[Cite as McClellan v. Hamby , 2023 - Ohio - 2769.]

IN T HE CO URT OF CLAIMS OF OHIO

{¶1} This matter is before the special master for a R.C . 2743.75(F)(1) report and recomm endation. The special master recommends that judgment be entered for Respondent and that costs be assessed against Requester. I. Background. {¶2} Requester Nathan McClellan sent a public records request to the Ohio Civil Rights C om mission on April 20, 2023. The Co mmission, through Respondent Rossie Hamby ( “ the Commission”) , acknowledged the request and began collecting responsive records that same day. Mr. McClellan made another public records request to the Commission late in the a fternoon of Friday, April 28, 202 3

. The Commission produced records responsiv e to Mr. McClellan’s request s on May 4, 2023

. Complaint , filed May 3, 2023, p. 3; Respondent Rossie Hamby’s Response and Motion to Dismiss , filed June 30, 2023 (“ MTD

”), pp. 9 - 11, ¶¶ 3 - 6, 8 - 12; pp. 12 - 14, 16, 17. {¶3} Mr. McClellan filed this case on May 3, 2023, nine working days after his first request. The parties were referred to mediation , but that proved unsuccessful

. T he Commission filed a R.C. 2743.75(E)(2) respon se to the compla int shortly thereafter. Deadl ines were set for Mr. McClell an to file evidence and a memorandum in reply to that response, all of which have passed. Order Terminating Mediation , entered July 5, 2023. The case is ripe for decision. NATHAN L. MCCLELLAN Requester v. ROSSIE HAMBY Respondent Case No. 2023 - 00345PQ Special Master Todd Marti REPORT AND RECOMMENDATIONCase No. 2023 - 00345PQ - 2 - REPORT AND RECOMMENDATION

II. Analysis. A. Requester’s cl aim for production is moot. {¶4} The Commission asserts that Mr. McClellan’s claim for production of records is moot. The evidence confirm s that assertion. {¶5} “In general, the provision of requested records to a [requester] in a public records *** case renders t he *** cla im moot.” Stat e ex rel. Cincinnati Enquirer v. Dupuis , 98 Ohio St.3d 126, 2002 - Ohio - 7041, 781 N.E.2d 163, ¶ 8. A public records case can be mooted by the respondent producing the responsive records during the course of the litigation. State ex r

el. Strike r v. Smith , 12 9 Ohio St .3d 168, 2011 - Ohio - 2878, 950 N.E.2d 952, ¶¶ 17 - 18, 22. “A court considering a claim of mootness for a public records request must first determine what records were requested, and then whether any responsive records were pro vided.” Ro binson v. Vill age of Al exandria , Ct. of Cl. No. 2017 - 00808PQ, 2018 - Ohio - 1581, ¶ 6 adopted 2018 - Ohio - 171. {¶6} A respondent asserting mootness must provide evidence that it produced the records at issue. State ex rel. Strothers v. Keenon , 2016 - Ohio - 40 5, 59 N.E. 3d 556, ¶ 40 ( 8th Dist. ) ; State ex rel. Conley v. Park , 5th Dist. Stark No. 2014CA00169, 2016 - Ohio 5199, ¶ 17

. More specifically, th e respondent must co me forward with evidence that all responsive records w ere produced. Compare State ex rel. Tole do Blade Co. v. Toledo Lucas Cty. Port Auth ., 121 Ohio St.3d 537, 2009 - Ohio - 1767, 905 N.E.2d 1221, ¶¶ 14, 15 (claim mooted by proof that all responsive documents were produced) with State ex rel. Ellis v. Cleveland P olice Forensic Laboratory , 157 Ohio St.3 d 483, 2019 - Ohio - 4201, 137 N.E.3d 1171, ¶ 7 (claim not mooted absent evidence that all responsive records we re produced). If that showing is made the requester must come forward with evidence that additional responsi ve records exist that have not been prod uced. State ex rel. Kesterson v. Kent State Univ

., 156 Ohio St.3d 22, 2018 - Ohio - 5110, 123 N.E.3d 895, ¶ 18 ; State ex rel. Ullmann v. Klein , 160 Ohio St.3d 457, 2020 - Ohio - 2974, 158 N.E.3d 580, ¶ 12 ; State ex rel. Idea stream Pub. Media v. City of Cleveland, 8th Dist. Cuyahoga No. 110345, 20 21 - Ohio - 2842, ¶ 8

