[Cite as Fairley v. Cuyahoga Cty. Prosecutor, 2020-Ohio-1426.]

 

{¶1} Respondent Cuyahoga County Prosecutor (Prosecutor) objects to a special 

master’s report and recommendation of February 21, 2020. 

I. Background 

{¶2} On September 13, 2019, pursuant to R.C. 2743.75(D), requester Juliette 

Fairley (a self-represented litigant) sued the Prosecutor, claiming that the Prosecutor 

denied her access to public records. Fairley appended several exhibits to the 

complaint, including a letter to the Prosecutor (dated August 1, 2019) wherein she 

states: 

I am a columnist for Newsmax and other media outlets. Please advise 

me as to the on-site facilities that are available that would allow me to 

review in person and request copies of court records in reference to the 

State of Ohio v Jaley Presutto Seghafi (CR-15-592641-A). Thank you. 

{¶3} The court appointed a special master in the cause. The court, through the 

special master, referred the case to mediation. Pursuant to Civ.R. 12(B)(6), the 

Prosecutor moved to dismiss Fairley’s complaint for failure to state a claim. After 

mediation failed to successfully resolve all disputed issues between the parties, the 

case was returned to the special master’s docket. The Prosecutor again moved to 

dismiss Fairley’s action, relying on Civ.R. 12(B)(1) as well as Civ.R.12(B)(6). 

JULIETTE FAIRLEY 

 Requester 

 v. 

CUYAHOGA COUNTY PROSECUTOR 

 Respondent

Case No. 2019-00955PQ 

Judge Patrick M. McGrath 

DECISION AND ENTRY 
Case No. 2019-00955PQ -2- DECISION & ENTRY 

{¶4} On February 21, 2020, the special master issued a report and 

recommendation (R&R) wherein he recommended (1) denying the Prosecutor’s motion 

to dismiss, (2) issuing an order compelling the Prosecutor to disclose five pages of 

withheld records and the redacted portion of a “DOB” (date of birth), but allowing the 

Prosecutor to “retain the truncation of the social security number on p.001” of 

documents appended to an affidavit, (3) finding that the Prosecutor failed to make any 

of the requested records available promptly, (4) issuing an order providing that Fairley is 

entitled to recover from the Prosecutor the amount of the filing fee of twenty-five dollars 

and any other costs associated with the action that Fairley incurred, and (5) assessing 

costs to the Prosecutor. (R&R, 18.) 

{¶5} On February 26, 2020—two days after the Prosecutor received a copy of the 

R&R—the Prosecutor filed written objections to the R&R. The Prosecutor’s counsel 

represents that he served a copy of the objections on Fairley by certified mail, return 

receipt requested. On March 2, 2020—three business days after the Prosecutor filed 

his objections—Fairley filed a written response to the objections wherein she asks the 

court to “affirm” the R&R. Fairley represents that she served a copy of her response on 

the Prosecutor’s counsel by email.1 

II. Law and Analysis 

A. R.C. 2743.75(F)(2) governs objections to a special master’s report and 

recommendation. 

Pursuant to R.C. 2743.75(F)(2), 

[e]ither party may object to the report and recommendation within seven 

business days after receiving the report and recommendation by filing a 

written objection with the clerk and sending a copy to the other party by 

 1 R.C. 2743.75(F)(2) does not permit a party to serve a copy of a response to objections by email. 

See R.C. 2743.75(F)(2) (requiring a party to send a copy of a response to an objecting party by certified 

mail, return receipt requested). Fairley’s response therefore fails to comport with R.C. 2743.75(F)(2)’s 

procedural requirements. In the interest of justice, however, the court accepts Fairley’s response. But 

see State ex rel. Gessner v. Vore, 123 Ohio St.3d 96, 2009-Ohio-4150, 914 N.E.2d 376, ¶ 5 (stating that 

"pro se litigants * * * must follow the same procedures as litigants represented by counsel”). 
Case No. 2019-00955PQ -3- DECISION & ENTRY 

certified mail, return receipt requested. Any objection to the report and 

recommendation shall be specific and state with particularity all grounds 

for the objection. * * * If either party timely objects, the other party may file 

with the clerk a response within seven business days after receiving the 

objection and send a copy of the response to the objecting party by 

certified mail, return receipt requested. The court, within seven business 

days after the response to the objection is filed, shall issue a final order 

that adopts, modifies, or rejects the report and recommendation. 

