[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State

ex rel. Ware v. O’Malley, Slip Opinion No. 2025-Ohio-1855.]

NOTICE
This slip opinion is subject to formal revision before it is published in an
advance sheet of the Ohio Official Reports. Readers are requested to
promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
South Front Street, Columbus, Ohio 43215, of any typographical or other
formal errors in the opinion, in order that corrections may be made before
the opinion is published.

SLIP OPINION NO. 2025-OHIO-1855

THE STATE EX REL . WARE v. O’MALLEY, PROS. ATTY.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as State ex rel. Ware v. O’Malley, Slip Opinion No.
2025-Ohio-1855.]
Mandamus—Public-records requests—R.C. 149.43—Personnel files and payroll
records of prosecutor and assistant prosecutors and list of cases assigned
to an assistant prosecutor, if such a list exists, improperly withheld from
inmate by prosecutor’s office under R.C. 149.43(B)(8), because those
records did not concern a criminal investigation or prosecution—Limited
writ granted, statutory damages denied as to all but request for list of cases,
damages, if any, for which will be determined after compliance with limited
writ, and court costs awarded.
(No. 2024-0514—Submitted January 7, 2025—Decided May 27, 2025.)
IN MANDAMUS.
__________________
The per curiam opinion below was joined by FISCHER, BRUNNER, HAWKINS,
 SUPREME COURT OF OHIO

and SHANAHAN, JJ. KENNEDY, C.J., concurred in part and dissented in part, with
an opinion. DETERS, J., concurred in part and dissented in part, with an opinion
joined by DEWINE, J.

Per Curiam.
{¶ 1} Between September and December 2023, relator Kimani E. Ware sent
eight public-records requests to respondent, Cuyahoga County Prosecuting
Attorney Michael C. O’Malley, seeking 21 categories of records, including the
personnel files and payroll records of O’Malley and two assistant prosecuting
attorneys. O’Malley did not provide any of the requested records, raising various
challenges to the propriety of Ware’s requests, including that the requested records
concerning O’Malley and the assistant prosecuting attorneys necessarily concern
criminal prosecutions within the meaning of R.C. 149.43(B)(8)1 and that Ware—
an incarcerated inmate—therefore needed to comply with that provision of the
Public Records Act, R.C. 149.43, before he was entitled to the records.
{¶ 2} Ware filed this action, seeking a writ of mandamus ordering
production of the records, statutory damages, and court costs. We grant a limited
writ as to seven of the requests and deny the writ as to two of the requests. We
award Ware his court costs but defer the determination of statutory damages, if any,
until O’Malley has complied with our limited writ.
I. FACTUAL AND PROCEDURAL BACKGROUND
{¶ 3} Ware filed this action in April 2024, seeking a writ of mandamus
ordering O’Malley to produce records that Ware requested in multiple public-
records requests that he sent between September 21 and December 13, 2023. In all,

1. All references in this opinion to R.C. 149.43 refer to the statutory language in effect when Ware
made his public-records requests and when he filed this original action. Although the statute has
been amended since then, the language relevant to this case remained unchanged. See 2022
Am.Sub.H.B. No. 45 (effective Apr. 7, 2023); 2023 Am.Sub.H.B. No. 33 (effective Oct. 3, 2023).

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 January Term, 2025

Ware requested 21 categories of records. We previously granted in part O’Malley’s

motion for judgment on the pleadings, so now, nine records requests remain at
issue. 2024-Ohio-2781. The facts below focus on those nine requests.
A. Personnel File of Assistant Prosecuting Attorney Perk
{¶ 4} In September 2023, Ware sent by certified mail a public-records
request to O’Malley’s office, seeking the personnel file of Assistant Prosecuting
Attorney Kelli K. Perk. O’Malley denied the request in October 2023.
{¶ 5} In his denial letter, O’Malley contended that Perk’s personnel file
“concerns various investigations and/or prosecutions conducted by the
[prosecutor’s office].” Accordingly, O’Malley opined that Ware, who is an inmate,
needed to first obtain a finding from his sentencing judge (or the judge’s successor)
that the requested records are “necessary to support what appears to be a justiciable
claim,” as required by R.C. 149.43(B)(8). Thus, O’Malley informed Ware that he
could not provide Perk’s personnel file unless Ware could show that he had
obtained the finding required by R.C. 149.43(B)(8).
B. List of Cases Assigned to Assistant Prosecuting Attorney Williamson
{¶ 6} Also in September 2023, Ware sent another public-records request to
O’Malley by certified mail. He requested a list of cases assigned by O’Malley’s
office to Assistant Prosecuting Attorney Lisa Reitz Williamson in 1999.
{¶ 7} O’Malley denied Ware’s request for the case list on the basis that
Ware had not obtained the judicial finding necessary under R.C. 149.43(B)(8).
Since Williamson served as an assistant prosecuting attorney, O’Malley contended,
any “list of cases”—assuming that one existed—“would directly concern criminal
prosecutions,” thereby bringing such record into the purview of R.C. 149.43(B)(8).
C. Payroll Records of Perk
{¶ 8} In October 2023, Ware mailed a public-records request to O’Malley
by certified mail, requesting a copy of Perk’s payroll records from January 1, 2023,

