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

ex rel. Mack v. Richland Cty. Sheriff’s Office, Slip Opinion No. 2024-Ohio-2748.]

NOTICE

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

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

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

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

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

the opinion is published.

SLIP OPINION NO. 2024-OHIO-2748

THE STATE EX REL. MACK v. RICHLAND COUNTY SHERIFF’S OFFICE

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

may be cited as State ex rel. Mack v. Richland Cty. Sheriff’s Office,

Slip Opinion No. 2024-Ohio-2748.]

Mandamus—Public Records Act—R.C. 149.43—Statutory damages—Public office 

from which records were requested must produce responsive records to 

which the R.C. 149.43(B)(8) exception does not apply or certify that no such 

records exist—Limited writ granted and statutory damages denied.

(No. 2023-1201—Submitted April 23, 2024—Decided July 23, 2024.)

IN MANDAMUS.

__________________

The per curiam opinion below was joined by KENNEDY, C.J., and FISCHER, 

DONNELLY, STEWART, and BRUNNER, JJ. DEWINE, J., concurred in part and 

dissented in part, with an opinion joined by DETERS, J.

Per Curiam.

{¶ 1} Relator, John H. Mack Jr., is serving a life sentence for aggravated 

murder, without the possibility of parole. Mack has filed this original action for a 
SUPREME COURT OF OHIO

2

writ of mandamus to compel respondent, the Richland County Sheriff’s Office, to 

produce records responsive to his public-records request. Mack also requests an 

award of statutory damages.

{¶ 2} The sheriff’s office contends that three of the eight categories of 

records described in Mack’s public-records request are covered by R.C. 

149.43(B)(8), which provides that an incarcerated person may not obtain public 

records “concerning a criminal investigation or prosecution” unless the sentencing 

judge “finds that the information sought in the public record is necessary to support 

what appears to be a justiciable claim of the person.” The sheriff’s office also 

contends that it provided records responsive to the remainder of Mack’s publicrecords request, rendering Mack’s claim moot as to those records.

{¶ 3} With respect to seven of the eight categories of records that Mack has 

requested, we agree with the sheriff’s office that either Mack has not complied with 

the statutory requirements for obtaining the records or the records have already 

been produced to him. We therefore deny the writ as moot with respect to five of 

the categories of records that Mack requests and deny the writ as to two of the

categories of records that he requests. However, for the reasons set forth below, 

we grant a limited writ as to one of the categories of records that Mack requests. 

We also deny Mack’s request for statutory damages.

I. FACTUAL AND PROCEDURAL BACKGROUND

{¶ 4} In February 2021, the sheriff’s office and the Shelby Police 

Department began an investigation into the report of a missing person and later that 

person’s death. The investigation led to a search warrant being issued for Mack’s 

residence. Officers seized numerous items of personal property when they 

executed the search warrant, including a smartphone, two cars, and a safe with its 

contents.

{¶ 5} Mack was eventually indicted in Richland County for aggravated 

murder and other offenses. Following a jury trial, Mack was convicted of 
January Term, 2024

3

aggravated murder and other crimes for which he was sentenced to life 

imprisonment without the possibility of parole. See State v. Mack, Richland C.P. 

No. 2021 CR 0221 (Nov. 18, 2022). Mack’s direct appeal of his conviction is 

pending in the Fifth District Court of Appeals. See State v. Mack, No. 2022 CA 

0083 (5th Dist.).

{¶ 6} In a separate case filed in Richland County, Mack was charged with 

receiving stolen property. That case was ultimately dismissed. See State v. Mack, 

Richland C.P. No. 2021 CR 0203 (Aug. 15, 2022). In April 2023, after his 

conviction in the aggravated-murder case, Mack filed a motion with the trial court 

in the receiving-stolen-property case, asking for the return of his property. The trial 

court denied the motion, noting that Mack had failed to specifically identify the

personal property that had been seized and where the property is located. Mack, 

Richland C.P. No. 2021 CR 0203 (May 5, 2023). The trial court also noted that 

even though the receiving-stolen-property case had been dismissed, it was “a 

companion case” to the aggravated-murder case and therefore whatever evidence 

was seized from Mack “cannot be returned due to the pending appeal” of Mack’s

aggravated-murder conviction. Id.

