State ex rel. Platt v. Montgomery Cty. Bd. of Elections

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

ex rel. Platt v. Montgomery Cty. Bd. of Elections, Slip Opinion No. 2025-Ohio-2079.]

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. 2025-OHIO-2079

THE STATE EX REL . PLATT v. MONTGOMERY COUNTY BOARD OF ELECTIONS.

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

may be cited as State ex rel. Platt v. Montgomery Cty. Bd. of Elections, Slip

Opinion No. 2025-Ohio-2079.]

Mandamus—Public-records requests—Requested email county prosecutor’s office

sent county board of elections that merely transmitted confidential legal

memorandum is not itself protected by attorney-client privilege and therefore

not exempt from disclosure under R.C. 149.43(A)(1)(v)—Requested email

board’s deputy director sent from his board email account to his personal

email account is a public record subject to disclosure because it documented

a board activity by recording board’s receipt of memo from prosecutor’s

office—A record that documents activity of a public office is a public record

within meaning of R.C. 149.011(G) regardless of whether it documents

authorized or unauthorized activity—Requested email deputy director sent

from his personal email account forwarding memo to chairman of county

Democratic Party is not a public record within meaning of R.C. 149.43(A)(1)

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because email account is not maintained by board—Writ granted in part and

denied in part— Relator awarded $1,000 in damages, relator’s request for

court costs granted, and relator’s request for attorney fees granted subject

to submission of itemized application.

(No. 2024-0325—Submitted April 1, 2025—Decided June 17, 2025.)

IN MANDAMUS.

__________________

The per curiam opinion below was joined by KENNEDY, C.J., and DEWINE,

BRUNNER, DETERS, HAWKINS, and SHANAHAN, JJ. FISCHER, J., concurred in part

and dissented in part and would not award statutory damages.

Per Curiam.

{¶ 1} In this original action, relator, Joseph J. Platt, seeks a writ of

mandamus to compel respondents, the Montgomery County Board of Elections

(“the board”) and its deputy director, Russell M. Joseph, to produce several emails

in response to a public-records request Platt’s counsel sent on his behalf. Platt also

seeks to compel the board to organize and maintain public records in a manner by

which they can be made available for inspection or copying. Finally, Platt demands

awards of statutory damages, court costs, and attorney fees.

{¶ 2} We grant a writ of mandamus ordering respondents to produce two

emails Platt seeks and deny the writ in all other respects. We also award Platt his

court costs and $1,000 in statutory damages. Finally, we grant Platt’s request for

his attorney fees, subject to his submission of an itemized application.

I. FACTUAL AND PROCEDURAL BACKGROUND

A. Ballot Protest Leads to Public-Records Request

{¶ 3} In December 2023, Mary McDonald filed a petition and declaration

of candidacy with the board, seeking placement on the March 2024 primary-

election ballot as a Republican candidate for a seat on the Montgomery County

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Board of Commissioners. McDonald was the only person to file a declaration of

candidacy to be a Republican candidate for that seat.

{¶ 4} In January 2024, Mohamed Al-Hamdani and Brenda Blausser filed a

protest with the board, challenging McDonald’s certification for placement on the

primary-election ballot. Al-Hamdani is the chairman of the Montgomery County

Democratic Party and a partner at the law firm Flanagan, Lieberman & Rambo.

The protesters alleged that McDonald was not qualified to be on the Republican-

primary ballot, because she was a duly elected member of the Montgomery County

Democratic Party Central Committee and had not resigned from that office. The

protesters also alleged that McDonald had not complied with other statutory

requirements for declaring her intent to seek nomination as a Republican candidate

for another office.

{¶ 5} The board held a hearing on the protest. Attorney Don McTigue

represented the protesters at the hearing. During the hearing, McTigue referred to

a “legal memorandum from the county prosecutor’s office” (“the memo”) that he

told the board he had received from Dennis Lieberman. Lieberman is a lawyer and,

like Al-Hamdani, a partner at Flanagan, Lieberman & Rambo. He is also the

husband of Debbie Lieberman, who at that time held the commissioner seat to

which McDonald was seeking election. If the protest against McDonald’s

Republican candidacy were successful, Debbie Lieberman would have been an

unopposed incumbent candidate for her commissioner seat in the November 2024

general election.

