Doe v. Ohio State Univ. , 2023 Ohio 4880 ( 2023 )

[Cite as Doe v. Ohio State Univ., 2023-Ohio-4880.]
IN THE COURT OF CLAIMS OF OHIO
JOHN DOE Case No. 2023-00498PQ
Requester Special Master Todd Marti
v. REPORT AND RECOMMENDATION
OHIO STATE UNIVERSITY
Respondent
{¶1} This matter is before the special master for a R.C. 2743.75(F) report and
recommendation. He recommends that (1) Respondent be ordered to produce
unredacted copies of all records responsive to Requester’s pre-suit public records
requests, except the portions of those records that relate to students; (2) Requester
recover his filing fee and costs in this case and that Respondent bear the balance of the
costs of this case; and (4) that all other relief be denied.
I. Background.
{¶2} Requester John Doe is a ticket reseller. Respondent Ohio State University
(“OSU”) sells season tickets to its football and basketball games to its faculty, staff, and
donors. Doe made multiple requests to OSU for records containing information about
faculty, staff, and donors who purchased those tickets. OSU denominated those requests
as 23-721, 23-385, 23-959, 23-961, and 24-004. OSU provided some of that information,
but withheld most of what was sought. Complaint, filed July 25, 2023, pp. 1,5, 6, 13, 14,
17, 19, 21-22, 28-29,31-32, 34.1
{¶3} Doe filed this case to obtain the withheld information. Mediation did not
resolve the case, so a schedule was set pursuant to R.C. 2743.75(E)(3)(c) for OSU to file
1 All references to specific pages of public filings in this case are to the pages of the PDF copies posted on
the court’s public docket. All references to specific pages of the Sealed Documents, filed November 17,
2023 (“In Camera Documents”) are to the pages marked in OSU’s internal pagination of that filing.
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responsive materials for in camera review and for both parties to file evidence and
memoranda supporting their positions. That schedule has run its course, and the case is
ripe for decision. Order Terminating Mediation, entered November 3, 2023.
II. Analysis.
{¶4} OSU asserts that Doe’s requests are unenforceable for three reasons. One is
that the materials Doe seeks are not public records because they are not “records” as
defined by R.C. 149.011(G). Another is that all the responsive materials are exempted
from public record status because they are trade secrets. The third is that the portions of
the records pertaining to students are exempted from public record status by the Family
Educational Rights and Privacy Act (“FERPA”).
A. Most of the materials at issue are “records.”
{¶5} “‘Public record’ means records kept by any public office[.]” R.C. 149.43(A)(1)
(Emphasis added). Materials are therefore only “public record[s]” if they are “record[s].”
State ex rel. Wilson-Simmons v. Lake Cty. Sheriff’s Dept., 82 Ohio St.3d 37, 41, 693
N.E.2d 789 (1998).
{¶6} R.C. 149.011(G) defines a record as:
any document, device, or item, regardless of physical form or characteristic,
including an electronic record as defined in section 1306.01 of the Revised Code,
created or received by or coming under the jurisdiction of any public office of the
state or its political subdivisions, which serves to document the organization,
functions, policies, decisions, procedures, operations, or other activities of the
office.
That definition establishes three elements. They are (1) that the material in question is a
document, device, or item, including an electronic record (2) that was created or received
by or coming under the jurisdiction of a public office, (3) that serves to document the
organization, functions, policies, decisions, procedures, operations, or other activities of
the office. State ex rel. Data Trace Information Servs., L.L.C. v. Cuyahoga Cty. Fiscal
Officer, 131 Ohio St.3d 255, 2012-Ohio-753, 963 N.E.2d 1288, ¶ 31. A requester has the
burden of proving those elements. State ex rel. O’Shea & Assocs. Co., L.P.A. v.
Cuyahoga Metro. Hous. Auth., 131 Ohio St.3d 149, 2012-Ohio-115, 962 N.E.2d 297, ¶
23.
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{¶7} The materials at issue here are multiple spreadsheets collecting information
about season ticketholders. They consist of columns setting forth each ticketholder’s OSU
identification number, relationship to OSU (faculty, staff, donor, student etc.), name,
physical and email addresses, and in some cases seat locations and mobile phone
numbers. In Camera Documents, pp. 1-244.
