COURT OF APPEALS OF OHIO, EIGHTH DISTRICT
                       COUNTY OF CUYAHOGA
                            NO. 78521
STATE OF OHIO, EX REL.        :        ORIGINAL ACTION
DOUGLAS WILBERGER             :
                              :
          Relator             :
                              :         JOURNAL ENTRY
          v.                  :              AND
                              :            OPINION
MS. HARRIS OF CLEVELAND       :
HOUSE OF CORRECTIONS          :
                              :
          Respondent          :
DATE OF JOURNALIZATION:            DECEMBER 12, 2000
CHARACTER OF PROCEEDING:           WRIT OF MANDAMUS
JUDGMENT:                          Dismissed.
APPEARANCES:
For Relator:                       For Respondent:
DOUGLAS P. WILBERGER, pro se       CORNELL P. CARTER, ESQ.
No. 304-094                        Director of Law
P.O. Box 45699
Lucasville, Ohio  45699            TERRI M. HAMMONS-BROWN, ESQ.
                                   Assistant Director of Law
                                   City of Cleveland
                                   601 Lakeside Avenue, Room 106
                                   Cleveland, Ohio  44114-1077
                               -2-
KARPINSKI, P.J.:
     Douglas P. Wilberger, relator, is seeking a writ of mandamus
to compel respondent, Cleveland House of Correction Head Committee
Staff Member Ms. Harris,  to provide him copies of alleged public
records pursuant to R.C. 149.43.  Relator is requesting copies of
documents relating to a 1994 fist fight he was engaged in which led
to his indictment and  ultimate conviction of felonious  assault.
Respondent moved to dismiss the complaint and, for the reasons that
follow, we grant respondent's motion.
     As a general rule, the public may inspect public records  or
obtain copies of public  records, either at the public office  or
through the mail.  R.C. 149.43(B)(1)-(3).  An exception exists for
those persons who are incarcerated and who seek certain types  of
records as follows:
          A public office  or person responsible for  public
     records is  not  required to  permit  a person  who  is
     incarcerated  pursuant to  a criminal  conviction or  a
     juvenile adjudication to inspect or to obtain a copy of
     any public record concerning a criminal investigation or
     prosecution  or concerning  what  would be  a  criminal
     investigation  or prosecution  if  the subject  of  the
     investigation or prosecution were an adult, unless  the
     request to inspect or to obtain a copy of the record is
     for the purpose of acquiring information that is subject
     to release as a public record under this section and the
     judge who imposed the sentence or made the adjudication
     with respect to the person, or the judge's successor in
     office, finds that the information sought in the public
     record is  necessary to support  what appears  to be  a
     justiciable claim of the person.
R.C. 149.43(B)(4).   Pursuant  to this  section, an  incarcerated
individual who  is requesting  a copy  of a  record concerning  a
criminal investigation or prosecution may not obtain this  record
                               -3-
unless (1) the record requested  is a public record, and (2)  the
judge  who imposed  the sentence  or made  the adjudication  with
respect to the person,  or the judge's successor, finds that  the
information sought in  the public record is necessary to  support
what  appears to  be  a  justiciable claim  of  the  incarcerated
individual.
     In State ex rel. Arnold v. Pollutro (Nov. 30, 2000), Cuyahoga
App. No.  78504, unreported, and State  ex rel. Walker v.  Balraj
(Aug. 2, 2000),  Cuyahoga App. No. 77967, unreported, this  court
dismissed the requests of  incarcerated individuals for writs  of
mandamus to compel the release of alleged public records because,
inter alia, neither relator  had demonstrated that the  pertinent
judge had  made  the requisite  determination specified  in  R.C.
149.43(B)(4).  Likewise, in this case, relator has not alleged in
his complaint or averred in a Loc.App.R. 45(B)(1) affidavit that he
has obtained a determination from the trial judge in his criminal
case that  the information sought  is necessary  to support  what
appears to be a justiciable claim as required in R.C. 149.43(B)(4).
     Accordingly, we grant respondent's  motion to dismiss.   The
clerk of court is to serve notice upon the parties as provided in
Civ.R. 58(B).   Costs of this action  are to be assessed  against
relator.
LEO M. SPELLACY, J., and
PATRICIA A. BLACKMON, J., CONCUR.
                                        DIANE KARPINSKI
                                        PRESIDING JUDGE
 
.