[Cite as Staton v. Cuyahoga Falls , 2024

- Ohio

- 818.]

IN THE COURT OF CLAIMS OF OHIO

{¶1} In this public

- records case , Respondent objec ts to a Special Master ’ s Report and Recommendation

. The Court sustains Respondent ’ s first objection and finds Re sponde nt ’ s remaining objections moot for reasons that fol low

.

I. Backgro und {¶2} On August 24 , 2023 , R e quester Matthew S ta ton filed a public

- records complaint against Respondent. In the C ompl aint , Reques ter alleges that , on August 10 , 2023 , he “ requested copy of all records , including name of any person , including employees and season pass holders , that were s canned or otherwise searched in any database , public or private , for sex crimes at any and all public facilities in July and August of 2023. ” 1 Requester also allege s that , on August 21 , 2023 , he “ received an email from

1 The Special Master has described R e quester ’ s public

- records requests as follows:

“ Please provide me with copies of all parent/ guardian consent forms that were signed by all minors who have had their valid government id or any other id scanned or searched in any public or private database for sex offenders at any public facility in July and August 2023. ”

“ Please provide a copy of all records , including names of any person , including employees and season pass holders , that were scanned or otherwise searc h ed in any database , public or private , for sex crimes at any and all public faciliti es in July and August of 2023. ” (Sic.) (Report and Recommendation , 1.) MATTHEW STATON Requester

v. CITY OF CUYAHOGA FALLS Respondent Case No. 2023

- 00559PQ Judge Lisa L. Sadler

DECISION AND ENTRYCase No. 2023

- 00559PQ

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- DECISION & ENTRY

Connor McH ugh , Assistant Law Director[ , ] stating that there were ‘ no records , ’ ” and that , on or about August 10 , 2023 , he “ spo ke wi th an employee at Water Works Family Aquatic Cen ter and was told that the records were stored in an Excel spreadshee [t]. The City of Cuyahoga Falls is require d to p ro vide copies of these recor ds. ” {¶3} The Court appointed a Special Master who referred the case to mediation

. After mediation failed to successfully resolve all disputed issues between the parties , the case was returned to the Spe cial Master ’ s docket. {¶4} On December 12 , 2023 , the Special Master issued a Repor t and R e commendation (R&R). T he Speci al Mast er “ recommends that: A. Respondent be ordered to further investigate which portions of the records filed for in camera review are exempted from production by R.C. 149.43(A)(1)(r) [ a “ public record ” does not mean “ [i] nformation pertaining to the recreational activities of a person under the age of eighteen ” ] , to redact those portions , and to produce the balance of those records within 30 days of the entry a R.C. 2743.75(F)(2) order in this case. B. Requester reco ver his filing fees and costs. C. Respondent b ear the balance of the costs of this case , and D. All other relief be denied. ” (R&R , 9.) {¶5} On December 27 , 2023 , R e spondent filed written objections to the Report and Recommendation. Respondent ’ s counsel sent a copy of Respondent ’ s obje ctions to Requester by certified mail , return receipt requested , according to a Certificat e of Service accompanying the objections. {¶6} Requester has not filed a timely response to Respondent ’ s objections

.

II. L a w a nd Analysis {¶7} The Gen e r al Ass e mb ly has cre ate d a n al ter n at i ve means to resolve public

r e co r ds disput e s th r ough the enact m ent of R.C. 2743. 75

. W e lsh

- Huggin s v. Jeffe rso n Cty . Prose cutor ’ s O ffice , 163 O hio St. 3d 337 , 2020

- Oh i o - 5 3 7 1 , 17 0 N

. E .3d 76 8 , ¶ 1 1

. S e e R .C. 2743.75 (A). U nder Ohio law a requester “ must establi sh entitlement to relief in an action fi led in the Court of Claims under R.C. 2743.75 by clear and convincingCase No. 2023

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- DECISION & ENTRY

evidence

. ” Viola v. Cuyahoga Cty. Prosecutor ’ s Offi c e , 8th Dist. C uyahoga N o. 1 1 0 3 15 , 2021

- Ohio

- 42 1 0 , ¶ 1 6 , citing Hurt v. Liberty Twp. , 2017

- Ohi o - 7820 , 97 N.E.3d 1153 , ¶ 27

- 30 (5th Dis t.)

