State v. Parikh

225 N.E.3d 911

172 Ohio St.3d 515

2023-Ohio-759

The STATE EX REL. WARE

v.PARIKH¹, Clerk.

No. 2022-0191

Supreme Court of Ohio.

Submitted January 10, 2023

Decided March 15, 2023

In Mandamus.

Kimani Ware, pro se.

Joseph T. Deters, Hamilton County Prosecuting Attorney, and Philip R. Cummings, Assistant Prosecuting Attorney, for respondent.

Per Curiam.

₅₁₅{¶ } This is an original action brought by relator, Kimani E. Ware, against respondent, Hamilton County Clerk of Courts Pavan Parikh. Ware seeks a writ of mandamus ordering Parikh to provide copies of three oaths of office and various court records from a 2001 case. Ware also seeks awards of statutory damages and court costs. We previously denied Ware’s motion for default judgment and Parikh’s motion to dismiss and granted an alternative writ. State ex rel. Ware v. Pureval, 166 Ohio St.3d 1528, 2022-Ohio-1837, 188 N.E.3d 196. We now grant the writ of mandamus in part and deny it in part, and we award Ware statutory damages in the amount of $1,000 as well as court costs.

₅₁₆I. BACKGROUND

{¶ } Ware is an inmate at the Richland Correctional Institution. In February 2021, he sent a public-records request by certified mail to the Hamilton County clerk of courts, requesting two categories of records. First, Ware sought "the following judges[’] oaths of office[:] (1) Charles J. Kubicki, (2) Lisa C. Allen, (3) Thomas O. Beridon." Second, he sought "the following from case no. C-010153[:] Docket sheet, writ of mandamus complaint, Motion To Dismiss, Judgment Entry filed on July 27, 2001." Neither party addresses the basic facts of the case from category No. 2, but it was an original action in mandamus that was filed in the First District Court of Appeals by a newspaper company seeking access to exhibits from a criminal case. See State ex rel. Cincinnati Enquirer v. Dinkelacker, 144 Ohio App.3d 725, 761 N.E.2d 656 (1st Dist.2001).

{¶ } The clerk did not respond to Ware’s public-records request.

{¶ } In February 2022, Ware filed this action in this court, seeking a writ of mandamus and awards of statutory damages and court costs. Ware and the clerk have both filed merit briefs, but only Ware filed evidence.

II. ANALYSIS

A. Mandamus

[1, 2] {¶ } Mandamus is an appropriate remedy to compel compliance with R.C. 149.43, 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 the writ, Ware must show that he has a clear legal right to the requested relief and that Parikh 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, 189 N.E.3d 873, ¶ 5.

1. Oaths of office

[3] {¶ } Ware seeks copies of three oaths of office. The clerk argues, however, that Ware is not entitled to them in this action, because he used the incorrect vehicle to request them. According to the clerk, Ware should have sought the records under the Rules of Superintendence for the Courts of Ohio, not R.C. 149.43, Ohio’s Public Records Act.

[4, 5] {¶ } Whether the Public Records Act or the Rules of Superintendence apply is a threshold issue in public-records cases, State ex rel. Ware v. Kurt, 169 Ohio St.3d 223, 2022-Ohio-1627, 203 N.E.3d 665, ¶ 10. "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." Id. at ¶ 12. In Kurt, this court ₅₁₇determined that a record memorializing a judge’s oath of office was an "administrative document" governed by the Rules of Superintendence "because [it] recorded the operations of the court," Id. at ¶ 16, citing Sup.R. 44(G)(1) (defining "[a]dministrative document" as 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).

[6] {¶ } Here, Ware’s letter to the clerk requesting the oaths of office did not invoke either the Public Records Act or the Rules of Superintendence; rather, the letter simply stated that it was a "Public Records Request." That phrasing by itself "is not fatal," because a requester generally heed not cite legal authority as the basis for a request. State ex rel. Ware v. Giavasis, 163 Ohio St.3d 359, 2020-Ohio-5453, 170 N.E.3d 788, ¶ 19. What is fatal, however, is that Ware "invoked only the Public Records Act in this action" (emphasis sic), id. Because Ware has used the wrong vehicle for requesting copies of the oaths of office, we deny the writ of mandamus as to those records.

2. Records related to Cincinnati Enquirer

[7] {¶ } The second pari of Ware’s request seeks the docket sheet, writ of mandamus complaint, motion to dismiss, and July 27, 2001 judgment entry in Cincinnati Enquirer, 144 Ohio App.3d 725, 761 N.E.2d 656. The clerk argues that R.C. 149.43(B)(8) forecloses Ware’s right to receive these records because the case "dealt with criminal case records for a case initiated prior to July 1, 2009."

