Ephemeral Digital Records and the “Kept By” Requirement under Ohio’s Public Records Act: Commentary on State ex rel. Clark v. Dept. of Rehabilitation & Correction

Ephemeral Digital Records and the “Kept By” Requirement under Ohio’s Public Records Act: Commentary on State ex rel. Clark v. Dept. of Rehabilitation & Correction, 2025‑Ohio‑5552

I. Introduction

In State ex rel. Clark v. Department of Rehabilitation and Correction, 2025‑Ohio‑5552, the Supreme Court of Ohio addresses a modern transparency problem: whether short‑lived, passively recorded body‑camera data stored only in a device’s temporary memory is a “public record” that must be preserved and produced on request.

Relator Thomas Clark, an inmate at Lebanon Correctional Institution, brought an original mandamus action under Ohio’s Public Records Act, R.C. 149.43, against the Ohio Department of Rehabilitation and Correction (“ODRC”). He sought:

  • Two “latent” (passively recorded) body‑worn camera recordings;
  • Unaltered paper copies of eight inmate “kites” (electronic communications) including their audit logs;
  • Paper copies of “post orders” governing staff working in the prison property room; and
  • $11,000 in statutory damages plus costs.

The case presents three central issues:

  • Whether unpreserved, passively recorded body‑camera footage that is automatically overwritten is a “public record” “kept by” a public office, and what a requester must prove to compel its production;
  • Whether providing kites with incomplete audit logs violates the Public Records Act; and
  • How rigorously an agency must substantiate the “security record” exemption for staff post orders.

The court splits sharply. A per curiam majority (five justices) denies most relief and expresses deep skepticism that ephemeral digital data is a “record kept by” a public office. Chief Justice Kennedy, joined by Justice Brunner, concurs in part and dissents in part, insisting that the latent body‑cam data was a public record at the time of Clark’s requests and that statutory damages should be awarded. Justice Brunner files an additional separate opinion linking this case to the court’s recent narrowing of public records law in State ex rel. Platt v. Montgomery Cty. Bd. of Elections, 2025‑Ohio‑2079.

Although the majority formally “does not resolve” whether latent recordings are public records, its reasoning and its handling of proof of existence substantially shape how Ohio courts and agencies will treat ephemeral digital information going forward.

II. Summary of the Opinion

A. Holdings of the Per Curiam Majority

  1. Body‑worn camera latent recordings
    • Clark requested two short segments of low‑resolution “latent” footage that the cameras record passively when powered on but not actively activated.
    • ODRC asserted the recordings did not exist (because no “qualifying event” triggered preservation and the 18‑hour overwrite window had passed).
    • The court:
      • Expresses doubt that such unpreserved latent recordings are even “public records” because they may not be “kept” by the agency within the meaning of R.C. 149.43(A)(1); but
      • Ultimately denies the writ on narrower grounds: Clark failed to prove by clear and convincing evidence that the recordings currently exist or existed at the time the requests were denied.
    • Statutory damages for these requests are also denied, because the court finds no proven violation of R.C. 149.43(B).
  2. Eight kites and their audit logs
    • Clark requested paper copies of 15 prior electronic kites. He received them, but he discovered that the audit log for one (“the clarifying kite”) was missing an entry showing an administrative professional had viewed his message shortly after submission.
    • He alleged that the warden’s assistant, Myers, had altered the audit logs of eight kites and sought “unaltered” copies.
    • ODRC submitted what Myers attested was a “true and accurate” copy of the clarifying kite and its full audit log.
    • The court holds:
      • Because Clark now has a true and accurate copy of the clarifying kite and its full audit log, the mandamus claim as to the kites is moot.
      • Clark is not entitled to statutory damages because:
        • He requested “kites,” not “audit logs,” and has not shown that the missing time‑stamp entry was part of the “public record” he actually requested.
        • He thus failed to prove a violation of a duty under R.C. 149.43(B) as to those audit‑log details.
  3. Property‑room post orders (security records)
    • Clark requested post orders for staff working in the property room. Myers denied the request, claiming they are security records under R.C. 149.433(B).
    • Clark asked for redacted versions; Myers again refused, asserting they are entirely confidential.
    • ODRC supported its position only with Myers’s affidavit stating the orders contain “sensitive operational details.”
    • The court:
      • Reiterates that a “security record” is not a “public record” at all, R.C. 149.433(A)(1), (B)(1); if the classification applies, no redaction or partial disclosure duty arises.
      • Finds ODRC’s current showing inadequate because it is purely conclusory and lacks “specific factual support.”
      • Orders ODRC to file the post orders under seal within 14 days for in camera inspection so the court can determine whether they qualify as security records.
      • Holds in abeyance the decision on the writ and any damages as to the post orders.
  4. Costs
    • Clark is indigent; the court had already waived filing fees. He therefore incurred no court costs; his request for cost recovery is denied.

