The opinion
[Cite as Northwest Ohio Innocence Clinic v. Lucas Cty. Prosecutor's Office, 2026-Ohio-918.]
IN THE COURT OF CLAIMS OF OHIO
NORTHWEST OHIO INNOCENCE Case No. 2025-00973PQ
CLINIC (NWOIC)
Special Master Sarah Pierce
Requester
REPORT AND RECOMMENDATION
v.
LUCAS COUNTY PROSECUTOR’S
OFFICE
Respondent
{¶1} This matter is before me for a report and recommendation. R.C.2743.75(F). I
recommend that the court (1) order respondent to answer the requester’s October 6,
2025, requests, as described in this report and recommendation, (2) order respondent to
release certain records filed under seal, as described in this report and recommendation,
(3) order respondent to reimburse requester’s filing fee, and (4) order respondent to bear
the balance of costs in this case.
I. Background
{¶2} Requester Northwest Ohio Innocence Clinic (the Clinic) seeks records
regarding two criminal cases: “the 1981 murder case against Danny Brown” and “the 1981
rape case against Randolph Lee McCoy.” Complaint, filed Nov. 26, 2025, p. 1.
A. The Brown public records request
{¶3} On October 9, 2024, the Clinic made its first request related to the Brown
case. In an email to Respondent the Lucas County Prosecutor’s Office, the Clinic
requested “the prosecutor’s file for Danny Brown [in] Lower Court # 1981-7048.” Compl.,
p. 1, 4.
{¶4} On February 13, 2025, the Clinic modified its request to ask for more specific
records. Compl., p. 1. The Clinic requested reports noted in a 2016 “list which was an
exhibit provided by LCPO in their motion to quash.” Compl., p. 5. The requested reports
were authored by investigator Tom Ross regarding:
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• An “interview” of “J.R. (10/20/2008).”
• A “phone conversation on April 12, 2001 with J.R.”
• An “interview of Betsy Jackson and Brenda Jackson on May 15, 2001.”
• An “interview of Lewis Jackson on February 5, 2001.”
• An “interview of Calvin Dale Brown on March 12, 2009.”
• An “interview of Randolph Lee McCoy on May 14, 2001.”
Compl., p. 7. The Clinic also requested “copies of any interviews . . . concerning a 2003
BCI partial DNA hit from the key[.]” Compl., p. 5.
{¶5} On October 6, 2025, the Clinic again modified its request for Brown records.
In a letter to the Prosecutor, the Clinic requested three categories of records. First, the
Clinic requested any “investigative reports produced by Tom Ross concerning his follow-
up to a DNA match of a key[.]” Compl., p. 9. Second, the Clinic requested “all interviews
by Tom Ross that were subjected to an in-camera review on 1/13/2017.” Compl., p. 9.
These interviews included “an audio interview of Jeffrey Russell on 4/12/2001” and
investigation reports regarding:
• “an interview with Betsy & Brenda Jackson on May 15, 2001;”
• “buccal swabs from Danny Brown and Sherman Preston on June 6, 2003;”
• “an interview with Lewis Junior Jackson on February 5, 2001;”
• “an interview with Calvin Dale Brown on March 12, 2009;” and
• “an interview with Randolph Lee McCoy on May 14, 2001.”
Compl., p. 11. Finally, the Clinic requested “any reports generated by any federal
agencies.” Compl., p. 11.
{¶6} On November 6, 2025, the Prosecutor notified the Clinic that “[n]o audio/video
interviews” were located. Compl., p. 29. The Prosecutor also withheld responsive reports
as “confidential law enforcement investigatory records.” Compl., p. 29.
B. The McCoy public records request
{¶7} On October 6, 2025, the Clinic requested from the Prosecutor the “prosecutor
file for Case # CR81-6493A (Randolph Lee McCoy).” Compl., p. 9.
{¶8} On November 6, 2025, the Prosecutor provided responsive records but
withheld some files as “trial preparation records.” Compl., p. 29.
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C. Procedural history
{¶9} Mediation was bypassed in this case, and a schedule set for the parties to file
evidence and memoranda supporting their positions. That schedule has run its course,
making this case ripe for decision. Order Bypassing Mediation, entered Dec. 8, 2025.
II. Analysis
A. The Clinic is entitled to relief on its October 6, 2025, Brown request.
{¶10} Operative request. The Clinic began making requests for records related to
the Brown case in October 2024. See Compl., p. 1, 4. The Prosecutor has provided
inspection access and copies of records in response. See Resp. Answer, filed Jan. 30,
2026, ¶ 2-3. The final modification of the Brown case request was made by letter on
October 6, 2025. Compl., p. 9-11. 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.). I therefore consider the
October 6, 2025, letter to be the operative Clinic request for records related to the Brown
case.
