[ Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State ex rel. Gregory v. Toledo , Slip Opinion No. 202 3

- Ohio

- 651 .]

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.

S LIP O PINION N O . 2023

- O HIO - 651
T HE S TATE EX REL . G REGORY v . T HE C ITY OF T OLEDO . [ Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State ex rel. Gregory v. Toledo , Slip Opinion No.
202 3

- Ohio

- 651 .]
Mandamus

—

Public

- records requests

— All items listed in relator’s request are not records, have been provided, and/or are no longer a basis for any claim for
writ

— C ity lacked reasonable basis to withhold all records requested simply
because some of them related to a criminal investigation or prosecution and therefore were subject to R.C. 149.43(B)(8)’s re quirement that requester seek court approval before submitting request

— Writ denied and statutory damages awarded. (No. 202 2

- 0083

— Submitted January 10 , 2023

— Decided March 7 , 202 3 .)
I N M ANDAMUS

.

________________S UPREME C OURT OF O HIO

2 Per Curiam

. {¶ 1} R elator
, La R on Gregory , filed this original action seeking a writ of mandamus to compel respondent, city of Toledo, to provide public records. Gregory also request ed an award of statutory damages. On March 23, 2022, we granted an alternative writ of mandamus. 166 Ohio St.3d 14 37, 2022

- Ohio

- 798 , 184 N.E.3d 126 . For the reasons set forth below, we now deny the writ and award statutory damages in the amount of $400.
I

. Background {¶ 2} On October 22, 2021, Gregory sent a public

- records request to the
Toledo p olice d epartment by certif ied mail. The request contained the following
list of records and questions:

1. A digital copy of the body cam footage from all officers

on November 28, 2019
2. Records retention schedule for body cam footage and recordings.
3. List for all officers who worked 11/28/2019
4. Procedures for traffic stops
5. Who has the responsibility to turn on body cams or do they turn on automatically?
6. How long is body camera footage stored?
7. At the end of shift where is body cam footage stored?
8. Dash cam video procedures on traffic stops

{¶ 3} On January 24, 2022, Gregory filed in this court a complaint for a writ of mandamus, alleging that the city had failed to respond to his records request . HeJanuary Ter m, 2023

3 also demanded an award of statutory damages and court costs. 1 Four days later, the police department sent him a letter of apology and provided records responsive to the list except for the first item: “body cam footage from all officers on November 28, 2019.” The city denied access to that item, char acterizing the request as overly
broad. {¶ 4} After we granted the alternative writ, the parties filed briefs and
evidence

. I I. Analysis

A. The demand for a writ of mandamus {¶ 5} R.C. 149.43(B)(1) requires a public office to make copies of public records available to any person up on request and within a reasonable period. Mandamus is an appropriate remedy by which to compel compliance with R.C.
149.43

. R.C. 149.43(C)(1)(b); State ex rel. Physician s 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. A public

- records mandamus case becomes moot if the public office produces the requested records to the relator. State ex rel. G lasgow v. Jones
, 119 Ohio St.3d 391, 2008

- Ohio

- 4788, 894 N.E.2d 686, ¶ 27. {¶ 6} We first note that item Nos. 5, 6, and 7 on the list Gregory sent the police department are questions

— not records

— to which no response was required. See State ex rel. Morgan v. New Lexington , 112 Ohio St.3d 33, 2006

- Ohio

- 6365, 857 N.E.2d 1208, ¶ 30 (“Requests for information * * * are improper requests under R.C. 149.43”). Therefore, we deny Gregory’s demand for a writ of mandamus as to these three items, and we proceed to address the other five items listed in his records request

. {¶ 7} A t the time Gregory filed his mandamus complaint, the city had not responded to his records request. By the time Gregory filed his merit brief,

1

. Gregory filed an affidavit of indigency pursuant to S.Ct.Prac.R. 3.06(A), which th is court accepted, so there are no court costs to award.S UPREME C OURT OF O HIO

4 however, he had received the city’s response, and h e concedes in his merit brief that the response satisfied his records request except for item No. 1

. Therefore, we deny as moot Gregory’s demand for a writ of mandamus compelling access to item Nos. 2, 3, 4, and 8. {¶ 8} The city denied as overbroad Gregory’s r ecords request as to item No.
1 : “ [a] digital copy of the body cam footage from all officers on November 28, 2019.” In his merit brief, Gregory does not address the city’s overbreadth defense. In fact, he does not present any argument in favor of a writ of mandamus to compel
access to item No. 1

. Instead, h is brief is devoted to the argument that the city’s response was untimely and that statutory damages therefore should be awarded. Likewise, in his affidavit, Gregory requests statutory damages but not a writ of
mandamus. We therefore hold that Gregory has waived the issue
, and we deny the
writ with respect to item No. 1 on that basis. See, e.g. , State ex rel. Moore v.
Malone , 96 Ohio St.3d 417, 2002

- Ohio

- 4821, 775 N.E.2d 812, ¶ 39 ( a relator who raised other claims in her complaint waived those claims “by not pursuing [them] in her merit brief”); see also State ex rel. Mun. Constr. Equip. Operators’ Labor
Council v. Cleveland , 114 Ohio St.3d 183, 2007

