Webb v. Buckeye Schools

[Cite as Webb v. Buckeye Schools, 2024-Ohio-1267.]

IN THE COURT OF CLAIMS OF OHIO

SEAN M. WEBB Case No. 2023-00700PQ

Requester Judge Lisa L. Sadler

v. DECISION AND ENTRY

BUCKEYE SCHOOLS

Respondent

{¶1} Before the Court in this public-records case are (1) Respondent’s Objections

To The Recommendations Of The Special Master and (2) Requester’s Motion To Strike.

The Court denies Respondent’s Objections and denies Requester’s Motion To Strike for

reasons that follow.

I. Background

{¶2} On November 9, 2023, Requester Sean M. Webb, a self-represented litigant,

filed a Complaint, alleging a denial of access to public records in violation of R.C.

149.43(B). In the Complaint, Requester states: “November 6th, 2023 I requested all

incoming and outgoing emails from two district employees from September 1 2023

through November 6th, 2023. The request was denied and argued that the request was

to broad and extensive. I narrowed the request to a 10 day window and the request was

ignored. When followed up legal representative advised that even if I was to ask for 1 day

worth of emails it would still be denied.” Requester’s Complaint is accompanied by certain

copies of emails between Requester and one of Respondent’s counsel.

{¶3} The Clerk appointed a Special Master who referred the matter to mediation.

After mediation failed to successfully resolve all disputed issues between the parties, the

case was returned to the Special Master’s docket. The Special Master issued an order

establishing a schedule for the filing of evidence. Respondent filed its evidence and

informed the Court: “Respondent has not filed, under seal for in camera review,

unredacted copies of all records responsive to Requester’s public records request that

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Respondent contends are exempted from production by R.C. 149.43(A)(1)(v) or some

other law, in accordance with paragraph B(1) of the Order, since Respondent has not yet

claimed that any potentially responsive public records are so exempted.” Respondent

further informed the Court: “Respondent submits that Requester’s public records request

is an improper ambiguous and overly broad request for a complete duplication of

voluminous emails kept by Respondent – the number of which has been determined by

Respondent to be 17,494.”

{¶4} On February 6, 2024, in a filing labeled Respondent’s Combined Response

and Motion To Dismiss, Respondent, through counsel, responded to Requester’s

Complaint and moved to dismiss the Complaint under R.C. 2743.75(E)(2) and Civ.R.

12(B)(6) for failure to state a claim upon which relief can be granted.

{¶5} Eleven days later—on February 27, 2024—the Special Master issued a

Report and Recommendation (R&R). The Special Master states in the Report and

Recommendation that Respondent’s motion to dismiss should be denied because it relies

on matters beyond the complaint. The Special Master recommends that “Respondent be

ordered to produce all public records responsive to Requester’s public records request,”

that “Requester recover his filing fee and costs,” and that “Respondent bear the balance

of the costs of this case.” (R&R, 7.)

{¶6} On March 5, 2024, Respondent, through counsel, filed written objections to

the Special Master’s Report and Recommendation. Respondent’s objections are

accompanied by a Certificate of Service in which Requester’s counsel certifies that a copy

of Respondent’s objections “has been filed with the Court and served electronically upon

all parties via the Court’s electronic filing system in accordance with Rule 5(B)(2)(f) of the

Ohio Rules of Civil Procedure * * *.”1

1 Pursuant to R.C. 2743.75(F)(2), either party “may object to the report and recommendation within

seven business days after receiving the report and recommendation by filing a written objection with the

clerk and sending a copy to the other party by certified mail, return receipt requested.” Here, according to

the Certificate of Service accompanying Respondent’s objections, Respondent’s objections were not sent

to Requester by certified mail, return receipt requested, as required by R.C. 2743.75(F)(2).

