Reigert v. State of Ohio Med. Bd.

[Cite as Reigert v. State of Ohio Med. Bd., 2023-Ohio-1489.]

IN THE COURT OF CLAIMS OF OHIO

JOHN REIGERT Case No. 2022-00750PQ

Requester Judge Lisa L. Sadler

v. DECISION AND ENTRY

STATE OF OHIO MEDICAL BOARD

Respondent

{¶1} Requester John Reigert, a self-represented litigant, and Respondent State

Medical Board of Ohio separately object to a Special Master’s Report and

Recommendation in this public-records case. The Court overrules Requester’s

objections, overrules Respondent’s objections, and adopts the Special Master’s Report

and Recommendation for reasons that follow.

I. Background

{¶2} On October 25, 2022, Requester filed a public-records complaint against

Respondent.1 On January 10, 2023, with leave of court, Requester filed an Amended

Complaint against Respondent, stating:

Specifically, the original complaint, filed due to the extraordinary

delay of the State Medical Board of Ohio to respond to public records

request, is now moot as they have answered requests on 11/7/22 after

requestors original Complaint was filed on 10/25/22. However, subsequent

and ongoing responses for records were grossly contrary to the

transparency mandate of the Ohio Public Records Act and the SMBO [State

1 In the Complaint, Requester asserted: “For over 45 days the State of Ohio Medical Board has

intentionally and illegally withheld or ‘slow walked’ complainant’s Public Records request * * * related to

their case CO2020-8005 within a reasonable time in clear violation of the Ohio Public Records Request

Policy IV(A)(2)(3) Applicable Time Frame * * *.”

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Medical Board of Ohio] Policy on Public Records Requests and made an

Amended Complaint necessary.

{¶3} The matter was referred for mediation, but mediation failed to successfully

resolve all disputed issues between the parties. Respondent filed a Combined Response

to Complaint and Motion To Dismiss in which Respondent asked for denial “and/or”

dismissal of Requester’s Amended Complaint pursuant to Civ.R. 12(B)(6) and (C), R.C.

149.43, and 2743.75. A Special Master, who had been appointed in the cause, held a

conference with the parties and issued an order that established filing deadlines and that

required certain records to be filed under seal for in camera review.

{¶4} On March 23, 2023, the Special Master issued a Report and

Recommendation (R&R). The Special Master has identified five requests by Requester

and recommends an award of partial relief. The Special Master recommends that

Respondent be ordered to produce to Requester the records copied at pp. 6-38

of “Respondent’s Submissions for In Camera Review,” filed March 16, 2023, that

Requester recover his filing fees and other costs of this case, but that he be

denied the other relief sought in his amended complaint.

The Motion for In Camera Review be denied.

(R&R, 11.)

{¶5} On March 28, 2023, Requester filed written objections to the Special Master’s

Report and Recommendation. Requester’s objections are accompanied by a certification

attesting that the objections were served on Respondent’s counsel by “regular mail.”2 On

April 3, 2023, without leave of court, Requester filed a document labeled “Requestor

Amendment/Addendum to his Initial Objections to the Special Master Report and

Recommendation.” Respondent has filed a written response in opposition to Requester’s

2 R.C. 2743.75(F)(2) requires an objecting party to “send[] a copy [of the objections] to the other

party by certified mail, return receipt requested.” Requester failed to comply with R.C. 2743.75(F)(2)

because, according to Requester’s certification, Requester sent a copy of his objections to Respondent’s

counsel by “regular mail.” The Court recognizes that Requester is a self-represented litigant but, even so,

Requester still is required to follow procedural law and court rules. State ex rel. Neil v. French, 153 Ohio

St.3d 271, 2018-Ohio-2692, 104 N.E.3d 764, ¶ 10.

