[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
ex rel. Martin v. Greene, Slip Opinion No. 2019-Ohio-1827.]




                                           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. 2019-OHIO-1827
                        THE STATE EX REL. MARTIN v. GREENE.
  [Until this opinion appears in the Ohio Official Reports advance sheets, it
         may be cited as State ex rel. Martin v. Greene, Slip Opinion No.
                                     2019-Ohio-1827.]
Mandamus—Public-records law—Writ will not issue to compel act already
        performed—Writ denied—Statutory damages denied—Costs denied.
      (No. 2018-0068—Submitted March 5, 2019—Decided May 15, 2019.)
                                       IN MANDAMUS.
                                    ________________
        Per Curiam.
        {¶ 1} In this original action, relator, Andre Martin, seeks a writ of
mandamus against respondent, Larry Greene, the administrative assistant for the
warden of the Southern Ohio Correctional Facility, to compel the production of
public records. In addition, Martin seeks an award of statutory damages and court
costs. Also pending is Martin’s motion asking that this court accept the affidavit
and exhibits attached to his complaint as substantive evidence.
                                 SUPREME COURT OF OHIO




        {¶ 2} For the reasons set forth below, we deny the motion and the writ as
moot. We also deny his request for damages and costs.
                                         Background
        {¶ 3} Martin is an inmate at the Southern Ohio Correctional Facility. He
alleges that on or about December 15, 2017, he submitted a public-records request
to the warden’s office through the prison “kite system.”1 Although the public-
records request itself is not in the record, the parties seem to agree that Martin
requested his inmate bank-account information for the months of November and
December 2017.
        {¶ 4} Greene sent Martin a written acknowledgment that he received
Martin’s request, indicating that he forwarded the request to the cashier’s office.
However, neither Greene nor the cashier gave Martin any further response to his
records request.
        {¶ 5} On January 16, 2018, Martin filed a complaint for a writ of mandamus
against Greene. Eight days later, the facility provided him copies of the requested
records. Greene subsequently filed a motion to dismiss but not on the basis of
mootness. Rather, Greene argued that we should dismiss Martin’s complaint
because Martin failed to attach certain documents to the complaint. We denied the
motion, granted an alternative writ of mandamus, and set a schedule for the
presentation of evidence and the filing of briefs. 155 Ohio St.3d 220, 2018-Ohio-
4201, 120 N.E.3d 783, ¶ 10. Thereafter, Martin filed a memorandum but failed to
submit any evidence or file a reply brief. On March 15, however, three months
late, Martin filed a motion asking this court to consider the affidavit and exhibits
attached to his complaint as substantive evidence.




1. A “kite” is written by an inmate to a member of the prison staff and is “a means for inmates to
contact staff members inside [an] institution.” State v. Elmore, 5th Dist. Richland No. 16CA52,
2017-Ohio-1472, ¶ 15.




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                                January Term, 2019




                                      Analysis
       {¶ 6} To be entitled to a writ of mandamus, a party must establish by clear
and convincing evidence (1) a clear legal right to the requested relief, (2) a clear
legal duty on the part of the respondent to provide it, and (3) the lack of an adequate
remedy in the ordinary course of the law. State ex rel. Love v. O’Donnell, 150 Ohio
St.3d 378, 2017-Ohio-5659, 81 N.E.3d 1250, ¶ 3. “ ‘Mandamus will not lie to
compel an act that has already been performed.’ ” State ex rel. Martin v. Buchanan,
152 Ohio St.3d 68, 2017-Ohio-9163, 92 N.E.3d 869, ¶ 5, quoting State ex rel.
Eubank v. McDonald, 135 Ohio St.3d 186, 2013-Ohio-72, 985 N.E.2d 463, ¶ 1.
       {¶ 7} In general, a public-records mandamus case becomes moot when the
public office provides the requested records. State ex rel. Toledo Blade Co. v.
Seneca Cty. Bd. of Commrs., 120 Ohio St.3d 372, 2008-Ohio-6253, 899 N.E.2d
961, ¶ 43. The evidence submitted by Greene demonstrates that Martin has
received the documents that he requested. Martin did not file a reply brief disputing
this fact. We therefore deny the writ of mandamus as moot.
       {¶ 8} That ruling does not render Martin’s demand for statutory damages
and court costs moot. But we deny those requests on the merits.
       {¶ 9} A request for the production of public records is governed by the
version of Ohio’s Public Records Act that was in effect at the time that the request
was made. State ex rel. Kesterson v. Kent State Univ., __ Ohio St.3d __, 2018-
Ohio-5108, __ N.E.3d __, ¶ 11, fn. 1. And under the version of R.C. 149.43(C)(2)
that was in effect at the time that Martin made his public-records request, statutory
damages were available only to a requester who proved by clear and convincing
evidence that his written request for public records was delivered by hand or
certified mail. 2016 Sub.H.B. No. 471. Because Martin has produced no evidence
that his written request was delivered to Greene by hand or certified mail, we deny
the request for statutory damages.




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                             SUPREME COURT OF OHIO




       {¶ 10} At all times relevant to this case, court costs under the Public
Records Act may be awarded when (1) a court orders the public office or official
to produce the requested records, R.C. 149.43(C)(3)(a)(i), or (2) a court determines
that “[t]he public office or the person responsible for the public records acted in
bad faith when the office or person voluntarily made the public records available to
the relator for the first time after the relator commenced the mandamus action, but
before the court issued any order,”           R.C. 149.43(C)(3)(b)(iii).    The first
circumstance does not apply here. And we conclude that the evidence does not
support a finding of bad faith.
       {¶ 11} Martin made the request for his November and December bank
records on or about December 15, 2017. But the facility did not even receive
Martin’s December bank records until January 16, 2018, the same day that Martin
filed the complaint, and the facility produced those records to him eight days later.
As for Martin’s November bank records, the facility received those on December
13, 2017, two days before Martin submitted the records request. Although the
facility took approximately four weeks to produce those records, there is no
evidence that the delay was the result of bad faith. To the contrary, the facility
voluntarily provided Martin the December bank records even though it believed
that it had no legal obligation to do so (because it did not possess the records on the
date of the request). Because Martin has produced no evidence of bad faith, we
deny his request for court costs.
       {¶ 12} Finally, we note that the exhibits and affidavit attached to Martin’s
complaint do not change our analysis. Martin filed his complaint eight days before
the facility provided him with the responsive documents. So nothing in the
complaint could speak to the issue whether the facility’s document production
mooted Martin’s mandamus request. And we see nothing in those materials that
would support his claim for statutory damages or court costs. Martin’s motion to




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                               January Term, 2019




have the attachments to his complaint accepted as evidence is therefore moot, and
we deny the motion on that basis.
                                                                    Writ denied.
       O’CONNOR, C.J., and FRENCH, FISCHER, DEWINE, DONNELLY, and
STEWART, JJ., concur.
       KENNEDY, J., concurs in judgment only.
                               _________________
       Andre Martin, pro se.
       Dave Yost, Attorney General, and Thomas Madden, Andrea K. Boyd, and
Christina E. Mahy, Assistant Attorneys General, for respondent.
                               _________________




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