Per‑Request Statutory Damages and Mootness in Ohio Public-Records Mandamus: Commentary on State ex rel. Castellon v. Swallow, 2025‑Ohio‑5576

I. Introduction

The Supreme Court of Ohio’s decision in State ex rel. Castellon v. Swallow, 2025‑Ohio‑5576, is a significant public-records mandamus case that clarifies several recurring issues under Ohio’s Public Records Act, R.C. 149.43, particularly as recently amended.

The court addresses:

• When a public-records mandamus action becomes moot after the respondent belatedly produces the requested records;
• How statutory damages under R.C. 149.43(C)(2) are calculated—especially where multiple public-records requests are at issue in a single mandamus case;
• Where and how a relator must challenge alleged improper destruction of public records (R.C. 149.351);
• The consequences of failing to brief a particular public-records claim (abandonment/forfeiture); and
• Limits on amending complaints and introducing rebuttal evidence in original actions in the Supreme Court of Ohio.

Relator Estephen Castellon, proceeding pro se after his release from prison, sought records relating to his 2016 criminal case from the Lakewood Police Department (“LPD”), with Chief Assistant Law Director Jennifer Swallow also named as a respondent. After the city initially denied or mishandled the requests—including an incorrect application of the “incarcerated requester” restriction in R.C. 149.43(B)(8)—Castellon filed a mandamus action in the Supreme Court of Ohio seeking an order compelling production, plus statutory damages, attorney fees, and court costs.

Ultimately, the court:

• Denied the writ as moot after concluding that all existing responsive records had been produced;
• Denied Castellon’s motion to amend his complaint;
• Awarded him $2,000 in statutory damages; and
• Denied his requests for attorney fees and court costs.

Justice Fischer concurred in the judgment except as to the award of statutory damages, signaling potential disagreement with the court’s approach to damages under the amended statute.

II. Factual and Procedural Background

A. The Underlying Public-Records Requests

After his release from prison, Castellon used the city’s online public-records portal to submit two public-records requests in 2024, both related to his 2016 criminal case.

1. February 23, 2024 request (body-camera and chain-of-custody items) (¶¶ 3–4)

On February 23, 2024, Castellon requested:

• Body-camera footage from two specifically identified officers for August 21, 2016; and
• Four items listed in a chain-of-custody report:
  1. A DVD containing a video interview;
  2. A buccal swab;
  3. A CD containing a phone interview; and
  4. A thumb drive containing documents from a search of his iPhone.

In its initial response, the police department told him that these records did not exist because they had been “expunged.” As later clarified in the litigation, this description was inaccurate at least as to the body-camera footage (it had been deleted under the retention schedule, not “expunged”) and incomplete as to the remaining items, some of which did in fact still exist and were later produced.

2. May 16, 2024 request (retention schedule and “court order”) (¶ 5)

On May 16, 2024, Castellon submitted a second public-records request seeking:

• The police department’s records-retention schedule; and
• “The court order that determined that the items [requested in February] were no longer needed as evidence.”

Swallow responded the same day, stating that the February 23 response was “not fully accurate,” but she denied the May 16 request on the ground that Castellon had not complied with R.C. 149.43(B)(8), the special requirement for “an incarcerated individual requesting public records concerning a criminal investigation or prosecution” (¶ 5). At that time, however, Castellon was not incarcerated; this was an erroneous application of R.C. 149.43(B)(8).

B. Initiation of Mandamus Action (¶¶ 6–7)

On January 17, 2025, Castellon filed an original action in mandamus in the Supreme Court of Ohio. He sought:

• A writ compelling respondents to produce all records identified in his February 23 and May 16, 2024 requests; and
• Statutory damages, attorney fees, and court costs.

The court issued an alternative writ, set a briefing schedule, and later referred the matter to mediation. The case was eventually returned to the regular docket after mediation failed to resolve it (¶ 7).

