[Cite as Axelrod v. Dept. of Commerce, 2019-Ohio-1820.]




DAVID F. AXELROD, et al.                             Case No. 2018-01458PQ

       Requesters                                    Judge Patrick M. McGrath

       v.                                            ENTRY ADOPTING
                                                     RECOMMENDATION OF
OHIO DEPARTMENT OF COMMERCE,                         SPECIAL MASTER
DIVISION OF SECURITIES

       Respondent


        {¶1} On November 26, 2018, requesters David Axelrod and Trina Goethals filed
a complaint pursuant to R.C. 2743.75 alleging that respondent Ohio Department of
Commerce (DOC) denied access to public records in violation of R.C. 149.43(B). The
parties resolved four of the original public records requests in mediation, but failed to
resolve Requests Nos. 2 and 6. The case proceeded to the merits.
        {¶2} Axelrod sent DOC a public records request on July 12, 2018 seeking:
        2. Copies of all Division examination files and documents relating to Dock
        D. Treece, Treece Investment Advisory Corp. and/or Treece Financial
        Services, from January 1, 2008 through the present.

        6. Copies of all communications between or among Division staff,
        attorneys and other employees, including paper correspondence, text
        messages, email, audio recordings and other electronic communications
        (whether on state-issued or personal devices), with any broker-dealer,
        investment advisor or other third party, who offered to sell or stated that it
        would sell, at no cost, advisor class shares to clients of other investment
        advisors.

(Response Exh. 1.) DOC responded that its investigatory and trial preparation records
are prohibited from release under R.C. 1707.12, but it would review any publicly
Case No. 2018-01458PQ                       -2-                                     ENTRY


available documents. (Response Exh. 2.) DOC later produced some records, but
otherwise denied the requests as overly broad. The DOC asserts the records are
subject to R.C. 1707.12(C), or to the attorney-client or work product privileges.
       {¶3} The special master found that Request No. 6 is ambiguous and overly broad
and thus unenforceable. The special master found that Request No. 2 is also improperly
ambiguous and overly broad, with the exception of the severable request for “all
Division examination files * * * relating to Dock D. Treece, Treece Investment Advisory
Corp. and/or Treece Financial Services, from January 1, 2008 through the present.”
However, the special master found that the asserted exemption in R.C. 1707.12(B)
encompasses the entirety of the examination files, and justified the DOC’s denial of the
otherwise valid request embedded in Request No. 2. The special master recommended
the court grant respondent’s motion to dismiss to the extent that Requests Nos. 2 and 6
are ambiguous and overly broad, and recommended the court deny requester’s
remaining claim for production of records from examination files pursuant to R.C.
1707.12(B).
       {¶4} R.C. 2743.75(F)(2) states, in part: “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 * * * .” No objections were
filed by either party. The court determines that there is no error of law or other defect
evident on the face of the special master’s decision. Therefore, the court adopts the
special master’s report and recommendation as its own, including findings of fact and
Case No. 2018-01458PQ                      -3-                                   ENTRY


conclusions of law contained therein. Court costs are assessed against the requester.
The clerk shall serve upon all parties notice of this judgment and its date of entry upon
the journal.




                                          PATRICK M. MCGRATH
                                          Judge

Filed April 25, 2019
Sent to S.C. Reporter 5/10/19
