Tobias v. Ohio Secy. of State's Office

[Cite as Tobias v. Ohio Secy. of State's Office, 2023-Ohio-4439.]

IN THE COURT OF CLAIMS OF OHIO

ANDREW TOBIAS Case No. 2023-00628PQ

Requester Judge Lisa L. Sadler

v. DECISION AND ENTRY

OHIO SECRETARY OF STATE’S
OFFICE

Respondent

{¶1} In this public-records case, Respondent objects to a Special Master’s Report
and Recommendation. Requester opposes Respondent’s objections. The Court sustains
Respondent’s objections for reasons that follow.
I. Background
{¶2} On September 22, 2023, Requester Andrew Tobias filed a public-records
complaint against Respondent. In the Complaint Requester states, “I am a political
reporter with cleveland.com and The Plain Dealer. As part of my job responsibilities, on
Jan. 10, 2023, I issued a public records request to the Ohio Secretary of State’s Office,
via the office’s then-press secretary, Rob Nichols, seeking records documenting
investigations that the office had conducted with respect to suspected illegal voting.”
{¶3} The Court appointed a Special Master who did not refer the case to mediation
because the Special Master found that, “based on the length of time that both parties
acknowledge Requester’s public records request has been pending, and the additional
time that mediation would involve, mediation will not result in the expeditious resolution
envisioned by R.C. 2743.75(A).” (Entry, October 3, 2023.) The Special Master did,
however, establish a schedule for the filing of evidence and briefings. (Id.)
{¶4} On November 13, 2023, the Special Master issued a Report and
Recommendation (R&R). In the Report and Recommendation, the Special Master states,
“The parties agreed that the Requester was no longer pressing his claim that the
Case No. 2023-00628PQ -2- DECISION & ENTRY

Secretary was not producing all responsive records, and that the propriety of the
Secretary’s redactions is the only issue in the case. The parties further agreed that the
propriety of the Secretary’s redactions can be evaluated without the Additional Records
being filed for in camera review, with the principles of that resolution applying to the
Additional Records. Entry, filed November 9, 2023.” (R&R, 3.)
{¶5} The Special Master determined that Respondent had not met its burden of
proving that its redactions were justified by R.C. 149.43(A)(2)(a) (exception for
confidential law enforcement investigatory records).1 Although the Special Master
determined that Respondent had proven that the records at issue pertain to law
enforcement matters and that the requested records would identify suspects, the Special
Master nonetheless determined that Respondent had not proven that the individuals that
the Ohio Secretary of State referred remain uncharged of criminal offenses. (R&R, 3-6.)
The Special Master recommends that:
A. Respondent be ordered to determine which suspects listed in the records
previously produced to Requester have been charged and to produce

1 “Under R.C. 149.43(A)(1)(h), ‘public record’ does not include confidential law enforcement
investigatory records (CLEIRs).” Welsh-Huggins v. Office of the Prosecuting Atty., Ct. of Cl. No. 2018-
00793PQ, 2019-Ohio-473, ¶ 23. Pursuant to R.C. 149.43(A)(2), a confidential law enforcement
investigatory record (CLEIR)

means any record that pertains to a law enforcement matter of a criminal, quasi-criminal,
civil, or administrative nature, but only to the extent that the release of the record would
create a high probability of disclosure of any of the following:

(a) The identity of a suspect who has not been charged with the offense to which the record
pertains, or of an information source or witness to whom confidentiality has been
reasonably promised;

(b) Information provided by an information source or witness to whom confidentiality has
been reasonably promised, which information would reasonably tend to disclose the
source’s or witness’s identity;

(d) Information that would endanger the life or physical safety of law enforcement
personnel, a crime victim, a witness, or a confidential information source.
Case No. 2023-00628PQ -3- DECISION & ENTRY

copies of the records previously produced without redactions for any
suspects who have been charged.
B. Respondent be ordered to take those actions within 10 working days of
the entry of an R.C. 2743.75(F)(2) order in this case.
C. Requester recover his filing fee and costs, exclusive of attorney fees.
D. Respondent bear the balance of the costs of this case.
(R&R, 8.)
{¶6} On November 20, 2023, Respondent filed written objections to the Report and
Recommendation.2 On November 27, 2023, Requester filed a written response in
opposition to Respondent’s objections.3
II. Law and Analysis
{¶7} The General Assembly has created an alternative means to resolve public-
records disputes through the enactment of R.C. 2743.75. Welsh-Huggins v. Jefferson
Cty. Prosecutor’s Office, 163 Ohio St.3d 337, 2020-Ohio-5371, 170 N.E.3d 768, ¶ 11.
See R.C. 2743.75(A). Under Ohio law a requester “must establish entitlement to relief in
an action filed in the Court of Claims under R.C. 2743.75 by clear and
convincing evidence.” Viola v. Cuyahoga Cty. Prosecutor’s Office, 8th Dist. Cuyahoga
No. 110315, 2021-Ohio-4210, ¶ 16, citing Hurt v. Liberty Twp., 2017-Ohio-7820, 97
N.E.3d 1153, ¶ 27-30 (5th Dist.). See Welsh-Huggins v. Jefferson Cty. Prosecutor’s

