[Cite as Paramount Advantage v. Ohio Dept. of Medicaid, 2021-Ohio-4180.]

{¶1} This action is filed under R.C. 2743.75, which provides an expeditious and 

economical procedure to enforce the Ohio Public Records Act, R.C. 149.43. On 

April 12, 2021, requester Paramount Advantage, an unsuccessful applicant in a 

managed care organization procurement process, made a public records request to 

respondent Ohio Department of Medicaid (ODM) 

to inspect and copy public records [in any format] that fall into any of 

the following categories: 

1. Documents reflecting the scoring performed by the Ohio 

Department of Medicaid (“ODM”), as to all Plan Applicants, 

including but not limited to: (a) who performed the scoring; (b) the 

score cards; (c) score tabulations; (d) the process(es) applied to 

scoring; (e) assumptions made in scoring; (f) considerations taken 

in scoring; and (g) all other matters related to the managed care 

procurement scoring process of applications (the “Plan 

Applications”) that ultimately resulted in the Managed Care 

Procurement Award announced on April 9, 2021 (the “Procurement 

Process/Decision”) related to RFA ODMMR-2021-2024 (the “RFA”); 

2. All Plan Applications received by ODM by all Applicants; 

3. All recordings, video and/or audio, of oral presentations by all Plan 

Applicants; 

4. Documents reflecting all ODM participants in oral presentations by 

Plan Applicants, including those participating in listen or observing 

mode and a list of those who scored the video portion of the 

process; 

PARAMOUNT ADVANTAGE 

 Requester 

 v. 

OHIO DEPARTMENT OF MEDICAID 

 Respondent 

Case No. 2021-00262PQ 

Special Master Jeff Clark 

REPORT AND RECOMMENDATION 
Case No. 2021-00262PQ -2- REPORT AND RECOMMENDATION 

5. Documents reflecting ODM internal communications 

between/among Plan Application reviewers/scorers; 

6. Documents reflecting instructions to potential applicants outlining 

the RFA process as well as any follow-up questions from and 

responses to potential applicants related to the RFA process; 

7. Documents reflecting the decision to not award any contracts to an 

application for only one or two regions; 

8. Documents reflecting communications between the ODM and 

United Healthcare Community Plan of Ohio, Inc. related to the 

Procurement Process/Decision; 

9. Documents reflecting communications between ODM and Humana 

Health Plan of Ohio, Inc. related to the Procurement 

Process/Decision; 

10. Documents reflecting communications between ODM and Molina 

Healthcare of Ohio, Inc. related to the Procurement 

Process/Decision; 

11. Documents reflecting communications between ODM and 

AmeriHealth Caritas Ohio, Inc. related to the Procurement 

Process/Decision; 

12. Documents reflecting communications between ODM and Anthem 

Blue Cross and Blue Shield related to the Procurement 

Process/Decision; 

13. Documents reflecting communications between ODM and 

CareSource Ohio, Inc. related to the Procurement 

Process/Decision; 

14. Documents reflecting communications between ODM and Buckeye

Community Health Plan related to the Procurement 

Process/Decision; 

15. Documents reflecting communications between ODM and Aetna 

Better Health of Ohio related to the Procurement Process/Decision; 

16. Documents reflecting communications between ODM and Medical

Mutual of Ohio related to the Procurement Process/Decision; 
Case No. 2021-00262PQ -3- REPORT AND RECOMMENDATION 

17. Documents reflecting communications between ODM and Ohio 

Employee Health Partnership related to the Procurement 

Process/Decision; and 

18. Documents reflecting communications between ODM and any 

person or entity who/that was not an Applicant related to the 

Procurement Process/Decision. 

(Complaint, Exh. B.) The same day, ODM responded that it was in receipt of and 

working to fulfill the requests (Id., Exh. C.) On April 14, 2021, ODM sent a written 

response to each request and attached responsive records. (Id., Exh. D.) On April 15 

and 20, 2021, ODM produced additional responsive documents. (Id., Exh. E, F.) In a 

letter dated April 19, 2021, Paramount made a second public records request for: 

1. All Records (as defined in R.C. 149.43) related to a problem in the 

enrollment of Medicaid members into the Paramount Advantage plan as 

reflected in the data shared in the Paramount/ODM Data Meeting 

presentation dated August 29, 2019, and attached hereto as an Exhibit; 

