State ex rel. Mobley v. Powers

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

ex rel. Mobley v. Powers, Slip Opinion No. 2024-Ohio-104.]

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. 2024-OHIO-104

THE STATE EX REL. MOBLEY v. POWERS, PROS. ATTY.

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

may be cited as State ex rel. Mobley v. Powers, Slip Opinion No.

2024-Ohio-104.]

Mandamus—Public-records requests—R.C. 149.43—Former R.C. 309.16—

Vagueness—Mootness—Limited writ granted.

(No. 2023-0501—Submitted November 14, 2023—Decided January 17, 2024.)

IN MANDAMUS.

__________________

Per Curiam.

{¶ 1} This is an original action in mandamus brought under Ohio’s Public

Records Act, R.C. 149.43, by relator, Alphonso Mobley Jr., against respondent,

Hamilton County Prosecuting Attorney Melissa A. Powers (“the prosecutor”).1

1. Mobley named (now Justice) Joseph Deters as the respondent in this case. Although Justice

Deters was at one time the Hamilton County Prosecuting Attorney, he did not hold that office when

Mobley filed his mandamus complaint. Because Powers held that office when Mobley filed his

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Mobley requested in his complaint a writ of mandamus ordering the production of

records relating to former R.C. 309.16, Am.Sub.S.B. No. 198, 138 Ohio Laws, Part

I, 683-684, and a records-retention schedule. He also requested awards of statutory

damages and costs. We deny the writ as moot regarding some of the requested

records, grant a limited writ of mandamus regarding others, defer ruling on the

request for an award of statutory damages, and deny the request for an award of

costs. Also pending is Mobley’s motion for leave to file rebuttal evidence. We

grant that motion in part and deny it in part.

I. BACKGROUND

{¶ 2} On January 27, 2023, the prosecutor received Mobley’s public-

records request, which sought the records-retention schedule kept by the prosecutor

and the “certified statements” prepared by the prosecutor under former R.C. 309.16

for the years 2016 through 2020.

{¶ 3} The General Assembly repealed R.C. 309.16, effective April 4, 2023,

see 2022 Am.Sub.S.B. No. 16, but at the time of Mobley’s public-records request,

the statute required each county prosecuting attorney to “make a certified statement

to the board of county commissioners specifying” information falling under two

categories, former R.C. 309.16(A). First, the prosecuting attorney had to specify

“[t]he number of criminal prosecutions pursued to final conviction and sentence

under his official care, during the year next preceding the time of making such

statement.” Former R.C. 309.16(A)(1). “In such statement the prosecuting

attorney [was required to] name the parties to each prosecution, the amount of fine

assessed in each case, the number of recognizances forfeited, and the amount of

money collected in each case.” Id. Second, the prosecuting attorney had to specify

complaint—and still holds that office—we have automatically substituted her as the respondent.

See S.Ct.Prac.R. 4.06(B).

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certain information relating to aggravated-arson and arson offenses committed in

violation of R.C. 2909.02 and 2909.03, respectively. Former R.C. 309.16(A)(2).

{¶ 4} On March 23, Assistant Prosecuting Attorney Amy Clausing, who

was the public-information officer for the prosecutor, located records responsive to

Mobley’s request. Near the end of March, Clausing drafted a letter in response to

Mobley’s request and, she thought, mailed it to him with the responsive records.

{¶ 5} On April 14, Mobley filed his mandamus complaint in this case.

Upon being served with Mobley’s complaint, Clausing realized that she had

inadvertently failed to send him the response to his public-records request.

Therefore, on April 20, Clausing mailed the response to Mobley, explaining to him

that she had enclosed “the annual reports to the Hamilton County Board of County

Commissioners for the years 2016-2020, submitted pursuant to O.R.C. 309.16, as

well as the Hamilton County Prosecutor’s Office record retention schedule.”

{¶ 6} The “annual reports” that Clausing sent to Mobley consist of five

individual documents, each with the heading “STATEMENT PURSUANT TO

R.C. 309.16.” (Capitalization sic.) Each document identifies the applicable date

range (e.g., September 1, 2019, to August 31, 2020) and specifies the arson-related

information that was required by former R.C. 309.16(A)(2).

{¶ 7} Clausing attests that her response to Mobley provided him with all the

records he had requested.

{¶ 8} This court denied the prosecutor’s motion to dismiss Mobley’s

mandamus complaint, denied Mobley’s combined motion to strike and request for

sanctions, and granted an alternative writ and set a schedule for the submission of

evidence and merit briefs. 170 Ohio St.3d 1488, 2023-Ohio-2348, 212 N.E.3d 934.

Both parties filed merit briefs, but only the prosecutor filed evidence. On the day

that the prosecutor filed her brief, Mobley filed a motion for leave to file rebuttal

evidence, which the prosecutor has not opposed.