{¶ 7} In August 2023, Mack sent by certified mail a public-records request 

to the custodian of records at the sheriff’s office. In the preface to his request, Mack

stated that the sheriff had seized two cars and “a significant amount” of other 

personal property from his residence from February 25 through 27, 2021. Mack 

requested the following seven categories of records related to the seizure of 

property from his residence and an eighth category of records related to a separate 

occurrence six months earlier:

1. List of the items seized [from February 25 through 27, 

2021] and the items [sic] current location. If these items are no 
SUPREME COURT OF OHIO

4

longer in custody—please provide the date of disposition, detailed 

information concerning any item sold or disposed of.

2. The Richland County Sheriffs [sic] internal control policy 

in relation to seized property in its custody.

3. Written records retention schedule for dispatch calls.

4. Body camera policy.

5. Records retention schedule for body camera footage and 

recordings.

6. Retention schedule for incoming and outgoing calls.

7. Copies of reports to attorney general concerning . . . the 

property seized from [Mack’s address] on the above mentioned 

dates.

8. I’m also requesting a copy of any reports filed on or about 

8-31-2020 by Officer Morgan Scarberry, and/or Owen Ross 

concerning [Mack’s address].

{¶ 8} The sheriff’s office received Mack’s public-records request on 

August 16 but did not immediately respond to it. Mack commenced this action on 

September 20, seeking a writ of mandamus to compel the sheriff’s office to make 

available the records identified in his public-records request. On September 25, 

after receiving the summons and complaint, the sheriff’s office provided three 

documents to Mack: (1) Richland County Sheriff’s Office General Order 7.2 (the 

law-enforcement division’s policy pertaining to the property room), (2) a copy of 

the records-retention schedule for the sheriff’s office, and (3) Richland County 

Sheriff’s Office General Order 1.36 (the law-enforcement division’s policy 

pertaining to body-worn cameras). These were the records responsive to Mack’s 

request Nos. 2 through 6. The sheriff’s office maintains that records responsive to 

request Nos. 1, 7, and 8 were not provided to Mack because those records relate to 
January Term, 2024

5

the criminal investigations of Mack and are thus exempt from disclosure under 

R.C. 149.43(B)(8).

{¶ 9} The sheriff’s office filed a motion to dismiss Mack’s complaint, 

arguing that (1) it had provided the records responsive to request Nos. 2 through 6 

and (2) Mack was not entitled to receive records responsive to request Nos. 1, 7, 

and 8 by operation of R.C. 149.43(B)(8). We denied the motion to dismiss and 

granted an alternative writ. 2023-Ohio-4259. We later granted the sheriff’s office’s

motion for leave to submit for in camera review the records withheld from Mack 

under R.C. 149.43(B)(8). 2024-Ohio-202.

II. ANALYSIS

{¶ 10} R.C. 149.43(B)(1) requires a public office to make public records 

available upon request, within a reasonable time. If a public office denies a request, 

in whole or in part, it must provide the requester with an explanation, including 

legal authority, for the denial. R.C. 149.43(B)(3).

{¶ 11} “Mandamus is the appropriate remedy to compel compliance with 

R.C. 149.43, Ohio’s Public Records Act.” State ex rel. Physicians Commt. for 

Responsible Medicine v. Ohio State Univ. Bd. of Trustees, 2006-Ohio-903, ¶ 6; 

R.C. 149.43(C)(1)(b). To be entitled to a writ of mandamus, Mack, the publicrecords requester, must establish that he has a clear legal right to the requested relief 

and that the sheriff’s office has a clear legal duty to provide it. State ex rel. Penland 

v. Ohio Dept. of Rehab. & Corr., 2019-Ohio-4130, ¶ 9.