{¶ } The significance of July 1, 2009, lies in the fact that "[r]equests for case documents in cases commenced on or after July 1, 2009, are governed by the Rules of Superintendence, not the Public Records Act." Giavasis at ¶ 18. Because Cincinnati Enquirer was a 2001 case, we must apply the provisions of R.C. 149.43, Ohio’s Public Records Act. R.C. 149.43(B)(8) provides that a public office has no duty to provide an inmate with "any public record concerning a criminal investigation or prosecution" unless the "judge who imposed the sentence * * * finds that the information sought in the public record is necessary to support what appears to be a justiciable claim of the person." Thus, when an inmate seeks a public record from a criminal case that was commenced before July 1, 2009, the public office has no duty to provide the record in the absence of a finding by the sentencing judge that the inmate’s claim appears to be valid. See Giavasis at ¶ 15. But Cincinnati Enquirer was not a criminal case; it was an original action in mandamus, which is a civil action. See State ex rel. Ohio Dept. of Health v. Sowald, 65, Ohio St.3d 338, 343, 603 N.E.2d 1017 (1992).

{¶ } The clerk’s argument appears to present a novel issue concerning the scope of R.C. 149.43(B)(8). Although we have construed R.C. 149.43(B)(8)’s ₅₁₈predecessor (former R.C. 149.43(B)(4)) as "broad and encompassing," State ex rel. Russell v. Thornton, 111 Ohio St.3d 409, 2006-Ohio-5858, 856 N.E.2d 966; ¶ 14, neither party in this case cites a decision considering whether the statute applies to an inmate’s request for records from a mandamus action in which the underlying subject matter concerned a criminal prosecution.

{¶ } We conclude that the clerk has not met his burden to show that the exception applies. See State ex rel. Myers v. Meyers, 169 Ohio St.3d 536, 2022-Ohio-1915, 207 N.E.3d 579, ¶ 30 (a records custodian bears the burden of establishing the applicability of an exception to disclosure). First, although the clerk cites Kurt, 169 Ohio St.3d 223, 2022-Ohio-1627, 203 N.E.3d 665, as support for the argument that Ware "cannot demonstrate a clear legal right to compel [the clerk] to produce [the requested] documents," that case is distinguishable. This court’s analysis of R.C. 149.43(B)(8) in Kurt pertains to an application of that statute to a requester’s attempt to obtain the transcript of a 9-1-1 call from his own criminal case. Second, the clerk merely quotes R.C. 149.43(B)(8) without meaningfully analyzing whether the records sought by Ware would fall within the scope of those "concerning a criminal investigation or prosecution." Last, the clerk completely ignores the First District’s decision in Cincinnati Enquirer, 144 Ohio App.3d 725, 761 N.E.2d 656, which contains a summary of the underlying facts of that case.

{¶ } Because the clerk has failed to meet his burden, we grant the writ and order him to produce the requested records from the Cincinnati Enquirer case.

B. Statutory damages

{¶ } A requester who transmits by certified mail a fairly described public-records request is entitled to an award of statutory damages if a court determines that the public office has failed to comply with an obligation of R.C. 149.43(B).² R.C. 149.43(C)(2). One of the obligations stated in R.C. 149.43(B) is that the public office "‘promptly" make the records available to the requester. See Myers at ¶ 60, citing R.C. 149.43(B)(1). "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." State ex rel, Horton v. Kilbane, 167 Ohio St.3d 413, 2022-Ohio-205, 194 N.E.3d 288, ¶ 15, citing R.C. 149.43(C)(2).

[8] {¶ } Because we grant a writ of mandamus ordering Parikh to produce the requested records from Cincinnati Enquirer, 144 Ohio App.3d 725, 761 ₅₁₉N.E.2d 656, we award Ware $1,000 in statutory damages for the clerk’s delay in producing these records, which has persisted for more than ten business days from the filing of this action. But we deny Ware’s request for an award of statutory damages as to the documents related to the oaths of office. These documents are governed by the Rules of Superintendence, which "do not authorize statutory damages under any circumstances," State ex rel. Harris v. Pureval, 155 Ohio St.3d 343, 2018-Ohio-4718, 121 N.E.3d 337, ¶ 11.

C. Court costs

[9] {¶ } Under R.C. 149.43(C)(3)(a)(i), a court shall determine and award court costs if it orders a public office to comply with R.C. 149.43(B). Because we are granting a writ of mandamus ordering Parikh to produce records relating to Cincinnati Enquirer, we award Ware court costs.

III. CONCLUSION

{¶ } For the foregoing reasons, we grant the...