{"attribution":{"source":"legal.exploreworldai.com","canonical":"https://legal.exploreworldai.com/api/public/v1/judgment-text?id=us:ohio-2024-1363-2025-12-16","cite_as":"NovaCopilot, legal.exploreworldai.com (https://legal.exploreworldai.com/api/public/v1/judgment-text?id=us:ohio-2024-1363-2025-12-16)","license":"https://legal.exploreworldai.com/revision","version":"legal-2026-10-17","fingerprint":"ewai:us:e7344b","proof":"sha256:dbe735fc08cac9df7c26d3c5c48c86390537f3533c1c16561a0d3214123edd63","jurisdiction":"us","lang":"en","publisher":"NovaCopilot by ExploreWorld Legal","terms":"https://legal.exploreworldai.com/om"},"brand_source":"Source: NovaCopilot","item":{"schema_version":"1.0.0","id":"us:ohio-2024-1363-2025-12-16","jurisdiction":"us","lang":"en","brand_source":"Source: NovaCopilot","brand":{"product":"NovaCopilot","platform":"ExploreWorldAI","infrastructure":"ExploreWorld Legal","infrastructure_url":"legal.exploreworldai.com","legal_entity":"Valkiv Ventures AB","permanent_url":"https://legal.exploreworldai.com/novacopilot","source":"Source: NovaCopilot","powered_by":"Powered by NovaCopilot","license":"https://legal.exploreworldai.com/licensvillkor"},"sections":[{"title":"","paragraphs":["para_1"]},{"title":"THE STATE EX REL. CLARK v. DEPARTMENT OF REHABILITATION AND","paragraphs":["para_3","para_4"]},{"title":"Mandamus—Public-records requests—Relator failed to show that latent","paragraphs":["para_6","para_7","para_8","para_9","para_10","para_11","para_12","para_13"]},{"title":"(No. 2024-1363—Submitted March 11, 2025—Decided December 16, 2025.)","paragraphs":["para_15","para_16","para_17"]},{"title":"HAWKINS, and SHANAHAN, JJ. KENNEDY, C.J., concurred in part and dissented in","paragraphs":["para_19","para_20","para_21","para_22"]},{"title":"Act, R.C. 149.43. He petitions this court for a writ of mandamus ordering","paragraphs":["para_24","para_25"]},{"title":"SUPREME COURT OF OHIO","paragraphs":[]},{"title":"2","paragraphs":["para_28","para_29","para_30","para_31","para_32","para_33","para_34","para_35","para_36","para_37","para_38","para_39","para_40","para_41","para_42"]},{"title":"I. FACTS AND PROCEDURAL HISTORY","paragraphs":[]},{"title":"A. Recordings from body-worn cameras","paragraphs":["para_45","para_46","para_47","para_48","para_49"]},{"title":"Policy No. 10-SAF-22(VI)(C) (effective Aug. 1, 2023). And the department’s","paragraphs":["para_51","para_52","para_53","para_54"]},{"title":"January Term, 2025","paragraphs":[]},{"title":"3","paragraphs":["para_57"]},{"title":"(effective Aug. 1, 2023). Clark calls these low-resolution recordings “latent","paragraphs":["para_59"]},{"title":"ODRC Policy No. 10-SAF-22(VI)(K)(2). Although there are specific instances","paragraphs":["para_61","para_62","para_63"]},{"title":"These latent recordings can be accessed and used to document an incident on those","paragraphs":["para_65","para_66","para_67","para_68","para_69"]},{"title":"22(VI)(K)(1) and (2). The policy states that latent recordings must be accessed and","paragraphs":["para_71","para_72","para_73","para_74"]},{"title":"22(VI)(K)(2). When no qualifying event occurs, the ability to access and preserve","paragraphs":["para_76","para_77","para_78","para_79","para_80"]},{"title":"22(VI)(K)(4) (effective Aug. 1, 2023). Nonetheless, Clark asserts that even when","paragraphs":["para_82","para_83"]},{"title":"SUPREME COURT OF OHIO","paragraphs":[]},{"title":"4","paragraphs":["para_86","para_87","para_88","para_89","para_90","para_91","para_92","para_93","para_94","para_95","para_96","para_97","para_98","para_99","para_100","para_101","para_102","para_103","para_104","para_105","para_106","para_107","para_108","para_109","para_110","para_111","para_112","para_113"]},{"title":"January Term, 2025","paragraphs":[]},{"title":"5","paragraphs":["para_116"]},{"title":"Clark’s conversation with the supervisor was not a “qualifying event” for “video","paragraphs":["para_118","para_119","para_120","para_121","para_122"]},{"title":"B. Unaltered paper copies of eight kites","paragraphs":["para_124","para_125","para_126","para_127","para_128","para_129","para_130","para_131"]},{"title":"Specifically, the entry missing from the copy of the audit log that Myers supplied","paragraphs":["para_133","para_134","para_135","para_136","para_137"]},{"title":"Myers’s attests is “true and accurate” and a copy of the clarifying kite and audit log","paragraphs":["para_139","para_140","para_141","para_142","para_143"]},{"title":"SUPREME COURT OF OHIO","paragraphs":[]},{"title":"6","paragraphs":["para_146","para_147","para_148","para_149","para_150","para_151","para_152","para_153"]},{"title":"C. “Post orders” for prison employees working in the prison’s property","paragraphs":["para_155","para_156","para_157","para_158","para_159","para_160","para_161"]},{"title":"D. Clark files this action","paragraphs":["para_163","para_164","para_165","para_166"]},{"title":"He also asks for $11,000 in statutory damages plus court costs. After the","paragraphs":["para_168"]},{"title":"II. ANALYSIS","paragraphs":["para_170","para_171"]},{"title":"January Term, 2025","paragraphs":[]},{"title":"7","paragraphs":["para_174","para_175","para_176","para_177","para_178","para_179","para_180","para_181","para_182","para_183","para_184"]},{"title":"2008-Ohio-6253, ¶ 27. If a record has been deleted but can be recovered, it still","paragraphs":["para_186","para_187","para_188","para_189","para_190"]},{"title":"Greene, 2020-Ohio-2782, ¶ 8-9. If a requested record does not exist, a writ of","paragraphs":["para_192"]},{"title":"Toledo Blade at ¶ 27, citing State ex rel. Cincinnati Enquirer, Div. of Gannett","paragraphs":["para_194","para_195","para_196","para_197"]},{"title":"3. The General Assembly has recently made amendments to R.C. 149.43, most notably in 2024","paragraphs":["para_199","para_200"]},{"title":"SUPREME COURT OF OHIO","paragraphs":[]},{"title":"8","paragraphs":["para_203","para_204","para_205","para_206"]},{"title":"Choice Ohio, Inc. v. Cincinnati Pub. School Dist., 2016-Ohio-5026, ¶ 11. “If a","paragraphs":["para_208","para_209","para_210","para_211"]},{"title":"Health v. Lipson O’Shea Legal Group, 2016-Ohio-556, ¶ 12 (remanding to the trial","paragraphs":["para_213","para_214","para_215","para_216"]},{"title":"149.43(B)(8)], all public records responsive to the request shall be promptly","paragraphs":["para_218","para_219"]},{"title":"A. The requested recordings from the body-worn cameras do not exist, and","paragraphs":[]},{"title":"Clark has not shown that they ever did","paragraphs":["para_222","para_223","para_224","para_225","para_226","para_227","para_228"]},{"title":"Clark also admits in his merit brief that even if the cameras were creating such","paragraphs":["para_230"]},{"title":"January Term, 2025","paragraphs":[]},{"title":"9","paragraphs":["para_233","para_234","para_235"]},{"title":"R.C. 149.43(A)(1). But the evidence in this case establishes that the latent","paragraphs":["para_237"]},{"title":"18 hours in limited circumstances—for example, when there is a “qualifying","paragraphs":["para_239","para_240","para_241","para_242"]},{"title":"2260, at ¶ 11, quoting Webster’s Third New International Dictionary (1986)","paragraphs":[]},{"title":"(“‘“[k]ept” is the past participle of “keep,” which . . . means “preserve,” “maintain,”","paragraphs":["para_245","para_246","para_247","para_248","para_249","para_250","para_251","para_252","para_253","para_254","para_255","para_256","para_257","para_258","para_259","para_260"]},{"title":"SUPREME COURT OF OHIO","paragraphs":[]},{"title":"10","paragraphs":["para_263","para_264","para_265","para_266","para_267","para_268","para_269","para_270","para_271","para_272","para_273","para_274","para_275","para_276","para_277","para_278"]},{"title":"See Pool, 2023-Ohio-1204, at ¶ 18 (“A public office has no duty to create or provide","paragraphs":["para_280","para_281","para_282","para_283","para_284","para_285","para_286","para_287","para_288","para_289"]},{"title":"22. Myers never specifically admitted that the recordings existed when she denied","paragraphs":[]},{"title":"January Term, 2025","paragraphs":[]},{"title":"11","paragraphs":["para_293","para_294","para_295"]},{"title":"B. Clark has not met his burden to demonstrate that he is entitled to a writ","paragraphs":["para_297","para_298","para_299","para_300","para_301","para_302","para_303","para_304","para_305","para_306","para_307","para_308","para_309","para_310","para_311"]},{"title":"State ex rel. Frank v. Clermont Cty. Prosecutor, 2021-Ohio-623, ¶ 15 (“A public","paragraphs":["para_313","para_314","para_315","para_316","para_317","para_318","para_319"]},{"title":"2024-Ohio-3131, ¶ 10 (“providing the requested records to the relator moots a","paragraphs":[]},{"title":"SUPREME COURT OF OHIO","paragraphs":[]},{"title":"12","paragraphs":["para_323","para_324","para_325","para_326","para_327","para_328","para_329"]},{"title":"Clark’s claim for statutory damages is premised on his claim that the audit log of","paragraphs":["para_331"]},{"title":"The problem, though, is that Clark has not shown that the missing entry was","paragraphs":["para_333","para_334","para_335","para_336","para_337","para_338","para_339","para_340"]},{"title":"C. The department must prove that the security-records exemption applies","paragraphs":["para_342","para_343","para_344","para_345","para_346","para_347","para_348","para_349"]},{"title":"January Term, 2025","paragraphs":[]},{"title":"13","paragraphs":["para_352","para_353","para_354","para_355","para_356","para_357","para_358","para_359","para_360","para_361","para_362","para_363","para_364","para_365","para_366","para_367","para_368","para_369"]},{"title":"Ohio-4268, at ¶ 3, 9-10; Burfitt at ¶ 11-14. But here, the only evidence that the","paragraphs":["para_371","para_372","para_373","para_374","para_375","para_376","para_377","para_378","para_379"]},{"title":"SUPREME COURT OF OHIO","paragraphs":[]},{"title":"14","paragraphs":["para_382","para_383","para_384","para_385"]},{"title":"III. CONCLUSION","paragraphs":["para_387","para_388","para_389","para_390"]},{"title":"Writ denied in part","paragraphs":["para_392","para_393"]},{"title":"KENNEDY, C.J., joined by BRUNNER, J., concurring in part and","paragraphs":["para_395","para_396"]},{"title":"(“ODRC”), has a policy stating that body-worn-camera footage that is captured or","paragraphs":["para_398","para_399"]},{"title":"(effective Aug. 1, 2023). And in accordance with that policy, passively recorded","paragraphs":["para_401","para_402","para_403","para_404","para_405","para_406","para_407","para_408"]},{"title":"January Term, 2025","paragraphs":[]},{"title":"15","paragraphs":["para_411"]},{"title":"Institution, Ellen Myers, to preserve the latent recordings before they were","paragraphs":["para_413","para_414","para_415","para_416","para_417","para_418","para_419","para_420","para_421","para_422","para_423","para_424","para_425","para_426","para_427"]},{"title":"This new step added by the majority will only make it harder for Ohioans to gain","paragraphs":["para_429"]},{"title":"Patterson v. Ayers, 171 Ohio St. 369, 371 (1960), and will increase the public’s","paragraphs":["para_431","para_432","para_433"]},{"title":"August 28, and September 11, 2024. The July 23 request sought paper copies of","paragraphs":["para_435","para_436","para_437"]},{"title":"SUPREME COURT OF OHIO","paragraphs":[]},{"title":"16","paragraphs":["para_440","para_441","para_442","para_443","para_444","para_445"]},{"title":"11 request. See majority opinion, ¶ 26. And as explained below, the latent","paragraphs":["para_447","para_448","para_449","para_450","para_451","para_452","para_453","para_454","para_455"]},{"title":"The Public Records Act—Scope of Mandamus","paragraphs":["para_457"]},{"title":"August 26 and 28 public-records requests for the latent recordings. (The majority","paragraphs":["para_459","para_460"]},{"title":"22(VI)(K)(2) [effective Aug. 1, 2023].)","paragraphs":["para_462","para_463","para_464"]},{"title":"ODRC Policy No. 10-SAF-22(VI)(K)(1) and (2). When a body-worn camera is","paragraphs":["para_466","para_467"]},{"title":"January Term, 2025","paragraphs":[]},{"title":"17","paragraphs":["para_470"]},{"title":"SAF-22(VI)(C) (effective Aug. 1, 2023) (a “qualifying event” requires the","paragraphs":["para_472","para_473","para_474","para_475","para_476","para_477","para_478","para_479"]},{"title":"22(VI)(K)(1). Therefore, to preserve the recording of a specific event that was","paragraphs":["para_481","para_482","para_483"]},{"title":"But if the camera is powered off before the recording is overwritten, the recording","paragraphs":["para_485","para_486","para_487","para_488","para_489","para_490","para_491","para_492","para_493","para_494","para_495","para_496","para_497"]},{"title":"SUPREME COURT OF OHIO","paragraphs":[]},{"title":"18","paragraphs":[]},{"title":"Clark that his request was “overly broad” and that the prison’s legal services had","paragraphs":["para_501","para_502","para_503"]},{"title":"Myers’s questions from the initial electronic kite. Myers did not respond again","paragraphs":["para_505","para_506","para_507","para_508","para_509","para_510","para_511","para_512"]},{"title":"After the conversation, Clark sent a public-records request—the August 28","paragraphs":["para_514"]},{"title":"Myers responded the next day, denying Clark’s request because his interaction with","paragraphs":["para_516"]},{"title":"10-SAF-22. On September 13, Myers followed up to inform Clark that there were","paragraphs":["para_518","para_519"]},{"title":"August 26 and 28 public-records requests reveals that the latent