C. Respondents’ Evidence of Post-Suit Production (¶¶ 8–11)

Respondents submitted three affidavits—from Swallow, Sergeant David Acklin, and public-records manager James Motylewski—to show that, after the mandamus case commenced, they had produced all responsive records still in their possession:

• Body-camera footage Swallow attested that this footage had been deleted pursuant to LPD’s records-retention schedule, not “expunged” (¶ 8). Deleted records, “correctly or not,” cannot be produced.
• DVD video interview (first chain-of-custody item) Sergeant Acklin attempted to transmit the video electronically, then copied it to a DVD and mailed it to Castellon on March 14, 2025 (¶ 9).
• Buccal swab (second chain-of-custody item) Identified as a physical buccal swab, it was not produced (¶ 9). Swallow’s earlier letter also characterized it as physical evidence that “cannot be produced” in the sense of being copied and sent (¶ 11).
• Phone-interview recording (third item) and cellphone records (fourth item) Acklin copied the full phone-interview recording and iPhone-related records onto a thumb drive. Swallow attested that the thumb drive was mailed; Castellon received it on May 2, 2025 (¶ 9).
• Records-retention schedule Motylewski electronically sent the LPD retention schedule to Castellon on February 28, 2025 (¶ 10).

An April 30, 2025 letter from Swallow to Castellon (in the record) confirmed:

• The video interview and retention schedule had been produced;
• The body-camera footage no longer exists; and
• The thumb drive contained the requested phone-interview and cellphone records and could be accessed with specific software (¶ 11).

D. Castellon’s Later, Third Public-Records Request (May 4, 2025) and Motion to Amend (¶¶ 11–12, 17)

After filing the mandamus action, Castellon submitted a third, much broader public-records request (May 4, 2025) through the portal, seeking:

“all Audit logs of Deletion/Purging, IT Department Records, Chain of Custody Documentation, Policies and Procedures and Internal Communications related to the iPhone.” (¶ 17, emphasis and formatting omitted)

He then moved for leave to amend his complaint, arguing that:

• Respondents’ filings contained “inconsistencies” he needed to address;
• He wished to add allegations about improper destruction of public records (particularly the body-camera video);
• He wanted to introduce additional arguments and documents rebutting respondents’ assertion that all cellphone records were already produced; and
• He sought to add a new mandamus claim relating to the May 4, 2025 request (¶ 13).

Respondents opposed the amendment, arguing undue delay and prejudice. The court agreed and denied leave to amend (¶¶ 13–18).

III. Summary of the Court’s Decision

The Supreme Court’s key holdings can be summarized as follows:

1. Motion for leave to amend complaint denied (¶¶ 13–18) The court held that:
   • Castellon cannot litigate an “improper destruction” claim in a mandamus action in the Supreme Court; the exclusive statutory remedy lies in a separate action under R.C. 149.351(B) (Culgan applied).
   • New arguments and rebuttal evidence cannot be inserted via an “amended complaint”; they must be submitted as rebuttal evidence under S.Ct.Prac.R. 12.06(B), which Castellon did not do.
   • Adding a new mandamus claim based on the May 4, 2025 request after respondents had already filed their answer and evidence would unduly prejudice respondents and delay the case.
2. Mandamus relief denied as moot (¶¶ 19–25, 30) Because respondents had, by affidavit and documentation, shown that:
   • All existing responsive records (other than the buccal swab, which Castellon abandoned) had been produced; and
   • The body-camera footage no longer exists (having been deleted under the retention schedule),
   the court held that the mandamus claim to compel production was moot. A writ cannot issue to compel production of records that have already been provided or that do not exist.
3. Statutory damages awarded in the amount of $2,000 (¶¶ 26–28, 30) Despite the mootness of the writ, the court held that:
   • Castellon’s written electronic requests fairly described the records sought and triggered eligibility for statutory damages under R.C. 149.43(C)(2);
   • Respondents did not begin producing responsive records until approximately nine months after the 2024 requests, and well after the mandamus action was filed; and
   • Respondents conceded that Castellon was entitled to $2,000, and the court awarded that amount.
4. No attorney fees or court costs (¶ 29, 30) Because Castellon was pro se and had filed an affidavit of indigency, the court, relying on Woods, held that:
   • He could not recover attorney fees; and
   • There were no court costs to award.

