# State ex rel. Mobley v. Bates

> Ohio Supreme Court · July 30, 2024 · 175 Ohio St. 3d 315

URL: https://www.frixlaw.com/law-library/cases/11147229

## Case

- **Court:** Ohio Supreme Court
- **Decided:** July 30, 2024
- **Citations:** 175 Ohio St. 3d 315; 242 N.E.3d 42; 2024 Ohio 2827
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** Per Curiam
- **Cited by:** 10 later opinions in the Frix Law Library

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## Opinion text

[This opinion has been published in Ohio Official Reports at 175 Ohio St.3d 315.]

THE STATE EX REL. MOBLEY v. BATES, PROS. ATTY.
[Cite as State ex rel. Mobley v. Bates, 2024-Ohio-2827.]
Mandamus—Public-records requests—Because public-records custodian provided
requested records, offered to provide records upon prepayment of copying
costs, or averred that requested records do not exist, public office satisfied
its obligations under R.C. 149.43—Requester failed to prove by clear and
convincing evidence that he delivered public-records requests by certified
mail—Writ, statutory damages, and court costs denied.
(No. 2023-1594—Submitted May 7, 2024—Decided July 30, 2024.)
IN MANDAMUS.
__________________
The per curiam opinion below was joined by KENNEDY, C.J., and FISCHER,
DEWINE, DONNELLY, STEWART, BRUNNER, and DETERS, JJ.

Per Curiam.
{¶ 1} Relator, Alphonso Mobley Jr., filed an original action in mandamus
against respondent, Lucas County Prosecuting Attorney Julia Bates (“the
prosecutor” or “the prosecutor’s office”). Mobley seeks the production of public
records and awards of statutory damages and court costs. We deny the writ and
decline to award Mobley statutory damages or court costs.
I. FACTUAL AND PROCEDURAL BACKGROUND
{¶ 2} Mobley alleges that on October 30, 2023, the prosecutor received a
public-records request that Mobley had sent to the prosecutor by certified mail. The
record does not contain a copy of the request, but Mobley states that he sought in
the request paper copies of the prosecutor’s (1) “[r]ecords retention schedule,”
(2) “[c]ertified statements for years 2016-2021 pursuant to R.C. 309.16,” and
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(3) “[c]ashbook[s] for years 2016-2021 pursuant to R.C. 2335.25.” Mobley did not
receive a response from the prosecutor regarding his request prior to filing this
mandamus action.
{¶ 3} Mobley filed this mandamus action on December 14, 2023, and the
prosecutor was served with the complaint on December 19. On January 5, 2024,
the prosecutor’s office sent Mobley a letter. In that letter, the prosecutor’s office
stated that it had no record of having received Mobley’s request but that it was
providing a response to the request described in Mobley’s complaint. In response
to Mobley’s request for the prosecutor’s office’s “[r]ecords retention schedule,” the
prosecutor’s office provided Mobley with a copy of the office’s records-retention
schedule. In response to Mobley’s request for certified statements, the prosecutor’s
office stated that the records responsive to that request might total nearly 10,000
pages and that a paper copy of the records would cost approximately $1,000. The
prosecutor’s office asked Mobley to inform it as to whether he still wanted paper
copies of those records. And in response to Mobley’s request for “[c]ashbook[s],”
the prosecutor’s office stated that it did not have cashbooks for the years requested.
{¶ 4} The prosecutor filed an answer to Mobley’s mandamus complaint,
and this court issued an alternative writ allowing the parties to submit evidence and
ordering them to submit briefs, 2024-Ohio-597. As part of its evidence, the
prosecutor’s office submitted an affidavit of an assistant prosecutor. The assistant
prosecutor avers that all public-records requests made to the prosecutor’s office are
forwarded to him. He avers that he never received the public-records request at
issue in this case and that the prosecutor’s office has no record of having received
it. Mobley submitted as evidence a certified-mail return receipt for a mailing
addressed to the prosecutor’s office that was delivered and signed for on
October 30, 2023. The signature of the person who accepted the delivery is
illegible. Mobley avers that this receipt was for the mailing of his public-records