recordings","paragraphs":["para_521","para_522","para_523"]},{"title":"Clark’s communications thereafter all but ensured that the latent recordings were","paragraphs":["para_525","para_526"]},{"title":"January Term, 2025","paragraphs":[]},{"title":"19","paragraphs":["para_529","para_530","para_531","para_532","para_533","para_534","para_535","para_536","para_537","para_538"]},{"title":"18-hour window during which the recordings could be retrieved and such","paragraphs":["para_540","para_541","para_542","para_543","para_544","para_545","para_546","para_547","para_548","para_549"]},{"title":"10-SAF-22.” (Emphasis added.)","paragraphs":["para_551","para_552","para_553","para_554","para_555","para_556"]},{"title":"SUPREME COURT OF OHIO","paragraphs":[]},{"title":"20","paragraphs":["para_559","para_560","para_561","para_562","para_563","para_564","para_565"]},{"title":"149.43(A)(1), and “records” include “any document, device, or item, regardless of","paragraphs":["para_567"]},{"title":"1306.01 of the Revised Code, created or received by or coming under the","paragraphs":["para_569","para_570","para_571","para_572","para_573","para_574","para_575"]},{"title":"Cincinnati Bd. of Edn., 2003-Ohio-2260, ¶ 11, quoting Webster’s Third New","paragraphs":["para_577","para_578","para_579","para_580","para_581"]},{"title":"ODRC’s possession for at least 18 hours. Latent recordings are therefore public","paragraphs":["para_583","para_584","para_585","para_586"]},{"title":"January Term, 2025","paragraphs":[]},{"title":"21","paragraphs":["para_589","para_590"]},{"title":"Public Records Law.” The policy also provides that “all recordings identified as","paragraphs":["para_592"]},{"title":"ODRC’s Record Retention Schedule and applicable departmental policy.” ODRC","paragraphs":[]},{"title":"Policy No. 10-SAF-22(VI)(P)(2)(b) (effective Aug. 1, 2023). Myers did not adhere","paragraphs":["para_595","para_596","para_597","para_598","para_599","para_600","para_601","para_602","para_603","para_604","para_605","para_606","para_607","para_608","para_609","para_610","para_611","para_612","para_613","para_614","para_615"]},{"title":"SUPREME COURT OF OHIO","paragraphs":[]},{"title":"22","paragraphs":["para_618","para_619","para_620","para_621","para_622","para_623","para_624","para_625","para_626","para_627","para_628","para_629","para_630","para_631","para_632","para_633","para_634","para_635","para_636","para_637","para_638","para_639","para_640","para_641","para_642"]},{"title":"Montgomery Cty. Bd. of Elections, 2025-Ohio-2079, ¶ 32-35, in which we held that","paragraphs":["para_644"]},{"title":"January Term, 2025","paragraphs":[]},{"title":"23","paragraphs":["para_647","para_648","para_649","para_650","para_651","para_652"]},{"title":"Clark’s public-records requests, even if no one accessed or downloaded them","paragraphs":["para_654","para_655","para_656","para_657","para_658","para_659","para_660","para_661","para_662","para_663","para_664","para_665","para_666","para_667","para_668","para_669","para_670"]},{"title":"Statutory Damages","paragraphs":["para_672","para_673","para_674"]},{"title":"SUPREME COURT OF OHIO","paragraphs":[]},{"title":"24","paragraphs":["para_677","para_678","para_679"]},{"title":"August 26 and 28 Requests","paragraphs":["para_681","para_682","para_683","para_684","para_685"]},{"title":"Clark’s conversation with the prison-unit manager was not a “qualifying event.”","paragraphs":[]},{"title":"Similarly, for the August 28 request, Myers denied the request because Clark’s","paragraphs":["para_688","para_689","para_690","para_691","para_692","para_693","para_694"]},{"title":"Policy No. 10-SAF-22(II) and (V) (effective Aug. 1, 2023). These electronic","paragraphs":["para_696"]},{"title":"149.011(G) (a “record” includes an “electronic record . . . created . . . by . . . [a]","paragraphs":["para_698","para_699","para_700","para_701","para_702","para_703"]},{"title":"January Term, 2025","paragraphs":[]},{"title":"25","paragraphs":["para_706","para_707","para_708","para_709","para_710","para_711","para_712","para_713","para_714","para_715","para_716","para_717","para_718"]},{"title":"Clark’s request would have led a reasonable person to conclude that he or she could","paragraphs":["para_720","para_721","para_722","para_723","para_724"]},{"title":"R.C. 149.43(B)(4) prohibits a public-records custodian from limiting access to","paragraphs":["para_726","para_727","para_728","para_729","para_730","para_731","para_732","para_733"]},{"title":"SUPREME COURT OF OHIO","paragraphs":[]},{"title":"26","paragraphs":["para_736","para_737","para_738"]},{"title":"Cincinnati Pub. School Dist., 2016-Ohio-5026, ¶ 11 (the respondent in a public-","paragraphs":["para_740","para_741","para_742","para_743","para_744","para_745","para_746","para_747","para_748","para_749","para_750"]},{"title":"September 11 Request","paragraphs":["para_752","para_753","para_754","para_755","para_756","para_757","para_758","para_759","para_760","para_761","para_762","para_763"]},{"title":"January Term, 2025","paragraphs":[]},{"title":"27","paragraphs":["para_766"]},{"title":"623, ¶ 15 (attestations in an affidavit may be rebutted by clear and convincing","paragraphs":["para_768"]},{"title":"Therefore, only the electronic kite Clark sent at 1:17 p.m. on August 26 is relevant","paragraphs":["para_770","para_771","para_772","para_773","para_774","para_775","para_776","para_777","para_778","para_779","para_780","para_781","para_782"]},{"title":"Warren Newspapers, Inc. v. Hutson, 1994-Ohio-5, ¶ 20 (“if respondents wish to","paragraphs":["para_784","para_785","para_786","para_787","para_788","para_789","para_790","para_791","para_792","para_793"]},{"title":"SUPREME COURT OF OHIO","paragraphs":[]},{"title":"28","paragraphs":["para_796","para_797","para_798","para_799"]},{"title":"(Kennedy, C.J., concurring in part and dissenting in part) (a three-month response","paragraphs":["para_801","para_802","para_803","para_804"]},{"title":"Conclusion","paragraphs":["para_806","para_807","para_808","para_809"]},{"title":"11 request was not fulfilled until more than ten days after Clark filed this mandamus","paragraphs":["para_811","para_812","para_813","para_814","para_815","para_816","para_817","para_818","para_819"]},{"title":"Elections, 2025-Ohio-2079, ¶ 32-35 (holding that emails from a public official’s","paragraphs":["para_821","para_822","para_823"]},{"title":"January Term, 2025","paragraphs":[]},{"title":"29","paragraphs":["para_826","para_827","para_828","para_829","para_830","para_831","para_832","para_833","para_834","para_835","para_836","para_837","para_838","para_839"]}],"paragraphs":[{"text":"[This opinion has been published in Ohio Official Reports at 180 Ohio St.3d 479.]","paragraph_id":"para_1"},{"text":"THE STATE EX REL. CLARK v. DEPARTMENT OF REHABILITATION AND","paragraph_id":"para_2"},{"text":"CORRECTION.","paragraph_id":"para_3"},{"text":"[Cite as State ex rel. Clark v. Dept. of Rehab. & Corr., 2025-Ohio-5552.]","paragraph_id":"para_4"},{"text":"Mandamus—Public-records requests—Relator failed to show that latent","paragraph_id":"para_5"},{"text":"recordings he requested currently exist or that they existed when public-","paragraph_id":"para_6"},{"text":"records custodian received his public-records requests, and writ and","paragraph_id":"para_7"},{"text":"relator’s request for statutory damages denied as to those public-records","paragraph_id":"para_8"},{"text":"requests—Respondent provided copies of kites relator requested, and writ","paragraph_id":"para_9"},{"text":"denied as moot and relator’s request for statutory damages denied as to","paragraph_id":"para_10"},{"text":"that public-records request—Decision held in abeyance as to the post","paragraph_id":"para_11"},{"text":"orders that relator requested, and respondent ordered to file under seal for","paragraph_id":"para_12"},{"text":"in camera inspection copies of the post orders.","paragraph_id":"para_13"},{"text":"(No. 2024-1363—Submitted March 11, 2025—Decided December 16, 2025.)","paragraph_id":"para_14"},{"text":"IN MANDAMUS.","paragraph_id":"para_15"},{"text":"__________________","paragraph_id":"para_16"},{"text":"The per curiam opinion below was joined by FISCHER, DEWINE, DETERS,","paragraph_id":"para_17"},{"text":"HAWKINS, and SHANAHAN, JJ. KENNEDY, C.J., concurred in part and dissented in","paragraph_id":"para_18"},{"text":"part, with an opinion joined by BRUNNER, J. BRUNNER, J., concurred in part and","paragraph_id":"para_19"},{"text":"dissented in part, with an opinion.","paragraph_id":"para_20"},{"text":"Per Curiam.","paragraph_id":"para_21"},{"text":"{¶ 1} Relator, Thomas Clark, seeks 11 records under Ohio’s Public Records","paragraph_id":"para_22"},{"text":"Act, R.C. 149.43. He petitions this court for a writ of mandamus ordering","paragraph_id":"para_23"},{"text":"respondent, the Ohio Department of Rehabilitation and Correction, (1) to retrieve","paragraph_id":"para_24"},{"text":"and provide him with copies of two latent recordings from department employees’","paragraph_id":"para_25"},{"text":"SUPREME COURT OF OHIO","paragraph_id":"para_26"},{"text":"2","paragraph_id":"para_27"},{"text":"body-worn cameras, (2) to provide him with unaltered paper copies of eight kites,1","paragraph_id":"para_28"},{"text":"and (3) to provide him with a paper copy of the “post orders” for prison employees","paragraph_id":"para_29"},{"text":"working in the property room at Lebanon Correctional Institution (“the prison”),","paragraph_id":"para_30"},{"text":"where he is incarcerated. He also seeks an award of $11,000 in statutory damages,","paragraph_id":"para_31"},{"text":"plus court costs. The department asserts that the recordings do not exist, that it has","paragraph_id":"para_32"},{"text":"already sent unaltered paper copies of the eight kites to Clark, and that the post","paragraph_id":"para_33"},{"text":"orders are security records that are exempt from disclosure.","paragraph_id":"para_34"},{"text":"{¶ 2} Clark has failed to prove his entitlement to a writ of mandamus or to","paragraph_id":"para_35"},{"text":"statutory damages for the recordings or kites, and because he is indigent, we waived","paragraph_id":"para_36"},{"text":"the court costs for instituting this action, so he has incurred no court costs. We","paragraph_id":"para_37"},{"text":"therefore deny Clark’s requests for a writ of mandamus, statutory damages, and","paragraph_id":"para_38"},{"text":"court costs for ten of the records he requested. But we order the department to file","paragraph_id":"para_39"},{"text":"under seal for in camera inspection copies of the “post orders” that Clark requested,","paragraph_id":"para_40"},{"text":"and we hold in abeyance our decision on Clark’s requests for relief as to those","paragraph_id":"para_41"},{"text":"orders.","paragraph_id":"para_42"},{"text":"I. FACTS AND PROCEDURAL HISTORY","paragraph_id":"para_43"},{"text":"A. Recordings from body-worn cameras","paragraph_id":"para_44"},{"text":"{¶ 3} Clark requested excerpts of recordings from two department","paragraph_id":"para_45"},{"text":"employees’ body-worn cameras when the cameras were powered on but were not","paragraph_id":"para_46"},{"text":"actively recording. It is the department’s policy that employees activate the primary","paragraph_id":"para_47"},{"text":"recording mode of their body-worn cameras “as soon as safe and reasonably","paragraph_id":"para_48"},{"text":"practicable to do so” when there is a policy-defined “qualifying event.” ODRC","paragraph_id":"para_49"},{"text":"Policy No. 10-SAF-22(VI)(C) (effective Aug. 1, 2023). And the department’s","paragraph_id":"para_50"},{"text":"policy for body-worn cameras explains that even when a department employee’s","paragraph_id":"para_51"},{"text":"body-worn camera is not actively recording, the camera still creates low-resolution","paragraph_id":"para_52"},{"text":"1. “A kite is a type of written correspondence between an inmate and prison staff.” State ex rel.","paragraph_id":"para_53"},{"text":"Griffin v. Szoke, 2023-Ohio-3096, ¶ 3.","paragraph_id":"para_54"},{"text":"January Term, 2025","paragraph_id":"para_55"},{"text":"3","paragraph_id":"para_56"},{"text":"video and audio recordings. ODRC Policy No. 10-SAF-22(VI)(K)(1) and (2)","paragraph_id":"para_57"},{"text":"(effective Aug. 1, 2023). Clark calls these low-resolution recordings “latent","paragraph_id":"para_58"},{"text":"recordings,” and the policy refers to accessing these recordings as “video recall,”","paragraph_id":"para_59"},{"text":"ODRC Policy No. 10-SAF-22(VI)(K)(2). Although there are specific instances","paragraph_id":"para_60"},{"text":"when an employee can turn off the camera entirely or place the camera in sleep","paragraph_id":"para_61"},{"text":"mode, the cameras are in a passive recording mode for most of an employee’s shift.","paragraph_id":"para_62"},{"text":"See ODRC Policy No. 10-SAF-22(VI)(G), (H), and (K)(1) (effective Aug. 1, 2023).","paragraph_id":"para_63"},{"text":"These latent recordings can be accessed and used to document an incident on those","paragraph_id":"para_64"},{"text":"occasions when an employee failed to activate his camera when an incident","paragraph_id":"para_65"},{"text":"occurred. ODRC Policy No. 10-SAF-22(VI)(K)(2).","paragraph_id":"para_66"},{"text":"{¶ 4} Although these latent recordings are constantly being overwritten, the","paragraph_id":"para_67"},{"text":"department’s policy explains that they can be accessed and preserved for up to 18","paragraph_id":"para_68"},{"text":"hours in certain narrow circumstances. See ODRC Policy No. 10-SAF-","paragraph_id":"para_69"},{"text":"22(VI)(K)(1) and (2). The policy states that latent recordings must be