2. All Records related to problems with the enrollment of Medicaid members 

into the Paramount Advantage plan including but not limited to problems 

regarding (a) deceased members being retroactively enrolled, (b) ABD 

members being placed in incorrect rate cells, (c) MyCare members 

assigned to Paramount Advantage, and (d) extension members being 

moved to CFC; 

3. All Records related to a problem with the algorithm that assigned Medicaid 

members among the managed care plans resulting in a disproportionately 

large population of high cost, high risk members enrolled in Paramount 

Advantage; 

4. All Records related to the reimbursement to Paramount Advantage by 

ODM of approximately $57 million in connection with the enrollment or 

algorithm issues referenced in Requests 1, 2, and 3; 

5. All Records reflecting communications between ODM and Aetna Better 

Health related to the enrollment, algorithm, or payment issues referenced 

in Requests 1, 2, 3, and 4; 

6. All Records reflecting communications between ODM and Buckeye 

Community Health Plan related to the enrollment, algorithm, or payment 

issues referenced in Requests 1, 2, 3, and 4;
Case No. 2021-00262PQ -4- REPORT AND RECOMMENDATION 

7. All Records reflecting communications between ODM and Caresource 

related to the enrollment, algorithm, or payment issues referenced in 

Requests 1, 2, 3, and 4;

8. All Records reflecting communications between ODM and Molina 

Healthcare of Ohio related to the enrollment, algorithm, or payment 

issues referenced in Requests 1, 2, 3, and 4;

9. All Records reflecting communications between ODM and United 

Healthcare Community Plan of Ohio, Inc. related to the enrollment, 

algorithm, or payment issues referenced in Requests 1, 2, 3, and 4;

10. All Records reflecting communications between ODM and Accenture 

related to the enrollment, algorithm, or payment issues referenced in 

Requests 1, 2, 3, and 4;

11. All Records reflecting communications between ODM and Milliman 

related to the enrollment, algorithm, or payment issues referenced in 

Requests 1, 2, 3, and 4;

12. All Records reflecting communications between ODM and any outside 

consultant or advisor related to the enrollment, algorithm, or payment 

issues referenced in Requests 1, 2, 3, and 4; and

13. All Records related to any disciplinary or threatened disciplinary actions 

against any ODM employee in connection with the enrollment, 

algorithm, and payments issues referenced in Requests 1, 2, 3, and 4.

(Id., Exh. H.) On April 23 and May 4, 2021, ODM sent an email and letter 

acknowledging receipt of the second request. (Id., Exh. I, J.) 

{¶2} On May 7, 2021, Paramount filed a complaint pursuant to R.C. 2743.75 

alleging that ODM had denied access to public records in violation of R.C. 149.43(B). 

The case was referred to mediation. On June 28, 2021, the special master denied the 

motion of UnitedHealthcare Community Plan of Ohio, Inc. to intervene. On July 13, 

2021, the mediator entered an order reporting that 

as a result of mediation, the requests set forth in the letter of April 12, 

2021, attached to the complaint numbered 1 (scoring notes only), 5, and 8 
Case No. 2021-00262PQ -5- REPORT AND RECOMMENDATION 

through 18 remain unresolved: all other matters have been resolved or are 

otherwise not disputed. 

On July 29, 2021, ODM filed a combined response to the complaint and motion to 

dismiss (Response). On August 26, 2021, Paramount filed a reply. 

Burden of Proof 

{¶3} The Ohio Public Records Act, R.C. 149.43, is construed liberally in favor of 

broad access, with any doubt resolved in favor of disclosure of public records. State ex 

rel. Rogers v. Dept. of Rehab. & Corr., 155 Ohio St.3d 545, 2018-Ohio-5111, 122 

N.E.3d 1208, ¶ 6. The requester in an enforcement action under R.C. 2743.75 bears an 

overall burden to establish a public records violation by clear and convincing evidence. 

Hurt v. Liberty Twp., 2017-Ohio-7820, 97 N.E.3d 1153, ¶ 27-30 (5th Dist.). The 

requester bears a burden of production “to plead and prove facts showing that the 

requester sought an identifiable public record pursuant to R.C. 149.43(B)(1) and that the 

public office or records custodian did not make the record available.” Welsh-Huggins v. 

Jefferson Cty. Prosecutor’s Office, 163 Ohio St.3d 337, 2020-Ohio-5371, 170 N.E.3d 

768, ¶ 33. 

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. 

