[Cite as State ex rel. Ware v. Rhodes, 2024-Ohio-1754.]

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

State ex rel. Kimani E. Ware, : 

Relator, :

 No. 22AP-59

v. :

(REGULAR CALENDAR)

Leanne Rhodes et al., :

Respondents. : 

D E C I S I O N

Rendered on May 7, 2024

On brief: Kimani E. Ware, pro se.

On brief: Dave Yost, Attorney General, Salvatore P. 

Messina, and Marcy A. Vonderwell, for respondents.

IN MANDAMUS

DORRIAN, J.

{¶ 1} Relator, Kimani E. Ware, filed this original action in mandamus seeking a 

writ compelling respondents the Bureau of Sentence Computation (“Bureau”) and Leanne 

Rhodes, an employee of the Bureau, to respond to his public records request. After Ware 

filed this action, the Bureau produced the records he requested. Although the Bureau’s 

action rendered moot Ware’s request for a writ compelling production of the records, Ware

seeks statutory damages and court costs due to respondents’ delay in responding to his 

public records request. Respondents assert Ware is barred from obtaining statutory 

damages because his public records request was vague and incomplete, and because Ware 

failed to comply with the filing requirements of R.C. 2969.26(A).

{¶ 2} Pursuant to Civ.R. 53 and Loc.R. 13(M) of the Tenth District Court of Appeals,

this matter was referred to a magistrate. The magistrate issued the appended decision 

recommending this court deny Ware’s motion for summary judgment on his statutory 

damages claim and grant respondents’ motion for summary judgment. State ex rel. Ware 
No. 22AP-59 2

v. Rhodes, 10th Dist. No. 22AP-59, 2023-Ohio-2400, ¶ 2. The magistrate concluded that 

Ware’s request failed to fairly describe the public record or class of public records to be 

disclosed. Id. at ¶ 10. The magistrate’s decision did not address respondents’ claim that 

Ware failed to comply with the requirements of R.C. 2969.26(A).

{¶ 3} Ware timely filed objections to the magistrate’s decision. Id. at ¶ 11. After 

conducting an independent review of the magistrate’s decision, this court concluded that 

Ware’s public records request adequately identified the record he sought. Id. at ¶ 30. The 

court sustained Ware’s objections to the magistrate’s decision and remanded the case to the 

magistrate to consider respondents’ argument that Ware failed to comply with the 

requirements of R.C. 2969.26(A). Id. at ¶ 31-33.

{¶ 4} The magistrate has now issued a decision on remand, including findings of 

fact and conclusions of law, which is appended hereto. The magistrate recommends

denying respondents’ motion for summary judgment because Ware’s public records 

request was not subject to the grievance system and, therefore, the affidavit requirements 

of R.C. 2969.26(A) did not apply to Ware’s mandamus claim. The magistrate further 

recommends granting in part and denying in part Ware’s motion for summary judgment. 

The magistrate concludes Ware is entitled to $1,000 in statutory damages but is not entitled 

to court costs.

{¶ 5} No party has filed objections to the magistrate's decision. “If no timely 

objections are filed, the court may adopt a magistrate’s decision, unless it determines that 

there is an error of law or other defect evident on the face of the magistrate’s decision.” 

Civ.R. 53(D)(4)(c).

{¶ 6} No error of law or other defect is evident on the face of the magistrate’s 

decision. Therefore, we adopt the decision as our own, including the findings of fact and 

conclusions of law contained therein. In accordance with the magistrate’s 

recommendation, respondents’ motion for summary judgment is denied and Ware’s 

motion for summary judgment is granted in part and denied in part. Accordingly, the 

Bureau is ordered to pay Ware statutory damages in the amount of $1,000.

Respondents’ motion for summary judgment denied;

relator’s motion for summary judgment granted in part

and denied in part, statutory damages awarded. 

JAMISON and BOGGS, JJ., concur.
No. 22AP-59 3

APPENDIX

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

State ex rel. Kimani E. Ware, : 

Relator, :

v. : No. 22AP-59

Leanne Rhodes et al., : (REGULAR CALENDAR)

Respondents. : 

M A G I S T R A T E ’ S D E C I S I O N

Rendered on January 29, 2024

Kimani E. Ware, pro se. 

Dave Yost, Attorney General, Marcy Vonderwell, and 

Salvatore Messina, for respondents. 

