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

ex rel. Ware v. Wine, Slip Opinion No. 2022-Ohio-4472.]

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. 2022-OHIO-4472

THE STATE EX REL. WARE v. WINE ET AL.

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

may be cited as State ex rel. Ware v. Wine, Slip Opinion No. 2022-Ohio-4472.]

Mandamus—Public-records requests—Writ denied in part and granted in part and 

statutory damages and court costs awarded.

(No. 2021-1482—Submitted August 2, 2022—Decided December 15, 2022.)

IN MANDAMUS.

________________

Per Curiam Opinion announcing the judgment of the court.

I. INTRODUCTION

{¶ 1} Relator, Kimani Ware, an inmate at the Trumbull Correctional 

Institution, has filed an original action for a writ of mandamus against respondents,

Waylon Wine, Tracy Ventura, and Anthony Davis (collectively, “TCI”).1 Ware 

seeks production of records responsive to six public-records requests he sent in June 

1. Wine is the manager of Ware’s prison unit, Ventura is the prison recreation manager, and Davis 

is the deputy warden of operations. They do not dispute that they are record custodians.
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2

2021. He also requests statutory damages and court costs. On February 23, 2022, 

we granted an alternative writ of mandamus, ordering the parties to submit evidence 

and briefs. 166 Ohio St.3d 1404, 2022-Ohio-461, 181 N.E.3d 1190. We now grant 

the requested writ of mandamus in part, deny it in part, and award Ware court costs 

and $3,000 in statutory damages.

II. BACKGROUND

{¶ 2} On June 18, 2021, Ware sent a prison kite to Wine requesting “a copy 

of the B-unit staff schedule.” Wine responded, “[I]t is posted in your unit[’]s 

information case.” Wine did not provide Ware a copy of the B-unit staff schedule.

{¶ 3} On June 21, Ware sent two separate public-records requests to TCI’s 

recreation department, again by prison kite. The two kites requested the same 

document: “a copy of TCI’s inmate recreation schedule.” Ventura responded 

separately to the two requests, writing each time that the schedule had been posted 

“in the blocks” earlier that day. Ventura did not send Ware a copy of the inmate 

recreation schedule.

{¶ 4} Also on June 21, Ware sent two kites to Davis, each requesting a copy 

of a June 17, 2021 memo that was sent to all TCI staff. In his responses, Davis 

informed Ware that such requests should be made to a Mr. Booth. Davis did not 

provide a copy of the memo to Ware.

{¶ 5} Finally, on June 22, Ware sent a kite to Wine asking for “a copy of 

the housing unit split range schedules for 14 [E]ast, [J]une and [J]uly, 2021.” Wine 

replied that the record had been “posted on the unit information board.” Wine did 

not provide a copy of the record to Ware.

{¶ 6} On December 7, 2021, Ware filed his complaint for a writ of 

mandamus in this court.
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3

III. LEGAL ANALYSIS

A. The mandamus claim

{¶ 7} Ohio’s Public Records Act, R.C. 149.43, requires a public office to 

make copies of public records available to any person upon request within a 

reasonable period of time. R.C. 149.43(B)(1). A “public record” is a record “kept 

by any public office.” R.C. 149.43(A)(1). Mandamus is an appropriate remedy by 

which to compel compliance with the 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.

{¶ 8} To be entitled to the writ, Ware must demonstrate that he has a clear 

legal right to the requested relief and that TCI has a clear legal duty to provide that 

relief. State ex rel. Cincinnati Enquirer v. Sage, 142 Ohio St.3d 392, 2015-Ohio974, 31 N.E.3d 616, ¶ 10. In a public-records mandamus action, the relator is not 

required to demonstrate the absence of an adequate remedy in the ordinary course 

of the law. State ex rel. Frank v. Ohio State Univ., 161 Ohio St.3d 112, 2020-Ohio3422, 161 N.E.3d 559, ¶ 7. Ware must prove his right to relief by clear and 

convincing evidence. Id. However, the Public Records Act “is construed liberally 

in favor of broad access, and any doubt is resolved in favor of disclosure of public 

records.” State ex rel. Cincinnati Enquirer v. Hamilton Cty., 75 Ohio St.3d 374, 

376, 662 N.E.2d 334 (1996).

