[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
ex rel. Ware v. Dept. of Rehab. & Corr., Slip Opinion No. 2024-Ohio-1015.]
NOTICE
This slip opinion is subject to formal revision before it is published in an
advance sheet of the Ohio Official Reports. Readers are requested to
promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
South Front Street, Columbus, Ohio 43215, of any typographical or other
formal errors in the opinion, in order that corrections may be made before
the opinion is published.
SLIP OPINION NO. 2024-OHIO-1015
THE STATE EX REL. WARE v. OHIO DEPARTMENT OF REHABILITATION AND
CORRECTION ET AL.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as State ex rel. Ware v. Dept. of Rehab. & Corr., Slip Opinion No.
2024-Ohio-1015.]
Mandamus—R.C. 149.43—Public-records requests—Statutory damages—Writ
granted in part and denied in part—Relator awarded $2,000 in statutory
damages.
(No. 2023-0090—Submitted December 12, 2023—Decided March 21, 2024.)
IN MANDAMUS.
__________________
Per Curiam Opinion announcing the judgment of the court.
{¶ 1} Relator, Kimani Ware, brought this original action requesting a writ
of mandamus ordering the production of public records in response to six public-
records requests. He also seeks awards of statutory damages and court costs.
Respondents are the Ohio Department of Rehabilitation and Correction (“ODRC”),
SUPREME COURT OF OHIO
Trumbull Correctional Institution (“TCI”), and five of TCI’s employees or
independent contractors.1 Respondents have filed a motion to declare Ware a
vexatious litigator, and Ware has filed a motion for leave to file additional evidence
and a motion to strike.
{¶ 2} We grant the writ in part and deny it in part and award Ware $2,000
in statutory damages. We deny Ware’s request for an award of court costs. We
deny respondents’ motion to declare Ware a vexatious litigator, grant Ware’s
motion for leave to file additional evidence, and deny Ware’s motion to strike.
I. BACKGROUND
{¶ 3} Ware is currently incarcerated at the Richland Correctional
Institution. This case involves six public-records requests that Ware allegedly
submitted to respondents between May 29, 2021, and July 23, 2022. At the time of
the requests, Ware was incarcerated at TCI.
{¶ 4} Each of the public-records requests at issue involves distinct facts and
legal issues, and this opinion describes each request in detail below. In summary,
Ware made the following requests:
• May 29, 2021—a request to Glenn Booth, who was TCI’s public-
information officer, for records regarding COVID-19 infections at the
prison;
• October 6, 2021—a request to Booth for a legal-mail log;
• June 3, 2022—a request to the ODRC Bureau of Records Management for
Ware’s inmate master and disciplinary files;
• June 5, 2022—a request to TCI’s religious-services department for an
“informational handbook on religions”;
1. The respondents named in the complaint are Charmaine Bracy, the former warden at TCI; Glenn
Booth, a warden’s assistant and the public-information officer at TCI; Frank Cimmento Jr., a
commissary manager at TCI; Margaret Armstrong, an independent-contractor chaplain at TCI; and
Michael Hickle, a medical supervisor at TCI. Under S.Ct.Prac.R. 4.06(B), Anthony Davis, the
current warden at TCI, is substituted for Bracy as a respondent.
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January Term, 2024
• June 19, 2022—a request to TCI’s commissary department for a “list of
items [for which] prices [were] increased” and a contract regarding
commissary services; and
• July 23, 2022—a request to TCI’s medical department for a copy of the
policy regarding visitors’ COVID-19–vaccination statuses.
Ware avers that he has not received any of the requested documents.
{¶ 5} On January 23, 2023, Ware filed this mandamus action. He requests
a writ of mandamus ordering respondents to provide him with copies of the
requested records. He also requests awards of statutory damages and court costs.
{¶ 6} Respondents filed a motion to dismiss. We denied the motion to
dismiss, granted an alternative writ, and ordered the parties to submit any evidence
they intended to present and briefs. 169 Ohio St.3d 1497, 2023-Ohio-1242, 207
N.E.3d 828.
{¶ 7} Respondents also filed a motion to declare Ware a vexatious litigator.
In response to that motion, Ware filed a motion for leave to file additional evidence
and a supporting affidavit and a motion to strike evidence submitted by respondents
in support of their motion.
II. LEGAL ANALYSIS
A. Ware’s motions
{¶ 8} As an initial matter, we address the two motions filed by Ware in
response to respondents’ motion to declare him a vexatious litigator.
{¶ 9} Ware has submitted a motion for leave to file additional evidence in
response to respondents’ motion. Respondents did not file their motion to declare
Ware a vexatious litigator until after their deadline to submit evidence. We grant
Ware’s motion to submit evidence in response to respondents’ motion, and we
accept as filed the affidavits and exhibits filed by Ware on July 25 and August 11,
2023.
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{¶ 10} Further, respondents have filed in support of their motion an
affidavit of the Portage County Clerk of Courts. Ware has filed a motion to strike
that affidavit, averring that he was not served with the affidavit. Respondents have
not filed a response to Ware’s motion to strike.
{¶ 11} S.Ct.Prac.R. 3.11(E)(1) authorizes a party who has been “adversely
affected” by a failure to serve a document to file a motion to strike the document.
S.Ct.Prac.R. 3.11(E)(2) provides that if this court “determines that service was made
as required by [S.Ct.Prac.R. 3.11(E)] or that service was not made but the movant
was not adversely affected, it may deny the motion to strike.” Here, the affidavit at
issue contains a certificate of service signed by respondents’ counsel stating that the
affidavit was served on Ware by regular U.S. mail. Even if the affidavit was not
actually served on Ware, he has not shown that he was adversely affected by that
failure. We deny Ware’s motion to strike.