{¶ 6} Jeff Rezabek, the board’s director, stated at the protest hearing that

the memo is a legal opinion the board had requested and is therefore protected by

the attorney-client privilege. Rezabek further stated that the board had not waived

the attorney-client privilege or otherwise authorized the disclosure of the memo to

a third party, and he requested a full investigation into who had leaked the memo.

Platt contends that the “leaking” of the memo “to operatives of the Montgomery

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County Democratic Party” was part of an effort to keep McDonald from

challenging Debbie Lieberman for her commissioner seat in the general election.

{¶ 7} After the protest hearing,1 the board ordered an investigation into the

unauthorized distribution of the memo. The investigation found that on January

10, 2024, the Montgomery County Prosecutor’s Office sent the memo by email to

the four board members, the board’s director (Rezabek), and its deputy director

(Joseph). Shortly after receiving the email from the prosecutor’s office, Joseph

forwarded the email—with the memo attached—to his personal email account.

Joseph then forwarded the memo from his personal email account to Al-Hamdani.

Al-Hamdani received the memo from Joseph on January 10 and forwarded it to

Dennis Lieberman, who then forwarded it to McTigue.

B. The Public-Records Request

{¶ 8} On February 2, 2024, attorney Curt Hartman (who is Platt’s counsel

of record in this case) emailed a public-records request to Rezabek. The request

asked for

all emails (including emails on non-governmental accounts), from

January 10, 2024, to the present, to or from any member of the

Montgomery County Board of Elections, or to or from the director

or deputy director of the Montgomery County Board of Elections,

wherein the foregoing-referenced “legal memorandum from the

county prosecutor’s office” dated January 10, 2024, was sent or

1. The board deadlocked two-to-two on the protest to McDonald’s candidacy. The secretary of state

cast the tie-breaking vote to deny the protest, allowing McDonald to run in the March 2024 primary

election as a Republican candidate for Debbie Lieberman’s commissioner seat. Ohio Secretary of

State, Ohio Secretary of State Week in Review for the Week Ending February 2, 2024,

https://www.ohiosos.gov/media-center/week-in-review-archive/2024-02-02/ (accessed May 23,

2025) [https://perma.cc/2R5Z-ZV9H]. McDonald was elected county commissioner in the

November 2024 general election, defeating Lieberman. Montgomery County Board of Elections,

Election Results, https://www.montgomery.boe.ohio.gov/election-results/#281-665-2024-election-

results (page 4 of “11052024es final with write-ins” download) (accessed May 23, 2025).

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January Term, 2025

received. Within the scope of the request would be emails

documenting the receipt of the legal memorandum and any

distribution of the legal memorandum, including to Dennis

Lieberman or any person with the law firm of Flanagan, Lieberman

& Rambo.

The request noted that it did “not seek the ‘legal memorandum’ itself, either as an

attachment to any email or otherwise.”2

{¶ 9} Rezabek responded to the public-records request on February 20,

2024. Regarding the request for emails transmitting or sending the memo, Rezabek

stated, “The documents you seek are either covered by the Attorney/Client privilege

or that we have none responsive to your request, and/or the Montgomery County,

OH Board of Elections does not have access to.”

{¶ 10} Within an hour of receiving the response to the public-records

request, Hartman sent Rezabek a follow-up email in which he clarified that “emails

by which the memorandum was initially sent or received by the Board members”

would be responsive to the request. “[A]t a minimum,” Hartman added, he “would

anticipate responsive records to include” the initial transmission of the memo from

the prosecutor’s office to Rezabek, Joseph, the board, and/or its individual members

or the distribution of the memo from Rezabek or Joseph to the board.

{¶ 11} Rezabek responded to Hartman’s follow-up email two days later,

indicating that he had “misread” the public-records request as asking for emails sent

between the prosecutor’s office (i.e., the board’s legal counsel) and the board and

that such emails would be subject to the attorney-client privilege. Understanding

2. Hartman also requested all emails sent since December 20, 2023, to or from certain board

members, Al-Hamdani, Dennis Lieberman, Debbie Lieberman, or the Flangan, Lieberman &

Rambo law firm concerning either McDonald’s candidacy or any protest to her candidacy. Those

requests are not at issue in this action.

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the request as asking for only “emails between the Director/Deputy Director and

the Board Members concerning the legal memorandum,” Rezabek stated, “[W]e

have none responsive to your request, and the Montgomery County, OH, Board of

Elections does not have access to documents that could be responsive to your

request.”

