[Cite as Cobb v. Summit Cty. Prosecutor , 2020-Ohio-636.]

{¶1} The Public Records Act, R.C. 149.43, provides that upon request , a public office “shall make copies of the requested public record availa ble 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. “‘T he Public Records Act serves a laudable purpose by ensuring that governme ntal functions are not conducted behind a shroud of secrecy.’” (Citation omitted.) State ex rel. ESPN, Inc. v.

Ohio State Univ. , 132 Ohio St.3d 212, 2012-Ohio-2690, 970 N.E.2d 939, ¶ 40. {¶2} On March 4, 2019, requester Cindee Cobb made a request to respo ndent Office of the Summit County Prosecutor (Prosecutor’s Office) fo r The initial offense and incident report: all follow-up reports; all witness statements; autopst [sic] and coroner reports; all investigatio n notes about witness statements; and all reports/results of any forensic or scientific tests related to the death of Ashley Biggs in Summit County, Oh io, on 6/21/2012

(Complaint at 2.) Other than verbal acknowledgement that the re quest had been received, Cobb received no records or other response from the P rosecutor’s Office prior to filing this action. ( Id . at 3.) Cobb was provided with a copy of the requested “initia l CINDEE COBB

Requester

v.

OFFICE OF THE SUMMIT COUNTY PROSECUTOR

Respondent Case No. 2019-00597PQ

Special Master Jeff Clark

REPORT AND RECOMMENDATIONCase No. 2019-00597PQ -2- REPORT AND RECOMMENDATION

offense and incident report * * * related to the death of Ashle y Biggs” by the New Franklin Police Department prior to filing her complaint agains t the Prosecutor’s Office. (Reply at 2.) See Cobb v. New Franklin Police Department , Ct. of Cl. No. 2019- 00435PQ. On April 1, 2019, Cobb filed a complaint pursuant to R .C. 2743.75 alleging denial of access to public records by the Prosecutor’s Office i n violation of R.C. 149.43(B). Following unsuccessful mediation, the Prosecutor’s O ffice filed a motion to dismiss (Response) on December 17, 2019. Cobb filed a reply on January 21, 2020. {¶3} R.C. 2743.75 provides “an expeditious and economical procedure” to resolve public records disputes in the Court of Claims. A claim under R.C. 2743.75 to enforce the Public Records Act must be established by clear and convincing evidence. Hurt v. Liberty Twp ., 2017-Ohio-7820, 97 N.E.3d 1153, ¶ 27-30 (5th Dist.). However , if the public office asserts that an exception applies, “[e]xcepti ons to disclosure under the Public Records Act, R.C. 149.43, are strictly construed against the public-records custodian, and the custodian has the burden to establish the ap plicability of an exception. A custodian does not meet this burden if it has not proven that the requested records fall squarely within the exception.” State ex rel. Cincinnati Enquirer v. JonesKelley , 118 Ohio St.3d 81, 2008-Ohio-1770, 886 N.E.2d 206, paragraph two of the syllabus. Any doubt as to an exception should be resolved in fa vor of disclosure. State

ex rel. James v. Ohio State Univ. , 70 Ohio St.3d 168, 169, 637 N.E.2d 911 (1994).

Motion to Dismiss {¶4} In order to dismiss a complaint for failure to state a claim up on which relief can be granted, it must appear beyond doubt that the claimant c an prove no set of facts warranting relief after all factual allegations of the complain t 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 the re is a set of facts consistent with the complaint that would allow the cla imant to recover, dismissalCase No. 2019-00597PQ -3- REPORT AND RECOMMENDATION

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. {¶5} The Prosecutor’s Office asserts that Cobb has failed to state a claim upon which relief can be granted because the requested records are e xempt as confidential law enforcement investigatory records (CLEIRs). On review, I fi nd that the facts required to support the application of the CLEIRs exceptions are not sho wn on the face of the complaint and attachments. I therefore recommend that the motio n to dismiss based on CLEIRs be denied, and Cobb’s claim for production of records be determined on the

merits. Confidential Law Enforcement Investigatory Records (CLEIRs) Exception {¶6} Under R.C. 149.43(A)(1)(h), “public record” does not include co nfidential law enforcement investigatory records (CLEIRs). R.C. 149.43(A)(2) c odifies the CLEIRs exceptions claimed by the Prosecutor’s Office as follows: (2) “Confidential law enforcement investigatory record” means a ny record that pertains to a law enforcement matter of a criminal, quasi- criminal, civil, or administrative nature, but only to the extent that th e release of the record would create a high probability of disclosure of any of the following: (a) The identity of a suspect who has not been charged with the offense to which the record pertains, * * *;

