State ex rel. Fenstermaker v. VanEerten: Nonexistence of Prosecutorial Cashbooks and the Evidentiary Burden in Ohio Public-Records Mandamus

I. Introduction

In State ex rel. Fenstermaker v. VanEerten, Slip Opinion No. 2025-Ohio-5298, the Supreme Court of Ohio addressed a narrow but practically important question in Ohio public-records law: what must a requester prove, and what may a public office rely on, when the office asserts that a requested record does not exist?

The relator, Tony Fenstermaker, an inmate acting pro se, sought a writ of mandamus compelling the Ottawa County Prosecutor’s Office to produce a “cashbook or journal” allegedly required under R.C. 2335.25, as well as statutory damages under R.C. 149.43(C)(2), Ohio’s Public Records Act. The respondent, Prosecuting Attorney James VanEerten, responded that no such cashbook exists or has existed during his tenure because the office does not accept funds that would trigger the statutory duty to keep one.

The case lies at the intersection of three strands of Ohio law:

the Ohio Public Records Act, R.C. 149.43;
mandamus as the enforcement mechanism for public-records obligations; and
the specific statutory framework for prosecutorial “cashbooks” under R.C. 2335.25.

The Court clarifies and reinforces a line of recent cases holding that:

a public office has no duty to produce records that do not exist;
a sworn affidavit from the public office attesting to nonexistence is sufficient to disprove the existence of records, unless rebutted by clear and convincing evidence; and
the mere presence of a record type in a county-wide records-retention schedule does not constitute evidence that a particular office actually maintains that type of record.

In doing so, the Court also interprets R.C. 2335.25 to mean that a prosecutor’s statutory duty to maintain a cashbook is conditional on the office actually collecting or receiving funds in an official capacity, and it reiterates that a relator’s requested relief in mandamus is strictly limited to what is pleaded in the complaint.

II. Factual and Procedural Background

A. The Public-Records Request

On January 28, 2025, Fenstermaker, then incarcerated at the Southeastern Correctional Institution, submitted a certified-mail public-records request to the Ottawa County Prosecutor’s Office. He requested paper copies of three categories of records:

Certified statements, 2018–2024: “Certified statements for years 2018–2024 pursuant to [former] R.C. 309.16.” These are annual reports historically required of county prosecutors.
Records-retention schedule: The county’s or office’s records-retention schedule.
Cashbook or journal, 2018–2025: A “cashbook or journal for year[s] 2018–2025, pursuant to R.C. 2335.25.”

On February 12, 2025, Prosecutor VanEerten responded:

He produced annual reports for 2018–2022, noting that former R.C. 309.16 had been repealed before the 2023 reporting deadline.
He produced a copy of the county’s records-retention schedule.
He denied the request for a cashbook or journal, stating that the prosecutor’s office does not keep one.

B. The Mandamus Action

On March 17, 2025, Fenstermaker filed this original action in mandamus in the Supreme Court of Ohio. In his complaint, he:

acknowledged receiving the retention schedule and annual reports for 2018–2022;
acknowledged being informed that the prosecutor’s office does not keep a cashbook; and
asserted that the county records-retention schedule suggests that the prosecutor’s office does maintain such a cashbook, at least through 2022.

Based on that premise, he asked:

for a writ of mandamus compelling production of the cashbook, and
for $1,000 in statutory damages under R.C. 149.43(C)(2).

The prosecutor’s office moved to dismiss. The Court denied that motion, ordered an answer, and issued an alternative writ setting a schedule for evidence and briefing. (2025-Ohio-1876.) The prosecutor filed an answer and evidence; only Fenstermaker filed a merits brief.

C. Evidence Submitted

1. Relator’s Evidence

Fenstermaker’s evidence included:

his own affidavit;
a copy of his certified-mail public-records request; and
Prosecutor VanEerten’s written response.

In his affidavit, he averred that he had never received:

“the complete Certified Statement Annual Report,” and
the requested cashbook.

2. Respondent’s Evidence

The prosecutor’s office submitted:

an affidavit from Prosecutor VanEerten; and
a copy of his written response to the request.