{¶ 12} Hartman followed up again, informing Rezabek by email that

Rezabek was still mistaken about the public-records request. Hartman repeated that

the request “does seek the initial transmission of the legal memorandum from the

prosecutor’s office to either you, the deputy director, and/or directly to the Board

Members” as well as any email forwarding the memo to someone else. Hartman

also emphasized that any emails forwarding the memo to or from a personal email

account would constitute a responsive record. In response, Rezabek stated, “I do

not have access to what you are requesting.” Rezabek added that “[s]ome of the

confusion” could be attributed to the fact that the board does “not host [its] email

system; it is hosted through the Secretary of State’s office.”

{¶ 13} In an affidavit submitted with respondents’ evidence in this case,

Rezabek attests that the board uses an email server that is managed and maintained

by the secretary of state, as permitted by Ohio Secretary of State Directive 2019-

08. Directive 2019-08 also states: “No board of elections’ member, director, deputy

director, or employee is permitted to use an email address from an email service

provider (e.g., gmail, yahoo, Hotmail, etc.) . . . to conduct board of elections official

business.”

C. Platt Commences this Action

{¶ 14} Platt filed this original action in March 2024, naming the board and

Joseph as respondents. He seeks a writ of mandamus ordering respondents to

comply with their legal duties under the Public Records Act, R.C. 149.43,

specifically to produce all “emails whereby the Legal Memorandum was sent or

received (including being received or sent on the private email account of

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January Term, 2025

RUSSELL JOSEPH),” to provide legal authority for denying in whole or in part

the public-records request, and to organize and maintain public records in a manner

by which they can be made available for inspection or copying. (Italics and

capitalization in original.) Platt also seeks awards of statutory damages, court costs,

and attorney fees.

{¶ 15} Respondents filed a motion to dismiss, arguing that the case was

moot because they had responded fully to the public-records request and had

otherwise complied with the requirements of the Public Records Act. We denied

the motion to dismiss and granted an alternative writ, setting a schedule for the

submission of evidence and briefs. 2024-Ohio-3227. We also ordered respondents

to file under seal, for in camera inspection, unredacted copies of the documents

withheld on attorney-client-privilege grounds. Id. Respondents complied with our

order.

II. ANALYSIS

A. Mandamus Claim Seeking Production of Emails

{¶ 16} R.C. 149.43(B)(1) requires a public office to make copies of public

records available to the requester at cost and within a reasonable period of time. A

writ of mandamus is an appropriate remedy to compel compliance with the Public

Records Act. R.C. 149.43(C)(1)(b). The requester must establish by clear and

convincing evidence a clear legal right to the records and a corresponding clear legal

duty on the part of the respondent to provide them. State ex rel. Cincinnati Enquirer

v. Sage, 2015-Ohio-974, ¶ 10.

{¶ 17} Platt’s briefing focuses on three emails sent on January 10, 2024,

that the board’s investigative report refers to:

(1) the email sent from the prosecutor’s office to the board members, Rezabek,

and Joseph that transmitted the memo concerning the protest to McDonald’s

candidacy;

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(2) the email Joseph sent from his board email account forwarding the memo

to his personal email account; and

(3) the email Joseph sent from his personal email account forwarding the memo

to Al-Hamdani.

{¶ 18} To establish that the requested emails are public records under R.C.

149.011(G) and 149.43(A)(1), Platt must show by clear and convincing evidence that

the emails are “(1) documents, devices, or items, (2) created or received by or coming

under the jurisdiction of the state agencies, (3) which serve to document the

organization, functions, policies, decisions, procedures, operations, or other activities

of the office,” State ex rel. Dispatch Printing Co. v. Johnson, 2005-Ohio-4384, ¶ 19.

To be a public record, a record must be kept by a public office. R.C. 149.43(A)(1).

1. Email from Prosecutor’s Office to the Board

{¶ 19} Respondents argue that the email the prosecutor’s office sent the board

members, Rezabek, and Joseph on January 10, 2024, is a communication covered by

the attorney-client privilege. In Ohio, the attorney-client privilege exists as both a

testimonial privilege under R.C. 2317.02(A) and a common-law privilege that shields

from disclosure any information obtained in the confidential attorney-client

relationship. State ex rel. Dawson v. Bloom-Carroll Local School Dist., 2011-Ohio-

6009, ¶ 27. “Under the attorney-client privilege, ‘(1) where legal advice of any kind

is sought (2) from a professional legal adviser in his capacity as such, (3) the

communications relating to that purpose, (4) made in confidence (5) by the client, (6)

are at his instance permanently protected (7) from disclosure by himself or by the

legal adviser, (8) unless the protection is waived.’ ” State ex rel. Leslie v. Ohio Hous.

