[Cite as Kovach v. Walder, 2019-Ohio-5455.]

{¶1} Ohio’s Public Records Act, R.C. 149.43, provides a remedy for production of 

records under R.C. 2743.75 if the Court of Claims determines that a public office has 

denied access to public records in violation of R.C. 149.43(B). The policy underlying the 

Act is that “open government serves the public interest and our democratic system.” 

State ex rel. Dann v. Taft, 109 Ohio St.3d 364, 2006-Ohio-1825, 848 N.E.2d 472, ¶ 20. 

Therefore, the Act is construed liberally in favor of broad access, and any doubt is 

resolved in favor of disclosure of public records. State ex rel. Glasgow v. Jones, 119 

Ohio St.3d 391, 2008-Ohio-4788, 894 N.E.2d 686, ¶ 13. 

Background and Facts 

{¶2} Requester Stacey Kovach sent a letter to respondent Geauga County 

Auditor’s Office, Charles Walder (Auditor), dated July 25, 2019, containing six inquiries 

related to a piece of real property. (Am. Complaint at 4-6; Response, Oct. 4, 2019 

Walder Aff. – Exh. A.) Counsel for respondent sent a letter to Kovach dated July 31, 

2019 advising that it had no responsive records to Requests Nos. 1 and 2, and that the 

county treasurer rather than the auditor maintained the records described in Request 

No. 3. Respondent’s counsel further denied Requests Nos. 4, 5 and 6 as inquiries 

seeking answers to questions rather than requesting copies of specified public records. 

(Am. Complaint at 23; Response, Oct. 4, 2019 Walder Aff. – Exh. B.) Kovach sent a 

letter to the Auditor on August 21, 2019 disputing the Auditor’s responses to Requests 

Nos. 1, 2, 4, 5, and 6, and added a seventh request. (Am. Complaint at 24-25; 

STACEY KOVACH 

 Requester 

 v. 

GEAUGA COUNTY AUDITOR’S 

OFFICE, CHARLES WALDER 

 Respondent

Case No. 2019-00917PQ 

Special Master Jeff Clark 

REPORT AND RECOMMENDATION 
Case No. 2019-00917PQ -2- REPORT AND RECOMMENDATION 

Response, Oct. 4, 2019 Walder Aff. – Exh. C.) On August 22, 2019, Kovach made a 

verbal request (Request No. 8) for “a copy of the video of the event which [transpired 

that day].” (Am. Complaint at 2.) Subsequent to the filing of this action, respondent’s 

counsel sent a letter to Kovach dated September 16, 2019 enclosing a video recording 

allegedly in response to Request No. 7. (Response, Oct. 4, 2019 Walder Aff. – Exh. D.)

{¶3} On August 27, 2019, Kovach filed a complaint pursuant to R.C. 2743.75 

alleging that the Auditor denied her access to public records in violation of R.C. 

149.43(B). Following unsuccessful mediation, the Auditor filed a motion to dismiss 

(Response) on October 4, 2019. On October 18, 2019, Kovach submitted an unsolicited 

document titled “affidavit of support.” Pursuant to R.C. 2743.75(E)(2) the special master 

directed the clerk of court to accept this document (Reply) for filing. On December 12, 

2019, the Auditor filed a response to the special master’s order to submit additional 

information and documentation regarding Kovach’s requests for videos. 

Motion to Dismiss 

{¶4} In order to dismiss a complaint for failure to state a claim upon which relief 

can be granted, it must appear beyond doubt that the claimant can prove no set of facts 

warranting relief after all factual allegations of the complaint are presumed true and all 

reasonable inferences are made in claimant’s favor. State ex rel. Findlay Publishing Co. 

v. Schroeder, 76 Ohio St.3d 580, 581, 669 N.E.2d 835 (1996). As long as there is a set 

of facts consistent with the complaint that would allow the claimant to recover, dismissal 

for failure to state a claim is not proper. State ex rel. V.K.B. v. Smith, 138 Ohio St.3d 84, 

2013-Ohio-5477, 3 N.E.3d 1184, ¶ 10. The unsupported conclusions of a complaint are, 

however, not admitted and are insufficient to withstand a motion to dismiss. Mitchell v. 

Lawson Milk Co., 40 Ohio St.3d 190, 193, 532 N.E.2d 753 (1988). 