* * * (c) Specific confidential investigatory techniques or procedure s or specific investigatory work product; (d) Information that would endanger the life or physical safety of law enforcement personnel, a crime victim, a witness, or a confiden tial information source. Application of the CLEIRs exception involves a two-part test; f irst, whether a record “pertains to a law enforcement matter” of a criminal, quasi-cri minal, civil, or administrative nature, and second, whether release of the recor d would create a high probability of disclosure of information detailed in subdivisio ns (2)(a) through (d). StateCase No. 2019-00597PQ -4- REPORT AND RECOMMENDATION

ex rel. Miller v. Ohio State Highway Patrol , 136 Ohio St.3d 350, 2013-Ohio-3720, 995 N.E.2d 1175, ¶ 25. None of the second-part exceptions in R.C. 1 49.43(A)(2)(a) through (d) apply unless the records first “pertain to a law enforcemen t matter.” State ex rel.

Beacon Journal Publ. Co. v. Maurer , 91 Ohio St.3d 54, 56-57, 741 N.E.2d 511 (2001). With One Exception, The Requested Records Pertain to a Law Enforcement Matter of a Criminal Nature {¶7} A record “pertains to a law enforcement matter of a criminal na ture” if it arises from suspicion by an agency with authority to investigat e of the violation of a

criminal law. State ex rel. Cincinnati Enquirer v. Ohio Dept. of Pub. Safety, 148 Ohio St.3d 433, 2016-Ohio-7987, 71 N.E.3d 258, ¶ 39. The Summit Coun ty Prosecuting Attorney is a law enforcement officer with authority to investi gate and prosecute criminal laws. R.C. 2901.01(A)(11)(h); R.C. 309.08(A). The investigation in this case arose from suspicion that a person or persons had committed criminal offen ses related to the death of Ashley Biggs on June 21, 2012. (Response, LoPrinzi Aff. at ¶ 3-5, 15.) I find that the withheld records of the investigation “pertain to a law enforce ment matter of a criminal nature” – for all but one requested record: the initial inciden t and offense report. {¶8} Incident reports initiate criminal investigations, but are not part of the investigation. Incident reports are thus not confidential law e nforcement investigatory records, and are public records subject to immediate release up on request. Maurer at 56; Steckman v. Jackson , 70 Ohio St.3d 420, 639 N.E.2d 83 (1994), paragraph five of the syllabus. The incident report kept by the Prosecutor’s Offi ce is therefore a public record that was subject to immediat e release to Cobb’s request. {¶9} With regard to the second part CLEIRs exceptions, the Prosecuto r’s Office asserts that the remaining records fall in whole or in part und er: 1) the “uncharged suspect” exception contained in subdivision 149.43(A)(2)(a), 2) the “specific investigatory work product” exception contained in (A)(2)(c), 3 ) the “specific confidential law enforcement techniques or procedures” exception contained i n (A)(2)(c), and 4) the “endangerment of life or physical safety” exception contained i n subdivision (A)(2)(d).Case No. 2019-00597PQ -5- REPORT AND RECOMMENDATION

Records Identifying an Uncharged Suspect {¶10} One subject of the investigation, Chad Jay Cobb, has been convi cted of aggravated murder and related charges. The Prosecutor’s Office attests that at the time of Cobb’s request it had been investigating the involvement of a second suspect in the matter, but had not yet charged that suspect. (Response at 3, L oPrinzi Aff. at ¶ 5, 14- 16.) These uncontested facts satisfy the agency’s burden to sho w the applicability of the uncharged suspect exception at the time Cobb’s public records r equest was made. {¶11} Had the uncharged suspect exception remained applicable as of t he date of this report, the court would need to determine what specific information within the records falls squarely within the exception. State ex rel. Rocker v. Guernsey Cty.