B. Legal standards for mandamus claim
{¶ 12} “[U]pon request by any person, a public office or person responsible
for public records shall make copies of the requested public record available to the
requester at cost and within a reasonable period of time.” R.C. 149.43(B)(1). Ware
alleges that regarding each of his public-records requests in this case, respondents
failed to comply with these statutory requirements.
{¶ 13} Mandamus is an appropriate remedy to compel compliance with the
Public Records Act. See R.C. 149.43(C)(1)(b). To be entitled to
a writ of mandamus, Ware must establish a clear legal right to the requested relief
and a clear legal duty on the part of respondents to provide it. State ex rel. Waters
v. Spaeth, 131 Ohio St.3d 55, 2012-Ohio-69, 960 N.E.2d 452, ¶ 6. Unlike relators
in other types of mandamus cases, “[r]elators in public-records mandamus cases
need not establish the lack of an adequate remedy in the ordinary course of law.”
State ex rel. Am. Civ. Liberties Union of Ohio, Inc. v. Cuyahoga Cty. Bd. of
Commrs., 128 Ohio St.3d 256, 2011-Ohio-625, 943 N.E.2d 553, ¶ 24. Ware must
4
January Term, 2024
establish his entitlement to the requested relief by clear and convincing evidence.
State ex rel. Pietrangelo v. Avon Lake, 149 Ohio St.3d 273, 2016-Ohio-5725, 74
N.E.3d 419, ¶ 14.
{¶ 14} Statutory damages shall be awarded to a public-records requester
when the requester “transmit[ted] a written request by hand delivery, electronic
submission, or certified mail” and the public office or person responsible for the
requested records failed to comply with an obligation under the Public Records Act.
R.C. 149.43(C)(2). Ware submitted all six of his public-records requests by the
prison’s electronic-kite system, which constitutes electronic submission for
purposes of R.C. 149.43(C)(2). See State ex rel. Griffin v. Sehlmeyer, 165 Ohio
St.3d 315, 2021-Ohio-1419, 179 N.E.3d 60, ¶ 21. Statutory damages are set at $100
per day for each business day the public office failed to comply with its obligations,
starting with the day the requester filed the mandamus action, with a maximum
award of $1,000. R.C. 149.43(C)(2). Ware filed this action in January 2023.
Under R.C. 149.43(C)(2), Ware is entitled to the maximum $1,000 in statutory
damages for each request for which we order respondents to produce responsive
records.
C. Ware was not required to explicitly call his requests “public records
requests”
{¶ 15} Respondents argue that regarding all of Ware’s public-records
requests, they were not required to respond to them because Ware did not identify
them as formal public-records requests. Rather, Ware wrote, “I request a copy of
[the documents],” or, “This is a request to obtain a copy of the [documents],” or, “I
need a copy of “[the documents].” Respondents argue that these requests were thus
“informal request[s] for information.” Respondents cite no authority for their
assertion that a public-records requester must identify a request as a “formal public
records request,” and we decline to sustain that argument.
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{¶ 16} The Public Records Act contains no provision requiring that a
requester formally label a public-records request as a “formal public records
request,” see R.C. 149.43(B), and a requester is generally not required to cite a
particular rule or statute when making a request, see State ex rel. Parker Bey v.
Byrd, 160 Ohio St.3d 141, 2020-Ohio-2766, 154 N.E.3d 57, ¶ 14; see also State ex
rel. Ware v. Giavasis, 163 Ohio St.3d 359, 2020-Ohio-5453, 170 N.E.3d 788, ¶ 19
(requester who improperly labeled a request for records as a public-records request
when requesting court records that were subject to the Rules of Superintendence
was not prohibited from pursuing the records through the Rules of
Superintendence). Rather, “upon request by any person, a public office or person
responsible for public records shall make copies of the requested public record
available to the requester at cost and within a reasonable period of time.”
R.C. 149.43(B). Ware requested copies of documents, and if those documents were
public records, respondents were required to provide them—regardless of whether
Ware called his request a “formal public records request.”
D. The May 29, 2021 request
{¶ 17} On May 29, 2021, Ware sent an electronic kite to Booth. Booth’s
duties at TCI included acting as the institution’s public-information officer and
responding to inmates’ public-records requests. Ware’s kite stated, “This is a
request to obtain a copy of the documented records of [the] number [of] staff
members and inmates that w[ere] infected with (coronavirus) Covid-19 here at
Trumbull Correction Institution from January 2020 thru January 2021.” Booth
responded to that request on June 6 by kite, stating, “I’ll discuss your information
request this week with you.”
{¶ 18} Ware avers that Booth never provided him with a copy of the
requested records. Booth, however, avers that “Ware was provided” with the record
responsive to the request: a copy of an ODRC fact sheet listing the number of
inmates and staff at each ODRC institution who tested positive for COVID-19
6
January Term, 2024
during a specified period. Respondents have not submitted a copy of that document
as evidence, but they have submitted a similar fact sheet pertaining to a period in
February 2023.
