Dissell v. Cleveland ( 2019 )

[Cite as Dissell v. Cleveland, 2019-Ohio-471.]
RACHEL L. DISSELL Case No. 2017-00855PQ
Requester Judge Patrick M. McGrath
v. ENTRY MODIFYING AND
ADOPTING RECOMMENDATION
CITY OF CLEVELAND OF SPECIAL MASTER
Respondent
{¶1} Respondent City of Cleveland (City) objects to a special master’s report and
recommendation issued on December 14, 2018.
I. Background
{¶2} On October 19, 2017, pursuant to R.C. 2743.75(D) requester Rachel L.
Dissell filed a complaint against the City, alleging that the City had failed to provide
requested records pertaining to an amended public-records request. Dissell’s amended
request asked the City for the following:
For Jan 1, 2016 – Dec. 31, 2016 and for Jan. 1, 2017 through
August 1, 2017 the following electronically collected EMS/Cleveland
Division of Fire or Cleveland Police Department records:
Any records that document Cleveland EMS/ Cleveland Fire
Department or Cleveland Police Department units dispatched or called to
respond to opioid related overdose calls, including heroin, synthetic
opioids, fentanyl, carfentanil or opioid mixtures that include marijuana or
cocaine.
Please include the date and time of the call, location or address of the
call, neighborhood (if collected), on scene disposition and/or non-patient
identifying narrative.
(Complaint, filed 10/19/17.) The court appointed a special master in the cause. The
special master referred the case to mediation pursuant to R.C. 2743.75(E)(1). After
mediation failed to successfully resolve all disputed issues between the parties, the
court returned the case to the special master’s docket.
Case No. 2017-00855PQ -2- ENTRY
{¶3} The City answered Dissell’s complaint, generally denying the allegations in
Dissell’s complaint and contending that all non-privileged documents had been
produced. The special master issued orders directing the parties to submit additional
filings and to file certain documents under seal. See Orders dated July 30, 2018,
August 20, 2018, September 11, 2018, October 25, 2018, and November 16, 2018.
{¶4} On December 14, 2018, the special master issued a report and
recommendation (R&R) wherein he recommended that the court order the City to
provide Dissell with “a copy of the EMS/Fire CAD event summary records, as submitted
under seal.” The court forwarded a copy of the R&R to the City. According to the
court’s records, the City received the R&R on December 19, 2018.
{¶5} On December 28, 2018—seven business days after the City received a
copy of the R&R—the City filed written objections to the special master’s R&R, with the
City’s counsel certifying that a copy of the City’s objections was sent to Dissell’s counsel
via U.S. certified mail, return receipt requested.
{¶6} The court later sent a copy of the City’s objections to Dissell’s counsel by
certified mail, return receipt requested. According to the court’s records, this mail was
received on January 8, 2019. Dissell has not timely filed a response to the City’s written
objections.
II. Law and Analysis
{¶7} R.C. 2743.75(F)(2) governs objections to a report and recommendation
issued by a special master of this court relative to a dispute brought under R.C.
2743.75.
{¶8} The court finds that the City’s objections to the R&R are timely filed
because, within seven business days after the City received the R&R, the City filed
written objections with the court’s clerk and, the City, through counsel, sent a copy of
the objections to Dissell’s counsel by certified mail, return receipt requested, as required
by R.C. 2743.75(F)(2).
Case No. 2017-00855PQ -3- ENTRY
{¶9} By the City’s objections, the City “requests that the Special Master’s report
and recommendations in regard to summaries be overruled and that it be determined
that [the City] has produced all non-privileged documents rendering this request moot.”
The City submits four objections for the court’s determination:
Objection 1: The Special Master overlooked the Requester’s request for
specific information regarding a particular medical diagnosis and treatment and
instead improperly shifted the burden on Respondent to explain what it could
produce and why it felt the records should not be produced.
Objection 2: The Special Master improperly ordered the Respondent to
compile a summary of medical records that are otherwise privileged.
Objection 3: The Special Master’s Report utilizes an improper standard while
reviewing the confidentiality provisions under federal and state privacy laws.
Objection 4: The Special Master incorrectly determined that a Protective Order
does not qualify as an exception.
{¶10} In Dissell’s amended request, which is the basis for Dissell’s complaint,
Dissell seeks records documenting dispatches of “Cleveland EMS/Cleveland Fire
Department or Cleveland Police Department units” to opioid related overdose calls,
including heroin, synthetic opioids, fentanyl, carfentanil or opioid mixtures that include
marijuana or cocaine. The special master, however, found that Dissell “has not shown
that records specifying only opioid-related drug overdose calls existed for the time
period in the requests.” (R&R, 7.) Given an absence of responsive records for the time
period at issue, it follows that Dissell has not sustained her burden to establish an
entitlement to the requested records by clear and convincing evidence. See State ex
rel. Caster v. Columbus, 151 Ohio St. 3d 425, 2016-Ohio-8394, 89 N.E.3d 598, ¶ 15
(although the Ohio Public Records Act is accorded liberal construction in favor of
access to public records, a relator must still establish entitlement to the requested
extraordinary relief by clear and convincing evidence); Hurt v. Liberty Twp., 2017-Ohio-
7820, 97 N.E.3d 1153, ¶ 27-30 (5th Dist.) (reviewing a case brought pursuant to R.C.
Case No. 2017-00855PQ -4- ENTRY
2743.75 under the standard of proof required in cases brought under a mandamus
action set forth in R.C. 149.43(C)(1)(b)).
{¶11} It further follows that the City’s second objection wherein the City contends
that it improperly had been required to compile information has some merit. A public-
records custodian generally is not required to create a new record by searching for
selected information. See State ex rel. Morgan v. City of New Lexington, 112 Ohio
St.3d 33, 2006-Ohio-6365, 857 N.E.2d 1208, ¶ 30 (requests for information and
requests that require the records custodian to create a new record by searching for
selected information “are improper requests” under R.C. 149.43). Because the City’s
second objection has some merit, the court concludes that it is unnecessary to rule on
the City’s other objections. See Capital Care Network of Toledo v. Ohio Dept. of Health,
153 Ohio St. 3d 362, 2018-Ohio-440, 106 N.E.3d 1209, ¶ 31 (“As Chief Justice Roberts
has stated, ‘[I]f it is not necessary to decide more, it is necessary not to decide more.’
PDK Laboratories, Inc. v. United States Drug Enforcement Admin., 362 F.3d 786, 799,
360 U.S. App. D.C. 344 (D.C.Cir.2004) (Roberts, J., concurring in part and concurring in
judgment)”).
III. Conclusion
{¶12} For reasons set forth above, the court SUSTAINS the City’s second
objection. The court does not enter rulings on the City’s first, third, and fourth
objections. The court modifies the special master’s R&R and adopts, as modified, the
R&R. Judgment is rendered in favor of the City. Court costs are assessed against
Dissell. 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 23, 2019
Sent to S.C. Reporter 2/12/19