State ex rel. McDougald v. Greene

• Decision Date: 14 July 2020
• Docket Number: No. 2019-0880,2019-0880
• Citation: 2020 Ohio 3686,161 N.E.3d 575,161 Ohio St.3d 130
• Parties: The STATE EX REL. MCDOUGALD v. GREENE.
• Court: Ohio Supreme Court

161 Ohio St.3d 130

161 N.E.3d 575

2020 Ohio 3686

The STATE EX REL. MCDOUGALD

v.GREENE.

No. 2019-0880

Supreme Court of Ohio.

Submitted April 28, 2020

Decided July 14, 2020

Jerone McDougald, pro se.

Dave Yost, Attorney General, and Tracy L. Bradford, Assistant Attorney General, for respondent.

Per Curiam.

{¶ 1} Relator, Jerone McDougald, filed this original action for a writ of mandamus to compel respondent, Larry Greene, the administrative assistant for the warden at the Southern Ohio Correctional Facility ("SOCF"), to produce two public records. For the reasons explained below, we deny the writ as moot and deny McDougald's requests for an award of court costs and for statutory damages. In addition, we deny McDougald's motion for leave to amend his complaint and merit brief.

I. BACKGROUND

{¶ 2} On December 5, 2018, McDougald, who had been an inmate at SOCF, submitted a public-records request for a copy of the Department of Administrative Services's general schedule ("the DAS schedule"). And on February 3, 2019, he submitted a second public-records request for a copy of a report that had been filed by Brian Barney on December 20, 2018, concerning a use-of-force incident involving McDougald ("the Barney report").

{¶ 3} Greene, the SOCF official responsible for responding to inmates' public-records requests, notified McDougald that the Barney report did not exist. The record does not indicate what initial response Greene gave, if any, to McDougald's request for the DAS schedule.

{¶ 4} On June 28, 2019, McDougald filed a complaint for a writ of mandamus in this court alleging that Greene had denied both public-records requests. In Greene's answer, he averred that he had provided the DAS schedule to McDougald on July 22, 2019—after McDougald filed the complaint.

Greene continued to assert that the Barney report did not exist. On September 25, we issued an alternative writ and ordered the parties to file briefs and submit evidence in accordance with S.Ct.Prac.R. 12.05. 157 Ohio St.3d 1414, 2019-Ohio-3797, 131 N.E.3d 949.

{¶ 5} Greene submitted his evidence on October 15, which included his own affidavit. In the affidavit, Greene reiterated that he had provided the DAS schedule to McDougald. Greene also attached a "document receipt," which was dated July 22, 2019, and signed by McDougald acknowledging that he had received a copy of the DAS schedule. Greene also asserted once more that the Barney report did not exist.

{¶ 6} Two weeks later, however, Greene discovered that the Barney report did exist. On October 31, he filed a motion for leave to file newly discovered evidence. The motion stated that Greene's staff had previously searched for a stand-alone file containing the Barney report and had not found one. But on October 31, according to Greene, he discovered the Barney report in a multipage use-of-force report "issued by the Use of Force Committee on April 19, 2018 [sic]."¹ According to the motion, Greene provided the report to McDougald that same day. The motion requested leave to submit an additional affidavit attesting to these facts.

{¶ 7} McDougald filed a motion to strike Greene's motion for leave, and Greene responded with a motion to strike McDougald's motion. We denied both motions to strike and granted Greene's motion for leave to file the additional evidence. 158 Ohio St.3d 1404, 2020-Ohio-371, 139 N.E.3d 908. Greene then filed his supplemental affidavit with the Barney report.

{¶ 8} On February 5, 2020, McDougald filed a motion for leave asking to amend his complaint and merit brief so that he could allege the following additional fact to bolster his request for statutory damages: "[T]hat his public records request kite was hand delivered" to Greene. On February 12, we ordered the parties to brief the following question: "When none of the statutory delivery methods are available to an inmate, does a kite constitute hand delivery?" 158 Ohio St.3d 1404, 2020-Ohio-371, 139 N.E.3d 908. Both parties filed supplemental briefs. On May 21, 2020, we granted Greene's motion for leave to file a corrected brief. 158 Ohio St.3d 1519, 2020-Ohio-3019, 145 N.E.3d 307.

II. LEGAL ANALYSIS

A. The merits of McDougald's public-records case

{¶ 9} Ohio's Public Records Act, R.C. 149.43(B)(1), requires a public office to make copies of public records available to any person on request and within a reasonable period of time. R.C. 149.43(B)(1). Mandamus is an appropriate remedy by which to compel compliance with R.C. 149.43. R.C. 149.43(C)(1)(b) ; State ex rel. Physicians Commt. for Responsible Medicine v. Ohio State Univ. Bd. of Trustees , 108 Ohio St.3d 288, 2006-Ohio-903, 843 N.E.2d 174, ¶ 6. However, producing the requested records to a relator in a public-records mandamus case moots the claim. State ex rel. Glasgow v. Jones , 119 Ohio St.3d 391, 2008-Ohio-4788, 894 N.E.2d 686, ¶ 27.

