[Cite as Mohr v. Colerain Twp., 2019-Ohio-474.]




KATHY J. MOHR                                         Case No. 2018-01032PQ

       Requester                                      Judge Patrick M. McGrath

       v.                                             ENTRY MODIFYING AND
                                                      ADOPTING RECOMMENDATION
COLERAIN TOWNSHIP                                     OF SPECIAL MASTER

       Respondent

        {¶1} On November 28, 2018, a special master issued a report and
recommendation (R&R) in this case arising under R.C. 2743.75. The special master
recommended that the court deny requester Kathy J. Mohr’s claims for production of
records in this case because the requests were for either non-records, or for records
that do not exist.         (R&R at 9.)            The special master further recommended the
assessment of court costs against Mohr. (R&R at 9.)
        {¶2} Neither Mohr nor respondent Colerain Township timely objected to the
special master’s R&R. According to R.C. 2743.75(F)(2), if neither party timely objects,
this court is required to “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.”
        {¶3} Upon review of the special master’s R&R, the court finds that an error of law
is evident on the face of the R&R because in the R&R the special master applied a
clear-and-convincing standard of proof in determining that Colerain Township failed to
prove certain exceptions. See, e.g., R&R at 7 (finding that Colerain Township “failed to
prove by clear and convincing evidence that the information is part of a protected
personal information system under the definition in R.C. 1347.01(F)”); id. at 8-9 (finding
that Colerain Township “has not shown by clear and convincing evidence that the
exception in R.C. 145.27(A)(2)(c) applies to Township information withheld in response
to Mohr’s first request”). In State ex rel. Cincinnati Enquirer v. Jones-Kelley, 118 Ohio
Case No. 2018-01032PQ                      -2-                                    ENTRY


St.3d 81, 2008-Ohio-1770, 886 N.E.2d 206, the Ohio Supreme Court discussed the
burden that applies to a public records custodian who contends that an exception
applies, holding at paragraph two of the syllabus:
      Exceptions to disclosure under the Public Records Act, R.C. 149.43, are
      strictly construed against the public-records custodian, and the custodian
      has the burden to establish the applicability of an exception. A custodian
      does not meet this burden if it has not proven that the requested records
      fall squarely within the exception. (State ex rel. Carr v. Akron, 112 Ohio
      St.3d 351, 2006-Ohio-6714, 859 N.E.2d 948, ¶ 30, followed.)
A claim that an exception to disclosure under the Public Records Act applies essentially
is a defense—a stated reason why a requester is not entitled to a requested document.
See R.C. 149.43(A)(1)(a)-(ff) (establishing what does not constitute a public record
under R.C. 149.43); see also Ohio Valley Radiology Assocs. v. Ohio Valley Hosp.
Assn., 28 Ohio St.3d 118, 122, 502 N.E.2d 599 (1986) (“the sole responsibility of a
defendant who has effectively contested the claimant’s allegations by pleading is to
refute the claimant’s case after the latter has established a prima facie case by proper
evidence”). As explained by the Ohio Supreme Court, in the “ordinary civil case the
degree of proof, or the quality of persuasion as some text-writers characterize it, is a
mere preponderance of the evidence.” Merrick v. Ditzler, 91 Ohio St. 256, 260, 110
N.E. 493 (1915).    And, generally speaking, in civil cases a party who asserts an
affirmative defense is required to establish the defense by a preponderance of the
evidence. See, e.g., Cameron v. Univ. of Toledo, 2018-Ohio-979, 98 N.E.3d 305, ¶ 18
(10th Dist.), discretionary appeal not allowed, 153 Ohio St.3d 1452, 2018-Ohio-3026,
103 N.E.3d 831. It follows therefore that under R.C. 2743.75 a party who claims that an
exception applies is required to prove that the requested records fall squarely within the
exception by a preponderance of the evidence.
      {¶4} In this instance the special master’s application of the standard of proof is
erroneous because the special master applied a clear-and-convincing standard of proof
Case No. 2018-01032PQ                      -3-                                   ENTRY


to Colerain Township’s claims of an exception, instead of determining whether the
requested records fall squarely within an exception by a preponderance of the evidence.
        {¶5} However, in this instance since the special master concluded that Mohr’s
requests were for either non-records, or for records that do not exist, the court
determines that the special master’s report and recommendation should be adopted,
excepting the special master’s application of a clear-and-convincing standard of proof
relative to whether an exception should apply. The court therefore modifies the special
master’s R&R of November 28, 2018, and the court adopts the R&R, as modified,
including the findings of fact and conclusions of law contained therein. Judgment is
rendered in favor of Colerain Township. Court costs are assessed against Mohr. The
clerk shall serve upon all parties notice of this judgment and its date of entry upon the
journal.




                                          PATRICK M. MCGRATH
                                          Judge
Filed January 9, 2019
Sent to S.C. Reporter 2/12/19