A. Partial Mootness

{¶ 12} The sheriff’s office argues that Mack’s mandamus claim is moot as 

to request Nos. 2 through 6 because it provided records responsive to those requests 

five days after Mack filed this action. Providing the requested records to a relator 

in a public-records mandamus case generally renders the claim moot. State ex rel. 

Striker v. Smith, 2011-Ohio-2878, ¶ 22.
SUPREME COURT OF OHIO

6

{¶ 13} In his merit brief, Mack does not dispute that he received records 

responsive to request Nos. 2 through 6; nor does he respond to the sheriff’s office’s 

contention that the mandamus claim as to those records is moot. Rather, Mack’s 

arguments focus solely on the sheriff’s office’s withholding of records responsive 

to request Nos. 1, 7, and 8. Accordingly, we hold that Mack’s claim is moot as to 

request Nos. 2 through 6. See State ex rel. Barr v. Wesson, 2023-Ohio-3028, ¶ 22 

(holding public-records claim moot with regard to records that were provided after 

relator filed his mandamus action).

B. Mack’s Remaining Requests

{¶ 14} Regarding request Nos. 1, 7, and 8, the sheriff’s office argues that 

Mack is not entitled to the requested records, because he has not complied with 

R.C. 149.43(B)(8). That statute requires Mack to obtain from his sentencing judge 

a finding that the information he seeks in a public record concerning a criminal 

investigation or prosecution is necessary to support what appears to be a justiciable 

claim. See id. Without such a finding, Mack is not entitled to receive public records 

related to any such criminal investigation or prosecution. See State ex rel. Fernbach 

v. Brush, 2012-Ohio-4214, ¶ 2. “The language of the statute is broad and 

encompassing” and “clearly sets forth heightened requirements for inmates seeking 

public records.” (Emphasis in original.) State ex rel. Russell v. Thornton, 2006-

Ohio-5858, ¶ 14 (involving former R.C. 149.43(B)(4), now R.C. 149.43(B)(8)).

{¶ 15} In an affidavit, Richland County Sheriff’s Office Captain James P. 

Sweat averred that Mack’s request Nos. 1, 7, and 8 “are concerning the criminal 

investigation that became the two criminal cases against him.” The sheriff’s office

has produced under seal for our review hundreds of pages of documents that are 

responsive to Mack’s request Nos. 1 and 7. Our review of these documents 

confirms that they are both responsive to Mack’s records request Nos. 1 and 7 and 

related to the crimes for which Mack was investigated and/or prosecuted. 

Accordingly, the sheriff’s office has demonstrated that the records that are 
January Term, 2024

7

responsive to Mack’s request Nos. 1 and 7 fall within the ambit of 

R.C. 149.43(B)(8). And because Mack has not obtained a finding by his sentencing 

judge that the records he seeks in request Nos. 1 and 7 are “necessary to support 

what appears to be a justiciable claim,” R.C. 149.43(B)(8), the sheriff’s office has

no duty to provide those records to Mack in response to his public-records request. 

See State ex rel. Adkins v. Cantrell, 2023-Ohio-1323, ¶ 26.

{¶ 16} The propriety of the sheriff’s office’s withholding of records 

responsive to Mack’s request No. 8 is not as clear. In his affidavit, Captain Sweat 

testified that the records sought in request No. 8 “concern[] the criminal 

investigation that became the two criminal cases against [Mack].” This averment 

is dubious on its face because in request No. 8, Mack seeks reports “filed on or 

about 8-31-2020” by two named officers concerning Mack’s address. (Emphasis 

added.) The investigation referenced by Captain Sweat did not commence until 

February 2021. Moreover, the records submitted by the sheriff’s office for in 

camera review do not appear to contain documents responsive to Mack’s request 

No. 8, making it impossible for us to evaluate whether the requested records relate 

to any criminal investigation or prosecution.

