[Cite as Tobias v. Ohio Secy. of State's Office, 2023-Ohio-4440.]

IN THE COURT OF CLAIMS OF OHIO

{¶1} This matter is before the court for a R.C. 2743.75(F) report and 

recommendation. The special master recommends that (1) Respondent be ordered to 

determine which suspects listed in the records previously produced to Requester have 

been charged and to produce copies of the records previously produced without 

redactions for any suspects who have been charged; (2) Respondent be ordered to take 

those actions within 10 working days of the entry of an R.C. 2743.75(F)(2) order in this 

case, (3) that Requester recover his filing fee and costs, and (4) that Respondent bear all 

remaining costs of this case. 

I. Background.

{¶2} The Ohio Secretary of State (“The Secretary”), the respondent on this case, 

has announced that he has referred hundreds of individuals for potential prosecution 

based on suspected election law violations. In January of 2023 the Requester, a reporter 

for Cleveland.com and The Plain Dealer, made public records requests to the Secretary 

for “records that, individually or collectively document:

All cases involving suspected illegal conduct by voters that the Secretary of State’s 

Office has referred to the Ohio Attorney General’s Office since Jan. 1, 2019.

All cases involving suspected illegal conduct by voters that the Secretary of State’s 

Office has referred to county prosecutors since Jan. 1, 2019[.]

ANDREW TOBIAS

 Requester

 v. 

OHIO SECRETARY OF STATE'S 

OFFICE

 Respondent

Case No. 2023-00628PQ

Special Master Todd Marti

REPORT AND RECOMMENDATION
Case No. 2023-00628PQ -2- REPORT AND RECOMMENDATION

All documentation the Secretary of State’s Office provided along with these 

referrals, including detailing the nature of the allegation, the identity of the voter, 

and the location date of the potentially illegal conduct.” (Sic).

He also requested “similar records documenting other illegal conduct that the Secretary 

of State’s Office has investigated, including but not limited to:

• Voter registration and voting by non-citizens

• Ballots cast by dead voters and

• Instances of voter impersonation”

After a lengthy and unexplained delay, the Secretary produced redacted copies of what 

he represented were all responsive records. Requester’s Evidence, filed October 17, 

2023, pp. 3, 5, 7, 12-15, 25-27; Respondent’s Evidence, filed October 16, 2023, pp. 3-4,

¶¶ 4-7.1

{¶3} Requester filed this case, challenging the Secretary’s assertion that all 

responsive records were produced and that the redactions to what was produced were 

proper. Mediation was not ordered because, given the Secretary’s inordinate delay in 

responding to the underlying requests, the additional time necessary to mediate this case 

would not result in the expeditious resolution contemplated by R.C. 149.43(B)(1) and R.C. 

2743.75(A). Unredacted copies of records the Secretary had located prior October 24, 

2003, were submitted for in camera review and the parties filed evidence and memoranda 

supporting their positions. Complaint, filed September 22, 2023, p. 2; Scheduling Order, 

entered October 3, 2023; Order entered October 16, 2023. 

{¶4} The Secretary discovered additional records responsive to Requester’s 

requests after the time had passed to file records for in camera review, evidence, and

memoranda. (“the Additional Records”). A status conference was held where the 

Secretary took the position that the Additional Records were properly subject to the same 

redactions as the records previously filed and produced in this case. The parties agreed 

that the Requester was no longer pressing his claim that the Secretary was not producing 

all responsive records, and that the propriety of the Secretary’s redactions is the only 

issue in the case. The parties further agreed that the propriety of the Secretary’s 

1 All references to specific pages of submissions available on the Court’s public docket are to the 

pages of the PDF copies of those submissions posted on the docket.
Case No. 2023-00628PQ -3- REPORT AND RECOMMENDATION

redactions can be evaluated without the Additional Records being filed for in camera 

review, with the principles of that resolution applying to the Additional Records. Entry, 

filed November 9, 2023. 

II. Analysis.

A. The Secretary has not met his burden of proving that his redactions were

justified by R.C. 149.43(A)(2)(a).

{¶5} R.C. 149.43(B)(1) requires a public office to promptly produce unredacted 

copies of records when it receives a proper request unless the records fit within an 

exception to the Public Records Act. The Secretary does not challenge the sufficiency of 

Requester’s request or that most of the records sought are public records. He instead

asserts that his redactions were justified because the redacted information would reveal 

the identity of suspected but uncharged violators of election laws, and hence is excepted

from public record status by R.C. 149.43(A)(1)(h) and (A)(2)(a).

2

 

{¶6} R.C. 149.43(A)(1)(h) excepts “confidential law enforcement records” from the 

class of public records. R.C. 149.43(A)(2)(a) defines such records as including those “that 

pertain[] to a law enforcement matter *** that *** would create a high probability of 

disclosure of *** [t]he identity of a suspect who has not been charged with the offense to 

which the record pertains[.]” R.C. 149.43(A)(2)(a) establishes three elements for that 

exception:

- the record pertains to a “law enforcement matter”,

- the record would likely identify a “suspect”; and

- the suspect has not been “charged” with the offense related to the record. 

