State ex rel. Griffin v. Sehlmeyer (Slip Opinion) , 2021 Ohio 1419 ( 2021 )

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
ex rel. Griffin v. Sehlmeyer, Slip Opinion No. 2021-Ohio-1419.]
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. 2021-OHIO-1419
[THE STATE EX REL.] GRIFFIN v. SEHLMEYER.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as State ex rel. Griffin v. Sehlmeyer, Slip Opinion No.
2021-Ohio-1419.]
Public records—R.C. 149.43—Mandamus—A public-records custodian has a clear
legal duty to identify the records that are responsive to a public-records
request and to offer to provide them to the requester at cost—Writ granted.
(No. 2020-0748—Submitted January 26, 2021—Decided April 27, 2021.)
IN MANDAMUS.
__________________
Per Curiam.
{¶ 1} In April 2020, relator, Mark Griffin Sr., an inmate at the Toledo
Correctional Institution (“TCI”), requested information about the number of staff
and inmates in TCI who had been exposed to or who had contracted COVID-19.
His request was poorly worded—although he invoked Ohio’s Public Records Act,
he did not expressly ask for any records. Respondent, Sonrisa Sehlmeyer, the
SUPREME COURT OF OHIO
public-records custodian at TCI, responded to Griffin and wrote that he had not
made a proper public-records request because he had asked for information, not
records. Nevertheless, Sehlmeyer offered to provide a record containing
information about staff and inmate COVID-19 testing, if Griffin paid ten cents for
a copy of the two-page document. Griffin did not pay the ten cents or say that he
wanted that document.
{¶ 2} One week later, Griffin made another request, this time clearly asking
for records of prison staff and inmates who had contracted COVID-19. In response,
Sehlmeyer stated that the prison had “no public record responsive to [this] request.”
Griffin now seeks a writ of mandamus to compel the production of the public
records he requested. He also asks for an award of statutory damages.
{¶ 3} We grant the writ and award Griffin statutory damages in the amount
of $1,000.
Background
{¶ 4} On April 21, 2020, Griffin sent the following request to Sehlmeyer by
prison kite:
pursaunt to the ohio public records act 149. 43 b im seeking the
actual number of [TCI] staff and inmates that have been exposed to
COVID 19. here at [TCI]. please remeber that this is public
information according to the C. D. C. and ODRC has in ongoing
statutory duty. and obligation to report all persons that have
contracted COVID 19 here at [TCI]. please forward me these
findings A.S. A. P ……….
Sehlmeyer determined that Griffin was requesting information, not records. She
responded to Griffin on April 22, stating:
2
January Term, 2021
Mr. Griffin, Your request is seeking information. This is not a
proper public record request. If you are requesting the daily status
sheet on staff and inmate testing within the department, that is
available and is 2 pages. Please send a cash slip for 10 cents. Ms.
Sehlmeyer.
{¶ 5} On April 23, Griffin sent Sehlmeyer another kite, stating:
to . wardes assistant.. im responding to your response to my public
records request.. its funny how you attempted to tell me abuot
COVID 19 TESTING of inmates and staff . well i hvae a serious
lung disease SARCOIDOSIS and i benn requesting to take covid 19
. test and have been refused and have not been seen by midical
knowing im on the chronic care list………but accordind to your
response [TCI] AND ODCR is offering tsest. wow.
(Capitalization sic.)
{¶ 6} Sehlmeyer responded to that kite the same day, explaining:
I am not sure what you are referring to. You asked for information
and I told you what was available as a public record. The
department has been doing tests, the offenders at Marion
[Correctional Institution] and [Pickaway Correctional Institution]
are all being tested because they live in a dormitory status. If you
have a medical condition, have symptoms to be tested, you can reach
out to medical. There is a screening form to determine who can be
tested. As you are aware copays are waived during this time. Ms.
Sehlmeyer.
3
SUPREME COURT OF OHIO
{¶ 7} Griffin sent Sehlmeyer a third kite on April 28:
im forwarding this public records request to obtain the documented
records of STAFF.. AND INMATES.. that have contracted the
COVID 19..disease here at [TCI] again this is public records
according to the CDC and the OHIO PUBLIC HEALTH
DIRECTOR.. moreover
(Capitalization sic.)
{¶ 8} Sehlmeyer responded to Griffin’s third kite on April 28:
Mr. Griffin, we have no public record responsive to your request.
Ms. Sehlmeyer, CWA2.
{¶ 9} In his complaint, Griffin asks this court to issue a writ of mandamus
to compel Sehlmeyer to provide records that are responsive to his April 28 kite.
We issued an alternative writ and ordered the parties to submit evidence and file
briefs. 160 Ohio St. 3d 1403, 2020-Ohio-4458, 153 N.E.3d 98.