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objections, as amended, with a certification attesting that a copy of its response was

served on Requester by certified mail.3

{¶6} On April 6, 2023, Respondent filed written objections to the Special Master’s

Report and Recommendation, accompanied by a certification that a copy of the objections

was served on Requester by certified mail. On April 11, 2023, Requester filed a response

in opposition to Respondent’s objections, which is accompanied by a certification

attesting that Requester served a copy of the response on Respondent’s counsel by

“regular mail.”4

II. Law and Analysis

{¶7} 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, 163 Ohio St.3d 337, 2020-Ohio-5371, 170 N.E.3d 768, ¶ 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, 8th Dist. Cuyahoga

No. 110315, 2021-Ohio-4210, ¶ 16, citing Hurt v. Liberty Twp., 2017-Ohio-7820, 97

N.E.3d 1153, ¶ 27-30 (5th Dist.). See Welsh-Huggins v. Jefferson Cty. Prosecutor’s

Office, 163 Ohio St.3d 337, 2020-Ohio-5371, 170 N.E.3d 768, ¶ 32. 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, 156

Ohio St.3d 394, 2019-Ohio-1216, 128 N.E.3d 179, ¶ 8.

{¶8} 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-

3 Since Respondent has responded to Requester’s objections, as amended, Respondent does not

appear to have been prejudiced by Requester’s failure to seek leave before filing the statutorily

unauthorized “Amendment/Addendum.” See Black’s Law Dictionary 1428 (11th Ed. 2019) (defining

“prejudice” as “[d]amage or detriment to one’s legal rights or claims”). Absent any apparent prejudice to

Respondent, the Court will consider Requester’s objections, as amended, and Respondent’s response to

Requester’s objections, as amended.

4 R.C. 2743.75(F)(2) requires a response to another party’s objection to be sent by certified mail,

return receipt requested. See R.C. 2743.75(F)(2). Requester has failed to comply with R.C. 2743.75(F)(2)

because Requester sent his response to Respondent’s counsel by “regular mail.”

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Kelley, 118 Ohio St.3d 81, 2008-Ohio-1770, 886 N.E.2d 206, 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.

B. Requester’s objections are not persuasive.

{¶9} Under R.C. 2743.75(F)(2) any objection to a report and recommendation

“shall be specific and state with particularity all grounds for the objection.” Requester

asserts in his objections: “The Special Masters denial in Claim 1 fails when Requestor

cannot find any reference in the Respondent’s public records denial, quoted earlier by the

Special Master, to any improper request for ‘information’ instead of a ‘record’.” Requester

further asserts: “In the case of Claim 1, the plain language of the request itself may not

be perfect but a request for the ‘name of the investigator’, his ‘years of experience’, his

‘qualifications’ and his ‘prior employment’, can only be interpreted, by any reasonable

person, as a request for an SMBO employee’s personnel record.” Requester also

contends that that the Special Master “did not ‘liberally’ construe that Requester’s request

language in Claim 1 that occurred due to the fact that the Requester is a pro se, first time

requester who, despite not knowing the complex laws that regulate public records

requests.”

{¶10} With respect to Request 1 (i.e., Claim 1), Requester’s request for the “name

of the investigator,” his “years of experience,” his “qualifications” and his “prior

employment,” supports the Special Master’s conclusion that Request 1 seeks certain

information, rather than specific records. See, e.g., State ex rel. Lanham v. State Adult

Parole Auth., 80 Ohio St.3d 425, 427, 687 N.E.2d 283 (1997); State ex rel. Thomas v.

Ohio State Univ., 70 Ohio St. 3d 1438, 638 N.E.2d 1041 (1994), citing State ex rel. Fant

v. Tober, 8th Dist. Cuyahoga NO. 63737, 1993 Ohio App. LEXIS 2591, (Apr. 28, 1993).

Case No. 2022-00750PQ -5- DECISION & ENTRY

{¶11} Here, Requester has a responsibility to identify with reasonable clarity the

public records at issue. See State ex rel. Morgan v. City of New Lexington, 112 Ohio

St.3d 33, 2006-Ohio-6365, 857 N.E.2d 1208, ¶ 29, quoting State ex rel. Fant v. Tober

(Apr. 28, 1993), Cuyahoga App. No. 63737, 1993 WL 173743, * 1, affirmed in State ex

rel. Fant v. Tober (1993), 68 Ohio St.3d 117, 623 N.E.2d 1202 (explaining that it “‘is the

responsibility of the person who wishes to inspect and/or copy records to identify with

reasonable clarity the records at issue’”). In Request 1 Requester identified information

that he sought with reasonable clarity, but he failed to identify with clarity the public

records that he sought.

