[Until this opinion appears in the Ohio Official Reports advanc e sheets, it may be cited as State ex rel. McDougald v. Sehlmeyer , Slip Opinion No. 2020-Ohio-4428.]

NOTICE This slip opinion is subject to f ormal revision before it is pu blished in an advance sheet of the Ohio Official Reports. Readers are reques ted to promptly notify the Reporter of Decisions, Supreme Court of Ohi o, 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.

S LIP O PINION N O
. 2020-O HIO -4428
T HE S TATE EX REL
. M C D OUGALD v. S EHLMEYER . [Until this opinion appears in t he Ohio Official Reports advanc e sheets, it

may be cited as State ex rel. McDougald v. Sehlmeyer , Slip Opinion No. 2020-Ohio-4428.]
Mandamus—Public Records Act—R.C. 149.43— A public office acts within its discretion when it declines a public-r ecords request based on a good-faith belief that the party requesting the r ecords is unable to pay for copying
costs—Writ denied. (No. 2019-1659—Submitted June 2, 2020— Decided September 17, 202 0.)
I N M ANDAMUS

.

________________ Per Curiam. {¶ 1} Relator, Jerone McDougald, seek s a writ of mandamus to compel respondent, Sonrisa Sehlmeyer, t o produce a document pursuant t o a public-records request and to pay statutory damages and court costs. Also pen ding are McDougald’s unopposed motions seeking leave to amend his compla int and leaveS UPREME C OURT OF O HIO

2 to submit additional facts. For the reasons set forth below, w e deny the requested writ, both motions, and the request s for statutory damages and court costs. I. Background {¶ 2} On September 24, 2019, McDougald, an inmate at the Toledo Correctional Institution (“TCI”), submitted a public-records re quest for a use-offorce report concerning an inci dent in which he was involved. He delivered the public-records request via prison kite. {¶ 3} Sehlmeyer is the official responsible for public-records reques ts at TCI. She responded to McDougald on September 30 with a letter, writing, “We have researched your request; however, you currently have insuf ficient funds in your account to complete this re quest. Re-submit your cash sli p when there are
sufficient funds available.” S ehlmeyer did not indicate how mu ch the record would cost to copy or how much money McDougald had in his inmate acco unt. {¶ 4} On December 2, 2019, McDougald filed an original action against Sehlmeyer in this court, seeking a writ of mandamus. He allege d that at the time of his public-records request, he did have sufficient funds in his inmate account to pay for the record and that Sehlmeyer’s response was therefore false. He alleged that he had $1.30 in his account at the time, but he did not in dicate the cost to copy
the records. {¶ 5} We issued an alternative writ and ordered the parties to submit
evidence and file briefs in accordance with S.Ct.Prac.R. 12.05. 158 Ohio St.3d 1404, 2020-Ohio-371, 139 N.E.3d 907. The parties have submitte d evidence and filed merit briefs, and McDouga ld has filed two unopposed motio ns for leave. II. Legal analysis A. Standard of review {¶ 6} Ohio’s Public Records Act, R.C. 149.43, requires a public offic e to make copies of public records available to any person upon requ est, within a reasonable period of time. R.C . 149.43(B)(1). A “public recor d” is a record “keptJanuary Term, 2020

