Gantler v. Trumbull Cty. Aud.

[Cite as Gantler v. Trumbull Cty. Aud., 2024-Ohio-5969.]

IN THE COURT OF CLAIMS OF OHIO

LEONARD THOMAS GANTLER Case No. 2024-00596PQ

Requester Judge Lisa L. Sadler

v. DECISION AND ENTRY

TRUMBULL COUNTY AUDITOR

Respondent

{¶1} In this public-records case, Requester has filed written objections to a Special

Master’s Report and Recommendation. Respondent opposes Requester’s objections.

{¶2} The Court overrules Requester’s objections and it adopts the Special Master’s

Report and Recommendation for reasons that follow.

I. Background

On July 29, 2024, Requester filed a Complaint against Respondent, alleging a denial

of access to public records in violation of R.C. 149.43(B). Requester asserted:

I had requested paper copies of the Board of Revision minutes for my

Valuation Complaint. Reference No.2023-28-5-00263-RG. 07-22-2024.

The Auditor’s office replied that the Auditor. as the BOR Secretary. does

not prepare minutes. a violation of O.R.C. Section 5715.08.

The Auditor’s office refused to provide me with paper copy transcripts of

my BOR proceedings, a violation of O.R.C. Section 143.43 (B)(6).

The Auditor’s office sent me a series of emails requesting additional

information, my BOR hearing, but provided no record of those emails.

The Auditor’s office terminated my Public Record falsely claiming they

had fully complied with that request.

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

Case No. 2024-00596PQ -2- DECISION & ENTRY

was returned to the Special Master’s docket. Pursuant to Civ.R. 12(B)(6), Respondent

subsequently moved for an order dismissing Requester’s Complaint.

{¶3} On October 15, 2024, the Special Master issued a Report and

Recommendation (R&R). The Special Master notes that Requester asked the Trumbull

County Auditor for paper or PDF copies of certain minutes of the Trumbull County Board

of Revision. The Special Master further notes that the Trumbull County Auditor provided

Requester with a link to download a video of the proceedings because no minutes were

prepared. The Special Master determined in the R&R that this Court has no jurisdiction

to compel Respondent to create the minutes that Requester seeks (R&R, 2), that

Requester’s claim that R.C. 149.43(B)(6) requires Respondent to create a written

transcript of certain proceedings should be rejected because it is at odds with the

language of R.C. 149.43(B)(6) (R&R, 3), and that Requester’s evidentiary submission,

which seeks a declaration that Respondent unreasonably delayed its response to

Requester’s public-records request, was waived because it was not asserted in

Requester’s complaint. (R&R, 3-4.) The Special Master recommends that the Court deny

Respondent’s motion to dismiss because it relies on evidentiary matters beyond the

Complaint (R&R, 2.), that the Court enter judgment for Respondent (R&R, 1, 4), and that

Requester bear the costs of this case. (R&R, 1, 4.)

{¶4} On October 17, 2024, Requester filed written objections to the Special

Master’s Report and Recommendation. According to an accompanying Certificate of

Service, Requester served a copy of the objections on Respondent’s counsel “via United

States Postal Service Certified Mail.”1

{¶5} On October 29, 2024, Respondent filed a written response to Requester’s

objections. A Certification accompanying Respondent’s response suggests that

Respondent’s counsel served a copy of the response by certified U.S. mail.2 In

1 Pursuant to R.C. 2743.75(F)(2), either party may object to a 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 certified mail, return receipt requested.”

2 The Certification accompanying Respondent’s response references an Entry of Appearance, which

was sent to Requester by certified U.S. mail. Under R.C. 2743.75(F)(2) 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.” R.C.

2743.75(F)(2).

Case No. 2024-00596PQ -3- DECISION & ENTRY

opposition, Respondent contends that Requester’s grounds for challenging the Report

and Recommendation “are both procedurally deficient and substantively misguided”

because Requester “fails to articulate with requisite specificity the basis for its objections

and demonstrates a fundamental misunderstanding of the case law cited by the Special

Master.”3

II. Law and Analysis

{¶6} The General Assembly has created an alternative means to resolve public-

records disputes through the enactment of R.C. 2743.75. Welsh-Huggins v. Jefferson

Cty. Prosecutor’s Office, 2020-Ohio-5371, ¶ 11. See R.C. 2743.75(A). Under Ohio law

a requester “must establish entitlement to relief in an action filed in the Court of Claims

under R.C. 2743.75 by clear and convincing evidence.” Viola v. Cuyahoga Cty.