{¶ 17} In a statement filed with the documents submitted for in camera 

review, counsel for the sheriff’s office represents that records responsive to request 

No. 8 were not produced because none exist. However, the representation made by 

counsel is unsworn and is inconsistent with Captain Sweat’s sworn statement in his 

affidavit that the records Mack seeks in request No. 8 concern the February 2021 

criminal investigations of Mack that resulted in the two criminal cases that were 

filed against him. Accordingly, the unsworn representation of counsel for the 

sheriff’s office does not support denial of the writ as to request No. 8. See State ex 

rel. Mobley v. Powers, 2024-Ohio-104, ¶ 31, fn. 2 (disregarding a statement by a 

public-records respondent’s counsel that was “not in the form of a sworn 

affidavit”). The sworn evidence before this court, which is limited to Captain 
SUPREME COURT OF OHIO

8

Sweat’s affidavit, shows that the sheriff’s office withheld records responsive to 

Mack’s request No. 8 because those documents relate to the criminal investigation 

that led to the prosecution of Mack.

{¶ 18} The sheriff’s office bears the burden of establishing that the R.C. 

149.43(B)(8) exception applies. State ex rel. Ware v. Parikh, 2023-Ohio-759, ¶ 12. 

The record before us does not contain any evidence to corroborate the sheriff’s 

office’s contention that R.C. 149.43(B)(8) applies to the records sought by Mack in 

request No. 8. But in light of the representations of counsel for the sheriff’s office

that no documents responsive to request No. 8 exist, we grant a limited writ 

ordering the sheriff’s office to produce any responsive records to that request or to 

certify that no such records exist. See, e.g., State ex rel. Barr v. Wesson, 2023-

Ohio-3645, ¶ 15; State ex rel. Sultaana v. Mansfield Corr. Inst., 2023-Ohio-1177, 

¶ 43.

C. Statutory Damages

{¶ 19} In his complaint, Mack also requests an award of statutory damages. 

Though he reiterates the request in one sentence in the conclusion of his merit brief, 

Mack does not include any argument in support of his statutory-damages request. 

Mack has thus waived his statutory-damages claim. See State ex rel. Data Trace 

Information Servs., L.L.C. v. Cuyahoga Cty. Fiscal Officer, 2012-Ohio-753, ¶ 69.

III. CONCLUSION

{¶ 20} For the foregoing reasons, we deny as moot the writ of mandamus as 

to Mack’s public-records request Nos. 2 through 6. We deny the writ as to request 

Nos. 1 and 7 because of Mack’s noncompliance with R.C. 149.43(B)(8). Regarding

request No. 8, we grant a limited writ ordering the sheriff’s office to, within 14 days, 

either produce records responsive to request No. 8 or certify by affidavit that no such 

records exist. We deny Mack’s request for statutory damages.

Limited writ granted.
January Term, 2024

9

__________________

DEWINE, J., joined by DETERS, J., concurring in part and dissenting in 

part.

{¶ 21} I join the majority’s judgment denying a writ of mandamus as to 

seven of the eight categories of records that John H. Mack Jr. has requested from 

the Richland County Sheriff’s Office. But I would not grant a limited writ 

regarding the eighth category.

The Record Does Not Support the Majority’s Limited Writ

{¶ 22} In request No. 8, Mack asked for “a copy of any reports filed on or 

about 8-31-2020 by Officer Morgan Scarberry, and/or Owen Ross concerning” 

Mack’s home address. Mack did not obtain authorization for this request from the 

sentencing court as required by R.C. 149.43(B)(8). The majority concludes that 

“the sheriff’s office withheld records responsive to Mack’s request No. 8,” majority 

opinion at ¶ 17, but it determines that the evidence fails to establish that such 

records “relate to any criminal investigation or prosecution,”,” id. Consequently, 

it grants “a limited writ ordering the sheriff’s office to produce any responsive 

records to that request or to certify that no such records exist.” Id. at ¶ 18.

