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

.]
Mandamus—Public records—Relator not entitled to statutory damages because
        he failed to carry his burden of proving by clear and convincing evidence
        that public office violated Public Records Act by failing to submit a copy of
        his alleged request to that office—Writ denied as moot.
    (No. 2024-0220—Submitted August 13, 2024—Decided October 3, 2024.)
                                       IN MANDAMUS.
                                   __________________
        The per curiam opinion below was joined by KENNEDY, C.J., and FISCHER,
DEWINE, DONNELLY, STEWART, BRUNNER, and DETERS, JJ.
                             SUPREME COURT OF OHIO




       Per Curiam.
       {¶ 1} Relator, Alphonso Mobley Jr., requests a writ of mandamus ordering
the production of records responsive to a public-records request he claims to have
sent to respondent, Peggy Viehweger, former chair of the Ohio University board of
trustees (“the university”). Mobley also seeks an award of statutory damages.
       {¶ 2} Because the university has provided Mobley with the records he
allegedly requested, we deny the writ as moot. We also deny Mobley’s request for
statutory damages.
              FACTUAL AND PROCEDURAL BACKGROUND
       {¶ 3} Mobley is an inmate at Southeastern Correctional Institution. He
claims to have sent a public-records request to the university in December 2023
seeking copies of four records: (1) the university’s records-retention manual, (2)
“Ohio University policy number 40.007,” (3) a recent list of correspondence
courses for correctional education, and (4) an application for admission to the
university’s correctional-education program. Mobley alleges that he sent the
request to the university by certified mail.
       {¶ 4} Mobley contends that the university responded to his request by
providing only policy number 40.007. He also alleges that along with the policy,
the university included a letter saying, “Thank you for your interest in Ohio
University’s Correctional Education program. Unfortunately, we are not accepting
new students to the program at this time and are therefore unable to offer you
admission.” But according to Mobley, the university provided none of the other
records he allegedly requested.
       {¶ 5} Mobley commenced this action in February 2024, alleging that the
university had failed to comply with R.C. 149.43(B).        He sought a writ of
mandamus ordering the university to provide copies of the remaining records he
allegedly requested. Mobley also asked for an award of statutory damages under




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                                     January Term, 2024




R.C. 149.43(C).1 After the university answered the complaint, this court granted
an alternative writ and set a schedule for the parties’ submission of evidence and
merit briefs. 

.
        {¶ 6} Mobley submitted as evidence a certified-mail receipt purporting to
show that he had mailed something to the university that he directed to the
correctional-education records manager and that the item was delivered to the
university and signed for by a “G. Johnson.” According to Mobley, this mailing
shows that the university received his public-records request. Mobley has not,
however, submitted a copy of the written request he purportedly sent by certified
mail.
        {¶ 7} In opposition to Mobley’s claim, the university submitted an affidavit
from a paralegal in the university’s office of legal affairs. Her responsibilities
include “overseeing responses to known public records requests” made to the
university. The paralegal attested that the university first learned of Mobley’s
alleged public-records request when it was served with the summons and complaint
in this action in February 2024.
        {¶ 8} The university investigated the allegations in Mobley’s complaint and
determined that the person who signed the certified-mail receipt attached to
Mobley’s complaint was Gena Johnson, the manager of mail services at the
university. The correctional-education program does not keep a log of received
mail; however, the university’s investigation determined that the program routinely
forwards public-records requests to the office of legal affairs. In this case, the office
of legal affairs was not forwarded any public-records request from Mobley. Thus,
the university was unable to determine what, if anything, Mobley sent to the
university in the certified mailing at issue.


1. Mobley’s prayer for relief also sought an order requiring the university to pay his court costs.
Mobley, however, is not entitled to this relief because he filed an affidavit of indigency, which
waived his obligation to pay costs. See State ex rel. McDougald v. Greene, 

.




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                             SUPREME COURT OF OHIO




                                    ANALYSIS
                             Mandamus Claim Is Moot
       {¶ 9} Mandamus is an appropriate remedy to compel compliance with Ohio’s
Public Records Act, R.C. 149.43. R.C. 149.43(C)(1)(b). But generally, a public-
records mandamus claim becomes moot when the respondent provides the requested
records after the action is filed. State ex rel. Suggs v. McConahay, 

.
       {¶ 10} After being served with the complaint in this case, the university sent
to Mobley the records he allegedly requested.          Mobley does not rebut the
university’s contention that it has provided all the records responsive to his alleged
request. Accordingly, we deny Mobley’s mandamus claim as moot.
                                 Statutory Damages
       {¶ 11} Even though the mandamus claim is moot, Mobley’s request for
statutory damages remains a live controversy. See State ex rel. Mobley v. LaRose,

. A public-records requester may obtain statutory damages “if
a court determines that the public office or the person responsible for public records
failed to comply with an obligation” under R.C. 149.43(B). R.C. 149.43(C)(2). To
be entitled to statutory damages, Mobley must establish by clear and convincing
evidence that he sent his public-records request to the university by certified mail,
hand delivery, or electronic submission and that the university failed to produce the
records within a reasonable time. State ex rel. McDougald v. Greene, 2020-Ohio-
3686, ¶ 13-14.
       {¶ 12} Mobley fails to carry his burden in this case. Though Mobley claims
that the university received a public-records request from him by certified mail in
December 2023, he did not submit a copy of his alleged public-records request or
any other evidence showing that he mailed the request described in his complaint.
Compare State ex rel. Mobley v. Toledo, 

 (holding that Mobley
failed to prove a violation of the Public Records Act when he failed to submit a copy



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                                January Term, 2024




of the alleged request or proof that he mailed a request). While both parties have
submitted evidence showing that the university received something by certified mail
from Mobley on December 18, 2023, this evidence does not prove anything about
what the mailing contained. See State ex rel. Ware v. Giavasis, 

. For its part, the university disputes that Mobley sent a public-records request,
noting that its investigation could not confirm that it received one from Mobley.
       {¶ 13} On the record before us, the evidence is, at best, evenly balanced as to
what Mobley’s certified mailing contained. Mobley has therefore failed to prove the
prerequisites necessary for an award of statutory damages under R.C. 149.43(C)(2).
Giavasis, 

; see also State ex rel. Griffin v. Doe, 2021-Ohio-
3626, ¶ 7-8. Accordingly, we deny the request for statutory damages.
                                 CONCLUSION
       {¶ 14} For the foregoing reasons, we deny the writ as moot and deny
Mobley’s request for statutory damages.
                                                               Writ denied as moot.
                               __________________
       Alphonso Mobley Jr., pro se.
       Dave Yost, Attorney General, and Holly E. LeClair Welch and Mia Meucci
Yaniko, Assistant Attorneys General, for respondent.
                               __________________




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