B. The Prosecutor presents six objections for the court’s consideration. 

{¶6} The Prosecutor “objects to the R&R because Fairley’s ‘letter’ [of August 1, 

2019]: (1) was not a public records request; (2) if it was, it was overbroad; * * * (3) it was 

ambiguous; (4) it plainly sought information, not documents; (5) it plainly sought ‘court 

records’ and the sole vehicle for such requests falls under the Rules of 

Superintendence; (6) in any event, Fairley is not entitled to costs.” (Objections, 2.) 

The Prosecutor presents the following objections: 

1. Objection 1: “The Special Master made an error of law by directing the 

Cuyahoga County Prosecutor produce ‘court records’ the majority of 

which (1) are publicly available on the Cuyahoga County Clerk of 

Court’s website and (2) are only properly requested via the Rules of 

Superintendence.”

2. Objection 2: “The Special Master made an error of law by finding State 

ex rel. Parisi v. Dayton Bar Assn. Certified Grievance Commt., ____ Ohio 

St.3d ___, Slip Opinion No. 2019-Ohio-5157 ‘is limited to the facts of that 

case.’ R&R, p. 10.”

3. Objection 3: “Fairley lacks standing to sue because her initial “letter 

requesting access to records” is not a public records request to CCPO 

[Cuyahoga County Prosecutor’s Office]. See Compl., p. 1 (a) and (b).”
Case No. 2019-00955PQ -4- DECISION & ENTRY 

4. Objection 4: “The Special Master made an error of law by directing the 

Cuyahoga County Prosecutor to produce records that Fairley never 

requested, but that the Special Master ordered CCPO to provide the 

Court of Claims in order to adjudicate Fairley’s lawsuit.”

5. Objection 5: “The Special Master made an error of law by finding ‘[t]he 

claim for production as it relates to the 68 pages now disclosed is thus 

moot.’ R&R, p. 4.”

6. Objection 6: “The Special Master made an error of law by finding 

‘Fairley has met her burden to show that her public records request 

reasonably identified the records sought, and was not ambiguous or 

overly broad.’”

For ease of analysis, the court will consider the objections together and in a different 

order than the order set forth by the Prosecutor. 

Third and Sixth Objections: 

{¶7} The third objection asserts that Fairley’s request of August 1, 2019, is not a 

public-records request and, consequently, Fairley lacks standing. The sixth objection 

maintains that the special master erred, as a matter of law, by concluding that Fairley 

satisfied her burden to show that her public-records request was not ambiguous or 

overbroad. 

{¶8} The Prosecutor contends Fairley’s letter does not constitute a proper publicrecords request. And, assuming for the sake of argument that Fairley’s letter is a proper 

public-records request, the Prosecutor contends Farley’s letter is ambiguous and 

overbroad. 

{¶9} Generally, perfection in public-records requests is not required. State ex rel. 

