Date: Feb 18, 2026

Passage of Time Alone Is Insufficient to Prove Unreasonable Delay for Ohio Public-Records Statutory Damages; No Duty to Produce Records Not Possessed

1. Introduction

State ex rel. Fenstermaker v. Grogan, Slip Opinion No. 2026-Ohio-482 (Feb. 17, 2026), is an original action in mandamus under Ohio’s Public Records Act, R.C. 149.43. The relator, Tony Fenstermaker (an incarcerated requester), sought an order compelling the respondent, Raymond A. Grogan Jr. (Marion County Prosecuting Attorney), to produce (1) “certified statements” for 2016–2021 and (2) a “cashbook or journal” for 2016–2022, and also sought statutory damages.

The case presented two recurring public-records issues: (a) whether a public office can be compelled to produce records it asserts it does not possess or control, and (b) what a requester must show to recover statutory damages for delayed production—particularly whether pointing to elapsed time, without more, suffices.

2. Summary of the Opinion

The Supreme Court of Ohio (per curiam) denied the writ and denied statutory damages.

Certified statements: The court held Fenstermaker abandoned his mandamus claim because his merit brief acknowledged receipt of the missing attachments and did not continue to argue entitlement to a writ as to those records.
Cashbook: The court denied mandamus because the only evidence (an affidavit from the prosecutor’s office manager) established the prosecutor’s office does not receive money and therefore has no responsive cashbook records.
Statutory damages: The court held Fenstermaker failed to carry his burden because he merely identified the passage of time and did not analyze “all of the pertinent facts and circumstances” bearing on whether the response time was unreasonable.

3. Analysis

A. Precedents Cited

1) Mandamus framework and burden of proof

State ex rel. Wells v. Lakota Local Schools Bd. of Edn., 2024-Ohio-3316: Cited for the proposition that mandamus is an appropriate vehicle to compel compliance with the Public Records Act.
State ex rel. Cincinnati Enquirer v. Sage, 2015-Ohio-974: Used to restate the classic mandamus elements in a public-records context: clear legal right and clear legal duty, proven by clear and convincing evidence.
Welsh-Huggins v. Jefferson Cty. Prosecutor's Office, 2020-Ohio-5371: Supplies the requester’s pleading-and-proof burden—showing a request for a public record and the office’s failure to make the record available.

2) Abandonment of a mandamus claim

State ex rel. Castellon v. Cuyahoga Cty. Prosecutor's Office, 2025-Ohio-2787: The court relied on this decision to hold that failing to argue entitlement to the writ in the merit briefing constitutes abandonment. Fenstermaker’s acknowledgment that he received the certified-statement attachments, combined with the absence of continued argument, ended that claim.

3) No duty to produce records not possessed or controlled

State ex rel. Mack v. State Hwy. Patrol Cent. Records, 2025-Ohio-1332: Supports denying a writ when the records custodian avers no responsive records exist and the relator offers no contrary evidence.
State ex rel. Adkins v. Cole, 2025-Ohio-1026: Provides the key doctrinal anchor: a public office has no obligation to furnish records not in its possession or control. The court invoked Adkins to avoid treating the cashbook dispute as merely “moot” due to the office’s voluntary forwarding of records obtained from another office (the county auditor).

4) Statutory damages: accrual and “reasonable period of time”

State ex rel. Horton v. Kilbane, 2022-Ohio-205: Cited for the mechanics of statutory damages: $100 per business day of noncompliance after filing, capped at $1,000.
State ex rel. Morgan v. Strickland, 2009-Ohio-1901: Establishes that “reasonable period of time” is not judged by time alone; courts evaluate “all of the pertinent facts and circumstances.”
State ex rel. Mobley v. Powers, 2024-Ohio-3315: Provides examples of “pertinent facts and circumstances,” including scope, volume, and whether redactions are needed.
State ex rel. Stuart v. Greene, 2020-Ohio-3685: Used to deny damages where the relator failed to articulate why a response time was unreasonable or what a reasonable time would have been. Fenstermaker’s briefing was treated as similarly deficient.

5) Dissenting authorities (Kennedy, C.J., and Brunner, J.)

While not adopted by the majority, the dissents placed competing precedent and interpretive principles into focus:

State ex rel. DiFranco v. S. Euclid, 2015-Ohio-4914 (Kennedy, C.J., dissent): Cited for the proposition that an obligation to produce is not satisfied until a complete set of responsive records is produced.
State ex. rel. Miller v. Ohio Dept. of Edn., 2016-Ohio-8534 (10th Dist.) (Kennedy, C.J., dissent): Used to argue that limited, clearly identified documents should be produced quickly and that post-complaint production supports damages.
State ex rel. Cincinnati Enquirer v. Deters, 2016-Ohio-8195 (Kennedy, C.J., dissent): Quoted for the “reasonable” inquiry’s dependency on circumstances (e.g., volume, redactions).
State ex rel. Baker v. Treglia, 2025-Ohio-2816 and State ex rel. Ware v. Akron, 2021-Ohio-624 (Kennedy, C.J., dissent): Cited to emphasize that negligence is not a defense and bad faith is unnecessary for damages.
State ex rel. Ware v. Giavasis, 2020-Ohio-3700 (Brunner, J., dissent): Invoked for the principle that a requester may be eligible for statutory damages even if mandamus relief is denied.
State ex rel. Mobley v. Dept. of Rehab. & Corr., 2022-Ohio-1765 and State ex rel. Hogan Lovells U.S., L.L.P. v. Dept. of Rehab. & Corr., 2021-Ohio-1762 (Brunner, J., dissent): Used to argue the court has previously awarded damages without demanding extensive “unreasonableness” briefing and that comparatively shorter post-complaint delays have supported awards.