{¶8} Those materials unquestionably have the first two elements of a record. They
are “documents” and copies of “electronic records” (spreadsheets). They are under
OSU’s “jurisdiction” because OSU was able to retrieve and file them in this case.
{¶9} Most of the materials have the third defining element because they
“document” OSU’s “operations, or other activities[.]” Information documenting a public
office’s contracts and other business dealings document the office’s “operations” and
“other activities.” State ex rel. Beacon Journal Publishing Co. v. Bodiker, 134 Ohio App.3d
415, 422, 731 N.E.2d 245 (10th Dist.1999) (“contracts *** fall squarely within the definition
of records, as those documents serve to document the operations and activities of the ***
Office *** the contracts *** evidence official agreements”); State ex rel. Harper v.
Muskingum Watershed Conservancy Dist., 5th Dist. Tuscarawas No. 2013 AP 06 0024,
2014-Ohio-1222, ¶¶ 9, 11 (Information about an office’s “contracts” and “leasing”
document office’s activities); 2002 Ohio Op. Atty. Gen. No. 30, at 2-201, 2-202, 2002
Ohio AG LEXIS 32, ** 7-10 (information about an office’s “customers” document office’s
activities).
{¶10} OSU’s dealings with ticketholders give rise to contracts and are business
dealings. Doe provided unchallenged evidence that OSU offers season tickets on specific
terms to employees and donors who accept those offers and make the requisite
payments; that is the epitome of a contract. Requester John Doe’s Notice of Document
Submission, filed November 20, 2923 (“Requester’s Evidence”), pp. 41-44, 70-85. Doe
also presented unchallenged evidence that that the sale of a season ticket results in a
“contract” or “license” between the ticketholder, OSU, and Ticketmaster, a company OSU
works with to distribute tickets. Id., pp. 50, 52, 63. OSU itself refers to ticketholders as
“customers,” evincing a business relationship between them. The Ohio State University’s
Motion to Dismiss, filed November 16, 2023 (“MTD”), at pp. 6-8; 11-14; 15; 16; 20 ¶ 8; 22
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¶¶ 12, 14, 15; 23 ¶¶ 18, 19, 20. Portions of the disputed materials that shed light on those
contracts and business dealings are therefore records.
{¶11} Most of the columns in the spreadsheets shed light on those matters:
- The columns describing the ticketholders’ relationships to OSU document
contract terms. Doe has presented unchallenged evidence that the terms upon
which tickets are made available to faculty, staff, and donors vary based on
their relationships to OSU, so this information documents the terms of OSU’s
contracts with various categories of ticketholders. Requester’s Evidence, pp.
41-44, 70-85.
- The ticketholders’ names document the persons OSU is contracting with. That
is obvious from the face of the spreadsheet.
- The ticketholders’ seat locations document a key aspect of OSU’s contracts
with its ticketholders: what it sold/licensed them.
- The ticketholders’ email addresses document how OSU communicates with its
customers, the ticketholders. Doe has presented evidence that OSU
communicates with ticketholders through their email addresses, both with
regard to forming the ticketholder/ticket issuer contract (i.e. applying for tickets)
and after that contract has been formed. Id. at pp. 29, 41, 42, 62, 66, 71, 81,
85.
- Like the email addresses, ticketholders’ mobile phone numbers document how
OSU communicates with its customers to form contracts and perform its part
of the contracts once they are formed. Id. at pp. 25, 26, 41, 42.
{¶12} Doe has not proven that some of the columns in the spreadsheets document
OSU’s contracts or business dealings. He has presented no evidence explaining how the
column containing each ticketholder’s OSU identification number reflects those matters.
Those numbers seem to be the type of administrative detail that is outside of record
status. State ex rel. Dispatch Printing Co. v. Johnson, 106 Ohio St.3d 160, 2005-Ohio-
4384, 833 N.E.2d 274, ¶ 25. Nor has he provided evidence connecting ticketholders’
physical addresses to their contracts with OSU. To the contrary, his evidence indicates
that ticket related interactions between OSU and its customers are exclusively electronic.
Doe has not carried his burden of proof as to that information.