Analysis
The public-records request
{¶ 10} R.C. 149.43(B)(1) requires a public-records custodian to provide a
copy of a public record to a requester “at cost and within a reasonable period of
time.” A person who is denied access to a public record may seek to compel its
production through a mandamus action. R.C. 149.43(C)(1)(b). To prevail on such
a claim, the requester must prove by clear and convincing evidence a clear legal
right to the record and a corresponding clear legal duty on the part of the respondent
to provide it. State ex rel. Am. Civ. Liberties Union of Ohio, Inc. v. Cuyahoga Cty.
4
January Term, 2021
Bd. of Commrs., 128 Ohio St. 3d 256, 2011-Ohio-625, 943 N.E.2d 553, ¶ 22-24;
State ex rel. Cincinnati Enquirer v. Deters, 148 Ohio St. 3d 595, 2016-Ohio-8195,
71 N.E.3d 1076, ¶ 19.
{¶ 11} Although Griffin’s complaint seeks to compel compliance with the
request he made on April 28, the parties’ arguments focus mainly on their April 21
and 22 correspondence. The question regarding Griffin’s April 21 kite to
Sehlmeyer is whether it actually constituted a public-records request under Ohio’s
Public Records Act.
{¶ 12} “Requests for information and requests that require the records
custodian to create a new record by searching for selected information are improper
requests under R.C. 149.43.” State ex rel. Morgan v. New Lexington, 112 Ohio
St.3d 33, 2006-Ohio-6365, 857 N.E.2d 1208, ¶ 30. It was reasonable for Sehlmeyer
to conclude that Griffin’s April 21 request was not proper under Ohio’s Public
Records Act. Although Griffin referred to R.C. 149.43 in his April 21 kite, he asked
for only data and information—i.e., “the actual number” of staff and inmates who
had been exposed to COVID-19 and “information” and “findings” about who had
contracted the virus. Griffin did not ask for records on April 21.
{¶ 13} Sehlmeyer argues that on April 22, when she offered Griffin a copy
of DRC’s daily status sheet on staff and inmate testing for COVID-19, she complied
with any obligations she had under the Public Records Act. Sehlmeyer’s view is
understandable from her perspective, because as she explains in her brief, the daily
status sheet would have given Griffin then-current information on the number of
inmates and staff who had tested positive for COVID-19 at each prison. But
Sehlmeyer did not explain the contents of the daily status sheet when she
communicated with Griffin in April 2020, and Griffin’s subsequent correspondence
suggests that he did not understand that the daily status sheet reported the
information he had requested.
5
SUPREME COURT OF OHIO
{¶ 14} Sehlmeyer nevertheless argues that her offer, and Griffin’s failure to
accept it, renders this case moot. It is true that a public-records mandamus claim
usually becomes moot when the public office provides the requested documents.
See State ex rel. Striker v. Smith, 129 Ohio St. 3d 168, 2011-Ohio-2878, 950 N.E.2d
952, ¶ 22. And because Sehlmeyer submitted a copy of that document as evidence
in this case, Griffin now has a copy of the April 21 daily status sheet. But the
production of the April 21 daily status sheet does not resolve the parties’
disagreement about their April 28 correspondence. Sehlmeyer’s mootness
argument, therefore, is misplaced.
{¶ 15} We must determine whether Griffin has a clear legal right to
records—and whether Sehlmeyer has a corresponding clear legal duty provide
them—in response to Griffin’s April 28 request. The parties have very different
views about what Griffin meant on April 28 when he wrote that he was “forwarding
this public records request to obtain the documented records of STAFF.. AND
INMATES.. that have contracted the COVID 19..disease here at [TCI].”
(Capitalization sic.) Griffin contends that it was a request for public records
reporting the number of staff and inmates at TCI who had tested positive for
COVID-19. But Sehlmeyer argues that it represented his rejection of her offer to
provide a copy of the April 21 daily status sheet and a “reiterat[ion]” of his earlier
request. She contends that to the extent Griffin was seeking additional records, he
was asking for the medical records of staff and inmates, which are not public
records. See R.C. 149.43(A)(1)(a).
{¶ 16} Griffin’s April 28 message to Sehlmeyer must be read in the context
of their other recent communications. See Morgan, 112 Ohio St. 3d 33, 2006-Ohio-
6365, 857 N.E.2d 1208, at ¶ 33. One week earlier, Sehlmeyer had surmised that
the information in the daily status sheet was what Griffin was looking for. When
Griffin communicated with Sehlmeyer on April 28, he rephrased his earlier request
and expressly asked for records about staff and inmates at TCI who had contracted
6
January Term, 2021
COVID-19. It was unreasonable for Sehlmeyer to construe Griffin’s message
simply as a rejection of her previous offer or as another request for only nonpublic
medical records. In context, it appears that Griffin was trying again to get
information about the number of staff and inmates who had tested positive for
COVID-19. Griffin has a clear legal right to records that are responsive to that
request.