Sheriff’s Office , 126 Ohio St.3d 224, 2010-Ohio-3288, 932 N.E.2d 327, ¶ 11-15; Narciso v. Powell Police Dept ., Ct. of Cl. 2018-01195PQ, 2018-Ohio-4590, 8-14, 28-34. However, the court is not limited to considering the facts and circumstances at the time a public records enforcement proceeding was instituted, but sho uld consider the facts

and conditions at the time it renders its determination. This i ncludes changed circumstances that remove records from previously justified app lication of a public records exception. See State ex rel. Ohio Republican Party v. FitzGerald , 145 Ohio St.3d 92, 2015-Ohio-5056, 47 N.E.3d 124, ¶ 24, 27-28; State ex rel. Quolke v. Strongsville City School Dist. Bd. of Edn ., 142 Ohio St.3d 509, 2015-Ohio-1083, 33 N.E.3d 30, ¶ 25-31; Gannett GP Media, Inc. v. Ohio Dept. of Pub. Safety , Ohio Ct. of Cl. No. 2017-00051, 2017-Ohio-4247, ¶ 21-33. In this case, further analysis is unnecessary because the second suspect has now been indicted, thereby termi nating the uncharged suspect exception with respect to that suspect. (LoPrinzi Aff. at ¶ 15-16, Exh. B.) Based on the facts and circumstances existing at this time, I find th at the uncharged suspect exception may no longer be applied to any portion of the reques ted records. See State ex rel. Moreland v. Dayton , 67 Ohio St. 3d 129, 131-132, 616 N.E.2d 234 (1993).Case No. 2019-00597PQ -6- REPORT AND RECOMMENDATION

Specific Investigatory Work Product {¶12} After the point where an investigation has been initiated, the subsequent work product of investigating officers is presumptively “invest igatory” in nature. See

State ex rel. Fields v. Cervenik , 8th Dist. Cuyahoga No. 86889, 2006-Ohio-3969, ¶ 2-7; Gannet GP Media, Inc. v. Chillicothe Police Dept. Ct. of Cl. No. 2017-00886, 2018-Ohio1552, ¶ 14, 19. The definition of “[s]pecific investigatory wor k product” has been found to include “any notes, working papers, memoranda or similar mat erials,” and all other “information assembled by law enforcement officials in connecti on with a probable or pending criminal proceeding.” Cincinnati Enquirer v. Ohio Dept. of Pub. Safety, 148 Ohio St.3d 433, 2016-Ohio-7987, ¶ 41. In State ex rel. Steckman v. Jackson , 70 Ohio St.3d 420, 434, 639 N.E.2d 83 (1994), the Supreme Court stated that “[t]his definition (working papers) is broad enough to bring under its umbrella an y records compiled by law enforcement officials.” The exception applies seamlessly fr om the initial law enforcement agency’s investigation through any additional inves tigation conducted by or with the prosecutor. See State ex rel. Caster v. Columbus , 151 Ohio St.3d 425, 2016- Ohio-8394, 89 N.E.3d 598, ¶ 25-30. The remainder of Cobb’s request seeks: all follow-up reports; all witness statements; autopst [sic] an d coroner reports; all investigation notes about witness statements; and all reports/results of any forensic or scientific tests related to the death of Ashley Biggs in Summit C ounty, Ohio, on 6/21/2012 (Complaint at 2.) As described, these are records that are inve stigatory in nature when compiled by law enforcement officials, unless incorporated in t he initial incident or offense report. Maurer , 91 Ohio St.3d 54, 56, 741 N.E.2d 511 (2001). 1

1 Not all records placed in a law enforcement investigatory file are thereby subject to the investigatory work product exception, see State ex rel. Ohio Patrolmen’s Benevolent Assn. v. Mentor , 89 Ohio St.3d 440, 448, 732 N.E.2d 969 (2000) (copies of newspaper articles and statutes); State ex rel. WLWT-TV5 v. Leis , 77 Ohio St.3d 357, 361, 673 N.E.2d 1365 (1997) (copies of the indictment, statutes, news articles, blank charitable organization registration form, organization’s yearbook and buyer’s guide,Case No. 2019-00597PQ -7- REPORT AND RECOMMENDATION