Remaining Claims 
Case No. 2021-00262PQ -6- REPORT AND RECOMMENDATION 

{¶5} The parties agree that among the requests of April 12, 2021, only Request 

Nos. 1 (scoring notes only), 5, and 8 through 18 remain unresolved. The special master 

accordingly finds that Paramount’s claims for production of records based on Request 

Nos. 1 (other than scoring notes), 2-4, and 6-7 are moot. 

Analysis

{¶6} ODM asserts that the remaining portion of Request No. 1 has been satisfied 

by production of the scoring notes to Paramount in collateral litigation. ODM further 

asserts that all requests set forth in the letter of April 19, 2021, have been satisfied. 

(Response at 3.) Paramount denies both of these assertions. 

{¶7} ODM further argues that all of Paramount’s non-moot claims for production 

fail to state a claim for which relief may be granted because each request on its face is 

ambiguous, overly broad, and does not reasonably identify the specific records sought, 

or seeks personal notes and other information that are not “records.” 

Scoring Notes/Scoring Cards 

1. Suggestion of Mootness 

{¶8} In an action to enforce R.C. 149.43(B), a public office may produce 

requested records prior to the court’s decision and thereby render the claim for 

production moot. State ex rel. Striker v. Smith, 129 Ohio St.3d 168, 2011-Ohio-2878, 

950 N.E.2d 952, ¶ 22. ODM states that through discovery in collateral litigation it has 

provided Paramount with the same scoring notes that are sought in Request No. 1. 

(Response at 5-6, Exh. 1 – Garris Aff.) Paramount admits receipt of these documents. 

(Reply at 3.) 

{¶9} A relator’s claims are moot insofar as they request records which he has 

obtained through collateral litigation either before or during his public records 

enforcement action. State ex rel. Nix v. Cleveland, 83 Ohio St.3d 379, 381-382, 700 

N.E.2d 12 (1988) (relator obtained requested records from two other actions to which he 
Case No. 2021-00262PQ -7- REPORT AND RECOMMENDATION 

was party).1 Where the records so provided are identical, mootness turns on whether

the records were provided, not how they were provided. The special master finds that 

Paramount’s request for scoring notes in Request No. 1 is moot.

2. Claim that Moot Issue is “Capable of Repetition Yet Avoiding Review” 

{¶10} Paramount asserts that its request for production of process scoring notes 

involves exceptional circumstances where the time between denial of the notes and the 

award of a contract is too short in duration to be fully litigated before the award is made, 

citing State ex rel. Dispatch Printing Co. v. Geer, 114 Ohio St.3d 511, 2007-Ohio-4643, 

N.E.2d 314, ¶ 10–13. (Reply at 4-5.) Paramount avers there is a reasonable expectation 

that it will be subject to the same action again. (Id.) ODM counters that Paramount 

demonstrates no reasonable expectation it will have occasion to request scoring notes 

from ODM in a future procurement process, and that any such instance would be 

subject to review either in this court or in mandamus. (Response at 6.) 

{¶11} Public records issues have been found capable of repetition yet avoiding 

review in, for example, State ex rel. Cincinnati Enquirer v. Hamilton Cty., 75 Ohio St.3d 

374, 662 N.E.2d 334 (1996); State ex rel. Wadd v. Cleveland, 81 Ohio St.3d 50, 52, 689 

N.E.2d 25 (1998); State ex rel. Cincinnati Enquirer v. Ohio Dept. of Pub. Safety, 148 

Ohio St.3d 433, 2016-Ohio-7987, 71 N.E.3d 258, ¶ 29-31; State ex rel. Ohio Republican 

Party v. Fitzgerald, 145 Ohio St.3d 92, 2015-Ohio-5056, 47 N.E.3d 124, ¶ 15-17; and 

State ex rel. Cincinnati Enquirer v. Ohio DOC, Div. of State Fire Marshal, 2019-Ohio4009, 145 N.E.3d 1232, ¶ 8-9 (10th Dist.). The issues in these cases were clearly likely 

to repeat because the records involved were fairly standardized and frequently 

requested, e.g., 9-1-1 tapes, traffic accident reports, dashcam video, key-card-swipe 

data, and fire incident reports. 

