Clear and Convincing Proof Requirement for Statutory Damages under the Ohio Public Records Act

Introduction

State ex rel. Ware v. Akron Police Department (2025-Ohio-1198) is an original mandamus action filed in the Supreme Court of Ohio. Relator Kimani E. Ware, an inmate at Richland Correctional Institution, sought to compel the Akron Police Department (“Akron PD”) to release a variety of records related to two officer-involved shootings (in particular, the Jayland Walker and Raupheal Thomas incidents) and to recover statutory damages under R.C. 149.43. The key issues addressed by the court were:

Whether Ware had a clear legal right to the records he requested and Akron PD a clear statutory duty to release them;
Whether any responsive records existed;
The propriety of Ware’s requests for officer names and rosters;
Whether Ware met the clear-and-convincing-evidence standard to prove he sent his request by certified mail and thus qualifies for statutory damages;
Whether the matter should be dismissed under the “vexatious litigator” rule.

After briefing and argument, the Supreme Court of Ohio, per curiam, denied the writ of mandamus in its entirety and refused to award statutory damages. Chief Justice Kennedy concurred in part and dissented in part on the statutory-damages issue.

Summary of the Judgment

The per curiam majority held:

Motion to dismiss: The court denied Akron PD’s motion to dismiss based on a contemporaneous “vexatious litigator” finding because all filings in the mandamus action had been made before that designation was entered.
Mandamus relief:
- Use-of-force policy: Akron PD had already produced its use-of-force policy; that claim was moot.
- Use-of-force reports: Ware offered no evidence that such reports existed; Akron PD attested none were maintained; under Culgan, a relator bears the burden to prove records exist.
- Officer names: A request for isolated information rather than an existing document is improper (Morgan, Griffin).
- Roster listing: Although arguably a record request, Ware abandoned it in his merits brief.
Statutory damages: To recover under R.C. 149.43(C)(2), Ware had to prove by clear and convincing evidence that he sent his request by certified mail. Although he produced a withdrawal slip, certified-mail receipt, USPS tracking printout, and return-receipt card, he could not explain the gap between his claimed October 3 mailing date and the October 11 postmark. Nor did he supply a copy of the envelope bearing the tracking number. Therefore, he failed to meet the clear-and-convincing standard, and statutory damages were denied.

Analysis

Precedents Cited

R.C. 149.43(C)(1)(b): Mandamus is the proper remedy to enforce Ohio’s Public Records Act.
State ex rel. Adkins v. Dept. of Rehab. & Corr. Legal Dept. (2024-Ohio-5154): Outlined the elements of mandamus relief under the Public Records Act.
State ex rel. Standifer v. Cleveland (2022-Ohio-3711): Held that use-of-force reports are not automatically confidential law-enforcement investigatory records when prepared under a departmental policy. Distinguished because Akron PD officers had no city mandate to generate such reports.
State ex rel. Morgan v. New Lexington (2006-Ohio-6365): Confirmed that requests for information (officer names) are improper under R.C. 149.43.
State ex rel. Culgan v. Jefferson Cty. Prosecutor (2024-Ohio-4715): Placed on relators the burden of proving by clear and convincing evidence the existence and custody of records when an agency attests none exist.
State ex rel. Grim v. New Holland (2024-Ohio-4822): Clarified the prerequisites for statutory damages—method of delivery and delayed compliance.
State ex rel. Mobley v. Bates (2024-Ohio-2827) and Mobley v. Viehweger (2024-Ohio-4748): Emphasized the need for envelope evidence when proving certified-mail delivery.

Legal Reasoning

The court applied a step-by-step approach:

Existence of Records: If a public office says “we have no responsive records,” the relator must rebut that with clear and convincing evidence (Culgan). Ware did not offer any documentation—policies, internal directives, emails—showing that Akron PD officers were required to generate use-of-force reports in either incident.
Proper Form of Request: R.C. 149.43 distinguishes between “public-records requests” (which seek existing documents) and “information requests” (which seek data or answers). A request for “the names of the eight officers” is plainly informational and thus “improper” (Morgan, Griffin).
Mootness of Compliance: Once Akron PD supplied the use-of-force policy, that portion of Ware’s petition became moot (Suggs).
Statutory Damages Requirements: Under R.C. 149.43(C)(2), a relator must show by clear and convincing evidence (a) the mandatory delivery method (here, certified mail), and (b) that the office failed to comply within a reasonable time. Ware’s documents did not conclusively establish the envelope’s contents or the actual deposit date with the USPS. Without envelope evidence linking the withdrawal slip and the return receipt, the court concluded Ware’s proof was “inconclusive.”

Impact

This decision carries significant implications for public-records litigation in Ohio:

Proof Requirements Elevated: Relators seeking statutory damages under R.C. 149.43(C)(2) must supply airtight, clear-and-convincing proof of authorized delivery methods. Envelopes paired with tracking receipts are now essential.
Mandamus Thresholds Reinforced: The Culgan burden to prove record existence reinforces agencies’ ability to avoid discovery if no records exist, provided they attest to that fact.
Information vs. Records: The decision again draws a bright line between document requests and informational inquiries. Requesters must frame their petitions strictly as demands for existing records.
Vexatious Litigator Rule Clarified: A subsequent “vexatious litigator” designation will not retroactively strip leave from actions already fully filed.

Complex Concepts Simplified

Mandamus: A court order compelling a public office to perform a clear statutory duty—in this context, to hand over public records under Ohio’s Public Records Act.
Clear and Convincing Evidence: A higher evidentiary standard than “preponderance of the evidence.” It requires that the proof “be so clear, direct, and weighty that it leaves no serious or substantial doubt.”
Certified Mail Requirement (R.C. 149.43(C)(2)): If a requester wants statutory damages, the Act mandates delivery by hand, electronic filing, or certified mail. Without indisputable proof of that delivery method, damages cannot be awarded.
Vexatious Litigator Rule (S.Ct.Prac.R. 4.03(B)): A litigant found to be “vexatious” may not file or continue new actions without court permission. This case shows that designation does not affect already completed filings.

Conclusion

State ex rel. Ware v. Akron Police Department solidifies two critical rules under Ohio law:

A relator cannot obtain mandamus relief for records that do not exist or for requests that seek information rather than documents.
A relator seeking statutory damages under R.C. 149.43(C)(2) must prove by clear and convincing evidence the use of certified mail (or other authorized delivery) and a delayed agency response. Inconclusive or incomplete mailing proof is insufficient.

These clarifications will guide both public-records custodians and requesters in framing, responding to, and litigating access to government information in Ohio.