IN THE SUPREME COURT OF OHIO

STATE OF OHIOex rel. PLUNDERBUND MEDIA, LLC2206 Dixon StreetDelaware, Ohio 43015

Relator

V. AN ORIGINAL ACTION

JOSH MANDEL, TREASURER30 East Broad Street, 9th FloorColumbus, Ohio 43215

Respondent

COMPLAINT FOR WRIT OF MANDAMUS

SEP v 4 niz

Victoria E. Ullmann (0031468)Counsel for Relator1135 Bryden RoadColumbus, Ohio 43205

(614)253-2692Victoria ullmann ghotmail.com

Ctr_RK Oi COURTSUPREME COUftT OF OHIO

Relator, Plunderbund Media LLC ("Plunderbund") states as follows:

1. This court has original jurisdiction of this action pursuant to Ohio Constitution Article

4.02 (B)(1)(b) and R.C. 149.43.

2. Plunderbund is a new media company based in Central Ohio. Through their blog

Plunderbund.com they provide original reporting, analysis and editorial commentary on Ohio

politics.

3. Josh Mandel became treasurer of the state of Ohio in 2011 and is currently a candidate

for United States Senate.

4. On March 15, 2011. Joseph Mismas, co-owner and managing editor of Plunderbund

sent a public documents request to each of the five statewide officials, requesting that they

provide specific documents relating to the execution of their duties pursuant to the Ohio Public

Documents Act, R.C. 149.43 et seq.

5. He requested copies of any logs recording receipt and response to documents requests,

the initial request and the written response of the agency along with any other correspondence

relating to the agency's response to public documents requests. (See Affidavit of Mismas,

Attached)

6. The auditor, attorney general and secretary of state all acknowledged receipt of the

emailed request for documents the day it was received, March 15. 2012. The governor's office

acknowledged it on Apri127, 2012. Id.

7. The auditor's office provided the documents on March 16, 2012. The attorney

general's staff provided the documents on March 20, 2012. The secretary of state's staff began

initial document production on March 26 and completed production on April 27. The governor's

office provided the documents by June 13.

8. The governor's office provided 220 pages of responsive records. The auditor provided

2,826 pdf files. The production of these documents by the other 4 offices prove that the request

for documents submitted by Mismas was proper, not overbroad or otherwise objectionable.

9. The prompt production of these documents demonstrates to this Court how a

reasonable public official should respond to this particular request.

10. Treasurer's office failed to respond to the request in any way, until Mismas hired

counsel who made the request for what would be the twelfth time, by certified mail. After Seth

Metcalf, general counsel for the treasurer's office, became aware that counsel was involved; he

continued to be evasive rather than producing the documents.

11. Only after repeated calls and emails and after counsel indicated that suit would be

filed, did Metcalf make any sort of response to the request. All he provided was a list of the

requests they had received through March 15, 2012. This was received by counsel on

September 15, 2012, a full six months after the initial request.

12. R.C. 149.43 (B)(1) provides: "Upon request and subject to division (B)(8) of this

section, all public records responsive to the request shall be promptly prepared and made

available for inspection to any person at all reasonable times during regular business hours."

Subject to division (B)(8) of this section, upon request, a public office or person responsible for

public records shall make copies of the requested public record available at cost and within a

reasonable period of time."

13. .The one document produced by the treasurer's office indicates that Mismas' initial

request was received by the treasurer's office on March 15, 2012. . The treasurer's office

willfully failed to provide any response to the document request for six months. This delay is

unreasonable and a facial violation of R.C. 149.43. (B)

3

14. Pursuant 149.43.(B)(2) a public official may deny records if the request is

overbroad and the official cannot ascertain which records are being requested. In that case the

official is required to provide retention schedules and other information to the requester to assist

in formulating the request.

15. Metcalf refused to produce any documents based on the allegation that the request

was overbroad and burdensome. However, he manufactured a list containing the exact files

requested by Mismas. The treasurer's office clearly knew exactly what files were requested and

what they were required to produce and willfully failed to do so.

16. The documented responses of the other office holders prove that the request was

neither burdensome or overbroad. The treasurer's refusal to provide the documents is

conclusively proven to be unreasonable in light of the responses of the other officeholders and

applicable law.

WHEREFORE: A preemptory writ of mandamus should issue forthwith requiring that

all documents responsive to the request be produced. In the alternative, relator has set forth

adequate proof of a violation for the court to schedule briefing for the alternative writ. Relator

also prays the court to award statutory damages, costs and attorneys fees in this action since the

failure to provide these documents is unreasonable and unsupportable.