1 This is not to say that a public office cannot provide multiple copies, only that it may decline to 

do so. If a requester is confused as to their rights, voluntary provision of additional copies can equitably 

advance the purposes of the Act while reducing the chance of litigation. 
Case No. 2021-00262PQ -8- REPORT AND RECOMMENDATION 

{¶12} Paramount provides no evidence that it will make future requests from 

ODM for scoring notes made under functionally identical procurement processes using 

the same time frames and challenge options, or that scoring cards/notes will always be 

used. The circumstances in this case more closely resemble those in State ex rel. 

Calvary v. Upper Arlington, 89 Ohio St.3d 229, 729 N.E.2d 1182 (2000) where the Court 

found no showing that the respondent’s ad hoc time between creation of draft 

agreements and final decisions was always so short as to evade review. Id. at 230-231. 

The special master finds that Paramount has not shown that exceptional circumstances 

exist in the present case or that the remedy for the challenged denial of withholding 

notes will be too short in its duration to be fully litigated before the granting of a contract. 

Non-Records 

{¶13} Notes may not constitute “records”2 subject to the Public Records Act if 

they are (1) kept as personal papers, not official records; (2) kept for the employee’s 

own convenience; and (3) other employees did not use or have access to the notes. 

State ex. rel. Cranford v. Cleveland, 103 Ohio St.3d 196, 2004-Ohio-4884, 814 N.E.2d 

1218, ¶ 18. Notes taken by public officials for their convenience as interviewers, 

evaluators, or assessors, and subsequently used in deliberative processes that result in 

written summaries or decisions, generally do not constitute “records” of the public office. 

Cranford at ¶ 14-22 (predisciplinary conference notes); Barnes v. Columbus, 10th Dist. 

Franklin No. 10AP-637, 2011-Ohio-2808, ¶ 9-27 (civil service commission assessors’ 

notes); State ex rel. Murray v. Netting, 5th Dist. Guernsey No. 97-CA-24, 1998 Ohio 

App. LEXIS 4719 (police chief interviewers’ notes). While such notes are often 

destroyed when of no further use to the drafter, retaining them in public office files does 

not automatically make them “records.” Cranford at ¶ 21; Silberstein v. Montgomery Cty. 

2 “Records” includes any document, device, or item, regardless of physical form or characteristic, 

including an electronic record as defined in section 1306.01 of the Revised Code, created or received by 

or coming under the jurisdiction of any public office of the state or its political subdivisions, which serves 

to document the organization, functions, policies, decisions, procedures, operations, or other activities of 

the office. R.C. 149.011(G) 
Case No. 2021-00262PQ -9- REPORT AND RECOMMENDATION 

Cmty. College Dist., 2nd Dist. Montgomery No. 23439, 2009-Ohio-6138, ¶ 54, 67. Nor 

do personal notes lose their non-record status merely because they contain information 

that is not transferred to an official report. State ex rel. Summers v. Fox, 163 Ohio St.3d 

217, 2020-Ohio-5585, 169 N.E.3d 625, ¶ 65-66. 

{¶14} ODM asserts that scoring cards as used in this instance contained only 

personal notes that did not serve as “records.” ODM submitted affidavits from the 

evaluators who served in this procurement process. Each attested they took personal 

notes regarding the procurement applications on an Individual Evaluation Guide form for 

the purpose of assisting their memories when they later met by teleconference for 

“consensus meetings.” (Response, Exhibits 2-8 at ¶ 6-11.) The evaluators kept the 

notes at their homes, did not share them with each other or anyone at ODM, and at the 

conclusion of the process delivered them to ODM’s outside counsel. (Id. at ¶ 9,12-13.) 

{¶15} Paramount counters that training materials for the evaluators stated they 

would use the scoring notes to “document” their individual ratings and of applicants, and 

that evaluators verbally shared the contents of their notes at consensus meetings. 

(Reply at 6.) However, this evidence is not inconsistent with ODM’s assertion that the 

evaluators complied with their training to take notes only for their personal use as 

individual assessors, for their convenience in recalling their observations as to various 

applicants, and to secure the notes from use or access by other employees. 

{¶16} Based on the evidence before the court, the special master concludes that 

Paramount has not met its burden to show by clear and convincing evidence that the 

scoring notes/cards were “records” of ODM. 

