[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
ex rel. Barr v. Wesson, Slip Opinion No. 

.]




                                           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. 

                        THE STATE EX REL . BARR v. WESSON.
  [Until this opinion appears in the Ohio Official Reports advance sheets, it
                     may be cited as State ex rel. Barr v. Wesson,
                          Slip Opinion No. 

.]
Mandamus—Public-records request—R.C. 149.43—Warden’s assistant provided
        record in response to inmate’s public-records request and claimed that
        other records did not exist—Inmate met burden by clear and convincing
        evidence that one requested record warden’s assistant did not produce
        existed at one time—Warden’s assistant ordered to provide requested
        record or show cause why record cannot be produced—Limited writ
        granted.
   (No. 2023-0113—Submitted August 22, 2023—Decided October 10, 2023.)
                                       IN MANDAMUS.
                                   __________________
Per Curiam.
        {¶ 1} Relator, Harry M. Barr, filed this action for a writ of mandamus to
order respondent, James Wesson, the warden’s assistant at the Grafton Correctional
Institution (“GCI”), to produce records in response to a December 2022 public-
                               January Term, 2023




records request in which Barr sought copies of three documents. Barr also seeks
statutory damages under Ohio’s Public Records Act, R.C. 149.43, and has moved
to strike the evidence that Wesson submitted in this case.
       {¶ 2} Wesson avers that he responded fully to the public-records request
before Barr commenced this action. Specifically, he claims that he provided a copy
of one of the requested records but says the other two do not exist. Barr, however,
has shown by clear and convincing evidence that one of the records that Wesson
did not produce—a copy of an electronic kite—did, in fact, exist at one time. We
therefore grant a limited writ ordering Wesson to provide a copy of the kite or show
cause why the record cannot be produced. We defer our consideration of Barr’s
request for statutory damages until Wesson has complied with the limited writ, and
we deny Barr’s motion to strike.
            I. FACTUAL AND PROCEDURAL BACKGROUND
       {¶ 3} Barr is an inmate at GCI. On December 5, 2022, Barr sent a public-
records request by electronic kite to Wesson, the person in charge of responding to
public-records requests submitted to GCI. Barr requested three records: (1) the
“GCI record-retention schedule,” (2) a list of all GCI employees, and (3) a “mental
health kite” dated April 21, 2022, with reference number GCI0422002492.
       {¶ 4} Barr commenced this action on January 27, 2023, seeking a writ of
mandamus ordering Wesson to provide the requested records and an award of
statutory damages under R.C. 149.43(C)(2). Wesson filed an answer, asserting that
Barr was not entitled to relief. This court granted an alternative writ and set a
schedule for the submission of evidence and briefing. 

, 2023-
Ohio-1116, 

.
       {¶ 5} Barr and Wesson filed evidence, but only Barr filed a merit brief. Barr
submitted an affidavit in which he asserts that as of April 13, 2023, the date he
signed his affidavit, he had not received any of the records he requested or an
explanation regarding why the records were not made available to him.




                                         2
                                January Term, 2023




        {¶ 6} Wesson also submitted an affidavit as evidence in this case. In that
affidavit, Wesson claims that he provided the requested employee list to Barr but
did not provide the other two requested records. Wesson says he informed Barr on
December 23, 2022, that GCI records did not include the mental-health kite that
Barr sought in his public-records request. Wesson also says that he did not provide
a “GCI record-retention schedule” because no such record existed and that GCI
follows the record-retention schedule of the Ohio Department of Rehabilitation and
Correction (“DRC”) and does not have its own, institution-specific schedule.
        {¶ 7} After Wesson’s time for filing his merit brief had expired, Barr filed
a motion to strike Wesson’s affidavit, arguing that Wesson’s affidavit was
“fraudulent.” To rebut the averments in Wesson’s affidavit, Barr attached to his
motion to strike an affidavit and exhibits. Wesson did not respond to Barr’s motion
to strike.
                                 II. ANALYSIS
                               A. Motion to Strike
        {¶ 8} Barr moves to strike Wesson’s evidence and to sanction Wesson. He
claims that Wesson “fraudulently” testified that the “mental health kite” Barr
requested does not exist. Barr’s motion further asserts that he did not receive the
requested list of all GCI employees until May 10, 2023. Barr argues that Wesson’s
testimony is false and unsupported by other evidence of record.
        {¶ 9} We deny the motion to strike. Barr’s argument goes to the weight of
the evidence, not its admissibility. In an original action, “we are capable of
determining questions of relevance and assigning appropriate weight without
striking evidence or arguments.” State ex rel. Tam O’Shanter Co. v. Stark Cty. Bd.
of Elections, 

