[Cite as Rose v. Ohio Dept. of Commerce, 2023-Ohio-1488.]

IN THE COURT OF CLAIMS OF OHIO

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

recommendation. The special master recommends that:

- Respondent’s motion to dismiss be denied.

- Respondent be ordered to produce all records generated in connection with 

Requester’s December, 2021 complaint that have not already been produced.

- Requester recovers his filing fees and his costs in this action. 

I. Background. 

{¶2} This case arises from the Department of Commerce’s (the “Department”) 

response to Requester Joseph Rose’s complaint about an illegal mobile home park. 

Mr. Rose filed that complaint in December of 2021. The complaint was sent to Bryant 

Hillman, a Department official. Mr. Rose heard nothing from the Department for more than 

five months and then provided additional information to Mr. Hillman, including the name 

of the park’s owner, the Society of Sportsmen, Inc. Mr. Hillman replied with a nonsubstantive response. Respondent’s Evidence, filed March 1, 2023, pp. 4-7.1

 

{¶3} After two more months passed without any contact, Mr. Rose made his first 

public records request, apparently to find out what action the Department had taken on 

his complaint. On July 22, 2022, he emailed Mr. Hillman (the official he filed the complaint 

1 All references to specific pages of matters filed in this case are to pages of the PDF copies posted 

on the Court’s docket, as opposed to any internal pagination of those filings. 

JOSEPH ROY ROSE

 Requester

 v. 

OHIO DEPARTMENT OF COMMERCE

 Respondent

Case No. 2022-00711PQ

Special Master Todd Marti

REPORT AND RECOMMENDATION
Case No. 2022-00711PQ -2- REPORT AND RECOMMENDATION

with), noting that it had “been a while since we talked about the Society of Sportsmen inc. 

Club,” the organization he earlier identified to Mr. Hillman. He continued, noting that “[i]t’s 

now been about 7 Months since I first made my complaint with your agency,” and then 

made a “Records Request for all of the records generated so far with your agency 

please[.]” (sic) The Department, through counsel, sent what appears to be a boilerplate 

response denying the request as ambiguous and overly broad. Id. at pp. 9, 11. 

{¶4} Mr. Rose replied that evening, clarifying that he was seeking records 

“generate[d] in 7 months since I put the complaint in” and again referenced Mr. Hillman, 

the official he dealt with in connection with the complaint. Mr. Rose also asked to come 

to the Department to review “these records.” The Department’s response indicated that it 

understood the type of information Mr. Rose sought, and identified several records 

containing some of that information, but curiously did not make records available until 

months after this case was filed. Id. at pp. 13-14. 

{¶5} That pattern continued through August and September of 2022. Mr. Rose sent 

several more emails to the Department seeking records. All of them referred to his 

complaint and all mentioned Mr. Hillman, the official the complaint was originally directed 

to. Almost all those communications also referenced the relevant time frame, the time that 

had elapsed since he filed the complaint. Id. at pp. 15, 17, 20, 23. Although, as discussed 

below, the Department understood what information Mr. Rose sought, it repeatedly denied 

his requests, claiming they were ambiguous and overbroad, apparently because Mr. Rose 

used the words “any” and “all” in his requests. Id. at pp. 14-25.

{¶6} Mr. Rose had had enough by October and filed this case. Id. at 27, 29; 

Complaint, p. 1. Mediation was unsuccessful and the Court set a schedule for filing 

evidence and memoranda. Order, entered February 17, 2023. 

{¶7} The Department has filed what appears to be a complete copy of the 

correspondence between it and Mr. Rose. Respondent’s Evidence. Its briefing seeks 

dismissal pursuant to Civ. R. 12(B)(6), on mootness grounds, and on the merits. 

Respondent, Ohio Department of Commerce’s Motion to Dismiss and Response to 

Complaint, filed March 15, 2023. 

II. Analysis. 

A. The Department’s Civ.R. 12(B)(6) motion should be denied.
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{¶8} The special master recommends that the Department’s Civ.R. 12(B)(6) motion 

be denied, for two reasons.

{¶9} First, Mr. Rose alleged sufficient facts to state a claim. A party invoking 

R.C. 2743.75 must “plead * * * facts showing that the requester sought an identifiable 

public record pursuant to R.C. 149.43(B)(1) and that the public office * * * did not make 

the record available.” Welsh-Huggins v. Jefferson Cty. Prosecutor’s Office, 163 Ohio St.3d 

337, 2020-Ohio-5371, 170 N.E.3d 768, ¶ 33. Mr. Rose pled that he made multiple public 

records requests. Those requests reasonably identified the records he wanted, as 

discussed below. Mr. Rose also pled that his requests were denied. Complaint, pp. 1-2, 

5, 7, 9-10, 12. That stated a claim.

{¶10} Second, the Department’s argument that dismissal is appropriate because 

Mr. Rose did not file evidence in response to the February 17, 2022, order goes beyond 

the scope of the rule the Department invokes. Civ.R. 12(B)(6) goes to the sufficiency of 

the complaint, not to evidence that is or is not submitted later in the case. 

