[Cite as State ex rel. Moore v. Montgomery Cty. Clerk of Courts, 2012-Ohio-5782.]
                                IN THE COURT OF APPEALS OF OHIO
                                   SECOND APPELLATE DISTRICT
                                     MONTGOMERY COUNTY


                                                    :    Appellate Case No.         24937
STATE OF OHIO, ex rel., ROBERT                      :
MOORE                                               :
                                                    :
        Relator                                     :
                                                    :
v.                                                  :
                                                    :
MONTGOMERY COUNTY CLERK OF                          :
COURTS                                              :
                                                    :
        Respondent                                  :


                            DECISION AND FINAL JUDGMENT ENTRY
                                      December 5th , 2012

PER CURIAM:

                  {¶ 1} This matter is before the court on Respondent’s motion to dismiss, which was

converted to a motion for summary judgment pursuant to Civ.R. 12(B), filed December 19, 2011,

and Relator’s motion for summary judgment, filed January 11, 2012.

                  {¶ 2} On December 7, 2011, Relator, Robert Moore, an inmate at the London

Correctional Institution, filed a complaint for a writ of mandamus. Moore seeks an order from this

Court compelling Respondent, the Montgomery County Clerk of Courts, to comply with R.C.

149.43 and provide him with copies of requested public records.
[Cite as State ex rel. Moore v. Montgomery Cty. Clerk of Courts, 2012-Ohio-5782.]
                  {¶ 3} By letter dated February 23, 2011 and sent via certified mail, Moore

requested copies of the following records allegedly maintained by Respondent:

        1. The journal entry of the Montgomery Court of common pleas ruling on the

        Plaintiff’s summary judgment motion in the case of Satterwhite Investments Lmt.

        -vs- Marvin Johnson. (Case No. ?) I don’t know the case number, so let me know

        if you can find it.

        2. The current Montgomery County Clerk of Courts Public Record Policy. This

        policy that I want a copy of is the public record policy that your offices uses [sic] and

        whether or not your office created it, uses another’s policy, or has adopted another’s

        policy.

        3. The Employee roster listing of your offices [sic] current employee’s [sic].

                  {¶ 4} Respondent sent Moore a letter on February 25, 2011 stating that he must

first obtain permission from the sentencing judge in Moore’s criminal case before he could receive

the records requested. R.C. 149.43(B)(8) provides:

                  A public office or person responsible for public records is not required to

        permit a person who is incarcerated pursuant to a criminal conviction or a juvenile

        adjudication to inspect or to obtain a copy of any public record concerning a criminal

        investigation or prosecution or concerning what would be a criminal investigation or

        prosecution if the subject of the investigation or prosecution were an adult, unless the

        request to inspect or to obtain a copy of the record is for the purpose of acquiring

        information that is subject to release as a public record under this section and the

        judge who imposed the sentence or made the adjudication with respect to the person,

        or the judge's successor in office, finds that the information sought in the public
                                                                                                     3


       record is necessary to support what appears to be a justiciable claim of the person.

               {¶ 5} Moore filed this original action on December 7, 2011.            He argues that

Respondent incorrectly determined that Moore first needed permission from his sentencing judge in

order to obtain the records he requested because none of the records pertains to criminal

investigations, nor are any of the records exempt from disclosure under R.C. 149.43. He seeks an

order from this Court compelling Respondent to provide copies of the records requested. He also

seeks reimbursement of costs and fees incurred in filing this action, along with statutory damages

pursuant to R.C. 149.43(C)(1).

               {¶ 6} On December 13, 2011, Respondent forwarded copies of its records policy

and current employee list to Moore. By letter, Respondent also informed Moore that he could find

no case that matched Satterwhite Investments Lmt. -vs- Marvin Johnson using the name Moore

supplied and the business name Moore supplied.

                                         Writ of Mandamus

               {¶ 7} To be entitled to a writ of mandamus, Moore must demonstrate “ ‘(1) that he

has a clear legal right to the relief prayed for, (2) that respondents are under a clear legal duty to

perform the acts, and (3) that [Moore] has no plain and adequate remedy in the ordinary course of

the law.’ ” State ex rel. Berger v. McMonagle, 6 Ohio St.3d 28, 29, 451 N.E.2d 225 (1983),

quoting State ex rel. Harris v. Rhodes, 54 Ohio St.2d 41, 42, 374 N.E.2d 641 (1978); State ex rel.

