The opinion
[Cite as Law Office of Josh Brown, L.L.C. v. Ohio Secretary of State, 2024-Ohio-819.]
IN THE COURT OF CLAIMS OF OHIO
THE LAW OFFICE OF JOSH BROWN Case No. 2023-00510PQ
LLC
Judge Lisa L. Sadler
Requester
DECISION AND ENTRY
v.
OHIO SECRETARY OF STATE
Respondent
{¶1} In this public-records case, Respondent objects, in part, to a Special Master’s
Report and Recommendation. Requester opposes Respondent’s objections. The Court
overrules Respondent’s objections for reasons that follow.
I. Background
{¶2} Requester filed a public-records complaint in which Requester alleges that
Respondent refused Requester’s public-records requests because the requests were
“overly broad.” In a public-records request of June 28, 2023, Requester sought “copies
of any email that meets the following criteria:
1. Includes the word “Blystone”; and
2. Sent or received between May 1, 2022 to December 31, 2022
by Secretary Frank LaRose;
3. Sent or received May 1, 2022 to December 31, 2022 by
Secretary of State employee Brian Katz;
4. Sent or received May 1, 2022 to December 31, 2022 by
Secretary of State employee Jason Long;
5. Sent or received May 1, 2022 to December 31, 2022 by any
other Secretary of State employee email.”
Case No. 2023-00510PQ -2- DECISION & ENTRY
(Attachment to Complaint, Email dated July 24, 2023 from Julia Lawrence to Josh Brown.)
Requester also asked Respondent to “confirm whether any of the following individuals
have text message communications, on personal or office phones, including the word
“Blystone” from May 1, 2022 to December 31, 2022: Secretary Frank La Rose, Secretary
of State employee Brian Katz, and Secretary of State employee Jason Long.” (Id.)
{¶3} The Court appointed a Special Master who referred the matter to mediation
and stayed filing deadlines. After mediation failed to successfully resolve all disputed
issues between the parties, the matter was returned to the Special Master’s docket.
{¶4} On November 29, 2023, the Special Master issued a Report and
Recommendation (R&R). The Special Master determined that Requester’s first request
was not overbroad and that Requester’s second request sought information rather than
records. The Special Master recommends that:
A. Respondent be ordered to produce all emails responsive to Requester’s
first public records request;
B. Requester recover his filing fee and other costs;
C. Respondent bear the balance of the costs in this case;
D. All other relief be denied.
(R&R, 8.)
{¶5} On December 11, 2023, Respondent, through counsel, filed written objections
to the Report and Recommendation and sent a copy of its objections by means of certified
mail to Requester.
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, 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
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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.
{¶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, 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.)
Jones-Kelley at paragraph two of the syllabus.
A. Respondent presents two objections for review.
{¶8} Pursuant to 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.” Respondent presents the following objections for the Court’s consideration:
Objection 1: The Special Master erred in finding in Mr. Brown’s favor when
Mr. Brown failed to satisfy his burden of proving all elements of his claim by clear
and convincing evidence.
Objection 2: The Special Master erred in concluding that part one of Mr.
Brown’s request is not overly broad and recommending that the Secretary’s Office
produce all emails responsive to the first part of Mr. Brown’s request.
Case No. 2023-00510PQ -4- DECISION & ENTRY
B. Respondent’s first objection is overruled.
{¶9} In the first objection, Respondent maintains that the Special Master erred in
finding that Requester satisfied its burden to prove all elements of his claim by clear and
convincing evidence.
{¶10} The Ohio Supreme Court has explained that “the direction in R.C.
2743.75(F)(1) for ‘the ordinary application of statutory law and case law as they existed
at the time of the filing of the complaint’ suggests that public-records-access proceedings
in the Court of Claims be consistent with the standards that are applicable to mandamus-
enforcement actions.” Welsh-Huggins v. Jefferson Cty. Prosecutor’s Office, 163 Ohio
St.3d 337, 2020-Ohio-5371, 170 N.E.3d 768, ¶ 32. In mandamus-enforcement actions,
it is a relator’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. The Ohio
Supreme Court has held 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.” Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954), paragraph
three of the syllabus.
