State ex rel. Ware v. Galonski

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
ex rel. Ware v. Galonski, Slip Opinion No. 2024-Ohio-1064.]

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-1064
THE STATE EX REL. WARE, APPELLANT, v. GALONSKI,1 CLERK, APPELLEE.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as State ex rel. Ware v. Galonski, Slip Opinion No.
2024-Ohio-1064.]
Mandamus—Public Records Act—Statutory damages—On remand, court of
appeals correctly held that requester was not entitled to statutory
damages—Requester failed to prove by clear and convincing evidence that
he delivered public-records requests by certified mail—Court of appeals’
judgment affirmed.
(No. 2023-0268—Submitted November 14, 2023—Decided March 26, 2024.)
APPEAL from the Court of Appeals for Summit County, No. 29622,
2023-Ohio-202.
__________________

1. Ware asserted his claim against Sandra Kurt, who was the Summit County clerk of courts when
the complaint was filed. The current clerk, Tavia Galonski, is automatically substituted as a party
to this action under S.Ct.Prac.R. 4.06(B).
 SUPREME COURT OF OHIO

Per Curiam.
{¶ 1} The Ninth District Court of Appeals has twice denied appellant,
Kimani Ware, an inmate at the Richland Correctional Institution, a writ of
mandamus ordering appellee, Summit County Clerk of Courts Tavia Galonski, to
produce certain records under the Public Records Act, R.C. 149.43. After the Ninth
District’s first denial of the requested writ, see State ex rel. Ware v. Kurt, 2021-
Ohio-2025, 173 N.E.3d 1268 (9th Dist.), we held that the Ninth District erred in
applying the Rules of Superintendence for the Courts of Ohio as a basis for denying
mandamus relief, State ex rel. Ware v. Kurt, 169 Ohio St.3d 223, 2022-Ohio-1627,
203 N.E.3d 665, ¶ 14-17. We remanded the case to the Ninth District for it to
determine whether Ware was entitled to relief under the Public Records Act. Id. at
¶ 31.
{¶ 2} On remand, the Ninth District determined that Ware was not entitled
to relief under R.C. 149.43 and again denied the writ. 2023-Ohio-202, ¶ 37. Ware
appeals to this court once again. For the following reasons, we affirm the Ninth
District’s judgment.
FACTS AND PROCEDURAL BACKGROUND
{¶ 3} In December 2019, Ware filed a complaint for a writ of mandamus
under R.C. 149.43(C)(1)(b), asking the Ninth District to order the Summit County
clerk of courts to produce certain public records. Ware alleged in his complaint
that he transmitted numerous public-records requests in January 2019 by certified
mail to the clerk’s office. According to Ware, he sent ten public-records requests,
each seeking multiple documents, for a total of 37 different requested documents.
Ware sought documents related to clerk’s office employees, policies, and budget
information, as well as grand-jury reports, certain oaths of office, dockets for a
specific judge for a specified period, and the transcript of a 9-1-1 call from his own
criminal case. Ware alleged that the clerk did not respond to his requests, and he

2
 January Term, 2024

sought statutory damages under R.C. 149.43(C)(2) for the clerk’s alleged failure to
produce the requested documents.
{¶ 4} The clerk filed an answer and a motion for summary judgment. In her
motion, the clerk argued that the complaint should be dismissed as moot because
she either had provided Ware with the requested documents or explained why she
was unable to do so. Ware also moved for summary judgment. Ware conceded
that he received some of the requested documents after filing his mandamus
complaint, but he maintained that the clerk failed to provide everything that he had
requested. Ware also asserted that he was entitled to statutory damages because the
clerk had acted in bad faith by ignoring his January 2019 public-records requests
and by failing to promptly provide all the requested documents.
{¶ 5} The Ninth District granted summary judgment in the clerk’s favor,
holding that the Rules of Superintendence, not the Public Records Act, was the
proper vehicle by which to obtain all the documents that Ware had requested except
for one. As to that one document—the transcript of the 9-1-1 call—the Ninth
District determined that Ware was not entitled to mandamus relief for two reasons:
(1) the clerk did not have possession of the transcript and had informed Ware of
that fact and (2) Ware was not otherwise entitled to the transcript even if the clerk
did have it, because Ware had failed to obtain authorization from his sentencing
judge to request that document, as required by R.C. 149.43(B)(8). Accordingly,
the Ninth District concluded that the clerk had no obligation to provide the
transcript to Ware under R.C. 149.43.
{¶ 6} The Ninth District also denied Ware’s request for statutory damages
he sought under R.C. 149.43(C)(2). The court found that Ware was not entitled to
damages for the documents that it determined were subject to Sup.R. 44 through
47, because the Rules of Superintendence do not authorize statutory damages. As
to the transcript of the 9-1-1 call, the Ninth District denied statutory damages after