Heller v. Miller, 61 Ohio St.2d 6, 399 N.E.2d 66 (1980), paragraph one of the syllabus; State ex rel.

Westchester v. Bacon, 61 Ohio St.2d 42, 399 N.E.2d 81 (1980), paragraph one of the syllabus.

               {¶ 8} The parties have moved for summary judgment.               “Summary judgment

pursuant to Civ.R. 56 should be granted only if no genuine issue of fact exists, the moving party is
                                                                                                  4


entitled to judgment as a matter of law, and reasonable minds can come to but one conclusion,

which conclusion is adverse to the nonmoving party. When considering a motion for summary

judgment, the evidence must be construed in favor of the nonmoving party.” State ex rel. Shelly

Materials v. Clark Cty. Bd. of Commrs., 2d Dist. Clark No. 2003-CA-72, 2005-Ohio-6682, ¶ 5,

quoting Wheelbarger v. Dayton Bd. of Edn., 2d Dist. Montgomery No. 20272, 2004-Ohio-4367, ¶ 8.

                  {¶ 9} Respondent contends that Moore’s mandamus claim is moot because he has

been provided the public records that he requested, with the exception of the “ruling on the

Plaintiff’s summary judgment motion in the case of Satterwhite Investments Lmt. -vs- Marvin

Johnson.”1 Moore concedes that he has received all records requested that are in Respondent’s

possession.       “ ‘In general, providing the requested records to the relator in a public-records

mandamus case renders the mandamus claim moot.’ ” State ex rel. Striker v. Smith, 129 Ohio St.3d

168, 2011-Ohio-2878, 950 N.E.2d 952, ¶ 22, quoting State ex rel. Toledo Blade Co. v.

Toledo–Lucas Cty. Port Auth., 121 Ohio St.3d 537, 2009-Ohio-1767, 905 N.E.2d 1221, ¶ 14.

Mandamus will not issue to compel the performance of a duty that has already been performed.

State ex rel. Halder v. Fuerst, 118 Ohio St.3d 142, 2008-Ohio-1968, 886 N.E.2d 849, ¶ 5.

Accordingly, Respondent is entitled to judgment as a matter of law on Moore’s request for a writ of

mandamus to compel the clerk to provide access to and/or copies of the requested records.

                                   Damages under R.C. 149.43(C)(1)

                  {¶ 10} Despite our determination above that the mandamus claim is moot due to the


              1
            It appears that this document is a “court record,” as defined by Sup. R. 44(B).
    The Rules of Superintendence for the Courts of Ohio set forth specific procedures
    regulating public access to court records. The remedy for the denial of public access
    to court records is governed by Sup. R. 47, not R.C. 149.43.
                                                                                                   5


records having been provided by Respondent, this action remains viable insofar as Moore also

claims entitlement to statutory damages and litigation expenses. Striker at ¶ 27-29; State ex rel.

Simonsen v. Ohio Dept. of Rehab. & Corr., 10th Dist. Franklin No. 08AP-21, 2009-Ohio-442, ¶ 35.

              {¶ 11} Moore argues that he is entitled to damages pursuant to R.C. 149.43(C)(1) in

the amount of $900.00 for the lost use of the records from the time he requested them until the time

he received them. This section of the Code states:

              If a person allegedly is aggrieved by the failure of a public office or the

       person responsible for public records to promptly prepare a public record and to

       make it available to the person for inspection in accordance with division (B) of this

       section or by any other failure of a public office or the person responsible for public

       records to comply with an obligation in accordance with division (B) of this section,

       the person allegedly aggrieved may commence a mandamus action to obtain a

       judgment that orders the public office or the person responsible for the public record

       to comply with division (B) of this section, that awards court costs and reasonable

       attorney's fees to the person that instituted the mandamus action, and, if applicable,

       that includes an order fixing statutory damages under division (C)(1) of this section.