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II. ANALYSIS

A. Mobley’s motion for leave to file rebuttal evidence

{¶ 9} Mobley’s motion for leave to file rebuttal evidence labels the

proposed evidence as “Exhibit A” and “Exhibit B.” Exhibit A is a mail return-

receipt card that was returned by the prosecutor. Exhibit B consists of a February

8, 2023 public-records request that Mobley sent to the Hamilton County Board of

Commissioners, which sought the same public records he requested from the

prosecutor in this matter, and the board’s August 1 and 8 responses to that request.

{¶ 10} This court’s rules provide that a “[r]elator may file a motion for leave

to file rebuttal evidence within the time permitted for the filing of relator’s reply

brief.” S.Ct.Prac.R. 12.06(B). Because Mobley filed his motion for leave on the

day that the prosecutor filed her merit brief, his motion was timely.

{¶ 11} The aim of Mobley’s motion is the admission of evidence rebutting

the evidence the prosecutor has submitted to show that Clausing has provided to

Mobley all the records responsive to his records request. “Rebutting evidence is

[evidence] given to explain, refute, or disprove new facts introduced into evidence

by the adverse party; it becomes relevant only to challenge the evidence offered by

the opponent, and its scope is limited by such evidence.” State v. McNeill, 83 Ohio

St.3d 438, 446, 700 N.E.2d 596 (1998). A court has discretion in determining

whether to admit rebuttal evidence. Id.

{¶ 12} We deny Mobley’s motion as to Exhibit A because the exhibit lacks

a proper rebuttal purpose. The fact that Mobley possesses a mail return-receipt card

returned by the prosecutor shows nothing about whether the prosecutor has failed

to provide Mobley with a complete set of the records he requested.

{¶ 13} Mobley is on stronger ground, however, regarding Exhibit B. The

documents comprising that exhibit can be grouped into four categories.

{¶ 14} The first category consists of the public-records request that Mobley

sent to the board and the board’s cover letters responding to the request.

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{¶ 15} The second category consists of cover letters sent by the prosecutor

to the board from 2016 through 2020, which state that a report was enclosed and

was being submitted pursuant to former R.C. 309.16.

{¶ 16} The third category consists of the same documents that Clausing sent

to Mobley containing the heading “STATEMENT PURSUANT TO R.C. 309.16”

(capitalization sic), which Clausing described in her letter to Mobley as constituting

“the annual reports to the Hamilton County Board of County Commissioners for

the years 2016-2020.”

{¶ 17} The last category consists of a series of reports made by the

prosecutor that differ from those in the third category. Each report contains a cover

page stating that the information in the report was being submitted “pursuant to

O.R.C. 309.16, providing the number of criminal prosecutions pursued to final

conviction and sentence from [the applicable date range] showing the names of the

defendants, together with recognizance forfeitures.” Also included in each report

is an itemized list showing information described in the report’s cover page.

{¶ 18} This last category of records has the most obvious rebuttal purpose.

On their faces, the cover pages and itemized lists prepared by the prosecutor are

documents that Mobley requested from the prosecutor as “certified statements” that

her office had created under former R.C. 309.16(A). Each cover page states that

the itemized list following it contains three pieces of information required by

former R.C. 309.16(A)(1) for a year in the date range requested by Mobley—

namely, “[t]he number of criminal prosecutions pursued to final conviction and

sentence,” “the parties to each prosecution,” and “the number of recognizances

forfeited,” id. Each itemized list then states for the applicable date range the name

of each defendant whose recognizance was forfeited. (The lists do not specify the

number of criminal prosecutions pursued to final conviction and sentence.)

Because these documents tend to refute the prosecutor’s claim that Clausing gave

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Mobley everything he had requested, we grant Mobley’s motion for leave and admit

the documents as rebuttal evidence.

{¶ 19} We also admit the first, second, and third categories of documents as

rebuttal evidence. We recognize that former R.C. 309.16(A) did not specifically

require the prosecutor to create the documents falling under the first and second

categories. And the prosecutor has already provided Mobley with the documents

falling under the third category. But these three categories of documents help to

contextualize the last category of documents.

{¶ 20} We deny Mobley’s motion for leave to file rebuttal evidence as to

Exhibit A but grant it as to Exhibit B.

B. Mandamus

{¶ 21} Mandamus is an appropriate remedy to compel compliance with

Ohio’s 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; R.C. 149.43(C)(1)(b). To obtain a writ of mandamus, Mobley

must show that he has a clear legal right to the requested relief and that the

prosecutor has a clear legal duty to provide it. State ex rel. Ellis v. Maple Hts.

Police Dept., 158 Ohio St.3d 25, 2019-Ohio-4137, 139 N.E.3d 873, ¶ 5.