{¶ 9} Ware requested four records (by way of six messages), but TCI did 

not deny all four requests. Davis told Ware that his request for the June 17 memo 

should be sent to “Mr. Booth.” When Ware responded that he was seeking the 

record from Davis because Davis was the person who had distributed the memo to 

TCI staff, Davis again directed him to make his request to Booth, explaining, “All 

documents that are released are tracked.” There is no evidence in the record 

indicating that Ware followed up with Booth. Ware has failed to establish that

Davis was the custodian of the record in question or that by referring him to a 
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different employee/office within TCI, Davis denied the request. See Frank at ¶ 11 

(holding that Ohio State University did not deny a public-records request when it 

referred the requester to a different office). We therefore deny Ware’s request for 

a writ of mandamus as to the June 17 memo, and we award no relief against Davis.

{¶ 10} As for Ware’s requests for the three remaining records—the B-unit 

staff schedule, the inmate recreation schedule, and the “housing unit split range”

schedules—TCI concedes that it received the requests and that it denied them. TCI 

has not alleged that the records are subject to a statutory exemption from disclosure;

its sole defense is that “[t]he vast majority of—if not all—of the information Ware 

requested from [TCI] was already accessible to him.” The theory is that Ware is 

not entitled to receive a physical copy of a record so long as he has an opportunity 

to see the record and the information contained therein.

{¶ 11} In support of its argument, TCI cites Bell v. Wolfish, 441 U.S. 520, 

99 S.Ct. 1861, 60 L.Ed.2d 447 (1979), for the proposition that prison administrators 

should be accorded wide-ranging deference to adopt policies and practices that best 

serve to preserve institutional order and safety. We have previously declined to 

compel prison officials to allow inmates to inspect copies of requested records 

when the officials have provided a security-based rationale for not permitting 

inspection and have offered instead to provide copies. See, e.g., State ex rel. 

McDougald v. Sehlmeyer, 162 Ohio St.3d 94, 2020-Ohio-3927, 164 N.E.3d 366, 

¶ 13-15. But here, TCI is refusing to provide paper copies to Ware and has failed 

to explain why doing so would create a security risk.

{¶ 12} TCI breached a statutory obligation to provide Ware with copies of 

the B-unit staff schedule, the inmate recreation schedule, and the “housing unit split 

range” schedules. We grant Ware’s request for a writ of mandamus as to these

three requested records.
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B. Statutory damages

{¶ 13} A person requesting public records “shall” be entitled to recover an 

award of statutory damages “if a court determines that the public office or the 

person responsible for the public records failed to comply with an obligation in 

accordance with [R.C. 149.43(B)].” R.C. 149.43(C)(2). Statutory damages are 

calculated at the rate of $100 for every business day the public office or person 

responsible for the requested public records has failed to comply with an obligation 

under R.C. 149.43(B), starting from the date of the filing of a complaint in 

mandamus, with a maximum award of $1,000. R.C. 149.43(C)(2). Ware has 

requested a total award of $4,000—that is, the $1,000 maximum for each of the

four requests. Ware filed this mandamus action on December 7, 2021, so the 

available statutory damages have reached the maximum amount of $1,000. But 

because we have denied relief as to one of his requests, the potential award is 

capped at $3,000.

{¶ 14} TCI offers only one argument in opposition to the statutory-damages 

claim. To qualify for statutory damages, a requester must transmit the request by 

“hand delivery, electronic submission, or certified mail.” R.C. 149.43(C)(2). TCI 

asserts that Ware did not employ a qualifying method. According to TCI, a prison 

kite does not qualify as an “electronic submission,” because in general, the system 

is used only internally and is not connected to the Internet. The evidence shows 

that TCI uses the JPay system for inmate kites. In State ex rel. Griffin v. Sehlmeyer, 

165 Ohio St.3d 315, 2021-Ohio-1419, 179 N.E.3d 60, ¶ 21, we held that the JPay 

system is a form of electronic transmission within the meaning of R.C. 

149.43(C)(2). Therefore, Ware has satisfied the method-of-transmission 

requirement for an award of statutory damages.

{¶ 15} We award Ware $3,000 in statutory damages.
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C. Court costs

{¶ 16} Finally, Ware seeks an award of court costs. R.C. 149.43(C)(3)(a)(i)

states: “If the court orders the public office or the person responsible for the public 

record to comply with [R.C. 149.43(B)], the court shall determine and award to the 

relator all court costs * * *.” Although it is unusual for pro se inmates to incur costs 

in the lawsuits they file, in this instance, Ware elected to pay the costs upfront rather 

than file an affidavit of indigency. We therefore award Ware court costs.

