[Cite as Speros v. Secy. of State, 2017-Ohio-8453.]




JOHN WILLIAM SPEROS                                    Case No. 2017-00389-PQ

        Requester                                      Special Master Jeffery W. Clark

        v.                                             REPORT AND RECOMMENDATION

OHIO SECRETARY OF STATE

        Respondent


        {¶1} On March 1, 2017, requester John Speros sent a public records request to
respondent Ohio Secretary of State (“SOS”) that stated:
             a. “For a personal (non-business) research topic, I request voting
                results in machine-readable format (e.g., Access or single table
                Excel) for all congressional races since 2001.

             b. Those data include: Year; District, Candidate Name, Candidate
                Political Party Affiliation; Number of Votes Received.

             c. If you have available a larger set of data along these lines, I’d be
                pleased to receive that collection and extract what I need.

             d. If you have additional questions or recommendations, please let me
                know that, too.”
(Complaint, Attachments p. 3.) On March 3, 2017, SOS Legislative Liaison Emily
Groseclose responded:
             e. “Elections results can be found on our website at
                http://www.sos.state.oh.us/sos/elections/Research/electResultsMai
                n.aspx.

             f. If you have any questions or need further assistance, please don’t
                hesitate to contact me.”
(Id., p. 2.) At the time of this response, the SOS website contained statewide, district,
and    county results          for 2002,       and    statewide,   district,   county,   and   precinct
level results for 2004, 2010, 2014, and 2016. It did not contain general
Case No. 2017-00389-PQ                      -2-     REPORT AND RECOMMENDATION


election results data for 2008 or 2012 (Bowling Aff., ¶ 11; Pietenpol July 20, 2017
Aff., ¶ 7-8.) Speros replied:
          g. “As I recorded in your voice-mail moments ago, while I appreciate
             your providing a link the Secretary of State election results web
             page(s), those data do not portray the information that I seek
             because those data are not portrayed in a readily useable format
             which enable year-over-year and district-by-district analysis.
          h. More specifically, those data are inadequate for various reasons,
             including these:
              Each election year’s data are portrayed in separate files

              Many of those files are rendered in a (HTML) format which cannot
               be directly imported into a database

              Each of the files employ widely varying formats—below my
               signature block please find two examples that indicate how radically
               different the data are portrayed—that impose very high costs to
               extract and import (and then error check).
          i. That is why I am requesting Congressional general election results
             for the years 2002 to 2016 in a single, comprehensive file the
             format for which can be easily imported into a flat file database.
             Technicians will recognize that this format includes a (Excel)
             spreadsheet, an (Access) database or even a delimited text file.
          j.   As I mentioned, if you have available a larger set of data along
               these lines, I’d be pleased to receive that collection and extract
               what I need. If you have additional questions or recommendations,
               please let me know that, too.”
(Emphasis added.) (Complaint, Attachments p. 1.)          On March 10, 2017, Elections
Counsel David W. Bowling of the SOS contacted Speros by telephone,
          k. “to discuss his concerns regarding the response to his public
             records request. Mr. Speros stated that he felt someone with an IT
             background would further understand his request and possess the
             capability to produce a responsive record. He indicated that he
             would be following up with a revised public records request to the
             Secretary of State’s Office.”
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(Bowling Aff., ¶ 7.) Speros denies that the call concluded with his promise to revise the
request, but instead relates his understanding,
             l.   “that Mr. Bowling intended to speak with the SOS’ computer
                  technologists to learn more about the SOS’ data management
                  systems and those systems’ ability to export the requested data.”
(Speros Aff., ¶ 7.) Neither party initiated a follow up to this call. Id.
       {¶2} On April 27, 2017, Speros filed a complaint under R.C. 2743.75 alleging
denial of timely access to all public records responsive to his request, in violation of
R.C. 149.43(B)(1), and failure of the SOS to explain its denial in writing, in violation of
R.C. 149.43(B)(3). Following referral to mediation, postponed at Speros’ request and
eventually held on July 7, 2017, the court was notified that mediation terminated without
resolution. On July 11, 2017, Speros filed an amended complaint. On July 20, 2017,
the SOS provided Speros separate spreadsheets for the general elections of 2004,
2006, 2008, 2010, 2012, 2014, and 2016, containing all election results on a precinct
level. (Bowling Aff., ¶ 10.) On July 24, 2017, the SOS filed its combined response
and motion to dismiss.           Pursuant to court order of August 2, 2017 for additional
information, the SOS filed an additional pleading and affidavit on August 17, 2017, and
Speros filed an affidavit and attachments on August 18, 2017. Speros filed his reply to
respondent's pleadings on September 14, 2017.
       {¶3} R.C. 2743.75(F)(1) states that public records claims filed thereunder are to
be determined through “the ordinary application of statutory law and case law.” Case
law regarding the alternative statutory remedy in mandamus1 provides that a relator
must establish by “clear and convincing evidence” that they are entitled to relief.
State ex rel. Miller v. Ohio State Hwy. Patrol, 136 Ohio St.3d 350, 2013-Ohio-3720,
¶ 14. Therefore, the merits of this claim shall be determined under the standard of clear
and convincing evidence, i.e., “that measure or degree of proof which is more than a
mere ‘preponderance of the evidence,’ but not to the extent of such certainty as is

