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Ohio Supreme Court Denies Mandamus to Pro Se Prisoner Seeking Prison Policy-Mandated Public Records That Prison Claims Do Not Exist

On May 6, 2020, the Supreme Court of Ohio denied a petition for a writ of mandamus filed pro se by Jerone McDougald, a prisoner at the Southern Ohio Correctional Facility (SOCF), seeking to compel disclosure of public records required to be made under Ohio Department of Rehabilitation and Corrections (DORC) policy. The court held that, since SOCF officials claim the documents do not exits, it could not grant the writ.

McDougald sought three documents, an “incident report” about a use of force against him in February 2018, the deputy warden's review of that use of force, and an investigative-summary report of the same incident. The SOCF custodian of public records provided the incident report, but replied that the other two documents did not exist.

Because DORC policy 63-UOF-02 requires the creation of the deputy warden's review and investigative-summary report, McDougald assumed that the records custodian was failing to comply with his statutory duties under R.C. 149.43 and filed a complaint for a writ of mandamus seeking to compel disclosure of the documents.

The Ohio Supreme Court found that the records custodian “did not fail to comply with his obligations under R.C. 149.43” because he provided an affidavit stating that the records do not exist and McDougald has done nothing to rebut it. A governmental entity is not required to produce records that do not exist in response to a public records request. Therefore, the court denied the mandamus and McDougald's request for statutory damages and court costs.

A concurring judge noted that policy 63-UOF-02 became effective long after the use-of-force incident and McDougald had not provided any information on whatever policy was in effect at the time of the incident. See: State ex rel. McDougald v. Greene, Slip Op. 2020-Ohio-2782.

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