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through September 20, 2023. O’Malley denied the request on the basis that Ware
had not complied with R.C. 149.43(B)(8).
D. “Invoice/Pay Stub” of Assistant Prosecuting Attorney Van
{¶ 9} Also in October 2023, Ware mailed another request to O’Malley by
certified mail, seeking a copy of “the invoice/pay stub for the number of hours
worked” by Assistant Prosecuting Attorney Daniel T. Van in “case no. 110391.”
Similarly, Ware mailed another request later in October 2023, seeking “the invoice
or pay record/pay stub of the number of hours that Daniel T. Van worked on case
no. 112042.”
{¶ 10} O’Malley responded, stating that there were no records responsive
to Ware’s requests for an “invoice” or “pay stub” specific to Van’s work in case
No. 110391 or 112042. In addition, O’Malley noted that the cases referenced in
Ware’s request were appeals from criminal convictions in two cases. Accordingly,
O’Malley also denied Ware’s requests because Ware had not complied with R.C.
149.43(B)(8).
E. Personnel File and Payroll Records of
Assistant Prosecuting Attorney Ochocki
{¶ 11} In November 2023, Ware mailed another records request to
O’Malley by certified mail. Ware requested a copy of the personnel file of
Assistant Prosecuting Attorney Gregory Ochocki and a copy of Ochocki’s payroll
records from March 1, 2021, through November 3, 2023.
{¶ 12} Because Ochocki is an assistant prosecuting attorney who handles
criminal appeals and postconviction matters, O’Malley responded to the request by
stating that he considered these requests to be for “records concerning criminal
prosecutions and investigations.” Accordingly, O’Malley stated that Ware was not
entitled to the records, because he had not first obtained the judicial finding required
by R.C. 149.43(B)(8).

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 January Term, 2025

F. Personnel File and Payroll Records of O’Malley

{¶ 13} In December 2023, Ware sent the final records request at issue by
certified mail to O’Malley. Ware requested copies of O’Malley’s personnel file
and his payroll records from January 1, 2023, through November 13, 2023.
{¶ 14} O’Malley responded to the request. He noted that as the elected
prosecuting attorney for Cuyahoga County, his duties include inquiry into the
commission of crimes and the prosecution of alleged offenders. Accordingly, he
took the position that Ware was not entitled to the requested records until he first
obtained a finding under R.C. 149.43(B)(8).2
G. Ware Files this Action
{¶ 15} Ware filed this action in April 2024, seeking a writ of mandamus
ordering O’Malley to produce all the records he requested and for an award of
statutory damages and court costs. O’Malley filed an answer and a motion for
judgment on the pleadings.
{¶ 16} As noted above, we granted O’Malley’s motion in part, 2024-Ohio-
2781. However, we denied the motion and granted an alternative writ as to Ware’s
requests for the following records:
• Personnel files of Perk, Ochocki, and O’Malley (request Nos. 4, 18, and
20);
• Payroll records of Perk, Ochocki, and O’Malley (request Nos. 12, 17, and
21);
• Itemized pay stubs related to work performed by Van in two cases (request
Nos. 13 and 15); and
• A list of cases assigned to Williamson in 1999 (request No. 8).

2. In addition, O’Malley observed that Ware’s request for payroll records was vague. He asked
Ware to clarify the request, noting that the term “payroll records” is broad and could encompass
records that are not kept by his office. O’Malley, however, does not raise the vagueness issue in his
merit brief here, so we do not address it.

