The opinion
[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
ex rel. Ware v. Kurt, Slip Opinion No. 2022-Ohio-1627.]
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. 2022-OHIO-1627
STATE EX REL. WARE, APPELLANT, v. KURT, APPELLEE.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as State ex rel. Ware v. Kurt, Slip Opinion No. 2022-Ohio-1625.]
Mandamus—Public Records Act—Rules of Superintendence for the Courts of
Ohio—Statutory damages—The Public Records Act, not the Rules of
Superintendence, governs a request for the production of documents
pertaining to the operations, procedures, and policies of a clerk of courts’
office—The Public Records Act does not impose a timeliness requirement
for responding to a public-records request made under R.C. 149.43(B)(3)—
Judgment affirmed in part, reversed in part, and cause remanded.
(No. 2021-0823—Submitted January 25, 2022—Decided May 18, 2022.)
APPEAL from the Court of Appeals for Summit County, No. 29622,
2021-Ohio-2025.
__________________
Per Curiam.
{¶ 1} Appellant, Kimani Ware, an inmate at the Trumbull Correctional
January Term, 2022
Institution, filed a complaint for a writ of mandamus in the Ninth District Court of
Appeals against appellee, Summit County Clerk of Courts Sandra Kurt. Ware seeks
to compel Kurt to produce certain records under the Public Records Act, R.C.
149.43. The Ninth District granted summary judgment in Kurt’s favor, holding that
the proper vehicle by which to obtain all but one of the documents Ware requested
is the Rules of Superintendence for the Courts of Ohio. As to the one requested
document that the court of appeals found subject to the Public Records Act, the
court rejected Ware’s request because he did not comply with R.C. 149.43(B)(8),
which requires the sentencing court to approve certain public-records requests
made by inmates.
{¶ 2} Ware appeals. For the reasons discussed below, we affirm the court
of appeals’ judgment in part, reverse in part, and remand for further consideration.
I. FACTS AND PROCEDURAL BACKGROUND
{¶ 3} In a December 2019 complaint for a writ of mandamus, Ware alleged
that he sent a total of ten public-records requests in January 2019 by certified mail
to the Summit County Clerk of Courts’ office seeking the production of 37 different
documents. He requested documents related to clerk’s office employees, policies,
and budget information, as well as grand-jury reports, certain oaths of office, the
dockets of a specific judge for a specified period, and the transcript of a 9-1-1 call
in his own criminal case. Ware alleged that Kurt did not respond to his requests,
and he sought statutory damages under R.C. 149.43(C) for the alleged failure to
produce the requested records.
{¶ 4} Kurt filed an answer and a motion for summary judgment. In her
motion for summary judgment, Kurt argued that the complaint should be dismissed
as moot because she had either provided Ware with the requested documents or
explained why she was unable to do so. Ware filed a reply to Kurt’s motion and
his own motion for summary judgment. He admitted receiving some of the
documents that he had requested but maintained that Kurt failed to provide
2
January Term, 2022
everything that he had requested. Ware also argued that he was entitled to statutory
damages because Kurt had acted in bad faith, ignoring his January 2019 public-
records requests and failing to promptly provide all the documents that are
responsive to those requests.
{¶ 5} After reviewing the list of requested documents, the court of appeals
found that Ware had requested only one record—the transcript of a 9-1-1 call in his
own criminal case—that was subject to the Public Records Act. As to this record,
the court held that Ware was not entitled to relief in mandamus for two reasons:
(1) Kurt did not have possession of the transcript of the 9-1-1 call from Ware’s
criminal case and had informed Ware of that fact and (2) even if Kurt did have the
transcript, Ware failed to obtain authorization from his sentencing judge to request
that record as required by R.C. 149.43(B)(8).
{¶ 6} As to the remaining records requests, the court of appeals found that
Ware had requested various policies, schedules, manuals, and employee
information from the clerk of courts that fell “ ‘squarely within the definition of
administrative records under Sup.R. 44(G)(1).’ ” 2021-Ohio-2025, 173 N.E.3d
1268, ¶ 13, quoting State ex rel. Perry v. Cleveland Hts. Mun. Clerk of Courts, 8th
Dist. Cuyahoga No. 109916, 2020-Ohio-5193, ¶ 7. The court also found that the
“other records” Ware had requested were “court records” under Sup.R. 44(B).
2021-Ohio-2025 at ¶ 13. Concluding that Ware should have sought these records
under Sup.R. 44 through 47, rather than under the Public Records Act, and that
Ware had failed to comply with R.C. 149.43(B)(8) regarding his request for the
transcript of the 9-1-1 call, the court granted summary judgment in Kurt’s favor.
The court of appeals also denied Ware’s request for statutory damages under R.C.
149.43(C)(2).
{¶ 7} Ware appealed to this court as of right.
3
January Term, 2022
II. ANALYSIS
{¶ 8} Ware advances three propositions of law in support of reversing the
Ninth District’s decision granting summary judgment. We review decisions of the
court of appeals granting summary judgment de novo. Smith v. McBride, 130 Ohio
St.3d 51, 2011-Ohio-4674, 955 N.E.2d 954, ¶ 12. “Summary judgment is
appropriate when an examination of all relevant materials filed in the action reveals
that ‘there is no genuine issue as to any material fact and that the moving party is
entitled to judgment as a matter of law.’ ” Id., quoting Civ.R. 56(C).
A. Proposition of law Nos. 1 and No. 2:
Whether the Ninth District erred in applying the Rules of Superintendence to
all but one of the public-records requests
{¶ 9} Ware argues in his first proposition of law that the court of appeals
erred when it found that Sup.R. 44 through 47, rather than R.C. 149.43(B)(1), apply
to his public-records requests. In his second proposition of law, Ware contends that
the court of appeals misinterpreted State ex rel. Parisi v. Dayton Bar Assn. Certified
Grievance Commt., 159 Ohio St.3d 211, 2019-Ohio-5157, 150 N.E.3d 43, in
finding that the requested documents fell under the Rules of Superintendence.
Ware’s first two propositions of law are well taken in part. Although some of the
requested records do fall under the Rules of Superintendence, the Public Records
Act governs most of Ware’s document requests.
{¶ 10} The threshold issue in public-records cases is whether the Public
Records Act or the Rules of Superintendence govern the request. Parisi at ¶ 19.
We must conduct this inquiry “even if the issue of the appropriate vehicle is not
raised by the parties or by the lower courts.” Id. at ¶ 20.
{¶ 11} The Public Records Act requires a public office to make copies of
public records available to any person on request, within a reasonable period. R.C.
