[Cite as State ex rel. Garnack v. Newark, 2012-Ohio-4146.]


                                       COURT OF APPEALS
                                     LICKING COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT


STATE OF OHIO, EX REL.                             :         JUDGES:
STEPHEN J. GARNACK                                 :         Hon. Patricia A. Delaney, P.J.
                                                   :         Hon. Sheila G. Farmer, J.
   Relator                                         :         Hon. Julie A. Edwards, J.
                                                   :
-vs-                                               :         Case No. 11CA0104
                                                   :
CITY OF NEWARK                                     :         OPINION
                                                   :
   Respondents                                     :




CHARACTER OF PROCEEDING:                                     Writ of Mandamus




JUDGMENT:                                                    Denied




DATE OF JUDGMENT:                                            September 11, 2012




APPEARANCES:

For Relator                                                  For Respondents

DAVID T. BALL                                                JAMIE FARMER
395 North Pearl Street                                       City of Newark
Granville, OH 43023                                          Law Director's Office
                                                             40 West Main Street
                                                             Newark, OH 43055
Licking County, Case No. 11CA0104                                                     2

Farmer, J.

       {¶1}   Relator, Stephen Garnack, has filed a Complaint for writ of mandamus

against Respondents, City of Newark, Office of the Mayor, Mayor Bob Diebold, Office of

the City Council and Council President Bruce Bain.

       {¶2}   This cause of action arises out of public records requests made by Relator

to Respondents for documents related to Relator’s removal as Residential Programs

Supervisor. Relator classifies the removal as a termination. It is Respondents position

that Relator voluntarily resigned, therefore, there was no termination.

       {¶3}   Relator issued three written requests for records to Respondent prior to

the filing of the instant complaint. The first request was made on December 23, 2010.

Respondents provided some records on January 25, 2011. The second request was

made on May 13, 2011, and the third request was made on June 11, 2011.

Respondents provided records on June 23, 2011 and additional records on July 7,

2011. Relator then filed a complaint for writ of mandamus detailing various records he

wanted but was not provided. Upon receiving the detailed request contained in the

complaint, Respondents provided additional documents. Relator acknowledges

receiving the documents. Relator believes Respondents have failed to provide one

remaining set of documents: emails from Councilperson Rhodes.

       {¶4}   We find the complaint to be moot except as to the request for emails from

Councilperson Rhodes.      The Supreme Court has held, ““In general, providing the

requested records to the relator in a public-records mandamus case renders the

mandamus claim moot.” 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.
Licking County, Case No. 11CA0104                                                         3


       {¶5}   Because Relator acknowledges receipt of most of the requested

documents, the complaint is moot as to those documents.

       {¶6}   We now consider whether Relator has demonstrated his entitlement to a

writ of mandamus relative to emails from Councilperson Rhodes.

       {¶7}   “Mandamus is the appropriate remedy to compel compliance with R.C.

149.43, Ohio's Public Records Act.” State ex rel. Physicians Commt. for Responsible

Medicine v. Ohio State Univ. Bd. of Trustees, 108 Ohio St.3d 288, 2006-Ohio-903, 843

N.E.2d 174, ¶ 6; R.C. 149.43(C).

       {¶8}   “[R]espondents possess no duty to create or provide access to

nonexistent records. State ex rel. Lanham v. Smith, 112 Ohio St.3d 527, 2007 Ohio 609,

861 N.E.2d 530; State ex rel. Ohio Patrolmen's Benevolent Assn. v. Mentor (2000), 89

Ohio St.3d 440, 2000 Ohio 440, 732 N.E.2d 969.” State ex rel. Bardwell v. Cleveland

State Univ., Cuyahoga App. No. 91077, 2008-Ohio-2819, at ¶ 15.

       {¶9}   The only evidence presented to this Court regarding the existence vel non

of Rhodes' emails is contained in the affidavit of Councilperson Rhodes wherein he

states he has no recollection of any emails regarding Relator’s displacement. Relator

offers no evidence to the contrary. Relator does direct this Court to Relator’s affidavit in

support of his belief that emails do exist. The affidavit reveals has no independent

knowledge of the existence of emails.

       {¶10} “It is axiomatic that [a respondent] cannot be compelled to release

documents that he does not have. State ex rel. Fant v. Mengle (1991), 62 Ohio St.3d

197.” State ex rel. Mangrum v. Simmons 1994 WL 327552, 1 (Ohio App. 12 Dist.).
Licking County, Case No. 11CA0104                                                       4


      {¶11} Relator has failed to demonstrate that Respondents have failed to turn

over any documents. For this reason, mandamus will not lie.

      {¶12} We now turn to the issue of attorney fees. The Supreme Court has held,

“Under the applicable test, ‘[a] court may award attorney fees pursuant to R.C. 149.43

where (1) a person makes a proper request for public records pursuant to R.C. 149.43,

(2) the custodian of the public records fails to comply with the person's request, (3) the

requesting person files a mandamus action pursuant to R.C. 149.43 to obtain copies of

the records, and (4) the person receives the requested records only after the

mandamus action is filed, thereby rendering the claim for a writ of mandamus moot.’”

State ex rel. Pennington v. Gundler (1996), 75 Ohio St.3d 171, 661 N.E.2d 1049,

syllabus

      {¶13} As to Relator’s request for attorney fees, we find Respondents sufficiently

complied with all requests within a reasonable amount of time, therefore, the request for

attorney fees is denied. See State ex rel. ESPN v. Ohio State Univ. --- N.E.2d ----, 2012

WL 2359613 (Ohio), 2012 -Ohio- 2690 (denying request for attorney fees when public-

records claims are mostly lacking in merit).

      {¶14} Further, Relator did receive records in response to his first three requests

before the instant Complaint was filed.        In addition, he received records after the

Complaint was filed which was in response to the specific requests made within the

Complaint.
Licking County, Case No. 11CA0104                                              5


      {¶15} For these reasons, we deny the request for attorney fees.




By Farmer, J.

Delaney, P.J. and

Edwards, J. concur.




                                          s/ Sheila G. Farmer______________



                                          s/Patricia A. Delaney    _________



                                          s/ Julie A. Edwards______________

                                                        JUDGES




SGF/as 731
[Cite as State ex rel. Garnack v. Newark, 2012-Ohio-4146.]


                    IN THE COURT OF APPEALS FOR LICKING COUNTY, OHIO

                                   FIFTH APPELLATE DISTRICT


STATE OF OHIO, EX REL.                                 :
STEPHEN J. GARNACK                                     :
                                                       :
        Relator                                        :
                                                       :
-vs-                                                   :         JUDGMENT ENTRY
                                                       :
CITY OF NEWARK                                         :
                                                       :
        Respondents                                    :         CASE NO. 11CA0104


        For the reasons stated in our accompanying Memorandum-Opinion, the

requested Writ of Mandamus is denied. The request for attorney fees is also denied.

Costs to Relator.




                                                       s/ Sheila G. Farmer______________



                                                       s/Patricia A. Delaney   _________



                                                       s/ Julie A. Edwards______________

                                                                    JUDGES