{¶ 19} Ware bears the burden of production to plead and prove facts
showing that he requested public records and that respondents did not make the
records available. Welsh-Huggins v. Jefferson Cty. Prosecutor’s Office, 163 Ohio
St.3d 337, 2020-Ohio-5371, 170 N.E.3d 768, ¶ 26. He also bears the burden of
persuasion to show his entitlement to a writ of mandamus by clear and convincing
evidence. Id. Here, respondents have submitted evidence in the form of Booth’s
affidavit showing that they provided Ware with the records requested in the May
29, 2021 electronic kite, and Ware’s only evidence contradicting respondents’
evidence in that regard is his own affidavit. Absent other supporting evidence,
Ware’s affidavit is insufficient to meet his burden of showing by clear and
convincing evidence that he is entitled to the requested writ. See State ex rel. Ellis
v. Maple Hts. Police Dept., 158 Ohio St.3d 25, 2019-Ohio-4137, 139 N.E.3d 873,
¶ 5-6; State ex rel. Ware v. DeWine, 163 Ohio St.3d 332, 2020-Ohio-5148, 170
N.E.3d 763, ¶ 13, 25. Because Ware has not shown by clear and convincing
evidence that respondents failed to provide the records requested in the May 29,
2021 request, we deny the writ and the request for statutory damages regarding that
request.
{¶ 20} Respondents also argue that we should deny the writ regarding the
May 29, 2021 request because it was a request for information rather than a request
for a specific record. See State ex rel. Morgan v. New Lexington, 112 Ohio St.3d
33, 2006-Ohio-6365, 857 N.E.2d 1208, ¶ 30 (requests for information are improper
public-records requests). Because we conclude that Ware is not entitled to the writ
regarding this request because he has not shown by clear and convincing evidence
that respondents failed to provide the requested records, we need not address this
argument.
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SUPREME COURT OF OHIO
E. The October 6, 2021 request
{¶ 21} On October 6, 2021, Ware sent an electronic kite to Booth requesting
“a copy of [the] 14east logbook for July 16, 2021 for times, 7:30am, 8:00am and
8:30, where mailroom clerk Jennings called for legal mail, for me and it was
log[ged] in [the] 14east logbook.” Booth states that he provided Ware with a copy
of the requested logbook, with information involving other inmates redacted. Ware
states that Booth provided him with “a heavily redacted copy of the logbook” and
that “[t]he times on this record cannot be read by [him].” Ware has not contended
that he raised the issue of the logbook’s legibility with Booth.
{¶ 22} Although Ware and Booth have each submitted as evidence a
document that they purport was the document produced in response to the October
6, 2021 request, the documents submitted by them are not the same. Ware’s version
contains log entries for July 16, 2021, from 12:00 a.m. to 6:06 a.m. All of the
inmate-name information on that document has been redacted. Booth’s version
contains log entries for July 16, 2021, from 4:46 a.m. to 10:16 a.m. The inmate-
name information for the entries at 6:15 a.m., 7:15 a.m., 7:45 a.m., and 8:10 a.m.
has not been redacted, and the information indicates that Ware was directed to
appear in the mailroom at 7:30 a.m., 8:00 a.m., and 8:30 a.m. The remaining
inmate-name information has been redacted.
{¶ 23} Unlike Ware’s May 29, 2021 request for documents relating to
COVID-19, Ware and respondents agree that respondents provided a response to
the October 6, 2021 request. Respondents have submitted as evidence a copy of
the document that they assert was provided to Ware, and they identify Booth as
having provided the document to Ware. In addition, respondents reasonably argue
that if Ware had believed the document was illegible, he would have raised that
issue with Booth when the document was given to him. Ware has not asserted that
he did so. Ware has not shown by clear and convincing evidence that respondents
failed to produce the documents responsive to his October 6, 2021 request.
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January Term, 2024
{¶ 24} We deny the writ and the request for statutory damages regarding
Ware’s October 6, 2021 public-records request.
F. The June 3, 2022 request
{¶ 25} On June 3, 2022, Ware sent an electronic kite to the ODRC Bureau
of Records Management requesting a “copy of [his] master file, and charges and
decisions from [the Rules Infraction Board] disciplinary infraction cases.” An
ODRC employee wrote back, stating, “Please send a kite to OSC BORM Document
Management Records Request.” It is not clear from the record what that
employee’s job title was. On June 6, Ware sent a similar kite to the Bureau of
Records Management, to which the same employee responded, “Please consult
your case manager.” Ware avers that he then spoke with his case manager, who
told him to send a kite to the Bureau of Records Management. Ware avers that he
never received the requested records.
{¶ 26} Respondents do not dispute that Ware’s inmate master and
disciplinary files are public records. Rather, they argue that such files were exempt
from disclosure prior to this court’s decision in State ex rel. Mobley v. Dept. of
Rehab. & Corr., 169 Ohio St.3d 39, 2022-Ohio-1765, 201 N.E.3d 853, which was
decided on June 1, 2022. In Mobley, this court declined to apply to inmate master
files a previous determination that certain records relating to inmates are exempt
from disclosure. See id. at ¶ 12, 14-16, 23-26; see also State ex rel. Hogan Lovells
U.S., L.L.P. v. Dept. of Rehab. & Corr., 165 Ohio St.3d 368, 2021-Ohio-1762, 179
N.E.3d 1150, ¶ 41-42. Respondents argue that most ODRC employees were not
aware of the June 1 Mobley decision when Ware sent his kite on June 3. Even if
this were a valid excuse for not providing responsive records, if respondents
believed that Ware’s master and disciplinary files were exempt from disclosure,
they were required to provide Ware with an explanation, including legal authority,
regarding why the request was being denied. See R.C. 149.43(B)(3). They did not
do so.
