explaining how context applies in the interpretation of written communications
How later courts described this case
- explaining how context applies in the interpretation of written communications
Written by the judges who cited it.
The opinion
[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
ex rel. Howard v. Chief Inspector’s Office, Slip Opinion No. 2026-Ohio-1428.]
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. 2026-OHIO-1428
THE STATE EX REL. HOWARD v. CHIEF INSPECTOR’S O FFICE.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as State ex rel. Howard v. Chief Inspector’s Office, Slip Opinion
No. 2026-Ohio-1428.]
Mandamus—Public-records requests—R.C. 149.43—A public office has a clear
legal duty to produce public records only when it has fair notice that it has
received a public-records request; the requester has the burden to show that
he clearly submitted a public-records request—Whether a request is a
public-records request may depend on the context in which the request was
made—Request for records made in an inmate’s grievance appeal under
Adm.Code 5120-9-31 was not clearly a public-records request—Public
office permitted to argue for first time in litigation that inmate did not
clearly make a public-records request—Writ and requests for statutory
damages and court costs denied.
(No. 2024-1542—Submitted May 13, 2025—Decided April 23, 2026.)
IN MANDAMUS.
SUPREME COURT OF OHIO
__________________
The per curiam opinion below was joined by FISCHER, DEWINE, DETERS,
HAWKINS, and SHANAHAN, JJ. KENNEDY, C.J., concurred in part and dissented in
part, with an opinion joined by BRUNNER, J.
Per Curiam.
{¶ 1} Relator, Devin D. Howard, filed a public-records mandamus action
against respondent, the Ohio Department of Rehabilitation and Correction’s
(“ODRC”) chief inspector’s office (“inspector’s office”).1 Howard asserts in his
mandamus complaint that he included a public-records request in an appeal he filed
with the inspector’s office related to the disposition of an inmate grievance and that
his public-records request went unanswered. The inspector’s office asserts that it
did not interpret Howard’s grievance appeal as containing a public-records request
and, therefore, did not respond to it.
{¶ 2} Howard seeks a writ of mandamus compelling the inspector’s office
to provide him with the work-schedule assignments of two correction officers and
copies of two ODRC policies. In addition, Howard requests statutory damages and
court costs. For the following reasons, we deny the writ and the requests for
statutory damages and court costs. We also deny as moot Howard’s motion to strike
portions of two affidavits submitted as evidence by the inspector’s office.
I. FACTS AND PROCEDURAL HISTORY
{¶ 3} Howard, an inmate at Lake Erie Correctional Institution (“LECI”),
alleges that a correction officer damaged his personal property. Howard filed an
informal complaint about the incident, which eventually escalated to a notification
1. The inspector’s office was created by ODRC in accordance with Adm.Code 5120-9-30, as
authorized by R.C. 5120.06. Among the duties of the inspector’s office is the administration of the
inmate-grievance procedure, which is set forth in Adm.Code 5120-9-31. See Adm.Code 5120-9-
30(C).
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January Term, 2026
of grievance. Grievances of this kind are handled by the correctional institution’s
institutional inspector. Adm.Code 5120-9-29(A). Howard’s institutional inspector
denied his grievance, finding that Howard “ha[d] not provided any information or
evidence to support [his] claim.”
{¶ 4} Dissatisfied, Howard appealed to the inspector’s office of ODRC.
Howard complained in his appeal that the institutional inspector “ha[d] not
described the steps that were taken to investigate” his grievance, as required by
Adm.Code 5120-9-31(J)(2). See Adm.Code 5120-9-31(J)(2) (“The [inspector’s]
written response shall summarize the inmate’s complaint [and] describe what steps
were taken to investigate the complaint and the inspector[’s] findings and
decision.”). He voiced concern that the inspector had not interviewed anyone about
the claimed property damage. He ended his written appeal with “I request the work
schedule assignment[s] of [two named correction officers] from May 23, 2023 to
June 17, 2023. I also request a copy of ODRC Policy 09-INV-01 and 61-PRP-01.”
{¶ 5} The inspector’s office instructed the institutional inspector to review
Howard’s complaint and author a supplemental disposition of Howard’s grievance.
The institutional inspector complied and wrote to Howard that he had conducted
interviews and reviewed security footage to conclude that there was insufficient
evidence to show that a correction officer had damaged Howard’s property.
{¶ 6} That was the end of Howard’s administrative proceedings but the
beginning of this case. Howard filed this mandamus action on November 4, 2024,
and attached to his complaint the grievance form that he alleges contains his public-
records request for the work-schedule assignments and the ODRC policies. The
inspector’s office acknowledges that the attachment is an accurate copy of
Howard’s grievance but contests that it contains a public-records request. Howard
asserts that because the inspector’s office did not respond to his public-records
request within a reasonable period, he is entitled to a writ ordering the inspector’s
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office to produce the requested records, $1,000 in statutory damages, and court
costs.
{¶ 7} The inspector’s office filed an answer, and we issued an alternative
writ setting the schedule for the submission of evidence and the filing of briefs,
2025-Ohio-156. Both Howard and the inspector’s office filed merit briefs and
evidence. Howard did not file a reply brief. He did, however, file a motion to strike
parts of the two affidavits submitted as evidence by the inspector’s office, and the
inspector’s office filed a response to Howard’s motion.
{¶ 8} The inspector’s office submitted two affidavits as evidence. The first
affidavit is from Uriah Melton, an assistant chief inspector, and the second affidavit
is from Rachel Smith, an LECI employee. Both Melton and Smith attest that their
affidavits are based on personal knowledge and that ODRC policies are available
in LECI’s library.
{¶ 9} Smith also attests in her affidavit that physical copies of ODRC Policy
Nos. 09-INV-01 and 61-PRP-01 were provided to Howard after he filed his
mandamus action. The evidence submitted by the inspector’s office includes a
signed receipt acknowledging that both ODRC policies were given to Howard, and
Smith attests that the signature on the receipt is Howard’s.
{¶ 10} Melton attests that in his assistant-chief-inspector role, he reviews
grievance appeals in accordance with Adm.Code 5120-9-31. He further attests that
he did not interpret Howard’s request for the two ODRC policies and the work-
schedule assignments of the two correction officers as a public-records request,
because the grievance-appeal procedure does not include the production of
documents or records related to the inmate’s grievance. Additionally, Melton
attests that (1) the work-schedule assignments of correction officers are
confidential, (2) disclosing the assignments would place the security of the staff
and other inmates in jeopardy, and (3) the assignments could be used by an
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January Term, 2026
incarcerated person to learn staff patterns and formulate an escape plan or otherwise
manipulate or extort correction officers.
{¶ 11} Howard submitted his own affidavit. He attests that he electronically
submitted a public-records request within his grievance appeal to the inspector’s
office. He further attests that he does not have access to the websites through which
the two ODRC policies are available and that the policies are not available “in
tangible form” at LECI.
II. ANALYSIS
A. Howard did not clearly make a public-records request
{¶ 12} Ohio’s Public Records Act, R.C. 149.43, “requires a public office to
make copies of public records available to any person upon request within a
reasonable period of time.” State ex rel. Ware v. Akron, 2021-Ohio-624, ¶ 11; see
also R.C. 149.43(B)(1). A writ of mandamus is an appropriate remedy to compel
a public office to comply with the Public Records Act. State ex rel. Adkins v. Cole,
2025-Ohio-1026, ¶ 6; R.C. 149.43(C)(1). To obtain the writ, Howard must prove
by clear and convincing evidence a clear legal right to the requested records and a
corresponding clear legal duty on the part of the inspector’s office to provide them.
Adkins at ¶ 6. Thus, to meet his burden for mandamus relief, Howard must show
that he clearly submitted a public-records request. See State ex rel. Griffin v. Doe,
2021-Ohio-3626, ¶ 6 (“To meet his burden of proof, [the requester] must show that
he requested a public record pursuant to R.C. 149.43(B)(1) and that the [public
office] did not make the record available in response to that request.”). For the
reasons explained below, we conclude that Howard has failed to clearly show that
he submitted a public-records request to the inspector’s office.
