# Brown-Austin v. S. Ohio Corr. Facility

> Ohio Court of Claims · November 18, 2025 · 2025 Ohio 5274

URL: https://www.frixlaw.com/law-library/cases/11207988

## Case

- **Court:** Ohio Court of Claims
- **Decided:** November 18, 2025
- **Citations:** 2025 Ohio 5274
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** Marti
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

[Cite as Brown-Austin v. S. Ohio Corr. Facility, 2025-Ohio-5274.]

IN THE COURT OF CLAIMS OF OHIO

YUSUF Y. BROWN-AUSTIN Case No. 2025-00781PQ

Requester Special Master Todd Marti

v. REPORT AND RECOMMENDATION

SOUTHERN OHIO CORRECTIONAL
FACILITY

Respondent

{¶1} This case is before me for a R.C. 2743.75(F) report and recommendation. I
recommend that the court (1) order the respondent to produce copies of the records
responsive to the second component of requester’s July 7 records request subject only
to the redactions listed in the appendix to this report and recommendation; (2) order
respondent to produce the records responsive to requester’s July 24 records request
subject to redactions supported by law; (3) order respondent to pay requester’s filing fee;
(4) order respondent to pay the balance of the costs of this case; and (5) deny all other
relief.

I. Background.
{¶2} Requester Yusuf Brown-Austin is an inmate housed at the respondent
Southern Ohio Correctional Facility (“SOCF”). On June 30, 2025, he made an electronic
public records request for emails concerning him between two officials sent from January
2023 through July 2025. Complaint, filed September 2, 2025; Requester’s Reply to
Respondent’s Answer to Requester’s Complaint (“Reply”), filed October 20, 2025, p. 5.1
{¶3} On July 7, 2025 requester made a paper public records request that had three
components. The first component sought 13 specific documents. The second component
asked for all emails mentioned in the June 30 request from January 1, 2025 through the

1 All references to specific pages of requester’s filings are to the pages of the PDF copies

posted on the court’s docket. All references to respondent’s filings are to the Bates
numbers of those pages.
Case No. 2025-00781PQ -2- REPORT AND RECOMMENDATION

date of the request. The third component requested information about security reviews of
inmates conducted in March, April, May, June, and July of 2025. SOCF provided
unredacted records responsive to the first component on July 30, redacted records
responsive to the second component on July 30 and August 13 of 2025, and objected to
the third component of the request on July 30, 2025. Respondent’s Submission Of
Evidence In Compliance With Order Bypassing Mediation B(4), filed October 2, 2025,
(“Respondent’s Evidence”), SOCF (B)(4) 004, ¶ 4, SOCF (B)(4) 009.
{¶4} On July 24, 2025, requester made an electronic public records request for
records related to the security reviews inquired of in the third prong of his July 7 record
request. SOCF objected to this request and has provided no records in response to it.
Complaint, pp. 2, 7; Respondent’s Answer to Requester’s Complaint, filed October 9,
2025, (“Answer”) ¶ 2; Respondent’s Memorandum In Opposition To Requester’s Motion
For Sanctions And Notice Of Non-Compliance, filed October 21, 2025, p. SOCF Opp.
003.
{¶5} Requester filed this case to compel the production of additional records, to
challenge the redactions to the records already produced, to obtain a declaration that
SOCF unreasonably delayed its response to his requests, and to recover R.C. 149.43(C)
delay damages. Mediation was bypassed and a schedule was set for the parties to file
evidence and memoranda supporting their positions. That schedule has run its course,
making the case ripe for decision. Order Bypassing Mediation, entered September 5,
2025; Order, entered September 17, 2025; Order, entered November 7, 2025.
Case No. 2025-00781PQ -3- REPORT AND RECOMMENDATION

Analysis.
A. June 30 request.
{¶6} A public records request is superseded by a subsequent request that modifies
the original request. Schaffer v. Ohio State Univ., 2024-Ohio-2185, ¶ 56, adopted 2024-
Ohio-2625 (Ct. of Cl.); Ryan v. City of Ashtabula, 2023-Ohio-621, ¶ 12, adopted 2023-
Ohio-1487 (Ct. of Cl.); Little Turtle Civic Assoc. v. City of Columbus, 2021-Ohio-4439,
¶ 12, adopted 2021-Ohio-4655 (Ct. of Cl.). The June 30 request sought “any and all e-mail
exchanges between UMC Oppy and Case Manager Rush and Warden Davis that mention
my name from January 1, 2023 until July 1, 2025 to each other and/or others.” Reply, p.
5. The July 7 request sought the same emails, but modified the June 30 request by
seeking records generated during a shorter period of time, from January 2025 rather than
January 2023. Respondent’s Evidence, SOCF (B)(4) 004, ¶ 4, SOCF (B)(4) 009. The July
7 request therefore superseded the June 30 request, making the June 30 request moot.
{¶7} That is not changed by requester’s assertion that the July 7 request was
simply a means to forward a cash slip to cover the costs of copying the records requested
on June 30. The fact remains that the July 7 request clearly limited the temporal scope of
requester’s request for emails, regardless of requester’s reason for submitting the
request. SOCF reasonably relied on that limitation.
{¶8} I therefore recommend that the court grant no relief based on the June 30
request.

