And second, even if it were the first reque st, Herbert would still be bound by the restriction upon Danny: “Herbert may not do indirectly what Danny is prohibited from doing directly,” namely secure the documents without the approval of the trial judge required by R.C. 149.43(B)(8). Id . at ¶ 13. On appeal, we affirmed, citing both bases for denying the writ. Barb II at ¶ 1. {¶ 31} A “designee” is “[s]omeone who has been designated to perform some duty or carry out some specific role.” Black’s Law Dictionary 541 (10th Ed.2014). And to “designate” means “[t]o choose (someone or so mething) for a particular job or purpose.” Id . Thus, the term connotes some intentional agency. In his affidavit, Charles attests, “I am not now nor have I at any other time acted as a designee of Mr. Christopher Summers.” {¶ 32} The county claims, to the contrary, that the evidence confirms that Charles was acting as Christopher’s designee. It asserts that “Christopher’s inmate emails and phone calls establish that [Charles] is posting item s on the Facebook page at the explicit instructi on of Christopher.” It points to an e-mail to Christopher dated February 4, 2018, in which Charles wrote, “you tell mom e xactly what you want put on the FB page and she will.” Along the same lines, t he county claims that “[i]n an email dated N ovember 18, 2018, Christopher gives detailed instructions” to a private investigator named Jack Bastian “on how the public records request by Joyce White to Darke County should be handle d.” And the county cites other te lephone calls and e-mails in which Christo pher and Charles discuss whether to post videos of the witnesses on the Facebook page.S UPREME C OURT OF O HIO

12 {¶ 33} However, this evidence has little probative value for proving t hat Charles was acting as Christopher’s designee when he requested public records. The e-mail from Charles quoted above was written over one year after Charles sent his first public-records request , and the e-mail does not menti on those requests. And the county’s own evidence su ggests that Bastian and White w ere hired not by Charles or Christopher but by Jeffrey Rasawehr, who operates th e website www.countycoverup.com and the Facebook page “County Cover-up,” which also publishes articles a bout Christopher’s criminal case. Essentia lly, the county invites us to assume that if Christopher was directing his father in th e operation of the Facebook page, then he must have also been the driving force be hind the requests. But an assumption does not rise to the level of clear and convi ncing proof necessary to apply an exception to the Public Records Act. See State ex rel. Cincinnati Enquirer v. Jones-Kelley , 118 Ohio St.3d 81, 2008-Ohio-1770, 886 N.E.2d 206, ¶ 22-23 (public-records custodian bears the burden of proving t hat a statutory exception to disclosure applies t o the facts of the specific ca se). {¶ 34} In lieu of direct evidence tha t Charles submitted his public-re cords requests at Christopher’s behest , the county implicitly asks us to adopt a presumption of agency. In Barb I , the court of appeals discerned a designee relationship from the fact that the requester was seeking the r ecords in an effort to prove that Danny Barb was denied a fair trial. Barb I , 8th Dist. Cuyahoga No. 95005, 2010-Ohio-6190, at ¶ 7. Similarly, here, the county con tends that Charles was serving the interests of Chr istopher by requesting the reco rds and that his intent to benefit Christopher should make him subject to the same requ irement of prior court approval as Chr istopher. But by its plain terms, R.C. 14 9.43(B)(8) applies to requests from an inmate; there i s no textual basis for extendin g the statutory language to someone who simply wants to benefit an inmate. {¶ 35} Alternatively, the county asks us to fashion a per se rule crea ting an irrebuttable presumption that all family members within a certa in degree ofJanuary Term, 2020

13 consanguinity are acting as designees when they seek criminal r ecords relating to their imprisoned relations. But when a statute is clear and un ambiguous, a court must apply the statute as written, without inserting or deletin g words. Dundics v. Eric Petroleum Corp. , 155 Ohio St.3d 192, 2018-Ohio-3826, 120 N.E.3d 758, ¶ 7. Had the General Assembly wished to curtail public access to cou rt records in such a broad, categorical fashion, it w ould have included express la nguage to that effect
in the Public Records Act. See , e.g. , In re Application of Columbus S. Power Co. , 138 Ohio St.3d 448, 2014-Ohio-462, 8 N.E.3d 863, ¶ 26 (“had the General Assembly intended to require that electric-distribution utiliti es prove that carrying costs were ‘necessary’ before t hey could be recovered, it would have chosen words to that effect”). {¶ 36} For these reasons, we hold that the county has failed to prove that Charles was a designee subject to R.C. 149.43(B)(8). Therefore , the county was not entitled to invoke that exception as a basis for its refusa l to produce the records.
2. The first request to Fox {¶ 37} In his first request to Fox, Char les asked for the video record ings of
interviews with J.K. and other witnesses in the criminal case a gainst Christopher. Fox withheld four video recordings of interviews of J.K., condu cted on November 5, 6, 7, and 9, 2012. In addition, Fo x refused to provide the video recordings of
interviews with five witnesse s: (1) L.P. on November 16, 2012, (2) D.W. on November 26, 2012, (3) D.B. on January 31, 2013, (4) K.N. on Ju ly 11, 2013, and (5) K.F. on July 11, 2013. The county contends that Charles’s request for these videos is moot. Alternatively, it argues that these videos are exempt from disclosure due to (1) the R.C. 149.43(A)(1)(v) exception for re cords protected from disclosure by federal law, (2) the protections of Marsy’s Law, (3) the exception for “confidential law enforcement investigatory records,” (4) the t rial-preparation privilege, and (5) the attorn ey-work-product privilege.S UPREME C OURT OF O HIO