{¶5} The Auditor moves to dismiss the complaint on the same grounds he 

provided in the letters of July 31 and September 16, 2019. Under the abbreviated 

pleading procedure in this action (see R.C. 2743.75(D)(1) and (E)(2)) the City’s 
Case No. 2019-00917PQ -3- REPORT AND RECOMMENDATION 

defenses have been filed as a combined response and motion to dismiss. On 

consideration of the motion to dismiss, I find the defenses asserting the non-existence 

of certain records are not conclusively shown on the face of the complaint. Moreover, as 

the matter is now fully briefed I find that all the arguments to dismiss are subsumed in 

the arguments to deny the claim on the merits. I therefore recommend that that the 

motion to dismiss be denied, and the matter determined on the merits. 

Burdens of Proof 

{¶6} In any action to enforce the Public Records Act (PRA), the burden is on the 

requester to prove an alleged violation. In mandamus actions, 

[a]lthough the PRA is accorded liberal construction in favor of access to 

public records, “the relator must still establish entitlement to the requested 

extraordinary relief by clear and convincing evidence.” 

State ex rel. Caster v. Columbus, 151 Ohio St.3d 425, 428, 2016-Ohio-8394, 89 N.E.3d 

598, ¶ 15. Entitlement to relief in an action filed under R.C. 2743.75 must likewise be 

established by clear and convincing evidence. Hurt v. Liberty Twp., 2017-Ohio-7820, 97 

N.E.3d 1153, ¶ 27-30 (5th Dist.). 

{¶7} If a public office asserts an exception to the PRA, the burden of proving the 

exception rests on the public office. State ex rel. Cincinnati Enquirer v. Pike Cty. 

Coroner’s Office, 153 Ohio St.3d 63, 2017-Ohio-8988, 101 N.E.3d 396, ¶ 15. An 

exception is a state or federal law prohibiting or excusing disclosure of items that 

otherwise meet the definition of “public record.” However, the defense that a request 

was improper in the first instance does not assert an exception. Where the defense of 

ambiguity or overbreadth is raised, the burden of proof remains with the requester to 

show that he has reasonably identified the record sought: 

“[I]t is the responsibility of the person who wishes to inspect and/or copy 

records to identify with reasonable clarity the records at issue.” State ex 

rel. Fant v. Tober, 8th Dist. Cuyahoga No. 63737, 1993 Ohio App. LEXIS 

2591, 1993 WL 173743, *4 (Apr. 28, 1993), aff’d, 68 Ohio St.3d 117, 623 

N.E.2d 1202 (1993). 
Case No. 2019-00917PQ -4- REPORT AND RECOMMENDATION 

Of particular application to the defenses asserted herein, the Supreme Court in State ex 

rel. McCaffrey v. Mahoning Cty. Prosecutor’s Office, 133 Ohio St.3d 139, 2012-Ohio4246, 976 N.E.2d 877, ¶ 22-26 held that if an office asserts that a requested record 

does not exist, the requester must show that it does. Similarly, in State ex rel. O’Shea & 

Assocs. Co., L.P.A. v. Cuyahoga Metro. Hous. Auth., 131 Ohio St.3d 149, 2012-Ohio115, 962 N.E.2d 297, ¶ 23 the Court held that if a document’s status as a “record” is 

denied, the burden remains on the requester to show that it is a record of the office. 

Requests Nos. 1 And 2: Non-Existent Records 

Requests Nos. 1 and 2 in Kovach’s letter of July 25, 2019 are as follows: 

Please provide the following: 

1) Copies of any and all communications, email, tape recordings ... 

between you and Prosecutor Nicholas Burling concerning Stacey 

Kovach, the property #21-098100. The time frame is 2018-2019. 

2) Copies of any and all communications between members of your

staff or any other party regarding same property. 

(Am. Complaint at 4; Response, Oct. 4, 2019 Walder Aff. – Exh. A.) The Auditor denies 

that his office has any records responsive to these requests, attesting that, 

With regard to requests #1 and #2, the Auditor’s Office searched its 

records, and it has no documents concerning the following: 

1) Copies of any and all communications, email, tape recordings ... 

between you and Prosecutor Nicholas Burling concerning Stacey 

Kovach, the property #21-098100. Time frame is 2018-2019. 

2) Copies of any and all communications between members of your

staff or any other party regarding same property. 

(Emphasis sic.) (Oct. 4, 2019 Walder Aff. at ¶ 4.) In support of her burden to show that 

records responsive to these requests do exist, Kovach attests that, 

10. I have proven to this court, via submitted recorded phone conversation 

with the Auditor Walder and Becky McCartney, that communication

records exist. 
Case No. 2019-00917PQ -5- REPORT AND RECOMMENDATION 

11. At 3:10 pm on January 14, 2019 Auditor Walder sent an Email to me 

and Attorney Applebaum with copies to four staff members, namely; 

Becky McCartney, Kate Jacob, Pamela McMahan and Mary Beth 

Armeo. Also copied was Ralph Kovach and my attorney Ross Haffey. I 

suspect blind copies were sent to Prosecutor Burling (Ex 2). 

