[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
ex rel. Ware v. Giavasis, Slip Opinion No. 2020-Ohio-3700.]




                                           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-3700
   THE STATE EX REL. WARE, APPELLANT, v. GIAVASIS, CLERK, APPELLEE.
  [Until this opinion appears in the Ohio Official Reports advance sheets, it
         may be cited as State ex rel. Ware v. Giavasis, Slip Opinion No.
                                     2020-Ohio-3700.]
Mandamus—Public-records             requests—Inmate         seeking    access     to    records
        concerning his prosecution failed to obtain approval of sentencing judge as
        required under R.C. 149.43(B)(8)—Court of appeals’ judgment affirmed.
        (No. 2019-0824—Submitted June 2, 2020—Decided July 16, 2020.)
     APPEAL from the Court of Appeals for Stark County, No. 2019CA00003,
                                      2019-Ohio-2119.
                                   __________________
        Per Curiam.
        {¶ 1} Appellant, Kimani Ware, a prison inmate, appeals the decision of the
Fifth District Court of Appeals granting summary judgment in favor of appellee,
Louis P. Giavasis, the Stark County Clerk of Courts, on Ware’s complaint for a writ
of mandamus to compel the production of public records. The Fifth District granted
                             SUPREME COURT OF OHIO




judgment in Giavasis’s favor because Ware did not comply with R.C. 149.43(B)(8),
which requires the sentencing judge’s approval for certain public-records requests
made by prison inmates. We affirm.
                                   Background
       {¶ 2} On October 23, 2018, Ware sent a public-records request by ordinary
mail to Giavasis seeking copies of the clerk of courts’ public-records policy,
records-retention schedule, and records-retention policy. Ware sent a second
request by certified mail to Giavasis on December 6, 2018, this time seeking copies
of the indictment, docket sheet, complaint, and jury-verdict forms in a 2003
criminal case involving a fellow prison inmate. Ware alleges that Giavasis did not
respond to either request.
       {¶ 3} On January 8, 2019, Ware filed a mandamus complaint in the Fifth
District seeking to compel Giavasis to provide the records he had requested.
Giavasis moved for summary judgment and submitted evidence showing that he
responded to Ware’s requests on January 18, 2019. Giavasis’s response included
documents responsive to Ware’s first request, but Giavasis took the position that
Ware was not entitled to the documents sought in the second request because Ware
had not complied with R.C. 149.43(B)(8). The Fifth District granted summary
judgment in Giavasis’s favor, noting that Giavasis had satisfied Ware’s first request
and agreeing with Giavasis’s denial of the second request based on Ware’s failure
to comply with R.C. 149.43(B)(8).
       {¶ 4} Ware appealed to this court as of right.
                                     Analysis
       {¶ 5} Because Giavasis provided records in response to Ware’s first request
and Ware presents no argument concerning that request, only his second request—
for records from a 2003 criminal case—is at issue in this appeal. We review the
Fifth District’s decision granting summary judgment de novo. Smith v. McBride,
130 Ohio St.3d 51, 2011-Ohio-4674, 955 N.E.2d 954, ¶ 12. “Summary judgment



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                                January Term, 2020




is appropriate when an examination of all relevant materials filed in the action
reveals that ‘there is no genuine issue as to any material fact and that the moving
party is entitled to judgment as a matter of law.’ ” Id., quoting Civ.R. 56(C).
                       Noncompliance with R.C. 149.43(B)(8)
       {¶ 6} The Fifth District correctly concluded that Ware’s mandamus claim
fails as a matter of law. As a person incarcerated pursuant to a criminal conviction,
Ware first must obtain the approval of the sentencing judge before he is entitled to
access to “any public record concerning a criminal investigation or prosecution.”
R.C. 149.43(B)(8).      We have characterized this language as “broad and
encompassing.” State ex rel. Russell v. Thornton, 111 Ohio St.3d 409, 2006-Ohio-
5858, 856 N.E.2d 966, ¶ 14 (involving former R.C. 149.43(B)(4), now R.C.
149.43(B)(8)). Because the records Ware requested—an indictment, a docket
sheet, a complaint, and jury-verdict forms—clearly concern a criminal prosecution,
Giavasis had no duty to give them to Ware without the sentencing judge’s approval.
       {¶ 7} Ware suggests that under Russell, R.C. 149.43(B)(8) applies only
when a prison inmate is seeking offense and incident reports. To be sure, we did
hold in Russell that offense and incident reports are records “concerning a criminal
investigation or prosecution.” Russell at ¶ 14. But that holding does not support
Ware’s proposition that offense and incident reports are the only records that
require the sentencing judge’s approval under R.C. 149.43(B)(8).
       {¶ 8} Ware also argues that R.C. 149.43(B)(8) is unconstitutional. Ware
waived that argument by failing to raise it below. See State ex rel. Fernbach v.
Brush, 133 Ohio St.3d 151, 2012-Ohio-4214, 976 N.E.2d 889, ¶ 3. We therefore
need not address it.
                                Statutory damages
       {¶ 9} Ware contends that the Fifth District erred in failing to address his
claim for statutory damages. His first records request is not eligible for an award
of statutory damages, because he transmitted that request by ordinary mail. See




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former R.C. 149.43(C)(2), 2018 Am.Sub.H.B. No. 8 (transmissions “by hand
delivery or certified mail” may qualify). But Ware could be eligible for statutory
damages related to his second request, because he sent that request by certified mail.
See former R.C. 149.43(C)(2), 2018 Sub.H.B. No. 312 (transmissions “by hand
delivery, electronic submission, or certified mail” may qualify).
       {¶ 10} If a request meets the form and transmission requirements of R.C.
149.43(C)(2), “the requester shall be entitled to” statutory damages “if a court
determines that the public office or the person responsible for public records failed
to comply with an obligation” under R.C. 149.43(B). This broad language means
that a party may be entitled to statutory damages even when she does not prevail
on her mandamus claim. See, e.g., State ex rel. Kesterson v. Kent State Univ., 156
Ohio St.3d 13, 2018-Ohio-5108, 123 N.E.3d 887, ¶ 22 (awarding statutory damages
because responsive records were not provided within a reasonable period of time).
       {¶ 11} Ware suggests that he is entitled to statutory damages because
Giavasis did not respond to the second request until after Ware filed his mandamus
complaint. But Ware has not shown that Giavasis “failed to comply with an
obligation” under R.C. 149.43(B) with respect to the second request. Giavasis
justifiably denied that request, so his only obligation was to provide Ware with an
explanation for the denial. See R.C. 149.43(B)(3). Giavasis satisfied that duty by
sending Ware a letter on January 18, 2019, in which he explained R.C.
149.43(B)(8)’s applicability.
       {¶ 12} We need not determine whether Giavasis responded to Ware within
a reasonable period of time. Unlike R.C. 149.43(B)(1), which requires public
records to be “promptly prepared” and made available “within a reasonable period
of time” upon request, R.C. 149.43(B)(3) does not impose a timeliness requirement.
State ex rel. Armatas v. Plain Twp. Bd. of Trustees, 5th Dist. Stark No.
2019CA00141, 2020-Ohio-1225, ¶ 20.
                                                                 Judgment affirmed.



                                          4
                                 January Term, 2020




          O’CONNOR, C.J., and FISCHER, DEWINE, DONNELLY, and STEWART, JJ.,
concur.
          KENNEDY and FRENCH, JJ., concur in judgment only.
                                 _________________
          Kimani Ware, pro se.
          John D. Ferrero, Stark County Prosecuting Attorney, and David E. Deibel,
Assistant Prosecuting Attorney, for appellee.
                                 _________________




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