[Cite as Fairley v. Cuyahoga Cty. Prosecutor, 2020-Ohio-1426.]




JULIETTE FAIRLEY                                      Case No. 2019-00955PQ

       Requester                                      Judge Patrick M. McGrath

       v.                                             DECISION AND ENTRY

CUYAHOGA COUNTY PROSECUTOR

       Respondent

          {¶1} Respondent Cuyahoga County Prosecutor (Prosecutor) objects to a special
master’s report and recommendation of February 21, 2020.
    I. Background
          {¶2} On September 13, 2019, pursuant to R.C. 2743.75(D), requester Juliette
Fairley (a self-represented litigant) sued the Prosecutor, claiming that the Prosecutor
denied her access to public records.                  Fairley appended several exhibits to the
complaint, including a letter to the Prosecutor (dated August 1, 2019) wherein she
states:
             I am a columnist for Newsmax and other media outlets. Please advise
          me as to the on-site facilities that are available that would allow me to
          review in person and request copies of court records in reference to the
          State of Ohio v Jaley Presutto Seghafi (CR-15-592641-A). Thank you.

          {¶3} The court appointed a special master in the cause. The court, through the
special master, referred the case to mediation.                  Pursuant to Civ.R. 12(B)(6), the
Prosecutor moved to dismiss Fairley’s complaint for failure to state a claim.               After
mediation failed to successfully resolve all disputed issues between the parties, the
case was returned to the special master’s docket. The Prosecutor again moved to
dismiss Fairley’s action, relying on Civ.R. 12(B)(1) as well as Civ.R.12(B)(6).
Case No. 2019-00955PQ                              -2-                           DECISION & ENTRY

        {¶4} On February 21, 2020, the special master issued a report and
recommendation (R&R) wherein he recommended (1) denying the Prosecutor’s motion
to dismiss, (2) issuing an order compelling the Prosecutor to disclose five pages of
withheld records and the redacted portion of a “DOB” (date of birth), but allowing the
Prosecutor to “retain the truncation of the social security number on p.001” of
documents appended to an affidavit, (3) finding that the Prosecutor failed to make any
of the requested records available promptly, (4) issuing an order providing that Fairley is
entitled to recover from the Prosecutor the amount of the filing fee of twenty-five dollars
and any other costs associated with the action that Fairley incurred, and (5) assessing
costs to the Prosecutor. (R&R, 18.)
        {¶5} On February 26, 2020—two days after the Prosecutor received a copy of the
R&R—the Prosecutor filed written objections to the R&R. The Prosecutor’s counsel
represents that he served a copy of the objections on Fairley by certified mail, return
receipt requested. On March 2, 2020—three business days after the Prosecutor filed
his objections—Fairley filed a written response to the objections wherein she asks the
court to “affirm” the R&R. Fairley represents that she served a copy of her response on
the Prosecutor’s counsel by email.1
        II. Law and Analysis
            A. R.C. 2743.75(F)(2) governs objections to a special master’s report and
            recommendation.
        Pursuant to R.C. 2743.75(F)(2),
        [e]ither 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

         1 R.C. 2743.75(F)(2) does not permit a party to serve a copy of a response to objections by email.

See R.C. 2743.75(F)(2) (requiring a party to send a copy of a response to an objecting party by certified
mail, return receipt requested). Fairley’s response therefore fails to comport with R.C. 2743.75(F)(2)’s
procedural requirements. In the interest of justice, however, the court accepts Fairley’s response. But
see State ex rel. Gessner v. Vore, 123 Ohio St.3d 96, 2009-Ohio-4150, 914 N.E.2d 376, ¶ 5 (stating that
"pro se litigants * * * must follow the same procedures as litigants represented by counsel”).
Case No. 2019-00955PQ                        -3-                        DECISION & ENTRY

       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 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.
          B. The Prosecutor presents six objections for the court’s consideration.
       {¶6} The Prosecutor “objects to the R&R because Fairley’s ‘letter’ [of August 1,
2019]: (1) was not a public records request; (2) if it was, it was overbroad; * * * (3) it was
ambiguous; (4) it plainly sought information, not documents; (5) it plainly sought ‘court
records’ and the sole vehicle for such requests falls under the Rules of
Superintendence; (6) in any event, Fairley is not entitled to costs.” (Objections, 2.)
      The Prosecutor presents the following objections:
       1. Objection 1: “The Special Master made an error of law by directing the
          Cuyahoga County Prosecutor produce ‘court records’ the majority of
          which (1) are publicly available on the Cuyahoga County Clerk of
          Court’s website and (2) are only properly requested via the Rules of
          Superintendence.”

       2. Objection 2: “The Special Master made an error of law by finding State
          ex rel. Parisi v. Dayton Bar Assn. Certified Grievance Commt., ____ Ohio
          St.3d ___, Slip Opinion No. 2019-Ohio-5157 ‘is limited to the facts of that
          case.’ R&R, p. 10.”

