Jabr v. Disciplinary Counsel

[Cite as Jabr v. Disciplinary Counsel, 2021-Ohio-398.]

TAREQ R. JABR Case No. 2020-00596PQ

Requester Special Master Jeff Clark

v. REPORT AND RECOMMENDATION

DISCIPLINARY COUNSEL

Respondent

{¶1} Ohio’s Public Records Act provides that upon request a public office “shall

make copies of the requested public record available to the requester at cost and within

a reasonable period of time.” R.C. 149.43(B)(1). Ohio courts construe the Public

Records Act liberally in favor of broad access, with any doubt resolved in favor of

disclosure of public records. State ex rel. Hogan Lovells U.S., L.L.P. v. Dept. of Rehab.

& Corr., 156 Ohio St.3d 56, 2018-Ohio-5133, 123 N.E.3d 928, ¶ 12. This action is

brought under R.C. 2743.75, which provides an expeditious and economical procedure

in the Court of Claims to resolve public records disputes.

{¶2} On or about December 13, 2019, requester Tareq Jabr made a verbal

request of respondent Disciplinary Counsel for “records for Att. John Paris, plus, Att.

Tasso Paris, and Judge Patrick Corrigan, and Attorney Kent Minshall. All these are

involved in the same cases of child support, violations, in child support, on Mr. Tareq

Jabr.” (Complaint at 1-2; Response at 2; Stone Aff. at ¶ 3.) The request was denied.

(Complaint at 1; Stone Aff., Exh. 1 at p. 2.) On November 4, 2020, Senior Assistant

Disciplinary Counsel Amy Stone advised Jabr that pursuant to Rule V, Section 8(A)(1)

of the Rules for Government of the Bar, the Disciplinary Counsel would be prohibited

from providing records responsive to this request, should any actually exist. (Stone Aff.,

Exh. 1.)

{¶3} On October 14, 2020, Jabr filed a complaint under R.C. 2743.75 alleging

denial of access to public records in violation of R.C. 149.43(B). The matter was

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referred to mediation on October 15, 2020. On November 18, 2020, Jabr submitted an

unsolicited and uncaptioned pleading marked as “Add-on,” including a certificate of

service. Although this document does not otherwise fully comply with the Ohio Rules of

Civil Procedure, pursuant to Civ.R. 15(E) and R.C. 2743.75(E)(2) the special master

directs the clerk to accept it for filing. On December 29, 2020, the court was notified that

the parties had not resolved the matter in mediation. On January 7, 202, the Disciplinary

Counsel filed its combined response and motion to dismiss (Response) with an

attached affidavit.

Burdens of Proof

{¶4} A requester must establish any public records violation by clear and

convincing evidence. Hurt v. Liberty Twp., 2017-Ohio-7820, 97 N.E.3d 1153, ¶ 27-30

(5th Dist.). At the outset, Jabr bears the “burden of production” to plead and prove facts

showing that he sought identifiable public records pursuant to R.C. 149.43(B)(1), and

that the Disciplinary Counsel did not make those records available. Welsh-Huggins v.

Jefferson Cty. Prosecutor’s Office, Slip Opinion No. 2020-Ohio-5371, ¶ 33.

{¶5} If a public office withholds an identified record on the basis of a public

records exemption, the public office then carries the burden to prove that the record falls

squarely within the exemption. Id. at ¶ 35. Exceptions to disclosure must be strictly

construed against the public-records custodian. State ex rel. Rogers v. Dept. of Rehab.

& Corr., 155 Ohio St.3d 545, 2018-Ohio-5111, 122 N.E.3d 1208, ¶ 7.

Motion to Dismiss

{¶6} Civ.R. 12(B)(1) permits dismissal where the trial court lacks jurisdiction over

the subject matter of the litigation. Disciplinary Counsel asserts that the Court of Claims

lacks subject matter jurisdiction over denial of public access to its records because they

are governed by the Rules of Superintendence for the Courts of Ohio rather than by the

Ohio Public Records Act.