Morgan v. City of New Lexington, 112 Ohio St.3d 33, 2006-Ohio-6365, 857 N.E.2d 

1208, ¶ 37. The Prosecutor’s contentions are similar to an argument presented in State 

ex rel. Consumer News Servs. v. Worthington City Bd. of Edn., 97 Ohio St.3d 58, 2002-
Case No. 2019-00955PQ -5- DECISION & ENTRY 

Ohio-5311, 776 N.E.2d 82, ¶ 36 (respondents “assert that they had no duty to promptly 

prepare records for inspection because [the requester] failed to present any evidence 

that it ever requested to inspect the resumes or that anyone from [the requester] ever 

arrived at respondents' offices to inspect them”). The Ohio Supreme Court rejected the 

argument, stating: “But respondents ignore [the requester’s] January 21 facsimile, in 

which she specifically requested that respondents either send copies of the requested 

records by facsimile, deliver the copies to respondents in person, or inform when she 

could come to respondents' offices to inspect the records.” (Emphasis sic.) Notably, in 

State ex rel. Consumer News Service, the Ohio Supreme Court instructed: 

To the extent that [the requester] requested inspection of the records, 

respondents had a duty under R.C. 149.43(B)(1) to “promptly” prepare the 

records and make them available for inspection. Although the word 

“promptly” is not defined by applicable statute, its customary meaning is 

“ ‘without delay and with reasonable speed’ “and this meaning “ ‘depends 

largely on the facts in each case.’ “Wadd, 81 Ohio St.3d at 53, 689 N.E.2d 

25, quoting Black's Law Dictionary (6th Ed.1990) 1214. Moreover, insofar 

as [the requester] requested copies of the records, respondents had a 

duty to provide the copies within a reasonable period of time. 

R.C. 149.43(B)(1); cf., e.g., Siegwald v. Curry (1974), 40 Ohio App.2d 

313, 318, 69 Ohio Op. 2d 293, 319 N.E.2d 381, quoting Atwell v. State 

(1973), 35 Ohio App.2d 221, 230, 64 Ohio Op. 2d 342, 301 N.E.2d 709, 

for the proposition that what is a “ ‘reasonable period of time’ “ to 

determine whether to take or refuse a chemical test in a DWI case will 

depend on “ ‘all the facts and circumstances in each case.’ ” 

State ex rel. Consumer News Servs. at ¶ 37. 

{¶10} The court finds that the Prosecutor’s third and sixth objections are not welltaken. 

First and Second Objections: 
Case No. 2019-00955PQ -6- DECISION & ENTRY 

{¶11} The first objection asserts that the special master erred, as a matter of law, 

by directing the Prosecutor to produce “court records,” which, according to the 

Prosecutor, are publicly available on the Cuyahoga County Clerk of Court’s website, 

and are properly requested by the Ohio Rules of Superintendence. The second 

objection asserts that the special master erred, as a matter of law, when he stated in the 

R&R that the “holding in [State ex rel. Parisi v. Dayton Bar Assn. Certified Grievance 

Commt., Slip Opinion No. 2019-Ohio-5157] is limited to the facts of that case.” 

{¶12} Effective July 1, 2009, the Ohio Supreme Court adopted Rules of

Superintendence for the Courts of Ohio regarding public access to court records. State 

ex rel. Cincinnati Enquirer v. Lyons, 140 Ohio St.3d 7, 2014-Ohio-2354, 14 N.E.3d 989, 

¶ 13. In Parisi, the Ohio Supreme Court does not appear to have expressly limited 

Parisi to the facts of that case and stated that “[g]enerally, if the records requested are 

held by or were created for the judicial branch, then the party seeking to obtain the 

records must submit a request pursuant to Sup.R. 44 through 47.” Parisi at ¶ 21. 

{¶13} Parisi is, however, factually distinguishable from this case. Parisi sought 

records from the Dayton Bar Association related to her two attorney-discipline cases. 

The Ohio Supreme Court noted that a certified grievance committee of a bar association 

(which “function[s] somewhat independently” from the Ohio Supreme Court) prepares 

and creates attorney-discipline cases for consideration by the Ohio Supreme Court. 