149.43(B)(1). But when a requester seeks public records from a court, the Rules of
Superintendence generally apply. Parisi at ¶ 21-27 (the Rules of Superintendence
4
January Term, 2022
apply to requests for documents in attorney-discipline cases); State ex rel. Parker
Bey v. Byrd, 160 Ohio St.3d 141, 2020-Ohio-2766, 154 N.E.3d 57, ¶ 11-15 (the
Rules of Superintendence apply to access case documents only in cases commenced
on or after July 1, 2009).
{¶ 12} Mandamus is the appropriate remedy to compel compliance with the
Public Records Act. State ex rel. Physicians Commt. for Responsible Medicine v.
Ohio State Univ. Bd. of Trustees, 108 Ohio St.3d 288, 2006-Ohio-903, 843 N.E.2d
174, ¶ 6. Mandamus is also the correct method by which to compel responses under
the Rules of Superintendence. Sup.R. 47(B). Accordingly, the method by which a
requesting party seeks to obtain public records in mandamus is significant. If the
requester seeks public records through the incorrect vehicle, then he or she is not
entitled to receive the records through a mandamus action. Parisi, 159 Ohio St.3d
211, 2019-Ohio-5157, 150 N.E.3d 43, at ¶ 21.
{¶ 13} Ware requested 37 documents from Kurt, and he contends that all
the requested documents are public records under R.C. 149.43. The court of
appeals held that Ware’s requests—except for the transcript of the 9-1-1 call in his
criminal case—did not fall under the Public Records Act, because Ware sought
access to “court records” that fell under the Rules of Superintendence.1 This was
error.
1. Ware’s requests for policies, schedules, manuals, and employee information for
the clerk of courts
{¶ 14} The superintendence rules identify two types of “court records”:
“case documents” and “administrative documents.” Sup.R. 44(B). A “case
document” is a document or information submitted to a court or filed with a clerk
of courts in a specific case (e.g., exhibits, pleadings, orders), as well as any
1. Ware requested the transcript of a 9-1-1 call that was used in his 2003 criminal case. The court
of appeals found that this document was subject to the Public Records Act. Ware did not challenge
that determination on appeal.
5
January Term, 2022
document prepared by the court or the clerk of courts in a judicial action or
proceeding (e.g., journals, dockets). Sup.R. 44(C)(1). An “administrative
document” is “a document and information in a document created, received, or
maintained by a court that serves to record the administrative, fiscal, personnel, or
management functions, policies, decisions, procedures, operations, organization, or
other activities of the court,” subject to exclusions not relevant here. (Emphasis
added.) Sup.R. 44(G)(1).
{¶ 15} In this case, the court of appeals found that the policies, schedules,
manuals, and employee information that Ware had requested from the clerk of
courts fell “squarely within the definition of administrative records in Sup.R.
44(G)(1).” 2021-Ohio-2025, 173 N.E.3d 1268, at ¶ 13, quoting Perry, 2020-Ohio-
5193, at ¶ 7. But the administrative documents that Ware sought were not records
“of [a] court” as contemplated by Sup.R. 44(G)(1). Although a clerk of courts does
have possession of some “court records” that are governed by the superintendence
rules, not every document held by the clerk of courts falls under those rules. The
Summit County clerk of courts is an elected official. R.C. 2303.01. And the office
of the clerk of courts “ ‘is an office separate and distinct from that of judge of the
common pleas court.’ ” State v. Leibold, 2d Dist. Montgomery No. 25124, 2013-
Ohio-1371, ¶ 45, quoting State ex rel. Smith v. Culver, 186 Ohio App.3d 534, 2010-
Ohio-339, 929 N.E.2d 465, ¶ 43. Therefore, we find that the court of appeals erred
in holding that the documents Ware requested pertaining to the operations,
procedures, and policies of the clerk of courts’ office were governed by the Rules
of Superintendence. See, e.g., State ex rel. Ware v. Giavasis, 163 Ohio St.3d 359,
2020-Ohio-5453, 170 N.E.3d 788; State ex rel. Perry v. Byrd, 8th Dist. Cuyahoga
No. 109006, 2020-Ohio-34, ¶ 7, 11 (holding that records that document the
operating procedures of the clerk of courts, namely the clerk’s public-records policy
and record-retention schedule, are subject to the Public Records Act).
6
January Term, 2022
2. Ware’s requests for “other records”
{¶ 16} The court of appeals also found that “[t]he other records [Ware]
requested f[e]ll under Sup.R. 44(B) as court records, including case and
administrative documents.” 2021-Ohio-2025, at ¶ 13. The court, however, did not
identify the “other records” that it qualified as “court records” under Sup.R. 44(B).
Based on our review of Ware’s public-records requests, only four of the requested
items fall under the superintendence rules. One item—the dockets of cases that
Judge Oldfield presided over from October 1, 2018, through January 14, 2019—
fits the description of a “case document” under Sup.R. 44(C)(1) because the
documents that comprise that requested item were prepared by the clerk of courts
in a judicial action or proceeding. Three other items—the grand-jury reports for
Summit County jail for 2018, the grand-jury-schedule sheets for December 1, 2018,
through January 14, 2019, and Judge Oldfield’s oath of office—meet the definition
of an “administrative document” under Sup.R. 44(G)(1) because they recorded the
operations of the court.
{¶ 17} In sum, the documents sought by Ware in his public-records
requests—except for the four items identified above—are governed by the Public
Records Act, not the Rules of Superintendence. Therefore, the court of appeals
erred in denying Ware’s public-records requests for failure to proceed under the
superintendence rules.
B. Proposition of law No. 3:
Whether the Ninth District erred in refusing to award statutory damages
{¶ 18} Ware contends that the court of appeals erred when it failed to award
him statutory damages pursuant to R.C. 149.43(C). Ware argues that he is entitled
to statutory damages because Kurt failed to produce the requested records within a
reasonable period as required by R.C. 149.43(B).
{¶ 19} The court of appeals held that Ware was not entitled to statutory
damages for Kurt’s failure to provide the records that were governed by the
7
January Term, 2022
superintendence rules, because those rules do not authorize damages under any
circumstances. As for the one request that the court of appeals determined fell
under R.C. 149.43—the transcript of the 9-1-1 call in Ware’s criminal case—the
court found that Ware was not entitled to statutory damages because Kurt had no
obligation to provide this record.