       1   Formerly R.C. 149.43(C)(1), recodified in 2016 as R.C. 149.43(C)(1)(b), 2016 Sub.S.B. No. 321.
Case No. 2017-00389-PQ                     -4-     REPORT AND RECOMMENDATION


required ‘beyond a reasonable doubt’ in criminal cases, and which will produce in the
mind of the trier of facts a firm belief or conviction as to the facts sought to be
established.” Cross v. Ledford, 161 Ohio St. 469 (1954), paragraph three of the
syllabus. See Hurt v. Liberty Twp., 5th Dist. Delaware No. 17CAI050031, 2017-Ohio-
7820, ¶ 27-30.
       Motion to Dismiss
       {¶4} The SOS moves to dismiss all claims on the grounds that: 1) the SOS has
timely produced all pertinent documents that are responsive to Speros’ request, 2)
Speros made an impermissible request for the SOS to create new records, and 3)
Speros failed to identify the records sought with reasonable clarity. In construing a
motion to dismiss pursuant to Civ.R. 12(B)(6), the court must presume that all factual
allegations of the complaint are true and make all reasonable inferences in favor of the
non-moving party. Mitchell v. Lawson Milk Co., 40 Ohio St.3d 190, 192 (1988). Then,
before the court may dismiss the complaint, it must appear beyond doubt that plaintiff
can prove no set of facts entitling him to recovery. O'Brien v. Univ. Community Tenants
Union, Inc., 42 Ohio St.2d 242, 245 (1975).        The unsupported conclusions of a
complaint are, however, not admitted and are insufficient to withstand a motion to
dismiss. Mitchell at 193.
       {¶5} In ruling on the motion, the court is mindful that the policy underlying the
Public Records Act is that “open government serves the public interest and our
democratic system.” State ex rel. Dann v. Taft, 109 Ohio St.3d 364, 2006-Ohio-1825,
¶ 20. Therefore, R.C. 149.43 must be construed “liberally in favor of broad access, and
any doubt is resolved in favor of disclosure of public records.” State ex rel. Cincinnati
Enquirer v. Hamilton Cty., 75 Ohio St.3d 374, 376, 662 N.E.2d 334 (1996).
       Failure to Identify Records with Reasonable Clarity
       {¶6} Respondent states that Speros cannot show that the SOS violated a clear
legal duty under R.C. 149.43(B), because a public office has no duty to “respond to
Case No. 2017-00389-PQ                      -5-     REPORT AND RECOMMENDATION


requests that fail to identify the records being sought with reasonable clarity.”
(Combined response, pp. 1, 3-5.) This defense is in reference to R.C. 149.43(B)(2),
which provides, in part:
          m. “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 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.”
Speros counters that his request was not ambiguous or overly broad, but that if it was,
the SOS failed to comply with R.C. 149.43(B)(2) by not informing him 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,” in order to facilitate a revised request.
(Am. Complaint at ¶¶ 3. d. and 7. a.-c.).
       {¶7} In his first email, Speros made a request for specified “voting results” and
requested them in “machine readable format” (a term for which he gave non-exclusive
examples):
          n. “voting results in machine-readable format (e.g., Access or single
             table Excel) for all congressional races since 2001. Those data
             include: Year; District, Candidate Name, Candidate Political Party
             Affiliation; Number of Votes Received.”
(Complaint, Attachments p. 3.) Speros clarified on March 3, 2017 that his request was
for the “Congressional general election results for the years 2002 to 2016 in a single,
comprehensive file the format for which can be easily imported into a flat file database.”
(Complaint, Attachments p. 2.)       While Speros now characterizes this request as
including even separate files capable of being imported into a single database (Reply, p.
16; Combined response, p. 5.), I find that the March 3, 2017 clarification instead
Case No. 2017-00389-PQ                      -6-     REPORT AND RECOMMENDATION


