[Cite as Mohr v. Colerain Twp., 2019-Ohio-474.]

{¶1} On November 28, 2018, a special master issued a report and 

recommendation (R&R) in this case arising under R.C. 2743.75. The special master 

recommended that the court deny requester Kathy J. Mohr’s claims for production of 

records in this case because the requests were for either non-records, or for records 

that do not exist. (R&R at 9.) The special master further recommended the 

assessment of court costs against Mohr. (R&R at 9.) 

{¶2} Neither Mohr nor respondent Colerain Township timely objected to the 

special master’s R&R. According to R.C. 2743.75(F)(2), if neither party timely objects, 

this court is required to “promptly issue a final order adopting the report and 

recommendation, unless it determines that there is an error of law or other defect 

evident on the face of the report and recommendation.” 

{¶3} Upon review of the special master’s R&R, the court finds that an error of law 

is evident on the face of the R&R because in the R&R the special master applied a 

clear-and-convincing standard of proof in determining that Colerain Township failed to 

prove certain exceptions. See, e.g., R&R at 7 (finding that Colerain Township “failed to 

prove by clear and convincing evidence that the information is part of a protected 

personal information system under the definition in R.C. 1347.01(F)”); id. at 8-9 (finding 

that Colerain Township “has not shown by clear and convincing evidence that the 

exception in R.C. 145.27(A)(2)(c) applies to Township information withheld in response 

to Mohr’s first request”). In State ex rel. Cincinnati Enquirer v. Jones-Kelley, 118 Ohio 

KATHY J. MOHR 

 Requester 

 v. 

COLERAIN TOWNSHIP 

 Respondent 

Case No. 2018-01032PQ 

Judge Patrick M. McGrath 

ENTRY MODIFYING AND 

ADOPTING RECOMMENDATION 

OF SPECIAL MASTER 
Case No. 2018-01032PQ -2- ENTRY 

St.3d 81, 2008-Ohio-1770, 886 N.E.2d 206, the Ohio Supreme Court discussed the 

burden that applies to a public records custodian who contends that an exception 

applies, holding at paragraph two of the syllabus: 

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, ¶ 30, followed.) 

A claim that an exception to disclosure under the Public Records Act applies essentially 

is a defense—a stated reason why a requester is not entitled to a requested document. 

See R.C. 149.43(A)(1)(a)-(ff) (establishing what does not constitute a public record 

under R.C. 149.43); see also Ohio Valley Radiology Assocs. v. Ohio Valley Hosp. 

Assn., 28 Ohio St.3d 118, 122, 502 N.E.2d 599 (1986) (“the sole responsibility of a 

defendant who has effectively contested the claimant’s allegations by pleading is to 

refute the claimant’s case after the latter has established a prima facie case by proper 

evidence”). As explained by the Ohio Supreme Court, in the “ordinary civil case the 

degree of proof, or the quality of persuasion as some text-writers characterize it, is a 

mere preponderance of the evidence.” Merrick v. Ditzler, 91 Ohio St. 256, 260, 110 

N.E. 493 (1915). And, generally speaking, in civil cases a party who asserts an 

affirmative defense is required to establish the defense by a preponderance of the 

evidence. See, e.g., Cameron v. Univ. of Toledo, 2018-Ohio-979, 98 N.E.3d 305, ¶ 18 

(10th Dist.), discretionary appeal not allowed, 153 Ohio St.3d 1452, 2018-Ohio-3026, 

103 N.E.3d 831. It follows therefore that under R.C. 2743.75 a party who claims that an 

exception applies is required to prove that the requested records fall squarely within the 

exception by a preponderance of the evidence. 

{¶4} In this instance the special master’s application of the standard of proof is 

erroneous because the special master applied a clear-and-convincing standard of proof 
Case No. 2018-01032PQ -3- ENTRY 

to Colerain Township’s claims of an exception, instead of determining whether the 

requested records fall squarely within an exception by a preponderance of the evidence. 

{¶5} However, in this instance since the special master concluded that Mohr’s 

requests were for either non-records, or for records that do not exist, the court 

determines that the special master’s report and recommendation should be adopted, 

excepting the special master’s application of a clear-and-convincing standard of proof 

relative to whether an exception should apply. The court therefore modifies the special 

master’s R&R of November 28, 2018, and the court adopts the R&R, as modified, 

including the findings of fact and conclusions of law contained therein. Judgment is 

rendered in favor of Colerain Township. Court costs are assessed against Mohr. The 

clerk shall serve upon all parties notice of this judgment and its date of entry upon the 

journal. 

 

 PATRICK M. MCGRATH 

 Judge 

Filed January 9, 2019 

Sent to S.C. Reporter 2/12/19