1. The court of appeals erred in denying Ware’s claim for statutory damages on
the ground that the documents requested were governed by the Rules of
Superintendence
{¶ 20} Based on our resolution of the first two propositions of law, we find
that the court of appeals erred in its rejection of Ware’s statutory-damages claims
on the ground that the requested documents were governed by the Rules of
Superintendence. Ware objects to the length of time that it took for the clerk of
courts to respond to his public-records requests. R.C. 149.43 (B)(1) states that “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.” (Emphasis added.) According to Ware, he submitted his public-
records requests on January 22, 2019, but Kurt took “over a year” to respond and
she responded only after Ware filed his mandamus complaint.
{¶ 21} Under the Public Records Act, a requester seeking statutory damages
must prove that the request was delivered “by hand delivery, electronic submission,
or certified mail.” R.C. 149.43(C)(2). Ware avers that he sent all ten public-records
requests by certified mail.
{¶ 22} Kurt claims that her office first learned of Ware’s requests on
January 2, 2020, when she received his mandamus complaint. The clerk’s office
maintains that it sent responsive documents to Ware on January 29, 2020, and that
27 days is not an unreasonable amount of time to have answered Ware’s numerous
requests.
8
January Term, 2022
{¶ 23} In short, there is a dispute of fact as to whether Ware requested the
documents in January 2019 or January 2020. And because the court of appeals
addressed the merits of Ware’s statutory-damages claim only as to the transcript of
the 9-1-1 call, we remand to the court of appeals to resolve this issue as to the other
requests that we find subject to the Public Records Act.
2. The court of appeals did not err in denying Ware’s claim for statutory damages
regarding his request for the transcript of the 9-1-1 call in his criminal case
{¶ 24} The court of appeals found that Kurt had informed Ware that she did
not have possession of the transcript of the 9-1-1 call from Ware’s criminal case
but that even if she did have the transcript, Ware failed to obtain authorization from
his sentencing judge to request that record as required by R.C. 149.43(B)(8). For
the following reasons, we find that Ware has not shown that Kurt “failed to comply
with an obligation” under R.C. 149.43(B) with respect to the transcript of the
9-1-1 call.
{¶ 25} As a prison inmate, Ware is not entitled to the transcript of the
9-1-1 call in his criminal case without a finding by his sentencing judge that “the
information sought in the public record is necessary to support what appears to be
a justiciable claim of the person.” R.C. 149.43(B)(8). Because Ware failed to
obtain sentencing-court approval, Kurt had no obligation to provide this record
under R.C. 149.43(B) even if it were in her possession. See State ex rel. Russell v.
Thornton, 111 Ohio St.3d 409, 2006-Ohio-5858, 856 N.E.2d 966, ¶ 16-17;
Giavasis, 163 Ohio St.3d 359, 2020-Ohio-5453, 170 N.E.3d 788, at ¶ 15-16.
{¶ 26} As noted, Ware maintains that he is entitled to statutory damages
because Kurt took over a year to respond to his public-records requests. But Ware
does not dispute either (1) that Kurt justifiably denied his request for the transcript
of the 9-1-1 call or (2) that Kurt provided him with an explanation for the denial as
required by R.C. 149.43(B)(3). Therefore, we need not determine whether Kurt
responded to Ware’s request for the transcript of the 9-1-1 call within a reasonable
9
January Term, 2022
period of time. Unlike R.C. 149.43(B), which requires public records to be
“promptly prepared” and made available “within a reasonable period of time” upon
request, R.C. 149.43(B)(3) does not impose a timeliness requirement. See State ex
rel. Ware v. Giavasis, 160 Ohio St.3d 383, 2020-Ohio-3700, 157 N.E.3d 710,
¶ 11-12. Accordingly, we affirm the court of appeals’ determination that Ware is
not entitled to statutory damages under R.C. 149.43(C) for the transcript of the
9-1-1 call from his criminal case.
C. Kurt’s claim that the matter has been rendered moot
{¶ 27} As a final matter, Kurt argues that her office has provided all
documents that are responsive to Ware’s public-records requests, rendering this
matter moot. The evidence in the record does not support Kurt’s mootness claim.
See State ex rel. Ellis v. Cleveland Police Forensic Laboratory, 157 Ohio St.3d
483, 2019-Ohio-4201, 137 N.E.3d 1171, ¶ 7 (this court will address the merits of
an appeal in the absence of a record that clearly demonstrates mootness).
{¶ 28} Kurt submitted a list of the records that she purportedly provided to
Ware and supporting affidavits from Assistant Prosecutor Colleen Sims and Kurt’s
office manager, Jackie Ludle. Both Sims and Ludle aver that some documents were
sent to Ware but that other documents were not produced because the requests were
overly broad and because some documents do not exist. As for the list of records
that were allegedly provided, Kurt did not submit copies of the documents as
corroborating evidence in this case. See State ex rel. Ware v. Crawford, ___ Ohio
St.3d ___, 2022-Ohio-295, ___ N.E.3d ___, ¶ 15. For his part, Ware submitted an
affidavit conceding that he received “some” of the records he had requested, but he
did not identify which records he had received.
{¶ 29} Because the record does not clearly demonstrate (1) that Kurt sent
Ware the documents that she claims to have provided to him and (2) whether Kurt
had legitimate reasons for rejecting the remaining document requests, we decline
to resolve the appeal on grounds of mootness.
10
January Term, 2022
{¶ 30} Even if Kurt did provide Ware with all the requested records, this
action remains viable as to Ware’s request for statutory damages. If Ware can
establish on remand that Kurt failed to comply with an obligation under R.C.
149.43(B), he may be entitled to statutory damages even if he does not prevail on
his mandamus claim. See Giavasis, 160 Ohio St.3d 383, 2020-Ohio-3700, 157
N.E.3d 710, at ¶ 10.
III. CONCLUSION
{¶ 31} For the foregoing reasons, we affirm in part and reverse in part the
judgment of the court of appeals, and we remand this cause to the Ninth District
Court of Appeals to determine (1) which documents subject to the Public Records
Act were produced to Ware, (2) whether Kurt had legitimate reasons for rejecting
Ware’s requests as to the documents that were not produced, and (3) whether Ware
is entitled to statutory damages for the document requests that are subject to the
Public Records Act.
Judgment affirmed in part
and reversed in part,
and cause remanded.
FISCHER, DONNELLY, STEWART, and BRUNNER, JJ., concur.
O’CONNOR, C.J., concurs, with an opinion.
KENNEDY, J., concurs in part and dissents in part, with an opinion.
DEWINE, J., concurs in part and dissents in part for the reasons stated in
Justice Kennedy’s opinion and in State ex rel. Parker Bey v. Byrd, 160 Ohio St.3d
191, 2020-Ohio-2766, 154 N.E.3d 57, ¶ 60-68 (DeWine, J., concurring in judgment
only in part and dissenting in part).