Prosecutor’s Office, 2021-Ohio-4210, ¶ 16 (8th Dist.), citing Hurt v. Liberty Twp., 2017-

Ohio-7820, ¶ 27-30 (5th Dist.). See Welsh-Huggins at ¶ 32. Clear and convincing

evidence “is that measure or degree of proof which is more than a mere ‘preponderance

of the evidence,’ but not to the extent of such certainty as is required ‘beyond a reasonable

doubt’ in criminal cases, and which will produce in the mind of the trier of facts a firm belief

or conviction as to the facts sought to be established.” Cross v. Ledford, 161 Ohio St.

469 (1954), paragraph three of the syllabus. It is a requester’s burden to prove, by clear

and convincing evidence, that the requested records exist and are public records

maintained by a respondent. See State ex rel. Cordell v. Paden, 2019-Ohio-1216, ¶ 8.

3 A review of the Court’s docket in this case shows no return receipt from the U.S. Postal Service

indicating that the Court’s certified mailing of the Report and Recommendation was received by

Respondent. See R.C. 2743.75(F)(2) (“[u]pon submission of the special master’s report and

recommendation to the court of claims under [R.C. 2743.75(F)(1)], the clerk shall send copies of the report

and recommendation to each party by certified mail, return receipt requested, not later than three business

days after the report and recommendation is filed”).

However, since Respondent refers the Special Master’s Report and Recommendation in its

response to Requester’s objections, it thus appears that Respondent has reviewed the Special Master’s

Report and Recommendation. Since the Special Master recommends the issuance of a judgment in favor

of Respondent, the Court finds that proceeding to issue a judgment on Requester’s objections in

accordance with the statutory deadline contained in R.C. 2743.75(F)(2) will not result in material prejudice

to Respondent. See R.C. 2743.75(F)(2) (“[t]he 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”).

Case No. 2024-00596PQ -4- DECISION & ENTRY

{¶7} A public-records custodian has the burden to establish the applicability of an

exception to disclosure of a public record. State ex rel. Cincinnati Enquirer v. Jones-

Kelley, 2008-Ohio-1770, paragraph two of the syllabus. In Jones-Kelley the Ohio

Supreme Court held:

Exceptions to disclosure under the Public Records Act, R.C.

149.43, are strictly construed against the public-records

custodian, and the custodian has the burden to establish the

applicability of an exception. A custodian does not meet this

burden if it has not proven that the requested records fall

squarely within the exception. (State ex rel. Carr v. Akron, 112

Ohio St.3d 351, 2006 Ohio 6714, 859 N.E.2d 948, P 30,

followed.)

Kelley at paragraph two of the syllabus.

{¶8} R.C. 2743.75(F)(2) requires that any objection to a report and

recommendation “shall be specific and state with particularity all grounds for the

objection.” In a memorandum, Requester challenges the Special Master’s application of

certain case law.4 Requester presents the following objection: “Requester objects to the

Special Master's finding that O.R.C. 149.43 (B)(6) does not require respondent to

create a written transcript of the Board of Revision’s proceedings.” Requester

states:

[V]ideotaped proceedings in lieu of minutes is commonly practiced

by Ohio public bodies but such usage does not relieve an Ohio public body

of compliance with Ohio Sunshine Laws, in this case a request made for a

paper transcript in accordance with O.R.C. 149.43 (B)(6). The ruling made

by the Special Master would preclude any Ohio public body using

videotapes in lieu of minutes from compliance with O.R.C. 149.43 (B)(6).

No such authority exists in either Ohio statutory or administrative law. Both

the Special Master’s finding on this issue and his award of costs should be

reversed, the requester’s objection upheld and an order issued to the

respondent to provide a paper transcript of the Board of Revision's

videotaped April 10, 2024 hearing.