Respectfully submitted,

Victoria E. Ullmann 0031468Attorney for Plunderbund Media, LLC1135 Bryden RoadColumbus, Ohio 43205614-253-2692Victoria_ullmann@hotmail.com

4

AFFIDAVIT OF JOSEPH MISMAS

Joseph Mismas, being duly sworn and cautioned, states as follows:

1. I am co-owner and managing editor of Plunderbund Media, LLC.

2. On March 15, 2012 I made the same public documents request to the five Ohio

statewide elected officials' offices. I requested copies of any logs recording receipt and

response to documents requests, the initial request and the written response of the agency along

with any other correspondence relating to the agency's response to public documents requests.

3. The attorney general, auditor and secretary of state's offices responded and

acknowledged that they had received my request on March 15, 2012. The governor's office

acknowledged the request on Apri127, 2012.

4. The auditor's office provided the responsive documents on March 16, 2012. The

attorney general's office provided the documents on March 20, 2012. The secretary of state

produced the documents in several batches and I had them all by Apri127, 2012. The govemor's

office provided the documents by June 13, 2012.

5. The governor's office provided 220 pages of responsive records. The auditor provided

2,826 pdf files.

. 6. Only the treasurer's office ignored my request. I contacted them eight times by

email, twice by phone and once by certified mail and they completely ignored me. I hired

counsel after receiving no response for five months.

7. Attached are the true and accurate copies of my correspondence with the treasurer

office and the response I received through counsel in response to my request. (Ex. 1,2,3)

5

NOTARY

Sworn and subscribed before me, a notary public of the state of Ohio thp, Z^ dayof September, 2012

6

1

Letter to Seth Metcalf sent via Certified Mail in May 2012

ay. I

2

Via Certified Mail

Seth MetcalfState Treasurer of Ohio30 E. Broad Street - 9th FloorColumbus, Ohio 43215

Re: March 15, 2012 Record Request

Dear Mr. Metcalf,

On March 15, 2012 1 forwarded to your office a public records request. An amended copy

of this request is included on the next page.

Originally, I requested public records from January 1, 2011 to March 15th, 2012. Due to thepassage of time, I am amending this request to also include responsive records through

May 30, 2012.

I have followed up this request with no fewer than six emails (copies are attached)requesting responsive public records. I have not received any responses to these emails. Ihave also followed up on this request by calling your office and leaving voicemailsrequesting responsive records. I have not received any response to these voicemails.

As you are no doubt aware, Ohio law requires that, upon a request, all public recordsresponsive to the request shall be promptly prepared and made avlof inspection,and that copies of records must be provided within a reasonable periodconclude from your silence that the request has been denied, because Ohio law requiresalso that if a request is ultimately denied, in part or in whole, your office must provide mewith an explanation in writing, including legal authority, setting forth why the request was

denied.

My view is that I have been very patient in waiting for these public records, but that theamount of time it has taken to produce the records is now beyond reasonable. Therefore,please be advised that if the public records are not promptly made available, we maycommence a mandamus action in the appropriate court to obtain a judgment that ordersyour office to comply with Ohio's public records laws. If we pursue this action, we will alsoseek statutory damages, court costs and reasonable attorney's fees.

I look forward to your prompt reply.

I can be reached at jmismasCa^umail.com or 614-365-0421.

Joseph Mismas

AMMENDED RECORD REQUEST

Mr. Metcalf,

I am requesting a copy of all record requests received by your office from January 1st, 2011to today's date (May 30, 2012) along with the communication related to those requests andany documents used to track the status of record requests received by your office.

Specifically I am interested in:

1. A copy of the original letter, email, phone message, etc. for each record requestreceived by your office

2. A copy of all communication between your office and each requester regarding

his/her request

3. A copy of any documents or databases used to track the status of records requests

Note: I do not need a copy of all of the actual responsive records to the requests.

I look forward to prompt preparation and disclosure of all records.

Please do not hesitate to contact me if I can provide additional information about my

request.

Thank you,

Joseph MismasLiMISMA S@GMAlL.COM614-365-0429.

Emails to Seth Metcalf sent From May 15, 2012 to June 8,2012

^x. ^

lya:

Gmall - REQUEST FOR RECORUS

REQUEST FOR RECORDS

Joseph <jmismas@googlemail.com>To: seth.metcalf@tos.ohio.gov

Seth,

Thu, Mar 15, 2012 at 12:31 AM

I am requesting a copy of all record requests receiwd by your office from January 1 st, 2011 to today's date(March 15, 2012) along with the communication related to those requests and any documents used to track thestatus of record requests received by your office. Specifically I am interested in:

1. A copy of the original letter, email, phone message, etc. for each record request recehied by your office2. A copy of all communication between your office and each requester regarding his/her request3. A copy of any documents or databases used to track the status of records requests

Note: I do not need a copy of all of the actual responsn,e records to the requests.

