[Cite as Viola v. Cuyahoga Cty. Prosecutor's Office, 2021-Ohio-645.]
ANTHONY VIOLA Case No. 2020-00506PQ
Requester Judge Dale A. Crawford
v. DECISION AND ENTRY
CUYAHOGA COUNTY PROSECUTOR'S
OFFICE
Respondent
{¶1} Requester Anthony Viola objects to a special master’s report and
recommendation in this public-records dispute.
I. Background
{¶2} Viola made a public-records request to Respondent Cuyahoga County
Prosecutor’s Office (Prosecutor’s Office) in which he sought emails from former
Assistant Cuyahoga County Prosecutor Dan Kasaris. On August 18, 2020, Viola
brought a lawsuit in this Court against the Prosecutor’s Office. Viola stated in the
complaint: “Former Assistant Cuyahoga County Prosecutor Dan Kasaris utilized his
personal Yahoo email account to communicate with government witness Kathryn
Clover, but the Prosecutor’s Office refused to search this email account for records
responsive to a public records request.” The Clerk of this Court appointed a special
master who referred the case to mediation. After mediation failed to successfully
resolve all disputed issues between the parties, the Court returned the case to the
special master’s docket.
{¶3} On January 7, 2021, the special master issued a report and
recommendation (R&R). The special master found that, on the facts and evidence,
“Viola has not shown that the manner in which the Prosecutor’s Office processed his
requests violated R.C. 149.43(B). Further, none of the materials submitted by Viola
persuade the special master that an in camera inspection of the email in Kasaris’
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personal account is required. Weighing the evidence submitted, the special master
finds that Viola has not met his burden to prove by clear and convincing evidence that
any additional records of the Prosecutor’s Office exist in Kasaris’ personal email
account.” (R&R, 7.) The special master concluded: “Based on the pleadings, affidavits,
and documents submitted in this action, the special master recommends the court find
that [Viola] has not shown that [the Prosecutor’s Office] violated R.C. 149.43(B). It is
recommended that costs be assessed to [Viola].” (R&R, 7.)
{¶4} On January 21, 2021, Viola filed written objections to the R&R. Five days
later the Prosecutor’s Office filed a response to Viola’s objections.
II. Law and Analysis
{¶5} R.C. 2743.75(F)(2) governs objections to a special master’s report and
recommendation. Pursuant to R.C. 2743.75(F)(2), either party “may object to the report
and recommendation within seven business days after receiving the report and
recommendation by filing a written objection with the clerk and sending a copy to the
other party by certified mail, return receipt requested. * * * If either party timely objects,
the other party may file with the clerk a response within seven business days after
receiving the objection and send a copy of the response to the objecting party by
certified mail, return receipt requested. The court, within seven business days after the
response to the objection is filed, shall issue a final order that adopts, modifies, or
rejects the report and recommendation.”
{¶6} Although Viola’s certificate of service represents that he did not send a copy
of his written objections to the Prosecutor’s Office by certified mail, return receipt
requested, as required by R.C. 2743.75(F)(2) in the interest of justice, the Court will
consider Viola’s objections, despite the procedural irregularity.
{¶7} According to R.C. 2743.75(F)(2), any objection to a report and
recommendation “shall be specific and state with particularity all grounds for the
objection.” Viola presents three objections for the court’s consideration:
Case No. 2020-00506PQ -3- DECISION & ENTRY
OBJECTION # 1: The Magistrate failed to address the Issue of Mr. Kasaris’
Second Official Email Account.
Viola states in Objection # 1:
During this litigation, the undersigned discovered that Mr. Kasaris
had TWO official, government accounts at the Cuyahoga County
Prosecutor’s Office that he utilized for sending emails:
DKasaris@CuyahogaCounty. us
And
P4DSK@CuyahogaCounty.us
Information concerning this second account was were [sic]
previously provided in this litigation, but are attached hereto for the
Convenience of the Court as Exhibit A. No emails from that second
account were ever provided, nor has the Respondent explained why
officials utilized multiple accounts, or why emails from the “P4DSK”
account could not be produced.
Requestor respectfully requests This Court return this matter to the
Magistrate with instructions to further review this issue, which has not yet
been addressed by the Court.
(Objections.)
{¶8} Exhibit A, which Viola appended to his objections, is a copy of an email to
Amy Dalton, which is dated November 25, 2020. (The organization to which Dalton is
affiliated is not identified in the email.) The date of the email is after the filing date of the
complaint. The complaint is the operative pleading in this case. Viola concedes in
Exhibit A that an attachment to the email of Exhibit A is a “hard to read” screen shot.
The Court finds the screen shot is “hard to read.” The Court is unable to discern an
email address of P4DSK@CuyahogaCounty.us in the screen shot in Exhibit A.
{¶9} The Court determines that Objection # 1 should be overruled.
Case No. 2020-00506PQ -4- DECISION & ENTRY
{¶10} Because Viola’s second and third objections are interrelated, the Court
shall address them together.
OBJECTION # 2: The Magistrate’s report failed to address the fact that
Yahoo Emails were tied to the Kasaris Official Email Account, according to
official records provided by the Cuyahoga County Prosecutor’s Office.
OBJECTION # 3: The Magistrate’s Report Failed to Address Admissions by
Daniel Kasaris that He Previously Utilized his Yahoo E Mail Account with an
Official Signature for Official Business nor has the Magistrate Determined
Whether or Not Emails between a Prosecutor and a Government Witness
Constitute Public Records.
{¶11} The special master reviewed the facts and evidence and the special master
made findings based on a review of the facts and evidence. (R&R, 7.) The special
master noted:
In support of his claim, Viola submitted a short string of exemplars
from the danieljkasaris@yahoo.com account * * * However, Viola does not
point to any action, decision, or other activity recorded in these emails that
documents the official duties or activities of Kasaris as an assistant
prosecuting attorney, and none is independently apparent to the special
master. The exemplars appear to be entirely personal in nature. Viola has
also filed what appear to be some of the emails from Kasaris’ office
account that were provided to Viola by the Prosecutor’s Office. * * * None
are probative of whether additional office records exist in Kasaris’ personal
email account. Viola points to no gaps in these criminal case file
communications that would imply the existence of missing
correspondence. Finally, Viola has filed additional documents and
affidavits that are either duplicates of previous filings, irrelevant, or
gratuitously salacious.
(R&R 6.)
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{¶12} After the special master weighed the evidence, the special master found
that Viola had not met his burden to prove by clear and convincing evidence that any
additional records of the Prosecutor’s Office exist in Kasaris’ personal email account.
(R&R, 7.)
{¶13} Viola’s contentions that the report and recommendation failed to address
the fact that Yahoo emails were tied to Kasaris’ official email account, (Objection # 2),
and that report and recommendation failed to address Kasaris’ purported admissions
that he previously utilized his Yahoo email account for official business (Objection # 3)
are not well-taken based on a plain reading of the R&R.
{¶14} The Court determines that Objection # 2 and Objection # 3 should be
overruled for lack of merit.
III. Conclusion
{¶15} For reasons set forth above, the Court OVERRULES Viola’s objections of
January 21, 2021. The Court adopts the special master’s R&R of January 7, 2021.
Judgment is rendered in favor of the Prosecutor’s Office. Court costs are assessed to
Viola. The clerk shall serve upon all parties notice of this judgment and its date of entry
upon the journal.
DALE A. CRAWFORD
Judge
Filed February 2, 2021
Sent to S.C. Reporter 3/8/21