Isreal v. Franklin Cty. Commrs. ( 2019 )

[Cite as Isreal v. Franklin Cty. Commrs., 2019-Ohio-5457.]
MICHAEL ISREAL Case No. 2019-00548PQ
Requester Judge Patrick M. McGrath
v. DECISION AND ENTRY
FRANKLIN COUNTY COMMISSIONERS
Respondent
{¶1} Requester Michael Isreal, a self-represented litigant, has filed the following:
(1) “Memorandum Contra Motion To Special Master Jeffery W. Clark Report and
Recommendation filed on October 17, 2019,” and (2) “Motion Supplement-Put In Order
Pro Se Requester Michael Isreal’s November 19, 2019 Memorandum Contra Motion To
Special Master Jeffery W. Clark Report and Recommendation Filed On October 17,
2019 To Include The Attached Left-Out Exhibits.”
I. Background
{¶2} On April 24, 2019, pursuant to R.C. 2743.75(D), Isreal sued respondent
Franklin County Commissioners, alleging a denial of access to public records. The
court appointed a special master in the cause. The court, through the special master,
referred the case to mediation. After mediation failed to successfully resolve all
disputed issues between the parties, respondent, through counsel, moved to dismiss
Isreal’s complaint.
{¶3} On October 17, 2019, the special master issued a report and
recommendation (R&R), wherein he recommended denial of Isreal’s claim for
production of records as moot, denial of a claim that responsive records were untimely
provided, and assessing court costs against Isreal.
{¶4} On November 19, 2019, with leave of court, Isreal filed a document labeled
“Memorandum Contra Motion To Special Master Jeffery W. Clark Report and
Recommendation filed on October 17, 2019.” In a portion of the filing labeled “Service,”
Isreal indicates that he “mailed” a copy of the filing to respondent’s counsel. Two days
Case No. 2019-00548PQ -2- DECISION AND ENTRY
later—on November 21, 2019—Isreal filed a document labeled “Motion Supplement-Put
In Order Pro Se Requester Michael Isreal’s November 19, 2019 Memorandum Contra
Motion To Special Master Jeffery W. Clark Report and Recommendation Filed on
October 17, 2019 To Include The Attached Left-Out Exhibits.”
II. Law and Analysis
1. R.C. 2743.75(F)(2) governs objections to a special master’s report and
recommendation.
{¶5} R.C. 2743.75(F)(2) sets forth the standard for reviewing objections to a
special master’s report and recommendation issued under R.C. 2743.75. Pursuant to
R.C. 2743.75(F)(2),
[e]ither 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
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.
2. Isreal’s filing of November 19, 2019, and Isreal’s motion of November 21,
2019 are not well-taken.
Case No. 2019-00548PQ -3- DECISION AND ENTRY
{¶6} The court construes Isreal’s filing of November 19, 2019, to be an objection.
Isreal has indicated that he “mailed” his objection to respondent’s counsel, but Isreal
has not certified that he served his objection on respondent’s counsel by certified mail,
return receipt requested, as required by R.C. 2743.75(F)(2). Isreal’s objection thus
appears to be procedurally irregular.
{¶7} Isreal states in the objections: “As of November 19, 2019, isreal [sic] has not
received complete discovery for the public records sought and received through the
foregoing public information request no. 2 and 4.” Isreal describes the requests as: “2.
Provide the dates and time the fire department was called for malfunctions of elevator
(8) in 2018,” and “4. Provide the dates and times maintenance employees opened doors
for trapped citizens in 2018.”
{¶8} Isreal’s request Nos. 2 and 4 seek information, not identified documents.
Indeed, in the R&R the special master noted that “requests Nos. 1 through 4 are in the
form of requests for information rather than specifically identified records, requiring
respondent to conduct research for source records. These requests also required
respondent to cull the maintenance and emergency records so located for malfunctions
and emergency calls involving only certain types of incidents and response personnel.”
(R&R, 4.)
{¶9} A public agency does not have a duty to create a new document by
searching for and compiling information from existing records. State ex rel. Kerner v.
State Teachers Retirement Bd., 82 Ohio St. 3d 273, 274, 695 N.E.2d 256 (1998). In
State ex rel. Kerner, the Ohio Supreme Court stated that “a compilation of information
must already exist in public records before access to it will be ordered. State ex rel.