{¶ 23} The only evidentiary material in the record relating to request No. 8 

is Captain James P. Sweat’s sworn statement that “[r]elator’s first, seventh, and 

eighth requests are concerning the criminal investigation that became the two 

criminal cases against him.” The majority chooses to disregard this statement, 

characterizing it as “dubious on its face” because “the investigation referenced by 

Captain Sweat did not commence until February 2021.” (Emphasis in original.) 

Id. at ¶ 16. It is true that the search warrant that led to Mack’s indictment was 

executed in February 2021 and that the records provided to this court for in camera 

review relate to that same time period. But nothing in the record demonstrates that 

an August 2020 police report about Mack’s home did not play a role in law 

enforcement’s February 2021 investigation. Indeed, Mack suggests in his merit 
SUPREME COURT OF OHIO

10

brief that the prosecutor attempted (unsuccessfully) to admit such a report at his 

trial. See Mack Merit Br. at 10 (“This particular report was not allowed in the trial, 

and no charges resulted from the report.”).

{¶ 24} The majority also suggests that Captain Sweat’s sworn testimony is 

inconsistent with an unsworn statement made by counsel for the sheriff’s office in 

transmitting records to this court. See majority opinion at ¶ 17. In a letter, counsel 

provided materials for in camera review that the sheriff’s office maintained were 

exempt from public disclosure under R.C. 149.43(B)(8). As to request No. 8, 

counsel stated that “[r]espondent is not required to create records that do not already 

exist, which is why no records responsive to #8 have been produced.”

{¶ 25} There is no inconsistency between this statement and Captain 

Sweat’s testimony that “[r]elator’s first, seventh, and eighth requests are concerning 

the criminal investigation that became the two criminal cases against him.” It can 

be true both that Mack’s request concerned a criminal investigation and that the 

sheriff’s office did not have any records about the subject of that request.1 

{¶ 26} Here, there is no evidence controverting Captain Sweat’s sworn 

statement that request No. 8 concerned a criminal investigation of Mack. Despite 

this court’s decision to grant an alternative writ and establish a timeline for the 

submission of evidence, see 2023-Ohio-4259, Mack failed to submit any 

evidentiary materials about an August 2020 incident. Captain Sweat’s statement is 

unrefuted by any evidence in the record. Thus, Mack has failed to establish that he 

has “a clear legal right” to his requested relief and that the sheriff’s office has “a 

1. One might rejoin that if the sheriff’s office did not maintain any reports about an August 2020 

incident at Mack’s home, then why not say so initially? But if the reports were related to a criminal 

investigation of Mack, the sheriff’s office had no obligation to ascertain whether such documents 

existed before responding to Mack’s request. See R.C. 149.43(B)(8). Thus, it is quite plausible that 

the first time the sheriff’s office discovered that it did not maintain any records responsive to request 

No. 8 is when it prepared documents for in camera review by this court. 
January Term, 2024

11

corresponding clear legal duty” to provide it, State ex rel. Penland v. Ohio Dept. of 

Rehab. & Corr., 2019-Ohio-4130, ¶ 9.

{¶ 27} Because the only evidence in the record is that Mack’s request No. 

8 for an August 2020 police report concerned a criminal investigation of Mack, I 

would deny the writ in total.

Conclusion

{¶ 28} I concur in the majority’s judgment denying a writ of mandamus as 

to Mack’s first seven public-records requests and denying Mack’s request for 

statutory damages. I dissent from its judgment granting a limited writ as to request 

No. 8 and instead would deny Mack’s request for a writ of mandamus in total.

__________________

John H. Mack Jr., pro se.

Jodie M. Schumacher, Richland County Prosecuting Attorney, and Amanda 

S. Middis, Assistant Prosecuting Attorney, for respondent.

________________________