{¶ 10} Greene submitted his own affidavit and McDougald's signed receipt as evidence to establish that he gave the DAS schedule to McDougald in July 2019. And McDougald has conceded in his merit brief that he received the DAS schedule. Therefore, McDougald's request for a writ of mandamus to compel Greene to provide him with the DAS schedule is moot.

{¶ 11} As for the Barney report, Greene attests in his supplemental affidavit that he located it and promptly turned it over to McDougald. Greene also submitted McDougald's signed acknowledgement that he received a copy of the Barney report. These facts do not seem to be in dispute. Therefore, the mandamus claim seeking the Barney report is also moot.

{¶ 12} We deny McDougald's request for a writ of mandamus as moot.

B. Statutory damages

{¶ 13} A person requesting public records is entitled to an award of statutory damages "if a court determines that the public office or the person responsible for [the] public records failed to comply with an obligation in accordance with division (B) of this section." R.C. 149.43(C)(2). Statutory damages shall be awarded "when a court determines that the public office failed to comply with an obligation to provide access to the records." State ex rel. Rogers v. Dept. of Rehab. & Corr. , 155 Ohio St.3d 545, 2018-Ohio-5111, 122 N.E.3d 1208, ¶ 23. But, even if a relator does not prevail on the mandamus claim, it is still possible for him to receive an award of statutory damages. See, e.g. , State ex rel. Kesterson v. Kent State Univ. , 156 Ohio St.3d 13, 2018-Ohio-5108, 123 N.E.3d 887, ¶ 22 (holding that even though the relator's mandamus claims were moot, an award of statutory damages was warranted nonetheless, because the respondent took an unreasonable length of time to produce the records); Kesterson v. Kent State Univ. , 156 Ohio St.3d 22, 2018-Ohio-5110, 123 N.E.3d 895, ¶ 32 (same).

{¶ 14} A requester may qualify for statutory damages under the current version of R.C. 149.43² only when he "transmits a written request [for the public records] by hand delivery, electronic submission, or certified mail * * * to the public office or person responsible for the requested public records." R.C. 149.43(C)(2). A requester who fails to prove that delivery was accomplished by one of the methods authorized in R.C. 149.43(C)(2) is ineligible to receive an award of statutory damages. See State ex rel. Penland v. Dept. of Rehab. & Corr. , 158 Ohio St.3d 15, 2019-Ohio-4130, 139 N.E.3d 862, ¶ 16 (denying the relator's request for an award of statutory damages under the applicable version of R.C. 149.43 because "no evidence suggest[ed] that [the relator] delivered his request * * * by hand or certified mail"); State ex rel. Hogan-Lovells U.S., L.L.P. v. Dept. of Rehab. & Corr. , 156 Ohio St.3d 56, 2018-Ohio-5133, 123 N.E.3d 928, ¶ 35 (plurality opinion) (concluding that under the applicable version of R.C. 149.43, a public-records request served by e-mail did not support an award of statutory damages). A requester seeking statutory damages must prove the method of delivery by clear and convincing evidence. State ex rel. Martin v. Greene , 156 Ohio St.3d 482, 2019-Ohio-1827, 129 N.E.3d 419, ¶ 9.

1. A prison kite does not constitute hand delivery

{¶ 15} McDougald delivered his public-records requests through the prison's kite system. In his supplemental brief, McDougald argues that "when none of the statutory delivery methods are available to an inmate, a kite constitutes hand delivery."

{¶ 16} The prison's kite system is "the means of two-way communication between all levels of staff and inmates." DRC Policy 50-PAM-02, at 6, https://drc.ohio.gov/Portals/0/Policies/DRC%20Policies/50-PAM-02%20(12-2019).pdf?ver=2019-12-09-140951-550 (accessed May 15, 2020) [https://perma.cc/CE3L-J99N]. In order to submit kites, inmates at SOCF use a form that has been prepared by the Ohio Department of Rehabilitation and Correction ("DRC"). The inmate fills in identifying information on the front of the form and then writes his question, concern, or public-records request on the back of the form. Captain James Whitman, the officer in charge of the mail operations at SOCF, stated in his affidavit attached to Greene's supplemental brief that each cell block has a sealed "Kite Drop-box," into which inmates drop their completed kites. The kite drop boxes are then taken to the mailroom, where the mailroom staff sorts the kites and delivers them to the appropriate recipients.

{¶ 17} "Neither the statute nor case law [construing R.C. 149.43 ] indicates exactly what ‘hand delivery’ means." State ex rel. Carr v. London Corr. Inst. , 144 Ohio St.3d 211, 2015-Ohio-2363, 41 N.E.3d 1203, ¶ 40. Although "hand delivery" does not necessarily require a face-to-face handoff with the ultimate recipient, handing the request to another prison official can be sufficient. Id. According to McDougald's supplemental brief, "a kite constitutes hand delivery as it is a means of two-way communication between all levels of staff within the institution and a kite is handed to institution staff who address any issues an inmate may have ."

(Emphasis...