3
 SUPREME COURT OF OHIO

finding that the clerk had no obligation to provide that document under R.C.
149.43(B).
{¶ 7} On appeal, we agreed with the Ninth District’s determination that
Ware was not entitled to the transcript of the 9-1-1 call even if it were in the clerk’s
possession, because Ware had failed to obtain sentencing-court approval under
R.C. 149.43(B)(8). Ware, 169 Ohio St.3d 223, 2022-Ohio-1627, 203 N.E.3d 665,
at ¶ 24-25. Likewise, we upheld the appellate court’s conclusion that Ware was not
entitled to statutory damages for the transcript, because the clerk had no obligation
to provide that document to Ware under R.C. 149.43. Id. at ¶ 26.
{¶ 8} We held, however, that the Ninth District erred in determining that
the remaining requested documents were governed by the Rules of
Superintendence. We found that out of the 37 documents that Ware had requested,
only 4 fell under the Rules of Superintendence. Id. at ¶ 14-17. In addition, we
found that because the remaining 32 requested documents (excluding the transcript
of the 9-1-1 call) were subject to the Public Records Act, the Ninth District erred
in rejecting Ware’s request for statutory damages under R.C. 149.43(C)(2) on the
ground that those documents were governed by the Rules of Superintendence. Id.
at ¶ 20.
{¶ 9} We also determined that several facts relevant to Ware’s statutory-
damages claim were in dispute. Id. at ¶ 21-23. We therefore remanded the case to
the Ninth District for it to determine: (1) which documents subject to the Public
Records Act were produced to Ware, (2) whether the clerk had legitimate reasons
for rejecting Ware’s requests for the documents that were not produced, and (3)
whether Ware was entitled to statutory damages for the requested documents that
were subject to the Public Records Act. Id. at ¶ 31.
{¶ 10} On remand, the Ninth District again denied the writ. The Ninth
District first found that the clerk had provided documents in her possession, if those

4
 January Term, 2024

documents existed, in response to all of Ware’s requests. 2023-Ohio-202 at ¶ 10-
16, 24-25.
{¶ 11} The Ninth District also found that the clerk had legitimate reasons
for rejecting Ware’s requests for documents that were not produced, except for one
document—the clerk-of-courts employee handbook. Id. at ¶ 17-19, 25. The clerk
did provide part of the handbook to Ware at the end of January 2020, but the Ninth
District found that the clerk should have provided the entire handbook or sent Ware
an invoice requesting prepayment of the copying cost. Id. at ¶ 21-22. Even so, the
Ninth District did not grant the writ compelling the clerk to provide the entire
handbook to Ware, because she had already done so in July 2022. Id. at ¶ 23.
{¶ 12} As a final matter, the Ninth District held that Ware was not entitled
to statutory damages. Id. at ¶ 26-36. Ware argued that statutory damages were
appropriate because the clerk had failed to produce the requested records within a
reasonable period as required by R.C. 149.43(B). According to Ware, he submitted
his public-records requests by certified mail in January 2019 but the clerk took over
a year to respond to the requests. The Ninth District disagreed, concluding that
Ware had failed to prove by clear and convincing evidence that he requested the
documents by certified mail in January 2019. 2023-Ohio-202 at ¶ 35-36.
{¶ 13} Ware appealed to this court as of right, but he challenges only the
denial of statutory damages.
ANALYSIS
{¶ 14} Ohio’s Public Records Act requires a public office to make copies
of public records available to any person upon request within a reasonable time.
R.C. 149.43(B)(1). A requester who transmits a written and fairly described public-
records request by an authorized delivery method 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 under R.C. 149.43(B). R.C.
149.43(C)(2).

