[Cite as State ex rel. Data Trace Information Servs., L.L.C. v. Cuyahoga Cty. Fiscal Officer,

131 Ohio St.3d 255, 2012-Ohio-753.] 

THE STATE EX REL. DATA TRACE INFORMATION SERVICES, L.L.C. ET AL. v.

CUYAHOGA COUNTY FISCAL OFFICER. 

[Cite as State ex rel. Data Trace Information Servs., L.L.C. v. Cuyahoga Cty. 

Fiscal Officer, 131 Ohio St.3d 255, 2012-Ohio-753.] 

Public records—County recorders’ real estate records constitute public records—

R.C. 149.011(G)—Electronic copies to be provided at cost—R.C. 

149.43(B)—Statutory fee of $2 per photocopied page inapplicable to 

electronic copies—R.C. 9.01 and 317.32(I). 

(No. 2010-2029—Submitted January 3, 2012—Decided February 29, 2012.) 

IN MANDAMUS. 

__________________ 

Per Curiam.

{¶ 1} This is an action for a writ of mandamus to compel respondent, the 

Cuyahoga County fiscal officer, to provide to relators, private companies that 

store and index electronic images of records and information taken from the 

records that county recorders have recorded and officials representing those 

companies, copies of electronic images of all documents recorded in the 

Cuyahoga County Recorder’s Office in the months of July and August 2010 on 

compact discs, to provide those copies based on their actual cost rather than $2 

per electronic image of each page, and to amend the office’s public-records policy 

to comply with the law. Because the requested electronic images constitute 

records subject to disclosure under the Public Records Act and relators are 

entitled to copies of those electronic records at actual cost rather than at the higher 

statutory charge for photocopying documents, we grant the writ to compel the 

fiscal officer to provide the requested electronic copies at actual cost. Insofar as 
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the current public-records policy of the recorder’s office does not controvert this 

result, however, we deny the writ insofar as it seeks to amend the policy. 

Facts 

{¶ 2} Relators Data Trace Information Services, L.L.C. and Property 

Insight, L.L.C. are limited-liability companies that were created by separate titleinsurance companies. Data Trace and Property Insight store and organize digital 

images of and information taken from deeds, mortgages, liens, leases, releases, 

and other public records that county recorders’ offices record. Their clients are 

companies that evaluate and insure the quality of title to land. 

{¶ 3} From 1997 until mid-1998, Patrick O’Malley served as the 

Cuyahoga County recorder. During O’Malley’s tenure as county recorder, the 

office changed from a paper-based system of managing recorded instruments to a 

computer-based system. By 1999, the recorder’s office recorded deeds and other 

instruments by electronically scanning the originals to create digital images of 

them and storing those images in the office’s computer system. 

{¶ 4} The office procedure is as follows. Persons desiring to file a deed, 

mortgage, or other instrument with the county recorder tender the instrument and 

the applicable recording fee to one of the cashiers in the recorder’s office. The 

recorder’s office assigns an automated file number to the instrument that shows 

the date the county recorded the instrument and the sequence in which the 

instrument is recorded that day. An adhesive label listing the file number and the 

time of filing is attached to the document, the person’s name and telephone 

number are obtained in case any problem with the document arises, the document 

is scanned into the recorder’s computer system with a digital scanner, and the 

original paper document is returned to the person tendering it. 

{¶ 5} The recorder’s office makes a backup copy of the digital images of 

all the instruments recorded every single day on a compact disc. These backup 

copies are referred to as master CDs. Using the information that appears on the 
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electronically recorded instruments, the recorder’s office also enters certain 

information into the computer system that results in the office’s grantor-grantee 

index. 

{¶ 6} Beginning in 1999, the recorder’s office copied the master CDs 

onto several blank CDs and provided the CDs for a fee of $50 to various 

companies, including Data Trace and Property Insight. Those companies also 

paid a fee of $5,000 each year for regularly updated copies of the recorder’s 

office’s grantor-grantee index. 

{¶ 7} Neither Data Trace nor Property Insight evaluates the quality of 

title to land. Instead, they provide access to their databases and searching 

capabilities, which are more detailed and comprehensive than Cuyahoga County’s 

database and search options. 

{¶ 8} In July 2008, Lillian Greene became Cuyahoga County recorder. 

In September 2009, Greene notified Data Trace and Property Insight that she was 

increasing the $5,000 annual fee for the updated grantor-grantee index to $7,500 

as a result of the “recent county budget crisis” but that the $50 fee for single CDs 

of the office’s daily recordings would remain the same. In the spring of 2010, the 

recorder’s office notified Data Trace and Property Insight that it would no longer 

be providing CD copies of its daily digital images from its master CDs. Instead, 

the recorder’s office advised the companies that it would give them only paper 

printouts of the digital copies of the recorded instruments at a fee of $2 per page. 

The recorder’s office purchases blank CDs for use in its routine course of 

business at a rate of $31.81 for 100 discs. 

{¶ 9} On October 5, 2010, Data Trace and Property Insight sent letters to 

the Cuyahoga County recorder requesting that Greene provide CDs containing 

electronic copies of all documents publicly recorded in her office in July and 

August 2010. The letters were sent on their behalf by relator Michael Stutzman, 

the operations manager of Data Trace, and relator Michael Carsella, the vice 
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president of Midwest operations of Property Insight. The companies objected to 

the recorder’s recently adopted policy or practice of imposing a charge for all 

copies of recorded documents, whether images or paper, of $2 per page or image, 

and requested that the recorder amend her policy of charging more than the actual 

cost of copying the electronic images of the recorded documents onto CD. The 

then existing public-records policy adopted by the recorder’s office included a 

section that provided that “[t]he charge for downloaded computer files to a 

compact disc is $1.00 per disc.” 

