[Cite as State ex rel. Ware v. Kurt , 2021-Ohio-2025.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT )

STATE OF OHIO EX REL. KIMANI WARE

Relator

v. SANDRA KURT, SUMMIT COUNTY CLERK OF COURTS Respondent C.A. No. 29622

ORIGINAL ACTION IN MANDAMUS

Dated: June 16, 2021

PER CURIAM. {¶1} Relator, Kimani Ware , filed a petition f or a writ of mandamus t o compel Summit County Clerk of Court Sandra Kurt to respond to his public reco rds request. Ms. Kurt filed an answer and moved for summary judgment. Mr. Ware also moved for summary judgment. Ms.

Kurt attached evidence to her mo tion for summary judgment showi ng that, after receipt of Mr. Ware’s petition, she responded t o the public records request. {¶2} According to Mr. Ware’s complaint, in January 2019, he mailed a n envelope containing ten public records r equests to the Summit County Cle rk of Court’s Office. He requested numerous documents inc luding information related to e mployees, grand jury reports, oaths of office, Clerk’s Office policies, budget information, d ockets for a specific judge, and a transcript from a specific case. {¶3} In December 2019, after not receiving a response to his request , Mr. Ware filed this mandamus action pursuant t o R.C. 149.43. Ms. Kurt filed a n answer and a motion forC.A. No. 29622 Page 2 of 8 summary judgment. According to the motion for summary judgment , about one month after this action was filed, an assistant Summit County Prosecutor sent a letter to Mr. Ware indicating that she became aware of his public r ecords requests because they we re attached to the petition. She also provided documents responsiv e to many of his requests and explained why she was unable to respond to others. {¶4} In her motion for summary judgment, Ms. Kurt argued the matter was moot because she responded to Mr. Ware’s request. She also argued t hat she timely responded to the request as soon as she was aware of it, and that her office had responded to several other requests from Mr. Ware after January 2019. Mr. Ware also moved for summ ary judgment. He argued that he was entitled to statutory damages of $1,000 per request because of Ms. Kurt’s delay in responding to his requests. {¶5} This Court initially dismissed this action because, according t o a review of the docket, Mr. Ware had not complied with the mandatory requiremen ts of R.C. 2969.25. Mr. Ware moved to vacate that judgment and provided a time-stamped copy of the missing document. Upon review, we granted his motion to vacate, deemed the docume nt he attached to be timely filed, and reactivated the case . This matter is now before the Court for decision. {¶6} Ms. Kurt moved for summary judgment on Mr. Ware’s claim. To pr evail on a motion for summary judgment, the moving party must be able to p oint to evidentiary materials that show there is no genuine issue as to any material fact, an d that the moving party is entitled to judgment as a matter of law. Dresher v. Burt , 75 Ohio St.3d 280, 292-293 (1996). Once a moving party satisfies its bur den of supporting its motion for summary judgment with sufficient and acceptable evidence pursuant to Civ.R. 56(C), Civ.R. 56(E) provides that the non-moving party may not rest upon the mere allegations or denials of the moving party’s pleadings. Rather,C.A. No. 29622 Page 3 of 8 the non-moving party has a reciprocal burden of responding by s etting forth specific facts, demonstrating that a “genuine triable issue” exists to be litig ated. State ex rel. Zimmerman v. Tompkins , 75 Ohio St.3d 447, 449 (1996). Public Records and Mandamus Relief {¶7} Mr. Ware filed his complaint seeking relief pursuant to R.C. 14 9.43. The Ohio Supreme Court “has stated in num erous cases since the promulgat ion of Sup.R. 44 through 47 [that] a court must first address the threshold issue whether t he petitioner has sought the requested documents through the correct vehicle, either R.C. 149.43 or Su p.R. 44 through 47.” State ex rel. Parisi v. Dayton Bar Assn. Certified Grievance Committee , 159 Ohio St.3d 211, 2019-Ohio5157. According to the Supreme Cour t, the “vehicle used dictat es not only the documents that are available to the relator and the manner in which they are a vailable but also the remedies

available to the relator should the relator be successful.” Id. {¶8} The Supreme Court adopted Sup.R. 44 through 47 to resolve publi c-records requests for court records. Id. at ¶ 16. Following adoption of t hese rules, the Supreme Court has held that the threshold question in public-records cases is whe ther the statute or Rules of Superintendence appl y to the request. Id. at ¶ 19. This Court must make this inquiry even if the issue is not raised by the parties. Id. at ¶ 20. “If a party seeks to obtain judicial records through means other than Sup.R. 44 through 47, the party is not entitle d to a writ of mandamus, as the Rules of Superintendence are the sole vehicle by which a party may seek to obtain such records.”