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{¶13} The existence of the third element is a closer call because of cases holding
that names and addresses of private citizens and public employees were not records.
Johnson, supra; O’Shea, supra; State ex rel. McCleary v. Roberts, 88 Ohio St.3d 365,
725 N.E.2d 1144 (2000); State ex rel. Beacon Journal Publishing Co. v. Bond, 98 Ohio
St.3d 146, 2002-Ohio-7117, 781 N.E.2d 180; State ex rel. Degroot v. Tilsley, 128 Ohio
St.3d 311, 2011-Ohio-231, 943 N.E.2d 1018; Hicks v. Union Twp., 12th Dist. Clermont
No. CA2022-10-057, 2023-Ohio-874. There are nonetheless three reasons why those
cases do not control here.
{¶14} First, the cases do not establish a rule that private citizens’ names and
addresses can never be records. Indeed, one of those cases expressly recognized that.
Johnson, 106 Ohio St.3d 160, ¶¶ 39, 41. Other cases and authorities have reached the
same conclusion. Harper, 2014-Ohio-1222, ¶ 9; Brown v. City of Cleveland, Ct. of Cl. No.
2018-01426PQ, 2019-Ohio-1819, ¶ 11, adopted, 2019-Ohio-2627; 2004 Ohio Op. Atty.
Gen. No. 45, at 2-388, 2004 Ohio AG LEXIS 47, * 10 (“the fact that information is personal
in nature (e.g., names and addresses) is not, in itself, determinative of whether the
information is or is not a public record”); 2014 Ohio Op. Atty. Gen. No. 29, at 8, n. 8, 2014
Ohio AG LEXIS 28, **21.
{¶15} Second, private parties’ contact information can be records if it sheds light
on government activity. The dispositive question is whether that information “sheds light
on an agency’s performance of its statutory duties,” “the conduct of any Government
agency or official,” or “the internal workings of governmental agencies.” McCleary, 88
Ohio St.3d at 368, 369. Accord, Bond, 98 Ohio St.3d 146, ¶ 11; Johnson, 106 Ohio St.3d
160, ¶¶ 27, 40; 2004 Ohio Atty Gen. Op. No. 45, at 2-391, 2004 Ohio AG LEXIS 47, *18;
2014 Ohio Op. Atty. Gen. No. 29, at 4, 2014 Ohio AG LEXIS 28, **8. That Information is
given record status if it does shed light on those matters. For example, customer contact
information has been treated as a record when it illuminates public offices’ interactions
with their customers. Harper, 2014-Ohio-1222, ¶¶ 11, 12; 2002 Ohio Op. Atty. Gen. No.
30, at 2-201, 2-202, 2002 Ohio AG LEXIS 32, ** 8-10. The evidence here establishes that
the information bulleted above could indeed shed such light on such matters for the
reasons explained in those bullets.
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{¶16} Third, other precedents require that any doubt be resolved in favor of finding
that the materials are records. The Supreme Court has held that the open-ended
language of R.C. 149.011(G) is a direction for “expansion rather than constriction[.]” Kish
v. City of Akron, 109 Ohio St.3d 162, 2006-Ohio-1244, 846 N.E.2d 811, ¶ 20. Consistent
with that directive, the courts apply the definition according to its “great breadth” and
“expansive scope,” and resolve doubts in favor of inclusion. Id.; State ex rel. Data Trace
Information Servs., L.L.C. v. Cuyahoga Cty. Fiscal Officer, 131 Ohio St.3d 255, 2012-
Ohio-753, 963 N.E.2d 1288, ¶ 30; State ex rel. Cincinnati Post v. Schweikert, 38 Ohio
St.3d 170, 173, 527 N.E.2d 1230 (1988). Those precedents require that any doubt about
whether these materials are records be resolved in favor of record status.
B. OSU has not met its burden of proving that the records are trade secrets.
{¶17} Records disclosing trade secrets are exempted from public record status by
R.C. 149.43(A)(1)(v)’s “prohibited by state or federal law” provisions. State ex rel.
