[Cite as Warchol v. Superintendent of Washington Local School Dist. , 2022

- Ohio

- 3947.]

IN THE COURT OF CLAIMS OF OHIO

{¶1} Respondent Superintendent of Washington Local School D istrict

(Sup erintendent) objects to a Specia l Master ’ s Report and Recommendation in this

public

- records case. For reasons set forth below, the Court sustai ns the Superintendent ’ s

first objection . The Court adopts, in part, t he Repor t and Recommendation

.

I. Bac kgroun d

{¶2} On December 6, 2021, Requester Brittany Warchol, a self

- represented

litiga nt, filed a C omplai nt against the Superintendent wherein s he alleged a denial of

ac cess to public records in violation of R.C. 149.43(B)

. Wa rchol re presented in material s

accompanying the Complaint that she filed her public

- records request under the Freedom

of Information Act ( FOIA )

. 1

1 Warchol states in an email that is dated Septem ber 30, 20 21 :

This is a request for infor mation filed under the Freedom o f Information Act.

I request that you provide me with all documents co ntaini ng information regard

ing the

f o llowing topic : C OVID

- 19

, Certifications, School Fundi ng, and HVAC system maint enan ce.

D ocumentation to include e

- mail communication via work account as well as private e

- mails

used to conduct business, letters, logs, Do ctorat e Degree (MD), as wel l as inte r nal

communicatio n. Corr espondence between Kadee Ansta ndt and the Department of

Edu cat io n, Kadee Anstandt and the Depa rtment of Health/ Ohio H ealth De partment, as well

as Kadee Anstandt and Governor Mike DeWine, and Kade e Anst andt and all serving

members o f the school boar d and a ny other pertinent entity. BRITTANY WARCHOL

Requester

v.

SUPERINTENDENT OF WASHINGTON

LOCAL SCHOOL DISTRICT

Respondent Case No. 2021

- 00698PQ

Judge Patr ick E. Sheeran

DECISION AND ENTRYC as e No. 2021

- 00698PQ

- 2

- DEC ISION & EN TRY

{¶3} T h e Court app ointed a Spe cial Master who re ferred the ca se to mediation

.

After mediation failed to succes sf ully res o lve all disputed iss ues between the parties

, the

case was returned to the Spe cial Master ’ s docket

. The Superintenden t thereafter moved

to dismiss Warchol ’ s Complaint.

{¶4} On Augu st 31

, 2022, the Special Master i s sued a Report an d

Recommen dation (R&R)

. The Special Master acknowl edged the S uperintendent ’ s

motion to dismiss , stati ng that the Superinte ndent “ move[d] to dismiss the complaint on

I am requesting copies of a ll c orr es pondence dated 08/01/2018

- 11 /01/2021 in regards to

COVID

- 19, Grant Funding, Emergency/ Safety response plan in regards to a “ pand emic,

epidemic, or communic able viral disease. ” Respo nse pla n to include any resources or

educational material in w hich the p lan was set forth upon. Commu nication to include but not

be l imited to masks, vaccinations, and documentation showing school offici als to include,

Superintend ent Kadee A nstadt and all governi ng members of the school board having the

rights under the l aw to prescribe, advise, recommend

, administer, OR dispense for

co mpensation of any kind, direct or indirect, a drug or medicine, as wel l as t reatment, of

whatever nature fo r the cure of a disease or infirmity. Grant funding u nder ESSER, ARP

ESSER, as well as G EER funding to include but no t limited to the use of said fun ds up until

this request whether it be a pending approval or purchased

. My f inal request at this time, all

d ocumentation in regard s to HVAC system maintenance l ogs.

I request a waiver of al

l f ee s for this request since the disclosure of the information I seek is

not primarily in my commercial interest, and is likely to cont ribute significantly to pub lic

unders t anding of the o

peratio ns or activities of the govern ment, making the disclosu re a

mat te r of public interest. This in formation will benefit the publi c by allowing them a clearer

understanding of the use of grant funds t hat ha ve dictated the healt h of our c h ildren while

at tending the public school system, alo ng with the motives of ou r loc al sc hool officials and

governing body.

