[Cite as Zamlen-Spotts v. Cleveland State Univ., 2021-Ohio-2704.]

{¶1} Ohio’s Public Records Act, R.C. 149.43, provides that upon request, a public 

office “shall make copies of the requested public record available to the requester at 

cost and within a reasonable period of time.” R.C. 149.43(B)(1). Ohio courts construe 

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. This action 

is filed under R.C. 2743.75, which provides an expeditious and economical procedure to 

enforce alleged violations of R.C. 149.43(B). 

{¶2} On December 28, 2020, requester Judy Zamlen-Spotts made a public 

records request to respondent Cleveland State University (CSU): “C.S.U. conducted a 

survey for our community, the Township of Chesterland [sic].1 I want a copy of the 

returned surveys, etc.” (Complaint at 2-3.) On January 7, 2021, CSU denied the 

request, stating that “such records are intellectual property records which are exempt 

from the Ohio Public Records Act per R.C. 149.43(A)(5). See also Walker v. Ohio State 

Univ. Bd. of Trs., 2010-Ohio-373.” (Complaint at 4.) On February 16, 2021, ZamlenSpotts filed this action pursuant to R.C. 2743.75 alleging denial of access to public 

records in violation 

1 Chesterland, Ohio is a census-designated place, a demographic label that has no legal 

significance. See https://en.wikipedia.org/wiki/Chesterland,_Ohio (Accessed June 29, 2021.) 

JUDY ZAMLEN-SPOTTS 

 Requester 

 v. 

CLEVELAND STATE UNIVERSITY 

 Respondent 

Case No. 2021-00087PQ 

Special Master Jeff Clark 

REPORT AND RECOMMENDATION 
Case No. 2021-00087PQ -2- REPORT AND RECOMMENDATION 

of R.C. 149.43(B). Following unsuccessful mediation, CSU filed a combined response to 

the complaint and motion to dismiss (Response) on May 14, 2021. Zamlen-Spotts filed 

a reply on June 7, 2021. 

Burdens of Proof 

{¶3} Ohio’s Public Records Act (PRA or Act) is construed liberally in favor of 

broad access, and any doubt is resolved in favor of disclosure of public records. State 

ex rel. Cordell v. Paden, 156 Ohio St.3d 394, 2019-Ohio-1216, 128 N.E.3d 179, ¶ 7. In 

an enforcement action under R.C. 2743.75, a requester must establish any public 

records violation by clear and convincing evidence. Hurt v. Liberty Twp., 2017-Ohio7820, 97 N.E.3d 1153, ¶ 27-30 (5th Dist.). 

{¶4} If a public office asserts an exception to the PRA, the burden of proving the 

exception rests on the public office. State ex rel. Cincinnati Enquirer v. Pike Cty. 

Coroner’s Office, 153 Ohio St.3d 63, 2017-Ohio-8988, 101 N.E.3d 396, ¶ 15. 

Exceptions to disclosure under the Act must be strictly construed against the publicrecords custodian, and the custodian bears the burden to establish applicability of the 

exception. State ex rel. Rogers v. Dept. of Rehab. & Corr., 155 Ohio St.3d 545, 2018-

Ohio-5111, 122 N.E.3d 1208, ¶ 7. A custodian does not meet this burden if it has not 

proven that the requested records fall squarely within the exception. Id.; State ex rel. 

Cincinnati Enquirer v. Jones-Kelley, 118 Ohio St.3d 81, 2008-Ohio-1770, 886 N.E.2d 

206, paragraph two of the syllabus. Any doubt should be resolved in favor of disclosure 

of public records. State ex rel. James v. Ohio State Univ., 70 Ohio St.3d 168, 169, 637 

N.E.2d 911 (1994). 

Motion to Dismiss 

{¶5} In construing a motion to dismiss pursuant to Civ.R. 12(B)(6), the court must 

presume that all factual allegations of the complaint are true and make all reasonable 

inferences in favor of the non-moving party. Mitchell v. Lawson Milk Co., 40 Ohio St.3d 

190, 192, 532 N.E.2d 753 (1988). Then, before the court may dismiss the complaint, it 
Case No. 2021-00087PQ -3- REPORT AND RECOMMENDATION 

must appear beyond doubt that plaintiff can prove no set of facts entitling him to 

recovery. O’Brien v. Univ. Community Tenants Union, Inc., 42 Ohio St.2d 242, 245, 327 

N.E.2d 753 (1975). 

{¶6} CSU moves to dismiss the complaint on the ground that the requested 

records are exempt from disclosure as intellectual property records. On consideration of 

CSU’s motion to dismiss, the special master finds the claimed status of the withheld 

documents as intellectual property records is not conclusively shown on the face of the 

complaint and attachments. Moreover, as the matter is now fully briefed the arguments 

to dismiss are subsumed in the arguments to deny the claim on the merits. It is 

therefore recommended that that the motion to dismiss be denied. 