Key assertions from VanEerten’s affidavit included:

Since he assumed office in January 2017, the prosecutor’s office has not maintained a cashbook under R.C. 2335.25.
The office’s policy is not to accept any payments (cash or otherwise) for fines, costs, penalties, or other court-assessed amounts.
To his knowledge, the office has never directly accepted payments for fines, penalties, or other monetary amounts under R.C. 2335.25 or R.C. 2335.27.
The produced records-retention schedule is a county-wide, “all-encompassing” schedule, containing categories of records “not applicable to all offices.” It is used by most, if not all, elected officials, but not every category applies to each office.

III. Summary of the Opinion

The Supreme Court of Ohio, per curiam and unanimously, denied the writ of mandamus and denied statutory damages.

The Court held:

Scope of relief limited to complaint: Although Fenstermaker argued in his brief that the prosecutor failed to produce “complete” annual reports under former R.C. 309.16, his complaint requested mandamus relief only as to the cashbook. Under Supreme Court Practice Rule 12.02(B)(3), relief is confined to what is pleaded in the complaint. Thus, the Court limited the case to the cashbook request.
No clear and convincing evidence the cashbook exists: Mandamus is an appropriate vehicle to enforce compliance with the Public Records Act, but the relator must prove, by clear and convincing evidence, a clear legal right to the records and a corresponding duty of the office to produce them. Where uncontroverted evidence shows the requested documents do not exist, mandamus will not issue. The Court accepted the prosecutor’s affidavit that no cashbook exists and held that Fenstermaker’s reliance on a general county retention schedule was insufficient to rebut that affidavit.
No statutory damages: Statutory damages under R.C. 149.43(C)(2) require proof that the public office failed to comply with an obligation under R.C. 149.43(B). By informing Fenstermaker that the cashbook does not exist, the prosecutor’s office complied with its obligation, and therefore no statutory damages were available.

The decision thus affirms that a public office does not violate the Public Records Act when, supported by sworn evidence, it states that a requested record does not exist, and it clarifies that a generalized retention schedule does not prove that a specific record type is, or ever was, actually maintained by a given office.

IV. Analysis

A. Precedents Cited and Their Influence

The Court situates this case within a consistent line of Ohio Supreme Court precedents governing mandamus for public records, the evidentiary burden of showing record existence, and the function of retention schedules.

1. Relief Limited to the Complaint: State ex rel. Scott v. Toledo Corr. Inst. (2024-Ohio-2694)

The Court relies on State ex rel. Scott v. Toledo Corr. Inst. to reject Fenstermaker’s attempt—via briefing—to broaden his requested relief beyond the cashbook to alleged deficiencies in the certified annual reports.

In Scott, the Court held that:

a relator cannot receive relief not requested in the complaint, and
Supreme Court Practice Rule 12.02(B)(3) requires that all relief sought in an original action be set out in the complaint itself, including any alternative writs.

Here, although Fenstermaker’s merit brief argued that the annual reports were incomplete, his complaint sought a writ only to compel production of the cashbook. The Court, following Scott, held that the request for relief is “limited to the requested cashbook” (¶ 9).

2. Elements of Mandamus Under the Public Records Act: Wells and Ware

The basic framework for mandamus in the public-records context is drawn from:

State ex rel. Wells v. Lakota Local Schools Bd. of Edn., 2024-Ohio-3316, and
State ex rel. Ware v. Beggs, 2024-Ohio-611.

From Wells (¶ 11), the Court reiterates that mandamus is an appropriate remedy to compel compliance with R.C. 149.43, Ohio’s Public Records Act.

From Ware (¶ 11), the Court restates the basic elements:

The relator must prove, by clear and convincing evidence, a clear legal right to the requested records and a corresponding clear legal duty on the part of the public office to provide them.
The relator has the burden to plead and prove that:
- he made a public-records request under R.C. 149.43(B)(1), and
- the public office failed to make the record available.

Fenstermaker is squarely controlled by these principles; the decisive issue becomes whether, under this standard, the relator met his burden of proving that the requested cashbook actually exists or existed, and that the prosecutor’s office maintained it.

3. Nonexistence of Records & Affidavits: Hedenberg, Scott, and Culgan

The Court next draws on a line of authority addressing what happens when a public office responds that a requested record does not exist, and what kind of proof is needed to overcome that assertion.