14 a. Mootness {¶ 38} As previously noted, the Darke County prosecutor provided recor ds to White in response to her public-records request. The county alleges that Charles’s public-records requests for video recordings of the w itness interviews are moot because Charles already has possession of the videos. We reject this
contention. {¶ 39} Nothing in the text of the Public Records Act excuses a public office from its duty to supply records upon a showing that the request er has obtained the record from a third party. Thus, the fact that Charles may alr eady have received some of the requested records from another source does not rend er his requests

moot. b. J.K.’s right to privacy under federal law and Marsy’s Law {¶ 40} R.C. 149.43(A)(1)(v) exempts from the Public Records Act record s “the release of which is prohibited by state or federal law.” The county and J.K. assert two legal prohibitions on disclosure, based on J.K.’s al leged right to privacy concerning the details of t he crimes against her. {¶ 41} First, they assert that a victim of rape or sexual assault has a constitutional right to privacy concerning the details of the c rime, which should exempt that information from disc losure. In support, they rely on Bloch v. Ribar , 156 F.3d 673 (6th Cir.1998), which decl ared that “a rape victim has a fundamental right of privacy in preventing government officials from gratui tously and unnecessarily releasing the intimate details of the rape where no penological purpose is being served.” Id. at 686. According to J.K. and the county, that privacy
interest satisfies the R.C . 149.43(A)(1)(v) exception. But Bloch , which dealt with a civil-rights claim under 42 U.S.C. 1983, is of limited value here. The holding cited by the county and J.K. res ulted from an equitable weighin g of the victim’s privacy interests against the state’s interests favoring disclo sure. Bloch at 686.
Bloch is not a public-records case a nd it did not create the categor ical exception toJanuary Term, 2020

15 disclosure under federal law re quired by R.C. 149.43(A)(1)(v). See , e.g. , State ex rel. ESPN, Inc. v. Ohio State Univ. , 132 Ohio St.3d 212, 2012-Ohio-2690, 970 N.E.2d 939, ¶ 25 (the Family Educational Rights and Privacy Act , 20 U.S.C. 1232g, which requires schools receiving federal funds to keep sensitiv e student information confidential, is a prohibition on the release of re cords). As a result, J.K. and the county have failed t o show that federal law prohib its disclosure of the witness-interview video recordings. {¶ 42} Second, the county asserts that J.K. has privacy rights under O hio Constitution, Article I, Section 10a (“Marsy’s Law”) and that t hose rights preclude dissemination of the requested i nformation. Marsy’s Law seeks to “secure for victims justice and due process throughout the criminal and juvenile justice
systems ” by affording certain rights, among them the right “to be trea ted with fairness and respect for the victim’s safety, dignity, and priv acy.” (Emphasis added.) Ohio Constitution, Article I, Section 10a(A)(1). But Marsy’s Law does not provide an exception to the P ublic Records Act here. This case is a civil dispute over the release of public records relating to a criminal matte r that is no longer ongoing. Consequently, Marsy’s Law does not provide a basis fo r the county to deny Charles’s public-records requests. c. Confidential law-enforcement investigatory techniques {¶ 43} The county next asserts that the witness intervie ws are exempt from disclosure as “confidential law enforcement investigatory recor ds,” R.C. 149.43(A)(1)(h). The Public Records Act defines such records a s “any record that pertains to a law enforcement matter of a criminal * * * nature , but only to the
extent that the release of the r ecord would create a high proba bility of disclosure of * * * [s]pecific confidential investigatory techniques or proce dures,” R.C. 149.43(A)(2)(c). The county conte nds that disclosing the video recordings of the interviews with J.K. and the five witnesses “will substantially impact future investigations.”S UPREME C OURT OF O HIO

16 {¶ 44} In support of this argument, the county proffers an affidavit f rom Baker, who attests that interviewing sexual-assault victims is a “sensitive issue” that “requires special technique s and a thorough understanding of the sexual assault victim’s mind set.” Baker emphasizes the importance of establi shing rapport with the victim, but she never identifies a specific technique that must not be disclosed. Nor does she explain what is “confidential” about trying to win the confidence of a witness or crime victim or approaching the interview with a hei ghtened degree of sensitivity. Instead, Baker expresses concern that releasing t he interviews will traumatize victims and impair Baker’s ability to win the confid ence and trust of future victims. Several amici raise similar concerns, but they also fail to identify the specific technique at issue or explain why such a technique must remain
confidential. {¶ 45} At most, Baker’s affidavit and the amici’s arguments raise a po licy
concern. But such concerns do not create an investigative tech nique or make such a technique confidential. As a result, there is no merit to th e assertion that the
witness interviews are records of confidential law-enforcement investigatory techniques exempt from disclo sure under R.C. 149.43(A)(1)(h). d. Trial-preparation records {¶ 46} The county next contends that the video recordings of the witne ss interviews are exempt from disclosure, under R.C. 149.43(A)(1)( g), as trialpreparation records. The Revised Code defines “[t]rial prepara tion record” as “any record that contains information that is specifically compiled in reasonable anticipation of, or in defense of, a civil or criminal action o r proceeding, including the independent thought processes and personal trial preparatio n of an attorney.” R.C. 149.43(A)(4). {¶ 47} The county takes the position that every document in a prosecutor’s file, including investigatory records prepared by other agencie s, is a trialpreparation record because “[t]he copies were compiled by the p rosecutor or hisJanuary Term, 2020

