[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 J uliette Fairley (a self-represented litigant) sued the Prosecutor, clai ming 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 a dvise

me as to the on-site facilities that are available that would a llow me to review in person and request copies of court records in referen ce 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 Ci v.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 be tween the parties, the case was returned to the special master’s docket. The Prosecut or 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

Responden t Case No. 2019-00955PQ

Judge Patrick M. McGrath

DECISION AND ENTRYCase 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 Pro secutor’s motion to dismiss, (2) issuing an order compelling the Prosecutor to d isclose five pages of withheld records and the redacted portion of a “DOB” (date of b irth), but allowing the Prosecutor to “retain the truncation of the social security num ber on p.001” of documents appended to an affidavit, (3) finding that the Prosec utor failed to make any of the requested records available promptly, (4) issuing an ord er providing that Fairley is

entitled to recover from the Prosecutor the amount of the filin g fee of twenty-five dollars and any other costs associated with the action that Fairley inc urred, and (5) assessing costs to the Prosecutor. (R&R, 18.) {¶5} On February 26, 2020—two days after the Prosecutor received a c opy of the R&R—the Prosecutor filed written objections to the R&R. The Pr osecutor’s counsel represents that he served a copy of the objections on Fairley b y 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 objectio ns 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 with in seven business days after receiving the report and recommendation by filing a written objection with the clerk and sending a copy to the othe r 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 respo nse 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 (stati ng that "pro se litigants * * * must follow the same procedures as liti gants 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 a ll grounds for the objection. * * * If either party timely objects, the o ther party may file with the clerk a response within seven business days after rece iving the objection and send a copy of the response to the objecting part y by certified mail, return receipt requested. The court, within sev en 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 consi deration. {¶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 c osts.” (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 o f Court’s website and (2) are onl y properly requested via the Rul es of Superintendence.”

2. Objection 2: “The Special Master made an error of law by findin g State ex rel. Parisi v. Dayton Bar Assn. Certified Grievance Commt. , ____ Ohio St.3d ___, Slip Opinion No. 2019-Ohio-5157 ‘is limited to the f acts 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 t o CCPO [Cuyahoga County Prosecutor’s O ffice]. See Compl., p. 1 (a) an d (b).”Case No. 2019-00955PQ -4- DECISION & ENTRY

4. Objection 4: “The Special Master made an error of law by direct ing the Cuyahoga County Prosecutor to produce records that Fairley neve r 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 findin g ‘[t]he claim for production as it relates to the 68 pages now disclose d is thus moot.’ R&R, p. 4.”

6. Objection 6: “The Special Master made an error of law by findin g ‘Fairley has met her burden to show that her public records req uest reasonably identified the records sought, and was not ambiguous or overly broad.’”

For ease of analysis, the court will consider the objections to gether 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 standin g. 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 wa s 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 F airley’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 require d. 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 arg ument 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 h ad no duty to promptly prepare records for inspection because [the requester] failed t o present any evidence that it ever requested to inspect the resumes or that anyone fr om [the requester] ever arrived at respondents' offices to inspect them”). The Ohio Su preme Court rejected the argument, stating: “But respondents ignore [the requester’s] Ja nuary 21 facsimile, in which she specifically requested that respondents either send c opies of the requested records by facsimile, deliver the copies to respondents in pers on, 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” pr epare the records and make them available for inspection. Although the wo rd “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 ca se 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 objection s 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 t hat 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 limite d

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 atto rney-discipline cases. The Ohio Supreme Court noted that a certified grievance committ ee of a bar association (which “function[s] somewhat independently” from the Ohio Supre me 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 wi thin a prosecutor's file is exempt. * * * Certain records are unquestionably nonexempt a nd 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 objectio ns 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 Fairle y 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 reiterate s contentions that Fairley’s initial request was not a valid public-records r equest. 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 Fairle y’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 objectio ns are not welltaken.

II. ConclusionCase No. 2019-00955PQ -8- DECISION & ENTRY

{¶18} Having concluded that the Prosecutor’s objections of February 2 6, 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 fav or 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 identifi ed 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 “r etain the truncation of the social security number on p.001.” Fairley is entitled to recov er from the Prosecutor the amount of the filing fee of twenty-five dollars and any other c osts associated with the action that are incurred by her, but Fairley is not entitled to recove r 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 Jud g e

Filed March 12, 2020 Sent to S.C. Reporter 4/10/20