Existence-at-Request Controls Statutory Damages; Temporal Security-Record Exemption Clarified under Ohio’s Public Records Act

Introduction

In State ex rel. Adkins v. Cole, Slip Opinion No. 2025-Ohio-1026, the Supreme Court of Ohio resolved four consolidated original actions in mandamus brought by relator Patrick H. Adkins III—then an inmate at the Lebanon Correctional Institution (LeCI)—against two Department of Rehabilitation and Correction (DRC) employees, Steven Cole and Ellen Myers. The cases arise out of a series of inmate “kite” communications and public-records requests directed to prison staff between August 2023 and March 2024. The Court’s opinion addresses:

What a relator must prove—by clear and convincing evidence—to compel production of records or to obtain statutory damages under Ohio’s Public Records Act, R.C. 149.43;
When a public office can deny requests for records that are held by, or sent to, a third-party vendor (ViaPath) servicing inmate tablets;
How the R.C. 149.433 “security record” exemption applies to staff sign-in/schedule-type records and its temporal limits;
When after-the-fact destruction or non-retention of video does, and does not, insulate a public office from statutory damages; and
How and when a mandamus relator may submit rebuttal evidence under S.Ct.Prac.R. 12.06(B).

The result: all writs were denied, but statutory damages were partially awarded ($1,000 in one case). A concurrence/dissent by Chief Justice Kennedy (joined by Justice Brunner) would have expanded damages and narrowed the “security record” exemption, signaling potential future debate on both fronts.

Summary of the Opinion

Case No. 2024-0740 (Kites to prison library): Writ denied; statutory damages denied. Adkins failed to prove (beyond his self-serving affidavit) that DRC did not produce the requested records.
Case No. 2024-0747 (Kites to ViaPath vendor): Writ denied; statutory damages denied. Adkins did not clearly and convincingly show DRC possessed or controlled kites sent directly to ViaPath.
Case No. 2024-0846 (Property-room form and “inmate sign-in sheet”; plus an “unredacted” kite): Writs denied as moot or unproven; statutory damages denied. The property-room staff sign-in form was a security record during Adkins’s confinement at LeCI and was produced once that concern passed; no proof was offered that an inmate sign-in sheet existed; no proof of improper redaction to the kite.
Case No. 2024-0856 (Housing-unit video and grievance copy): Writs denied (video no longer exists; grievance produced), but $1,000 in statutory damages awarded because the video likely existed when requested and was improperly denied on security grounds before being discarded.

Procedurally, the Court granted or denied Adkins’s motions for leave to file rebuttal evidence on a case-by-case and exhibit-by-exhibit basis, reaffirming that rebuttal evidence must directly refute new facts introduced by respondents and may be permitted even when the relator did not submit evidence earlier under the case schedule.

Key Holdings at a Glance

Existence-at-request rule for damages: A public office cannot avoid statutory damages by later asserting nonexistence or post-request destruction where the evidence shows the record existed at the time of the written request, and the office improperly denied access (2024-0856; R.C. 149.43(C)(2)).
Security-record exemption is temporal: Records may be exempt as “security records” during a period of heightened vulnerability but not “in perpetuity.” Appropriately disclosed once the security concern subsides (2024-0846; R.C. 149.433; State ex rel. Rogers v. DRC; Gannett GP Media).
Burden and proof standards: Relators must prove by clear and convincing evidence a clear right to the record and a corresponding clear duty to provide it; self-serving affidavits alone are insufficient against contrary evidence (2024-0740).
Possession/control principle: No duty to produce records not in the public office’s possession or control; relator bears the burden to show the office maintains the records requested, particularly where a third-party vendor is involved (2024-0747).
“Redaction as denial” needs proof: Allegations of hidden or electronic “redaction” require evidentiary support; visible or functional fields present on the copy undermine such claims (2024-0846).
Rebuttal evidence under S.Ct.Prac.R. 12.06(B): May be allowed even if no initial evidence was filed, but must be strictly limited to refuting new facts introduced by respondents and attached to the motion.