{¶ 13} The Public Records Act does not “‘requir[e] that a requester formally
label a public-records request as a “formal public records request,” see R.C.
149.43(B), and a requester is generally not required to cite a particular rule or
statute when making a request.’” State ex rel. Berry v. Booth, 2024-Ohio-5774,
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SUPREME COURT OF OHIO
¶ 9, quoting State ex rel. Ware v. Dept. of Rehab. & Corr., 2024-Ohio-1015, ¶ 16
(lead opinion). But a public-records requester must “‘identify with reasonable
clarity the records at issue.’” State ex rel. Morgan v. New Lexington, 2006-Ohio-
6365, ¶ 29, quoting State ex rel. Fant v. Tober, 1993 WL 173743, *1 (8th Dist. Apr.
28, 1993). Moreover, “‘it must be clear that the requester is requesting a public
record.’” Berry at ¶ 9, quoting State ex rel. Teagarden v. Igwe, 2024-Ohio-5772,
¶ 20.
{¶ 14} This clarity requirement is a necessary component of the standard
for mandamus relief. To obtain a writ of mandamus, a relator must establish by
clear and convincing evidence that the respondent violated a “‘clear legal duty,’”
Adkins at ¶ 6, quoting State ex rel. Griffin v. Sehlmeyer, 2021-Ohio-1419, ¶ 10; see
also State ex rel. Fed. Homes Properties, Inc. v. Singer, 9 Ohio St.2d 95, 96 (1967).
In the context of a public-records mandamus case, a clear legal duty can arise only
when a respondent has fair notice that it has received a public-records request.
{¶ 15} How one understands a request will often depend on the context in
which the request is made. Saying “hit me” at a blackjack table has a very different
meaning than saying “hit me” during a heated argument. One reason it is important
for a requester to give fair notice to a public office that he is making a public-
records request is because other information-gathering regimes exist. For example,
outside of the Public Records Act, there are the discovery procedures that apply to
civil and criminal litigation. See Civ.R. 26 through 37; Crim.R. 16. Despite both
being means for private persons to gain information, the Public Records Act is
distinct from discovery. See State v. Athon, 2013-Ohio-1956, paragraph one of the
syllabus (stating that the Public Records Act is an independent basis for obtaining
information that “does not supersede the requirements of criminal discovery”);
Stonehill v. Internal Revenue Serv., 558 F.3d 534, 538 (D.C.Cir. 2009) (“The
[Freedom of Information Act’s] disclosure regime . . . is distinct from civil
discovery.”); Am. Bank v. Menasha, 627 F.3d 261, 265 (7th Cir. 2010) (“The case
6
January Term, 2026
law uniformly refuses to define requests . . . under public records laws . . . as
discovery demands . . . .”).
{¶ 16} When a relator is operating in the context of another procedure with
its own set of rules, it will often be reasonable for the recipient of the request to
assume that a requester is asking for documents under those rules. A government
attorney, for example, who receives a request for document production in the
context of a civil case will naturally assume that the Rules of Civil Procedure
govern the request.
{¶ 17} Contrary to the literalist view of the opinion concurring in part and
dissenting in part, “[i]n textual interpretation, context is everything,” Scalia, A
Matter of Interpretation: Federal Courts and the Law, 37 (1997). The opinion
concurring in part and dissenting in part would have us “not look beyond the four
corners” of Howard’s public-records request. Opinion concurring in part and
dissenting in part, ¶ 108. But “modern textualists reject the idea that interpretation
can occur ‘within the four corners’ of a statute.” John F. Manning, The Absurdity
Doctrine, 116 Harv.L.Rev. 2387, 2456 (2003), quoting White v. United States, 191
U.S. 545, 551 (1903). “After all, the meaning of a word depends on the
circumstances in which it is used. . . . To strip a word from its context is to strip
that word of its meaning.” Biden v. Nebraska, 600 U.S. 477, 511 (2023) (Barrett,
J., concurring).
{¶ 18} So, whether a relator has clearly shown that he made a public-records
request may depend on the context in which the request was made. It is the relator’s
burden to show that the public office should have reasonably interpreted his request
as a request under the Public Records Act. Therefore, because Howard admittedly
made his request as part of his grievance appeal, the context of the grievance appeal
is pertinent.
{¶ 19} A grievance appeal is the final step in a three-step procedure for
administratively resolving “inmate complaints related to any aspect of institutional
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life that directly and personally affects the grievant.” Adm.Code 5120-9-31(A) and
(J). This includes a complaint that ODRC damaged the personal property of an
inmate. Adm.Code 5120-9-32(A).
{¶ 20} The grievance procedure begins with the inmate filing an informal
complaint that contains specific information about the event that gave rise to the
complaint. Adm.Code 5120-9-31(J). If the inmate is dissatisfied with the response
to his complaint, he may file a notification of grievance with the institutional
inspector. Adm.Code 5120-9-31(J)(2). The institutional inspector’s response must
“summarize the inmate’s complaint [and] describe what steps were taken to
investigate the complaint and the inspector[’s] findings and decision.” Id. If the
inmate is still dissatisfied with the institution’s response, he can file a grievance
appeal with the inspector’s office. Adm.Code 5120-9-31(J)(3). The grievance
appeal must “contain a clear, concise statement explaining the basis for the appeal”
and is limited to the issues presented in the informal complaint or notification of
grievance. Id.
{¶ 21} Here, the institutional inspector’s response to Howard’s notification
of grievance was that Howard “ha[d] not provided any information or evidence to
support [his] claim,” so he denied Howard’s grievance. As the basis for his appeal,
Howard wrote that the institutional inspector failed to comply with Adm.Code
5120-9-31(J)(2) by omitting from his response what steps were taken to investigate
Howard’s complaint. Howard ended his appeal by requesting the work-schedule
assignments of two correction officers that he said observed the damage to his
property. Howard also asked for copies of ODRC Policy Nos. 09-INV-01 and 61-
PRP-01. Howard asserts that his request for these documents constitutes a public-
records request.
{¶ 22} While what Howard requested—work-schedule assignments and
copies of ODRC policies—might constitute public records if he made a public-
records request, he made his request as part of his grievance appeal. As laid out
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January Term, 2026
above, grievance appeals are limited in scope. There are no discovery provisions
in the inmate-grievance procedure, and the inspector’s office does not produce
documents for the aggrieved inmate as part of the grievance-appeal procedure.
Moreover, only issues raised in an informal complaint or notification of grievance
may be raised in a grievance appeal. Adm.Code 5120-9-31(J)(3). And the
inspector’s office’s sole responsibility in handling grievance appeals is to render a
disposition on the claimed basis for appeal. See Adm.Code 5120-9-30(C)(2). The
inspector’s office fulfilled its duty by ordering the institutional inspector to issue a
supplemental disposition that would comply with Adm.Code 5120-9-31(J)(2).
{¶ 23} The opinion concurring in part and dissenting in part derides us for
“set[ting] aside” the party-presentation principle in finding Howard’s request to not
be a public-records request. Opinion concurring in part and dissenting in part at
¶ 60. Specifically, it argues that a records custodian may not assert “for the first
time in litigation that a public-records request [is] ambiguous.” Id. at ¶ 53. Under
the plain terms of the Public Records Act, a public-records custodian is not
“preclude[d] . . . from relying upon additional reasons or legal authority,” in
addition to the reasons or legal authority provided to the requester when the public-
records request was denied, in defending a mandamus action, R.C. 149.43(B)(3);
see also State ex rel. Ware v. Smith, 2025-Ohio-1856, ¶ 16. Despite this clear
statutory directive, our caselaw has recognized a limited exception to this rule that
bars a public-records custodian from raising an overbreadth argument for the first
time in litigation because it would deny the requester “‘an opportunity to revise the
request by informing the requester of the manner in which records are maintained
by the public office and accessed in the ordinary course’” and thus deny the
requester “the opportunity to cure” his deficient request, State ex rel. Summers v.