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SUPREME COURT OF OHIO
{¶ 27} Respondents also argue that Ware had been required to submit his
records request to Booth, who served as TCI’s public-information officer. The
evidence, however, supports the conclusion that the Bureau of Records
Management served as the records custodian regarding those requested records, and
an ODRC employee even directed Ware to submit his public-records request to the
Bureau of Records Management.
{¶ 28} We grant Ware’s request for a writ of mandamus ordering
respondents to produce records responsive to his June 3, 2022 public-records
request, and we award Ware $1,000 in statutory damages regarding that request.
G. The June 5, 2022 and July 23, 2022 requests
{¶ 29} On June 5, 2022, Ware sent an electronic kite to the religious-
services department at TCI requesting “a copy of ODRC[’s] informational
handbook on religions.” Margaret Armstrong, an independent-contractor chaplain
at TCI, responded, stating, “You can look that up in the regular library.” Ware
avers that the handbook was not in the library and that a librarian told him that he
needed to send a kite to the religious-services department to obtain a copy of the
handbook. Armstrong avers that she is not a public-information officer and that
she does not keep any books in her office other than Bibles.
{¶ 30} On July 23, 2022, Ware sent an electronic kite to the medical
department at TCI requesting a copy of an order concerning whether visitors to the
prison were required to have been vaccinated against or tested for COVID-19
before their visits. Ware also requested any emails related to that order. Michael
Hickle, a medical supervisor at TCI, responded, “You need to send this to the
department that deals with visitation not medical.” Ware avers that Hickle did not
provide any responsive records. Hickle avers that he is not a public-information
officer, and we infer from Hickle’s affidavit that he did not maintain the requested
records.
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January Term, 2024
{¶ 31} Respondents do not dispute that the records requested by Ware are
public records. Rather, they argue that Ware did not submit the requests to the
proper records custodian. Booth, who was TCI’s public-information officer and
was responsible for responding to inmates’ public-records requests, avers that he
had responded to prior public-records requests by Ware and that Ware knew that
the proper internal procedure for public-records requests was to send the requests
to “designated public records officer[s].”
{¶ 32} The June 5, 2022 and July 23, 2022 requests present a similar legal
issue: whether an employee or independent contractor of a public office who is not
responsible for maintaining a particular record and whose duties do not normally
involve responding to public-records requests may properly refer a requester to the
person responsible for the requested record or to where the record may be found or
whether doing so constitutes a denial of the request. The Public Records Act
imposes obligations on “a public office or person responsible for public records.”
R.C. 149.43(B)(1). Although R.C. 149.43 imposes obligations on public offices,
that does not mean that every employee or independent contractor of a public office
who receives a public-records request must directly respond to the request rather
than directing the requester to the custodian of the records within the office. Indeed,
“[a]ll public offices must adopt a public records policy,” but a public office is
required to distribute the policy only to “the employee of the public office who is
the records custodian or records manager or otherwise has custody of the records
of the office.” R.C. 149.43(E)(2). Further, although “all elected officials or their
appropriate designees” are required to attend training on public-records obligations
that has been approved by the attorney general, not all public employees or
independent contractors are required to attend such training. See
R.C. 149.43(E)(1).
{¶ 33} We conclude that a public office complies with the Public Records
Act when an employee or independent contractor of the office who is not
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responsible for a public record directs the requester to the proper records custodian
or to where the record may be located. To interpret R.C. 149.43 to the contrary
would mean that a person could make a request to any public employee or
independent contractor—for example, a groundskeeper or a maintenance
technician—and if that person then directed the requester to the custodian of the
requested records or to where the records could be located, the public office would
be deemed to have denied the request.
{¶ 34} Here, Ware submitted his June 5 and July 23 requests, respectively,
to an independent contractor and an employee of TCI, neither of whom were
custodians of the requested records. They each referred Ware to the departments
through which they believed the records could be obtained. Because Ware did not
submit these two requests to the proper records custodians, and because the
independent contractor and the employee each referred Ware to the departments
through which they believed the records could be obtained (or to the persons whom
they believed were the records custodians), we deny the writ and the request for
statutory damages regarding these requests.
H. The June 19, 2022 request
{¶ 35} On June 19, 2022, Ware sent an electronic kite to Frank Cimmento
Jr., a commissary manager at TCI, requesting a copy of the list of items for which
the prices had increased from January 1, 2022, through June 15, 2022, and a copy
of the contract between the company that provided the commissary services and
TCI or ODRC. Cimmento referred the matter to Booth. Booth responded to the
request, telling Ware that he had spoken to a cashier supervisor and been informed
that “the commissary pricing and contract specifics [were] maintained [by] the
Operations Support Center.” Booth provided Ware with the name of a “point of
contact” at the Operations Support Center. Ware avers that he never received the
requested records.
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January Term, 2024
{¶ 36} Respondents do not dispute that the commissary pricing list and
contract are public records. They argue only that they were not required to produce
the records because Ware did not submit his request to the custodian of the records.
Cimmento avers that he did not normally receive public-records requests, and we
interpret his affidavit as asserting that he was not responsible for maintaining the
records. In contrast to Armstrong and Hickle, however, Cimmento did not respond
directly to Ware. Instead, he forwarded the request to Booth. Booth served as the
public-information officer at TCI, and respondents assert that he was the employee
to whom Ware should have made his requests. But instead of producing the
requested records to Ware, Booth referred Ware to yet another employee.
Respondent TCI was thus aware of this request, and it did not provide the requested
records as it was obligated to do.