No Cause of Action for Modified Requests 

{¶17} The remaining defense is that all the original requests in the letters of April 

12 and April 19, 2021 were fatally ambiguous or overly broad, or otherwise failed to 

reasonably identify the records sought. In support of its assertion that Requests Nos. 5, 

8-17, and 18 were not improperly ambiguous or overly broad, Paramount invites the 
Case No. 2021-00262PQ -10- REPORT AND RECOMMENDATION 

court to determine the matter based on revisions it made to the requests’ language 

during mediation. (Reply at 7-9.) The special master notes first there is no indication 

ODM has waived the privilege and confidentiality provisions of R.C. 2710.03 and .07 

applying to all mediations conducted by this court. R.C. 2710.02(A)(1); L.C.C.R. Rule 

22(A) and (G). 

{¶18} Even were language revised in mediation properly before the court, no 

revision of a request during litigation relates back to the complaint. There can be no 

cause of action based on failure of an office to provide records in accordance with R.C. 

149.43(B) without a specific public records request having been made and denied prior 

to the complaint. See Strothers v. Norton, 131 Ohio St.3d 359, 2012-Ohio-1007, 965 

N.E.2d 282, ¶ 14; State ex rel. Bardwell v. Ohio Atty. Gen., 181 Ohio App.3d 661, 2009-

Ohio-1265, 910 N.E.2d 504, ¶ 5 (10th Dist.). Accordingly, the recommendations for 

resolution of this claim shall be based only on the requests made prior to the complaint. 

Ambiguous or Overly Broad Requests 

{¶19} Gupta v. Cleveland, Ct. of Cl. No. 2017-00840PQ, 2018-Ohio-3475, 

summarizes the burden and standards regarding ambiguous and overly broad public 

records requests: 

A person may request public records regardless of intended use, including 

use in civil litigation. Gilbert v. Summit Cty., 104 Ohio St.3d 660, 2004-

Ohio-7108, 821 N.E.2d 564. However, the standards required for a proper 

public records request are distinctly different from the standards for civil 

discovery instruments. A public records requester must reasonably identify 

the particular, existing records sought, and any request that is ambiguous 

or overly broad may be denied. R.C. 149.43(B)(2). Thus, a broad

discovery-style demand to conduct an officewide search for records 

containing information relevant to a pending action is often improper when 

submitted as a public records request. State ex rel. Thomas v. Ohio State 

Univ. 71 Ohio St.3d 245, 246, 1994-Ohio-261, 643 N.E.2d 126 (1994),

cited with approval in State ex rel. Shaughnessy v. Cleveland, 149 Ohio 

St.3d 612, 2016-Ohio-8447, 76 N.E.3d 1171, ¶ 10; State ex rel. Thomas v. 

Ohio State Univ. 70 Ohio St. 3d 1438, 638 N.E.2d 1041 (1994). 
Case No. 2021-00262PQ -11- REPORT AND RECOMMENDATION 

Regarding the specificity required of public records requests, R.C. 

149.43(B)(2) provides: 

If a requester makes an ambiguous or overly broad request 

or has difficulty in making a request for copies or inspection 

of public records under this section such that the public 

office or the person responsible for the requested public 

record cannot reasonably identify what public records are 

being requested, the public office or the person responsible 

for the requested public record may deny the request but 

shall provide the requester with an opportunity to revise the 

request by informing the requester of the manner in which 

records are maintained by the public office and accessed in 

the ordinary course of the public office’s or person’s duties. 

Thus, “it 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. Zidonis v. Columbus State Community College, 133 Ohio St.3d 

122, 2012-Ohio-4228, 976 N.E.2d 861, ¶ 21. A public office may deny a 

request that fails to meet this standard. Judicial determination of whether 

the office has properly denied the request is based on the facts and 

circumstances in each case, Zidonis at ¶ 26. 

The courts recognize several ways that a request may be overly broad. 

First, a request for an entire category of records is overly broad and 

unenforceable: 

[A] “records request is not specific merely because it names 

a broad category of records listed within an agency’s 

retention schedule.” * * *. For example, the retention 

schedule for the administrative records of Ohio courts 

includes broad categories like “correspondence and general 

office records,” “employee history and discipline records,” 

“fiscal records,” and “payroll records.” Sup.R. 26.01(F), (J), 

(K), and (M). Requests for each of these record categories 

without any temporal or content-based limitation would likely 

be overbroad even though the categories are so named in 

the schedule. 

Zidonis at ¶ 21, 26. Even with some temporal limitation, a request to 

produce an entire category of records may remain overly broad. Zidonis at 
Case No. 2021-00262PQ -12- REPORT AND RECOMMENDATION 

¶ 21 (all complaint files and litigation files from within six years of when 

files were last active). Fundamentally, 

In identifying records for purposes of presenting a viable 

request, the Public Records Act “does not contemplate that 

any individual has the right to a complete duplication of 

voluminous files kept by government agencies.” 