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January Term, 2024

request. Mobley has not submitted a copy of the request or an envelope with a
tracking number matching the tracking number on the receipt.
II. LEGAL ANALYSIS
A. Writ of mandamus
{¶ 5} “[U]pon 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.” R.C. 149.43(B)(1).
Mandamus is an appropriate remedy to compel compliance with R.C. 149.43(B).
R.C. 149.43(C)(1)(b). To be entitled to a writ of mandamus, Mobley must prove,
by clear and convincing evidence, that he has a clear legal right to the relief sought
and that the prosecutor has a clear legal duty to provide that relief. State ex rel.
Cincinnati Enquirer v. Sage, 2015-Ohio-974, ¶ 10.
{¶ 6} Mobley argues that the prosecutor has not properly responded to his
requests for certified statements and cashbooks and requests a writ of mandamus
ordering the production of those records. We deny the writ. The prosecutor’s office
avers that it never received Mobley’s public-records request. But even if the
prosecutor received the request and failed to respond to it by the time Mobley filed
this action, the prosecutor has since properly responded to the request.
{¶ 7} Mobley states that in his request for certified statements, he requested
“[c]ertified statements for years 2016-2021 pursuant to R.C. 309.16.” Former
R.C. 309.16, Am.Sub.S.B. No. 98, 138 Ohio Laws, Part I, 683, which has been
repealed, required prosecutors to file annual statements regarding criminal
prosecutions with the applicable board of county commissioners and, with respect
to arson offenses, with the state fire marshal. In its January 5, 2024 letter to Mobley
regarding his public-records request, the prosecutor’s office told Mobley that paper
copies of the statements to the board of county commissioners would cost
approximately $1,000 and asked Mobley to advise the office whether he wanted to
proceed with the request. Mobley did not respond to that instruction.

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{¶ 8} A public office may charge for copies of public records at cost. See
R.C. 149.43(B)(6). In his brief, Mobley suggests that he requested statements sent
to the state fire marshal in addition to statements sent to the board of county
commissioners and that the prosecutor did not provide the statements that were sent
to the state fire marshal or an estimate of the cost to provide them. The prosecutor
clarifies in her brief, however, that the same statements were sent to both the board
of county commissioners and the state fire marshal. Because the prosecutor
properly required payment of the copying costs before providing the statements, we
deny the writ as to the request for certified statements.
{¶ 9} Mobley states that in his request for cashbooks, he sought
“[c]ashbook[s] for years 2016-2021 pursuant to R.C. 2335.25.” R.C. 2335.25
requires prosecutors to keep a cashbook containing a record of all moneys that they
collect or receive and that the cashbook “shall be a public record of the office.” The
prosecutor’s office told Mobley—and it avers here—that it does not have any
cashbooks or other records responsive to the request. Mobley argues that the
prosecutor’s office’s assertion that it does not have responsive records is
contradicted by the office’s records-retention schedule, which contains a records
schedule titled “Cash Books & Journals” and similarly titled schedules. But the
existence of a particular records schedule at a public office does not necessarily
mean that the public office has records encompassed by that schedule. And here,
the prosecutor denies having any records responsive to Mobley’s request for
cashbooks. Mobley has the burden to prove, by clear and convincing evidence, that
the records he requested exist. See State ex rel. Cordell v. Paden, 2019-Ohio-1216,
¶ 8. He has not done so, and the prosecutor has “no duty to create or provide access
to nonexistent records,” State ex rel. Lanham v. Smith, 2007-Ohio-609, ¶ 15.
Therefore, we deny the writ as to the request for cashbooks.

