“Proof-of-Existence” Mandamus Standard under Ohio’s Public Records Act
A Comprehensive Commentary on State ex rel. Ames v. Big Walnut Local School District Board of Education, 2025-Ohio-2493

1. Introduction

State ex rel. Ames v. Big Walnut Local School District Board of Education is the Supreme Court of Ohio’s most recent exploration of the procedural burdens embedded in the Ohio Public Records Act, R.C. 149.43. At its core, the case arose from a citizen–watchdog’s suspicion that a high-school student representative improperly participated in a board’s executive session. Perceiving possible Open Meetings Act violations, Relator Brian M. Ames submitted a six-part public-records request focused on nondisclosure agreements and other confidentiality safeguards allegedly executed by the Board. After the Board refused production, Ames filed an original action in mandamus, seeking (1) the writ compelling disclosure, (2) statutory damages, (3) court costs, and (4) attorney fees.

The Supreme Court unanimously denied all relief. While multiple arguments were advanced below—ambiguity, FERPA confidentiality, and procedural impropriety—the Court resolved the matter on a threshold evidentiary point: Ames failed to prove that the requested records exist. The decision clarifies and amplifies an important evidentiary rule under the Public Records Act—one that often receives less attention than exemption-based defenses—and refines the pathway for statutory damages when records have not been produced.

2. Summary of the Judgment

• Mandamus relief denied. Absent “clear and convincing evidence” that the requested documents exist, a relator has no clear legal right to them and the public office has no corresponding duty to produce them.
• Statutory damages denied. A requester may receive statutory damages only by pleading and proving the agency violated a specific division (B) obligation of R.C. 149.43. Ames tied his damages claim exclusively to R.C. 149.43(B)(1) (“duty to provide the record”), but that duty is conditioned on the record’s existence. Having failed on existence, he necessarily failed on damages.
• Court costs and attorney fees denied. No costs were awarded because Ames obtained no relief; attorney-fee eligibility was foreclosed both by the lack of mandamus success and, in any event, because a pro se litigant cannot be compensated for his own legal work.

3. Detailed Analysis

3.1 Precedents Cited and Their Influence

1. State ex rel. Cincinnati Enquirer v. Sage, 2015-Ohio-974
   – Reiterated that a relator must demonstrate by clear and convincing evidence both a legal right to requested records and a public office’s duty to disclose.
   Influence: Ames’s failure on the evidentiary showing of record existence meant he could not satisfy Sage’s dual-prong requirement.
2. State ex rel. Robinson v. Clemans, 2025-Ohio-1021
   – Clarified that when an agency asserts non-existence of records, the burden shifts to the requester to prove existence by clear and convincing evidence.
   Influence: The Court imported Robinson’s burden rule directly, framing it as dispositive of Ames’s writ claim.
3. State ex rel. Gooden v. Kagel, 2014-Ohio-869
   – Earlier articulation of the same “prove-existence” principle, confirming the doctrine’s maturation across a decade.
4. State ex rel. ESPN, Inc. v. Ohio State Univ., 2012-Ohio-2690
   – Held that statutory damages must be premised on the specific division of R.C. 149.43 (B) alleged to have been violated.
   Influence: The Court used ESPN to reject damages because Ames linked his claim solely to (B)(1), which was not violated once existence was disproven.
5. State ex rel. Adkins v. Cole, 2025-Ohio-1026
   – Reaffirmed that pro se relators are ineligible for attorney-fee awards.

3.2 The Court’s Legal Reasoning

The opinion proceeds in a structured, two-step analysis: (i) mandamus entitlement; (ii) ancillary relief.

(i) Mandamus Entitlement

• Existence as a Condition Precedent. The Court reiterated that R.C. 149.43(B)(1) imposes a duty only with respect to existing records. When a public office denies existence, the burden reverses: a requester must establish existence by clear and convincing evidence, not mere speculation.
• Evidence (or lack thereof). Ames offered no affidavits, deposition testimony, or documentary proof that confidentiality agreements actually existed. Instead, he relied on inference from meeting minutes showing the student representative participated in votes. The Court deemed such inference insufficient.
• Evidentiary Standard. “Clear and convincing” was emphasized—not a probability standard, but a level of proof producing in the trier of fact a firm belief or conviction about the facts sought to be established.