B. Separate Opinions

  • Chief Justice Kennedy (joined by Justice Brunner): concurring in part, dissenting in part
    • Agrees the writ cannot compel production of the two latent recordings now because they no longer exist, and agrees with the in camera review for the post orders.
    • Disagrees strongly with the majority’s treatment of latent recordings and statutory damages:
      • Argues latent recordings were public records “kept by” ODRC for at least 18 hours and that Clark’s requests occurred while the data still existed.
      • Concludes Myers improperly denied the August 26 and 28 requests (calling one “overly broad” and both non‑qualifying events) and thereby allowed the data to be overwritten.
      • Would award $2,000 in statutory damages for those two denials and $1,000 more for delay and incompleteness regarding the August 26 kite’s audit log, for a total of $3,000.
    • Warns that the majority’s approach inserts a non‑textual “how long did the government intend to keep it?” element into the definition of “public record” and creates an easy path for agencies to evade disclosure obligations via short retention policies.
  • Justice Brunner: concurring in part, dissenting in part (separately)
    • Joins Kennedy’s opinion in full.
    • Emphasizes that this is the second recent decision narrowly construing the “kept by” requirement:
      • State ex rel. Platt v. Montgomery Cty. Bd. of Elections, 2025‑Ohio‑2079, held that certain official emails in a public official’s private account were not “kept by” the public office and thus not public records.
    • Warns that the court is “pushing a 10‑ton truck” through the loophole opened in Platt, making public access to records “vastly more difficult” without sound justification.

III. Legal and Doctrinal Framework

A. The Ohio Public Records Act

The decision is grounded in R.C. 149.43 (Public Records Act) and related definitions in R.C. 149.011 and R.C. 149.433:

  • “Public record” is defined in R.C. 149.43(A)(1) as “records kept by any public office,” subject to enumerated exemptions.
  • “Record”, under R.C. 149.011(G), includes any “document, device, or item, regardless of physical form or characteristic, including an electronic record” that documents the “organization, functions, policies, decisions, procedures, operations, or other activities” of the office.
  • “Kept by” is not defined in the statute; prior case law has adopted dictionary definitions of “keep” (e.g., “preserve,” “maintain,” “hold,” “retain or continue to have in one’s possession or power”).
  • Under R.C. 149.43(B)(1), a public office must, upon request, make copies of public records available “at cost and within a reasonable period of time” and must release “all of the information within the public record that is not exempt.”
  • R.C. 149.43(C)(1)(b) authorizes a mandamus action to enforce these duties.
  • R.C. 149.43(C)(2) authorizes statutory damages where a public office “failed to comply with an obligation” under division (B) after a proper written request and the filing of a mandamus action.

Key standard: To obtain a writ, the requester must prove by clear and convincing evidence a clear legal right to the records and a clear legal duty on the respondent’s part to provide them. See State ex rel. Cincinnati Enquirer v. Sage, 2015‑Ohio‑974, ¶ 10.

B. Security Records and Post Orders

R.C. 149.433 adds a separate category:

  • A “security record” is “any record that contains information directly used for protecting or maintaining the security of a public office against attack, interference, or sabotage.” R.C. 149.433(A)(1).
  • A security record is not a public record and is wholly exempt from disclosure, R.C. 149.433(B)(1).
  • Because it is not a “public record,” there is no duty to redact and disclose non‑security portions; the entire record can be withheld if it fits the definition.

The agency invoking this exemption must do more than recite the statute; it must provide specific factual support. See State ex rel. Welsh‑Huggins v. Jefferson Cty. Prosecutor’s Office, 2020‑Ohio‑5371, ¶ 50.

