[Cite as Neff v. Knapp, 2018-Ohio-2910.]




STACEY A. NEFF                                  Case No. 2017-00876PQ

       Requester                                Judge Patrick M. McGrath

       v.                                       DECISION

LISA KNAPP

       Respondent

         {¶1} Before the court are (1) a report and recommendation issued on
May 2, 2018, by Special Master Jeffery W. Clark that concerns a complaint filed by
requester Stacey A. Neff against respondent Lisa Knapp, (2) Neff’s written response
of May 11, 2018, to Special Master Clark’s report and recommendation, and
(3) Knapp’s written objections of May 11, 2018, to Special Master Clark’s report and
recommendation.
         {¶2} For reasons set forth below, the court determines that (1) insofar as Neff’s
written response may be construed to be a written objection, Neff’s objection should be
overruled, (2) Knapp’s written objections should be overruled, (3) the special master’s
report and recommendation should be modified, and (4) the special master’s report and
recommendation should be adopted, as modified by this decision.
                                           I. Background
         {¶3} On October 25, 2017, Stacey A. Neff sued Lisa Knapp, a trustee of Orange
Township, alleging a denial of access to public records. In her complaint, Neff stated:
“To date, I have received all items that I requested directly from the township. However,
those items requested directly from Ms. Knapp have not been addressed: Lisa uses a
personal email address so only she can send this information.”
         {¶4} The court appointed attorney Jeffery W. Clark as a special master in the
cause.      The court also referred the case for mediation.     After mediation failed to
successfully resolve all disputed issues, the court returned the case to the docket of
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Special Master Clark.    On May 2, 2018, Special Master Clark issued a report and
recommendation. In the conclusion of the report and recommendation, Special Master
Clark states:
              Upon consideration of the pleadings and attachments, I
       recommend that the court DENY Neff’s claim for production of records
       responsive to request No. 2 as moot. I further recommend that the court
       GRANT Neff’s claim for production of the records responsive to request
       No. 3 submitted under seal. I further recommend that the court DENY
       Neff’s request for production of records in request No. 5 as overly broad
       and ambiguous, and because respondent attests that no further
       responsive records exist. Neff has shown by clear and convincing
       evidence that respondent township violated the requirements of
       R.C. 149.43(B)(1), (B)(2), and (B)(3), and I recommend that the court find
       Neff is entitled to recover the amount of the filing fee and any other costs
       associated with the action that she has incurred. R.C. 2743.75(F)(3)(b).
(Report and Recommendation, 12.)
       {¶5} The court sent copies of the special master’s report and recommendation by
U.S. certified mail to Neff, Knapp’s counsel, and Knapp.        According to the court’s
records, Neff received the court’s mailing on May 11, 2018, Knapp’s counsel
received the court’s mailing on May 8, 2018, and Knapp received the court’s mailing on
May 4, 2018.
       {¶6} Thereafter, on May 11, 2018, Neff filed a response to the special master’s
report and recommendation and, that same day, Knapp, through counsel, filed written
objections to the special master’s report and recommendation. According to a “proof of
service” accompanying Neff’s response, Neff certified that the she served a copy of her
response “by ordinary mail, postage pre-paid, as well as email” to Knapp and Knapp’s
counsel. And, according to a certificate of service accompanying Knapp’s objections,
Knapp’s counsel forwarded a copy of Knapp’s objections to Neff “via certified
United States Mail, return receipt requested.”
       {¶7} The court sent a copy of Neff’s response to Knapp’s counsel by
U.S. certified mail and the court sent a copy of Knapp’s objections to Neff by
U.S. certified mail. According to the court’s records, on May 18, 2018, Knapp’s counsel
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received a copy of Neff’s response that the court had forwarded to him. Four days later,
on May 22, 2018, Knapp, through counsel, filed a response to Neff’s filing, with Knapp’s
counsel certifying that he forwarded a copy of Knapp’s response “via certified United
States Mail, return receipt requested.”
                                   II. Law and Analysis
      {¶8} R.C. 2743.75(F)(2) governs objections to a report and recommendation
issued by a special master of this court relative to a public-records dispute. 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. Any objection to the report and
      recommendation shall be specific and state with particularity all grounds
      for the objection. If neither party timely objects, the court of claims shall
      promptly issue a final order adopting the report and recommendation,
      unless it determines that there is an error of law or other defect evident on
      the face of the report and recommendation. 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.
Upon review, the court finds that, in accordance with requirements contained in
R.C. 2743.75(F)(2), both Neff and Knapp, through her counsel, submitted their filings
within seven business days after receiving a copy of the special master’s report and
recommendation. However, the court finds that Neff’s filing does not fully comport with
procedural requirements contained in R.C. 2743.75(F)(2) because Neff failed to send a
copy of her response to Knapp’s counsel by certified mail, return receipt requested.
Because Neff failed to fully comply with procedural requirements contained in
R.C. 2743.75(F)(2) when she filed her response, Neff’s filing may be subject to
dismissal. See e.g., State ex rel. White v. Bechtel, 99 Ohio St.3d 11, 2003-Ohio-2262,
788 N.E.2d 634, ¶ 5 (stating that “[t]he requirements of R.C. 2969.25 are mandatory,
                                             -4-
and failure to comply with them subjects an inmate’s action to dismissal”). However, in
the interest of justice the court will review Neff’s written response.
       {¶9} Regarding Knapp’s objections, the court finds that Knapp’s objections fully
comport with procedural requirements contained in R.C. 2743.75(F)(2) because
