[This opinion has been published in Ohio Official Reports at 

.]




               THE STATE EX REL . MOBLEY v. POWERS, PROS. ATTY.
              [Cite as State ex rel. Mobley v. Powers, 

.]
Public-records requests—Motion to proceed to judgment for statutory damages—
         Motion granted in part and statutory damages awarded.
     (No. 2023-0501—Submitted July 9, 2024—Decided September 3, 2024.)
                                         IN MANDAMUS.
                                     __________________
         The per curiam opinion below was joined by KENNEDY, C.J., and DEWINE,
DONNELLY, STEWART, BRUNNER, and DETERS, JJ. FISCHER, J., concurred in part
and dissented in part and would not award statutory damages.


         Per Curiam.
         {¶ 1} In this original action, relator, Alphonso Mobley Jr., requested (1) a
writ of mandamus directing respondent, Hamilton County Prosecutor Melissa
Powers (the “prosecutor” or “prosecutor’s office”),1 to produce records in response
to a public-records request and (2) statutory damages under the Public Records Act,
R.C. 149.43. We granted a limited writ ordering the prosecutor’s office to either
provide Mobley with a copy of the records that the prosecutor’s office had created
to meet the requirements of former R.C. 309.16(A)(1), Am.Sub.S.B. No. 198, 138
Ohio Laws, Part I, 683-684, for 2016 through 2020 or certify that the records do
not exist. State ex rel. Mobley v. Powers, 

. We deferred our




1. Mobley named (now Justice) Joseph Deters, who was formerly the Hamilton County prosecuting
attorney, as the respondent in this case, but Justice Deters did not hold that office when Mobley filed
his mandamus complaint. Because Powers held that office when Mobley filed his 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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determination of statutory damages until the prosecutor’s office had complied with
the limited writ. Id. at ¶ 34.
        {¶ 2} The prosecutor’s office has timely complied with the limited writ by
certifying that it provided to Mobley all the responsive records in its possession on
April 20, 2023. Additionally, Mobley filed a motion and a revised motion asking
us to proceed to judgment on the issue of statutory damages and to award him $600.
We grant Mobley’s revised motion in part and deny it in part and award $400 in
statutory damages.
                  I. FACTS AND PROCEDURAL HISTORY
                           A. We Granted a Limited Writ
        {¶ 3} On January 27, 2023, the prosecutor’s office received Mobley’s
public-records request, which sought the certified statements created by the
prosecutor’s office under former R.C. 309.16 for 2016 through 2020 and its
records-retention schedule. When Mobley did not receive a response to his request,
he filed this mandamus action on April 14, 2023. On April 20, after Mobley filed
his mandamus action, the prosecutor’s office provided Mobley with records in
response to his request.
        {¶ 4} In our previous opinion, we concluded that Mobley’s evidence tended
to refute the prosecutor’s claim that she had given Mobley everything he requested.
Mobley at ¶ 18. Therefore, we issued a limited writ of mandamus ordering the
prosecutor to 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 2016
through 2020 and certify the date that those records were provided or certify that
the records do not exist. Id. at ¶ 36. We deferred ruling on the issue of statutory
damages until after the prosecutor complied with the limited writ. Id.
         B. The Prosecutor’s Office Complied with the Limited Writ
        {¶ 5} After we granted the limited writ, the public-information officer of
the prosecutor’s office, Assistant Prosecuting Attorney Amy Clausing, attested that



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the records that she sent to Mobley on April 20, 2023, were the only responsive
records in its possession. Clausing explained that the prosecutor’s office does not
retain copies of “the certified statements that are incorporated into the Hamilton
County Board of County Commissioner minutes.”
       {¶ 6} However, Clausing attested that as a courtesy, she obtained from the
board copies of the certified statements created to meet the requirements of former
R.C. 309.16(A)(1) that the prosecutor’s office had not retained and provided them
to Mobley on August 21, 2023. The prosecutor’s office has complied with the
alternative writ by certifying that the additional records were not in its possession
when it received Mobley’s public-records request. Mobley then filed a motion on
February 23, 2024, and a revised motion on April 8, 2024, requesting that this court
proceed to judgment on the issue of statutory damages and award him $600.
                                  II. ANALYSIS
                  A. Mobley Is Entitled to Statutory Damages
       {¶ 7} A public-records requester shall be entitled to statutory damages if (1)
he transmitted a written public-records request by hand delivery, electronic
submission, or certified mail, (2) he made the request to the public office or person
responsible for the requested records, (3) he fairly described the records sought,
and (4) the public office failed to comply with an obligation under R.C. 149.43(B).
R.C. 149.43(C)(2). We have already determined that Mobley’s request (1) was sent
by certified mail, (2) was sent to the prosecutor’s office, and (3) was sufficiently
specific. Mobley, 

