The Records Didn’t Exist. The Damages Did.

Ohio Public Records Briefing - Edition #119

Welcome back, and we hope everyone’s finding some shade in these dog days of summer. Woof!

This issue, we look at a recent Ohio Supreme Court decision that rewards a prosecutor’s office for proving requested records don’t exist, then hands the requester a check anyway because the office sat on its hands for months. From there, we head to Austin, Texas, where police released body camera footage of a heartbreaking shooting the very same day it happened, and we ask what an Ohio release would look like. We close with a reader question about how the video fee statute really works, sparked by an “influencer” Facebook post about the relatively new Attorney General Andy Wilson and his interpretation.

And stick around for a related bonus: the AG’s office has released a model policy on producing video records that belongs in your files.

Court Case Review: State ex rel. Fenstermaker v. McConville, 2026-Ohio-530 (Supreme Court of Ohio)

This one is a split decision in the practical sense: the public office won the big argument and still ended up writing a check. Both halves are worth your time.

Tony Fenstermaker, another inmate (these guys just have tons of time and free law library services on their hands), sent the Knox County Prosecutor a records request by certified mail in October 2024. He wanted certified annual statements of the office’s fees and costs for 2016 through 2021, the office’s records retention schedule, and a cashbook or journal of costs kept under R.C. 2335.25 for 2016 through 2022. Then radio silence. No acknowledgment, no denial, no records. He filed a mandamus action in January 2025, and nine days later the office finally responded, producing the retention schedule and explaining that the other records either don’t exist or aren’t kept by the office.