C. Existence of Records

Several precedents emphasize that the Public Records Act does not compel the impossible:

  • State ex rel. Toledo Blade Co. v. Seneca Cty. Bd. of Commrs., 2008‑Ohio‑6253:
    • No duty to provide records that no longer exist.
    • If deleted but recoverable, they still “exist” and must be produced; if irretrievably deleted, they do not.
  • State ex rel. Pool v. Sheffield Lake, 2023‑Ohio‑1204:
    • Affidavits that responsive records do not exist can satisfy the public office’s burden, absent contrary proof.
  • State ex rel. McDougald v. Greene, 2020‑Ohio‑2782:
    • If a record did not exist at the time the request was made, the denial is proper; mandamus will not order creation of records that never existed.

The Clark majority leans heavily on this line of cases, requiring Clark to prove that the ephemeral body‑cam recordings either still exist or existed at the relevant times.

IV. Analysis of the Majority Opinion

A. Body‑Worn Camera Latent Recordings

1. Factual setting and ODRC policy

ODRC Policy No. 10‑SAF‑22 (effective Aug. 1, 2023) governs body‑worn cameras. The key points:

  • Officers must activate cameras to record “qualifying events” (e.g., use‑of‑force, emergencies). § VI(C).
  • Even when not actively recording, cameras in “powered‑on” mode constantly create low‑resolution video and audio—“latent recordings.” § VI(K)(1)–(2).
  • Latent recordings are stored on the device and automatically overwritten due to limited capacity (18 hours). § VI(K)(1).
  • They must be accessed and preserved when a camera was worn but not activated during a qualifying event, and may be preserved for other incidents in narrow circumstances (e.g., administrative review, potential evidentiary value). § VI(K)(2), (4).
  • They can also be preserved simply by turning cameras off before overwrite. § VI(K)(3).

Clark alleged two separate incidents (Aug. 26 and Aug. 28, 2024) in which he claims staff:

  • Threatened retaliation for his legal filings; and
  • Improperly doubled the charge for legal mail.

In each instance, he promptly sent kites to Myers asking that the latent body‑cam data be preserved and that a copy be provided. Myers:

  • Initially denied one request as “overly broad,” asked what happened, and later asserted there was no qualifying event;
  • Denied the other on the ground that no “qualifying event” justified “video recall”; and
  • Later told Clark no records existed because latent recordings are only saved when a qualifying event occurs and none did.

2. Are latent recordings “public records”? The majority’s skepticism

The court raises, but declines to formally decide, whether latent recordings that are never retrieved or downloaded qualify as “public records.” The majority’s concerns:

  • A record must be “kept by” the public office (R.C. 149.43(A)(1)).
  • Past decisions defined “keep” as “preserve,” “maintain,” “hold,” “retain,” etc. (Cincinnati Bd. of Edn., 2003‑Ohio‑2260, ¶ 11).
  • The majority reads these terms as requiring “some conscious act” and “something more than a mere temporary existence” (¶ 21).
  • Latent recordings exist only transiently in the camera’s memory and are overwritten unless ODRC chooses to preserve them in specific circumstances. For most of their brief life they are neither accessed nor curated.

On that basis, the majority suggests that such ephemeral, unaccessed data may lie outside the statutory concept of “records kept by” a public office. It analogizes them to “temporary scribbles on a white board, unsaved edits to documents,” and other fleeting digital artifacts (¶ 22), and warns against reading the Act to require agencies to affirmatively create new records whenever such fleeting information is requested.

However, the court deliberately stops short of a formal holding on this point, stating that it “need not resolve” the question because Clark cannot satisfy a separate prerequisite: proving the existence of the recordings.

3. The existence requirement and burden of proof

The majority resolves the case on a narrower, evidentiary ground: even assuming arguendo that such latent footage could be a public record, Clark has not shown that the two recordings he seeks exist (or existed at the relevant times).

Key reasoning:

  • A writ of mandamus cannot compel production of records that do not exist. Toledo Blade, 2008‑Ohio‑6253, ¶ 27; Pool, 2023‑Ohio‑1204, ¶ 18.
  • The requester bears the burden to prove, by clear and convincing evidence, that the records exist. Id.; Sage, 2015‑Ohio‑974, ¶ 10.
  • Clark candidly acknowledges that the recordings are now “presumably lost” due to automatic overwrite.
  • Myers submits an affidavit that the recordings do not exist.
  • Clark offers no independent proof that:
    • The cameras were in a “powered‑on,” passively recording state during the incidents; and
    • The specific latent recordings still existed when Myers responded.

On that basis, the majority holds Clark has not met his burden to show that the requested recordings “currently exist,” and therefore denies mandamus relief.