Requester’s Request for Discovery 

{¶7} This is a special statutory proceeding under R.C. 2743.75, which is intended 

to provide an “expeditious” procedure to resolve public records disputes. R.C. 

2743.75(A). To that end, the only required pleadings are the requester’s complaint and 

a combined response to complaint/motion to dismiss from the respondent. R.C. 

2743.75(D)(1) and (E)(2). The special master “shall not permit any discovery” but may 

require additional information or documentation from either party. R.C. 2743.75(E)(3)(a) 

and (c). 

{¶8} On May 21, 2021, the special master ordered Zamlen-Spotts to submit a 

reply pleading, which she filed on June 7, 2021. Although captioned as a “Reply to 

Respondent’s Response to Complaint and Motion to Dismiss,” Zamlen-Spotts made 

only arguments opposing the motion to dismiss. She referred to future development of 

facts and concluded with a request that “the court deny the relief requested in 

Respondent’s Motion to Dismiss and allow this matter to proceed to discovery.” 

Pursuant to R.C. 2743.75(E)(3)(a), Zamlen-Spotts’ request for discovery is DENIED. 

Exception Claimed 
Case No. 2021-00087PQ -4- REPORT AND RECOMMENDATION 

{¶9} CSU asserts that the requested records are “intellectual property records,” 

excepted from public disclosure by R.C. 149.43(A)(1)(m). As used in that statute, 

“Intellectual property record” means a record, other than a financial or 

administrative record, that is produced or collected by or for faculty or staff 

of a state institution of higher learning in the conduct of or as a result of 

study or research on an educational, commercial, scientific, artistic, 

technical, or scholarly issue, regardless of whether the study or research 

was sponsored by the institution alone or in conjunction with a

governmental body or private concern, and that has not been publicly 

released, published, or patented. 

R.C. 149.43(A)(5). CSU must thus show that the individual returned surveys were 1) not 

financial or administrative records, 2) were produced or collected by or for faculty or 

staff of a state institution of higher learning, 3) for one of the listed study or research 

purposes, and 4) have not been publicly released, published, or patented. 

{¶10} CSU asserts that the returned surveys are not financial or administrative 

records, and that CSU is a state institution of higher learning within the meaning of R.C. 

149.43(A)(5). (Response at 4-5.) Zamlen-Spotts does not contest these assertions, and 

they are not otherwise contradicted by the record. The first and second elements of the 

exception are thus established. 

{¶11} CSU next asserts that the returned surveys were collected in the conduct 

of study and research on educational, commercial, and technical issues in conjunction 

with a governmental body, the Chester Township Trustees. (Id. at 5-7.) CSU relies on 

the terms of the Sponsored Research Agreement between CSU’s Center for 

Community Planning and Development and the Trustees (Id., Exh. A) and the affidavit 

of Program Manager Kirby Date (Id., Exh. C) to support this assertion. CSU has filed 

copies of the resulting Chester Township Community Questionnaire Summary Report 

(Id., Exh. B), and the Chester Township Community Questionnaire. (Id., Exh. D.) 

Zamlen-Spotts argues that these records were not collected in the conduct of study or 

research on “an educational, commercial, scientific, artistic, technical, or scholarly 
Case No. 2021-00087PQ -5- REPORT AND RECOMMENDATION 

issue,” but rather in the conduct of study or research on “a civic or governmental issue.” 

(Reply at 2.) 

{¶12} In Walker v. Ohio State Univ. Bd. of Trustees, 10th Dist. Franklin No. 

09AP-748, 2010-Ohio-373, a state university conducted a similar public opinion survey 

to evaluate the direction of civic and governmental planning by a public agency.2 Id. at ¶ 

2-4. The requester in Walker did not dispute that the university survey responses were 

collected in the conduct of “study or research on an educational, commercial, scientific, 

artistic, technical, or scholarly issue,” Id. at ¶ 15. While the Walker court did not rule 

directly on the issue, relator’s acceptance of this factor lends support to CSU’s assertion 

that a survey involving “civic or governmental” issues can fall under one or more of the 

R.C. 149.43(A)(5) study or research issues. 

{¶13} Assessing CSU’s asserted study or research issues in their commonly 

understood meanings, the evidence shows first that the study and research included 

educational issues such as applied learning for the student involved. (Response at 6; 

Exh. A at 1, Exh. C – Date Aff. at ¶ 9-10.) Second, there is no evidence the project 

involved “study or research on a commercial issue” in the common usage of relating to 

commerce, profit, or private business.3 The fact that the University was compensated for 

conducting the research does not mean that the subject of the research itself was “on a 

commercial issue.” Third, the evidence shows that the study involved technical issues of 

special and practical knowledge of community planning and development, as well as the 

techniques used to elicit and compile survey responses. (Response at 5-7; Exh. C – 

Date Aff. at ¶ 1-4, 7, 9, 11, 13-15). CSU has shown by clear and convincing evidence 

2 The Muskingum Water Conservancy District is a public office for the purposes of public records 

litigation. State ex rel. Harper v. Muskingum Watershed Conservancy Dist., 5th Dist. Tuscarawas No. 