{¶ 37} We grant Ware’s request for a writ of mandamus ordering
respondents to produce records responsive to his June 19, 2022 public-records
request, and we award Ware $1,000 in statutory damages regarding that request.
I. Statutory damages and intent
{¶ 38} In response to Ware’s requests for statutory damages, respondents
argue that statutory damages should be denied because, in their view, Ware made
the public-records requests while specifically desiring that they be denied,
presumably so that he could receive statutory damages.
{¶ 39} In support of that argument, respondents quote Rhodes v. New
Philadelphia, 129 Ohio St.3d 304, 2011-Ohio-3279, 951 N.E.2d 782, ¶ 27, for the
proposition that “ ‘[w]hen a party requests access to public records with the specific
desire for access to be denied, it cannot be said that the party is using the request in
order to access public records; he is only feigning that intent.’ ” Rhodes involved
a civil action filed pursuant to R.C. 149.351 alleging a city’s improper destruction
of public records. Id. at ¶ 13. But “Rhodes * * * is not apposite to a claim for
statutory damages under R.C. 149.43(C)(1).” State ex rel. DiFranco v. S. Euclid,
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SUPREME COURT OF OHIO
138 Ohio St.3d 367, 2014-Ohio-538, 7 N.E.3d 1136, ¶ 27, superseded by statute on
other grounds as stated in State ex rel. Cincinnati Enquirer v. Cincinnati, 157 Ohio
St.3d 290, 2019-Ohio-3876, 135 N.E.3d 772. “The statutory language leaves no
room for a determination that damages may be denied based on an inquiry into the
requester’s state of mind.” Id. Even if Ware made his public-records requests with
the desire that they be denied, that would not affect his entitlement to statutory
damages here.
J. Court costs
{¶ 40} Ware also requests an award of court costs pursuant to
R.C. 149.43(C). Ware filed an affidavit of indigency in this matter, so there are no
court costs to award. See State ex rel. Woods v. Lawrence Cty. Sheriff’s Office, 171
Ohio St.3d 238, 2023-Ohio-1241, 216 N.E.3d 663, ¶ 12.
K. Respondents’ motion to declare Ware a vexatious litigator
{¶ 41} On June 23, 2023—after respondents filed their merit brief and after
Ware’s reply brief was due—respondents moved this court to declare Ware a
vexatious litigator under S.Ct.Prac.R. 4.03(B). We deny that motion.
{¶ 42} We may declare a party a vexatious litigator if the party “habitually,
persistently, and without reasonable cause engages in frivolous conduct under
division (A) of this rule.” S.Ct.Prac.R. 4.03(B). “An appeal or other action shall
be considered frivolous if it is not reasonably well-grounded in fact or warranted
by existing law or a good-faith argument for the extension, modification, or reversal
of existing law.” S.Ct.Prac.R. 4.03(A).
{¶ 43} In their motion, respondents argue that we should declare Ware a
vexatious litigator because he has filed numerous allegedly frivolous actions or
appeals since 2018, most of them involving requests for public records.
Respondents point to 15 actions or appeals that Ware filed in this court and 13
actions or appeals that he filed in other courts. Respondents have not, however,
shown that these actions or appeals were frivolous. Based on information in
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January Term, 2024
respondents’ own chart in its motion, Ware was granted some form of relief in five
of the cases he filed in this court. Ware was also granted some form of relief in
three of the cases filed in the lower courts. And respondents do not cite any decision
in which Ware’s claims were found to have been frivolous.
{¶ 44} In this case, we are ordering respondents to produce records and
awarding statutory damages regarding two of Ware’s six public-records requests.
Respondents have not shown that Ware has “habitually, persistently, and without
reasonable cause engage[d] in frivolous conduct,” S.Ct.Prac.R. 4.03(B).
{¶ 45} After respondents filed their motion to declare Ware a vexatious
litigator, they filed three sets of affidavits as evidence in support of the motion.
Their motion does not discuss these affidavits, and they did not file a supplemental
memorandum discussing the affidavits.
{¶ 46} Respondents’ affidavits in support of their motion are from
employees of county-clerk-of-courts offices and county-prosecutor offices. The
affiants generally indicate or allege that Ware has been dishonest with the courts in
many of his public-records cases. In many of those cases, Ware asserted that he
had sent a public-records request by certified mail. Affiants allege that in some of
those cases, Ware did not actually include a public-records request in the certified-
mail envelope. Instead, they allege, Ware placed an unrelated document—such as
a copy of a judgment entry—into the envelope. Respondents indicate that Ware
used the certified-mail tracking number and the signed receipt slip as evidence that
he had sent a public-records request by certified mail when he had not.
{¶ 47} For example, Stark County Assistant Prosecuting Attorney Aaron J.
Violand avers that on April 12, 2022, he witnessed another attorney open a
certified-mail envelope from Ware. They photographed the envelope and what had
been inside it—a court filing titled “Respondents’ Evidence.” Ware later filed a
mandamus action in the Fifth District Court of Appeals in which he claimed that he
had mailed a public-records request to the Stark County Prosecuting Attorney’s
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Office requesting copies of the office’s roster and budget. The certified-mail
receipt that Ware attached to the complaint as evidence contained the same
certified-mail number as the certified-mail label on the envelope that Violand had
witnessed being opened on April 12. Other of the affiants aver to having received
similar mailings from Ware. And multiple clerks-office employees aver that their
offices maintain detailed logs of public-records requests but that they have no
record of receiving certain requests allegedly sent to them by Ware. One affiant
cites a decision of the Eighth District Court of Appeals in which Ware was
admonished for altering an affidavit—State ex rel. Ware v. Byrd, 8th Dist.
