Whitehead v. Ohio Dept. of Rehab. & Corr.

[Cite as Whitehead v. Ohio Dept. of Rehab. & Corr., 2023-Ohio-625.]
IN THE COURT OF CLAIMS OF OHIO
DENNIS WHITEHEAD Case No. 2022-00436PQ
Requester Judge Patrick E. Sheeran
v. DECISION AND ENTRY
OHIO DEPARTMENT OF
REHABILITATION AND CORRECTIONS
Respondent
{¶1} Requester Dennis Whitehead, a self-represented litigant, objects to a Special
Master’s Report and Recommendation in this public-records case. The Court overrules
Whitehead’s objections for reasons that follow.
I. Background
{¶2} On May 25, 2022, Whitehead filed a public-records complaint against
Respondent Ohio Department of Rehabilitation and Corrections (ODRC), asserting that
ODRC denied him access to public records in violation of R.C. 149.43(B). In Whitehead’s
Complaint, Whitehead has referenced a previous public-records case that he filed in this
Court—Dennis Whitehead v. Ohio Dept. of Rehab. and Corr.-Bur. of Record Mgt., Ct. of
Cl. No. 2020-00116PQ.1 The Court appointed a Special Master, who referred the case
1 In the public-records complaint, Whitehead alleged:
Records request, based upon court directions in case #202-00116PQ, submitted via email
to ODRC on June 14, 2021. Not receiving any acknowledgement of receipt, called and
was told to mail hardcopy. Mailed hardcopy and sent email on July 13, 2021 - no
acknowledgement. Further attempts to confirm yielded non-specific response from ODRC
counsel on August 19, 2021, “Thank you, Mr. Whitehead, we are working on your request,”
and nothing since, in spite of further inquiries.
Whitehead further alleged: “The ODRC ‘denial’ is by slow-walk, acknowledged neither in
writing nor spoken; rather in their silence. I am asking the Court to order ODRC to release
without further delay.”
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to mediation. After mediation failed to successfully resolve all disputed issues between
the parties, the case was returned to the Special Master’s docket.
{¶3} On November 7, 2022, in a combined filing, ODRC responded to Whitehead’s
Complaint and moved for dismissal of the Complaint on grounds of res judicata, the
doctrine of claim preclusion, and on grounds that the requested information does not
exist, no longer exists, or is subject to confidentiality under both the Ohio Revised Code
and the Ohio Administrative Code, and that Whitehead is asking ODRC to generate or
create records that do not exist.
{¶4} On January 24, 2023, the Special Master issued a Report and
Recommendation (R&R). The Special Master recommends denying ODRC’s motion to
dismiss because none of ODRC’s defenses are conclusively shown on the face of the
Complaint to cover all of the current requests. (R&R, 4-5.) Upon consideration of the
pleadings and attachments, the Special Master further “recommends the court DENY the
claim for production of additional records. It is recommended that court costs be assessed
to requester.” (R&R, 10.)
{¶5} On February 1, 2023, Whitehead filed written objections to the Report and
Recommendation. Whitehead has accompanied his objections with a certification that a
copy of the objections was served via certified mail on ODRC’s counsel and this Court.
{¶6} On February 21, 2023, ODRC filed a response to Whitehead’s written
objections. ODRC accompanied its response with a certification that a copy of its
response “has been served upon Plaintiff via email, postage prepaid.”2 ODRC contends
that Whitehead’s objections should be overruled because (1) Whitehead has failed to
produce binding authority contradicting the application of R.C. 5120.21(F) to any
remaining records withheld by ODRC, (2) Requester’s revised request submitted during
mediation is not the subject of this lawsuit, and an amended complaint cannot change the
content or nature of the original public records request, (3) res judicata applies to all
2 R.C. 2743.75(F)(2) requires a response to a party’s objections to be sent by certified mail, return
receipt requested. See R.C. 2743.75(F)(2) (“[i]f 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”). Respondent’s response is procedurally
defective because, according to Respondent’s counsel’s certification, Respondent’s response was not sent
to Requester by certified mail, return receipt requested.
Case No. 2022-00436PQ -3- DECISION & ENTRY
records at issue in Requester’s prior litigation, and (4) if the Special Master’s Report and
Recommendation is adopted, then Requester is obligated to pay court costs.
II. Law and Analysis
{¶7} The General Assembly has created an alternative means to resolve public-
records dispute through the enactment of R.C. 2743.75. Welsh-Huggins v. Jefferson Cty.
Prosecutor’s Office, 163 Ohio St.3d 337, 2020-Ohio-5371, 170 N.E.3d 768, ¶ 11. See
R.C. 2743.75(A). Under R.C. 2743.75(F)(1), not later than seven business days after
receiving a response of a public office or person responsible for public records, or a
motion to dismiss a complaint, if applicable, a special master is required to “submit to the
court of claims a report and recommendation based on the ordinary application of
statutory law and case law as they existed at the time of the filing of the complaint.”