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 SUPREME COURT OF OHIO

See id.3
II. ANALYSIS
{¶ 17} Mandamus is an appropriate remedy to compel compliance with the
Public Records Act. R.C. 149.43(C)(1)(b). To obtain a writ of mandamus under the
Public Records Act, Ware must show that he has a clear legal right to the records he
requested and that O’Malley has a corresponding clear legal duty to provide them.
State ex rel. Ellis v. Maple Hts. Police Dept., 2019-Ohio-4137, ¶ 5. Exceptions to
disclosure are strictly construed against the public office, which has the burden to
establish the applicability of an exception. State ex rel. Miller v. Ohio State Hwy.
Patrol, 2013-Ohio-3720, ¶ 23.
A. Applicability of R.C. 149.43(B)(8)
{¶ 18} O’Malley relies on R.C. 149.43(B)(8) to support the denial of seven
of the nine requests that remain at issue. O’Malley argues that Ware cannot show
that he has a clear legal right to the records or that O’Malley has a clear legal duty to
provide them, because R.C. 149.43(B)(8) limits an incarcerated person’s right to
obtain records that concern a criminal investigation or prosecution. R.C.
149.43(B)(8) states:

A public office or person responsible for public records is not

required to permit a person who is incarcerated pursuant to a criminal
conviction . . . to obtain a copy of any public record concerning a
criminal investigation or prosecution . . . unless the request to inspect
or to obtain a copy of the record is for the purpose of acquiring

3. After the parties completed their briefing in this case, we declared Ware a vexatious litigator
under Rule 4.03(B) and prohibited him “from continuing or instituting legal proceedings in this court
without first obtaining leave,” State ex rel. Ware v. Vigluicci, 2024-Ohio-4997. Ware, however, did
not need to request leave to continue this case under Rule 4.03(B). By the time we declared him to be
a vexatious litigator in Vigluicci, this case was already pending and all filings had been received. Ware
has filed no additional documents in this case that would necessitate leave.

6
 January Term, 2025

information that is subject to release as a public record under this

section and the judge who imposed the sentence or made the
adjudication with respect to the person, or the judge’s successor in
office, finds that the information sought in the public record is
necessary to support what appears to be a justiciable claim of the
person.

(Emphasis added.)
{¶ 19} This court has described R.C. 149.43(B)(8) as “broad and
encompassing” and as “clearly set[ting] forth heightened requirements for inmates
seeking public records.” (Emphasis in original.) State ex rel. Russell v. Thornton,
2006-Ohio-5858, ¶ 14 (addressing former R.C. 149.43(B)(4), now codified at
(B)(8)). In Russell, this court held that the statute barred an inmate from obtaining
offense and incident reports, which were otherwise public records, because the
inmate had not first obtained a finding from his sentencing judge that the records
were necessary to support a justiciable claim. Id. at ¶ 4, 16.
1. Personnel Files
{¶ 20} Ware seeks the personnel files of Perk, Ochocki, and O’Malley. We
recently addressed whether R.C. 149.43(B)(8) applies to the personnel file of an
assistant prosecuting attorney. See State ex rel. Ware v. O’Malley, 2024-Ohio-5242,
¶ 8-13. In that case, we found that a personnel file of an assistant prosecuting attorney
could not be fairly categorized as relating to the investigation or prosecution of a
criminal matter. Id. at ¶ 12. We therefore granted a limited writ of mandamus
ordering O’Malley to produce the assistant prosecuting attorney’s personnel file,
subject to proper redactions authorized by law, e.g., sensitive personal information
about the employee that does not document the organization or function of the
agency. Id. at ¶ 18, 23.

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 SUPREME COURT OF OHIO

{¶ 21} Our decision in O’Malley dictates the same result in this case. The
personnel files Ware seeks in this case were not properly withheld in their entirety
under R.C. 149.43(B)(8). We therefore grant a limited writ of mandamus ordering
O’Malley to produce the personnel files sought in request Nos. 4, 18, and 20, subject
to proper redactions authorized by law.
2. Payroll Records
{¶ 22} Our recent decision in O’Malley also informs the decision with respect
to the payroll records Ware seeks. In this case, O’Malley’s sole argument for
withholding these records from Ware is his view that Ware had to first obtain the
judicial finding required by R.C. 149.43(B)(8). For the same reasons that we reject
O’Malley’s argument as to personnel files, we reject it as to payroll records.
{¶ 23} O’Malley bears the burden of showing that R.C. 149.43(B)(8) applies
to the payroll records requested in this case. See State ex rel. Ware v. Parikh, 2023-
Ohio-759, ¶ 12. He has not met that burden in this case. O’Malley does not describe
the contents of the “payroll records” Ware requested. Rather, he relies solely on his
status as prosecuting attorney and on Perk’s and Ochocki’s status as assistant
prosecuting attorneys as the basis for his assertion that such records fall within the
purview of R.C. 149.43(B)(8). Because it is the job of prosecuting attorneys to
investigate and prosecute crimes, O’Malley argues, any payroll records pertaining to
them necessarily “relate to” a criminal prosecution.
{¶ 24} We rejected a similar argument in O’Malley, 2024-Ohio-5242. Even
if we were to assume that some of the requested payroll records contain information
that falls within the scope of R.C. 149.43(B)(8)—an assumption for which O’Malley
provides no evidentiary support in this case—O’Malley would not be allowed to deny
Ware’s entire request. O’Malley at ¶ 13; see also State ex rel. Ellis v. Cleveland
Police Forensic Laboratory, 2021-Ohio-4487, ¶ 14-15. “The plain language of R.C.
149.43(B)(8) ‘excuses a public office or official from having to provide a record
when it relates to a criminal proceeding,’ but it ‘does not create a blanket rule that an