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January Term, 2024

{¶ 10} Because the prosecutor has now either provided the requested
records, offered to provide Mobley with the records upon prepayment of the
copying costs, or averred that the records do not exist, we deny the writ.
B. Statutory damages and court costs
{¶ 11} “Statutory damages shall be awarded if a requester of public records
transmits a written request to a public office by hand delivery, electronic
submission, or certified mail and the public office or person responsible for public
records fails to comply with its obligations under R.C. 149.43(B).” State ex rel.
Atakpu v. Shuler, 2023-Ohio-2266, ¶ 13; accord R.C. 149.43(C)(2).
{¶ 12} Mobley argues that he is entitled to statutory damages because the
prosecutor did not respond to his public-records request within a reasonable time.
A public office shall provide copies of a requested public record “within a
reasonable period of time.” R.C. 149.43(B)(1). Mobley alleges that the prosecutor
received his public-records request on October 30, 2023, and that the prosecutor
did not respond to the request until January 5, 2024—67 days later.
{¶ 13} The prosecutor’s office, however, avers that it never received the
public-records request. As evidence that he had sent the request to the prosecutor’s
office by certified mail, Mobley submitted a copy of a certified-mail return receipt
that may have been signed for by someone from the prosecutor’s office on
October 30 and his own affidavit averring that he sent the request by certified mail.
Mobley, however, did not submit a copy of the public-records request. He also did
not submit a copy of the envelope that the records request was mailed in. Because
he did not submit a copy of the envelope, we cannot confirm that the certified-mail
return receipt contains the same tracking number as that on the envelope.
{¶ 14} “[W]hen the evidence on the method-of-delivery of a public-records
request consists of contradictory affidavits or is inconclusive, the requester has not
satisfied his burden under R.C. 149.43(C)(2).” State ex rel. Ware v. Galonski,
2024-Ohio-1064, ¶ 22; see also State ex rel. Ware v. Giavasis, 2020-Ohio-5453,

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¶ 32 (holding that when the evidence concerning delivery of a public-records
request is evenly balanced, the requester has not satisfied the heightened burden of
proof necessary for an award of statutory damages). Here, Mobley submitted as
evidence a certified-mail return receipt. But other than his own affidavit, which the
prosecutor disputes, Mobley has submitted no evidence linking the receipt to a
public-records request.
{¶ 15} This court recently addressed a similar situation in Galonski. In that
case, the relator averred that he had sent a public-records request by certified mail
and submitted a certified-mail return receipt as evidence, but the respondent denied
ever receiving the request. Galonski at ¶ 12, 16-17. This court determined that the
relator had not proved by clear and convincing evidence that he had delivered the
request by certified mail. Id. at ¶ 22. To be sure, in Galonksi, this court cited
another case in which a public office had denied receiving public-records requests
from the relator in Galonski. Id. at ¶ 21, citing Giavasis at ¶ 32-34. But in
Galonksi, the relator also submitted as evidence a copy of the public-records
request, see id. at ¶ 32 (Kennedy, C.J., dissenting), which Mobley has not done
here. We conclude that Mobley, having provided even less evidence than that
provided by the relator in Galonksi, has not proved by clear and convincing
evidence that he transmitted his public-records request by certified mail. And
because he has not done so, we decline to award statutory damages.
{¶ 16} Mobley also requests an award of court costs. Court costs shall be
awarded if “the court orders the public office or the person responsible for the
public record to comply with [R.C. 149.43(B)].” R.C. 149.43(C)(3)(a)(i). Because
we deny the writ, we also decline to award court costs. In addition, Mobley filed
an affidavit of indigency, so he has not incurred court costs.
III. CONCLUSION
{¶ 17} Because the prosecutor’s office has now either provided the records
requested by Mobley, offered to provide Mobley with the records upon prepayment

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of the copying costs, or averred that the records do not exist, we deny Mobley’s
request for a writ of mandamus. We also decline to award Mobley statutory
damages or court costs.
Writ denied.
_________________
Alphonso Mobley Jr., pro se.
Julia R. Bates, Lucas County Prosecuting Attorney, and John A. Borell,
Assistant Prosecuting Attorney, for respondent.
_________________

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11147229. Public record. Not legal advice.