[Cite as King v. Dept. of Job & Family Servs., 2018-Ohio-3477.]




DERRICK M. KING                                        Case No. 2018-00416PQ

       Requester                                       Judge Patrick M. McGrath

       v.                                              JUDGMENT ENTRY

DEPARTMENT OF JOB AND
FAMILY SERVICES

       Respondent

        {¶1} Before the court are (1) Special Master Jeffery W. Clark’s report and
recommendation of July 5, 2018, (2) requester Derrick M. King’s objections of
July 9, 2018 to Special Master Clark’s report and recommendation, and (3) respondent
Department of Job and Family Services’ response of July 16, 2018, to King’s written
objections. For reasons set forth below, the court holds that King’s objections should be
overruled, that the special master’s report and recommendation should be adopted, and
that judgment should be rendered in favor of respondent Department of Job and Family
Services (DJFS).
                               Background and Procedural History

        {¶2} On March 8, 2018, King filed a complaint against DJFS wherein King
alleged a denial of access to public records. The court appointed Jeffery W. Clark as a
special master in the cause.             And the court referred the case to mediation.   After
mediation failed to successfully resolve all disputed issues between the parties, the
court returned the case to the docket of Special Master Clark. DJFS thereafter filed a
document labeled “Combined Response to Complaint and Motion To Dismiss Of
Respondent Ohio Department of Job and Family Services.” On July 5, 2018, Special
Master Clark issued a report and recommendation wherein he found that “any basis for
dismissal is subsumed in the arguments to deny the claims on the merits,” and he
recommended that the court “proceed to determine this matter on the merits.” (Report
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and Recommendation, 2.) In the conclusion of the report and recommendation, Special
Master Clark stated: “Upon consideration of the pleadings and attachments,
I recommend the court DENY requester’s claim for production of records. I recommend
that court costs be assessed to requester.” (Report and Recommendation, 6.)
       {¶3} On July 6, 2018, the court forwarded a copy of Special Master Clark’s report
and recommendation to King and respondent’s counsel. Three days later, on July 9,
2018, King filed written objections to the special master’s report and recommendation.
In a proof of service, King certified that the sent “a true and correct copy” of his
objections to defense counsel Theresa R. Hanna and certain others at DJFS via
“electronic mail service.”
       {¶4} On July 16, 2018, DJFS filed a response to King’s written objections. In a
certificate of service accompanying DJFS’s response, counsel for DJFS certified that
she sent a copy of DJFS’s response to King “by certified mail, return receipt requested,
on July 16, 2018.”
                                   Law and Analysis

       {¶5} Pursuant to R.C. 2743.75(A), this court has authority to adjudicate or resolve
complaints based on alleged violations of R.C. 149.43(B). R.C. 2743.75(F)(2) governs
objections to a report and recommendation issued by a special master of this court.
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
Case No. 2018-00416PQ                           -3-                  JUDGMENT ENTRY


       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.
In this instance, King’s objections are timely filed because King filed his objections
within seven business days after receiving a copy of the special master’s report and
recommendation that the court forwarded to King. However, King’s objections do not
fully comport with requirements contained in R.C. 2743.75(F)(2) because, according to
the proof of service accompanying King’s objections, King did not send a copy of the
objections to DJFS by certified mail, return receipt requested, as required by R.C.
2343.75(F)(2). Because King has failed to fully comply with procedural requirements
contained in R.C. 2743.75(F)(2) when he filed his objections, King’s non-conforming
filing properly may be stricken. See McCormac and Solimine, Anderson’s Ohio Civil
Practice with Forms, Section 6.12 (2016 Ed.) (“a court has an inherent right to strike
pleadings from the file where its rules are being violated or grossly abused”); see also
Barrette v. Lopez, 132 Ohio App.3d 406, 416-417, 725 N.E.2d 314 (7th Dist.1999) (“a
trial court is vested with broad discretion over the admission and exclusion of evidence.
* * * Thus, even in the absence of an objection, the trial court has the inherent authority
to exclude or strike evidence on its own motion”). However, in the interest of justice, the
court will accept King’s objections as filed.
       {¶6} Unlike King’s written objections, DJFS’s response to King’s objections
complies with procedural requirements contained in R.C. 2743.75(F)(2) because
DJFS’s response was filed within seven business days of King’s objections and
because, according to DJFS’s counsel, a copy of DJFS’s response was sent to King by
certified mail, return receipt requested.
Case No. 2018-00416PQ                        -4-                     JUDGMENT ENTRY