(Reply at 2.) However, the court file does not reflect that Kovach filed any “recorded 

phone conversation with the Auditor Walder and Becky McCartney.” Kovach did submit 

an attachment to her complaint titled “Description of Verbal Communication,” but the 

page contains only one line, stating “1) I have an audio file of conversation with Auditor 

Walder. 2) Audio file of conversation with Becky McCartney” and is otherwise blank. 

(Am. Complaint at 3.) 

{¶8} The file does contain a copy of an email thread between Kovach and the 

Auditor (Am. Complaint at 32-42) in which the Auditor advises Kovach that she should 

communicate with the prosecutor’s office regarding her requests for legal interpretation. 

In answer to her question as to which prosecutor she should contact, the Auditor 

replies, “Nick Burling.” There is no indication in the body or headers of these emails that 

Burling was a party correspondent to the emails. Exh. 2 attached to Kovach’s reply 

contains two emails from the longer thread just referenced, which likewise contains no 

indication of correspondence between the Auditor and Burling. The reference in the 

3:10 PM email from the Auditor advises that he is forwarding that email “to our legal 

counsel at the Geauga County Prosecutor’s Office,” which in context clearly references 

APA Linda Applebaum, who is copied in the To: line of the header in conformity with the 

quoted language. In summary, Kovach attests only to beliefs and suspicions that 

recorded communication responsive to Requests Nos. 1 and 2 exist at the prosecutor’s 

office, and not to any substantive or persuasive evidence. 

{¶9} A public office has no duty to provide records that do not exist, or that it 

does not possess. State ex rel. Gooden v. Kagel, 138 Ohio St.3d 343, 2014-Ohio-869, 6 

N.E.3d 471, ¶ 5, 8-9. Auditor Walder attests that the auditor’s office searched its 
Case No. 2019-00917PQ -6- REPORT AND RECOMMENDATION 

records, and found no documents responsive to Requests Nos. 1 and 2. (Oct. 4, 2019 

Walder Aff. at ¶ 4.) Walder’s affidavit is some evidence supporting the non-existence of 

any responsive records. State ex rel. Fant v. Flaherty, 62 Ohio St.3d 426, 427, 583 

N.E.2d 1313 (1992). See also State ex rel. Toledo Blade Co. v. Toledo-Lucas County 

Port Auth., 121 Ohio St.3d 537, 2009-Ohio-1767, 905 N.E.2d 1221, ¶ 14-15. A 

requester’s mere belief in the existence of records does not constitute the clear and 

convincing evidence necessary to overcome this denial and establish that responsive 

documents exist. State ex rel. McCaffrey v. Mahoning Cty. Prosecutor’s Office, 133 

Ohio St.3d 139, 2012-Ohio-4246, ¶ 22-26; Gooden at ¶ 8. I find that Kovach has not 

proven by clear and convincing evidence that records responsive to Requests Nos. 1 

and 2 existed at the time of her request. State ex rel. Morabito v. Cleveland, 8th Dist. 

Cuyahoga No. 98829, 2012-Ohio-6012, ¶ 13. 

Request No. 3: Non-Existent Records 

Request No. 3 in Kovach’s July 25, 2019 letter was for: 

3) Copies of actual tax payments made with copies of the checks for 

payments made in 2018 and 2019. I understand you will redact the 

checking account number. Identify who paid the taxes. 

(Am. Complaint at 4; Response, Oct. 4, 2019 Walder Aff. – Exh. A.) The Auditor denies 

that his office has any records responsive to this request, attesting that, 

5. With regard to request #3, this request seeks documents that would be 

produced, held, and maintained by the Geauga County Treasurer’s

Office, not the Geauga County Auditor’s Office. Thus, my office has no 

control or access to the following records: 

3) Copies of actual tax payments made with copies of the 

checks for payments made in 2018 and 2019. 

(Oct. 4, 2019 Walder Aff. at ¶ 5.) In support of her burden to show that any records 

responsive to this request do exist, Kovach attests that, 

12. In Auditor Attestation #5, referring to my third request, he states that he 

has no control or access to; copies of checks for tax payments made in 

2018 and 2019. This is not a true statement. Auditor Walder is the 
Case No. 2019-00917PQ -7- REPORT AND RECOMMENDATION 

Chief Fiscal Officer of Geauga County. He is responsible to account for 

over $90,000,000 received each year by the county. He oversees real 

estate and personal property taxes. 

