[Cite as Reigert v. State of Ohio Med. Bd. , 2023
- Ohio
- 1172.]

IN T HE COURT OF CLAIMS OF OHIO

{¶1} Th is matter is before the Special Master f or a report and recommendation on Requester’s amended complaint and the “ Requestor Motion for Court R eview in Camera of SMBO Investigation of Case 2020

- 8005 ,” filed March 1 4 , 2023 (“ Motion for In Camera Review ”). The Special Master recommends that :

- Respon dent be ordered to produce to Req uester the records copied at pp. 6

- 38 o f Respondent’s Submissions for In Camera Review , filed March 16, 2023 , that Requester recover his filing fees and other costs of th is case, but that he be denied the other relief sough t in his amended complaint.

- The Motion for In Camera Review be denied. I. BACKGROUND {¶2} Requester John Reigert’s daughter tragically died of cancer

. Mr. Riegert contends that her treating physician did a substandard and filed a complaint with th e State Medical Board of Ohio (“the Board”), the Respondent here

. The Board opened a case concerning the alleg ations, but took no action against the physician

. Mr. Reigert sought to explore the Board’s handling of the matter with a public record s request

. He filed thi s
case because he did not receive a response. Complaint , filed October 25, 2022 , p. 2 ; 1 Requestor’s Evidence , filed February 17, 2023, at p. 17

.

1 All references to spe cific pages of matters filed in this case are to pages of the PDF copies p o sted o n the Court’s docket, rather than to any internal pagination of the fil ing s. JOHN REIGERT Requester

v. STATE OF OHIO MEDICAL BOARD Respondent Case No. 2022

- 00750PQ Special Master Todd Marti
REPORT AND RECOMMENDATIONCase No. 2 022

- 00750PQ

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- REPORT AND RECOMMENDATION

{¶3} Mr. Reigert made additional public records req uest s after t his case was filed. The Board denied those requests , provid ing bases for its denials. Combined Response to Complaint and Motion to Dismiss, filed February 13, 2023 (“ MTD”) , pp. 15

- 46

. {¶4} Mr. Reigert was given leave to amend his complaint and did so

. Order , e ntered December 30, 2022; Amended Complaint , filed J anuary 10, 2023. The claims alle ged in his Amended C omplaint supersede those in his original complaint, Morris v. Morris , 189 Ohio App.3d 608, 2010

- Ohio

- 4750, 939 N.E.2d 928 (10th Dist.) , ¶ 32, and focus on five specific public records requests made in No vember and December of 2022. Thos e requests are discussed in more detail below

. Those claims were mediated but not resolved. {¶5} The Special M aster ordered the parties to file all evidence they rely on in
su pport of their positions and set a briefing schedule

. He also ordered the Board to f ile the records responsive to Mr. Reigert’s requests but purportedly exempted from disclosure under seal for in camera review

. Order , entered February 9, 2023 ; Order , ent ered March 10, 2023. The parties have filed their e vidence and memoranda , the disput ed records have been filed for in camera review, and the case is ripe for decision. {¶6} Mr. Reigert filed his Motion for In Camera Review a fter briefing closed

. II. ANALYSIS

. A. Mr . Reigert is not entitled to relief on his first req u est because it seeks information r ather than records

. Mr. Reigert’s first request, and the Board’s response , are as follows:
Provide the name of the Investigator for case 2020

- 8005, his/her years of expe rience with the Board, qualifications and immediate p rior employment. Response: There a re no responsive public records. Complaints and/or investigative materials about a Medical Board licensee or applicant that may exist are not public record under Section s 4731.22(F)(5), 149.43(A)(1)(h), and 149.43(A)(1)(v ) , Ohio Revised Code. Amended Com p l aint , pp. 2

- 3; Requestor’s Evidence , p. 17; MTD, pp. 15

- 16, ¶ 8, p. 26. {¶7} The Board makes three arguments as to why no relief is available on this request : because it seek s information rather than records, because any respo n siveCase No. 2 022

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- REPORT AND RECOMMENDATION

records would disclose info r m ation made confidential by R.C. 4731.22(F)(5) , and because the responsive records are confidential law enforcement investigatory records within the meaning of R.C. 149.4 3(A)(1)(h) and (2). The first argument is well take n and eliminates the need to addr e s s the second third argument s