{¶13} There is no express time limit in the CLEIRs statute for law en forcement investigatory work product. Investigatory work product records “continue to be exempt despite the passage of time, [or] the lack of enforcement actio n, * * *.” (Citations omitted.) State ex rel. National Broadcasting Co. v. Cleveland , 57 Ohio St.3d 77, 78-80, 566 N.E.2d 146 (1991). However, this does not mean that the exc eption extends indefinitely. In State ex rel. Steckman v. Jackson , 70 Ohio St.3d 420, 434, 639 N.E.2d 83 (1994), paragraph five of the syllabus, the Court held that the investi gatory work product exception applied so long as a record was maintained “i n connection with a probable or pending criminal proceeding.” The Steckman Court defined the duration of the analogous “trial preparation record” exception using more s pecific terms of trial and appellate activity: Once a record becomes exempt from release as a “trial preparati on record,” that record does not lose its exempt status unless and until all “trials,” “actions” and/or “proceedings” have been fully comple ted.

Steckman , paragraph four of the syllabus. In State ex rel. WLWT-TV5 v. Leis , 77 Ohio St.3d 357, 673 N.E.2d 1365 (1997) the Court adopted the Steckman reasoning regarding trial preparation records in holding that “[a]nalogously, once applicable, the records conti nue to be exempt work product until all proceedings are fully completed.” WLWTTV5 at 360, citing Steckman at 437.

Caster at 34. The Leis adoption of the trial preparation duration standard for CLEIRs investigatory work product made no change to the comprehensive nature of the criminal “trials,” “actions” and/or “proceedings” that were covered. In Caster , the Court overruled

Steckman and Leis in part, but only to the extent those cases extended the CLEIR s investigatory work product exception “beyond the completion of the trial for which the

transcript of plea hearing, videotape of news reports, and camp aign committee finance report). However, Cobb did not request a copy of the entire investigatory file so as to trigger a search for such non-exempt items. She requested only specific, inherently investigatory re cord categories.Case No. 2019-00597PQ -8- REPORT AND RECOMMENDATION

information was gathered .” (Emphasis added.) Caster at ¶ 47. As in Leis , the Court in

Caster did not change the previous language including “trials,” plura l, other than to limit the exception beyond a trial for which the investigatory inform ation was gathered.

Cobb asks the court to consider whether the specific-investigatory-work-product exception of R. C. 149.43(A)(2)(c) that does not extend beyond the completion of t he trial for which the information was gathered applies to a completely sepa rate trial related to the co-defendant and/or the same criminal conduct.

(Reply at 3.) Cobb apparently argues that “the trial” was delib erately used in Caster as a singular term, meaning that investigatory work product gathered in connection with multiple suspects to an offense loses its exempt status upon th e trial of the first suspect. Cobb admits she has found no case authority for this propositio n ( Id .), nor is there any reason to believe that the legislature or the Supreme Court int end such a result in the context of criminal investigations where the same information m ay be gathered to support more than one suspect’s trial. In that context, and app lying the rules of grammar and common usage, I find that the phrase “the completion of the trial for which the information was gathered” can only mean the completion of every trial for which the information was gathered. 2 The CLEIRs investigatory work product exception thus applies to information gathered in connection with any probable or pending criminal trial that has not yet concluded. {¶14} The Prosecutor’s Office attests that the investigation in this case continued after the first suspect was charged, and that the prosecution o f the recently charged second suspect has not concluded. (Response at 3-4; LoPrinzi Af f., ¶ 5, 15.) I find that the Prosecutor’s Office has met its burden of proof in showing that the withheld investigatory records pertain to a law enforcement matter of a criminal nature that has

2 Analogous to the rule of statutory construction that “the sing ular includes the plural, and the plural includes the singular.” R.C. 1.43(A).Case No. 2019-00597PQ -9- REPORT AND RECOMMENDATION