In short: the mandamus claim was procedurally successful in prompting production and obtaining statutory damages, but substantively unsuccessful in obtaining a writ or further remedies.

IV. Detailed Legal Analysis

A. Mandamus Framework in Ohio Public-Records Cases (¶ 19)

Ohio’s Public Records Act, R.C. 149.43(B)(1), requires public offices to promptly make public records available for inspection and to provide copies within a reasonable period of time. A public-records request may be enforced via mandamus:

“A writ of mandamus is an appropriate remedy to compel compliance with R.C. 149.43.” (¶ 19, citing State ex rel. Howard v. Plank, 2025‑Ohio‑2325, ¶ 6)

To obtain mandamus relief, a relator must prove, by clear and convincing evidence:

• A clear legal right to the requested public records; and
• A corresponding clear legal duty on the part of the respondent to provide them. (¶ 19, citing State ex rel. Ware v. Sheldon, 2025‑Ohio‑1768, ¶ 10)

“Clear and convincing evidence” is a heightened civil standard—more than a preponderance, but less than proof beyond a reasonable doubt. It requires a firm belief or conviction as to the facts asserted. In the public-records context, this ordinarily means:

• Identifying the public office and the alleged records clearly;
• Showing that the records fall within the scope of “public record” under R.C. 149.43(A)(1); and
• Demonstrating that the office still possesses or controls the records and has not lawfully refused to disclose them.

B. Mootness When Records Are Produced After Suit Is Filed (¶¶ 19–23)

The court applies and reaffirms a critical doctrine in public-records mandamus: once a public office produces all existing responsive records, the mandamus claim for production is generally moot, even if the production was tardy:

“In general, however, providing the requested records to the relator after the suit is filed in a public-records mandamus case renders the mandamus claim moot.” (¶ 19, citing State ex rel. Grim v. New Holland, 2024‑Ohio‑4822, ¶ 5; State ex rel. Mobley v. LaRose, 2024‑Ohio‑1909, ¶ 7)

Here:

• Sergeant Acklin and Swallow attested to production of the video interview (DVD) and iPhone-related records (thumb drive) (¶ 9);
• Motylewski attested to production of the retention schedule (¶ 10); and
• Swallow’s April 30 letter documented these productions and explained how to access the thumb drive’s contents (¶ 11).

Castellon did not offer contrary evidence—only skepticism. The court found that he did not prove, by clear and convincing evidence, that additional responsive records existed but had not been produced:

“[Castellon] submits no evidence showing that unproduced records exist. Additionally, respondents’ evidence shows that Swallow sent Castellon a letter informing him that the cellphone records are accessible using particular software, and Castellon presents no evidence showing that he was unable to access the records using the software. Therefore, Castellon has failed to prove by clear and convincing evidence that additional responsive records exist.” (¶ 23)

This reinforces two important points:

1. Affidavits from public offices carry significant weight. Sworn statements that “all responsive records have been provided” create a strong presumption of compliance that a relator must counter with actual evidence (e.g., specific proof that a record exists and hasn’t been produced).
2. Mere assertion or suspicion is insufficient. Relators must do more than question the adequacy of a search; they must bring some affirmative proof that a specific requested record still exists and was withheld.

C. A Public Office Cannot Be Compelled to Produce Nonexistent or Destroyed Records (¶¶ 24–25)

Castellon argued that respondents should be required to perform a “digital audit” to verify deletion of the body-camera footage and to produce audit logs and related materials about his iPhone. The court rejected this on two levels:

1. Scope of the complaint and relief requested. The “digital audit” concept related to a later May 4, 2025 public-records request, which Castellon never pleaded in his original complaint. The court held that he cannot obtain relief beyond what was requested in the complaint:

   “Castellon did not address his May 2025 public-records request in his complaint, and he cannot obtain relief that was not requested in the complaint.” (¶ 25, citing State ex rel. Scott v. Toledo Corr. Inst., 2024‑Ohio‑2694, ¶ 14; S.Ct.Prac.R. 12.02(B)(3))

