Howard v. Plank: Clarifying the Evidentiary Burden for Mandamus and Statutory Damages under Ohio’s Public Records Act

1. Introduction

State ex rel. Howard v. Plank, Slip Opinion No. 2025-Ohio-2325, is the Supreme Court of Ohio’s latest pronouncement on the mechanics of R.C. 149.43—the Public Records Act—inside correctional institutions. The relator, Jeffery Howard, an inmate at Mansfield Correctional Institution (MCI), sought a writ of mandamus to compel three Ohio Department of Rehabilitation and Correction (ODRC) employees—Kasey Plank, Jolene Nelson and David Robinson—to produce various records he had requested through the prison’s electronic “kite” system. He also demanded statutory damages of $4,000 (the statutory maximum of $1,000 for each of four requests).

The case raised four key issues:

• Whether Howard demonstrated, by clear and convincing evidence, that ODRC officials unreasonably delayed or failed to produce responsive records;
• Whether an affidavit reflecting a custodian’s “sincere belief” that records were timely provided satisfies the agency’s burden once the requester contests timeliness;
• The threshold for default judgment in a mandamus action when one respondent does not answer; and
• When, and under what evidentiary conditions, statutory damages are available—even if records are eventually produced.

2. Summary of the Judgment

The Court (per curiam, 6-1) denied the writ of mandamus and refused statutory damages. The majority concluded that Howard had not met his burden to show—by clear and convincing evidence—that:

• Responsive records actually existed (for some requests), or
• Respondents had unreasonably delayed production (for the remainder).

A motion for default judgment against Robinson (who did not answer) was denied, because an alternative writ had already issued, implicitly rejecting a peremptory writ. Chief Justice Kennedy concurred in part but dissented as to statutory damages arising from Howard’s July 8, 2024 request, criticizing the majority for crediting an affidavit based on “sincere belief” rather than personal knowledge.

3. Detailed Analysis

3.1 Precedents Cited

1. State ex rel. Griffin v. Sehlmeyer, 2021-Ohio-1419 – Recognised electronic “kites” as “electronic submission” for R.C. 149.43(C)(2) statutory damages.
2. State ex rel. Hedenberg v. N. Cent. Corr. Complex, 2020-Ohio-3815 – A writ will not lie if evidence shows requested records do not exist.
3. State ex rel. Culgan v. Jefferson Cty. Prosecutor, 2024-Ohio-4715 – A requester’s unsupported belief about record existence is insufficient.
4. State ex rel. Grim v. New Holland, 2024-Ohio-4822 – Production after suit moots the writ; damages may remain.
5. State ex rel. Ware v. Akron, 2021-Ohio-624 – “Unreasonable delay” standard for statutory damages.
6. State ex rel. Mobley v. Powers, 2024-Ohio-3315 – Three-month delay in producing five reports deemed unreasonable; full $1,000 awarded.
7. Civil-procedure authorities on service (e.g., Gliozzo v. Univ. Urologists, 2007-Ohio-3762) and affidavit requirements (e.g., Benedict v. Peters, 58 Ohio St. 527 (1898)).

Collectively, these precedents frame two pivotal doctrines: (i) the clear-and-convincing evidence requirement in mandamus, and (ii) the reasonableness test for statutory-damage exposure.

3.2 The Court’s Legal Reasoning

3.2.1 Burden of Proof & Affidavits

The majority repeatedly returned to the maxim: the relator bears the burden “to prove by clear and convincing evidence a clear legal right to the record and a corresponding duty on the part of the respondent.” Where respondents provided affidavits stating either (a) no records exist or (b) the records were already produced, and Howard offered only his own contrary affidavit, the Court treated the evidence as at best in equipoise—insufficient to meet the demanding clear-and-convincing standard.

On the disputed July 8 request, the majority accepted Plank’s affidavit that she “sincerely believed” she had produced the records promptly, bolstered by evidence of her ongoing responsiveness on other requests and a signed receipt dated December 13 (post-filing). That (coupled with Howard’s silence on follow-up opportunities) convinced the majority that Howard had not carried his burden to show untimely provision.