2013 AP 06 0024, 2014-Ohio-1222. The District was identified as a political subdivision in Muskingum 

Watershed Conservancy Dis. v. Harper, 5th Dist. Guernsey No. 16 CA 11, 2017-Ohio-1346, ¶ 26-39. 

3 See https://www.merriam-webster.com/dictionary/commercial (Accessed June 29, 2021.) 
Case No. 2021-00087PQ -6- REPORT AND RECOMMENDATION 

that the questionnaire responses were produced or collected as a result of study or 

research on educational and technical issues. 

{¶14} Finally, CSU asserts that the individual handwritten questionnaires were 

not shared with anyone outside the research team and thus were not publicly released, 

published or patented. (Response at 7-9.) Zamlen-Spotts counters that “the data and 

responses inherent in such records were publicly released or published - through the 

report generated by Respondent.” (Reply at 2.) The evidence shows that quantitative 

data from fixed-choice responses to the questionnaire was compiled, analyzed, and 

graphically presented in the summary report. (Response at 8; Exh. C – Date Aff. at 

¶ 11, 13-14; Exh. B.) In Walker, “cumulative tallies of the raw data were presented in a 

written report to the district.” Id. at ¶ 4. The Tenth District declined to find that a written 

report containing processed data constituted public release or publication of the data 

source –paper questionnaire forms. Id. at ¶ 19-21. Zamlen-Spotts cites no case law to 

the contrary. The relevant portions of open-ended responses were transcribed and 

included in the report. (Response at 8; Exh. C – Date Aff. at ¶ 9, 12-14; Exh. B, 

Appendices B and C.) While the responses quoted verbatim were thereby publicly 

released and published, the waiver as to that data does not extend to any other 

information in the paper questionnaires, under the rationale in Walker. 

{¶15} The paper questionnaires contained additional, undisclosed information or 

metadata in the form of handwriting characteristics and grouped demographic data that 

could be used to identify individual respondents. (Response at 3, 8-10; Exh. C – Date 

Aff. at ¶ 6-11, 16-17.) CSU asserts that a standard technique used for community public 

opinion surveys is a promise of confidentiality, which results in more candid participant 

responses. (Response at 7-10; Exh. C – Date Aff. at ¶ 12-13, 19.) Accordingly, the 

survey questionnaire contained no fields for name, address, or other direct personal 

identifiers, and the introduction advised that participants were not being asked for their 

identity. (Response at 7-10; Exh. C – Date Aff. at ¶ 6-11, 16-17; Exh. D.) CSU excluded 
Case No. 2021-00087PQ -7- REPORT AND RECOMMENDATION 

any participant identifiers from the summary report. (Response at 8; Exh. B; Exh. C – 

Date Aff. at ¶ 12.) To be clear, the promise and practice of confidentiality do not 

themselves constitute a public records exception and are significant only as evidence 

that the withheld paper questionnaires have not “been publicly released, published, or 

patented.” 

{¶16} In this case the paper questionnaires were appropriately controlled, 

secured, and shared only among the CSU staff directly connected with the project. 

(Response at 7-9; Exh. C – Date Aff. at ¶ 6-11, 16-17.) They were not shared at any 

stage with Chester Township or the general public. (Response at 8; Exh. C – Date Aff. 

at ¶ 6-10, 12, 16-17.) The special master concludes that the original paper 

questionnaire responses have not been “publicly released, published, or patented” 

within the meaning of R.C. 149.43(A)(5). 

{¶17} CSU separately asserts that survey participants have a personal

“reasonable expectation of privacy” protecting release of their identities. (Response at 

7-9; Exh. C – Date Aff. at ¶ 18.) However, no contractual promise of confidentiality can 

alter the public nature of otherwise public records. State ex rel. Gannett Satellite Info. 

Network, Inc. v. Shirey, 78 Ohio St.3d 400, 403, 678 N.E.2d 557 (1997). Nor has CSU 

identified an existing constitutional right of privacy for persons responding to public 

opinion surveys. The special master concludes that CSU has not shown by clear and 

convincing evidence that the withheld records are subject to any public records 

exception based upon a right of privacy. 

{¶18} The special master finds that CSU has met its burden of proof to show that 

the requested records fall squarely within the definition of intellectual property records 

under R.C. 149.43(A)(5), and properly denied Zamlen-Spott’s request on that basis. 

Conclusion 

{¶19} Upon consideration of the pleadings, affidavit, and attachments, the special 

master recommends the court issue an order denying requester’s claim for disclosure of 
Case No. 2021-00087PQ -8- REPORT AND RECOMMENDATION 

the requested records. It is recommended that costs be assessed to requester. 

{¶20} 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 July 1, 2021 

Sent to S.C. Reporter 8/6/21