Parisi at ¶ 25-26. Here, however, Fairley sought court records from a prosecuting 

attorney, which is an independently elected public official, see R.C. 309.01, and whose 

powers and duties generally do not require the preparation and creation of attorneydiscipline cases for review by the Ohio Supreme Court. See R.C. 309.08. Moreover, as 

noted by the Ohio Supreme Court, “not every record contained within a prosecutor's file 

is exempt. * * * Certain records are unquestionably nonexempt and do not become 

exempt simply because they are placed in a prosecutor’s file.” State ex rel. WLWT-TV5 

v. Leis, 77 Ohio St.3d 357, 361, 673 N.E.2d 1365 (1997), overruled in part on other 

grounds, State ex rel. Caster v. City of Columbus, 151 Ohio St.3d 425, 437, 2016-Ohio-
Case No. 2019-00955PQ -7- DECISION & ENTRY 

8394, 89 N.E.3d 598. For example, in Leis the Ohio Supreme Court determined that an 

indictment was a nonexempt record. Leis at 361. 

{¶14} The court finds that the Prosecutor’s first and second objections are not 

well-taken. 

Fourth and Fifth Objections: 

{¶15} The fourth objection asserts that the special master erred, as a matter of 

law, by directing the Prosecutor to produce records that Fairley never requested, “but 

that the Special Master ordered [the Prosecutor] to provide the Court of Claims in order 

to adjudicate Fairley’s lawsuit.” The fifth objection asserts that the special master erred, 

as a matter of law, by finding “‘[t]he claim for production as it relates to the 68 pages 

now disclosed is thus moot.’ R&R, p. 4.” 

{¶16} Within the fourth and fifth objections the Prosecutor reiterates contentions 

that Fairley’s initial request was not a valid public-records request. In the fifth objection 

the Prosecutor suggests that, because Fairley’s initial request was not a proper publicrecords request, then the special master improperly ordered the Prosecutor to provide 

certain documents. The court already has determined that Fairley’s initial request of 

August 1, 2019 was a proper public-records request. Pursuant to R.C. 2743.75(E)(3)(c), 

a special master “may require either or both of the parties to submit additional 

information or documentation supported by affidavits” before a special master submits a 

R&R. Moreover, producing requested records, as the Prosecutor appears to have done 

in this case, generally moots a public-records case. See State ex rel. Cincinnati 

Enquirer v. Ohio Dept. of Pub. Safety, 148 Ohio St.3d 433, 2016-Ohio-7987, 71 N.E.3d 

258, ¶ 29; State ex rel. Toledo Blade Co. v. Seneca Cty. Bd. of Commrs., 120 Ohio 

St.3d 372, 2008-Ohio-6253, 899 N.E.2d 961, ¶ 43. 

{¶17} The court finds that the Prosecutor’s fourth and fifth objections are not welltaken. 

II. Conclusion
Case No. 2019-00955PQ -8- DECISION & ENTRY 

{¶18} Having concluded that the Prosecutor’s objections of February 26, 2020, are 

not well-taken, the court OVERRULES the objections. The court adopts the special 

master’s R&R of February 21, 2020. Judgment is rendered in favor of Fairley. The court 

ORDERS the Prosecutor to forthwith permit Fairley to inspect or receive copies of (1) the 

five pages of withheld records that the special master identified in the R&R (Gutkoski Aff. p. 

027-029, 033-034) and (2) the redacted portion of DOB p. 001 of the documents appended 

to an affidavit of Brian R. Gutkoski (which is dated December 6, 2019) but, in accordance 

with the special master’s recommendation, the Prosecutor may “retain the truncation of the 

social security number on p.001.” Fairley is entitled to recover from the Prosecutor the 

amount of the filing fee of twenty-five dollars and any other costs associated with the action 

that are incurred by her, but Fairley is not entitled to recover attorney fees. See R.C. 

2743.75(F)(3)(a) and (b). Court costs are assessed against the Prosecutor. The clerk shall 

serve upon all parties notice of this judgment and its date of entry upon the journal. 

 

 PATRICK M. MCGRATH 

Judge 

 

Filed March 12, 2020 

Sent to S.C. Reporter 4/10/20