{¶ 10} After three weeks without a response from the recorder, Data 

Trace and Property Insight filed a public-records mandamus action against the 

Cuyahoga County recorder in this court in case No. 2010-1823. By letters dated 

November 16, 2010, the recorder’s office finally responded to the companies’ 

October 5, 2010 requests by specifying that it would provide the requested 

materials upon payment of the statutory fees required by R.C. 317.32. The 

recorder then moved to dismiss case No. 2010-1823 because the companies had 

not registered to do business in Ohio. The companies filed an application to 

dismiss the case, which we granted on November 30, 2010. Data Trace 

Information Servs., L.L.C. v. Cuyahoga Cty. Recorder, 127 Ohio St.3d 1439, 

2010-Ohio-5806, 937 N.E.2d 569. 

{¶ 11} Data Trace and Property Insight registered and paid the fees to do 

business in Ohio. On November 24, 2010, relators, Data Trace, Property Insight, 

Stutzman, and Carsella, filed this public-records mandamus case against the 

Cuyahoga County recorder. On January 5, 2011, relators deposed Recorder 

Greene, who claimed that the recorder’s office’s public-records policy, which 

provided that the charge for downloaded computer files to compact disc was $1 

per disc, did not apply to the companies’ requests for the electronically recorded 

instruments because they were not public records. 
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{¶ 12} After the deposition, around January 10, 2011, the recorder 

adopted a public-records policy that deleted the fee of $1 per compact disc for 

downloading computer files and replaced it with a policy that provides that the 

“cost for copies is $2.00 per page for recorded documents * * * and $.05 per page 

for all administrative or non-recorded documents,” with public-records requests 

pertaining “to any documents that document the organization, functions, policies, 

decisions, procedures and operations of the office, subject to certain exemptions 

under state and federal law.” 

{¶ 13} In January 2011, Cuyahoga County’s new charter form of 

government became effective. The Cuyahoga County Council adopted a publicrecords policy that specified that “[t]he charge for computer files downloaded to a 

compact disc shall be the actual cost, not to exceed $1.26 per disc.” 

{¶ 14} Under the charter, the Cuyahoga County fiscal officer “shall 

exercise all powers and perform all duties now or hereafter vested in or imposed 

by general law upon * * * county recorders.” Article V, Section 5.02(1), 

Cuyahoga County Charter. Therefore, the Cuyahoga County fiscal officer is 

substituted for the Cuyahoga County recorder as the respondent in this case. 

S.Ct.Prac.R. 10.2 and Civ.R. 25(D)(1). Although there is no longer a county 

recorder, the recorder’s office still remains. See http://recorder.cuyahoga 

county.us. 

{¶ 15} In February 2011, relators filed a motion for leave to file an 

amended complaint. In their amended complaint, relators request a writ of 

mandamus to (1) compel the fiscal officer to provide the requested copies of 

recorded instruments on compact discs, (2) amend the policy and practice to allow 

for copying electronically stored recorded instruments onto CDs and to provide 

electronic copies to relators and other members of the public at cost, and (3) 

restore the policy limiting the fee charged for electronic copies of records to $1 

per CD with no per-page fee. 
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{¶ 16} In March 2011, after relators became concerned that the county 

had misunderstood their request as asking the recorder’s office to create new 

records in a CD format, they sent the fiscal officer letters stating that the 

recorder’s office could comply with their October 5, 2010 requests by copying the 

master CDs for July and August 2010 onto blank CDs and charging them $1 per 

CD in accordance with former recorder Greene’s previous public-records policy. 

In response, the fiscal officer specified that the county agreed that Data Trace and 

Property Insight could have copies of the records they requested, so the only 

question was how much the companies must pay, and it was his view that they 

must pay the fee of $2 per page specified in the Revised Code. 

{¶ 17} In his answers to relators’ interrogatories, the fiscal officer stated 

that the total number of pages of instruments that the recorder’s office recorded 

in July and August 2010 was 104,282, and pursuant to R.C. 317.32(I), Data Trace 

and Property Insight would be charged $2 per page—a total of $208,564—for the 

requested copies. 

{¶ 18} In April 2011, we granted relators’ motion for leave to file an 

amended complaint, granted an alternative writ, and issued a schedule for the 

submission of evidence and briefs. 128 Ohio St.3d 1442, 2011-Ohio-1618, 944 

N.E.2d 693. The parties have submitted evidence and briefs. In addition, the 

fiscal officer has filed a motion for oral argument, and the Reporters Committee 

for Freedom of the Press, Ohio Newspaper Association, and Ohio Land Title 

Association have filed amicus curiae briefs in support of relators. 

{¶ 19} This cause is now before the court for our consideration of the 

merits and the motion for oral argument. 

Legal Analysis 

Oral Argument 

{¶ 20} The fiscal officer requests oral argument. “Oral argument is not 

required in an original action in this court; instead, oral argument is discretionary 
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7

in these cases.” State ex rel. Mun. Constr. Equip. Operators’ Labor Council v. 