If you have any questions If you deny any or all of this request, please cite each specific

exe mption you feel has legal a uthority f o r the refusal t o relea se the information as well as

notifying me of the appea l pro ced ur es available to me under the law. If you require any

clarific ation or find part of the request problematic, I anticipate you contac ting m e per

section 16 of t he FOIA; D u ty to provide a dvice a nd assistance. Please acknowle dge receipt

of this reque st vi a t he same manner it was received. I look forward to receiving the

information I am requesting and prefer digital copies sent via email to the email address

this d ocument wa s sent from.C as e No. 2021

- 00698PQ

- 3

- DEC ISION & EN TRY

the grounds that, 1) Warchol ’ s request w as mad e under the federal Freedom of

Information Act and is therefore un enforce able against a state p ublic office, 2) Warchol ’ s

claims are moot to the extent records have been produced, and 3) the ambiguous and/or

ov erly broad portions of a request do not create a duty for a public office to produce

records. ” (R&R, 4.) The S pecial Master has recom mend ed deny ing the motion to

dismiss, statin g in support: “ Although her wording is not clear, Warchol then appeared to

concede that the request must be made under th e Publ ic Records Act and the

Superintendent appeared to accept that the req uest was now properly made under Ohio

law. ” (R&R, 5.) The Special Master also has stated that “ for concision and because the

matter has been fully briefed, the Special Master recommen ds the court deny the motions

to dismiss on these grounds and pr oceed o n the merits. ” (R&R, 5.)

{¶5} The Speci al Master made several findings in the R e port and

Recommendation

. The Special Master “ [found] that mootness, ambiguity, and

overbreadth are p artially apparen t on the face of the complaint, as noted [in the Report

and Rec ommendation with respe ct to a request made on November 15, 20 21 ]. ” (R&R,

5.) The S pecial Master further “ [found] that Warchol has not shown by clear and

convincin g evide nce th at additional re cords exist responsive to the above requests in the

hand s of th e Superintendent

, ” but the Special Master has noted tha t “ [t] his is not an

affirmative finding that no such records exist or ever existed, only that Warchol has failed

to meet her b urden to prove t heir exis tence in at the time of this request by the requis ite

quantum of evidenc e. ” (R&R, 8.) And the Special Master has stated, “ Based on the

evidence submitted, the Special Master finds that Warchol ’ s request amounts to an

improper d emand for the complete duplication of voluminous files. ” (R&R, 10.) The

Spe cial Master also “ [fou nd] that the request for three years of all communication records

‘ regarding ’ or ‘ in regards to ’ a list of broad topics is improperly ambiguous and fails to

reason ably identify th e records sought. ” (R&R, 11

. ) The Special Mast er furt her “ [found ]

that [a] September 30, 2021 request and follow

- up communications, other than as noted

[ infra ]

, are ambiguous, overly broad, and fail to reasonably identify the record s sought

. ”

(R& R, 13.)

{¶6} However, t he Special Master found that a n “ em bedded request for records of

the amounts and use of funds from specific grant funding sources during a limited periodC as e No. 2021

- 00698PQ

- 4

- DEC ISION & EN TRY

is sufficiently specific to ‘ reasonably identify what public record s are be ing requested. ’

R .C. 149.43(B)(2). The Superintendent has not asserte d any exe mption for th ese records,

and they must therefore be produced. ” (R&R, 13

- 14.) The Special Master concluded:

Upon consideration of the pleadings and attachments, the Spe cial

Mas ter recommends th e court deny the motion to dismiss on the bas is of

r equester ’ s initial rel iance on the federal Freedom of Inf ormation Act as

authority for her requests. The Special Master further recommends the court

order respondent to produce al l record s responsive to t he request for

specified records of ESSER, AR P ESSER , and GEER funding. Th e Special

Master further recommends the court find that all sufficiently specific

requests have been rendered moot and deny the claim for any further

pro duct ion of r ecords. The Speci al Master recommends the court find that

no o ther vi olation of R.C. 149.43 (B) has been shown. It is recommended

costs be assessed equally between the parties.