{¶11} Production. A person seeking to compel production of public records through
Revised Code 2743.75 must “plead and 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, ¶ 26.
{¶12} The Prosecutor states that, in its response on November 6, 2025, all
responsive records in its possession were either withheld under the CLEIR exception or
noted as “not included in [the Prosecutor’s] case files.” See Resp. Answer, ¶ 8.
{¶13} In the Prosecutor’s November 6 response, it noted that it did not locate any
audio or video interviews in its files. Compl., p. 29. The Prosecutor therefore answered
the Clinic that it did not have any records responsive to the request for “an audio interview
of Jeffrey Russell on 4/12/2001.” Compl., p. 11. In the sealed documents filed by the
Prosecutor, included are reports regarding:
• An in-person interview conducted on October 20, 2008;
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• A phone interview conducted on April 12, 2001;
• An in-person interview conducted on May 15, 2001;
• Buccal swabs taken on March 16, 2000, and April 10, 2001, report dated June
6, 2003;
• An in-person interview conducted on February 5, 2001;
• An in-person interview conducted on March 12, 2009; and
• An in-person interview conducted on May 14, 2001.
See Resp. Notice of Withheld Records Index, filed Jan. 21, 2026.
{¶14} This leaves, unanswered, the Clinic’s request for “investigative reports
produced by Tom Ross concerning his follow-up to a DNA match of a key” and “any
reports generated by any federal agencies.” Compl., p. 9, 11. The Clinic has pled that it
did not receive these records. The Prosecutor has provided no evidence or argument
regarding its non-response to these requests. The Clinic is therefore entitled to an answer
from the Prosecutor these requests.
{¶15} CLEIR exception. If records are withheld from release based on a public
records exception, the public office must “prove facts clearly establishing the applicability
of the exception.” Welsh-Huggins, 2020-Ohio-5371, ¶ 27. The public office “does not meet
[its] burden if it has not proven that the requested records fall squarely within the
exception,” and courts “resolve any doubt in favor of disclosure.” (Cleaned up.) Id. at ¶
27. The public office must produce extrinsic evidence if the applicability of the exception
is “not obviously apparent and manifest just from the content of the record itself[.]” Id. at
¶ 35. “Unsupported conclusory statements in an affidavit are insufficient.” Id. at ¶ 35.
{¶16} The Prosecutor generally asserts that the withheld records are subject to the
CLEIR exception at R.C. 149.43(A)(2). See Resp. Index, filed Jan. 21, 2026, p. 1. In
support of this exception, the Prosecutor filed the withheld records under seal and
submitted two affidavits. Id.; see also Resp. Notice of Filing Ev., filed Jan. 21, 2026. The
affidavits state generally that the records at issue were withheld “due to the criminal
murder case of B.R. being an active, ongoing matter.” Resp. Notice of Filing Evidence, p.
3 ¶ 5 (Borrell Affidavit).
{¶17} The Prosecutor does not specify which CLEIR exception it relies on. See
R.C. 149.43(A)(1)(h) and (A)(2). The CLEIR exception applies “only to the extent” that a
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“record would create a high probability of disclosure” of five types of information. Id.; see
also Kearns v. Boardman Twp. Police Dept., 2025-Ohio-475, ¶ 24, adopted 2025-Ohio-
736 (Ct. of Cl.) (requiring public office to specify CLEIR exception). Because no evidence
is presented regarding uncharged suspects, confidential sources, specific confidential
investigatory techniques, or threats to life, I conclude that the Prosecutor invokes the
more general CLEIR work product exception. R.C. 149.43(A)(2)(a)(iii) and (A)(2)(b).
{¶18} The CLEIR exception for “specific investigatory work product” protects from
disclosure of “information assembled by law enforcement officials in connection with a
probable or pending criminal proceeding.” State ex rel. Caster v. Columbus, 2016-Ohio-
8394, ¶ 19 (citation omitted); accord State ex rel. Myers v. Meyers, 2022-Ohio-1915, ¶ 33
n.1; Colahan v. Worthington Police Dept., 2018-Ohio-4594, ¶ 21-22 (Ct. of Cl.). This
exception does not include routine offense and incident reports. Myers at ¶ 33. This
CLEIR exception expires at the end of a criminal appeal or when an investigation has
been closed. Id. at ¶ 32; see also R.C. 149.43(A)(2)(b).
