Ohio Public-Records Mandamus: R.C. 2969.25 Inapplicable in Supreme Court Original Actions; Records Schedules Don’t Prove Possession; Unreasonable Delay Triggers Statutory Damages

I. Introduction

This decision arises from an inmate’s public-records request to the Knox County Prosecuting Attorney. Relator Tony Fenstermaker (an inmate at Southeastern Correctional Institution) sought three categories of records by certified mail: (1) “certified statements” for 2016–2021 allegedly “pursuant to R.C. 309.16,” (2) the office’s records-retention schedule, and (3) a “cashbook or journal” for 2016–2022 allegedly “pursuant to R.C. 2335.25.” When the prosecutor did not respond before suit, Fenstermaker filed an original mandamus action in the Supreme Court of Ohio seeking production, statutory damages, and costs.

The key issues were: (a) whether inmate-filing affidavit requirements in R.C. 2969.25 required dismissal in a Supreme Court original action; (b) whether the mandamus claims were moot after partial production; (c) whether Fenstermaker proved the existence of the remaining requested records; and (d) whether the prosecutor’s delay warranted statutory damages even though the requested schedule was eventually produced.

II. Summary of the Opinion

The opinion is per curiam. Justice Fischer concurred but “would not award statutory damages.”

III. Analysis

A. Precedents Cited (and How They Shaped the Decision)

• State ex rel. Wells v. Lakota Local Schools Bd. of Edn., 2024-Ohio-3316, ¶ 11: Cited for the baseline proposition that mandamus is an appropriate remedy to enforce R.C. 149.43 (along with the statute’s enforcement provision).
• State ex rel. Griffin v. Sehlmeyer, 2021-Ohio-1419, ¶ 10: Supplied the governing burden: clear and convincing evidence of a clear legal right to the records and a clear legal duty to provide them.
• State ex rel. Lanham v. Smith, 2007-Ohio-609, ¶ 15, citing State ex rel. Ohio Patrolmen's Benevolent Assn. v. Mentor, 2000-Ohio-214, ¶ 37: Anchored the rule that a public office has no duty to create or provide access to nonexistent records—critical to denying the “certified statements” and “cashbook” requests.
• State ex rel. McDougald v. Greene, 2018-Ohio-4200, ¶ 10: Supported the holding that R.C. 2969.25’s inmate-affidavit requirements do not apply to original actions commenced in the Supreme Court of Ohio.
• State ex rel. Martin v. Greene, 2019-Ohio-1827, ¶ 7-8: Established the mootness framework: production of records moots the writ request but does not necessarily moot a claim for statutory damages.
• State ex rel. Scott v. Toledo Corr. Inst., 2024-Ohio-2694, ¶ 12 and State ex rel. Cordell v. Paden, 2019-Ohio-1216, ¶ 8: Reinforced that the requester bears the burden to prove the records exist and are maintained by the office.
• State ex rel. Mobley v. Bates, 2024-Ohio-2827, ¶ 9 and State ex rel. Mobley v. Witt, 2025-Ohio-868, ¶ 13: Provided the specific doctrinal answer to Fenstermaker’s “records schedule” argument: a records-retention schedule entry (or generalized references to receipts/expenditures) is not clear and convincing evidence that the specific demanded record (here, an R.C. 2335.25 “cashbook”) exists.
• State ex rel. Ayers v. Sackett, 2025-Ohio-2115, ¶ 30 and State ex rel. Ware v. Akron, 2021-Ohio-624, ¶ 18: Framed statutory damages: certified-mail request + failure to comply with R.C. 149.43(B) obligations + damages accruing per business day; and that unreasonable delay can justify damages regardless of the custodian’s good or bad faith.
• State ex rel. Mobley v. Powers, 2024-Ohio-104, ¶ 33 and State ex rel. Mobley v. Powers, 2024-Ohio-3315, ¶ 9-11: Supplied the “reasonable time” analytical factors and an example where a nearly three-month delay is unreasonable when the request is narrow, responsive records are few, and no redactions are needed—mirroring the facts here (one document; no redactions).
• State ex rel. Cincinnati Enquirer v. Deters, 2016-Ohio-8195, ¶ 23 and State ex rel. Morgan v. Strickland, 2009-Ohio-1901, ¶ 12-16: Explained that “reasonable time” is fact-specific, looking to scope, volume, and redaction/review needs.
• State ex rel. Straughter v. Dept. of Rehab. & Corr., 2023-Ohio-1543, ¶ 16 (cited via Mobley v. Powers, 2024-Ohio-104, ¶ 35): Supported denial of costs where the relator filed an indigency affidavit and thus incurred no taxable costs.

B. Legal Reasoning

1. Threshold procedural defense: R.C. 2969.25 does not apply in Supreme Court original actions

The prosecutor sought dismissal because Fenstermaker (as an inmate) did not file the litigation-history affidavit and related financial disclosures required by R.C. 2969.25. The Court rejected the defense not by excusing noncompliance, but by holding the statute inapplicable: R.C. 2969.21(B) defines “[c]ivil action or appeal against a government entity or employee” to exclude a civil action commenced in the Supreme Court of Ohio. Because Fenstermaker filed an original action in that court, the R.C. 2969.25 requirements did not attach.

