State ex rel. Ware v. Fankhauser

2022 Ohio 172

• Court: Ohio Court of Appeals
• Decided: January 24, 2022
• Docket: 2021-P-0056
• Status: Published

Opinion

[Cite as State ex rel. Ware v. Fankhauser, 2022-Ohio-172.]

IN THE COURT OF APPEALS OF OHIO ELEVENTH APPELLATE DISTRICT PORTAGE COUNTY

STATE OF OHIO ex rel. CASE NO. 2021-P-0056 KIMANI E. WARE,

Relator, Original Action for Writ of Mandamus

-v-

JILL FANKHAUSER, PORTAGE COUNTY CLERK OF COURTS,

Respondent.

PER CURIAM OPINION

Decided: January 24, 2022 Judgment: Petition denied

Kimani E. Ware, pro se, PID# A470-743, Trumbull Correctional Institution, 5701 Burnett Road, P.O. Box 901, Leavittsburg, OH 44430 (Relator).

Victor V. Vigluicci, Portage County Prosecutor, and Christopher J. Meduri, Assistant Prosecutor, 241 South Chestnut Street, Ravenna, OH 44266 (For Respondent).

PER CURIAM.

{¶1} Pending before this court are: Relator, Kimani E. Ware’s, Motion for

Summary Judgment filed on September 7, 2021; Respondent, Jill Fankhauser’s, Motion

for Summary Judgment filed on November 10, 2021; and Ware’s Reply to Fankhauser’s

Motion for Summary Judgment filed on December 6, 2021.

{¶2} On June 7, 2021, Ware filed a Verified Complaint for Writ of Mandamus

pursuant to R.C. Chapter 149.43, Ohio’s Public Records Act, seeking a writ of mandamus to compel Fankhauser to comply with records requests sent by certified mail to the

Portage County Clerk of Courts on January 27, 2020. Ware further sought court costs

and statutory damages.

{¶3} On August 18, 2021, during the pendency of this action, Fankhauser

complied with the public records requests thereby mooting Ware’s claim for a writ of

mandamus while the claims for statutory damages and court costs remained pending.

State ex rel. Frank v. Clermont Cty. Prosecutor, 164 Ohio St.3d 552, 2021-Ohio-623, 174

N.E.3d 718, ¶ 15 and 17.

{¶4} Ware seeks judgment in his favor as to statutory damages and court costs.

Fankhauser raises no argument in opposition to the claim for statutory damages but

denies that Ware is entitled to court costs.

{¶5} “The Public Records Act provides for awards of attorney fees, statutory

damages, and court costs under certain circumstances.” Id. at ¶ 17. A “requester [of

public records] shall be entitled to recover the amount of statutory damages set forth in

this division if a court determines that the public office or the person responsible for public

records failed to comply with an obligation in accordance with division (B) of this section,”

i.e., “all public records responsive to the request shall be promptly prepared and made

available for inspection to the requester.” R.C. 149.43(C)(2) and (B)(1). “The amount of

statutory damages shall be fixed at one hundred dollars for each business day during

which the public office or person responsible for the requested public records failed to

comply with an obligation in accordance with division (B) of this section, beginning with

the day on which the requester files a mandamus action to recovery statutory damages,

up to a maximum of one thousand dollars.” R.C. 149.43(C)(2).

Case No. 2021-P-0056 {¶6} In the present case, seventy-two days passed between the filing of the

Complaint for Mandamus on June 7 and the fulfillment of the requests on August 18.

Accordingly, Ware is entitled to the statutory maximum of one thousand dollars in

damages.

{¶7} A court may award court costs if it determines that the public office or the

person responsible for public records has acted in “bad faith.” Frank at ¶ 17; R.C.

149.43(C)(3)(a)(ii) (“[i]f the court makes a determination [of bad faith], the court shall

determine and award to the relator all court costs, which shall be construed as remedial

and not punitive”). Stated otherwise, the court must determine that “[t]he public office or

the person responsible for the public records acted in bad faith when the office or person

voluntarily made the public records available to the relator for the first time after the relator

commenced the mandamus action, but before the court issued any order concluding

whether or not the public office or person was required to comply with division (B) of this

section.” R.C. 149.43(C)(3)(b)(iii).

{¶8} For the purposes of the Public Records Act, “‘bad faith’ generally implies

something more than bad judgment or negligence,” rather, it “imports a dishonest

purpose, moral obliquity, conscious wrongdoing, breach of a known duty through some

ulterior motive or ill will partaking of the nature of fraud” and “embraces actual intent to

mislead or deceive another.” (Citations omitted.) State ex rel. McDougald v. Greene,

161 Ohio St.3d 130, 2020-Ohio-3686, 161 N.E.3d 575, ¶ 26.

{¶9} Based on the evidence before this court, we conclude that Fankhauser

acted in bad faith in that she consciously disregarded Ware’s records requests for over a

year before voluntarily complying. The initial requests were made on January 27, 2020

Case No. 2021-P-0056 and submitted to the Portage County Clerk of Courts at 203 West Main Street, Ravenna,

Ohio by certified mail. The return receipt indicated delivery on January 31, 2020. On

February 10, 2020, the records requests were mailed back to Ware without explanation.

On February 12 and March 12, 2020, Ware wrote to the Clerk of Courts inquiring about

his records requests but received no response. On June 7, 2021, Ware filed the

Complaint for Mandamus, and, on August 18, 2021, Fankhauser complied with the

records requests – over a year and a half after receiving the initial requests. Fankhauser

does not challenge the documentary evidence submitted by Ware and has not proffered

any explanation for the delay in responding to the requests. Accordingly, we find that

Ware is entitled to court costs. Compare State ex rel. Hogan Lovells U.S., L.L.C. v. Dept.

of Rehab. & Corr., 156 Ohio St.3d 56, 2018-Ohio-5133, 123 N.E.3d 928, ¶ 33 and 46

(court costs awarded where there was a ten-month delay in responding to the public

records request).

{¶10} It is the judgment of this court that Ware’s Motion for Summary Judgment is

granted, and Fankhauser’s Motion for Summary Judgment is denied. Ware is awarded

statutory damages in the amount of $1,000 and Fankhauser is ordered to pay all court

costs. Ware’s petition for a writ of mandamus is denied as moot.

THOMAS R. WRIGHT, P.J., CYNTHIA WESTCOTT RICE, J., MATT LYNCH, J., concur.

Case No. 2021-P-0056