accessed and","paragraph_id":"para_70"},{"text":"preserved when a body-worn camera was worn but not activated by an employee","paragraph_id":"para_71"},{"text":"who was directly engaged in a qualifying event and that they may be accessed and","paragraph_id":"para_72"},{"text":"preserved when a body-worn camera was worn but not activated by an employee","paragraph_id":"para_73"},{"text":"who witnessed or responded to a qualifying event. ODRC Policy No. 10-SAF-","paragraph_id":"para_74"},{"text":"22(VI)(K)(2). When no qualifying event occurs, the ability to access and preserve","paragraph_id":"para_75"},{"text":"latent recordings is even narrower. “[O]nly when there is a documented and","paragraph_id":"para_76"},{"text":"legitimate correctional supervisory or criminal justice reason,” including when an","paragraph_id":"para_77"},{"text":"incident “is reported which may require an administrative review or where","paragraph_id":"para_78"},{"text":"recordings may have evidentiary value,” can a latent recording be accessed and","paragraph_id":"para_79"},{"text":"preserved in the absence of a qualifying event. ODRC Policy No. 10-SAF-","paragraph_id":"para_80"},{"text":"22(VI)(K)(4) (effective Aug. 1, 2023). Nonetheless, Clark asserts that even when","paragraph_id":"para_81"},{"text":"latent recordings are not accessed and preserved by ODRC, they are records subject","paragraph_id":"para_82"},{"text":"to disclosure under the Public Records Act and that the prison has an affirmative","paragraph_id":"para_83"},{"text":"SUPREME COURT OF OHIO","paragraph_id":"para_84"},{"text":"4","paragraph_id":"para_85"},{"text":"obligation to retrieve, preserve, and produce such latent recordings if a person","paragraph_id":"para_86"},{"text":"makes a public-records request for them.","paragraph_id":"para_87"},{"text":"{¶ 5} Clark alleges that a prison-unit manager implied possible retaliation","paragraph_id":"para_88"},{"text":"against him for filing several legal claims against the department. This alleged","paragraph_id":"para_89"},{"text":"event occurred in front of another department employee who Clark claims was","paragraph_id":"para_90"},{"text":"wearing a powered-on body-worn camera. When Clark returned to his cell, he sent","paragraph_id":"para_91"},{"text":"an electronic kite (“the initial kite”) to Ellen Myers, who is the prison warden’s","paragraph_id":"para_92"},{"text":"assistant and the public-information officer at the prison, asking that the body-","paragraph_id":"para_93"},{"text":"worn-camera latent recording be preserved and that she provide him with a copy","paragraph_id":"para_94"},{"text":"from “8/26/24, from 7:45am to 8:10am.”","paragraph_id":"para_95"},{"text":"{¶ 6} Myers responded to the initial kite the same day, informing Clark that","paragraph_id":"para_96"},{"text":"his request was “overly broad” and instructing him to be specific by telling her what","paragraph_id":"para_97"},{"text":"exactly he was looking for, where the employee with the body-worn camera was","paragraph_id":"para_98"},{"text":"during the event, and what had happened. Clark sent a second electronic kite","paragraph_id":"para_99"},{"text":"answering her questions later that day (“the clarifying kite”). Approximately 20","paragraph_id":"para_100"},{"text":"minutes after Clark sent the clarifying kite, an administrative professional at the","paragraph_id":"para_101"},{"text":"prison reviewed it, but Myers did not view or respond to it until three days later. In","paragraph_id":"para_102"},{"text":"her responses to the clarifying kite, she asserted that the recording did not exist and","paragraph_id":"para_103"},{"text":"that even if it did, Clark’s conversation with the prison-unit manager was not a","paragraph_id":"para_104"},{"text":"“qualifying event” for “video recall” under ODRC Policy No. 10-SAF-22.","paragraph_id":"para_105"},{"text":"{¶ 7} Clark alleges that two days after his conversation with the prison-unit","paragraph_id":"para_106"},{"text":"manager, the supervisor of the prison’s mail department told him that the prison","paragraph_id":"para_107"},{"text":"would be charging him $20 for each piece of legal mail that Clark wanted mailed,","paragraph_id":"para_108"},{"text":"which was twice the amount that it had been charging him. The supervisor was","paragraph_id":"para_109"},{"text":"wearing a body-worn camera that Clark claims was powered on during this","paragraph_id":"para_110"},{"text":"conversation. Later that day, Clark sent an electronic kite to Myers, asking that the","paragraph_id":"para_111"},{"text":"body-worn-camera latent recording be preserved and that she provide him with a","paragraph_id":"para_112"},{"text":"copy of the latent recording of the conversation with the supervisor.","paragraph_id":"para_113"},{"text":"January Term, 2025","paragraph_id":"para_114"},{"text":"5","paragraph_id":"para_115"},{"text":"{¶ 8} Myers responded to Clark’s kite the following day, asserting that","paragraph_id":"para_116"},{"text":"Clark’s conversation with the supervisor was not a “qualifying event” for “video","paragraph_id":"para_117"},{"text":"recall” under ODRC Policy No. 10-SAF-22. Approximately two weeks later, she","paragraph_id":"para_118"},{"text":"sent another response, explaining that there were no responsive records to Clark’s","paragraph_id":"para_119"},{"text":"request because “[t]he only time the [latent recordings] [are] downloaded/uploaded","paragraph_id":"para_120"},{"text":"is when a qualifying event occurs,” and here, “[t]here were no qualifying events.”","paragraph_id":"para_121"},{"text":"The latent recordings had been overwritten as a matter of course.","paragraph_id":"para_122"},{"text":"B. Unaltered paper copies of eight kites","paragraph_id":"para_123"},{"text":"{¶ 9} Clark requested from Myers paper copies of 15 of his electronic kites,","paragraph_id":"para_124"},{"text":"including the clarifying kite. Myers delivered to Clark copies of all 15 kites. Clark","paragraph_id":"para_125"},{"text":"also separately requested a copy of the clarifying kite from another department","paragraph_id":"para_126"},{"text":"employee approximately two weeks earlier. Even though he requested only the","paragraph_id":"para_127"},{"text":"kites, both Myers and the other employee provided the kites’ audit logs along with","paragraph_id":"para_128"},{"text":"the kites.2 Comparing the audit log of the copy of the clarifying kite that he received","paragraph_id":"para_129"},{"text":"from the other employee with the audit log of the copy that Myers delivered to him,","paragraph_id":"para_130"},{"text":"Clark determined that an entry was missing from the audit log in Myers’s copy.","paragraph_id":"para_131"},{"text":"Specifically, the entry missing from the copy of the audit log that Myers supplied","paragraph_id":"para_132"},{"text":"indicates that an administrative professional at the prison viewed the clarifying kite","paragraph_id":"para_133"},{"text":"approximately 20 minutes after Clark sent it.","paragraph_id":"para_134"},{"text":"{¶ 10} Clark claims that Myers altered the audit log of the clarifying kite","paragraph_id":"para_135"},{"text":"before delivering it to him by deleting the administrative-professional entry. The","paragraph_id":"para_136"},{"text":"department’s evidence includes both a copy of the clarifying kite and audit log that","paragraph_id":"para_137"},{"text":"Myers’s attests is “true and accurate” and a copy of the clarifying kite and audit log","paragraph_id":"para_138"},{"text":"2. A kite’s audit log is a ledger that keeps track of actions taken on the kite with time-stamped","paragraph_id":"para_139"},{"text":"entries—for example: when the kite was submitted, when staff viewed the kite and when they","paragraph_id":"para_140"},{"text":"responded to it, and when the kite’s status was changed from “open” to “closed” and vice versa.","paragraph_id":"para_141"},{"text":"Examples of audit logs are available in the evidence filed in this case; both Clark’s and the","paragraph_id":"para_142"},{"text":"department’s evidence include kites that have audit logs appended to them.","paragraph_id":"para_143"},{"text":"SUPREME COURT OF OHIO","paragraph_id":"para_144"},{"text":"6","paragraph_id":"para_145"},{"text":"that Myers delivered to Clark. The “true and accurate” version of the audit log","paragraph_id":"para_146"},{"text":"includes the entry while the version Myers delivered to Clark does not.","paragraph_id":"para_147"},{"text":"{¶ 11} Based on the discrepancy between the two versions of the clarifying","paragraph_id":"para_148"},{"text":"kite’s audit log, Clark accuses Myers of altering the audit logs of seven other kites","paragraph_id":"para_149"},{"text":"of the 15 he requested before she delivered them to him. Clark asserts that this","paragraph_id":"para_150"},{"text":"evidence of Myers’s having provided him an altered audit log warrants a writ of","paragraph_id":"para_151"},{"text":"mandamus compelling the department to produce unaltered copies of the eight","paragraph_id":"para_152"},{"text":"kites.","paragraph_id":"para_153"},{"text":"C. “Post orders” for prison employees working in the prison’s property","paragraph_id":"para_154"},{"text":"room","paragraph_id":"para_155"},{"text":"{¶ 12} Clark requested paper copies of the “post orders” for prison","paragraph_id":"para_156"},{"text":"employees working in the prison’s property room. Myers denied this request,","paragraph_id":"para_157"},{"text":"claiming that the orders are security records under R.C. 149.433(B). Clark","paragraph_id":"para_158"},{"text":"responded to Myers, asking her to redact the orders and produce those parts of the","paragraph_id":"para_159"},{"text":"orders that are not security records. Myers replied to Clark, asserting that the orders","paragraph_id":"para_160"},{"text":"are nonpublic, confidential records, and she did not divulge them.","paragraph_id":"para_161"},{"text":"D. Clark files this action","paragraph_id":"para_162"},{"text":"{¶ 13} Clark filed this action in September 2024, seeking a writ of","paragraph_id":"para_163"},{"text":"mandamus ordering the department to give him copies of the two latent recordings","paragraph_id":"para_164"},{"text":"from body-worn cameras, unaltered paper copies of eight kites, and a paper copy","paragraph_id":"para_165"},{"text":"of the “post orders” for prison employees working in the prison’s property room.","paragraph_id":"para_166"},{"text":"He also asks for $11,000 in statutory damages plus court costs. After the","paragraph_id":"para_167"},{"text":"department filed an answer, we granted an alternative writ. 2024-Ohio-5572.","paragraph_id":"para_168"},{"text":"II. ANALYSIS","paragraph_id":"para_169"},{"text":"{¶ 14} The Public Records Act requires public offices and persons","paragraph_id":"para_170"},{"text":"responsible for public records to make copies of requested public records available","paragraph_id":"para_171"},{"text":"January Term, 2025","paragraph_id":"para_172"},{"text":"7","paragraph_id":"para_173"},{"text":"to requesters at cost and within a reasonable period. R.C. 149.43(B)(1).3 When a","paragraph_id":"para_174"},{"text":"public office or person responsible for public records fails in this duty, a writ of","paragraph_id":"para_175"},{"text":"mandamus is available to enforce a requester’s legal right to the requested records.","paragraph_id":"para_176"},{"text":"R.C. 149.43(C)(1)(b); State ex rel. Ware v. Gabbard, 2025-Ohio-1022, ¶ 7.","paragraph_id":"para_177"},{"text":"{¶ 15} To show that the writ is appropriate, Clark must prove by clear and","paragraph_id":"para_178"},{"text":"convincing evidence that he has a clear legal right to the requested relief and that","paragraph_id":"para_179"},{"text":"the department has a clear legal duty to provide it. State ex rel. Cincinnati Enquirer","paragraph_id":"para_180"},{"text":"v. Sage, 2015-Ohio-974, ¶ 10.","paragraph_id":"para_181"},{"text":"{¶ 16} Since the existence of some of the records requested (i.e., the two","paragraph_id":"para_182"},{"text":"body-worn-camera latent recordings) is at issue, Clark must also prove that those","paragraph_id":"para_183"},{"text":"records exist. See State ex rel. Toledo Blade Co. v. Seneca Cty. Bd. of Commrs.,","paragraph_id":"para_184"},{"text":"2008-Ohio-6253, ¶ 27. If a record has been deleted but can be recovered, it still","paragraph_id":"para_185"},{"text":"exists as a public record. See id. at ¶ 28. But if the deleted record cannot be","paragraph_id":"para_186"},{"text":"recovered, it no longer exists and cannot be obtained. State ex rel. Pool v. Sheffield","paragraph_id":"para_187"},{"text":"Lake, 2023-Ohio-1204, ¶ 14, 18.","paragraph_id":"para_188"},{"text":"{¶ 17} If a requested record did not exist at the time of the request for it, the","paragraph_id":"para_189"},{"text":"request was correctly denied for that record. See State ex rel. McDougald v.","paragraph_id":"para_190"},{"text":"Greene, 2020-Ohio-2782, ¶ 8-9. If a requested record does not exist, a writ of","paragraph_id":"para_191"},{"text":"mandamus cannot issue, because the writ will not command the impossible. See","paragraph_id":"para_192"},{"text":"Toledo Blade at ¶ 27, citing State ex rel. Cincinnati Enquirer, Div. of Gannett","paragraph_id":"para_193"},{"text":"Satellite Information Network, Inc. v. Cincinnati Bd. of Edn., 2003-Ohio-2260,","paragraph_id":"para_194"},{"text":"¶ 15.","paragraph_id":"para_195"},{"text":"{¶ 18} Statutory damages may be available if the public office or person","paragraph_id":"para_196"},{"text":"responsible for the requested public records continues to be in violation of the duties","paragraph_id":"para_197"},{"text":"3. The