Cuyahoga No. 110865, 2022-Ohio-1175, ¶ 9-11, 15.
{¶ 48} The evidence presented in the affidavits supporting respondents’
motion to declare Ware a vexatious litigator plausibly supports the allegations that
Ware routinely lied in affidavits and court filings regarding whether he had sent
public-records requests by certified mail. These allegations are concerning.
However, Ware did not submit any of the public-records requests at issue in this
case by certified mail. Thus, the allegations relating to respondents’ vexatious-
litigator motion do not touch directly on Ware’s actions in this case. Further,
respondents filed the supporting affidavits after they filed their motion to declare
Ware a vexatious litigator, and respondents have not described the affidavits or
discussed their import in this case. Therefore, we deny respondents’ motion to
declare Ware a vexatious litigator. But we do not foreclose the possibility of
granting such a motion in a different case.
III. CONCLUSION
{¶ 49} Ware is entitled to relief regarding some, but not all, of his public-
records requests. We grant Ware’s request for a writ of mandamus ordering
respondents to produce records responsive to his June 3, 2022 and June 19, 2022
public-records requests. We deny his request for a writ of mandamus regarding his
May 29, 2021; October 6, 2021; June 5, 2022; and July 23, 2022 requests. We
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January Term, 2024
award Ware $2,000 in statutory damages but deny his request for an award of court
costs.
{¶ 50} We grant Ware’s motion for leave to file additional evidence and
admit the affidavits and attachments that he filed on July 25, 2023, and August 11,
2023. We deny Ware’s motion to strike. And we deny respondents’ motion to
declare Ware a vexatious litigator.
Writ granted in part
and denied in part.
DONNELLY, STEWART, and BRUNNER, JJ., concur.
KENNEDY, C.J., concurs in judgment only.
FISCHER, J., concurs in part and dissents in part and would grant
respondents’ motion to declare Ware a vexatious litigator and concurs in Justice
DeWine’s separate opinion except for paragraphs 57-59.
DEWINE, J., concurs in part and dissents in part, with an opinion joined by
DETERS, J.
_________________
DEWINE, J., concurring in part and dissenting in part.
{¶ 51} I agree with the lead opinion that Ware is not entitled to a writ of
mandamus as to four of his purported public-records requests. But I dissent from
the decision to grant Ware a writ of mandamus and award him statutory damages
for his June 3 and 19, 2022 requests.
June 3 and 19, 2022 Requests
{¶ 52} The Public Records Act states that upon request “a public office or
person responsible for public records shall make copies of the requested public
record available to the requester.” R.C. 149.43(B)(1). Here, it is undisputed that
Trumbull Correctional Institution (“TCI”) designated Glenn Booth, a warden’s
assistant and TCI’s public-information officer, as the person responsible for
handling public-records requests on its behalf.
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{¶ 53} There is nothing unreasonable or unlawful about a prison
establishing a point of contact who is responsible for responding to public-
information requests. Indeed, one can hardly imagine any other way for an
institution to manage such requests. Surely, a prisoner in a meal line cannot ask a
cafeteria worker for a copy of the prisoner’s file and expect to recover statutory
damages if the worker does not comply. See State ex rel. Ware v. Wine, 169 Ohio
St.3d 791, 2022-Ohio-4472, 207 N.E.3d 807, ¶ 25 (DeWine, J., concurring in part
and concurring in the judgment). Ware’s theory seems to be that he can ask any
employee for any piece of paper without indicating that he is asking for a public
record, and if that employee fails to provide the document, he can recover damages
under the Public Records Act. But the plain terms of the statute—which obligates
the “public office or person responsible for public records” to produce records in
their custody upon request—contradict Ware’s broad and unworkable reading.
R.C. 149.43(B)(1).
{¶ 54} It is also undisputed that Ware knew that TCI had designated Booth
to handle public-records requests. See also State ex rel. Ware v. Beggs, __ Ohio
St.3d __, 2024-Ohio-611, __ N.E.3d __, ¶ 3, fn. 1 (“[T]hroughout his history of
filing public-records requests, Ware has shown that he knows how to identify the
person responsible for public records”). We have denied Ware relief in the past
because prison officials had told him to submit public-records requests to Booth
but he failed to do so. See, e.g., Wine at ¶ 9 (lead opinion); see also State ex rel.
Griffin v. Doe, 165 Ohio St.3d 577, 2021-Ohio-3626, 180 N.E.3d 1123, ¶ 8
(denying writ because relator did not establish that he sent his public-records
request to the person responsible for such requests at the Adult Parole Authority);
State ex rel. Griffin v. Szoke, __ Ohio St.3d __, 2023-Ohio-3096, __ N.E.3d __, ¶ 9.
I would deny the writ for the June 3, 2022 request because Ware did not submit that
request to Booth, despite being fully aware that Booth is the person responsible for
making TCI’s public records available.
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January Term, 2024
{¶ 55} As to the June 19 request, Ware alleged in his complaint that Frank
Cimmento Jr., the TCI commissary manager, denied that request by failing to
provide him with certain commissary records. In that instance, Ware again failed
to direct his request to Booth, sending it to Cimmento instead. Cimmento
forwarded the request to Booth. And Booth gave Ware specific instructions about
how to obtain the information he had requested. Booth advised Ware that
commissary-pricing and commissary-contract information was maintained by the
Department of Rehabilitation and Correction’s Operations Support Center (a unit
of the department outside of TCI). Booth provided Ware a specific point of contact
at that facility: “Walt Woodruff, Operations Support Center, Office of
Administration, Commissary and Cashier Support.” There is no evidence that Ware
ever contacted Woodruff.
