[Cite as State of Ohio ex rel. Ware v. Fankhauser,

.]

IN THE COURT OF APPEALS OF OHIO ELEVENTH APPELLATE DISTRICT PORTAGE COUNTY

STATE OF OHIO ex rel. CASE NO. 2023-P-0030 KIMANI E. WARE,

Relator, Original Action for Writ of Mandamus - vs -

JILL FANKHAUSER,

Respondent.

PER CURIAM OPINION

Decided: October 30, 2023 Judgment: Complaint denied

Kimani E. Ware, pro se, PID# A470-743, Richland Correctional Institution, 1001 Olivesburg Road, Mansfield, OH 44905 (Relator).

Victor V. Vigluicci, Portage County Prosecutor, and Christopher J. Meduri, Assistant Prosecutor, 241 South Chestnut Street, Ravenna, OH 44266 (For Respondent).

PER CURIAM.

{¶1} This matter is before the court on a “Verified Complaint for Writ of

Mandamus,” filed by Relator, Kimani E. Ware. Respondent, Jill Fankhouser, the Portage

County Clerk of Courts, duly answered the complaint and filed a motion for summary

judgment. Relator opposed that motion and filed a motion for summary judgment on his

own behalf. Respondent opposed relator’s motion. For the reasons discussed in this

opinion, there is no genuine issue of material fact to be litigated and thus, respondent is entitled to judgment as a matter of law. For the reasons discussed in this opinion, relator’s

petition is denied and his request for statutory damages is also denied.

{¶2} Relator asserts that, on March 4, 2022, he mailed a public record request

via certified mail to respondent. The request sought (1) “a copy of the Motion for

Summary judgment filed by relator from case no.1999-P0041”; (2) “a copy of the

Judgment Entry filed on February 4, 2000 from case no.1999-P0041”; (3) “A copy of the

docket sheet from case no.1999-P0041”; and (4) “a copy of Portage co. clerk of courts

records retention schedule.” (Quotations sic.)

{¶3} Relator asserts respondent received the request on March 14, 2022. He

attached what appears to be proof of such receipt to his petition, which indicates

something was sent to the Portage County Clerk of Courts via certified mail on March 15,

2022. The alleged certificate, however, does not establish exactly what was sent to

respondent or who sent it; further, the certificate only indicates it was received by one

Michael Hahn, an employee of the Portage County Department of Internal Services.

Relator also attached a copy of his alleged March 4, 2022 request to his petition. The

copy bears a March 15, 2022 time-stamp from respondent’s office.

{¶4} Respondent maintains neither she nor her office ever received the request

allegedly sent on March 4, 2022. Respondent avers that her office has a system for

indexing requests for public records and there is no internal record of the purported

request. Respondent further avers that the Portage County Clerk of Courts office did not

stamp relator’s alleged records request dated March 4, 2022 on March 15, 2022.

Respondent, however, points out that that her office received documents captioned

“Relator’s Reply to Respondent’s Motion for Relief from Judgment” and “Affidavit of

2

Case No. 2023-P-0030 Kimani E. Ware in Support of his Reply to Respondent’s Motion for Relief from Judgment”

which were stamped “FILED COURT OF APPEALS MARCH 15, 2022 JILL

FANKHAUSER, CLERK, PORTAGE COUNTY, OH” (emphasis sic) for filing and were

docketed in the Court of Appeals Case file of State ex rel. Kimani E. Ware v. Jill

Fankhauser, Portage County Clerk of Courts, Case No. 2021-PA-0056. Still, respondent

emphasizes that her office has no record of receiving the alleged request for records

underlying this matter.

{¶5} Respondent maintains, in light of the above averments, the first time her

office was notified of the alleged request was upon relator’s filing of the underlying petition

on May 11, 2023. Once alerted, on May 15, 2023, respondent complied with appellant’s

request and sent him (1) a copy of the motion for summary judgment he requested; (2) a

copy of the docket sheet he requested; and (3) a copy of the Clerk of Courts’ retention

schedule. Respondent stated, however, that a copy of the February 4, 2000 judgment

entry that relator requested did not exist.

{¶6} In response to respondent’s assertions, relator contends that not only did

respondent receive his March 2022 request, but, even after respondent attempted to

comply with the request in May 2023, she only partially complied. Relator claims that he

only received a copy of the motion for summary judgment and a copy of the docket

certificate. He avers that, despite respondent’s representations, he did not receive a copy

of the Clerk of Courts’ retention schedule. In support of this averment, he attached an

alleged correspondence from respondent that indicates she enclosed only the above two

records.