I look fonaard to prompt preparation and disclosure of all records.

Please do not hesitate to contact me if I can provide additional information about my request.

Thank you,Joe

Joseph MismasJMISMAS@GMAIL.COM614-365-0421

Joseph <jmismas@googlemail.com>To: seth.metcalf@tos.ohio.gov

Wed, Apr 11, 2012 at 7:40 AM

Seth,

ft's been neady a month since I sent this request to your office and I haoe recei%d no response.

Can you please confirm you received the request and proxide me and estimated date on which I can expect therecords?

Thanks,Joe[Quoted text hidden]

jmismas@googlemail,com <jmismas@googlemail.com>Reply-To: jmismas@gmail.comTo: seth.metcalf@tos.ohio.gov

Seth,

Thu, Apr 12, 2012 at 5:10 PM

Can you please let me know if there is someone else in your office to whom I should be directing my record

requests?h[tps://mail.google.wm/mad/7ui=2&ik=d9d96ad7f6&v iew=pt&q=5eth.metG3lf%401os.ohio.gav&qs=true&...

9124112 Gmall -REQUESTFORRECORDS

Thank you,JoeSent wa BlackBerry from T-Mobile _._.__. __..._._.

From: Joseph <jmismas@googlemail.com>Date: Wed, 11 Apr 2012 07;40:13 -0400To: <seth.metcaif@tos.ohio.gov>Subject: Re: REQUEST FOR RECORDS[Quoted text hidden] . ..._... . _.^_.__.. .

. __._.. _..._.. ___..._ .,._..._.._.. _ . ....____.. . .

Joseph <jmismas@googlemai[.com>Thu, Apr 12, 2012 at 10:58 PM

To: constituentaiFairs@tos.ohio.gov, seth.metcalf@tos ohto.gov, Seth.Unger@tos.ohio.gov

I haw been trying to submit a public record request to Seth Metcalf for neady a month now and I have received no

response.

I kindly ask that you provide me with contact information, including name, phone number and email address, forthe public records officer in your office so I can follow up on the status of my request.

Thank you for your assistance,Joe

Joseph Mismas614-365-0421jmismas@gmail.com

Forwarded messageFrom: <jrnismas@googlemaii.com>Date: Thu, Apr 12, 2012 at 5:10 PMSubject: Re: REQUEST FOR RECORDS[Quoted text hiddeni

Joseph <jmismas@goog[email.com> Fri, Apr 27, 2012 at 9:39 PMTo: constituentaffairs@tos.ohio.gov, seth.metcalf@tos.ohio.gov, Seth.Unger@tos.ohio.gov

All,

It has been a month and a half since my odginal record request was filed with your office and I have receiwd no

response.

Could you please confirm that you have received my request and proNde me with an estimated date of

completion?

Thank you,Joe[Quoted text hidden]

Joseph <jmismas@goog[emaii.com>Mon, Apr 30, 2012 at 2:13 PM

To: Seth.Unger@tos.ohio.gov

Mlps://mail.google.com/mail(Ni=2&ik=d9dg6ad7r6&view=pt&q=5eth•mehaR°k9Dtos.ohin.gov&qs=tTUe&...

9124112 6mafl-REQUESTFORRECORDS

Cc: constituentatfeirs@tos.ohio.gov, seth.metcalf@tos.ohio.gov

Seth,

I just left a voicemail for you regarding my outstanding record request from March 15th, 2012.

This same request was sent to every other statewide office holder on the same day, and eeeryone has responded

except your office.

I would greatly appreciate a quick email letting me know that you have received my record request and you are

working on identifying responsiue records.

I would prefer all responses to be via email, but feel free to call me directly if you have any questions: 614-365-

0421.

Joe[Quoted text hidden7

Joseph <jmismas@goog[email.com>To: Seth.Unger@tos.ohio.govCc: constituentaffairs@tos.ohio.gov, seth.metcatF@tos.ohio.gov

Fri, Jun 8, 2012 at 9:51 AM

Seth,

Post office records indicate you received my certified letter over a week ago and I still have not heard back from

your office regarding my record request.

Could you please confirm that you have received my request and provide an estimated time frame for delivering

the records?

Thank you,Joe Mismasjmismas@gmai!.com614-365-0421[Quoted text hlddeni

.9ov &htlps://ma9.goo9le.com/mal/tui=2&ik=d9d96ad7f6&view=pt&q=5eth.mettaIf%40tns.uhioqs=true&...

Response from the treasurer's office

5

JOSH MANDELSTATE TREASURER OF OH[O

September 14, 2012

Victoria Ullmann1135 Bryden RoadColumbus, OH 43205

Dear Ms. Ullmann:

This letter is in response to a recent request by your client, Joseph Mismas, in which he requested copies ofpublic records requests received by the office of the Treasurer of State. Enclosed with this letter is a list thatsets forth all of the public records requests received during the period corresponding to your client's request.