General Assembly has recently made amendments to R.C. 149.43, most notably in 2024","paragraph_id":"para_198"},{"text":"Sub.H.B. No. 265 (effective Apr. 9, 2025). This opinion applies the version of the statute enacted","paragraph_id":"para_199"},{"text":"in 2023 Am.Sub.H.B. No. 33 (effective Oct. 3, 2023).","paragraph_id":"para_200"},{"text":"SUPREME COURT OF OHIO","paragraph_id":"para_201"},{"text":"8","paragraph_id":"para_202"},{"text":"set forth in R.C. 149.43(B) after the requester files a mandamus action.","paragraph_id":"para_203"},{"text":"R.C. 149.43(C)(2).","paragraph_id":"para_204"},{"text":"{¶ 19} The department bears the burden to prove that any records it","paragraph_id":"para_205"},{"text":"withheld are exempt from disclosure under R.C. 149.43. State ex rel. School","paragraph_id":"para_206"},{"text":"Choice Ohio, Inc. v. Cincinnati Pub. School Dist., 2016-Ohio-5026, ¶ 11. “If a","paragraph_id":"para_207"},{"text":"public record contains information that is exempt from the duty to permit public","paragraph_id":"para_208"},{"text":"inspection or to copy the public record, the public office or the person responsible","paragraph_id":"para_209"},{"text":"for the public record shall make available all of the information within the public","paragraph_id":"para_210"},{"text":"record that is not exempt.” R.C. 149.43(B)(1); see also Cuyahoga Cty. Bd. of","paragraph_id":"para_211"},{"text":"Health v. Lipson O’Shea Legal Group, 2016-Ohio-556, ¶ 12 (remanding to the trial","paragraph_id":"para_212"},{"text":"court to review records “to determine what information, if any, can be released after","paragraph_id":"para_213"},{"text":"all protected health information is redacted”). But if a record is not a public record,","paragraph_id":"para_214"},{"text":"then it falls outside the scope of the Public Records Act and there is thus no duty to","paragraph_id":"para_215"},{"text":"redact. See R.C. 149.43(B)(1) (“Upon request by any person and subject to [R.C.","paragraph_id":"para_216"},{"text":"149.43(B)(8)], all public records responsive to the request shall be promptly","paragraph_id":"para_217"},{"text":"prepared and made available for inspection to the requester at all reasonable times","paragraph_id":"para_218"},{"text":"during regular business hours.” [Emphasis added.]).","paragraph_id":"para_219"},{"text":"A. The requested recordings from the body-worn cameras do not exist, and","paragraph_id":"para_220"},{"text":"Clark has not shown that they ever did","paragraph_id":"para_221"},{"text":"{¶ 20} Clark requested copies of two different latent recordings. He","paragraph_id":"para_222"},{"text":"requested each recording within hours of the respective events they purportedly","paragraph_id":"para_223"},{"text":"captured. The department’s policy suggests that latent recordings might exist for","paragraph_id":"para_224"},{"text":"that long, because up to 18 hours of latent recordings can be retrieved from each","paragraph_id":"para_225"},{"text":"body-worn camera, ODRC Policy No. 10-SAF-22(VI)(K)(1). The department does","paragraph_id":"para_226"},{"text":"not refute Clark’s assertion that the body-worn cameras were creating latent","paragraph_id":"para_227"},{"text":"recordings during the respective events, but Clark has not proved that they were.","paragraph_id":"para_228"},{"text":"Clark also admits in his merit brief that even if the cameras were creating such","paragraph_id":"para_229"},{"text":"recordings, the recordings are now “presumably lost.”","paragraph_id":"para_230"},{"text":"January Term, 2025","paragraph_id":"para_231"},{"text":"9","paragraph_id":"para_232"},{"text":"{¶ 21} As an initial matter, it is not clear that Clark has met his burden of","paragraph_id":"para_233"},{"text":"establishing that the latent recordings constitute public records. See Sage, 2015-","paragraph_id":"para_234"},{"text":"Ohio-974, at ¶ 10. To be a public record, a record must be “kept” by a public office.","paragraph_id":"para_235"},{"text":"R.C. 149.43(A)(1). But the evidence in this case establishes that the latent","paragraph_id":"para_236"},{"text":"recordings are “kept” by the public office only when accessed and preserved within","paragraph_id":"para_237"},{"text":"18 hours in limited circumstances—for example, when there is a “qualifying","paragraph_id":"para_238"},{"text":"event.” ODRC Policy No. 10-SAF-22(VI)(K)(2). In arguing to the contrary, the","paragraph_id":"para_239"},{"text":"first opinion concurring in part and dissenting in part (“the partial dissent”) relies","paragraph_id":"para_240"},{"text":"on a definition of “kept” previously cited by this court. See first opinion concurring","paragraph_id":"para_241"},{"text":"in part and dissenting in part, ¶ 54, quoting Cincinnati Bd. of Edn., 2003-Ohio-","paragraph_id":"para_242"},{"text":"2260, at ¶ 11, quoting Webster’s Third New International Dictionary (1986)","paragraph_id":"para_243"},{"text":"(“‘“[k]ept” is the past participle of “keep,” which . . . means “preserve,” “maintain,”","paragraph_id":"para_244"},{"text":"“hold,” “detain,” or “retain or continue to have in one’s possession or power esp.","paragraph_id":"para_245"},{"text":"by conscious or purposive policy”‘” [ellipsis added in first opinion concurring in","paragraph_id":"para_246"},{"text":"part and dissenting in part]). But that definition cuts against the partial dissent’s","paragraph_id":"para_247"},{"text":"reading of R.C. 149.43(A)(1). The first five words given as possible meanings of","paragraph_id":"para_248"},{"text":"“keep” are “preserve,” “maintain,” “hold,” “detain,” and “retain.” While “detain”","paragraph_id":"para_249"},{"text":"is clearly inapplicable here, the other four words all suggest some conscious act by","paragraph_id":"para_250"},{"text":"the person or entity doing the keeping and something more than a mere temporary","paragraph_id":"para_251"},{"text":"existence. This understanding is reinforced by the definition’s final phrase: “or","paragraph_id":"para_252"},{"text":"continue to have in one’s possession or power esp. by conscious or purposive","paragraph_id":"para_253"},{"text":"policy.” Latent recordings that exist for a limited time in the memory of an","paragraph_id":"para_254"},{"text":"electronic device but that are not otherwise maintained or preserved by a public","paragraph_id":"para_255"},{"text":"office would hardly seem to qualify as something that “continue[d]” to be in a","paragraph_id":"para_256"},{"text":"public office’s “possession . . . by conscious or purposive policy.”","paragraph_id":"para_257"},{"text":"{¶ 22} Indeed, the partial dissent’s reading would seem to sweep in things","paragraph_id":"para_258"},{"text":"like temporary scribbles on a white board, unsaved edits to documents, and other","paragraph_id":"para_259"},{"text":"items that might exist for a brief period in the temporary memory of an electronic","paragraph_id":"para_260"},{"text":"SUPREME COURT OF OHIO","paragraph_id":"para_261"},{"text":"10","paragraph_id":"para_262"},{"text":"device but that are not maintained or otherwise kept by a public office. Under the","paragraph_id":"para_263"},{"text":"partial dissent’s reading, upon request, the public office would have a new duty to","paragraph_id":"para_264"},{"text":"create a public record preserving that item and then produce the newly created","paragraph_id":"para_265"},{"text":"public record. We are skeptical that the Public Records Act can be read to extend","paragraph_id":"para_266"},{"text":"so far beyond its plain terms.","paragraph_id":"para_267"},{"text":"{¶ 23} But we need not resolve whether the requested latent recordings","paragraph_id":"para_268"},{"text":"constitute public records, because even if we were to assume that a latent recording","paragraph_id":"para_269"},{"text":"that was never accessed and preserved by a public office could qualify as a public","paragraph_id":"para_270"},{"text":"record, Clark has not shown that the two recordings he seeks exist. A record’s","paragraph_id":"para_271"},{"text":"existence is a prerequisite to its production, so a writ of mandamus cannot issue to","paragraph_id":"para_272"},{"text":"command production of records that do not exist. Toledo Blade, 2008-Ohio-6253,","paragraph_id":"para_273"},{"text":"at ¶ 27. Therefore, in this case, Clark must establish that the recordings currently","paragraph_id":"para_274"},{"text":"exist. See R.C. 149.43(C)(1)(b) (a requester may “[c]ommence a mandamus action","paragraph_id":"para_275"},{"text":"to obtain a judgment that orders the public office or person responsible for the","paragraph_id":"para_276"},{"text":"public record to comply with” R.C. 149.43(B)). Myers attests that the recordings","paragraph_id":"para_277"},{"text":"do not exist, and Clark has given us no reason to doubt Myers’s sworn testimony.","paragraph_id":"para_278"},{"text":"See Pool, 2023-Ohio-1204, at ¶ 18 (“A public office has no duty to create or provide","paragraph_id":"para_279"},{"text":"access to nonexistent records.”). We therefore deny mandamus relief for these two","paragraph_id":"para_280"},{"text":"recordings.","paragraph_id":"para_281"},{"text":"{¶ 24} We also deny Clark’s request for statutory damages. As we have","paragraph_id":"para_282"},{"text":"explained, even if we were to assume that latent recordings that were never","paragraph_id":"para_283"},{"text":"accessed or preserved by the department constitute public records, Clark has not","paragraph_id":"para_284"},{"text":"established that the latent recordings actually existed when Myers received the","paragraph_id":"para_285"},{"text":"requests. Myers denied the request for the first recording because she thought the","paragraph_id":"para_286"},{"text":"request was “overly broad,” and she denied the request for the second recording","paragraph_id":"para_287"},{"text":"because she claimed that Clark’s conversation with the mail-department supervisor","paragraph_id":"para_288"},{"text":"was not a “qualifying event” for “video recall” under ODRC Policy No. 10-SAF-","paragraph_id":"para_289"},{"text":"22. Myers never specifically admitted that the recordings existed when she denied","paragraph_id":"para_290"},{"text":"January Term, 2025","paragraph_id":"para_291"},{"text":"11","paragraph_id":"para_292"},{"text":"each request, and Clark has provided no evidence to prove that they did. Because","paragraph_id":"para_293"},{"text":"he has not met his burden, we deny Clark an award of statutory damages regarding","paragraph_id":"para_294"},{"text":"his requests for the two latent recordings.","paragraph_id":"para_295"},{"text":"B. Clark has not met his burden to demonstrate that he is entitled to a writ","paragraph_id":"para_296"},{"text":"of mandamus or an award of statutory damages for any of the kites","paragraph_id":"para_297"},{"text":"{¶ 25} Clark requests a writ of mandamus compelling the department to","paragraph_id":"para_298"},{"text":"produce unaltered paper copies of eight kites. He admits that Myers delivered the","paragraph_id":"para_299"},{"text":"eight kites to him in person, and he submitted them with his evidence. He asserts,","paragraph_id":"para_300"},{"text":"though, that Myers altered the audit logs of all eight kites by eliminating certain","paragraph_id":"para_301"},{"text":"entries or adding supplementary responses. To prove this, he submitted a version","paragraph_id":"para_302"},{"text":"of the clarifying kite’s audit log that contains an entry indicating when an","paragraph_id":"para_303"},{"text":"administrative professional at the prison viewed the kite. This entry was missing","paragraph_id":"para_304"},{"text":"from the audit log of the clarifying kite that Myers delivered to him. He asserts that","paragraph_id":"para_305"},{"text":"this evidence is sufficient to show that Myers altered all eight kites.","paragraph_id":"para_306"},{"text":"{¶ 26} As evidence, the department submitted what Myers’s attests is a true","paragraph_id":"para_307"},{"text":"and accurate copy of the clarifying kite, including its audit log. This version’s audit","paragraph_id":"para_308"},{"text":"log contains the administrative-professional entry that Clark claims was missing","paragraph_id":"para_309"},{"text":"from the version that Myers delivered to him. There is no reason to believe that the","paragraph_id":"para_310"},{"text":"“true and accurate version” of the clarifying kite or its audit log is incomplete. See","paragraph_id":"para_311"},{"text":"State ex rel. Frank v. Clermont Cty. Prosecutor, 2021-Ohio-623, ¶ 15 (“A public","paragraph_id":"para_312"},{"text":"office may establish by affidavit that all existing public records have been","paragraph_id":"para_313"},{"text":"provided. . . . The attestations in an affidavit may be rebutted by clear and","paragraph_id":"para_314"},{"text":"convincing evidence showing a genuine issue of fact that additional responsive","paragraph_id":"para_315"},{"text":"records exist.”). Clark has therefore definitively received a true and accurate copy","paragraph_id":"para_316"},{"text":"of the clarifying kite. Since mandamus will not command production of records","paragraph_id":"para_317"},{"text":"that the department has already produced to Clark, Clark has failed to state a viable","paragraph_id":"para_318"},{"text":"claim for the writ regarding the eight kites. See State ex rel. Ware v. Vigluicci,","paragraph_id":"para_319"},{"text":"2024-Ohio-3131, ¶ 10 (“providing the requested records to the relator moots a","paragraph_id":"para_320"},{"text":"SUPREME COURT OF OHIO","paragraph_id":"para_321"},{"text":"12","paragraph_id":"para_322"},{"text":"public-records mandamus claim”). We therefore deny as moot Clark’s