IN MANDAMUS 

ON MOTIONS FOR SUMMARY JUDGMENT

{¶ 7} Relator, Kimani E. Ware, has filed this original action requesting that this 

court issue a writ of mandamus ordering respondents, Leanne Rhodes (“Rhodes”) and the 

Bureau of Sentence Computation (“bureau”), to respond to and process his public-records 

request. Relator filed a March 15, 2022, motion for summary judgment on his claim for 

statutory damages pursuant to R.C. 149.43(C)(2). Respondents also filed a November 8, 

2022 motion for summary judgment. In a January 9, 2023, decision, the magistrate denied 

relator’s motion for summary judgment and granted respondents’ motion for summary 

judgment. Relator filed objections to the magistrate’s decision, and in State ex rel. Ware v. 
No. 22AP-59 4

Rhodes, 10th Dist. No. 22AP-59, 2023-Ohio-2400 (“Ware I”), the 10th District Court of 

Appeals granted relator’s objections and remanded the matter with instructions to evaluate 

respondents’ alternative basis for seeking summary judgment in a manner consistent with 

the process set forth in State ex rel. Ware v. Bratton, 10th Dist. No. 20AP-347, 2021-Ohio3157 (“Bratton”), and, upon making this determination, reconsider the parties’ summary 

judgment motions or otherwise determine the appropriate manner to proceed at that time.

Findings of Fact:

{¶ 8} 1. Relator is an inmate incarcerated at Trumbull Correctional Institution, in 

Leavittsburg, Ohio. 

{¶ 9} 2. The bureau is a governmental agency responsible for computing release 

dates for Ohio inmates.

{¶ 10} 3. Rhodes is an employee of the bureau.

{¶ 11} 4. On January 25, 2022, relator filed the instant mandamus action asking this 

court to respond to and process his public-records request. In his complaint, relator alleged 

the following: (1) on May 30, 2021, relator made the following public-records request to the 

bureau via electronic submission (using the prison’s internal “kite” communication 

system): “I request a copy of journal entry from court of common pleas case no. 2003-11-

3491”; and (2) on June 9, 2021, the bureau, through Rhodes, responded to the publicrecords request by indicating: “Entries have to be requested from the court.” 

{¶ 12} 5. On February 9, 2022, respondents provided relator with a copy of the 

requested records.

{¶ 13} 6. On February 25, 2022, respondents filed an answer, generally denying the 

substantive allegations raised in relator’s complaint. 

{¶ 14} 7. On March 11, 2022, relator filed a motion for default judgment pursuant to 

Civ.R. 55, arguing he was entitled to default judgment based upon relator’s failure to file an 

answer to the complaint. 

{¶ 15} 8. On March 15, 2022, relator filed a motion for summary judgment, 

acknowledging that his claim is now moot with regard to the production of the requested 

records but that he is entitled to statutory damages pursuant to R.C. 149.43(C)(2) because 

respondents only provided the requested records after he was forced to file his mandamus 

action, and respondents failed to make the public records available to him within a 

reasonable time. 
No. 22AP-59 5

{¶ 16} 9. On June 23, 2022, respondents filed a memorandum in opposition to 

relator’s motion for default judgment and motion for leave to file a response to relator’s 

motion for summary judgment out of time.

{¶ 17} 10. On July 7, 2022, relator filed a reply to respondents’ motion for leave to 

file a response to relator’s motion for summary judgment, requesting that the motion be 

denied. 

{¶ 18} 11. On October 31, 2022, the magistrate issued an order denying relator’s 

March 11, 2022, motion for default judgment; granting respondents’ June 23, 2022, motion 

for leave to file a response to relator’s motion for summary judgment out of time; and 

deferring ruling on relator’s March 15, 2022, motion for summary judgment on his claim 

for statutory damages until respondents’ response in opposition to relator’s motion for 

summary judgment is submitted and relator has filed a reply in further support of his 

motion for summary judgment. 

{¶ 19} 12. On November 8, 2022, respondents filed a motion for summary 

judgment.

{¶ 20} 13. On December 27, 2022, relator filed a reply to respondents’ motion for 

summary judgment and motion for leave to file a late reply.