. State ex rel. Griffin v. Sehlmeyer

, 167 Ohio St.3d 566, 2022

- Ohio

- 2189, 195 N.E.3d 130, ¶ 12 ( “ Because we agree with Sehlmeyer that Griffi n ’ s request sought information rather than recor ds, a nd because a request for informa t i on is not a proper records request, we need not consider her other arguments ”). {¶8} “There can be no cause of action based on failure of a public office to provide records i n accordance with R.C. 149.43(B), without a prop er r e quest having been made [.]” Fran k v. Upper Arlington Schools , Ct. of Cl. No. 2017

- 00841

- PQ, 2018

- Ohio

- 1554, ¶ 17 (emphasis added)

. A request is not “ proper ,” and hence cannot support a claim under R.C. 149.43(B), if it seeks information instead of a reco r d that documents the information

. That is established by statutory text and case law

. {¶9} R.C. 149.43(B)(1) codifies a right to records that capture informatio n, but not to information apart from records

. It nowhere mentions information in the abstract. I t instead provides that upon “ req u e st *** public records responsive to the request shall be

*** made available [.]” (emphasis added). A “public record” consists of a “record , ” and a

“ record ” is something that contains information, but i s different than the information itself

. It is a “ do c u ment, device, or item ” recording information. R.C. 149.011(G). R.C. 149.43(B)(1) therefore does not direct offices to provide free floating information , but only docume nt s , device s , or item s c ontain ing information. {¶10} The c a ses reflect th e distinction. Rel i e f is denied when the claimant

“ requested information rather than records ” State ex rel. Griffin v. Sehlmeyer , 167 Ohio St.3d 566, 2022

- Ohio

- 2189, 195 N.E.3d 130, ¶ 1 bec ause r equests “ for information *** are improper requ e sts under R.C. 149.43 .” State ex r el. Morgan v. City of New Lexington , 112 Ohio St.3d 33, 2006

- Ohio

- 6365, 857 N.E.2d 1208, ¶ 30 . See also Griffin , 167 Ohio St.3d 56 6 at ¶¶ 10

- 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. Sehlmeyer , 166 Ohio St.3d 258, 2021

- Ohio

- 3624, 185 N.E.3d 58, ¶ ¶ 5

- 6; State ex rel. Rittner v. Dir., Fulton Cty.Case No. 2 022

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Emerge ncy Med. Servs ., 6th Dist. Fulton No. F

- 10

- 020, 2010

- Ohio

- 4055, ¶ 2 ; State ex rel. Fant v. T

ober , 8th Dist. Cuyahoga No. 637 3 7 , 1993 Ohio App. LEXIS 2591, at * *2

- 4 (Apr. 28, 1993) , aff’d , 68 Ohio St.3d 117, 623 N.E.2d 1201 (1993) (denying relief because claimant’s request did “ not indicate what records [he] would like to examine as much as what i nformation he would like to rece i v e ”). {¶11} Mr. Reigert’s first request seeks information: “ the name the Investigator for case 2020

- 8005, his/her years of exp erience with the Board, qualifications and immedi ate prior employment .” Other courts have held that s i milar requests are for informati o n rather than records

. Griffin , 166 Ohio St.3d 258, ¶¶ 2, 5

- 6 (names) ; State ex rel. Lanham v. State Adult Parole Auth ., 80 Ohio St.3d 425, 427, 687 N.E.2d 283 (1997) (qu a lifications) ; State ex rel. McElrath v. City of Cle v eland , 2018

- Ohio

- 1753, 111 N.E.3 d 685, ¶ 1 8 (8th Dist.) ; Fant , 1993 Ohio App. LEXIS 2591, at **2

- 4 (names); State ex rel. Morabito v. City of Cleveland

, 8th Dist. Cuyahoga No. 98829, 2012

- Ohio

- 6012, ¶ ¶ 7 , 14 (names)

. See also, State ex rel. Carrion v. Nun e z , 8th Dist. Cuyahoga No. 91910, 2 009

- Ohio

- 3376, ¶ 13 . Mr. Riegert is therefore entitle d to no relief on his first request.
B. Mr. Reigert is not entitled to records pursuant to his second request because he has not proven that responsive records exist.