Seballos v. School Emples. Retirement Sys., 70 Ohio St.3d 667, 670, 640 N.E.2d 829(1994). Courts determine trade secret claims by considering:
“(1) The extent to which the information is known outside the business; (2) the
extent to which it is known to those inside the business, i.e., by the employees; (3)
the precautions taken by the holder of the trade secret to guard the secrecy of the
information; (4) the savings effected and the value to the holder in having the
information as against competitors; (5) the amount of effort or money expended in
obtaining and developing the information, and (6) the amount of time and expense
it would take for others to acquire and duplicate the information.” State ex rel. Plain
Dealer v. Ohio Dep’t of Ins., 80 Ohio St.3d 513, 524-525, 687 N.E.2d 661 (1997).
{¶18} “The question whether a particular [information] is a trade secret is a
question of fact[.]” Fred Siegel Co., L.P.A. v. Arter & Hadden, 85 Ohio St.3d 171, 707
N.E.2d 853 (1999), paragraph six of the syllabus. The party asserting trade secret
protection has the burden of proving facts establishing it. Plain Dealer, 80 Ohio St.3d. at
525. That is a heavy burden, under both public records and trade secret law.
{¶19} Public records law provides that a public office asserting an exemption from
its duty to provide access to public records bears “the burden of production *** to plead
and prove facts clearly establishing the applicability of the exemption.” Welsh-Huggins v.
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Jefferson Cty. Prosecutor’s Office, 163 Ohio St.3d 337, 2020-Ohio-5371, 170 N.E.3d 768,
¶ 27 (internal punctuation omitted). See also, id. at ¶¶ 35, 54. An office “does not meet
this burden if it has not proven that the requested records fall squarely within the
exception,” and the courts “resolve any doubt in favor of disclosure.” Id. at ¶¶ 27, 63. See
also id. at ¶¶ 50, 63. That burden must be carried with “competent, admissible
evidence[.]” Id. at ¶¶ 53, 77. And importantly here, “[u]nsupported conclusory statements
in an affidavit are insufficient.” Id. at 35. Instead, the office must explain “how” the disputed
record fits within the exemption. Id. at ¶¶ 55, 59 (Emphasis sic.).
{¶20} Trade secret law similarly requires more than conclusory statements. State
ex rel. Besser v. Ohio State Univ., 89 Ohio St.3d 396, 400, 401, 402, 404-405; 732 N.E.2d
373 (2000); Arnos v. MedCorp, Inc., 6th Dist. Lucas No. L-09-1248, 2010-Ohio-1883,
¶¶ 17, 28. “Conclusory statements as to trade secret factors without supporting factual
evidence are insufficient to meet the burden of establishing trade secret status.” Hance
v. Cleveland Clinic, 2021-Ohio-1493, 172 N.E.3d 478 (8th Dist.), ¶ 29 (Emphasis added).
See also In re Alternative Energy Rider Contained in the Tariffs of Ohio Edison Co., 153
Ohio St.3d 289, 2018-Ohio-229, 106 N.E.3d 1, ¶¶ 35, 37, 38 (trade secret analysis fatally
flawed by lack of supporting evidence). Affidavits that “consist of merely conclusory
statements that mimic the trade secret factors without including any supporting evidence
or demonstration of active steps” will not meet the proponent’s burden. Hance, 2021-
Ohio-1493, ¶ 32.
{¶21} OSU’s evidence falls short of those standards in two important respects.
1. OSU’s evidence does not provide sufficient proof that the information at
issue has been kept secret.
{¶22} Keeping the disputed information secret is essential to trade secret status.
“Once material has been publicly disclosed, it loses any status it ever had as a trade
secret.” State ex rel. Rea v. Ohio Dept. of Edn., 81 Ohio St.3d 527, 532, 692 N.E.2d 596(1998). Because of that, a “possessor of a potential trade secret must take some active
steps to maintain its secrecy in order to enjoy presumptive trade secret status[.]”
Columbus Bookkeeping & Business Servs. v. Ohio State Bookkeeping, LLC, 10th Dist.
Franklin No. 11AP-227, 2011-Ohio-6877 (Dec. 30, 2011), ¶ 19; Thermodyn Corp. v. 3M
Case No. 2023-00498PQ -8- REPORT AND RECOMMENDATION
Co., 593 F.Supp.2d 972, 986 (N.D.Ohio 2008). OSU’s evidence on this point falls short
on two levels.
