[Cite as State ex rel. Perry v. Byrd, 2020-Ohio-34.]


                                COURT OF APPEALS OF OHIO

                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA

STATE EX REL. DAVEION PERRY,                           :

                 Relator,                              :
                                                                No. 109006
                 v.                                    :

NAILAH K. BYRD,                                        :

                 Respondent.                           :


                                 JOURNAL ENTRY AND OPINION

                 JUDGMENT: WRIT DENIED
                 DATED: January 8, 2020


                                            Writ of Mandamus
                                            Motion No. 533110
                                            Order No. 534092


                                              Appearances:

                 Daveion Perry, pro se.

                 Michael C. O’Malley, Cuyahoga County Prosecuting
                 Attorney, and Brian R. Gutkoski, Assistant Prosecuting
                 Attorney, for respondent.


KATHLEEN ANN KEOUGH, J.:

                    Relator, Daveion Perry, seeks a writ of mandamus directing

respondent, the Cuyahoga County Clerk of Courts Nailah K. Byrd, to release records

Perry alleges that he requested under Ohio’s Public Records Act. Because four of
the six requests do not fall under Ohio’s Public Records Act, respondent’s motion

for summary judgment is granted in part as to those requests. Respondent has

provided the records responsive to Perry’s other requests, rendering the action moot

as to them. Respondent’s motion for summary judgment is granted as to Perry’s

request for statutory damages. Finally, respondent’s request to declare Perry a

vexatious litigator is denied. Writ denied.

                          I. Procedural and Factual History

               Perry filed a complaint for a writ of mandamus on September 13,

2019.   There, he alleged the following facts.       On August 7, 2019, Perry, an

incarcerated individual, initiated certified mail delivery of a public records request

to respondent. The tracking information for the certified mailing Perry alleged to

have sent does not show that the mailing was received by respondent or anyone else.

A printout from the United States Postal Service website attached to Perry’s

complaint indicates that the status of the certified mailing is “not available.”

               Perry’s complaint further alleges that he sought six items in his public

records request: (1) The clerk of courts records retention policy, (2) the clerk of

courts public records policy, (3) an unspecified grand jury subpoena from State v.

Perry, Cuyahoga C.P. CR-16-610816-A, (4) forensic evidence of latent fingerprints,

(5) the gunshot residue kits that were used on Perry, (6) and the Miranda waiver

form that purportedly was generated when police questioned Perry. Perry asserts

that he has not received any response to his public records request from respondent.
                On September 17, 2019, respondent filed a motion to dismiss and to

declare Perry a vexatious litigator. This court, sua sponte, converted the motion to

dismiss to a motion for summary judgment and gave the parties the opportunity to

provide supplemental briefing and to submit additional evidence. On October 24,

2019, respondent filed a motion for summary judgment. Perry filed a brief in

opposition, and respondent filed a reply brief.         The matter is now ripe for

adjudication.

                                  II. Law and Analysis

                                       A. Standards

                A writ of mandamus is an appropriate means to enforce an

individual’s right to access public records under Ohio’s Public Records Act. State ex

rel. Rogers v. Dept. of Rehab. & Corr., 155 Ohio St.3d 545, 2018-Ohio-5111, 122

N.E.3d 1208, ¶ 5, citing R.C. 149.43(C)(1)(b). Entitlement to relief in mandamus

requires that Perry show by clear and convincing evidence that he has a clear legal

right to the requested records and respondent has a clear legal duty to provide the

records. Id.

                The matter is before the court on respondent’s motion for summary

judgment. “‘Summary judgment 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.”’” State ex

rel. Parker v. Russo, Slip Opinion No. 2019-Ohio-4420, ¶ 5, quoting Smith v.

McBride, 130 Ohio St.3d 51, 2011-Ohio-4674, 955 N.E.2d 954, ¶ 12, quoting Civ.R.
56(C). This standard also requires that we construe the evidence most strongly in

favor of the nonmoving party. Easton Telecom Servs., L.L.C. v. Woodmere, 8th

Dist. Cuyahoga No. 107861, 2019-Ohio-3282, ¶ 17, citing Harless v. Willis Day

Warehousing Co., Inc., 54 Ohio St.2d 64, 66, 375 N.E.2d 46 (1978); Civ.R. 56(C).

