Public Offices May First Assert “No Responsive Records” in R.C. 149.43 Mandamus Litigation

Introduction

In State ex rel. Rosnick v. Geauga Cty. Sheriff's Office, Slip Opinion No. 2026-Ohio-1127 (Apr. 2, 2026), the Supreme Court of Ohio denied a public-records mandamus action brought by Jocelyn Rosnick of the ACLU of Ohio Foundation against the Geauga County Sheriff’s Office and Sheriff Scott A. Hildenbrand.

The dispute arose from a request under Ohio’s Public Records Act, R.C. 149.43, seeking any contracts, drafts of contracts, and related memorandums executed between June 1, 2024 and March 3, 2025 between the sheriff’s office and DHS, ICE, and/or the USMS. The sheriff’s office initially denied the request on the ground that federal law prohibited disclosure, but later submitted an affidavit attesting that it had executed no such contracts within the specified timeframe.

The key issues were (1) whether Rosnick proved, by clear and convincing evidence, that the sheriff’s office possessed responsive records it failed to produce; (2) whether the sheriff’s office could assert in litigation, for the first time, that it did not possess responsive records; and (3) whether Rosnick could file late rebuttal evidence after the sheriff’s office introduced the “non-possession” affidavit.

Summary of the Opinion

  • The court denied Rosnick’s motion to file rebuttal evidence as untimely under S.Ct.Prac.R. 12.06(B).
  • The court denied the writ because Rosnick failed to prove by clear and convincing evidence that the sheriff’s office possessed records responsive to her request that it had not produced.
  • The court held that R.C. 149.43 does not prohibit a public office from asserting for the first time in litigation that it does not possess records responsive to a public-records request.
  • The court denied statutory damages, attorney fees, and costs because Rosnick did not establish a violation of R.C. 149.43(B).

Analysis

Precedents Cited

1) Burden of proof and mandamus framework

  • State ex rel. Fenstermaker v. VanEerten, 2025-Ohio-5298: Cited for the baseline proposition that mandamus is an appropriate remedy to compel compliance with the Public Records Act. The Rosnick court used it to situate the action procedurally (mandamus as the enforcement mechanism).
  • State ex rel. Ware v. Beggs, 2024-Ohio-611: Supplied the controlling standard that the relator must prove by clear and convincing evidence both a clear legal right to the requested records and a corresponding clear legal duty to provide them—and must show she requested a public record and the office failed to make it available. This case did the heavy lifting in Rosnick by defining what Rosnick needed to prove (including possession, as a practical matter).
  • State ex rel. Horton v. Kilbane, 2022-Ohio-205: Provided the critical limiting principle: a public office has no clear legal duty to furnish records that are not in its possession or control. The Rosnick court treated this as the decisive rule once the sheriff’s office presented evidence of non-possession.

2) Ability to advance new defenses in litigation

  • State ex rel. Ware v. Smith, 2025-Ohio-1856: Cited for the proposition that, in defending a mandamus action under R.C. 149.43(C), a public office is generally not precluded from relying on additional reasons or legal authority supporting denial beyond what it stated at the time of the request (read together with R.C. 149.43(B)(3)). Rosnick relied on this general “litigation defenses not frozen” approach to reject Rosnick’s argument that the sheriff’s office had to disclose non-possession before suit.
  • State ex rel. Summers v. Fox, 2020-Ohio-5585: Recognized an exception: a public office may not newly assert “overbreadth” for the first time in litigation. The Rosnick court distinguished this exception and held it did not extend to non-possession defenses. This distinction effectively clarifies the boundary of Summers: overbreadth is special; non-possession is not treated the same.

3) Rebuttal evidence in original actions

  • State ex rel. Mobley v. Powers, 2024-Ohio-104 (quoting State v. McNeill, 1998-Ohio-293): Used to define rebuttal evidence and to emphasize that admission of rebuttal is discretionary. Rosnick sought to characterize her late submission as a “revision” under S.Ct.Prac.R. 3.13(B)(3), but the court treated it as rebuttal governed by S.Ct.Prac.R. 12.06(B), applying Mobley/McNeill’s definition to classify the evidence by function rather than label.

4) Remedies (damages/fees/costs) depend on a violation

  • State ex rel. Castellon v. Cuyahoga Cty. Prosecutor's Office, 2025-Ohio-2787: Cited to support that statutory damages are awarded only if the public office failed to comply with an obligation under R.C. 149.43(B).
  • State ex rel. Frank v. Clermont Cty. Prosecutor, 2021-Ohio-623: Cited as an example of denying attorney fees and costs where no breach of R.C. 149.43(B) is shown. Rosnick applied the same remedial logic: no violation, no fee/cost shifting.