{¶23} First, it is conclusory. It consists of several statements in an affidavit
asserting, without supporting detail, that to the best of one official’s knowledge, the “OSU
customer ticketholder lists are not known outside the university other than by select
Ticketmaster personnel who service the account,” and that “is impossible for others to
acquire and duplicate the information unless they have obtained the lists fraudulently.”
MTD, at pp. 22, 23, ¶¶ 14, 21. The closest OSU comes to providing particular facts is a
15-year-old letter declining a request for similar information, but that letter is both too
generic and too old to provide the missing details. Id. at pp. 27-28. See In re Alternative
Energy Rider Contained in the Tariffs of Ohio Edison Co., 153 Ohio St.3d 289, ¶¶ 34, 36
(discounting the value of dated information in trade secret analysis); Salemi v. Cleveland
Metroparks, 145 Ohio St.3d 408, 2016-Ohio-1192, 49 N.E.3d 1296, ¶ 28 (same). That
falls well short of the detail other courts have found sufficient to prove this factor. See e.g.
Valco Cincinnati, Inc. v. N & D Machining Serv., Inc., 24 Ohio St.3d 41, 47; 492 N.E.2d
814 (1986) (describing evidence sufficient to prove secrecy); State ex rel. Perrea v.
Cincinnati Pub. Schools, 123 Ohio St.3d 410, 2009-Ohio-4762, 916 N.E.2d 1049, ¶ 27
(same). In sum, OSU’s submissions on this point do not meet the public records law
requirement that it explain “how” it has maintained secrecy, an essential element of the
exemption it seeks. Welsh-Huggins, ¶¶ 55, 59 (emphasis sic). Those submissions are
also inadequate under trade secret law because they “consist of merely conclusory
statements that mimic the trade secret factors without including any supporting evidence
or demonstration of active steps[.]” Hance v. Cleveland Clinic, 2021-Ohio-1493, 172
N.E.3d 478 (8th Dist.), ¶ 32.
{¶24} Second, the record contains unchallenged evidence that OSU has disclosed
the information to third parties. A trade secret claim fails if the information has been
disclosed to third parties without limiting those parties’ use of the information. R & R
Plastics v. F.E. Myers Co., 92 Ohio App.3d 789, 802, 637 N.E.2d 332 (6th Dist.1993) (“an
owner’s disclosure to potential or actual customers, absent a confidential agreement or
understanding, will destroy any protection of that information as a trade secret”);
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Cincinnati Enquirer v. Hamilton Cty. Bd. of Commrs., Ct. of Cl. No. 2019-00789PQ, 2020-
Ohio-4856, ¶¶ 45, 47, adopted, 2020-Ohio-5281; Buduson v. City of Cleveland, Ct. of Cl.
No. 2018-00300PQ, 2019-Ohio-963, ¶ 29, adopted 2019-Ohio-1610; Jedson Eng., Inc. v.
Spirit Constr. Servs., 720 F.Supp.2d 904, 921-922 (S.D.Ohio 2010) OSU’s submissions
acknowledge that it disclosed the information at issue to Ticketmaster, but OSU has
provided no evidence that it did so under conditions restricting Ticketmaster’s use of the
information. MTD, at pp. 6; 8; 13; 22 ¶¶ 12, 14; 23 ¶ 21. Further, Doe’s submissions
indicate that Ticketmaster makes broad use of that information, including sharing it with
other companies. Requester’s Evidence, at pp. 47, 51, 52, 54. In short, OSU has
acknowledged that it shared the information with a third party, it has not described any
restrictions on the third party’s use of the information, and there is significant evidence
that the third party shares it with other companies. That alone precludes trade secret
protection. Jedson, 720 F.Supp.2d at 921-922.
2. OSU’s evidence does not sufficiently describe the amount of effort or
money expended in obtaining and developing the information.
{¶25} The essential purpose of a trade secret is to protect the investment the holder
has made in developing the protected information. Fred Siegel Co., 85 Ohio St.3d at 183.
The cases therefore require a trade secret proponent to quantify the cost of creating the
information it seeks to protect. They find conclusory assertions on this point insufficient.