Id. {¶9} The Supreme Court has explaine d the procedure to determine whet her the statute or Rules of Superintenden ce apply to the request: Generally, if the records requested are held by or were created for the judicial branch, then the party seeking to obtain the records must submi t a request pursuantC.A. No. 29622 Page 4 of 8 to Sup.R. 44 through 47. See Sup.R. 44(B) (defining “court record” as including case documents and administrativ e documents); Sup.R. 44(C)(1) ( defining “case document” generally as a document “submitted to a court or file d with a clerk of court in a judicial action or proceeding”); Sup.R. 44(G)(1) (de fining “administrative document” generally as a document “created, rec eived, or maintained by the court to record the administrative, fiscal, p ersonnel, or management functions, polices, d ecisions, procedures, operation s, organization, or other activities of the court”); Husband at ¶ 6.

Parisi at ¶ 21. If a party requests documents using the wrong vehicl e, “the party is not entitled to the requested reco rds in that action.” Id. R.C. 149.43 or Sup.R. 44 – 47 {¶10} We must determine whether R.C. 149.43, the vehicle Mr. Ware cho se to enforce his right to public records, applies to the records he requeste d. Upon review of his request, we

determine that the s tatute applies to only one of his requests. {¶11} Mr. Ware submitted multiple requests seeking a variety of docum ents, including, for example:

1. Calendars for the clerk of courts and one staff member for a two-week period in 2019; 2. Employee time records for the clerk of courts and one staff member; 3. Meeting notices for the c lerk of courts office; 4. Disposal of obsolete records forms for 2018; 5. Performance evaluation of the clerk of courts and one staff member; 6. Travel expense records of c lerk of courts a nd one staff mem ber; 7. Oath of office for one cler k of courts staff member; 8. 2018 grand jury reports recorded i n the clerk of courts off ice; 9. Summit County Sheriff oath rec ording in the clerk of courts office; 10. Clerk of courts ne potism policy; 11. Roster of clerk of courts employees; 12. Personnel files of clerk of courts and on e staff member; 13. Grand jury schedule sheets for “December 1, 2019 [sic.] [t ]hru January 14, 2019”; 14. Handbook/manual for employees of the clerk of courts offic e; 15. Records retention schedule for 2016; 16. Oath of office of Sandra Kurt; 17. Clerk of courts public r ecords policy; and 18. Certificate of disposal form for destruction of clerk of c ourts employee personnel files and fi nancial records.C.A. No. 29622 Page 5 of 8

{¶12} Mr. Ware made requests for almost 20 more documents similar to those outlined above, from additional disposal certificates to requests for ti me records, grants received by the clerk of courts, dockets for a specific judge, clerk of courts dress code policy, clerk of courts cash handling policy, clerk of courts sick leave policy, and the oat h of office for a specific judge that