Fox, 2020-Ohio-5585, ¶ 74, quoting R.C. 149.43(B)(2). But this exception applies
only to arguments about overbreadth. See id. (only discussing overbreadth); accord
State ex rel. Ames v. Big Walnut Local School Dist. Bd. of Edn., 2026-Ohio-532,
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SUPREME COURT OF OHIO
¶ 19, fn. 1 (“[A] public office may not assert for the first time in litigation that a
public-records request was overbroad.”). Here, the inspector’s office is not arguing
that Howard’s request was overly broad. Rather, it is arguing that it was not clear
that Howard was making a public-records request at all. Contrary to the assertion
by the opinion concurring in part and dissenting in part, we have never held that
such an argument may not be presented for the first time in litigation.
{¶ 24} Howard’s request was embedded in his grievance appeal and came
after his description of his basis for appeal. In this context, Melton’s belief that the
request for the work-schedule assignments and policies was a discovery-like
request as part of the grievance-appeal procedure, and not a request under the Public
Records Act, is reasonable. Howard has thus failed to meet his burden to establish
that it was “‘clear that [he was] requesting a public record,’” Berry, 2024-Ohio-
5774, at ¶ 9, quoting Teagarden, 2024-Ohio-5772, at ¶ 20. Therefore, we deny his
request for a writ of mandamus.
B. Howard’s motion to strike is moot
{¶ 25} Howard filed a motion to strike parts of the two affidavits submitted
as evidence by the inspector’s office. Howard specifically asks that we strike the
parts of Melton’s and Smith’s affidavits in which they attest that ODRC’s policies
are in LECI’s library and available for review by inmates. Howard argues that
neither Melton nor Smith “mention foundational facts which suggest that either of
them has personal knowledge” that ODRC’s policies are available in the library for
inmates to review.
{¶ 26} The assertions made in the affidavits might matter if this court had
decided that Howard made a public-records request. But because we have decided
that Howard did not make a public-records request, these assertions are irrelevant
to our determination that Howard is not entitled to mandamus relief. Therefore, we
deny Howard’s motion to strike as moot.
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January Term, 2026
C. Howard is not entitled to statutory damages
{¶ 27} “A public-records requester may obtain statutory damages ‘if a court
determines that the public office or the person responsible for public records failed
to comply with an obligation’ under R.C. 149.43(B).”2 State ex rel. Mobley v.
Viehweger, 2024-Ohio-4748, ¶ 11. Because Howard has failed to clearly show that
he made a public-records request, he has not shown that the inspector’s office failed
to comply with an obligation under the Public Records Act. Therefore, we deny
Howard’s request for statutory damages.
D. Howard is not entitled to court costs
{¶ 28} Howard also requests court costs. Since Howard filed an affidavit
of indigency, there are no court costs to award. See State ex rel. Woods v. Lawrence
Cty. Sheriff’s Office, 2023-Ohio-1241, ¶ 12. Accordingly, we deny Howard’s
request for court costs.
III. CONCLUSION
{¶ 29} For the foregoing reasons, we deny Howard’s request for a writ of
mandamus compelling the inspector’s office to produce copies of the work-
schedule assignments of two correction officers and ODRC Policy Nos. 09-INV-
01 and 61-PRP-01. We also deny Howard’s requests for statutory damages and
court costs. And we deny Howard’s motion to strike as moot.
Writ denied.
__________________
KENNEDY, C.J., joined by BRUNNER, J., concurring in part and
dissenting in part.
{¶ 30} I agree with the majority that relator, Devin D. Howard, is not
entitled to an award of court costs in this original action. I part ways with the
2. The General Assembly has recently amended R.C. 149.43, most notably in 2024 Sub.H.B. No.
265 (effective Apr. 9, 2025), and some provisions have been renumbered. 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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SUPREME COURT OF OHIO
majority, however, in its conclusion that Howard is not entitled to a writ of
mandamus compelling the production of the public records that Howard requested.
Contrary to the majority’s assertion, Howard did in fact make a public-records
request when he asked for copies of two correction officers’ past work-schedule
assignments and for copies of two Ohio Department of Rehabilitation and
Correction (“ODRC”) policies in a grievance form that he filled out.
{¶ 31} Respondent, ODRC’s chief inspector’s office, failed to comply with
its statutory obligation to promptly and appropriately respond to Howard’s public-
records request. After Howard filed his complaint for a writ of mandamus, an
employee at the correctional institution where Howard is incarcerated provided him
with copies of the two requested ODRC policies. Therefore, the only outstanding
portion of Howard’s public-records request is his request for two correction
officers’ work-schedule assignments from 2023.
{¶ 32} Because this court’s caselaw prohibits a party from raising in the first
instance during litigation that a public-records request is ambiguous or overly
broad, and because the chief inspector’s office failed to meet its burden to prove
that the correction officers’ work-schedule assignments from 2023 are exempt from
disclosure as security records as that term is defined in R.C. 149.433(A)(1), I would
grant a writ of mandamus ordering the chief inspector’s office to either provide
Howard with copies of the work-schedule assignments of the two correction
officers from May 23 through June 17, 2023, or certify to this court that the records
no longer exist. Additionally, because the chief inspector’s office violated R.C.
149.43(B)3 by failing to timely and appropriately respond to Howard’s public-
records request, I would award Howard statutory damages in the amount of $1,000.
3. The General Assembly has recently made amendments to R.C. 149.43, most notably in 2024
Sub.H.B. No. 265 (effective Apr. 9, 2025), and some provisions have been renumbered. 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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January Term, 2026
{¶ 33} Consequently, I concur in part and dissent in part.
I. ANALYSIS
{¶ 34} This case is about whether a request for records in a grievance form
constitutes a public-records request. ODRC’s grievance form is a secure method
for incarcerated persons to communicate with institution staff as part of the inmate-
grievance procedure, which may include informal complaints, grievances,
grievance appeals, and other correspondence to staff. See Adm.Code 5120-9-
31(D); see also Adm.Code 5120-9-31(J). The form “is similar in appearance and
structure to a kite.” State ex rel. Castellon v. Rose, 2025-Ohio-1491, ¶ 45
(Kennedy, C.J., concurring in part and dissenting in part).
{¶ 35} The chief inspector’s office makes four arguments in its merit brief.
First, the chief inspector’s office contends that Howard is not entitled to an award
of statutory damages because his public-records request was “ambiguous, does not
fairly describe the public record, or is a request for information.” Second, the chief
inspector’s office maintains that Howard’s request for a writ of mandamus is moot
because he has now received the records he sought. Third, the chief inspector’s
office claims that it has no duty to produce the 2023 work-schedule assignments of
the two correction officers because those records are exempt from disclosure as
security records under R.C. 143.433(B)(1). Lastly, the chief inspector’s office
argues that even if Howard is entitled to an award of statutory damages, this court
should reduce or decline to award statutory damages under R.C. 149.43(C)(2)
because the chief inspector’s office believed that it complied with the law as it
existed at the time of Howard’s request and that its actions served the public policy
underlying the Public Records Act by interpreting the request as one for
information under the inmate-grievance procedure.
{¶ 36} For ease of discussion, I address the chief inspector’s office’s
arguments out of order.
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SUPREME COURT OF OHIO
A. Howard’s Request for Two Work-Schedule Assignments Is Not Moot
{¶ 37} I agree with the chief inspector’s office’s statement of the law in its
second proposition of law but not its application of the law to this case. An action
for a writ of mandamus is moot when a public office or person responsible for
public records (“records custodian”) produces the records sought. See State ex rel.
Martin v. Greene, 2019-Ohio-1827, ¶ 7, citing State ex rel. Toledo Blade Co. v.
Seneca Cty. Bd. of Commrs., 2008-Ohio-6253, ¶ 43 (when a public office provides
a requestor with the public records sought, the requestor’s public-records
mandamus case becomes moot). Here, however, Howard sought more than just the
two ODRC policies that have been provided to him; he also requested work-
schedule assignments from 2023 for two correction officers. This case therefore is
not moot regarding the request for the work-schedule assignments, and for that
reason, the chief inspector’s office’s second proposition of law is not well-taken.