2. Limits of mandamus: no duty to reconstruct or replace destroyed records. Even if the body-camera footage was improperly destroyed, the remedy is not a writ of mandamus compelling production. The court, applying State ex rel. Culgan v. Jefferson Cty. Prosecutor, 2024‑Ohio‑4715, and State ex rel. Pietrangelo v. Avon Lake, 2016‑Ohio‑5725, reaffirms that:

   “Whether the requested body-camera footage was properly destroyed is not relevant to the issue whether Castellon is entitled to a writ of mandamus ordering production of the footage.” (¶ 25)

   “[A] public-records custodian cannot be compelled to produce records that do not exist.” (¶ 25, citing Pietrangelo, 2016‑Ohio‑5725, ¶ 20 (noting that records that had been destroyed, “correctly or not,” could not be produced))

If destruction was wrongful, the proper avenue is a civil action under R.C. 149.351(B)—not an original mandamus action in the Supreme Court (discussed further below).

D. Abandonment of Claims Not Addressed in the Merit Brief (¶ 20)

An important procedural point: Castellon’s mandamus claim as to the buccal swab was deemed abandoned because he did not address it in his merit brief:

“[Castellon] abandoned his mandamus claim regarding the buccal swab by failing to address it in his merit brief.” (¶ 20)

The court cited:

• State ex rel. Howard v. Watson, 2023‑Ohio‑3399, ¶ 16, 19 (relief narrowed to issues actually briefed); and
• State ex rel. Gregory v. Toledo, 2023‑Ohio‑651, ¶ 8 (forfeiture of mandamus claim not included in the merit brief).

In practical terms, this is a strong warning: in original actions before the Supreme Court of Ohio, a relator must fully brief every claim he or she intends to pursue. Claims not argued in the merit brief are treated as forfeited, even if they appeared in the complaint.

E. Motion for Leave to Amend the Complaint (¶¶ 13–18)

The court’s analysis of the amendment request provides guidance on how (and when) a relator in an original action may amend pleadings or introduce new evidence.

1. Governing rules: Civ.R. 15(A) and Supreme Court Practice Rules (¶ 14)

Once the time for amendment as of right has expired, a party must seek leave of court. Civ.R. 15(A) sets a “liberal” standard for amendments, but leave may be denied upon a showing of:

• Bad faith,
• Undue delay, or
• Undue prejudice to the opposing party.

The court expressly applies this standard in the context of original actions, citing State ex rel. Doe v. Capper, 2012‑Ohio‑2686, ¶ 8 (¶ 14). Supreme Court Practice Rules 12.04(A)(2) and 3.13(B)(3) provide the procedural backdrop.

2. Impermissible attempt to litigate improper destruction in mandamus (¶ 15)

Castellon sought to amend his complaint to assert that LPD had “improperly destroyed” the requested body-camera footage. The court rejected this outright:

“Castellon cannot bring a claim related to the improper destruction of public records in this court.” (¶ 15, citing Culgan, 2024‑Ohio‑4715, ¶ 11, and R.C. 149.351(B))

R.C. 149.351(B) provides a specific statutory remedy for unauthorized destruction of public records, which must be pursued in a civil action—not in an original action in the Supreme Court. This decision reinforces Culgan’s rule:

• Mandamus compels production of existing records;
• R.C. 149.351(B) actions address improper destruction and can seek damages, injunctive relief, and other remedies.

3. New arguments and rebuttal evidence must be presented as such, not via “amended complaint” (¶ 16)

Castellon also attempted to use an amended complaint to:

• Raise new arguments contesting respondents’ affidavits that all cellphone records had been produced; and
• Attach “new documents” as evidence.

The court held that these were not new claims, but simply new arguments and rebuttal evidence. For that, the appropriate mechanism is S.Ct.Prac.R. 12.06(B), which specifically governs rebuttal evidence:

“[R]elator may file a motion for leave to file rebuttal evidence within the time permitted for the filing of the relator’s reply brief” and “the rebuttal evidence shall be attached to the motion for leave.” (¶ 16)

Because Castellon did not file a motion for leave to submit rebuttal evidence under Rule 12.06(B), the court refused to accept his attempt to introduce rebuttal material via an amended complaint.