not yet concluded with the completion of all trials for which t he information was gathered. I conclude that the law enforcement investigatory wor k product exception continues to apply to all requested records other than the init ial incident and offense report. Specific Confidential Investigatory Techniques or Procedures, a nd Information That Would Endanger the Life or Physical Safety of a Crime Victim or Witness {¶15} “Confidential law enforcement investigatory records” includes “ [s]pecific confidential investigatory techniques or procedures,” and “any record * * * the release of [which] would create the high probability of disclosure of * * * [i]nformation that would endanger the life or physical safety of law enforcement personn el, a crime victim, a witness, or a confidential information source.” R.C. 149.43(A)( 2)(c) and (d). The Prosecutor’s Office asserts that release of requested “autopsy and coroner reports, and all reports/results related to forensic and scientific tests” a re subject to the specific confidential investigatory techniques or procedures exception, and that “there existed real and articulable safety concerns for third parties in this case.” (Response at 6-7.) {¶16} Autopsy and coroner reports are subject to the records disclosu re and withholding provisions set forth in R.C. Chapter 313. Except as otherwise provided in R.C. 313.10, all records of the coroner, including the final au topsy report and “the detailed descriptions of the observations written during the pr ogress of an autopsy and the conclusions drawn from those observations” are public recor ds. R.C. 313.10(A)(1); State ex rel. Cincinnati Enquirer v. Pike Cty. Coroner’s Office , 153 Ohio St.3d 63, 2017- Ohio-8988, 101 N.E.3d 396, ¶ 29-30. However, Chapter 313 does p rovide an exception for “[r]ecords of a deceased individual that are confidential l aw enforcement investigatory records as defined in section 149.43 of the Revis ed Code.” R.C. 313.10(A)(2)(e). “Autopsy and coroner reports” are thus ordinar ily available to the public, but may be excepted from release if shown to be CLEIRs records as defined in R.C. 149.43(A)(2). Pike Cty. Coroner at ¶ 31-33. As with any exception, only theCase No. 2019-00597PQ -10- REPORT AND RECOMMENDATION

portions of a coroner’s report proven to fall squarely within t he CLEIRs exception may be redacted, and the remainder of the report must be disclosed. Id . at ¶ 40-44, 55. In this case, the Prosecutor’s Office makes no such showing. The P rosecutor’s Office has not identified what portions of particular reports are allegedl y excepted, or provided any evidence supporting the exception by affidavit or otherwise. Th e Prosecutor’s Office offers only the bare assertion that autopsy and coroner reports are subject to the confidential investigatory techniques or procedures exception. Likewise, the Prosecutor’s Office does not identify or provide any evidence b y affidavit or otherwise that any requested forensic or scientific test records meet the definition of confidential investigatory techniques or procedures. In the absence of this required support, the Prosecutor’s Office has not met its burden to prove that any po rtion of any requested record falls squarely within the CLEIRs confidential law enforc ement techniques or procedures exception. {¶17} The Prosecutor’s Office also fails to support application of th e CLEIRs endangerment of life or physical safety exception to any record . Where a public office claims an exception based on risks that are not evident within the records themselves, the office must provide more than conclusory statements in affi davits to support that

claim. State ex rel. Besser v. Ohio State Univ ., 89 Ohio St.3d 396, 400-404, 732 N.E.2d 373 (2000). To satisfy the burden of proof for the physical saf ety exception, more than bare allegations are necessary to show that a record would disc lose information that would endanger the life or physical safety of a particular pers on. State ex rel. Nelson v.

Cleveland P.D ., 8th Dist. Cuyahoga No. 62558, 1992 Ohio App. LEXIS 4134, *5- 7;

State ex rel. Jenkins v. Cleveland , 82 Ohio App.3d 770, 785, 613 N.E.2d 652 (8th Dist.1992). See also Gannett GP Media, Inc. v. Ohio Dept. of Pub. Safety , Ct. of Cl. No. 2017-00051-PQ, 2017-Ohio-4247, ¶ 16-33. Physical safety excepti ons may not be asserted beyond the person(s) demonstrably at risk, or after th e risk has abated. State ex rel. Ohio Republican Party v. FitzGerald , 145 Ohio St.3d 92, 2015-Ohio-5056, 47Case No. 2019-00597PQ -11- REPORT AND RECOMMENDATION

N.E.3d 124; State ex rel. Quolke v. Strongsville City School Dist. Bd. of Edn. , 142 Ohio St.3d 509, 2015-Ohio-1083, 33 N.E.3d 30, ¶ 25-31. {¶18} The Prosecutor’s Office cites Martin v. Cleveland, 67 Ohio St.3d 155, 156, 616 N.E.2d 886 (1993) for the proposition that “a document does not need to specify within its four corners the * * * threat to physical safety.” ( Response at 7.) However,