IV. CONCLUSION

{¶ 17} For the reasons stated above, we grant the requested writ of 

mandamus in part, deny it in part, and award Ware court costs and $3,000 in 

statutory damages.

Writ granted in part

and denied in part.

FISCHER and STEWART, JJ., concur.

DEWINE, J., concurs in part and concurs in judgment only in part, with an 

opinion joined by O’CONNOR, C.J., except that she would not award statutory 

damages.

KENNEDY, J., concurs in part and dissents in part, with an opinion joined by 

DONNELLY, J.

BRUNNER, J., concurs in part and dissents in part and would grant the writ 

in full and would award $4,000 in statutory damages.

_________________

DEWINE, J., concurring in part and concurring in judgment only in 

part.

{¶ 18} I join the lead opinion insofar as it grants a writ of mandamus and 

awards statutory damages as to the public-records requests sent by Kimani Ware to 

Waylon Wine and Tracy Ventura. I concur in judgment only as to the denial of the 

writ as to the request sent to Anthony Davis. I write separately to offer a few points 
January Term, 2022

7

of clarification concerning the request to Davis and to explain my reasons for 

joining the court’s judgment in this regard.

{¶ 19} It is my view that the writ is correctly denied as to the Davis request 

because Ware has failed to establish that Davis violated the Public Records Act, 

R.C. 149.43, by referring Ware to another prison employee. R.C. 149.43(B)(1) 

says that “upon request by any person, a public office or person responsible for 

public records shall make copies of the requested public record available to the 

requester at cost and within a reasonable period of time.” And a person allegedly 

“aggrieved by the failure of a public office or the person responsible for public 

records to promptly prepare a public record” may commence a mandamus action 

to compel “the public office or the person responsible for the public record” to 

comply with their statutory obligations. R.C. 149.43(C)(1)(b).

{¶ 20} A person bringing a mandamus action to enforce access to public 

records has the burden of showing that he has a clear legal right to the record and 

that the respondent has a clear legal duty to provide it. State ex rel. Griffin v. 

Sehlmeyer, 165 Ohio St.3d 315, 2021-Ohio-1419, 179 N.E.3d 60, ¶ 10. The relator 

must establish entitlement to the writ by clear and convincing evidence. State ex 

rel. Cincinnati Enquirer v. Sage, 142 Ohio St.3d 392, 2015-Ohio-974, 31 N.E.3d 

616, ¶ 10.

{¶ 21} According to Ware, Davis is the Deputy Warden of Operations at 

Trumbull Correctional Institution (“TCI”). Ware asked Davis for a copy of a June 

17, 2021 memo that had been sent by Davis to TCI staff. Davis responded to 

Ware’s request by stating, “These requests should be made through Mr. Booth.” 

Ware followed up on the request, and Davis reiterated, “These types of [requests] 

are made to Mr. Booth. All documents that are released are tracked.”

{¶ 22} Ware did not name TCI as a respondent “public office” in this action. 

See, e.g., State ex rel. Hedenberg v. N. Cent. Corr. Complex, 162 Ohio St.3d 85, 

2020-Ohio-3815, 164 N.E.3d 358; State ex rel. Ellis v. Maple Hts. Police Dept., 
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8

158 Ohio St.3d 25, 2019-Ohio-4137, 139 N.E.3d 873. His complaint is brought 

against three employees at the prison instead. And Ware claims that Davis, 

specifically, has a clear legal duty to provide the requested record.

{¶ 23} Ware does not assert that Davis is a public-records custodian at TCI. 

Ware’s complaint alleges instead that Davis is “a public official as the term is 

defined by section 149.011(D) of ohio revised code, who hold’s [sic] the position 

of deputy warden of operations which is a public office as the term is defined by 

section 149.011(A) of ohio revised code.” In other words, he argues that the 

position of deputy warden is a “public office.” And he asserts that as a “public 

official”—which is broadly defined as including “all * * * employees * * * of a 

public office,” R.C. 149.011(D)—Davis has a clear legal duty to provide the record.

