[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
ex rel. McDougald v. Greene, Slip Opinion No. 2020-Ohio-2782.]




                                           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. 2020-OHIO-2782
                    THE STATE EX REL. MCDOUGALD v. GREENE.
  [Until this opinion appears in the Ohio Official Reports advance sheets, it
      may be cited as State ex rel. McDougald v. Greene, Slip Opinion No.
                                     2020-Ohio-2782.]
Mandamus—Public-records law—When there is no evidence rebutting a public-
        records custodian’s affidavit claiming that the requested records do not
        exist, the public-records custodian satisfies his obligations under R.C.
        149.43—Writ denied.
     (No. 2019-1180—Submitted February 25, 2020—Decided May 6, 2020.)
                                       IN MANDAMUS.
                                    ________________
        Per Curiam.
        {¶ 1} Relator, Jerone McDougald, seeks a writ of mandamus to compel
respondent, Larry Greene, the public-records custodian at the Southern Ohio
Correctional Facility (“SOCF”), to provide McDougald with three public records
and to pay McDougald statutory damages and the court costs associated with this
                             SUPREME COURT OF OHIO




litigation. Also pending are McDougald’s motions to consider the exhibits attached
to his complaint as substantive evidence and for leave to amend his complaint and
merit brief. We grant the motion to consider the exhibits, deny the writ of
mandamus on the merits, and deny the motion for leave to amend. McDougald has
also filed a “motion directing this court to take judicial notice” which, given its
content, we construe as a reply brief.
                                  I. Background
       {¶ 2} In February 2018, when McDougald was an inmate at SOCF, he
submitted a public-records request to Greene through the prison kite system.
McDougald requested (1) an “incident report” involving the use of force, (2) the
deputy warden’s review of that use of force, and (3) an investigative-summary
report of that same incident. On February 23, 2018, Greene provided the incident
report to McDougald. However, Greene indicated that the other two records that
McDougald had requested did not exist.
       {¶ 3} On August 23, 2019, McDougald filed the present complaint for a writ
of mandamus, seeking an order compelling Greene to provide the two documents
and to pay McDougald statutory damages and the court costs associated with this
litigation. After Greene filed an answer, we granted an alternative writ and ordered
that the parties present evidence and file briefs in accordance with
S.Ct.Prac.R. 12.05. 157 Ohio St.3d 1481, 2019-Ohio-4474, 134 N.E.3d 196. The
parties submitted merit briefs, and Greene submitted evidence.
       {¶ 4} On December 30, 2019, McDougald filed a motion asking that this
court consider the documents attached to his complaint as substantive evidence. He
also filed what was styled as a motion asking this court to take judicial notice of
certain facts. Greene has not opposed either motion. On February 5, 2020,
McDougald filed a motion for leave to amend his complaint and merit brief, which
Greene has opposed.




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                                January Term, 2020




                                   II. Analysis
   A.McDougald’s motion to consider documents attached to his complaint as
                               substantive evidence
       {¶ 5} McDougald asks this court to consider the documents attached to his
complaint as substantive evidence. These documents include at least one document
of significance that is not otherwise in the record—namely, Greene’s written
response to McDougald’s public-records request. Greene has not opposed this
motion or otherwise challenged the authenticity, relevance, or admissibility of the
documents. We therefore grant this motion.
                     B. The merits of McDougald’s complaint
       {¶ 6} R.C. 149.43(B)(1) requires a public office to make copies of public
records available to any person upon request, within a reasonable period of time.
A “public record” is a record “kept by any public office.” R.C. 149.43(A)(1).
Mandamus is an appropriate remedy by which to compel compliance with Ohio’s
Public Records Act, R.C. 149.43. R.C. 149.43(C)(1)(b).
       {¶ 7} To be entitled to the writ, McDougald must demonstrate that he has a
clear legal right to the requested relief and that Greene has a clear legal duty to
provide that relief. State ex rel. Cincinnati Enquirer v. Sage, 142 Ohio St.3d 392,
2015-Ohio-974, 31 N.E.3d 616, ¶ 10. McDougald must prove his right to relief by
clear and convincing evidence. Id. However, the Public Records Act “is construed
liberally in favor of broad access, and any doubt is resolved in favor of disclosure
of public records.” State ex rel. Cincinnati Enquirer v. Hamilton Cty., 75 Ohio
St.3d 374, 376, 662 N.E.2d 334 (1996).
       {¶ 8} In his merit brief, McDougald notes that of the three documents he
requested, he received only the incident report and that Greene claimed that the use-
of-force review and the investigative-summary report did not exist. McDougald
contends that because regulations require the Ohio Department of Rehabilitation
and Corrections (“ODRC”) to create these records whenever there is an incident




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                            SUPREME COURT OF OHIO