4. Denial of statutory damages for the latent recordings

Statutory damages require proof that the public office “failed to comply with an obligation” under R.C. 149.43(B), and that this noncompliance continues after the filing of the mandamus action. R.C. 149.43(C)(2).

The majority denies damages because:

  • Clark has not established that the recordings existed when Myers responded to his requests.
  • Myers never expressly admitted they existed; she instead cited “overly broad” and “no qualifying event” reasons and later stated they did not exist.
  • Without proof of existence at the relevant time, Clark cannot show that ODRC violated any duty to produce them.

Thus, even if latent recordings could conceptually qualify as public records, the failure of proof on existence is fatal to both mandamus and damages.

B. Kites and Allegedly Altered Audit Logs

1. Facts and claims

“Kites” are internal written communications between inmates and staff. Electronic kites are accompanied by an audit log that records:

  • Times of submission;
  • When staff opened or viewed the kite;
  • Status changes (e.g., open/closed); and
  • Printed or forwarded events.

Clark requested paper copies of 15 prior electronic kites, including his clarifying kite (1:17 p.m. Aug. 26). Both Myers and another staff member provided copies of some of the kites plus their audit logs. Clark compared versions and noticed that the version supplied by Myers appeared to be missing an audit‑log entry showing that another administrative professional had viewed the clarifying kite about 20 minutes after he submitted it.

Based on this discrepancy, Clark accused Myers of altering that audit log and alleged that she had similarly altered the audit logs of seven other kites. He sought “unaltered” copies of eight kites.

2. Majority’s handling of the mandamus claim

ODRC’s evidence included:

  • A “true and accurate” copy of the clarifying kite and its full audit log (with the disputed entry); and
  • The copy that Myers actually delivered to Clark (lacking that audit‑log entry).

The majority accepts Myers’s sworn statement that the “true and accurate” version is complete, and therefore concludes that Clark has now “definitively received” the requested record. It applies two key doctrines:

  • Affidavit sufficiency – A public office may, by affidavit, establish that all existing responsive records have been provided, and the requester must rebut this by clear and convincing evidence. State ex rel. Frank v. Clermont Cty. Prosecutor, 2021‑Ohio‑623, ¶ 15.
  • Mootness by production – Once the requested records are produced, a mandamus claim to compel production is moot. State ex rel. Ware v. Vigluicci, 2024‑Ohio‑3131, ¶ 10.

Because Clark now has a complete copy of the clarifying kite with its full audit log, and has not provided clear and convincing evidence that any other responsive records exist, the majority:

  • Denies the writ as moot as to all eight kites.

3. Denial of statutory damages on the kites

Clark sought statutory damages based on the theory that Myers provided altered or incomplete records. The majority rejects this claim on a narrower ground: the scope of the original request.

Key points:

  • Clark requested “paper copies” of certain kites—not their audit logs.
  • Myers and another staffer voluntarily included audit logs, but this did not retroactively expand the scope of the public‑records request.
  • Clark has not established that the “missing” audit‑log entry is part of the “public record” he actually requested (the kite itself).
  • Therefore he has not shown noncompliance with R.C. 149.43(B)(1) in responding to his request.

The court stresses that statutory damages require a clear violation of statutory duties, see State ex rel. Grim v. New Holland, 2024‑Ohio‑4822, ¶ 6, and finds none here.

C. Property‑Room Post Orders as Security Records

1. Nature of “post orders”

“Post orders” are written directives specifying duties, schedules, and procedures for particular staff posts. Earlier cases indicate that such documents often contain detailed security protocols and operational instructions:

  • State ex rel. Stuart v. Greene, 2020‑Ohio‑3685;
  • State ex rel. McDougald v. Greene, 2019‑Ohio‑3798 (Kennedy, J., dissenting);
  • McDougald v. Greene, 2020‑Ohio‑4268;
  • State ex rel. Burfitt v. Sehlmeyer, 2020‑Ohio‑5147.

In those decisions, the court accepted, often after in camera review, that certain post orders fit the definition of “security records” because they contained detailed information used to maintain institutional security.

2. The evidentiary burden for security‑record claims

Here, ODRC’s evidence consisted solely of Myers’s affidavit stating that the requested post orders contain “sensitive operational details.” No copy of the orders was submitted, even under seal, and no specifics were provided.