{¶ 21} 14. On January 9, 2023, the magistrate denied relator’s motion for summary 

judgment and granted respondents’ motion for summary judgment. Relator filed 

objections to the magistrate’s decision, and in Ware I, the 10th District Court of Appeals 

granted relator’s objections and remanded the matter to the magistrate with instructions 

to evaluate respondents’ alternative basis for seeking summary judgment in a manner 

consistent with the process set forth in Bratton, and, upon making this determination, 

reconsider the parties’ summary judgment motions or otherwise determine the appropriate 

manner to proceed at that time.

Conclusions of Law:

{¶ 22} The magistrate recommends that this court deny respondents’ November 8, 

2022, motion for summary judgment on the alternative basis that relator failed to comply 

with the mandatory filing requirements in R.C. 2969.26(A)(1) and (2), and grant, in part, 

relator’s March 15, 2022, motion for summary judgment. 

{¶ 23} In order for this court to issue a writ of mandamus, a relator must ordinarily 

show a clear legal right to the relief sought, a clear legal duty on the part of the respondent 
No. 22AP-59 6

to provide such relief, and the lack of an adequate remedy in the ordinary course of the law. 

State ex rel. Pressley v. Indus. Comm., 11 Ohio St.2d 141 (1967). 

{¶ 24} Summary judgment is appropriate only when the moving party 

demonstrates: (1) no genuine issue of material fact exists, (2) the moving party is entitled 

to judgment as a matter of law, and (3) reasonable minds could come to but one conclusion 

and that conclusion is adverse to the party against whom the motion for summary judgment 

is made, that party being entitled to have the evidence most strongly construed in its favor. 

Civ.R. 56(C).

{¶ 25} Under R.C. 149.43(B)(1), a public office is required to make copies of public 

records available to any person on request and within a reasonable period of time. A “public 

record” is a record “kept by any public office.” R.C. 149.43(A)(1). A party who believes that 

his request for a public record has been improperly denied may file a mandamus action in 

order to compel production of the record. R.C. 149.43(C)(1)(b). See State ex rel. Physicians 

Commt. for Responsible Medicine v. Ohio State Univ. Bd. of Trustees, 108 Ohio St.3d 288, 

2006-Ohio-903, ¶ 6. The requester must establish by clear and convincing evidence a clear 

legal right to the records and a corresponding clear legal duty on the part of the respondent 

to provide them. See State ex rel. Cincinnati Enquirer v. Sage, 142 Ohio St.3d 392, 2015-

Ohio-974, ¶ 10. When a public office withholds responsive records, it has the burden of 

showing that the records are statutorily exempted from disclosure. State ex rel. Cincinnati 

Enquirer v. Jones-Kelley, 118 Ohio St.3d 81, 2008-Ohio-1770, paragraph two of the 

syllabus. Exceptions to disclosure are strictly construed against the public office 

withholding the records. Id. If a request is ultimately denied, in part or in whole, the public 

office or the person responsible for the requested public record must provide the requester 

with an explanation, including legal authority, setting forth why the request was denied. 

O.R.C. Ann. 149.43(B)(3).

{¶ 26} In the present case, respondents argue in their November 8, 2022, motion 

for summary judgment the following: (1) relator is not entitled to statutory damages 

because the request was vague and incomplete, contrary to the requirements in 

R.C. 149.43(C); and (2) relator has failed to satisfy the mandatory filing requirements under 

R.C. 2969.26 by failing to file an affidavit stating that a grievance and decision was filed, as 

well as a copy of the written decision. The court in Ware I rejected respondents’ first ground 
No. 22AP-59 7

for summary judgment and remanded the matter to the magistrate to consider 

respondents’ alternative ground for summary judgment. 

{¶ 27} R.C. 2969.26 provides, in pertinent part, the following:

(A) If an inmate commences a civil action or appeal against a 

government entity or employee and if the inmate’s claim in 

the civil action or the inmate’s claim in the civil action that is 

being appealed is subject to the grievance system for the state 

correctional institution, jail, workhouse, or violation sanction 

center in which the inmate is confined, the inmate shall file 

both of the following with the court:

(1) An affidavit stating that the grievance was filed and the 

date on which the inmate received the decision regarding the 

grievance.

(2) A copy of any written decision regarding the grievance 

from the grievance system.

{¶ 28} In Bratton, this court found that the affidavit requirements in 

R.C. 2969.26(A) apply to inmate mandamus actions seeking enforcement of a public 

records request, citing State ex rel. Moore v. Ohio Dept. of Rehab. & Corr., 10th Dist. No. 