_________________
O’CONNOR, C.J., concurring.
{¶ 32} I fully concur in the majority’s decision. I write separately to
respond to the opinion concurring in part and dissenting in part so that the reader
11
January Term, 2022
has a complete picture of the prevailing view on the interaction between the Public
Records Act, R.C. 149.43, and the Rules of Superintendence for the Courts of Ohio.
Thus, I reiterate what the majority stated in State ex rel. Parker Bey v. Byrd, 160
Ohio St.3d 141, 2020-Ohio-2766, 154 N.E.3d 57, ¶ 17-18:
This court is remanding this case to the court of appeals to
apply the Public Records Act, and nothing in our decision exempts
court records from disclosure or denies a right to court records.
Sup.R. 45(A) states that “[c]ourt records are presumed open to
public access.” Sup.R. 44 recognizes that state or federal law—such
as the Public Records Act—may exempt a record from disclosure.
Sup.R. 44(C)(2)(a) and (G)(2)(a). And Sup.R. 47(B) states that
mandamus relief is available to someone aggrieved by the failure of
a court or clerk of court to comply with the public-access provisions
of the Rules of Superintendence. Requiring those seeking court
records and court administrators responding to such requests to
comply with the public-access provisions of the Rules of
Superintendence when appropriate is hardly equivalent to this
court’s exempting itself from the Ohio Civil Rights Act, R.C.
4112.01 et. seq., as the second separate opinion argues. Ultimately,
the public-access provisions of the Rules of Superintendence and the
Public Records Act can function harmoniously. To the extent that
the separate opinions are concerned with the scope or impact of the
rules, a rule change, if found to be worthwhile, may be proposed,
submitted for public comment, and vetted for approval.
It is true that “the clerk is without discretion to disregard a
statutory mandate,” opinion of Kennedy, J., concurring in judgment
12
January Term, 2022
only in part and dissenting in part at ¶ 31, and compliance with the
public-access provisions of the Rules of Superintendence does
nothing to upset that duty. Speculation about contrived conflicts
does nothing to further the law regarding open access to court
documents. The presumptions of open access in the Public Records
Act and the public-access provisions of the Rules of
Superintendence function together in the sphere of the judicial
branch to address the particularized needs of the court and parties
that access the courts.
(Brackets added in Parker Bey.)
{¶ 33} I also include the following passage from a decision of this court in
a prior case that was filed by the same relator as in this case, Kimani Ware:
The fact that Ware cited only the Public Records Act in his
public-records requests is not fatal to his demand for documents that
are governed by the Rules of Superintendence. “Generally, it is not
necessary to cite a particular rule or statute in support of a records
request until the requester attempts to satisfy the more demanding
standard applicable when claiming that he is entitled to a writ of
mandamus to compel compliance with the request.” Parker Bey at
¶ 14. However, because Ware has invoked only the Public Records
Act in this action, Ware is not entitled to a writ of mandamus as to
any documents governed by the Rules of Superintendence. State ex
rel. Parisi v. Dayton Bar Assn. Certified Grievance Commt., 159
Ohio St.3d 211, 2019-Ohio-5157, 150 N.E.3d 43, ¶ 21; see also
State ex rel. Richfield v. Laria, 138 Ohio St.3d 168, 2014-Ohio-243,
4 N.E.3d 1040, ¶ 8 (“Sup.R. 44 through 47 deal specifically with the
13
January Term, 2022
procedures regulating public access to court records and are the sole
vehicle for obtaining records in actions commenced after July 1,
2009”).
(Emphasis sic.) State ex rel. Ware v. Giavasis, 163 Ohio St.3d 359, 2020-Ohio-
5453, 170 N.E.3d 788, ¶ 19.
{¶ 34} To be sure, nothing in the Rules of Superintendence prevents Ware
from obtaining the documents he seeks. But it is not for this court or the clerk of
courts’ office to properly package his request for mandamus relief. See Parisi at
¶ 27; Ware at ¶ 19.
_________________
KENNEDY, J., concurring in part and dissenting in part.
{¶ 35} I concur in part and dissent in part. I agree with the majority’s
conclusion that the bulk of the records sought by relator, Kimani Ware, from
respondent, Summit County Clerk of Courts Sandra Kurt, are public records subject
to disclosure under the Public Records Act, R.C. 149.43.
{¶ 36} I disagree with the majority’s conclusion that the Rules of
Superintendence for the Courts of Ohio, not the Public Records Act, apply to four
of Ware’s requests for records—the dockets of cases that Judge Oldfield presided
over from October 1, 2018, through January 14, 2019; the grand-jury reports
regarding the Summit County jail for 2018; the grand-jury-schedule sheets for
December 1, 2018, through January 14, 2019; and Judge Oldfield’s oath of office.
First, I would find that those records are public records and that the Rules of
Superintendence do not and cannot eliminate the public’s substantive right,
afforded by the Public Records Act, to inspect and copy them. See State ex rel.
Parisi v. Dayton Bar Assn. Certified Grievance Commt., 159 Ohio St.3d 211, 2019-
Ohio-5157, 150 N.E.3d 43, ¶ 57 (Kennedy, J., concurring in part and concurring in
14
January Term, 2022
judgment only in part). Second, a review of the statutory duties of the
independently elected clerk of courts shows that these records are related to the
work of the clerk of courts, are kept by that public office, and, therefore, are public
records under the Public Records Act.
{¶ 37} I also disagree with the majority’s determination that Ware is not
entitled to statutory damages if Kurt failed to inform him for more than one year
that she had denied his request for the transcript of the 9-1-1 call from his criminal
case. Since I would find that all of the records Ware requested are public records,
I would reverse the judgment of the Ninth District Court of Appeals and remand
the matter to that court to determine when and in what manner Ware delivered his
public-records requests to Kurt. If the requests were delivered by certified mail in
January 2019 as Ware claims, then the court of appeals should (1) determine
whether Kurt failed to meet her obligations under R.C. 149.43(B), including her
obligation to timely provide the reasons for her denial of a public-records request,
(2) order the production of responsive documents, and (3) award appropriate
statutory damages and costs.
The 1968 Modern Courts Amendment limits our power
{¶ 38} “The measure of power is its limits. Respecting the limits of power
is essential to our American form of government. Anything less is an affront to it.”
League of Women Voters of Ohio v. Ohio Redistricting Comm. ___ Ohio St.3d ___,
2022-Ohio-1235, ___ N.E. 3d ___, ¶ 88 (Kennedy, J., dissenting). This court does
not have the power to limit Ohioans’ access to public records.