Cincinnati Enquirer v. Hamilton Cty. Bd. of Commrs., Ct. of Cl. No. 2019-00789PQ, 2020-
Ohio-4856, ¶ 54, adopted, 2020-Ohio-5281 (no quantification); Wengerd v. E. Wayne Fire
Dist., Ct. of Cl. No. 2017-00426-PQ, 2017-Ohio-8951, ¶ 26, adopted December 11, 2017
(same); Sheil v. Horton, Ct. of Cl. No. 2017-00772PQ, 2018-Ohio-1720, ¶¶ 52, 53,
adopted 2018-Ohio-2355, Aff’d in rel. part Sheil v. Horton, 2018-Ohio-5240, 117 N.E.3d
194 (8th Dist.) (same); Hance, 2021-Ohio-1493, ¶¶ 31, 32 (conclusory assertion).
OSU’s submissions on this point consist of the following:
“Over the course of decades, the university has spent significant time, effort and
dollars in soliciting, entertaining and servicing donors to generate members of our
customer ticket lists and Buckeye Club. *** The effort that has gone into cultivating
and building these sometimes-lifelong relationships has been significant [.]” MTD,
p. 23, ¶ 20.
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{¶26} That falls short in two respects. It only addresses part of the information
requested, that related to donors. It says nothing about the faculty and staff information
Doe seeks. And even as to donors, it does not quantify the resources expended to create
that information, but only makes the type of conclusory statement other cases have found
insufficient. See particularly, Hance, 2021-Ohio-1493, ¶¶ 31, 32.
***
{¶27} In short, OSU has not “clearly establish[ed]” that the information fits “squarely
within” the bounds of the trade secret exemption it asserts. Welsh-Huggins, ¶ 27. The
special master therefore recommends that the court reject this claimed exemption.
C. OSU has proven that portions of the records are protected by FERPA.
{¶28} 20 U.C.C. § 1232g, the Family Educational Rights and Privacy Act
(“FERPA”), prohibits federally funded “educational institutions” from releasing “education
records” without students’ consent. It is a law that prohibits the release of otherwise public
records within the meaning of R.C. 149.43(A)(1)(v). State ex rel. ESPN, Inc. v. Ohio State
Univ., 132 Ohio St.3d 212, 2012-Ohio-2690, 970 N.E.2d 939, ¶ 25. The public record and
the record in this case establish that FERPA prohibits releasing portions of the materials
at issue here.
{¶29} The public record establishes that OSU is covered by FERPA. Its most
recent state audit reflects that OSU receives federal funding. Ohio Auditor of State,
Financial Statements as of and for the years ended June 30, 2022 and 2021 and Report
on Federal Financial Assistance Programs in Accordance with the OMB Uniform
Guidance for the year ended June 30, 2022, (May 23,
2023),https://ohioauditor.gov/auditsearch/Reports/2023/Ohio_State_University_Franklin
_22-Franklin_FINAL.pdf (accessed December 20, 2023), p. 28. The special master takes
judicial notice of that fact pursuant to State ex rel. Pike Cty. Convention & Visitor’s Bur. v.
Pike Cty. Bd. of Commrs., 165 Ohio St.3d 590, 2021-Ohio-4031, 180 N.E.3d 1135, ¶ 3,
n. 2. OSU is plainly an “educational institution.” It is therefore required to comply with
FERPA.
{¶30} The record here establishes that portions of the materials are “education
records.” “For purposes of FERPA, the term ‘education records’ means ‘those records,
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files, documents, and other materials which—(i) contain information directly related to a
student; and (ii) are maintained by an educational agency or institution or by a person
acting for such agency or institution.’” ESPN, 132 Ohio St.3d 212, ¶ 27 (quoting 20 U.S.C.
§ 1232g(a)(4)(A)). A review of the In Camera Records reveals that the disputed materials
are “records, files, documents, and other materials[.]” That is evident from the materials
themselves; no extrinsic evidence of this element is needed. See Welsh-Huggins, 163
Ohio St.3d 337, at ¶¶ 30, 35, 50, 53. A review of the records themselves similarly reveals
that portions “contain information directly related to” students, disclosing that certain
students are season ticket holders. In Camera Records, pp. 82-87, rows 5222-5581, and
pp. 232-233, rows 4907-4956. The fact that the records are “maintained by” OSU is
established by the fact that OSU was able to file them here. FERPA therefore prohibits
OSU from releasing those portions of the records.
