[Cite as Jabr v. Disciplinary Counsel , 2021-Ohio-398.]

{¶1} Ohio’s Public Records Act provides that upon request a public o ffice “shall make copies of the requested public record available to the req uester at cost and within a reasonable period of time.” R.C. 149.43(B)(1). Ohio courts co nstrue the Public Records Act liberally in favor of broad access, with any doubt resolved in favor of disclosure of public records. State ex rel. Hogan Lovells U.S., L.L.P. v. Dept. of Rehab.

& Corr ., 156 Ohio St.3d 56, 2018-Ohio-5133, 123 N.E.3d 928, ¶ 12. Thi s action is brought under R.C. 2743.75, which provides an expeditious and e conomical procedure in the Court of Claims to resolve public records disputes. {¶2} On or about December 13, 2019, requester Tareq Jabr made a verb al request of respondent Disciplinary Counsel for “records for Att . John Paris, plus, Att. Tasso Paris, and Judge Patrick Corrigan, and Attorney Kent Mins hall. All these are involved in the same cases of child support, violations, in chi ld support, on Mr. Tareq Jabr.” (Complaint at 1-2; Response at 2; Stone Aff. at ¶ 3.) Th e request was denied. (Complaint at 1; Stone Aff., Exh. 1 at p. 2.) On November 4, 20 20, Senior Assistant Disciplinary Counsel Amy Stone advised Jabr that pursuant to Ru le V, Section 8(A)(1) of the Rules for Government of the Bar, the Disciplinary Counse l would be prohibited from providing records responsive to this request, should any a ctually exist. (Stone Aff., Exh. 1.) {¶3} On October 14, 2020, Jabr filed a complaint under R.C. 2743.75 alleging denial of access to public records in violation of R.C. 149.43( B). The matter was TAREQ R. JABR

Requester

v.

DISCIPLINARY COUNSEL

Respondent Case No. 2020-00596PQ

Special Master Jeff Clark

REPORT AND RECOMMENDATIONCase No. 2020-00596PQ -2- REPORT AND RECOMMENDATION

referred to mediation on October 15, 2020. On November 18, 2020 , Jabr submitted an unsolicited and uncaptioned pleading marked as “Add-on,” includ ing a certificate of service. Although this document does not otherwise fully comply with the Ohio Rules of Civil Procedure, pursuant to Civ.R. 15(E) and R.C. 2743.75(E)(2 ) the special master directs the clerk to accept it for filing. On December 29, 2020 , the court was notified that the parties had not resolved the matter in mediation. On Januar y 7, 202, the Disciplinary Counsel filed its combined response and motion to dismiss (Resp onse) with an

attached affidavit.

Burdens of Proof {¶4} A requester must establish any public records violation by clea r and convincing evidence. Hurt v. Liberty Twp. , 2017-Ohio-7820, 97 N.E.3d 1153, ¶ 27-30 (5th Dist.). At the outset, Jabr bears the “burden of productio n” to plead and prove facts showing that he sought identifiable public records pursuant to R.C. 149.43(B)(1), and that the Disciplinary Counsel did not make those records availa ble. Welsh-Huggins v. Jefferson Cty. Prosecutor’s Office , Slip Opinion No. 2020-Ohio-5371, ¶ 33. {¶5} If a public office withholds an identified record on the basis of a public records exemption, the public office then carries the burden to prove that the record falls squarely within the exemption. Id . at ¶ 35. Exceptions to disclosure must be strictly construed against the public-records custodian. State ex rel. Rogers v. Dept. of Rehab.

& Corr ., 155 Ohio St.3d 545, 2018-Ohio-5111, 122 N.E.3d 1208, ¶ 7.

Motion to Dismiss {¶6} Civ.R. 12(B)(1) permits dismissal where the trial court lacks j urisdiction over the subject matter of the litigation. Disciplinary Counsel asse rts that the Court of Claims lacks subject matter jurisdiction over denial of public access to its records because they are governed by the Rules of Superintendence for the Courts of Ohio rather than by the

Ohio Public Records Act. Rules of Superintendence for the Courts of OhioCase No. 2020-00596PQ -3- REPORT AND RECOMMENDATION