. See Welsh

- Huggi ns v. Jefferson Cty

. Prosecutor ’ s Office , 1 63 Ohio St.3d 337 , 2020

- Ohio

- 5 371 , 170 N.E.3d 76 8 , ¶ 32

. I t is a r eq u est er ’ s burd en t o pro ve , by clear

a nd con v incing evidenc e , that the requested reco rds exi st and are public records mainta ined by a r espondent

. See State ex rel. Cordell v. Paden , 15 6 Ohio St

. 3d 394 , 201 9

- Ohio

- 12 1 6 , 128 N .E.3d 179 , ¶ 8

. {¶8} A pu b lic

- records cu stodian h as t h e bu rden to establ i sh the app lic abil ity of an exception to dis clo sure of a public rec ord

. S tate ex rel. Cinc innati Enquirer v. Jones

Kelley , 118 Ohio St.3d 81 , 2008

- Oh i o - 1770 , 886 N.E.2d 206 , paragr aph t wo of the sy llabus. In Jon es - Kell ey , the Ohio Supr eme C ourt held: Exception s to disclosu re under the Public Records Act , R.C. 149.43 , a re strictly con strued aga inst the public

- records custodian , and the custodian has the burden to establi sh the ap plicabili ty of an exception. A c ustodian does not meet this b u rd en if it has no t prov en t hat the requested records fall sq uarely within the exce ption. ( State ex rel

. Car r v . Akron , 112 Ohio St.3d 351 , 2006 Ohio 6714 , 859 N.E.2d 9 48 , ¶ 30 , followed.) Jones

- K elley at pa ragraph two of the syll abu s. {¶9} Pur suant to R.C. 2743.75(F)(2) , a ny objection to a report and recommendation “ shall be specific and state with particularity all grounds for the objection. ” Respondent pres ents four objec tions for the Court ’ s determination

.

Objection 1: The Special Master Erred in Holding The se Documents are Records

.

Objection 2: The Specia l Maste r Erred in Holding the City Ha s Failed to Identify Exempted Information.

Objection 3: The Special Master Erred in Holding the City ’ s Claim of Inextricably Intertwined R ecords Moot.Case No. 2023

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- DECISION & ENTRY

Objection 4: The Special Master Erred in Holding that Staton has Proven by Clear and Convincing Evidence That He is Entitled to Any Records

.

{¶10} Respondent ’ s first objectio n challenges the Special Master ’ s determination th at the requested documents are records. The definition of record in R.C. 149 .011 contains three e lements: “ t hey must be (1) documents , dev ices , or items , including electronic records , (2) created or received by or coming under the jurisdictio n of the [public] office , (3) th at serve to document the organization , functions , policies , decisions , procedures , operations , or other activities of the office. ” State ex rel. Data Trace Inf o rmation Se rvs. v. C uyahoga Cty. Fiscal Officer , 131 Ohio St.3d 255 , 2012

- Ohio

- 753 , 963 N.E.2d 1288 , ¶ 31 , citing R.C. 149.011 (G)

. I n the Repo rt and Reco mmendation , t he Special Master d etermined th at “ several spread sheets collecting information gathered while determining whether persons 16 years old or older seeking a dmission to the City ’ s aquatic faci lities are sex offenders ” (R&R , 3) “ unquestiona bly ” s a tis f ied “ the first two defining elements of a record ” because they are “ ‘ documents ’ and copies of ‘ elec tronic

recor ds ’ ” ( R&R , 4) and they “ were ‘ created ’ by city employees who input the data and are under the City ’ s ‘ jurisdiction ’ becau se the Cit y was able to retrieve a nd file them in thi s

ca se

. They also have the th ird defining element because they ‘ document the *** policies , *** operations , or other activities of the office. ’ ” (R&R , 4.) The Special Master explained: The spreadsheets were created in the course of executing “ a City of Cuyahoga Falls policy which prohibits sex offenders from entering certain City faci lities ” and verify City employees ’ actions to implement those policies. Respons e to Complaint , pp. 12

- 13 , ¶¶ 5

- 8. They th erefore

“ d ocument ” on e aspect of one of the City ’ s “ p olicies ” : the dates and times that it took specific actions to implement the policy against admitting sex offenders to City facilities . They also “ document ” the City ’ s “ operations and

*** activities ” by memorializing the information that City employees gathered. (R&R , 4.) {¶11} However , the Special Master found that the existence of the third element for what constituted a re cor d was “ a closer c all ” “ because of cases ho lding that namesCase No. 2023

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and addresses of private citizens w ere not rec ords. ” (R&R , 4.) The Special M aster determined that sever al cases , in cluding State ex rel. McCleary v. Roberts , 88 Ohio St.3d 365 , 2000

- Ohio

- 345 , 725 N.E.2d 1144 , d id not “ control ” in this instance. (R&R , 4.) {¶12} The Court respectfully disagrees with the Special Master ’ s view that McCleary does not control in this instance. Rather , the Court finds that the facts , as set forth by the Special Ma ster , align with McCleary . In McCleary the city of Columbus implemented a photo identification program for its Recr eation and Parks Department

