[Cite as Mantell v. Cuyahoga Cty. Prosecutor's Office, 2023-Ohio-2768.]
IN THE COURT OF CLAIMS OF OHIO
GREG MANTELL Case No. 2023-00225PQ
Requester Special Master Todd Marti
v. REPORT AND RECOMMENDATION
CUYAHOGA COUNTY PROSECUTOR’S
OFFICE
Respondent
{¶1} This matter is before the special master for a report and recommendation
pursuant to R.C. 2743.75. The special master recommends that judgment be entered for
Respondent and that Requester bear the costs of this case.
I. Background.
{¶2} Requester Greg Mantell is investigating the sealing of criminal records in
Cuyahoga County. In the process of doing so he made public records requests to the
Cuyahoga County Public Defender, Common Pleas Court, and Prosecutor’s Office. He
received significant records from the Public Defender, information from the Common
Pleas Court, but nothing from the Prosecutor’s office. Complaint, filed March 24, 2023,
pp. 24-25. 1
{¶3} Mr. Mandell filed this case to enforce his requests to the Prosecutor’s Office.
Mediation was unsuccessful, so a schedule was set for the parties to submit evidence
and memoranda supporting their positions. The time for those submissions has passed
and the case is ready for decision. Order Terminating Mediation, entered June 5, 2023.
1 All references to specific pages of unpaginated matters filed in this case are to pages of the PDF copies
posted on the Court’s online docket. References to specific pages of internally paginated filings are based
on their internal pagination.
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II. Analysis.
A. Respondent’s motion to dismiss should be denied and the case should be
resolved on the merits.
{¶4} The Prosecutor’s office seeks dismissal pursuant to Civ. R. 12(B)(6). A Civ.
R. 12(B)(6) motion cannot be granted if the movant relies on evidence beyond the
complaint. State ex rel. Hanson v. Guernsey Cty. Bd. of Commrs., 65 Ohio St.3d 545,
548, 605 N.E.2d 378 (1992). The Prosecutor’s motion is based on evidentiary materials
that go beyond Mr. Mantell’s complaint. That requires that the motion be denied and that
the court weigh the evidence through a merits analysis.
B. Requester’s claims fail on the merits.
{¶5} Mr. Mandell made several public records requests of the Prosecutor’s Office:
Date Request Complaint
pp.
1/24/2023 “A copy of your office’s policy regarding helping people 16-17
seal their court records.”
“copies of documents, emails, reports or other materials 18
that indicate how many people your office has helped to
seal their court records for about the past ten years from
January 1, to present”
1/25/2023 “Your website says: The Prosecutor’s Office has a team of 19
assistant prosecuting attorneys who review applications
for sealing (often called “expungement”) of records of
eligible offenders. I would like to know how many
applications your office has reviewed since January 1,
2017.”
“Under Ohio’s public records law, I would like to know how 19
many briefs your office has filed in court supporting and /
or opposing the sealing or expungement of court records,
whether felony, misdemeanor, or civil--since January 1,
2017.”
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2/9/2023 “I am requesting an Excel or .cvs extract form [sic] your 22
case management system listing all cases in which you
have filed a brief with the court supporting or opposing the
sealing or expunging of records since January 1, 2017,
including the following or similar fields: 1) date or year that
papers were prepared, 2) date or years that papers were
filed, 3) type of crime, 4) whether you opposed or
supported the effort to expunge or seal records or charges.
This does not [sic] require you to reveal any confidential or
sealed information. But simply provides statistical date
[sic] on the number of such briefs you have filed with the
court.”
2/10/2023 “Under Ohio’s public records law, I would like to request 22
copies of emails, reports, documents or other materials
that indicate the number of requests for expungement or
sealing of records received by your office on an annual
basis from January 1, 2017 to present.”
“In lieu of such a report, a .CSV or Excel extract from your
case management system showing the following fields will
suffice: 1) date or year of request, [sic] 2) date or year of
charges or sentence, 3) type of sentence or charge, 4)
disposition (whether the sealing or expungement was
approved or recommended by your office), and 4) final
outcome (whether the sealing or expungement was
approved.)”
The special master recommends that the court reject any claims based on those requests.
1. Mr. Mantell has not shown that records responsive to his January 24, 2023,
requests exist.
{¶6} Controlling precedent establishes that a party suing for public records must
prove that responsive records exist if the public office submits evidence disputing their
existence. State ex rel. McCaffrey v. Mahoning Cty. Prosecutor’s Office, 133 Ohio St.3d
139, 2012-Ohio-4246, 976 N.E.2d 877, ¶¶ 22-26; State ex rel. Gooden v. Kagel, 138 Ohio
St. 3d 343, 2014-Ohio-869, 6 N.E.3d 1170, ¶ 8. That precedent is fatal to claims based
on Mr. Mantell’s January 24 requests.