On March 8, 2024 (after Respondent filed its objections), Respondent filed a document labeled

“Respondent’s Proof of Service.” In this document, Respondent’s counsel state:

Pursuant to Rule 5(B)(4) of the Ohio Rules of Civil Procedure, the undersigned hereby certifies that

on March 7, 2024, a copy of Respondent’s Objections to the Recommendations of the Special Master were

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{¶7} The next day—March 6, 2024—Requester filed a written response to

Respondent’s objections and Requester moved to strike “any filing filed by the

Respondent prior to March 6th, 2024 as being improperly served.”

II. Law and Analysis

{¶8} 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.

{¶9} 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

served upon Requester via certified mail, return receipt requested (along with a copy of each of

Respondent’s prior filings in this case since, on March 6, 2024, Requester served the undersigned with his

filing that claims he had not been served with any of Respondent’s filings in this case). The undersigned

hereby further certifies that on March 5, 2024, Respondent’s Objections to the Recommendations of the

Special Master were served upon Requester by sending the filing by electronic means to the e-mail address

provided by Requester in accordance with Rule 5(B)(2)(f) of the Ohio Rules of Civil Procedure and by

mailing it to Requester by United States mail in accordance with Rule 5(B)(2)(c) of the Ohio Rules of Civil

Procedure.

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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.

III. Respondent presents two objections for determination.

{¶10} 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 asks the Court to reject the Report and Recommendation in its

entirety. Respondent presents two objections for the Court’s determination:

{¶11} “Objection 1: The Special Master misstates the scope of the request made

and misapplies the nature of Respondent’s objections.”

{¶12} “Objection 2: The Special Master erred in recommending the release of

records that the Public Records Act defines as not public records.”

A. Respondent’s first objection is not well taken.

{¶13} In Respondent’s first objection, Respondent maintains that the Special

Master has misstated the scope of Requester’s request and Respondent’s objections

thereto. The Court disagrees.

{¶14} Requester’s Complaint is accompanied by copies of certain emails.

Respondent’s Evidence also contains copies of certain emails. A review of the emails

discloses the following:

• An email dated November 6, 2023 10:29:14 AM from attorney Kathy Perrico of

Weston Hurd LLP to Requester. Attorney Perrico states: “I represent the Buckeye

Local School District Board of Education and ask that you direct all future

communications relating to the threat of litigation to my attention. The underlying

matter was concluded with the issuance of the Administrative Review disposition.

No additional communications in relation thereto will be issued by the District.”

• An email dated November 6, 2023 10:40:58 AM from Requester to attorney Perrico

in which Requester asks for clarification and states, among other things, “lastly

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Kathy are you saying the district has shared my minor child’s records with you? If

so any such consent claimed to allow such has been immediately revoked. And I

demand any records of such be destroyed in your possession.”

• An email dated November 6, 2023 11:18 AM from Requester to attorney Perrico.

In the email, Requester states:

This email shall serve as an official public records request. I am making the

following requests:

All inbound and outbound email from Jeff Stanton and Dawn Kochsnek

email addresses. You can redact any email content that is of any other

children.

I need every email from present, going back to September 1st of 2023.

Also you are put on notice to preserve any and all emails during that period

of time for impending litigation purposes.

***

• An email dated November 6, 2023 3:10:50 PM from attorney Perrico to Requester

in which attorney Perrico states: “The District objects to this request on the basis

that it is overly broad unduly burdensome. * * * To the extent you may have

intended only to request the emails of Mr. Stanton and Ms. Kochanek regarding

you or your daughter, this would be a reasonably clear and narrow request. Please

let us know.”

• An email dated November 6, 2023 3:24 PM, from Requester to attorney Perrico in

which Requester states:

Kathy,

Am I to assume you represent the municipality in all aspects? Because you

have not defined your capacity still.

As for your relevant case law. I appreciate your effort here. However, I

disagree with your interpretation. All of your examples reference to “all

records” “voluminous records” and give examples of requests spanning

years.

I didn’t request “all the records” nor do I agree with the interpretation that

less than 70 days of email from two parties is considered “voluminous”.