3.2.2 Non-Existence of Records

For the May 1, 2023 request, respondents swore that no records existed. Citing Hedenberg and Culgan, the Court held that Howard’s citation to a statute authorizing the relevant fund (R.C. 5120.131) could not itself generate records or prove their existence. Absence of the records is a complete defense.

3.2.3 Mootness of the Writ

When Plank ultimately handed over the July 8 materials, the mandamus claim became moot (Grim), though damages remained a live question.

3.2.4 Statutory Damages Analysis

Under R.C. 149.43(C)(2),

…damages accrue at $100 per business day (max $1,000) from the date suit is filed if the public office “fails to comply” with an obligation in R.C. 149.43(B).

The majority declared that Howard did not establish failure to comply because Plank’s affidavit and contextual evidence created doubt as to any unreasonable delay. Importantly, the majority implicitly endorsed the adequacy of an affidavit grounded not in personal recollection but in a “sincere belief” buttressed by practice evidence.

3.3 Divergence in the Dissent

Chief Justice Kennedy’s dissent focuses laser-like on the affidavit’s insufficiency. She emphasizes:

• An affidavit must be based on personal knowledge (Evid.R. 602; Benedict v. Peters); “sincere belief” is not.
• The majority’s reliance on that deficient affidavit unfairly elevates the government’s position and muddles the personal-knowledge requirement for future litigants.
• Because the only admissible evidence placed production of the July 8 records on December 13—52 business days after suit—statutory damages ($1,000) were mandatory.

Her opinion signals concern that the ruling dilutes both transparency and established evidentiary norms.

3.4 Impact of the Decision

• Higher Evidentiary Hurdle for Requesters: Requesters may need corroborating proof beyond self-attestation to overcome an agency’s sworn statement—even one couched in belief.
• Affidavit Practice for Agencies: Agencies might be emboldened to submit similarly phrased “belief” affidavits, knowing they can forestall statutory damages unless the requester can marshal contradicting documentation.
• Risk of Confusion over Personal Knowledge Requirement: Lower courts now face competing signals—long-standing affidavit doctrine vs. the majority’s acceptance of “belief” affidavits—potentially spawning inconsistent applications until clarified by future cases.
• Strategic Litigation Changes: Inmates and other frequent requesters will likely document all interactions (e.g., kite logs, JPay receipts, follow-up letters) to create objective evidence of non-compliance; failing that, relief may be elusive.
• Statutory-Damage Calculus: Agencies gain a little more room to cure defects before damages attach, provided they can articulate a believable timeline.

4. Complex Concepts Simplified

• Mandamus: A court order compelling a government official to perform a legal duty. In public-records disputes, it forces compliance with R.C. 149.43.
• Alternative vs. Peremptory Writ: An alternative writ orders respondents either to do the act or show cause; a peremptory writ is an immediate command without hearing. Granting an alternative writ generally pre-empts default judgment.
• Clear and Convincing Evidence: Evidence producing in the mind a firm belief or conviction—more than a preponderance, less than beyond reasonable doubt.
• Statutory Damages: Fixed monetary penalty (here, up to $1,000) designed to encourage compliance even when compensatory damages are trivial or moot.
• Personal Knowledge (Evid.R. 602): A witness (or affiant) may testify only to matters of which they have firsthand awareness; “belief” is insufficient.
• Mootness Doctrine: If the requested act (record production) occurs after filing, the core mandamus claim is moot, but ancillary relief (statutory damages, fees) may survive.

5. Conclusion

Howard v. Plank sharpens the contours of Ohio’s Public Records Act in two respects. First, it confirms that a relator shoulders a stern burden: without corroborative evidence, a self-serving affidavit rarely clears the clear-and-convincing bar. Second, by crediting an agency affidavit grounded in “sincere belief,” the Court tacitly loosens the personal-knowledge rigidity previously associated with affidavits—at least in public-records settings—thereby narrowing the path to statutory damages. The dissent underscores the tension this creates with traditional evidentiary doctrine and warns of ramifications for governmental transparency.

Future litigants should meticulously document each step of their requests and follow-up communications. Agencies, conversely, should recognize that while the evidentiary bar has in practice been lifted slightly, maintaining dated, verifiable production logs remains the best defense against both mandamus and statutory damages.