request for","paragraph_id":"para_323"},{"text":"mandamus relief compelling the department to produce unaltered paper copies of","paragraph_id":"para_324"},{"text":"eight kites.","paragraph_id":"para_325"},{"text":"{¶ 27} We also reject Clark’s claim for statutory damages. To be entitled","paragraph_id":"para_326"},{"text":"to statutory damages, Clark must prove by clear and convincing evidence that the","paragraph_id":"para_327"},{"text":"department failed to comply with an obligation under R.C. 149.43(B). See","paragraph_id":"para_328"},{"text":"R.C. 149.43(C)(2); State ex rel. Grim v. New Holland, 2024-Ohio-4822, ¶ 6.","paragraph_id":"para_329"},{"text":"Clark’s claim for statutory damages is premised on his claim that the audit log of","paragraph_id":"para_330"},{"text":"the version of the clarifying kite that Myers delivered to him was missing an entry.","paragraph_id":"para_331"},{"text":"The problem, though, is that Clark has not shown that the missing entry was","paragraph_id":"para_332"},{"text":"responsive to his request. See R.C. 149.43(B)(1). Clark requested a paper copy of","paragraph_id":"para_333"},{"text":"his own kite. Myers provided him with a copy of that kite, his “requested public","paragraph_id":"para_334"},{"text":"record,” id. Clark did not request the audit log, and he has not shown that","paragraph_id":"para_335"},{"text":"information in the audit log regarding when prison employees viewed or printed","paragraph_id":"para_336"},{"text":"the kite was part of the public record he requested. He has therefore not shown that","paragraph_id":"para_337"},{"text":"the omission of this information from the version of the audit log that Myers","paragraph_id":"para_338"},{"text":"delivered to him constituted a failure to comply with his request. Therefore, we","paragraph_id":"para_339"},{"text":"deny his request for an award of statutory damages.","paragraph_id":"para_340"},{"text":"C. The department must prove that the security-records exemption applies","paragraph_id":"para_341"},{"text":"to the “post orders”","paragraph_id":"para_342"},{"text":"{¶ 28} Clark requested paper copies of the “post orders” for prison","paragraph_id":"para_343"},{"text":"employees working in the prison’s property room. The department insists that the","paragraph_id":"para_344"},{"text":"orders are security records exempt from disclosure under R.C. 149.433(B). Clark","paragraph_id":"para_345"},{"text":"contends that while some sections of the orders might be security records, those","paragraph_id":"para_346"},{"text":"sections can be redacted. The department responds that even if the orders are","paragraph_id":"para_347"},{"text":"redacted, the remaining information could “provide insight into institutional","paragraph_id":"para_348"},{"text":"operations.”","paragraph_id":"para_349"},{"text":"January Term, 2025","paragraph_id":"para_350"},{"text":"13","paragraph_id":"para_351"},{"text":"{¶ 29} R.C. 149.433(A)(1) defines a “security record” as “[a]ny record that","paragraph_id":"para_352"},{"text":"contains information directly used for protecting or maintaining the security of a","paragraph_id":"para_353"},{"text":"public office against attack, interference, or sabotage.” R.C. 149.433(B)(1)","paragraph_id":"para_354"},{"text":"provides that subject to an exception not applicable here, a security record is not a","paragraph_id":"para_355"},{"text":"public record under R.C. 149.43. To show that a record qualifies for the security-","paragraph_id":"para_356"},{"text":"records exception, the department must submit “evidence providing specific factual","paragraph_id":"para_357"},{"text":"support that goes beyond mere conclusory statements in an affidavit.” State ex rel.","paragraph_id":"para_358"},{"text":"Welsh-Huggins v. Jefferson Cty. Prosecutor’s Office, 2020-Ohio-5371, ¶ 50.","paragraph_id":"para_359"},{"text":"{¶ 30} Post orders are documents that ordinarily contain information such","paragraph_id":"para_360"},{"text":"as duties, policies, schedules, and procedures specific to particular post assignments","paragraph_id":"para_361"},{"text":"for prison employees. See, e.g., State ex rel. Stuart v. Greene, 2020-Ohio-3685,","paragraph_id":"para_362"},{"text":"¶ 2; State ex rel. McDougald v. Greene, 2019-Ohio-3798, ¶ 1 (Kennedy, J.,","paragraph_id":"para_363"},{"text":"dissenting). This court has held that documents containing this kind of information","paragraph_id":"para_364"},{"text":"are within the scope of the security-records exception. See, e.g., McDougald v.","paragraph_id":"para_365"},{"text":"Greene, 2020-Ohio-4268, ¶ 9; State ex rel. Burfitt v. Sehlmeyer, 2020-Ohio-5147,","paragraph_id":"para_366"},{"text":"¶ 13. In those cases, the party claiming that the security-records exception applied","paragraph_id":"para_367"},{"text":"either explained what was in the documents or submitted a version of the documents","paragraph_id":"para_368"},{"text":"that allowed us to determine what information was in them. McDougald, 2020-","paragraph_id":"para_369"},{"text":"Ohio-4268, at ¶ 3, 9-10; Burfitt at ¶ 11-14. But here, the only evidence that the","paragraph_id":"para_370"},{"text":"department submitted to show that the requested post orders are security records","paragraph_id":"para_371"},{"text":"was Myers’s affidavit stating that they contain “sensitive operational details.” The","paragraph_id":"para_372"},{"text":"department has neither submitted the post orders under seal nor described what kind","paragraph_id":"para_373"},{"text":"of information is in them beyond Myers’s conclusory statement.","paragraph_id":"para_374"},{"text":"{¶ 31} The department’s evidence and merit brief lack explanation or","paragraph_id":"para_375"},{"text":"specific details about what makes the requested “post orders” security records","paragraph_id":"para_376"},{"text":"exempt from disclosure under R.C. 149.433. Therefore, this court does not have","paragraph_id":"para_377"},{"text":"enough information to decide whether to grant or deny the writ or whether to award","paragraph_id":"para_378"},{"text":"statutory damages. We therefore order the department to file under seal for in","paragraph_id":"para_379"},{"text":"SUPREME COURT OF OHIO","paragraph_id":"para_380"},{"text":"14","paragraph_id":"para_381"},{"text":"camera inspection copies of the requested orders so that we may determine whether","paragraph_id":"para_382"},{"text":"the orders are security records. If they are, they are categorically not public records","paragraph_id":"para_383"},{"text":"and the department has no duty to produce them in full or redacted form. See R.C.","paragraph_id":"para_384"},{"text":"149.433(B)(1).","paragraph_id":"para_385"},{"text":"III. CONCLUSION","paragraph_id":"para_386"},{"text":"{¶ 32} We deny Clark all requests for relief for ten of the records he","paragraph_id":"para_387"},{"text":"requested, we order the department to file under seal within 14 days for in camera","paragraph_id":"para_388"},{"text":"inspection copies of the “post orders” that Clark requested, and we hold in abeyance","paragraph_id":"para_389"},{"text":"our decision on Clark’s requests for relief as to the “post orders.”","paragraph_id":"para_390"},{"text":"Writ denied in part","paragraph_id":"para_391"},{"text":"and held in abeyance in part.","paragraph_id":"para_392"},{"text":"__________________","paragraph_id":"para_393"},{"text":"KENNEDY, C.J., joined by BRUNNER, J., concurring in part and","paragraph_id":"para_394"},{"text":"dissenting in part.","paragraph_id":"para_395"},{"text":"{¶ 33} Respondent, the Ohio Department of Rehabilitation and Correction","paragraph_id":"para_396"},{"text":"(“ODRC”), has a policy stating that body-worn-camera footage that is captured or","paragraph_id":"para_397"},{"text":"recorded by ODRC employees during the performance of their job duties is subject","paragraph_id":"para_398"},{"text":"to Ohio’s public-records law. See ODRC Policy No. 10-SAF-22(VI)(B)(2)","paragraph_id":"para_399"},{"text":"(effective Aug. 1, 2023). And in accordance with that policy, passively recorded","paragraph_id":"para_400"},{"text":"footage (“latent recordings”) are kept for at least 18 hours. See ODRC Policy No.","paragraph_id":"para_401"},{"text":"10-SAF-22(VI)(K)(1) (effective Aug. 1, 2023).","paragraph_id":"para_402"},{"text":"{¶ 34} For 18 hours, ODRC had in its possession latent recordings from two","paragraph_id":"para_403"},{"text":"different prison employees’ body-worn cameras. That footage would have proved","paragraph_id":"para_404"},{"text":"or disproved relator Thomas Clark’s claims that (1) a prison employee threatened","paragraph_id":"para_405"},{"text":"retaliation against him for exercising his constitutional right to access the courts for","paragraph_id":"para_406"},{"text":"legal redress and (2) a second prison employee wrongly increased the price for","paragraph_id":"para_407"},{"text":"Clark to send legal mail.","paragraph_id":"para_408"},{"text":"January Term, 2025","paragraph_id":"para_409"},{"text":"15","paragraph_id":"para_410"},{"text":"{¶ 35} Clark asked the public-information officer at Lebanon Correctional","paragraph_id":"para_411"},{"text":"Institution, Ellen Myers, to preserve the latent recordings before they were","paragraph_id":"para_412"},{"text":"overwritten. Preserving those recordings could have been accomplished by merely","paragraph_id":"para_413"},{"text":"instructing the two prison employees or a supervisor to turn off the body-worn","paragraph_id":"para_414"},{"text":"cameras. See ODRC Policy No. 10-SAF-22(VI)(K)(3) (effective Aug. 1, 2023).","paragraph_id":"para_415"},{"text":"But Myers chose not to preserve them.","paragraph_id":"para_416"},{"text":"{¶ 36} In my view, actions like Myers’s permitting latent recordings to be","paragraph_id":"para_417"},{"text":"overwritten and destroyed when the recordings are evidence that would either prove","paragraph_id":"para_418"},{"text":"or disprove a citizen’s allegations of misconduct by government officials leads to","paragraph_id":"para_419"},{"text":"greater public distrust of the government. One must consider what the government","paragraph_id":"para_420"},{"text":"has to hide in circumstances like this.","paragraph_id":"para_421"},{"text":"{¶ 37} Like the Texas two-step adds a step to the foxtrot, the majority now","paragraph_id":"para_422"},{"text":"adds a new step for public-records requesters. According to the majority, a record","paragraph_id":"para_423"},{"text":"is not a public record unless the government intends to keep it for some undisclosed","paragraph_id":"para_424"},{"text":"period. The only problem with that reasoning is that there is no temporal","paragraph_id":"para_425"},{"text":"component in the unambiguous language of the Public Records Act that establishes","paragraph_id":"para_426"},{"text":"how long a record must be kept before it is subject to release as a public record.","paragraph_id":"para_427"},{"text":"This new step added by the majority will only make it harder for Ohioans to gain","paragraph_id":"para_428"},{"text":"access to the records that rightly belong to the citizens of this State, see State ex rel.","paragraph_id":"para_429"},{"text":"Patterson v. Ayers, 171 Ohio St. 369, 371 (1960), and will increase the public’s","paragraph_id":"para_430"},{"text":"distrust of courts.","paragraph_id":"para_431"},{"text":"{¶ 38} This mandamus action concerns a total of four public-records","paragraph_id":"para_432"},{"text":"requests submitted by Clark to Myers on the following days: July 23, August 26,","paragraph_id":"para_433"},{"text":"August 28, and September 11, 2024. The July 23 request sought paper copies of","paragraph_id":"para_434"},{"text":"the prison’s record-retention schedule and “post orders” for prison employees","paragraph_id":"para_435"},{"text":"working in the prison’s property room. The August 26 and 28 requests sought","paragraph_id":"para_436"},{"text":"digital copies of the latent recordings from the body-worn cameras of two prison","paragraph_id":"para_437"},{"text":"SUPREME COURT OF OHIO","paragraph_id":"para_438"},{"text":"16","paragraph_id":"para_439"},{"text":"employees. And the September 11 request sought paper copies of 15 of Clark’s","paragraph_id":"para_440"},{"text":"prior electronic kites and six of his informal complaints.","paragraph_id":"para_441"},{"text":"{¶ 39} For the reasons that follow, I concur in the court’s judgment to the","paragraph_id":"para_442"},{"text":"extent that it denies Clark a writ of mandamus compelling ODRC to produce copies","paragraph_id":"para_443"},{"text":"of records responsive to Clark’s August 26, August 28, and September 11 public-","paragraph_id":"para_444"},{"text":"records requests. ODRC has provided all the records responsive to the September","paragraph_id":"para_445"},{"text":"11 request. See majority opinion, ¶ 26. And as explained below, the latent","paragraph_id":"para_446"},{"text":"recordings responsive to the August 26 and 28 requests no longer exist.","paragraph_id":"para_447"},{"text":"{¶ 40} Additionally, for the July 23 public-records request, I concur in the","paragraph_id":"para_448"},{"text":"court’s judgment ordering ODRC to file under seal for in camera inspection copies","paragraph_id":"para_449"},{"text":"of the “post orders.” See id. at ¶ 32. I also agree with holding in abeyance the","paragraph_id":"para_450"},{"text":"court’s decision on Clark’s requested relief related to the “post orders.” Id.","paragraph_id":"para_451"},{"text":"{¶ 41} I write separately, however, because I disagree with the court’s","paragraph_id":"para_452"},{"text":"judgment denying Clark an award of statutory damages related to the August 