(Citations omitted.) Id. Accord State ex rel. Dehler v. Spatny, 127 Ohio 

St.3d 312, 2010-Ohio-5711, 939 N.E.2d 831, ¶ 1-3 (prison quartermaster’s 

orders/receipts for clothing for seven years); Strothers v. Keenon, supra, 

at ¶ 29 (all personnel records, without time frame, subject matter, or 

specific employee names); Salemi v. Cleveland Metroparks, 8th Dist. 

Cuyahoga No. 100761, 2014-Ohio-3914, ¶ 26 (checks, agreements, 

meeting minutes, emails, and letters that relate to marketing of golf 

course); State ex rel. McElroy v. Polito, 8th Dist. Cuyahoga No. 77042, 

1999 Ohio App. LEXIS 5683 (November 30, 1999) (marriage license

applications from a specified year, where no collection or index of such 

records existed). 

* * * 

A public records request is also unenforceable if it is too voluminous, 

vague or indefinite to be properly acted on by the records holder. State ex 

rel. Dehler v. Spatny, 11th Dist. No. 2009-T-0075, 2010-Ohio-3052, ¶ 4, 

18, aff’d, 127 Ohio St.3d 312, 2010-Ohio-5711, 939 N.E.2d 831. Such a 

request may be both overly broad and ambiguous at the same time: 

A general request, which asks for everything, is not only 

vague and meaningless, but essentially asks for nothing. At 

the very least, such a request is unenforceable because of 

its overbreadth. At the very best, such a request is not 

sufficiently understandable so that its merit can be properly 

considered. 

State ex rel. Zauderer v. Joseph, 62 Ohio App.3d 752, 756, 577 N.E.2d 

444 (10th Dist.1989) (all traffic accident reports). A request may be denied 

as ambiguous if the public office cannot reasonably identify what public 

records are being requested. R.C. 149.43(B)(2). Indeed, without sufficient 

specificity for a court to order clear terms of compliance with a request, the 

court cannot later enforce alleged non-compliance. 

Id. at ¶ 22-24, 26. 
Case No. 2021-00262PQ -13- REPORT AND RECOMMENDATION 

Remaining April 12, 2021 Requests 

 Request No. 1 

{¶20} Request No. 1 begins with broad language seeking “[d]ocuments reflecting 

the scoring performed by [ODH], as to all Plan Applicants.” (Complaint, Exh. B.) This 

language standing alone as a request would be ambiguous and overly broad. However, 

Paramount named the individual plan applicants in a footnote, and then continued with 

a more specific document request: “including * * * (b) the score cards,” with identification 

of the ODM RFA for which the score cards were used. This embedded request 

reasonably identifies the records sought, as evidenced by ODM’s ability to attest that 

the identical records were provided to Paramount in collateral litigation. (Response, 

Exh. 1 – Garris Aff. at ¶ 4-6.) The special master concludes that Request No. 1 was not 

ambiguous or overly broad. 

Request No. 5 

Documents reflecting ODM internal communications between/among Plan 

Application reviewers/scorers. 

{¶21} Requests No. 5 makes a broad discovery-style request rather than 

reasonably identifying the particular records sought. It is not limited by date range or 

communication format. It does not provide the names or addresses of correspondents. 

It does not exclude personal communications and is not limited to communications 

related to the scoring process. Even if requests identify individual correspondents, a 

request for all correspondence without specifying subject matter may render the request 

overly broad. State ex rel. Glasgow v. Jones, 119 Ohio St.3d 391, 2008-Ohio-4788, 894 

N.E.2d 686, ¶ 17, 19. Compare State ex rel. Kesterson v. Kent State Univ., 156 Ohio 

St.3d 22, 2018-Ohio-5110, 123 N.E.3d 895, ¶ 23-27 (A request for email is not overly 

broad if it is reasonably circumscribed by time period, subject matter, author or 

sender/recipient, and the like). See State ex rel. Bristow v. Baxter, 6th Dist. Erie Nos. E-
Case No. 2021-00262PQ -14- REPORT AND RECOMMENDATION 

17-060, E-17-067, E-17-070, 2018-Ohio-1973, ¶ 11-16; Patton v. Univ. of Akron, Ct. of 

Cl. No. 2017-00820PQ, 2018-Ohio-1555, ¶ 2, 9-10. 