{¶ 24} But the Public Records Act does not charge all public officials with 

such a duty. In fact, the statute does not refer to public officials at all. Rather, it 

directs the “public office or person responsible for public records” to provide the 

record. R.C. 149.43(B)(1). In doing so, the statute recognizes that public offices 

may designate appropriate personnel to handle their public-records requests. Thus, 

we have explained that “R.C. 149.43(B)(1) requires a public-records custodian to

provide a copy of a public record to a requester.” Griffin, 165 Ohio St.3d 315, 

2021-Ohio-1419, 179 N.E.3d 60, at ¶ 10.

{¶ 25} An employee’s redirecting a requester to the proper representative 

does not, on its own, constitute a denial of the request on behalf of the public office. 

To conclude otherwise would mean that a person could present a public-records 

request to any public employee and that particular employee would have a duty to 

provide the requested record. Suppose a requester handed a request to a motorvehicle inspector employed by the Ohio Department of Public Safety or a 

laboratory technician at the Ohio Department of Agriculture. No one would 

seriously contend that by telling the requester the proper location to submit the 
January Term, 2022

9

request, these employees would have denied the request on behalf of the public 

office altogether.

{¶ 26} Ware’s complaint and brief do not at all address Davis’s referral to 

Booth. Ware does not contend that Davis’s instructions violated the prison’s 

records-release procedures or that there was anything improper about the directive 

to make the request through Booth. Neither Ware nor Davis have presented any 

evidence as to what Booth’s role is. Importantly, Ware has not indicated that he 

followed up with Booth, nor has he made any claim that he is being given the 

runaround. Thus, with respect to Davis, Ware has not demonstrated by clear and 

convincing evidence that “the public office or records custodian did not make the 

record available,” Welsh-Huggins v. Jefferson Cty. Prosecutor’s Office, 163 Ohio 

St.3d 337, 2020-Ohio-5371, 170 N.E.3d 768, ¶ 26.

{¶ 27} For those reasons, I do not find the concerns identified by the justice 

dissenting in part to be present in this case. And I concur in the judgment of the 

court because, in my view, Ware has not met his burden of establishing that his 

request to Davis was denied.

O’CONNOR, C.J., concurs in the foregoing opinion except that she would 

not award statutory damages.

_________________

KENNEDY, J., concurring in part and dissenting in part.

{¶ 28} I concur in the majority’s decision to grant relator, Kimani Ware, a 

writ of mandamus and the maximum statutory damages as to the public-records 

requests he sent to respondents Waylon Wine and Tracy Ventura, whom the lead 

opinion describes, along with respondent Anthony Davis, as “record custodians” at 

Trumbull Correctional Institution (“TCI”). Lead opinion, ¶ 1. I part ways with the 

majority, however, with respect to its decision to deny Ware a writ of mandamus 

as to the requests he sent to Davis for “a copy of the memo, dated 6/17/21, that was 

sent out to all TCI staff * * * [for] the split ranges in all unit[s] after 4:30pm” 
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(hereafter, “the memo”), on the authority of State ex rel. Frank v. Ohio State Univ., 

161 Ohio St.3d 112, 2020-Ohio-3422, 161 N.E.3d 559. In my view, the lead 

opinion improperly expands the reach of Frank here. Davis did not rely on Frank

when denying Ware’s public-records request, and respondents did not rely on 

Frank in the merit brief they filed in this court. Because Frank is not applicable, 

this court should apply the plain and unambiguous language of the Public Records 

Act, R.C. 149.43, to Ware’s requests for the memo.

{¶ 29} Ware made a public-records request of a public office. Davis failed 

to comply with the requirements of the Public Records Act; therefore, I would grant 

Ware a writ of mandamus ordering Davis to provide the memo to Ware, and I would 

award Ware $1,000 in statutory damages for Davis’s failure to provide the memo 

to him. Because the majority does otherwise, I dissent in part.

Facts

{¶ 30} Ware requested the memo dated June 17, 2021, twice, in quick 

succession. His first request was by an electronic kite at around 1:25 p.m. on June 

21, 2021. At around 1:58 p.m. on that same day, Davis responded: “These requests 

should be made through Mr. Booth. I sent you very similar language via JPAY. I

sent it to all inmates. TCI remains the most least [sic] restrictive Level 3 prison.” 