26,","paragraph_id":"para_453"},{"text":"August 28, and September 11 public-records requests. See id. at ¶ 24, 27, 32.","paragraph_id":"para_454"},{"text":"{¶ 42} Accordingly, I concur in part and dissent in part.","paragraph_id":"para_455"},{"text":"The Public Records Act—Scope of Mandamus","paragraph_id":"para_456"},{"text":"{¶ 43} As an initial matter, it is worth discussing the events surrounding the","paragraph_id":"para_457"},{"text":"August 26 and 28 public-records requests for the latent recordings. (The majority","paragraph_id":"para_458"},{"text":"and Clark refer to these recordings as “latent recordings,” while ODRC’s policy","paragraph_id":"para_459"},{"text":"refers to accessing these recordings as “video recall,” ODRC Policy No. 10-SAF-","paragraph_id":"para_460"},{"text":"22(VI)(K)(2) [effective Aug. 1, 2023].)","paragraph_id":"para_461"},{"text":"{¶ 44} Latent recordings are low-resolution video and audio recordings that","paragraph_id":"para_462"},{"text":"are passively recorded on ODRC employees’ body-worn cameras while the","paragraph_id":"para_463"},{"text":"cameras are in the powered-on position but are otherwise not actively recording.","paragraph_id":"para_464"},{"text":"ODRC Policy No. 10-SAF-22(VI)(K)(1) and (2). When a body-worn camera is","paragraph_id":"para_465"},{"text":"actively recording, it is because an employee has activated the camera—or, in some","paragraph_id":"para_466"},{"text":"cases, it has automatically activated—to record a “qualifying event,” such as the","paragraph_id":"para_467"},{"text":"January Term, 2025","paragraph_id":"para_468"},{"text":"17","paragraph_id":"para_469"},{"text":"employee’s responding to an emergency call for assistance. ODRC Policy No. 10-","paragraph_id":"para_470"},{"text":"SAF-22(VI)(C) (effective Aug. 1, 2023) (a “qualifying event” requires the","paragraph_id":"para_471"},{"text":"employee to manually activate the body-worn camera). By default, however, the","paragraph_id":"para_472"},{"text":"body-worn cameras are passively recording during an employee’s shift, unless an","paragraph_id":"para_473"},{"text":"employee turns a camera off entirely or places the camera in sleep mode for","paragraph_id":"para_474"},{"text":"enumerated situations outlined in ODRC’s policy (e.g., using the restroom). ODRC","paragraph_id":"para_475"},{"text":"Policy No. 10-SAF-22(VI)(E), (G), (H), and (K) (effective Aug. 1, 2023).","paragraph_id":"para_476"},{"text":"{¶ 45} The limitation of this passive recording system is that new footage","paragraph_id":"para_477"},{"text":"overwrites old footage because of each body-worn camera’s limited internal storage","paragraph_id":"para_478"},{"text":"capacity of 18 hours for latent-recording footage. See ODRC Policy No. 10-SAF-","paragraph_id":"para_479"},{"text":"22(VI)(K)(1). Therefore, to preserve the recording of a specific event that was","paragraph_id":"para_480"},{"text":"captured as a latent recording on a camera, the latent recording must be retrieved","paragraph_id":"para_481"},{"text":"within an 18-hour window that begins when the event occurs and ends after the","paragraph_id":"para_482"},{"text":"body-worn camera has been on and passively recording for 18 hours after the event.","paragraph_id":"para_483"},{"text":"But if the camera is powered off before the recording is overwritten, the recording","paragraph_id":"para_484"},{"text":"may be retrieved at any time, presumably for as long as the camera remains","paragraph_id":"para_485"},{"text":"powered off. See ODRC Policy No. 10-SAF-22(VI)(K)(3).","paragraph_id":"para_486"},{"text":"{¶ 46} Having defined the limitations for retrieving latent recordings, I now","paragraph_id":"para_487"},{"text":"turn to the events surrounding Clark’s August 26 and 28 public-records requests.","paragraph_id":"para_488"},{"text":"{¶ 47} Clark claims that on the morning of August 26, 2024, a prison-unit","paragraph_id":"para_489"},{"text":"manager intimidated him for filing legal claims against ODRC. A second prison","paragraph_id":"para_490"},{"text":"employee wearing a body-worn camera, identified by Clark as Lieutenant Morris,","paragraph_id":"para_491"},{"text":"witnessed this interaction. Thereafter, Clark returned to his cell and sent a public-","paragraph_id":"para_492"},{"text":"records request at 9:10 a.m.—the August 26 request—to Myers, seeking the body-","paragraph_id":"para_493"},{"text":"worn camera footage from Morris’s camera. Specifically, Clark requested that he","paragraph_id":"para_494"},{"text":"be provided with “a digital copy and paper transcript of the body-warn-camera","paragraph_id":"para_495"},{"text":"audio and video from Lieutenant Morris’ body camera from this morning, 8/26/24,","paragraph_id":"para_496"},{"text":"from 7:45am to 8:10am.” Myers responded about three hours later, informing","paragraph_id":"para_497"},{"text":"SUPREME COURT OF OHIO","paragraph_id":"para_498"},{"text":"18","paragraph_id":"para_499"},{"text":"Clark that his request was “overly broad” and that the prison’s legal services had","paragraph_id":"para_500"},{"text":"advised against producing the requested records. Myers also asked Clark: “What","paragraph_id":"para_501"},{"text":"exactly are you looking for? Where was Sgt. Morris? What happened?” Clark","paragraph_id":"para_502"},{"text":"responded about an hour later, at 1:17 p.m., with a second electronic kite, answering","paragraph_id":"para_503"},{"text":"Myers’s questions from the initial electronic kite. Myers did not respond again","paragraph_id":"para_504"},{"text":"until three days later, on August 29. On that date, Myers sent two responses, with","paragraph_id":"para_505"},{"text":"the first asserting that the latent recording did not exist and the second asserting that","paragraph_id":"para_506"},{"text":"even if the latent recording did exist, the request would be denied because Clark’s","paragraph_id":"para_507"},{"text":"conversation with the prison-unit manager did not meet the definition of a","paragraph_id":"para_508"},{"text":"“qualifying event” under ODRC Policy No. 10-SAF-22.","paragraph_id":"para_509"},{"text":"{¶ 48} Similarly, on August 28, 2024, Clark claims that another prison","paragraph_id":"para_510"},{"text":"employee, Lieutenant Holley, verbally threatened to charge him double for sending","paragraph_id":"para_511"},{"text":"legal mail. Holley was wearing a body-worn camera at the time of the conversation.","paragraph_id":"para_512"},{"text":"After the conversation, Clark sent a public-records request—the August 28","paragraph_id":"para_513"},{"text":"request—to Myers, seeking the body-worn camera footage from Holley’s camera.","paragraph_id":"para_514"},{"text":"Myers responded the next day, denying Clark’s request because his interaction with","paragraph_id":"para_515"},{"text":"Holley did not meet the definition of a “qualifying event” under ODRC Policy No.","paragraph_id":"para_516"},{"text":"10-SAF-22. On September 13, Myers followed up to inform Clark that there were","paragraph_id":"para_517"},{"text":"no responsive records to his request.","paragraph_id":"para_518"},{"text":"{¶ 49} Reviewing ODRC’s policy and the electronic-kite audit logs for the","paragraph_id":"para_519"},{"text":"August 26 and 28 public-records requests reveals that the latent recordings","paragraph_id":"para_520"},{"text":"responsive to Clark’s requests were not preserved within the 18-hour window","paragraph_id":"para_521"},{"text":"necessary to retrieve latent recordings from body-worn cameras. The combination","paragraph_id":"para_522"},{"text":"of initially denying the requests and then failing to act diligently in responding to","paragraph_id":"para_523"},{"text":"Clark’s communications thereafter all but ensured that the latent recordings were","paragraph_id":"para_524"},{"text":"overwritten on Morris’s and Holley’s body-worn cameras by the time Myers sent","paragraph_id":"para_525"},{"text":"her final responses to, and closed, Clark’s August 26 and 28 requests.","paragraph_id":"para_526"},{"text":"January Term, 2025","paragraph_id":"para_527"},{"text":"19","paragraph_id":"para_528"},{"text":"{¶ 50} Hence, the latent recordings responsive to these two public-records","paragraph_id":"para_529"},{"text":"requests no longer exist. And Clark concedes as much in his merit brief.","paragraph_id":"para_530"},{"text":"{¶ 51} The majority goes further, however. It contends that Myers never","paragraph_id":"para_531"},{"text":"admitted that the latent recordings existed in the first place and that Clark has failed","paragraph_id":"para_532"},{"text":"to prove that the records “actually existed” at the time of his public-records","paragraph_id":"para_533"},{"text":"requests. Majority opinion at ¶ 24. This dubious position is directly contradicted","paragraph_id":"para_534"},{"text":"by ODRC’s policy, Myers’s responses that are set forth in the electronic-kite audit","paragraph_id":"para_535"},{"text":"logs, and her affidavit that was submitted as evidence in this case.","paragraph_id":"para_536"},{"text":"{¶ 52} The policy suggests that the requested latent recordings existed at","paragraph_id":"para_537"},{"text":"the time of Clark’s public-records requests since Clark made his requests within the","paragraph_id":"para_538"},{"text":"18-hour window during which the recordings could be retrieved and such","paragraph_id":"para_539"},{"text":"recordings are, as a matter of course, “available to use whenever a qualifying event","paragraph_id":"para_540"},{"text":"occurred and the employee was unable to, or forgot to, activate their [body-worn","paragraph_id":"para_541"},{"text":"camera],” ODRC Policy No. 10-SAF-22(VI)(K)(2). Further, Myers’s response to","paragraph_id":"para_542"},{"text":"the August 28 request states that Clark requested that Holley “download/upload his","paragraph_id":"para_543"},{"text":"body camera file from today (August 28, 2024) to the appropriate LeCI/DRC","paragraph_id":"para_544"},{"text":"database in order to preserve the record” but that the request would be denied","paragraph_id":"para_545"},{"text":"because Clark’s conversation with Holley did not “meet the definition of a","paragraph_id":"para_546"},{"text":"‘qualifying event.’” Myers’s affidavit also states that for the August 26 request,","paragraph_id":"para_547"},{"text":"“no [body-worn camera] footage existed for the described incident because the","paragraph_id":"para_548"},{"text":"event did not meet the definition of a ‘qualifying event’ under ODRC Policy No.","paragraph_id":"para_549"},{"text":"10-SAF-22.” (Emphasis added.)","paragraph_id":"para_550"},{"text":"{¶ 53} Reading the policy and Myers’s responses and affidavit together,","paragraph_id":"para_551"},{"text":"one thing is certain—the events Clark sought to preserve were passively recorded","paragraph_id":"para_552"},{"text":"as latent recordings on the respective body-worn cameras, but Myers refused to","paragraph_id":"para_553"},{"text":"produce the latent recordings at the time of Clark’s public-records requests because","paragraph_id":"para_554"},{"text":"there was no “qualifying event” to justify retrieval and release of the latent","paragraph_id":"para_555"},{"text":"recordings. Therefore, contrary to the majority, I would conclude that the requested","paragraph_id":"para_556"},{"text":"SUPREME COURT OF OHIO","paragraph_id":"para_557"},{"text":"20","paragraph_id":"para_558"},{"text":"latent recordings did exist at the time of Clark’s August 26 and 28 public-records","paragraph_id":"para_559"},{"text":"requests.","paragraph_id":"para_560"},{"text":"{¶ 54} The majority suggests that the latent recordings were never public","paragraph_id":"para_561"},{"text":"records because they were never accessed and preserved by ODRC, i.e., they were","paragraph_id":"para_562"},{"text":"never downloaded. See majority opinion at ¶ 21. However, classifying a record as","paragraph_id":"para_563"},{"text":"a public record does not depend on what type of device the record is found on.","paragraph_id":"para_564"},{"text":"Rather, “public record” means “records kept by any public office,” R.C.","paragraph_id":"para_565"},{"text":"149.43(A)(1), and “records” include “any document, device, or item, regardless of","paragraph_id":"para_566"},{"text":"physical form or characteristic, including an electronic record as defined in section","paragraph_id":"para_567"},{"text":"1306.01 of the Revised Code, created or received by or coming under the","paragraph_id":"para_568"},{"text":"jurisdiction of any public office of the state or its political subdivisions, which","paragraph_id":"para_569"},{"text":"serves to document the organization, functions, policies, decisions, procedures,","paragraph_id":"para_570"},{"text":"operations, or other activities of the office,” R.C. 149.011(G). And for purposes of","paragraph_id":"para_571"},{"text":"the Public Records Act, “‘[k]ept’ is the past participle of ‘keep,’ which . . . means","paragraph_id":"para_572"},{"text":"‘preserve,’ ‘maintain,’ ‘hold,’ ‘detain,’ or ‘retain or continue to have in one’s","paragraph_id":"para_573"},{"text":"possession or power esp. by conscious or purposive policy.’” State ex rel.","paragraph_id":"para_574"},{"text":"Cincinnati Enquirer, Div. of Gannett Satellite Information Network, Inc. v.","paragraph_id":"para_575"},{"text":"Cincinnati Bd. of Edn., 2003-Ohio-2260, ¶ 11, quoting Webster’s Third New","paragraph_id":"para_576"},{"text":"International Dictionary (1986).","paragraph_id":"para_577"},{"text":"{¶ 55} A latent recording on one of ODRC’s body-worn cameras squarely","paragraph_id":"para_578"},{"text":"fits within these definitions. A latent recording is an electronic record