removed ambiguity from the initial request, where he had broadly asked for “machine
readable format” but gave as one example, “single-table Excel.” Instead of adding a
request for data in separate year files, Speros expressly rejected the SOS’ provision of
online data as “inadequate” for reasons including, “[e]ach election year’s data are
portrayed in separate files.” (Complaint, Attachments p. 2.)          I find that Speros’
accompanying invitation to provide him with “a larger set of data” from which he could
“extract what I need” does not include or imply a request for smaller, separate files.
       {¶8} The question of whether a request is sufficiently specific to identify what
public records are being requested is separate and distinct from the question of whether
the requested public records exist. On review of the initial request and pre-complaint
correspondence, I find that the request for the specified SOS data in a single machine-
readable, comprehensive file was not ambiguous or overly broad. The correspondence
prior to the complaint does not reflect confusion over what content was requested, but
only whether a single, comprehensive file containing all responsive data existed. This
conclusion is further supported by the fact that the SOS did not seem to have any
difficulty identifying the election results data content specified in the request, and has
provided Speros with the specified data from the listed years. State ex rel. Morgan v.
New Lexington, 112 Ohio St.3d 33, 2006-Ohio-6365, ¶ 31-36. Finally, the duty of an
office to explain how its records are maintained and accessed arises only if the office
denies the request as ambiguous, overly broad, or otherwise not reasonably identifying
the records sought. R.C. 149.43(B)(2). The SOS did not deny the request for these
reasons prior to the filing of the complaint, and a court need not review a party’s post-
complaint assertion of this defense if it finds that the requests were properly
specific. I conclude that Speros made a sufficiently specific and proper request for
particular SOS election results data, and that therefore no obligation arose under
R.C. 149.43(B)(2) for the SOS to provide information as to how it maintains and
accesses its records.
Case No. 2017-00389-PQ                      -7-     REPORT AND RECOMMENDATION


       {¶9} Speros also claims that his March 1, 2017 request and March 3, 2017
clarification were broader than a request for only final election results data, and
encompassed in addition the following: all original source data, every draft version of
“proofing” the data, and every file format in which the drafts ever existed. (Reply, pp. 1,
7-8, 11-13, 16-19.) However, I find that applying the common rules of language, a
request for “election results” means the final record of the results unless accompanied
by a more expansive description. Rather than requesting these additional categories,
Speros admits that his request “was silent—intentionally so—as to whether it was
requesting only final versions or all versions.” (Reply, p. 17.) Speros did not attempt to
expand or clarify the terms of the March, 2017 requests in his amended complaint.
(Reply, p. 16.)
       {¶10} A public office is only required to produce records that are responsive
to the specific terms of the request. State ex rel. Lanham v. Smith, 112 Ohio St.3d 527,
2007-Ohio-609, 861 N.E.2d 530, ¶ 14; State ex rel. Bardwell v. Ohio Atty. Gen.,
181 Ohio App.3d 661, 2009-Ohio-1265, ¶ 5 (10th Dist.). In the absence of any request
for more than the specified categories and years of “voting results,” I do not find
clear and convincing evidence that Speros properly requested source data, drafts,
or alternate versions. See State ex rel. McCaffrey v. Mahoning Cty. Prosecutor’s Office,
133 Ohio St.3d 139, 2012-Ohio-4246, 976 N.E.2d 877, ¶ 19-21.
       Suggestion of Mootness
       {¶11} R.C. 149.43(B)(1) provides, in pertinent part, that “[u]pon request, a public
office or person responsible for public records shall make copies of the requested public
record available * * *.” In an action to enforce this requirement, a public office may
produce requested records prior to the court’s decision and thereby render the claim for
production moot. State ex rel. Striker v. Smith, 129 Ohio St.3d 168, 2011-Ohio-2878,
¶ 18-22. A court considering a claim of mootness must determine what records were
Case No. 2017-00389-PQ                        -8-      REPORT AND RECOMMENDATION