Mr

. Riegert’s second request, and t h e Board’s responses , are: Provide all records that id entify all consultants that contributed to the Standards Review of case 2020

- 8005. Response: There are no responsiv e public records. This information relating to standa r ds review that may exist are not p ublic record under Sections 4731.22(0), 4731.22(F)(5) , 149.43(A)(1)(h), and 149.43(A) (1)(v), Ohio Revised Code. Amende d Complaint , p. 4 ; Requestor’s Evidence , p. 17; M TD , p. 16 , ¶ 12 , p. 38

. {¶12} A party suing for public recor d s must “prove facts showing that t he requester sought an identifiable public record pur suant to R.C. 149.43(B)(1) and that the public office *** did not make the record available.” Welsh

- Huggins v. Jef ferson Cty. Prosecutor ’ s Office , 163 Ohio St.3d 337, 2 020

- Ohio

- 5371, 170 N.E.3d 768 , ¶ 3 3. That party must also prove that responsive record s exist if the public office submits evidence disputing their existence. State ex rel. McCaffrey v. Mahoning Cty. Pr osecutor’s Office ,Case No. 2 022

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133 Ohi o St.3d 139, 2012

- Ohio

- 42 4 6, 976 N.E.2d 877, ¶ ¶ 22

- 26; Sta t e ex rel. Gooden v. Kagel , 138 Ohio St. 3d 343 , 2014

- Ohio

- 869, 6 N.E.3d 1170, ¶ 8

. {¶13} The Board initially asserted that no responsive records existed when it first responded to this request. It ratified that assertion in an a ffidavit submitted in its respon s e Mr. Reigert’s complaint. MTD , p. 16, ¶12, p. 38

. Mr. Reigert provided no evidence rebutting the Board’s assertion on this point

. This claim therefore fails for want of proof.
C. Mr. Reigert is entitled to the records res p onsive to his third request. Mr

. Riegert’s third request, and the Board’s resp onses are: Provide all records that identify all employees of [the Board] that contributed to the Standards Review of case 2 020

- 8005 and the medical qualifications of each. Re s ponse: There are no responsive p u b lic records. This information relating to sta ndards review that may exist are not public record under Sections 4731.22(0), 4731.22(F)( 5 ), 149.43(A)(1)(h), and 149.43(A)( 1 )(v), Ohio Revised Code. Amended Complaint , p. 4 ; R e questor’s Evidence , p. 17; MTD , p

. 16 , ¶ 12 , p. 38

. {¶14} The Board makes two argument s as to why no relief is available on this request: because any responsive records would disclose information made confidenti al by R.C. 4731.22(F)(5), and because the responsiv e records are confidential law
en f o rcement investigatory records (“CLIER”) withi n the meaning of R.C. 149.43(A)(1)(h) and (2). Both arguments fail for want of proof. {¶15} A public office asserting an exemptio n from its general duty to provide access to public records bears “the burden of pro d u ction *** to *** prove facts clearly establishing the applicability of the exemption. ” Welsh

- Huggins , 163 Ohio St.3d 337 , ¶ 27 (internal punctuation omitted ). See also, i d . at ¶¶ 35, 54. That burden must be carried with “ competent, admissible evidence [

. ] ” Id . at ¶¶ 53, 77

. “ Unsupported co nclusory statements in an affidavit are insufficient. ” Id . at ¶ 35. {¶16} Courts determine whether an office has met that burden by co nducting “ an individualized scrutiny of the records in ques tion .” Id . at ¶ 29. That usual ly requires in
camera review of the di sputed records. State ex rel. Natl. Broadcasting Co. v. City of Cleveland

, 38 Ohio St.3d 79, 85, 526 N.E.2d 786 (1988) ; State e x rel. Master v. City of Cleveland

, 75 Ohio St.3d 23, 31, 6 61 N.E.2d 180 (1996) ; State ex re l . Besser v. OhioCase No. 2 022

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State Univ. , 87 Oh io St.3d 535, 541

- 542, 721 N.E.2d 1044 (2000)

. The public office must produce extrinsic evidence supporting the exemption if it s applicability is “ not obviously apparent and manifes t jus t from the content of the recor d i tself [.]” Welsh

- Huggins , 163 Ohio S t.3d 337 , ¶ 35. See also id . at ¶¶ 30, 50, 53. {¶17} The public office must make a strong showing. It “ does not meet this burden if it has not proven that the requested records fall square ly wi thin the exception ,” and the
co ur t s “ resolve any doubt in favor of di sclosure. ” Id . at ¶¶ 27, 63 See also id . at ¶¶ 50, 63. Given that, “it i s not enough to say that a record is probably wit hin a statutorily prescribed exemption [.]” Id

. at ¶ 63 (emph asis sic.). {¶18} The Board has filed the re c ords responsive to this request for in camera review. Respondent’s Submissions for In Camera Review , filed March 16, 2023, p. 3, ¶ 6 ; pp. 6

- 38. It has not supplemented them with extrinsic evidence. The ir status must ther efore be determined from the face of the records themselve s. {¶19} The B oard has not show n that the responsive records are exempted from disclosure by R.C. 4731.22(F)(5 )