B. The Chief Inspector’s Office Did Not Establish That the Work-Schedule
Assignments Are Security Records
{¶ 38} Regarding the chief inspector’s office’s third proposition of law—
that it is under no obligation to produce security records that are exempt from
disclosure—it has failed to meet its burden to prove that the work-schedule
assignments of two correction officers from almost three years ago are exempt from
disclosure under that statutory provision.
{¶ 39} “If a [records custodian] withholds a record on the basis of a
statutory exception, the ‘burden of production’ is on the . . . records custodian to
plead and prove facts clearly establishing the applicability of the exemption.”
Welsh-Huggins v. Jefferson Cty. Prosecutor’s Office, 2020-Ohio-5371, ¶ 27.
“Security records” are records that “contain[] information directly used for
protecting or maintaining the security of a public office against attack, interference,
or sabotage.” R.C. 149.433(A)(1). To qualify as a security record under that
definition, the record in question must “contain information directly used to protect
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January Term, 2026
and maintain the security of the public office from attack, interference, or
sabotage.” (Emphasis in original.) Welsh-Huggins at ¶ 82 (Kennedy, J., concurring
in judgment only). Therefore, under R.C. 149.433(A)(1), “a record’s status as a
security record is determined by the public office’s actual use of the information.”
Id. at ¶ 69.
{¶ 40} The records custodian bears the burden of establishing that a record
is exempt from disclosure under Ohio’s Public Records Act, R.C. 149.43. State ex
rel. Rogers v. Dept. of Rehab. & Corr., 2018-Ohio-5111, ¶ 7, 14. “And when a
[records custodian] claims an exception based on risks that are not apparent within
the records themselves, the [records custodian] must provide more than conclusory
statements in affidavits to support its claim.” Id. at ¶ 15.
{¶ 41} This court concluded that the records custodian met that burden in
State ex rel. Cincinnati Enquirer v. Wilson, 2024-Ohio-182. In Wilson, the
Cincinnati Enquirer requested travel records for state troopers who were providing
security for Governor Mike DeWine to attend the Super Bowl. The evidence
“show[ed] that the [Ohio Department of Public Safety] use[d] information in the
[travel] records to plan for the governor’s security on a day-to-day and event-to-
event basis.” Id. at ¶ 29.
{¶ 42} I concurred in this court’s judgment in Wilson but authored a
separate opinion clarifying that the affidavits submitted to establish the exception
showed that the requested records did “contain information identifying the names
and number of members of the governor’s security personnel; dates, times, and
sequencing of the governor’s travel; and patterns related to the governor’s security
detail” and that the affiants “specifically explained . . . that th[e] information
[would] be used ‘when planning future trips with the Governor’ and ‘[would]
inform how the Governor’s security personnel allocate[d] resources’ for the
governor’s safety.” Id. at ¶ 49 (Kennedy, C.J., concurring). Consequently, the
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affidavits proved that the security-records exception applied because they showed
how the records were directly used to maintain the security of a public official.
{¶ 43} In contrast, in Rogers, this court concluded that ODRC did not prove
that a prison’s surveillance-video footage was exempt from disclosure as a security
record. 2018-Ohio-5111 at ¶ 21. In reaching its decision, this court held that
ODRC did not show how the requested video footage fit “squarely within the
exception,” id., because ODRC supported its claim solely with conclusory
statements, id. at ¶ 19. In fact, it did “not offer[] any analysis” explaining why the
exception applied. Id. at ¶ 21. This court suggested that ODRC could have
provided evidence showing that the video footage was “being used in a current
investigation regarding the incident depicted in it” or that the video disclosed
“current security response plans or other protocols,” but it did not do so. Id.
{¶ 44} As in Rogers, the affidavit submitted as evidence in this case does
not explain how the May 23 through June 17, 2023 work-schedule assignments of
two correction officers—one of whom is no longer employed by ODRC—contain
information that is directly used to protect and maintain the security of any public
office from attack, interference, or sabotage.
{¶ 45} In the affidavit, Assistant Chief Inspector Uriah Melton makes
conclusory statements that disclosing work-schedule assignments that are now
almost three years old nonetheless creates a safety risk. According to Melton,
“[a]llowing incarcerated persons to know the work schedules of correction officers
could allow them to know staffing patterns, allowing them to develop escape plans
and other methods of manipulation and extortion of correction officers.” (Emphasis
added).
{¶ 46} The chief inspector’s office has failed to establish how old work-
schedule assignments meet the definition of a security record because Melton does
not state in his affidavit how ODRC directly uses the information in the requested
records to protect and maintain the security of a public office from attack,
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interference, or sabotage. Melton’s averments show only how the information in
the records could be used to threaten the correctional institution, not how the
information is used by the institution to protect itself from threats.
{¶ 47} Moreover, Melton talks about the work-schedule assignments in the
present tense and in general terms. He does not address how almost three-year-old
work-schedule-assignments contain information that is still directly used to protect
the institution from attack, interference, or sabotage. And although it may be true
that work-schedule assignments could be used for manipulating or extorting
correction officers, that does not explain how the information contained in the
work-schedule assignments is directly used for protecting and maintaining the
security of the correctional institution from attack, interference, or sabotage—
especially when one record is for a correction officer who is no longer employed
by ODRC. Again, Melton explains how bad actors could use the information in the
records but not how the public office directly uses that information.
{¶ 48} The chief inspector’s office has the burden to prove that the work-
schedule assignments of two correction officers from May 23 through June 17,
2023, “fall[] squarely within the security-record exception codified in R.C.
149.433(B),” Rogers, 2018-Ohio-5111, at ¶ 19. However, the chief inspector’s
office has failed to meet that burden.
{¶ 49} Because the chief inspector’s office asserts no other basis for its
withholding the work-schedule assignments, Howard is entitled to a writ of
mandamus compelling production of the requested records.
C. Howard Made a Public-Records Request
1. The Chief Inspector’s Office Did Not Properly Raise Its Ambiguity Argument
{¶ 50} In support of its first proposition of law, the chief inspector’s office
argues that Howard is not entitled to statutory damages, because his public-records
request—though fairly describing the records Howard sought—is ambiguous.
According to the chief inspector’s office, because Howard “made no effort to
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separate his request for records from his appeal or distinguish it as a request made
under Ohio’s Public Records Act,” he caused the chief inspector’s office to believe
that he was “seeking information.” And even though Howard was not required to
specifically identify his request as a public-records request, the chief inspector’s
office argues that a request “becomes ambiguous when it is couched or embedded
within another administrative procedure without further distinction.” The heart of
the chief inspector’s office’s argument is that it could not distinguish between
Howard’s grievance appeal and his public-records request, therefore making
Howard’s request for records ambiguous. But this court’s caselaw prohibits the
chief inspector’s office from raising this argument in the first instance in litigation.
{¶ 51} Although the chief inspector’s office conceded in its merit brief that
Howard’s request was “fairly described,” it nonetheless raises for the first time in
this mandamus action that the request was ambiguous. I understand that a records
custodian is permitted to rely on “additional reasons or legal authority in defending
an action” in mandamus, R.C. 149.43(B)(3), but this court has recognized an
exception to this rule.
{¶ 52} In State ex rel. Summers v. Fox, the records custodian denied a
public-records request on the ground that the requester sought privileged material.
2020-Ohio-5585, ¶ 72. After the requester filed a mandamus action, the custodian
abandoned that defense and raised for the first time that the request was overly
broad under R.C. 149.43(B)(2). This court recognized that a records custodian may
deny an overly broad public-records request, Summers at ¶ 73, but that if it does,
the records custodian must “‘provide the requester with an opportunity to revise the
request by informing the requester of the manner in which records are maintained
by the public office and accessed in the ordinary course of the public office’s or
person’s duties,’” id. at ¶ 74, quoting R.C. 149.43(B)(2). This court held that the
records custodian could not raise for the first time in litigation the defense that the
request was overly broad, because that would allow the custodian to avoid his
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statutory duty of providing the requester with an opportunity to revise the request.
Id.