Rules of Superintendence for the Courts of Ohio

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{¶7} The Ohio Public Records Act, R.C. 149.43, applies to most public offices,

and the public records access program in this court applies to disputes alleging a denial

of access to public records by those offices “in violation of division (B) of section 149.43

of the Revised Code.” R.C. 2743.75(A), (C)(1), (F)(3), and (G)(2). However, access to

records of the Ohio Supreme Court, courts of appeal, courts of common pleas,

municipal courts, and county courts is governed instead by the Rules of

Superintendence for the Courts of Ohio (Sup.R. or Rules). The Rules “set forth the

process that the public must utilize to obtain records held by the judicial branch.” State

ex rel. Parisi v. Dayton Bar Assn. Certified Griev. Comm., 159 Ohio St.3d 211, 2019-

Ohio-5157, 150 N.E.3d 43, ¶ 17; Sup.R. 1(A), 44, 45(B), 47(A)(1). The Rules of

Superintendence are the “sole vehicle” for obtaining public records from the courts

specified therein. State ex rel. Husband v. Shanahan, 157 Ohio St.3d 148, 2019-Ohio-

1853, 133 N.E.3d 467, ¶ 5.

{¶8} While not a court per se, the Office of the Disciplinary Counsel is an integral

arm of the Ohio Supreme Court. The Supreme Court has found accordingly that

attorney-discipline records prepared for it by the Disciplinary Counsel are subject to the

Rules of Superintendence. In Parisi, the requester sought attorney-discipline records

from a grievance committee certified by the Board of Professional Conduct of the

Supreme Court. Parisi at ¶ 13, 24-25. The Court was presented with the question of

whether the Rules, or the Public Records Act, applied to such a request:

Attorney-discipline matters are decided exclusively by this court, as we

have original jurisdiction over the discipline of persons admitted to the bar

and all other matters relating to the practice of law. See Article IV, Section

2(B)(1)(g), Ohio Constitution. And through the Supreme Court Rules for

the Government of the Bar of Ohio, this court created the Office of

Disciplinary Counsel and the Board of Professional Conduct and

authorized the board to certify grievance committees to aid us in

managing attorney discipline throughout the state. See Gov.Bar R. V(1)(A)

and (D) (“[t]here shall be a Board of Professional Conduct of the Supreme

Court” consisting of 28 commissioners appointed by this court); Gov.Bar

R. V(4)(A) (the board, with the approval of the Supreme Court, shall

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appoint disciplinary counsel); Gov.Bar R. V(5)(B) (the board may certify a

grievance committee to investigate allegations of attorney misconduct).

While these entities, especially the certified grievance committees,

function somewhat independently from this court, the documents prepared

and created in attorney-discipline cases by or for these entities must be

considered records of this court for purposes of disclosure. That is

because this court is the ultimate arbiter of attorney discipline, Cincinnati

Bar Assn. v. Powers, 119 Ohio St.3d 473, 2008-Ohio-4785, 895 N.E.2d

172, ¶ 21, and we have the unique and complete responsibility, as

designated by Article IV, Sections 2(B)(1)(g) and 5(B) of the Ohio

Constitution, to regulate all matters related to the practice of law.

Therefore, any documents prepared in attorney-discipline cases, like

those requested by Parisi, may be sought only through a request made

pursuant to Sup.R. 44 through 47. (Citations omitted.)

Id. at ¶ 25-26. Jabr made his request, and seeks relief, under R.C. 149.43. (Complaint

at 2.) The documents sought by Jabr, which if they exist were prepared in attorney- or

jurist-discipline cases, may be sought only through a request made pursuant to Sup.R.

44 through 47.

{¶9} Even were Jabr’s request construed as made pursuant to Sup.R. 44 through

47, this court would lack jurisdiction. The Ohio Court of Claims is a court of limited

jurisdiction. Patriot Water Treatment, LLC v. Ohio Dept. of Natural Res., 10th Dist.

Franklin No. 13AP-370, 2013-Ohio-5398, ¶ 30. The remedy for a person aggrieved by a

failure to comply with the requirements of Sup.R. 44 through 47 is through an action in

mandamus under R.C. Chapter 2731. Sup.R. 47(B). Courts authorized to issue writs of

mandamus include the Supreme Court, courts of appeals, and courts of common pleas.

R.C. 2731.02. The Court of Claims thus lacks original jurisdiction to adjudicate a

mandamus action to enforce violation of Sup.R. 44-47.

Conclusion

{¶10} Upon consideration of the pleadings and attachments, the special master

recommends the court find that the court lacks jurisdiction over the subject matter of

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requester’s claim and grant the motion to dismiss. It is recommended that court costs be

assessed to requester.

{¶11} 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).

JEFF CLARK

Special Master

Filed January 26, 2021

Sent to S.C. Reporter 2/12/21