8
 January Term, 2025

office or official may disregard an entire request when a portion thereof is subject to
the prerelease approval of the sentencing judge.’” (Emphasis added in Ellis.)
O’Malley at ¶ 13, quoting Ellis at ¶ 15. Accordingly, we grant a limited writ of
mandamus ordering O’Malley to produce the payroll records requested in request
Nos. 12, 17, and 21, subject to proper redactions authorized by law.
3. Case List
{¶ 25} Ware asked for a list of the cases assigned by the prosecutor’s office
to Assistant Prosecuting Attorney Williamson in 1999. Without conceding that
such a list exists, O’Malley responded that the list would necessarily fall under R.C.
149.43(B)(8) because it “would directly concern criminal prosecutions.” O’Malley
takes the same approach in his merit brief. Though he does not concede that such
a list exists, he argues that such a list would necessarily relate to criminal
prosecutions because Williamson handled matters relating to criminal prosecutions
as part of her duties.
{¶ 26} O’Malley has not satisfied his burden of showing that R.C.
149.43(B)(8) applies to Ware’s request for a case list. He does not meaningfully
analyze whether a list of cases handled by Williamson in 1999 falls within the scope
of records that concern a criminal investigation or prosecution. See Parikh, 2023-
Ohio-759, at ¶ 12 (holding that the respondent failed to show that R.C. 149.43(B)(8)
applied when he relied on the statute “without meaningfully analyzing” whether the
records concerned a criminal investigation or prosecution). It is not self-evident
that a mere list of cases handled by an assistant prosecuting attorney is a record
“concerning a criminal investigation or prosecution” within the meaning of R.C.
149.43(B)(8). Moreover, the evidence submitted by O’Malley establishes only that
Williamson handled “a variety of matters” in 1999, “including, but not limited to,
criminal and appellate matters.” Thus, O’Malley’s evidence falls short of
establishing that a list of Williamson’s cases from 1999, if such a list exists, would
necessarily encompass only criminal cases.

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{¶ 27} For these reasons, we grant a limited writ of mandamus as to the case
list sought in request No. 8, ordering O’Malley to produce a responsive record or
to certify that no such record exists. See, e.g., State ex rel. Barr v. Wesson, 2023-
Ohio-3645, ¶ 15; State ex rel. Sultaana v. Mansfield Corr. Inst., 2023-Ohio-1177,
¶ 43.
B. No Duty to Produce Nonexistent Records
{¶ 28} In response to Ware’s requests for invoices or pay stubs for the work
of Assistant Prosecuting Attorney Van specific to two cases, O’Malley responded
that there were no responsive records. In support of this response, he has submitted
the affidavit of his office’s finance director, who attests: “The Cuyahoga County
Prosecutor’s Office does not create or maintain invoices documenting the time
Assistant Prosecuting Attorney(s) spend working on a specific case.”
{¶ 29} “When a public office attests that it does not have responsive records,
the relator in a public-records mandamus case bears the burden of proving by clear
and convincing evidence that the requested records exist and are maintained by the
public office.” State ex rel. Culgan v. Jefferson Cty. Pros. Atty., 2024-Ohio-4715, ¶
13. Ware offers no such proof in this case. Accordingly, we deny the writ as to
request Nos. 13 and 15.
C. Statutory Damages
{¶ 30} Ware also seeks statutory damages under R.C. 149.43(C)(2).4 A
public-records requester may obtain statutory damages “if a court determines that the
public office or the person responsible for public records failed to comply with an
obligation [under R.C. 149.43(B)].” R.C. 149.43(C)(2). To be entitled to statutory

4. Effective April 9, 2025, the Public Records Act was amended such that a person committed to
the custody of the Department of Rehabilitation and Correction is no longer eligible to receive an
award of statutory damages under R.C. 149.43(C). 2024 Sub.H.B. No. 265. But as noted in footnote
1, we apply the statutory language that was in effect when Ware made his public-records requests
and filed this original action.