requested (see preceding section), and then to what extent the responsive records were
provided.
       {¶12} On July 20, 2017, the SOS sent Speros a disc containing 2004, 2006,
2008, 2010, 2012, 2014, and 2016 general election precinct level results, in Excel
format. (Bowling Aff. at ¶ 10, Exh. C., p. 1-2.) The SOS asserts that these files, along
with the 2002 .pdf and other files previously made available on the SOS website,
contain all of the existing SOS election results data specified by Speros. (Combined
response, pp. 5, 7; Bowling Aff. ¶ 10.) Regarding data content only, and not format or
aggregation, Speros acknowledges that “by now [August 16, 2017] the SOS provided
precinct-level congressional vote counts for the general elections 2004-2016, inclusive,
but not for 2002.” (Speros Aff., ¶ 12.) The SOS’ assertion that only a statewide (not
precinct level) spreadsheet exists containing the congressional election results for 2002
is unrebutted (Combined response, pp. 2, 5; Bowling Affidavit, ¶ 12; Pietenpol Aff. July
20, 2017, ¶ 9.) Speros points to no evidence that the SOS has withheld any existing
final election results data that is specified in his request.
       {¶13} I conclude that the SOS has now produced all records responsive to
Speros’ request, although not in the “single, comprehensive file” that Speros prefers.
       Request to Create a New Record
       {¶14} Speros claims that the SOS violated R.C. 149.43(B) by failing to produce
the requested data in a single, comprehensive file. The SOS counters that a public
office is only required to produce existing records and has no obligation to create new
records, including new compilations of dispersed data. State ex rel. Lanham v. Smith,
112 Ohio St.3d 527, 2007-Ohio-609, 861 N.E.2d 530, ¶ 15; State ex rel. White v.
Goldsberry, 85 Ohio St.3d 153, 154, 707 N.E.2d 496 (1999).
       {¶15} Speros correctly notes that if an electronic database used by a public office
has existing programming that can produce the output sought in a public records
request, then that output already “exists” for the purposes of the Public Records Act.
Case No. 2017-00389-PQ                     -9-     REPORT AND RECOMMENDATION


          o. “We hold that the clerk could not be required to create a new
             ‘document’ by compiling material to facilitate review of the public
             records. Conversely, if the clerk’s computer were already
             programmed to produce the desired printout, the "document" would
             already exist for the purpose of an         R.C. 149.43 request.”
State ex rel. Scanlon v. Deters, 45 Ohio St.3d 376, 379, 544 N.E.2d 680 (1989),
overruled on other grounds by State ex rel. Steckman v. Jackson, 70 Ohio St.3d 420,
426-427, 639 N.E.2d 83 (1994); accord State ex rel. Kerner v. State Teachers
Retirement Bd., 82 Ohio St.3d 273, 274-275, 695 N.E.2d 256 (1998) (“In order to create
the requested records, the board would have had to reprogram its computer system.”).
Applying the Scanlon rationale to a situation where a public office provided all requested
data, but declined to cull and compile the data into a format specified by the requester,
an appellate court has held:
          p. “The question posed * * * is whether the [public office] was
             obligated, * * * to compile and provide the requested information in
             a format which was not maintained by the record-keeping authority
             so as to facilitate review by Fant. This question must be answered
             in the negative.”
State ex rel. Fant v. Tober, 8th Dist. Cuyahoga No. 71616, 1997 Ohio App. LEXIS 5312,
*8 (Nov. 26, 1997).
      {¶16} Thus, the question is whether the SOS’ database was already programmed
to produce the desired congressional general election results for the years 2002 to 2016
“in a single, comprehensive file” of Excel spreadsheet, Access database, or delimited
file, as specified in Speros’ clarifying correspondence of March 3, 2017. The SOS
testifies that it does not have a compilation of 2002-2016 congressional election results
in a single spreadsheet file, and that the data stored in its “data management system,
even if not including the precinct level results, cannot be aggregated using Oracle or
any other data management program the Secretary’s office may have had in the past.”
(Pietenpol August 17, 2017 Aff., ¶ 12.) The SOS explains that even if it attempted to
Case No. 2017-00389-PQ                        -10-      REPORT AND RECOMMENDATION


