No statutory damages in public records case without proof of delivery by hand or certified mail

In a per curiam opinion with two justices partially dissenting, the Court today denied a writ of mandamus and statutory damages in an original-jurisdiction case in which the relator sought production of public records from the Avon Lake police department.
The case is State ex rel. Pietrangelo v. City of Avon Lake. The relator sought police reports and other public records relating to a report he had made regarding juveniles at a skate park. The respondent produced some records after a two-month delay, but the relator believed there were more, and so he sought a writ of mandamus compelling their production. He also sought statutory damages for the two-month delay.

The Court found that all extant public records had been produced, and so it denied the writ as moot. It also denied the request for statutory damages. Under the version of R.C. 149.43(C)(1) in effect at the time this case was filed, statutory damages for delay can only be awarded if a relator delivered the public records request by hand or by certified mail, and pursuant to case law the relator bears the burden of proving such delivery by clear and convincing evidence. Pietrangelo attempted to prove delivery by hand by introducing a video he had taken, but the Court observed that while the video showed Pietrangelo walking into a building and conversing with someone, it did not show who Pietrangelo spoke to or actual delivery of the request. The Court found that that ambiguity, combined with dueling affidavit evidence regarding delivery, meant that Pietrangelo had not carried his burden.

Justice Sharon L. Kennedy, joined by Justice Judith L. French, concurred with the Court's mootness holding, but dissented regarding statutory damages. The dissenting justices would have held that Pietrangelo's video met the burden of proving hand delivery by clear and convincing evidence.

A new version of Ohio's public records law goes into effect later this month. Under the revised statute, new jurisdiction to adjudicate public records requests has been created in the court of claims.