After the Expungement Deed was filed, Auditor Walder told the 

Treasurer’s office not to follow procedures. They were told not change 

the name on the tax records to the name on the Expungement Deed, 

Stacey Kovach Trustee. This also demonstrates the Treasurer’s office 

takes orders from him. 

(Reply at 3.) However, Kovach fails to assert either a legal obligation for the Auditor to 

maintain the requested tax records, or the actual use of such records to document the 

functions of the Auditor’s Office, or the physical possession of these records by the 

Auditor’s Office. Based on the same reasoning and case law cited for the disposition of 

Requests Nos. 1 and 2, I find that Kovach has not proven by clear and convincing 

evidence that records responsive to Request No. 3 were kept by the Auditor at the time 

of her request. 

Requests Nos. 4, 5 and 6: Non-Actionable Requests for Information, 

and to Answer Questions 

Requests Nos. 4, 5, and 6 in Kovach’s letter of July 25, 2019 were for: 

4) Please explain rescan below. 

[see image of table in the original] 

5) On December 27, 2018 an Affidavit Expunging Sheriff Deed, Pursuant to 

ORC Sec. 5301.252 was recorded. It was verified for accuracy by both the 

recorder and your office meaning the last owner was Stacey Kovach 

Trustee. 

Please provide your reasons for refusing to place the property back into 

the rightful owner’s name. 

6) Please detail in writing any issues or denial of any of the facts listed 

below. The complete Recording is enclosed Exhibit F. 

An erroneous Sheriff Deed Instrument# 201800942049 Book 2061 pages 

8-10, was filed on October 19, 2018. Said Deed unlawfully conveyed the 

property to Federal Home Loan Mortgage Corp. 
Case No. 2019-00917PQ -8- REPORT AND RECOMMENDATION 

1) The Deed was filed out of order. 

2) The prior owner was incorrect, memorialized as Ralph J. Kovach 

per Volume 1842, page 101. 

3) The Prior Owner was Stacey Kovach Trustee. 

4) Freddie Mac did not put up any money for the property. 

5) The Auditor failed to follow ORC 317.31 to compare the record with 

what has been recorded. 

6) The Sheriff failed to deliver the Property Description Approval 

Form. to auditor as required prior to Sheriff Sale. 

(Am. Complaint at 4-5; Response, Oct. 4, 2019 Walder Aff. – Exh. A.) The Auditor 

asserts that he has no duty under R.C. 149.43(B) to provide answers to questions, or 

provide reasons for his decisions, or to detail “any issues or denial” in response to 

assertions made by Kovach. (Response at 3.) Kovach makes no response to this 

defense in her reply. 

{¶10} In response to a question or request for information, a public office has “no 

duty under R.C. 149.43 to create new records by searching for and compiling 

information from existing records.” State ex rel. White v. Goldsberry, 85 Ohio St.3d 153, 

154, 707 N.E.2d 496 (1999). For example, the Ohio Adult Parole Authority properly 

denied a public records request for the “qualifications of APA members.” State ex rel. 

Lanham v. State Adult Parole Auth., 80 Ohio St.3d 425, 427, 687 N.E.2d 283 (1997). 

Accord State ex rel. Morabito v. Cleveland, 8th Dist. Cuyahoga No. 98820, 2012-Ohio6012, ¶ 14 (request for written “confirmation of * * * why, how, when, and by whom the 

video was destroyed – are not authentic public records requests, but requests for 

information outside the scope of R.C. 149.43.”) Thus, the Auditor properly denied 

Requests Nos. 4, 5 and 6 seeking explanations or reasons for the execution of public 

functions and for the Auditor to admit or deny factual representations. 

Request No. 7: Non-Existent Record 
Case No. 2019-00917PQ -9- REPORT AND RECOMMENDATION 

{¶11} Request No. 7, contained in Kovach’s letter of August 21, 2019 states: 

“Please provide video with sound included of my meeting with Mr. Walder on December 

27, 2018. The time is approximately noon.” (Complaint at 25.) No response was 

provided prior to the filing of this action, but the Auditor subsequently attested that the 

requested December 27, 2018 video was provided during litigation. (Response, Oct. 4, 

2019 Walder Aff. at ¶ 7-9; cover letter attached as Exh. D.) The cover letter referenced 

an enclosed digital device, but did not specify that it contained the December 27, 2018 

video. In her reply, Kovach asserted in response: 

14. Auditor Attestation #7, #8, #9 On August 21, 2019 we requested a video, with 

sound, of my meeting at the conference table with the Auditor and his staff on 

December 27, 2018 at approximately noon. The Auditor never sent a video of 

this meeting and lied that he did to this honorable court. 