In response, Ware sent another request for the memo at 2:12 p.m.: “I request a copy 

of the memo (dated 6/17/21) that was sent to all TCI staff for the split range after 

4:30pm[.] [I]’m making my request to you for a copy of that memo (dated 6/17/21), 

you are the person who sent out to all staff here at [T]rumbull.” Davis responded 

around six minutes later, “These types of [requests] are made to Mr. Booth. All 

documents that are released are tracked.” Ware never received any of the requested 

records and filed this mandamus action on December 7, 2021.

{¶ 31} Despite the fact that Davis did not rely on Frank in support of his 

responses to Ware’s public-records requests for the memo and respondents did not 

rely on Frank in the merit brief they filed in this court, the lead opinion invokes 
January Term, 2022

11

Frank in support of the majority’s denial of a writ of mandamus ordering 

production of the memo. But this court’s decision in Frank is inapplicable here.

State ex rel. Frank v. Ohio State Univ. is inapplicable

{¶ 32} As noted above, the lead opinion recognizes that Davis is a record 

custodian at TCI. But the lead opinion does not find that TCI had a special publicrecords office that oversees release of memos like the one Ware requested or that 

release of the memo is prohibited under state or federal law. In my view, whether 

Frank applies to this case turns on those material factual determinations.

{¶ 33} In Frank, a student’s attorney requested records from the Ohio State 

University concerning the student. Among other records, the request sought

records that prosecutors had provided to the university.

{¶ 34} The evidence in Frank established that Ohio State has a bifurcated 

system for handling public-records requests. It has a general public-records office 

for general public-records requests. That office has a public-records director, a 

public-records program coordinator, and an official email address for publicrecords requests.

{¶ 35} Ohio State also has a separate, independent public-records office that

addresses public-records requests for student-conduct records, which are prohibited 

from release by federal law, the Family Education Rights and Privacy Act, 20 

U.S.C. 1232g (“FERPA”). That office, the Office of Student Life, Student 

Conduct, controlled access to records related to student disciplinary proceedings. 

Frank, 161 Ohio St.3d 112, 2020-Ohio-3422, 161 N.E.3d 559, at ¶ 11.

{¶ 36} In Frank, the student’s attorney sent the request for his client’s 

student-conduct records to Ohio State’s public-records office through the official 

email address for general public-records requests. That office first denied the 

request because the records sought were exempt from disclosure under R.C. 

149.43(A)(1)(v), which exempts from mandatory disclosure “[r]ecords the release 

of which is prohibited by state or federal law.” FERPA permits the release of 
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personally identifiable information only with the consent of the student or his 

parents. 20 U.S.C. 1232g(b)(2)(A); 34 C.F.R. 99.30(a). Frank at ¶ 10.

{¶ 37} At the time of the initial request, the attorney did not disclose that he 

was representing a student, and the request did not contain a FERPA waiver. From 

the perspective of Ohio State’s general public-records office, the first request was 

from a third party seeking a student’s protected conduct records, and this court 

determined that that denial was well founded.

{¶ 38} In reply to Ohio State’s response, the student’s attorney stated that 

the requested records were not exempt from disclosure, because the student had 

provided Ohio State with a FERPA release. The public-records program director 

responded, indicating that the records the attorney was seeking continued to be 

subject to the requirements of FERPA despite the student’s submission of a waiver 

to Ohio State. Id. at ¶ 5. The public-records director also advised the attorney to 

contact the Office of Student Life, Student Conduct, for records relating to student

disciplinary proceedings:

[T]o the extent you are seeking student disciplinary records, please 

contact the Office of Student Life[,] Student Conduct. Pursuant to 

FERPA, Student Conduct allows for inspection and review of 

records related to disciplinary proceedings by involved students, and 

as appropriate, their advisors. They can explain the process for 

inspection and review of records related to student disciplinary 

proceedings as well as documentation that may be necessary to 

allow for inspection and review.

Id. at ¶ 11.
January Term, 2022

13

{¶ 39} A majority of this court determined that Ohio State’s second 

response did not constitute a denial of the records request. The majority considered 

the response to the request to be prompt and full, reasoning as follows:

When, as here, the requested records are sensitive in nature and 

subject to limitations on disclosure under federal law, it makes sense 

for [Ohio State] to have referred [the student’s attorney] to an office 

that has the proper expertise for how to lawfully disclose the 

requested records and how to apply the relevant state and federal 

regulations. Accordingly, in [Ohio State’s] April 8 response to [the 

student’s attorney], [Ohio State] did not deny the public-records 

request (and we offer no opinion whether [Ohio State] 

legitimately could have denied the request); it merely referred [the 

student’s attorney] to a different office.