4 Requester contests the Special Master’s application of City Loan & Savs. Co. v. Morrow, 96 Ohio

App. 476 (4th Dist.1954), “the Dispatch case,” and State ex rel. Slagle v. Rogers, 2004- Ohio-4354.

Case No. 2024-00596PQ -5- DECISION & ENTRY

{¶9} Requester’s objection is not well taken for several reasons.

{¶10} First, under Ohio case law, a public office “has no duty to provide records

that do not exist, or that it does not possess.” Viola v. Cuyahoga Cty. Prosecutor’s Office,

8th Dist. Cuyahoga No. 110315, 2021-Ohio-4210, ¶ 22 (8th Dist.), citing State ex rel.

Gooden v. Kagel, 2014-Ohio-869, ¶ 5, 8-9. In this instance, because a transcript of the

requested hearing does not exist, Respondent has no duty to provide a PDF copy or, a

paper copy. of a non-existent transcript.

{¶11} Second, according to Ohio case law, under the public-records statute the

government “has the duty to supply records, not information, and the government has no

duty to create records to meet a requester’s demand.” State ex rel. Morabito v. City of

Cleveland, 2012-Ohio-6012, ¶ 14 (8th Dist.), citing State ex rel. Lanham v. Ohio Adult

Parole Auth., 80 Ohio St.3d 425 (1997); State ex rel. Mayrides v. Whitehall, 62 Ohio St.3d

203 (1991); State ex rel. Warren v. Warner, 84 Ohio St.3d 432 (1999); and State ex rel.

Fant v. Tober, 1993 Ohio App. LEXIS 2591 (8th Dist. April 28, 1993). Accord State ex

rel. Cioffi v. Stuard, 2010-Ohio-829, ¶ 21 (11th Dist.), citing State ex rel. Lanham v. Smith,

2007-Ohio-609, ¶ 15 (“[i]n delineating the parameters of the express duty under R.C.

149.43(B)(1), the Supreme Court of Ohio has indicated that a public official is not required

to create or provide access to a ‘record’ or document which never existed”). Thus, in this

instance, Respondent has no duty to create a PDF copy of a non-existent transcript or

create a paper copy of a non-existent transcript.

{¶12} Third, even assuming for the sake of argument that the Special Master’s use

of certain legal authority is inapt, as Requester’ contends, the Special Master’s

conclusions of law and recommendations are nonetheless consistent with the ordinary

application of case law as they existed at the time of the filing of the Complaint. It

therefore does not follow that the Special Master’s conclusions of law or

recommendations lack merit. See Myers v. Garson, 66 Ohio St.3d 610, 614 (1993) (“a

reviewing court is not authorized to reverse a correct trial judgment merely because

erroneous reasons were assigned as a basis”).

{¶13} Fourth, in an original action before this Court, the Court lacks statutory

jurisdiction over Respondent for an alleged violation of R.C. 5715.08 by a county board

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of revision. See R.C. 2743.02(E) (“[t]he only defendant in original actions in the court of

claims is the state”); R.C. 2743.01(A) (as used in R.C. Chapter 2743, the “state” “means

the state of Ohio, including, but not limited to, the general assembly, the supreme court,

the offices of all elected state officers, and all departments, boards, offices, commissions,

agencies, institutions, and other instrumentalities of the state. ‘State’ does not include

political subdivisions”); R.C. 2743.01(B) (defining the term “political subdivisions, as used

in R.C. Chapter 2743).

III. Conclusion

{¶14} For reasons set forth above, the Court OVERRULES Requester’s Objection

To Special Master Report and Recommendation filed on October 17, 2024. The Court

adopts the Special Master’s Report and Recommendation issued on October 15, 2024.

Respondent’s motion to dismiss is denied, judgment is entered in favor of Respondent,

and court costs are assessed to Requester, in accordance with the Special Master’s

recommendations. The Clerk shall serve upon all parties notice of this judgment and its

date of entry upon the journal.

LISA L. SADLER

Judge

Filed November 5, 2024

Sent to S.C. Reporter 12/20/24