stored on a","paragraph_id":"para_579"},{"text":"device belonging to ODRC that documents ODRC’s activities—i.e., the actions of","paragraph_id":"para_580"},{"text":"correctional officers and incarcerated people. The recordings continue to be in","paragraph_id":"para_581"},{"text":"ODRC’s possession for at least 18 hours. Latent recordings are therefore public","paragraph_id":"para_582"},{"text":"records kept by ODRC until they are overwritten.","paragraph_id":"para_583"},{"text":"{¶ 56} ODRC’s body-worn-camera policy even contemplates that latent","paragraph_id":"para_584"},{"text":"recordings are public records. ODRC Policy No. 10-SAF-22(VI)(B)(2) states,","paragraph_id":"para_585"},{"text":"“Recordings or photographs made on ODRC issued [body-worn-camera]","paragraph_id":"para_586"},{"text":"January Term, 2025","paragraph_id":"para_587"},{"text":"21","paragraph_id":"para_588"},{"text":"equipment or otherwise captured or recorded by ODRC employees during the","paragraph_id":"para_589"},{"text":"performance of their job duties are the property of ODRC and subject to Ohio’s","paragraph_id":"para_590"},{"text":"Public Records Law.” The policy also provides that “all recordings identified as","paragraph_id":"para_591"},{"text":"responsive to a public records request shall be maintained in accordance with","paragraph_id":"para_592"},{"text":"ODRC’s Record Retention Schedule and applicable departmental policy.” ODRC","paragraph_id":"para_593"},{"text":"Policy No. 10-SAF-22(VI)(P)(2)(b) (effective Aug. 1, 2023). Myers did not adhere","paragraph_id":"para_594"},{"text":"to the body-worn-camera policy.","paragraph_id":"para_595"},{"text":"{¶ 57} The majority says that the synonyms of the word “keep” noted above","paragraph_id":"para_596"},{"text":"“suggest some conscious act by the person or entity doing the keeping and","paragraph_id":"para_597"},{"text":"something more than a mere temporary existence.” Majority opinion at ¶ 21. But","paragraph_id":"para_598"},{"text":"there is a conscious act by ODRC in having body-worn cameras passively record","paragraph_id":"para_599"},{"text":"and retain the latent recordings—ODRC knows that it may need those latent","paragraph_id":"para_600"},{"text":"recordings, and it believes that 18 hours is a sufficient period to know which ones","paragraph_id":"para_601"},{"text":"to keep. And what duration under a public-records-retention policy is long enough","paragraph_id":"para_602"},{"text":"before retention is no longer “temporary” and records become subject to a public-","paragraph_id":"para_603"},{"text":"records request—three days? A week? A month? The majority is just making up","paragraph_id":"para_604"},{"text":"the rules as it goes along.","paragraph_id":"para_605"},{"text":"{¶ 58} The main disagreement I have with the majority comes down to a","paragraph_id":"para_606"},{"text":"question of timing. The majority looks back from today to decide whether the latent","paragraph_id":"para_607"},{"text":"recordings were public records. It cannot dispute that if ODRC had prevented the","paragraph_id":"para_608"},{"text":"recordings from being overwritten, they would be public records. But because we","paragraph_id":"para_609"},{"text":"now know that the recordings were not in fact preserved, to the majority, they were","paragraph_id":"para_610"},{"text":"never public records in the first place.","paragraph_id":"para_611"},{"text":"{¶ 59} To me, the relevant time for deciding whether a record is a public","paragraph_id":"para_612"},{"text":"record is the time of the request. After all, that is when the duty to produce the","paragraph_id":"para_613"},{"text":"record attaches—R.C. 149.43(B)(1) states that public records shall be made","paragraph_id":"para_614"},{"text":"available “upon request.” (Emphasis added.) So when Clark requested each latent","paragraph_id":"para_615"},{"text":"SUPREME COURT OF OHIO","paragraph_id":"para_616"},{"text":"22","paragraph_id":"para_617"},{"text":"recording, that was when ODRC was obligated to preserve and produce each one.","paragraph_id":"para_618"},{"text":"And at the moment that Clark made each request, ODRC still had each recording.","paragraph_id":"para_619"},{"text":"{¶ 60} While the majority seeks to trivialize this case by likening the latent","paragraph_id":"para_620"},{"text":"recordings to scribbles on a white board, see majority opinion at ¶ 22, the logical","paragraph_id":"para_621"},{"text":"consequences of the majority’s decision are far-reaching. Under the majority’s","paragraph_id":"para_622"},{"text":"logic, the most consequential government records would never be public records so","paragraph_id":"para_623"},{"text":"long as the records-retention policy is short enough to be deemed temporary. Or a","paragraph_id":"para_624"},{"text":"record in a recycle bin is not a public record, because the custodian does not intend","paragraph_id":"para_625"},{"text":"to keep it. And while correspondence in an email could be a public record, State","paragraph_id":"para_626"},{"text":"ex rel. Glasgow v. Jones, 2008-Ohio-4788, ¶ 20, if that same correspondence were","paragraph_id":"para_627"},{"text":"sent through an app like Snapchat that automatically deletes messages, it could","paragraph_id":"para_628"},{"text":"never have been a public record. The majority has just given the government the","paragraph_id":"para_629"},{"text":"playbook for circumventing the Public Records Act.","paragraph_id":"para_630"},{"text":"{¶ 61} There is no exception in the Public Records Act for records created","paragraph_id":"para_631"},{"text":"by the public office and kept temporarily on an electronic device but never accessed","paragraph_id":"para_632"},{"text":"or downloaded. Nor is there any provision directing courts to look at whether a","paragraph_id":"para_633"},{"text":"public-records custodian intends or decides to keep a record. Instead, under the act,","paragraph_id":"para_634"},{"text":"the question is whether the public office keeps the record and whether that record","paragraph_id":"para_635"},{"text":"documents the activities of the public office. See R.C. 149.43(A)(1) and","paragraph_id":"para_636"},{"text":"149.011(G).","paragraph_id":"para_637"},{"text":"{¶ 62} It also does not matter where the public office keeps its public","paragraph_id":"para_638"},{"text":"records. A public record does not lose its status as a public record just because it","paragraph_id":"para_639"},{"text":"is stored temporarily on an electronic device such as a body-worn camera. It does","paragraph_id":"para_640"},{"text":"not lose its status as a public record even if it is stored on a private email server or","paragraph_id":"para_641"},{"text":"a personal device, such as a smart phone. (Our decision in State ex rel. Platt v.","paragraph_id":"para_642"},{"text":"Montgomery Cty. Bd. of Elections, 2025-Ohio-2079, ¶ 32-35, in which we held that","paragraph_id":"para_643"},{"text":"an email that was sent from the personal email account of the deputy director of a","paragraph_id":"para_644"},{"text":"January Term, 2025","paragraph_id":"para_645"},{"text":"23","paragraph_id":"para_646"},{"text":"county board of elections to the chairman of a county political party was not a","paragraph_id":"para_647"},{"text":"public record, is wrong on this point.)","paragraph_id":"para_648"},{"text":"{¶ 63} In my view, if a public record is kept temporarily or permanently on","paragraph_id":"para_649"},{"text":"an electronic device, it is a public record for as long as it is kept by the public","paragraph_id":"para_650"},{"text":"office—regardless of whether it is ever accessed or downloaded by the public","paragraph_id":"para_651"},{"text":"office. And here, the latent recordings were being kept by ODRC at the time of","paragraph_id":"para_652"},{"text":"Clark’s public-records requests, even if no one accessed or downloaded them","paragraph_id":"para_653"},{"text":"before they were subsequently deleted. That the latent recordings were maintained","paragraph_id":"para_654"},{"text":"for some time is enough to make them public records, and they could not be","paragraph_id":"para_655"},{"text":"destroyed once they had been requested.","paragraph_id":"para_656"},{"text":"{¶ 64} Nonetheless, a relevant question in determining whether to issue a","paragraph_id":"para_657"},{"text":"writ of mandamus is whether the requested records currently exist. “There is no","paragraph_id":"para_658"},{"text":"duty under R.C. 149.43 to create [or provide] records that no longer exist.” State","paragraph_id":"para_659"},{"text":"ex rel. Toledo Blade Co. v. Seneca Cty. Bd. of Commrs., 2008-Ohio-6253, ¶ 27,","paragraph_id":"para_660"},{"text":"citing State ex rel. Lanham v. Smith, 2007-Ohio-609, ¶ 15. And here, there are now","paragraph_id":"para_661"},{"text":"no records responsive to Clark’s August 26 and 28 public-records requests that can","paragraph_id":"para_662"},{"text":"be compelled for production through a writ of mandamus, because Myers did not","paragraph_id":"para_663"},{"text":"preserve the latent recordings before they were overwritten. Although the","paragraph_id":"para_664"},{"text":"destruction of these records invites the obvious question “why were they","paragraph_id":"para_665"},{"text":"destroyed?”—for purposes of this case, the majority is correct to deny the writ for","paragraph_id":"para_666"},{"text":"these requests because the records no longer exist. See majority opinion at ¶ 23.","paragraph_id":"para_667"},{"text":"{¶ 65} However, even if a court denies a public-records requester’s","paragraph_id":"para_668"},{"text":"mandamus claim, the requester may be entitled to statutory damages. State ex rel.","paragraph_id":"para_669"},{"text":"Slager v. Trelka, 2024-Ohio-5125, ¶ 34.","paragraph_id":"para_670"},{"text":"Statutory Damages","paragraph_id":"para_671"},{"text":"{¶ 66} To be entitled to an award of statutory damages, a public-records","paragraph_id":"para_672"},{"text":"requester need show only that the public office or person responsible for the","paragraph_id":"para_673"},{"text":"requested public records failed to comply with an obligation under R.C. 149.43(B)","paragraph_id":"para_674"},{"text":"SUPREME COURT OF OHIO","paragraph_id":"para_675"},{"text":"24","paragraph_id":"para_676"},{"text":"after the requester transmitted a written and fairly described request by hand","paragraph_id":"para_677"},{"text":"delivery, electronic submission, or certified mail. R.C. 149.43(C)(2);4 see also","paragraph_id":"para_678"},{"text":"Slager at ¶ 34.","paragraph_id":"para_679"},{"text":"August 26 and 28 Requests","paragraph_id":"para_680"},{"text":"{¶ 67} As discussed above, Clark’s August 26 and 28 public-records","paragraph_id":"para_681"},{"text":"requests sought latent recordings from the body-worn cameras of two prison","paragraph_id":"para_682"},{"text":"employees—Morris and Holley. Myers initially denied the August 26 request","paragraph_id":"para_683"},{"text":"because it was “overly broad” and the prison’s legal service had advised against","paragraph_id":"para_684"},{"text":"producing it. She later clarified that the requested record was not available, because","paragraph_id":"para_685"},{"text":"Clark’s conversation with the prison-unit manager was not a “qualifying event.”","paragraph_id":"para_686"},{"text":"Similarly, for the August 28 request, Myers denied the request because Clark’s","paragraph_id":"para_687"},{"text":"conversation with Holley was not a “qualifying event.” Myers followed up on both","paragraph_id":"para_688"},{"text":"requests several days after the respective denials, stating in both instances that the","paragraph_id":"para_689"},{"text":"requested latent recordings did not exist.","paragraph_id":"para_690"},{"text":"{¶ 68} As an initial matter, ODRC contends in its merit brief that latent","paragraph_id":"para_691"},{"text":"recordings of nonqualifying events are not public records subject to production","paragraph_id":"para_692"},{"text":"under R.C. 149.43. ODRC is wrong. Latent recordings are created by body-worn","paragraph_id":"para_693"},{"text":"cameras that ODRC uses to keep track of its employees’ activities. See ODRC","paragraph_id":"para_694"},{"text":"Policy No. 10-SAF-22(II) and (V) (effective Aug. 1, 2023). These electronic","paragraph_id":"para_695"},{"text":"recordings, then, necessarily document the operations of ODRC. See R.C.","paragraph_id":"para_696"},{"text":"149.011(G) (a “record” includes an “electronic record . . . created . . . by . . . [a]","paragraph_id":"para_697"},{"text":"public office of the state or its political subdivision[], which serves to document the","paragraph_id":"para_698"},{"text":". . . operations . . . or other activities of the office”). Therefore, the latent recordings","paragraph_id":"para_699"},{"text":"are records of a public office, and such records are subject to disclosure under the","paragraph_id":"para_700"},{"text":"4. The General Assembly amended R.C. 149.43 in 2024 Sub.H.B. No. 265 with an effective date of","paragraph_id":"para_701"},{"text":"April 9, 2025. This opinion applies the version of the statute enacted in 2023 Am.Sub.H.B. No. 33","paragraph_id":"para_702"},{"text":"(effective Oct. 3, 2023).","paragraph_id":"para_703"},{"text":"January Term, 2025","paragraph_id":"para_704"},{"text":"25","paragraph_id":"para_705"},{"text":"Public Records Act absent a valid ground for exemption from disclosure, see R.C.","paragraph_id":"para_706"},{"text":"149.43(A)(1).","paragraph_id":"para_707"},{"text":"{¶ 69} Based on this understanding of the latent recordings, Myers’s","paragraph_id":"para_708"},{"text":"responses to Clark’s August 26 and 28 public-records