1. Vagueness

{¶ 22} We first address whether the prosecutor is correct in arguing that she

had no duty to provide Mobley with any “annual report” that accompanied a

“certified statement” for the years 2016 through 2020 submitted under former

R.C. 309.16 because his records request was impermissibly vague. In arguing that

Mobley’s request was too vague, the prosecutor points to a purported discrepancy

between what Mobley sought in his request and what he claims in his merit brief

he is entitled to now. Relevant here, Mobley argues in his brief that he is entitled

to records in addition to those he has already received, which he sometimes

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describes as the “annual report[s].” The term “annual report” did not appear in his

records request. Rather, his request used the term “certified statements.”

{¶ 23} A public-records requester has a duty “ ‘to identify with reasonable

clarity the records at issue.’ ” State ex rel. Morgan v. New Lexington, 112 Ohio

St.3d 33, 2006-Ohio-6365, 857 N.E.2d 1208, ¶ 29, quoting State ex rel. Fant v.

Tober, Cuyahoga App. No. 63737, 1993 WL 173743, *1 (Apr. 28, 1993). But the

vagueness argument here is almost certainly not supported by any failure of Mobley

to articulate with sufficient clarity the records he was seeking in his request. After

all, Mobley cited former R.C. 309.16, quoted the statute to describe a discrete

category of information specified therein (i.e., “certified statement[s]”), and limited

the temporal scope of his request to a particular period. As we see it, the

prosecutor’s main concern is that, in her view, Mobley has impermissibly used his

brief to expand his records request from what he originally sought. Indeed, the

prosecutor argues in her brief that “to the extent [Mobley] claims he was entitled to

records not listed in his original request, [the prosecutor] was under no clear legal

duty to act.” Accordingly, we will analyze this argument by the prosecutor as an

allegation that Mobley is now asking for records that he did not originally request,

not that his request was impermissibly vague.

{¶ 24} It is true that a public-records requester may not broaden the scope

of a request through a legal brief filed in pursuit of the records requested. See State

ex rel. Horton v. Kilbane, 167 Ohio St.3d 413, 2022-Ohio-205, 194 N.E.3d 288,

¶ 10. But Mobley has not done that here. The records request he submitted to the

prosecutor sought the certified statements prepared by her office under former

R.C. 309.16 for the years 2016 through 2020. And he argues in his brief that he

still has not received records that the prosecutor prepared to meet the requirements

of former R.C. 309.16(A)(1) for those years.

{¶ 25} The prosecutor notes that Mobley’s brief occasionally uses the term

“annual report” to describe the records he has not yet received. Even so, the

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prosecutor mistakenly argues that Mobley’s use of that term amounts to a request

for records that he did not ask for in his original request. On page two of his brief,

Mobley states that the prosecutor “has failed to provide the Annual Report[s] that

were given to the Hamilton County Board of Commissioners pursuant to

R.C. 309.16(A)(1).” That sentence shows that as used by Mobley, the term “annual

report” means the documents that the prosecutor’s office created to meet the

requirements of former R.C. 309.16(A)(1), which is what Mobley sought in his

original request for “certified statements.”

{¶ 26} Nor is Mobley the only party who has employed differing

terminology in describing the records that former R.C. 309.16 required to be

created. Former R.C. 309.16(A)(1) describes the records that a prosecuting

attorney had to create as a “certified statement,” but Mobley’s rebuttal evidence

shows that the prosecutor herself described the records she created under that

provision as a “report” in the cover letters and recognizances-forfeited lists her

office sent to the board. Moreover, former R.C. 309.16(D) uses the term “reports”

rather than “certified statements” in describing the records that the prosecutor was

required to “make” under former R.C. 309.16.

{¶ 27} We reject the prosecutor’s vagueness argument.

2. Mootness

{¶ 28} The prosecutor argues that this court should deny Mobley’s

mandamus claim as moot because, she says, Clausing has already sent him all the

records he requested. Generally, a public-records mandamus claim becomes moot

when the records custodian provides the requested documents. See State ex rel.

Striker v. Smith, 129 Ohio St.3d 168, 2011-Ohio-2878, 950 N.E.2d 952, ¶ 22. “A

public office may establish by affidavit that all existing public records have been

provided.” State ex rel. Frank v. Clermont Cty. Prosecutor, 164 Ohio St.3d 552,

2021-Ohio-623, 174 N.E.3d 718, ¶ 15.

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a. The records-retention schedule and records created to meet the requirements

of former R.C. 309.16(A)(2)

{¶ 29} Clausing’s affidavit and the exhibit attached to it establish that after

Mobley filed his mandamus action, she sent him the prosecutor’s records-retention

schedule and the records that the prosecutor’s office created to meet the

requirements of former R.C. 309.16(A)(2) for the years 2016 through 2020.