{¶22} The vague phrase “[d]ocuments reflecting” communications sweeps in not 

only the communications themselves, but also any ODM records referencing or 

resulting from the communications in any way. The request is framed in language of 

expansion and research rather than identification and clarity. It requires ODM to comb 

through all office records rather than a reasonably specified location within the office. 

Zidonis at ¶ 21, 26; State ex rel. Dillery v. Icsman, 92 Ohio St.3d 312, 314, 750 N.E.2d 

156 (2001). Accord State ex rel. Chasteen v. Ohio Dept. of Rehab. & Corr., 10th Dist. 

Franklin No. 13-AP-779, 2014-Ohio-1848, ¶ 23-27; Decrane v. Cleveland, Ct. of Cl. No. 

2018-00358PQ, 2018-Ohio-3651, ¶ 1, adopted by DeCrane v. Cleveland, Ct. of Cl. No. 

2018-00358PQ, 2018-Ohio-4363, cited with approval in Barnes v. Cleveland Div. of 

Records Admin., 2021-Ohio-212, 167 N.E.3d 51, ¶ 43 (8th Dist.). The special master 

finds that Request No. 5 is ambiguous, overly broad, and fails to reasonably identify the 

records sought. 

Requests Nos. 8-18 

Documents reflecting communications between ODM and [each plan 

applicant, or “any person or entity who/that was not an Applicant”] related 

to the Procurement Process/Decision 

{¶23} These are again discovery-style requests rather than descriptions 

reasonably identifying particular records sought. They are not limited by date range or 

communication format. They do not exclude personal communications. The vague 

phrase “[d]ocuments reflecting” communications sweeps in not only the communications 

themselves, but also ODM records referencing or resulting from the communications in 

any way. The request is framed in language of expansion and research rather than 

identification and clarity. It requires ODM to comb through all office records that in any 

way “reflecting” communications, e.g., electronic metadata. 
Case No. 2021-00262PQ -15- REPORT AND RECOMMENDATION 

{¶24} These requests impermissibly require ODM to search through all 

communication “between ODM and [named applicants].” Since “ODM” consists of 

thousands of individuals using various work and personal physical addresses, 

telephone numbers, email addresses, and social media, a demand that the department 

search all “communications” of those individuals without narrowing the request by 

particular officers, employees, contractors, and the like; and/or communication format; 

and/or date range; and/or clear topic specification or search terms, is manifestly 

ambiguous and overly broad. Request No. 18 compounds this problem by requesting 

communications between “ODM” and any outside person or entity. A request is 

ambiguous and overly broad when it identifies correspondents only as belonging to 

titles, groups, or categories for which research is required to establish membership. 

State ex rel. Oriana House, Inc. v. Montgomery, 10th Dist. Franklin Nos. 04AP-492, 

04AP-504, 2005-Ohio-3377, ¶ 9, overturned on other grounds, 107 Ohio St.3d 1694, 

2005-Ohio-6763, 840 N.E.2d 201. 

{¶25} The special master finds that Requests Nos. 8-18 are ambiguous, overly 

broad, and fail to reasonably identify the records sought. 

April 19, 2021 Requests 

{¶26} ODM asserts that “[a]ll requests from the April 19, 2021 request have been 

satisfied. See July 15, 2021 Entry,” and asserts no other defense to the requests made 

in the April 19, 2021 letter. (Response at 3.) However, the mediator’s July 15, 2021 

Entry cannot itself waive or determine a claim, and Paramount expressly denies that it 

has stipulated to satisfaction of any April 19, 2021 request. 

{¶27} In this special statutory action, the special master may, sua sponte, 

consider whether a complaint states a claim for which relief may be granted. “Upon the 

recommendation of the special master, the court of claims on its own motion may 

dismiss the complaint at any time.” R.C. 2743.75(D)(2). On review of the letter of April 

19, 2021, each request seeks records created on or after July 1, 2018, in any format, 
Case No. 2021-00262PQ -16- REPORT AND RECOMMENDATION 

that falls into thirteen separately listed categories of records “related to” various 

“problems,” reimbursement of monies in connection with “enrollment or algorithm 

issues,” and “reflecting communications between ODM” and the other applicants 

“related to the enrollment, algorithm, or payment issues referenced in Requests 1, 2, 3, 

and 4.” (Emphasis added.) (Complaint, Exh. H.) 