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if you want to play the game to claim it’s to large than what time frame do

you suggest? 7 days? 10 days? Do what ever time frame you feel

comfortable with and I will just make multiple requests, which circumvents

your argument

So send me all emails from September 1st through September 10th of these

two individuals. When recieved I will make 6 additional requests one at a

time to gain the records in full.

Furthermore you have not acknowledged my demand to preserve these

records. So I will assume you are aware of such demand.

Moving forward my communication will be directed at the school since I

have not received a letter of representation or clarification on your scope of

representation. You are not the custodian of record so in all reality I have

no reason to make such request to you.

If you continue to deny my request I will file a court of claims case to address

this matter.

{¶15} This exchange of emails between Requester and attorney Perrico ostensibly

was followed by a telephone conversation between Requester and attorney Perrico. In

an email dated November 9, 2023, between Requester and attorney Perrico, Requester

writes,

Hey Kathy,

Thanks for taking my call. per our conversation you seem to believe that

any request for outbound/inbound emails even if narrowed down to a single

day is overly broad. I acknowledge your response and we can argue this in

the court of claims.

I have presented you with a demand to preserve such records for impending

litigation. I have issued this demand via certified mail to your firm since you

have failed to acknowledge it. I will send you a copy of the case intiated by

court of claims by end of day tomm.

(Respondent’s Evidence.) On November 9, 2023 2:27 PM Attorney Perrico responded

by email to Requester as follows:

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You are misrepresenting what I said and failing to acknowledge that a) this

was not your request, b) you did not make a new request, and c) you have

stated an intention to make serial requests that cumulatively will remain

overly broad and unduly burdensome. Please make sure you send a file

stamped copy.

(Respondent’s Evidence.) A few minutes later—November 9, 2023 2:35:16 PM—

Requester responded by email:

i didn’t misrepresent you. our call was recorded, you can hear it in our

hearing. i asked you if I ask for all inbound and outbound emails from the

super for a single day is that sufficient for you. you said it was still to overly

broad. i disagree.

Furthermore i did make another request. I assume you took english in

college right?” “So send me all emails from September 1st through

September 10th of these two individuals.” Looks like a request to me.

and now that i think of it since you have failed to issue a letter of

representation or acknowledge me demand for preservation i don't feel

obligated to extend any courtesy to you. you can ask your client for a copy

when they receive it.

Which by the way here is another public record request. My child was

involved in a MVA while in care of the district last year. Provide copies of all

accident and insurance information for everyone involved including the

districts carrier. Along with the district employees that were involved in the

matter as well. Got some more litigation to file on that topic as well.

{¶16} Regarding Requester’s public-records request, the Special Master states in

the Report and Recommendation: “Mr. Webb does not seek a complete duplication of

any particular type of records. He instead seeks a subset of a subset of a subset of one

type of record, emails to or from two specific employees, sent or received during a specific

period, dealing with a specific topic (his daughter).” (R&R, 6.) In the Court’s view, the

Special Master’s interpretation of Requester’s public-records request is consistent with

the evidence, including the parties’ disagreement about what was, and what was not,

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stated in the telephone conversation between Requester and attorney Perrico on or about

November 9, 2023.

{¶17} Respondent states in its objections: “Requester’s expressed disdain about

the fact that counsel may have been given access to his daughter’s education records,

sent in response to a notification of representation about a separate administrative review

relating to his daughter is not reasonably construed as a context clue for his public records

request. Requester, as master of his own Complaint, could have asserted that he

narrowed his request independently or as offered by Respondent. He did not. The Special

Master cannot amend Requester’s Complaint by way of his Report.” (Objections, 3,

footnote 4.)