. That statute shields “ information received by the board pursuan t to an investigation ” and “ the names or any ot her identifyi ng information about pati ents or complainants [.] ” The Courts have expanded it to also protect patient records, State Med. Bd. of Ohio v. Miller , 44 Ohio St.3d 136, 141 , 541 N.E.2d 602 (1989) ; “ph ysicians who are under inve stigation, investiga tion witnesse s, and any other persons whose confidentiality right is implicated by a Medical Board investigation .” State ex rel. Wallace v. State Med. Bd ., 89 Ohio S t.3d 431, 43 5 , 732 N.E.2d 960 (2000)

. {¶20} The responsive records meet non e of those criteria. They are pe rsonnel records unrelated to any investigation, so they do not contain information received by pursuant to an investigation

. They do not con tain patient records or provide any information about p atients, complainants , phys icians under investi gation , witne sses, or any other person s whose confidentiality right is implicated by a n investigation. They are outside the scope of R.C. 473 1.22(F)(5). {¶21} Nor has the Board shown that the records are protected by the CL EI R exemption

. Tha t “ exe mption requires, first, th a t the rec ords pertain to a law enforcement matter of a criminal, quasi

- criminal, civil, or administrative nature, and, second, that theCase No. 2 022

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rel ease of the records would create a high pr obability of disclosure of any of the four types of information specified i n R.C. 14 9.43(A)(2). ” State ex rel. Ohio Patrolmen ’ s Benevolent Assn. v. City of Mentor , 89 Ohio St.3d 440, 444, 732 N. E.2d 969 (2000)

. {¶22} T he Board has not met either of those requi rements. The responsive records are perso nnel r ecords that do not address any inves tigation and “ records are not confidential law

- enforcement records if they relate to employment or personnel mat ters rather than d irectly to the enforcement of law

. ” State ex rel. Morgan v. City of New Lexington , 112 Oh io St.3d 33, 2006

- Ohio

- 636 5 , 857 N.E .2d 1208, ¶ 49

. Nor do they contain any of the types of information listed in R.C. 149.43(A)(2)(a) through (d); t hey do not menti on suspects, confidential information/sour ces, investigatory matters , or anything th at wou ld endanger law enforcemen t personne l. {¶23} That is not changed by the Board’s argument that any response to this request would necessarily disclose that a particular phy sician was under investigation because the request is tied to a specific case

. Prec edent cuts against such a catego r ical appr oach. State ex rel. Rocker v. Guernsey Cty. Sheriff ’ s Off ice , 126 Ohio St.3d 224, 2010

- Ohio

- 3288, 932 N.E.2d 327 and Narciso v. Po well Police Dept. , Ct. of Cl. No. 2018

- 011 95PQ, 2018

- Ohio

- 4590 both involved request s that targeted particular case f iles, and the responses would necessarily confirm the existence of the investigations, but the courts nonetheless rejected complete withholding s. Instead, they required production and only allowed tailored redactions. Roc ker , 1 26 Ohio St.3d 224 , ¶¶ 12

- 1 4 ; Narciso , 2018

- Ohio

- 4590 , ¶¶ 28

- 30. This would be a particularly poor ca se to deviate from those precedents because nothing in the records at issue hints at the identity the docto r who was the subject of the case inquired of , o r even of the case itself. {¶24} In sum, the Special Master finds that the Board violated R.C. 149.43(B) b y denying Mr. Reigert access to the records responsive to his third r equest, as filed with the Court at pp. 6

- 38 of Respondent’s Submissions for In C amera Review

. The Special Maste r therefor e recommends that the Court order the Board to produce those records to Mr. Reigert pursuant to R.C. 2743.75(F) (2)(a).

D. Mr. Reigert has dismissed his claims based on his f ourth request.Case No. 2 022

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{¶25} See “ Requester’s Response to Resp ondent’s Combined Response to Compla int and Motion to Dismiss ,” filed March 14, 2023 (“ Requester’s Response ”) , at p. 2.
E. Mr. Reigert is not entitled to relief based on his fifth request

. Mr. Reigert’s fifth request, and the Board’s response, are as f ollow s: Provide the Medical Boa r d intervi ew of expert cancer pathologist Dr. Dhir regarding his report/evidence that Lori Ann Reigert ’ s cancer was misdiagnosed by Dr. Mark Barce lo and that he was grossly negligent and failed the minimal standards of medica l car e, violating ORC 4731.22(B ) (6). Resp onse: There are no responsive public records. Complaint s and/or investigative materials about a Medical Board licensee or applicant that may exist are not public record und er Sections 4731.22(F)(5), 149.43(A)(1)(h), and 149.43(A)(1)(v), Ohio Revi s ed Code. Amended Complaint , p. 7 ; Requestor’s Evidence , p. 17; M TD, pp. 15