* * *

We conclude that [Ohio State] responded promptly and fully 

to [the] request and that [the student] is not entitled to a writ of 

mandamus.

(Emphasis sic.) Id., 161 Ohio St.3d 112, 2020-Ohio-3422, 161 N.E.3d 559, at 

¶ 11-12.

{¶ 40} In its response to the records request, Ohio State explained that what 

the student’s attorney sought was not a typical public record and that its release was 

likely prohibited by federal law but that there was a separate, independent office 

from which he could seek the records because of their sensitive nature. In Frank,

a separate office controlled access to records related to student-conduct proceedings 

and enforced students’ privacy rights under FERPA. But this case is not 

comparable to Frank.
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{¶ 41} Here, respondents do not argue that there is a separate public-records 

office at TCI that controls access to memos like the one Ware requested. 

Respondents also do not argue that release of the memo Ware requested is 

prohibited by state or federal law. The lead opinion simply applies this court’s 

holding in Frank to Davis’s denial of Ware’s public-records requests without 

consideration of the highly specialized facts that underpin this court’s decision in 

Frank.

{¶ 42} Application of this court’s precedent in Frank should be limited to 

public-records requests that present the same particular facts as Frank. Frank 

should be applied only when the public office has established an independent public 

office to handle those particular public-records requests and when the release of the 

record sought is prohibited by state or federal law. Because this case does not 

present these particular facts of Frank, this court should apply the unambiguous 

language of the Public Records Act to determine whether Davis’s denial of Ware’s 

public-records requests for the memo was proper. In my view, the denial of Ware’s 

requests for the memo was improper under R.C. 149.43.

Ware’s public-records requests were improperly denied

{¶ 43} Ware made two requests to a public office by electronic kite, and as 

the lead opinion notes, Davis does not dispute that he is a public-records custodian. 

Ware asked for a copy of the memo, and Davis therefore had a duty to promptly 

provide Ware with a copy of the memo.

{¶ 44} When Ware made his first request for the memo, Davis gave two 

reasons why he was not producing the memo: (1) Ware should make the request to 

Booth and (2) Ware had already received the information contained in the memo. 

But the exceptions set forth in the Public Records Act do not include either of these 

exceptions. Davis had an obligation to treat Ware like any other public-records 

requester. R.C. 149.43(B)(1) provides that “upon request by any person, a public 

office or person responsible for public records shall make copies of the requested 
January Term, 2022

15

public record available to the requester at cost and within a reasonable period of 

time.” The statute provides two caveats to the duty to make copies of public records 

available:

• if the record contains information that is exempt, “the public office or the 

person responsible for the public record shall make available all of the 

information within the public record that is not exempt,” R.C. 149.43(B)(1); 

and

• “[i]f a requester makes an ambiguous or overly broad request or has 

difficulty in making a request for copies or inspection of public records * * 

* such that the public office or the person responsible for the requested 

public record cannot reasonably identify what public records are being 

requested, the public office or the person responsible for the requested 

public record may deny the request but shall provide the requester with an 

opportunity to revise the request by informing the requester of the manner 

in which records are maintained by the public office and accessed in the 

ordinary course of the public office’s or person’s duties,” R.C. 

149.43(B)(2).

{¶ 45} Therefore, the responses available to a public office or the publicrecords custodian are to provide the record, provide the record with redactions of 

material that is exempt from disclosure, seek clarification because the request was 

for unidentifiable material, or deny the request. Of course, denial of a publicrecords request is appropriate if the public record does not exist or if the public 

record is fully exempt from mandatory disclosure. But if a public record is fully 

exempt from mandatory disclosure, the public-records custodian must provide the 

requester with a reason the public record is exempt. R.C. 149.43(B)(3).

{¶ 46} There is no exception under the Public Records Act that authorizes 

a public office or public-records custodian to deny a public-records request on the 

basis that the requester should ask someone else in the public office or that the 
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information in the record requested was available elsewhere. Davis failed to rely 

on any exception under the Public Records Act when he denied Ware’s request for 

the memo. Davis simply told Ware to ask someone else in the public office for the 

memo and that the information in the memo had been previously emailed to all 

inmates at the prison.

{¶ 47} Ware made a simple public-records request at a public office. And 

he submitted that request to the person in the public office who actually had 

distributed the memo to staff at the institution and had sent an email containing 

similar information to all inmates.