{¶19} In support of this exception, the Prosecutor submits an affidavit with the
conclusory statement that the records were “deemed withheld due to the criminal murder
case of B.R. being an active, ongoing matter.” Resp. Notice of Filing Evidence, p. 3 ¶ 5
(Borrell Affidavit). From the face of the withheld records, I note that each report is labelled
with some version of “Bobbie Russell Homicide/Aggravated Murder” or “State v. Danny
Brown.”
{¶20} I also take judicial notice of the following information regarding the
prosecution of Danny Brown for the murder of Bobbie Russell. Gold v. Bertram, 2023-
Ohio-4567, ¶ 17-18 (4th Dist.). In 1982, Brown was convicted of aggravated murder and
sentenced to life in prison. Brown v. State, 2025-Ohio-998, ¶ 3 (6th Dist.). In 2000, based
on new DNA testing, Brown was granted a new trial. Id. In response, the state dismissed
the original indictment and, in 2001, Brown was released from prison. Id.
{¶21} In the years following, Brown filed several civil cases to establish his status
as a “wrongfully imprisoned individual” and receive statutory compensation. In his most
recent case, filed in 2023, the Sixth District Court of Appeals noted that “[Brown and the
State] do not dispute that Brown . . . was convicted of a felony, sentenced for that
conviction, and the conviction was vacated.” Brown v. State, 2025-Ohio-998, ¶ 28 (6th
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Dist.). However, the Sixth District held that the “actual innocence” component of Brown’s
wrongful imprisonment claim had already been adversely decided in his first wrongful
imprisonment case. Id. In that first case, the wrongful imprisonment statute required a
showing that, among other things, “no criminal proceeding is pending, can be brought, or
will be brought by any prosecuting attorney . . . against the individual for any act
associated with the underlying conviction[.]” Id. at ¶ 3. The Sixth District affirmed summary
judgment for the State, noting that “the state presented evidence that Brown was still a
suspect in the victim’s murder and that Brown had failed to counter the state’s evidence
that he committed the murder with Civ.R. 56 evidence of his innocence.” Id. This finding
in Brown’s first case barred his claims in his two subsequent wrongful imprisonment
cases. Id. at ¶ 28.
{¶22} Based on the record before me, I cannot conclude that the Prosecutor has
carried its burden to prove that the withheld records fall squarely within the CLEIR work
product exception. Brown was convicted of Bobbie Russell’s murder in 1982, but the
indictment was dismissed in 2001. In or around 2003, the state presented evidence that
Brown remained a suspect in the murder. On their face, it appears that the withheld
reports were compiled in support of the investigation of Bobbie Russell’s murder.
Therefore, the reports might have been compiled for a “probable or pending criminal or
civil proceeding”—the reports were compiled after Brown’s murder indictment was
dismissed and near in time to his wrongful imprisonment proceedings.
{¶23} The CLEIR work product exception expires, however, at the end of the direct
appeal period or when “each agency, office, or official responsible for the matter has made
a decision not to proceed with the matter.” R.C. 149.43(A)(2(b). The direct appeals in
Brown’s wrongful imprisonment cases have all concluded. The original criminal case
against Brown has concluded. The Prosecutor has not submitted sufficient evidence to
demonstrate that the officials responsible for the investigation and prosecution of Bobbie
Russell’s homicide are proceeding with the matter. See Welsh-Huggins, 2020-Ohio-5371,
¶ 50-55 (conclusory affidavit statements not sufficient). And any doubt in a public records
case is resolved in favor of disclosure. See id. at ¶ 10. I therefore recommend that the
court find the Prosecutor has not demonstrated the applicability of the CLEIR work
product exception and order disclosure of the withheld records.
Case No. 2025-00973PQ -7- REPORT AND RECOMMENDATION
{¶24} The Clinic points to a decision issued by a judge in one of Brown’s wrongful
imprisonment cases. See Req. Ev., filed Dec. 22, 2025, p. 38-39. In that 2017 decision,
the judge determines that several investigative reports written by investigator Tom Ross
are not subject to the law enforcement investigatory privilege. The Clinic argues that this
determination decides that public records status of the reports for this case. Id., p. 40.