{¶7} The Ohio Public Records Act, R.C. 149.43, applies to most publi c offices, and the public records access program in this court applies to disputes alleging a denial of access to public records by those offices “in violation of d ivision (B) of section 149.43 of the Revised Code.” R.C. 2743.75(A), (C)(1), (F)(3), and (G)( 2). However, access to records of the Ohio Supreme Court, courts of appeal, courts of common pleas, municipal courts, and county courts is governed instead by the Rules of Superintendence for the Courts of Ohio (Sup.R. or Rules). The R ules “set forth the process that the public must utilize to obtain records held by the judicial branch.” State ex rel. Parisi v. Dayton Bar Assn. Certified Griev. Comm ., 159 Ohio St.3d 211, 2019- Ohio-5157, 150 N.E.3d 43, ¶ 17; Sup.R. 1(A), 44, 45(B), 47(A)(1 ). The Rules of Superintendence are the “sole vehicle” for obtaining public rec ords from the courts specified therein. State ex rel. Husband v. Shanahan , 157 Ohio St.3d 148, 2019-Ohio1853, 133 N.E.3d 467, ¶ 5. {¶8} While not a court per se , the Office of the Disciplinary Counsel is an integral arm of the Ohio Supreme Court. The Supreme Court has found acco rdingly that attorney-discipline records prepared for it by the Disciplinary Counsel are subject to the Rules of Superintendence. In Parisi, the requester sought attorney-discipline records from a grievance committee certified by the Board of Profession al Conduct of the Supreme Court. Parisi at ¶ 13, 24-25. The Court was presented with the question of whether the Rules, or the Public Records Act, applied to such a request: Attorney-discipline matters are decided exclusively by this cou rt, as we have original jurisdiction over the discipline of persons admit ted to the bar and all other matters relating to the practice of law. See Arti cle IV, Section 2(B)(1)(g), Ohio Constitution. And through the Supreme Court Ru les for the Government of the Bar of Ohio, this court created the Offic e of Disciplinary Counsel and the Board of Professional Conduct and authorized the board to certify grievance committees to aid us in managing attorney discipline throughout the state. See Gov.Bar R. V(1)(A) and (D) (“[t]here shall be a Board of Professional Conduct of t he Supreme Court” consisting of 28 commissioners appointed by this court); Gov.Bar R. V(4)(A) (the board, with the approval of the Supreme Court, shallCase No. 2020-00596PQ -4- REPORT AND RECOMMENDATION

appoint disciplinary counsel); Gov.Bar R. V(5)(B) (the board ma y certify a grievance committee to investigate allegations of attorney misc onduct).

While these entities, especially the certified grievance commit tees, function somewhat independently from this court, the documents prepared and created in attorney-discipline cases by or for these entiti es must be considered records of this court for purposes of disclosure. Th at is because this court is the ultimate arbiter of attorney discipli ne, Cincinnati Bar Assn. v. Powers , 119 Ohio St.3d 473, 2008-Ohio-4785, 895 N.E.2d 172, ¶ 21, and we have the unique and complete responsibility, as designated by Article IV, Sections 2(B)(1)(g) and 5(B) of the O hio Constitution, to regulate all matters related to the practice o f law. Therefore, any documents prepared in attorney-discipline cases, like those requested by Parisi, may be sought only through a request made pursuant to Sup.R. 44 through 47. (Citations omitted.)

Id . at ¶ 25-26. Jabr made his request, and seeks relief, under R. C. 149.43. (Complaint at 2.) The documents sought by Jabr, which if they exist were p repared in attorney- or jurist-discipline cases, may be sought only through a request m ade pursuant to Sup.R. 44 through 47. {¶9} Even were Jabr’s request construed as made pursuant to Sup.R. 4 4 through 47, this court would lack jurisdiction. The Ohio Court of Claim s is a court of limited jurisdiction. Patriot Water Treatment, LLC v. Ohio Dept. of Natural Res ., 10th Dist. Franklin No. 13AP-370, 2013-Ohio-5398, ¶ 30. The remedy for a p erson aggrieved by a failure to comply with the requirements of Sup.R. 44 through 47 is through an action in mandamus under R.C. Chapter 2731. Sup.R. 47(B). Courts authoriz ed to issue writs of mandamus include the Supreme Court, courts of appeals, and cour ts of common pleas.

R.C. 2731.02. The Court of Claim s thus lacks original jurisdict ion to adjudicate a mandamus action to enforce violation of Sup.R. 44-47.

Conclusion {¶10} Upon consideration of the pleadings and attachments, the specia l master recommends the court find that the court lacks jurisdiction ove r the subject matter ofCase No. 2020-00596PQ -5- REPORT AND RECOMMENDATION

requester’s claim and grant t he motion to dismiss. It is recomm ended that court costs be assessed to requester. {¶11} 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 Maste r

Filed January 26, 2021 Sent to S.C. Reporter 2/12/21