. The program require d parents of c hildren who use d the city ’ s pools and other recreation facilities to provide certain personal informa tio n regarding their children (e.g. , t he names , h ome addresses , family information , emergency contact information , and medical history information of participating children ) and , in return , each child was p rovided a photographic identification card to present when using pools and recreation centers. Cornell McCleary requested a copy of the Depart ment ’ s electronic database , whic h contained the personal , iden tifying information regarding those children who were participating in the photo identification progr am. The city ’ s Assistant Director of R ecreation f or the Department of Recreation and Parks refused to release the database and provide the requested information. {¶13} McCleary sought a writ of mandamus in the Franklin County Court of C ommon Pleas , and , after the appropri ate appea ls , the Ohio Supreme Court accepted jurisdiction. T he Ohio Supreme Court held: “ Personal information of private citizens , obtained by a ‘ public office , ’ reduced to writing and placed in recor d form and used by the p ublic office in implementing some lawful regulatory policy , is not a ‘ public record ’ as contemplated by R.C. 149.43. ” McCleary at syllabus. The personal information gathe r ed

“ does n ot hing to docum ent any aspect of the City ’ s Recreation and Parks Department. ” Id. at 368. T he “ disclosure of information about priva te citizens that is accumulated in various gov ernment al files but that reveals littl e or nothing about an agency ’ s own conduct ” do es not serve the purpose of “ shed [ding ] light on a n agency ’ s perf ormance of its statutory duties [.] ” Id. Given that , the Ohio Supreme Court co n cluded that the intrusion upon the const itutionally protected privacy of private citi zens , including ch ildren , wa s

unw arranted. Id

. , citing United States Dept. of Justic e v. Reports Commt. f or Freedom of the Press , 489 U.S. 749 , 780 , 109 S

. Ct. 1468 , 103 L. Ed. .2d 774 (1989)

.Case No. 2023

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{¶14} Upon careful c onsideration , the Court finds t hat this matter is analogous t o McCleary as Respondent obtained the per sonal information of private citizens and reduced this information to writing when it implement ed its regulatory policy. Unlike the regula tory policy itself

— which could be a proper object of a public records request

— the information collected from the private citizens pursuant to the policy does not in any way shed light upon the city ’ s functions

. Acco rdingly , the disclosure of the informatio n would not co ntr ibute to citizen oversight o f the city ’ s performance of it s duties. Therefore , as in McClear y , even though the personal information collected by the city was placed in record for m , it was not a p u blic record because it does not meet the third element

— that the document “ serves t o document the o rganization , functions , polici es , operations , or other activities of the office. ” R.C. 149.011(G) . Therefore , Respondent ’ s f irst objection is well taken and is sustained. {¶15} Because R e spondent ’ s first objection has been sustained , Respondent ’ s

re ma i ning objections are rendere d moot and a d etermination of Respondent ’ s remaining objections is not required. See Ci ty o f Grove City v . Clark , 1 0th Di st. Franklin No. 01AP

1369 , 2002

- Ohio

- 4549 , ¶ 11 (action s or op inio ns are moot w h en they have becom e fictit io us , colora ble , hypothetical , academic or dead) ; see also State ex rel. Karm asu v. Tate , 83 Ohio App.3d 199 , 205 , 614 N.E.2d 8 27 (4th Dist.1992) citing Coulverson v. Ohio Adult Par

ole Auth

. , 4th Dis t. Ross No. 1790 , at 4

- 5 , 1992 WL 97805 (May 11 , 1992) ( a t rial court “ is not requir ed to consider any legal theory , or argument , beyond that which will adequately dispose of the case at hand ” )

. Accord PDK Lab o ratories , I n c. v. Unite d States Drug Enforceme nt Administra tion ( D.C. Ci r. 2004) , 36 2 F.3d 786 , 799 , 360 U.S. App. D.C. 344 ( Roberts , J. , concurri ng in part and co n cur ring in judgme nt) (e xpressing

“ th e card i nal principle of j udicia l restr aint , ” i.e. , “ if it i s not necessary to deci de more , it is

nece ssary not to dec ide more ” )

.

III. Conclusion {¶16} For reasons set forth above , the Court SUS TAIN S Respondent ’ s first objection and finds Respondent ’ s second , third , and fourth objection s moot

. The CourtCase No. 2023

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rejects the Special Master ’ s Report and Recommendation

. Court costs are asse ssed against Requester. The C ler k s ha ll se rve upon all p arties notice of this judgment and its date o f e ntry upon the journal

.

LISA L. SADLER Judge

Filed February 6 , 202 4 Sent to S.C. Reporter 3 / 7 /2 4