(R&R, 14.)

{¶7} On Sep tember 12, 2022, the Superintendent filed written objec tions to the

Special Mast er ’ s Report and Recommendati on. The Superint endent ’ s counsel certifies

th at a copy of the objections was sent electronically to Warchol and sent “ via cert ified

mail. ”

{¶8} Warchol has not filed a timely response to the Superint endent ’ s objections.

II. L aw and Analysis

{¶9} The Gene ral Assembly created a n alternat i ve means to resolve public

- r e co r ds

disput e through the enactm ent of R.C. 2743.75

. W e lsh

- Huggin s v. Jefferso n Cty.

Prosecutor ’ s Office , 163 Ohio St.3d 337, 2020

- Oh i o

- 53 71, 17 0 N

. E.3d 768 , ¶ 1 1

. See

R.C. 2743.75 (A). Under R.C. 2743.75 ( F)(1), not later tha n seven busi ness days after

r eceiving a response of a public o ffice or person responsible for public records , or a

motion to dismiss a complaint, if applicable, a spe cial master is required to “ submit to the

court of claims a report and recommend ation base d on the ord inary application of

statutory law and case law as they existed at the time of the filing of the complaint. ”

However, for good cause s hown, a special master “ may ext end the seven

- day period forC as e No. 2021

- 00698PQ

- 5

- DEC ISION & EN TRY

the submission of the report and recommendation t o the court of claims under t his division

by an additional sev en business days. ” R.C. 2743.75(F)(1).

{¶10} R .C. 2743.75( F) (2) governs the filing of ob jections to a special master ’ s

r e port and r e commendation

. U nder R.C. 2 743.75(F) (2), either par ty “may ob j ect t o the

r epo rt and recomm endati on withi n seven busin ess days aft er r ece ivin g the rep o r t a n d

recomm endat ion by fi ling a written objection w ith th e c le rk and send in g a co py to t he ot her

par t y b y ce rtified mail , r eturn r eceipt req uested. * * * I f either p a rty t i mely o bje ct s, the othe r

part y may fi l e with the c lerk a respo nse wit hin seven bus i n es s da ys aft er re ceiving t he

obj ection and send a c o py of the r esponse to th e obje cting p art y by c ert i fi e d ma il, return

r ece ipt req uested. T he court, withi n seven bu s ine ss days a fte r the respons e to t he

objec t ion is filed , shall issu e a fin al o rder that a do p t s, modif ies, or reject s the report and

recommen d ation. ”

{¶11} Pursuant to R.C. 2743.75(F)(2), “ [a] ny objection to the report and

recommendation shall be specific and state w ith particu larity all ground s for the objection. ”

The Superi ntendent presents the following objecti ons:

“ 1. The Recommendation fails to require Requester to bear the requisite

burden of proof

.

2. The Request was made under FOIA , not R.C. 149.43, and shou l d

therefore be d ismissed

.

3. Even if the request had been properly made under R.C. 149.43, the

complaint would prop erly be dismissed as to all portions of the request

which are moot, ambiguous, overly broad or seek non

- existent records

. ”

The Superintenden t maintain s in the objections that Warchol ’s Com plaint must be

dismissed in its entirety

. {¶12} Th e S uperintendent asserts in the first objection that, in the Repor t and

Recommendation, the Special M aster failed to require Warchol to bear the requisite

burden o f proof. In Welsh

- Huggins v. J efferson Cty. Prosecutor ’ s Offi ce , 163 Ohio St.3d

337, 2020

- Ohio

- 5371, 170 N.E.3d 768, the Ohio Supreme Court discussed the requi site

burden of proof in a R.C. 2743.75 proceeding

. The Ohio Supre me Court ins tructed:

W hile a pu blic

- records

- access proceedin g brought pursuant R.C.