write new code to create a “single, comprehensive file” of the 2002-2016 congressional
election results, potentially insurmountable problems exist:
           q. “Perhaps most noteworthy of these problems, there are over 8,000
              precincts in the State of Ohio and they can change each year and
              from election to election. It is unclear how a single file with precinct
              level data for seven years (2004, 2008, 2010, 2012, 2014, and
              2016) would work when precincts are changing year to year. In
              addition, after the 2010 census, Ohio went from eighteen to sixteen
              congressional seats. The boundaries of the congressional districts
              were also redrawn at this time. Both of these changes, results of
              congressional redistricting, pose quite a challenge to compiling all
              precinct level election results into a single file.”
(Pietenpol July 20, 2017 Aff., ¶ 10-11; see, generally, combined response pp. 1-3, 8-11,
and addl. filing p. 2-4, and affidavit citations therein.)
       {¶17} Speros asserts that the Oracle database software used by the SOS is
capable of producing the output he requests. In support, he references informational
web pages describing data file formats and software programs, parses the SOS’
responses for contradictions or inferred admissions (see Reply, generally), and
compares these with the data and metadata available on the SOS website (Am.
Complaint, ¶ 5; Speros August 18, 2017 Aff., ¶¶ 6, 8-11, Exh. A-D.). Speros draws the
conclusion that the SOS “probably has” additional Oracle report writing capabilities that
it could use (Reply, p. 4.), and demands that the SOS provide more detailed responses
to the information required by the court order of August 2, 2017, which he believes
would provide support for his conclusion. (Reply, p. 3-8.)
       {¶18} However, even a reasonable and good faith belief by a requester, based
only on inference and speculation, does not constitute the clear and convincing
evidence necessary to establish that a responsive document exists.             State ex rel.
McCaffrey v. Mahoning Cty. Prosecutor’s Office, 133 Ohio St.3d 139, 2012-Ohio-4246,
¶ 22-26; State ex rel. Gooden v. Kagel, 138 Ohio St.3d 343, 2014-Ohio-869, ¶ 8.
Although Speros states that SOS Elections Counsel David Bowling told him that the
Case No. 2017-00389-PQ                               -11-       REPORT AND RECOMMENDATION


SOS “publishes election results data to third parties2 using mechanisms other than the
SOS web site” (Speros Aff., ¶ 7.), this would be consistent with Bowling’s statement that
all persons or entities that have requested any election results since January 1, 2016
“are directed to the Ohio Secretary of State’s website or given the opportunity to view
historical results in hard back books stored at the Ohio Secretary of State’s office.”
(Bowling Aff., Exh. B, p. 7, Response No. 7.) In the absence of concrete evidence,
Speros urges the court to compel the SOS to provide additional technical explanation of
steps taken to produce the congressional election results data, but “there is no duty
under R.C. 149.43 for respondents to detail the steps taken to search for records
responsive to the requests.” McCaffrey at ¶ 26.
        {¶19} Requester’s opinion, based on inferences from online references and
respondent’s description of its data systems, is outweighed by the affirmative testimony
submitted by respondent regarding the contents and capabilities of those systems.
Because Speros fails to prove by clear and convincing evidence that the
requested output can be produced, he cannot show that the SOS possessed a duty to
produce it.        McCaffrey; Salemi v. Cleveland Metroparks, 8th Dist. Cuyahoga
No. 100761, 2014-Ohio-3914, ¶ 30.
        Requirement to Organize and Maintain Public Records
        {¶20} Speros claims that the SOS failed to comply with R.C. 149.43(B)(2), which
he characterizes as requiring a public office to “facilitate broader access to public
records by organizing and maintaining records in a format usable by the public.”
(Am. Complaint, ¶ 3. b.)            However, the statute makes no mention of “format,” but
instead requires that,
            r. “To facilitate broader access to public records, a public office * * *
               shall organize and maintain public records in a manner that they