B. The July 7 request.
1. First Component.
{¶9} Production claim. “In general, the provision of requested records to a
[requester] in a public-records . . . case renders the . . . claim moot.” State ex rel.
Cincinnati Enquirer v. Dupuis, 2002-Ohio-7041, ¶ 8. A public records case can be mooted
by the respondent producing the responsive records during the course of the litigation.
State ex rel. Striker v. Smith, 2011-Ohio-2878, ¶¶ 17-18, 22.
{¶10} This component of the July 7 request sought 13 specifically identified kites
and grievance documents. A review of Respondent’s Evidence reveals that the
documents were served when they were filed with the court. Requester’s claim for
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production of these documents is consequently moot. Respondent’s Evidence, pp. SOCF
B(4) 05 ¶ 5; 06 ¶ 9, 012-54, 087-136.
{¶11} Delay Claim. Respondent has produced unrebutted affidavit testimony that
it received this request on July 9, 2025, and provided the responsive records on July 30,
2025. Id. pp. SOCF B(4) 04 ¶ 4, 05 ¶ 5. That is a response time of 15 business days.
Requester has provided no evidence or argument as to why that was an unreasonable
response time, as was his burden. See State ex rel. Howson v. Edmonson, 2024-Ohio-
4619, ¶ 18 (requester has burden of proving delay claim); Isreal v. Franklin Cty. Commr’s,
2021-Ohio-3824, ¶ 14 (10th Dist.) (finding that a 30 business day response time was
reasonable).
{¶12} I therefore recommend that the court grant no relief on this component of the
July 7 request.

2. Second component.
{¶13} Production. A party invoking R.C. 2743.75 must “prove facts showing that
the requester sought an identifiable public record pursuant to R.C. 149.43(B)(1) and that
the public office or records custodian did not make the record available.” Welsh-Huggins
v. Jefferson Cty. Prosecutor’s Office, 2020-Ohio-5371, ¶ 33 (emphasis added). SOCF has
provided affidavit testimony that it provided responsive records in two installments.
Respondent’s Evidence, pp. SOCF B(4) 05 ¶ 5; 06 ¶ 9, 012-54, 087-136.
{¶14} Although requester has disputed the dates that the records were made
available, he has not disputed that he received all responsive records, albeit subject to
redactions. He has therefore failed to meet his burden of proving that SOCF “did not make
the record[s] available,” except as to the redactions.
{¶15} Redactions. If a redaction is based on an exemption from public record
status the public office must prove the propriety of applying the exemption. A public office
asserting an exemption must “prove facts clearly establishing the applicability of the
exemption.” Welsh-Huggins, 2020-Ohio-5371, ¶ 27 (internal punctuation omitted). See
also, Id. at ¶¶ 35, 54. It “does not meet this burden if it has not proven that the requested
records fall squarely within the exception,” and the courts “resolve any doubt in favor of
disclosure.” Id. at ¶¶ 27, 63. See also id. at ¶¶ 50, 63. The public office must produce
extrinsic evidence if the applicability of the exemption is “not obviously apparent and
Case No. 2025-00781PQ -5- REPORT AND RECOMMENDATION