5
 SUPREME COURT OF OHIO

{¶ 15} Ware advances two propositions of law. In his first proposition of
law, Ware challenges the Ninth District’s finding that he had failed to demonstrate
that he requested the documents by certified mail in January 2019. In his second
proposition of law, Ware argues that because the clerk failed to comply with her
obligation to produce the requested records within a reasonable period upon
receiving his requests in January 2019, the Ninth District erred in denying him
statutory damages under R.C. 149.43(C)(2). Because both propositions of law rest
on Ware’s claim that he delivered his public-records requests to the clerk in January
2019 by certified mail, we address them jointly.
{¶ 16} R.C. 149.43(C)(2) provides that a requester seeking statutory
damages must prove that the public-records request was sent “by hand delivery,
electronic submission, or certified mail * * * to the public office or person
responsible for the requested public records.” Ware submitted an affidavit with his
summary-judgment motion averring that he sent his public-records requests by
certified mail to the clerk in January 2019. Ware also relies on a copy of a certified-
mail return receipt, which reflects that mail from Ware was delivered to the address
for the Summit County clerk of courts on “1-22-19” and was signed for by “C.O.C.”
According to Ware, “C.O.C.” means “clerk of courts,” which proves that his written
requests were delivered on January 22, 2019, to the public office or person
responsible for the requested public records as required by R.C. 149.43(C)(2).
{¶ 17} For her part, the clerk provided an affidavit from an employee of the
clerk’s office who attested that she first received notice of Ware’s public-records
requests shortly after Ware filed his mandamus action against the clerk’s office at
the end of December 2019. The clerk also submitted an affidavit from an assistant
prosecuting attorney from the Summit County Prosecutor’s Office who averred that
the clerk of courts had no record of Ware’s public-records requests until January 2,
2020, when the clerk was served with the summons relating to Ware’s mandamus
complaint.

6
 January Term, 2024

{¶ 18} Ware has the burden of proving by clear and convincing evidence
that he delivered the public-records requests by certified mail on January 22, 2019,
as he alleges. See State ex rel. Pietrangelo v. Avon Lake, 149 Ohio St.3d 273, 2016-
Ohio-5725, 74 N.E.3d 419, ¶ 27. One problem for Ware is that he points to no
evidence beyond his own assertion that “C.O.C.” means clerk of courts. Ware’s
only argument on this point is set forth in his second proposition of law, in which
he claims that the Summit County clerk of courts has a practice of signing certified-
mail return receipts as “C.O.C.” Ware asks that this court take judicial notice of
Homeless Charity v. Akron, 9th Dist. Summit No. 29334, 2019-Ohio-5330, which
he asserts is proof that the clerk’s office signs for certified mail as “C.O.C.” We
reject Ware’s invitation.
{¶ 19} In Homeless Charity, the Ninth District Court of Appeals considered
whether the Homeless Charity had perfected an administrative appeal to the
common pleas court from a decision of the Akron City Council. See R.C. 2505.04
(an administrative appeal is perfected when a notice of appeal is filed with the
administrative officer or agency). The Homeless Charity had filed instructions with
the Summit County clerk of courts requesting that certified-mail service of the
notice of appeal be made upon the city of Akron’s law director at the law director’s
address. Homeless Charity at ¶ 2. The clerk of courts’ website indicated that
service was made upon the law director, but the certified-mail return receipt
indicated that the recipient of the certified mail was signed by “C.O.C.” at the clerk
of courts’ address. Id. The court of appeals held that even if the notice of appeal
had been served upon the law director, that would not have satisfied the filing
requirement of R.C. 2505.04, because the Homeless Charity had to serve the Akron
City Council to invoke the common pleas court’s jurisdiction over the
administrative appeal. See id. at ¶ 11, 14.
{¶ 20} Contrary to Ware’s contention, the court of appeals did not conclude
in Homeless Charity that the Summit County clerk of courts has a practice of