Detailed Analysis

1) Precedents and Authorities the Court Relied Upon

Public Records Act framework: R.C. 149.43(B)(1) (prompt availability within a reasonable time); R.C. 149.43(C)(2) (statutory damages: $100/day from the filing of the mandamus action, up to $1,000, when a written request is transmitted by hand, electronic submission, or certified mail). Electronic kites count as “electronic submission” (State ex rel. Griffin v. Sehlmeyer, 2021-Ohio-1419).
Mandamus burden: Clear and convincing evidence of a clear legal right and corresponding duty (Sehlmeyer; Welsh-Huggins v. Jefferson Cty. Prosecutor’s Office, 2020-Ohio-5371). Self-serving affidavits are insufficient if uncorroborated and countered (State ex rel. Ellis v. Maple Hts. Police Dept., 2019-Ohio-4137; State ex rel. Ware v. DRC, 2024-Ohio-1015, lead opinion).
Nonexistence/possession-control: No duty to produce records not possessed or controlled (State ex rel. Horton v. Kilbane, 2022-Ohio-205). When an office attests records do not exist, the relator must prove by clear and convincing evidence that the records exist and are maintained by the office (State ex rel. Culgan v. Jefferson Cty. Prosecutor, 2024-Ohio-4715). “No obligation to produce public records that do not exist” (State ex rel. Scott v. Toledo Corr. Inst., 2024-Ohio-2694).
Security record exemption: R.C. 149.433(A)(1), (B)(1). The office bears the burden to show the exemption “falls squarely” (State ex rel. Rogers v. DRC, 2018-Ohio-5111). The exemption does not last “in perpetuity” (Rogers; quoting Gannett GP Media, Inc. v. Dept. of Pub. Safety, 2017-Ohio-4247 (Ct. of Cl.)). Comparable DRC records like shift/schedule information have been deemed security records (State ex rel. Slager v. Trelka, 2024-Ohio-5125; McDougald v. Greene, 2020-Ohio-4268).
Mootness and damages: Production after suit moots mandamus, but not necessarily damages (State ex rel. Grim v. New Holland, 2024-Ohio-4822).
Rebuttal evidence practice: S.Ct.Prac.R. 12.06(B) governs; limited to refuting new facts (State ex rel. Mobley v. Powers, 2024-Ohio-104; State v. McNeill, 1998-Ohio-23).
Reasonableness of delay (raised primarily in dissent): State ex rel. Brinkman v. Toledo City School Dist. Bd. of Edn., 2024-Ohio-5063 (four months unreasonable under facts); State ex rel. Cordell v. Paden, 2019-Ohio-1216 (almost three months unreasonable); State ex rel. Shaughnessy v. Cleveland, 2016-Ohio-8447 (31 business days reasonable under voluminous/complex conditions); State ex rel. Consumer News Serv., Inc. v. Worthington City Bd. of Edn., 2002-Ohio-5311 (duty to provide copies within a reasonable period).

2) The Court’s Legal Reasoning, by Docket

Case No. 2024-0740: Kites to the prison library

Adkins requested “a copy of all [his] electronic kites [he] sent to the LeCI institutional library” on November 24, 2023. Respondents submitted an affidavit and a receipt showing production on December 4. Adkins countered only with his own sworn complaint and sought to file additional rebuttal evidence that did not respond to respondents’ new facts. The Court:

Denied leave to file rebuttal evidence because it did not refute the opposing evidence as required by S.Ct.Prac.R. 12.06(B) and Mobley;
Denied the writ because a self-serving affidavit is insufficient to meet the clear-and-convincing standard when respondents produced contrary evidence; and
Denied statutory damages for lack of any proven violation of R.C. 149.43(B).

Case No. 2024-0747: Kites to ViaPath (third-party vendor)

Adkins requested “copies of [his] kites to ViaPath.” Respondents averred DRC does not have access to communications between inmates and ViaPath. The Court:

Partially granted leave to submit rebuttal exhibits (four kites) tending to show DRC had provided some ViaPath-related kites to Adkins, but noted those copies lacked a “To” line and might have been sent to DRC, then “redirected” by staff to ViaPath;
Applied the possession/control rule (Horton; Culgan): a public office has no duty to produce records it does not possess or control; and
Denied the writ and damages because Adkins did not clearly and convincingly establish DRC’s possession or control of the specific set of “kites sent to ViaPath” he requested.

Adkins argued in reply (too late) that a written denial explanation was required by R.C. 149.43(B)(3). The Court refused to consider arguments first raised in reply (State ex rel. Colvin v. Brunner, 2008-Ohio-5041, ¶ 61).

Case No. 2024-0846: Property-room employee sign-in form; inmate sign-in sheet; “unredacted” kite

Adkins sought (1) a property-room “form” and (2) an “inmate sign-in sheet” for August 4–17, 2023. Myers denied both as “security records” under R.C. 149.433, then later produced the staff sign-in form when Adkins was transferred out of LeCI. He also separately sought an “unredacted” copy of a November 14 kite.