(1) Knapp, through counsel, timely filed her objections and (2) Knapp’s counsel has
certified that he sent a copy of Knapp’s written objections to Neff by certified mail, return
receipt   requested,   in   conformity   with      procedural   requirements   contained   in
R.C. 2743.75(F)(2). Knapp’s response to Neff’s filing of May 11, 2018 also is timely and
comports with procedural requirements contained in R.C. 2743.75(F)(2) because (1) it
was filed within seven business days after Knapp’s counsel received a copy of Neff’s
filing that the court sent to Knapp’s counsel via certified mail and (2) Knapp’s counsel
has certified that he sent a copy of Knapp’s response to Neff by certified mail, return
receipt requested.
   A. Neff’s suggestion of error in her written response is not well-taken.
       {¶10} On May 11, 2018, Neff filed a document that is labeled a “response” to the
special master’s report and recommendation. In this filing Neff essentially provides her
account of the events that led to the filing of her complaint, her account of certain events
during litigation of this matter before the court, and her account of alleged events that
occurred following the special master’s issuance of the report and recommendation.
But, except for claiming that she “[has] not received any response from Lisa Knapp or
Lee Bodnar relating to item #2,” it does not appear to the court that Neff in her response
has raised any objection to the special master’s report and recommendation.
       {¶11} A review of attachments to Neff’s complaint and the special master’s report
and recommendation discloses that by Request No. 2, Neff requested “any records of
requests from Lisa Knapp for financial records for Orange Township.”             (Complaint;
Report and Recommendation, 1.) And a review of the record discloses a
sworn declaration from Township Administrator Lee Bodnar wherein he avers that
Orange Township previously provided records generally related to “requests from
                                           -5-
Lisa Knapp for financial records of Orange Township that Lisa Knapp has transmitted to
Orange Township in any capacity.” (Bodnar Affidavit dated March 27, 2018, ¶ 4).
      {¶12} In view of Bodnar’s sworn declaration contained in his affidavit, the court is
not persuaded by Neff’s suggestion of error.         The court determines that Neff’s
suggestion of error should be overruled.
   B. Lisa Knapp’s written objections to the special master’s report are not
      well-taken.
      {¶13} By her written objections, (1) Knapp “objects to Special Master Clark’s
May 2, 2018 Report and Recommendation as it relates to Township Fiscal Officer
Joel Spitzer’s acts or omissions”, (2) Knapp “objects to Special Master Clark’s
recommendation that Requestor is entitled to recover the amount of the filing fee and
any other costs associated with the action that she has incurred,” and (3) Knapp
submits that the special master “misinterpreted the affidavit submitted by Township
Administrator Lee Bodnar and ignored the factual statements made in the Requestor’s
complaint.” (Respondent’s Objections, 1.) In support of Knapp’s objections, Knapp
relies in part on an affidavit of Joel Spitzer, who formerly served as Orange Township’s
record custodian. Spitzer’s affidavit is dated May 11, 2018—nine days after the special
master issued his report and recommendation.
      {¶14} In the report and recommendation, Special Master Clark stated:
              Request No. 2 was received by Fiscal Officer Spitzer, the person
      responsible for the records of Orange Township. * * * However, Spitzer did
      not provide Neff with copies of requested records in his keeping, or reject
      the request as ambiguous or overly broad, or assert any exception, or
      respond that the records did not exist. Instead, Spitzer forwarded to
      Knapp a second version of the request in which Neff had added the
      sentence, “For all requests we would like information from Lisa Knapp’s
      personal or township email address.” (Complaint at 3.) With no
      explanation as to whether he also maintained responsive records, Spitzer
      stated in his forwarding email, “Obviously, several items are under your
      control; thus, would need to be provided from you. Please provide notice
      to this office once the items requested are prepared for delivery.” (Id.)
                                           -6-
             Even if duplicate, convenience, or sending-party copies existed
      elsewhere, Spitzer was the person officially responsible for the township
      records. Respondent has provided no evidence to support Spitzer’s
      assertion that official, scheduled records responsive to request No. 2 were
      “obviously” only under Knapp’s control. Orange Township Administrator
      Lee Bodnar has since provided Neff with 48 pages of township
      correspondence responsive to request No. 2. (Bodnar Aff. at ¶ 3-4;
      attachments.) * * * Bodnar’s production of township records responsive to
      this request belies any necessity for Spitzer to have sought copies from
      Knapp. Spitzer’s failure to provide township records responsive to this
      request was a violation of R.C. 149.43(B)(1), and his failure to provide an
      explanation for denial of production was a violation of R.C. 149.43(B)(3).
      Spitzer’s redirection of the request to a trustee, rather than providing the
      records he maintained, resulted in delay of the response beyond a
      reasonable period of time, a further violation of R.C. 149.43(B)(1).
(Footnotes omitted.) (Report and Recommendation, 5-6.)
      {¶15} Based on the court’s review, it appears that the special master may have
“misinterpreted” Bodnar’s sworn declaration contained in an affidavit of March 27, 2018.
In paragraph 4 of his affidavit of March 27, 2018, Bodnar avers:
              Although the request for “any records of requests from Lisa Knapp
      for financial records of Orange Township that Lisa Knapp transmitted to
      Orange Township in any capacity” is ambiguous and overly broad,
      Orange Township nevertheless liberally construed, and then responded
      to, this public records request. Attached hereto are true and accurate
      copies of records generally related to “requests from Lisa Knapp for
      financial records of Orange Township that Lisa Knapp has transmitted to
      Orange Township in any capacity.” Orange Township previously provided
      the attached records to Stacey Neff.
(Emphasis added.) Notably, in paragraph 4 Bodnar does not attest that he provided
