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

ex rel. Barr v. Wesson, Slip Opinion No. 2023-Ohio-3645.]

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. 2023-Ohio-3645

THE STATE EX REL. BARR v. WESSON.

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

may be cited as State ex rel. Barr v. Wesson,

Slip Opinion No. 2023-Ohio-3645.]

Mandamus—Public-records request—R.C. 149.43—Warden’s assistant provided 

record in response to inmate’s public-records request and claimed that

other records did not exist—Inmate met burden by clear and convincing 

evidence that one requested record warden’s assistant did not produce 

existed at one time—Warden’s assistant ordered to provide requested 

record or show cause why record cannot be produced—Limited writ 

granted.

(No. 2023-0113—Submitted August 22, 2023—Decided October 10, 2023.)

IN MANDAMUS.

__________________

Per Curiam.

{¶ 1} Relator, Harry M. Barr, filed this action for a writ of mandamus to 

order respondent, James Wesson, the warden’s assistant at the Grafton Correctional 

Institution (“GCI”), to produce records in response to a December 2022 public-
January Term, 2023

2

records request in which Barr sought copies of three documents. Barr also seeks 

statutory damages under Ohio’s Public Records Act, R.C. 149.43, and has moved 

to strike the evidence that Wesson submitted in this case.

{¶ 2} Wesson avers that he responded fully to the public-records request 

before Barr commenced this action. Specifically, he claims that he provided a copy 

of one of the requested records but says the other two do not exist. Barr, however, 

has shown by clear and convincing evidence that one of the records that Wesson 

did not produce—a copy of an electronic kite—did, in fact, exist at one time. We 

therefore grant a limited writ ordering Wesson to provide a copy of the kite or show 

cause why the record cannot be produced. We defer our consideration of Barr’s 

request for statutory damages until Wesson has complied with the limited writ, and 

we deny Barr’s motion to strike.

I. FACTUAL AND PROCEDURAL BACKGROUND

{¶ 3} Barr is an inmate at GCI. On December 5, 2022, Barr sent a publicrecords request by electronic kite to Wesson, the person in charge of responding to 

public-records requests submitted to GCI. Barr requested three records: (1) the 

“GCI record-retention schedule,” (2) a list of all GCI employees, and (3) a “mental 

health kite” dated April 21, 2022, with reference number GCI0422002492.

{¶ 4} Barr commenced this action on January 27, 2023, seeking a writ of 

mandamus ordering Wesson to provide the requested records and an award of 

statutory damages under R.C. 149.43(C)(2). Wesson filed an answer, asserting that 

Barr was not entitled to relief. This court granted an alternative writ and set a 

schedule for the submission of evidence and briefing. 169 Ohio St.3d 1484, 2023-

Ohio-1116, 206 N.E.3d 724.

{¶ 5} Barr and Wesson filed evidence, but only Barr filed a merit brief. Barr 

submitted an affidavit in which he asserts that as of April 13, 2023, the date he 

signed his affidavit, he had not received any of the records he requested or an 

explanation regarding why the records were not made available to him.
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{¶ 6} Wesson also submitted an affidavit as evidence in this case. In that 

affidavit, Wesson claims that he provided the requested employee list to Barr but 

did not provide the other two requested records. Wesson says he informed Barr on 

December 23, 2022, that GCI records did not include the mental-health kite that 

Barr sought in his public-records request. Wesson also says that he did not provide 

a “GCI record-retention schedule” because no such record existed and that GCI 

follows the record-retention schedule of the Ohio Department of Rehabilitation and 

Correction (“DRC”) and does not have its own, institution-specific schedule.

{¶ 7} After Wesson’s time for filing his merit brief had expired, Barr filed 

a motion to strike Wesson’s affidavit, arguing that Wesson’s affidavit was

“fraudulent.” To rebut the averments in Wesson’s affidavit, Barr attached to his 

motion to strike an affidavit and exhibits. Wesson did not respond to Barr’s motion 

to strike.