       3. Objection 3: “Fairley lacks standing to sue because her initial “letter
          requesting access to records” is not a public records request to CCPO
          [Cuyahoga County Prosecutor’s Office]. See Compl., p. 1 (a) and (b).”
Case No. 2019-00955PQ                      -4-                     DECISION & ENTRY

      4. Objection 4: “The Special Master made an error of law by directing the
          Cuyahoga County Prosecutor to produce records that Fairley never
          requested, but that the Special Master ordered CCPO to provide the
          Court of Claims in order to adjudicate Fairley’s lawsuit.”

      5. Objection 5: “The Special Master made an error of law by finding ‘[t]he
          claim for production as it relates to the 68 pages now disclosed is thus
          moot.’ R&R, p. 4.”

      6. Objection 6: “The Special Master made an error of law by finding
          ‘Fairley has met her burden to show that her public records request
          reasonably identified the records sought, and was not ambiguous or
          overly broad.’”

For ease of analysis, the court will consider the objections together and in a different
order than the order set forth by the Prosecutor.
      Third and Sixth Objections:
      {¶7} The third objection asserts that Fairley’s request of August 1, 2019, is not a
public-records request and, consequently, Fairley lacks standing. The sixth objection
maintains that the special master erred, as a matter of law, by concluding that Fairley
satisfied her burden to show that her public-records request was not ambiguous or
overbroad.
      {¶8} The Prosecutor contends Fairley’s letter does not constitute a proper public-
records request. And, assuming for the sake of argument that Fairley’s letter is a proper
public-records request, the Prosecutor contends Farley’s letter is ambiguous and
overbroad.
      {¶9} Generally, perfection in public-records requests is not required. State ex rel.
Morgan v. City of New Lexington, 112 Ohio St.3d 33, 2006-Ohio-6365, 857 N.E.2d
1208, ¶ 37. The Prosecutor’s contentions are similar to an argument presented in State
ex rel. Consumer News Servs. v. Worthington City Bd. of Edn., 97 Ohio St.3d 58, 2002-
Case No. 2019-00955PQ                         -5-                        DECISION & ENTRY

Ohio-5311, 776 N.E.2d 82, ¶ 36 (respondents “assert that they had no duty to promptly
prepare records for inspection because [the requester] failed to present any evidence
that it ever requested to inspect the resumes or that anyone from [the requester] ever
arrived at respondents' offices to inspect them”). The Ohio Supreme Court rejected the
argument, stating: “But respondents ignore [the requester’s] January 21 facsimile, in
which she specifically requested that respondents either send copies of the requested
records by facsimile, deliver the copies to respondents in person, or inform when she
could come to respondents' offices to inspect the records.” (Emphasis sic.) Notably, in
State ex rel. Consumer News Service, the Ohio Supreme Court instructed:
         To the extent that [the requester] requested inspection of the records,
         respondents had a duty under R.C. 149.43(B)(1) to “promptly” prepare the
         records and make them available for inspection. Although the word
         “promptly” is not defined by applicable statute, its customary meaning is
         “ ‘without delay and with reasonable speed’ “and this meaning “ ‘depends
         largely on the facts in each case.’ “Wadd, 81 Ohio St.3d at 53, 689 N.E.2d
         25, quoting Black's Law Dictionary (6th Ed.1990) 1214. Moreover, insofar
         as [the requester] requested copies of the records, respondents had a
         duty to provide the copies within a reasonable period of time.
         R.C. 149.43(B)(1); cf., e.g., Siegwald v. Curry (1974), 40 Ohio App.2d
         313, 318, 69 Ohio Op. 2d 293, 319 N.E.2d 381, quoting Atwell v. State
         (1973), 35 Ohio App.2d 221, 230, 64 Ohio Op. 2d 342, 301 N.E.2d 709,
         for the proposition that what is a “ ‘reasonable period of time’ “ to
         determine whether to take or refuse a chemical test in a DWI case will
         depend on “ ‘all the facts and circumstances in each case.’ ”
State ex rel. Consumer News Servs. at ¶ 37.
         {¶10} The court finds that the Prosecutor’s third and sixth objections are not well-
taken.
         First and Second Objections:
Case No. 2019-00955PQ                       -6-                     DECISION & ENTRY