manifest just from the content of the record itself[.]” Id. at ¶ 35. See also id. at ¶¶ 30, 50,
53. “Unsupported conclusory statements in an affidavit are insufficient.” Id. at ¶ 35.
{¶16} SOCF advances three bases for the reactions it made to the records
responsive to this component. Only one is valid.
{¶17} R.C. 149.433. The first is that the redacted materials are security records
within the meaning of R.C.149.433. Subsection (A) of that statute defines security records
as records that are “directly used for protecting or maintaining the security of a public
office against attack, interference, or sabotage;” to address terrorism, or that are
“emergency management plan[s] adopted pursuant to section 5502.262 of the Revised
Code.” (emphasis added). SOCF has provided no evidence or argument that the redacted
materials pertain to terrorism or are part of an emergency management plan, and the fact
that the redacted materials fit within those categories is not obvious and apparent from
the materials themselves.
{¶18} That leaves only the “attack, interference, or sabotage” alternative. That
requires proof of how the respondent “directly used” the information to prevent those
harms; proof that the materials’ release might result in those harms is not enough absent
proof of the respondent actually using the materials to prevent them. Welsh-Huggins,
2020-Ohio-5371, ¶¶ 57, 58, 65. “Under R.C. 149.433(A)(1), a record’s status as a security
record is determined by the public office’s actual use of the information. It is not
determined by a public requester’s potential use or misuse of the information.” Id. at ¶ 69.
“The General Assembly has not crafted an exception to the release of a record based on
the custodian’s subjective view that the information that the record contains could be
dangerous if placed in the wrong hands.” Id. at ¶ 69. Although SOCF provided affidavit
testimony that release of the information redacted on this basis might lead to undesirable
results, it has provided nothing showing that it used that information to prevent those
results. It has therefore failed to meet its burden of proving R.C. 149.443’s applicability.
{¶19} R.C. 5120.21(D). This statute identifies seven specific categories of records
that are exempted public record status. The fact that any of the redacted materials might
fall within one of these categories is not obvious and apparent from the redacted records
and SOCF has provided no evidence or explanation as to why they do. SOCF has
therefore failed to prove this statute’s applicability.
Case No. 2025-00781PQ -6- REPORT AND RECOMMENDATION

{¶20} Adm. Code. 5120-9-31(H). R.C. 149.43(A)(1)(v) exempts records “the
release of which is prohibited by state or federal law” from the class of public records.
Administrative regulations are “law[s]” that can prohibit a record’s release within the
meaning of R.C. 149.43(A)(1)(v). Graham v. Lake Cty. JFS/CSEA, 2023-Ohio-2321, ¶ 13,
aff’d 2023-Ohio-4366 (11th Dist.). Adm. Code. 5120-9-31(H) provides that “[g]rievance
records are considered confidential” and controlling precedent establishes that similar
language prohibits the release of a record within the meaning of R.C. 149.43(A)(1)(v)’s
identical predecessors. State ex rel. Taxpayers Coalition v. City of Lakewood, 86 Ohio
St.3d 385, 390 (1999); State ex rel. Renfro v. Cuyahoga Cty. Dept. of Human Servs., 54
Ohio St.3d 25, 27 (1990). Redactions that obscure grievance related records are
therefore proper.
{¶21} The fact that the materials redacted in Respondent’s Submission Of Records
In Compliance With Order Bypassing Mediation, filed October 2, 2025, (“Responsive
Records”) at pp. SOCF (B)(1) 09, 015, 017, 018, 020, and 021 are such records is obvious
and apparent from the records themselves. Those redactions are proper. That is not true,
however, of the redactions to Responsive Records, pp. SOCF(B)(1) 010, 011, 012, 014,
023, and 024. The materials redacted from those records are from “kites,” and kites are
not grievance records. They are not among the steps of the grievance process set out in
Adm. Code 5120-9-31, but instead are means of communication that convey information
beyond grievance related matters. Compare Adm. Code. 5120-9-31(I) with ODRC Policy
50-PAM-02(VI)(E).
{¶22} I therefore recommend that the court order SOCF to produce copies of the
records previously produced without any redactions other than those made to Responsive
Records, pp. SOCF (B)(1) 09, 014, 015, 017, 018, 020, and 021.
{¶23} Delay. R.C. 149.43(B)(1) mandates that upon request, “all public records
responsive to the request shall be promptly . . . made available for inspection to the
requester at all reasonable times during regular business hours.” It further requires that
when requested, the “public office . . . shall make copies . . . available . . . within a
reasonable period of time.” An office’s compliance with those requirements is evaluated
based on the facts and circumstances of the request. State ex rel. Morgan v. Strickland,
Case No. 2025-00781PQ -7- REPORT AND RECOMMENDATION