       The mandamus action may be commenced in the court of common pleas of the

       county in which division (B) of this section allegedly was not complied with, in the

       supreme court pursuant to its original jurisdiction under Section 2 of Article IV, Ohio

       Constitution, or in the court of appeals for the appellate district in which division (B)

       of this section allegedly was not complied with pursuant to its original jurisdiction

       under Section 3 of Article IV, Ohio Constitution.
                                                                                           6


        If a requestor transmits a written request by hand delivery or certified mail to

inspect or receive copies of any public record in a manner that fairly describes the

public record or class of public records to the public office or person responsible for

the requested public records, except as otherwise provided in this section, the

requestor shall be entitled to recover the amount of statutory damages set forth in this

division 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.

        The amount of statutory damages shall be fixed at one hundred dollars for

each business day during which the public office or person responsible for the

requested public records failed to comply with an obligation in accordance with

division (B) of this section, beginning with the day on which the requester files a

mandamus action to recover statutory damages, up to a maximum of one thousand

dollars. The award of statutory damages shall not be construed as a penalty, but as

compensation for injury arising from lost use of the requested information. The

existence of this injury shall be conclusively presumed. The award of statutory

damages shall be in addition to all other remedies authorized by this section.

        The court may reduce an award of statutory damages or not award statutory

damages if the court determines both of the following:

        (a) That, based on the ordinary application of statutory law and case law as it

existed at the time of the conduct or threatened conduct of the public office or person

responsible for the requested public records that allegedly constitutes a failure to
                                                                                                   7


       comply with an obligation in accordance with division (B) of this section and that

       was the basis of the mandamus action, a well-informed public office or person

       responsible for the requested public records reasonably would believe that the

       conduct or threatened conduct of the public office or person responsible for the

       requested public records did not constitute a failure to comply with an obligation in

       accordance with division (B) of this section;

               (b) That a well-informed public office or person responsible for the requested

       public records reasonably would believe that the conduct or threatened conduct of the

       public office or person responsible for the requested public records would serve the

       public policy that underlies the authority that is asserted as permitting that conduct or

       threatened conduct.

               {¶ 12} Here, we find that Moore sent a written request to Respondent by certified

mail on February 23, 2011 for records maintained by the clerk. There is no dispute that these

records are generally public records subject to disclosure under the Public Records Act. 2

Respondent did not make copies of the requested public records available to Moore at cost and

within a reasonable period of time, as required by R.C. 149.43(B)(1).            Instead, Respondent

incorrectly construed the request as one for criminal records and advised Moore that he must obtain

permission from his sentencing judge to receive copies. The Public Records Act must be construed

liberally in favor of broad access and any doubt resolved in favor of disclosure of public records.

State ex rel. Rocker v. Guernsey Cty. Sheriff's Office, 126 Ohio St.3d 224, 2010-Ohio-3288, 932


           2
           As discussed above, access to court documents is governed by the Rules of
    Superintendence for the Courts of Ohio, not the Public Records Act.
                                                                                                8


N.E.2d 327, ¶ 6. We have found no instance where mistake warrants delay and excuses the

custodian of its duty to promptly disclose public records once a proper request is made.

               {¶ 13} Furthermore, we must presume that Respondent’s non-compliance caused an

injury to Moore. R.C. 149.43(C)(1); Simonsen, 2009-Ohio-442, at ¶ 12. The amount of statutory

damages to which Moore is entitled is fixed at one hundred dollars for each business day during

which Respondent failed to comply with his obligation in accordance with R.C. 149.43(B),

beginning with the day on which Moore filed a mandamus action to recover statutory damages, up

to a maximum of one thousand dollars.           R.C. 149.43(C)(1).     Moore filed this action on

Wednesday, December 7, 2011, and Respondent mailed the requested documents to Moore on

Tuesday, December 13, 2011. There being four (4) business days from the time Moore filed his

complaint until the time Respondent sent the records, Moore is entitled to four hundred dollars

($400.00) in statutory damages.

               {¶ 14} Accordingly, Respondent’s motion for summary judgment is SUSTAINED,

in part, and OVERRULED, in part. Respondent is ordered to pay Moore statutory damages in the

amount of $400.00. Costs to Respondent.

               {¶ 15} Moore’s motion for summary judgment is SUSTAINED, in part, and

OVERRULED, in part.

               {¶ 16} SO ORDERED.




                                                     THOMAS J. GRADY, Presiding Judge
                                                                                                                                       9




                                                                     MIKE FAIN, Judge



HALL, J., dissenting:

                 {¶ 17} I respectfully dissent.