Martin did not allow the Cleveland PD to rest on the bare allegation of a threat to safety, but instead recognized that Cleveland had submitted “adequate e vidence” regarding the documents determined by the court of appeals to be exempt. Martin at 157. Notably, the

lower court in Martin had found evidentia ry support for only si x of the fourteen documents claimed to be subject to the exception: Records 23, 24, 87, and 93 are the four records involved in the confidentiality exemption. They also qualify for the physical s afety exemption because the records reveal actual threats of physical violence to the concerned individuals

. The City claims the physical safety exemption for records 99, 1 01 and 103. In his affidavit Detective Moore states that the informati on in those records could lead to discovery of the individual’s current whe reabouts. The court recognizes the substantial risk to the concerned indi vidual. * * * Similarly as to records, 21, 30, 76, 77, 82, 83 and 84, the cou rt has doubts about how protecting the disputed information will better ensur e the safety of the concerned individuals. Neither the records nor the suppo rting materials overcome the presumption in favor of disclosure. The supporting affidavit is silent on why and how records 82-84 could endanger someone’s physical safety

. (Emphasis added.) State ex rel. Martin v. Cleveland, 8th Dist

. Cuyahoga No. 60977, 1992 Ohio App. LEXIS 98, *22-24 (Jan. 8, 1992). As with the rec ords ordered released

in Martin , the Prosecutor’s Office is “silent on why and how records [in the file] could endanger someone’s physical safety.” Id

. {¶19} The Prosecutor’s Office fails to identify which portion of any record is allegedly subject to the exception, and has not submitted any e vidence, by affidavit or even unsworn factual allegation, of a specific physical threat or known substantial risk ofCase No. 2019-00597PQ -12- REPORT AND RECOMMENDATION

physical violence directed to any person. The Prosecutor’s Offi ce therefore fails to meet its burden to prove that any portion of any requested record fa lls squarely within the CLEIRs exception for records the release of which would endange r life or physical safety. Trial Preparation Records {¶20} Although not asserted by the Prosecutor’s Office, R.C. 149.43(A )(1)(g) provides an exception for trial preparation records. R.C. 149.4 3(A)(4) defines trial preparation records as any record that contains information that is specifically compi led in reasonable anticipation of, or in defense of, a civil or crimin al action or proceeding, including the independent thought processes and per sonal trial preparation of an attorney.

Other than the initial incident and offense report, which canno t be shielded merely due to placement in a prosecutor’s file, this broad language would cover any requested records that were compiled for the upcoming trial of the second suspect. Follow-up reports, witness statements, autopsy and coroner reports, inves tigation notes about witness statements, and reports/results of forensic or scientif ic tests are all typical information compiled or created by prosecutors for criminal tri als. The Supreme Court affirms the breadth of this exception by observing: It is difficult to conceive of anything in a prosecutor’s file, in a pending criminal matter, that would not be either material compiled in anticipation of a specific criminal proceeding or the personal trial prepara tion of the prosecutor.

Steckman at 431-432. Other than the initial incident and offense report , I find that any of the requested records that were specifically compiled in reason able anticipation of the upcoming trial of the second suspect are independently subject to withholding as trial preparation records.Case No. 2019-00597PQ -13- REPORT AND RECOMMENDATION

Availability of Records Upon Conclusion of Investigation {¶21} As detailed above, the CLEIRs specific investigatory work produ ct exception does not persist indefinitely. Once the criminal inve stigation ends, this exception will terminate. Pike Cty. Coroner at ¶ 53-56. Nothing precludes Cobb from making a new public records request at that time, subject to an y other exception for which adequate proof may be submitted.

Conclusion {¶22} Upon consideration of the pleadings, attachments, and affidavit s filed in this case, I recommend the court ORDER respondent to provide re quester with a copy of the initial incident and offense report. I further recommend that the court DENY requester’s remaining claims for production of records. I recom mend that court costs be assessed to requester. 3 {¶23} 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 January 31, 2020 Sent to S.C. Reporter 2/25/20

3 Although the prosecutor violated his clear obligation to immed iately release the initial incident and offense report upon request, the prompt disclosure of the s ame record by the New Franklin PD mitigates the extent to which Cobb is “aggrieved” by this viola tion. State ex rel. Cincinnati Enquirer v. Allen , 1st Dist. Hamilton No. C-040838, 2005-Ohio-4856, ¶ 14-16 (ana logous mitigation analysis of whether requester was “aggrieved” pursuant to R.C. 149.351).