      {¶11} The first objection asserts that the special master erred, as a matter of law,
by directing the Prosecutor to produce “court records,” which, according to the
Prosecutor, are publicly available on the Cuyahoga County Clerk of Court’s website,
and are properly requested by the Ohio Rules of Superintendence.              The second
objection asserts that the special master erred, as a matter of law, when he stated in the
R&R that the “holding in [State ex rel. Parisi v. Dayton Bar Assn. Certified Grievance
Commt., Slip Opinion No. 2019-Ohio-5157] is limited to the facts of that case.”
      {¶12} Effective July 1, 2009, the Ohio Supreme Court adopted Rules of
Superintendence for the Courts of Ohio regarding public access to court records. State
ex rel. Cincinnati Enquirer v. Lyons, 140 Ohio St.3d 7, 2014-Ohio-2354, 14 N.E.3d 989,
¶ 13. In Parisi, the Ohio Supreme Court does not appear to have expressly limited
Parisi to the facts of that case and stated that “[g]enerally, if the records requested are
held by or were created for the judicial branch, then the party seeking to obtain the
records must submit a request pursuant to Sup.R. 44 through 47.” Parisi at ¶ 21.
      {¶13} Parisi is, however, factually distinguishable from this case. Parisi sought
records from the Dayton Bar Association related to her two attorney-discipline cases.
The Ohio Supreme Court noted that a certified grievance committee of a bar association
(which “function[s] somewhat independently” from the Ohio Supreme Court) prepares
and creates attorney-discipline cases for consideration by the Ohio Supreme Court.
Parisi at ¶ 25-26.   Here, however, Fairley sought court records from a prosecuting
attorney, which is an independently elected public official, see R.C. 309.01, and whose
powers and duties generally do not require the preparation and creation of attorney-
discipline cases for review by the Ohio Supreme Court. See R.C. 309.08. Moreover, as
noted by the Ohio Supreme Court, “not every record contained within a prosecutor's file
is exempt. * * * Certain records are unquestionably nonexempt and do not become
exempt simply because they are placed in a prosecutor’s file.” State ex rel. WLWT-TV5
v. Leis, 77 Ohio St.3d 357, 361, 673 N.E.2d 1365 (1997), overruled in part on other
grounds, State ex rel. Caster v. City of Columbus, 151 Ohio St.3d 425, 437, 2016-Ohio-
Case No. 2019-00955PQ                         -7-                      DECISION & ENTRY

8394, 89 N.E.3d 598. For example, in Leis the Ohio Supreme Court determined that an
indictment was a nonexempt record. Leis at 361.
         {¶14} The court finds that the Prosecutor’s first and second objections are not
well-taken.
         Fourth and Fifth Objections:
         {¶15} The fourth objection asserts that the special master erred, as a matter of
law, by directing the Prosecutor to produce records that Fairley never requested, “but
that the Special Master ordered [the Prosecutor] to provide the Court of Claims in order
to adjudicate Fairley’s lawsuit.” The fifth objection asserts that the special master erred,
as a matter of law, by finding “‘[t]he claim for production as it relates to the 68 pages
now disclosed is thus moot.’ R&R, p. 4.”
         {¶16} Within the fourth and fifth objections the Prosecutor reiterates contentions
that Fairley’s initial request was not a valid public-records request. In the fifth objection
the Prosecutor suggests that, because Fairley’s initial request was not a proper public-
records request, then the special master improperly ordered the Prosecutor to provide
certain documents. The court already has determined that Fairley’s initial request of
August 1, 2019 was a proper public-records request. Pursuant to R.C. 2743.75(E)(3)(c),
a special master “may require either or both of the parties to submit additional
information or documentation supported by affidavits” before a special master submits a
R&R. Moreover, producing requested records, as the Prosecutor appears to have done
in this case, generally moots a public-records case.          See State ex rel. Cincinnati
Enquirer v. Ohio Dept. of Pub. Safety, 148 Ohio St.3d 433, 2016-Ohio-7987, 71 N.E.3d
258, ¶ 29; 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, ¶ 43.
         {¶17} The court finds that the Prosecutor’s fourth and fifth objections are not well-
taken.
         II. Conclusion
   Case No. 2019-00955PQ                       -8-                       DECISION & ENTRY

       {¶18} Having concluded that the Prosecutor’s objections of February 26, 2020, are
not well-taken, the court OVERRULES the objections.           The court adopts the special
master’s R&R of February 21, 2020. Judgment is rendered in favor of Fairley. The court
ORDERS the Prosecutor to forthwith permit Fairley to inspect or receive copies of (1) the
five pages of withheld records that the special master identified in the R&R (Gutkoski Aff. p.
027-029, 033-034) and (2) the redacted portion of DOB p. 001 of the documents appended
to an affidavit of Brian R. Gutkoski (which is dated December 6, 2019) but, in accordance
with the special master’s recommendation, the Prosecutor may “retain the truncation of the
social security number on p.001.” Fairley is entitled to recover from the Prosecutor the
amount of the filing fee of twenty-five dollars and any other costs associated with the action
that are incurred by her, but Fairley is not entitled to recover attorney fees. See R.C.
2743.75(F)(3)(a) and (b). Court costs are assessed against the Prosecutor. The clerk shall
serve upon all parties notice of this judgment and its date of entry upon the journal.




                                              PATRICK M. MCGRATH
                                              Judge


   Filed March 12, 2020
   Sent to S.C. Reporter 4/10/20