The office asserting that exception has the burden of proving all those elements. State ex 

rel. Myers v. Meyers, 169 Ohio St.3d 536, 2022-Ohio-1915, 207 N.E.3d 579, ¶ 30. 

Moreover, the office must make a strong showing. It “does not meet [its] burden if it has 

not proven that the requested records fall squarely within the exception,” and courts must 

“resolve any doubt in favor of disclosure.” Welsh-Huggins v. Jefferson Cty. Prosecutor's 

Office, 163 Ohio St.3d 337, 2020-Ohio-5371, 170 N.E.3d 768, ¶¶ 27, 63. See also id. at 

2 Some of the Secretary’s redactions were also based on the personal information exception set out 

in R.C. 149.43(A)(1)(dd). Requester does not dispute those redactions. Entry, filed November 4, 2023, ¶ 5. 
Case No. 2023-00628PQ -4- REPORT AND RECOMMENDATION

¶¶ 50, 63. Given that, “it is not enough to say that a record is probably within a statutorily 

prescribed exemption[.]” Id. at ¶ 63. (Emphasis sic).

{¶7} The Secretary has proven that the records pertain to law enforcement 

matters. He produced unrebutted affidavit and documentary evidence that the records at 

issue are related to his investigation of alleged violations of R.C.3599.12. Those violations

would, if proven, be felonies. Those are law enforcement matters. Respondent’s 

Evidence, p. 5, ¶¶ 9-11; Supplement to Respondent’s Evidence, filed October 24, 2023, 

pp. 3-4 ¶¶ 5-8; R.C. 109.95. 

{¶8} That is not changed by Requester’s assertion that those investigations were 

triggered by actions routinely taken to monitor election related matters. A matter pertains 

to law enforcement for purposes of R.C. 149.43(A)(2) if it addresses violations of law, 

even if those violations were initially suggested by routine practices. State ex. rel. Natl. 

Broadcasting Co. v. Cleveland, 57 Ohio St.3d 77, 78-80, 566 N.E.2d 146 (1991); State 

ex rel. Ohio Patrolmen's Benevolent Assn. v. City of Mentor, 89 Ohio St.3d 440, 445, 732 

N.E.2d 969 (2000); State ex rel. Standifer v. City of Cleveland, 170 Ohio St.3d 367, 2022-

Ohio-3711, 213 N.E.3d 665, ¶¶ 13-18.

{¶9} The Secretary has also proven that the records would identify suspects. He 

provided affidavit testimony that the redactions obscure the alleged violators’ names and 

voter identification numbers, information that would enable Requester to identify those 

alleged violators. He also submitted evidence that those individuals were the subject of 

investigations by his office, making them “suspects” for purposes of R.C 149.43(A)(2)(a).

Respondent’s Evidence, pp. 4-5, ¶¶ 9-11, 13-14; Supplement to Respondent’s Evidence, 

pp. 3-4 ¶¶ 5-8, 10-11. State ex rel. Outlet Commc'ns, Inc. v. Lancaster Police Department, 

38 Ohio St.3d 324, 328, 528 N.E.2d 175 (1988). 

{¶10} The Secretary has not proven that the individuals he referred remain 

uncharged. An office invoking the uncharged suspect provisions of R.C. 149.43(A)(2)(a) 

must prove that the suspect has not been charged. State ex rel. Sultaana v. Mansfield 

Corr. Inst., __ Ohio St.3d __, 2023-Ohio-1177, __ N.E.3d __, ¶ 30; State ex rel. Natl. 

Broadcasting Co. v. Cleveland, 82 Ohio App.3d 202, 208, 611 N.E.2d 838 (8th Dist.1992). 

The only evidence proffered on this element is the following statement in an affidavit from 
Case No. 2023-00628PQ -5- REPORT AND RECOMMENDATION

in house counsel to the Secretary: “to date, the Office has not received confirmation that 

any referred voter would not be charged with an election offense.” Respondent’s 

Evidence, p. 5, ¶ 12; Supplement to Respondent’s Evidence, p. 4 ¶ 9. That falls short in 

two independently dispositive respects. 

{¶11} First, it does not prove the controlling fact: whether or not the suspects have

been “charged.” A charge is an objectively verifiable occurrence: an arrest, a citation, or 

some other official action asserting specifically identified violations of law. Outlet 

Commc'ns., 38 Ohio St.3d at 328; State ex rel. Musial v. City of N. Olmsted, 106 Ohio 

St.3d 459, 2005-Ohio-5521, 835 N.E.2d 1243, ¶ 23; 1990 Ohio Op. Att'y Gen. 440, 1990 

Ohio Op. Att'y Gen. No. 101; 1990 Ohio AG LEXIS 104, paragraph 6 of syllabus. That is 

different from a record custodian’s subjective (and potentially incomplete) knowledge 

about whether that has occurred, all that has been shown here. The Secretary’s evidence 

therefore fails to prove the fact making R.C. 149.43(A)(2)(a) applicable.

