[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).
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{¶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
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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.
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