[Cite as Townsend v. Cuyahoga Cty. Prosecutor, 2019-Ohio-5105.]




ALBERT J. TOWNSEND                                    Case No. 2019-00922PQ

       Requester                                      Judge Patrick M. McGrath

       v.                                             DECISION AND ENTRY

CUYAHOGA COUNTY PROSECUTOR,
et al.

       Respondents
       {¶1} Requester Albert J. Townsend, an inmate, objects to a special master’s
report and recommendation (R&R) of October 4, 2019, wherein the special master has
recommended denial of Townsend’s claim for production of records.
    I. Background
        {¶2} On August 30, 2019, pursuant to R.C. 2743.75(D), Townsend sued
Cuyahoga County Prosecutor Michael O’Malley and Judge Daniel Gaul, alleging a
denial of access to public records. The court appointed a special master in the cause.
The court, through the special master, referred the case to mediation. After mediation
failed to successfully resolve all disputed issues between the parties, the Cuyahoga
County Prosecutor (Prosecutor) filed a response to Townsend’s complaint.1                                On
October 4, 2019, the special master issued a R&R wherein the special master

1 Judge Daniel Gaul did not file a response to Townsend’s complaint. The court takes judicial notice that
Judge Gaul is a judge of the Common Pleas Court, General Division, of Cuyahoga County, Ohio. See
Evid.R. 201(C). Notwithstanding that the Cuyahoga County Prosecutor did not file a notice of
appearance on behalf of Judge Gaul, the court presumes that the Cuyahoga County Prosecutor
represents Judge Gaul in this matter. See Cuyahoga Cty Charter, Article IV, Section 4.01 (requiring the
duties of the elected Cuyahoga County Prosecutor to be determined in the manner provided by general
law); R.C. 309.09(A) (requiring a prosecuting attorney to be the legal adviser of the board of county
commissioners, board of elections, all other county officers and boards, and all tax-supported public
libraries and requiring the prosecuting attorney to prosecute and defend all suits and actions that any
such officer, board, or tax-supported public library directs or to which it is a party, and no county officer
may employ any other counsel or attorney at the expense of the county, except as provided in R.C.
305.14). See also 1988 Ohio Atty. Gen.Ops No. 55, paragraph one of the syllabus (a common pleas
court judge is a county officer for purposes of R.C. 305.14 and R.C. 309.09).
Case No. 2019-00922PQ                        -2-                       DECISION & ENTRY


determined that Townsend failed to show by clear and convincing evidence that
respondents committed any violation of R.C. 149.43(B) and the special master
recommended denying Townsend’s request for production of documents. (R&R, 5.)
       {¶3} On October 25, 2019, Townsend filed written objections to the R&R.
Townsend did not accompany his objections with a completed proof of service.
       {¶4} On November 1, 2019—two business days after a copy of Townsend’s
objections was received by the Prosecutor’s counsel—the Prosecutor, through counsel,
filed a response to Townsend’s objections. The Prosecutor maintains that Townsend is
not entitled to the records that he seeks because Townsend has failed to comply with
requirements contained in R.C. 149.43(B)(8).              The Prosecutor’s response is
accompanied by completed proof of service wherein counsel certifies that a copy of the
response was served on Townsend by certified mail, return receipt requested.
   II. Law and Analysis
       {¶5} R.C. 2743.75(F)(2) governs objections to a special master’s R&R issued
under R.C. 2743.75. 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. * * * If either party timely objects,
the other party may file with the clerk a response within seven business days after
receiving the objection and send a copy of the response to the objecting party by
certified mail, return receipt requested. The court, within seven business days after the
response to the objection is filed, shall issue a final order that adopts, modifies, or
rejects the report and recommendation.”
       {¶6} According to Townsend, he received a copy of the R&R on October 15,
2019, at the Grafton Reintegration Center. (Objections, ¶ 3.) A review of the docket
discloses that Townsend filed his objections on October 25, 2019—seven business
Case No. 2019-00922PQ                       -3-                      DECISION & ENTRY


days after he purportedly received a copy of the R&R.           The court determines that
Townsend’s objections are timely filed.
       {¶7} However, Townsend’s written objections are not accompanied by a
completed proof of service. Under R.C. 2743.75(F)(2) a party who objects to a R&R is
required to send a copy of the objections to the other party by certified mail, return
receipt requested.   R.C. 2743.75(F)(2).     And, pursuant to Civ.R. 5(B)(4), a served
document “shall be accompanied by a completed proof of service which shall state the
date and manner of service, specifically identify the division of Civ.R. 5(B)(2) by which
the service was made, and be signed in accordance with Civ.R. 11. Documents filed
with the court shall not be considered until proof of service is endorsed thereon or
separately filed.” (Emphasis added.) Thus, although Townsend’s objections are timely
filed, the objections are nonetheless procedurally deficient.
       {¶8} Even assuming for the sake of argument, however, that Townsend’s written
objections were not procedurally deficient, in the objections Townsend does not
challenge the special master’s finding that Townsend has failed to show that he
followed the mandatory procedures set out in R.C. 149.43(B)(8), which provides that a
public office or person responsible for public records “is not required to permit a person
who is incarcerated pursuant to a criminal conviction * * * to inspect or to obtain a copy
of any public record concerning a criminal investigation * * * unless the request to
inspect or to obtain a copy of the record is for the purpose of acquiring information that
is subject to release as a public record under this section and the judge who imposed
the sentence * * * or the judge’s successor in office, finds that the information sought in
the public record is necessary to support what appears to be a justiciable claim of the
person.” R.C. 149.43(B). Absent compliance with R.C. 149.43(B)(8), Townsend is not
entitled to the requested records under the Ohio Public Records Act. See State ex rel.
Barb v. Cuyahoga Cty. Jury Commr., 124 Ohio St.3d 238, 2010-Ohio-120, 921 N.E.2d
Case No. 2019-00922PQ                        -4-                     DECISION & ENTRY


236, ¶ 1 (determining that an inmate was not entitled to the requested records because
the inmate did not comply with R.C. 149.43(B)(8)).
         {¶9} Additionally, Townsend’s contention in the objections that the special master
“never once * * * contacted the Requester * * * either by mail, phone, or in person to
have given Mr. Townsend the opportunity to speak concerning the issues mentioned” is
unavailing because R.C. 2743.75 does not require the special master to make such
contact. See R.C. 2743.75(E)(2) and (3) and (F)(1).
    III. Conclusion
         {¶10} For reasons set forth above, the court OVERRULES Townsend’s
objections of October 25, 2019. The court adopts the special master’s R&R of October
4, 2019. Judgment is rendered in favor of respondents. Court costs are assessed
against Townsend. The clerk shall serve upon all parties notice of this judgment and its
date of entry upon the journal.




                                            PATRICK M. MCGRATH
                                            Judge

Filed November 6, 2019
Sent to S.C. Reporter 12/11/19