State ex rel. Hedenberg v. N. Cent. Corr. Complex, 2020-Ohio-3815: “A writ of mandamus will not issue when the uncontroverted evidence shows that the requested documents do not exist” (¶ 10, quoting ¶ 7 of Hedenberg).
State ex rel. Scott v. Toledo Corr. Inst., 2024-Ohio-2694: A public office has no duty to produce records that do not exist, and absent contrary evidence, nonexistence may be established via affidavit.
State ex rel. Culgan v. Jefferson Cty. Prosecutor, 2024-Ohio-4715: To rebut an affidavit that a record does not exist, the relator must present clear and convincing evidence of the record’s existence.

In Fenstermaker, these rules are applied in a straightforward way:

Prosecutor VanEerten submitted an affidavit swearing that:
- the office has not kept a cashbook under R.C. 2335.25 since he took office in 2017; and
- the office has a policy of not accepting payments for fines or related obligations, and to his knowledge has never done so under R.C. 2335.25 or 2335.27.
Fenstermaker offered only the county-wide records-retention schedule and his own assertion that it “suggests” the existence of a cashbook.

Applying Culgan, the Court held that this was insufficient to meet the clear-and-convincing standard or to rebut the sworn affidavit. Therefore, under Hedenberg and Scott, mandamus cannot issue.

4. Retention Schedules and Record Existence: Mobley v. Witt and Mobley v. Bates

A central factual theory advanced by Fenstermaker is that the presence of a “cashbook” category in the county records-retention schedule proves that the prosecutor’s office must have such a record. The Court rejects this theory by relying on two closely related precedents:

State ex rel. Mobley v. Bates, 2024-Ohio-2827, and
State ex rel. Mobley v. Witt, 2025-Ohio-868.

In Mobley v. Bates, the Court held that:

“the existence of a particular records schedule at a public office does not necessarily mean that the public office has records encompassed by that schedule.” (Mobley v. Bates, 2024-Ohio-2827, ¶ 9; quoted in Fenstermaker, ¶ 13.)

Mobley v. Witt applied that principle directly to the public-records context and clarified that:

Evidence that a public office has a general retention schedule naming certain record types does not, without more, constitute clear and convincing evidence that such records exist;
And a public office satisfies R.C. 149.43(B) by informing the requester that the record does not exist (see Witt, ¶ 22, cited in Fenstermaker ¶ 14).

In Fenstermaker, the Court adopts this logic explicitly:

The prosecutor’s office uses a county-wide schedule with categories not applicable to all elected officials (¶ 8).
Accordingly, the mere inclusion of a “cashbook” category in the schedule does not prove that the prosecutor’s office in fact has—or ever had—a cashbook (¶ 13).

Thus, Mobley is pivotal in undercutting the evidentiary value of the retention schedule and in supporting the conclusion that the relator did not meet the clear-and-convincing standard.

5. Compliance and Statutory Damages: Mobley v. Witt

For statutory damages, the Court again relies on Mobley v. Witt. R.C. 149.43(C)(2) allows statutory damages only if a court finds that the public office failed to comply with an obligation in R.C. 149.43(B).

From Witt, the Court draws a key principle: when a public office informs the requester that a record does not exist, it has complied with its duty under R.C. 149.43(B) (¶ 22 of Witt, cited at ¶ 14 of this opinion). That principle directly disposes of Fenstermaker’s claim for the $1,000 statutory award.

B. The Court’s Legal Reasoning

1. Procedural Narrowing: Relief Bound to the Complaint

The Court first trims the case to its proper scope. Although Fenstermaker’s brief raises new complaints about the completeness of annual reports under former R.C. 309.16, the Court enforces S.Ct.Prac.R. 12.02(B)(3): all relief sought must be set forth in the complaint.

Thus, the Court holds:

Only the request to compel production of the cashbook is properly before it (¶ 9).
Any argument regarding incomplete annual reports is outside the scope of the pleadings and therefore not cognizable in this mandamus action.

This reinforces a recurring theme in original actions: a merits brief cannot amend a complaint. Litigants must be precise and comprehensive in drafting their initial pleadings.