2009-Ohio-19015, ¶ 10; State ex rel. Kesterson v. Kent State Univ., 2018-Ohio-5108,
¶ 16.
{¶24} SOCF has provided affidavit testimony that it received this request on July
7, 2025, and that it provided the responsive records to requester in two installments. It
produced some records on July 30, and proffered the balance of the responsive records
on August 13, subject to requester paying for their copying. Respondent’s Evidence, pp.
SOCF (B)(4) 04 ¶ 4; 05 ¶ 6, 06 ¶¶ 8, 9. The period from July 7 to August 13 was 25
working days.
{¶25} There are four reasons why that was a reasonable response time. First, other
cases have found that similar response times are reasonable. Isreal, 2021-Ohio-3824,
¶ 14. While that factor is not dispositive, it undercuts requester’s delay claim. Second, the
records had to be retrieved from offsite. Respondent’s Evidence, p. 06 ¶ 9. Third, the
records had to be reviewed for redactions. That justifies some lag between the request
and production. Fourth, SOCF produced some records on July 30. This also undermines
requester’s delay claim.
{¶26} On balance, those facts indicate that SOCF’s 25 day response time was
reasonable. While that period “may stretch the outer limits of the ‘reasonable period of
time’ in which to produce copies of reasonably identified records, . . . under the facts and
circumstances in this case . . . [this requester] has not shown by clear and convincing
evidence that [SOCF] violated the timeliness requirement of R.C. 149.43(B)(1) with
respect to these records.” Isreal, 2021-Ohio-3824, ¶ 14.
{¶27} That is not changed by requester’s assertion that he did not actually receive
the second installment of records until October because requester has not proven the
factual basis for that assertion. Although requester’s unsworn memoranda make that
assertion, those unsworn memoranda are not evidence. Meadows v. Freedom Banc, Inc.,
2005-Ohio-1446, ¶ 20 (10th Dist.). Further, the document he asserts proves that fact
actually refers to a different records request. Compare Respondent’s Evidence, p. SOCF
B(4) 09 with Requester’s Motion to Attach Supplemental Exhibit, filed October 23, 2025,
p. 3. Consequently, the only evidence we have as to the date that SOCF made the second
installment of the records available is SOCF’s affidavit testimony fixing that date as August
13. That was a reasonable response time, as previously explained.
Case No. 2025-00781PQ -8- REPORT AND RECOMMENDATION

{¶28} I therefore recommend that the court reject requester’s delay claim regarding
this component of the July 7 request.
3. Third Component.
{¶29} This component requested a “complete list of inmates who received a level
E security review by name, inmate No., date of review, time of review, and unit/cell
location at time of review, for March 2025, April 2025, May 2025, June 2025, and July
2025.” Respondent’s Evidence, p. SOCF (B)(4) 009. No relief is available regarding that
request because it sought information rather than records.
{¶30} R.C. 149.43(B)(1) codifies a right to records that capture information, but not
to information apart from records. It nowhere mentions information in the abstract. It
instead provides that upon “request . . . public records responsive to the request shall be
. . . made available[.]” (emphasis added). A “public record” consists of a “record,” and a
“record” is something that contains information, but is different than the information itself.
It is a “document, device, or item” recording information. R.C. 149.011(G). R.C.
149.43(B)(1) therefore does not direct offices to provide free floating information, but only
documents, devices, or items containing information.
{¶31} The cases reflect the distinction. Relief is denied when the claimant
“requested information rather than records” State ex rel. Griffin v. Sehlmeyer, 2022-Ohio-
2189, ¶ 1 because requests “for information *** are improper requests under R.C. 149.43.”
State ex rel. Morgan v. City of New Lexington, 2006-Ohio-6365, ¶ 30. See also Griffin,
2022-Ohio-2189, ¶¶ 10-13; State ex rel. Griffin v. Sehlmeyer, 2021-Ohio-1419, ¶¶ 11-12;
State ex rel. Griffin v. Sehlmeyer, 2021-Ohio-3624, ¶¶ 5-6; State ex rel. Fant v. Tober,
1993 Ohio App. LEXIS 2591, at **2-4 (8th Dist.), aff’d, 68 Ohio St.3d 117 (1993) (denying
relief because claimant’s request did “not indicate what records [he] would like to examine
as much as what information he would like to receive”).
{¶32} This request seeks information apart from records: the names of inmates
subject to security reviews and related facts. It is consequently unenforceable.
{¶33} I therefore recommend that the court grant no relief regarding this
component of the July 7 request.
C. July 24 request.
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{¶34} Requester’s complaint alleged that he requested copies of the “complete
security level review documents from all level E inmate security level reviews conducted
at S.O.C.F.” from March through July of 2025. Requester also alleged that SOCF denied
that request based on R.C. 149.433 and R.C. 5120.21(F) on July 30, 2025. Complaint,
pp. 1, 7.
{¶35} Production claim. SOCF admitted that requester made that request, but
denied that the request was made on July 24. One of SOCF’s own filings later confirmed
that requester in fact made that request on July 24. Answer, ¶ 2; Respondent’s
Memorandum In Opposition To Requester’s Motion For Sanctions And Notice Of Non-
Compliance, filed October 21, 2025, p. SOCF Opp. 003. Neither SOCF’s answer nor its
later submissions dispute that it denied the request or the bases for the denial. Those
facts are therefore admitted pursuant to Civ. R. 8(D). Myers v. Paint Twp., 2024-Ohio-
4784, ¶¶ 6, 8, 10, 12, adopted October 21, 2024 (Ct. of Cl. Case No. 2024-00426PQ).
{¶36} A party invoking R.C. 2743.75 must “prove facts showing that the requester
sought an identifiable public record pursuant to R.C. 149.43(B)(1) and that the public
office or records custodian did not make the record available.” Welsh-Huggins, 2020-
Ohio-5371, ¶ 33 (emphasis added). Requester’s undenied allegations establish those
elements. The burden of proof therefore shifted to SOCF.
{¶37} As mentioned above, a public office asserting an exemption must “prove
facts clearly establishing the applicability of the exemption.” Id., ¶ 27 (internal punctuation
omitted). See also, Id. at ¶¶ 35, 54. It “does not meet this burden if it has not proven that
the requested records fall squarely within the exception,” and the courts “resolve any
doubt in favor of disclosure.” Id. at ¶¶ 27, 63. See also id. at ¶¶ 50, 63. The public office
must produce extrinsic evidence if the applicability of the exemption is “not obviously
apparent and manifest just from the content of the record itself[.]” Id. at ¶ 35. See also id.
at ¶¶ 30, 50, 53. “Unsupported conclusory statements in an affidavit are insufficient.” Id.
at ¶ 35.
{¶38} SOCF’s statutory litigation counsel made no effort to meet that burden. See
R.C. 109.02. They did not file the responsive records for camera review or file an index
disclosing the legal basis for withholding the responsive records. They did not obtain
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affidavit testimony regarding this request or the records responsive to it. They did not file
a memorandum supporting their client’s position. The result is an utter failure of proof.
{¶39} I therefore recommend that the court order SOCF to produce the records
responsive to this request. However, because the records likely contain information
exempted from the class of public records that could disrupt the inherently fraught prison
environment, and because neither SOCF’s staff nor its inmates should suffer because of
its counsel’s lapses, I recommend that SOCF be allowed to redact any such information.
See Matis v. Toledo Police Dept., 2023-Ohio-4878, ¶¶ 9-12, adopted 2024-Ohio-567 (Ct.
of Cl.).
{¶40} Delay claim. Requester made this request on July 24. He alleged that SOCF
responded on July 30. Complaint, pp. 1, 7. That was a period of three business days.
Requester has provided no evidence or argument as to why that response time was
unreasonable.
{¶41} I therefore recommend that the court find no violation of R.C. 149.43(B)(1)
regarding that response time.

