[Cite as Mantell v. Cuyahoga Cty. Prosecutor's Office , 2023

- Ohio

- 2768.]

IN T HE COURT OF CLAIMS OF OHIO

{¶1} This matter is before the special master for a report and recommend ation 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 crimin al records i n 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 O ffice. He received significant records from the Public Defender, information from the Co mmon Pleas C ourt, but nothing fro m 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 ev idence and memoranda su pporting 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 unpa ginated 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 p aginated filings are based on their i n ternal pagination. GREG MANTELL Requester

v.
CUYAHOGA COUNTY PROSECUTOR ’ S OFFICE Respondent Case No. 2023

- 00225PQ Special Master Todd Marti
REPORT AND RECOMMENDATIONCase No. 2023

- 00225PQ

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- REPORT AND RECOMMENDATION

II. Analysis

. A. Respondent’s motion to dismiss should be denied and th e case should be resolved on the me rits. {¶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 C ommrs ., 65 Ohio St.3d 545, 548, 6 05 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 c ourt weigh the evidence through a merits analysis

. B. Requester’s claims fail on t he meri ts. {¶5} Mr. Mandell made several public records requests of the Prosecutor’s O ffice:

Date Request Complaint pp. 1/24/2023 “A copy of your office’s policy regarding helping people

seal their court records.” 16

- 17

“ co p i es of documents, email s, repor t s or o ther materials 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 ” 18

1/25/2023 “ Your website says: The Prosecutor ’ s Office ha s a team of

assistant pr osecutin g attor neys 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. ” 19

“ Un der Ohio ’ s public records law, I would li k e to k now how 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. ” 19Case No. 2023

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- REPORT AND RECOMMENDATION

2/9/2023 “ I am reques ting an Excel or .cvs ex tract fo r m [sic ] your

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 follo wing or similar field s: 1) date or year that papers w e re pre pared, 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 an y confidential or sea led information. But sim ply prov i des st atistical date [sic] on the number of such briefs you have filed with the court. ” 22

2/10/2023 “ Under Ohio ’ s public records law, I would like to request

copies of emails, reports, documents or other materials tha t indicate the number of request s for e xpungement 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 o f 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 off ice), and 4) final outcome (whether the sealing or expungement was appr o ved.) ” 22

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 establish es that a party suing fo r public record s 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. Go o den 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.Case No. 2023

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- REPORT AND RECOMMENDATION

{¶7} Those requests sought copies of the Prosecutor’s “ policy regarding helping people s eal their court records ” and r ecords 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 se al the i r records becaus e that O ffice doe s 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 wi th af fidavit testimony

. Id

. at pp. 00 2, ¶¶ 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, res ponse to the Prose cutor’s motion to dismis s proffer s 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 su bmission is procedurally barred. The Order Terminating M ediation 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 O ffice notic e of the factual bases for Mr. M antell’s claims before it filed its response to his comp laint. Mr. Mantell did not meet that deadline, frustrat ing the purpose for the deadline. Mr. Mantell’s tardy submission is not properly before the cour t. {¶10} Second, the we bpage proffered actually support s the Prosecutor’s position. Rather than saying that the Prosecutor’s O ffice “helps” offenders with attempts to expunge/seal records , it emphatically states that “ we cannot assist you with applying to have y our record sealed ” (em phasis in original). It goe s 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 [.] ” Cuy ahoga County Office of the Prosecutor, Sealing Criminal Records , available at http://prosecutor.cuyahogacounty.us/en

- US/expungement

- and

se aling

- of

- records. aspx ( accessed July 17 , 202 3).Case No. 2023

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- REPORT AND RECOMMENDATION

{¶11} T he 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 rig ht to records tha t cap ture information, not t o in formation 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[.]” (emphasi s added). A “publ ic re cord” consists of a “re cord ,” 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) therefo re does not direc t off ices to provide free fl oati ng 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 reques ts “for informati on * * * 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. Ci ty of New Lexington , 112 Ohi o St.3d 33, 2006

- Ohio

- 6365, 857 N.E.2 d 1208, ¶ 30. See also Gri ffin , 167 Ohio St.3d 56 6 at ¶¶ 1 0

- 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. Sehlm eyer , 166 Ohio St.3d 258, 2021

- Ohio

- 3624, 185 N.E.3d 58, ¶¶ 5

- 6; State ex rel. Rittner v. D ir., Fulton Cty. Emerge ncy 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) (de nying relief because cl aimant’s request did “not indicate what records [he] would like to examine as much as what information he would like to receive”). {¶14} Mr. Mantel l’s January 25 requests asked “ how many applications your office has reviewed ” and “ how man y briefs your office ha s filed ” since a given date. They sought numerical information, not records. Such requests are improper. See e.g. State ex rel. Griffin v. Seh lmeyer

, 165 Ohio St.3d 315, 2021

- Ohio

- 1419, 179 N.E.3d 60 , ¶ 12 ( request for the “actua l nu mber” of staff infected with Co v id

- 19 improper); State ex rel. Griffin v.Case No. 2023

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Sehlmeyer

, 167 Ohio St.3d 566, 2022

- Ohio

- 2189, 195 N.E.3d 130, ¶ 11 (request for “ ‘ t he
actua l amount of state, and or federal funding that ODRC, has approve d to *** to fight COVI D 19 , at the prison, ’ speci fically ‘ 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 indepe nden tly fatal flaws in Mr. M antell’ 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 requ est for that informati on i n “extract ” form. To “e xtract” 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 http s://ww w .merriam

webster.com/dictionary/extract ( accessed July 17 , 2023); Dictionary.com , available at https://www.dictionary.com/browse/extract ( acc essed July 17 , 2023). Ther e is no getting around t he fac t 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 docu ment by searching for and compiling information fr om its exist ing 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; An thon y v. Columbus City Schoo ls , Ct