{¶ 17} The question then, is whether Sehlmeyer has a clear legal duty to
provide them to Griffin. Sehlmeyer contends that she satisfied her obligations
because Griffin rejected her offer to provide him with a copy of the daily status
sheet at cost. But Sehlmeyer’s suggestion that she offered to provide records in
response to Griffin’s April 28 kite is hard to square with her actual response on
April 28, which stated without qualification that TCI had “no public record
responsive to [his] request.” Sehlmeyer also fails to account for the fact that
because she never fully explained what information the daily status sheet contains,
a reasonable person might not have understood that the daily status sheet was a
responsive document.
{¶ 18} Sehlmeyer seems to recognize these problems. First, in her affidavit
and brief, she incorrectly claims that she told Griffin in her April 28 response that
“no other records exist.” Indeed, such a response would have pointed back to her
original offer to provide the daily status sheet and also would have indicated to
Griffin that a then-current version of DRC’s daily status sheet would have been
responsive to his April 28 request. But Sehlmeyer did not actually say that no other
records exist; she simply said that TCI did not have any responsive records. And
second, instead of simply relying on her offer to provide DRC’s daily status sheet,
she now describes the contents of the daily status sheet and provides a copy to show
that it was responsive.
{¶ 19} We hold that Sehlmeyer has a clear legal duty to identify the records
that are responsive to Griffin’s request and offer to provide them to Griffin at cost.
7
SUPREME COURT OF OHIO
In so holding, we note that Griffin is entitled only to records that existed on or
before April 28. See State ex rel. Taxpayers Coalition v. Lakewood, 86 Ohio St. 3d
385, 392, 715 N.E.2d 179 (1999).
Statutory damages
{¶ 20} Under R.C. 149.43(C)(2), if a public-records custodian fails to
comply with an obligation under R.C. 149.43(B) and the requester transmitted the
public-records request by hand delivery, electronic submission, or certified mail,
the requester may be entitled to recover an award of statutory damages. Griffin
transmitted his request by prison kite.
{¶ 21} We recently held that “delivery of a public-records request through
a prison’s kite system does not qualify a requester for an award of statutory
damages under R.C. 149.43(C)(2).” State ex rel. McDougald v. Greene, 161 Ohio
St.3d 130, 2020-Ohio-3686, 161 N.E.3d 575, ¶ 18. But based on the evidence
presented in this case, we limit our holding in McDougald. In McDougald, the
inmate argued that his kite constituted hand delivery under R.C. 149.43(C)(2). Id.
at ¶ 15. We rejected that argument because evidence showed that the prison at issue
used a kite system akin to regular U.S. mail delivery, with inmates writing
information on a form and placing that form in a drop box. Id. at ¶ 16-18. The
evidence in this case shows that Griffin used “JPay,” a different system that allowed
him to transmit his kite electronically. We hold that Griffin made his request by
electronic submission and satisfied the transmission requirement under R.C.
149.43(C)(2).
{¶ 22} Griffin, therefore, is substantively and procedurally eligible for an
award of statutory damages. The purpose of awarding statutory damages is to
provide “compensation for injury arising from lost use of the requested information.
The existence of this injury shall be conclusively presumed.” R.C. 149.43(C)(2).
Damages accrue at the rate of $100 for each business day the public-records
custodian fails to comply with an obligation under R.C. 149.43(B), starting from
8
January Term, 2021
the date of the filing of a mandamus complaint, with a maximum award of $1,000.
R.C. 149.43(C)(2). Because Griffin filed his complaint in June 2020 and
Sehlmeyer still has not properly responded to his April 28 request, Griffin is entitled
to the statutory maximum amount of $1,000.
{¶ 23} We may reduce or decline to award statutory damages if “a well-
informed * * * person responsible for the requested public records reasonably
would believe that” Sehlmeyer’s conduct “did not constitute a failure to comply
* * * with [R.C. 149.43(B)],” R.C. 149.43(C)(2)(a), and “a well-informed * * *
person responsible for the requested public records reasonably would believe that”
Sehlmeyer’s conduct “would serve the public policy that underlies the authority
that is asserted as permitting that conduct,” R.C. 149.43(C)(2)(b). For the reasons
discussed above, these factors do not apply here. We therefore award Griffin
statutory damages in the amount of $1,000.
Griffin’s motion
{¶ 24} After the parties had filed their briefs, Griffin filed a motion asking
this court to order Sehlmeyer to produce a 56-page document that another prison
official has not provided to Griffin. Griffin argues that the document is evidence
supporting his claim in this case. We deny Griffin’s motion because it seeks relief
that is beyond the scope of this case.