11AP-90, 2012-Ohio-1070. The court explained that Ohio Adm.Code 5120-9-31(A) provides 

that the grievance procedure addresses only inmate complaints related to aspects of 

institutional life that directly and personally affect the grievance. Thus, the court in Bratton 

found that the holding in Moore is narrow and does not apply to every inmate request for 

ODRC records. Pursuant to Moore, the public records request must relate to an 

institutional program for inmates, and the request must be directed to an ODRC employee 

at the correctional institution where the relator is housed as an inmate, rather than to staff 

members at the ODRC central office, who are not subject to the grievance process. 

{¶ 29} In the present case, respondents argue that relator has not complied with R.C. 

2969.26(A) because he has not filed an affidavit indicating he filed a grievance with his 

institution, and he has not filed any copies of such grievance or resulting decision. However, 

based upon Bratton and Moore, relator’s public-records request was not subject to the 

grievance system. Relator’s public-records request was for a journal entry from his criminal 

case and was directed to the bureau and an employee of the bureau. Thus, his publicrecords request did not relate to an institutional program for inmates and was not directed 

to an ODRC employee at the correctional institution where relator is housed as an inmate. 
No. 22AP-59 8

Therefore, the affidavit requirements in R.C. 2969.26(A) do not apply to relator’s current 

mandamus action, and respondents’ alternative ground for dismissal of relator’s complaint 

is without merit. For this reason, the magistrate denies respondents’ motion for summary 

judgment.

{¶ 30} Having denied respondents’ motion for summary judgment, the magistrate 

must proceed to address relator’s motion for summary judgment. Relator argues that he is 

entitled to summary judgment on statutory damages pursuant to R.C. 149.43(C)(2) based 

upon respondents’ delay of 256 days in producing the requested records. 

{¶ 31} R.C. 149.43(B)(1) provides that the public office must “promptly prepare” all 

records responsive to a public-records request within a “reasonable period of time.” R.C. 

149.43(C)(1) permits a party aggrieved by the failure of the public office to promptly prepare 

a public record to receive statutory damages under R.C. 149.43(C)(2) in the amount of one 

hundred dollars for each business day during which the public office failed to comply with 

the obligation under R.C. 149.43(B)(1), 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 phrase “reasonable period of time” is not defined in the statute, but the “ ‘ 

“determination of what is ‘reasonable’ depends upon all the pertinent facts and 

circumstances.” ’ ” State ex rel. Stuart v. Greene, 161 Ohio St.3d 11, 2020-Ohio-3685, ¶ 7, 

quoting State ex rel. Kesterson v. Kent State Univ., 156 Ohio St.3d 13, 2018-Ohio-5108, 

¶ 16, quoting State ex rel. Cincinnati Enquirer v. Deters, 148 Ohio St.3d 595, 2016-Ohio8195, ¶ 23. A court may reduce or not award statutory damages, however, if it determines 

both of the following: (1) based on the law as it existed at the time of the request, a wellinformed person responsible for the requested public records would have reasonably 

believed that R.C. 149.43(B) did not require their disclosure; and (2) a well-informed 

person responsible for the requested public records would have reasonably believed that 

withholding the records would serve the public policy that underlies the authority asserted 

for withholding the records. R.C. 149.43(C)(2)(a) and (b).

{¶ 32} In the present case, relator made his public-records request by electronic 

submission on May 30, 2021. On June 9, 2021, the bureau denied relator’s request and 

indicated that entries must be requested from the courts. On January 25, 2022, relator filed 

the instant mandamus action. On February 9, 2022, the bureau provided relator with a 

copy of the requested records. Thus, after the initial public-records request, the bureau 
No. 22AP-59 9

responded to relator’s request within 10 days by denying the request but did not provide 

the requested record for 256 days, which was 12 days after relator filed the present 

mandamus action.