17 assistants in preparation of the Prosecutor’s legal theories an d trial strategies.” But the presence of a record in a prosecutor’s file does not, in an d of itself, turn something into a trial-preparation record. Sage , 142 Ohio St.3d 392, 2015-Ohio974, 31 N.E.3d 616, at ¶ 15, citing State ex rel. Carpenter v. Tubbs Jones , 72 Ohio St.3d 579, 580, 651 N.E.2d 993 (1995). Rather, it is the natur e of the record itself that determines its exempt or non-exempt status, and what would otherwise constitute non-exempt records “do not become ‘trial preparation records’ simply because they are contained within a prosecutor’s file.” Carpenter at 580. This places the recordings of the witness interviews outside of the exception stated in
State ex rel. Steckman v. Jackson , 70 Ohio St.3d 420, 431-432, 639 N.E.2d 83 (1994), and later limited by State ex rel. Caster v. Columbus , 151 Ohio St.3d 425, 2016-Ohio-8394, 89 N.E.3d 598, concerning records contained in the prosecution’s
file. {¶ 48} Under our caselaw, whether a record is specifically compiled in anticipation of a criminal proceed ing often determines whether it constitutes a trialpreparation record. Thus, “gen eral fact-finding investigations do not produce trialpreparation records, as ‘such i nvestigations do not meet the “s pecifically compiled” requirement of the statute.’ ” Sage at ¶ 14, quoting State ex rel. Coleman v.
Cincinnati , 57 Ohio St.3d 83, 84, 566 N.E.2d 151 (1991), quoting R.C. 149.43(A)(4). But when witness st atements to law enforcement a re “ ‘specifically prepared * * * for the sole purpose of providing the prosecuto r with the information necessary to present the case to the grand jury and to the jury at the criminal trial,’ ” they constitute trial-preparation records and the exception a pplies. (Ellipsis sic.) State ex rel. Hamblin v. Brooklyn , 67 Ohio St.3d 152, 153, 616 N.E.2d 883 (1993), quoting State ex rel. Hamblin v. Brooklyn , 8th Dist. Cuyahoga No. 58013, 1991 WL 502005, *3 (July 1, 1991). {¶ 49} None of law enforcement’s interviews of J.K. fall within the statutory definition of trial-p reparation records. The first i nterview of J.K. occurredS UPREME C OURT OF O HIO

18 on November 5, 2012, two days befor e a criminal complaint was f iled against Christopher. It was conducted by a uniformed deputy sheriff at the office of the county sheriff. There is no evidence that attorneys for the st ate played any role in
the interview or that the inte rview was conducte d in preparatio n for trial rather than to gather information in the course of investigating a potentia l crime. The same is true of the interviews with J.K. conducted on November 6, 7, an d 9, 2012, which were conducted by plain-clothes d etectives in the same meeting room. While the detective’s statement, in the November 9 interview, that “next week, Thursday, I’ll be presenting the case to the grand jury” suggests the intervie w was to help the detective prepare for his appearance, the county has not presen ted evidence that this interview occurred at the prosecutor’s instigation or even with the prosecutor’s knowledge. All told, none of the police interviews of J.K. mee t the definition of a trial-preparation record. {¶ 50} This leaves the video recordings of law enforcement interviewin g the five other witnesses. But of these remaining interviews, o nly two, the July 11, 2013 interviews of K.N. and K.F, were for the purpose of trial preparation, rather than general investigation. In each interview, the interviewin g detectives informed the witness that Christopher’s trial was imminent and that they were collecting information in anticipation of a nd for possible use at trial. For this reason, the recordings of the interviews of K.N. and K.F. can be reasonably understood to meet the statutory definition of trial -preparation records and are n ot subject to production. The other interviews, however, lack such indicia d o not qualify as trialpreparation records under th e statutory definition. {¶ 51} Finally, the county asks us to craft a new exception to the Pub lic Records Act to protect the privacy of witnesses, based on Sup.R . 12(C)(2), which requires judges to “inform victims and witnesses of their right to object to being filmed, videotaped, recorded, or photographed.” The county sug gests that “[i]t makes little sense to protect a witness from such invasions at trial, only to requireJanuary Term, 2020

19 that same type of record to be made public simply because it oc curs prior to trial.” However, as noted above, the General Assembly, not the court, i s the “ultimate arbiter of policy considerations relevant to public-records law s.” Kish v. Akron , 109 Ohio St.3d 162, 2006-Ohio-1244, 846 N.E.2d 811, ¶ 44. {¶ 52} For these reasons, we hold that the county has established the applicability of the trial-preparation exception to only two ofthe nine witnessinterview video recordin gs, those of K.N. and K.F. e. The attorney-work-product doctrine {¶ 53} Alternatively, the county argues that the records are beyond th e scope of the Public Records Act based on the attorney-work-prod uct doctrine. The work-product doctrine is a discovery privilege, codified in Civ .R. 26(B)(4), that requires a showing of good cause before a party may obtain tria l-preparation materials from an adverse part y or that party’s counsel. {¶ 54} The Public Records Act has adopt ed a work-product protection in one narrow context. A record may be a “[c]onfidential law enfo rcement investigatory record” if releasing it would create a high proba bility of disclosing “specific investigatory work p roduct.” R.C. 149.43(A)(2)(c). The exception for specific investigatory work product “does not extend beyond the completion of the trial of the underlying criminal case at issue.” Caster , 151 Ohio St.3d 425, 2016- Ohio-8394, 89 N.E.3d 598, at ¶ 1. The scope of specific invest igatory work product under R.C. 149.43(A)(2)(c) is mode led on the attorney-work-prod uct privilege. See State ex rel. Cincinnati Enquirer v. Ohio Dept. of Pub. Safety , 148 Ohio St.3d 433, 2016-Ohio-7987, 71 N.E.3d 258 ¶ 41 (applying “the principles of attorney work product” to define the s cope of specific investigatory work pro duct). {¶ 55} But the exception for specific i nvestigatory work product is a lawenforcement exception. The Public Records Act contains no exce ption for attorney work product, except insofar as attorney work product constitut es trial-preparation
records. See State ex rel. Dist. 1199, Health Care & Social Serv. Union, SEIU,S UPREME C OURT OF O HIO

20 AFL-CIO v. Gulyassy , 107 Ohio App.3d 729, 737, 669 N.E.2d 487 (10th Dist.1995) (noting that the Public Records Act “exceptions mention attorne y ‘work product’ only as it concerns preparation for litigation, and [mention] i nvestigatory work product only as it concerns confid ential law enforcement invest igatory records”).