4. Prejudice and undue delay from adding a new mandamus claim based on the May 4, 2025 request (¶ 17)

Finally, Castellon sought to add a brand-new mandamus claim based on his May 4, 2025 public-records request. He did this:

• Nearly four months after filing the original complaint; and
• After respondents had already filed their answer and evidence, with their merit brief due in two weeks (¶ 17).

The court held that allowing such an amendment would unduly prejudice respondents and significantly delay the proceedings, and thus denied leave (¶ 17–18).

Taken together, these rulings underscore:

• Relators must bring any destruction-based claims (R.C. 149.351) in the proper forum and not attempt to fold them into mandamus;
• New arguments and rebuttal evidence must be properly presented under the Supreme Court’s practice rules; and
• Late amendments adding wholly new claims—especially about new requests—will be disfavored once the case is well underway.

F. Statutory Damages Under R.C. 149.43(C)(2) and the $2,000 Award (¶¶ 26–28)

Perhaps the most practically significant aspect of the decision is the court’s treatment of statutory damages.

1. Eligibility for statutory damages (¶¶ 26–27)

Under R.C. 149.43(C)(2), as described by the court:

“A requester who submits a written request by electronic submission, as Castellon did, may recover statutory damages if the request ‘fairly describes the public record or class of public records’ requested and a court determines that a public-records custodian failed to comply with an obligation set forth in R.C. 149.43(B).” (¶ 27)

The court notes the recent statutory amendments and clarifies that it is applying the version enacted by 2024 Sub.S.B. No. 29 (effective October 24, 2024), not the later version amended by 2024 Sub.H.B. No. 265 (effective April 9, 2025) (fn. 1).

In Castellon’s case:

• His requests were submitted electronically through the city’s online portal, satisfying the “written” and “electronic submission” requirement (¶ 3, ¶ 5, ¶ 27);
• The requests clearly and specifically described the records sought (body-cam footage, identified chain-of-custody items, retention schedule); and
• Respondents failed to comply with several obligations under R.C. 149.43(B)—including prompt production and correct application of R.C. 149.43(B)(8).

2. Accrual and amount: reading R.C. 149.43(C)(2) in light of the facts (¶¶ 27–28)

The court recites the basic structure of statutory damages:

“Statutory damages accrue at a rate of $100 for each business day that the records custodian fails to meet one of the custodian’s obligations under R.C. 149.43(B), starting on the day the requester files a mandamus action, up to a maximum of $1,000.” (¶ 27)

The record “shows that respondents did not start producing records responsive to Castellon’s February 23 and May 16, 2024 public-records requests until nine months after receiving the requests and more than ten business days after Castellon filed this action” (¶ 28). Respondents themselves acknowledged this delay and conceded that Castellon was entitled to $2,000 in statutory damages (¶ 21, ¶ 28).

The court accordingly awarded $2,000:

“Accordingly, we award Castellon $2,000 in statutory damages.” (¶ 28; see also ¶ 30)

3. The implicit “per-request” approach and its significance

The important structural point is this: the court refers to the statutory cap as $1,000 (¶ 27), yet awards $2,000 total (¶ 28). The facts involve two separate public-records requests (February 23 and May 16, 2024). The most plausible—and legally coherent—reading of the judgment is:

• The statutory cap of $1,000 applies per written public-records request, not necessarily per mandamus action; and
• Since Castellon had two qualifying requests, the court effectively allowed up to $1,000 per request, totaling $2,000.

Although the court does not explicitly say, “the cap is per request,” its application of the statute in this case strongly implies that understanding. The fact that Justice Fischer concurred “except as to the award of statutory damages” further suggests that the scope and stacking of damages under R.C. 149.43(C)(2) is a contested issue within the court.

In practical terms, this case stands as powerful authority that:

• A single mandamus action can encompass multiple written requests; and
• Each qualifying request can potentially yield its own statutory damages up to $1,000, resulting in an aggregate award greater than $1,000 per case, as occurred here ($2,000 for two requests).