(ii) Statutory Damages, Costs, and Fees

• Narrow Pleading. R.C. 149.43(C)(2) allows damages only if the requester proves the public office “failed to comply with an obligation in accordance with division (B).” Ames limited his damages argument to a purported breach of (B)(1). Because no (B)(1) duty arises when records do not exist, he failed the prerequisite.
• Choice Not to Raise (B)(2). The Court noted Ames could have alleged a (B)(2) violation for failure to offer an opportunity to revise the request, but he expressly declined to do so. ESPN bars expanding the damages theory beyond what was pled.
• Attorney Fees. Under Ohio law, pro se litigants cannot receive attorney fees because they do not “incur” them. Coupled with the absence of success on the merits, fee denial was automatic.

3.3 Anticipated Impact

1. Heightened Evidentiary Expectations for Requesters. The decision cements that a requester cannot simply point to suspicious circumstances; concrete proof—affidavits, audit trails, or earlier partial productions—must be marshaled.
2. Strategic Compliance Responses for Agencies. Public offices may increasingly rely on the “non-existence” defense. While they must act in good faith, Ames demonstrates that strict evidentiary burdens protect them from speculative fishing expeditions.
3. Drafting Precision. Counsel for requesters will likely draft broader (or alternative) pleadings, alleging violations of multiple R.C. 149.43(B) subdivisions—especially (B)(2)’s duty to permit request revision—to preserve damages avenues.
4. Reinforcement of Pro Se Limitations. The reaffirmation that self-represented litigants cannot recover attorney fees may deter some borderline claims or channel pro se actors toward tutoring rather than full self-representation.
5. Education-Sector Implications. Because the underlying context involved a student representative and potential FERPA concerns, boards of education are reminded to maintain clear policies on student participation and to segregate any records pertaining to confidential sessions.

4. Complex Concepts Simplified

Mandamus

A special court order commanding a public official or body to perform a duty required by law. In public-records litigation, mandamus is the exclusive remedy to compel disclosure.

R.C. 149.43(B)(1) vs. (B)(2)

(B)(1): Requires prompt production of existing, non-exempt public records.
(B)(2): If a request is ambiguous or overly broad, the public office must provide the requester an opportunity to revise it by explaining how records are kept.

Clear and Convincing Evidence

A standard of proof stronger than “preponderance of the evidence” but below “beyond a reasonable doubt.” It requires the evidence to be highly and substantially more probable to be true than not.

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

A monetary remedy—up to $1,000 ($100 per business day, capped at 10 days)—awarded when a public office fails to meet certain obligations, provided the request was made electronically and accurately described the record.

FERPA (Family Educational Rights and Privacy Act)

Federal law protecting student education records. Its relevance here was limited because the case was decided on non-existence grounds before reaching FERPA exemptions.

5. Conclusion

State ex rel. Ames is less about the substantive reach of executive-session confidentiality and more about procedural gatekeeping under Ohio’s transparency laws. The Supreme Court has drawn a firm, bright line: before a court can compel production or award damages, a requester must prove—clearly and convincingly—that the sought-after records exist. By coupling that requirement with strict pleading rules for statutory damages, the Court fortifies a structured, evidence-driven approach to public-records litigation.

Practitioners should view Ames as an impetus to:

• Investigate and document record existence before filing mandamus actions;
• Plead alternative statutory-violation theories when the factual basis is uncertain;
• Advise clients—especially pro se watchdogs—about the limitations on fee recovery and the heightened evidentiary burden.

Ultimately, the decision harmonizes Ohio precedent, underscores the judiciary’s intolerance for speculative claims, and provides governmental bodies a clearer procedural roadmap when responding to contested requests. Transparency remains the aspirational norm—but only when the records, in fact, exist.