II. ANALYSIS

A. Motion to Strike

{¶ 8} Barr moves to strike Wesson’s evidence and to sanction Wesson. He 

claims that Wesson “fraudulently” testified that the “mental health kite” Barr 

requested does not exist. Barr’s motion further asserts that he did not receive the 

requested list of all GCI employees until May 10, 2023. Barr argues that Wesson’s 

testimony is false and unsupported by other evidence of record.

{¶ 9} We deny the motion to strike. Barr’s argument goes to the weight of 

the evidence, not its admissibility. In an original action, “we are capable of 

determining questions of relevance and assigning appropriate weight without 

striking evidence or arguments.” State ex rel. Tam O’Shanter Co. v. Stark Cty. Bd. 

of Elections, 151 Ohio St.3d 134, 2017-Ohio-8167, 86 N.E.3d 332, ¶ 11.

B. Mandamus Claim

{¶ 10} Ohio’s Public Records Act requires a public office to make copies 

of public records available to any person upon request within a reasonable time. 
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R.C. 149.43(B)(1). Mandamus is an appropriate remedy to compel compliance 

with the Public Records Act. R.C. 149.43(C)(1)(b); 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. To be entitled to the writ, Barr 

must prove by clear and convincing evidence that the records he requested exist 

and are public records maintained by Wesson. State ex rel. Cordell v. Paden, 156 

Ohio St.3d 394, 2019-Ohio-1216, 128 N.E.3d 179, ¶ 8. Clear and convincing 

evidence is a measure or degree of proof that is more than a preponderance of the 

evidence but less than the beyond-a-reasonable-doubt standard required in a 

criminal case, and that produces in the trier of fact’s mind a firm belief of the fact 

sought to be established. State ex rel. Miller v. Ohio State Hwy. Patrol, 136 Ohio 

St.3d 350, 2013-Ohio-3720, 995 N.E.2d 1175, ¶ 14.

{¶ 11} Barr argues that Wesson failed to respond at all to his public-records 

request before Barr commenced this action. For his part, Wesson submitted an 

affidavit attesting that he did, in fact, respond to Barr’s request. Wesson testifies 

that he provided a complete list of all GCI employees, as Barr requested, and that 

he notified Barr that GCI records did not include a mental-health kite with reference 

number GCI0422002492. Wesson has attached to his affidavit the documents that 

he sent to Barr, which include (1) the list of all GCI employees and (2) a 

memorandum dated December 23, 2022, from Wesson to Barr stating that “[a]t this 

time there is no reference number found under reference number GCI0422002492.” 

Wesson also testifies that no “GCI record-retention schedule” exists because GCI 

follows the DRC system-wide retention schedule and does not have a separate 

institution-specific schedule.

{¶ 12} Barr does not challenge Wesson’s testimony with respect to the 

records-retention schedule. However, he contends that Wesson’s averments 

relating to the other two requested records “are lies, and fraud upon the Court.” In 

support of his fraud allegation, Barr has attached copies of letters he has received 
January Term, 2023

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from Wesson in response to other public-records requests, which, according to 

Barr, “represent the kind of letter of acknowledgment” that Wesson typically sends. 

In these other responses, Wesson’s letters acknowledged receipt of Barr’s publicrecords requests, identified the records being produced, stated that other requested 

records did not exist, and contained Wesson’s signature block. Because these 

letters differ in form from the December 23 memorandum that Wesson submitted 

as evidence in this case, Barr infers that the latter is fraudulent.

{¶ 13} We are unpersuaded by Barr’s argument. Wesson testifies that he 

responded to Barr’s public-records request and that he provided all existing 

responsive records. Barr disputes the truth of Wesson’s testimony, swearing that 

he did not receive any response before he filed his complaint and that he did not 

receive the requested GCI-employee list until May 10, 2023. At best, the evidence 

regarding the issue whether Wesson responded to Barr’s public-records request is 

evenly balanced. And in such a situation, the requester has failed to satisfy a clearand-convincing standard of proof. See State ex rel. Ware v. Giavasis, 163 Ohio 

St.3d 359, 2020-Ohio-5453, 170 N.E.3d 788, ¶ 32. Barr is therefore not entitled to 

a writ of mandamus based on a claim that Wesson failed to respond at all to the 

December 2022 public-records request.