{¶ 53} The same reasoning applies when a public-records custodian asserts
for the first time in litigation that a public-records request was ambiguous. A
records custodian is required to provide a public-records requester with an
opportunity to revise his request “[i]f [the] requester makes an ambiguous or overly
broad request.” (Emphasis added.) R.C. 149.43(B)(2). Summers’s rule that an
overbreadth defense may not be raised for the first time in litigation is based on this
statutory language, and that rule applies equally to an ambiguity defense.
{¶ 54} The majority nonetheless argues in this case that “we have never
held that such an argument [that it was not clear that Howard was making a public-
records request] may not be presented for the first time in litigation.” Majority
opinion, ¶ 23. But the majority never says that Summers was wrongly decided.
And the majority’s argument is disingenuous. While it is true that Summers
involved an overbreadth defense and not one based on the alleged ambiguity of the
request, that is plainly a distinction without a difference. As explained above, the
statute requires a records custodian to provide a public-records requester with an
opportunity to revise both ambiguous and overly broad requests. See R.C.
149.43(B)(2). The same reasoning that this court applied in Summers when
addressing an overbreadth defense therefore applies equally to a defense asserting
that a public-records request is ambiguous—otherwise, a records custodian could
deprive the requester of his statutory right to revise his request.
{¶ 55} So if Howard’s request was ambiguous—something that is hard to
square with the chief inspector’s office’s admission in its merit brief that Howard
“fairly described the records sought”—then the chief inspector’s office had a duty
under R.C. 149.43(B)(2) to “provide [Howard] with an opportunity to revise the
request by informing [him] of the manner in which [ODRC’s] records are
maintained.” It did not do that. Instead, the chief inspector’s office waited until
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after Howard filed the complaint in this case to argue that Howard’s request was
ambiguous. That argument is foreclosed by our precedent.
{¶ 56} Lastly, to the extent that the chief inspector’s office claims that it
believed that Howard’s request appeared to be seeking only information and not
copies of public records, that belief was not reasonable. As explained in more detail
below, the plain language of the request made it abundantly clear that Howard was
requesting documents, not information.
{¶ 57} To avoid the obvious outcome that Howard in fact made a public-
records request, the majority advocates for the chief inspector’s office and
introduces a new argument on its behalf. I turn to that new argument now.
2. The Majority’s Novel Approach
{¶ 58} “‘[O]ur judicial system relies on the principle of party presentation,
and courts should ordinarily decide cases based on issues raised by the parties.’”
Snyder v. Old World Classics, L.L.C., 2025-Ohio-1875, ¶ 4, quoting Epcon
Communities Franchising, L.L.C. v. Wilcox Dev. Group, L.L.C., 2024-Ohio-4989,
¶ 15. “Under the principle of party presentation, ‘we rely on the parties to frame
the issues for decision and assign to courts the role of neutral arbiter of matters the
parties present.’” Id., quoting Greenlaw v. United States, 554 U.S. 237, 243 (2008).
As Judge Richard Posner once explained, “we cannot write a party’s brief,
pronounce ourselves convinced by it, and so rule in the party’s favor. That’s not
how an adversarial system of adjudication works.” Xue Juan Chen v. Holder, 737
F.3d 1084, 1085 (7th Cir. 2013).
{¶ 59} But the party-presentation principle is not “ironclad,” United States
v. Sineneng-Smith, 590 U.S. 371, 376 (2020), and there are exceptions to it. Most
notably, we have recognized that “it is axiomatic that ‘[s]ubject-matter jurisdiction
cannot be waived and is properly raised by this court sua sponte.’” State ex rel.
Dunlap v. Sarko, 2013-Ohio-67, ¶ 13, quoting State v. Davis, 2011-Ohio-5028,
¶ 11. Further, we have the authority and the duty to “say what the law is,” Marbury
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v. Madison, 5 U.S. 137, 177 (1803), so that we must independently determine the
meaning of a constitutional or statutory provision regardless of whether a party has
made a correct argument for what it means, see State ex rel. Cable News Network,
Inc. v. Bellbrook-Sugarcreek Local Schools, 2020-Ohio-5149, ¶ 48 (Kennedy, J.,
dissenting). As Judge Patrick J. Bumatay of the United States Court of Appeals for
the Ninth Circuit said, “judges are not like lemmings, following the parties off of
the jurisprudential cliff.” Patrick J. Bumatay, Opening Address, The Federalist
Society 2025 National Lawyers Convention, https://www.youtube.com/watch
?v=poT1A5Z_Lm8 (accessed Apr. 1, 2026) [https://perma.cc/CE6Z-K7NS].
{¶ 60} But there is no basis to set aside the party-presentation principle here,
as this case boils down to the factual question of whether Howard made a request
for public records. Yet the majority nonetheless raises a novel argument of its own
creation—an argument so novel that the chief inspector’s office did not think of it.
The majority claims that Howard made a discovery-like request for documents
during a grievance appeal, even though there are “no discovery provisions in the
inmate-grievance procedure, and the inspector’s office does not produce documents
for the aggrieved inmate as part of the grievance-appeal procedure.” Majority
opinion at ¶ 22. Therefore, according to the majority, it was reasonable for the chief
inspector’s office to ignore Howard’s request for documents.
{¶ 61} The problem is that the chief inspector’s office never claimed that it
misconstrued Howard’s public-records request as a request for discovery—instead,
the majority dreams up that argument itself. But “no matter the theories we might
conjure up on a party’s behalf, the longstanding party presentation rule confines us
to considering only the arguments raised, not those we could imagine.” Nash v.
Bryce, 157 F.4th 436, 467 (6th Cir. 2025) (Readler, J., dissenting). The majority
would be wise to adhere to the party-presentation principle in this case because it
“helps protect against the creation of accidental or mistaken law. . . . After all, as
each of us should recognize, a ‘dose of judicial humility requires acknowledging
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that even seemingly straightforward legal issues can have hidden wrinkles,’” id.
(Readler, J., dissenting), quoting Su v. Med. Staffing of Am., L.L.C., 2023 WL
3735221, *5 (4th Cir. May 31, 2023) (Richardson, J., dissenting).
{¶ 62} The majority also teases out from the chief inspector’s office’s merit
brief its own argument that “whether a relator has clearly shown that he made a
public-records request may depend on the context in which the request was made”
(emphasis added), majority opinion at ¶ 18.
{¶ 63} Both the majority’s discovery-request and contextual arguments are
contrary to the Public Records Act and patently wrong.
a. The Majority’s Erroneous Conclusion That Howard Made a Discovery
Request
{¶ 64} At the outset, recognize the majority’s concession: while the
majority labels Howard’s request for documents “a discovery-like request,” id. at
¶ 24, the majority concedes that “what Howard requested—work-schedule
assignments and copies of ODRC policies—might constitute public records,” if
those records had been requested separately from Howard’s grievance appeal, id.
at ¶ 22.
{¶ 65} But after declaring it a discovery-like request, the majority
steamrolls to its conclusion that Howard did not make a public-records request and
implies that he should have asked someone else for the records. But that declaration
is wrong in light of the language of Howard’s request, which the majority does not
analyze.
{¶ 66} Below is the request in controversy:
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{¶ 67} The Public Records Act provides that, subject to certain exceptions,
“upon 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.”
R.C. 149.43(B)(1). The majority acknowledges that the Public Records Act does
not require a requester to label a public-records request as a “formal public records
request” and that the requester is generally not required to ““‘cite a particular rule
or statute when making a request.’”” Majority opinion at ¶ 13, quoting State ex rel.
Berry v. Booth, 2024-Ohio-5774, ¶ 9, quoting State ex rel. Ware v. Dept. of Rehab.
& Corr., 2024-Ohio-1015, ¶ 16 (lead opinion).
{¶ 68} The Public Records Act also does not require the use of a set form
or “talismanic language” for a requester to make a public-records request. Berry at
¶ 122 (Kennedy, C.J., concurring in part and dissenting in part). Instead, the
requester must “reasonably identify what public records are being requested” or the
records custodian may deny the request. R.C. 149.43(B)(2) and (3). And we know
that Howard did reasonably identify the requested records because the chief
inspector’s office concedes in its merit brief that the request “fairly described” the
records sought.
