Barack v. Thalman, 2021-00228PQ

CourtCourt of Claims of Ohio
Writing for the CourtPATRICK E. SHEERAN, Judge.
Citation2022 Ohio 1614
PartiesROGER A. BARACK Requester v. MAYOR KATHRYN THALMAN, CITY OF ST. CLAIRSVILLE Respondent
Docket Number2021-00228PQ
Decision Date12 April 2022

2022-Ohio-1614

ROGER A. BARACK Requester
v.

MAYOR KATHRYN THALMAN, CITY OF ST. CLAIRSVILLE Respondent

No. 2021-00228PQ

Court of Claims of Ohio

April 12, 2022


DECISION AND ENTRY

PATRICK E. SHEERAN, Judge.

{¶1} Respondent Mayor Kathryn Thalman, City of St. Clairsville, objects to a Special Master's Report and Recommendation that has been issued in this public-records case. For reasons set forth below, the Court sustains Mayor Thalman's objections, but for reasons different than those asserted by Mayor Thalman. The Court does not adopt the Special Master's Report and Recommendation.

I. Background

{¶2} On April 27, 2021, Requester Roger A. Barack filed a complaint alleging a denial of public records in violation of R.C. 149.43(B). The Court appointed a Special Master. The Court also referred the case to mediation. After mediation failed to resolve all disputed issues between the parties, the case was returned to the docket of the Special Master.

{¶3} On March 9, 2022, the Special Master issued a Report and Recommendation (R&R). The Special Master finds in the Report and Recommendation that, based on the parties' agreement, Barack's claim for production of records in Request No. 2 is moot and that, to the extent any communications described in Request No. 1 have been provided to Barack, that claim also is moot. (R&R, 4.) The Special Master notes, however, that "both Ohio law and the Public Records Policy of St. Clairsville * * * provide that electronic office records in private accounts must be filed, maintained, and produced in accordance

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with the Public Records Act. If the Mayor has not sought to retrieve all such records and does not deny they may exist, the claim for their production is not moot. Independent of the claim for production, requester's claim that the delay between his request and production of any records was unreasonable is not moot." (R&R, 4.) The Special Master also "finds that Barack plausibly infers but does not prove by clear and convincing evidence the existence of additional records on personal devices." (R&R, 5.) And the Special Master "finds that the Mayor's refusal to look for responsive records everywhere they may reasonably be kept partially negates her assertion that no additional records exist." (R&R, 6.) The Special Master also "finds that the Mayor'[s] delay of eleven months before producing a single requested record was unreasonable." (R&R, 9.) Accordingly, the Special Master recommends the court issue an order for respondent to locate and produce all responsive records kept in the private devices or accounts of any former or current city employee listed in the request. The special master further recommends the court find that respondent failed to produce any responsive record within a reasonable period of time and to provide an explanation for denial. It is further recommended that requester is entitled to recover from respondent the amount of the filing fee of twenty-five dollars and any other costs associated with the action that he has incurred. It is recommended costs be assessed to respondent. (R&R, 10.)

{¶4} On March 28, 2022, Mayor Thalman, through counsel, filed written objections to the Report and Recommendation. Mayor Thalman's counsel served the objections by means of "Regular U.S. Mail" to Barack's attorney, according to a Proof of Service that accompanies Mayor Thalman's objections.

{¶5} Two days later-on March 30, 2022-Barack, through counsel, filed a response to Mayor Thalman's objections. Barack's attorney served the response by

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means of electronic mail, according to a Certificate of Service that accompanies the response. Barack represents that he is in full agreement with the contents of the Report and Recommendation. Barack asks the Court to overrule in entirety Mayor Thalman's objections and any motions contained in the objections.

II. Law and Analysis

{¶6} R.C. 2743.75(F)(2) governs 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...

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