{¶25} I disagree. The CLEIR public records exception and the law enforcement
investigatory privilege are distinct legal concepts, although they use similar terms and
arise from similar public interests. The law enforcement investigatory privilege is a
qualified evidentiary privilege that protects certain information from disclosure in legal
proceedings. See J&C Marketing, L.L.C. v. McGinty, 2015-Ohio-1310, ¶ 17-19. The
CLEIR exception is a statutory protection for certain public records from public release.
R.C. 149.43(A)(1)(h). The Supreme Court of Ohio has used the privilege to inform
resolution of public records cases, but it does not apply the privilege to decide public
records disputes. See, e.g., State ex rel. Cincinnati Enquirer v. Ohio Dept. of Pub. Safety,
2016-Ohio-7987, ¶ 43-45. In this case, a judge’s prior determination that the law
enforcement investigatory privilege did not protect records in a legal proceeding does not
decide this public records issue.
{¶26} Summary. In conclusion, I recommend that the court find that the Clinic is
entitled to relief on its October 6, 2025, public records request for records related to the
Brown case. I recommend that the court order the Prosecutor to answer the Clinic’s
request for “investigative reports produced by Tom Ross concerning his follow-up to a
DNA match of a key” and “any reports generated by any federal agencies.” I also
recommend that the court order the release of the withheld records designated LCPO
002 through LCPO 016 in the records filed under seal.
B. The Clinic is not entitled to relief on the McCoy request.
{¶27} The Prosecutor has introduced evidence to demonstrate that its entire file on
the McCoy case has been provided to the Clinic. Resp. Notice of Filing Evidence, p. 6 ¶
9 (Albring Affidavit); see also Compl., p. 29. The three pages withheld from the Clinic as
grand jury records were provided under seal for the court’s review. See Resp. Notice of
Withheld Records Index, filed Jan. 21, 2026. The Clinic does not argue that additional
responsive records exist. See State ex rel. Culgan v. Jefferson Cty. Prosecutor, 2024-
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Ohio-4715, ¶ 13. The Clinic is therefore not entitled to further production regarding this
request.
{¶28} The Prosecutor does argue that three responsive records were withheld
pursuant to Criminal Rule 6(E). As noted above, the Prosecutor bears the burden of
proving that the requested records fall squarely within the claimed exception. Welsh-
Huggins, 2020-Ohio-5371, ¶ 27.
{¶29} “Crim.R. 6(E) provides an exception to the broad disclosure rights of R.C.
149.43 for matters occurring before the grand jury[.]” State ex rel. Parisi v. Heck, 2013-
Ohio-4948, ¶ 5 (2nd Dist.) (internal quotation omitted). “This exception is deeply rooted
in public policy demanding that the secrecy attendant to grand jury proceedings must be
preserved” which “is not eliminated when an investigation has ended.” (Cleaned up.) Id.
{¶30} The Prosecutor provides an affidavit to support that the withheld pages are
grand jury records. Resp. Notice of Filing Evidence, p. 4 ¶ 7 (Borrell Affidavit). I have also
reviewed the withheld records, which were provided to the court under seal. Those
records consist of three pages of handwritten notes. The author of the notes is not
apparent from the face of the records. The content of the notes describes testimony
provided by the victim of a sexual assault. This comports with the description of the case
provided by the Clinic. See Compl., p. 2. There is no mention in the records of the
incarceration status of the alleged perpetrator. Based on the Prosecutor’s evidence, the
description of the case provided by the Clinic, and the content of the records themselves,
I conclude that the withheld records are notes of grand jury proceedings.
{¶31} I therefore recommend that the court find that the Clinic is not entitled to relief
on the McCoy request.
C. Costs.
{¶32} Revised Code 2743.75(F)(3)(b) provides that the Court shall award a
requester their filing fee and “any other costs associated with the action” if it finds a
violation of the Public Records Act. Because I find a violation of the Public Records Act, I
recommend that the court order the Prosecutor to reimburse the Clinic’s filing fee and
bear the balance of costs in this case.
III. Conclusion
Case No. 2025-00973PQ -9- REPORT AND RECOMMENDATION
{¶33} Based on the above considerations, I recommend that the court:
1) Order respondent to answer the requester’s October 6, 2025, requests for
“investigative reports produced by Tom Ross concerning his follow-up to a DNA match of
a key” and “any reports generated by any federal agencies;”
2) Order the release of the records filed under seal by respondent and marked
as LCPO 002 through LCPO 016;
3) Order respondent to reimburse requester’s filing fee; and
4) Order respondent to bear the balance of costs in this case.
{¶34} 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).
SARAH PIERCE
Special Master
Filed February 26, 2026
Sent to S.C. Reporter 3/19/26