[Cite as Ware v. Mansfield Corr. Inst., 2018-Ohio-5446.]




KIMANI E. WARE                                         Case No. 2018-01386PQ

       Requester                                       Special Master Jeffery W. Clark

       v.                                              REPORT AND RECOMMENDATION

MANSFIELD CORRECTIONAL
INSTITUTION

       Respondent


        {¶1} On July 18, 2018, requester Kimani Ware filed a complaint under
R.C. 2743.75 alleging denial of access to public records in violation of R.C. 149.43(B).
Ware alleges that he sent letters to the Warden’s Assistant Office of respondent
Mansfield Correctional Institution (ManCI) on April 30, 2018, and again on June 18,
2018, requesting the following records:

        A copy of M.C.I. (Mansfield) Library Schedule
        A copy of M.C.I. (Mansfield) Religious Services Scheduling Calendar
        A copy of M.C.I. (Mansfield) Library Advisory Committee Forms from
        January 1st, 2015 through January 1st, 2018
        A copy of M.C.I. (Mansfield) Monthly Library Reports from December 5th,
        2017 through January 5th, 2018
        A copy of M.C.I. (Mansfield) Library Procedure Manual/Operating Manual

(Complaint at 4-5.) Ware asserts that he did not receive the requested records, did not
receive a written response from ManCI, and did not receive an explanation for denial of
the requests. Ware seeks an order compelling ManCI to produce certification of its
compliance with training in public records law pursuant to R.C. 149.43(E)(1), and for
production of the requested records. Ware declined the court’s mediation services in
this action.
        {¶2} On December 7, 2018, ManCI filed a motion to dismiss or in the alternative,
motion for summary judgment (Response). As grounds, ManCI asserts that Ware did
Case No. 2018-01386PQ                       -2-     REPORT AND RECOMMENDATION


not provide affirmative evidence that he had actually mailed the alleged requests, and
that ManCI rendered the claims moot after the filing of the complaint by providing copies
of all requested records.
      {¶3} Ohio’s Public Records Act, R.C. 149.43, provides a remedy for production of
records under R.C. 2743.75 if the court of claims determines that a public office has
denied access to public records in violation of R.C. 149.43(B). The policy underlying the
Act is that “open government serves the public interest and our democratic system.”
State ex rel. Dann v. Taft, 109 Ohio St.3d 364, 2006-Ohio-1825, 848 N.E.2d 472, ¶ 20.
Therefore, the Act is construed liberally in favor of broad access, and any doubt is
resolved in favor of disclosure of public records. State ex rel. Glasgow v. Jones, 119
Ohio St.3d 391, 2008-Ohio-4788, 894 N.E.2d 686, ¶ 13. Claims under R.C. 2743.75 are
determined using the standard of clear and convincing evidence. Hurt v. Liberty Twp.,
5th Dist. Delaware No. 17CAI050031, 2017-Ohio-7820, ¶ 27-30.
      Motion to Dismiss
      {¶4} In construing a motion to dismiss pursuant to Civ.R. 12(B)(6), the court must
presume that all factual allegations of the complaint are true and make all reasonable
inferences in favor of the non-moving party. Mitchell v. Lawson Milk Co., 40 Ohio St.3d
190, 192, 532 N.E.2d 753 (1988). Then, before the court may dismiss the complaint, it
must appear beyond doubt that plaintiff can prove no set of facts entitling him to
recovery. O’Brien v. Univ. Community Tenants Union, Inc., 42 Ohio St.2d 242, 245, 327
N.E.2d 753 (1975).
      {¶5} Ware attested by affidavit that he “mailed a public records request on April
30th, 2018 to the Warden’s Assistant at Mansfield Correctional Institution.” (Complaint
at 3.) The request letter of that date bears the correct street address for ManCI. (Id. at
4.) There is no requirement in R.C. 149.43 that a requester deliver a request using
certified mail, or even that the request be made in writing. R.C. 149.43(B)(5). I find that
the complaint sufficiently alleges that Ware’s public records request was made as
Case No. 2018-01386PQ                      -3-     REPORT AND RECOMMENDATION