The Ohio Supreme Court has repeatedly held that the Public Records Act, as codified in R.C. 149.43, "does notcontemplate that any individual has the right to a complete duplication of voluminous files kept by government

agencies." State ex rel. Dehier v. Spatny, 127 Ohio St. 3d 312, 2010-Ohio-5711, ¶ 3; State ex; reL Glasgow v.

Jones, 119 Ohio St. 3d 391, 2008-Ohio-788, 1I 17. Your client's request for copies of "all communication[s]" and

"each record request" constitutes an overly broad request which this office must deny.

The Ohio Supreme Court has further held that a public office's compliance with a request for public recordsshould not impose "unreasonable interference with the discharge of the duties of the records custodian." State

ex rel. Dehier v. Spatny, 127 Ohio St. 3d 312, 2010-Ohio-5711, ¶ 5; see also State ex. rel. Zauderer v. Joseph, 62

Ohio App. 3d 752, 756 (10th Dist. 1989). Producing copies of all of the items specified in your client's letterwould interfere with this office's duties since it would require the complete duplication of voluminous records.

Please note that this letter and the enclosed list fulfill this office's obligations pursuant to R.C. 149.43(B)(2), asthe list informs you and your client of the manner in which public records requests are maintained and accessedby this office. Please contact me if you have any additional questions, or would like further assistance in

obtaining public records within the possession of the office of the Treasurer of State.

Furthermore, please note that as a matter of courtesy, this office is waiving charges for the duplication and

delivery of the enclosed document.

Generall3unsel &Chief Financial Officer

30 EAST BROAD STREET - 9TH FLOOR COLUMBUS. OHIO 43215PHONE: (614) 466-2160 - WWW.OHIOTREASURER.ORG FAX: (614) 644-7313

PUBLIC RECORDS REQUESTS: 1/1/2011 - 3/15/2012

1

.Christine Watchorn

D. .1/18/2011

2 Louisiana Attorney General 1/25/2011

3 Rep. Carlton Weddington 1/31/2011

4 Sen. Capri Cafaro 2/7/2011

5 Ohio Democratic Party 2/8/2011

6 Brian Palmer 2/14/2011

7 Weiss & Lurie LLP 2/14/2011

8 John Alden 2/16/2011

9 Bill Hannah 3/9/2011

10 Rick Hepp 4/8/2011

11 jcfej@comcast.net 4/9/2011

12 Ohio Democratic Party 4/15/2011

13 Russell Hughlock 4/20/2011

14 Russell Hughlock 5/17/2011

15 Kane Russell Coleman Logan 5/20/2011

16 NickTurgeon 5/27/2011

17 JoshSwefgart 6/3/2011

18 Jon Honeck 6/6/2011

19 OhioDemocratic Party 6/6/2011

20 Josh Sweigart 6/17/2011

21 American Bridge 21st Century 7/13/2011

22 Columbus Dispatch 7/21/2011

23 Ohio Democratic Party 7/26/2011

24 Jasculca Terman PR 7/27/2011

25 Lakewood Alive 8/10/2011

26 Policy Matters Ohio 8/11/2011

27

Democratic Senatorial Campaign

Committee 8/15/2011

28 Regina-Shen Jing 8/24/2011

29 Gabriel Baird 9/7/2011

30 Rebekah King 9/19/2011

-.

31

-. .

PeterStroth

D. - . R eq uest

9/20/2011

32 John Franklin 9/20/2011

33 Patrick McCarthy 9/20/2011

34 Sandra Adam 9/26/2011

35 John Adams 9/26/2011

36 Gabriel Baird 10/12/2011

37 Illinois Treasurer's office 10/19/2011

38 Julie Smyth 10/24/2011

39 Ohio Democratic Party 11/4/2011

40 ChristopherCondon 11/4/2011

41 JoeGuilleo 11/30/2011

42 Ohio Democratic Party 11/30/2011

43 McDonald Hopkins LLP 12/12/2011

44 Ohio Democratic Party 12/20/2011

45 Ohio Democratic Party 12/20/2011

46 Ohio Democratic Party 1/9/2012

47 Scott Fratturelli 1/12/2012

48 Justin Nigro 1/20/2012

49 Kevin R. Floyd 1/20/2012

so WilliamTipton 1/24/2012

51 Laura Bischoff 1/30/2012

52 Lester Black 2/6/2012

53 Joel Chow 2/8/2012

54 Rep. Dennis Murray 2/9/2012

55 Annette5hively 2/15/2012

56 Joseph Mismas 3/15/2012