Fin. Agency, 2005-Ohio-1508, ¶ 21, quoting Reed v. Baxter, 134 F.3d 351, 355-356

(6th Cir. 1998).

{¶ 20} R.C. 149.43(A)(1)(v) exempts from disclosure records “the release of

which is prohibited by state or federal law.” The attorney-client privilege is a state

law prohibiting release of otherwise public records. State ex rel. Lanham v. DeWine,

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January Term, 2025

2013-Ohio-199, ¶ 26. Platt argues, however, that respondents have not met their

burden to prove that the email transmitting the memo was a communication protected

by the attorney-client privilege. By seeking only the emails transmitting the memo

but not the memo itself, Platt argues, he “was clearly avoiding seeking that which

would arguendo be protected by attorney-client privilege.” (Italics in original.)

{¶ 21} On the one hand, this court has held that the attorney-client privilege

“does not require that the communication contain purely legal advice.” Id. at ¶ 29.

But we have also noted that “‘if a communication between a lawyer and client would

facilitate the rendition of legal services or advice, the communication is privileged.’”

Id., quoting Dunn v. State Farm Fire & Cas. Co., 927 F.2d 869, 875 (5th Cir. 1991).

Thus, in Lanham, we held that documents gathered by an assistant attorney general

as part of his investigation into a matter in which he was advising his client were

protected by the attorney-client privilege. Id. at ¶ 31. In this case, the communication

at issue is an email the prosecutor’s office sent to its clients (i.e., the members,

director, and deputy director of the board) that attached a confidential memorandum

providing legal advice. Under a strict reading of Lanham, the email is a

communication that facilitated the rendition of legal advice given by the prosecutor’s

office to the board and would therefore fall under the attorney-client privilege.

{¶ 22} However, our in camera review of the email the prosecutor’s office

sent to the board shows that the legal advice provided by the prosecutor’s office is

contained in the memo attached to the email and not in the email itself. Though the

parties cite no Ohio cases related to the privileged nature of emails that merely

transmit privileged documents from one person to another, federal district courts have

determined that transmittal documents themselves are not necessarily privileged.

See, e.g., Gucci Am., Inc. v. Guess?, Inc., 271 F.R.D. 58, 79 (S.D.N.Y. 2010)

(transmittal emails not privileged unless they reveal client confidences); Dempsey v.

Bucknell Univ., 296 F.R.D. 323, 336 (M.D.Pa. 2013) (transmittal messages

forwarding litigation documents without comment were not privileged even though

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some documents attachment to the messages were potentially privileged);

Community Assn. Underwriters of Am. v. Queensboro Flooring Corp., 2014 WL

4165385, *5 (M.D.Pa. Aug. 20, 2014) (transmittal messages with a brief note

directing to “please advise” or “see attached” were not privileged even though some

documents attached to the messages were potentially privileged); La Liberte v. Reid,

2024 WL 22781, *3 (E.D.N.Y. Jan. 2, 2024) (“transmittal emails that enclose or

attach other documents[] without further substantive comment” are not privileged).

{¶ 23} To be sure, federal decisions do not bind this court in matters

concerning the attorney-client privilege. State ex rel. Brinkman v. Toledo City School

Dist. Bd. of Edn., 2024-Ohio-5063, ¶ 21. However, the aforementioned decisions are

helpful in analyzing the communications at issue in this case. See id. (applying a

federal decision as “helpful guidance” in analyzing arguments regarding applicability

of the privilege). Applying the rule from these cases, the transmittal email that the

prosecutor’s office sent to the board is not privileged. The email did not reveal any

client confidences or contain any substantive text relating to the legal advice from the

prosecutor’s office to the board.

{¶ 24} To be sure, the subject line of the transmittal email discloses the matter

to which the legal advice contained in the attachment pertains (i.e., the protest to

McDonald’s candidacy). But that fact does not make the email privileged. Nor does

the subject line require redaction. See State ex rel. McCaffrey v. Mahoning Cty.