Neff with township correspondence responsive to Neff’s request No. 2, as the special
master stated in the report and recommendation.          Neither does Bodnar aver in
paragraph 4 when Orange Township provided the records to Neff. A review of the
special master’s report and recommendation further discloses that the special master
used this apparent misinterpretation in his analysis to conclude that by clear and
convincing evidence Fiscal Officer Joel Spitzer’s actions or inactions, or both, resulted
                                              -7-
in violations of R.C. 149.43(B). The court finds that Knapp’s contention that the special
master may have “misinterpreted” Bodnar’s affidavit appears to have some merit.
       {¶16} However, even assuming for the sake of argument that the special
master’s analysis is faulty because it is based in part on an incorrect factual
underpinning, it does not necessarily follow that Neff should be deprived of damages
that includes the amount of her filing fee or other costs associated with the action that
have been incurred by her. A review of Knapp’s objections discloses that Knapp does
not challenge the special master’s finding that none of the records related to Neff’s
Request No. 3 fall within in an exception to disclosure under R.C. 4701.19(B) or the
special master’s recommendation that the court grant Neff’s claim for the production of
the records responsive to request No. 3 submitted under seal.               See Report and
Recommendation, 6-9, 12. And, upon review, it does not appear to the court that the
special master’s conclusion of law and recommendation relative to Request No. 3
constitutes an error of law or other defect. See generally R.C. 2743.75(F)(2) (stating
that “[i]f neither party timely objects, the court of claims shall promptly issue a final order
adopting the report and recommendation, unless it determines that there is an error of
law or other defect evident on the face of the report and recommendation”).
       {¶17} Pursuant to R.C. 2743.75(F)(3), under certain circumstances a requester
may be entitled to recover from a public office or person responsible for the public
record the amount of the filing fee of twenty-five dollars and other costs associated with
the requester’s action that are incurred by the requester. R.C. 2743.75(F)(3) provides:
       If the court of claims determines that the public office or person
       responsible for the public records denied the aggrieved person access to
       the public records in violation of division (B) of section 149.43 of the
       Revised Code and if no appeal from the court’s final order is taken under
       division (G) of this section, both of the following apply:
       (a) The public office or the person responsible for the public records shall
       permit the aggrieved person to inspect or receive copies of the public
       records that the court requires to be disclosed in its order.
       (b) The aggrieved person shall be entitled to recover from the public office
       or person responsible for the public records the amount of the filing fee of
                                            -8-
       twenty-five dollars and any other costs associated with the action that are
       incurred by the aggrieved person, but shall not be entitled to recover
       attorney’s fees, except that division (G)(2) of this section applies if an
       appeal is taken under division (G)(1) of this section.
In this instance, (1) because Knapp has not challenged the special master’s conclusion
of law that Neff’s Request No. 3 does not fall into the scope of an exception under
R.C. 4701.19(B), (2) because the special master’s conclusion of law relative to Request
No. 3 results in a determination that Neff was denied access to a public record in
violation of R.C. 149.43(B), and (3) because, as discussed above, the court has
determined that the special master’s conclusion of law relative to Request No. 3 does
not appear to constitute an error of law or other defect, it follows that in this instance
Neff should be entitled to recover her filing fee of twenty-five dollars and any other costs
associated with her action that are incurred by her, but Neff should not be entitled to
recover attorney fees.
       {¶18} Finally, Knapp’s reliance on Fiscal Officer Joel Spitzer’s affidavit dated
May 11, 2018, to support her objections is not persuasive because through Sptizer’s
affidavit Knapp appears to add matter to the record that was not before the special
master and Knapp then asks this court to decide her objections on the basis of this new
matter. Under Ohio law, however, “it is well settled that ‘a reviewing court cannot add
matter to the record before it that was not a part of the trial court’s proceedings, and
then decide the appeal on the basis of the new matter.’ State v. Hooks, 92 Ohio St.3d
83, 2001 Ohio 150, 748 N.E.2d 528 (2001), citing State v. Ishmail, 54 Ohio St.2d 402,
377 N.E.2d 500 (1978), paragraph one of the syllabus.”           RNG Properties, Ltd. v.
Summit Cty. Bd. of Revision, 140 Ohio St.3d 455, 2014-Ohio-4036, 19 N.E.3d 906,
¶ 23. Thus, to the extent that R.C. 2743.75(F)(2) requires this court to function
as a reviewing court, the court finds Knapp’s reliance on Joel Spitzer’s affidavit of
May 11, 2018, is not persuasive.
       {¶19} In sum, because Knapp has not demonstrated prejudicial error by her
written objections, the court determines that Knapp’s written objections should be
                                            -9-
overruled. See Ohio Life Ins. & Trust Co. v. Goodin, 10 Ohio St. 557, 563 (1860),
paragraph one of the syllabus (“[i]n order to justify the reversal of a judgment or decree
upon error, the record must show affirmatively, not only that error intervened, but that it
was to the prejudice of the party seeking to take advantage of it”); see also Home S. &.
L. Co. v. Avery Place, LLC, 10th Dist. Franklin Nos. 13AP-777, 13AP-778, 2014-Ohio-
1747, ¶ 10 (appellate court is required to affirm a trial court’s judgment if there are any
valid grounds to support it).
                                       III. Conclusion
       {¶20} For reasons set forth above, the court determines that (1) insofar as Neff’s
written response may be construed to be a written objection, Neff’s objection should be
overruled, (2) Knapp’s written objections should be overruled, (3) the special master’s
report and recommendation should be modified, and (4) the special master’s report and
recommendation should be adopted, as modified in this decision.