“[T]he work product doctrine is not intended to remove public records from availability to the public merely because they are also used for litigation. Hence, Civ.R. 26(B)(3) does not authorize a governmental unit to except from R.C. 149.43 public records whi ch are otherwise required to be mad e available for inspection.”

(Brackets sic.) State ex rel. Parisi v. Heck , 2d Dist. Montgomery No. 25709, 2013- Ohio-4948, ¶ 10, quoting State v. Weir , 10th Dist. Franklin No. 79AP-423, 1980 WL 353222 (Jan. 10, 1980). Thus, the attorney-work-product pri vilege is not an independent basis for shielding records from disclosure under t he Public Records
Act. {¶ 56} Because we have held that the trial-preparation exception is inapplicable, we conclude that the attorney-work-product privil ege similarly does
not shield these records from disclosure. {¶ 57} Having rejected the county’s defenses against disclosure, we gr ant the writ of mandamus as to the records responsive to Charles’s first request to Fox, with the exception of the recordin gs of the interviews of K.N. and K.F. 3. The second request to Fox {¶ 58} The county withheld 14 audio recordings that were responsive to Charles’s second reque st: 5 telephone calls between J.K.’s moth er and the Mercer County Sheriff’s Office; an audio recording of a “threatening” telephone call from Christopher to J.K.; audio recordings of interviews with H.F., J.K., L.N., L.S., V.M,January Term, 2020

21 and W.B.; a voicemail Laurie Su mmers left for J.K.; and an audi o recording of the
Miranda warning given to Christopher. {¶ 59} The county asserts that Charles’s claim regarding these records is “most likely moot” because Charles is “presumably” in possessio n of the audio recordings because the Darke County prosecutor produced them to White. But here again, the county has not proved that the Darke County prosecut or gave all of these items to White or that White gave them to Charles. Nor has the county cited caselaw to establish that a pub lic office does not have to prod uce public records to a requester who is known or believed to have obtained those rec ords from a
different source. {¶ 60} Alternatively, the county argues that these materials qualify a s trialpreparation records. But it has not alleged that they contain information “specifically compiled in reasona ble anticipation of, or in def ense of, a civil or criminal action.” R.C. 149.43(A)(4 ). For example, harassing t elephone calls from the Summers family to J.K. woul d not qualify as trial-preparati on records. Instead, the county claims they are exempt solely because Fox utilized them in preparation
for the criminal trial. But as explained above, materials are not rendered exempt from disclosure simply by their placement in a prosecutor’s fil e. Because there is no evidence that these records were specifically prepared for t rial, they do not enjoy any privilege and are not exempt from disclosure. Sage , 142 Ohio St.3d 392, 2015- Ohio-974, 31 N.E.3d 616, at ¶ 16. {¶ 61} We grant the writ of mandamus as to the records responsive to Charles’s second request to Fox.
4. The third re quest to Fox {¶ 62} The records responsive to Charles ’s third request consist of 92 pages of lined paper containing hand-written notes made by Fox. Such personal notes are outside the scope of the Public Records Act.S UPREME C OURT OF O HIO

22 {¶ 63} R.C. 149.43(A)(1) defines “public record” as a record kept by a ny “public office .” (Emphasis added.) “It does not define a ‘public record’ as any piece of paper on which a public officer writes something.” State ex rel. Steffen v. Kraft , 67 Ohio St.3d 439, 440, 619 N.E.2d 688 (1993). In Steffen , we held that a judge’s personal notes, taken during trial, were “kept for the judge’s own
convenience and not official reco rds,” and that “permitting a l itigant access to a judge’s personal trial notes woul d intrude upon a judge’s subje ctive thoughts and
deliberations.” Id . The same considerations pertain to counsel’s notes. {¶ 64} Charles argues that personal notes are subject to the Public Records Act if the notes are maintained for future reference, citing State ex rel. Pietrangelo
v. Avon Lake , 149 Ohio St.3d 273, 2016-Ohio-5725, 74 N.E.3d 419. Pietrangelo
arose out of an incident at a s kate park, during which officers spoke with people at the park and took notes to use wh en preparing an incident repor t. Id. at ¶ 3. We found that the notes had been destroyed and therefore could not be produced. Id. at ¶ 20. Pietrangelo had alleged that the police department’s recordkeeping system required that notes regarding vio lations of skate-park rules be maintained at the department for future reference. Id . at ¶ 19. But if that were true, then the notes
would not have been solely for the officers’ personal use . In this case, by contrast, there is no evidence or allegation that the prosecutor’s office has a policy of maintaining attorney notes for f uture reference in other cases. {¶ 65} After noting the general rule that personal notes are generally exempt from disclosure but acknowledging that a custom of keeping the notes for future reference might change their status, our opinion in Pietrangelo made two additional observations: that Pietrangelo b elieved that the notes containe d information not in the incident report and that the city admitted in its answer th at this might be the case. Based on this dictum, Charles argues that personal notes are subject to disclosure if they contain ex onerating information not in a pub lic report.January Term, 2020

