Lucas Strakowski, Associate Member, University of Cincinnati Law Review
The Ohio Public Records Act (“PRA”) is a long-standing statutory framework that enables Ohioans to request public records from a public office. The PRA is “construed liberally in favor of broad access,” and any doubt as to whether records are public and should be disclosed is, with enumerated exceptions, generally resolved in favor of disclosure. However, multiple cases decided over the past couple of months by the Ohio Supreme Court have de facto restricted inmate access to public records. Despite this narrowing of inmate rights to access public records, the appropriate route to restoring these rights is easily found: Justice Kennedy’s dissent in McDougald v. Sehlmeyer. Part II-A of this article presents background on the PRA. Part II-B presents factual background from McDougald v. Sehlmeyer. Part III-A presents an analysis of the majority and dissent in McDougald v. Sehlmeyer. Part III-B presents policy considerations and reasoning when evaluating future inmate public records access cases. Part IV concludes.
A. The Ohio Public Records Act
The Ohio PRA allows any person to obtain public records. A public office may charge the actual cost of copying for the corresponding records. A request to inspect public records, by contrast, is not subject to any prepayment. The public office must also keep the records in such a way as to make them available at reasonable hours. A public office may deny a public records request, but must provide the requester with an explanation, including legal authority, as to why. Even if no responsive records exist that would fulfill the request, the public office must give the requester a reasoning for a denial. Additionally, if the initial request was provided in writing, the public office’s response denying the request must also be in writing. Moreover, if a public office does not respond to a public records request, it is treated as a denial.
If a request is denied, a requester may compel response through a mandamus action. The PRA provides for damages if the requester transmitted a written request by hand delivery, electronic submission, or certified mail to inspect or receive copies, and the public office or person responsible for the records fails to comply with its public records obligations. However, the requester cannot recover statutory damages under the PRA if he or she did not transmit a written request in the appropriate manner. In addition to the PRA’s statutory damage provisions, the PRA also provides for the requester to collect reasonable attorney’s fees and court costs in some situations.
The PRA’s rights are not absolute in favor of the requester; the PRA also contains restrictive provisions for specific types of requesters, including inmate requesters. First, an inmate may not access public records concerning criminal investigations, prosecutions, or information records concerning the subject of investigations, unless he or she acquires the sentencing judge’s signature. Further, an inmate’s request may also be denied if it would unreasonably interfere with the discharge of a prison official’s duties. However, unless these exceptions apply, an inmate may request public records from prison officials.
The PRA serves two important policies. First, the PRA establishes that public records are “the people’s records,” and officials who are custodians of those records are responsible for maintaining them appropriately. Second, the PRA promotes greater oversight and accountability, and transparency of public bodies and government actors. If a public office evades statutory damage requirements, and the court fails to hold a public office accountable when the public office fails to meet the PRA’s statutory duties, both primary policies are undermined.
B. McDougald v. Sehlmeyer
1. The Majority Opinion
McDougald v. Sehlmeyer best illustrates how the court has recently restricted inmate rights of access to public records, and how the court has likely expanded prison officials’ discretion in denying inmate public records requests. In that case, a maximum-security inmate, Jerone McDougald, requested in-person inspection of several documents about a particular prison official. A different prison official, Sehlmeyer, who was responsible for public records requests, responded to McDougald’s request by noting the cost for copying the records but did not include information about inspection in the response. Sehlmeyer never gave a concrete reason for the denial to McDougald. McDougald never made an indication to Sehlmeyer that “he was still seeking to inspect [the] documents,” and never gave Sehlmeyer a cash slip as prepayment for copying the records. Instead, McDougald filed a complaint for a writ of mandamus to compel inspection and requested an award of court costs.
The majority for the Ohio Supreme Court noted that Ohio courts give deference to prison officials in how they preserve internal order and maintain institutional security. The court then denied the writ of mandamus compelling in-person inspection of the records as “McDougald [did not identify] any instance in which a court [overruled] the decision of prison officials and ordered them to permit an inmate to inspect records personally.” The court also quipped that “precluding maximum-security inmates from conducting in-person inspection of prison records will often be sensible.” Finally, the court held that McDougald was not entitled to statutory damages because he had delivered his request through the prison kite system, which the court had “recently held that a prison kite is not one of the delivery methods identified in [the PRA].”