Prosecutor’s Office, 2012-Ohio-4246, ¶ 35-37 (privileged portions of otherwise

public record were properly redacted in response to public-records request). The fact

that the prosecutor’s office transmitted the memo to the board on January 10, 2024,

was already known. Indeed, the public-records request asked for the email by which

the memo had been transmitted. Accordingly, on the facts of this case, even the

subject line of the transmittal email from the prosecutor’s office does not reveal any

privileged information.

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{¶ 25} Accordingly, we order the board to disclose the transmittal email that

the prosecutor’s office sent to the board members, Rezabek, and Joseph on January

10, 2024. The email merely transmitted the memo from the prosecutor’s office and

does not reveal client confidences; it therefore is not privileged. See, e.g., Gucci Am.

at 79.

2. Email to Joseph’s Personal Email Account

{¶ 26} Just 23 minutes after receiving the email from the prosecutor’s office

with the memo attached, Joseph forwarded the email—along with the memo—to

his personal email account. The board submitted to this court a copy of Joseph’s

email under seal for in camera inspection, as we had ordered. The email contained

no text in the message section; it simply transmitted the email Joseph had received

from the prosecutor’s office, along with the attached memo, to Joseph’s personal

email account. Joseph’s personal email address was the only addressee in the

communication.

{¶ 27} Platt does not argue that Joseph, as deputy director of the board, is

outside the purview of the attorney-client relationship. Nor does Platt argue that

the board waived the attorney-client privilege before Joseph forwarded the email

from the prosecutor’s office or that Joseph could have unilaterally waived the

privilege. See, e.g., Watson v. Cuyahoga Metro. Hous. Auth., 2014-Ohio-1617,

¶ 34 (8th Dist.) (individual employees lacked authority to waive a privilege held by

their employer).3 Thus, it would appear that Joseph’s blank email forwarding the

memo from his board email account to his personal email account did not waive

the attorney-client privilege with respect to the memo. See Jacobs v. Equity Trust

Co., 2020-Ohio-6882, ¶ 27 (9th Dist.).

{¶ 28} In their merit brief, however, respondents do not argue that the email

Joseph sent to his personal email account is covered by the attorney-client privilege.

3. The board later voted to waive the attorney-client privilege with respect to the memo itself but

not to other communications.

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We therefore deem respondents to have waived such an argument. See State ex rel.

O’Neill v. Athens Cty. Bd. of Elections, 2020-Ohio-1476, ¶ 32 (the respondent

waived defense by presenting no argument regarding the defense in its merit brief).

Moreover, as noted above, blank transmittal emails are not privileged when they do

not contain client confidences. Gucci Am., 271 F.R.D. at 79; but see Jacobs at

¶ 27.

{¶ 29} Instead of relying on the attorney-client privilege, respondents argue

that the email Joseph sent to himself is not a public record. For purposes of the

Public Records Act, the term “record” is defined as including “any document,

device, or item, regardless of physical form or characteristic, . . . created or received

by or coming under the jurisdiction of any public office . . . which serves to

document the organization, functions, policies, decisions, procedures, operations,

or other activities of the office.” R.C. 149.011(G). Emphasizing the statutory

definition, respondents contend that Joseph’s email is not a “record” because it

“does not serve to document the public business of the Board of Elections.” Indeed,

they note that it is actually contrary to the deputy director’s duties to send emails to

his personal email account; in fact, the board considered taking disciplinary action

against Joseph and ultimately added a “letter of counselling” to his personnel file

and required him to undergo public-records training.

{¶ 30} Nevertheless, we hold that the email Joseph sent from his board email

account to his personal email account on January 10, 2024, is a public record subject

to disclosure under the Public Records Act. Though the evidence demonstrates that

Joseph was not authorized to forward the email sent by the prosecutor’s office and

the attached memo to Joseph’s personal email account, this does not mean that the

email is not a “record” as defined by R.C. 149.011(G). Whether authorized or not,

the email documented an activity of the board by recording the board’s receipt of a

memorandum from the prosecutor’s office providing legal advice that the board had

requested. Under the statutory definition of “public record,” a record that documents

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the activity of a public office is a public record regardless of whether it documents

authorized or unauthorized activity of that office. And in this case, Joseph’s

forwarding of a confidential memorandum from his board email account, though

unauthorized, documents an activity of the board.