{¶ 69} To be sure, Howard’s request for public records is contained in the
same paragraph as Howard’s grievance appeal. But read the words and phrases that
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Howard wrote on the grievance form, paying special attention to the grammar and
punctuation that he uses.
{¶ 70} The first sentences Howard wrote on the grievance form relate to
Howard’s appeal. Howard says:
I spoke to Horvath on or about 6/15/23 (his latest shift in
Superior A/B) between 6:30 pm and 6:45 pm, whereby he stated that
he was unable to complete theft loss report as due to alternating
schedule assignment. However, the reason for escalating is that
inspector of institutional services has not described what steps were
taken to investigate the complaint. See [Adm.Code] 5120-9-
31(J)(2); 5120-9-32(C).
(Emphasis added.)
{¶ 71} Howard begins his grievance appeal by explaining what he says
Horvath told him. But that was not why Howard escalated his grievance. Howard
then transitions by saying “[h]owever.”
{¶ 72} “However” is a common word that should be given its plain and
ordinary meaning. See Alexander v. Buckeye Pipe Line Co., 53 Ohio St.2d 241,
245 (1978) (“[C]ommon words appearing in a written instrument are to be given
their plain and ordinary meaning.”); see also Rose, 2025-Ohio-1491, at ¶ 109
(Kennedy, C.J. concurring in part and dissenting in part) (applying a “plain reading”
of kites in a public-records case). “However” can signal a contrast in the sense of
“on the other hand” or “but.” Webster’s Third New International Dictionary
(2002). Howard uses “however” to transition away from what he said in the first
sentence. “However, the reason for escalating” his grievance, Howard says, is
because the inspector of institutional services did not comply with the Ohio
Administrative Code. According to Howard, the inspector of institutional services
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did not describe “what steps were taken to investigate the complaint” in accordance
with Adm.Code 5120-9-31(J)(2) and 5120-9-32(C). In support of his position,
Howard states, “No reference was made as to interviews of inmate Barrino, Haynes
(or Hayes), Horvath, or myself.”
{¶ 73} Howard’s analysis of the inspector of institutional services’ report
was correct because Melton modified the decision and ordered the inspector of
institutional services to “complete a review of [Howard’s appeal] and author a
SUPPLEMENTAL DISPOSITION within the next 14 days.” (Capitalization in
original).
{¶ 74} The second matter addressed by Howard on the grievance form is
his request for public records. He sets the public-records request apart from the
appeal by using the word “additionally”: “Additionally, I request the work schedule
assignment (the unit where assigned and time and dates) of C.O. Horvath and C.O.
Haynes (or Hayes) . . . .” (Emphasis added.)
{¶ 75} “Additionally” is also a common word that is accorded its plain and
ordinary meaning. See Alexander, 53 Ohio St.2d at 245-246. By using
“additionally,” Howard referred to something more than or other than his grievance
appeal—i.e., in addition to the chief inspector’s office hearing his appeal, he wanted
something else, namely, the work-schedule assignments of two correction officers.
See Webster’s Third New International Dictionary (2002) (defining “additionally”
as “in or by way of addition”). By using “additionally,” Howard signaled a
transition from one thought (his grievance appeal) to another (his public-records
request).
{¶ 76} Howard also used the word “request.” This tells us something.
Notably, in the majority opinion “request” is used 28 times in the phrase “public-
records request.” That phrase has been used countless times in this court’s
opinions. “Public-records request” is essentially a term of art. So when Howard
used the word “request” on the grievance form, any public-service employee who
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works with records should be put on alert that a public-records request has been
made. Notably, the version of ODRC Policy No. 07-ORD-02 in effect when
Howard made his request told all ODRC employees to “‘familiarize themselves
with the records considered “public” and “non-public” by ODRC,’” because “they
might be called upon to ‘[d]etermin[e] whether a record is a public record.’”
(Bracketed text added in Berry.) Berry, 2024-Ohio-5774, at ¶ 53 (Kennedy, C.J.,
concurring in part and dissenting in part), quoting former ODRC Policy No. 07-
ORD-02(VI)(A)(2) (effective Apr. 1, 2021).
{¶ 77} If there was any uncertainty about whether Howard was asking for
public records, that uncertainty was dispelled with Howard’s next sentence: “I also
request a copy of ODRC Policy 09-INV-01 and 01-PRP-01.” (Emphasis added.)
{¶ 78} The two italicized words are important here. The word “also”
creates a connection to the prior sentence. Howard is saying that “similarly” to the
request he made for the work-schedule assignments, he also would like a copy of
two of ODRC’s policies. See Webster’s Third New International Dictionary (2002)
(defining “also”). This court has recognized that asking for a “copy” of a record is
a clear enough request for a public record. See Berry at ¶ 9; accord Ware, 2024-
Ohio-1015, at ¶ 15 (lead opinion).
{¶ 79} This court’s interpretation of a public-records request—just like its
interpretation of a constitutional, statutory, or contract provision—should be based
on the plain meaning of the text. See State ex rel. Sylvania Home Tel. Co. v.
Richards, 94 Ohio St. 287, 294 (1916) (construing the Ohio Constitution); Lingle
v. State, 2020-Ohio-6788, ¶ 14-15 (construing a statute); Alexander, 53 Ohio St.2d
at 245-246 (construing a contract); see also State ex rel. Berry v. Indus. Comm.,
2025-Ohio-4720, ¶ 32 (“Interpreting text involving common words used in their
ordinary sense is a task” routinely performed by courts.); Rose, 2025-Ohio-1491,
at ¶ 109 (Kennedy, C.J. concurring in part and dissenting in part) (referring to a
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plain reading of a kite). This is essential to our role as neutral arbiters of fact and
law.
{¶ 80} But in its quest to achieve a specific outcome on behalf of the chief
inspector’s office, the majority gives only lip service to the words of the Public
Records Act. It recognizes that Howard requested something. And it
acknowledges that the documents Howard requested could be public records
subject to disclosure. But as I understand its argument, the majority believes that
the chief inspector’s office lacked “fair notice,” majority opinion at ¶ 14, that
Howard had submitted a public-records request because the request appeared to be
a discovery-like demand for documents as part of his grievance appeal even though
“the [chief] inspector’s office does not produce documents for the aggrieved inmate
as part of the grievance-appeal procedure,” id. at ¶ 22.
{¶ 81} The majority is essentially saying that because the chief inspector’s
office does not provide discovery during a grievance appeal, it could reasonably
assume that any request for documents made in connection with a grievance appeal
is a demand for discovery that it can ignore. That is a non sequitur. If discovery is
not available in a grievance-appeal procedure, then how could Melton reasonably
think that Howard made a discovery request? That is, if Melton was not expecting
a discovery request, why would he assume that Howard had made one? But in any
case, no one could reasonably mistake Howard’s request for the work-schedule
assignments of two correction officers and for two ODRC policies as a demand for
discovery. As explained above, Howard plainly made a public-records request.
{¶ 82} Under the surface of the majority’s reasoning is a belief that Howard
submitted his public-records request to the wrong person: Melton avers that he does
not produce documents during grievance appeals; so therefore, it seems to the
majority, any public-records request had to be made through different channels.
That conclusion, however, is not supported by the plain language of the Public
Records Act.
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{¶ 83} As this court explained long ago, “[t]he question is not what did the
general assembly intend to enact, but what is the meaning of that which it did
enact.” Slingluff v. Weaver, 66 Ohio St. 621 (1902), paragraph two of the syllabus.
Undefined words in a statute “are to be given the meaning that proper grammar and
usage would assign them,” Scalia & Garner, Reading Law: The Interpretation of
Legal Texts, 140 (2012).
{¶ 84} The Public Records Act identifies two entities from which a public-
records requestor may obtain a public record: “a public office or person responsible
for public records,” R.C. 149.43(B)(1). To my knowledge, this court has never said
that this language is ambiguous or of questionable meaning.
{¶ 85} The “‘use of the word “or,” a disjunctive term, signifies the presence
of alternatives.’” Berry, 2024-Ohio-5774, at ¶ 49 (Kennedy, C.J., concurring in
part and dissenting in part), quoting In re Estate of Centorbi, 2011-Ohio-2267,
¶ 18. “It expresses the existence of a choice between two mutually exclusive
possibilities; only one of the two requirements needs to be satisfied.” State ex rel.