3 by any public office.” R.C. 149.43(A)(1). Mandamus is an appr opriate remedy by which to compel compliance with t he Public Records Act. R.C. 1 49.43(C)(1)(b); State ex rel. Physicians Commt. for Respons ible Medicine v. Ohio State Univ. Bd. of Trustees , 108 Ohio St.3d 288, 2006-Ohio-903, 843 N.E.2d 174, ¶ 6. {¶ 7} To be entitled to a writ, McDougald must demonstrate that he ha s a clear legal right to the requested relief and that Sehlmeyer ha s a clear legal duty to provide that relief. State ex rel. Cincinnati Enquirer v. Sage , 142 Ohio St.3d 392, 2015-Ohio-974, 31 N.E.3d 616, ¶ 10. McDougald must prove his r ight to relief by clear and convincing evidence. Id . However, R.C. 149.43 “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). B. McDougald’s first motion for leave {¶ 8} In his complaint, McDougald alleged that he had $1.30 in his ac count when he submitted his public-records request. However, the evi dence in the record shows that for the period of time including September 24 (the d ate of McDougald’s public-records request) and Septem ber 30 (the date of Sehlmeyer ’s response), McDougald had $1.25 in his inmate account. {¶ 9} On February 3, 2020, McDougald filed his first motion for leave , asking to amend his complaint to indicate an account balance of $1.25. However, because the correct figure is in the record, there is no need t o amend his complaint. We therefore deny the first motion for leave. C. The merits of the public-records claim {¶ 10} McDougald claims that Sehlmeyer violated her duties under the
Public Records Act when she “de nied” his public-records requestdue to his having insufficient funds. But Sehlmeyer did not deny his request. To the contrary, as stated by Sehlmeyer in her affidavit that she submitted as evid ence in this case, she informed McDougald that he lacked sufficient funds in his inmat e account andS UPREME C OURT OF O HIO

4 notified him that he could “re-submit his cash slip when suffic ient funds were
available.” {¶ 11} Ohio’s Public Records Act does not require a records custodian to provide copies of records free of charge. State ex rel. Call v. Fragale , 104 Ohio St.3d 276, 2004-Ohio-6589, 819 N.E.2d 294, ¶ 6. Instead, the s tatute “requires only that copies of public records be made available at cost.” Id. , citing R.C. 149.43(B)(1). And a public office acts within its discretion w hen it declines a public-records request based on “a good faith belief that the p arty requesting the records was unable to pay for copying costs.” State ex rel. Mayrides v. Whitehall , 62 Ohio App.3d 225, 575 N.E.2d 224 (10th Dist.1990), paragraph two of the syllabus. {¶ 12} In her affidavit, Sehlmeyer attests that McDougald had insuffic ient funds in his inmate account to pay for a copy of the public rec ord he was requesting. According to Sehlmeyer, “[t]he assessment that he had insuffici ent funds was determined by the institutional cashier’s office.” McDougald a lleges that he did have sufficient funds in his inmate account to pay for the publ ic record, pointing to the evidence that he had $1.25 in his account. But McDougald’s account balance is not the only evidence that is necessary for him to meet his burden. He has presented no evidence showing what it would cost for a copy of the use-of-force report. Indeed, he never followed up with Sehlmeyer to inquire how much a copy would cost. Therefore, he has not shown that Sehlmeyer failed to fulfill any of her obligations as a public -records custodian. {¶ 13} Sehlmeyer provided a complete response to McDougald’s publicrecords request. We therefore de ny his request for a writ of m andamus. D. Statutory damages, court costs, and McDougald’s second motion for leave {¶ 14} In his complaint, McDougald re quests an award of statutory damages for what he alleges was Sehlmeyer’s “bad faith” denial of his request. AJanuary Term, 2020

5 person requesting public records “shall” be entitled to recover an award of statutory damages “if a court determines that the public office or the pe rson responsible for public records failed to comply with an obligation in accordanc e with [R.C. 149.43(B)].” R.C. 149.43(C)(2). Because we conclude that Sehl meyer did not fail to comply with any obligation unde r the Public Records Act, we deny McDougald’s request for statutory damages. {¶ 15} Under the version of R.C. 149.43 in effect when McDougald made his public-records request, 1 he had to transmit his request by “hand delivery, electronic submission, or certified mail” to qualify for an awa rd of statutory damages. R.C. 149.43(C)(2). On February 18, 2020, McDougald f iled his second motion, seeking leave to supplement this record with “the facts that he submitted his public records request ‘kite’ by hand delivery to Sonrisa S ehlmeyer on September 24, 2019 as she conduct ed her inmate communication/we ekly rounds pursuant to [Ohio Department of Rehabilitation and Correction ( “ODRC”)] policy
50-PAM-02. [2] ” Thus, McDougald seeks leave to add facts that, if proved, wo uld satisfy the delivery-method re quirement in R.C. 149.43(C)(2). But because McDougald is not entitled to an award of statutory damages on t he merits, the method of delivery is irrelevant. We therefore deny his reques t for leave to amend. {¶ 16} Finally, McDougald is not entitled to an award of court costs. Court costs may be awarded under the Public Records Act only when a c ourt grants a writ of mandamus compelling an official to comply with obligations i mposed by the act,