. {¶7} The C ommission produced affidavit testimony that all re cords responsive to Mr. McClellan’s request s have been produced without redaction, that Mr. McClellanCase No. 2023 - 00345PQ - 3 - REPORT AND RECOMMENDATION

receive d those records in early May , and that as of late June , he ha d not asser ted that additional records exist. MTD , pp. 10 - 11, ¶¶ 8 - 13. That satisfied the Commission’s burden. Mr. McClellan has come forward with nothing to the contrary. The special ma ster therefore recommends that the court find th at Mr. Mc C ellan ’ s claim f or produ ction of records is moot. B. Requester has not proven that Respondent’s response to his requests was untimely. {¶8} Although Mr. McClellan’s claim for production is moot, his claim that the C ommission improperly delayed the produ ction of responsive reco rds remai ns alive. Sutelan v. Ohio State Univ ., Ct. of Cl. No. 2019 - 00250PQ, 2019 - Ohio - 3675, ¶ 21, adopted in relevant part, 2019 - Ohio - 4026 (McGrath, J.). That claim fails on the merits. {¶9} R.C. 1 49.43(B)(1) mandates that upon request , “all public records re sponsive to the request shall be promptly *** made available for inspection to the requester at all reasonable times during regular business hours.” It further requires that when requested, the “public office *** shall make copies * ** available *** within a reasona ble period of time.” An office’s compliance with those requirements is evaluated based on the facts and circumstances of the request. State ex rel. Morgan v. Strickland , 121 Ohio St.3d 600, 2009 - Ohio - 1901, 906 N.E.2d 1105, ¶ 10; State ex rel. Kest erson v. Kent State Univ ., 156 Ohio St.3d 13, 2018 - Ohio - 5108, 123 N.E.3d 887, ¶ 16. The requester has the burden of proving that the office’s response was unduly delayed. Diebert v. Lafferty , Ct . of Cl. No. 2021 - 00699PQ, 2022 - Ohio - 2 919, ¶ 28 , adopted 2022 - Ohio - 3052 (Sheeran , J.); Isreal v. Franklin Cty. Commrs ., Ct. of Cl. No. 2019 - 00548PQ, 2019 - Ohio - 4603, ¶ 10 , adopted 2019 - Ohio - 5497 (McGrath, J.)

. {¶10} Multiple factors are relevant to a timeliness a nalysis. The alacrity with which the o ffice ini tially turns to the requ est and its diligence after that are always important. Kesterson , 156 Ohio St.3d 13, ¶ 17. The office is allowed time to review responsive record s and analyze possible redactions o r withholding s . Kesterson , 156 Ohio St.3d 13, ¶ 16; State ex rel. Cincinnat i Enquirer v. Pike Cty. Coroner ’ s Office , 153 Ohio St.3d 63, 2017 - Ohio - 8988, 101 N.E.3d 396, ¶ 59. The courts also consider decisions in comparableCase No. 2023 - 00345PQ - 4 - REPORT AND RECOMMENDATION

cases , Staton v. Village of Timbe rlake , Ct. of Cl. No. 2023 - 00128PQ, 2023 - O hio - 1860, ¶ 10 , adopted 2023 - Ohio - 2322 (Sadler, J.)

. {¶11} The Commission produced evidence that it started working on Mr. McClellan’s requests as soon as they were received. It also explained the extent of the efforts necessary to respond to those requests and still meet its obligation to rev iew responsive records for possible redactions. The overall turn around time

— 10 working days

— is well within the norm for comparable requests. Hachten v. Ohio Univ ., C t. of Cl. No. 2019 - 01050PQ, 2020 - Ohio - 4518 , ¶¶ 14, 15, ado pted 2020 - Ohio - 4903 (McGrath, J.) ; Peroli v. Medina County Prosecutor , Ct. of Cl., 2023 - 00002PQ, 2 023 - Ohio - 1858, ¶ 14, a dopted, 2023 - Ohio - 2320 (Sadler, J.)

. Mr. McClellan came forward with nothing d isputing those points. {¶12} The special master therefore recomm ends that the court reject Mr. Mc Clellan ’ s delay claim. C. Costs should be assessed against Requester . {¶13} Costs should be assessed against Mr. McClellan pursuant to R.C. 2743.09(F), and R.C. 2303.20 because he implicitly agreed to pay those costs by filing this case. Helfrich v. Hall , 5th Dist . Li cking No. 2021 CA 00077, 2022 - Ohio - 1852, ¶ 25. III. Conclusion. {¶14} In light of the foregoing special master recommends that judgment be entered for Respondent and that costs be assessed against Requester. {¶15} Pursuant to R.C. 27 43.75(F)(2), either par

ty may fi le a writ t en 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 no t as sign a s error on appeal the court’s adoption of any factual findings or legal conclusions in th is report and recommendation unless a timely objection was filed thereto. R.C. 2743.75(G)(1).

TODD MARTI Special Maste r Filed July 31 , 2023 Sent to S.C. Reporter 8 /10/ 23