Scanlon v. Deters (1989), 45 Ohio St. 3d 376, 379, 544 N.E.2d 680, 683, overruled on
other grounds, State ex rel. Steckman v. Jackson (1994), 70 Ohio St. 3d 420, 426-427,
639 N.E.2d 83, 89 (‘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
Case No. 2019-00548PQ -4- DECISION AND ENTRY
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. Kinsley v. Berea Bd. of Edn. (1990), 64 Ohio App. 3d 659, 664, 582 N.E.2d 653,
656.” Because Isreal’s objection challenges a failure to receive information—not
identified records—Isreal’s objection is not well-taken.
{¶10} On November 21, 2019, Isreal moved to supplement his objection with
various exhibits, which include, among other things, a copy of the Franklin County Ohio
organizational chart, a copy of the state of Ohio organizational chart, a copy of the
complaint in this case, a copy of R.C. 2743.75, a copy of “Public Records Claims –
Frequently Asked Questions” from this court’s website, a copy of the public records
policy of Franklin County, Ohio, a copy of a public-records request to the Franklin
County Commissioner’s Office that was received by that office on September 24, 2019,
and a copy of a receipt from the U.S. Postal Service dated November 20, 2019.
{¶11} Isreal’s motion to supplement the record is unpersuasive for several
reasons. First, as a court that reviews a special master’s R&R pursuant to R.C.
2743.75(F)(2), this court may not add matter to the record before it, which was not part
of the proceedings before the special master. See State v. Ishmail, 54 Ohio St. 2d 402,
377 N.E.2d 500 (1978), paragraph one of the syllabus (holding that a “reviewing court
cannot add matter to the record before it, which was not a part of the trial court's
proceedings, and then decide the appeal on the basis of the new matter”).
{¶12} Second, as a general matter, Isreal may not unilaterally supplement the
record. See State ex rel. Par Acquisition Co. v. Ohio Bur. of Workers’ Comp., 10th Dist.
Franklin No. 13AP-933, 2015-Ohio-499, ¶ 40 (“relators cannot unilaterally supplement
the record of the administrative proceedings by filing affidavits with their amended
complaint when those affidavits, or affidavits of similar import, were not submitted at the
administrative proceedings at issue”).
Case No. 2019-00548PQ -5- DECISION AND ENTRY
{¶13} Third, the documents offered by Isreal are within the record (e.g., a copy of
the complaint) or are not pertinent to the issue at hand, i.e., whether the special
master’s determination that Isreal’s requests Nos. 2 and 4 constituted a request for
information, instead of a proper records request.
{¶14} Fourth, although R.C. 2743.75(F)(2) permits parties to file written
objections to a special master’s R&R and responses to written objections; R.C.
2743.75(F)(2) does not expressly permit parties to engage in motion practice after a
R&R, objection, or response is submitted to the court. If parties were routinely able to
engage in motion practice after an R&R, objection, or response were submitted to the
court, such motion practice would frustrate the purpose of R.C. 2743.75, which is to
provide an expeditious and economical procedure for the resolution of public-records
disputes. See R.C. 2743.75(A) (authorizing this court to adjudicate or resolve
complaints based on alleged violations of R.C. 149.43(B) “[i]n order to provide for an
expeditious and economical procedure”). The General Assembly is the final arbiter of
public policy, and unless R.C. 2743.75(F)(2) is deemed unconstitutional by a court of
competent authority, this court is reluctant to deviate from the statutory framework
enacted by the General Assembly in R.C. 2743.75(F)(2). See Beagle v. Walden, 78
Ohio St. 3d 59, 62, 676 N.E.2d 506 (1997) (“ ‘ “The legislature is the final arbiter of public
policy, unless its acts contravene the state or federal Constitutions.” ’ State v. Smorgala
(1990), 50 Ohio St. 3d 222, 224, 553 N.E.2d 672, 675, quoting State v. Kavlich (1986),
33 Ohio App. 3d 240, 246, 515 N.E.2d 652, 657-658 (Markus, C.J., concurring)”).
{¶15} Isreal’s motion of November 21, 2019, is not well-taken.
III. Conclusion
{¶16} For reasons set forth above, the court OVERRULES Isreal’s written
objection of November 19, 2019, DENIES Isreal’s motion of November 21, 2019, and
adopts the special master’s R&R of October 17, 2019. Judgment is rendered in favor of
Case No. 2019-00548PQ -6- DECISION AND ENTRY
respondent. Court costs are assessed against Isreal. The clerk shall serve upon all
parties notice of this judgment and its date of entry upon the journal.
PATRICK M. MCGRATH
Judge
Filed December 17, 2019
Sent to S.C. Reporter 1/16/20