B. The Department has not proven mootness. 

{¶11} The special master recommends that the Department’s mootness argument 

be rejected for want of proof. 

{¶12} As a general rule, the party asserting mootness has the burden of proving 

facts establishing that defense. Heartland of Portsmouth, OH, LLC v. McHugh Fuller Law 

Group, PLLC, 2017-Ohio-666, 85 N.E.3d 191, ¶ 17 (4th Dist.). That burden applies in the 

specific context of public records cases; a respondent asserting mootness must provide 

evidence that it produced the records at issue. State ex rel. Strothers v. Keenon, 2016-

Ohio-405, 59 N.E.3d 556, ¶ 40 (8th Dist.); State ex rel. Conley v. Park, 5th Dist. Stark No. 

2014CA00169, 2016-Ohio-5199, ¶ 17. A party asserting that a claim for production of 

records was mooted must prove that all responsive records were produced. Compare 

State ex rel. Toledo 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 Police Forensic 

Laboratory, 157 Ohio St.3d 483, 2019-Ohio-4201, 137 N.E.3d 1171, ¶ 7 (claim not mooted 

absent evidence that all responsive records were produced).
Case No. 2022-00711PQ -4- REPORT AND RECOMMENDATION

{¶13} The Department contends that this case is moot because it provided Mr. 

Rose with some records during mediation. That is insufficient in two respects.

{¶14} First, the Department’s evidence does not show that it satisfied Mr. Rose’s 

requests. Instead, all it shows is that the Department produced documents it deemed 

responsive to a request that its counsel framed. Respondent’s Evidence, p. 32. It 

produced no evidence that Mr. Rose agreed that her reframed request superseded or 

satisfied his own requests. Finding mootness on that evidence would be akin to finding 

that a claim for damages was satisfied based on a defendant’s unilateral assertion that it 

paid all that it thought it owed the plaintiff.

{¶15} Second, The Department has produced no evidence that the records it 

produced constituted the entire universe of records responsive to Mr. Rose’s requests.

The record here establishes that his basic request, restated in various forms, is all 

inclusive; he wants every record generated in connection with his complaint. He initially 

sought “all of the records” showing what action was taken on his complaint. Id. p. 9 

(emphasis added). His later communications were equally comprehensive, referencing 

“materials records * * * generate[d] in the 7 months since I put my complaint in” and “files 

* * * generated since I first made my records request,” with no limitation as to the types of 

records sought. Id. at pp. 13, 23. The Department recognized that scope, balking because 

he sought “all of the records” and “any” and “all” records tied to his complaint. Id. at pp. 

11, 18, 22, 26. The Department, however, only produced several discrete types of records 

provided in response to a narrower request and has provided no evidence that those 

discrete records are all the records responsive to Mr. Rose’s comprehensively scoped 

requests. 

{¶16} The Department has failed to meet its burden of proving mootness. Mr. 

Rose’s claim therefore remains alive as to any responsive records that have not been 

produced. 

C. Mr. Rose’s requests reasonably identified the records he sought, and the 

Department violated R.C. 149.43(B)(1) by refusing his requests.

{¶17} R.C. 149.43(B)(1) mandates that “[u]pon request * * * all public records 

responsive to the request shall be promptly * * * made available[.]” There is no dispute 
Case No. 2022-00711PQ -5- REPORT AND RECOMMENDATION

that what Mr. Rose requested were public records; the Department has not claimed that 

he seeks anything excepted from the category of public records. Instead, the Department 

justifies rebuffing his requests by claiming that they were ambiguous or overbroad, 

apparently because they used the words “any” and “all.” 

{¶18} That justification is not persuasive. The substance of those requests, 

considered in light of the context known to the Department, was not ambiguous because 

they reasonably identified the records he asked for. That substance and context also 

avoided overbreadth by providing discernable bounds to the universe of responsive 

records. 

{¶19} R.C.149.43 “does not require perfection in public-records requests.” State ex 

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

1208, ¶ 37. Instead, the standard is reasonableness. An office is obligated to produce 

records identified with “reasonable clarity,” State ex rel. Kesterson v. Kent State Univ., 

156 Ohio St.3d 22, 2018-Ohio-5110, 123 N.E.3d 895, ¶ 22, and an office may request 

clarification if the request does not “reasonably identify” the records sought. 

R.C. 159.43(B)(2). 

{¶20} The evaluation of whether a request reasonably identifies the records sought 

should not made in a vacuum. The responding official should consider “the totality of facts

and circumstances,” “the context,” and the “circumstances surrounding” the request. 

State ex rel. Zidonis v. Columbus State Community College, 133 Ohio St.3d 122, 2012-

Ohio-4228, 976 N.E.2d 861, ¶ 26; Morgan, 112 Ohio St.3d 33, ¶ 33. 