2 Respondent’s counsel served Requester with a copy of the written objections “via certified mail,”
according to the Certificate of Service accompanying Respondent’s objections Pursuant to R.C.
2743.75(F)(2), however, a party that objects to a report and recommendation is required to “send[] a copy
[of the written objections] to the other party by certified mail, return receipt requested.” (Emphasis added.)
3 Requester served a copy of his response “via email, as well as certified mail” to Respondent “c/o
Julia Lawrence,” according to the Certificate of Service accompanying Requester’s response. Requester
did not serve a copy of his response to the attorneys who are representing Respondent in this matter,
according to the accompanying Certificate of Service.

Requester states in his Response,

To help free up additional administrative resources to allow compliance with the Nov. 13
report and recommendation, I am willing to narrow my January 2023 public records request
so that it only applies to however many cases the secretary’s office eventually determines
has resulted in criminal charges. This narrowing would apply to the supporting records the
Secretary of State’s Office referenced to in its objection on page 3 (“additional responsive
records” that haven’t yet been released due to technical issues.)
Case No. 2023-00628PQ -4- DECISION & ENTRY

Office, 163 Ohio St.3d 337, 2020-Ohio-5371, 170 N.E.3d 768, ¶ 32. It is a requester’s
burden to prove, by clear and convincing evidence, that the requested records exist and
are public records maintained by a respondent. See State ex rel. Cordell v. Paden, 156
Ohio St.3d 394, 2019-Ohio-1216, 128 N.E.3d 179, ¶ 8.
{¶8} A public-records custodian has the burden to establish the applicability of an
exception to disclosure of a public record. State ex rel. Cincinnati Enquirer v. Jones-
Kelley, 118 Ohio St.3d 81, 2008-Ohio-1770, 886 N.E.2d 206, paragraph two of the
syllabus. In Jones-Kelley, the Ohio Supreme Court held:
Exceptions to disclosure under the Public Records Act, R.C.
149.43, are strictly construed against the public-records
custodian, and the custodian has the burden to establish the
applicability of an exception. A custodian does not meet this
burden if it has not proven that the requested records fall
squarely within the exception. (State ex rel. Carr v.
Akron, 112 Ohio St.3d 351, 2006 Ohio 6714, 859 N.E.2d 948,
P 30, followed.)
Kelley at paragraph two of the syllabus.
{¶9} Pursuant 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.” Here, Respondent “objects to the Special Master’s Report and
Recommendation insofar as it orders the Secretary’s Office to comply within 10 days of
the court’s entry.”. Respondent states, “Even with best faith efforts, this deadline is
unfeasible for the Secretary’s Office to conduct this investigation properly.” (Objections
at 3.) Respondent further states:
Because all prosecutorial decisions are made by the Attorney General’s
Office or county prosecutors, records that identify charging and prosecution
decisions are kept by those offices. The Secretary’s authority is limited to
investigating violations of election laws and reporting the results of the
investigation to the Attorney General’s Office, prosecutors, or both. See
R.C. 3501.05(N). Thus, the Secretary’s Office must inquire with those
offices—including all 88 Ohio counties—to determine whether individuals
Case No. 2023-00628PQ -5- DECISION & ENTRY

referred by the Secretary’s Office were ultimately charged with violating
election laws. And the Secretary’s Office must make these determinations
with utmost care to protect the identities of uncharged suspects and avoid
subjecting those individuals to adverse publicity or other negative
consequences. Completing this investigation properly and thoroughly within
10 days of the court’s entry is simply not achievable.
(Objections at 3-4.)
Notably, however, in the objections Respondent fails to inform the Court how much
additional time it estimates is needed for Respondent to complete its investigation and
production.
{¶10} Upon consideration of Respondent’s objections, the Court finds that the
Special Master’s recommendation that Respondent comply within 10 days of the date of
this judgment is not feasible. The Court therefore SUSTAINS Respondent’s objections,
and adopts the Report and Recommendation, excepting the recommendation that
Respondent be ordered to take required actions within 10 working days of the entry of an
R.C. 2743.75(F)(2) order in this case.
{¶11} The Court ORDERS the following: (1) Respondent shall determine which
suspects listed in the records previously produced to Requester have been charged and
to produce copies of the records previously produced without redactions for any suspects
who have been charged, (2) Respondent shall take this action within 30 days of the date
of this Decision and Entry, (3) Requester is entitled to recover from Respondent the
amount of the filing fee of twenty-five dollars and any other costs associated with the
action that are incurred by the Requester, excepting attorney fees, and (4) court costs are
assessed against Respondent. The Clerk shall serve upon all parties notice of this
judgment and its date of entry upon the journal.

LISA L. SADLER
Judge
Filed November 30, 2023
Sent to S.C. Reporter 12/7/23