        2  Although not included in this action, see Speros’ public records request of April 24, 2017
(Bowling Affidavit, Exh. B, ¶ 2 and p. 2, definition of “Third Parties”) for the parties’ understanding of other
parties to whom searchable format election result files have been produced.
Case No. 2017-00389-PQ                      -12-      REPORT AND RECOMMENDATION


              can be made available for inspection or copying in accordance with
              division (B) of this section.”
R.C. 149.43(B)(2).     In this case, the SOS made copies of the requested records
available to Speros, in “machine-readable format” as requested.             The aspirational
phrase “to facilitate broader access” does not require public offices to maintain records
in the best available system, or in multiple formats, or even in a particular medium.
“There is no requirement on the part of public agencies * * * to store records in a
particular medium in order to provide greater public access to the records.” State ex rel.
Margolius v. Cleveland, 62 Ohio St.3d 456, 461, 584 N.E.2d 665 (1992). Speros cites
no statutory or case law requiring the SOS, or public offices generally, to aggregate
event-based records into larger time span or content reports, or into a preferred
electronic “format.”
       {¶21} I conclude that Speros fails to show by clear and convincing evidence that
the SOS violated R.C. 149.43(B)(2).
       Failure to Provide Records, or Explanation of Denial, Within a Reasonable
       Period of Time
       {¶22} Speros claims that the SOS failed to provide all the existing records from
2008 and 2012 within a reasonable period of time, in violation of R.C. 149.43(B)(1)
(Am. Complaint, ¶ 3. a.), and failed to provide an explanation in writing of the denial of
those records, in violation of R.C. 149.43(B)(3) (Am. Complaint, ¶ 3. d. i.-ii.). The SOS
is required “to compile and publish biennially in a paper, book, or electronic format the
election statistics of Ohio [i.e., elections results and data], * * *.” R.C. 111.12. Elections
statistics are thus among the records that the SOS would be required to maintain as
“necessary for the adequate and proper documentation of the * * *, functions, * * *, and
essential transactions of the agency and for the protection of the legal * * * rights of the
state and persons directly affected by the agency’s activities.” R.C. 149.40. Although
not required to be maintained in a particular “format,” the election records of these years
were clearly required to be organized and maintained “in a manner that they can
Case No. 2017-00389-PQ                     -13-     REPORT AND RECOMMENDATION


be made available for inspection or copying in accordance with division (B) of this
section.” R.C. 149.43(B)(2). “In accordance with division (B)” includes the duty to
provide copies “within a reasonable period of time.” R.C. 149.43(B)(1).
       {¶23} The SOS admits that it possessed records of congressional elections
results from 2008 and 2012, albeit in flawed or “unproofed” form, at the time of Speros’
request (Bowling Aff., July 20, 2017, ¶ 11, Pietenpol Aff., July 20, 2017, ¶ 7-8.).
However, the SOS did not provide these records to Speros until July 20, 2017, over four
months later. The SOS also did not provide Speros with any explanation in writing (as
required when the request is in writing) for not producing these records until its
responses were filed in this action. The SOS presents no evidence that it could not
have produced, within days of the request, either an explanation for the denial, or
copies of the then-existing versions of the 2008 and 2012 elections results.
       {¶24} I conclude that Speros has shown by clear and convincing evidence that
the SOS failed to provide all records responsive to the request within a reasonable
period of time, in violation of R.C. 149.43(B)(1). I also conclude that Speros has shown
by clear and convincing evidence that the SOS failed to provide an explanation in
writing for the denial of the request for the elections results records of 2008 and 2012, in
violation of R.C. 149.43(B)(3).
       Request for Development of the Record
       {¶25} Speros urges the court to postpone the determination of this action, and
engage in further efforts to develop evidence regarding the SOS’s database system
capabilities.   However, the General Assembly created the Court of Claims public
records dispute remedy with the stated goal of “an expeditious and economical”
procedure to resolve disputes alleging a denial of access to public records, R.C.
2743.75(A), and not as a replacement for the existing remedy of a mandamus action
under R.C. 149.43(C)(1)(b). As a trade-off to achieve the condensed procedure in the
Court of Claims, the use of discovery is prohibited. R.C. 2743.75(E)(3)(a). In partial
Case No. 2017-00389-PQ                      -14-     REPORT AND RECOMMENDATION