2. Justice Kennedy’s Dissent
Justice Kennedy reiterates much of the facts from the majority but also adds important missing points. In particular, Justice Kennedy focuses on Sehlmeyer’s initial response to McDougald. Kennedy emphasizes that while Sehlmeyer explained in an affidavit for the court how officials evaluate inmate public records requests, Sehlmeyer never gave McDougald reasoning as to why she denied McDougald’s request to inspect the records. As such, Sehlmeyer failed to meet the PRA’s statutory duties, and the court should have granted the writ to compel inspection of the records. Kennedy then argues McDougald should also be eligible for an award of statutory damages, because a prison kite should constitute “hand delivery” for purposes of the PRA’s statutory damages provisions. The dissent also opines how the majority’s holding could affect whether inmates can even still access public records.
Generally, inmates are the same as anyone else requesting public records. In several recent cases, the Ohio Supreme Court has encroached on inmate rights to access public records and to hold prison officials accountable in responding appropriately to inmate public records requests. The court’s rulings could allow prisons and prison officials to escape statutory damages in situations of bad faith denials of public records requests, contrary to the PRA’s policy goals of transparency and accountability. However, these concerns can be remedied by simply holding that a prison kite is equivalent to a hand delivery for purposes of inmate public records requests. Doing so would then entitle the inmate to statutory damages and would again hold the prison or prison official accountable in responding to inmate public records requests in good faith.
A. Evaluating McDougald v. Sehlmeyer
PRA policy concerns dictate the opposite result from what the majority reached here, and the holding should instead align with Justice Kennedy’s vigorous and well-reasoned dissent. Ultimately, Sehlmeyer failed to provide reasoning to McDougald for denying McDougald’s public records request. McDougald submitted his request on August 13, 2019, and to this day—402 days as of September 18, 2020—he has not received any actual reason as to why his records request was denied. Because Sehlmeyer failed to respond to the request as required under the PRA, statutory damages should have been assessed.  At minimum, as stated in both Justice Kennedy’s dissent and Justice French’s concurrence in part, the court should have granted the writ compelling in-person inspection.
However, instead of granting statutory damages, or even holding that Sehlmeyer failed her statutorily mandated duty, the court was lenient to the point of toothless in enforcing the unmet statutory requirements. Sehlmeyer’s affidavit provided the court with some idea as to why the request had been denied. However, the PRA requires that the official in charge of public records give a specific reason for a denial with supporting legal authority to the requester, not to the court. This entire issue could have been avoided if Sehlmeyer had simply provided a reason to McDougald when she denied the public records request. Prison officials in similar cases have provided minimal concrete reasoning for denying inmate public records requests, and are generally given deference by the courts. However, a court owes a prison official’s reasoning no deference if the official fails to provide the requester with an initial substantive reason for the denial. The official may provide additional legal authority or reasons for a denial in defending the action, but he or she must first provide the requester with an initial reason for the denial.
The court’s ruling may have inadvertently given near-unfettered discretion to prison officials to disregard the PRA when denying public records requests from inmates. This result is directly contrary to the primary mandates of the PRA to (1) force accountability and transparency of public offices and officials and (2) properly maintain “the people’s records.” Because inmates are already included in several exceptions, inmates are included in the “any person” language of the PRA. If they were not included in the “any person” language, additional restrictions for inmate requesters would not be necessary. As such, the PRA’s policy concerns apply even to inmates requesting records from the prison officials who oversee them.
B. Practical Concerns
Another issue for inmates is the cost of meeting the PRA’s requirements to entitle an inmate to damages. A request must be written and delivered by hand delivery, electronic communication, or certified mail to entitle a requester to statutory damages. An inmate cannot easily meet these requirements. For an inmate, hand delivery in the literal sense might be impossible, as he or she is not free to move around the prison at will. Prison officials are, presumably, not with the inmates in the cells. Instead, the inmates rely on the prison “kite” system to give messages and requests to prison officials who can then transmit the requests to the intended recipient. These officials effectively function as couriers. This system should qualify as “transmit[ting] a written request by hand delivery,” entitling the inmate to statutory damages under the PRA.
The other two methods of transmission entitling a requester to statutory damages—electronic communication and certified mail—are not feasible for inmates. Outbound electronic communication is virtually impossible for inmates in Ohio as they do not have direct access to email. Furthermore, certified mail is not an option for an inmate with extremely limited resources. Certified mail costs $3.35 in addition to any other mail costs, which poses issues for inmates, and for less fortunate Ohioans more generally. Prison wages in Ohio range from roughly $6.00 to $24.00 per month. Using those figures, a typical inmate’s income for an entire year is between $72.00 and $288.00 per year. Asking even the “high income” inmate to pay $3.35 (1.16% of their annual salary) for the additional certified mail cost would be proportional to asking a family making $40,000 a year to pay $465.28 to send a piece of mail.