A request is likely to reasonably identify the records sought if it refers the public office to 

a specific subject matter, it is sent to or identifies an official with knowledge of that subject 

matter, and it references a relevant time period. Id. at ¶¶ 33, 35, 37; Kesterson, 156 Ohio 

St.3d 22, ¶¶ 25, 26; State ex rel. Bott Law Group, LLC v. Ohio Dept. of Natural Resources, 

10th Dist. Franklin No. 12AP-448, 2013-Ohio-5219, ¶ 40; Sinclair Media III, Inc. v. City of 

Cincinnati, Ct. of Cl. No. 2018-01357PQ, 2019-Ohio-2623, ¶ 8 (McGrath, J.). Multiple 

descriptors help the office understand what the requester is seeking. 

{¶21} Mr. Rose’s requests were reasonable when measured against those 

standards. 
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{¶22} The background of Mr. Rose’s requests, the “the context” and 

“circumstances surrounding” them, was his complaint about a mobile home park operated 

by the Society of Sportsmen, Inc. That complaint was made in December of 2021 to 

Bryant Hillman, a specific Department official. Respondent’s Evidence, pp. 4-6. The 

Department understood that context. Id. at p. 14 (“I see you filed a complaint with our 

Division that alleged the existence of an unlicensed manufactured home park”); 16

(referencing the “complaint you submitted” and “the property at issue in your complaint”);

22 (“I see that your complaint was filed December 3, 2021”).

{¶23} Mr. Rose’s requests were directly tied to that background; they each made it 

clear that he wanted records related to that complaint. They did so by referencing that 

subject matter, an official with knowledge of that subject matter, and the relevant time 

frame: 

- The initial request, made July 20, 2022, referenced the complaint, it was sent 

to the very official who had prior knowledge of that matter (Mr. Hillman) and 

identified the relevant time frame (the seven months since the complaint was 

filed). Id. at p. 9.

- Mr. Rose’s July 27, 2022, response to the Department’s initial rejection again 

tied the request to his complaint, again identified the official with knowledge of 

that matter, and again set out the relevant time period. Id. at p. 13.

- Mr. Rose reiterated most of those identifiers in his August 4, 2022, email to the 

Department. It too linked his request to his complaint and identified the official 

familiar with the complaint. Id. at p. 17.

- All three of those links were reiterated in Mr. Rose’s August 29, 2022, email; it 

communicated that he was seeking records about his complaint, identified the 

official with knowledge of the complaint, and laid out the relevant time. Id. at p. 

17.

- Mr. Rose restated those connectors to a different Department official on 

September 20, 2022, again directing the Department to his complaint, the 

official who knew about the complaint, and the time frame as identifiers for his 

request. Id. at p. 23. 
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The requests’ syntax may have been less than perfect, but it bears repeating that the law 

“does not require perfection in public-records requests.” Morgan, 112 Ohio St.3d 33, ¶ 37. 

The requests’ content, together with the Department’s understanding of their context, 

reasonably identified the records the Department should have gathered for Mr. Rose. It 

violated R.C. 149.43(B)(1) by failing to do so.

{¶24} That is not changed by the fact that Mr. Rose used the terms “any” and “all.” 

Those words did not add any ambiguity to the requests. To the contrary, they clarified the 

requests’ comprehensive scope. 

{¶25} Those words did not make the requests overbroad. Although “any” and “all” 

can signal overbreadth in some cases, they are not automatically fatal. There is ample 

precedent enforcing requests phrased that way when, as here, the requester sets 

discernable bounds by identifying the subject matter, officials with knowledge of the 

subject matter, and a relevant time frame. Morgan, 112 Ohio St.3d 33, ¶¶ 8, 10, 12, 31-

37; Kesterson, 156 Ohio St.3d 22, ¶¶ 2, 25-26; State ex rel. Cleveland Assn. of Rescue 

Employees v. City of Cleveland, 8th Dist. Cuyahoga No. 111230, 2022-Ohio-3043, ¶¶ 2, 

13. 

{¶26} Nor is the outcome changed by the fact that the Department would have 

preferred that Mr. Rose reframed his request to ask for specific records the Department 

suggested. A requester is not obligated to accept an office’s reformulation of his request 

or conform to the office’s preferred terminology if the request is independently sufficient 

to identify the records he seeks. Cleveland Assn. of Rescue Employees, 2022-Ohio-3043, 

¶¶ 2, 13; Sutelan v. Ohio State Univ., Ct. of Cl. No. 2019-00250PQ, 2019-Ohio-3675, ¶ 

15 rejected in other respects, 2019-Ohio-4026. 

D. Costs. 

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

to recover * * * the amount of the filing * * * and any other costs associated with the 

action[.]” Mr. Rose was aggrieved for the reasons discussed above. He is therefore 

entitled to recover his filing fee and statutory costs incurred in this case.

III. Conclusion.

{¶28} In light of the foregoing the special master recommends that:
Case No. 2022-00711PQ -8- REPORT AND RECOMMENDATION

A. The Department’s motion to dismiss be denied

B. The Department be ordered to produce all records generated in connection 

with Mr. Rose’s December, 2021, complaint that have not already been 

produced.

C. Mr. Rose recover his filing fee and costs incurred in connection with this case. 

{¶29} 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).

TODD R. MARTI

Special Master

Filed April 7, 2023

Sent to S.C. Reporter 5/4/23