{¶ 39} A final draft of the Modern Courts Amendment recommended that
Ohio adopt a unified-court system. William W. Milligan and James E. Pohlman,
The 1968 Modern Courts Amendment to the Ohio Constitution, 29 Ohio St.L.J. 811,
843 (1968). However, that measure failed to make it to the ballot, having been
struck down by the General Assembly. Id. at 843-844. Instead of a unified-court
15
January Term, 2022
system, the Modern Courts Amendment left the courts under local control with one
exception—case-management guidelines.
{¶ 40} The Ohio Constitution gives this court authority to promulgate two
distinct sets of rules: the Rules of Superintendence, Article IV, Section 5(A)(1), and
the rules of practice and procedure, Article IV, Section 5(B).
{¶ 41} The Ohio Constitution authorizes this court to adopt Rules of
Superintendence that are consistent with this court’s general superintending power
over all courts in this state. That power, however, is limited to addressing the case-
management problems that cause delays in processing cases, which were part of the
stimulus for the Modern Courts Amendment in the first place. See State ex rel.
Parker Bey v. Byrd, 160 Ohio St.3d 141, 2020-Ohio-2766, 154 N.E.3d 57, ¶ 38
(Kennedy, J., concurring in judgment only in part and dissenting in part). The
purpose of the Rules of Superintendence is reflected in its preface:
The foundation of our government rests upon the confidence
of the people in the ability of their courts to achieve liberty and
justice for all under the law. The fair, impartial, and speedy
resolution of cases without unnecessary delay maintains this
confidence, safeguards the rights of litigants to the just processing
of their causes, and earns the trust of the public.
To secure these ends, the Supreme Court of Ohio adopts the
following Rules of Superintendence for the Courts of Ohio to serve
the public interest that mandates prompt disposition of all causes, at
all times, in all courts of this state.
{¶ 42} The framers of the Modern Courts Amendment of 1968 granted this
court limited authority to promulgate rules of practice and procedure governing all
16
January Term, 2022
courts under Article IV, Section 5(B) of the Ohio Constitution, which provides as
follows:
The supreme court shall prescribe rules governing practice
and procedure in all courts of the state, which rules shall not abridge,
enlarge, or modify any substantive right. Proposed rules shall be
filed by the court, not later than the fifteenth day of January * * *.
Such rules shall take effect * * * unless * * * the general assembly
adopts a concurrent resolution of disapproval. All laws in conflict
with such rules shall be of no further force or effect after such rules
have taken effect.
{¶ 43} The plain language of Article IV, Section 5(B) constrains this court’s
ability to promulgate rules superseding enactments of the General Assembly in two
ways. First, the Ohio Constitution expressly prohibits the adoption of any rules of
practice or procedure that affect substantive rights. This constraint is express:
“[R]ules shall not abridge, enlarge, or modify any substantive right.” Id. After the
Modern Courts Amendment, “the right to establish the substantive law in Ohio
remained with the legislative branch of government.” Havel v. Villa St. Joseph,
131 Ohio St.3d 235, 2012-Ohio-552, 963 N.E.2d 1270, ¶ 2. Second, the Ohio
Constitution gives the General Assembly express authority to accept or reject
promulgated rules of practice or procedure that, if accepted, will eclipse all laws in
conflict with such rules. Ohio Constitution, Article IV, Section 5(B). The General
Assembly’s veto power over proposed court rules ensures legislative oversight over
practice and procedure in the courts of this state.
{¶ 44} In contrast, “[t]he Rules of Superintendence are not designed to alter
basic substantive rights,” State v. Singer, 50 Ohio St.2d 103, 110, 362 N.E.2d 1216
(1977), and “ ‘[t]hey are not the equivalent of rules of procedure and have no force
17
January Term, 2022
equivalent to a statute,’ ” Parker Bey, 160 Ohio St.3d 141, 2020-Ohio-2766, 154
N.E.3d 57, at ¶ 42 (Kennedy, J., concurring in judgment only in part and dissenting
in part), quoting State v. Gettys, 49 Ohio App.2d 241, 243, 360 N.E.2d 735 (3d
Dist.1976). Consequently, no rule, whether of superintendence or of practice or
procedure, promulgated by this court can affect a substantive right created by
statute.
The Public Records Act grants substantive rights
{¶ 45} We have indicated that a substantive right is one that the law protects
and permits a person to enforce and includes rights created by the United States
Constitution, the Ohio Constitution, statutes, the common law, and rules of
procedure. See Havel at ¶ 17.
{¶ 46} Common law recognized the right of the people to inspect and copy
public records and documents, including judicial records and documents. Nixon v.
Warner Communications, Inc., 435 U.S. 589, 597, 98 S.Ct. 1306, 55 L.Ed.2d 570
(1978); State ex rel. Scripps Howard Broadcasting Co. v. Cuyahoga Cty. Court of
Common Pleas, Juv. Div., 73 Ohio St.3d 19, 22, 652 N.E.2d 179 (1995). This
common-law right, albeit qualified, is enshrined in the guarantee of the public’s
right to open courts under Article I, Section 16 of the Ohio Constitution. State ex
rel. Cincinnati Enquirer v. Winkler, 101 Ohio St.3d 382, 2004-Ohio-1581, 805
N.E.2d 1094, ¶ 8-9, superseded by statute on other grounds as stated in State v.
Hubbard, ___ Ohio St.3d ___, 2021-Ohio-3710, ___ N.E.3d ___.
{¶ 47} And in 1963, “the General Assembly codified the public’s right to
access of government records” by enacting R.C. 149.43. State ex rel. Natl.
Broadcasting Co., Inc. v. Cleveland, 38 Ohio St.3d 79, 81, 526 N.E.2d 786 (1988).
{¶ 48} The Public Records Act defines “public record” as “records kept by
any public office.” R.C. 149.43(A)(1). A “[p]ublic office includes any state
agency.” (Emphasis added.) R.C. 149.011(A). And a “[s]tate agency includes
* * * any court or judicial agency.” R.C. 149.011(B).
18
January Term, 2022
{¶ 49} That there is, in general, a substantive right to access records of court
proceedings that have historically been open to the public is beyond debate. Scripps
Howard Broadcasting Co., 73 Ohio St.3d at 20, 652 N.E.2d 179, citing Press-
Enterprise Co. v. Superior Court of California for Riverside Cty., 478 U.S. 1, 106
S.Ct. 2735, 92 L.Ed.2d 1 (1986), and In re T.R., 52 Ohio St.3d 6, 556 N.E.2d 439
(1990), paragraph two of the syllabus.