{¶ 31} Accordingly, we order respondents to disclose the email Joseph sent

from his board email account to his personal email account on January 10, 2024, as

a public record.

3. Email from Joseph’s Personal Email Account

{¶ 32} Platt also seeks the email Joseph sent on January 10, 2024, from his

personal email account by which he forwarded the memo to Al-Hamdani, the

chairman of the Montgomery County Democratic Party. Respondents argue that

this email is not a public record and that they were therefore under no obligation to

produce it. As to this email, we agree with respondents.

{¶ 33} Email messages are records for purposes of the Public Records Act if

they were “created or received by or coming under the jurisdiction of [a] state

agenc[y]” and “serve to document the organization, functions, policies, decisions,

procedures, operations, or other activities of the office.” Dispatch Printing Co.,

2005-Ohio-4384, at ¶ 19; accord State ex rel. Glasgow v. Jones, 2008-Ohio-4788,

¶ 20. In this case, Platt has not offered evidence indicating that the email sent from

Joseph’s personal email account was created by the board or fell under its

jurisdiction.

{¶ 34} Platt argues that by leaking a privileged document for partisan

political purposes Joseph committed “malfeasance or misfeasance in office” and that

any emails documenting that malfeasance or misfeasance are public records that must

be disclosed. Because public records “are one portal through which the people

observe their government,” Kish v. Akron, 2006-Ohio-1244, ¶ 16, Platt contends, it

is imperative for the public to be able to view any records showing when government

officials violate the law or otherwise engage in mischief in their duties. Indeed, as

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previously noted, records kept by a public office that reveal misconduct or

malfeasance by a public official are fairly characterized as public records under R.C.

149.011(G) and 149.43(A)(1).

{¶ 35} The email sent from Joseph’s personal email account, however, stands

on footing different from the email sent from his board email account. Platt’s policy

arguments notwithstanding, a record is not a public record unless it is “kept by any

public office,” R.C. 149.43(A)(1). Joseph sent the email to Al-Hamdani from his

personal email account, and there is no evidence in the record showing that Joseph’s

personal email account is maintained by the board.

B. Mandamus Claim for Organizing and Maintaining Records

{¶ 36} As a separate prayer for relief, Platt asks that the board be ordered “to

organize and maintain” its public records “in a manner [such] that they can be made

available for inspection or copying.” This claim relates to Rezabek’s representation

that the secretary of state’s office hosts the board’s email system and that the board

therefore lacks access to the records requested. In denying the public-records request

Platt’s counsel sent, in addition to raising the attorney-client privilege, Rezabek

indicated that the board did “not have the documents that are responsive to [the]

request” because the secretary of state’s office hosts the board’s email system.

{¶ 37} Platt argues that if the board lacks access to its own records, it is

violating the Public Records Act and a writ of mandamus should issue to order it to

maintain its records in such a manner as would allow it to comply with the act. In

defense of their withholding of the requested records at issue, however, respondents

do not claim that the board lacked access to the records. Respondents argue only that

the requested records are either protected from disclosure by the attorney-client

privilege or are not public records at all and that the board has therefore complied

fully with its obligations with respect to the requested records at issue. Other than

Rezabek’s email and affidavit explaining that the secretary of state’s office maintains

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the board’s email system, there is no evidence indicating that the board lacks access

to its records.

{¶ 38} Platt has not proved by clear and convincing evidence that the board

does not organize and maintain its records in a manner that makes them available for

inspection and copying. Indeed, the evidence of record belies Platt’s claim:

respondents submitted as evidence not only the emails at issue in this case (under seal

for in camera inspection) but also other emails sent to and from Rezabek’s board

email account. Accordingly, we deny the writ as to this claim.

C. Statutory Damages and Court Costs

{¶ 39} Under R.C. 149.43(C)(2),4 a public-records requester is entitled to

statutory damages if (1) he sent a public-records request by one of the statutorily

prescribed methods, (2) he made the request “to the public office or person

responsible for the requested public records,” (3) he fairly described the documents

being requested, and (4) the public office or person responsible failed to comply with

an obligation under R.C. 149.43(B). Here, Platt’s counsel sent the public-records

request at issue by email to Rezabek and has attested that he did so on Platt’s behalf.

There is no dispute that the request was properly made to the board or that the request

fairly described the records sought.