2743.75 may be le ss formalistic than a mandamus proceeding brought pursuantC as e No. 2021

- 00698PQ

- 6

- DEC ISION & EN TRY

to R.C. 149.43(C), the nature of the relief sought

— na mely, access to a public

record that was requested and allegedly withheld in violation of R.C 149.43(B) (1)

—

is functionally the same. For that re ason, the direction in R.C. 2743.75(F)(1) for

“ the ordinary application of statut ory law and case law as they ex isted at the time

of the filing of the complaint ” suggests that p ublic

- rec ords

- access proceedings in

th e Court of Claims be consistent with the standards that are applicable to

mandamus

- enforcement actions.

Welsh

- Huggins at ¶ 32

. S e e State ex rel. Ware v. Crawford , 2022

- Ohio

- 295, ¶ 12

(mandamus is the appropri ate remedy to comp el com pliance with the Public Records Act

and to be entitled to a writ of mandamus a relator i s required to demonstrat e by “clea r

and convincing evidence ” that the relator has a clear legal right to the requested relief

and tha t a respond ent has a clear le gal duty to provide it ) ; see also Cross v. Ledford , 161

Ohio St . 469, 120 N.E.2d 118 (1954) , paragraph three of the syllabus (holding that “ [c] lear

and convinc ing evidence is that measure or degree of proof which is more than a mere

‘ prep onderance of the e vidence, ’ but not to the exte nt of such certainty as is require d

‘ beyond a reasonable doubt ’ in criminal cases, and which will produce i n the mind of the

trier of facts a firm belief or conviction as to the facts sought to be established ” ).

{¶13} I n Welsh

- Hugg ins t he Ohio Supreme Court al so instructed:

[T] he complainant ’ s “ burden of production ” is to plead and prove facts

showing that the requester sought an iden tifiable public record pursuant to R.C.

149.43(B)(1) and that the public office or records custodian did not make the record

avai lable. * * *

The “ bu rden of persua sion ” was at all times on [ complainant ] to prove his

right to relief under R.C. 2743.75 by th e requisite quantum of evidence. * * * We

there fore assume without deciding that h is right to obtain relief under R.C. 2743.75

fo r the denial of acce ss to public r ecords in violation of R.C. 149.43(B) required

clear and convincing evidence.

Welsh

- Huggins a t ¶ 33

- 34.

{¶14} Although in Welsh

- Huggins the Ohio Supreme Court did not decide whet her

a right to obt ain relief under R.C. 2743.75 require s “ clear and convincing ev idence

, ” at

least two Ohio courts of appea l have determ ined that “ clear and c onvincing evidence ” isC as e No. 2021

- 00698PQ

- 7

- DEC ISION & EN TRY

required. The Eighth District Court of Appeals has stated that a r equest er “ mus t establish

e ntitlement to relief in an ac t ion 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 Hur t v. Libert

y Twp.

, 2017

- Ohio

78 20, 97 N.E .3d 1153, ¶ 27

- 30 ( 5 th Dist.). And the Fifth District Cou rt of Appeals has

stated that “ ‘ [t]o promote consi stent application of the public records law, ’ the proper

standard of proof in a case brought pursuant to R.C. 2743.75 is the standard of p roof

utilized in a public rec o rds mandamus action commenced pursuant to R.C.

149.43(C)(1)(b). ” Ebersole v. City of Pow ell , 5th Dist. Delaware No. 2018 CAI 12 0098,

2019

- Ohio

- 3073, ¶ 20 , quoting Hur t at ¶ 30.