The cost of certified mail as a pre-requisite to enabling statutory damages under the PRA removes inmates’ ability to make public records requests in two ways. First, the cost-prohibitive nature of certified mail for an inmate is an initial barrier. Furthermore, because the court may have given prison officials too much discretion in denying public records requests, the chance that a request would be denied out of hand and subsequently upheld by a court could also dissuade the inmates from making the request at all. These two reasons produce a chilling effect on inmates’ rights to access public records, because the inmates have no guarantee that, even if they meet the PRA’s requirements, the prison officials will also perform their duties under the PRA. The PRA’s policy concerns of open records and government accountability is not to prevent inmate access to public records in this way. As such, a prison kite should constitute hand delivery for evaluating PRA statutory damage issues, especially when, as in Sehlmeyer, a public records official has failed to meet the PRA’s statutory duties in denying a public records request.
Inmates have very little going in their favor. However, the PRA does not care about a person’s incarceration status generally. Incarcerated individuals are included in the PRA’s “any person” language that entitles people to public records production from a public office under multiple policy concerns. Requiring inmates to jump through extra hoops to hold prison officials accountable is not a goal of the PRA. Instead, the PRA’s goal is to provide oversight, accountability and transparency, even in the prison system.
Public records requests are made constantly and litigated frequently, but courts generally resolve ambiguity or doubt in favor of the citizenry in order to maintain open, transparent, and accountable government. As such, Justice Kennedy’s dissent holding that inmates are entitled to statutory damages because a prison kite constitutes a hand delivery should be adopted. This adoption would give inmates actual recourse to force prison officials to respond to inmate public records requests in good faith to the requests and appropriately maintain the integrity of the PRA policies.
 Ohio Rev. Code Ann. §149.43 (West 2020); Dave Yost et al., Ohio Sunshine Laws 2020: An Open Government Resource Manual 1 (2020). The Public Records Act is frequently abbreviated in case law as “PRA,” referred to as “Sunshine” laws, or simply referenced as “149.43.”
 State ex rel. Cincinnati Enquirer v. Hamilton County, 75 Ohio St.3d 374, 376, 662 N.E.2d 334, 336 (Ohio 1996).
 See generally McDougald v. Greene, 159 Ohio St.3d 1451, 2020-Ohio-3714, 149 N.E.3d 534 (Ohio 2020); McDougald v. Sehlmeyer, No. 2019-1212, 2020 WL 4495366, 2020-Ohio-3927 (Ohio 2020); State ex rel. Hedenberg v. North Central Correctional Complex, No. 2018-1117, 2020 WL 4289777, 2020-Ohio-3815 (Ohio 2020).
 McDougald v. Sehlmeyer,2020 WL 4495366 at *4, ¶ 21 (Kennedy, J., dissenting).
 Ohio Rev. Code Ann. §149.43(B)(1) (West 2020).
 Id.; see also State ex rel. Warren Newspapers, Inc. v. Hutson, 70 Ohio St.3d 619, 624, 640 N.E.2d 174 (Ohio 1994) (“the right of inspection, as opposed to the right to request copies, is not conditioned on the payment of any fee under R.C. 149.43”).
 Ohio Rev. Code Ann. §149.43(B)(3) (West 2020).
 §149.43(B)(1); §149.43(B)(3); see also State ex rel. Cordell v. Paden, 156 Ohio St.3d 394, 396, 2019-Ohio-1216, 128 N.E.3d 179, ¶ 13 (Ohio 2019).
 Ohio Rev. Code Ann. §149.43(C)(2) (West 2020).
 Id.; cf. State ex rel. Martin v. Greene, 156 Ohio St.3d 482, 2019-Ohio-1827, 129 N.E.3d 429, ¶ 9 (Ohio 2019) (noting that a requester must provide by clear and convincing evidence that they sent a public records request in the required manner to entitle the requester to statutory damages).
 §149.43(C)(3)(a); §149.43(C)(3)(b).
 State ex rel. Dehler v. Mohr, 129 Ohio St.3d 37, 2011-Ohio-959, 950 N.E.2d 156, ¶ 2 (Ohio 2011) (holding that because the inmate had been transferred to a different facility it would have been “close to impossible” to grant the public records request in question because of related security issues and interfering with discharge of prison officials’ duties).
