Jabr v. Disciplinary Counsel

[Cite as Jabr v. Disciplinary Counsel, 2021-Ohio-398.]
TAREQ R. JABR Case No. 2020-00596PQ
Requester Special Master Jeff Clark
v. REPORT AND RECOMMENDATION
DISCIPLINARY COUNSEL
Respondent
{¶1} Ohio’s Public Records Act provides that upon request a public office “shall
make copies of the requested public record available to the requester at cost and within
a reasonable period of time.” R.C. 149.43(B)(1). Ohio courts construe the Public
Records Act liberally in favor of broad access, with any doubt resolved in favor of
disclosure of public records. State ex rel. Hogan Lovells U.S., L.L.P. v. Dept. of Rehab.
& Corr., 156 Ohio St.3d 56, 2018-Ohio-5133, 123 N.E.3d 928, ¶ 12. This action is
brought under R.C. 2743.75, which provides an expeditious and economical procedure
in the Court of Claims to resolve public records disputes.
{¶2} On or about December 13, 2019, requester Tareq Jabr made a verbal
request of respondent Disciplinary Counsel for “records for Att. John Paris, plus, Att.
Tasso Paris, and Judge Patrick Corrigan, and Attorney Kent Minshall. All these are
involved in the same cases of child support, violations, in child support, on Mr. Tareq
Jabr.” (Complaint at 1-2; Response at 2; Stone Aff. at ¶ 3.) The request was denied.
(Complaint at 1; Stone Aff., Exh. 1 at p. 2.) On November 4, 2020, Senior Assistant
Disciplinary Counsel Amy Stone advised Jabr that pursuant to Rule V, Section 8(A)(1)
of the Rules for Government of the Bar, the Disciplinary Counsel would be prohibited
from providing records responsive to this request, should any actually exist. (Stone Aff.,
Exh. 1.)
{¶3} On October 14, 2020, Jabr filed a complaint under R.C. 2743.75 alleging
denial of access to public records in violation of R.C. 149.43(B). The matter was
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referred to mediation on October 15, 2020. On November 18, 2020, Jabr submitted an
unsolicited and uncaptioned pleading marked as “Add-on,” including a certificate of
service. Although this document does not otherwise fully comply with the Ohio Rules of
Civil Procedure, pursuant to Civ.R. 15(E) and R.C. 2743.75(E)(2) the special master
directs the clerk to accept it for filing. On December 29, 2020, the court was notified that
the parties had not resolved the matter in mediation. On January 7, 202, the Disciplinary
Counsel filed its combined response and motion to dismiss (Response) with an
attached affidavit.
Burdens of Proof
{¶4} A requester must establish any public records violation by clear and
convincing evidence. Hurt v. Liberty Twp., 2017-Ohio-7820, 97 N.E.3d 1153, ¶ 27-30
(5th Dist.). At the outset, Jabr bears the “burden of production” to plead and prove facts
showing that he sought identifiable public records pursuant to R.C. 149.43(B)(1), and
that the Disciplinary Counsel did not make those records available. Welsh-Huggins v.
Jefferson Cty. Prosecutor’s Office, Slip Opinion No. 2020-Ohio-5371, ¶ 33.
{¶5} If a public office withholds an identified record on the basis of a public
records exemption, the public office then carries the burden to prove that the record falls
squarely within the exemption. Id. at ¶ 35. Exceptions to disclosure must be strictly
construed against the public-records custodian. State ex rel. Rogers v. Dept. of Rehab.
& Corr., 155 Ohio St.3d 545, 2018-Ohio-5111, 122 N.E.3d 1208, ¶ 7.
Motion to Dismiss
{¶6} Civ.R. 12(B)(1) permits dismissal where the trial court lacks jurisdiction over
the subject matter of the litigation. Disciplinary Counsel asserts that the Court of Claims
lacks subject matter jurisdiction over denial of public access to its records because they
are governed by the Rules of Superintendence for the Courts of Ohio rather than by the
Ohio Public Records Act.