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 January Term, 2025

damages, Ware must establish by clear and convincing evidence that he sent his
public-records requests to O’Malley by certified mail and that O’Malley failed to
produce the records within a reasonable time. See State ex rel. McDougald v. Greene,
2020-Ohio-3686, ¶ 13-14. Statutory damages accrue at $100 for each business day
that the public office failed to comply with R.C. 149.43(B), starting with the day the
mandamus action was filed, up to a maximum of $1,000. R.C. 149.43(C)(2).
{¶ 31} There is no dispute that Ware sent the public-records requests at issue
by certified mail or that O’Malley has not, to date, provided records in response to
the requests. Under R.C. 149.43(C)(2), however, we may reduce or deny statutory
damages if we determine that (1) based on the law as it existed at the time of the
request, a well-informed person responsible for the public records reasonably would
have believed that R.C. 149.43(B) did not require their disclosure and (2) a well-
informed person responsible for the records reasonably would have believed that
withholding the records would serve the public policy that underlies the authority
asserted for withholding the records. State ex rel. Harm Reduction Ohio v. OneOhio
Recovery Found., 2023-Ohio-1547, ¶ 38.
{¶ 32} Even though we grant a limited writ as to Ware’s requests for payroll
records and personnel files, we deny his requests for statutory damages as to those
requests. In O’Malley, 2024-Ohio-5242, we denied Ware’s request for statutory
damages despite granting a limited writ of mandamus ordering O’Malley to produce
the personnel file of an assistant prosecuting attorney. Id. at ¶ 21, 23. We found that
O’Malley “arguably had legal support” for denying Ware’s request in that case
because he invoked State ex rel. Bozsik v. Medina Cty. Sheriff’s Office, 2019-Ohio-
3969 (9th Dist.), which had dismissed an inmate’s public-records mandamus claim
seeking production of a sheriff detective’s personnel file, O’Malley at ¶ 14, 21. Even
though we rejected Bozsik as persuasive authority on the applicability of the R.C.
149.43(B)(8) exception, we found that O’Malley had reasonably relied on Bozsik as
support for denying Ware’s public-records request. O’Malley at ¶ 15, 21.

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{¶ 33} O’Malley also cites Bozsik as authority in this case to support his
withholding of personnel files and payroll records. The briefs in this case were
submitted before we issued our decision in O’Malley rejecting Bozsik’s reasoning.
Accordingly, we deny Ware’s request that we award statutory damages for
O’Malley’s failure to provide the payroll records and personnel files.
{¶ 34} It is premature, however, to determine whether an award of statutory
damages is appropriate for O’Malley’s failure to provide the list of Williamson’s
cases. Accordingly, we defer our final determination of statutory damages, if any,
until O’Malley has complied with the limited writ.
D. Court Costs
{¶ 35} Ware also seeks an award of court costs. Ware did not file an affidavit
of indigence and states that he incurred court costs of $200 for filing this action.
{¶ 36} We grant this request. Because Ware is entitled to a limited writ of
mandamus ordering O’Malley to produce records responsive to several of his
requests as set forth above, subject to redactions allowed by law, an award of costs
is mandatory under R.C. 149.43(C)(3)(a)(i). State ex rel. Hicks v. Fraley, 2021-
Ohio-2724, ¶ 25.
III. CONCLUSION
{¶ 37} For the foregoing reasons, we grant a limited writ of mandamus
ordering O’Malley to produce the personnel files and payroll records responsive to
request Nos. 4, 12, 17, 18, 20, and 21, subject to proper redactions authorized by law.
We also grant a limited writ ordering O’Malley to produce the case list responsive to
request No. 8 or to certify that no such records exist. We deny the writ as to the pay-
stub records sought in request Nos. 13 and 15. As to statutory damages, we deny
them as to all except request No. 8. As to request No. 8, we defer the determination
of statutory damages, if any, until O’Malley has complied with the limited writ as to
that request. We award Ware $200 for his court costs.
Limited writ granted.

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 January Term, 2025

__________________
KENNEDY, C.J., concurring in part and dissenting in part.
{¶ 38} I concur in the court’s judgment, with one exception. I disagree with
the majority’s decision to deny relator, Kimani E. Ware, an award of statutory
damages for the public-records requests seeking personnel files and payroll records
that he sent to respondent, Cuyahoga County Prosecuting Attorney Michael C.
O’Malley. I would award Ware statutory damages in the amount of $4,000 for the
following four public-records-request transmissions: (1) the September 2023
request that sought the personnel file of Assistant Prosecuting Attorney Kelli K.
Perk, (2) the October 2023 request that sought the payroll records of Perk, (3) the
November 2023 request that sought the personnel file and payroll records of
Assistant Prosecuting Attorney Gregory Ochocki, and (4) the December 2023
request that sought the personnel file and payroll records of O’Malley. These
requests were improperly denied, and the majority errs in holding that Ware is not
entitled to statutory damages because O’Malley had a reasonable basis for denying
the requests. Accordingly, I concur in part and dissent in part.
{¶ 39} To be entitled to an award of statutory damages, a public-records
requester need only show that the public office or person responsible for the
requested public records failed to comply with an obligation under R.C. 149.43(B)
after the requester transmitted a written and fairly-described request by hand
delivery, electronic submission, or certified mail. R.C. 149.43(C)(2).5
{¶ 40} In this case, it is undisputed that Ware sent his public-records
requests by certified mail and that O’Malley has not, to date, provided records
responsive to the requests. The majority does not find that O’Malley complied with