Cleveland, 114 Ohio St.3d 183, 2007-Ohio-3831, 870 N.E.2d 1174, ¶ 42. 

“Nevertheless, we have discretion to grant oral argument pursuant to S.Ct.Prac.R. 

IX(2)(A) [now 9.2(A)], and in exercising this discretion, we consider whether the 

case involves a matter of great public importance, complex issues of law or fact, a 

substantial constitutional issue, or a conflict among courts of appeals.” State ex 

rel. Davis v. Pub. Emps. Retirement Bd., 111 Ohio St.3d 118, 2006-Ohio-5339, 

855 N.E.2d 444, ¶ 15. 

{¶ 21} First, the fiscal officer does not present any credible reason for oral 

argument. He merely states in conclusory fashion that oral argument “will assist 

this Court in resolving the important legal issues in this case.” See State ex rel. 

Lorain v. Stewart, 119 Ohio St.3d 222, 2008-Ohio-4062, 893 N.E.2d 184, ¶ 18. 

{¶ 22} Second, this case does not involve complex facts, a conflict 

between courts of appeals, or any constitutional issue. 

{¶ 23} Finally, the parties’ briefs are sufficient to resolve this publicrecords mandamus case. State ex rel. Mahajan v. State Med. Bd. of Ohio, 127 

Ohio St.3d 497, 2010-Ohio-5995, 940 N.E.2d 1280, ¶ 65. 

{¶ 24} Therefore, we deny the fiscal officer’s motion for oral argument. 

Mandamus in Public-Records Cases 

{¶ 25} “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, 108 Ohio St.3d 288, 

2006-Ohio-903, 843 N.E.2d 174, ¶ 6; R.C. 149.43(C)(1). “Relators in publicrecords mandamus cases need not establish the lack of an adequate remedy in the 

ordinary course of law.” State ex rel. Am. Civ. Liberties Union of Ohio, Inc. v. 

Cuyahoga Cty. Bd. of Commrs., 128 Ohio St.3d 256, 2011-Ohio-625, 943 N.E.2d 

553, ¶ 24. 
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{¶ 26} “The Public Records Act reflects the state’s policy that ‘open 

government serves the public interest and our democratic system.’ ” State ex rel. 

Glasgow v. Jones, 119 Ohio St.3d 391, 2008-Ohio-4788, 894 N.E.2d 686, ¶ 13, 

quoting State ex rel. Dann v. Taft, 109 Ohio St.3d 364, 2006-Ohio-1825, 848 

N.E.2d 472, ¶ 20. “Consistent with this policy, we construe R.C. 149.43 liberally 

in favor of broad access and resolve any doubt in favor of disclosure of public 

records.” Id. 

{¶ 27} The fiscal officer argues that relators are not entitled to the 

requested electronic copies of recorded documents at cost, because the documents 

are not records for purposes of the Public Records Act, and that R.C. 317.32(I), 

when read in pari materia with R.C. 9.01, requires the charge of $2 per page. 

Documents Recorded in County Recorder’s Office 

as Records Subject to R.C. 149.43 

{¶ 28} The fiscal officer first claims that relators are not entitled to the 

requested electronic copies of documents recorded in the county recorder’s office 

at cost because the documents, although otherwise publicly available, are not 

records subject to disclosure under R.C. 149.43. 

{¶ 29} R.C. 149.43(A)(1) defines “[p]ublic record” for purposes of the 

Public Records Act as “records kept by any public office, including, but not 

limited to, * * * county [offices].” R.C. 149.011(G) provides that for R.C. 

Chapter 149, 

“[r]ecords” includes any document, device, or item, regardless of 

physical form or characteristic, including an electronic record as 

defined in section 1306.01 of the Revised Code, created or 

received by or coming under the jurisdiction of any public office of 

the state or its political subdivisions, which serves to document the 
January Term, 2012 

9

organization, functions, policies, decisions, procedures, operations, 

or other activities of the office. 

R.C. 1306.01(G) defines an “[e]lectronic record” as “a record created, generated, 

sent, communicated, received, or stored by electronic means.” 

{¶ 30} In Kish v. Akron, 109 Ohio St.3d 162, 2006-Ohio-1244, 846 

N.E.2d 811, at ¶ 20, we recognized the expansive scope of the R.C. 149.011(G) 

definition of “records”: 

 We previously have held that the General Assembly’s use 

of “includes” in R.C. 149.011(G) as a preface to the definition of 

“records” is an indication of expansion rather than constriction, 

restriction, or limitation and that the statute’s use of the phrase 

“any document” is one encompassing all documents that fit within 

the statute’s definition, regardless of “form or characteristic.” 

State ex rel. Cincinnati Post v. Schweikert (1988), 38 Ohio St.3d 

170, 172-173, 527 N.E.2d 1230. There can be no dispute that there 

is great breadth in the definition of “records” for the purposes here. 

Unless otherwise exempted or excepted, almost all documents 

memorializing the activities of a public office can satisfy the 

definition of “record.” State ex rel. Beacon Journal Publishing 

Co. v. Bond, 98 Ohio St.3d 146, 2002-Ohio-7117, 781 N.E.2d 180, 

¶ 13. 

{¶ 31} To establish that the electronically recorded documents are records 

for purposes of R.C. 149.011(G) and 149.43, they must be (1) documents, 

devices, or items, including electronic records, (2) created or received by or 

coming under the jurisdiction of the recorder’s office, (3) that serve to document 
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the organization, functions, policies, decisions, procedures, operations, or other 

activities of the office. R.C. 149.011(G); see also State ex rel. Dispatch Printing 

Co. v. Johnson, 106 Ohio St.3d 160, 2005-Ohio-4384, 833 N.E.2d 274, ¶ 19. 