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{¶7} Those requests sought copies of the Prosecutor’s “policy regarding helping
people seal their court records” and records that disclose how many people the
Prosecutor helped with sealings. The Prosecutor’s Office’s initial response was that it has
no such policy and that there are no records evidencing its helping people seal their
records because that Office does not provide such help. Complaint, p. 18; Submission of
Evidence for Respondent Cuyahoga County Prosecutor’s office, filed June 26, 2023,
(“Respondent’s Evidence”), pp. 011. The Prosecutor ratified those assertions with
affidavit testimony. Id. at pp. 002, ¶¶ 3, 4.
{¶8} Mr. Mantell therefore had the burden of proving that such records existed. He
filed no evidence by the June 26, 2023, deadline fixed in the Order Terminating Mediation.
His July 10, 2023, response to the Prosecutor’s motion to dismiss proffers a page from
the Prosecutor’s website as proof that the policy he seeks and records documenting how
many people the Prosecutor “helped” obtain sealings do in fact exist. There are two
reasons why that does not satisfy Mr. Mantell’s burden.
{¶9} First, that submission is procedurally barred. The Order Terminating
Mediation explicitly required Mr. Mantell to file evidence in support of his claims by June
26, 2023. Id. at ¶ A. That date was set to give the Prosecutor’s Office notice of the factual
bases for Mr. Mantell’s claims before it filed its response to his complaint. Mr. Mantell did
not meet that deadline, frustrating the purpose for the deadline. Mr. Mantell’s tardy
submission is not properly before the court.
{¶10} Second, the webpage proffered actually supports the Prosecutor’s position.
Rather than saying that the Prosecutor’s Office “helps” offenders with attempts to
expunge/seal records, it emphatically states that “we cannot assist you with applying
to have your record sealed” (emphasis in original). It goes onto tell interested persons
to “not contact our office to request help with an expungement application” and to
“remember: The Cuyahoga County Prosecutor’s Office cannot assist you in applying to
have your record sealed[.]” Cuyahoga County Office of the Prosecutor, Sealing Criminal
Records, available at http://prosecutor.cuyahogacounty.us/en-US/expungement-and-
sealing-of-records.aspx (accessed July 17, 2023).
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{¶11} The special master therefore recommends that the court reject these claims
for want of proof.
2. Mr. Mantell’s January 25, 2023, requests seek information apart from
records.
{¶12} R.C. 149.43(B)(1) codifies a right to records that capture information, not to
information apart from records. It nowhere mentions information in the abstract. It instead
provides that upon “request * * * public records responsive to the request shall be * * *
made available[.]” (emphasis added). A “public record” consists of a “record,” and a
“record” is something that contains information, but is different than the information itself.
It is a “document, device, or item” documenting information. R.C. 149.011(G). R.C.
149.43(B)(1) therefore does not direct offices to provide free floating information, but only
documents, devices, or items containing information.
{¶13} The cases reflect the distinction. Relief is denied when the claimant
“request[s] information rather than records” because requests “for information * * * are
improper *** under R.C. 149.43.” State ex rel. Griffin v. Sehlmeyer, 167 Ohio St.3d 566,
2022-Ohio-2189, 195 N.E.3d 130, ¶ 1; State ex rel. Morgan v. City of New Lexington, 112
Ohio St.3d 33, 2006-Ohio-6365, 857 N.E.2d 1208, ¶ 30. See also Griffin, 167 Ohio St.3d
566 at ¶¶ 10-13; State ex rel. Griffin v. Sehlmeyer, 165 Ohio St.3d 315, 2021-Ohio-1419,
179 N.E.3d 60, ¶¶ 11-12; State ex rel. Griffin v. Sehlmeyer, 166 Ohio St.3d 258, 2021-
Ohio-3624, 185 N.E.3d 58, ¶¶ 5-6; State ex rel. Rittner v. Dir., Fulton Cty. Emergency
Med. Servs., 6th Dist. Fulton No. F-10-020, 2010-Ohio-4055, ¶ 2; State ex rel. Fant v.
Tober, 8th Dist. Cuyahoga No. 63737, 1993 Ohio App. LEXIS 2591, at **2-4 (Apr. 28,
1993), aff’d, 68 Ohio St.3d 117, 623 N.E.2d 1201 (1993) (denying relief because
claimant’s request did “not indicate what records [he] would like to examine as much as
what information he would like to receive”).
{¶14} Mr. Mantell’s January 25 requests asked “how many applications your office
has reviewed” and “how many briefs your office has filed” since a given date. They sought
numerical information, not records. Such requests are improper. See e.g. State ex rel.