5. All references in this opinion to R.C. 149.43(C) refer to the statutory language in effect when
Ware made his public-records requests and when he filed this original action. Although the statute
has been amended since then, the language relevant to this case remained unchanged. See 2022
Am.Sub.H.B. No. 45 (effective Apr. 7, 2023); 2023 Am.Sub.H.B. No. 33 (effective Oct. 3, 2023).

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the requirements of R.C. 149.43(B). Rather, the majority denies Ware an award of
statutory damages under R.C. 149.43(C)(2). That division of the statute allows a
court to reduce or deny an award of statutory damages if the court determines that
based on the law at the time of the request, a well-informed public office or person
responsible for public records would have reasonably believed that the law did not
require the disclosure of the requested public record and that withholding the record
would serve the public policy underlying the authority asserted in denying the
request. State ex rel. Harm Reduction Ohio v. OneOhio Recovery Found., 2023-
Ohio-1547, ¶ 38.
{¶ 41} However, the majority’s determination that O’Malley was justified
in withholding the personnel files and payroll records under R.C. 149.43(C)(2) is
contrary to the law and the facts of this case.
{¶ 42} First, the majority relies on this court’s prior holding in State ex rel.
Ware v. O’Malley, 2024-Ohio-5242, to conclude that the denial of statutory
damages for the personnel-file requests is appropriate. See majority opinion, ¶ 32-
33. But no well-informed public office or person responsible for public records
would reasonably believe that a prosecuting attorney’s personnel files are criminal-
prosecution or criminal-investigation records that are exempt from production to
Ware under R.C. 149.43(B)(8). See O’Malley at ¶ 30-33 (Kennedy, C.J.,
concurring in part and dissenting in part).
{¶ 43} R.C. 149.43(B)(8) provides that a public office or person responsible
for public records is not required to produce records to an incarcerated person if the
public record concerns a criminal investigation or prosecution, absent approval
from the incarcerated person’s sentencing judge. The mere fact that a personnel
file is for a prosecuting attorney, however, does not mean that the record concerns
a criminal prosecution or investigation for the purpose of R.C. 149.43(B)(8)’s
exception. Relevant here, public records concern a criminal prosecution only when
the records are related to the proceedings in which an accused has been tried for a

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 January Term, 2025

crime. See State ex rel. McCaffrey v. Mahoning Cty. Prosecutor’s Office, 2012-
Ohio-4246, ¶ 41, citing State ex rel. Keller v. Cox, 1999-Ohio-264, ¶ 11. The State
does not use a prosecuting attorney’s personnel file when litigating a criminal case.
Hence, prosecuting-attorney personnel files are plainly public records that are not
exempt from disclosure under R.C. 149.43(B)(8). The majority’s determination
that a well-informed public office or person responsible for the records would
reasonably believe otherwise is unfounded. A denial of statutory damages is
unwarranted for the personnel-file requests.
{¶ 44} Second, the majority does not provide any rationale in determining
that statutory damages should be denied for the payroll-record requests. While the
majority’s denial of statutory damages for the personnel files relies on O’Malley,
2024-Ohio-5242, no statute or caselaw is provided for justifying the denial of
statutory damages for the payroll records. R.C. 149.43(C)(2) does not permit courts
to simply deny requests for statutory damages at their whim. The General
Assembly created a two-part test by which a court can determine whether a
reduction or denial of statutory damages is merited. See R.C. 149.43(C)(2)(a) and
(b). And only when both statutory requirements are satisfied may a court deny an
otherwise valid request for an award.
{¶ 45} Yet this court continues to deny requests for statutory damages
without applying the requirements of R.C. 149.43(C)(2)(a) and (b). See generally
O’Malley, 2024-Ohio-5242, at ¶ 24-38 (Kennedy, C.J., concurring in part and
dissenting in part); State ex rel. Culgan v. Jefferson Cty. Clerk of Courts, 2024-
Ohio-5699, ¶ 32-40 (Kennedy, C.J., concurring in part and dissenting in part). And
in this case, the majority’s denial of statutory damages for the payroll-record
requests is unsubstantiated and in contravention with the statutory requirements of
R.C. 149.43(C)(2). No determination has been made in accordance with the statute
to warrant a denial of statutory damages for the payroll-record requests.