requests constitute an","paragraph_id":"para_709"},{"text":"improper denial of the requests.","paragraph_id":"para_710"},{"text":"{¶ 70} First, for the August 26 request, Myers’s assertion that the request","paragraph_id":"para_711"},{"text":"was “overly broad” is unfounded. R.C. 149.43(B)(2) authorizes the rejection of a","paragraph_id":"para_712"},{"text":"public-records request as ambiguous “only when the office cannot ‘reasonably’","paragraph_id":"para_713"},{"text":"identify the records sought,” State ex rel. McDougald v. Greene, 2020-Ohio-5100,","paragraph_id":"para_714"},{"text":"¶ 15, quoting R.C. 149.43(B)(2). Here, Clark’s request stated what record he","paragraph_id":"para_715"},{"text":"sought, where the record was located (Morris’s body-worn camera), and what date","paragraph_id":"para_716"},{"text":"and time the recording was made. Importantly, he requested the latent recording","paragraph_id":"para_717"},{"text":"from a narrow and specific period spanning only 25 minutes. Nothing about","paragraph_id":"para_718"},{"text":"Clark’s request would have led a reasonable person to conclude that he or she could","paragraph_id":"para_719"},{"text":"not identify the record requested. Hence, Myers’s denial of the August 26 public-","paragraph_id":"para_720"},{"text":"records request as “overly broad” was improper.","paragraph_id":"para_721"},{"text":"{¶ 71} Second, regarding the August 26 request, Myers asked Clark, “What","paragraph_id":"para_722"},{"text":"exactly are you looking for? Where was Sgt. Morris? What happened?” This","paragraph_id":"para_723"},{"text":"sounds like Myers’s asking Clark why he needed the latent recording. However,","paragraph_id":"para_724"},{"text":"R.C. 149.43(B)(4) prohibits a public-records custodian from limiting access to","paragraph_id":"para_725"},{"text":"public records based on the intended use of the record. Myers therefore had another","paragraph_id":"para_726"},{"text":"improper basis for failing to produce the requested August 26 latent recording.","paragraph_id":"para_727"},{"text":"{¶ 72} Third, for both the August 26 and 28 requests, Myers’s claimed","paragraph_id":"para_728"},{"text":"exemption—that neither of Clark’s interactions with prison staff constituted a","paragraph_id":"para_729"},{"text":"“qualifying event” to warrant preserving and releasing the latent recordings of the","paragraph_id":"para_730"},{"text":"interactions—was not a permissible basis for denying the requests. There is no","paragraph_id":"para_731"},{"text":"lack-of-a-qualifying-event exemption in the Public Records Act, and R.C. 149.43","paragraph_id":"para_732"},{"text":"does not condition the availability of body-worn-camera recordings on the","paragraph_id":"para_733"},{"text":"SUPREME COURT OF OHIO","paragraph_id":"para_734"},{"text":"26","paragraph_id":"para_735"},{"text":"existence of a “qualifying event” that triggers active recording. Therefore, Myers’s","paragraph_id":"para_736"},{"text":"reasoning is not supported by a valid exemption from disclosure of the requested","paragraph_id":"para_737"},{"text":"records. See R.C. 149.43(A)(1); see also State ex rel. School Choice Ohio, Inc. v.","paragraph_id":"para_738"},{"text":"Cincinnati Pub. School Dist., 2016-Ohio-5026, ¶ 11 (the respondent in a public-","paragraph_id":"para_739"},{"text":"records mandamus action has the burden of proving that the records are exempt","paragraph_id":"para_740"},{"text":"from disclosure under R.C. 149.43); State ex rel. Adkins v. Cole, 2025-Ohio-1026,","paragraph_id":"para_741"},{"text":"¶ 39 (denial of a public-records request was improper when the respondents did not","paragraph_id":"para_742"},{"text":"argue that footage responsive to the request was exempt from disclosure under a","paragraph_id":"para_743"},{"text":"valid statutory exemption). Myers’s denial of each request for a lack of a","paragraph_id":"para_744"},{"text":"“qualifying event” was improper.","paragraph_id":"para_745"},{"text":"{¶ 73} We have recently awarded statutory damages when a record existed","paragraph_id":"para_746"},{"text":"at the time of the request but the respondent’s improper denial led to the deletion","paragraph_id":"para_747"},{"text":"of the record before the mandamus complaint was filed. See Adkins at ¶ 38-39.","paragraph_id":"para_748"},{"text":"{¶ 74} I would therefore award Clark $2,000 in statutory damages for the","paragraph_id":"para_749"},{"text":"August 26 and 28 public-records requests. See R.C. 149.43(C)(2).","paragraph_id":"para_750"},{"text":"September 11 Request","paragraph_id":"para_751"},{"text":"{¶ 75} On September 11, 2024, Clark submitted an electronic kite wherein","paragraph_id":"para_752"},{"text":"he requested paper copies of 15 of his prior electronic kites and six of his informal","paragraph_id":"para_753"},{"text":"complaints. He admits that he has received all records responsive to this public-","paragraph_id":"para_754"},{"text":"records request. Clark claims, however, that eight of the electronic-kite copies he","paragraph_id":"para_755"},{"text":"received were altered to eliminate entries from the kites’ audit logs. As proof, Clark","paragraph_id":"para_756"},{"text":"provides another version of the electronic kite he sent at 1:17 p.m. on August 26—","paragraph_id":"para_757"},{"text":"which he received in a prior, unrelated public-records request—that contains an","paragraph_id":"para_758"},{"text":"entry in the audit log of the kite that is missing from the electronic-kite copy Myers","paragraph_id":"para_759"},{"text":"provided in response to the September 11 request.","paragraph_id":"para_760"},{"text":"{¶ 76} As for the remaining seven kites at issue, Clark has not shown by","paragraph_id":"para_761"},{"text":"clear and convincing evidence that those kites were altered as well, and Myers avers","paragraph_id":"para_762"},{"text":"in her affidavit that all records responsive to the September 11 request have been","paragraph_id":"para_763"},{"text":"January Term, 2025","paragraph_id":"para_764"},{"text":"27","paragraph_id":"para_765"},{"text":"provided to Clark, see State ex rel. Frank v. Clermont Cty. Prosecutor, 2021-Ohio-","paragraph_id":"para_766"},{"text":"623, ¶ 15 (attestations in an affidavit may be rebutted by clear and convincing","paragraph_id":"para_767"},{"text":"evidence showing a genuine issue of fact that additional responsive records exist).","paragraph_id":"para_768"},{"text":"Therefore, only the electronic kite Clark sent at 1:17 p.m. on August 26 is relevant","paragraph_id":"para_769"},{"text":"for this determination of statutory damages.","paragraph_id":"para_770"},{"text":"{¶ 77} Clark has received a copy of that requested electronic kite with the","paragraph_id":"para_771"},{"text":"missing entry from the audit log—ODRC provided a complete copy of the kite and","paragraph_id":"para_772"},{"text":"audit log as evidence. Even so, the complete version of that kite and audit log was","paragraph_id":"para_773"},{"text":"not provided to Clark until after he filed this mandamus action. This raises the","paragraph_id":"para_774"},{"text":"question: If an incomplete record is provided in response to a public-records","paragraph_id":"para_775"},{"text":"request, has the public office or person responsible for public records failed to","paragraph_id":"para_776"},{"text":"comply with the requirements of R.C. 149.43(B)? The answer is yes.","paragraph_id":"para_777"},{"text":"{¶ 78} The public office or person responsible for public records has a duty","paragraph_id":"para_778"},{"text":"to produce a copy of the public record responsive to a request, not an incomplete","paragraph_id":"para_779"},{"text":"version of that record. See R.C. 149.43(B)(1) (“the public office or the person","paragraph_id":"para_780"},{"text":"responsible for the public record shall make available all of the information within","paragraph_id":"para_781"},{"text":"the public record that is not exempt” [emphasis added]); see also State ex rel. The","paragraph_id":"para_782"},{"text":"Warren Newspapers, Inc. v. Hutson, 1994-Ohio-5, ¶ 20 (“if respondents wish to","paragraph_id":"para_783"},{"text":"comply with the request, they must make [a] copy of the original file”). Only if an","paragraph_id":"para_784"},{"text":"exemption applies or redactions are required should anything other than a copy of","paragraph_id":"para_785"},{"text":"the original record be provided. See R.C. 149.43(B)(1).","paragraph_id":"para_786"},{"text":"{¶ 79} Therefore, although Clark now has the complete electronic kite and","paragraph_id":"para_787"},{"text":"audit log that is responsive to his public-records request, he is entitled to an award","paragraph_id":"para_788"},{"text":"of statutory damages for Myers’s failure to produce the complete record in","paragraph_id":"para_789"},{"text":"accordance with R.C. 149.43(B)(1) before Clark filed this mandamus action on","paragraph_id":"para_790"},{"text":"September 30, 2024.","paragraph_id":"para_791"},{"text":"{¶ 80} R.C. 149.43(B)(1) requires that copies of the requested public","paragraph_id":"para_792"},{"text":"records be made available “within a reasonable period of time.” ODRC’s response","paragraph_id":"para_793"},{"text":"SUPREME COURT OF OHIO","paragraph_id":"para_794"},{"text":"28","paragraph_id":"para_795"},{"text":"time of three months here—with the request sent on September 11 and the complete","paragraph_id":"para_796"},{"text":"electronic kite and audit log produced as evidence on December 17—is not","paragraph_id":"para_797"},{"text":"reasonable for the production of a copy of a single, correct version of a requested","paragraph_id":"para_798"},{"text":"kite. See generally State ex rel. Robinson v. Wesson, 2025-Ohio-1874, ¶ 38","paragraph_id":"para_799"},{"text":"(Kennedy, C.J., concurring in part and dissenting in part) (a three-month response","paragraph_id":"para_800"},{"text":"time was unreasonable for the production of 56 pages of unredacted copies of","paragraph_id":"para_801"},{"text":"electronic kites).","paragraph_id":"para_802"},{"text":"{¶ 81} I would therefore award Clark $1,000 in statutory damages for the","paragraph_id":"para_803"},{"text":"September 11 public-records request. See R.C. 149.43(C)(2).","paragraph_id":"para_804"},{"text":"Conclusion","paragraph_id":"para_805"},{"text":"{¶ 82} For the foregoing reasons, I would conclude that Clark is entitled to","paragraph_id":"para_806"},{"text":"an award of statutory damages for his August 26, August 28, and September 11","paragraph_id":"para_807"},{"text":"public-records requests. The August 26 and 28 requests were improperly denied,","paragraph_id":"para_808"},{"text":"and the records responsive to those requests no longer exist. And the September","paragraph_id":"para_809"},{"text":"11 request was not fulfilled until more than ten days after Clark filed this mandamus","paragraph_id":"para_810"},{"text":"action. Therefore, I would award Clark $3,000 in statutory damages.","paragraph_id":"para_811"},{"text":"{¶ 83} Because the court does not do so, I concur in part and dissent in part.","paragraph_id":"para_812"},{"text":"__________________","paragraph_id":"para_813"},{"text":"BRUNNER, J., concurring in part and dissenting in part.","paragraph_id":"para_814"},{"text":"{¶ 84} I agree with the first opinion concurring in part and dissenting in part","paragraph_id":"para_815"},{"text":"and join that opinion in full. I write separately to point out that this is the second","paragraph_id":"para_816"},{"text":"time in recent months that this court has adopted a novel and unjustified","paragraph_id":"para_817"},{"text":"interpretation of R.C. 149.43(A)(1)’s requirement that a “public record” be a record","paragraph_id":"para_818"},{"text":"that is “kept by” a public office. See State ex rel. Platt v. Montgomery Cty. Bd. of","paragraph_id":"para_819"},{"text":"Elections, 2025-Ohio-2079, ¶ 32-35 (holding that emails from a public official’s","paragraph_id":"para_820"},{"text":"private email account are not “kept by” a public office, even if the account contains","paragraph_id":"para_821"},{"text":"emails reflecting official business of the public office, such as a confidential","paragraph_id":"para_822"},{"text":"memorandum from the public office), reconsideration denied, 2025-Ohio-2888.","paragraph_id":"para_823"},{"text":"January Term, 2025","paragraph_id":"para_824"},{"text":"29","paragraph_id":"para_825"},{"text":"{¶ 85} The first opinion concurring in part and dissenting in part explains","paragraph_id":"para_826"},{"text":"why this court’s new focus on the “kept by” requirement is off the mark. To that","paragraph_id":"para_827"},{"text":"explanation I add that the court’s position in Platt creates an obvious and gaping","paragraph_id":"para_828"},{"text":"loophole in the Public Records Act and that the majority’s analysis here pushes a","paragraph_id":"para_829"},{"text":"proverbial ten-ton truck through even that loophole. This quest to develop new","paragraph_id":"para_830"},{"text":"case law based on the “kept by” language in R.C. 149.43(A)(1) is rushed and","paragraph_id":"para_831"},{"text":"unnatural. The result of this analytical flurry is that it will be vastly more difficult","paragraph_id":"para_832"},{"text":"for the public to access and obtain what belongs to them—public records—with no","paragraph_id":"para_833"},{"text":"legal or even practical justification for it.","paragraph_id":"para_834"},{"text":"__________________","paragraph_id":"para_835"},{"text":"Thomas Clark, pro se.","paragraph_id":"para_836"},{"text":"Dave Yost, Attorney General, and Adam Beckler and Matthew P. 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