. of C l. No. 2021

- 00069PQ, 2021

- Ohio

- 3242, ¶ 8, a dopted, 2021

- Ohio

- 3241 (Sheeran, J

. ) , (“ A public office is only required to produce existing records and has no obligation to create new records, inclu ding new compilations of d ispersed data ”). That is what M r. Mantell asks the Prosecutor to do by creating an extract that summarizes other records

. {¶18} This defect is not cured by the “Data b ase Rule,” the rule that a public office
must generate records from e xisting data if its re cord s management system can genera t e t he 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 a ny database record com pila tion available through e xistin gCase No. 2023

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- REPORT AND RECOMMENDATION

pr ogramming, 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 C l. No. 2017

- 00389

- PQ, 20 17

- Ohi o - 8453, ¶ 1 5 , a dopted 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 th e premise that the “la w do es not require members o f the p ublic 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 O hio St. 3d 170, 173

- 17 4 52 7 N.E.2 d 1230 (1988). Co nsequ e ntly, 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
p roduce that existing, albe it inch oate, record. Sta te 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 woul d not exist

. Kerner , 82 Ohio S t.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 D atabase R ule has the burden of proving that the office’s systems can, in t heir unaltered form, cre a te 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 E vide nce , p. 02, ¶ 7

. It is th eref o re 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 cla ims , despite being ord ered to do so

. Order Terminat ing M ediation, ¶ A. Although documents attached to his complaint indicate that the Public Defender ’s and Common Pleas Co urt’s systems were able to produce information similar to what he seeks from the Pros ecutor , there is n o ev iden ce 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 poin t.Case No. 2023

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{¶20} Give n that, the special maste r r e commends that the court deny relief on this claim. 4. Mr. Mantell’s February 10 , 2023, request require s the Prosecutor to perform research or to create a new record. {¶21} Mr. Mantel’s February 10 request w as framed in the alt erna tive : that the Prosecutor pro vid e copies of all records indicating the number of expungement/sealing requests that O ffice has received or to provide an extract of certain information about those requests. Neither alternative is enfor ceable. {¶22} The alternativ

e of producing records indica tin g 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 s elected in form ation ,” State ex rel. Lan ham 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. Shaughnes sy v. City o f Clevelan d , 1 49 Ohio St.3d 612, 2016

- O hio

- 8447, 76 N.E.3d 1171, ¶ 10 . See also State ex rel. Fant v. Tober , 8th Dist. Cuyahoga N o . 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 o f La kewood , 2018

- Ohio

- 5027, 1 26 N .E.3d 254 (8th Dist.) , ¶¶ 28, 34, 37. {¶23} That is what this alternative requires. It would require the Prosecutor’s O ffice to comb through its files for any records that contain information on a particular topic, how many expun geme nt/sealing requests it ha s d e alt 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 s cope of the r esearch i nvolved. S tate ex rel. Thomas v. Oh io S tate 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 o f their positions, would b e likely to have and m aintain th e records requested ”). Se e a lso Rose v. Ohio DOC , Ct. of Cl. No. 2022

- 00711PQ, 2023

- Ohio

- 1488, ¶ 20 , adopted 2023

- Ohio

- 1856 (Sadler, J.) (“ A reque st is likely to reasonably identify the records sought if it refers theCase No. 2023

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public office to a specific subject ma tter, it is sent to or id en t ifies an official with knowledge of that subject matter, and it references a relevant time period ”). The other is tha t such requests are enforceable if the research will not involve “ voluminous d ocuments .” State

ex re l. Carr v. London Corr. Inst ., 144 Oh i o St.3d 211, 2015

- Ohio

- 2363, 41 N.E.3d 1203, ¶ 22 . Mr. Mantell identified no persons within the Prosecutor’s Office wh o maintain the records he sought and provided no other parameters to guide the research his request would requ ire. His complaint indic at e s 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 d iscussed in connection with the Feb ru a ry 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 fa il. C. Costs

. {¶27} Costs should be assesse d a gainst Mr. Mantell pursuant to R.C. 2743.09(F), and R.C. 2303.20 bec ause he implicitly agreed to pay those costs by filing this case. Helfrich v. Hall

, 5th Dist. Licking No. 2021 CA 00077, 2022

- Oh io

- 1852, ¶ 25. III. Conc lusion

. {¶28} Bas ed on the foregoing t he sp e cial master recommends that judgment be entered for Respondent and that Requester bear the costs of this case. {¶29} P u r

suant to R.C. 2743.75(F)(2), either par ty may file a written objection with the c lerk of the Court of C laims of Ohi o within seven (7) busi

ne s s days after receiving this report and recommendation. Any objection shall be specific and state with particularity all grounds for the objection. A party s h all not assign as error on appeal the c ourt’s adoption of any factual fin dings or legal conclusi on s in th is report and recommendation unless a timely objection was filed thereto. R.C. 2743.75(G)(1).Case No. 2023

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TODD MARTI Special Master

Filed July 18 , 2023 Sent to S.C. Reporter 8 /10/ 23