{¶ 32} Documents electronically recorded by the recorder’s office satisfy 

the first two requirements of the three-part definition of “records” under R.C. 

149.011(G) and 149.43. The documents are received by the recorder’s office, and 

electronic images of them are created by the recorder’s office when they are 

scanned into the office’s computer system. 

{¶ 33} The dispositive issue for this preliminary question is thus whether 

the electronically recorded instruments serve to document the organization, 

functions, policies, decisions, procedures, operations, or other activities of the 

recorder’s office. 

{¶ 34} The fiscal officer contends that documents recorded in a county 

recorder’s office are not records subject to R.C. 149.43, because they do not 

document the organization, functions, policies, decisions, operations, or other 

activities of the recorder’s office. Instead, according to the fiscal officer, they 

document the independent acts of third parties who present the instruments to the 

officer for recording. 

{¶ 35} The fiscal officer’s contention lacks merit. In general, a “county 

recorder is an elected public official charged with the performance of duties as 

prescribed by statute.” State ex rel. Preston v. Shaver, 172 Ohio St. 111, 114, 173 

N.E.2d 758 (1961). 

{¶ 36} Under R.C. 5301.25(A), “[a]ll deeds, land contracts * * *, and 

instruments of writing properly executed for the conveyance or encumbrance of 

lands, tenements, or hereditaments * * * shall be recorded in the office of the 

county recorder of the county in which the premises are situated.” County 

recorders have various statutory duties, including keeping certain records (R.C. 

317.08), recording certified matter in reference to bankruptcy (R.C. 317.10), 
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indorsing the date, precise time of presentation, and file number of deeds or other 

written instruments that are required or authorized by statute to be recorded and 

that are presented to the recorder for that purpose (R.C. 317.13), making and 

keeping up direct and reverse indexes of the names of parties to instruments 

received for record (R.C. 317.18), and keeping a daily register of deeds and 

mortgages (R.C. 317.19). 

{¶ 37} R.C. 317.13(B) authorizes county recorders, within their 

discretion, to “refuse to record an instrument of writing presented to the recorder 

for recording if the instrument is not required or authorized by the Revised Code 

to be recorded or the recorder has reasonable cause to believe the instrument is 

materially false or fraudulent.” R.C. 317.112 and 317.114 set forth certain 

standards for instruments presented to county recorders for recording and impose 

various duties on recorders should those standards not be met. 

{¶ 38} The instruments that the county recorder’s office electronically 

records and places into the office’s computer system reflect the office’s 

compliance with its many statutory duties and its exercise of discretion over the 

recording process. The electronic records thus manifestly document the 

organization, functions, policies, decisions, operations, or other activities of the 

recorder’s office. Without these recorded instruments, the recorder’s office could 

not perform its preeminent functions. In fact, the chief of staff of the recorder’s 

office acknowledged that providing copies of recorded instruments to the public is 

a primary function of the office. 

{¶ 39} The fiscal officer’s reliance on a Pennsylvania appellate court case 

to argue otherwise is unpersuasive. Inkpen v. Roberts, 862 A.2d 700 

(Pa.Commw.2004). In Inkpen, the intermediate appellate court held that deeds 

and mortgages were not public records under the Pennsylvania Right-to-Know 
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Act, but the definition of “public record” in that statute is significantly more 

limited than the definition of “records” in the Ohio Public Records Act.1

{¶ 40} Notably, we are not addressing the issue of personally identifiable 

information in the requested electronically recorded instruments here. Compare

Johnson, 106 Ohio St.3d 160, 2005-Ohio-4384, 833 N.E.2d 274, syllabus (home 

addresses of state employees are not records for purposes of R.C. 149.43); State 

ex rel. McCleary v. Roberts, 88 Ohio St.3d 365, 370, 725 N.E.2d 1144 (2000) 

(personal information regarding children who used city’s recreational facilities 

was not “record” subject to R.C. 149.43); see R.C. 317.082 (requiring that 

preparers of documents to be recorded not include personal information in the 

documents). 

{¶ 41} Therefore, the written instruments electronically recorded by the 

recorder’s office are records under R.C. 149.011(G) and 149.43, the Public 

Records Act. By so holding, we accord the applicable definition of “records” in 

R.C. 149.011(G) the breadth that the General Assembly intended and thereby 

further the essential purpose of Ohio’s Public Records Act—that the public be 

informed and be able to scrutinize and monitor the government’s work and 

decisions. See generally Kish, 109 Ohio St.3d 162, 2006-Ohio-1244, 846 N.E.2d 

811, ¶ 15-20. 

Applicable Fee for Copies of Electronically Recorded Instruments 

{¶ 42} The fiscal officer next asserts that relators are required to pay $2 

per digital image of each page of the requested electronically recorded documents 

from July and August 2010, which would result in Data Trace and Property 

 

1. Title 65, Section 66.1 of the Pennsylvania Statutes defines a public record as “[a]ny account, 

voucher or contract dealing with the receipt or disbursement of funds by an agency or its 

acquisition, use or disposal of services or of supplies, materials, equipment or other property and 

any minute, order or decision by an agency fixing the personal or property rights, privileges, 

immunities, duties or obligations of any person or group of persons.” 
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Insight paying $208,564 each for the 104,282 pages of recorded instruments 

requested. 