Teagarden v. Igwe, 2024-Ohio-5772, ¶ 67 (Kennedy, C.J., concurring in part and
dissenting in part); see also Reading Law at 116 (“Under the
conjunctive/disjunctive canon, and combines items while or creates alternatives.”
[Italics in original.]). “The statute therefore speaks in terms of two entities that
must respond to a public-records request: the public office itself or a person
responsible for public records.” Berry at ¶ 49 (Kennedy, C.J., concurring in part
and dissenting in part). It follows that a requester may ask for a public record from
either the public office or a person responsible for the public records being sought.
{¶ 86} As used in the Public Records Act, “public office” means as “any
state agency . . . or entity established by the laws of this state for the exercise of any
function of government.” R.C. 149.011(A). Under this definition, the chief
inspector’s office is a public office subject to the Public Records Act because it was
established by law. See R.C. 5120.06(B); Adm.Code 5120-9-30. Here, Howard
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made a public-records request in an electronic submission directed to a public
office—the chief inspector’s office. Tellingly, the chief inspector’s office never
argues that it does not maintain the records that Howard requested or that it does
not have access to them. It therefore had an obligation to fulfill Howard’s request.
{¶ 87} So even if Melton did not have the ability to fulfill Howard’s public-
records request himself because he does not produce documents as part of the
grievance-appeal procedure, that did not relieve the chief inspector’s office of its
duty to respond to the public-records request. R.C. 149.43(B)(1) imposes on “a
public office or person responsible for public records” a duty to make copies of
requested public records available to the requestor.
{¶ 88} As I have previously explained,
when an employee of a public office or any person responsible for
the public office’s public records receives a public-records request,
a joint duty arises for either the public office or a person responsible
for public records to respond to it. And since one or the other must
respond, the failure of one does not excuse the failure of the other.
Berry, 2024-Ohio-5774, at ¶ 51 (Kennedy, C.J., concurring in part and dissenting
in part). That means that even if Melton could not fulfill the request himself, the
chief inspector’s office still was obliged to ensure that the request got fulfilled. The
chief inspector’s office could not ignore the public-records request simply because
it was sent to the wrong person within the office. See id. at ¶ 54 (Kennedy, C.J.,
concurring in part and dissenting in part).
{¶ 89} Building on its discovery-request argument, the majority then asserts
on behalf of the chief inspector’s office that the context in which the request was
made matters. Context does matter when construing the meaning of words, but not
in the way the majority contends.
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b. Building on the Chief Inspector’s Office’s Argument, the Majority Declares
That Context Matters
{¶ 90} The majority asserts that the “context in which the request is made”
matters. Majority opinion at ¶ 15. However, the majority and I rely on different
concepts of context. I am writing about the context of the language of the request
within the document to be construed. The majority looks outside the document to
the factual context of its creation.
{¶ 91} In distilling the meaning of a legal instrument, we are constrained to
look for it first within the four corners of the instrument. That is not literalism but
is instead in line with “our often-expressed commitment to apply the plain and
ordinary meaning of [a] text,” Stingray Pressure Pumping, L.L.C. v. Harris, 2023-
Ohio-2598, ¶ 20. When language conveys a clear and definite meaning, there is no
need to go beyond the words on the page. See id; In re Adoption of A.C.B., 2020-
Ohio-629, ¶ 8 (lead opinion) (“The starting point—and because the language is
clear, the ending point—for our analysis is the text of the statute.”); Food Marketing
Inst. v. Argus Leader Media, 588 U.S. 427, 436 (2019) (“In statutory interpretation
disputes, a court’s proper starting point lies in a careful examination of the ordinary
meaning and structure of the law itself. . . . Where, as here, that examination yields
a clear answer, judges must stop.”).
{¶ 92} Now, of course, in deciding the meaning of words and sentences, we
need to know the context in which they are used—we look to “discern literal
meaning in context,” Scalia & Garner, Reading Law at 40; see also R.C. 1.42
(“Words and phrases shall be read in context . . . .”).
{¶ 93} So, for example, even using the dictionary requires an understanding
of the context of words. Take the word “copy” as used in Howard’s public-records
request. “Copy” can mean a reproduction of a document, but it can also mean
something to be imitated, like a model. See Webster’s Third New International
Dictionary (2002). Reading the word “copy” in the context of the sentence
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requesting a copy of two policies reveals that Howard is seeking a reproduction,
not the template for the policies.
{¶ 94} Context also matters in the sense that a document may be made up
of interrelated parts that need to be read in conjunction with one another. See
Reading Law at 167. So “[i]n ascertaining the plain meaning of the statute,” for
example, “the court must look to the particular statutory language at issue, as well
as the language and design of the statute as a whole.” K Mart Corp. v. Cartier, Inc.,
486 U.S. 281, 291 (1988).
{¶ 95} Examining the context of words used in a text and interpreting them
is inherent in reading and understanding language. See Scalia & Garner, Reading
Law at 53; id. at 56 (“words are given meaning by their context”). But that is not
what the majority is doing in this case.
{¶ 96} Remember that in the case of statutory interpretation under the plain-
meaning rule, “if the text of a statute is unambiguous, it should be applied by its
terms without recourse to policy arguments, legislative history, or any other matter
extraneous to the text.” (Emphasis added.) Id. at 436. “In other words, when the
statutory language is unambiguous, courts should not rely on extrinsic information
to discern the meaning of the statute.” (Emphasis added.) Gabbard v. Madison
Local School Dist. Bd. of Edn., 2021-Ohio-2067, ¶ 119 (DeWine, J., dissenting).
“‘[E]xtrinsic aids to construction’ may be used ‘to solve, but not to create an
ambiguity.’” Chamber of Commerce of the United States v. Whiting, 563 U.S. 582,
599 (2011), quoting United States v. Shreveport Grain & Elevator Co., 287 U.S.
77, 83 (1932).
{¶ 97} Similar rules apply to construing the language of other legal
instruments, such as a contract. We have held that “[w]hen contractual language is
clear, we look no further than the writing itself to determine the parties’ intent.”
Neuro-Communication Servs., Inc. v. Cincinnati Ins. Co., 2022-Ohio-4379, ¶ 13.
That is, “where there is no ambiguity, a foray into extrinsic evidence is
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inappropriate.” Tera, L.L.C. v. Rice Drilling D, L.L.C., 2024-Ohio-1945, ¶ 37
(DeWine, J., dissenting). In those circumstances, a court cannot resort to the
external, factual context of contract formation when the instrument’s terms are
unambiguous. See Lutz v. Chesapeake Appalachia, L.L.C., 2016-Ohio-7549,
¶ 9-10.
{¶ 98} In this case, we are asked to decide whether Howard made a public-
records request. That involves textual analysis similar to interpreting a statute,
contract, or other text. In all these cases, we are simply reading words on a page
and determining their meaning. As explained above, based on the language
Howard used, he plainly requested copies of public records. I get there by using
intrinsic linguistic tools of interpretation, see Gabbard at ¶ 120 (DeWine, J.,
dissenting), to locate the plain meaning of the words Howard used. The majority
tellingly neither interprets the language of Howard’s request nor asserts that the
language he used is ambiguous.
{¶ 99} This is where the majority goes astray: it looks to external
information regarding the process of Howard’s making his request to find
ambiguity in the text of the request. That is no different than impermissibly looking
to “the circumstances surrounding the parties at the time the contract was made,”
Lutz at ¶ 9, in reading an unambiguous contract or considering “outside sources like
legislative history,” Scalia & Garner, Reading Law at 370, in construing an
unambiguous statute. The majority unnecessarily goes beyond the text of the
request and looks at extrinsic information—the factual circumstances of Howard’s
making the request—to explain why it believes Howard’s request was confusing.