{¶ 40} As for the last requirement for statutory damages, we have determined

above that the board failed to comply with R.C. 149.43(B) by withholding the email

from the prosecutor’s office transmitting the memo to the board and the email from

Joseph’s board email account in which he forwarded the memo to his personal email

account. Platt has therefore established his entitlement to statutory damages under

R.C. 149.43(C)(2). See State ex rel. Ware v. Akron, 2021-Ohio-624, ¶ 18 (statutory

damages “are mandatory” when a public-records custodian has failed to comply with

4. The General Assembly amended R.C. 149.43 in 2024 Sub.H.B. No. 265 with an effective date

of April 9, 2025. This opinion applies the version of the statute enacted in 2023 Am.Sub.H.B. No.

33 (effective Oct. 3, 2023).

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an obligation under R.C. 149.43(B)). And because more than ten days have passed

since this action was filed, we award Platt the maximum $1,000 in statutory damages.

See R.C. 149.43(C)(2).

{¶ 41} Platt is also entitled to recover his court costs. Because we grant a writ

of mandamus ordering production of the aforementioned emails, an award of court

costs is mandatory under R.C. 149.43(C)(3)(a)(i).

D. Attorney Fees

{¶ 42} Platt also seeks recovery of his attorney fees. “If the court renders a

judgment that orders the public office or the person responsible for the public record

to comply with [R.C. 149.43(B)] . . . , the court may award reasonable attorney’s fees

to the relator . . . .” R.C. 149.43(C)(3)(b). In this case, Platt has met the prerequisite

for an attorney-fees award under that provision because we are granting a writ of

mandamus ordering respondents to provide him with copies of the email by which

the prosecutor’s office transmitted the memo to the board and the email in which

Joseph forwarded the memo to his personal email account.

{¶ 43} Respondents make two arguments in opposition to Platt’s attorney-

fees request. First, they contend that the board has not violated the Public Records

Act. But as explained above, the board failed to comply with R.C. 149.43(B) by

withholding the two emails that we are ordering it to produce.

{¶ 44} Second, respondents argue that attorney fees are not warranted

because the board did not act in bad faith. Citing R.C. 149.43(C)(3)(b)(iii),

respondents argue that an award of attorney fees requires a finding of bad faith. This

argument fails because respondents are misreading the statute. R.C. 149.43(C)(3)(b)

provides that an attorney-fees award is appropriate if the court orders a public office

to comply with R.C. 149.43(B) or “if the court determines any of the following,”

including bad faith. Moreover, the “bad faith” provision comes into play only when

the record was produced after the requester filed a mandamus action but before the

court rendered a judgment. R.C. 149.43(C)(3)(b)(iii). In this case, attorney fees are

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January Term, 2025

appropriate because the board failed to comply with R.C. 149.43(B) by withholding

the two emails that we are ordering it to produce. See Brinkman, 2024-Ohio-5063,

at ¶ 41 (awarding attorney fees for failure to comply with obligation under R.C.

149.43(B)).

{¶ 45} Accordingly, we conclude that an award of attorney fees is warranted.

We defer our final determination of the amount of attorney fees pending Platt’s filing

of an itemized application in accordance with the standards set forth in State ex rel.

Kesterson v. Kent State Univ., 2018-Ohio-5110, ¶ 35-36. Respondents are permitted

to respond to Platt’s application. Id. at ¶ 35.

III. CONCLUSION

{¶ 46} For the foregoing reasons, we grant a writ of mandamus ordering

respondents to provide to Platt copies of the email that the prosecutor’s office sent to

the board members, Rezabek, and Joseph on January 10, 2024, and the email Joseph

sent from his board email account to his personal email account on that date. We

deny the writ in all other respects. We order respondents to pay $1,000 in statutory

damages to Platt, and we award Platt his court costs. Finally, we grant Platt’s request

to recover his reasonable attorney fees. Platt shall submit his itemized fee application

within 20 days, and respondents may file a response within 14 days of the filing of

Platt’s application.

Writ granted in part

and denied in part.

__________________

The Law Firm of Curt C. Hartman and Curt C. Hartman; and Finney Law

Firm and Christopher P. Finney, for relator.

Mathias H. Heck Jr., Montgomery County Prosecuting Attorney, and Ward

C. Barrentine and Nathaniel S. Peterson, Assistant Prosecuting Attorneys, for

respondents.

__________________

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