2. Mandamus Standard and the “Clear and Convincing” Burden

The Court then situates the dispute within standard mandamus doctrine applied to public-records claims.

To obtain a writ, a relator must show, by clear and convincing evidence:

a clear legal right to the records; and
a corresponding clear legal duty on the part of the public office to provide them.

“Clear and convincing evidence” is a level of proof higher than a mere “preponderance of the evidence” (more likely than not), but below “beyond a reasonable doubt.” It requires evidence that produces in the factfinder’s mind a firm belief or conviction as to the facts sought to be established.

Here, this standard operates in two steps:

Existence of a public-records request: There is no dispute that Fenstermaker made a valid written request under R.C. 149.43(B)(1) by certified mail.
Existence of the requested record: The dispositive issue is whether the cashbook exists (or existed) such that the prosecutor’s office was obligated to produce it.

3. Interpretation of R.C. 2335.25: Conditional Duty to Maintain a Cashbook

The Court briefly construes R.C. 2335.25. The statute requires that a county prosecuting attorney:

enter in a “cashbook or journal” an accurate account of all funds collected or received in an official capacity, and
treat the cashbook as a public record of the office.

However, the Court emphasizes a critical qualification:

“the statute does not require that a cashbook be kept if the prosecuting attorney does not collect or receive any funds in his official capacity” (¶ 11).

This interpretation aligns the statutory duty with the underlying factual condition: the office must keep a cashbook only if it actually handles funds. If it does not collect or receive money, the statutory precondition for a cashbook never arises.

Based on Prosecutor VanEerten’s unrebutted affidavit:

the office does not accept any payments for fines, costs, penalties, or related sums;
it has never directly accepted payments under R.C. 2335.25 or 2335.27; and
accordingly, it has not kept a cashbook since at least January 2017.

Thus, the statutory duty to maintain a cashbook never attached during the relevant period.

4. Nonexistence of Records and the Role of Affidavits

Relying on Hedenberg, Scott, and Culgan, the Court reaffirms:

A public office has no duty to produce non-existent records (¶ 12).
Nonexistence may be established by affidavit, absent contrary evidence (¶ 12).
The relator bears the burden to rebut the affidavit with clear and convincing evidence that the record exists (¶ 13).

Here, the only “contrary evidence” offered by Fenstermaker was:

the general county records-retention schedule, and
his own assertion that it “suggests” the existence of a cashbook.

The Court finds this insufficient, both in quantity and quality, to meet the clear-and-convincing threshold or to negate the sworn statement of the prosecutor.

5. Retention Schedules as Non-Evidence of Actual Records

The Court’s reasoning on retention schedules is perhaps the most practically significant aspect of the decision, especially for frequent public-records litigants (including incarcerated requesters).

Drawing from Mobley v. Bates and Mobley v. Witt, the Court holds:

The existence of a category in a county-wide retention schedule does not mean that every office actually maintains records of that type.
In fact, the schedule is explicitly described as “all-encompassing” and “not applicable to all offices” (¶ 8).
Therefore, “Fenstermaker’s evidence of the existence of a records-retention schedule is not clear and convincing evidence that rebuts” the affidavit that no cashbook exists (¶ 13).

This logic is critical because many public offices use standardized or county-wide retention schedules. If mere inclusion of a record type in such a schedule were enough to establish existence, requesters could effectively circumvent the nonexistence doctrine by pointing to the schedule alone. The Court forecloses that path.

6. Conclusion on Mandamus: No Record, No Writ

Because:

the prosecutor’s sworn affidavit establishes that no cashbook exists and that the statutory predicate (receipt of funds) never occurred, and
Fenstermaker has not provided clear and convincing evidence to the contrary,

the Court concludes that the relator has failed to prove:

a clear legal right to the requested records (there are no records), or
a corresponding legal duty on the office to produce them.

Accordingly, the writ of mandamus is denied (¶ 15).

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

Finally, the Court addresses the claim for $1,000 in statutory damages.

Under R.C. 149.43(C)(2), a requester may receive statutory damages if:

the request was submitted in writing by hand delivery, electronic submission, or certified mail;
the request fairly described the public record or class of records; and
a court determines that the public office failed to comply with an obligation under R.C. 149.43(B).