Rules of Superintendence for the Courts of Ohio
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{¶7} The Ohio Public Records Act, R.C. 149.43, applies to most public offices,
and the public records access program in this court applies to disputes alleging a denial
of access to public records by those offices “in violation of division (B) of section 149.43
of the Revised Code.” R.C. 2743.75(A), (C)(1), (F)(3), and (G)(2). However, access to
records of the Ohio Supreme Court, courts of appeal, courts of common pleas,
municipal courts, and county courts is governed instead by the Rules of
Superintendence for the Courts of Ohio (Sup.R. or Rules). The Rules “set forth the
process that the public must utilize to obtain records held by the judicial branch.” State
ex rel. Parisi v. Dayton Bar Assn. Certified Griev. Comm., 159 Ohio St.3d 211, 2019-
Ohio-5157, 150 N.E.3d 43, ¶ 17; Sup.R. 1(A), 44, 45(B), 47(A)(1). The Rules of
Superintendence are the “sole vehicle” for obtaining public records from the courts
specified therein. State ex rel. Husband v. Shanahan, 157 Ohio St.3d 148, 2019-Ohio-
1853, 133 N.E.3d 467, ¶ 5.
{¶8} While not a court per se, the Office of the Disciplinary Counsel is an integral
arm of the Ohio Supreme Court. The Supreme Court has found accordingly that
attorney-discipline records prepared for it by the Disciplinary Counsel are subject to the
Rules of Superintendence. In Parisi, the requester sought attorney-discipline records
from a grievance committee certified by the Board of Professional Conduct of the
Supreme Court. Parisi at ¶ 13, 24-25. The Court was presented with the question of
whether the Rules, or the Public Records Act, applied to such a request:
Attorney-discipline matters are decided exclusively by this court, as we
have original jurisdiction over the discipline of persons admitted to the bar
and all other matters relating to the practice of law. See Article IV, Section
2(B)(1)(g), Ohio Constitution. And through the Supreme Court Rules for
the Government of the Bar of Ohio, this court created the Office of
Disciplinary Counsel and the Board of Professional Conduct and
authorized the board to certify grievance committees to aid us in
managing attorney discipline throughout the state. See Gov.Bar R. V(1)(A)
and (D) (“[t]here shall be a Board of Professional Conduct of the Supreme
Court” consisting of 28 commissioners appointed by this court); Gov.Bar
R. V(4)(A) (the board, with the approval of the Supreme Court, shall
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appoint disciplinary counsel); Gov.Bar R. V(5)(B) (the board may certify a
grievance committee to investigate allegations of attorney misconduct).
While these entities, especially the certified grievance committees,
function somewhat independently from this court, the documents prepared
and created in attorney-discipline cases by or for these entities must be
considered records of this court for purposes of disclosure. That is
because this court is the ultimate arbiter of attorney discipline, Cincinnati
Bar Assn. v. Powers, 119 Ohio St.3d 473, 2008-Ohio-4785, 895 N.E.2d
172, ¶ 21, and we have the unique and complete responsibility, as
designated by Article IV, Sections 2(B)(1)(g) and 5(B) of the Ohio
Constitution, to regulate all matters related to the practice of law.
Therefore, any documents prepared in attorney-discipline cases, like
those requested by Parisi, may be sought only through a request made
pursuant to Sup.R. 44 through 47. (Citations omitted.)
Id. at ¶ 25-26. Jabr made his request, and seeks relief, under R.C. 149.43. (Complaint
at 2.) The documents sought by Jabr, which if they exist were prepared in attorney- or
jurist-discipline cases, may be sought only through a request made pursuant to Sup.R.
44 through 47.
{¶9} Even were Jabr’s request construed as made pursuant to Sup.R. 44 through
47, this court would lack jurisdiction. The Ohio Court of Claims is a court of limited
jurisdiction. Patriot Water Treatment, LLC v. Ohio Dept. of Natural Res., 10th Dist.
Franklin No. 13AP-370, 2013-Ohio-5398, ¶ 30. The remedy for a person aggrieved by a
failure to comply with the requirements of Sup.R. 44 through 47 is through an action in
mandamus under R.C. Chapter 2731. Sup.R. 47(B). Courts authorized to issue writs of
mandamus include the Supreme Court, courts of appeals, and courts of common pleas.
R.C. 2731.02. The Court of Claims thus lacks original jurisdiction to adjudicate a
mandamus action to enforce violation of Sup.R. 44-47.
Conclusion
{¶10} Upon consideration of the pleadings and attachments, the special master
recommends the court find that the court lacks jurisdiction over the subject matter of
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requester’s claim and grant the motion to dismiss. It is recommended that court costs be
assessed to requester.
{¶11} 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).
JEFF CLARK
Special Master
Filed January 26, 2021
Sent to S.C. Reporter 2/12/21