. Accordingly, the only element left
to decide is whether the prosecutor’s office failed to comply with an obligation
under R.C. 149.43(B).
       {¶ 8} R.C. 149.43(B)(7)(a) requires a public office to “transmit a copy of a
public record to any person by United States mail or by any other means of delivery
or transmission within a reasonable period of time after receiving the request for
the copy.” The prosecutor received Mobley’s public-records request on January



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27, 2023. Mobley filed this mandamus action on April 14, 2023. On April 20,
2023, the prosecutor’s office sent Mobley its records-retention schedule and the
records that it created to meet the requirements of former R.C. 309.16(A)(1) that
were still in its possession. A records custodian does not have a duty to produce
records that she no longer possesses. State ex rel. Striker v. Smith, 2011-Ohio-
2878, ¶ 28.
        {¶ 9} Whether a period of time is reasonable “depends upon all of the
pertinent facts and circumstances,” State ex rel. Morgan v. Strickland, 2009-Ohio-
1901, ¶ 10, including the scope of a public-records request, the volume of
responsive records, and whether redactions are necessary, id. at ¶ 12-16. We have
previously held that “the absence of any response over a two-month period
constitutes a violation of the ‘obligation in accordance with division (B)’ to respond
‘within a reasonable period of time’ per R.C. 149.43(B)(7).”           (Emphasis in
original.) State ex rel. DiFranco v. S. Euclid, 

, quoting the
Public Records Act. However, when a large number of murder-investigation
documents needed to be carefully redacted and the public office had provided initial
responses to a public-records request, this court concluded that two months was a
reasonable amount of time. State ex rel. Cincinnati Enquirer v. Pike Cty. Coroner’s
Office, 

.
        {¶ 10} In this case, the public-records request was narrow and specific, only
a few responsive records were in the possession of the prosecutor’s office, and the
records did not need to be redacted. Clausing attested that it took her a while to
locate the records because of staff turnover, but the delivery of the records was also
significantly delayed because Clausing forgot to send the records once she located
them.
        {¶ 11} Given the circumstances here, the almost three-month delay before
the prosecutor’s office sent Mobley the records responsive to his public-records




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request violated its statutory obligation under R.C. 149.43(B). Therefore, Mobley
is entitled to statutory damages.
                     B. The Amount of Statutory Damages
       {¶ 12} Statutory damages accrue at $100 per day for each business day that
the public office fails to comply with an obligation under R.C. 149.43(B) beginning
with the day the requester files a mandamus action. R.C. 149.43(C)(2). Mobley
filed this mandamus action on April 14, 2023. Six days later, on April 20, 2023,
Clausing sent Mobley (1) the certified statements created by the prosecutor’s office
to meet the requirements of former R.C. 309.16(A)(1) that the prosecutor’s office
still had in its possession and (2) the records-retention schedule of the prosecutor’s
office. As of that date, the prosecutor’s office was in compliance with R.C.
149.43(B).
       {¶ 13} Six days elapsed between when Mobley filed this mandamus action
and Clausing sent him the responsive records in the possession of the prosecutor’s
office. Mobley argues in a revised motion to proceed to judgment that the court
should therefore award him $600. However, only four of those days were business
days; the other two were weekend days. Therefore, Mobley is entitled to $400 in
statutory damages.
                               III. CONCLUSION
       {¶ 14} Based on the foregoing, Mobley’s revised motion to proceed to
judgment is granted in part and denied in part, and we award statutory damages in
the amount of $400 to Mobley.
                                                              Motion granted in part
                                                                  and denied in part.
                               __________________
       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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