{¶ 50} In enacting the Public Records Act, “the Ohio General Assembly
sought to codify the right of the people of Ohio to observe their own government
and scrutinize its decisions.” (Emphasis added.) Rhodes v. New Philadelphia, 129
Ohio St.3d 304, 2011-Ohio-3279, 951 N.E.2d 782, ¶ 19, citing Kish v. Akron, 109
Ohio St.3d 162, 2006-Ohio-1244, 846 N.E.2d 811, at ¶ 16-17. “The Ohio Public
Records Act grants [the people of Ohio] the ‘substantive right to inspect and copy
public records.’ ” Id., quoting State ex rel. Beacon Journal Publishing Co. v.
Waters, 67 Ohio St.3d 321, 324, 617 N.E.2d 1110 (1993).
{¶ 51} The default rule then, is that there is a clear legal right to access court
records and no court rule, whether of superintendence or of practice or procedure,
can abridge or modify that substantive right. Ohio Constitution, Article IV,
Sections 5(A) and (B).
{¶ 52} In a series of recent decisions, however, a majority of this court has
held that the Rules of Superintendence now control access to court records.
However, the right to access public records in general and court records in
particular is a substantive right that this court lacks the authority to abridge through
its rulemaking power. The Rules of Superintendence may provide guidance to
courts in complying with the public-records law, but those rules cannot limit access
to public records that is protected by the law, grant access to public records that is
denied by the law, or eliminate any remedy that is provided by the law to enforce
it.
19
January Term, 2022
The clerk, not the court, is the public-records custodian
of the records that Ware sought
{¶ 53} Kurt is the clerk of the court of common pleas of Summit County.
A clerk of the court of common pleas is a creature of statute; he or she is
independently elected to a four-year term of office, R.C. 2303.01, and is generally
required by statute to file, keep, and maintain certain documents, see R.C. 2303.08.
{¶ 54} The clerk is required to file and “carefully preserve” in the clerk’s
office “all papers delivered to him for that purpose in every action or proceeding.”
R.C. 2303.09. The clerk is required to keep “at least four books.” R.C. 2303.12.
These include the appearance docket, the trial docket, the journal, and the execution
docket. Id. The clerk is required to “keep and make readily available to the public
the machine and equipment necessary to reproduce the records and information in
a readable form.” (Emphasis added.) Id. The clerk is also required to maintain
entries on the appearance docket regarding the commencement of an action or
proceeding, R.C. 2303.13, and to keep the “journals, records, books, and papers
appertaining to the court and record its proceedings,” R.C. 2303.14.
{¶ 55} The clerk is not a “court” subject to the Rules of Superintendence.
See Article IV, Section 5(A)(1). Moreover, a clerk is not a judicial officer and
cannot exercise judicial power. State ex rel. Glass v. Chapman, 67 Ohio St. 1, 65
N.E. 154 (1902), syllabus; see also Mellinger v. Mellinger, 73 Ohio St. 221, 227,
76 N.E. 615 (1906); Hocking Valley Ry. Co. v. Cluster Coal & Feed Co., 97 Ohio
St. 140, 141-142, 119 N.E. 207 (1918). Instead, R.C. 2303.26 provides that “[t]he
clerk of the court of common pleas shall exercise the powers conferred and perform
the duties enjoined upon the clerk by statute and by the common law; and in the
performance of official duties the clerk shall be under the direction of the court [of
common pleas].” (Emphasis added.)
20
January Term, 2022
{¶ 56} With this general understanding of the statutory duties of the clerk,
I turn to each of Ware’s four requests for public records that I believe fall within
the purview of the Public Records Act.
{¶ 57} The docket of cases that Judge Oldfield presided over from
October 1, 2018, through January 14, 2019. As set forth above, R.C. 2303.12
requires the clerk to keep the trial docket and duplicates thereof. Because the
General Assembly requires the clerk to keep and maintain the trial docket of cases
from October 1, 2018, through January 14, 2019, they are public records within the
authority and control of the clerk.
{¶ 58} Under R.C. 149.43(A)(1), a public record includes “records kept by
any public office,” and as noted above, the clerk’s office is the public office that is
responsible for maintaining the common pleas court’s dockets.
{¶ 59} In her response to Ware’s public-records request, Kurt asked
whether he was requesting only the criminal docket because if so, “approximately
90 cases fit within this request and * * * staff would need to check each case to
make sure it had not been sealed.”
{¶ 60} The grand-jury reports for the Summit County jail for 2018.
R.C. 2939.21 requires the grand jury to visit the county jail every three months to
“examine its condition, and inquire into the discipline and treatment of the
prisoners, their habits, diet, and accommodations.” The grand jury is required to
report its findings, in writing, to the court of common pleas and, as set forth above,
R.C. 2303.14 requires the clerk to “keep the journals, records, books, and papers
appertaining to the court.” Moreover, the clerk of the court of common pleas is
required to “forward a copy of the report to the department of rehabilitation and
correction.” R.C. 2939.21. To forward a copy, of course, is to keep a copy, and
the clerk therefore has an independent duty to maintain these reports as public
records. It follows that grand-jury reports pertaining to the Summit County jail are
public records under the control of the clerk.
21
January Term, 2022
{¶ 61} Kurt seems unaware of the prison-visit-report statute (R.C. 2939.21).
In responding to Ware’s request for the “Grand Jury Reports of the Summit County
Jail for the year 2018, that is recorded in the Summit County clerk of courts office”
(underlining sic), Kurt stated, “This request is unclear. If you mean, the Grand Jury
Vote and Schedule Sheets, this request, for a year of these sheets is vague and
overbroad. Over 4,000 cases were presented to the Summit County grand jury in
2018.”
{¶ 62} The grand-jury-schedule sheets for December 1, 2018, through
January 14, 2019 “for Indictments [that were] returned [as] ‘a true Bill’ or
‘No Bill.’ ” Kurt does not deny that she maintains the records that are the subject
of this particular request. Rather, in her response to Ware’s request, she states that
the request is overly broad because a person would have to review hundreds of
grand-jury cases to ensure that records from a sealed case or secret indictment
would not be produced. Kurt requested that Ware narrow his request. However,
as set forth above, R.C. 2303.14 requires the clerk to keep records like the grand-
jury schedules requested by Ware. R.C. 149.43(B)(1) also requires a public-records
custodian to make available to a requester all information contained in a public
record that is not exempt from disclosure; the public-records custodian must redact
those portions of the public record that are exempt from disclosure and notify the
requester that the record was redacted or make the redaction plainly visible. In my
view, a request for a grand-jury schedule for a 45-day period is not overly broad.
