Fairley v. Cuyahoga Cnty. Prosecutor, Case No. 2019-00955PQ

• Decision Date: 21 February 2020
• Docket Number: Case No. 2019-00955PQ
• Citation: 2020 Ohio 1425
• Parties: JULIETTE FAIRLEY Requester v. CUYAHOGA COUNTY PROSECUTOR Respondent
• Court: Ohio Court of Claims

2020 Ohio 1425

JULIETTE FAIRLEY Requester v. CUYAHOGA COUNTY PROSECUTOR Respondent

Case No. 2019-00955PQ

Court of Claims of Ohio

To S.C. Reporter April 10, 2020

February 21, 2020

Special Master Jeff Clark

REPORT AND RECOMMENDATION

{¶1} The policy underlying the Ohio Public Records Act, R.C. 149.43, is that "open government serves the public interest and our democratic system." State ex rel. Dann v. Taft, 109 Ohio St.3d 364, 2006-Ohio-1825, 848 N.E.2d 472, ¶ 20. "[P]ublic scrutiny is necessary to enable the ordinary citizen to evaluate the workings of his or her government and to hold government accountable." White v. Clinton Cty. Bd. of Commrs., 76 Ohio St.3d 416, 420, 667 N.E.2d 1223 (1996).

The broad language used in R.C. 149.43 manifests the General Assembly's intent to jealously protect the right of the people to access public records. We are acutely aware of the importance of the right provided by the act and the vulnerability of that right when the records are in the hands of public officials who are reluctant to release them.

Rhodes v. New Phila., 129 Ohio St.3d 304, 2011-Ohio-3279, 951 N.E.2d 782, ¶ 21. The Public Records Act is construed liberally in favor of broad access, and any doubt is resolved in favor of disclosure of public records. State ex rel. Cordell v. Paden, 156 Ohio St.3d 394, 2019-Ohio-1216, 128 N.E.3d 179, ¶ 7.

Background and Facts

{¶2} Requester Newsmax columnist Juliette Fairley sent a letter dated August 1, 2019 to respondent Cuyahoga County Prosecutor making the following request:

Please advise me as to the on-site facilities that are available that would allow me to review in person and request copies of court records in reference to the State of Ohio v Jaleh Presutto Seghafi (CR-15-592641-A). Thank you.

(Complaint at 2.) The Prosecutor's office signed for receipt of the letter on August 16, 2019, but made no other response. On August 21, 2019, Fairley filed a complaint under R.C. 2743.75 alleging denial of access to public records by the Prosecutor in violation of R.C. 149.43(B). The special master referred the case to mediation, and stayed all filing deadlines until further order of the court. The parties submitted premature pleadings on September 20, September 25, and September 26 of 2019. On October 25, 2019, Fairley submitted a motion to stay respondent's premature motion to dismiss. Following termination of mediation, the special master returned the case to regular procedure under R.C. 2743.75, setting a response deadline for the Prosecutor and a reply deadline for Fairly. (October 31, 2019 Order.) On November 7, 2019, the Prosecutor filed a motion to dismiss (Response), and on November 14, 2019, Fairley filed a reply. On December 6, 2019, the Prosecutor filed the affidavit of Brian R. Gutkoski, with copies of most of the requested records. On December 12, 2019, the Prosecutor filed the remaining withheld records under seal. On December 24, 2019, the Prosecutor filed supplemental authority (Sur-reply). On December 30, 2019, Fairley filed a response to the sur-reply.

Motion to Stay

{¶3} The special master directs the clerk of court to accept for filing Fairley's motion to stay respondent's motion to dismiss. The special master further denies the motion, because no judicial purpose would be served by granting a stay, nor does the disposition of this action prevent Fairley from enforcing any request she has since made, or from making additional requests.

Request and Records at Issue

{¶4} The parties refer to new or revised requests that were made during mediation in this case. (Response at 2; Reply, passim.) However, the court need not consider claims based on requests made subsequent to the complaint. Strothers v. Norton, 131 Ohio St.3d 359, 2012-Ohio-1007, 965 N.E.2d 282, ¶ 14. Fairley's claim thus does not include any "investigatory records," "the complete file," or any other records allegedly requested in mediation. The claim before the court is limited to the August 1, 2019 request for court records as specified in the complaint.

{¶5} The court may take notice that in common usage "court records" means records kept by courts of their proceedings. As used by Ohio courts under the Rules of Superintendence for the Courts of Ohio (Sup.R.), "court record" has the technical meaning of case documents and administrative documents kept by a court. Sup.R. 44(B). As relevant here,

"Case document" means a document and information in a document submitted to a court or filed with a clerk of court in a judicial action or proceeding, including exhibits, pleadings, motions, orders, and judgments, * * *.

Sup.R. 44(C)(1). And,

"Administrative document" means a document and information in a document created, received, or maintained by a court that serves to record the administrative, fiscal, personnel, or management functions, policies, decisions, procedures, operations, organization, or other activities of the court, * * *.