D. Motions.
{¶42} The parties have filed multiple procedural motions: Requester’s October 9,
2025, Motion for Sanctions; Requester’s October 14, 2025, Notice of Non-Compliance;
Requester’s October 15, 2025, Motion to Attach Evidentiary Support; Respondent’s
November 3, 2025, Motion to Strike. I recommend that those motions be DENIED for two
independently dispositive grounds. First, the parties did not obtain leave to file those
motions as required by R.C. 2743.75(E)(2). Second, the parties have not proven grounds
for the relief they sought through those motions.
{¶43} I therefore recommend that the court DENY those motions.

E. Costs.
{¶44} R.C. 2743.75(F)(3)(b) provides that the “aggrieved person shall be entitled
to recover from the public office . . . the amount of the filing fee . . . and any other costs
associated with the action[.]” Requester was aggrieved by SOCF’s improper redactions
to the records responsive to his July 7 request. I therefore recommend that he recover
Case No. 2025-00781PQ -11- REPORT AND RECOMMENDATION

his filing fee and the costs he incurred in this case. I also recommend that SOCF bear the
balance of the costs of this case.

II. Conclusion.
In light of the foregoing I recommend that the court:
A. Order the respondent to produce copies of the records responsive to the
second component of requester’s July 7, 2025, records request subject only to
the redactions listed in the appendix to this report and recommendation;
B. Order respondent to produce the records responsive to requester’s July 24
2025, records request subject to redactions supported by law;
C. Order respondent to pay requester’s filing fee;
D. Order respondent to pay the balance of the costs of this case; and
E. Deny all other relief.
{¶45} 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 November 18, 2025
Sent to S.C. Reporter 11/24/25
Case No. 2025-00781PQ -12- REPORT AND RECOMMENDATION

APPENDIX

(Appropriate Redactions)

Redactions made to Respondent’s Submission Of Records In Compliance With Order
Bypassing Mediation, filed October 2, 2025, at pp. SOCF (B)(1) 09, 015, 017, 018, 020,
and 021

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11207988. Public record. Not legal advice.