Griffin v. Sehlmeyer, 165 Ohio St.3d 315, 2021-Ohio-1419, 179 N.E.3d 60, ¶ 12 (request
for the “actual number” of staff infected with Covid-19 improper); State ex rel. Griffin v.
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Sehlmeyer, 167 Ohio St.3d 566, 2022-Ohio-2189, 195 N.E.3d 130, ¶ 11 (request for “‘the
actual amount of state, and or federal funding that ODRC, has approved to *** to fight
COVID 19, at the prison,’ specifically ‘the amount approved to *** and the total amount
spent’” were improper).
3. Mr. Mantell’s February 9, 2023, request seeks information apart from records
and asks the Prosecutor to create a new record.
{¶15} There are two independently fatal flaws in Mr. Mantell’s February 9 request.
{¶16} First, it too seeks information apart from records. It does not seek records,
but instead seeks data points derived from—and separate from—records. That is inherent
in the request for that information in “extract” form. To “extract” is seek something apart
from its source, “to draw forth (as by research)” or to “to deduce (a doctrine, principle,
interpretation, etc.”) Merriam-Webster Dictionary, available at https://www.merriam-
webster.com/dictionary/extract (accessed July 17, 2023); Dictionary.com, available at
https://www.dictionary.com/browse/extract (accessed July 17, 2023). There is no getting
around the fact that this request seeks something different from the Prosecutor’s records.
{¶17} Second, it asks the Prosecutor to create a new record. A public office has no
duty under R.C. 149.43 “to create a new document by searching for and compiling
information from its existing records.” State ex rel. Kerner v. State Teachers Retirement
Bd., 82 Ohio St.3d 273, 274, 695 N.E.2d 256 (1998); accord, State ex rel. Essi v. City of
Lakewood, 2018-Ohio-5027, 126 N.E.3d 254 (8th Dist.), ¶ 28; Anthony v. Columbus City
Schools, Ct. of Cl. No. 2021-00069PQ, 2021-Ohio-3242, ¶ 8, adopted, 2021-Ohio-3241
(Sheeran, J.), (“A public office is only required to produce existing records and has no
obligation to create new records, including new compilations of dispersed data”). That is
what Mr. Mantell asks the Prosecutor to do by creating an extract that summarizes other
records.
{¶18} This defect is not cured by the “Database Rule,” the rule that a public office
must generate records from existing data if its records management system can generate
the records without modifications to that system. “Ohio courts expressly require public
offices to give the public the benefit of data and computing power that the public has paid
for and produce any database record compilation available through existing
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programming, even if the requested compilation is ‘new’ in the sense that the office has
not used the database software to compile that particular set of information in the past.”
Id., ¶ 8: Speros v. Secy. of State, Ct. of Cl. No. 2017-00389-PQ, 2017-Ohio-8453, ¶ 15,
adopted Dec. 11, 2017 (McGrath, J.); Fairley v. Cuyahoga Cty. Prosecutor, Ct. of Cl. No.
2019-00955PQ, 2020-Ohio-1425, ¶ 25, adopted 2020-Ohio-1426 (McGrath, J.). The rule
is based on the premise that the “law does not require members of the public to exhaust
their energy and ingenuity to gather information which is already compiled and organized
*** by public officials at public expense.” State ex rel. Cincinnati Post v. Schwiekert, 38
Ohio St. 3d 170, 173-174 527 N.E.2d 1230 (1988). Consequently, if a public body’s
“computer [is] already programmed to produce the desired printout, the [record] would
already exist for the purpose of an R.C. 149.43 request,” and the office is required to
produce that existing, albeit inchoate, record. State ex rel. Scanlon, 45 Ohio St. 3d 376,
379, 544 N.E.2d 680 (1989). Consistent with that rationale, the Database Rule does not
apply if the office’s systems are not capable of producing the record; in that situation the
record would not exist. Kerner, 82 Ohio St.3d at 274, 275; Anthony, 2021-Ohio-3242, ¶
10. If the public office produces evidence that its systems cannot produce the record, the
party invoking the Database Rule has the burden of proving that the office’s systems can,
in their unaltered form, create the desired record. Id. ¶¶ 12-13; Speros, 2017-Ohio-8453,
¶¶ 17-19.
{¶19} The Prosecutor produced affidavit testimony that its record management
system is not capable of creating the extract Mr. Mantell seeks. Respondent’s Evidence,
p. 02, ¶ 7. It is therefore Mr. Mantell’s burden to prove, by clear and convincing evidence,
that the Prosecutor’s records management system can in fact produce the extract. Mr.