7
 SUPREME COURT OF OHIO

signing certified-mail receipts as “C.O.C.” Although the court of appeals suggested
that “C.O.C.” could mean clerk of courts, it left that issue unresolved. After holding
that service on the law director was not sufficient to invoke the common pleas
court’s jurisdiction, see id., the court of appeals found moot the question whether
the clerk of courts’ failure to timely serve the notice of appeal on the law director
terminated the common pleas court’s jurisdiction, id. at ¶ 13-14. That is, the court
of appeals declined to determine whether the clerk of courts served the law
director—as indicated by the clerk’s website—or whether the clerk of courts
mistakenly served the notice of appeal on itself—as suggested by the certified-mail
receipt. In short, we find that Homeless Charity does not support Ware’s claim that
the Summit County clerk of courts has a practice of signing certified-mail receipts
as “C.O.C.”
{¶ 21} But even were we to accept Ware’s assertion that the clerk of courts
signs certified-mail receipts “C.O.C,” that would not be sufficient to establish that
the envelope received by the clerk’s office actually contained Ware’s public-
records requests. Indeed, public officials in several cases have testified that they
received certified mail from Ware containing innocuous documents, such as
random docket entries, and not the public-records request Ware claimed to have
mailed to their offices.2 We have denied statutory damages to Ware in at least one
case that fits this pattern—when he swore that he had mailed a public-records
request, but the public official denied receiving it. See State ex rel. Ware v.
Giavasis, 163 Ohio St.3d 359, 2020-Ohio-5453, 170 N.E.3d 788, ¶ 32-34 (denying

2. See, e.g., State ex rel. Ware v. Stone, 5th Dist. Stark No. 2023CA00066, 2023-Ohio-3865, ¶ 21
(“The envelope delivered to the prosecutor’s office on April 11, 2022, did not contain a public-
records request”); State ex rel. Ware v. Byrd, 8th Dist. Cuyahoga No. 112488, 2023-Ohio-3158,
¶ 12 (“the Stark County Prosecutor’s Office never received the public records request attached to
Ware’s complaint prior to the filing of the complaint”); State ex rel. Ware v. Fankhauser, 11th Dist.
Portage No. 2023-P-0030, 2023-Ohio-3939, ¶ 4 (“respondent emphasizes that her office has no
record of receiving the alleged request for records underlying this matter” [emphasis in original]).

8
 January Term, 2024

statutory damages in part because the clerk’s office “received only a single request
and * * * a search of the office did not locate Ware’s other six requests”).
{¶ 22} We have held that when the evidence on the method-of-delivery of
a public-records request consists of contradictory affidavits or is inconclusive, the
requester has not satisfied his burden under R.C. 149.43(C)(2). See Pietrangelo,
149 Ohio St.3d 273, 2016-Ohio-5725, 74 N.E.3d 419, at ¶ 26-27; see also Giavasis
at ¶ 32 (holding that when the evidence is evenly balanced, the requester has not
satisfied the heightened burden of proof necessary for an award of statutory
damages). In the end, Ware has failed to show by clear and convincing evidence
that he delivered his public-records requests by certified mail on January 22, 2019.
See Pietrangelo at ¶ 27. Accordingly, Ware’s propositions of law lack merit.
CONCLUSION
{¶ 23} Based on the foregoing, we affirm the judgment of the Ninth District
Court of Appeals.
Judgment affirmed.
FISCHER, DEWINE, DONNELLY, STEWART, BRUNNER, and DETERS, JJ.,
concur.
KENNEDY, C.J., dissents, with an opinion.
_________________
KENNEDY, C.J., dissenting.
{¶ 24} Because the majority uses evidence of other public-records requests
outside the record of this case to deny appellant, Kimani Ware, statutory damages,
I dissent. This case stands independent from Ware’s other public-records-request
cases and should be judged on its merits. Because Ware proved by clear and
convincing evidence that he submitted public-records requests by certified mail in
this case, and because appellee, Summit County Clerk of Courts Tavia Galonski,
failed to provide in a timely manner the records Ware sought in those requests, I