Relying on Welsh‑Huggins, 2020‑Ohio‑5371, ¶ 50, the majority reiterates that:

  • A public office invoking the security‑record exemption must provide specific factual support—either:
    • Detailed affidavit testimony describing the content in a meaningful way, or
    • The records themselves for in camera inspection.
  • “Mere conclusory statements” are insufficient.

Because ODRC has not adequately substantiated its exemption claim, the court cannot determine whether:

  • The post orders are categorically security records (and therefore not public records at all); or
  • They are partially disclosable public records requiring redaction of only genuinely security‑sensitive portions.

3. In camera review and categorical exemption

The court therefore:

  • Orders ODRC to file the post orders under seal within 14 days; and
  • Holds its decision in abeyance pending in camera inspection.

It also makes an important doctrinal clarification: If the post orders qualify as “security records” under R.C. 149.433(A)(1), they are categorically not public records, and ODRC has no duty to redact or partially disclose them. R.C. 149.433(B)(1). Redaction duties under R.C. 149.43(B)(1) apply only to “public records” that contain some exempt portions.

This reinforces the conceptual difference between:

  • Exempt information within a public record (where redaction is required); and
  • Records that are not “public records” at all under a categorical exclusion like “security record” (where the entire record may be withheld).

D. Treatment of Statutory Damages Overall

The majority denies statutory damages across all categories, based on:

  • Latent recordings – No proof of existence; thus no proven violation of a duty to produce records. (R.C. 149.43(B), (C)(2)).
  • Kites – Clark requested kites, not audit logs; missing audit‑log entry not shown to be part of the public record requested; no demonstrated failure to comply with R.C. 149.43(B)(1).
  • Post orders – Decision held in abeyance; no ruling yet on damages.

The combined effect is a very high bar for public‑records plaintiffs seeking damages, particularly where records are short‑lived or the content of what was produced versus what was requested is debatable.

V. The Separate Opinions: A Different Vision of Public Records

A. Chief Justice Kennedy’s Partial Concurrence and Dissent

1. Latent recordings as public records “kept by” ODRC

Chief Justice Kennedy fundamentally disputes the majority’s skepticism about whether latent recordings are “kept by” ODRC. Her core points:

  • Latent recordings are:
    • Electronic data created and stored on ODRC‑owned cameras;
    • Made for the purpose of documenting the actions of ODRC staff and incarcerated persons;
    • Kept for at least 18 hours by conscious design of ODRC policy.
  • Thus they fall squarely under the R.C. 149.011(G) definition of “record” and under R.C. 149.43(A)(1) as “records kept by” a public office.
  • ODRC’s own policy explicitly states that “[r]ecordings or photographs made on ODRC issued [body‑worn‑camera] equipment or otherwise captured or recorded by ODRC employees during the performance of their job duties are the property of ODRC and subject to Ohio’s Public Records Law.” (§ VI(B)(2)).

She emphasizes that the statute contains no temporal threshold (e.g., a minimum retention period) for a document or electronic item to be a public record. Imposing such a requirement, she argues, is judicial legislation.

2. Timing: the moment of the request matters

Kennedy focuses on the time when Clark made his requests, not the later time when the court rules:

  • Under R.C. 149.43(B)(1), the duty to provide public records arises “upon request.”
  • At the moment Clark requested each latent recording, ODRC still had the data in its possession (within the 18‑hour window).
  • Therefore, at that time, the latent recordings were public records that ODRC was obligated to preserve and produce.

She rejects the majority’s “look‑back” approach, which treats a record that was destroyed after an improper denial as if it were never a public record at all.

3. Critique of ODRC’s denials and application of statutory damages

Kennedy also scrutinizes Myers’s reasons for denial:

  • “Overly broad” rejection of the August 26 request
    • R.C. 149.43(B)(2) allows rejection for ambiguity only when the office cannot “reasonably” identify the records.
    • Clark’s request was narrow in time (25 minutes), identified the officer and date, and pointed to a single camera.
    • Labeling this “overly broad” was unjustified.
  • Improper inquiry into “why” Clark wanted the footage
    • Myers asked “What exactly are you looking for? Where was Sgt. Morris? What happened?”
    • R.C. 149.43(B)(4) forbids limiting access based on the requestor’s intended use of the record.
  • Reliance on a non‑existent “qualifying‑event” exemption
    • Myers denied the August 26 and 28 requests because there was no “qualifying event” under ODRC policy, even though no such limitation appears in R.C. 149.43.
    • Internal policy cannot override statutory rights to public records.