Sup.R. 44(G)(1). Under common usage, and consistent with the technical definition, Fairley's request to the Prosecutor seeks any document that he submitted to or filed with the court, any pleading served on him by the defendant, and any administrative document he received from the court, in the case of State v. Presutto, CR-15-592641-A. Fairley's request does not encompass any other court records, unless they were filed as exhibits in Presutto. See Sup.R. 44(C)(1) (case document means a document "including exhibits"). Nor does she ask the Prosecutor to obtain records from courts on her behalf.

{¶6} The Prosecutor agrees that his files include copies of court case documents relating to his felony prosecution of Presutto in Cuyahoga County Common Pleas Court, as well as copies of court records from related guardianship proceedings in a probate court. (Response at 4; Gutkoski Aff. at ¶ 2-4.) The Prosecutor has filed unredacted copies of the Cuyahoga County Common Pleas Court records kept in his file (Gutkoski Aff., p. 001-074), except for five fully blacked-out pages and portions of a sixth page that were submitted under seal. The claim for production as it relates to the 68 pages now disclosed is thus moot. State ex rel. Striker v. Smith, 129 Ohio St.3d 168, 2011-Ohio-2878, 950 N.E.2d 952, ¶ 18-22.

{¶7} The five pages still withheld in their entirety (Gutkoski Aff., p. 027-029, 033-034) are copies of court records from Lorain County Probate Court Case No. 2013 GI 00040 that were attached as exhibits to defendant's Jan. 27, 2015 Motion to Remove No-contact Order, in Presutto. The withheld motion exhibits are "case records" of the Presutto action. Sup.R. 44(C)(1). Notably, the motion and its attachments were publicly posted on the Cuyahoga County Court of Common Pleas' online docket for Presutto.¹

Burdens of Proof

{¶8} The Public Records Act provides a remedy for production of records under R.C. 2743.75 if the Court of Claims determines that a public office has denied access to public records in violation of R.C. 149.43(B), based on the ordinary application of statutory law and case law as they existed at the time of the filing of the complaint. R.C. 2743.75(F)(1) and (3)(a). A requester under R.C. 2743.75 must establish any violation of the Public Records Act by clear and convincing evidence. Hurt v. Liberty Twp., 2017-Ohio-7820, 97 N.E.3d 1153, ¶ 27-30 (5th Dist.).

{¶9} However, when a public office asserts any exception to the release of records under the Act, the burden of proving the exception rests on the public office. State ex rel. Cincinnati Enquirer v. Pike Cty. Coroner's Office, 153 Ohio St.3d 63, 2017-Ohio-8988, 101 N.E.3d 396, ¶ 15. Exceptions to disclosure must be strictly construedagainst 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. A custodian does not meet this burden if it has not proven that the requested records fall squarely within the exception. Id.; State ex rel. Cincinnati Enquirer v. Jones-Kelley, 118 Ohio St.3d 81, 2008-Ohio-1770, 886 N.E.2d 206, paragraph two of the syllabus. Any doubt should be resolved in favor of disclosure. State ex rel. James v. Ohio State Univ., 70 Ohio St.3d 168, 169, 637 N.E.2d 911 (1994).

Motion to Dismiss For Lack of Subject Matter Jurisdiction

{¶10} The Prosecutor first moves to dismiss this action for lack of subject matter jurisdiction over denial of access to "court records" as governed by Sup.R. 44-47. The test to be applied in reviewing a Civ.R. 12(B)(1) motion is whether the plaintiff has alleged any cause of action which the court has authority to decide. Filips v. Case W. Reserve Univ., 8th Dist. Cuyahoga No. 79741, 2002-Ohio-4428, ¶ 12.

The Ohio Supreme Court Rules of Superintendence for the Courts Do Not Govern the Court Records Withheld by the Prosecutor

{¶11} The Prosecutor initially argued that if Fairley desired any document kept by his office from either the criminal action in the Cuyahoga Common Pleas Court, or from the related Lorain County Probate Court case, she could only obtain them directly from those courts, utilizing Sup.R. 45. (Response at 4-5.) The Prosecutor has now abandoned the argument that he may withhold access to the case documents he keeps from the Cuyahoga Common Pleas Court action, generally. However, he continues to maintain that

court records of different courts, (i.e. not motions² or indictments emanating from a Cuyahoga County Common Pleas criminal case number) that are in [the Prosecutor's] possession should not be subject to records requests under R.C. 149.43. Rather, public records requestors must follow the Rules of Superintendence to access such materials.

(Emphasis sic.) (Gutkoski Aff. at ¶ 4.) Review of the relevant statutes, court rules, and case law reveals no authority to support this proposition.

{¶12} First, there is no requirement that a person must request public records only from the office that created them, or only from an office with which they were shared, or only from the office...