Only the third element is in dispute. Here, the prosecutor’s office:

timely responded; and
expressly informed Fenstermaker that the requested cashbook does not exist.

Citing Mobley v. Witt, the Court holds that:

By informing the requester of nonexistence, the office complied with R.C. 149.43(B) (¶ 14).
Because there was no failure to comply, statutory damages are unavailable.

Thus, the statutory-damages claim falls with the mandamus claim.

C. Impact of the Decision

1. Reinforcement of the “Nonexistence” Doctrine

This decision solidifies a now-established principle in Ohio public-records law: public offices are not required to produce, and cannot be penalized for not producing, records that do not exist. That sounds obvious, but in practice, disputes often center on whether the record “really” exists, particularly where retention schedules, historical practices, or statutory duties are at issue.

The Court’s rule, anchored in affidavits and a clear-and-convincing standard, makes it more difficult for requesters to win mandamus relief solely on speculation or generalized evidence:

Offices can defend nonexistence with a credible, sworn affidavit from an appropriate official.
Requesters must marshal strong, concrete evidence to overcome that affidavit—mere suspicion or inference from generic documents is insufficient.

2. Clarifying the Function of Retention Schedules

For practitioners and frequent requesters, this case, taken together with the Mobley decisions, significantly clarifies the role of records-retention schedules in public-records litigation:

A retention schedule is primarily a management tool, not a roster of currently existing records.
It may list record types that an office could create, not necessarily those it does create.
County-wide or “all-encompassing” schedules, in particular, are not tailored evidence of what each office actually maintains.

As a result, requesters cannot treat such schedules as proof of existence. This significantly undercuts a common argument in inmate-filed mandamus actions and will likely reduce the viability of many such cases relying on generic schedules.

3. Interpretation of R.C. 2335.25 and Prosecutorial Practices

The Court’s reading of R.C. 2335.25 has institutional implications for county prosecutor offices:

If a prosecutor’s office designs its operations so that it does not receive or collect court-imposed funds, it is not required to maintain a statutory cashbook.
Conversely, if an office does accept such funds directly, the statute would require a cashbook, and that cashbook would be a public record.

This creates a clear legal incentive for prosecutors to structure payment procedures so that clerks of court or other entities, rather than prosecutors, handle monetary collections. That in turn:

reduces the record-keeping burden on prosecutor offices; and
narrowly confines the universe of potentially discoverable financial records from those offices in public-records cases.

4. Practical Guidance for Public Offices

For public offices, particularly county prosecutors and other county-level officials, this case offers guidance:

Affidavits matter: A clear, specific affidavit from the official in charge, explaining both office policy and historical practice, can be decisive.
Explain nonapplicable retention categories: When using county-wide or generic retention schedules, offices should be prepared to explain which categories apply and which do not.
Respond clearly to nonexistence: Explicitly informing a requester that no record exists, with a brief explanation, can satisfy R.C. 149.43(B) and avoid both mandamus and statutory damages.

5. Practical Guidance for Requesters (Including Incarcerated Litigants)

For requesters, and especially incarcerated individuals who often file pro se mandamus actions:

Plead all desired relief in the complaint: Arguments about incomplete or missing records must be tied to express requests in the initial complaint, not raised for the first time in briefs.
Retention schedules are a weak foundation: They can help identify potential record types but do not, standing alone, prove that an office maintains those records.
Evidence must be concrete: To overcome an affidavit of nonexistence, requesters must present specific, persuasive evidence:
- prior copies of the record;
- testimony or documents showing the record was created; or
- statutory or policy documents directly linking the office’s operations to record creation.
Statutory damages are not automatic: Even when a request is properly made, the public office must have actually violated R.C. 149.43(B). Promptly explaining nonexistence is a defense.

6. Fit Within Recent Statutory Amendments to R.C. 149.43

The Court notes in a footnote that the General Assembly recently amended R.C. 149.43 in 2024 Sub.H.B. No. 265 (effective April 9, 2025) and that it applies the version enacted in 2024 Sub.S.B. No. 29 (effective October 24, 2024). (Fenstermaker, fn. 1.)