- 16, ¶ 8, p. 2 7

. {¶26} Mr. Reigert has acknowledged that no responsive recor ds exist and has dismissed his claim for production based on this request. Ame nded Complaint , p. 7; Requestor ’ s Evidenc e , p. 17; Requester’s Response , pp. 2

- 3, 18

- 19. {¶27} Mr. Reigert has however asked the Court to rule that the Board violated R.C. 149.43( B)(1) by “ denying a public record re quest by the content of the record request and
n ot by its discovery and re v iew of th e actual record

. ” Id

. The Spec ial Master reads that as asserting that the Board misled Mr. Reigert and violated R.C. 149.43(B)(1) by as serting that a non - existent record would be covered by exemptions from the gen eral duty of production

. See A m ended Com plaint , p. 7 (“ In other words, Mr. Katko denied a SMBO public records request and claimed confidentiality of a record *** that he never f ound because it never existed ”). T h is claim fails for two reasons. {¶28} Factually , the Board did not hide the ba l l about t he lack of responsive records. It expressly stated that there “are no responsive public records .” While the Board’s belt and suspenders approach of asserting possible exce ptions somewhat obscure d that fact , Mr. Rei gert ’ s acknowledgement that he k new that no records existed shows that he was not misled.Case No. 2 022

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{¶29} Legally, nothing in R.C. 149.43(B)(1) prohibits, or even speaks to, the matters Mr. Reige rt challenges here. It address es the way existing records are to be
ma de avail able. It says nothing abo u t how an office is to address requests for non

existent records , so its hard to see any violation of this statute. F. The Board has not violated R.C. 14 9.43(B)(3). Mr. Reigert also c laims that the Board violated R.C. 149.43 (B )(2) with regard to his first, s econd and third requests because its denial s of those requests were supposedly not accompanied by explanation s and legal authority. Amended Complaint , p. 4. That claim fails as a ma tter of fact. The face of Mr. Reig ert’s co mplai nt shows that the Board di d explain its denials and did cite legal authority. Amended Complaint , pp. 3

- 4; 6

- 7; Requestor’s Evidence , p. 17

. G. Mr. Reigert is entitled to recover his filing fees and the costs o f this action

. {¶30} R.C. 2743.75(F)(3)(b) entit les a requester to recover his f iling fee s and costs if the Court determines that the respondent violated R.C. 149.43(B). The Special Master has determined that the Board violated R .C. 149.43(B) by denying Mr. Re igert access t o the records responsive to h is th ird request. That entitle s Mr. R eigert to recover his filing fees and any other costs associated with this action except for attorney fees. H. The Motion for In Camera Review should be denied. {¶31} The Special Mast er recommends t hat Mr. Reigert’s Motion for In C amera Review be denied as u ntimel y. The Special Master set specific deadlines for identifying the evidence each party will rely on and has held the parties to those deadline s, absent consent by the opposing party. Order , entered February 9, 2023, at ¶¶ (A ) and (B)(5) and (6); O rde r

, ente red March 3, 2023; Objection to motion for Extension of Time , filed March 8, 2023; Order

, entered March 10, 2023 at ¶ (A). To the extent tha t the Motion for In Camera Review seeks to put more evidence before the Court in s upport of Mr. Reigert’s cl a ims, i t comes after those deadlines and without the Board’s consent. III. Conclusion

. {¶32} In light of the foregoing the Special Master Recommends that:

- Re spondent be ordered to produce to Requester the records copied at pp. 6

- 38 of

“ Res pondent’s Submissions for I n Came ra Review, ” filed March 16, 2023 , thatCase No. 2 022

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Requester recover his filing fees and other costs of this case, but that he be denied the other reli ef sought in his amended complaint.

- The Motion for In Camera Review be denied

. {¶33} P ursuant to R.C. 2743.75(F) ( 2), ei ther par

ty may file a written objection with the clerk of the Court of Claims of Ohio within seven (7) business days after receiving this rep ort and recommendation. Any object ion shall be specific and state with particu lari ty all grounds for the obj

e ction. A party shall not assign as error on appeal the court’s adoption of any factual findings or legal conclusions in th is report and recommendat ion unless a timely objection was filed thereto. R.C. 2743.75(G)(1).

TO DD M ARTI Special Master

Fil ed March 23 , 2023 Sent to S.C. Reporter 4/ 7 /23