{¶ 56} We have held that a public office does not violate the Public Records
Act when it refers the requester to the appropriate office to obtain the requested
documents. State ex rel. Frank v. Ohio State Univ., 161 Ohio St.3d 112, 2020-
Ohio-3422, 161 N.E.3d 559, ¶ 11-12; see also Wine, 169 Ohio St.3d 791, 2022-
Ohio-4472, 207 N.E.3d 807, at ¶ 9 (lead opinion). Thus, I would deny the writ as
to the June 19 request.
Request to Declare Ware a Vexatious Litigator
{¶ 57} I reluctantly concur in this court’s decision not to declare Ware a
vexatious litigator in this case. There is mounting evidence that Ware is abusing
the litigation system in order to harass public officials and obtain statutory damages.
The affidavits filed in this case suggest that Ware routinely makes false allegations
to obtain damages under the Public Records Act.
{¶ 58} At least five recent decisions issued by Ohio’s courts of appeals
corroborate these allegations. They suggest that Ware does not tell the truth under
oath and that he uses a scheme to obtain statutory damages: mail a random
document to a public office, note his envelope’s tracking number, and then seek a
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writ of mandamus plus damages by attaching a fabricated public-records request to
the complaint and alleging that it had been ignored. See State ex rel. Ware v. Byrd,
8th Dist. Cuyahoga No. 112488, 2023-Ohio-3158, ¶ 27; State ex rel. Ware v. Stone,
5th Dist. Stark No. 2023CA00066, 2023-Ohio-3865, ¶ 10-13; State ex rel. Ware v.
Walsh, 9th Dist. Summit No. 30051, 2021-Ohio-4585, ¶ 21; State ex rel. Ware v.
Fankhauser, 11th Dist. Portage No. 2023-P-0030, 2023-Ohio-3939, ¶ 16-18, 20-
29; State ex rel. Ware v. Byrd, 8th Dist. Cuyahoga No. 110865, 2022-Ohio-1175,
¶ 10. Indeed, Ware engaged in such fraudulent conduct in at least one prior lawsuit
in this court. See State ex rel. Ware v. Crawford, 167 Ohio St.3d 453, 2022-Ohio-
295, 194 N.E.3d 323, ¶ 20-21 (lead opinion); id. at ¶ 66-72 (DeWine, J. dissenting).
{¶ 59} The facts of this case, however, do not establish that Ware employed
such a scheme here. So it is best to defer consideration of the appropriateness of
sanctions to a case that squarely presents allegations that Ware engaged in fraud in
the case. See 172 Ohio St.3d 1473, 2024-Ohio-202, 225 N.E.3d 1052 (Jan. 24,
2024, case announcement in case No. 2023-1354, State ex rel. Ware v. Vigluicci,
stating, “[P]arties ordered to address in their briefs, and permitted to present
evidence as to, whether relator should be sanctioned under R.C. 2323.51, Civ.R. 11,
and/or S.Ct.Prac.R. 4.03(B)”).
In Forma Pauperis Status
{¶ 60} I would require, however, that the clerk of this court not allow Ware
to proceed in future cases without paying the court filing fee unless he adequately
shows that he is entitled to do so. Specifically, if Ware requests waiver of a filing
fee, I would require him to submit an affidavit showing his certified prison-account
balance for each of the previous six months.
{¶ 61} Today, this court awards Ware $2,000 in statutory damages. Since
2021, Ware has been awarded an additional $6,700 in statutory damages by this
court. See State ex rel. Ware v. Akron, 164 Ohio St.3d 557, 2021-Ohio-624, 174
N.E.3d 724, ¶ 24 (awarding $1,000 in statutory damages); Crawford, 167 Ohio
20
January Term, 2024
St.3d 453, 2022-Ohio-295, 194 N.E.3d 323, at ¶ 26 (awarding $1,000 in statutory
damages); Wine, 169 Ohio St.3d 791, 2022-Ohio-4472, 207 N.E.3d 807, at ¶ 17
(awarding $3,000 in statutory damages); State ex rel. Ware v. Parikh, 172 Ohio
St.3d 515, 2023-Ohio-759, 225 N.E.3d 911, ¶ 17 (awarding $1,000 in statutory
damages); State ex rel. Ware v. Parikh, 172 Ohio St.3d 49, 2023-Ohio-2536, 221
N.E.3d 835, ¶ 34 (affirming grant of $700 in statutory damages). Yet, when Ware
filed the instant action, he obtained a waiver of the filing fee by submitting an
affidavit attesting that he did not “have the adequate funds * * * to offer as payment
for the filing of this action.” Given the substantial damages that have been awarded
to Ware in recent years, it is fair to ask for confirmation of the veracity of Ware’s
declaration.
{¶ 62} Ware is a frequent filer, not only in this court, but in various other
courts across Ohio. Indeed, in a July 2023 affidavit filed in another action, Ware
attested that he had filed 38 other civil actions in the preceding five years, almost
all of which asserted public-records-mandamus claims. See Stone, 2023-Ohio-
3865 (July 3, 2023). Interestingly though, a review of the public dockets for other
lawsuits filed by Ware in Ohio’s courts of appeals indicates that Ware has not
sought to waive the filing fees in at least three recent cases. See, e.g., State ex rel.