{¶11} A review of the Report and Recommendation discloses that it does not
contain an explicit finding by the Special Master whether Requester satisfied its burden
to prove its claims by clear and convincing evidence. However, because the Special
Master ultimately recommended that Respondent be ordered to produce all emails
responsive to Requester’s first request, the Special Master implicitly found that Requester
satisfied his burden of proof.
{¶12} Despite Respondent’s contention that Requester’s first request lacks
reasonable clarity, in the Court’s view, Requester identified with reasonable clarity the
records that he sought. State ex rel. Horton v. Kilbane, 167 Ohio St.3d 413, 2022-Ohio-
205, 194 N.E.3d 288, ¶ 19, quoting State ex rel. Morgan v. City of New Lexington, 112
Ohio St.3d 33, 2006-Ohio-6365, 857 N.E.2d 1208, ¶ 29, 37 (“we have ‘never held that in
Case No. 2023-00510PQ -5- DECISION & ENTRY
order to constitute a viable request, the requester must specify the author and date of the
records requested,’ nor have we ‘require[d] perfection in public-records requests’”).
{¶13} Accordingly, Respondent’s contention that Requester failed to satisfy his
burden of proving all elements of his claim by clear and convincing evidence is
unpersuasive. Respondent’s first objection is overruled.
C. Respondent’s second objection is overruled.
{¶14} In Respondent’s second objection, Respondent maintains that the Special
Master erred in concluding that Requester’s first request is not overly broad and in
recommending Respondent produce all emails responsive to Requester’s first request.
In support, Respondent urges that the “three qualifiers identified in the first part of the
request do not provide enough information to allow the Secretary’s Office to identify
records based on the way the Secretary’s Office organizes and accesses email records”
(Objections, 10), and the Special Master “erred in conflating the search capabilities of the
Secretary’s Office with ‘burden.’” (Objections, 11.) Respondent states: “At bottom, the
Secretary’s Office denied the first part of Mr. Brown’s request because it could not run the
open-ended searches without risking stalling the office server. This is not that same as
generally claiming burden or difficulty. The Special Master erred in conflating these
issues.” (Objections, 14.)
{¶15} In reading Requester’s first public records request, the Court understands
the word “and” in the first criterion to effectively combine that criterion with each of the
other criteria. Accordingly, the complete request expressed by the second criterion is
rendered to be: Any emails that include the word “Blystone” and were sent or received
between May 1, 2022 to December 31, 2022 by Secretary Frank LaRose. In this way,
there are a total of four requests made in Requester’s first public records request.
{¶16} In common usage the term “overbroad” may be defined as “too widely
applicable or applied : excessively broad.” https://www.merriam-
webster.com/dictionary/overbroad (accessed December 13, 2023). Here, however,
Respondent suggests that it is not possible for Respondent to fulfill Requester’s first
request due to limitations with retrieving emails. See Exhibit A to Response Brief of
Respondent filed on November 6, 2023, Affidavit of Julia Lawrence, Asst. Chief Legal
Case No. 2023-00510PQ -6- DECISION & ENTRY
Counsel, Office of Ohio Secretary of State Frank LaRose, at ¶ 7.1 Such a suggestion is
distinguishable from a claim of overbreadth.
{¶17} In the Report and Recommendation, the Special Master addressed
Respondent’s contention (the same contention that Respondent now raises in its
objections) in this manner:
The sufficiency of these requests is not changed by the Secretary’s
assertion that its computer systems have difficulty retrieving emails without
the names of both the senders and recipients. That is true on several levels.
Logically, that does not go to the breadth of this request. The
limitations of the Secretary’s systems do not change the fact that this
request provides sufficient boundaries to readily identify the limited set of
records sought. That triggered the Secretary’s duties under R.C.
149.43(B)(1), regardless of the Secretary’s asserted difficulties fulfilling
those duties.
Statutorily, the Secretary’s analysis is at odds with the plain language
of R.C. 149.43(B)(2). Although that statute authorizes offices to deny
unclear requests (those that are “ambiguous,” “overly broad,” or otherwise
fail to “reasonably identify what public records are being requested”), it
nowhere authorizes an office to reject an otherwise clear request because
of the limitations of the office’s records management systems. The
legislature could have added language making that a basis to deny an
otherwise sufficient request, but it did not. To the contrary, R.C.