G. Attorney Fees and Court Costs for Pro Se Indigent Relators (¶ 29)

The court’s denial of attorney fees and court costs follows from its prior decision in State ex rel. Woods v. Lawrence Cty. Sheriff’s Office, 2023‑Ohio‑1241.

Castellon:

• Proceeded pro se (without counsel); and
• Filed an affidavit of indigency (¶ 29).

Under Woods, a pro se relator who has an indigency affidavit:

• Cannot recover attorney fees, because there is no attorney-client relationship and no actual attorney fees incurred; and
• Cannot receive court costs, because the indigency filing essentially waives or prevents the assessment of costs in the first place (so there are “no court costs to award”).

Thus, even when a pro se, indigent relator prevails in part (as Castellon did in obtaining statutory damages), Ohio law does not provide for attorney fees or reimbursement of court costs.

V. Precedents Cited and Their Influence

The opinion is grounded in, and reinforces, several relatively recent Ohio Supreme Court decisions in the public-records arena.

A. State ex rel. Culgan v. Jefferson Cty. Prosecutor, 2024‑Ohio‑4715 (¶¶ 15, 25)

Culgan is central to two conclusions:

• No “improper destruction” claim in mandamus. The improper destruction of public records must be litigated under R.C. 149.351(B), not in mandamus (¶ 15).
• Destruction’s propriety irrelevant to mandamus relief. Whether destruction was proper does not affect whether a writ can issue ordering production of the destroyed records (¶ 25).

Castellon extends Culgan’s reasoning and firmly separates:

• Mandamus (production of existing records); from
• R.C. 149.351 actions (remedies for spoliation or unauthorized destruction).

B. State ex rel. Grim v. New Holland, 2024‑Ohio‑4822, and State ex rel. Mobley v. LaRose, 2024‑Ohio‑1909 (¶ 19)

These cases supply the rule that post-filing production of records generally moots the mandamus claim for production (¶ 19). Castellon is a straightforward application of that principle: once the DVD, thumb drive, and retention schedule were provided, no live controversy remained regarding the production of those records.

C. State ex rel. Ware v. Sheldon, 2025‑Ohio‑1768, and State ex rel. Howard v. Plank, 2025‑Ohio‑2325 (¶ 19)

These cases reaffirm the basic elements of public-records mandamus: a clear legal right, a clear legal duty, and proof by clear and convincing evidence. The court relies on them here to define the relator’s burden and to explain why Castellon’s speculative objections, unsupported by evidence, do not carry that burden (¶¶ 19, 23).

D. State ex rel. Howard v. Watson, 2023‑Ohio‑3399, and State ex rel. Gregory v. Toledo, 2023‑Ohio‑651 (¶ 20)

These decisions anchor the rule that claims not addressed in the merit brief are forfeited. Castellon uses them to find that Castellon abandoned his claim regarding the buccal swab (¶ 20).

E. State ex rel. Scott v. Toledo Corr. Inst., 2024‑Ohio‑2694 (¶ 25)

Scott supports the proposition that a relator cannot obtain relief beyond what is requested in the complaint (¶ 25). That principle is invoked to reject Castellon’s effort to obtain relief tied to the May 4, 2025 request, which he never pleaded.

F. State ex rel. Pietrangelo v. Avon Lake, 2016‑Ohio‑5725 (¶ 25)

Pietrangelo stands for the rule that a public office cannot be compelled to produce records that no longer exist—“correctly or not” destroyed (¶ 25). Castellon applies this to the deleted body-camera footage, underscoring that destruction’s lawfulness is a separate question from mandamus.

G. State ex rel. Woods v. Lawrence Cty. Sheriff’s Office, 2023‑Ohio‑1241 (¶¶ 26, 29)

Woods provides two propositions:

• Even when the writ is moot, claims for statutory damages, fees, and costs remain live (¶ 26–27); and
• A pro se relator with an indigency affidavit cannot recover attorney fees or court costs (¶ 29).