However, for good cause shown, a special master “may extend the seven-day period for
the submission of the report and recommendation to the court of claims under this division
by an additional seven business days.” R.C. 2743.75(F)(1).
{¶8} R.C. 2743.75(F)(2) governs the filing of objections to a special master’s report
and recommendation. Under R.C. 2743.75(F)(2), 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 and sending a copy to the other
party by certified mail, return receipt requested. * * * 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.”
{¶9} R.C. 2743.75(F)(2) requires that any objection to a report and
recommendation “shall be specific and state with particularity all grounds for the
objection.” Here, Whitehead seeks to obtain certain records concerning Posteal Laskey,
Jr., a former inmate who is deceased. In the objections, Whitehead urges, “Common Law
holds that privacy rights do not extend beyond the grave; that they are a personal right
applying only to the living, and not the deceased. The Ohio Public Records Act does not
address post-mortem privacy rights, and Ohio has neither privacy nor constitutional right
Case No. 2022-00436PQ -4- DECISION & ENTRY
to privacy. In the absence of statute, the court is left to weigh and decide upon issues
falling into this gap in law.”
{¶10} Despite Whitehead’s view of this Court’s authority in this matter, the
jurisdiction of the Court of Claims “is limited by statute and specifically confined to the
powers conferred by the legislature.” State ex rel. DeWine v. Court of Claims of Ohio,
130 Ohio St.3d 244, 2011-Ohio-5283, 957 N.E.2d 280, ¶ 21. Under R.C. 2743.75(A),
except for a court that hears a mandamus action pursuant to R.C. 149.43(B), the Court
of Claims “shall be the sole and exclusive authority in this state that adjudicates or
resolves complaints based on alleged violations of that section.” See also R.C.
2743.03(A)(3)(b). This Court’s sole and exclusive authority to adjudicate or resolve
complaints based on alleged violations of R.C. 149.43(B), however, is not limitless. For
example, under Ohio case law this Court “has no subject-matter jurisdiction over alleged
violations of constitutional rights.” Myles v. Twin Valley Behavior Healthcare, 10th Dist.
Franklin No. 20AP-452, 2021-Ohio-2119, ¶ 5.
{¶11} Despite Whitehead’s invitation for the Court to determine post-mortem
privacy rights under the Ohio Public Records Act or to consider constitutional issues, the
issue before the Court is whether the Special Master’s Report and Recommendation is
correctly based on the ordinary application of statutory law and case law as they existed
at the time of the filing of Whitehead’s Complaint. See R.C. 2743.75(F)(1). Based on the
Court’s review, the Court finds that the Special Master’s Report and Recommendation is
correctly based on the ordinary application of statutory and case law as they existed at
the time that Whitehead filed his Complaint.
{¶12} Whitehead’s discussion in his objections of the parties’ mediation in this case
is unpersuasive, because, as noted by the Eighth District Court of Appeals, “[s]ubject to
certain limitations, communications exchanged in mediation are confidential and are
neither discoverable nor admissible.” Am. Environmental Group, Ltd. v. H.M. Miller
Constr. Co., 8th Dist. Cuyahoga No. 100854, 2014-Ohio-4681, ¶ 13, citing R.C.
2710.03; Akron v. Carter, 190 Ohio App.3d 420, 427, 2010-Ohio-5462, 942 N.E.2d 409(9th Dist.). And Whitehead’s contention that res judicata “has no application in this case”
also is unpersuasive. See Parker v. Ohio Dep’t of Job & Family Servs., 5th Dist. Knox
No. 19CA000031, 2021-Ohio-611, ¶ 50, quoting Grava v. Parkman Twp., 73 Ohio St.3d
Case No. 2022-00436PQ -5- DECISION & ENTRY
379, 653 N.E.2d 226 (1995), syllabus (“[r]es judicata is defined as ‘[a] valid, final judgment
rendered upon the merits bars all subsequent actions based upon any claim arising out
of the transaction or occurrence that was the subject matter of the previous action’”).
III. Conclusion
{¶13} The Court overrules Whitehead’s objections for reasons set forth above. The
Court adopts the Special Master’s Report and Recommendation. In accordance with the
Special Master’s recommendation, the Court denies Whitehead’s claim for production of
additional records. Court costs are assessed to Whitehead. The clerk shall serve upon all
parties notice of this judgment and its date of entry upon the journal.
PATRICK E. SHEERAN
Judge
Filed February 22, 2023
Sent to S.C. Reporter 3/2/23