The Hamilton County Clerk of Courts must pay a Richland County prisoner $1,000 because the clerk refused to provide public records that the inmate was entitled to receive, the Supreme Court of Ohio ruled today.

The Supreme Court determined that the clerk’s office wrongly denied case records requested by Kimani Ware, and that the office must pay $1,000 in statutory damages to Ware as well as cover the court costs for the dispute.

In a per curiam opinion, the Court partially granted Ware a writ of mandamus compelling the clerk’s office to provide records regarding a 2001 lawsuit filed by the Cincinnati Enquirer in the First District Court of Appeals. The opinion rejected a second request to require the office to provide copies of the oaths of office taken by three Hamilton County judges.

Justices Patrick F. Fischer, Michael P. Donnelly, Melody Stewart, and Jennifer Brunner joined the per curiam opinion. Justice Joseph T. Deters did not participate in the case.

In a partly concurring, partly dissenting opinion, Chief Justice Sharon L. Kennedy wrote that the records of the judicial oaths were wrongly denied to Ware because those records are governed by the Public Records Act, not the Rules of Superintendence for the Courts of Ohio. She wrote that clerk of court’s records are not covered by the Rules of Superintendence and more broadly stated that the Supreme Court has no power to use its rules to override laws passed by the General Assembly, including the Public Records Act.

Justice R. Patrick DeWine joined the chief justice’s opinion.

Clerk Does Not Respond to Records Request
In February 2021, Ware sent the Hamilton County Clerk’s Office a public records request seeking two categories of records. He asked for copies of the oaths of offices taken by Judges Charles Kubicki, Lisa Allen, and Thomas Beridon. He also sought documents filed in State ex rel. Cincinnati Enquirer v. Dinkelacker¸ which involved the Enquirer’s effort to seek access to exhibits in a criminal case.

The clerk’s office did not respond to the request.

A year later, Ware sought a writ of mandamus from the Supreme Court to compel the clerk to turn over the records and asked for an award of statutory damages and court costs.

In response to the lawsuit, the clerk argued that Ware was not entitled to the oaths of office records because he cited the wrong method to request them. In his filing with the Supreme Court, Ware stated he was entitled to the records under R.C. 149.43, the Public Records Act, not under the Rules of Superintendence.

Citing its 2022 State ex rel. Ware v. Kurt decision, the Court stated that oaths of office are “administrative documents” governed by the Rules of Superintendence. In that decision, the Court ruled if a requestor of public records makes a request through the incorrect vehicle, then the requestor is not entitled to a writ of mandamus. Because Ware cited the public records act rather than the court rules, the Court denied his request.

Supreme Court Analyzed Records Law
The clerk denied the records from the Cincinnati Enquirer case, citing R.C. 149.43(B)(8), which states an inmate is not entitled to records of a criminal case initiated prior to July 2009 unless first getting permission from a judge.

The Supreme Court opinion noted that R.C. 149.43(B)(8) states that a public office has no duty to provide an inmate with public records “concerning a criminal investigation or prosecution ” unless the “judge who imposed the sentence” finds the information sought is necessary toward a valid legal claim by the inmate.

The Court stated the Enquirer was not a criminal case, but a civil case. The opinion stated that the clerk argued the public records law should apply when the civil case concerns records regarding a criminal prosecution.

The Court wrote that the clerk failed to provide any meaningful explanation as to why the civil case records would fall into the category of those concerning a criminal investigation or prosecution. Because Ware was entitled to the records, he was entitled to $100 per day for each day that the clerk’s office failed to provide them. The public records law limits the maximum award to $1,000, which was granted Ware.

Concurring and Dissenting Opinion Would Limit Records Rule
Chief Justice Kennedy stated that she agreed with the portion of the ruling requiring the release of the Enquirer documents and the penalty. However, she would have also ordered the release of the oaths.

Chief Justice Kennedy explained that when a judge takes the oath of office, the person administering the oath signs a certificate of the oath and, under R.C. 3.23, that certificate is transferred to the clerk of courts. A record of the oath maintained by a clerk of courts is a clerk’s record, not a court record, and it is not covered by the Rules of Superintendence, she wrote. Since they were subject to the Public Records Act, the clerk was required to comply with Ware’s request for those records, she wrote.

The chief justice also stated that “more fundamentally, this court lacks constitutional authority to promulgate substantive rules regulating access to public records.” She stated that the Ohio Constitution grants the Supreme Court the right to establish rules of superintendence and rules of practice and procedure. The rules of superintendence are limited to “addressing the case-management problems that cause delays in processing cases,” she wrote.

Any rule established by the Supreme Court cannot affect a substantive right or supplant a substantive law enacted by the General Assembly, she wrote, and Supreme Court decisions have established that the Public Records Act grants a “substantive right to inspect and copy public records.”

“Simply put, this court lacks the power to preempt the Public Records Act through the exercise of its rulemaking powers,” the concurring and dissenting opinion stated.

2022-0191. State ex rel. Ware v. Parikh, Slip Opinion No. 2023-Ohio-759.

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