- Ohio

- 3831, 870 N.E.2d 1174, ¶ 83 ( relator s who requested attorney fees in mandamus complaint waived the issue by failing to include i n the ir merit brief any argument in support of that request ). {¶ 9} For the above reasons , we deny Gregory’s complaint for a writ of mandamus in part as moot (as t o item Nos. 2, 3, 4, and 8) and in part on the merits (as to item Nos. 1, 5, 6, and 7)

. B

. Statutory damages {¶ 10} A person requesting public records “shall” be entitled to recover an award of statutory damages “if a court determines that the public office or t he person responsible for public records failed to comply with an obligation in accordance with division (B) of this section.” R.C. 149.43(C)(2). Statutory damages are calculated at the rate of $100 for every business day the public officeJanuary Ter m, 2023

5 or person resp onsible for the requested public records fails to comply with an obligation under R.C. 149.43(B), starting from the date of the filing of the
mandamus complaint, up to a maximum award of $1,000. R.C. 149.43(C)(2). Assuming that the city failed to comply with its statutory obligations, Gregory would be eligible to receive a maximum of $400: Gregory filed his complaint on January 24, and the city provided the records four business days later. {¶ 11} However, a court may reduce the amount if it makes two findings:

( a ) [t] hat, based on the ordinary application of statutory law
and case law as it existed at the time of the conduct * * * of the public office or person responsible for the requested public records
* * * that allegedly constitutes a failure to comply with an obligation
* * * , a well

- informed public office or person responsible for the requested public records reasonably would believe that the conduct
* * * did not constitute a failure to comply with an obl igation in accordance with division (B) of this section; [ and ] ( b ) [t] hat a well

- informed public office or person responsible for the requested public records reasonably would believe that the
conduct * * * would serve the public policy that underlies the authority that is asserted as permitting that conduct * * *

.

R.C. 149.43(C) (2)

. {¶ 12} The city argues that we should make the above two findings and reduce any statutory damage s award ed to Gregory accordingly

. 2 In support of this argument, t he city alleges that Gregory was indicted and convicted of criminal

2

. In its merit brief, the city repeatedly suggests that its delay in responding to Gregory’s records request resulted from staff shortages, but the city never connects this claim to any substantive argument in opposition to a writ or in favor of a reduction in the statutory damages awarded.S UPREME C OURT OF O HIO

6 offenses that occurred in Lucas County on November 28, 2019, and it asserts that R.C. 149.43(B)(8) therefore required him to seek court approval before requ esting body

- cam era footage and the names of the officers working on that date. 3 {¶ 13} R.C. 149.43(B)(8) requires inmates to obtain court approval before requesting documents relating to a criminal investigation or prosecution . In State ex
rel. Ellis v. Cleveland Police Forensic Lab oratory , 167 Ohio St.3d 193, 2021

- Ohio

4487, 190 N.E.3d 605, we addressed a claim for statutory damages under the Public
Records Act whe n some but not all the records the inmate was seeking fell within the scope of R.C. 149.43( B)(8). The public office claimed that it had acted reasonably when it rejected the entire records request for noncompliance with R.C. 149.43(B)(8) without determin ing whether any of the requested records fell outside the scope of the provision

. We reject ed that argument because the plain language
of R.C. 149.43(B)(8) “excuses a public office or official from having to provide a
record when it relates to a criminal proceeding. ” (Emphasis sic.) Id . at ¶ 15. We explained that R.C. 149.43(B)(8) “ does not c reate a blanket rule that an office or official may disregard an entire request when a portion thereof is subject to the

pre release approval of the sentencing judge .” (Emphasis sic.) Id . at ¶ 15. {¶ 14} Th is case present s the same scenario as Ellis . On the one hand, the city argues that R.C. 149.43(B)(8) required Gregory to seek court approval before requesting body

- cam era footage and the names of the officers working on th e date
of his offenses . On the other hand, some o f the records he requested did not implicate R.C. 149.43(B)(8). Noting that Ellis was not decided until December
2021

— after Gregory sent his public

- records request

— t he city asserts that before
Ellis was decided , “a public office c ould reasonably have beli eved it had no

3

. Implicit in the city’s argument is the assumption that Gregory was an inmate at the time he sent his records request. Although t he city does not cite any evidence verifying that assumption, we join in the assumption for purposes of our analysis.January Ter m, 2023

7 obligation to respond to [Gregory] ’s requests as they included requests covered by R.C. 149.43(B)(8) , without [him] having obtained the necessary judicial approval.” {¶ 15} Ellis contradicts t he city’s argument. If a reasonable public official could have concluded, prior to Ellis , that the entire records request could be disregarded, then we would have denied statutory damages in Ellis . But we awarded statutory damages in that case because th e language of R.C. 149.43(B)(8)
was clear. Id . at ¶ 15

- 17. Even before Ellis was decided , the city had no reasonable
basis to withhold all the records Gregory request ed simply because he was required
to seek court approval before requesting some of them

. {¶ 16} Accordingly, w e award Gregory $400 in statutory damages.
I II

. Conclusion {¶ 17} Based on the foregoing, we deny the writ of mandamus and award Gregory statutory damages in the amount of $400.
W rit denied

. K ENNEDY , C.J., and D E W INE , D ONNELLY , S TEWART , B RUNNER , and
D ETERS , JJ. , concur. F ISCHER , J., concurs in part and dissents in part and would not award damages.

_________________ La R on Gregory , pro se. Dale R. Emch, Toledo Director of Law , and Tammy G. Lavalette
, Assistant Director of Law, for respondent

.

_________________