23 {¶ 66} But we did not adopt such a rule in Pietrangelo , and we decline to
do so now. Personal notes fall outside the scope of the Public Records Act due to
the circumstances of their crea tion: when the notes are taken b y an official for his own personal convenience and are not required to be maintained, they are not
records of the office . This distinguishes the personal-notes exception from other exceptions (for example, the attorney-client privilege) that de pend for their
existence on the substance of the information contained in the record. We fail to see why personal notes might los e their exempt status simply be cause they contain
information that is not incl uded in an official report. {¶ 67} We deny the writ of mandamus as to the personal notes sought in Charles’s third request to Fox. 5. The sixth request to Fox {¶ 68} With respect to Charles’s sixth request, Fox submitted three computer files to the court under seal, but most of the documen ts contained therein are not responsive to the request . The first two files contain correspondence between the prosecutor’s office and individuals in the Ohio Att orney General’s Cybercrimes Unit or the Bureau of Criminal Investigation, not c orrespondence sent to potential defense witnesses. {¶ 69} The third file contains 27 letters to prospective trial witness es signed by Fox. The first 17 letters a re beyond the scope of the reque st because they were sent to the state’s potential w itnesses, not to defense witness es. {¶ 70} The remaining ten letters, date d June 19, were sent to witnesse s identified by the defense. The county argues that these letter s constitute trialpreparation records because “any correspondence between [Fox] a nd potential witnesses regarding testimony at a pending criminal trial would necessarily contain information that was compiled in anticipation of the trial” and would reveal his trial strategy and preparation. However, a review of the letters sho ws that they do not contain any substantive information that would be unknown to th e defense. TheS UPREME C OURT OF O HIO

24 letters merely indicate that the prosecutor wishes to speak wit h the defense witnesses. But the letters giv e no indication as to the substa ntive topics he will discuss with those witnesses or what their trial testimony migh t be, and they therefore do not reveal his trial strategy. {¶ 71} We therefore grant a writ of ma ndamus as to those ten letters, which are responsive to Charles ’s sixth request to Fox. 6. The eighth request to Fox {¶ 72} Fox initially denied Charles’s eighth request on the ground tha t the requested correspondence was atto rney work product (even though the request expressly sought communications with opposing counsel). In thi s litigation, the county has abandoned that defense and instead asserts that the request is overbroad. We reject that contention. {¶ 73} A person who wishes to inspect public records must identify the records at issue with reasonable clarity. State ex rel. Zidonis v. Columbus State Community College , 133 Ohio St.3d 122, 2012-Ohio-4228, 976 N.E.2d 861, ¶ 21.
The Public Records Act “does not contemplate that any individua l has the right to a complete duplication of volu minous files kept by government a gencies.” State ex rel. Warren Newspapers, Inc. v. Hudson , 70 Ohio St.3d 619, 624, 640 N.E.2d 174 (1994). Thus, a request that seeks duplication of entire c ategories of documents is overly broad and may be denied on that basis. See , e.g. , Zidonis at ¶ 23 (request for whole categories of complai nt and litigation files without any limitation as to content or time period was overbroad). {¶ 74} As a general rule, a public official may assert a public-record s exception in litigation that the official did not raise in the initial rejection letter.
See , e.g. , McDougald v. Greene , ___ Ohio St.3d ___, 2020-Ohio-4268, ___ N.E.3d ___, ¶ 18 (Kennedy, J., dissenting) (noting that respondent aba ndoned his original legal theory when the mandamus complaint was filed). But permi tting a public official to oppose a request as overbroad for the first time in litigation would enableJanuary Term, 2020

25 the official to avoid the duty, when denying a request as overl y broad, to “provide the requester with an opportunity to revise the request by info rming the requester of the manner in which records are maintained by the public off ice and accessed in the ordinary course.” R.C. 149.43(B)(2). Having failed to all ow Charles the opportunity to cure, the county cannot assert an overbreadth ob jection now. {¶ 75} Moreover, Charles’s request is not comparable in its breadth to those we have previously rejected. H e requested correspondence with specific parties (Christopher’s defense attorneys) relating to a specific topic (Christopher’s criminal case). The county has not presented evidence that the manner in which
such records are maintained in Fox’s office—or the number of em ployees whose files would need to be searched—made the request prohibitively difficult to comply with. Indeed, in response to this court’s order, Fox located a nd filed under seal 13 e-mail chains between employees in his office and Christopher’s attorneys. {¶ 76} Because the county has presented no argument that these e-mail chains are exempt from disclosure, we grant a writ of mandamus as to the 13 e-mail chains, which are responsive to C harles’s eighth request to Fox

. 7. The ninth request to Fox {¶ 77} Relevant to Charles’s ninth request, J.K. provided three writte n statements to the sheriff’s offi ce: a five-page undated stateme nt, a two-page statement dated January 4, 2013, a nd a one-page statement descr ibing events that occurred on April 26, 2013. With respect to the first two stat ements, the county reiterates arguments that we rejected in our analysis of the vi deo recordings: that the claims are moot because Charles already obtained them from Darke County and that they are exempt from disclosure because they contain detai ls of the sexual
offenses. {¶ 78} As for the third statement, the county questions whether it qua lifies as a “statement” because it is only one paragraph long. But Ch arles’s request for
J.K.’s written state ments was not conditi oned on their lengths.S UPREME C OURT OF O HIO