3

Case No. 2023-P-0030 {¶7} In light of the foregoing, we are asked to determine whether either party is

entitled to summary judgment on relator’s petition for writ of mandamus relating to the

alleged records request purportedly filed on March 4, 2022. Or, alternatively, whether the

motions and responses are sufficient to create a genuine issue of material fact such that

triable issues remain.

{¶8} A petition for writ of mandamus is the appropriate vehicle to compel

compliance with Ohio’s Public Records Act. State ex rel. Physicians Commt. for

Responsible Medicine v. Ohio State Univ. Bd. of Trustees,

, 2006-

Ohio-903,

. Generally, to be entitled to a writ of mandamus, the relator

must be able to satisfy the following three elements: “(1) the relator must have a clear

legal right to have the public official perform a particular act; (2) the official must have a

clear legal duty to do the act; and (3) the relator does not have another adequate remedy

at law.” State ex rel. Brown v. Logan 11th Dist. Trumbull No. 2004-T-0088, 2004-Ohio-

6951, ¶ 4, citing State ex rel. Greene v. Enright,

,

(1992). A relator in a public-records-request case, however, is not required to establish a

lack of an adequate remedy at law. State ex rel. Data Trace Information Servs., L.L.C. v.

Cuyahoga Cty. Fiscal Officer,

,

,

, ¶

25.

{¶9} Civ.R. 56(C) provides that summary judgment is proper when:

(1) [n]o genuine issue as to any material fact remains to be litigated;

(2) the moving party is entitled to judgment as a matter of law; and

(3) it appears from the evidence that reasonable minds can come to but one conclusion, and viewing such evidence most 4

Case No. 2023-P-0030 strongly in favor of the party against whom the motion for summary judgment is made, that conclusion is adverse to that party.

Temple v. Wean United, Inc.,

,

(1977).

{¶10} The party moving for summary judgment has the initial burden of producing

some evidence demonstrating the lack of a genuine issue of material fact. Dresher v.

Burt,

,

(1996). In doing so, “a party seeking

summary judgment, * * * bears the initial burden of informing the trial court of the basis

for the motion, and identifying those portions of the record that demonstrate the absence

of a genuine issue of material fact on the essential element(s) of the nonmoving party’s

claims.”

. The nonmoving party must then rebut the moving party’s position

with specific facts demonstrating the existence of a genuine triable issue; he or she may

not rest on the mere allegations or denials of his pleadings.

{¶11} A motion for summary judgment cannot be defeated by relying solely on

conclusory allegations unsupported by evidentiary-quality materials, but must set forth

specific facts demonstrating there is a genuine issue for trial. See Welch v. Ziccarelli,

11th Dist. Lake No. 2006-L-229,

. “Summary judgment must be

entered ‘against a party who fails to make a showing sufficient to establish the existence

of an element essential to that party’s case, and on which that party will bear the burden

of proof at trial.’” United States v. Carter,

(9th Cir. 1990),

quoting Celotex Corp. v. Catrett,

,

,

(1986). In deciding a motion for summary judgment the court views the factual evidence

and draws all reasonable inferences in favor of the nonmoving party. Murphy v.

Reynoldsburg,

,

(1992).

5

Case No. 2023-P-0030 {¶12} This court, however, is not bound to blindly adopt a non-moving party’s

version of the facts. “‘When the moving party has carried its burden under Rule 56(C),

its opponent must do more than simply show that there is some metaphysical doubt as to

the material facts * * * Where the record taken as a whole could not lead a rational trier

of fact to find for the nonmoving party, there is no “genuine issue for trial.”’” (Emphasis

added.) Scott v. Harris,

,

,

(2007),

quoting Matsushita Elec. Industrial Co. v. Zenith Radio Corp.,

,

,

(1986).

{¶13} “[T]he mere existence of some alleged factual dispute between the parties

will not defeat an otherwise properly supported motion for summary judgment; the

requirement is that there be no genuine issue of material fact.” (Emphasis sic.) Anderson

v. Liberty Lobby, Inc.,

,

,

(1986).

“When opposing parties tell two different stories, one of which is blatantly contradicted by

the record, so that no reasonable jury could believe it, a court should not adopt that

version of the facts for purposes of ruling on a motion for summary judgment.”

; see also Oko v. Cleveland Division of Police, 8th Dist. Cuyahoga No. 110025, 2021-

Ohio-2931, ¶ 26. “In short, the central issue on summary judgment is, ‘whether the

evidence presents sufficient disagreement to require submission to a jury or whether it is

so one-sided that one party must prevail as a matter of law.’” Puljic v. State Farm Fire &

Casualty Company,

,

(11th Dist.), quoting

.