{¶15} Applying Welsh

- Huggins

, Warc hol ’ s “ burden of production ” requ ired Warchol

to plead and prove facts showing that she s ought an identifiable public record pursuant

to R.C. 149.43(B)(1) and the Superintendent did not make the record avai lable. See

Welsh

- Huggins

, supra

, at ¶ 3 3

. And the “ burden o f persu asion ” was at all times upon

W archol to prove her right to relief under R.C. 2743.75 by th e requisite quantum of

evidence , which Ohio appellate courts have d etermi ned is “ clear and convincing

evidence

. ” See Welsh

- Huggins

, supra

, at ¶ 3 4

, Vi ola

, supra

, at ¶ 16; Ebersole , supra, a t

¶ 20

. The Twelfth District Court of Appeals has discussed “burden of proof” in the context

of the Ohio Open Meetings Act. State ex rel. Hardin v. Clermont C ty. Bd. of Elections

,

2012

- Ohio

- 2569, 972 N.E.2d 115, ¶ 23 (12th Dist.). The Twelfth District Court o f Appeals

has stated:

The term “ burden of proof ” is a composite burden that

“ encompasses two different aspects of proof: the burden of going f orward

with evidence (or burden of production) and the burden of persuasion. ”

Chari v. Vore , 91 Ohio St.3d 323, 32 6, 2001 Ohio 49, 744 N.E.2d 763

(2001). “ The term ‘ burden of production ’ tells a court which party must come

forward with evidence to support a particular proposition, whereas

‘ burden of persuasion ’ determines which party must produce sufficient

evidence t o convince a judge that a fact has been established. ” 29 American

Jurisprudence 2d, Evidence, Section 171 (2012). “ The burden of

persuasion ne ver leaves the party on whom it is originally cast. ” Id. Thus,C as e No. 2021

- 00698PQ

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- DEC ISION & EN TRY

what shifts is “ the burden of going forward with th e evidence, rather than

the actual burden of proof. The burden which rests upon the plaintiff, to

establish the material averments of his or h er cause of action * * *,

never shifts. ” 42 Ohio Jurisprudence 3d, Evidence and Witnesses, Section

84 (2012).

I d. at ¶ 23

. A ny suggestion in the Report and R ecommendation that Warchol was not

required to prove by clear and convincing evidence that requested records exist ed unless

the Superi ntendent clearly denied that the specific records existed seems contrary to

e stablished Ohio law

. See R eport and Recommendation at 14 ( “ [t] he Superintendent has

not asserted any exemption for these records, and they must therefore be produced ” ).

{¶16} Notably, t he Ohio S upre me Court has stated, “ A r ecords request that places

the burde n on the public offi ce to identify the responsive documents by searching for

specifie d cont ent is not a proper records request. ” State ex rel. Griffin v. Sehlmeyer

,

2022

- Ohio

- 2189, ¶ 11 , ci t ing State ex rel. Shaughnessy v. Cleveland , 149 Ohio St.3d

612, 2 01 6

- Ohio

- 8447, 76 N. E.3d 1171, ¶ 10. I n State ex rel. Shaughnessy at ¶ 10, the

Ohio Supreme Court explained :

T he Public Records Act does not compel a public office “ to do research or

to iden tify records containing selec ted information. ” See State ex rel. Fa nt

v. Tober , 8th D ist. Cuyahoga No. 63737, 1993 Ohio App. LEXIS 2591, 1993

WL 173743, *1 (Apr. 28, 1993), aff ’ d , 68 Ohio St.3d 117, 1993 Ohio 154,

623 N.E.2d 1202 (1993)

. See also Morgan , 1 21 O hio St.3d 600, 2009

- Ohio

1901, 906 N.E.2d 1105, at ¶ 14

- 15 (r eq uest for “ [a]ny an d all e

- mail

communications * * * which reference * * * the ‘ evidenc e

- based model ’ or

education funding in general ” was overbroad [first ellipsis sic]); State ex rel.

T hom as v . Ohio State Univ. , 71 Oh io St.3d 245, 246, 1994 Ohio 261, 64 3

N.E.2d 126 (1994) (noting denial of writ of mandamus where request for

records sought selected information “ regarding or related to ” any pro

animal

- rights action group or individual), ci tin g Fa nt.