mitigation, the statute permits the special master to require parties to submit additional
information or documentation supported by affidavits. Id. While the special master did
apply this option to obtain additional information and documentation from the SOS in
this case, the procedure cannot replace the full efficacy, or adversarial approach, of civil
discovery. However, if a public records requester anticipates that a dispute will require
detailed factual exploration of a public office’s recordkeeping systems, the requester
has the choice of bringing the action in mandamus to take advantage of the tools of
discovery. While Speros chose this court for the instant action, he may of course file in
mandamus for any future request (that does not pertain to the same set of records).
R.C. 149.43(C)(1); R.C. 2743(C)(1).
       {¶26} Construing Speros’ request for additional information and documents as a
motion made to the special master, the motion is hereby OVERRULED.
       Improper Disposal of Records
       {¶27} Speros claims that the SOS has improperly disposed of past election
results data in violation of R.C. 149.351(A). However, a claim that a public office has
improperly disposed of its public records is subject to enforcement only under R.C.
149.351(B), which provides that a person aggrieved by the alleged violation may
commence their enforcement action(s) in the court of common pleas of the county in
which division (A) allegedly was violated. George v. State, 10th Franklin Nos. 10AP-4,
10AP-97, 2010-Ohio-5262, ¶ 36. I recommend that Speros’ claim of improper disposal
of records be DISMISSED for lack of subject matter jurisdiction, Civ.R. 12(B)(1).
       Requester’s Policy Arguments
       {¶28} Speros argues at length that the SOS should adopt (or be compelled to
adopt) particular data management practices that he believes would enhance public
access to and understanding of Ohio election statistics. This court cannot legislate
policies or practices that are left to the discretion of a public office. Speros has cited no
legal requirement for the Secretary of State to maintain election results so that year-
Case No. 2017-00389-PQ                      -15-    REPORT AND RECOMMENDATION


over-year comparison or other data manipulation is enabled. If the General Assembly
intended to require additional standards or functionality for the electronic database
containing elections data, it could do so. The “General Assembly is the ultimate arbiter
of public policy.” State ex rel. Cincinnati Enquirer v. Dupuis, 98 Ohio St.3d 126, 2002-
Ohio-1038, ¶ 21; State ex rel. Plain Dealer v. Cleveland, 106 Ohio St.3d 70, 2005-Ohio-
3807, ¶ 54.
       {¶29} The parties retain the ability to continue negotiating their respective
interests in obtaining and providing election results records, and facilitating their use to
the public’s benefit. The parties are encouraged to cooperate going forward to achieve
mutually acceptable resolution of their interests. See State ex rel. Morgan v. Strickland,
121 Ohio St.3d 600, 2009-Ohio-1901, ¶ 18-20, 906 N.E.2d 1105.
       Conclusion
       {¶30} Upon consideration of the pleadings and attachments, I find that the
Secretary of State has provided all existing election results data responsive to Speros’
request. I recommend that Speros’ claim be DISMISSED as MOOT as it relates to
production of the specified records. With regard to the requested format, I find that
Speros fails to show by clear and convincing evidence that the SOS has a database
programmed to produce the requested data in the format of a single, comprehensive
file. I recommend that Speros’ claim that respondent failed to produce the requested
data in an available single, comprehensive file be DENIED.
       {¶31} I recommend the court issue an order GRANTING Speros’ claims that he
was denied access to all requested records within a reasonable period of time, and that
he was not provided with a written explanation of the portions of his request that were
denied.
       {¶32} Based on the above findings, I recommend that Speros is entitled to
recover from the SOS the costs associated with this action, including the twenty-five
dollar filing fee. R.C. 2743.75(F)(3)(b).
Case No. 2017-00389-PQ                     -16-     REPORT AND RECOMMENDATION


        {¶33} Pursuant to R.C. 2743.75(F)(2), either party may file a written objection
with the clerk of the Court of Claims of Ohio within seven (7) business days after
receiving this report and recommendation. Any objection shall be specific and state
with particularity all grounds for the objection. A party shall not assign as error on
appeal the court’s adoption of any factual findings or legal conclusions in this report and
recommendation unless a timely objection was filed thereto. R.C. 2743.75(G)(1).




                                               JEFFERY W. CLARK
                                               Special Master

cc:
John William Speros                          Renata Y. Staff
17310 Harland Avenue                         Sarah Pierce
Cleveland, Ohio 44119                        Assistant Attorneys General
                                             Constitutional Offices Section
                                             30 East Broad Street, 16th Floor
                                             Columbus, Ohio 43215


Filed October 27, 2017
Sent to S.C. Reporter 11/7/17
