Ohio Supreme Court Says Prisoner’s ‘Kite’ Is Public Record, But Denies Damages for Withholding It
by Matt Clarke
On November 22, 2023, the Supreme Court of Ohio reiterated that a prisoner’s “kite”—his communication with staff—is a public record subject to disclosure upon request. Moreover, the Court added, a prisoner may bring a petition for a writ of mandamus to enforce his right to a copy of the kite regardless of whether the public records request was made prior to the date when the Court first decided that a kite is a public record.
However, the Court said there was enough confusion to deny statutory damages for the rebuffed request of Thomas Clark, a state Department of Rehabilitation and Correction (DRC) prisoner incarcerated at North Central Correctional Complex (NCCC) in February 2021, when he requested a copy of a kite that he exchanged with the prison “cashier.” An NCCC inspector denied the request, stating she was not responsible for printing kites. Clarke filed a grievance, offering to pay the five-cent fee to print a copy of his kite. But a DRC chief inspector denied the grievance, stating that a kite was not a public record, and DRC was therefore not required to provide it under the Ohio Public Records Act, R.C. 149.43. Clark then filed a mandamus action in the Court seeking production of the kite, statutory damages and costs.
The Court quickly noted that it had previously held that kites are public records subject to disclosure, as PLN reported. [See: PLN, Dec. 2022, p.34.] DRC objected to being held to the prior ruling because it came after Clark’s request. But the Court said that didn’t make his request any less valid. The earlier ruling not only determined prospectively that kites are public records but “also ‘authoritatively’ determined ‘what the statute meant before,’” the Court said, quoting State ex rel. Barr. v. Wesson, 227 N.E.3d 1181 (Ohio 2023).
It also did not matter that DRC provided prisoners digital access to kites on JPay kiosks, the Court continued, noting that DRC advanced “no argument under R.C. 149.43 or related caselaw that Clark’s access to the kite through his JPay account relieves the department of its duty to produce the kite in paper form” under R.C. 149.43(B)(6).
However, a plurality of the Court said that its earlier ruling did not provide a basis for an award of statutory damages. Before that earlier ruling, it was not unreasonable to believe that kites were not public records because of the exception to disclosure requirements for “records of inmates” set out in R.C. 5120.21(F). Two justices dissented and would have awarded $1,000 in statutory damages. The majority, though, agreed with DRC that the timing of Clark’s request meant he wasn’t entitled to damages. Thus the Court granted the writ, denied statutory damages and awarded court costs. See: State ex rel. Clark v. Dep’t of Rehab. & Corr., 2023-Ohio-4183.
Clark was back at the Court on March 6, 2024, with another mandamus action related to a prison kite—this time one he sent asking for paper copies of the commissary price list at Lebanon Correctional Institution in September 2022, after he had been moved there. He was told that the price list was available on JPay, but he reiterated his request for paper copies. That was stonewalled until he filed a mandamus action with the Court, and paper copies of the August 2022 price list were provided in response in April 2023.
Though they were by then out of date, the Court denied the mandamus action, saying that DRC had complied with Clark’s request; if he wanted more up-to-date copies, the Court added, he would have to make a new request. It also refused to award court costs, finding no evidence of bad faith by DRC. But Clark was entitled to damages, the Court said, because his request was denied for longer than the statute allows. Accordingly, he was awarded $1,000, the maximum damages under R.C. 149.43. See: State ex rel. Clark v. Dep’t of Rehab. & Corr., 2024-Ohio-770.
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Related legal case
State ex rel. Clark v. Dep’t of Rehab. & Corr.
| Year | 2024 |
|---|---|
| Cite | State ex rel. Clark v. Dep’t of Rehab. & Corr. |
| Level | State Supreme Court |
| Damages | 0 |