, 

, 

, ¶ 11.
                              B. Mandamus Claim
        {¶ 10} Ohio’s Public Records Act requires a public office to make copies
of public records available to any person upon request within a reasonable time.




                                         3
                                 January Term, 2023




R.C. 149.43(B)(1). Mandamus is an appropriate remedy to compel compliance
with the Public Records Act. R.C. 149.43(C)(1)(b); State ex rel. Physicians
Commt. for Responsible Medicine v. Ohio State Univ. Bd. of Trustees, 

, 

, 

. To be entitled to the writ, Barr
must prove by clear and convincing evidence that the records he requested exist
and are public records maintained by Wesson. State ex rel. Cordell v. Paden, 

, 

, 

. Clear and convincing
evidence is a measure or degree of proof that is more than a preponderance of the
evidence but less than the beyond-a-reasonable-doubt standard required in a
criminal case, and that produces in the trier of fact’s mind a firm belief of the fact
sought to be established. State ex rel. Miller v. Ohio State Hwy. Patrol, 

, 

, 

.
       {¶ 11} Barr argues that Wesson failed to respond at all to his public-records
request before Barr commenced this action. For his part, Wesson submitted an
affidavit attesting that he did, in fact, respond to Barr’s request. Wesson testifies
that he provided a complete list of all GCI employees, as Barr requested, and that
he notified Barr that GCI records did not include a mental-health kite with reference
number GCI0422002492. Wesson has attached to his affidavit the documents that
he sent to Barr, which include (1) the list of all GCI employees and (2) a
memorandum dated December 23, 2022, from Wesson to Barr stating that “[a]t this
time there is no reference number found under reference number GCI0422002492.”
Wesson also testifies that no “GCI record-retention schedule” exists because GCI
follows the DRC system-wide retention schedule and does not have a separate
institution-specific schedule.
       {¶ 12} Barr does not challenge Wesson’s testimony with respect to the
records-retention schedule.      However, he contends that Wesson’s averments
relating to the other two requested records “are lies, and fraud upon the Court.” In
support of his fraud allegation, Barr has attached copies of letters he has received




                                          4
                                 January Term, 2023




from Wesson in response to other public-records requests, which, according to
Barr, “represent the kind of letter of acknowledgment” that Wesson typically sends.
In these other responses, Wesson’s letters acknowledged receipt of Barr’s public-
records requests, identified the records being produced, stated that other requested
records did not exist, and contained Wesson’s signature block. Because these
letters differ in form from the December 23 memorandum that Wesson submitted
as evidence in this case, Barr infers that the latter is fraudulent.
        {¶ 13} We are unpersuaded by Barr’s argument. Wesson testifies that he
responded to Barr’s public-records request and that he provided all existing
responsive records. Barr disputes the truth of Wesson’s testimony, swearing that
he did not receive any response before he filed his complaint and that he did not
receive the requested GCI-employee list until May 10, 2023. At best, the evidence
regarding the issue whether Wesson responded to Barr’s public-records request is
evenly balanced. And in such a situation, the requester has failed to satisfy a clear-
and-convincing standard of proof. See State ex rel. Ware v. Giavasis, 