{¶ 43} In general, “R.C. 149.43(B)(1) provides that copies of public 

records shall be made available ‘at cost.’ ” State ex rel. Slagle v. Rogers, 103 

Ohio St.3d 89, 2004-Ohio-4354, 814 N.E.2d 55, ¶ 5; R.C. 149.43(B)(1) (“upon 

request, a public office or person responsible for public records shall make copies 

of the requested public record available at cost”). This means actual cost and 

does not include labor costs for employee time to respond to the request and make 

the copies. See State ex rel. Warren Newspapers, Inc. v. Hutson, 70 Ohio St.3d 

619, 625-626, 640 N.E.2d 174 (1994), citing State ex rel. Bonnell v. Cleveland, 

8th Dist. No. 64854, 1993 WL 335426 (Aug. 26, 1993) (court relied on stipulated 

evidence regarding actual per-page copying costs consisting of costs of toner, 

paper, and copying time). 

{¶ 44} Relators claim that the requested CDs containing copies of 

electronically recorded instruments from July and August 2010 would likely have 

an actual cost of no more than $1 per CD and that they should pay this fee under 

R.C. 149.43(B). 

{¶ 45} The fiscal officer counters that R.C. 317.32 controls the cost of the 

requested copies. Subsection (I) of R.C. 317.32 provides that the county recorder 

shall charge $2 per page for photocopying a recorded document: 

The county recorder shall charge and collect the following 

fees, to include base fees for the recorder’s services and housing 

trust fund fees * * *: 

* * * 

(I) For photocopying a document, other than at the time of 

recording and indexing as provided for in division (A) of this 

section, a base fee of one dollar and a housing trust fund fee of one 
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dollar per page, size eight and one-half inches by fourteen inches, 

or fraction thereof. 

{¶ 46} In determining which statutory cost provision applies for the 

requested copies of electronically recorded documents, the fiscal officer claims 

that the more specific provision that applies to fees charged by county recorders 

for photocopying a recorded document—R.C. 317.32(I)—prevails over the more 

general public-records provision—R.C. 149.43(B)(1). 

{¶ 47} R.C. 1.51 provides: 

 If a general provision conflicts with a special or local 

provision, they shall be construed, if possible, so that effect is 

given to both. If the conflict between the provisions is 

irreconcilable, the special or local provision prevails as an 

exception to the general provision, unless the general provision is 

the later adoption and the manifest intent is that the general 

provision prevail. 

{¶ 48} “When two statutory provisions are alleged to be in conflict, R.C. 

1.51 requires us to construe them, where possible, to give effect to both.” 

(Emphasis sic.) Gahanna-Jefferson Local School Dist. Bd. of Edn. v. Zaino, 93 

Ohio St.3d 231, 234, 754 N.E.2d 789 (2001). “ ‘Only where the conflict is 

deemed irreconcilable does R.C. 1.51 mandate that one provision shall prevail 

over the other.’ ” (Emphasis sic.) Id., quoting United Tel. Co. of Ohio v. 

Limbach, 71 Ohio St.3d 369, 372, 643 N.E.2d 1129 (1994). 

{¶ 49} In assessing whether there is a conflict between R.C. 317.32(I) and 

149.43(B)(1), we must determine the meaning of the word “photocopy” because 

the special fee provision in R.C. 317.32(I) applies only to “photocopying a 
January Term, 2012 

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document” that has been recorded in a county recorder’s office. “In order to 

understand a particular word used in a statute, a court is to read it in context and 

construe it according to the rules of grammar and common usage. R.C. 1.42. If, 

as here, a term is not defined in the statute, it should be accorded its plain and 

ordinary meaning.” Rhodes v. New Philadelphia, 129 Ohio St.3d 304, 2011-

Ohio-3279, 951 N.E.2d 782, ¶ 17. 

{¶ 50} The plain and ordinary meaning of “photocopy” is “a negative or 

positive photographic reproduction of graphic matter (as a drawing or printing),” 

and the common definition of “photograph” is “a picture, image, or likeness 

obtained by photography.” Webster’s Third New International Dictionary 1702 

(1986). 

{¶ 51} In addition, relators’ expert, Peter Shulman, an assistant professor 

of history at Case Western Reserve University, provided uncontroverted evidence 

that the modern meaning of photocopying emphasizes xerography—a process 

originally called electron photography. According to Professor Shulman, this 

process consists of the following five steps: (1) a special plate is charged with 

static electricity, (2) once the plate is charged, the document to be copied is placed 

above it, a light projects an image of the document onto the plate, and the charge 

drains away from the plate except in places where the ink on the document was 

projected, (3) a dry ink called toner is dusted over the selectively charged plate so 

that the toner forms an image of the document to be copied atop the charged plate, 

(4) a blank sheet of paper receives the duplicated image, and (5) the duplicated 

document is heated to fuse or melt the toner to the paper, creating a permanent 

copy, and the charged plate is wiped clean of the charge and residual toner. 

Photocopying relies on copying physical pages one at a time. 

{¶ 52} By contrast, copying electronic images of recorded documents 

onto a CD involves no photography or xerography and is done through stored 
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computer memory, and the data is stored not in terms of “pages” but in terms of 

sequences of 1s and 0s. No paper is involved in the process. 