       {¶7}   King presents the court with two objections:
   (1) “REQUESTOR HAS ALREADY MODIFIED HIS INITIAL PUBLIC RECORDS
        REQUESTS SO THEY ARE NOT OVERLY BROAD,”

   (2) “REQUESTOR HAS DEMONSTRATED BY CLEAR AND CONVINCING
        EVIDENDE [sic] THAT THERE ARE SOME RECORDS THAT EXIST AND
        RESPONDENT HAS REFUSED TO EITHER PROVIDE THE REQUESTED
        RECORDS OR A VALID JUSTIFICATION FOR THE REFUSAL TO PROVIDE
        THE RECORDS.”
       {¶8} In response, DJFS urges the court to strike or disregard King’s objections
because in DJFS’s view, in his objections King has improperly revealed confidential
mediation communications. DJFS also urges the court to reject King’s objections, adopt
the special master’s recommendation, and deny King’s claim for the production of
records because, in DJFS’s view, King’s records request of February 27, 2018, in its
original form, is the only request before the court.
       {¶9} Here, the special master noted that each of King’s requests “is identical in
form, asking for ‘copies of all e-mails between’ two correspondents, identified by name
and an email address, ‘between the time period of July 1, 2016 and March 31, 2017.’”
(Report and Recommendation, 4.) The special master found that these requests “are
ambiguous and overly broad in asking for an entire category of records rather than
describing particular emails in a manner that ODJFS can reasonably identify the records
sought. The nine-month time period is greater than that of similar requests found overly
broad by Ohio courts. I recommend that the court find that ODJFS properly denied the
requests.” (Report and Recommendation, 5.)
       {¶10} By his first objection, King contends that he modified his initial request for
records so they are not overly broad. Notably, this court previously has stated: “While
the court encourages consensual revision of ambiguous or overly broad requests in
cases filed under R.C. 2743.75, such revision does not relate back to the filing of the
complaint. There can be no cause of action based on failure of a public office to provide
Case No. 2018-00416PQ                      -5-                      JUDGMENT ENTRY


records in accordance with R.C. 149.43(B) without a proper request having been made
and denied prior to filing the complaint. See State ex rel. Bardwell v. Ohio Atty. Gen.,
181 Ohio App.3d 661, 2009-Ohio-1265, 910 N.E.2d 504, ¶ 5 (10th Dist.).” Robinson v.
Village of Alexandria, Ct. of Cl. No. 2017-00808PQ, 2018-Ohio-1581, ¶ 21 (Report and
Recommendation, March 16, 2018), adopted by the court, and re-adopted by court on
April 4, 2018, and April 11, 2018, respectively. Thus, King’s claim that he modified his
initial request for records is of no consequence because at issue in this case are the
requests asserted by his complaint of March 8, 2018. The court determines that King’s
first objection should be overruled.
       {¶11} Moreover, notwithstanding King’s contention that he has demonstrated by
clear and convincing evidence that there is no valid justification for DJFS’s refusal to
provide the requested records, the court concludes that clear and convincing evidence
supports the special master’s determination that DJFS properly denied King’s requests.
See Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954), paragraph three of the
syllabus (holding that clear and convincing evidence “is 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 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”). The court determines that King’s second objection should
be overruled.
                                       Conclusion
       {¶12} Accordingly, after independent review, the court finds no error or law or
other defect in the special master’s report and recommendation of July 5, 2018. The
court ADOPTS the special master’s report and recommendation of July 5, 2018, as its
own, including the findings of fact and conclusions of law contained in it. The court
OVERRULES King’s objections of July 9, 2018, to the special master’s report and
recommendation of July 5, 2018. Judgment is rendered in favor of DJFS. Court costs
Case No. 2018-00416PQ                      -6-                   JUDGMENT ENTRY


are assessed against King.      The clerk shall serve upon all parties notice of this
judgment and its date of entry upon the journal.




                                          PATRICK M. MCGRATH
                                          Judge


Filed July 18, 2018
Sent to S.C. Reporter 8/29/18