Because Clausing provided Mobley these records, it follows that his mandamus

claim regarding the records is moot. See Striker at ¶ 22.

b. Records created to meet the requirements of former R.C. 309.16(A)(1)

{¶ 30} Again, Clausing attests that after receiving Mobley’s request, she

provided him with all the records he had requested. But given the records that

Mobley submitted with his motion for leave to file rebuttal evidence, which we

have admitted into evidence and which evince records that the prosecutor’s office

created to meet the requirements of former R.C. 309.16(A)(1), we cannot conclude

that Clausing’s attestation moots Mobley’s claim regarding records created under

former R.C. 309.16(A)(1). As we have said, “[t]he attestations in an affidavit may

be rebutted by clear and convincing evidence showing a genuine issue of fact that

additional responsive records exist.” Frank at ¶ 15.

{¶ 31} Based on Mobley’s rebuttal evidence, we conclude that there is a

genuine question of fact regarding whether the prosecutor provided Mobley with

all the records that her office created to meet the requirements of former

R.C. 309.16(A)(1) for the years 2016 through 2020.2 We accordingly grant a

limited writ of mandamus ordering the prosecutor to provide the records that her

office created to meet the requirements of former R.C. 309.16(A)(1) and certify the

date that those records are provided or to certify that the records do not exist. See

2. A footnote in the prosecutor’s brief states, “In an effort to be transparent in the spirit of

R.C. 149.43, respondent has * * * provided Relator with the reports he request[ed] for the first time

in his merit brief.” Because this statement is not in the form of a sworn affidavit, we do not factor

it into our analysis. See Frank, 164 Ohio St.3d 552, 2021-Ohio-623, 174 N.E.3d 718, at ¶ 15.

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State ex rel. Sultaana v. Mansfield Corr. Inst., __ Ohio St.3d __, 2023-Ohio-1177,

__ N.E.3d __, ¶ 43 (granting a limited writ of mandamus ordering a records

custodian “to produce [the requested] records or to certify that no such records

exist” because there were factual questions regarding whether the records existed);

State ex rel. Barr v. Wesson, __ Ohio St.3d __, 2023-Ohio-3028, __ N.E.3d __, ¶ 29

(same).

C. Statutory damages

{¶ 32} A requester who transmits by certified mail a fairly described public-

records request to a public office is entitled to an award of statutory damages if a

court determines that the public office failed to comply with an obligation under

R.C. 149.43(B). R.C. 149.43(C)(2). “Statutory damages accrue at the rate of $100

for each business day the office failed to meet one of R.C. 149.43(B)’s obligations,

beginning on the day the requester files a mandamus action, up to $1,000.

R.C. 149.43(C)(2).” Horton, 167 Ohio St.3d 413, 2022-Ohio-205, 194 N.E.3d 288,

at ¶ 15.

{¶ 33} Here, Clausing has acknowledged that Mobley sent his request by

certified mail. And we have already determined that Mobley’s request was

sufficiently specific. Thus, the remaining question is whether, as Mobley argues,

the prosecutor’s office failed to meet its obligation to provide him with responsive

records “within a reasonable period of time,” R.C. 149.43(B)(1).

{¶ 34} We do not answer that question now. Because we are granting a

limited writ of mandamus, we defer our ruling on Mobley’s request for statutory

damages until the prosecutor has complied with the limited writ. See State ex rel.

Barr v. Wesson, __ Ohio St.3d __, 2023-Ohio-3645, __ N.E.3d __, ¶ 18 (deferring

determination of whether statutory damages were appropriate until records

custodian complied with the limited writ).

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D. Court costs

{¶ 35} Mobley requests an award of court costs. But “there are no court

costs to award,” because he filed an affidavit of indigency, State ex rel. Straughter

v. Dept. of Rehab. & Corr., 172 Ohio St.3d 335, 2023-Ohio-1543, 223 N.E.3d 475,

¶ 16.

III. CONCLUSION

{¶ 36} We deny the writ in part as moot. We grant a limited writ of

mandamus ordering the prosecutor to, within 14 days, either provide Mobley with

a copy of the records the prosecutor’s office created to meet the requirements of

former R.C. 309.16(A)(1) for the period 2016 through 2020 and certify the date that

those records are provided or certify that the records do not exist. We defer our

ruling on Mobley’s request for an award of statutory damages until the prosecutor

has complied with the limited writ. Mobley’s request for an award of court costs

is denied. And his motion for leave to file rebuttal evidence is granted in part and

denied in part.

Limited writ granted.

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

BRUNNER, JJ., concur.

DETERS, J., not participating.

_________________

Alphonso Mobley Jr., pro se.

Melissa A. Powers, Hamilton County Prosecuting Attorney, and James S.

Sayre, Assistant Prosecuting Attorney, for respondent.

_________________

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