{¶ 53} Therefore, the plain meaning of “photocopying” does not 

encompass relators’ requests that the fiscal officer copy onto a CD electronically 

recorded instruments. There is no conflict, much less an irreconcilable one, 

between R.C. 317.32(I) and 149.43(B)(1) for the requested records. In cases in 

which photocopying physical pages of recorded documents is requested, a county 

recorder shall charge $2 per page. R.C. 317.32(I). In cases in which CDs 

containing electronically recorded documents are requested, the county recorder 

shall charge the actual cost of the copies. R.C. 149.43(B)(1). We reached a 

similar result in Slagle, 103 Ohio St.3d 89, 2004-Ohio-4354, 814 N.E.2d 55, in 

which we held that R.C. 2301.24 superseded the “at cost” provision of R.C. 

149.43(B)(1) for copies of transcripts of court proceedings, but not for audiotapes 

of those proceedings. By so construing these provisions, we give effect to both. 

{¶ 54} The fiscal officer next relies on R.C. 9.01 to equate electronically 

copying recorded documents with photocopying for purposes of charging relators 

$2 per digital image of each page under R.C. 317.32(I). 

{¶ 55} R.C. 9.01 provides: 

 When any officer, office, court, commission, board, 

institution, department, agent, or employee of the state, of a 

county, or of any other political subdivision who is charged with 

the duty or authorized or required by law to record, preserve, keep, 

maintain, or file any record, document, plat, court file, paper, or 

instrument in writing, or to make or furnish copies of any of them, 

deems it necessary or advisable, when recording or making a copy 

or reproduction of any of them or of any such record, for the 

purpose of recording or copying, preserving, and protecting them, 
January Term, 2012 

17

reducing space required for storage, or any similar purpose, to do 

so by means of any photostatic, photographic, miniature 

photographic, film, microfilm, or microphotographic process, or 

perforated tape, magnetic tape, other magnetic means, electronic 

data processing, machine readable means, or graphic or video 

display, or any combination of those processes, means, or displays, 

which correctly and accurately copies, records, or reproduces, or 

provides a medium of copying, recording, or reproducing, the 

original record, document, plat, court file, paper, or instrument in 

writing, such use of any of those processes, means, or displays for 

any such purpose is hereby authorized. Any such records, copies, 

or reproductions may be made in duplicate, and the duplicates shall 

be stored in different buildings. The film or paper used for a 

process shall comply with the minimum standards of quality 

approved for permanent photographic records by the national 

bureau of standards. All such records, copies, or reproductions 

shall carry a certificate of authenticity and completeness, on a form 

specified by the director of administrative services through the 

state records program. 

 Any such officer, office, court, commission, board, 

institution, department, agent, or employee of the state, of a 

county, or of any other political subdivision may purchase or rent 

required equipment for any such photographic process and may 

enter into contracts with private concerns or other governmental 

agencies for the development of film and the making of 

reproductions of film as a part of any such photographic process. 

When so recorded, or copied or reproduced to reduce space 

required for storage or filing of such records, such photographs, 
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18

microphotographs, microfilms, perforated tape, magnetic tape, 

other magnetic means, electronic data processing, machine 

readable means, graphic or video display, or combination of these 

processes, means, or displays, or films, or prints made therefrom, 

when properly identified by the officer by whom or under whose 

supervision they were made, or who has their custody, have the 

same effect at law as the original record or of a record made by 

any other legally authorized means, and may be offered in like 

manner and shall be received in evidence in any court where the 

original record, or record made by other legally authorized means, 

could have been so introduced and received. Certified or 

authenticated copies or prints of such photographs, 

microphotographs, films, microfilms, perforated tape, magnetic 

tape, other magnetic means, electronic data processing, machine 

readable means, graphic or video display, or combination of these 

processes, means, or displays, shall be admitted in evidence 

equally with the original. 

(Emphasis added.) 

{¶ 56} The fiscal officer’s contention lacks merit. He relies on the 

sentence specifying that copies shall have “the same effect at law” as the original 

record. But R.C. 9.01 merely provides that a copy of a recorded document shall 

“have the same effect at law as the original record or of a record made by any 

other legally authorized means, and may be offered in like manner and shall be 

received in evidence in any court where the original record, or record made by 

other legally authorized means, could have been so introduced and received.” 

The manifest meaning of this provision is that copies of recorded documents have 

the same substantive legal effect as the original recorded document regardless of 
January Term, 2012 

19

the medium in which the copy is made. This provision does not cover the price a 

county recorder may charge for an electronic copy of a recorded instrument. 

{¶ 57} The fiscal officer relies on a 1933 attorney general opinion to 

support his interpretation of R.C. 9.01 and 317.32(I). 1933 Ohio Atty.Gen.Ops. 

No. 167. But “Attorney General opinions are not binding on courts; at best, they 

are persuasive authority.” State ex rel. Van Dyke v. Pub. Emps. Retirement Bd., 

99 Ohio St.3d 430, 2003-Ohio-4123, 793 N.E.2d 438, ¶ 40. In the opinion, the 

attorney general ruled that the photostatic or photographic process authorized by 

G.C. 32-1, a predecessor statute to R.C. 9.01, was included in the term “printing” 

as used in G.C. 2778, a predecessor statute to R.C. 317.32. That opinion, 

however, recognized that the common dictionary definition of “printing” in G.C. 