{¶12} Additionally, even though a court is required to liberally construe R.C. 149.43

in favor of broad access, this does not mean that a court must liberally construe facts in

a particular case in favor of a requester. See State ex rel. Cincinnati Enquirer v. Hamilton

Cty., 75 Ohio St.3d 374, 376, 662 N.E.2d 334 (1996) (“R.C. 149.43 is construed liberally

in favor of broad access, and any doubt is resolved in favor of disclosure of public

records”). Kosky v. Am. Gen. Corp, 7th Dist. Belmont No. 03 BE 31, 2004-Ohio-1541,

¶ 20 (“[t]he fact that a court must liberally construe a statute in favor of a claimant does

not mean it must liberally construe the facts in a particular case in favor of the claimant”).

{¶13} With respect to Request 2, as well as Requests 3 and 4, Requester

essentially contends that the Special Master erred when he relies on the plain language

of Respondent’s response stating that “there are no responsive public records” as

meaning that no records exist. It is Requester’s burden to prove, by clear and convincing

evidence, that the records that he requested exist and are public records maintained by

Respondent. See State ex rel. Cordell, supra, at ¶ 8; Welsh-Huggins, supra, at ¶ 32.

Upon independent review, the Court finds that Requester has not sustained his burden

by clear and convincing evidence. See Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d

118 (1954), paragraph three of the syllabus (holding that 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”).

Case No. 2022-00750PQ -6- DECISION & ENTRY

{¶14} Requester further contends that the Special Master erred in dismissing his

motion for in camera review. The Court finds no error with the Special Master’s

recommendation to deny Requester’s motion for in camera review. As the Supreme

Court of Ohio has remarked, “In camera review is unnecessary when the basis of the

request for review is speculation, rather than sufficient, credible evidence.” State ex rel.

Ullmann v. Klein, 160 Ohio St.3d 457, 2020-Ohio-2974, 158 N.E.3d 580, ¶ 20.

C. Respondent’s objections are not persuasive.

{¶15} Respondent urges that the Special Master did not properly apply Ohio

Supreme Court case law interpreting Respondent’s confidentiality statute, and ignored

the confidential information that would be revealed if Respondent were required to

respond to Requester’s request. Respondent further urges that the Special Master

incorrectly stated that Respondent did not present any “extrinsic evidence” in support of

its position, as Respondent attached an affidavit of in-house counsel David Katko to

Respondent’s Motion To Dismiss of February 13, 2023. Respondent maintains that the

identities of uncharged physicians are confidential pursuant to R.C. 4731.22(F)(5) and

that investigative techniques and actions are protected under the confidential law

enforcement investigatory records (CLEIRs) exception.5 Respondent asks this Court to

modify the Special Master’s conclusions and rule in favor of Respondent in all respects.

{¶16} Respondent’s claims of error fail to persuade the Court for several reasons.

{¶17} First, despite the Special Master’s statement that Respondent’s submission

for in camera review was not supplemented with “extrinsic evidence,” see R&R at 7, a

plain reading of the Report and Recommendation shows that the Special Master did

review the affidavit of David Katko, which was attached to Respondent’s Motion To

Dismiss of February 13, 2023. See R&R, at 5 (“The Board initially asserted that no

responsive records existed when it first responded to this request. It ratified that

assertion in an affidavit submitted in its response Mr. Reigert’s complaint. MTD, p.

16, ¶12, p. 38”). Moreover, with the records that Respondent submitted under seal,

there is another affidavit of David Katko (Katko Affidavit, dated March 14, 2023), which

the Court has considered in ruling on Respondent’s objections. The Court finds no

5 Confidential law enforcement investigatory records (CLEIRs) are not public records. R.C.

149.43(A)(1)(h).