In her view, these are textbook violations of the Public Records Act. She analogizes Clark’s case to State ex rel. Adkins v. Cole, 2025‑Ohio‑1026, where the court awarded statutory damages when body‑cam footage existed at the time of request but was later overwritten after an improper denial.

Accordingly, she would:

  • Award $2,000 in statutory damages for the two improperly denied latent‑recording requests; and
  • Award $1,000 more for the September 11 kite request because:
    • An incomplete version of the August 26 clarifying kite’s audit log was first provided;
    • The complete record was not produced until after the mandamus case was filed; and
    • A roughly three‑month delay in providing a single, correct kite and log is unreasonable.

4. Warning about loopholes and erosion of transparency

Kennedy’s broader concern is systemic:

  • By tying public‑record status to the agency’s intent to retain a record (or its retention policy), the majority effectively empowers agencies to:
    • Use very short retention windows;
    • Store communications on self‑deleting platforms (e.g., ephemeral messaging apps); or
    • Keep critical records in places or forms that they can later claim are not “kept by” the office.
  • She gives concrete examples:
    • Emails are public records, but the same content sent via Snapchat that auto‑deletes would never be subject to disclosure.
    • Files in a computer’s recycle bin or unsaved temporary versions might be treated as outside the Act.

She concludes that the majority’s approach “gives the government the playbook” for circumventing public records law and will heighten public distrust of government and courts.

B. Justice Brunner’s Separate Opinion

Justice Brunner’s brief concurrence/dissent:

  • Fully joins Kennedy’s reasoning, particularly the view that latent recordings were public records at the time of Clark’s requests.
  • Highlights the court’s recent decision in State ex rel. Platt v. Montgomery Cty. Bd. of Elections, 2025‑Ohio‑2079:
    • In Platt, the court held that certain emails stored in the deputy director’s personal email account were not “kept by” the Board of Elections, even though they concerned official business (including a confidential memorandum from the office).
  • Warns that Clark, combined with Platt, rapidly narrows the Public Records Act by:
    • Excluding both official communications on private systems (Platt); and
    • Excluding ephemeral electronic data on official devices (Clark, via the majority’s analysis).
  • Describes the court’s new “kept by” doctrine as “rushed and unnatural,” creating “an obvious and gaping loophole” with no convincing legal or practical justification.

VI. Precedents and Their Influence in Clark

A. Existence, Non‑Existence, and Mootness

  • Toledo Blade Co. v. Seneca Cty. Bd. of Commrs., 2008‑Ohio‑6253:
    • Clarified that mandamus cannot compel production of records that no longer exist.
    • But if deleted records are recoverable, they still “exist” and must be provided.
    • Clark builds on this to require proof of the current existence (or recovery possibility) of latent footage.
  • State ex rel. Pool v. Sheffield Lake, 2023‑Ohio‑1204:
    • Accepted affidavits as proof that requested records did not exist when requested; no duty to create them.
    • Clark relies on this principle to credit Myers’s affidavit that the recordings do not exist.
  • State ex rel. Ware v. Vigluicci, 2024‑Ohio‑3131:
    • Production of requested records after filing but before decision moots mandamus claims.
    • Clark uses this doctrine to dismiss Clark’s mandamus claim as to the kites as moot.

B. Burdens of Proof and Affidavit Practice

  • State ex rel. Cincinnati Enquirer v. Sage, 2015‑Ohio‑974:
    • Reaffirmed that relators must prove entitlement to writ by “clear and convincing evidence.”
    • Forms the backbone of the majority’s insistence that Clark must prove the recordings existed.
  • State ex rel. Frank v. Clermont Cty. Prosecutor, 2021‑Ohio‑623:
    • Allows agencies to use affidavits to show all records have been produced.
    • Relators must rebut by clear and convincing evidence that additional responsive records exist.
    • Clark applies this to accept ODRC’s representation that Clark has now received true and accurate kites.

C. Security‑Record Exemption

  • State ex rel. Welsh‑Huggins v. Jefferson Cty. Prosecutor’s Office, 2020‑Ohio‑5371:
    • Held that the security‑record exemption requires specific factual support beyond conclusory affidavits.
    • Guides the majority’s decision to require in camera review of the post orders due to ODRC’s conclusory submission.
  • McDougald v. Greene, 2020‑Ohio‑4268, and State ex rel. Burfitt v. Sehlmeyer, 2020‑Ohio‑5147:
    • Treated post orders and certain operational documents as security records when specific content showed direct security implications.
    • Clark aligns with these but insists on an adequate record before applying the exemption.