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{¶ 46} For the foregoing reasons, the majority errs in denying Ware
statutory damages for the public-records requests seeking personnel files and
payroll records. Therefore, I concur in part and dissent in part and would award
Ware statutory damages in the amount of $4,000 pursuant to R.C. 149.43(C)(2).
__________________
DETERS, J., joined by DEWINE, J., concurring in part and dissenting in
part.
{¶ 47} I concur in the court’s judgment with respect to all but one of Kimani
E. Ware’s record requests—request No. 8. The court grants a limited writ ordering
Cuyahoga County Prosecuting Attorney Michael C. O’Malley to produce the list of
cases assigned to Assistant Prosecuting Attorney Lisa Williamson in 1999 or to
certify that such a record does not exist. Such a case list would, however, fall under
R.C. 149.43(B)(8)’s heightened requirements for inmates seeking public records
“concerning a criminal investigation or prosecution.”6 Ware was required by the
Public Records Act, R.C. 149.43, to obtain a finding from his sentencing judge that
“the information sought in the public record is necessary to support what appears
to be a justiciable claim,” R.C. 149.43(B)(8), before O’Malley was required to
provide the requested record. Because Ware did not do so, he does not have a clear
legal right to the list, and therefore a limited writ is not warranted. Thus, I
respectfully dissent in part.
{¶ 48} In request No. 8, Ware asked O’Malley to provide “a list of cases
that Lisa Reitz Williamson [had] been assigned to by Cuyahoga County Prosecutor
office for the year 1999.” O’Malley argues that Williamson’s case list (if one
exists) falls under R.C. 149.43(B)(8)’s exception to disclosure because it relates to

6. All references in this opinion to R.C. 149.43(C) refer to the statutory language in effect when
Ware made his public-records requests and when he filed this original action. Although the statute
has been amended since then, the language relevant to this case remained unchanged. See 2022
Am.Sub.H.B. No. 45 (effective Apr. 7, 2023); 2023 Am.Sub.H.B. No. 33 (effective Oct. 3, 2023).

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criminal prosecutions handled by Williamson and that Ware did not satisfy R.C.
149.43(B)(8)’s heightened disclosure requirements. The majority holds that
O’Malley has not met his burden to show that the exception applies, because
O’Malley has “not meaningfully analyze[d]” whether Williamson’s case list
concerns a criminal investigation or prosecution and “[i]t is not self-evident” that
Williamson’s case list concerns a criminal investigation or prosecution. Majority
opinion, ¶ 26. I disagree. O’Malley has met his burden because he argued that
division (B)(8) applies and provided evidentiary support, and Ware has failed to
argue otherwise.
{¶ 49} Unlike exceptions to the Public Records Act that carve certain
documents or information from the definition of “public record,” division (B)(8)
“restrict[s] a convicted inmate’s unlimited access to public records,” State ex rel.
Russell v. Thornton, 2006-Ohio-5858, ¶ 14.7 Before a public-records holder is
required to produce a public record concerning a criminal prosecution to an inmate,
the inmate must obtain a judicial finding that information in the requested record
“is necessary to support what appears to be a justiciable claim of the person.” R.C.
149.43(B)(8). Despite this court’s describing R.C. 149.43(B)(8) as “clearly
set[ting] forth heightened requirements for inmates seeking public records”
(emphasis in original), Russell at ¶ 14, this court has placed the burden on the
public-records holder to show that the heightened requirement applies, State ex rel.
Ware v. Parikh, 2023-Ohio-759, ¶ 12.
{¶ 50} To come within R.C. 149.43(B)(8)’s reach, a public record must
“concern” a “criminal investigation or prosecution.” “Concern,” as used in the
statute, means “to relate or refer to.” Webster’s Third New International Dictionary
(2002). It is a broad term. See, e.g., Lamar, Archer & Cofrin, L.L.P. v. Appling,
584 U.S. 709, 717-718 (2018) (observing that when a statute uses the phrase

7. The language in R.C. 149.43(B)(8) being discussed in this case was codified in R.C. 149.43(B)(4)
during the relevant time in Russell. See id. at ¶ 12-13.