is recorded in the clerk of courts’ office. Unlike all of the other requests, Mr. Ware, in Request 34, sought a transcript of an exhibit that was filed in his cri minal appeal; this request will be addressed separately below. {¶13} According to the Supreme Court, our first step must be to deter mine the proper vehicle for the request. Parisi at ¶ 21. “Generally, if the records requested are held by or were created for the judicial branch, then the party seeking to obta in the records must submit a request pursuant to Sup.R. 44 through 47.” Id. Upon review of the list of documents Mr. Ware requested, we conclude that the records, e xcept for Request 34, fall withi n the scope of Sup.R. 44 through 47. The various requests for po licies, schedules, manuals, and employee information for the clerk of courts fall “squarely within the definition of adminis trative records in Sup.R. 44(G)(1).” State ex rel. Perry v. Clevel and Hts. Mun. Clerk of Courts , 8th Dist. Cuyahoga No. 109916, 2020- Ohio-5193, ¶ 7. The other record s he requested fall under Sup. R. 44(B) as court records, including case and administrative documents. {¶14} We conclude, as did the Eighth District in Perry , that it “is clear from the nature of the documents requested tha t they fall under the provisions of the Rules of Superintendence for access to court records. Therefore, [Mr. Ware’s] claims all eged in his complaint entirely premised on the Public Records Act must fail.” Id. at ¶ 9. Summary judgment is granted to Respondent as to all requ ests except Request 34.C.A. No. 29622 Page 6 of 8 Request 34 {¶15} Mr. Ware’s Request 34 was for a transcript of the 911 tape from his criminal case. This document falls under the statute and, therefore, mandamus relief pursuant to R.C. 149.43 is the appropriate vehicle to cha llenge Respondent’s failure to pr ovide it. R.C. 149.43(B)(8) limits the right of inmates to access certain records. When a person is incarcerated, like Mr. Ware, and that person requests public record s from his case, the sentenci ng judge, or his successor, must

authorize the release of the records. 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 inspect or to obtain a copy of any public record concerning a criminal inv estigation or prosecution * * *, unless the request to inspect or to obtain a copy of the record is for the purpose of acquiring inf ormation that is subject to rel ease as a public record under this section and the judge who imposed the sentence * * * with respect to the person, or the judge’s successo r in office, finds that the information sought in the public record is necessary t o support what appears to be a justiciable claim of the person. R.C. 149.43(B)(8). {¶16} This provision requires the sentencing court to first determine that the information sought in the public record is necessary to support a justiciab le claim. Ms. Kurt answered the request for this document by noting that she did not have docum ents responsive to this request. Even if she did, however, the docket and pleadings demonstrate that Mr. Ware is an inmate and that he has not obtained a finding from his sentencing judge, o r successor in office, under R.C. 149.43(B)(8). Because an inmate who seeks a public record rela ted to his criminal case cannot compel the production of the pub lic record without a finding by the sentencing judge that the record supports a valid claim, Ms. Kurt is entitled to summary judgment. State ex rel. Ware v.

Giavasis , Slip Opinion No. 2020-Ohio-5453.C.A. No. 29622 Page 7 of 8 Statutory Damages {¶17} Mr. Ware sought an award of statutory damages pursuant to R.C. 149.43. As outlined above, the Rules of Superintendence, not R.C. 149.43, govern the procedure for all of the requested documents except for Request 34. The Rules of Su perintendence do not authorize statutory damages under any circumstances. State ex rel. Harris v. Pureval , 155 Ohio St.3d 343, 2018-Ohio-4718, ¶ 11. Accordingly, Mr. Ware is not entitled to statutory damages for those

documents. {¶18} As to Request 34, which does fa ll under the statutory framework , Mr. Ware is not entitled to damages. “A person requesting public records is en titled to an award of statutory damages ‘if a court determines that the public office or the pe rson responsible for [the] public records failed to comply with an obligation in accordance with division (B) of this section.’ R.C. 149.43(C)(2).” State ex rel. McDougald v. Sehlmeyer , 162 Ohio St.3d 94, 2020-Ohio-3927. Because Ms. Kurt did not fail to comply with an obligation in a ccordance with R.C. 149.43(B),

Mr. Ware is not entitled t o statutory damages.

Conclusion {¶19} Respondent’s motion for summary judgment is granted. Because i t was the filing of this action that prompted a response to Mr. Ware’s public re cords request, however, no costs

are taxed. {¶20} The clerk of courts is hereby directed to serve upon all partie s not in default notice of this judgment and its da te of entry upon the journal. See Civ.R. 58.

THOMAS A. TE ODOSIO FOR THE COURTC.A. No. 29622 Page 8 of 8

CARR, J. HENSAL, J. CONCUR.

APPEARANCES: KIMANI WARE, Pro se, Relator. SHERRI BEVAN WALSH, Prosecuting Attorney, and COLLEEN SIMS, Ass istant Prosecuting Attorney, for Respondent.