, 

, 

. Barr is therefore not entitled to
a writ of mandamus based on a claim that Wesson failed to respond at all to the
December 2022 public-records request.
        {¶ 14} Regarding the substance of Wesson’s response to the public-records
request, Barr disputes Wesson’s claim that there is no mental-health kite with
reference number GCI0422002492 from April 21, 2022. Barr has submitted as
evidence a document purporting to be a copy of his kite log, printed on August 30,
2022, which Barr obtained via a separate public-records request. The document
shows a kite with reference number GCI0422002492 having been transmitted by
Barr on April 21, 2022. Barr says this document “establishes that kite number
GCI0422002492 does in fact exist.”
        {¶ 15} The kite log Barr has submitted as evidence—the authenticity of
which Wesson has not disputed—identifies the specific kite that Barr requested in




                                           5
                                January Term, 2023




his December 2022 public-records request. This log is clear and convincing
evidence that rebuts Wesson’s testimony that “GCI records do not include” the
mental-health kite that Barr requested. At the very least, the evidence shows that
the kite existed in GCI’s records a little more than three months before Barr sent
his public-records request. We therefore grant a limited writ of mandamus ordering
Wesson to produce a copy of the kite with reference number GCI0422002492 or to
show cause why the record cannot be produced. See State ex rel. Sultaana v.
Mansfield Corr. Inst., __ Ohio St.3d __, 

, __ N.E.3d __, ¶ 43
(granting a limited writ ordering a prison to produce records or to certify that no
such records exist).
                              C. Statutory Damages
       {¶ 16} R.C. 149.43(C)(2) provides that a public-records requester shall be
entitled to statutory damages if (1) he made a public-records request by one of the
statutorily prescribed methods, (2) he made the request to the public office
responsible for the requested records, (3) he fairly described the records being
requested, and (4) the public office failed to comply with an obligation under R.C.
149.43(B). The amount of damages accrues at $100 for each business day during
which Wesson failed to meet his R.C. 149.43(B) obligations, beginning on the day
that Barr filed this mandamus action, up to a maximum of $1,000.                 R.C.
149.43(C)(2).
       {¶ 17} In this case, Barr is eligible for an award because he transmitted his
public-records request by electronic kite. See State ex rel. Griffin v. Sehlmeyer, 

, 

, 

. And Wesson does not
dispute that he is a proper respondent or that Barr’s request fairly described the
records sought. Accordingly, the issue of a statutory-damages award turns on
whether Wesson failed to comply with an obligation under R.C. 149.43(B).
       {¶ 18} It is premature to determine whether an award of statutory damages
is appropriate. As noted above, Barr has provided evidence that the kite with




                                          6
                                  January Term, 2023




reference number GCI0422002492 existed at some point. If Wesson produces the
kite in response to a limited writ, then Barr will have shown that Wesson failed to
comply with his obligation to produce it under R.C. 149.43(B), entitling Barr to an
award of statutory damages. See State ex rel. Rogers v. Dept. of Rehab. & Corr.,

, 

, 

. But if Wesson
responds to the show-cause portion of the limited writ with proof that GCI did not,
in fact, have the kite on December 5, 2022 (i.e., the date of Barr’s public-records
request), then Barr will not have proven a violation of R.C. 149.43(B).
Accordingly, we defer our determination of statutory damages until Wesson has
complied with the limited writ.
                                III. CONCLUSION
       {¶ 19} For the foregoing reasons, we grant a limited writ of mandamus
ordering Wesson to, within 14 days, either produce a copy of the kite with reference
number GCI0422002492 or show cause why the record cannot be produced. We
defer our determination of statutory damages until Wesson has complied with the
limited writ. We deny Barr’s motion to strike.
                                                              Limited writ granted.
       KENNEDY, C.J., and DEWINE, DONNELLY, STEWART, BRUNNER, and
DETERS, JJ., concur.
       FISCHER, J., dissents.
                                __________________
       Harry M. Barr, pro se.
       Dave Yost, Attorney General, and George Horváth, Assistant Attorney
General, for respondent.
                           ________________________




                                          7