Property-room staff sign-in form: The Court held that during Adkins’s confinement at LeCI (when a single female staffer ran the property room), the form—showing staff presence at particular times and places—qualified as a security record (citing Slager and McDougald). Once the security concern dissipated (after Adkins’s transfer), the exemption did not continue “in perpetuity” (Rogers; Gannett), and the record was produced. The writ was moot; damages were denied because the initial refusal was proper under R.C. 149.433(B)(1).
“Inmate sign-in sheet”: Myers averred such a record did not exist; Adkins provided no contrary proof. Applying Scott and Culgan, the Court denied the writ and damages (no obligation to produce non-existent records).
“Unredacted” November 14 kite: The copy produced showed no visible redactions, and included the fields Adkins claimed were missing (names/times of staff actions). Without evidence of hidden electronic redactions, the Court denied the writ and damages.

The Court granted leave to file rebuttal evidence (limited to factual assertions) because some exhibits tended to refute respondents’ factual averments about staffing and Adkins’s disciplinary history, though that showing did not alter the legal conclusion about the security-record status of the staff sign-in form during the pertinent period.

Case No. 2024-0856: Housing-unit video; inmate grievance

Adkins requested to view December 17, 2023 video from the D-Unit microwave area. Myers denied it as a security record; later, she averred the footage had not been retained because it did not relate to an “emergency, assault, or other documented incident.” She did not state whether the footage was retained at the time of the January 1, 2024 request, identify a retention policy, or show when it was discarded. The Court:

Denied the writ because the footage no longer existed (Scott),
But awarded $1,000 in statutory damages because the evidence (including Myers’s original security-based denial and description of the video’s contents) indicated the video existed when requested. The later non-retention did not cure the earlier improper denial.

Adkins also requested an unredacted copy of a grievance he had filed against Myers and Hoover. Respondents asserted (and Adkins’s rebuttal exhibit corroborated) that he received the grievance (with no visible redactions) on July 23, 2024, after suit was filed. The Court:

Denied the writ as moot; and
Denied statutory damages tied to that grievance request because Adkins did not clearly articulate or support the alleged grounds.

3) The Dissent (Kennedy, C.J., joined by Brunner, J.)

Security-record exemption narrowed: The dissent would hold the property-room staff sign-in sheet is not a “security record” because R.C. 149.433(A)(1) requires that the record contain information directly used to protect a public office from attack, interference, or sabotage. The dissent argued the warden’s office did not show direct, actual use of this form for security purposes and would have awarded $1,000 in damages for its initial denial (2024-0846).
Unreasonable delay in producing the grievance: The dissent would have awarded an additional $1,000 for the four-month delay (March 28–July 23) in producing Adkins’s grievance (2024-0856), citing Brinkman (four months unreasonable on similar facts), Cordell (almost three months unreasonable), and Shaughnessy (31 business days reasonable in a complex, voluminous request scenario).
Total award under the dissent: $3,000 ($1,000 for video; $1,000 for property-room sign-in form; $1,000 for grievance delay).

Impact and Practical Consequences

A) For Public Offices (including DRC and correctional institutions)

Destruction/non-retention after a request will not avoid damages if the record likely existed when requested and the initial denial was improper. The safest course is to promptly assess requests, preserve responsive materials, and articulate accurate grounds for any denial—backed by retention schedules and policy citations.
Security-record classification remains fact- and time-sensitive. Staff-location/shift-type documents may qualify as security records when release creates an operational vulnerability (consistent with Slager and McDougald), but that status ends when the triggering concern abates (Rogers; Gannett). Agencies should document the basis and the timeframe for invoking R.C. 149.433.
Third-party vendor records require clarity about possession/control. If the agency does not maintain or have access to the communications, say so clearly and in writing; if some copies are maintained (e.g., when redirected), be prepared to explain the scope of what is and is not kept.
Written explanations matter. While not decided here (argument raised too late), R.C. 149.43(B)(3) requires written explanations for written denials. Failing to provide one risks damages—and potential litigation leverage—if the argument is timely raised.
Rebuttal-evidence practice is narrow and policed. Agencies can expect the Court to weed out “rebuttal” filings that do not directly refute newly introduced facts.

B) For Requesters and Litigators

Build a record early. Clear and convincing evidence is a high bar; self-serving affidavits alone rarely suffice. Preserve request copies, responses, and any receipts; identify retention policies; and collect corroboration.
Frame third-party vendor requests around “possession/control.” Instead of “all kites sent to ViaPath,” consider “all records DRC maintains relating to communications between [Adkins] and ViaPath, including any redirected kites, logs, and responses maintained by DRC.”
Preservation and timing: For ephemeral items (e.g., video), file promptly if improperly denied. Statutory damages run from the day suit is filed (R.C. 149.43(C)(2)), up to $1,000 per case.
Redactions must be proven. If alleging invisible or metadata redactions, provide technical proof or discrepancies (e.g., audit logs, field definitions) showing omitted fields.
Raise R.C. 149.43(B)(3) in opening briefs if the denial explanation was not provided in writing. Arguments first raised in reply will not be considered.
Rebuttal evidence strategy: Even if you missed the initial evidence deadline, you may still seek leave to file rebuttal evidence under S.Ct.Prac.R. 12.06(B)—but ensure it directly refutes respondents’ new facts and attach it to the motion.