{¶ 100} The majority therefore takes an unambiguous text and considers
external circumstances to find that the text is ambiguous. That is backwards. We
do not start from an unambiguous text and work our way back to finding ambiguity
based on extrinsic information. When text is plain and unambiguous on its face,
we go no further. We do not go beyond the four corners of the document containing
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the text to determine whether it means something different than its words convey.
When courts do go beyond the plain language of the text, it is a sure sign of an
outcome-driven determination.
{¶ 101} Any reader should have known that Howard had requested public
records just by looking at the words he wrote. The request was received by a public
office, and that office was obligated to provide Howard with copies of the requested
public records within a reasonable time. See R.C. 149.43(B)(1). The fact that
Melton unreasonably thought that Howard had requested only information did not
absolve the chief inspector’s office of its duty to fulfill the request. The majority
errs in using information extrinsic to the text to hold that Howard did not prove that
he made a public-records request.
{¶ 102} In its analysis, the majority also adds something new to the
statute—that the “context in which [a records] request is made” must show that a
records custodian had “fair notice” that it received a public-records request,
majority opinion at ¶ 14-15. But that new standard is found nowhere in the
unambiguous language of the Public Records Act or this court’s interpretation of
it. And why is fair notice the standard? Why not require something more, like
actual notice? Or why not require something less, like constructive notice? The
majority does not tell us; it just plucks this new fair-notice standard from the air,
without any briefing on the subject or explaining from where it is derived. This
court has held that it is reversible error for a court of appeals to decide cases based
on an unbriefed issue without giving the parties an opportunity to brief that issue.
State v. Tate, 2014-Ohio-3667, ¶ 21. We should hold ourselves to that same
standard.
{¶ 103} The majority seems to expand on the chief inspector’s office’s
argument in its merit brief that “[w]hile the Court has held that requesters are not
required to specifically identify their requests as a public-records request, their
request becomes ambiguous when it is couched or embedded within another
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administrative procedure without further distinction.” Again, that argument
suggests that this court should be looking to the factual context in which the request
is made—therefore going beyond the four corners of the request itself without first
determining that the request is ambiguous. And the majority builds on that
argument, holding that the factual context in which a request is made can trump the
plain language of the request itself. It is odd that jurists who pride themselves on
their textualist judicial philosophy in all other cases of judicial construction would
abandon that textualism when it comes to reading public-records requests.
{¶ 104} How the majority applies “context matters” is contrary to the plain
text of the Public Records Act, which requires a requester only to “reasonably
identify what public records are being requested,” R.C. 143.49(B)(2). Ohio’s
public-records law does not require a requester, when making an otherwise
unambiguous public-records request, to foresee a records custodian’s perceptions
about the factual context of the request.
{¶ 105} The Public Records Act has existed since 1963. See Am.Sub.H.B.
No. 187, 130 Ohio Laws, Part I, 155, 1644. My review of this court’s precedent
proves to me that when determining whether a requester “reasonably” identified the
records being sought, this court has looked to the four corners of the request. That
is a problem for the majority here because ODRC admits in its merit brief that
“[t]here is no doubt [that Howard] fairly described the records he sought.” To
overcome that concession, the majority makes a seismic shift in Ohio’s public-
records caselaw by changing the way this court evaluates public-records requests
under the cover of “context matters.”
{¶ 106} Mark my words: the majority’s decision today to declare that the
factual context surrounding a request trumps the plain language of a public-records
request when determining whether a requester “reasonably” identified the records
sought will bring a never-ending avalanche of complaints for writs of mandamus
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when records custodians deny public-records requests because the “context” in
which the request was made was ambiguous.
{¶ 107} But if what the majority really wants is to declare that a valid
public-records request must be in a single-source communication—in other words,
that it cannot be included with any other communication that is transmitted to a
public office—then the majority should say that, even though there is no authority
for that in the Public Records Act.
{¶ 108} For the reasons stated above, I would not look beyond the four
corners of Howard’s unambiguous public-records request. Because the chief
inspector’s office has not provided all the records requested, I would grant Howard
the requested writ of mandamus.
D. Howard is Entitled to Statutory Damages
{¶ 109} In the chief inspector’s office’s fourth proposition of law, it argues
that this court should reduce or deny statutory damages because (1) based on
caselaw at the time Melton responded to Howard’s request, Melton reasonably
believed that his actions “did not constitute a failure to comply” with R.C.
149.43(B), and (2) Melton reasonably believed that his conduct served the public
policy underlying the Public Records Act by interpreting Howard’s request as a
request for information under the inmate-grievance procedure.
{¶ 110} Under the Public Records Act, a records custodian, upon a request
by “any” person for a public record, is required to make copies available to the
requester within a reasonable time. R.C. 149.43(B)(1). However, if the request is
overly broad or ambiguous, the records custodian is required to inform the requester
how the records are maintained and accessed by the public office and provide the
requester with an opportunity to revise the request. R.C. 149.43(B)(2). If the
records custodian denies the request, the custodian must explain to the requester
why the request was denied, R.C. 149.43(B)(3), and the explanation must be in
writing if the initial request was made in writing—as was the case here. The chief
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inspector’s office did none of these things. Therefore, the chief inspector’s office
violated R.C. 149.43(B), and Howard is entitled to statutory damages in the amount
of $1,000. See R.C. 149.43(C)(2).
{¶ 111} The chief inspector’s office makes three arguments in support of its
position that statutory damages should be reduced or denied in this case. First, it
argues that Howard requested only information. However, as explained above, it
was unreasonable for the chief inspector’s office to treat Howard’s public-records
request as a request for information. Second, the chief inspector’s office argues
that Howard never told it that he was “dissatisfied with [Melton’s] response.” Yet
nothing in R.C. 149.43 requires Howard to do that. And third, the chief inspector’s
office argues that ODRC’s policies are “readily available at the libraries of all
correctional institutions” that house incarcerated persons. But the fact that one of
the records Howard requested is available in ODRC’s libraries does not absolve the
chief inspector’s office of the duty to respond to the public-records request that
Howard directed to it specifically.
{¶ 112} In short, none of the chief inspector’s office’s arguments provide a
basis to reduce the award of statutory damages under R.C. 149.43(C)(2).
Consequently, Howard is entitled to the full amount of $1,000. See id.
II. CONCLUSION
{¶ 113} “‘“[P]ublic records are the people’s records, and . . . the officials
in whose custody they happen to be are merely trustees for the people.”’” State ex
rel. Natl. Broadcasting Co., Inc. v. Cleveland, 38 Ohio St.3d 79, 81 (1988), quoting
Dayton Newspapers v. Dayton, 45 Ohio St.2d 107, 109 (1976), quoting State ex rel.
Patterson v. Ayers, 171 Ohio St. 369, 371 (1960). “Public records are one portal
through which the people observe their government, ensuring its accountability,
integrity, and equity while minimizing sovereign mischief and malfeasance.” Kish
v. Akron, 2006-Ohio-1244, ¶ 16.
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{¶ 114} Before the case at hand, under Ohio law, the “context” in which a
request was made—i.e., what happened beyond the four corners of the request—
did not matter. The plain language of the request determined whether a request was
a public-records request. Today, however, the majority does not apply the Public
Records Act—it rewrites it. And the seismic shift the majority makes in
interpreting the Public Records Act will not settle the law; it will cause upheaval—
upheaval that was avoidable had the majority simply applied the plain language of
the statute and this court’s precedent.
{¶ 115} After Howard filed this case seeking a writ of mandamus, an
employee at Lake Erie Correctional Institution provided Howard with copies of the
two ODRC policies that he requested. That left outstanding Howard’s public-
records request for the 2023 work-schedule assignments of two correction officers.
{¶ 116} Applying the plain text of the statute and this court’s precedent, I
would grant a writ of mandamus ordering the chief inspector’s office to provide
Howard with copies of those work-schedule assignments or to certify to this court
that those records no longer exist. I would also award Howard statutory damages
in the amount of $1,000.
{¶ 117} Because the majority does otherwise, I concur in part and dissent
in part.
__________________
Devin D. Howard, pro se.
Dave Yost, Attorney General, and D. Chadd McKitrick and Adam Beckler,
Assistant Attorneys General, for respondent.
__________________
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