B. Legal Reasoning

1) The cashbook claim: possession and proof control the outcome

Fenstermaker relied on R.C. 2335.25 (requiring a prosecuting attorney to keep an account of moneys “collected or received”) and on inferences drawn from the office’s retention schedule. The court, however, treated the dispositive question as evidentiary and practical: did the prosecutor’s office have responsive records?

With only the respondent’s affidavit in evidence, and with that affidavit stating the office does not receive money (and thus has no such cashbook), the court applied its established approach: absent contrary evidence from the relator, a no-records affidavit defeats mandamus. The court further clarified that even if the office voluntarily obtained records from the county auditor and sent them, that does not create a duty to produce records outside the office’s possession or control. In short, voluntary assistance does not expand the office’s statutory obligations.

2) Abandonment doctrine: narrowing claims through briefing

The court enforced a briefing-based waiver rule: once Fenstermaker acknowledged receiving the certified-statement attachments and did not continue to seek the writ for those records, the claim was deemed abandoned under State ex rel. Castellon v. Cuyahoga Cty. Prosecutor's Office, 2025-Ohio-2787. This underscores that public-records mandamus practice is not purely pleadings-driven; entitlement to the writ must be maintained and argued in merits briefing.

3) Statutory damages: “time alone” is not enough (majority’s rule)

The majority’s central damages holding is methodological: to prove an unreasonable delay under R.C. 149.43(B)(1), a relator must do more than point to elapsed time. The relator must analyze the circumstances—scope, volume, redactions, and other contextual factors—consistent with State ex rel. Morgan v. Strickland, 2009-Ohio-1901 and State ex rel. Mobley v. Powers, 2024-Ohio-3315.

The court also rejected Fenstermaker’s implicit framing that the office “ignored” him for months, noting that partial production occurred within about two weeks, and that the argument did not engage with why the remaining delay was unreasonable in context. Under State ex rel. Stuart v. Greene, 2020-Ohio-3685, the absence of a reasoned unreasonableness argument defeats damages.

4) Competing view (dissents): incompleteness equals noncompliance; damages are mandatory absent statutory findings

Chief Justice Kennedy and Justice Brunner agreed the writ should be denied, but contended damages should be awarded because the initial response was incomplete and the missing attachments were not produced until after the mandamus action was filed. They emphasized that (i) completeness matters (State ex rel. DiFranco v. S. Euclid, 2015-Ohio-4914), (ii) damages do not depend on ultimately obtaining a writ, and (iii) R.C. 149.43(C)(2) uses mandatory language (“shall be entitled”) with limited statutory grounds to reduce or deny damages.

The dissents thus framed the dispute less as a briefing sufficiency problem and more as a statutory-command problem: once there is a failure to comply (here, incomplete production), damages follow unless the court makes the specific statutory findings permitting reduction or denial.

C. Impact

1) Practical pleading and briefing consequences for requesters

Statutory damages claims must be “circumstances-based.” After Fenstermaker, relators should expect that identifying a number of days will not suffice; they should address the request’s scope, expected search/production burden, any redactions, and why the timeline was unjustified on those facts.
Maintain claims through merits briefing. The abandonment holding encourages careful, claim-by-claim briefing even where production occurs mid-litigation.

2) Reinforcement of the “no possession, no duty” boundary

The decision fortifies a bright-line limitation: a public office cannot be compelled to produce what it does not possess or control, even where the office can access records held by other governmental entities and even if it voluntarily retrieves them.
This may influence how requesters target requests—directing them to the correct custodian (e.g., county auditor/treasurer) rather than attempting to use one office as an intermediary.

3) Doctrinal tension likely to persist

The dissents spotlight an unresolved tension in Ohio public-records remedies: how demanding the court should be about a pro se (or any) relator’s “unreasonableness” analysis when R.C. 149.43(C)(2) is written in mandatory terms once noncompliance is found. Future cases may more sharply define whether Fenstermaker’s “analysis requirement” is a pleading/burden rule or effectively a new threshold for damages.

4. Complex Concepts Simplified

Mandamus: A court order compelling a public official to perform a clear legal duty—here, to produce public records required by law.
Clear and convincing evidence: A high level of proof—more than “more likely than not,” less than “beyond a reasonable doubt.”
“Reasonable period of time” (R.C. 149.43(B)(1)): Not a fixed deadline; courts evaluate context (how much was requested, how hard it is to locate, whether redactions are necessary, etc.).
Statutory damages (R.C. 149.43(C)(2)): Money awarded for noncompliance with public-records duties, calculated per business day after suit is filed (up to $1,000), if the statutory prerequisites are met.
Abandonment (waiver) in briefing: If a party stops arguing for a requested remedy in merits briefing, the court may treat the claim as given up.
Mootness: Courts often dismiss claims if the issue has been resolved (e.g., records produced). Here, the court noted a related point: even if records are later obtained elsewhere, an office still has no duty to produce records it never possessed.

5. Conclusion

State ex rel. Fenstermaker v. Grogan reinforces two core principles of Ohio public-records litigation. First, a public office generally cannot be compelled to produce records it does not possess or control, and a relator must counter a no-records affidavit with evidence. Second, for statutory damages based on delay, the majority requires more than a timeline; the relator must analyze why the delay was unreasonable under the case-specific circumstances. The dissents, however, highlight a competing statutory reading under which incomplete production constitutes noncompliance triggering mandatory damages unless the statute’s express reduction/denial findings are made—setting the stage for continued doctrinal development in future Public Records Act cases.