Case No. 2022-00750PQ -7- DECISION & ENTRY

prejudicial error resulting from the Special Master’s statement that the records filed under

seal were not supplemented with “extrinsic evidence.”

{¶18} Second, R.C. 4731.22 concerns disciplinary actions by Respondent.

Pursuant to R.C. 4731.22(F)(5), a “report required to be submitted to the board under

[R.C. Chapter 4731], a complaint, or information received by the board pursuant to an

investigation or pursuant to an inspection under [R.C. 4731.054(E)] is confidential and not

subject to discovery in any civil action.” Based on the Court’s independent review, the

Court finds that the Special Master correctly noted that the records recommended for

disclosure “are personnel records unrelated to any investigation, so they do not contain

information received by pursuant to an investigation. They do not contain patient records

or provide any information about patients, complainants, physicians under investigation,

witnesses, or any other persons whose confidentiality right is implicated by an

investigation. They are outside the scope of R.C. 4731.22(F)(5).” (R&R, 7.)

{¶19} Third, Respondent’s contention that, in the context of Requester’s request,

producing responsive records would reveal confidential information is not sufficiently

supported. In Mr. David Katko’s affidavit that accompanies the records filed under seal,

Katko avers:

In response to Mr. Reigert’s Complaint number 3, which asked The

Board to “Provide all records that identify all employees of SMBO that

contributed to the Standards Review of case 2020-8005 and the medical

qualifications of each[,]” attached are the personnel records responsive to

this Complaint, marked as Exhibits 14-21.

(Emphasis added.) (Katko Affidavit, dated March 14, 2023, at paragraph 6.). Through

Katko’s Affidavit of March 14, 2023, the Board thus tacitly admits that, with respect to

Requester’s Request 3, responsive records, i.e., personnel records, do indeed exist.

Such a tacit admission contradicts Respondent’s response to Requester’s Request 3

in which Respondent stated, “There are no responsive public records.” (R&R, at 6;

Katko Affidavit, dated February 13, 2023, paragraph 12.)

{¶20} Respondent nonetheless urges: “Although personnel records standing

alone are not inherently confidential, in the context of Mr. Requester’s request,

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producing responsive records would reveal confidential information.” (Emphasis sic.)

(Objections at 6.) Respondent contends that producing records in response to

Requesters’ request would reveal the identity of an uncharged physician, as well as

investigative techniques and actions that Respondent may have taken in an

investigation in violation of R.C. 4731.22(F)(5) and the CLEIRs exception.

{¶21} Based on the Court’s independent review of the records provided under seal

to Request 3, the personnel records submitted for in camera review do not reveal the

identity of an uncharged physician or investigative techniques and actions. Under R.C.

149.43(A)(2), a confidential law enforcement investigatory record

means any record that pertains to a law enforcement matter of a criminal,

quasi-criminal, civil, or administrative nature, but only to the extent that the

release of the record would create a high probability of disclosure of any of

the following:

(a) The identity of a suspect who has not been charged with the

offense to which the record pertains, or of an information source or witness

to whom confidentiality has been reasonably promised;

(b) Information provided by an information source or witness to

whom confidentiality has been reasonably promised, which information

would reasonably tend to disclose the source’s or witness’s identity;

(c) Specific confidential investigatory techniques or procedures or

specific investigatory work product;

(d) Information that would endanger the life or physical safety of law

enforcement personnel, a crime victim, a witness, or a confidential

information source.

R.C. 149.43(A)(2). In State ex rel. Rocker v. Guernsey Cty. Sheriff’s Office, 126 Ohio

St.3d 224, 2010-Ohio-3288, 932 N.E.2d 327, the Supreme Court of Ohio explained that

the CLEIRs exception “applies only to those portions of records that, if released, would

create a high probability of disclosure of the suspect’s identity. We have held that records

are exempt under the uncharged-suspect exception when ‘the protected identities of

uncharged suspects are inextricably intertwined with the investigatory records.’” State

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ex rel. Rocker at ¶ 11, quoting State ex rel. Master v. Cleveland, 76 Ohio St.3d 340, 342,