{¶ 14} Regarding the substance of Wesson’s response to the public-records 

request, Barr disputes Wesson’s claim that there is no mental-health kite with 

reference number GCI0422002492 from April 21, 2022. Barr has submitted as 

evidence a document purporting to be a copy of his kite log, printed on August 30, 

2022, which Barr obtained via a separate public-records request. The document 

shows a kite with reference number GCI0422002492 having been transmitted by 

Barr on April 21, 2022. Barr says this document “establishes that kite number 

GCI0422002492 does in fact exist.”

{¶ 15} The kite log Barr has submitted as evidence—the authenticity of 

which Wesson has not disputed—identifies the specific kite that Barr requested in 
January Term, 2023

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his December 2022 public-records request. This log is clear and convincing 

evidence that rebuts Wesson’s testimony that “GCI records do not include” the 

mental-health kite that Barr requested. At the very least, the evidence shows that 

the kite existed in GCI’s records a little more than three months before Barr sent 

his public-records request. We therefore grant a limited writ of mandamus ordering 

Wesson to produce a copy of the kite with reference number GCI0422002492 or to 

show cause why the record cannot be produced. See State ex rel. Sultaana v. 

Mansfield Corr. Inst., __ Ohio St.3d __, 2023-Ohio-1177, __ N.E.3d __, ¶ 43 

(granting a limited writ ordering a prison to produce records or to certify that no 

such records exist).

C. Statutory Damages

{¶ 16} R.C. 149.43(C)(2) provides that a public-records requester shall be 

entitled to statutory damages if (1) he made a public-records request by one of the 

statutorily prescribed methods, (2) he made the request to the public office 

responsible for the requested records, (3) he fairly described the records being 

requested, and (4) the public office failed to comply with an obligation under R.C. 

149.43(B). The amount of damages accrues at $100 for each business day during 

which Wesson failed to meet his R.C. 149.43(B) obligations, beginning on the day 

that Barr filed this mandamus action, up to a maximum of $1,000. R.C. 

149.43(C)(2).

{¶ 17} In this case, Barr is eligible for an award because he transmitted his 

public-records request by electronic kite. See State ex rel. Griffin v. Sehlmeyer, 165 

Ohio St.3d 315, 2021-Ohio-1419, 179 N.E.3d 60, ¶ 21. And Wesson does not 

dispute that he is a proper respondent or that Barr’s request fairly described the 

records sought. Accordingly, the issue of a statutory-damages award turns on 

whether Wesson failed to comply with an obligation under R.C. 149.43(B).

{¶ 18} It is premature to determine whether an award of statutory damages 

is appropriate. As noted above, Barr has provided evidence that the kite with 
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reference number GCI0422002492 existed at some point. If Wesson produces the 

kite in response to a limited writ, then Barr will have shown that Wesson failed to 

comply with his obligation to produce it under R.C. 149.43(B), entitling Barr to an 

award of statutory damages. See State ex rel. Rogers v. Dept. of Rehab. & Corr., 

155 Ohio St.3d 545, 2018-Ohio-5111, 122 N.E.3d 1208, ¶ 23. But if Wesson 

responds to the show-cause portion of the limited writ with proof that GCI did not, 

in fact, have the kite on December 5, 2022 (i.e., the date of Barr’s public-records 

request), then Barr will not have proven a violation of R.C. 149.43(B). 

Accordingly, we defer our determination of statutory damages until Wesson has 

complied with the limited writ.

III. CONCLUSION

{¶ 19} For the foregoing reasons, we grant a limited writ of mandamus 

ordering Wesson to, within 14 days, either produce a copy of the kite with reference 

number GCI0422002492 or show cause why the record cannot be produced. We 

defer our determination of statutory damages until Wesson has complied with the 

limited writ. We deny Barr’s motion to strike.

Limited writ granted.

KENNEDY, C.J., and DEWINE, DONNELLY, STEWART, BRUNNER, and 

DETERS, JJ., concur.

FISCHER, J., dissents.

__________________

Harry M. Barr, pro se.

Dave Yost, Attorney General, and George Horváth, Assistant Attorney 

General, for respondent.

________________________