149.43(B)(2) mandates that offices “shall organize and maintain public
1 Assistant Chief Legal Counsel Julia Lawrence avers at paragraph 7 of her affidavit:
The Secretary of State’s Office denied part one of Mr. Brown’s request as overly
broad. I explained that the Office was unable to respond because the request failed to
identify both senders and recipients of the requested emails. Based on the way the Office
organizes and maintains its email records, the Office is unable to efficiently search
employee emails, even with a time parameter and search term, without an identified sender
or recipient on each end of the emails. The Office must have both sender and recipient
information to respond to a request for email records. The Office’s record retrieval software
has stalled when the Office attempted to run such broad searches in the past.
Case No. 2023-00510PQ -7- DECISION & ENTRY
records in a manner that they can be made available for inspection or
copying[.]”
(Emphasis sic.) (R&R, 4.)
{¶18} The Court agrees with the reasoning of the Special Master. Moreover, the
Court is not persuaded by Respondent’s claims that case law relied upon by the Special
Master is inapposite. Notably, the Ohio Supreme Court has stated:
“No pleading of too much expense, or too much time involved, or too much
interference with normal duties, can be used by the respondent to evade
the public’s right to inspect and obtain a copy of the public records within a
reasonable time.” State ex rel. Beacon Journal Publishing Co. v.
Andrews (1976), 48 Ohio St. 2d 283, 2 O.O.3d 434, 358 N.E.2d 565. In
fact, although the board refers to the potential expenditure of “tens of
thousands of dollars,” it has not introduced evidence to support this sum.
Moreover, insofar as the e-mails still exist on the commissioners’
computers, they remain public records, and the board has a duty to organize
and maintain them in a manner in which they can be made available for
inspection and copying. R.C. 149.43(B)(2); Dispatch Printing, 90 Ohio St.3d
at 41, 734 N.E.2d 797 (as long as a public record is kept by government
agency, it does not lose its status as public record).
(Emphasis added.) State ex rel. Toledo Blade Co. v. Seneca Cty. Bd. of Commrs., 120
Ohio St.3d 372, 2008-Ohio-6253, 899 N.E.2d 961, ¶ 36.
{¶19} Here, insofar as the requested emails still exist on Respondent’s computers,
they remain public records, and Respondent has a duty to organize them and maintain
them in a manner in which they can be made available for inspection and copying. See
State ex rel. Toledo Blade Co. at ¶ 36. As the Ohio Supreme Court has explained:
The Ohio Public Records Act grants the “substantive right to inspect and
copy public records.” State ex rel. Beacon Journal Publishing Co. v. Waters
(1993), 67 Ohio St.3d 321, 324, 1993 Ohio 77, 617 N.E.2d 1110. In
enacting the act, the Ohio General Assembly sought to codify the right of
the people of Ohio to observe their own government and scrutinize its
decisions. Kish v. Akron, 109 Ohio St. 3d 162, 2006 Ohio 1244, ¶ 16-17,
Case No. 2023-00510PQ -8- DECISION & ENTRY
846 N.E.2d 811. The purpose of providing public access to government
documents and records “is to ensure an informed citizenry, vital to the
functioning of a democratic society, needed to check against corruption and
to hold the governors accountable to the governed.” Natl. Labor Relations
Bd. v. Robbins Tire & Rubber Co. (1978), 437 U.S. 214, 242, 98 S.Ct. 2311,
57 L.Ed.2d 159. Thus, the act protects the general right of the people of
Ohio to monitor the decisions of their own government through the more
specific right to freely access public records.
Rhodes v. City of New Philadelphia, 129 Ohio St.3d 304, 2011-Ohio-3279, 951 N.E.2d
782, ¶ 19.
{¶20} Accordingly, for reasons set forth above, Respondent’s second objection is
overruled.
III. Conclusion
{¶21} For the above stated reasons, Respondent’s objections are overruled, and
the Special Master’s Report and Recommendation is adopted. In accordance with the
Special Master’s recommendations, the Court ORDERS Respondent to produce all
emails responsive to Requester’s first public records request. 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. All other requested relief is denied.
The Clerk shall serve upon all parties notice of this judgment and its date of entry upon
the journal.
LISA L. SADLER
Judge
Filed February 6, 2024
Sent to S.C. Reporter 3/7/24