                                           PATRICK M. MCGRATH
                                           Judge
[Cite as Neff v. Knapp, 2018-Ohio-2910.]




STACEY A. NEFF                                   Case No. 2017-00876PQ

       Requester                                 Judge Patrick M. McGrath

       v.                                        JUDGMENT ENTRY

LISA KNAPP

       Respondent


        {¶21} For the reasons set forth in the decision filed concurrently herewith, and
upon independent review of the objected matters, the court OVERRULES requester
Stacy Neff’s response of May 11, 2018, to the extent that it raises an objection to
Special Master Jeffery W. Clark’s Report and Recommendation of May 2, 2018. The
court also OVERRULES respondent Lisa Knapp’s written objections of May 11, 2018, to
Special Master Clark’s Report and Recommendation of May 2, 2018.                The court
MODIFIES Special Master Clark’s Report and Recommendation as stated in the
concurrently filed decision.         The court ADOPTS Special Master Clark’s Report and
Recommendation as modified in the concurrently filed decision.
        {¶22} Judgment is rendered in favor of requester Stacy Neff. In accordance with
the special master’s recommendation, the court ORDERS respondent to permit Neff to
inspect or receive copies of the records submitted under seal to the court relative to
Neff’s Request No. 3.          And the court determines Neff is entitled to recover from
respondent the amount of the filing fee of twenty-five dollars and any other costs
associated with the action incurred by Neff. Neff is not entitled to recover 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.
                                -11-




                                PATRICK M. MCGRATH
                                Judge


Filed June 6, 2018
Sent to S.C. Reporter 7/24/18