1. Public-records requests are governed by the version of R.C. 149.43 that was in effect at the time that the request was made. State ex rel. Cordell v. Paden , 156 Ohio St.3d 394, 2019-Ohio-1216, 128 N.E.3d 179, ¶ 11. The version of the Public Records Act th at governs McDougald’s requests, R.C. 149.43 as amended by 2018 Sub.H.B. No. 425, took effect in April 2018.
2. ODRC Policy 50-PAM-02, at 2, states, “It is the policy of * * * ODRC to require the managing officer, deputy wardens, and duty officers to make unannounced visits to the institution’s living and activity areas at least weekly to encourage informal contact wi th staff and inmates and to informally observe living and working conditions.” https://drc.ohio.gov/P ortals/0/Policies/ DRC%20Policies/50-PAM-02%20(12-2019).pdf?ver=2019-12-09-140951- 550 (accessed Aug. 31, 2020) [https://perma.cc/6YGX-QPSM].S UPREME C OURT OF O HIO

6 R.C. 149.43(C)(3)(a)(i), or when the public office produces the records after the
mandamus suit is filed but before relief is ordered and a court determines that the office acted in bad faith, R.C. 149.43(C)(3)(a)(ii) and (b)(iii ). Neither condition
has been met here.
III. Conclusion {¶ 17} Based on the foregoing, we deny t he request for a writ of manda mus, both motions for leave, and the re quests for court costs and st atutory damages.
Writ denied.
O’C ONNOR , C.J., and F RENCH , F ISCHER , D E W INE , D ONNELLY , and
S TEWART , JJ., concur.
K ENNEDY , J., concurs, with an opinion.

_________________ K

ENNEDY , J., concurring. {¶ 18} I concur in the majority’s decision because I must. As the maj ority states, relator, Jerone McDougal d, must prove his right to reli ef 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. In this case, respondent, Sonrisa Sehlmeyer, the official responsible for responding to public-records reque sts at Toledo Correctional Institution (“TCI”), denied McDougald’s public-rec ords request because McDougald did not have enough money in his prison accou nt to pay for a copy of the record. The record at issue is the use-of-force re port documenting an incident involving McDougald at TCI in September 2019. {¶ 19} It is undisputed that McDougald had $1.25 in his prison account at the time of his request. But what is still unknown to this cou rt in this matter is the number of pages in the use-of-for ce report and the total cost o f producing a copy for McDougald. McDougald sub mitted his prison-account informat ion with his complaint, and his prison-account information indicates that th e copy charge for some of his previous public-records requests was five cents per page. ButJanuary Term, 2020

7 McDougald submitted no evidence as to what the cost per page wa s for a copy of the use-of-force report at issue here. Further, McDougald had the burden to provide a page count for the document—he could have met that burden had he requested this court to inspect the document in camera. Then and only th en could this court determine whether Sehlmeyer’s denial of the record for lack of funds in McDougald’s account was proper. Although McDougald claims he h ad sufficient
funds in his account when he asked for a copy of the report, he simply did nothing to prove that fact, and theref ore failed to prove by clear and convincing evidence his right to relief. {¶ 20} There is no doubt that the use-of force report that McDougald s eeks is a public record. But under the plain language of R.C. 149.4 3(B)(6), he is not entitled to a copy of that document for free. Whether an inmat e involved in a useof-force incident should have to pay to receive a copy of the r eport documenting that event is a matter for the General Assembly to decide, as t he legislature is “the ultimate arbiter of public policy.” Cleveland v. State , 157 Ohio St.3d 330, 2019- Ohio-3820, 136 N.E.3d 466, ¶ 40. Because R.C. 149.43(B)(6) all ows TCI to charge inmates for copies of use-of-force reports and because McDougal d failed to prove that he had funds sufficient to pay the copy charges for the re port in his prison account at the time of his request, I concur in the majority’s decision.

_________________ Jerone McDougald, pro se. Dave Yost, Attorney General, and Jared S. Yee, Assistant Attorn ey General, for respondent.

_________________