Castellon adheres to this framework and applies it almost mechanically once the mootness of the writ is established.

VI. Complex Concepts and Terminology Explained

A. Mandamus

Mandamus is an “extraordinary” writ issued by a court to compel a public official or agency to perform a clear legal duty. In the public-records context:

• The duty arises from R.C. 149.43’s command to make public records available; and
• The remedy is an order requiring the agency to produce specific records.

Unlike an appeal, which reviews a lower court’s decision, an original action in mandamus (like this one) is filed directly in the Supreme Court of Ohio to obtain a remedy based on an alleged violation of a legal duty.

B. “Clear and Convincing Evidence”

This standard requires evidence that produces a firm belief or conviction about the facts. In Castellon, this standard matters because:

• Respondents provided affidavits asserting full production of existing records; and
• Castellon offered no concrete evidence to contradict them.

Given this, the court concluded he had not met his burden to show that additional, unproduced responsive records existed.

C. Public Records and Records-Retention Schedules

A “public record” is broadly defined in R.C. 149.43(A)(1) as a record kept by a public office that documents the organization, functions, policies, decisions, procedures, operations, or other activities.

A records-retention schedule is itself a public record that:

• Lists categories of records maintained by the office; and
• Sets how long each category must be retained before it can be lawfully destroyed.

In Castellon, the retention schedule both:

• Was the subject of a public-records request; and
• Provided the justification for deletion of body-camera footage after a specified period.

D. R.C. 149.43(B)(8): Special Rule for Incarcerated Requesters

R.C. 149.43(B)(8) (in relevant part) restricts certain public-records requests by individuals who are currently incarcerated, typically requiring that the sentencing judge (or successor) make certain findings before a public office must respond to requests concerning criminal investigations or prosecutions.

Crucially:

• This restriction applies only to individuals who are incarcerated; and
• Once a person is released, the restriction no longer applies.

Swallow’s denial of Castellon’s May 16 request based on (B)(8) was erroneous because he was no longer incarcerated at that time (¶ 8). That misapplication contributed to the statutory damages award.

E. Statutory Damages Under R.C. 149.43(C)(2)

Statutory damages are a monetary remedy provided by statute when certain violations occur, regardless of actual pecuniary loss. Under R.C. 149.43(C)(2), as applied here:

• A requester who submits a written, electronic public-records request that fairly describes the records may be entitled to damages;
• If the public office fails to comply with certain obligations under R.C. 149.43(B), damages accrue at $100 per business day from the date the mandamus action is filed, up to a statutory cap (described here as $1,000 per request); and
• These damages are available even when the writ itself is ultimately denied as moot, as long as a violation occurred before compliance.

In Castellon, the combination of:

• Misleading or incorrect initial responses (e.g., “expunged” records);
• Erroneous invocation of R.C. 149.43(B)(8); and
• A substantial, months-long delay before starting to produce responsive records,

justified the award of the statutory maximum for each of the two 2024 requests ($2,000 total).

F. Records-Destruction Claims Under R.C. 149.351(B)

R.C. 149.351(B) provides a specific cause of action against public offices or officials who improperly destroy public records in violation of the retention laws. That statute allows:

• Civil actions for injunctive relief and/or damages;
• Actions typically filed in a court of common pleas, not as original actions in the Supreme Court.

Castellon confirms that such claims cannot be raised in a public-records mandamus action in the Supreme Court (¶ 15).