{¶12} Second, the Secretary’s evidence is not sufficiently specific. An office 

invoking an exemption triggered by record-specific facts does not meet its burden by 

asserting the exemption as to a group of records generally. The office must instead 

establish the triggering facts on a record-by-record basis. For example, an office could 

not withhold an entire list of foster care providers based on an exemption triggered by 

each provider’s funding or reporting status without provider-specific evidence about those 

matters. State ex rel. Cincinnati Enquirer v. Jones-Kelley, 118 Ohio St.3d 81, 2008-Ohio1770, 886 N.E.2d 206, ¶¶ 22-24, 33. Similarly, a police department could not categorically 

withhold records of multiple investigations based on R.C. 149.43(A)(2) without showing,

on a record-by-record basis, facts triggering that statute. State ex rel. Standifer v. City of 

Cleveland, 170 Ohio St.3d 367, 2022-Ohio-3711, 213 N.E.3d 665, ¶ 22. 

{¶13} The Secretary’s proof has that same defect. Rather than showing which of 

the many individuals he referred for possible prosecution remain uncharged (the 

triggering fact), his evidence addresses their situations collectively. That “broad strokes” 

approach does not suffice. Id. 
Case No. 2023-00628PQ -6- REPORT AND RECOMMENDATION

B. The court should order the Secretary to promptly determine which of the 

individuals remain uncharged and to revise his response to Requester 

accordingly. 

{¶14} Although a public office’s failure to prove the basis for an exemption normally 

results in an order to produce the requested records forthwith, that is not always the case.

If immediate production would unduly compromise third parties’ statutory privacy rights 

the office may instead be ordered to further investigate whether grounds for the 

exemption actually exist and to revise its initial response based on what it discovers

Jones-Kelley, 118 Ohio St.3d 81, ¶ 26. 

{¶15} This is such a case. Ordering the immediate production of unredacted copies 

of the records at issue could deprive hundreds of people of privacy they are actually 

entitled to under R.C.149.43(A)(2)(a). They should not suffer that injury because the 

Secretary failed to properly defend his redactions. Further, immediate disclosure of some 

of those persons’ identities might prejudice ongoing criminal investigations. Ordering the 

Secretary to actually investigate the status of his referrals and to correspondingly revise 

his responses would prevent those harms, while still serving the “primary purpose of 

Ohio's public-records act *** to enable the public to see how our government agencies 

work, whether good or bad.” Welsh-Huggins v. Jefferson Cty. Prosecutor's Office, 163 

Ohio St.3d 337, 2020-Ohio-5371, 170 N.E.3d 768, ¶ 76. The special master therefore 

recommends investigation and revision, rather than immediate production of unredacted 

records.

{¶16} The special master further recommends that the Secretary be ordered to 

take those actions promptly. The requests at issue here have been pending an 

unreasonably long time—more than 10 months. That is the antithesis of the 

“prompt[],”and “expeditious” resolution of public records requests contemplated by R.C. 

149.43(B)(1) and R.C. 2743.75(A). See State ex rel. Ware v. Bur. of Sentence 

Computation, 10th Dist. Franklin No. 21AP-419, 2022-Ohio-3562, ¶ 17 (surveying cases). 

The special master therefore recommends that the Secretary be ordered to determine 

whether charges have resulted from any of his referrals and to correspondingly revise his 
Case No. 2023-00628PQ -7- REPORT AND RECOMMENDATION

response to Requester within 10 working days from the date of the court’s entry of an 

R.C. 2743.75(F)(2) order in this case.

{¶17} The special master recognizes that might impose some burden on the 

Secretary, but no “pleading of too much expense, or too much time involved, or too much 

interference with normal duties, can be used by the respondent to evade the public's right 

to inspect and obtain a copy of public records within a reasonable time.” State ex rel. 

Warren Newspapers v. Hutson, 70 Ohio St.3d 619, 623, 640 N.E.2d 174 (1994). “The 

respondent is under a statutory duty to organize his office and employ his staff in such a 

way that his office will be able to make these records available for inspection[.]” Id. 

C. Costs. 

{¶18} R.C. 2743.75(F)(3)(b) provides that the “aggrieved person shall be entitled

to recover from the public office or person responsible for the public records the amount 

of the filing fee of twenty-five dollars and any other costs associated with the action[.]” 

Requester was aggrieved by the Secretary’s improper redactions. He is therefore entitled 

to recover her filing fee and his costs.

III. Conclusion.

In light of the foregoing the special master recommends that:

A. Respondent be ordered to determine which suspects listed in the records 

previously produced to Requester have been charged and to produce 

copies of the records previously produced without redactions for any 

suspects who have been charged.

B. Respondent be ordered to take those actions within 10 working days of the 

entry of an R.C. 2743.75(F)(2) order in this case.

C. Requester recover his filing fee and costs, exclusive of attorney fees.

D. Respondent bear the balance of the costs of this case. 

{¶19} 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 
Case No. 2023-00628PQ -8- REPORT AND RECOMMENDATION

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).

TODD MARTI

Special Master

Filed November 13, 2023

Sent to S.C. Reporter 12/7/23