{¶ 33} Based upon all of the facts in this case, the magistrate finds that reasonable 

minds can only conclude that the bureau failed to promptly produce the public records 

requested by relator within a reasonable time, as contemplated by R.C. 149.43. The bureau 

did not produce the requested record for over 8 months after the original public records 

request and 12 days after relator filed his mandamus complaint. The bureau’s only bases 

for denying relator’s public-records request were rejected by this court in Ware I. This court 

found in Ware I that relator’s request was not overly vague, the request fairly described the 

record sought, the bureau was not prevented from reasonably identifying the record sought, 

and the fact that the bureau eventually produced the record 12 days after relator filed his 

mandamus action demonstrated the bureau’s claim of ambiguity was disingenuous. The 

bureau’s initial misguided denial also did not provide any statutory basis or citation to legal 

authority to support the denial. Given these circumstances and the court’s conclusions in 

Ware I, respondents could not have reasonably believed that disclosure of the public 

records was not required. Therefore, the magistrate finds respondents did not promptly 

prepare relator’s public records within a “reasonable period of time,” and he is entitled to 

received statutory damages under R.C. 149.43(C)(2) in the amount of $100 for each 

business day during which the public office failed to comply with the obligation under R.C. 

149.43(B)(1), beginning with the day on which he filed his mandamus action to recover 

statutory damages, up to a maximum of $1,000. Twelve days elapsed from the day relator 

file his mandamus action until respondents produced the requested records. Accordingly, 

the magistrate finds relator is entitled to $1,000 in statutory damages, the maximum 

amount permitted under the statute.

{¶ 34} In his petition and brief, relator also seeks an award for court costs associated 

with bringing the present mandamus action. Under certain circumstances, a court may 

award court costs pursuant to R.C. 149.43(C)(3)(a)(ii). A court must award court costs to a 

requester if a court instructs a public office to comply with an obligation imposed by R.C. 

149.43(B). R.C. 149.43(C)(3)(a)(i). Costs are also available under R.C. 149.43(C)(3)(a)(ii) if 

the court makes a determination described in division (C)(3)(b)(iii), which requires the 

court to find that the respondent acted in bad faith when the office or person voluntarily 
No. 22AP-59 10

made the public records available to the relator during the course of a mandamus action. 

Further, the subsection provides that there is no presumption of bad faith. Id. “Bad faith” 

generally implies something more than bad judgment or negligence. State ex rel. 

McDougald v. Greene, 163 Ohio St.3d 471, 2020-Ohio-5100, ¶ 26, quoting State v. Tate, 

5th Dist. No. 07 CA 55, 2008-Ohio-3759, ¶ 13. It “ ‘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 Slater v. Motorists Mut. Ins. Co., 174 Ohio St. 148 (1962), paragraph 

two of the syllabus, reversed on other grounds, Zoppo v. Homestead Ins. Co., 71 Ohio St.3d 

552 (1994), paragraph one of the syllabus. R.C. 149.43(C)(3)(b)(iii) expressly provides that 

bad faith may not be presumed based solely on the fact that the public office has made a 

record available after the mandamus complaint is filed. To prove bad faith, the party 

seeking fees must produce some evidence of bad faith other than the fact that the record 

was produced. State ex rel. Summers v. Fox, 164 Ohio St.3d 583, 2021-Ohio-2061, ¶ 17.

{¶ 35} In the present case, despite relator’s argument that respondents consciously 

disregarded his request for a copy of the journal entry for eight months before it voluntarily 

complied with the request prior to the court ordering it to produce the record, the 

magistrate does not find respondents’ delay was motivated by dishonest purpose, moral 

obliquity, or the intent to mislead or deceive, and did not constitute conscious wrongdoing 

or a breach of a known duty through some ulterior motive or ill will partaking of the nature 

of fraud. Although respondents’ belief that relator was required to request a copy of the 

pleading from the court may have demonstrated poor judgment, a lack of legal knowledge, 

or a lack of adequate training, it did not rise to the level of bad faith. Thus, relator is not 

entitled to court costs.

{¶ 36} Accordingly, it is the magistrate’s recommendation that the court deny 

respondents’ motion for summary judgment; grant, in part, relator’s motion for summary 

judgment, and issue a partial writ of mandamus. Relator is awarded $1,000 in statutory 

damages but is not awarded court costs. 

/S/ MAGISTRATE 

 THOMAS W. SCHOLL III
No. 22AP-59 11

NOTICE TO THE PARTIES

Civ.R. 53(D)(3)(a)(iii) provides that a party shall not assign as 

error on appeal the court’s adoption of any factual finding or 

legal conclusion, whether or not specifically designated as a 

finding of fact or conclusion of law under Civ.R. 

53(D)(3)(a)(ii), unless the party timely and specifically objects 

to that factual finding or legal conclusion as required by Civ.R. 

53(D)(3)(b). A party may file written objections to the 

magistrate’s decision within fourteen days of the filing of the 

decision.