26 {¶ 79} We grant a writ of mandamus as to J.K.’s three witness statemen ts, which are responsive to Charl es’s ninth request to Fox. 8. The requests to Grey {¶ 80} Charles sent nine requests to Grey. As noted above, Charles’s fourth, fifth, sixth, and ninth requests to Grey were resolved in mediation. Charles is no longer seeking relief as to those requests. Charles’s fi rst, second, and eighth requests to Grey (for video and audio recordings of witness int erviews and for written statements made by J.K.) are identical to his first, se cond, and ninth requests to Fox, and Grey relies on the same arguments made by Fox. We therefore grant a writ of mandamus as to those reque sts (except for the recording s of the July 11, 2013, interviews with K.N. and K.F.) for the reasons set forth above. {¶ 81} In his third request to Grey, Charles demanded copies of notes taken by detectives during interviews with J.K. or other witnesses. The county asserts that Grey is “not in possession of responsive records” with res pect to Charles’s third request. But that is not accura te. The files submitted for re view in response to Charles’s seventh request to G rey—seeking correspondence betwee n the sheriff’s office and the prosecutor’s office—contain 11 pages of witness- interview notes prepared by Detective Doug Timmerman. The pages are captioned “Investigator Notes” or “Follow Up Investigation Notes.” {¶ 82} The county suggests that even if such records exist, they are not public records because they are for personal use. But that cla im is inconsistent with
the evidence in the record: Timmerman sent those notes to Fox t o assist him with his case preparation, as evidenced by the cover e-mail. The no tes were thus not prepared solely for the detective’s personal use. We grant a w rit of mandamus as to the 11 pages of notes, which are responsive to Charles’s thi rd request to Grey. {¶ 83} In his seventh request to Grey, Charles sought correspondence between the Mercer County Sheriff’s Office and the Mercer Count y Prosecutor’s Office relating to Christopher’s c ase. Relevant to this reques t, the county submittedJanuary Term, 2020

27 three computer files of responsive records under seal, totaling 71 pages. It opposes this request based on overbreadt h, the attorney-client privileg e, the work-product privilege, and the trial -preparation privilege. {¶ 84} With respect to overbreadth, the county has merely asserted the defense without offering any support. The request is more spec ific than those that courts have deemed overly broad, as discussed above. The count y’s true objection appears to be that the request i s burdensome, but it has offere d no evidence in support. We cannot simply credit a bare assertion that a reque st is overbroad or
burdensome. {¶ 85} Next, the county invokes the atto rney-client privilege. “Recor ds of communications between attorneys and their state-government cli ents pertaining to the attorney’s legal advice are excepted from disclosure under R.C. 149.43(A)(1),
since the release of those docum ents is prohibited by state law .” State ex rel.
Thomas v. Ohio State Univ. , 71 Ohio St.3d 245, 249, 643 N.E.2d 126 (1994). However, the privilege extends only to government agencies cons ulting with counsel “for legal advice or assistance.” State ex rel. Leslie v. Ohio Hous. Fin. Agency , 105 Ohio St.3d 261, 2005-Ohio-1508, 824 N.E.2d 990, ¶ 30. {¶ 86} With a few exceptions, the 71 pages at issue do not reflect the sheriff seeking—or the prosecutor providi ng—legal guidance. To the con trary, the majority of the communications are from the sheriff, offering i nformation and assistance to the prosecutor (as in the instance discussed abov e, in which Detective
Timmerman sent his interview not es to Fox). However, three pag es in the file that
is titled “Prosecutor Emails with Sheriff” must be redacted. T he e-mails on pages 38, 39, and 41 all contain discu ssions in which Detective Timme rman asks Fox for legal guidance. Those pages must be redacted because they cont ain attorney-client
communications. {¶ 87} Finally, the county argues that these e-mails are subject to th e workproduct and trial-preparation ex ceptions. Insofar as the e-mai ls are work product,S UPREME C OURT OF O HIO

28 the exception would have expired at the conclusion of Christoph er’s original trial, as explained above. Similarly, there is no indication these re cords were specifically prepared in reasonable anticipation for trial. As such, they d o not meet the statutory definition of trial-preparation materials and do not qualify fo r that statutory exemption. {¶ 88} For these reasons, we grant a wr it of mandamus as to Charles’s seventh request to Grey, except for the pages identified above.
IV. CONCLUSION {¶ 89} For the reasons set forth above, we grant a writ of mandamus as to Charles’s first, second, sixth, ei ghth, and ninth requests to F ox (except for the recordings of the July 11, 2013 interviews with K.N. and K.F.); we deny the writ as to Charles’s third request to Fox; and we deny the writ as m oot with respect to Charles’s remaining requests to Fox. We grant a writ of mandam us as to Charles’s first, second, third, seventh, and eighth requests to Grey (exc ept for the recordings of the July 11, 2013 interviews with K.N. and K.F. and with red actions to the records responsive to the seventh request, as explained above); and we deny the writ as moot with respect to Charles’s remaining requests to Gr ey. Charles may file a supplemental pleading on the subject of court costs, sta tutory damages, or attorney fees within two weeks of the date of this decision. T he county will then have two weeks in which to respond. Writ granted in part and denied in part.
K ENNEDY , F ISCHER , D E W INE , D ONNELLY , and S TEWART , JJ., concur.
F RENCH , J., concurs in part and disse nts in part, with an opinion joi ned by
O’C ONNOR , C.J.

_________________ F RENCH , J., concurring in part a nd dissenting in part.January Term, 2020

29 {¶ 90} Although I concur in the majority’s disposition of the pending motions, I respectfully dissent from the issuance of a writ of mandamus to compel respondents, Mercer County Prosecuting Attorney Mathew Fox and Mercer County Sheriff Jeff Grey, to produce the public records that relator, Charles A. Summers, has requested. Because I conclude that Charles is acting as a designee of his incarcerated son, Christopher Summe rs, and because neither he n or Christopher has complied with R.C. 149.43(B)(8), I would deny the writ. {¶ 91} Christopher pleaded guilty to eight counts of sexual battery in violation of R.C. 2907.03, which prohibits sexual conduct betwe en a teacher or
coach and a student who is enrolled at the school where the tea cher or coach is employed. The Third District Court of Appeals affirmed Christo pher’s convictions and 20-year aggregate prison sentence. State v. Summers , 2014-Ohio-4538, 21 N.E.3d 632, ¶ 53 (3d Dist.). {¶ 92} In February and March 2017, Char les requested from respondents public records concerning the inve stigation of the charges agai nst Christopher and the prosecution of his criminal case. Respondents denied Charl es’s requests. As relevant here, respondents stated that as Christopher’s father, Charles had to comply with R.C. 149.43(B)(8) by obtaining approval from the judge who had sentenced Christopher before Charles could demand records relating to Chr istopher’s criminal
case. Charles denies that he wa s acting as Christopher’s desig nee when he submitted the public-records reque sts, and he now seeks a writ of mandamus ordering respondents to produce the requested records. After t his court granted an alternative writ of mandamus, 156 Ohio St.3d 1440, 2019-Ohio-24 96, 125 N.E.3d 903, Charles filed an affidavit a nd exhibits in support of a pe remptory writ and respondents filed six volumes of evidence in opposition to Char les’s claim. {¶ 93} Generally, the Public Record s Act, R.C. 149.43, requires a publ ic office or a person responsible for public records to make copie s of public records available to a requester at cost and within a reasonable time. R.C. 149.43(B)(1).S UPREME C OURT OF O HIO