Conclusion
{¶ 25} We grant the writ of mandamus and order Sehlmeyer to identify all
public records responsive to Griffin’s April 28 request, inform Griffin of the cost
of obtaining copies of those records, and provide copies of the records to Griffin
upon his payment of the cost of the copies. We also award Griffin statutory
damages in the amount of $1,000.
Writ granted.
KENNEDY, DONNELLY, STEWART, and BRUNNER, JJ., concur.
9
SUPREME COURT OF OHIO
O’CONNOR, C.J., dissents, with an opinion joined by FISCHER and
DEWINE, JJ.
_________________
O’CONNOR, C.J., dissenting.
{¶ 26} In granting relator, Mark Griffin Sr., an inmate at the Toledo
Correctional Institution (“TCI”), a writ of mandamus, the majority orders
respondent, Sonrisa Sehlmeyer, the public-records custodian at TCI, “to identify all
public records responsive to Griffin’s April 28 request, inform Griffin of the cost
of obtaining copies of those records, and provide copies of the records to Griffin
upon his payment of the cost of the copies.” Majority opinion at ¶ 25. Because
Sehlmeyer has already identified the records that are responsive to Griffin’s public-
records request and has also informed Griffin how much copies of those records
would cost, I dissent. For the same reasons, I also dissent from this court’s decision
to award Griffin statutory damages.
{¶ 27} The majority properly states that Griffin’s April 28, 2020 public-
records request must be read in context with the prior communications between
Griffin and Sehlmeyer, including Griffin’s April 21, 2020 public-records request.
But the majority then disregards the context of those communications by viewing
Griffin’s April 28 request—and Sehlmeyer’s response to it—in isolation. In
Sehlmeyer’s response to Griffin’s April 21 request, she clearly stated that the daily
status sheet on Ohio Department of Rehabilitation and Correction (“DRC”) staff
and inmate COVID-19 testing was available, that it was two pages, and that it
would cost Griffin ten cents for a copy. And in Sehlmeyer’s response to Griffin’s
April 23 message, she informed Griffin that DRC’s daily status sheets were public
records containing information that was responsive to his April 21 request. Neither
of Griffin’s communications subsequent to his April 21 request, including the April
28 request, asked for the daily status sheet, and Griffin never included a payment
slip for a copy of that sheet. Nonetheless, the majority holds that Sehlmeyer has a
10
January Term, 2021
“clear legal duty to identify the records that are responsive to Griffin’s request and
offer to provide them to Griffin at cost.” Majority opinion at ¶ 19. It appears, then,
that this court is simply ordering Sehlmeyer to do what she has already done.
{¶ 28} To the extent that Griffin’s request was unclear, R.C. 149.43(B)(2)
provides guidance. It states:
If a requester makes an ambiguous or overly broad request or has
difficulty in making a request for copies or inspection of public
records under this section such that the public office or the person
responsible for the requested public record cannot reasonably
identify what public records are being requested, the public office
or the person responsible for the requested public record may deny
the request but shall provide the requester with an opportunity to
revise the request by informing the requester of the manner in which
records are maintained by the public office and accessed in the
ordinary course of the public office’s or person’s duties.
(Emphasis added.)
{¶ 29} Based on this language, Sehlmeyer complied with her duty when she
identified DRC’s daily status sheet in her response to Griffin’s April 21 request and
when she reiterated that information in her response to Griffin’s subsequent kites.
But the majority states that Sehlmeyer should have “fully explained what
information the daily status sheet contains,” majority opinion at ¶ 17, such that a
reasonable person could understand that the daily status sheet was a responsive
document. This is not the public-records-mandamus standard that is articulated in
Ohio’s Public Records Act or in case law interpreting that act. Yet, this court
applies this new standard to determine that Sehlmeyer failed to comply with her
11
SUPREME COURT OF OHIO
obligation under R.C. 149.43(B) and that Griffin is therefore entitled to an award
of statutory damages.
{¶ 30} Griffin is no stranger to public-records requests or to the legal
proceedings that are used to compel compliance with Ohio’s Public Records Act.
Since 2016, Griffin has filed six other mandamus actions in this court to compel
the production of public records. See case Nos. 2016-1693, 2016-1717, 2017-0350,
2019-1179, 2020-1447, and 2020-1573. In my view, this court’s decision will
reward makers of confusing public-records requests and encourage gamesmanship,
particularly given the unwarranted award of statutory damages in this case.
{¶ 31} For the foregoing reasons, I would deny Griffin a writ of mandamus
and his request for an award of statutory damages.
FISCHER and DEWINE, JJ., concur in the foregoing opinion.
_________________
Mark Griffin Sr., pro se.
Dave Yost, Attorney General, and Jared S. Yee, Assistant Attorney General,
for respondent.
_________________
12