Legal Reasoning

  1. Classification and timing of evidence submissions controlled the record. The court held that Rosnick’s proposed “revised evidence” was in substance rebuttal evidence, because it was offered to refute the sheriff’s office’s newly introduced affidavit claiming non-possession. Under S.Ct.Prac.R. 12.06(B), a motion for leave to file rebuttal evidence must be filed within the relator’s reply-brief window. Because Rosnick filed her motion after that window, the evidence was excluded as untimely, narrowing what the court would consider.
  2. Non-possession is dispositive in a public-records mandamus action. Applying Horton, the court reiterated that a public office has no duty to provide records it does not possess or control. The records clerk’s affidavit stated that the sheriff’s office did not execute any DHS/ICE/USMS contracts within the specified dates. With that evidence in the record—and with Rosnick lacking admissible rebuttal evidence—the court concluded Rosnick did not meet her clear-and-convincing burden to show the existence/possession of responsive records.
  3. The court constrained the case to the request as written. Rosnick argued the affidavit did not deny “modifications,” but the court emphasized that her request did not seek “modifications” generally; it sought contracts executed in a defined timeframe plus drafts/memoranda related to those executed contracts. If no contract was executed in that period, the court reasoned, then drafts or memoranda “related to such a contract” also would not exist. This is a request-construction move: the scope of the writ tracks the request’s textual boundaries.
  4. New rule/clarification: non-possession may be asserted for the first time in litigation. Rosnick argued the sheriff’s office was obligated to state non-possession before forcing litigation. The court rejected that argument by reading R.C. 149.43(B)(3) (explanation requirement upon denial) together with the doctrine that defenses in mandamus litigation are not limited to the reasons stated in the initial denial, citing Ware v. Smith. It then addressed Summers and clarified that while “overbreadth” cannot be newly raised in litigation, the statute does not prohibit newly asserting non-possession in litigation. This is the opinion’s central doctrinal contribution.
  5. Remedies fall with the merits. Because Rosnick failed to prove a violation of R.C. 149.43(B), the court denied statutory damages, fees, and costs under R.C. 149.43(C)(3) and (C)(4), relying on Castellon and Frank.

Impact

  • Strategic consequences for requesters: Relators must anticipate that an agency may defend by claiming non-possession even if its pre-suit denial invoked exemptions or federal-law prohibitions. This increases the practical importance of developing admissible proof of possession (or defects in the office’s search/affidavit) early, and of meeting procedural deadlines for rebuttal evidence in original actions.
  • Incentives for public offices: While the court did not endorse shifting rationales as best practice, it validated the litigation posture. Public offices can reduce exposure by (a) conducting a careful search and (b) being prepared to support non-possession through affidavit testimony. However, the opinion may also invite criticism that an initial “exempt by federal law” denial can obscure the simpler “we have none” explanation, potentially triggering avoidable litigation.
  • Doctrinal clarification post-Summers: The opinion draws a bright line: Summers’ limitation on raising “overbreadth” late does not extend to non-possession. Future disputes will likely focus on whether other defenses (e.g., ambiguity, lack of “record” status, lack of custody/control) are more like “overbreadth” (procedurally constrained) or like non-possession (freely asserted in litigation).
  • Request drafting and timeframes matter: By treating the request’s date range as dispositive, the decision underscores that requesters should consider broader time windows or alternative formulations (when justified) if they suspect ongoing contracting activity, renewals, task orders, or modifications that might not be captured by a narrow “executed between X and Y” formulation.

Complex Concepts Simplified

Mandamus (in public-records cases)
A court order compelling a public office to perform a legal duty—here, to provide public records required to be disclosed by R.C. 149.43.
Clear and convincing evidence
A heightened level of proof—more than “more likely than not,” less than “beyond a reasonable doubt.” In this context, it requires strong evidence that the office has responsive records and failed to provide them.
Non-possession defense
The argument that the office cannot be compelled to produce records it does not have or control. Rosnick confirms this can be asserted even if it was not the stated reason for denial before suit.
Rebuttal evidence
Evidence offered to refute new facts raised by the opposing party. In original actions at the Supreme Court of Ohio, it must be sought on a strict timetable (here, within the reply-brief timeframe under S.Ct.Prac.R. 12.06(B)).
Statutory damages / attorney fees / costs (R.C. 149.43(C))
Remedies available to a requester only if the office failed to comply with its disclosure obligations. If the requester cannot prove a violation, these remedies are denied.

Conclusion

State ex rel. Rosnick v. Geauga Cty. Sheriff's Office reinforces two practical realities of Ohio public-records litigation: (1) the relator must prove the office possesses responsive records to obtain a writ, and (2) a public office may defend a denial by asserting for the first time in litigation that it does not possess responsive records—an argument not barred by R.C. 149.43 and not subject to the Summers exception applicable to overbreadth.

The decision’s significance lies less in the federal-law exemption discussion (which became irrelevant once non-possession was credited) and more in its clarification of litigation posture under R.C. 149.43: the merits turn on possession and the requester’s ability to prove it within the procedural confines governing evidence in Supreme Court original actions.