2778 included the photostatic or photographic process. Id. at 196. By contrast, 

the definition of “photocopying” in R.C. 317.32(I) does not include electronically 

copying documents. 

{¶ 58} In addition, the opinion addressed the fee charged for recording 

documents and not the fee for copying recorded documents. 

{¶ 59} Further, the sentence in R.C. 9.01 that confers the “same effect at 

law” and that the fiscal officer relies on was not included in the version of G.C. 

32-1 construed by the attorney general in 1933 Ohio Atty.Gen.Ops. No. 167. 113 

Ohio Laws 773. 

{¶ 60} In fact, in more recent opinions, the attorney general has not cited 

1933 Ohio Atty.Gen.Ops. No. 167 and has instead adopted a strict construction of 

when the R.C. 317.32(I) fee of $2 per page for photocopying a recorded document 

is applicable. 2004 Ohio Atty.Gen.Ops. No. 2004-033, syllabus (“A county 

recorder who makes available in her office a photocopying machine for use by the 

public may not charge the two dollar per page fee set forth in R.C. 317.32(I) 

where the photocopier is operated by the public without the assistance of the 

recorder or her staff. The recorder is, instead, subject to R.C. 149.43(B), which 
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requires a public office to provide copies of public records ‘at cost’ ”); 2004 Ohio 

Atty.Gen.Ops. No. 2004-011, paragraph one of the syllabus (“R.C. 317.32(I) does 

not require or authorize a county recorder to impose the fees described therein 

upon a member of the public who is using a digital camera or other equipment to 

make copies of documents in the recorder’s office, where the equipment is not 

provided by the county recorder. R.C. 149.43 requires a county recorder to make 

the public records he maintains available for inspection, without charge, to 

members of the public, including those that bring their own equipment to make 

copies of the records they inspect”); 2000 Ohio Atty.Gen.Ops. No. 2000-046, 

paragraph three of the syllabus (“A county recorder may not charge and collect 

the fee prescribed by R.C. 317.32(I) for photocopying a document when a person 

accesses an indexed public record by way of the Internet and prints a copy of the 

record on a computer printer that the recorder neither operates nor maintains”); 

1994 Ohio Atty.Gen.Ops. No. 94-006, paragraph three of the syllabus (“If a 

person requests copies of public records stored by the county recorder on 

microfiche or film, R.C. 149.43(B) requires the county recorder to make available 

in the same medium a copy of the portions of the microfiche or film containing 

those public records, * * * if the person assumes the expense of making a copy in 

that medium, in lieu of the photocopying fee prescribed by R.C. [317.32(I)]”). 

{¶ 61} Finally, this result is consistent with the practice of most county 

recorders’ offices in Ohio. In March and April 2011, a witness for relators asked 

each of the remaining 87 county recorders’ offices to provide him with a CD 

containing copies of instruments recorded on August 25, 2010. Sixty of those 

counties complied with the requests, and they charged him fees ranging from $1 

to $20 per compact disc. Only one county requested that he pay $2 per page for 

paper copies of the requested records. Cuyahoga County thus appears to be an 

outlier in requiring the $2 per page fee for electronic records of recorded 

instruments. 
January Term, 2012 

21

{¶ 62} Therefore, relators are entitled to copies of the requested 

electronically recorded documents for July and August 2010 at actual cost rather 

than the fee of $2 per page in R.C. 317.32(I) for photocopies. Because relators 

claim that the actual cost is no more than $1 per CD, and the fiscal officer did not 

submit evidence establishing a different actual cost, relators are entitled to the 

requested records at that cost. 

Electronic Copies of Master CDs 

{¶ 63} Insofar as relators now claim that they are entitled to copies of the 

recorder’s office’s master CDs of the instruments recorded in July and August 

2010, “ ‘it is the responsibility of the person who wishes to inspect and/or copy 

records to identify with reasonable clarity the records at issue.’ ” State ex rel. 

Taxpayers Coalition v. Lakewood, 86 Ohio St.3d 385, 391, 715 N.E.2d 179 

(1996), quoting State ex rel. Fant v. Tober, 8th Dist. No. 63737, 1993 WL 

173743, *1 (May 20, 1993), affirmed, 68 Ohio St.3d 117, 623 N.E.2d 1202 

(1993). In addition, “ ‘R.C. 149.43(C) requires a prior request as a prerequisite to 

a mandamus action.’ ” Am. Civ. Liberties Union of Ohio, 128 Ohio St.3d 256, 

2011-Ohio-625, 943 N.E.2d 553, ¶ 33, quoting Taxpayers Coalition at 390. 

{¶ 64} Relators’ October 5, 2010 records requests, which are the subject 

of this mandamus case, did not specifically request copies of the recorder’s 

office’s master CDs for July and August 2010. Instead, relators requested 

electronic copies of all documents publicly recorded in the office for those 

months. After relators filed an amended complaint, they informed the fiscal 

officer that copies of the master CDs would satisfy their record requests. But 

relators never amended their amended complaint to include a request for copies of 

the master CDs, and the fiscal officer has not consented to a modification of 

relators’ records requests or the relief prayed for in relators’ amended complaint. 