Mantell filed no evidence in support of his claims, despite being ordered to do so. Order
Terminating Mediation, ¶ A. Although documents attached to his complaint indicate that
the Public Defender’s and Common Pleas Court’s systems were able to produce
information similar to what he seeks from the Prosecutor, there is no evidence that those
offices use the same record management system as the Prosecutor. Those documents
therefore tell us nothing about the capabilities of whatever system the Prosecutor uses.
Mr. Mantell has failed to carry his burden of proof on this point.
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{¶20} Given that, the special master recommends that the court deny relief on this
claim.
4. Mr. Mantell’s February 10, 2023, request requires the Prosecutor to perform
research or to create a new record.
{¶21} Mr. Mantel’s February 10 request was framed in the alternative: that the
Prosecutor provide copies of all records indicating the number of expungement/sealing
requests that Office has received or to provide an extract of certain information about
those requests. Neither alternative is enforceable.
{¶22} The alternative of producing records indicating how many
expungement/sealing requests the Prosecutor has dealt with would require improper
research. A records request is improper if the request “broadly [requires] respondents to
search for records containing selected information,” State ex rel. Lanham v. State Adult
Parole Auth., 80 Ohio St.3d 425, 427, 687 N.E.2d 283 (1997), or to “do research *** and
to identify a specific subset of records containing selected information.” State ex rel.
Shaughnessy v. City of Cleveland, 149 Ohio St.3d 612, 2016-Ohio-8447, 76 N.E.3d 1171,
¶ 10. See also State ex rel. Fant v. Tober, 8th Dist. Cuyahoga No. 63737, 1993 Ohio App.
LEXIS 2591, at *3 (Apr. 28, 1993), Aff’d 68 Ohio St.3d 117, 623 N.E.2d 1201 (1993);
State ex rel. Essi v. City of Lakewood, 2018-Ohio-5027, 126 N.E.3d 254 (8th Dist.), ¶¶
28, 34, 37.
{¶23} That is what this alternative requires. It would require the Prosecutor’s Office
to comb through its files for any records that contain information on a particular topic, how
many expungement/sealing requests it has dealt with.
{¶24} This alternative is not saved by two exceptions to the general just discussed.
One is that such requests can be enforceable if the request provides sufficient parameters
to guide the scope of the research involved. State ex rel. Thomas v. Ohio State Univ., 70
Ohio St.3d 1438, 638 N.E.2d 1041, 1041-1042 (Ohio 1994) (request enforceable to “the
extent that [the] request specified particular persons who, because of their positions,
would be likely to have and maintain the records requested”). See also Rose v. Ohio
DOC, Ct. of Cl. No. 2022-00711PQ, 2023-Ohio-1488, ¶ 20, adopted 2023-Ohio-1856
(Sadler, J.) (“A request is likely to reasonably identify the records sought if it refers the
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public office to a specific subject matter, it is sent to or identifies an official with knowledge
of that subject matter, and it references a relevant time period”). The other is that such
requests are enforceable if the research will not involve “voluminous documents.” State
ex rel. Carr v. London Corr. Inst., 144 Ohio St.3d 211, 2015-Ohio-2363, 41 N.E.3d 1203,
¶ 22. Mr. Mantell identified no persons within the Prosecutor’s Office who maintain the
records he sought and provided no other parameters to guide the research his request
would require. His complaint indicates that the scope of the records relevant to this matter
would indeed be voluminous, involving more than 10,000 case files. Complaint, pp. 40-
41. Neither exception applies.
{¶25} The second alternative fails for the reason discussed in connection with the
February 9 request. It too seeks information apart from records and would require the
creation of a new record.
{¶26} The special master therefore recommends that the court find that any claims
based on the February 10 request fail.
C. Costs.
{¶27} Costs should be assessed against Mr. Mantell pursuant to R.C. 2743.09(F),
and R.C. 2303.20 because he implicitly agreed to pay those costs by filing this case.
Helfrich v. Hall, 5th Dist. Licking No. 2021 CA 00077, 2022-Ohio-1852, ¶ 25.
III. Conclusion.
{¶28} Based on the foregoing the special master recommends that judgment be
entered for Respondent and that Requester bear the costs of this case.
{¶29} Pursuant to R.C. 2743.75(F)(2), either party may file a written objection with
the clerk of the Court of Claims of Ohio within seven (7) business days after receiving this
report and recommendation. Any objection shall be specific and state with particularity all
grounds for the objection. A party shall not assign as error on appeal the court’s adoption
of any factual findings or legal conclusions in this report and recommendation unless a
timely objection was filed thereto. R.C. 2743.75(G)(1).
Case No. 2023-00225PQ -10- REPORT AND RECOMMENDATION
TODD MARTI
Special Master
Filed July 18, 2023
Sent to S.C. Reporter 8/10/23