Complex Concepts Simplified

Mandamus (public records): A special lawsuit to compel a public office to perform a clear legal duty—here, to produce public records. The requester must show, by clear and convincing evidence, both a right to the records and the office’s duty to provide them.
Clear and convincing evidence: A firm belief or conviction standard—higher than “more likely than not,” lower than “beyond a reasonable doubt.”
Statutory damages (R.C. 149.43(C)(2)): A monetary remedy awarded when a public office fails to meet its duties under R.C. 149.43(B) after a written request by electronic submission, hand delivery, or certified mail. Accrues at $100 per business day starting the day the mandamus action is filed, capped at $1,000.
Security record (R.C. 149.433): Records containing information directly used to protect a public office from attack, interference, or sabotage. These are exempt from disclosure while the security rationale applies, but not indefinitely.
Possession/control: An office need not produce what it does not have or control. Communications exclusively between an inmate and a private vendor typically are not in the agency’s possession—unless copies or logs are maintained by the agency.
Mootness: Once the office produces the requested record, the request to compel production becomes moot. But statutory damages can still be awarded if the original denial violated the law.
Redaction as denial: A redaction functions as a denial of the redacted parts unless authorized by law. Allegations of improper redaction require proof.
Rebuttal evidence (S.Ct.Prac.R. 12.06(B)): Evidence submitted to refute new facts introduced by the opposing party. It must be attached to a motion for leave and is limited to countering the opponent’s evidence.
Attorney fees for pro se litigants: Not available. Requests must be in the complaint, and pro se litigants are ineligible (State ex rel. Stuart v. Greene, 2020-Ohio-3685).

Discussion: The Opinion’s Broader Significance

This decision consolidates and clarifies several recurrent issues in inmate-public-records litigation:

Damages tied to the record’s status when requested. The Court’s damages award in the video case underscores that what matters is whether the record existed when the written request arrived and whether the denial at that time complied with the statute. Agencies should not expect a later destruction to retroactively sanitize an earlier, improper denial.
Security-record scope and timing. The majority’s reliance on prior cases treating staff schedule/location data as security records, coupled with its reaffirmation that the exemption is not perpetual, gives agencies both authority and a caution: document and periodically reassess the security rationale; be prepared to produce once the risk abates.
Vendor communications and “control.” As corrections increasingly rely on third-party platforms, requesters will need to show agency possession or control; agencies should clarify what parts of such communications they retain (e.g., redirection logs, staff responses) and what they do not.
Litigation rigor. The Court continues to police the evidentiary burdens and briefing rules tightly—self-serving averments will not carry the day; rebuttal evidence is limited; and new arguments may not be raised in reply.
A live debate on R.C. 149.433’s meaning. The dissent’s focus on the phrase “directly used” may presage further litigation over how narrowly to construe “security records,” especially in corrections settings. Future cases may examine not only the sensitivity of the information but whether and how the office actually uses the record to achieve security ends.
Timeliness of production. While the majority did not reach the reasonableness of the delay in producing the grievance, the dissent’s reliance on Brinkman and Cordell is a reminder: multi-month delays for discrete, non-voluminous records are likely unreasonable.

Conclusion

State ex rel. Adkins v. Cole is principally a reaffirmation—but with important clarifications—of Ohio’s Public Records Act jurisprudence as applied in the prison context. The Court:

Reinforced the requester’s clear-and-convincing burden and the possession/control requirement, particularly in the era of third-party vendor communications;
Confirmed that schedule/location-type staff records can qualify as security records during periods of risk but that the exemption is not perpetual;
Established a practical rule on statutory damages: when the evidence shows a record existed at the time of a written request and was improperly denied, later destruction or non-retention does not bar damages; and
Clarified the proper, narrow use of rebuttal evidence under S.Ct.Prac.R. 12.06(B).

The dissent signals a potential pivot toward a more text-centric and narrower reading of “security records” and a stricter view on unreasonable delays. For agencies, the opinion counsels prompt, well-documented responses tailored to actual possession, security needs, and retention policies. For requesters, it underscores the value of timely suit, robust evidentiary showings, and careful framing of vendor-related requests. The combined effect is to nudge both sides toward greater precision, transparency, and preservation in Ohio public-records practice.