667 N.E.2d 974 (1996).

{¶22} Application of the CLEIRs exception to some records in an investigative file

fails to automatically create a blanket exemption covering all records in an investigative

file. See Rocker at ¶ 14. Recently, the Ohio Supreme Court explained that

under [its] precedent, it is not enough to say that a record is probably within

a statutorily prescribed exemption: the public office or records custodian

must show “that the requested record falls squarely within the

exemption.” State ex rel. Cincinnati Enquirer v. Jones-Kelly,

118 Ohio St.3d 81, 2008-Ohio-1770, 888 N.E.2d 206, at paragraph two of

the syllabus. And we must “construe R.C. 149.43 liberally in favor of broad

access and resolve any doubt in favor of disclosure.” State ex rel. Cincinnati

Enquirer v. Ohio Dept. of Pub. Safety, 148 Ohio St.3d 433, 2016-Ohio-

7987, 71 N.E.3d 258, at ¶ 28.

(Emphasis sic.) Welsh-Huggins, at ¶ 63.

{¶23} Applying Rocker and Welsh-Huggins, and upon independent review, the

Court cannot conclude that Respondent has shown that the records that the Special

Master has recommended for disclosure squarely fall within the CLEIRs exception

because the release of the recommended records would create a high probability of

disclosure of (a) “[t]he identity of a suspect who has not been charged with the offense to

which the record pertains, or of an information source or witness to whom confidentiality

has been reasonably promised; (b) [i]nformation provided by an information source or

witness to whom confidentiality has been reasonably promised, which information would

reasonably tend to disclose the source’s or witness’s identity; (c) [s]pecific confidential

investigatory techniques or procedures or specific investigatory work product; [or]

(d) [i]nformation that would endanger the life or physical safety of law enforcement

personnel, a crime victim, a witness, or a confidential information source.” R.C.

149.43(A)(2).

{¶24} Respondent acknowledges in its objections that, in Narciso v. Powell Police

Dept., Ct. of Cl. No. 2018-01195PQ, 2018-Ohio-4590, ¶ 30, adopted by Ct. of Cl. No.

2018-01195PQ, 2018-Ohio-5017, this Court rejected a similar argument advanced by

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Respondent in this case concerning the application of the CLEIRs exception.

Respondent states, “For purposes of possible appeal, the Board respectfully submits that

this portion of Narciso was wrongly decided.” (Objections, 9.) To the extent that

Respondent invites the Court to revisit Narciso, the Court declines Respondent’s

invitation as Narciso is factually distinguishable and Narciso is not the sole basis for the

Court’s ruling on Respondent’s objections.

{¶25} In sum, having concluded that the parties’ objections are unpersuasive, the

Court finds that the Special Master’s Report and Recommendation should be adopted

and that Respondent has denied Requester access to public records in violation of R.C.

149.43(B). Consequently, Requester is entitled to relief under R.C. 2743.75(F)(3).

III. Conclusion

{¶26} The Court overrules both parties’ objections, adopts the Special Master’s

Report and Recommendation, and denies Requester’s Motion For In Camera Review for

reasons set forth above. Respondent is ORDERED to produce to Requester the records

copied at pp. 6-38 of “Respondent’s Submissions for In Camera Review,” filed on March

16, 2023.6

{¶27} Accordingly, Requester is entitled to recover from Respondent the amount

of the filing fee of twenty-five dollars and any other costs associated with the action that

are incurred by the Requester, excepting attorney fees. Court costs are assessed against

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

of entry upon the journal.

LISA L. SADLER

6 The Special Master states in footnote 1 of the Report and Recommendation, “All references to

specific pages of matters filed in this case are to pages of the PDF copies posted on the Court’s docket,

rather than to any internal pagination of the filings.” (R&R, 1.) Pages 6-38 of the PDF thus begins with

“Exhibit 14” (page 6 of the PDF) and continues through “Exhibit 21” (page 38 of the PDF).

Case No. 2022-00750PQ -11- DECISION & ENTRY

Judge

Filed April 19, 2023

Sent to S.C. Reporter 5/4/23