 McDougald v. Sehlmeyer, 2020 WL 4495366 at *8, ¶ 41 (Kennedy, J., dissenting); see also Ohio Rev. Code Ann. §§149.43(B)(1), 149.43(B)(8) (West 2020).
 Cf. State ex rel. Kesterson v. Kent State University, 156 Ohio St.3d 13, 2018-Ohio-5108, 123 N.E.3d 887, ¶ 9 (Ohio 2018).
 State ex rel. Glasgow v. Jones, 119 Ohio St.3d 391, 2008-Ohio-4788, 894 N.E.2d 686, ¶ 12-13 (Ohio 2008).
 McDougald v. Sehlmeyer, 2020 WL 4495366 at *1 (Ohio 2020). These documents included training course files, position description, forms documenting receipt of office policies, and forms documenting any job classification changes.
 Id., n.1. The official noted it would cost $1.80 to produce the records, 36 pages at a cost of $.05 per page.
 Id.; id. at *3 (French, J. concurring in part and dissenting in part); id. at *4 (Kennedy, J. dissenting).
 Id. at *1.
 Id. at *1.
 Id. at *3.
 Id. (emphasis in original).
 Id. at *5 (Kennedy, J., dissenting) (quoting State ex rel. Martin v. Greene, 156 Ohio St.3d 482, 2019-Ohio-1827, 129 N.E.3d 419, n.1 (Ohio 2019)) (internal quotation marks omitted). “A ‘kite’ is written by an inmate to a prison staff person and is ‘a means for inmates to contact prison staff inside [an] institution.’”
 McDougald v. Sehlmeyer, 2020 WL 4495366 at *3.
 Id. at *4 (Kennedy, J., dissenting).
 Id. at *5.
 Id. at *8 (Kennedy, J., dissenting).
 Minus some narrow exceptions as discussed above. See e.g. Ohio Rev. Code Ann. §149.43(B)(8) (West 2020); see also State ex rel. Dehler v. Mohr, 129 Ohio St.3d 37, 2011-Ohio-959, 950 N.E.2d 156 (Ohio 2011).
 See generally McDougald v. Sehlmeyer, 2020 WL 4495366; McDougald v. Greene, 159 Ohio St.3d 1451, 2020-Ohio-3714, 149 N.E.3d 534 (Ohio 2020); State ex rel. Hedenberg v. North Central Correctional Complex, No. 2018-1117, 2020 WL 4289777, 2020-Ohio-3815 (Ohio 2020).
 See McDougald v. Sehlmeyer, 2020 WL 4495366 at *5 (Kennedy J. dissenting).
 See e.g. State ex rel. Cordell v. Paden, 156 Ohio St.3d 394, 2019-Ohio-1216, 128 N.E. 3d 179 (Ohio 2019) (three-month delay by a public office in responding to a public records request entitles the requester to statutory damages).
 McDougald v. Sehlmeyer, 2020 WL 4495366 at *3 (French, J., concurring in part and dissenting in part); id. at *4 (Kennedy, J. dissenting).
 Ohio Rev. Code Ann. §149.43(B)(3) (West 2020) (“If a request is ultimately denied . . . the public office or the person responsible for the requested public record shall provide the requester with an explanation . . .”) (emphasis added).
 Id. (“the explanation shall not preclude the public office . . . from relying upon additional reasons or legal authority in defending an action . . .”).
 See generally State ex rel. Dehler v. Kelly, 127 Ohio St.3d 309, 2010-Ohio-5724, 939 N.E.2d 828, (Ohio 2010) (noting that prison officials established that permitting the inmate in the case to inspect the requested records might have unreasonably interfered with the discharge of their duties).
 Dictionary.com, Hand Delivery,https://dictionary.cambridge.org/us/dictionary/english/hand-deliver (last visited September 15, 2020) (defining hand delivery as “to take something to someone yourself or send it by courier”). (emphasis added).
 Dictionary.com, Courier, https://dictionary.cambridge.org/us/dictionary/english/courier (last visited September 15, 2020) (defining courier as a “person or company that takes messages, letters, or packages from one person or place to another”).
 Ohio Rev. Code Ann. §149.43(C)(2) (West 2020).
 Wendy Sawyer, How much do incarcerated people earn in each state?, Prison Policy Initiative (April 10, 2017), https://www.prisonpolicy.org/reports/wage_policies.html (last visited September 15, 2020); see also Ohio Admin. Code 5120-3-08 (West 2020) (setting forth different classifications for wages for prison inmates).