9
 SUPREME COURT OF OHIO

would award Ware $1,000 in statutory damages under R.C. 149.43(C)(2). Because
the majority fails to award Ware statutory damages, I dissent.
{¶ 25} To be entitled to an award of statutory damages, a public-records
requester need only show that a written and fairly described request was transmitted
by hand delivery, electronic submission, or certified mail to the public office
responsible for the requested records and that the public-records holder failed to
comply with an obligation under R.C. 149.43(B). R.C. 149.43(C)(2). Here, the
only remaining issue is whether Ware demonstrated by clear and convincing
evidence that he transmitted the public-records requests by certified mail to the
Summit County clerk of courts in January 2019. Ware’s evidence includes his
affidavit that he submitted with his summary-judgment motion, in which he claims
that he transmitted the public-records requests at issue by certified mail and that
those requests were delivered on January 22, 2019. As further evidence, he relies
on a certified-mail receipt that lists the “Summit County Courts of Clerk [sic]” as
the addressee of the certified mail with the delivery address of “205 S. High St.,
Akron, OH 44308 Attn: 10 Public Request for Records [sic].” This side of the
receipt also bears the signature of “C.O.C.” with a delivery date of “1-22-19.” On
the other side of the receipt is the United States Postal Service tracking number
9590 9402 4371 8190 6966 91. Ware’s evidence also includes copies of the ten
public-records requests, and each request is dated January 14, 2019.
{¶ 26} The clerk submitted an affidavit from the office manager of the
clerk’s office, Jackie Ludle. Ludle states in that affidavit that had Ware’s public-
records requests reached the clerk’s office, the requests would have been forwarded
to her and she would have responded to them. The clerk also submitted a cover
letter that was sent to Ware by an assistant prosecuting attorney from the Summit
County Prosecutor’s Office, in which the attorney states that the clerk’s office did
not receive the January 2019 requests and learned of Ware’s requests only when he
filed the mandamus action in December 2019. But there is no testimony from

10
 January Term, 2024

anyone who regularly signs for certified mail at the clerk’s office. Nor is there
testimony or other evidence establishing that signing for certified mail with the
initials “C.O.C.” would be contrary to policies of the clerk’s office.
{¶ 27} Instead of examining this evidence to determine whether Ware has
proved by clear and convincing evidence that he transmitted the public-records
requests by certified mail, the majority goes beyond the bounds of this case and
relies on other cases involving Ware. But those cases highlight deficiencies both
in the averments of the clerk and in the policies and procedures of the Summit
County clerk’s office relative to other public offices.
{¶ 28} For instance, in State ex rel. Ware v. Fankhauser, 11th Dist. Portage
No. 2023-P-0030, 2023-Ohio-3939, the Portage County clerk of courts set forth
evidence of an indexing process to which all time-stamped documents that office
receives are subjected and denied that the alleged public-records request at issue
was ever received because it was never indexed in that office’s system. Id. at ¶ 27.
In this case, however, there is no evidence of an indexing system at the Summit
County clerk’s office.
{¶ 29} In State ex rel. Ware v. Stone, 5th Dist. Stark No. 2023CA00066,
2023-Ohio-3865, ¶ 12-16, the Stark County Prosecutor’s Office instituted a policy
for monitoring and documenting any inmate mail received from Ware. In this case,
there is no evidence that the Summit County clerk’s office had such a policy
regarding Ware in place.
{¶ 30} And in State ex rel. Ware v. Byrd, 8th Dist. Cuyahoga No. 112488,
2023-Ohio-3158, ¶ 20, employees of the Cuyahoga County clerk of courts and the
Cuyahoga County prosecutor averred that their departments tracked incoming
public-records requests. They also cited evidence from the mail log at Ware’s
institution that the certified-mail number for the request he claimed to have sent
during a certain period did not appear on the log covering that period. Again, there
is no evidence here that the Summit County clerk’s office tracked incoming public-

11
 SUPREME COURT OF OHIO

records requests, and the clerk presented no testimony or other evidence concerning
the mail log from Ware’s institution.
{¶ 31} The clerk’s only evidence that gets to the heart of the matter—
delivery—is conclusory. The office manager claims in her affidavit that she would
have responded to Ware’s public-records requests had they been delivered to her.
But there is no testimony regarding a policy in place that would ensure that a public-
records request would necessarily make its way to her.
{¶ 32} I would hold that the certified-mail receipt reflecting the Summit
County clerk of courts’ acceptance of delivery of mail from Ware on January 22,
2019, together with Ware’s sworn affidavit—that includes copies of his public-
records requests—averring that he sent the requests by certified mail to the clerk,
constitute clear and convincing evidence that the requests were transmitted by
certified mail in January 2019. Because the clerk did not produce the records until
after Ware filed a mandamus action in December 2019, I would award Ware $1,000
in statutory damages under R.C. 149.43(C)(2) for the clerk’s failure to abide by the
requirement in R.C. 149.43(B)(1) to timely respond to Ware’s requests for public
records. Therefore, I dissent from the majority’s judgment affirming the Ninth
District Court of Appeals’ denial of statutory damages.
_________________
Kimani Ware, pro se.
Sherri Bevan Walsh, Summit County Prosecuting Attorney, and Marrett W.
Hanna, Assistant Prosecuting Attorney, for appellee.
_________________

12