{¶31} In sum, FERPA protects the information recorded at pp. 82-87, rows 5222-
5581, and pp. 232-233, rows 4907-4956 of the In Camera Records. The special master
therefore recommends that OSU not be required to produce those portions of the In
Camera Records, or any portions of other responsive records that have those
characteristics.
D. Requester is entitled to recover his filing fee and costs. Respondent should
bear the balance of the costs.
{¶32} R.C. 2743.75(F)(3)(b) provides that the “aggrieved person shall be entitled
to recover from the public office or person responsible for the public records the amount
of the filing fee of twenty-five dollars and any other costs associated with the action[.]”
Doe was aggrieved by the OSU’s failure to produce records responsive to his requests.
He is therefore entitled to recover his filing fee and costs. OSU should bear the balance
of the costs.
E. All other relief should be denied.
{¶33} Doe and OSU seek several types of relief that are either not warranted or
not available here.
{¶34} Doe seeks to strike OSU’s reply in support of its MTD and sanctions pursuant
to R.C. 2323.51(A)(2)(i) or (ii) because the reply brief was filed in violation of R.C.
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2743.75(E)(2). Motion to Strike and for Sanctions, filed December 12, 2023. His motion
to strike should be denied because he was not prejudiced by the filing. Lewis v. Horace
Mann Ins. Co., 8th Dist. Cuyahoga No. 82530, 2003-Ohio-5248, ¶ 42 (motions to strike
“are ordinarily not granted unless” the disputed material “is clearly prejudicial”). There is
no prejudice to Doe because the special master recommends that the issues addressed
in the unauthorized filing be resolved in Doe’s favor. Sanctions are not appropriate
because OSU’s filing does not “obviously” have the improper purpose required by R.C.
2323.51(A)(2)(i) and because the arguments OSU made in its filing were not so far afield
as to trigger R.C. 2323.51(A)(2)(ii).
{¶35} Doe’s requests for damages and attorney’s fees should be denied because
those types of relief are not available in R.C. 2743.75 cases. Assn. of Cleveland Fire
Fighters IAFF Local 93 v. City of Cleveland, Ct. of Cl. No. 2020-00103PQ, 2020-Ohio-
4550, ¶ 10, adopted 2020-Ohio-4902.
{¶36} OSU seems to seek a ruling on its obligations regarding a public records
request made after this case was filed. MTD, pp. 5-6, 22-21 ¶ 10. The courts do not rule
on records requests made after the enforcement action has been filed. State ex rel.
Strothers v. Keenon, 2016-Ohio-405, 59 N.E.3d 556, ¶ 10 (8th Dist.).
III. Conclusion.
In light of the foregoing, the special master recommends that:
- Respondent be ordered to produce unredacted copies of all records responsive
to the public records requests Respondent denominated as 23-721, 23-385,
23-959, 23-961, and 24-004, except for pp. 82-87, rows 5222-5581, and pp.
232-233, rows 4907-4956 of the In Camera Records and all other portions of
other records that have those characteristics that are responsive to Requester’s
requests. OSU should also be permitted to redact information about
ticketholders’ OSU identification numbers and physical addresses.
- Requester recover his filing fee and costs in this case and that Respondent
bear the balance of the costs of this case; and
- All other relief be denied.
Case No. 2023-00498PQ -13- REPORT AND RECOMMENDATION
{¶37} Pursuant to R.C. 2743.75(F)(2), either party may file a written objection with
the clerk of the Court of Claims of Ohio within seven (7) business days after receiving this
report and recommendation. Any objection shall be specific and state with particularity all
grounds for the objection. A party shall not assign as error on appeal the court’s adoption
of any factual findings or legal conclusions in this report and recommendation unless a
timely objection was filed thereto. R.C. 2743.75(G)(1).
TODD MARTI
Special Master
Filed December 21, 2023
Sent to S.C. Reporter 1/4/24