{¶18} While Requester, as “master of his own Complaint.” could have stated his

public-records request differently and, while the Special Master cannot amend

Requester’s Complaint by way of the Report and Recommendation, the Court disagrees

with Respondent’s suggestion that Requester’s response may not be “reasonably

construed as a context clue for his public records request.” Rather, (1) the context clue

about an administrative review relating to Requester’s minor daughter, (2) Requester’s

instruction stating, “You can redact any email content that is of any other children,” and

(3) Requester’s request for “[a]ll inbound and outbound email from Jeff Stanton and Dawn

Kochsnek email addresses. * * *. I need every email from present, going back to

September 1st of 2023” provided parameters for Respondent to identify responsive

records to Requester’s public-records request. As the Special Master stated,

“[Requester] identified the subject matter, the dispute regarding his daughter, by

expressly disclaiming interest in records pertaining to other subjects. He identified the

relevant officials, Mr. Stanton and Ms. Kochsnek. He identified the relevant time period,

that between September 1, 2023, and his November 6, 2023, request.” (R&R, 3.)

{¶19} Moreover, in a telephone conversation following Requester’s and attorney

Perrico’s email exchanges, there ostensibly existed an opportunity for Respondent,

through its counsel, to clarify Requester’s public-records request. See R.C.

149.43(B)(2).2

2 Pursuant to R.C. 149.43(B)(2), if a requester “makes an ambiguous or overly broad request or has

difficulty in making a request for copies or inspection of public records under this section such that the

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{¶20} The Court finds Respondent’s contention that the Special Master misstated

the scope of Requester’s request and Respondent’s objections thereto is not persuasive.

Respondent’s first objection is not well taken.

B. Respondent’s second objection is not well taken.

{¶21} In Respondent’s second objection, Respondent maintains that the Special

Master erred in recommending the release of records that the Ohio Public Records Act

defines as not public records. See R.C. 149.43(A)(1)(v) (“‘[p]ublic record’ does not mean

any of the following: * * * Records the release of which is prohibited by state or federal

law”). Respondent urges that release of personally identifiable student information

without the consent of the student’s parent is prohibited under federal law, see 20 USC

1232g, and state law, see R.C. 3319.321(B).

Respondent states:

While Requester could potentially be entitled to emails containing

personally identifiable information of his daughter (by following the proper

procedures for obtaining records containing his daughter’s personally

identifiable information), such documents are clearly not public records in

the first instance, and thus, beyond the purview of this Court’s jurisdiction.

* * * Accordingly, the proper forum for Requester to obtain records

concerning the personally identifiable information of his daughter is not by

improperly attempting to invoke the jurisdiction of this Court – which has

public office or the person responsible for the requested public record cannot reasonably identify what

public records are being requested, the public office or the person responsible for the requested public

record may deny the request but shall provide the requester with an opportunity to revise the request by

informing the requester of the manner in which records are maintained by the public office and accessed

in the ordinary course of the public office’s or person’s duties.”

Notably, the Ohio Supreme Court has instructed,

Although [relator] bore the responsibility of identifying with reasonable clarity the records

at issue, we have “never held that in 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.” State ex rel. Morgan v. New Lexington, 112 Ohio

St.3d 33, 2006-Ohio-6365, 857 N.E.2d 1208, ¶ 29, 37.

State ex rel. Horton v. Kilbane, 167 Ohio St.3d 413, 2022-Ohio-205, 194 N.E.3d 288, ¶ 19.

Case No. 2023-00700PQ -10- DECISION & ENTRY

jurisdiction over disputes concerning public records requests (and not

personally identifiable student information).

{¶22} Respondent’s contention that this Court lacks jurisdiction in this matter is

unavailing. The General Assembly has conferred statutory jurisdiction upon this Court to

resolve disputes alleging a denial of access to public records in violation of the Ohio Public

Records Act. See R.C. 2743.75. Under R.C. 2743.75(A)(1), except for a court that hears

a mandamus action pursuant to R.C. 149.43, the Court of Claims is the sole and exclusive

authority in this state that adjudicates or resolves complaints based on alleged violations

of R.C. 149.43. See R.C. 2743.75(A)(1). And pursuant to R.C. 2743.03(A)(3)(b), the

Court of Claims has exclusive, original jurisdiction under R.C. 2743.75 to hear complaints

alleging a denial of access to public records in violation of R.C. 149.43(B) regardless of

whether the public office or person responsible for public records is an office or employee

of the state or of a political subdivision. See R.C. 2743.03(A)(3)(b). See generally Welsh-

Huggins v. Jefferson Cty. Prosecutor’s Office, 163 Ohio St.3d 337, 2020-Ohio-5371, 170

N.E.3d 768, ¶ 11.

