ANDREW TOBIAS v. OHIO SECRETARY OF STATE‘S OFFICE
Case No. 2023-00628PQ
IN THE COURT OF CLAIMS OF OHIO
November 13, 2023
[Cite as Tobias v. Ohio Secy. of State‘s Office, 2023-Ohio-4440.]
Special Master Todd Marti
{1} This matter is before the court for a
I. Background.
{2} The Ohio Secretary of State (“The Secretary“), the respondent on this case, has announced that he has referred hundreds of individuals for potential prosecution based on suspected election law violations. In January of 2023 the Requester, a reporter for Cleveland.com and The Plain Dealer, made public records requests to the Secretary for “records that, individually or collectively document:
- All cases involving suspected illegal conduct by voters that the Secretary of State‘s Office has referred to the Ohio Attorney General‘s Office since Jan. 1, 2019.
- All cases involving suspected illegal conduct by voters that the Secretary of State‘s Office has referred to county prosecutors since Jan. 1, 2019[.]
All documentation the Secretary of State‘s Office provided along with these referrals, including detailing the nature of the allegation, the identity of the voter, and the location date of the potentially illegal conduct.” (Sic).
He also requested “similar records documenting other illegal conduct that the Secretary of State‘s Office has investigated, including but not limited to:
- Voter registration and voting by non-citizens
- Ballots cast by dead voters and
- Instances of voter impersonation”
After a lengthy and unexplained delay, the Secretary produced redacted copies of what he represented were all responsive records. Requester‘s Evidence, filed October 17, 2023, pp. 3, 5, 7, 12-15, 25-27; Respondent‘s Evidence, filed October 16, 2023, pp. 3-4, ¶¶ 4-7.1
{3} Requester filed this case, challenging the Secretary‘s assertion that all responsive records were produced and that the redactions to what was produced were proper. Mediation was not ordered because, given the Secretary‘s inordinate delay in responding to the underlying requests, the additional time necessary to mediate this case would not result in the expeditious resolution contemplated by
{4} The Secretary discovered additional records responsive to Requester‘s requests after the time had passed to file records for in camera review, evidence, and memoranda. (“the Additional Records“). A status conference was held where the Secretary took the position that the Additional Records were properly subject to the same redactions as the records previously filed and produced in this case. The parties agreed that the Requester was no longer pressing his claim that the Secretary was not producing all responsive records, and that the propriety of the Secretary‘s redactions is the only issue in the case. The parties further agreed that the propriety of the Secretary‘s
II. Analysis.
A. The Secretary has not met his burden of proving that his redactions were justified by R.C. 149.43(A)(2)(a) .
{5}
{6}
- the record pertains to a “law enforcement matter“,
- the record would likely identify a “suspect“; and
- the suspect has not been “charged” with the offense related to the record.
The office asserting that exception has the burden of proving all those elements. State ex rel. Myers v. Meyers, 169 Ohio St.3d 536, 2022-Ohio-1915, 207 N.E.3d 579, ¶ 30. Moreover, the office must make a strong showing. It “does not meet [its] burden if it has not proven that the requested records fall squarely within the exception,” and courts must “resolve any doubt in favor of disclosure.” Welsh-Huggins v. Jefferson Cty. Prosecutor‘s Office, 163 Ohio St.3d 337, 2020-Ohio-5371, 170 N.E.3d 768, ¶¶ 27, 63. See also id. at
{7} The Secretary has proven that the records pertain to law enforcement matters. He produced unrebutted affidavit and documentary evidence that the records at issue are related to his investigation of alleged violations of
{8} That is not changed by Requester‘s assertion that those investigations were triggered by actions routinely taken to monitor election related matters. A matter pertains to law enforcement for purposes of
{9} The Secretary has also proven that the records would identify suspects. He provided affidavit testimony that the redactions obscure the alleged violators’ names and voter identification numbers, information that would enable Requester to identify those alleged violators. He also submitted evidence that those individuals were the subject of investigations by his office, making them “suspects” for purposes of
{10} The Secretary has not proven that the individuals he referred remain uncharged. An office invoking the uncharged suspect provisions of
{11} First, it does not prove the controlling fact: whether or not the suspects have been “charged.” A charge is an objectively verifiable occurrence: an arrest, a citation, or some other official action asserting specifically identified violations of law. Outlet Commc‘ns., 38 Ohio St.3d at 328; State ex rel. Musial v. City of N. Olmsted, 106 Ohio St.3d 459, 2005-Ohio-5521, 835 N.E.2d 1243, ¶ 23; 1990 Ohio Op. Att‘y Gen. 440, 1990 Ohio Op. Att‘y Gen. No. 101; 1990 Ohio AG LEXIS 104, paragraph 6 of syllabus. That is different from a record custodian‘s subjective (and potentially incomplete) knowledge about whether that has occurred, all that has been shown here. The Secretary‘s evidence therefore fails to prove the fact making
{12} Second, the Secretary‘s evidence is not sufficiently specific. An office invoking an exemption triggered by record-specific facts does not meet its burden by asserting the exemption as to a group of records generally. The office must instead establish the triggering facts on a record-by-record basis. For example, an office could not withhold an entire list of foster care providers based on an exemption triggered by each provider‘s funding or reporting status without provider-specific evidence about those matters. State ex rel. Cincinnati Enquirer v. Jones-Kelley, 118 Ohio St.3d 81, 2008-Ohio-1770, 886 N.E.2d 206, ¶¶ 22-24, 33. Similarly, a police department could not categorically withhold records of multiple investigations based on
{13} The Secretary‘s proof has that same defect. Rather than showing which of the many individuals he referred for possible prosecution remain uncharged (the triggering fact), his evidence addresses their situations collectively. That “broad strokes” approach does not suffice. Id.
{14} Although a public office‘s failure to prove the basis for an exemption normally results in an order to produce the requested records forthwith, that is not always the case. If immediate production would unduly compromise third parties’ statutory privacy rights the office may instead be ordered to further investigate whether grounds for the exemption actually exist and to revise its initial response based on what it discovers. Jones-Kelley, 118 Ohio St.3d 81, ¶ 26.
{15} This is such a case. Ordering the immediate production of unredacted copies of the records at issue could deprive hundreds of people of privacy they are actually entitled to under
{16} The special master further recommends that the Secretary be ordered to take those actions promptly. The requests at issue here have been pending an unreasonably long time—more than 10 months. That is the antithesis of the “prompt[],” and “expeditious” resolution of public records requests contemplated by
{17} The special master recognizes that might impose some burden on the Secretary, but no “pleading of too much expense, or too much time involved, or too much interference with normal duties, can be used by the respondent to evade the public‘s right to inspect and obtain a copy of public records within a reasonable time.” State ex rel. Warren Newspapers v. Hutson, 70 Ohio St.3d 619, 623, 640 N.E.2d 174 (1994). “The respondent is under a statutory duty to organize his office and employ his staff in such a way that his office will be able to make these records available for inspection[.]” Id.
C. Costs.
{18}
III. Conclusion.
In light of the foregoing the special master recommends that:
- Respondent be ordered to determine which suspects listed in the records previously produced to Requester have been charged and to produce copies of the records previously produced without redactions for any suspects who have been charged.
- Respondent be ordered to take those actions within 10 working days of the entry of an
R.C. 2743.75(F)(2) order in this case. - Requester recover his filing fee and costs, exclusive of attorney fees.
- Respondent bear the balance of the costs of this case.
{19} Pursuant to
TODD MARTI
Special Master
Filed November 13, 2023
Sent to S.C. Reporter 12/7/23