U pon independent revi ew , the Court de termines that Warcho l ’ s public

- records request

p la ced the Superintendent in a situation where , in response to an ostensibly overbroadC as e No. 2021

- 00698PQ

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- DEC ISION & EN TRY

request, the Superinte ndent was required to search for content in records , which is not

required, given th e holding in Sehlmeyer

, supra

. See Re port and Recommendation at

13

- 14. 2 The Court finds merit in the Superint end ent ’ s first objection. The Court concludes

that the S uperintendent ’ s first objection shou ld be sust ained.

{¶17} Since the Court ’ s ruling as to the Superi nten dent ’ s first objection ad equ ately

disposes of the objections, a determin a ti o n o f the Superint ende nt ’ s other ob jections is

unne cessary

. See S tate ex rel. Karm asu v. Ta te , 83 Ohio App .3d 199 , 20 5, 614 N.E .2d

827 (4th Di st

. 199 2) ( “[a ] trial court is not re qu ired to consider any lega l t he o ry, or

a rgument, bey ond tha t which will adequately dispose of th e cas e at hand ”) ; PDK

Lab o ratories, Inc. v. Unite d States Drug Enforceme nt Administra tion ( D.C. Ci r

. 2004) , 36 2

F.3d 786, 799, 360 U. S. App. D.C. 344 ( Roberts, J.

, concurri ng in part and c o n c ur ring in

judgment) (e xpress ing “ th e card inal principle of j udicial rest r aint

, ” i.e.

, “ if it i s not

necessary to deci de more, it is nece ssary not to dec ide more ” ) ; S tat e ex r el. Luk en v.

Corp. for F

indlay M kt. of Cinc innati , 13 5 O h io St.3d 4 1 6, 201 3

- Ohi o

- 1 532, 988 N.E.2d

54 6, ¶ 25 ; Meyer v. UPS , 122 Ohi o St.3d 104, 20 09

- Ohio

- 2 463, 90 9 N. E.2d 1 0 6, ¶ 53.

The Court therefore for goes ruling on the Superintenden t ’ s second and third objections.

III. Conc lusion

2 In the R e port and Recommendation, th e Special Master s tated:

Par t o f Warchol ’ s request narrowed her overly broad request for “ all correspondence dated

08/01/2018

– 11/01/21 in regards to * * * Grant Funding ” to specify the fol lowing:

G ra nt funding under ESSER, ARP ESSER, as well as GEER fu nding to

include but no t limi ted t o the use of said funds up until this request whether it be a pending approval or purchased. (Complaint at 4.) Warchol further clarified this request as incl uding only c orrespondence regarding

,

- Amount of funds received

- Any stipulations of fu nding

- P en ding approval of funds

- Previous usage of funds (Complaint at 10.) Although the request is worded as one for records over a period of three years, the Supe rintendent a dvises that the referen ced funds did not become avail a ble until sometime in early 202 0, reducing the effective time period to a year and a half. (Response at 3.) The Special Master finds that this embedded request for records of the amounts and use of fu nd s from specific grant f unding sources during

a limite d period is sufficientl y spec ifi c to “ reasonably identify what public records are being requested. ” R.C. 149.43(B)(2). The Superintendent has not asserted any exemption for these records, and they must

t herefore be produced.

(R&R, 13

- 14.)C as e No. 2021

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- DEC ISION & EN TRY

{¶18} The Court sustains the Superintendent ’ s first ob jec tion . The Court d oes not

adopt the Special Master’s recommendation to o rder the Superin tendent to produce all

record s responsive to t he request for specified record s of ESSER, ARP ESSER, and

GEER f unding. The Court does, howeve r, adopt the Special Mast er ’ s recommendation t o

assess court costs equally between Warchol an d the S uperintendent. The Special

Master ’ s Report and Recommendation is adopted , in part

, and not a d opted , in part

. Court

costs are assessed equally between Warc hol and the Superintenden t. T he C le rk shal l

serve upon all parti es notic e of th is judgm ent and it s date of entr y upon the journal.

PATRICK E. SHEERAN Judge

Filed October 4 , 2022

S ent to S.C. Reporter 11/ 4/ 22