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“relating to,” or a word with a similar meaning, the United States Supreme Court
“has typically read the relevant text expansively”). Nothing in R.C. 149.43(B)(8)
limits its breadth to records that relate to an investigation or prosecution in a
particular way, such as records that were used by the State while investigating or
prosecuting a crime or that were filed or admitted into evidence in a criminal
prosecution. Thus, O’Malley is required to show only that request No. 8 seeks
records that broadly relate to a criminal investigation or prosecution.
{¶ 51} O’Malley has met his burden. Contrary to the majority’s insistence
that he failed to “meaningfully analyze” whether division (B)(8) applies, majority
opinion at ¶ 26, O’Malley raised the exception and explained why it applies:
because Williamson handled matters related to criminal prosecutions, her case-
assignment list concerns or relates to a criminal prosecution. O’Malley also offered
evidentiary materials supporting his argument that Williamson’s case list, to the
extent that one exists, concerns criminal prosecutions. In a sworn statement,
Assistant Prosecuting Attorney Patrick Lipaj averred that “Williamson had handled
a variety of matters that directly concerned criminal prosecutions.” And a sworn
statement from Jason Sobczyk, the human-resources director for O’Malley’s office,
states that Williamson handled criminal and appellate matters, among other types
of cases, during the relevant time and that “several of Williamson’s matters . . .
involved or related to criminal prosecutions.” A list identifying the criminal
prosecutions assigned to an assistant prosecuting attorney self-evidently refers to—
and thus relates to and concerns—the prosecutions included on the list.
{¶ 52} Contrary to the majority’s view, O’Malley did not need to establish
that the case list would “encompass only criminal cases,” id., to show that R.C.
149.43(B)(8) applied. The exception in R.C. 149.43(B)(8) applies to records as a
whole, not to particular information within records. This is evident from the
distinction that R.C. 149.43(B)(8) draws between a public record and the
information contained within a public record. Division (B)(8) uses the phrase

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“public record” to describe what comes within the bounds of its heightened
disclosure requirements. Id. Then, the division distinguishes information
contained within a record from the record itself by stating that a public office is not
required to give an inmate access to the public record unless the inmate’s sentencing
judge has found that “the information sought in the public record is necessary to
support what appears to be a justiciable claim of the person.” (Emphasis added.)
Id. Similar distinctions between a “record” and the information contained within a
record are found throughout the text of R.C. 149.43. Compare R.C.
149.43(A)(1)(d) (excepting “[r]ecords pertaining to adoption proceedings” from
the definition of “public record”) with R.C. 149.43(A)(1)(e) (excepting
“information in a record contained in the putative father registry” from the
definition of “public record”).
{¶ 53} The General Assembly’s use of “certain language in the one instance
and wholly different language in the other” suggests that “different results were
intended,” Metro. Securities Co. v. Warren State Bank, 117 Ohio St. 69, 76 (1927).
Such is the case here. The General Assembly’s extension of R.C. 149.43(B)(8) to
“public records” that concern criminal investigations or prosecutions rather than
just certain information within the record means that an entire record may be
withheld unless an inmate has complied with the exception’s requirements.
{¶ 54} Notably, Ware did not make the argument that O’Malley had to
establish that Williamson’s case list would “encompass only criminal cases,”
majority opinion at ¶ 26. In fact, he did little to respond to O’Malley’s claim that
R.C. 149.43(B)(8) applies. Ware does not dispute O’Malley’s argument, offer
conflicting evidence disproving the applicability of R.C. 149.43(B)(8), or suggest
that he satisfied the exception’s requirements. He merely contends that he is
entitled to the case list because it is a public record. The majority, however, seems
unconcerned about Ware’s lack of effort. Instead, the majority takes it upon itself
to make Ware’s arguments for him. I fear that this court has lost sight of the fact

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that the ultimate burden in a public-records mandamus action lies on the relator.
“Despite the liberal construction of the Public Records Act in favor of disclosure,
[a relator] must still establish entitlement to the requested extraordinary relief by
clear and convincing evidence.” (Cleaned up.) State ex rel. Kesterson v. Kent State
Univ., 2018-Ohio-5108, ¶ 12.
{¶ 55} I would hold that (1) O’Malley met his burden to show that R.C.
149.43(B)(8) applies and (2) Ware failed to meet his ultimate burden to show his
entitlement to relief by clear and convincing evidence. I would therefore deny a
writ of mandamus as to request No. 8. See State ex rel. Ware v. Giavasis, 2020-
Ohio-5453, ¶ 14-17 (denying writ of mandamus when public-record holder raised
R.C. 149.43(B)(8) and the relator did “not present any legal argument to counter
the exception”). And because O’Malley did not fail to comply with an obligation
under R.C. 149.43(B) with respect to request No. 8, I would deny Ware’s request
for statutory damages. The majority sees it otherwise, so I respectfully dissent in
part.

__________________
Kimani E. Ware, pro se.
Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and
Matthew T. Fitzsimmons IV, Assistant Prosecuting Attorney, for respondent.
__________________

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