{¶23} In this instance, Requester has brought a Complaint alleging a denial of

access to public records in violation of R.C. 149.43(B), thereby invoking this Court’s

statutory jurisdiction under R.C. 2743.75(A)(1) and 2743.03(A)(3)(b). And, in an exercise

of this statutory jurisdiction, the Court concludes that a reasonable interpretation of the

evidence indicates that Requester seeks emails concerning his minor daughter from

certain employees of Respondent (i.e., Jeff Stanton and Dawn Kochsnek) for the period

of September 1, 2023, to November 6, 2023.

{¶24} Respondent’s contention that Requester seeks public records concerning

other students is rebutted by Requester’s statement that “You can redact any email

content that is of any other children.” (email dated November 6, 2023 11:18 AM from

Requester to attorney Perrico).

{¶25} The Court finds that Requester’s second objection is not well taken.

C. Requester’s Motion To Strike is not well taken.

{¶26} Requester moves to strike any filing filed by the Respondent before March

6, 2024, as being improperly served. Requester states: “Opposing counsel has not

properly served any filing upon Webb in this matter and until March 5th, 2024, Webb was

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not registered for E-file Service, so in the event counsel claimed any served was affected

by E-filing is false and therefore any filing she has submitted she be stricken from the

record.”

{¶27} Respondent opposes Requester’s Motion To Strike. Respondent urges

Requester’s Motion contains only one accurate statement, that Requester failed to accept

a responsibility to check the case’s docket and to keep himself informed of the case’s

progress, and that Requester’s Motion is prohibited because the Special Master did not

allow for further motions or pleadings beyond those permitted through January 5, 2024.

{¶28} According to Court records, a copy of Respondent’s Evidence filed on

January 23, 2024, was not served on Requester by means of the Court’s electronic filing

system, despite Respondent’s counsel’s certification in an accompanying Certificate of

Service that a copy of this filing was “served electronically upon all parties via the Court’s

electronic filing system.” And, according to Court records, Requester was not served by

means of the Court’s electronic filing system with a copy of Respondent’s Combined

Response And Motion To Dismiss (which was filed on February 6, 2024), despite

Respondent’s counsel’s certification in an accompanying Certificate of Service that a copy

of this filing was “served electronically upon all parties via the Court’s electronic filing

system.”

{¶29} However, in this instance, since the Special Master essentially has

recommended rulings in Requester’s favor and since, as discussed above, Respondent’s

objections are to be overruled, Requester has not been prejudiced by Respondent’s

failure to serve copies of Respondent’s Evidence and Respondent’s Combined Response

And Motion to Dismiss before the Special Master issued the Report and

Recommendation. The Court finds Requester’s Motion To Strike is not well taken. See

Civ.R. 61 (harmless error) (“[t]he court at every stage of the proceeding must disregard

any error or defect in the proceeding which does not affect the substantial rights of the

parties”).

IV. Conclusion

{¶30} For reasons set forth above, the Court OVERRULES Respondent’s

Objections To The Recommendations Of The Special Master filed on March 5, 2024,

DENIES Respondent’s Motion To Dismiss filed on February 6, 2024, and DENIES

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Requester’s Motion To Strike filed on March 6, 2024 (which Requester has labeled

“Requester Response To Respondents Objection”). The Court adopts the Special

Master’s Report and Recommendation.

{¶31} In accordance with the Special Master’s recommendations, the Court

ORDERS Respondent to produce all public records responsive to Requester’s 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 to

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

of entry upon the journal.

LISA L. SADLER

Judge

Filed March 14, 2024

Sent to S.C. Reporter 4/4/24