Therefore, the fiscal officer need not provide copies of the master CDs to comply 

with the relators’ requests at issue in this case. 
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{¶ 65} Nevertheless, the fiscal officer could now comply with the requests 

by providing copies of the master CDs for July and August 2010, which also 

constitute records subject to the Public Records Act. See R.C. 149.011(G); State 

ex rel. Margolius v. Cleveland, 62 Ohio St.3d 456, 459, 584 N.E.2d 665 (1992) 

(“a compilation of information gathered from public records is a separate public 

record subject to disclosure under R.C. 149.43”), citing State ex rel. Cincinnati 

Post v. Schweikert, 38 Ohio St.3d 170, 527 N.E.2d 1230 (1988). The master CDs 

document the daily procedure and operation of the recorder’s office of making 

backup copies of digital images of all instruments recorded every day on compact 

discs. And notwithstanding the fiscal officer’s assertion, he has not established 

that the master CDs constitute security records, as defined in R.C. 149.433(A)(3), 

which would be exempt from disclosure. See R.C. 149.433(B); see generally

State ex rel. Cincinnati Enquirer v. Jones-Kelley, 118 Ohio St.3d 81, 2008-Ohio1770, 886 N.E.2d 206, paragraph two of the syllabus. 

{¶ 66} As relators ultimately acknowledge, “it really doesn’t matter 

whether the [fiscal officer or recorder’s office] dubs [the] master CDs to comply 

with relators’ requests, which takes only a few minutes, or chooses to copy digital 

deeds directly from its server to a CD, which takes longer.” See R.C. 

149.43(B)(6) (“The public office or the person responsible for the public record 

shall permit that person to choose to have the public record duplicated upon 

paper, upon the same medium upon which the public office or person responsible 

for the public record keeps it, or upon any other medium upon which the public 

office or person responsible for the public record determines that it reasonably can 

be duplicated as an integral part of the normal operations of the public office or 

person responsible for the public record”). 

Public-Records Policy 

{¶ 67} Relators request that the fiscal officer amend the recorder’s 

office’s public-records policy so that the recorder’s office returns to the policy in 
January Term, 2012 

23

effect when former recorder Greene was deposed, which specified a charge of $1 

per compact disc for downloaded computer files. 

{¶ 68} Under R.C. 149.43(E)(1), “all public offices shall adopt a public 

records policy in compliance with this section for responding to public records 

requests.” See also State ex rel. Morgan v. Strickland, 121 Ohio St.3d 600, 2009-

Ohio-1901, 906 N.E.2d 1105, ¶ 11. Cuyahoga County adopted a new publicrecords policy in January 2011, which the fiscal officer claims superseded the 

recorder’s office’s policy that relators contest here. Relators do not claim 

otherwise. Because the policy adopted by the Cuyahoga County Council in 2011 

does not have the same defect regarding the charge for electronic copies that was 

contained in the recorder’s office policy they contested, relators are not entitled to 

a writ of mandamus to compel the fiscal officer to amend a policy that, evidently, 

no longer exists. 

Attorney Fees and Statutory Damages 

{¶ 69} Relators request an award of attorney fees and statutory damages. 

Although relators requested attorney fees and statutory damages in their amended 

complaint and reiterated their request in the conclusion of their merit briefs, they 

included no separate argument in either brief concerning their request. Relators 

thus waived this claim. Mun. Constr. Equip. Operators’ Labor Council, 114 Ohio 

St.3d 183, 2007-Ohio-3831, 870 N.E.2d 1174, at ¶ 83 (relators in mandamus case 

waived claim for attorney fees by not including any argument in support of claim 

in merit brief). 

{¶ 70} Moreover, even if waiver did not apply, relators are not entitled to 

statutory damages, because they did not transmit their October 5, 2010 records 

requests “by hand delivery or certified mail,” as required by R.C. 149.43(C)(1). 

See State ex rel. Mahajan v. State Med. Bd. of Ohio, 127 Ohio St.3d 497, 2010-

Ohio-5995, 940 N.E.2d 1280, ¶ 59. 

 
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Conclusion 

{¶ 71} Based on the foregoing, we grant a writ of mandamus to compel 

the Cuyahoga County fiscal officer to provide to relators copies of electronic 

images of all documents recorded in the Cuyahoga County Recorder’s Office in 

July and August 2010 on compact discs at a cost of $1 per disc. Because the 

county’s existing public-records policy does not violate the requirement to charge 

the actual cost of these records, however, we deny the writ of mandamus insofar 

as it seeks to amend a policy that is no longer effective. By so holding, we 

recognize that the Public Records Act “protects the general right of the people of 

Ohio to monitor the decisions of their own government through the more specific 

right to freely access public records.” Rhodes, 129 Ohio St.3d 304, 2011-Ohio3279, 951 N.E.2d 782, ¶ 19. 

Writ granted in part 

and denied in part. 

O’CONNOR, C.J., and PFEIFER, LUNDBERG STRATTON, O’DONNELL,

LANZINGER, CUPP, and MCGEE BROWN, JJ., concur. 

__________________ 

 Baker & Hostetler, L.L.P., David Marburger, Michael Mumford, and John 

Blanton, for relators. 

 McDonald Hopkins, L.L.C., David T. Movius, and Matthew J. Cavanagh, 

for respondent. 

 Lucy A. Dalglish, urging granting of the writ for amicus curiae Reporters 

Committee for Freedom of the Press. 

 Zeiger, Tigges & Little, L.L.P., Marion H. Little Jr., and Kris Banvard, 

urging granting of the writ for amicus curiae Ohio Land Title Association. 

Graydon, Head & Ritchey, L.L.P., and John C. Greiner, urging granting of 

the writ for amicus curiae Ohio Newspaper Association. 

______________________