VII. Impact and Future Implications

A. For Public Offices and Records Custodians

1. Heightened exposure to cumulative statutory damages The award of $2,000 in statutory damages for two public-records requests in a single case suggests that public offices may face cumulative damages—up to $1,000 per qualifying request—rather than a global cap per lawsuit. This significantly increases the financial risk of systemic non-compliance or repeated errors in handling multiple requests from the same individual.
2. Importance of prompt, accurate initial responses LPD’s initial responses were:
   • Incorrectly describing records as “expunged” when they were merely deleted pursuant to a retention schedule; and
   • Erroneously invoking the incarcerated-requester restriction under R.C. 149.43(B)(8).
   These errors contributed directly to the damages award. Public offices must ensure:
   • Accurate characterization of the status of requested records;
   • Correct application of statutory exceptions and procedural restrictions; and
   • Timely commencement of record searches and productions after receipt of a request.
3. Affidavits as a tool to moot mandamus claims Detailed affidavits from responsible officials (such as Swallow, Acklin, and Motylewski) proved decisive in demonstrating that:
   • All existing responsive records had been produced; and
   • No further responsive records existed.
   Public offices should be prepared to submit comprehensive affidavits describing:
   • Searches undertaken;
   • Records located and produced; and
   • Any destruction or unavailability of records, with reference to retention schedules.
4. Segregating production vs. destruction issues Offices must understand that improper destruction issues (if any) will be litigated separately under R.C. 149.351. While destruction cannot be a basis for compelling production, it may nonetheless expose the office to other legal remedies if challenged in the proper forum.

B. For Requesters and Litigants

1. Strategic structuring of requests The apparent per-request cap on statutory damages encourages requesters to:
   • Submit clearly defined, discrete written requests (each potentially carrying its own statutory damages); and
   • Avoid bundling unrelated items into a single amorphous request when they could be reasonably segregated.
2. Preserving issues for review Relators must:
   • Ensure that every record or category for which relief is sought is clearly addressed in the merit brief; and
   • Avoid assuming that listing an item in the complaint alone is sufficient.
   Failure to brief a claim led to the abandonment of the buccal-swab claim in this case (¶ 20).
3. Choosing the correct remedy for destruction claims Those alleging improper destruction of public records must proceed under R.C. 149.351(B) in a civil action in an appropriate trial court, not in a mandamus action. Mixing the two may lead to dismissal or denial of leave to amend.
4. Using rebuttal evidence properly If a relator disputes a public office’s affidavits, the correct procedure is:
   • File a motion for leave to submit rebuttal evidence under S.Ct.Prac.R. 12.06(B) within the time for the reply brief; and
   • Attach the rebuttal evidence to that motion.
   Attempting to bypass this rule via an “amended complaint” was rejected in Castellon.
5. Understanding the limits of fees and costs for pro se litigants Pro se, indigent relators should recognize that:
   • They cannot recover attorney fees; and
   • With an indigency affidavit on file, courts generally will not tax costs against them, but correspondingly there are no costs to reimburse.

C. Doctrinal Clarifications

Beyond individual litigants and offices, the decision:

• Clarifies the interplay between the newly amended R.C. 149.43(C)(2) and multi-request cases;
• Reinforces a consistent line of cases that:
  • Moot mandamus claims after production;
  • Segregate destruction claims under R.C. 149.351; and
  • Require strict adherence to briefing and procedural rules in original actions.

VIII. Conclusion

State ex rel. Castellon v. Swallow, 2025‑Ohio‑5576, is a consequential public-records decision that:

• Denies a writ of mandamus as moot after complete post-suit production of existing responsive records;
• Holds that claims regarding allegedly improper destruction of records cannot be litigated in a mandamus action in the Supreme Court, but must proceed under R.C. 149.351(B);
• Reaffirms that claims not briefed in the merit brief are abandoned;
• Clarifies procedural expectations for amending complaints and submitting rebuttal evidence in original actions; and
• Most notably, awards $2,000 in statutory damages for two written public-records requests, effectively endorsing a “per-request” application of the $1,000 statutory cap under R.C. 149.43(C)(2).

By combining strict adherence to procedural rules with a robust enforcement of statutory damages, the court sends a dual message:

• Public offices must respond promptly and accurately to public-records requests or face meaningful monetary consequences; and
• Requesters must carefully structure, plead, and brief their claims, and must use the correct statutory pathways when challenging destruction rather than mere non-production of records.

In the broader legal context, Castellon further solidifies Ohio’s public-records jurisprudence under the evolving text of R.C. 149.43, underscoring the continuing vitality of mandamus as an enforcement tool while simultaneously delineating its limits and the separate domain of destruction-related claims under R.C. 149.351.