D. Statutory Damages and Improper Denials

  • State ex rel. Slager v. Trelka, 2024‑Ohio‑5125:
    • Emphasized that a relator may receive statutory damages even when mandamus is denied, so long as there was a prior violation of R.C. 149.43(B).
    • Kennedy cites this to justify damages in Clark despite the absence of live records.
  • State ex rel. Adkins v. Cole, 2025‑Ohio‑1026:
    • Court awarded damages when body‑cam footage existed at the time of the request but was overwritten after the agency improperly denied the request.
    • Kennedy explicitly analogizes Clark’s latent‑recording claims to Adkins and faults the majority for not following the same logic.
  • State ex rel. Grim v. New Holland, 2024‑Ohio‑4822:
    • Restates that the relator must prove by clear and convincing evidence a failure to comply with R.C. 149.43(B) to obtain damages.
    • Clark cites this in denying damages for the kites and latent recordings.

E. The New “Kept By” Line: From Platt to Clark

  • State ex rel. Platt v. Montgomery Cty. Bd. of Elections, 2025‑Ohio‑2079:
    • Held that an email in a public official’s personal email account was not a public record “kept by” the public office, even though it reflected official business.
    • Justice Brunner sees Clark as the next step in a trend that narrows “kept by” to exclude both:
      • Official content stored on private systems (Platt); and
      • Officially generated, ephemeral digital data that the office chooses not to preserve (Clark).

VII. Complex Concepts Simplified

1. What is a “latent recording”?

A “latent recording” is:

  • Low‑resolution video and audio generated by a body‑worn camera whenever it is turned on but not actively recording a “qualifying event.”
  • Stored only temporarily (here, up to 18 hours) in the device’s memory.
  • Automatically overwritten as new data comes in—unless the agency intervenes to preserve it (e.g., by downloading it or turning off the camera).

2. “Kept by” a public office

“Kept by” is crucial because only records “kept by” a public office are “public records.” The dispute here is:

  • Majority view (suggested, not held): Data is “kept” only if the office takes some conscious, ongoing action to maintain or preserve it, beyond merely letting it exist temporarily in a device’s memory.
  • Dissent’s view: Any data that the office intentionally creates, stores, and has in its possession for any period—however short—is “kept” for as long as it exists, and is therefore a public record during that time.

3. Mandamus vs. statutory damages

  • Mandamus is an order forcing the agency to comply with the law—here, to produce records.
  • Statutory damages are a monetary remedy ($100 per business day up to a statutory cap, under the version of R.C. 149.43 in effect) imposed when the agency fails to meet its duties, even if the records are later produced or destroyed.
  • It is possible to lose the mandamus claim (e.g., because the records no longer exist) but still win statutory damages for an earlier violation of the Act.

4. Security records and redaction

There are two different ideas often confused:

  • Redaction – When a document is a public record, but contains some exempt information (like medical data or personal identifiers), the office must black out the exempt parts and release the rest.
  • Security records – If a document is a “security record” under R.C. 149.433(A)(1), it is not a public record at all; the office can withhold the entire document without redaction.

The fight over the post orders is about which category they fall into.

5. In camera inspection

“In camera inspection” means the court privately reviews the documents (under seal, not publicly) to:

  • Verify the agency’s claims about their content; and
  • Decide whether exemptions apply without revealing sensitive information in the public record of the case.

VIII. Practical and Doctrinal Impact

A. For Requesters of Ephemeral Digital Records

  • Proof of existence is critical:
    • Requesters must move quickly when seeking short‑lived digital information (such as camera buffers, logs, or temporary caches).
    • They should gather corroborating evidence—policies, system diagrams, or witness statements—to show that the data existed when requested.
  • Be precise in describing what is requested:
    • Explicitly request related metadata (e.g., “including all associated audit logs showing all view, print, and status changes”) if those details are important.
    • Otherwise, courts may treat metadata as outside the scope of the request, as the majority did with the audit‑log entry.
  • Consider parallel preservation strategies:
    • Where possible, request that agencies preserve data “immediately” or seek temporary restraining orders to prevent deletion.