described, and I recommend that the court deny ManCI’s motion to dismiss on this
ground.
      {¶6} ManCI’s production of the requested records is not demonstrated on the
face of the complaint, which otherwise sufficiently alleges failure of ManCI to respond to
the requests. I recommend that the motion to dismiss on this ground be denied as well,
and that the case be decided on the merits.
      Demand for Proof of Training
      {¶7} In his prayer for relief, Ware requests “an order compelling the respondent
to produce a certified copy of its credentials that respondent complied with the
educational training in accordance with division (E)(1) of section 149.43 of the revised
code and division (B) of section 109.43 of the revised code.” (Complaint at 2.) Ware
listed no record corresponding to this description when he made the public records
requests on which this action is based.
      {¶8} A claim that a public office has failed to comply with R.C. 149.43(B) is not
ripe until a specific request has been made and denied. Strothers v. Norton, 131 Ohio
St.3d 359, 2012-Ohio-1007, 965 N.E.2d 282, ¶ 14; State ex rel. Bardwell v. Cordray,
181 Ohio App.3d 661, 664, 2009-Ohio-1265, 910 N.E.2d 504, ¶ 5. I find that Ware has
not shown that he first made a public records request for this record, and has thus not
triggered any obligation for response by ManCI. Ware alleges no other authority that
would entitle him to production of the requested “credentials” in this action. Even had
such a request been made, I note that neither the warden’s assistant or any other
employee of ManCI is an “elected official” as defined in R.C. 109.43(A)(2), and
“respondent” therefore had no duty to comply with R.C. 109.43(B).
      {¶9} I recommend the court deny this portion of the claim.
      Failure of Timely Production and Suggestion of Mootness
      {¶10} In an action to enforce R.C. 149.43(B), a public office may produce the
requested records prior to the court’s decision, and thereby render the claim for
Case No. 2018-01386PQ                      -4-     REPORT AND RECOMMENDATION


production moot. State ex rel. Striker v. Smith, 129 Ohio St.3d 168, 2011-Ohio-2878,
950 N.E.2d 952, ¶ 18-22. ManCI asserts that subsequent to the filing of the complaint it
provided Ware with all requested records. ManCI supports this assertion with a cover
letter to Ware dated November 5, 2018, and a page from the Trumbull Correctional
Institution (TCI) legal mail log showing receipt by Ware of correspondence from ManCI
on November 13, 2018, both purportedly initialed by Ware. (Response, Exh. A at p. 2-
3.) The cover letter bears a correct street address for Ware’s current location at TCI.
Notably, and contrary to the implication in ManCI’s motion to dismiss that the request
had never been mailed, ManCI staff state in this correspondence that Ware’s April 30,
2018 request was “received on May 4, 2018.” (Response, Exh A at p. 2.) The cover
letter invites Ware to “please find the following documents as a complete response to
your request:” followed by a list of records identical to the request wording of the April
30, 2018 letter. ManCI further provides a copy of a U.S. Postal Service domestic return
receipt dated November 13, 2018 showing acceptance by TCI, on Ware’s behalf, of
correspondence from ManCI. (Id., Exh. A at p. 1.) ManCI did not provide the court with
copies of the records purportedly enclosed with the cover letter.
      {¶11} I find that the evidence of a six-month delay between the public records
request and production of the records, with no assertion that the records required legal
review or redaction based on any exception, demonstrates that respondent failed to
make the records available to requester within a reasonable period of time. R.C.
149.43(B)(1). I further find that ManCI has rendered the claim for production moot by
providing Ware with all requested records prior to the submission of this report and
recommendation.
      Conclusion
      {¶12} Upon consideration of the pleadings and attachments, I recommend that
the court find that respondent failed to timely respond to the public records request, but
that the request is now moot. I recommend that court costs be assessed to respondent.
Case No. 2018-01386PQ                       -5-     REPORT AND RECOMMENDATION


        {¶13} Pursuant to R.C. 2743.75(F)(2), either party may file a written objection
with the clerk of the Court of Claims of Ohio within seven (7) business days after
receiving this report and recommendation. Any objection shall be specific and state with
particularity all grounds for the objection. A party shall not assign as error on appeal the
court’s adoption of any factual findings or legal conclusions in this report and
recommendation unless a timely objection was filed thereto. R.C. 2743.75(G)(1).




                                           JEFFERY W. CLARK
                                           Special Master

Filed December 20, 2018
Sent to S.C. Reporter 1/11/19