Ware v. Dept. of Rehab. & Corr., 10th Dist. Franklin No. 23AP-18, 2024-Ohio-47
(Jan. 10, 2023); Stone, 2023-Ohio-3865 (July 3, 2023); State ex rel. Ware v.
Rhodes, 10th Dist. Franklin No. 22AP-59, 2023-Ohio-2400 (Jan. 25, 2022). There
may well be good reason. For an action filed in a court of appeals, when “an inmate
who files a civil action * * * against a government entity seeks a waiver of the
prepayment of the full filing fees,” the inmate must submit an affidavit that, among
other things, “sets forth the balance in the inmate account of the inmate for each of
the preceding six months, as certified by the institutional cashier.”
R.C. 2969.25(C). By its terms, this provision does not apply to original actions
filed in this court. See id; R.C. 2969.21(B)(1)(a). So one has to wonder: Does
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Ware claim indigent status in this court, but not in the courts of appeals, because he
may do so here without providing an affidavit showing the balance of his inmate
account?
{¶ 63} Ware has made an enterprise out of the serial filing of public-records
requests and then suing for statutory damages. He takes a shotgun approach—
making multiple requests to a wide variety of public offices and individuals and
then following up with lawsuits. Ware has a low batting average, but he has eked
out a few hits. Most of his claims have been deemed meritless,2 but the volume of
his requests and lawsuits has also resulted in a handful of damages awards. The
law entitles Ware to ask for public records, and it allows him to sue for statutory
damages if access to public records is wrongfully denied. See R.C. 149.43(C)(2).
But unless Ware is truly entitled to indigent status, the law does not require
2. See, e.g., State ex rel. Ware v. Beggs, __ Ohio St.3d __, 2024-Ohio-611, __ N.E.3d __, ¶ 2-6, 20
(denying relief as to two alleged public-records violations); State ex rel. Ware v. Bratton, 10th Dist.
Franklin No. 20AP-347, 2024-Ohio-260, ¶ 11, 16 (denying relief as to one alleged public-records
violation); Dept. of Rehab. & Corr., 2024-Ohio-47, at ¶ 9 (denying relief as to two alleged public-
records violations); Byrd, 2023-Ohio-3158, at ¶ 31 (denying relief as to four alleged public-records
violations); State ex rel. Ware v. Bryant, 171 Ohio St.3d 1401, 2023-Ohio-2861, 215 N.E.3d 549
(denying relief as to two public-records violations); Parikh, 2023-Ohio-2536, at ¶ 1-3, 34 (affirming
judgment denying writ as to ten alleged public-records violations but awarding $700 in statutory
damages); Parikh, 2023-Ohio-759, at ¶ 1-2, 17 (granting writ as to one of two alleged public-records
violations); State ex rel. Ware v. Kurt, 9th Dist. Summit No. 29622, 2023-Ohio-202, ¶ 7, 37
(denying relief as to ten alleged public-records violations); State ex rel. Ware v. Bur. of Sentence
Computation, 10th Dist. Franklin No. 21AP-419, 2022-Ohio-3562, ¶ 3, 4 (granting partial writ as to
one alleged public-records violation); Wine at ¶ 1, 12, 17 (granting writ as to three of six alleged
public-records violations); Crawford at ¶ 2 (granting writ as to one of two alleged public-records
violations); Walsh, 2021-Ohio-4585, at ¶ 1, 12, 22 (denying relief as to one alleged public-records
violation); State ex rel. Ware v. Andrews, 11th Dist. Lake No. 2020-L-043, 2021-Ohio-4257, ¶ 21-
22 (denying writ as to seven alleged public-records violations but awarding $1,000 in statutory
damages); Akron, 164 Ohio St.3d 557, 2021-Ohio-624, 174 N.E.3d 724, at ¶ 2, 24 (granting writ as
to one of two alleged public-records violations); State ex rel. Ware v. Giavasis, 163 Ohio St.3d 359,
2020-Ohio-5453, 170 N.E.3d 788, ¶ 1, 34 (denying relief as to seven alleged public-records
violations); State ex rel. Ware v. DeWine, 163 Ohio St.3d 332, 2020-Ohio-5148, 170 N.E.3d 763,
¶ 1-2, 26 (affirming judgment denying relief as to one alleged public-records violation); State ex rel.
Ware v. Bur. of Sentence Computation Office, 10th Dist. Franklin No. 19AP-841, 2020-Ohio-2695,
¶ 15 (denying relief as to two alleged public-records violations); State ex rel. Ware v. Ferrero, 5th
Dist. Stark No. 2019CA00079, 2019-Ohio-3849, ¶ 1, 8 (denying relief as to one alleged public-
records violation).
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January Term, 2024
taxpayers to fund his enterprise. If he has the funds to do so, he must pay the same
filing fees as any other litigant. Thus, I would take the modest step of requiring
Ware to submit a certified statement of his inmate-account balance before the clerk
of this may grant him a waiver of filing fees in any future action.
Conclusion
{¶ 64} I would deny Ware’s request for a writ of mandamus in its entirety
and deny his request for statutory damages. I would also require Ware to submit a
certified statement of his inmate-account balance for each of the previous six
months before the clerk of this court may grant him a waiver of the filing fee in any
future action. To the extent that this court does otherwise, I dissent from that
portion of the judgment.
FISCHER, J., concurs in the foregoing opinion except for paragraphs 57-59.
DETERS, J., concurs in the foregoing opinion.
_________________
Kimani E. Ware, pro se.
Dave Yost, Attorney General, and John H. Bates, Assistant Attorney
General, for respondents.
_________________
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