              In his complaint, Perry has requested that this court direct

respondent to provide the requested records and for statutory damages. Perry’s

request encompasses two distinct classes of public records. In his first and second

request, Perry seeks records that document the operating procedure of respondent

— the records retention schedule and public records policy of the Cuyahoga County

Clerk of Courts. These are public records. State ex rel. Ellis v. Cleveland Police

Forensic Laboratory, 8th Dist. Cuyahoga No. 107571, 2019-Ohio-710, ¶ 9. Perry’s

third through sixth request seek records pertaining to the investigation of his

underlying criminal cases. These four requests will be addressed first.

                       B. Court Records Relating to Criminal
                           Investigation and Prosecution

              Perry relies on Ohio’s Public Records Act when claiming that he is

entitled to records and statutory damages. However, that act is not applicable to the

bulk of his records requests. The Ohio Supreme Court has held that

      “Sup.R. 44 through 47 deal specifically with the procedures regulating
      public access to court records and are the sole vehicle for obtaining
      records in actions commenced after July 1, 2009.” (Emphasis added.)
      State ex rel. Richfield v. Laria, 138 Ohio St.3d 168, 2014-Ohio-243, 4
      N.E.3d 1040, ¶ 8. Because the Public Records Act is inapplicable to his
      request for court records, Harris must seek relief under the Rules of
      Superintendence.
State ex rel. Harris v. Pureval, 155 Ohio St.3d 343, 2018-Ohio-4718, 121 N.E.3d 337,

¶ 10. The court went on to hold that “[t]he Rules of Superintendence do not

authorize statutory damages under any circumstances.” Id. at ¶ 11, citing Cleveland

Constr., Inc. v. Villanueva, 186 Ohio App.3d 258, 2010-Ohio-444, 927 N.E.2d 611,

¶ 18 (8th Dist.), fn. 8. Therefore, the Public Records Act is inapplicable to Perry’s

third through sixth requests. Perry has not sought relief as outlined in the Ohio

Rules of Superintendence, nor has he alleged entitlement to the records under these

rules.

                 Perry acknowledges court rulings that the Ohio Rules of

Superintendence govern these requests, but argues that this is unconstitutional. The

Ohio Supreme Court has found no such constitutional infirmity, and Perry does not

address precisely why this is unconstitutional when the rules of superintendence

still provide for a public right of access to court records.

                 Further, even if Ohio’s Public Records Act applied, 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 record is
         necessary to support what appears to be a justiciable claim of the
         person.
The Supreme Court of Ohio recently reaffirmed the applicability of R.C.

149.43(B)(8) to an inmate’s request for records concerning a criminal investigation

or prosecution. State ex rel. Ellis v. Cleveland Police Forensic Laboratory, Slip

Opinion No. 2019-Ohio-4201, ¶ 12. Therefore, even if Ohio’s Public Records Act was

applicable to Perry’s third through sixth requests, he has failed to allege that he has

complied with this provision of the Act. Mandamus is inappropriate in such cases.

State ex rel. Rittner v. Barber, 6th Dist. Fulton No. F-05-020, 2006-Ohio-592, ¶ 40.

           C. Public Records Policy and Records Retention Schedule

               The records Perry has requested in his first and second request are

not court records, but records that document the public records policy and records

retention schedule of respondent. Therefore, they are properly considered public

records subject to Ohio’s Public Records Act, for which leave under R.C.

149.43(B)(8) is not required. Ellis, 8th Dist. Cuyahoga No. 107571, 2019-Ohio-710,

¶ 9.

               Perry is entitled, upon proper payment, to receive copies of the

respondent’s public records policy and records retention schedule.1             These

documents, conspicuously posted on respondent’s website, were attached to

respondent’s motion for summary judgment, which has been served on Perry.