These schedules may be retrieved, and it requires only a computer check to
determine whether any requested information involves sealed cases. The request is
not for a broad category of records, is not unreasonable in scope, and does not seek
a complete duplication of voluminous files. See State ex rel. Glasgow v. Jones, 119
Ohio St.3d 391, 2008-Ohio-4788, 894 N.E.2d 686, ¶ 17-19. And it is Kurt’s burden
to prove the request was overly broad.
22
January Term, 2022
{¶ 63} Judge Oldfield’s oath of office. R.C. 3.23 requires every judge of
a court of record to take an oath of office, and the person administering the oath is
required to sign the certificate of the oath, which must be transmitted to the clerk
of the respective court. The clerk of courts is then required to “transmit” a copy of
the certificate to the supreme court. Id. “If the certificate of oath is not transmitted
to the clerk of the court within twenty days from the first day of the judge’s official
term, the judge is deemed to have refused to accept the office, and that office shall
be considered vacant.” Id. As with the above requests, Judge Oldfield’s oath of
office is a “record[] kept by any public office,” R.C. 149.43(A)(1), and it is subject
to release under the Public Records Act. In her response to Ware’s request for this
public record, Kurt claims to have produced the record.
{¶ 64} Kurt keeps each of the records requested by Ware in these four
requests as part of her statutory duties as clerk of courts, so the Public Records Act
is controlling. The Public Records Act requires a “person responsible for public
records” to make copies of requested public records available to the requester
within a reasonable period of time. R.C. 149.43(B)(1). And R.C. 2303.12 requires
the clerk to “keep and make readily available to the public the machine and
equipment necessary to reproduce the records and information in a readable form.”
(Emphasis added.) This court has held that “[w]hen a statute imposes a duty on a
particular official to oversee records, that official is the ‘person responsible’ under
R.C. 149.43(B).” State ex rel. Mothers Against Drunk Drivers v. Gosser, 20 Ohio
St.3d 30, 485 N.E.2d 706 (1985), paragraph two of the syllabus. Therefore, under
the Public Records Act, the clerk is the person responsible for the public records
that the office of the clerk of courts maintains, including court records maintained
under R.C. 2303.09 and 2303.14.
{¶ 65} The clerk of courts’ role in the scheme of the Public Records Act
comes as no surprise to the many Ohioans who access court records in the offices
of clerks of courts across the state or online on clerks’ websites every day. The
23
January Term, 2022
public knows that court records are public records and they do not need to ask a
judge for permission to see those records or to make a copy of those records. They
simply walk into the clerk’s office or go online.
{¶ 66} Because Kurt was the person responsible for the public records that
Ware sought, she had a duty to promptly prepare copies of the responsive records.
Because the appellate court held that the requested records were court records that
Ware should have requested under the Rules of Superintendence, it failed to
consider whether Kurt had met her obligations under R.C. 149.43(B)(1) to make
copies of the requested records available to Ware within a reasonable time and,
under R.C. 149.43 (B)(3), to provide Ware with an explanation, including legal
authority, for any denial of his requests. As is discussed more fully below, a denial
of a public-records request with an explanation also has to be provided to the
requester within a reasonable time.
{¶ 67} The General Assembly has prescribed that when the people’s right
of access to public records has been wrongfully denied, a mandamus action may be
commenced to obtain a judgment that orders the person responsible for the public
record to comply with the requirements of the Public Records Act, that costs and
reasonable attorney fees may be awarded, and if applicable, that statutory damages
may also be awarded. On remand, I would order the court of appeals to determine
whether Kurt complied with the Public Records Act regarding the four requests
discussed above, along with the other requests the majority orders the court of
appeals to consider.
A timely response to Ware’s request for the transcript of the 9-1-1 call
was required
{¶ 68} I agree with the majority that R.C. 149.43(B)(8) controls Ware’s
request for a copy of the transcript of the 9-1-1 call in his criminal case. I further
agree that because Ware did not seek prior approval from the sentencing judge to
obtain a copy of the transcript, he is not entitled to that record. However, I disagree
24
January Term, 2022
with the majority’s conclusion that he was not entitled to a timely response from
Kurt explaining why she was denying his public-records request. The Public
Records Acts requires a public-records custodian to provide notice of the denial of
a public-records request within a reasonable period of time. R.C. 149.43(B)(1).
Therefore, Ware may be eligible for statutory damages.
{¶ 69} At the time Ware claims to have made his request for the transcript
of the 9-1-1 call, in January 2019, R.C. 149.43(C)(2) provided that an award of
statutory damages hinged on whether the public-records request was made by
certified mail, by hand delivery, or by electronic submission.
{¶ 70} It was only after Ware filed this mandamus action in December 2019
that Kurt provided him with any response regarding his request for the transcript of
the 9-1-1 call. If Ware delivered this request to Kurt by certified mail in January
2019 and Kurt did not respond to the request until after Ware filed the mandamus
action in December 2019, then Kurt failed to fulfill the requirement to “provide the
requester with an explanation, including legal authority, setting forth why the
request was denied.” R.C. 149.43(B)(3). Therefore, in my opinion, Kurt’s
explanation for the denial came too late.
{¶ 71} Seemingly, the timing of when a public-records custodian must
provide a requester with a denial and the legal reasoning behind the denial under
R.C. 149.43(B)(3) makes no difference to the majority. This is apparent from the
majority’s conclusion that Ware is not eligible for statutory damages even if Kurt
failed for over a year to inform him that his request was denied and to provide an
explanation for the denial.
{¶ 72} The majority concludes that there is no deadline under the Public
Records Act for a public-records custodian to provide an explanation to a requester
when a record request is denied. But if that were true, the obligation to respond
would be no obligation at all. The time available to respond would be limitless.
However, the General Assembly included a temporal requirement in the Public
25
January Term, 2022
Records Act. It requires that a public-records custodian promptly prepare a public
record that has been requested. R.C. 149.43(B)(1). Based on the majority’s holding
in this case, if there is no public record that matches the public-records request or
if an exemption to the public-records request applies, then the public-records
custodian has no duty to do anything. This statement of law by the majority should
be alarming to every Ohioan who seeks to observe their own government and
scrutinize its decisions. Kish, 109 Ohio St.3d 162, 2006-Ohio-1244, 846 N.E.2d
811, at ¶ 16.
{¶ 73} “In ascertaining the plain meaning of the statute, 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, 108 S.Ct.