{¶14} The primary issue in this matter is whether relator has set forth a claim in

mandamus pursuant to his assertion that respondents has failed to fully comply with his

6

Case No. 2023-P-0030 public-records request. As noted above, four days after relator filed his petition for writ

of mandamus, respondent averred she complied with his request. Respondent attached

a copy of the letter, dated May 15, 2023, of compliance to her motion for summary

judgment, which set forth each of the items detailed in the petition (excluding the judgment

entry of February 4, 2000 because it did “not exist”), as well as the cost for copying the

documents; to wit: “34 pages @ $.10 per page = $3.40.”

{¶15} In his reply, relator concedes he received two of the four documents and

did not take direct issue with the “non-existent” judgment entry. Relator, however,

asserted he did not receive a copy of the Clerk of Courts’ Retention Schedule, as sought

in his request. In support, relator attached what appears to be a copy of a different letter

sent by respondent which shows compliance with two of the requests, but fails to indicate

a copy of the Clerk of Courts’ Retention Schedule that was distinctly present in the letter

attached to respondent’s motion. Also, conspicuously absent from the letter attached to

relator’s reply is a date on which the correspondence was sent by respondent as well as

the amount relator was required to remit for a copying fee.

{¶16} There is clearly a dispute as to what was sent and also a dispute regarding

which letter is a (or the) true and accurate letter sent by respondent. It is unreasonable

that respondent would send two letters, one in compliance with the request (dated) and

the other only in partial compliance (undated). And a review of the undated letter attached

to relator’s reply appears to be altered – there is visible artifacting on the letter indicating

it was a modified version from a separate letter. We cannot ignore this empirically

obvious point.

7

Case No. 2023-P-0030 {¶17} Moreover, in relator’s alleged original request, which he attached to the

petition for writ of mandamus, he asks the clerk of courts to “[p]lease inform me of [the]

number of pages for the above records and the cost for copying and postage cost to mail

these records to me.” In the letter respondent attached to her motion for summary

judgment, she complies with the request, in full, to the extent the records were available

and itemizes the pages and cost of the copies. No such information appears in the

version of the letter appended to relator’s reply.

{¶18} In light of the above, we hold that any reasonable trier of fact would find the

letter attached to relator’s reply was an altered version of the dated and more precisely

detailed letter attached to respondent’s motion. In light of the “reasonableness”

component built into a Civ.R. 56 analysis, we conclude that a response or reply that

appears to be altered or even redacted, is insufficient to create a genuine, reasonable

question of material fact for trial. This conclusion is further buttressed by the substantive

content of the letter attached to respondent’s motion; to wit, it includes the date it was

sent (an important fact for measuring the reasonableness of compliance with a public-

records request) and a complete statement of compliance with the requests itemized in

the request attached to relator’s petition. We therefore conclude, in light of the evidentiary

submissions, that no reasonable fact finder would conclude that the (1) respondent sent

two different letters, one dated with full compliance and one undated with partial

compliance, and (2) that the compliance letter attached to respondent’s motion, in light of

relator’s particular requests, was apocryphal.

{¶19} “In general, providing the requested records to the relator in a public-

records mandamus case renders the mandamus claim moot.” State ex rel. Toledo Blade 8

Case No. 2023-P-0030 Co. v. Toledo-Lucas Cty. Port Auth.,

,

,

, citing State ex rel. Toledo Blade Co. v. Ohio Bur. of Workers' Comp.,

,

,

. We accordingly conclude that

respondent has met her burden of establishing there is no genuine issue of material fact

that she fully complied, to the extent possible, with respondent’s requests. In this respect,

relator’s petition for writ of mandamus is moot and therefore denied.

{¶20} We must next address, however, whether relator is entitled to statutory

damages. A relator may receive an award of statutory damages even where he or she

fails to prevail on a petition for writ of mandamus where the respondent took an

unreasonable length of time to produce the records. State ex rel. Ware v. Stone, 5th Dist.

Stark No. 2021CA00042,

. A requester, however, must

demonstrate by clear and convincing evidence that he or she made the request by one

of the methods of delivery set forth under R.C. 149.43(C)(2). See State ex rel. Pietrangelo

v. Avon Lake,

,

,

. Specifically,

“by hand delivery, electronic submission, or certified mail.” R.C. 149.43(C)(2).

{¶21} Relator contends his request was received by the Portage County Clerk of

Courts on March 15, 2022. He attaches a copy of the request to his petition which bears

the stamp of the Portage County Clerk and also a copy of a certified mail receipt dated

March 14, 2022, signed by one Michael Hahn. Relator argues that this evidence

demonstrates respondent received his request, at the latest, on March 15, 2022, and her

failure to comply with the request until May of 2023 was unreasonable as a matter of law.