B. For Public Offices and Litigation Strategy

  • Retention policies become de facto scope‑defining tools:
    • Agencies may be incentivized to adopt short retention windows or use ephemeral technologies to limit what is “kept” and thus subject to disclosure.
    • This is precisely what the dissent warns against, but the majority’s reasoning facilitates it.
  • Affidavits and policy documentation are powerful:
    • Detailed affidavits about system operation and non‑existence of records can be dispositive, absent a robust factual rebuttal.
    • Agencies should document how and when temporary data is overwritten to support non‑existence claims.
  • Security‑record claims must be substantiated:
    • Agencies can no longer safely rest on formulaic statements about “sensitive operational details.”
    • They should either provide sufficiently detailed affidavits or be prepared for in camera review.

C. Doctrinal Trajectory: The “Kept By” Requirement

Clark, especially read alongside Platt, signals a doctrinal shift in Ohio:

  • Trend toward narrowing:
    • Platt restricts public‑record status for official communications on private systems.
    • Clark’s majority opinion (even though not squarely deciding the issue) treats ephemeral, unpreserved digital data as suspect, potentially outside the Act.
  • Potential future litigation:
    • Expect more disputes about:
      • Cloud‑based logs, temporary message queues, and “buffer” data;
      • Chat and collaboration platforms (Teams, Slack, etc.);
      • Automated deletion policies and self‑destructing messages.
    • Expect litigants to test whether courts will draw a line between:
      • Data under agency control but not deliberately preserved; and
      • Data affirmatively stored or archived for operational reasons.
  • Legislative response possible:
    • If courts continue to narrow “kept by,” the General Assembly may face pressure to clarify the statute—e.g., by:
      • Defining “kept” to include any data maintained on state‑owned systems for a minimum period; or
      • Imposing specific preservation duties once a request is received, especially for body‑cams and other law‑enforcement technology.

D. Impact on Correctional Transparency

  • Prisoner grievances and oversight:
    • This decision makes it harder for inmates to obtain proof of alleged staff misconduct when that proof resides only in short‑lived digital buffers.
    • However, ODRC’s own policies (if enforced) still require preservation in certain circumstances; litigation may shift toward enforcing adherence to those internal preservation rules.
  • Security vs. accountability:
    • The strong security‑record exemption, if applied broadly to post orders and similar documents, can significantly limit public understanding of how prisons actually operate day‑to‑day.
    • In camera review remains a key check on over‑designation.

IX. Conclusion: Significance of Clark in Ohio’s Public Records Law

State ex rel. Clark v. Dept. of Rehabilitation & Correction advances several important, and in some respects controversial, principles in Ohio public records jurisprudence:

  • Proof of existence is paramount – For short‑lived digital data like body‑cam latent recordings, the relator must offer clear, specific evidence that the data existed when requested and (for mandamus) that it still exists or is recoverable. Affidavit evidence of non‑existence is powerful if unchallenged.
  • Emerging skepticism about ephemeral data as “kept” records – Although the majority stops short of a holding, its dicta questions whether transient, unpreserved data is a “record kept by” a public office. The dissent sharply contests this and flags the risk of creating evasion strategies based on retention policies.
  • Scope of a request matters – Courts will closely parse what was actually requested. If a requester only asks for “kites,” audit‑log metadata may not be treated as part of the requested record, limiting both mandamus and damages.
  • Security‑record exemption remains robust but fact‑dependent – Agencies may wholly withhold documents deemed “security records,” without redaction, but they must provide enough detail (or the documents themselves) to substantiate the claim.
  • Statutory damages remain hard to obtain – The majority adopts a demanding approach: without clear proof of both record existence and a statutory duty violation, damages are not awarded, even where agency denials look questionable from a policy perspective.

The separate opinions by Chief Justice Kennedy and Justice Brunner underscore that the court is deeply divided over the future shape of Ohio’s transparency law, particularly concerning:

  • Records on private systems (Platt); and
  • Ephemeral digital information on official devices (Clark).

Regardless of one’s view on the proper scope of public access, Clark underscores that the intersection of modern technology, information retention practices, and statutory text will dominate the next phase of public‑records litigation in Ohio. Requesters must be increasingly sophisticated in their descriptions and timing, while public offices must either adapt their practices to preserve public trust or risk further legal and legislative pushback.

Case Details

Year: 2025
Court: Supreme Court of Ohio

Judge(s)

DeWine, J.

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