Therefore, Perry’s mandamus complaint is moot as to his first and second public


       1Respondent’s argument that Perry has not paid an unknown amount to receive
these records, precluding relief in mandamus, is unavailing. Respondent did not provide
Perry with the costs associated with producing the records.
records requests. State ex rel. Toledo Blade Co. v. Ohio Bur. of Workers’ Comp.,

106 Ohio St.3d 113, 2005-Ohio-3549, 832 N.E.2d 711, ¶ 16.

                                D. Statutory Damages

              Perry claims that he is entitled to statutory damages because

respondent has failed to timely deliver the records he has requested.

              R.C. 149.43(C)(2) provides,

      If a requester transmits a written request by hand delivery, electronic
      submission, 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 requester 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.

              In the motion for summary judgment, respondent argues that her

office has not received a public records request from Perry. In an affidavit attached

to the motion for summary judgment, Laura Black, Chief of Staff for the Cuyahoga

County Clerk of Courts, averred that she searched the public records requests made

to respondent and did not find a request from Perry. Perry’s complaint indicates
that he sent his records request by certified mail, but the complaint also indicates

that the status of the certified mail service is unknown. Perry has the burden to show

by clear and convincing evidence that respondent received his records request.

Dillingham v. Butler Cty. Prosecutor’s Office, Ct. of Cl. No. 2018-01034PQ, 2018-

Ohio-3654, ¶ 10, report and recommendation adopted in Dillingham v. Butler Cty.

Prosecutor’s Office, Ct. of Cl. No. 2018-01034PQ, 2018-Ohio-4360.

              Perry’s complaint includes a printout from the United States Postal

Service website indicating that the status of the certified mailing he claims to have

sent to respondent is “not available.” Perry’s brief in opposition to respondent’s

motion for summary judgment also does not provide any further evidence that

service of his public records request was accomplished. Perry has not shown that

respondent was in receipt of his public records request prior to the filing of the

mandamus action. To be entitled to statutory damages, Ohio’s Public Records Act

requires that a public records request be delivered via verifiable means, either by

electronic means, certified mail, or hand delivery. Where a relator has not shown

that a public agency has breached its duty to promptly provide public records, with

evidence that such a duty actually arose, statutory damages are inappropriate. See

Johns v. Allen, 11th Dist. Trumbull No. 2013-T-0007, 2013-Ohio-2045, ¶ 15.

              When seeking relief in mandamus “[r]elators must prove that they are

entitled to the writ by clear and convincing evidence.” State ex rel. Schroeder v.

Cleveland, 150 Ohio St.3d 135, 2016-Ohio-8105, 80 N.E.3d 417, ¶ 13, citing State ex

rel. Waters v. Spaeth, 131 Ohio St.3d 55, 2012-Ohio-69, 960 N.E.2d 452, ¶ 13.
Perry’s own records, coupled with the averment in the affidavit attesting to the fact

that respondent had no record of receiving Perry’s certified mailing, are strong

indicators that Perry cannot meet this burden. Perry’s own self-serving averment in

his affidavit that he sent his public records request to respondent via certified mail

does not create a material question of fact in the face of this evidence because Perry

has failed to show respondent received the request. Without clear and convincing

evidence of this fact, Perry cannot show that respondent breached a legal duty owed

to him such that Perry is entitled to an award of statutory damages.           When

respondent learned of Perry’s records request through the filing of this writ action,

respondent forwarded the two records to which Perry was entitled within a

reasonable time when it attached the records to its motion for summary judgment.

Therefore, Perry’s request for statutory damages is denied.

                                     III. Conclusion

               Respondent’s motion for summary judgment is granted. Perry has

received records responsive to his first and second records request, rendering his

complaint moot as to them. For the remainder of the requests, he is not entitled to

the requested records under Ohio’s Public Records Act. Finally, Perry is not entitled

to statutory damages for his first and second records requests.

               Further, this court finds that there were reasonable grounds for this

action and, pursuant to Loc.App.R. 23, denies respondent’s request to declare Perry

a vexatious litigator.
               For all of the foregoing reasons, respondent’s motion for summary

judgment is granted. Relator to pay costs. Costs waived. The clerk of courts is

directed to serve notice of this judgment upon all parties as provided in Civ.R. 58(B).

               Writ denied.



_______________________________
KATHLEEN ANN KEOUGH, JUDGE

MARY EILEEN KILBANE, P.J., and
RAYMOND C. HEADEN, J., CONCUR