{¶ 48} The lead opinion does not dispute that Ware made a public-records 

request to the deputy warden of operations of a prison facility for a record and that 

that request was made to a public office. A response by the public-records 

custodian that the request should go to someone else in the same public office when 

the record’s release is not prohibited by state or federal law is a denial of a publicrecords request under the Public Records Act and this court’s precedent. Davis

owed a duty to Ware to provide him with a copy of the memo he had requested. 

Because Davis did not provide the record to Ware, he is entitled to statutory 

damages of $100 for every business day that Davis failed to provide the record,

starting from the date Ware filed the mandamus action, up to a maximum of $1,000 

for every request that was not properly responded to. R.C. 149.43(C)(2).

Therefore, I would order Davis to provide the memo and would award Ware an 

additional $1,000 in statutory damages.

The lead opinion is not precedential

{¶ 49} The lead opinion’s failure to apply the plain and unambiguous 

language of the Public Records Act and the lead opinion’s reliance instead on a 

precedent with facts exceedingly different from those at issue here will have broad 

implications on all public-records requests made in Ohio—if public offices fail to 

recognize that this case’s lead opinion has no precedential value. Article IV, 
January Term, 2022

17

Section 2(A) of the Ohio Constitution states that “[a] majority of the Supreme Court 

shall be necessary to * * * render a judgment.” Only two justices have joined the 

lead opinion, so anything written therein has no value as precedent. There are four 

votes only for the bottom-line judgment that Ware is entitled to a writ of mandamus 

regarding the other three record requests and $3,000 in statutory damages. The 

consequences of public offices treating the lead opinion as a majority opinion, while 

perhaps unintended, are readily foreseeable.

The foreseeable negative implications of the lead opinion

{¶ 50} What could possibly go wrong for public-records requesters under 

the lead opinion? The answer is everything.

{¶ 51} The lead opinion’s application of the Frank precedent to this case, a 

case with dissimilar facts, would improperly expand the reach of Frank to all 

public-records requests. The potential consequences of the lead opinion are easy 

to predict: if treated as precedent, the decision would thwart the Public Records 

Act’s promise that “open access to government papers is an integral entitlement of 

the people,” Kish v. Akron, 109 Ohio St.3d 162, 2006-Ohio-1244, 846 N.E.2d 811, 

¶ 17.

{¶ 52} The Public Records Act is designed for ease of access to public 

records—once any person makes a request, “all public records shall be promptly 

prepared and made available for inspection” or copied for the requester “at cost and 

within a reasonable period of time.” R.C. 149.43(B)(1).

{¶ 53} If the lead opinion were controlling, instead of easy access to public 

records, a public-records requester could anticipate that the public office or publicrecords custodian could give the requester the runaround, and that would be 

judicially permissible. This case does not present particularized facts that would 

limit the reach of the lead opinion in future public-records cases. The lead opinion 

would give a green light to a public office or public-records custodian to simply 

refer public-records requesters to another person in the same public office. And 
SUPREME COURT OF OHIO

18

when the denial of a request is challenged, even if this court would hold in a 

particular case that Frank does not apply, the public office or public-records 

custodian would avoid statutory damages because they would have been able to 

rely on the lead opinion in good faith for the proposition that a public-records 

requester can simply be referred to someone else in the public office.

{¶ 54} The plain and unambiguous language of the Public Records Act does 

not support that outcome, and neither does the lead opinion, due to its lack of 

support by four justices.

Conclusion

{¶ 55} I concur in the court’s judgment granting a writ of mandamus and 

awarding $3,000 in statutory damages as to the two records Ware sought from Wine 

and the one record he requested from Ventura. I disagree with the majority’s 

decision to deny Ware a writ of mandamus as to the memo he requested from Davis. 

Because Davis has failed to provide the memo to Ware and Davis has failed to 

establish any exception under the Public Records Act to support his denial of 

Ware’s requests, I would grant Ware a writ of mandamus ordering Davis to produce 

the memo and would award Ware an additional $1,000 in statutory damages. 

Therefore, I concur in part and dissent in part.

DONNELLY, J., concurs in the foregoing opinion.

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Kimani Ware, pro se.

Dave Yost, Attorney General, and Lori H. Duckworth, Assistant Attorney 

General, for respondents.

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