{¶28} The April 19, 2021 requests seek records covering a period of almost three 

years for records ambiguously described as “related to” various problems, events and 

communications that are in turn ambiguously framed and overly broad in scope. 

Communications between “ODM” and seven applicant entities are requested without 

any individual’s name or address, and unlimited by date range. Request No. 12 even 

more ambiguously requests communications with “any outside consultant or advisor 

related to” certain issues. Request No. 13 requests research to find “all records “related 

to any disciplinary or threatened disciplinary actions against any ODM employee in 

connection with” the same issues, again without names or date range. 

{¶29} By the same analysis applied to April 12, 2021 Requests Nos. 2-18, and 

based on the case law cited in Gupta, supra, the special master finds that the requests 

contained in the letter of April 19, 2021 are improperly ambiguous; overly broad; request 

research; do not describe the records sought with reasonable specificity; and are 

therefore unenforceable. 

Opportunity to Revise an Ambiguous or Overly Broad Request 

 When denying an ambiguous or overly broad request, a public office must 

provide the requester with an opportunity to revise the request by 

informing the requester of the manner in which records are maintained by 

the public office and accessed in the ordinary course of the public office’s 

or person’s duties. 

R.C. 149.43(B)(2). Although ODM promptly advised Paramount that many of the 

requests were overly broad, it had not formally denied all requests prior to litigation. 

Under these circumstances, courts have encouraged parties to persevere to achieve a 
Case No. 2021-00262PQ -17- REPORT AND RECOMMENDATION 

mutually acceptable resolution of currently deficient records requests. See State ex rel. 

Morgan v. Strickland, 121 Ohio St.3d 600, 2009-Ohio-1901, 906 N.E.2d 1105, ¶ 14-19.

The General Assembly provides statutory tools to optimize the scope, speed, format, 

economy, and delivery of public records. See R.C. 149.43(B)(2), (3), (5), (6), (7) and (9). 

To its credit, Paramount demonstrates a willingness to amend requests. (Reply at 7-9.) 

Likewise, ODM has endeavored to satisfy requests that it has found sufficiently specific 

to identify the records sought. The parties are encouraged to cooperate fully in 

negotiating any future revision of these requests. 

Claim of Untimely Production 

{¶30} The Public Records Act requires that a public office “shall make copies of 

the requested public record available to the requester * * * within a reasonable period of 

time.” R.C. 149.43(B)(1). Whether a public office has provided records within a 

reasonable period of time depends upon all the pertinent facts and circumstances of the 

case. State ex rel. Cordell v. Paden, 156 Ohio St.3d 394, 2019-Ohio-1216, 128 N.E.3d 

179, ¶ 11-12. The requester bears the burden of demonstrating that a public office’s 

response was unreasonably delayed. Id. 

{¶31} Paramount states that its requests were time-sensitive in connection with 

its desire to challenge the results of the procurement process. However, the time 

allowed for response to a public records request is generally independent of a 

requester’s intended use of the records. R.C. 149.43(B)(4). Certain public records 

requests, requesters, and records are subject to conditions of special limitation or 

entitlement, but Paramount alleges no such conditions in this matter. 

{¶32} ODM provided numerous responsive records in the roughly three weeks 

between Paramount’s requests and the filing of the complaint. Because the requests 

themselves were numerous, voluminous, diverse, and required legal review, the special 

master finds Paramount has not proven that the period between the requests and 

ODM’s thus-far compliant production of records was an unreasonable period of time 
Case No. 2021-00262PQ -18- REPORT AND RECOMMENDATION 

under the circumstances. See Shaughnessy v. Cleveland, 149 Ohio St.3d 612, 2016-

Ohio-8447, ¶ 3-23; Strothers v. Norton, 131 Ohio St.3d 359, 2012-Ohio-1007, 965 

N.E.2d 282, ¶ 21-23. 

Conclusion 

{¶33} On consideration of the pleadings and attachments, the special master 

recommends the court find respondent provided responsive records rendering seven of 

requester’s claims moot within a reasonable period of time. The special master 

recommends the court dismiss the remaining claims for production as either moot, 

requests for non-records, or ambiguous and/or overly broad and therefore 

unenforceable. It is recommended that costs be assessed to requester. 

{¶34} 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 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 October 14, 2021 

Sent to S.C. Reporter 11/29/21