2. Mootness: production moots the writ only as to produced records

Applying State ex rel. Martin v. Greene, the Court held Fenstermaker’s request for a writ became moot as to the records-retention schedule once it was provided. But the Court carefully limited mootness to what was actually produced; the prosecutor’s explanatory letter did not moot demands for other records that were never produced.

3. Existence and possession: denial of mandamus for records not proven to exist

On the “certified statements” (2016–2021), Fenstermaker offered no evidence contradicting the prosecutor’s statement that the office had no responsive records. The Court held Fenstermaker failed to meet his clear-and-convincing burden to prove existence/maintenance of the records and therefore could not establish a clear legal right to their production.

On the “cashbook or journal” (2016–2022), Fenstermaker argued responsive records must exist because the retention schedule referenced accounts (e.g., “Furtherance of Justice Fund,” “Drug Enforcement Trust Fund,” “Law Enforcement Trust Fund,” “Delinquent Tax Collection”). The Court rejected this inferential approach. First, Fenstermaker requested a specific type of record—an R.C. 2335.25 “cashbook”—and the prosecutor stated his office does not keep such a cashbook for common pleas cases because funds are deposited with the clerk of courts. Second, the Court relied on State ex rel. Mobley v. Bates and State ex rel. Mobley v. Witt to hold that a retention schedule does not, by itself, prove the office possesses the specific demanded record. Without clear and convincing evidence of existence and maintenance, mandamus cannot compel production.

4. Statutory damages: unreasonable delay despite eventual production

Even though the schedule was later produced (mooting the writ), the Court held the damages claim remained live. Under R.C. 149.43(B)(1), a public office must produce copies “within a reasonable period of time.” Considering the factors articulated in State ex rel. Cincinnati Enquirer v. Deters and applied in State ex rel. Mobley v. Powers (scope, volume, redactions), the Court deemed the nearly three-month delay unreasonable because: (i) two categories did not exist and the third was a single document; (ii) no redactions were needed; (iii) once suit was filed, the prosecutor located the schedule and responded within two days, undercutting any claim of operational difficulty.

Damages were calculated under R.C. 149.43(C)(2) at $100 per business day starting from the mandamus filing date (January 21, 2025) through the date the prosecutor mailed the schedule (January 30, 2025), totaling seven business days and $700. The Court emphasized (via State ex rel. Ware v. Akron) that unreasonableness, not bad faith, drives statutory damages.

Separate writing: Justice Fischer concurred in the judgment but “would not award statutory damages,” signaling an internal disagreement on whether the delay/damages prerequisites were met or how strictly damages should be applied on these facts, even though the per curiam opinion treated the statutory-damages analysis as straightforward under existing precedent.

5. Court costs: none to award after indigency filing

Because Fenstermaker filed an affidavit of indigency, the Court held there were no costs to tax against the respondent, following State ex rel. Mobley v. Powers (2024-Ohio-104) and State ex rel. Straughter v. Dept. of Rehab. & Corr..

C. Impact

• Clarifies inmate procedural hurdles in Supreme Court original actions: The opinion reinforces that R.C. 2969.25—often outcome-determinative in lower-court inmate civil filings—does not provide a dismissal mechanism in Supreme Court original actions. This is practically significant in public-records mandamus cases filed directly in the Supreme Court of Ohio.
• Elevates evidentiary rigor for “records must exist” arguments: Requesters cannot rely on the existence of a retention schedule (or general accounting references) to prove a specific record exists. Future litigants should expect courts to demand direct, record-specific proof of existence and maintenance when an office attests a record does not exist.
• Encourages prompt responses even for simple requests: By awarding damages for a delay involving essentially one producible document, the Court signals that inertia (or overlooking a request) can be costly. Public offices should implement tracking and timely acknowledgment/production practices, especially where no review or redaction is required.
• Separates the writ remedy from the damages remedy: The decision continues the line of cases allowing statutory damages after production moots the writ, preserving incentives to comply promptly rather than “produce only after suit.”

IV. Complex Concepts Simplified

• Mandamus: A court order compelling a public official to perform a clear legal duty—here, the duty to provide public records under R.C. 149.43.
• Mootness (in public-records cases): If the office provides the requested record, the request for an order compelling production is usually moot. But claims for statutory damages can remain, because they address harm from delay.
• Clear and convincing evidence: A high evidentiary standard. In this setting, the requester must strongly demonstrate the records exist and are kept by the office; speculation or inference from generalized documents is often insufficient.
• Records-retention schedule: A document listing categories of records an office is supposed to retain and for how long. This opinion stresses that a schedule is not proof the office actually has a specific record at the time requested.
• Statutory damages (R.C. 149.43(C)(2)): Money awarded for failure to meet public-records obligations, commonly for unreasonable delay. It is calculated per business day (up to a cap), starting from the filing of the mandamus action, not from the date of the request.
• “Reasonable time”: Not defined by a fixed number of days; courts look to context—how broad the request is, how many records exist, and whether legal review/redaction is needed.

V. Conclusion

State ex rel. Fenstermaker v. McConville consolidates three practical rules for Ohio public-records litigation: (1) inmate-affidavit requirements in R.C. 2969.25 do not apply to original actions filed in the Supreme Court of Ohio; (2) a retention schedule does not, without more, establish that a demanded record exists or is possessed by the office; and (3) even where production later moots the writ, an unreasonable delay—especially for a narrow request involving a single unredacted document—can trigger statutory damages. The result denies the writ but awards $700, underscoring that delay itself can be the actionable wrong under the Public Records Act.