                 {¶ 18} When Robert Moore sent a letter to the Montgomery County Clerk of Courts

requesting (1) records from the case Satterwhite Investments Lmt. v. Marvin Johnson, he also asked

for (2 )the Clerk’s public-record policy and (3) the Clerk’s employee roster. Undoubtedly, the

second and third requests were intended to facilitate acquisition of the first request if there were

difficulties in producing the first request, because the second and third requests have no independent

significance. Furthermore, the letter stated, “I will clarify for you if you need me to.”

                 {¶ 19} The Clerk did not ignore Moore’s request. Rather, because the request itself

indicated it was from a prisoner, 3 the Clerk sent Moore, on the day of receipt, a return letter

advising him how to obtain the sentencing judge’s permission to obtain records under R.C.

149.43(B)(8). In addition, as admitted by relator, two post-it notes were attached to the Clerk’s

response. The first suggested that if the prisoner obtained permission from the trial judge, he would

have to provide a case number for the Clerk to locate the appropriate record. The second note stated,

“If you want to know anything about our employees you will have to contact the Mont. Co.

Auditor.”



            3
                The request had Moore’s prison address and inmate number. It said, “I am in prison.” Moore was serving a nine-year sentence
                                                                                                                                                 10


                    {¶ 20} The relator did not respond or “clarify” his request. Without any further

communication, he filed his original action in mandamus. 4 It is readily apparent that the case

Satterwhite Investments Lmt. v. Marvin Johnson does not exist in the records of the Montgomery

County Clerk of Courts. No amount of searching, no greater or further diligence, would have

resulted in production of that record. That leaves only the two collateral requests to be dealt with.

                    {¶ 21} The public-record policy the defendant requested is, and was, already

publically available to anyone.5 I fail to see how a writ of mandamus can issue for a record that is

already in the public domain. Moreover, review of the policy itself provides no information

whatsoever that would have facilitated Moore’s request to locate, or acquire, a public record that

does not exist. Accordingly, I would not hold that Moore’s request for the record policy was moot. I

would hold that because there was no clear legal duty to provide a record already publically

available, he was never entitled to a writ of mandamus in the first place.

                    {¶ 22} Likewise, the Clerk did not have a clear legal duty to provide an “employee

roster” where there was no reasonable likelihood it would assist in finding a record that does not

exist. In fact, the Clerk did not deny this request. The Clerk directed Moore to the Montgomery

County Auditor, who is the county payroll officer, to obtain information about employees. Moore

did nothing to clarify this request with the Clerk, and he failed to demonstrate that he followed up

on the request with the Auditor. Accordingly, I would not hold that Moore’s request for the


    for aggravated robbery out of Clermont County, Case No. 2003 CR 0526.
               4
                  Moore is not a novice at filing original actions in the court of appeals or at filing public-record requests. He previously filed two
    original actions for public records, one in the Tenth District and one in the Sixth District, according to his affidavit of prior actions.
               5
                   http://www.clerk.co.montgomery.oh.us/legal/files/Public_Records_Policy.pdf
                                                                                                      11


employee roster was moot. I would hold that because there was no clear legal duty to do anything

more than the Clerk did, Moore was never entitled to a writ of mandamus in the first place.

               {¶ 23} In that Moore was never entitled to a writ of mandamus, there should be no

assessment of any statutory penalty.

               {¶ 24} Finally, in order to assess statutory damages, a court must determine that the

public office failed to comply with the obligations outlined in R.C. 149.43(B). It did not. Therefore,

in my view summary judgment should be granted for the respondent and statutory damages should

not be awarded.




                                                      MICHAEL T. HALL, Judge




         To The Clerk: Within three (3) days of entering this judgment on the journal, you are
directed to serve on all parties not in default for failure to appear notice of the judgment and the date
of its entry upon the journal, pursuant to Civ.R. 58(B).




                                                      THOMAS J. GRADY, Presiding Judge




Copies mailed to:

John Cumming                                            Dayton, Ohio 45422
Attorney for Respondent
301 W. Third Street, 5th Floor
                                                               12


                               Robert Moore
                               Relator, Pro Se
                               254 East Plane Street, Apt. 1
                               Bethel, Ohio 45106

                               CA3/JN


Issue date: December 5, 2012