1811, 100 L.Ed.2d 313 (1988). R.C. 149.43(B) requires a public-records custodian
to promptly prepare responsive records. If that obligation is disconnected from the
public-records custodian’s duty to inform the requester when a public-records
request is being denied, then two predictable outcomes are certain. First, the
requester will have no idea that his or her public-records request is being denied.
Second, the requester will have no idea whether the public-records custodian has
failed to fulfill his or her duty to promptly produce the requested records. Surely,
if the public-records custodian has both a duty to promptly produce records and a
duty to inform the requester why a record is not available for production, then the
public-records custodian has an obligation to promptly alert the requester of the
reason for a request’s denial. It is only after the requester is informed that the
public-records request is not being fulfilled that a requester may know that the
public-records custodian has failed to meet his or her obligations under R.C.
149.43(B).
{¶ 74} The outcome of this case flies in the face of our recognition that
“[t]he primary duty of a public office when it has received a public-records request
is to promptly provide any responsive records within a reasonable amount of time
26
January Term, 2022
and when a records request is denied, to inform the requester of that denial and
provide the reasons for that denial.” State ex rel. Cordell v. Paden, 156 Ohio St.3d
394, 2019-Ohio-1216, 128 N.E.3d 179, ¶ 11, citing R.C. 149.43(B)(1) and (3). In
Cordell, this court awarded statutory damages when a sheriff failed to respond to a
public-records request, even after this court held that the requester had failed to
prove that the requested records existed or that they were in the custody of the
sheriff’s office. Id. at ¶ 13-14.
{¶ 75} R.C. 149.43(C)(3)(b)(i) establishes a time within which a public-
records custodian must provide some response to a public-records request. That
provision states that attorney fees may be awarded when “[t]he public office or the
person responsible for the public records failed to respond affirmatively or
negatively to the public records request in accordance with the time allowed under
division (B) of this section.” Id. The time allowed under R.C. 149.43(B) is “a
reasonable period of time,” which is set forth in R.C. 149.43(B)(1). Kurt was
obligated to respond to Ware’s request with a denial that included the legal reason
or reasons therefor and to do so within a reasonable time. If the delay was as long
as Ware claims, it was unreasonable.
{¶ 76} If mandamus is available to enforce a public-records custodian’s
obligation to promptly prepare a public record and make it available to the
requester, R.C. 149.43(C)(1)(b), then it is also available for a requester “aggrieved
by any other failure of a public office or the person responsible for public records
to comply with an obligation in accordance with division (B) of this section,” R.C.
149.43(C)(1). Mandamus is available only when there is a clear legal duty for the
public-records custodian to act. If there is no time requirement for a public-records
custodian to explain his or her denial of a public-records request, then there is no
clear legal duty to enforce in mandamus.
{¶ 77} Because the public-records custodian has a duty to promptly provide
responsive records under R.C. 149.43(B)(1), the custodian’s failure to deny a
27
January Term, 2022
public-records request and to provide reasons for the denial within a reasonable
period of time makes the public office liable for statutory damages. See Cordell,
156 Ohio St.3d 394, 2019-Ohio-1216, 128 N.E.3d 179, at ¶ 13. Whether the
public-records custodian complied with his or her statutory duty to respond to a
public-records request within a reasonable period of time “ ‘depends upon all of the
pertinent facts and circumstances.’ ” Id. at ¶ 12, quoting State ex rel. Morgan v.
Strickland, 121 Ohio St.3d 600, 2009-Ohio-1901, 906 N.E.2d 1105, ¶ 10. The
person requesting the records “bears the burden of demonstrating that the [public-
records custodian’s] response to [the] public-records requests was unreasonably
delayed.” Id., citing State ex rel. Dispatch Printing Co. v. Johnson, 106 Ohio St.3d
160, 2005-Ohio-4384, 833 N.E.2d 274, ¶ 44. The key factual determination for the
appellate court on remand will be whether Ware delivered his requests to the
appropriate public office by certified mail when he says he did.
{¶ 78} In its shortsighted holding today, the majority denies Ware statutory
damages for Kurt’s year-long failure to provide a denial with legal reasoning for
Ware’s request for the 9-1-1 transcript from his criminal case. Ware is not entitled
to the record because of his failure to seek the leave of the sentencing judge, but
certainly nothing in R.C. 149.43(B)(8) relieves a public-records custodian of his or
her duty to respond to Ware’s request for public records with a denial and
explanation with legal reasoning. Does Ware not deserve, like every other citizen,
an explanation from the public-records custodian for the denial of his request with
the legal reasoning behind it? Is the problem not what Ware is requesting but from
where he is requesting it?
{¶ 79} The implications of the majority’s decision today are far reaching.
This case stands for the proposition that anyone who requests a public record and
gets no response for up to a year from a public-records custodian is ineligible for
statutory damages. That holding cannot sit side-by-side with the requirement in
RC. 149.43(B)(1) that a public-records custodian promptly prepare public records
28
January Term, 2022
and make them available to the requester within a reasonable amount of time.
Every Ohioan who exercises his or her statutory right to seek records from public
offices will now be hamstrung by the majority’s holding allowing a public office to
deny a public-records request in silence. That is not the prompt response required
by the Public Records Act. Rather, the majority’s decision permits the public office
to sit on its hands and avoid giving assistance to interested Ohioans seeking to
understand what their government is doing and to hold their government
accountable. The intent of the Public Records Act was to shine a light on
government, but today, the majority leaves Ohioans in the dark.
Conclusion
{¶ 80} For these reasons, I would hold that the documents Ware requested
pertaining to the operations, procedures, and policies of the clerk of courts’ office;
the dockets of cases that Judge Oldfield presided over from October 1, 2018,
through January 14, 2019; the grand-jury reports for Summit County jail for 2018;
the grand-jury-schedule sheets for December 1, 2018, through January 14, 2019;
and Judge Oldfield’s oath of office are all public records.
{¶ 81} I would order the Ninth District Court of Appeals to consider all of
Ware’s requests in the context of the Public Records Act and to determine whether
Kurt complied with her statutory duties to provide a prompt response to Ware’s
requests. I would also order the court to determine whether statutory damages
should be awarded to Ware for Kurt’s alleged failure to respond to any of Ware’s
requests in a timely manner, including his request for the transcript of the 9-1-1 call
in his criminal case. To the extent the majority decision holds otherwise, I dissent.
DEWINE, J., concurs in the foregoing opinion.
_________________
Kimani Ware, pro se.
Sherri Bevan Walsh, Summit County Prosecuting Attorney, and John
Galonski, Assistant Prosecuting Attorney, for appellee.
29
January Term, 2022
_________________
30