[Cite as Recker & Assocs. Co., L.P.A. v. Ohio State Dental Bd., 2019-Ohio-3678.]




FRANK R. RECKER & ASSOCIATES                           Case No. 2019-00381PQ
CO., L.P.A.
                                                       Judge Patrick M. McGrath
       Requester
                                                       DECISION AND ENTRY
       v.

OHIO STATE DENTAL BOARD

       Respondent

        {¶1} Respondent Ohio State Dental Board (Board) objects to “a portion” of a
special master’s report and recommendation (R&R) issued on July 5, 2019.
    I. Background
       {¶2} On March 18, 2019, pursuant to R.C. 2743.75(D), requester Frank R.
Recker & Associates Co., L.P.A (Recker) sued the Board, seeking a copy of a
consumer survey conducted by the Board relative to dental specialties and alleging a
denial of access to public records in violation of R.C. 149.43(B). 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 Board responded to the complaint and moved to “deny relief to the
Requestor, and/or dismiss the Complaint.”                   Because the special master required
additional information and documentation from the Board to evaluate the case, the
special master ordered the Board to file certain documents under seal.
        {¶3} On July 5, 2019, the special master issued a R&R, recommending denial of
the Board’s motion to dismiss, finding that the Board met its burden to show that the
requested survey records fell squarely within the definition of “trial preparation record”
as set forth in R.C. 149.43(A)(4), and concluding that Recker failed to establish that
requested survey documents were public records subject to disclosure. (R&R, 2, 7, 8-
9.) The special master recommended denying Recker’s claim for production of records
and assessing costs to Recker. (R&R, 9.)
Case No. 2019-00381PQ                        -2-                                      ENTRY


       {¶4} On July 17, 2019—seven business days after the Board received a copy of
the R&R—the Board, through counsel, filed written objections to the R&R. The Board
represents that it
       does not object to the Special Master’s ultimate conclusions, but objects to
       certain findings regarding the Board’s purpose in contracting with an
       expert consultant to conduct a consumer survey. Specifically, the Board
       objects to three underlined findings below:

   (1) The statement that, “the Board asserts that it commissioned the survey
       from which Recker seeks the questions and results for two purposes: first,
       for use in the ordinary course of a Board-initiated process to revise its
       special rules, and, second, for use as evidence in reasonable anticipation
       of civil litigation challenging its decisions in this particular instance.” (R&R
       at 4).

   (2) The statement that introductory language in the survey showed a “non-
       litigation purpose.” (R&R at 5.)

   (3) The finding that “while the survey questions and responses were not
       compiled solely for the purposes of litigation, the Board presented
       sufficient evidence that it specifically compiled this survey in a novel
       manner, in conscious and reasonable anticipation of litigation, by
       contracting with an outside expert instead of through its usual internal
       process[.]” (R&R at 7.)

(Objections, 1-2.)   In a certificate of service accompanying the R&R, the Board’s
counsel certifies that she served a copy of the Board’s objections on requester by
“certified mail.” The certificate of service does not indicate whether a “a return receipt”
was requested with the Board’s certified mailing.
       {¶5} Recker has not filed a timely response to the Board’s written objections.




   II. Law and Analysis
Case No. 2019-00381PQ                        -3-                                     ENTRY


       {¶6} 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.”
       {¶7} Upon consideration of the Board’s written objections and accompanying
certificate of service, the court finds that the Board substantially complied with R.C.
2743.75(F)(2)’s requirements for the filing of objections and service of objections,
notwithstanding the Board’s failure to indicate in the certificate of service whether its
certified mailing included “return receipt requested,” as required by R.C. 2743.75(F)(2).
Because the Board has substantially complied with R.C. 2743.75(F)(2)’s requirements,
the court determines that the Board’s written objections are properly before the court.
       {¶8} The Board’s objections, which take issue with two statements in the R&R
and one finding by the special master, collectively challenge the special master’s
description of the Board’s motivation for commissioning the consumer survey.             The
Board maintains that the evidence does not support a non-litigation reason for the
consumer survey. Since the Board’s objections are interrelated, the court will consider
the objections together.
       {¶9} The special master states in the R&R: “In this case, the Board asserts that it
commissioned the survey from which Recker seeks the questions and results for two
purposes: first, for use in the ordinary course of a Board-initiated purpose to revise its
specialty rules, and, second, for use as evidence in reasonable anticipation of civil
Case No. 2019-00381PQ                      -4-                                    ENTRY


litigation challenging its decisions in this particular instance. The opening language of
the questionnaire states only that the purpose of the survey is ‘to better understand
what Ohio residents value and expect in their dental care.’” (R&R, 4.)
        {¶10} Even though the special master ascribed a non-litigation motivation for the
Board’s commissioning of the survey, the Board’s objections are of no moment because
the special master did find, and the evidence does support the special master’s finding,
that the requested survey documents “fall squarely within the definition of ‘trial
preparation record’ as set forth in R.C. 149.43(A)(4)” (R&R, 7), and that the Board “has
met its burden to show that the requested records are subject in their entirety to the
statutory trial preparation exception.”     (R&R, 8.)     See Agricultural Ins. Co. v.
Constantine, 144 Ohio St. 275, 284, 58 N.E.2d 658 (1944) (“[b]y repeated decisions of
this court it is the definitely established law of this state that where the judgment is
correct, a reviewing court is not authorized to reverse such judgment merely because
erroneous reasons were assigned as the basis thereof”). As the Ohio Supreme Court
stated in Constantine: “If the defendant was entitled to judgment at the conclusion of the
plaintiff's case, the fact that the trial court based its conclusion upon an erroneous
reason is unimportant.” Id. at 284.
        {¶11} Accordingly, for reasons set forth above, the court OVERRULES the
Board’s objections of July 17, 2019, to the special master’s R&R of July 5, 2019. The
court adopts the special master’s R&R. Judgment is rendered in favor of the Board.
Court costs are assessed against Recker.




                                          PATRICK M. MCGRATH
                                          Judge
Filed August 7, 2019
Sent to S.C. Reporter 9/12/19