30 The requester’s purpose for seeking public records is normally immaterial. State
ex rel. Steckman v. Jackson , 70 Ohio St.3d 420, 427, 639 N.E.2d 83 (1994), overruled on other grounds , State ex rel. Caster v. Columbus , 151 Ohio St.3d 425, 2016-Ohio-8394, 89 N.E.3d 598. But R.C. 149.43(B)(8), which re stricts an inmate’s ability to demand public records, creates an exception in which an inmate’s purpose for seeking records relating to a criminal inv estigation or prosecution is dispositive. State ex rel. Barb v. Cuyahoga Cty. Jury Commr. , 8th Dist. Cuyahoga No. 95005, 2010-Ohio-6190, ¶ 6 (“ Barb I ”). {¶ 94} R.C. 149.43(B)(8) states:

A public office or person responsible for public records is not required to permit a person who is incarcerated pursuant to a criminal conviction * * * to insp ect or to obtain a copy of any public record concerning a criminal investigation or prosecution * * * unless the request to inspect or to obtain a copy of the record is for the purpose of acquiring informa tion that is subject to release as a public record under this section and the judge who imposed the sentence * * * with respect to the person, or the judge’s succe ssor in office, finds that the information sought in the public record is necessary to support what appears to be a justiciable claim of the

person.

{¶ 95} R.C. 149.43(B)(8) restricts an inmate’s ability “to obtain what would otherwise be easily obtai nable by” a noninmate. State ex rel. Russell v. Thornton , 111 Ohio St.3d 409, 2006-Ohio-5858, 856 N.E.2d 966 ̧ ¶ 15 (addre ssing identical language previously codified at former R.C. 149.43(B)(4)). “Th e General Assembly clearly evidenced a public-policy decision to restrict a convictedJanuary Term, 2020

31 inmate’s unlimited access to public records in order to conserv e law enforcement
resources.” Id. at ¶ 14. {¶ 96} Had Christopher directly submitte d to respondents the requests for public records at issue here, R.C. 149.43(B)(8) plainly would h ave applied, and absent the required finding by his sentencing judge, Christophe r would not have been entitled to the requested records. See State ex rel. Fernbach v. Brush , 133 Ohio St.3d 151, 2012-Ohio-4214, 976 N.E.2d 889, ¶ 2. {¶ 97} Although R.C. 149.43(B)(8), by its express terms, applies only to a request by “a person who is incarcerated pursuant to a criminal conviction,” we have held that an inmate may not circumvent the requirements of R.C. 149.43(B)(8) by designating a third-party who is not an inmate to request th e records on the inmate’s behalf, State ex rel. Barb v. Cuyahoga Cty. Jury Commr. , 128 Ohio St.3d 528, 2011-Ohio-1914, 947 N.E.2d 670, ¶ 1 (“ Barb II ”). The single-paragraph opinion in Barb II , however, affords no indication of the contours of that courtcreated rule. Nor has this court subsequently provided any add itional insight. {¶ 98} Barb II was an appeal of the Eighth District Court of Appeals’ judgment denying Herbert Barb’s request for a writ of mandamus to compel the production of verdict forms and lists of prospective jurors in criminal cases against his brother, Danny Barb, who was incarcerated as a result of hi s convictions in one
or more of those cases. Id. ; Barb I, 8th Dist. Cuyahoga No. 95005, 2010-Ohio6190. Previously, Danny had directly requested those same reco rds and had pursued that request unsuccessfully by filing an action for a w rit of mandamus.
Barb I at ¶ 6.

{¶ 99} The Eighth District denied Herbert’s request for a writ of mand amus, holding both that res judicata applied and that because Herbert was acting as Danny’s designee with respect to the public-records request, he was required to comply with R.C. 149.43(B)(8). Barb I at ¶ 7, 12-14. In support of its determination that Herbert was acting as Danny’s designee, the court citedS UPREME C OURT OF O HIO

32 Herbert’s statement that he sought the records in a “ ‘pursuit to obtain documents that would clearly show the violation of [Danny’s] right to a f air trial.’ ” Id. at ¶ 7. We likewise characterized Herbert as “Danny’s designee” and sta ted, “Danny cannot circumvent the requirement of R.C. 149.43(B)(8) * * * by designating his brother to request the records for him.” Barb II at ¶ 1. We held, “ ‘Herbert may not do indirectly what Danny is prohibited from doing directly. ’ ” Id. , quoting Barb
I