{¶12} On November 27, 2019, the special master ordered the Auditor to submit a 

copy of the December 27, 2018 video as allegedly provided to requester, along with 

affidavit or other evidence of completeness, responsiveness, and authenticity. In 

response, the Auditor filed an affidavit admitting to some confusion in the back and forth 

with Kovach and his office with respect to the two requests for video recordings. (Dec. 

6, 2019 Walder Aff. at ¶ 2.) The Auditor implicitly withdrew the assertion that a 

December 27, 2018 video had been provided. The Auditor now attests that there was 

no video recorder in the conference room where the December 27, 2018 meeting took 

place, and therefore no video was made of the meeting. (Id. at ¶ 6.) Since no December 

27, 2018 video existed, the Auditor had no duty to produce it, and his mistake in 

identifying the response to a different request (Request No. 8) as satisfying Request No. 

7 does not amount in this instance to a violation of R.C. 149.43(B). Based on the same 

reasoning and case law cited for the disposition of Requests Nos. 1 and 2, I find that 

Kovach has not proven by clear and convincing evidence that a record responsive to 

Request No. 7 existed at the time of her request. 

Request No. 8: Suggestion of Mootness 
Case No. 2019-00917PQ -10- REPORT AND RECOMMENDATION 

{¶13} Kovach describes making a verbal public records request to the auditor’s 

office on August 22, 2019 for “a copy of the video of the event which just transpired 

which includes audio.” (Complaint at 2.) The Auditor does not address this request in his 

response. However, Kovach concedes that the Auditor provided two videos of the 

August 22, 2019 event in response to the request: 

15. I requested a video, with sound, of my father and I at the Auditor’s 

office on August 22, 2019 between 4-4:30 PM. This is stated on page 

three of my Amended Complaint. The verbal request was on August 22 

and the 2nd request was in writing on August 26, 2019. (EX 1) The two 

video’s which were sent by the Auditor was the August 22 footage. The 

Auditor office blocked out the whole left side of the office where my 

father and I were at the computer for twenty minutes with Deputy 

Becky McCartney. We were re-recording the deed and requesting tax 

records to be changed to the proper owner according to ORC 319.20. I 

would like the Auditor to send the footage that encompasses the entire 

room. 

(Reply at ¶ 15.) The Auditor confirms that these are the two videos that were provided 

to Kovach with Ms. Applebaum’s letter of September 16, 2019. (Dec. 6, 2019 Walder 

Aff. at ¶ 4-5.) The Auditor attests that his office does not record audio with the videos. 

(Id. at ¶ 3.) 

{¶14} However, Kovach complains that “the Auditor office blocked out the whole 

left side of the office where my father and I were at the computer” and states that she 

desires footage that encompasses the entire room. (Reply, Id.) In response, the Auditor 

asserts that his office did not redact or edit the videos. (Dec. 6, 2019 Walder Aff. at ¶ 3.) 

The Auditor filed a copy of the two videos that he provided to Kovach. (Id. at ¶ 7.) On 

review of same, the special master notes no apparent blacking, pixilation, or other 

indicia of redaction in either video. Kovach does not assert that additional footage from 

the same or any other video recording device actually exists. In the context of the video, 

her assertion that the Auditor’s Office “blocked out” a particular area within the office 

means only that a visual barrier existed. Kovach offers no support for her apparent 
Case No. 2019-00917PQ -11- REPORT AND RECOMMENDATION 

argument that the Auditor’s Office was required to cover all or particular areas of the 

office interior with video recording. I find that Kovach has not proven by clear and 

convincing evidence that the Auditor has withheld any portion of the existing records 

responsive to Request No. 8. I therefore find that Kovach’s request for production of the 

videos is now moot. 

{¶15} Finally, Kovach makes allegations of record concealment, falsification, and 

destruction that, if proven, would be actionable only in other courts. This court has no 

jurisdiction over violations of the records retention statutes, the remedy for which is 

provided in R.C. 149.351(B) (Person aggrieved by improper disposition of records may 

file injunctive and/or forfeiture action in court of common pleas). Nor does this court 

have jurisdiction over the various criminal offenses that Kovach suggests the Auditor 

and his staff may have committed. 

Conclusion

{¶16} Upon consideration of the pleadings and attachments, I recommend that 

the court DENY requester’s claim for production of records. 

{¶17} 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 
Case No. 2019-00917PQ -12- REPORT AND RECOMMENDATION 

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). 

 

 JEFF CLARK 

 Special Master

Filed December 19, 2019 

Sent to S.C. Reporter 1/16/20