While the opinion does not delve deeply into the amendments, its methodology underscores that:

courts will apply the version of the statute in effect at the time of the public-records request and dispute; and
recent changes do not alter the fundamental principles governing nonexistence of records and statutory damages.

V. Complex Concepts Simplified

A. Mandamus

A writ of mandamus is a court order commanding a public official or public office to perform a specific legal duty. It is an extraordinary remedy used only when:

the relator has a clear legal right to the requested performance;
the public official has a clear legal duty to act; and
there is no adequate remedy in the ordinary course of law.

In Ohio, mandamus is the primary vehicle to enforce the Public Records Act against state and local agencies.

B. Relator and Respondent

Relator: The party seeking the writ—in this case, Tony Fenstermaker, the inmate requester.
Respondent: The public official against whom the writ is sought—in this case, Prosecutor James VanEerten, representing the Ottawa County Prosecutor’s Office.

C. Clear and Convincing Evidence

Clear and convincing evidence is a high evidentiary standard. It requires the proof to be:

more persuasive than a simple “more likely than not” showing (preponderance of the evidence);
sufficient to produce a firm belief or conviction in the mind of the court.

Here, it meant that:

Fenstermaker had to provide strong factual evidence—beyond speculation or inference—that the prosecutor’s office actually kept a cashbook.

D. Public Records and R.C. 149.43

Ohio’s Public Records Act (R.C. 149.43) generally gives any person the right to:

inspect public records; and
obtain copies within a reasonable time, at cost.

Public records are documents, devices, or items:

created or received by, or coming under the jurisdiction of, a public office; and
which document the organization, functions, policies, decisions, procedures, operations, or other activities of the office.

Under R.C. 149.43(B), public offices have obligations to:

promptly respond to requests;
make records available for inspection or copying; or
explain any denial, including where records do not exist or are exempt.

E. Records-Retention Schedules

A records-retention schedule is a document that lists types of records a public office may maintain and sets rules for how long they must be kept and when they may be destroyed.

Key points:

It does not guarantee that each listed record actually exists in that office;
It is often county-wide or standardized and may include categories not applicable to every office;
It is an administrative tool, not direct evidence of actual record creation or maintenance.

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

Statutory damages are a monetary remedy available in addition to, or in lieu of, actual damages. Under R.C. 149.43(C)(2), if a requester:

makes a qualifying written request; and
the public office fails to comply with its obligations under R.C. 149.43(B);

then the requester may receive a set amount of money (subject to statutory limits) without needing to prove actual financial harm.

However, if the public office:

responds promptly; and
properly explains that the requested record does not exist or is exempt;

it has complied with R.C. 149.43(B), and statutory damages are unavailable.

VI. Conclusion

State ex rel. Fenstermaker v. VanEerten is a concise but significant decision reinforcing the modern contours of Ohio’s public-records mandamus jurisprudence.

The Court:

Reaffirms that relief in mandamus is constrained by the relief pled in the complaint, not expanded by later briefing.
Clarifies that the prosecutor’s statutory duty to maintain a cashbook under R.C. 2335.25 is conditional, arising only if the office collects or receives funds in an official capacity.
Strengthens the doctrine that a public office has no duty to produce nonexistent records and that an affidavit of nonexistence is sufficient, absent clear and convincing evidence to the contrary.
Confirms that county-wide or generic records-retention schedules are not proof that a specific office actually maintains each listed type of record.
Applies existing precedent to hold that, by informing the requester of nonexistence, a public office complies with R.C. 149.43(B), precluding statutory damages.

Within the broader legal context, this decision:

aligns with and extends the Mobley-line of cases on retention schedules and nonexistence;
provides practical guidance for both public offices and requesters on how to litigate—and defend—public-records disputes; and
signals the Court’s continued insistence on rigorous pleading and proof standards, particularly in the increasingly common arena of inmate-initiated public-records mandamus actions.

In sum, Fenstermaker underscores that, in Ohio, successful public-records mandamus requires more than suspicion or generic documentation; it requires precise pleading, concrete evidence, and respect for the distinction between potential records (listed in retention schedules) and actual records (shown by clear and convincing proof of their existence).