at ¶ 13. {¶ 100} Respondents urge this court to adopt a per se rule that family members of an incarcerated person presumptively act as their in carcerated relative’s designee when they request records concerning the re lative’s criminal case. I agree with the majority’s refusal to do so. Neither t he statutory language in R.C. 149.43(B)(8) nor this court’s adoption of a designee rule in Barb II supports the broad presumption that respondents propose. And although I do conclude that Charles is acting as Christopher’s designee, it is not simply C harles’s status as Christopher’s father that convinces me. {¶ 101} That said, I would not require—and, indeed, this court has neve r before required—the type of express, direct delegation of autho rity that the majority claims is missing here in order to require a noninmate to compl y with R.C. 149.43(B)(8). In Barb II , we affirmed the Eighth District’s determination that Herbert was acting as Danny’s designee based solely on Herbert’ s statement that his intent was to demonstrate that Danny did not receive a fair trial. Neither the Eighth District nor this court cited any evidence that Danny ha d expressly and directly asked Herbert to mak e the public-records request on hi s behalf. {¶ 102} The evidence that Charles is acting on Christopher’s behalf her e is every bit as strong as, if not stronger than, the evidence of a gency in Barb II . In 2015, Charles and Vicki Summers, Christopher’s mother, created a Facebook page
called “Justice for Chris” with the “hope that everyone who kno ws [them] will learn the whole truth about what happe ned to [their] son.” They have since used theJanuary Term, 2020

33 Facebook page as a platform to a ttack both public officials con nected with Christopher’s case and the vic tim of Christopher’s offenses, as well as to implicate in possible wrongdoing other employees of Fort Recovery High Sc hool, where Christopher was employed as a t eacher and coach at the time of his offenses. Just as Herbert Barb sought to prove t hat his brother did not receiv e a fair trial, Charles and Vicki Summers have used the Facebook page to critique what they see as unfairness in Christopher’s prosecution. As early as June 6, 2 015, they complained that “[j]ustice has not been served” and posted evidence that t hey claim should have been presented at Christopher’s t rial. In aid of their mission to “bring the truth and all the evidence to the light of day,” to discredit respondents ’ version of the facts, and to demonstrate that the relationship between the victim and Christopher—the
victim’s teacher and coach—had b een “consensual,” Charles and V icki posted on the Facebook page documents incl uding text messages between Chr istopher and the victim, phone records, written statements to the police, an d videos of police
interviews. {¶ 103} Just as Charles’s status as Christopher’s father does not, on i ts own, establish that he is acting as Christopher’s designee, the exis tence of the Facebook page is likewise insufficient in isolation to establish that fa ct. But those facts, considered together with the e vidence submitted by respondents that Christopher has himself been intimately involved in the efforts to obtain a nd post information about his criminal case, lead to the conclusion that Charles is acting as Christopher’s designee and attempting to accomplish indirectly what Christopher cannot accomplish directly. {¶ 104} E-mails between Christopher and his parents demonstrate an understanding that documents rel ating to Christopher’s criminal case that came into his parents’ possession were Christopher’s property. Christopher wrote to his parents on January 31, 2018:S UPREME C OURT OF O HIO

34 If you have not reviewed the videos, you are not to look at them. If you have viewed them, you are to immediately stop viewing or using them. They are my property. I am directing y ou to put them away and not to touch t hem again. Do not make copi es or use them in any way. They are not to be used.

{¶ 105} Christopher similarly instructed his wife that the videos are “ my legal property” and directed her not to watch, copy, transcribe or use them. Charles subsequently acknowledged that t he video of the police intervie w with the victim is Christopher’s property and stated that Christopher could dec ide whether it should be posted. {¶ 106} The e-mails between Christopher and his parents also demonstrat e that Christopher directed the use of documents relating to his criminal case, including the posting of those documents on the Facebook page. In one e-mail, Christopher suggested that Cha rles contrast in a Facebook post the victim’s trial testimony with her prior statement to police in order to discre dit the victim. And as the majority notes, on February 4, 2018, Charles expressly i nstructed Christopher, “you tell mom exactly what you want put on the FB page and she will.” Although these e-mails postdate Charles’s public-record s requests, they are indicative of an ongoing, joint effort by Christopher and his p arents to obtain and use documents concerning the investigation and prosecution of C hristopher’s criminal case to attack the public officials involved, discredi t and disparage the victim, and rehabilitate Christopher’s reputation. Viewing the evidence in its entirety and in light of Christopher’s direction of his parents ’ efforts to obtain and post documents relating to his criminal case, I conclude that C harles was acting as Christopher’s designee in an atte mpt to avoid the requirements of R.C. 149.43(B)(8). I would therefore de ny Charles’s request for a w rit of mandamus.January Term, 2020

35 {¶ 107} For these reasons, although I conc ur in the majority’s resoluti on of the pending motions, I dissent from the majority’s judgment gra nting a writ of
mandamus.
O’C ONNOR , C.J., concurs in the foregoing opinion.

_________________ Santen & Hughes and H. L ouis Sirkin, for relator. Zashin & Rich Co., L.P.A., Drew C. Piersall and Jonathan J. Dow nes; and Mathew K. Fox, Mercer County Prosecuting Attorney, and Amy B. I kerd, Assistant Prosecuting Attorney, for respondents. Ohio Crime Victim Justice Center and Elizabeth A. Well, for int ervening respondent, J.K. Rittgers & Rittgers, Konrad Kircher, and Ryan J. McGraw, urging denial of the writ for amici curiae National Crime Victim Law Institute, Ohio Domestic Violence Network, and Ohio Allia nce to End Sexual Violence. Kooperman, Mentel, Ferguson & Ya ross, Ltd., Sean A. Mentel, Kat herine C. Ferguson, and Lindsay M. Nelson, urging denial of the writ f or amicus curiae Buckeye State Sheriffs’ Association. Sherri Bevan Walsh, Summit County Prosecuting Attorney, and Jacquenette S. Corgan, Assistan t Prosecuting Attorney, urging d enial of the writ for
amicus curiae Ohio Prosecu ting Attorneys Association.

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