report, Greene’s statement must be false. He concludes that Greene therefore failed
to comply with his statutory duties under R.C. 149.43 and that he (McDougald) is
entitled to an award of statutory damages and court costs.
       {¶ 9} But Greene has provided an affidavit claiming that the records do not
exist, and McDougald has not done anything to rebut that affidavit so as to clearly
show that the documents exist and hence that he has a right to them. If Greene’s
representation is true—and there is no evidence in the record to suggest
otherwise—then his response to McDougald fully satisfied his obligations under
R.C. 149.43.    McDougald is therefore not entitled to a writ of mandamus
compelling Greene to produce those records.
       {¶ 10} Additionally, McDougald is not entitled to statutory damages. A
person who makes a public-records request in compliance with R.C. 149.43 “shall”
be entitled to recover an award of statutory damages “if a court determines that the
public office or the person responsible for public records failed to comply with an
obligation in accordance with division (B) of this section.” R.C. 149.43(C)(2).
Accordingly, we find that Greene did not fail to comply with his obligations under
R.C. 149.43, so there is no basis to award McDougald statutory damages. In
reaching this conclusion, we need not decide whether McDougald’s prison kite was
a qualifying method of delivery under R.C. 149.43(C)(2) for an award of statutory
damages and we take no position on that issue.
       {¶ 11} Finally, we deny McDougald’s request that Greene pay the court
costs of this litigation. Generally, R.C. 149.43(C)(3)(a)(i) authorizes a court to
award court costs only when a writ of mandamus has been granted. See State ex
rel. Kesterson v. Kent State Univ., 156 Ohio St.3d 13, 2018-Ohio-5108, 123 N.E.3d
887, ¶ 23.
       {¶ 12} McDougald’s complaint for a writ of mandamus is hereby denied.




                                         4
                                   January Term, 2020




                      C. McDougald’s motion for leave to amend
        {¶ 13} On February 5, 2020, McDougald filed a motion for leave to amend
his complaint and merit brief “to specify that his public records request kite was
hand delivered to Larry Greene during his inmate communication weekly rounds
pursuant to ODRC policy 50-PAM-02 on February 14, 2018.” Under the version
of R.C. 149.43 that was in effect at the time McDougald made his request, a
requester qualified for statutory damages only if he transmitted the request by hand
delivery or certified mail. R.C. 149.43(C)(2).1 McDougald’s motion for leave to
amend is presumably an effort to satisfy that requirement.
        {¶ 14} A motion for leave to amend may be denied when the proposed
amendment would be futile. State ex rel. Leneghan v. Husted, 154 Ohio St.3d 60,
2018-Ohio-3361, 110 N.E.3d 1275, ¶ 2 (motion for leave to amend a complaint
denied when a proposed amendment would not cure the defects that prevented the
original complaint from stating a claim for relief). As stated above, McDougald is
not entitled to statutory damages because Greene met his responsibilities under
R.C. 149.43. Therefore, permitting McDougald to amend his complaint and merit
brief to establish the manner of service would be a futile act. McDougald’s motion
for leave to amend is denied.
                      D. McDougald’s motion for judicial notice
        {¶ 15} Finally, McDougald filed a motion to take judicial notice.                   In
substance, however, the motion—while it is styled as a motion to take judicial
notice—is actually a reply brief attempting to respond to some of the claims in
Greene’s brief. We therefore construe the “motion” as what it really is—a reply
brief—and hence no ruling on it is required.
                                                                                Writ denied.



1. Effective November 2, 2018, R.C. 149.43(C)(2) was amended to include “electronic submission”
as a qualifying method of delivery. 2018 Sub.H.B.No. 34.




                                              5
                              SUPREME COURT OF OHIO




          O’CONNOR, C.J., and FRENCH, FISCHER, DEWINE, and STEWART, JJ.,
concur.
          KENNEDY, J., concurs in judgment only, with an opinion.
          DONNELLY, J., concurs in judgment only.
                                 _________________
          KENNEDY, J., concurring in judgment only.
          {¶ 16} I concur in the majority’s judgment to deny the complaint for a writ
of mandamus of relator, Jerone McDougald, but for different reasons.
          {¶ 17} In McDougald’s motion for judicial notice, he responds to the
representations that respondent, Larry Greene, the public-records custodian at the
Southern Ohio Correctional Facility, makes in his merit brief and in the affidavit
that Greene attached to his merit brief. In the affidavit, Greene avers that he
provided the requested incident report to McDougald.            Greene also states,
“However, the deputy warden of operations review of the use of force and the
investigative summary report did not exist at the time of the request.”
          {¶ 18} The majority essentially ignores McDougald’s response to Greene’s
assertion. McDougald argues that the two missing reports—the deputy warden’s
review of the use-of-force and the investigative-summary report—must exist
because one of the policies for the Ohio Department of Correction and
Rehabilitation (“ODRC”) requires that those reports be included with the use-of-
force report. He urges this court to refer to ODRC’s use-of-force policies on its
website. See ODRC Policies, https://www.drc.ohio.gov/policies (accessed Apr. 13,
2020) [https://perma.cc/QC6E-X6RV]. McDougald cites ODRC’s policy 63-UOF-
02, which indeed requires the reports that McDougald requests be included with the
incident report.     Use of Force Report, https://drc.ohio.gov/Portals/0/Policies/
DRC%20Policies/63-UOF-02%20(June%202019).pdf?ver=2019-06-11-094830-
263 (accessed Apr. 13, 2020) [https://perma.cc/HYZ6-WRAM].




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                              January Term, 2020




       {¶ 19} However, 63-UOF-02 has an effective date of June 10, 2019, id., and
the incident report at the heart of McDougald’s records request was filed on
December 16, 2015. Therefore, the policy that McDougald references came into
effect well after the use-of-force incident occurred. McDougald did not provide
this court with any reference to what the ODRC policy was at the time of the
incident. Therefore, 63-UOF-02 does nothing to foster the conclusion that the
reports must exist.
       {¶ 20} With no evidence before us that the reports must exist, we have no
reason to conclude that they do exist. Therefore, I would deny McDougald’s
complaint for a writ of mandamus.
       {¶ 21} Accordingly, I concur in judgment only.
                             _________________
       Jerone McDougald, pro se.
       Dave Yost, Attorney General, and Jared S. Yee, Assistant Attorney General,
for respondent.
                             _________________




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