{¶22} Respondent avers her office never received the request at issue and the

first time she became aware of the request was relator’s filing of the underlying petition.

9

Case No. 2023-P-0030 Respondent states the records of her office do not include an indexing of the alleged

request at issue. She acknowledges relator’s attachment which suggests a request was

sent to her office on March 4, 2022 and which appears to be time-stamped by her office

on March 15, 2022. Respondent also recognizes relator submitted a copy of a certified

mail receipt dated March 14, 2022. Respondent maintains, however, these submissions

do not imply, let alone establish by clear and convincing evidence, that her office received

the alleged request through the proper, available statutory methods, i.e.,

“by hand delivery, electronic submission, or certified mail.” R.C. 149.43(C)(2).

{¶23} Respondent observes that the time-stamped request attached to relator’s

complaint, unto itself, fails to establish the request was made by one of the available

statutory means. Further, the certified-mail receipt only establishes something was

received by one Michael Hahn, an employee of the Portage County Department of

Internal Services. This does not, however, establish her office received a request by

certified mail. In short, respondent contends that neither of these points, taken

independently or together, establish, by clear and convincing evidence, that her office

received the request in one of the manners prescribed by statute.

{¶24} The dispute centers around when and how respondent became aware of

the public records request. The Supreme Court of Ohio has considered similar questions

in other cases. In Pietrangelo,

, the dispute was whether the relator had

properly hand delivered his public-records request. The Court reviewed the evidence,

including competing affidavits, which were deemed inconclusive. As a result, the Court

determined the relator failed to demonstrate, by clear and convincing evidence, that the

10

Case No. 2023-P-0030 request was delivered by hand. Id. at ¶ 27. The court maintained, therefore, the relator

was not entitled to statutory damages. Id.

{¶25} Similarly, in State ex rel. Ware v. Giavasis,

, 2020-Ohio-

2453,

, the relator in this matter was also a requester to a different

clerk of courts. Relator claimed that he sent seven requests in one envelope by certified

mail. The clerk received the delivery by certified mail but averred there was only one

request in the envelope. Again, relator and the clerk presented contradictory affidavits

about the contents of the request. The Supreme Court determined that:

[t]he envelope itself is in the record, but it does not prove anything about its contents one way or the other. Ware states in his affidavit that he sent seven requests. The clerk’s office, on the other hand, submitted affidavit testimony that the office had received only a single request and that a search of the office did not locate Ware’s other six requests. Thus, the evidence on this point is evenly balanced. And in such a situation, the requester has not satisfied the heightened burden of proof necessary for an award of statutory damages.

Id. at ¶ 32.

{¶26} Relator maintains his March 2022 request was received by certified mail by

respondent. He claims he provided adequate proof of this point by attaching what he

purports is a time-stamped copy of the alleged request and a copy of the receipt of the

certified mail received on March 14, 2022.

{¶27} Conversely, respondent avers that her office never received the alleged

request in March 2022. Respondent asserts her office received a request for different

records from relator in March 2022, with which her office complied. Respondent details

the indexing process to which all time-stamped documents are subject. Respondent

11

Case No. 2023-P-0030 denies the alleged record request at issue was ever received because it was never

indexed in the system.

{¶28} In additional support, respondent emphasizes that, even assuming the

alleged request was sent, it was signed for by an employee of the Portage County

Department of Internal Services, not an employee of the clerk’s office. Respondent

maintains she first became aware of the request on May 11, 2023 and, several days later,

her office complied with the same. Respondent therefore concludes that relator has failed

to establish, by clear and convincing evidence, he is entitled to statutory damages.

{¶29} Similar to the cases discussed above, relator and respondent have

submitted evidence that is “evenly balanced.” As the Supreme Court has concluded,

however, a requester cannot meet his or her heightened burden that a request was sent

by certified mail where the evidence is fundamentally and evenly in conflict. We therefore

agree with respondent that relator, providing only his self-serving averments in support of

his petition, has failed to establish by clear and convincing evidence that he is entitled to

statutory damages. In other words, relator has failed to advance evidence that would

create a firm conviction or belief that there was an unreasonable delay between the time

respondent received the request and the time she or her office complied with the request.

{¶30} For the reasons discussed in this opinion, respondent’s motion for summary

judgment is granted. By implication, relator’s “Verified Complaint for Writ of Mandamus”

is denied and his request for statutory damages is similarly denied.

JOHN J. EKLUND, P.J., MARY JANE TRAPP, J., EUGENE A. LUCCI, J., concur.

12

Case No. 2023-P-0030