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Hilliard City School District v. Columbus Division of Police

Court of Claims of Ohio

October 6, 2017

HILLIARD CITY SCHOOL DISTRICT Requester
v.
COLUMBUS DIVISION OF POLICE Respondent

          Sent to S.C. Reporter 11/7/17

          DECISION ADOPTING SPECIAL MASTER'S REPORT AND RECOMMENDATION

          PATRICK M. McGRATH JUDGE.

         {¶1} Before the court is (1) a report and recommendation of Special Master Jeffery W. Clark filed on September 12, 2017, (2) requestor Hilliard City School District's objections to Special Master Clark's report and recommendation that the school district filed on September 25, 2017, and (3) respondent Columbus Division of Police's response to the school district's objections that the Columbus Division of Police filed on October 3, 2017. Because, upon independent review, the court finds that the special master identified the relevant law and properly applied the relevant law to the facts in this case, in accordance with R.C. 2743.75(F)(2), the court adopts the special master's report and recommendation as its own, including the findings of fact and conclusions of law contained in it.

         Background

         {¶2} On May 17, 2017, Hilliard City School District filed a complaint against the Columbus Division of Police (CPD), alleging a denial of access to public records. The school district seeks the release of records pertaining to the CPD's investigation of an alleged assault of a school bus driver employed by the school district. The school district represents that, following the purported assault, its employee filed a workers' compensation claim. (The school district alleges, however, that certain relevant, reliable, probative, and confidential information supports a conclusion that its employee's reported injuries "were purposely self-inflicted and there was no assailant as alleged.") (Complaint, ¶ 13.) The school district maintains that it obtained a subpoena from the Ohio Industrial Commission for the CPD's complete investigative file. According to the school district, the CPD produced some, but not all, of the documents that it seeks.

         {¶3} After the school district filed its complaint, the court appointed attorney Jeffery W. Clark as a special master in this cause pursuant to R.C. 2743.75. A mediator subsequently conducted a mediation conference. Mediation, however, failed to successfully resolve all disputed issues between the parties. The court returned the case to the docket of Special Master Clark. Thereafter, after apparently construing CPD's response to the school district's complaint as a motion to dismiss, Special Master Clark issued a report and recommendation on September 12, 2017, wherein he concluded: "Upon consideration of the pleadings and attachments, I find that Hilliard S.D. has failed to establish by clear and convincing evidence that Columbus PD violated division (B) of R.C. 149.43 by withholding records that were and remain confidential law enforcement investigatory records. R.C. 149.43(A)(2). I recommend that respondent's motion to dismiss for failure to state a claim pursuant to Civ.R. 12(B)(6) be GRANTED."

         {¶4} On September 25, 2017, the school district, through its counsel, filed written objections to the special master's report and recommendation. According to the certificate of service attached to the objections, the school district, through counsel, served a copy of its objections on CPD's counsel via certified mail. However, the school district later filed a notice indicating that it served its objections on CPD "by means of FedEx, Certified Mail, Return Receipt Requested, " attaching a FedEx receipt indicating that delivery was made on September 26, 2017.

         {¶5} On October 3, 2017, the CPD filed a response to the school district's objections, contending that (1) the special master applied the appropriate standard and correctly determined the withheld records are confidential law enforcement investigatory records, and (2) the special master did not err in not addressing whether or not a constitutional right to information privacy applied to the withheld records. According to the CPD, it received service of the school district's objections on September 26, 2017. And, according to the certificate of service attached to the response, CPD's counsel served the CPD's response on the school district's counsel on October 3, 2017 via electronic mail and certified mail, return receipt requested.

         Law and Analysis

         {¶6} R.C. 2743.75(F)(2) governs objections to a special master's report and recommendation related to a dispute alleging a denial of access to public records. Pursuant to 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. Any objection to the report and recommendation shall be specific and state with particularity all grounds for the objection. If neither party timely objects, the court of claims shall promptly issue a final order adopting the report and recommendation, unless it determines that there is an error of law or other defect evident on the face of the report and recommendation. 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.

(Emphasis added.) A review of the court's docket and filings in the case indicates that (1) on September 14, 2017, counsel for the school district received a copy of Special Master Clark's report and recommendation, (2) on September 25, 2017 - within seven business days after the report and recommendation was issued - the school district, through its counsel, filed written objections to the report and recommendation, and (3) the school district, through its counsel, served its objections on CPD's counsel by means of FedEx - not by certified mail, return receipt requested, as required by R.C. 2743.75(F)(2).

         {¶7} Since the school district served its objections on CPD's counsel by means of FedEx, the school district has failed to comply with procedural requirements for serving its objections, as set forth in R.C. 2743.75(F)(2), because the statute does not authorize service of objections by means of a commercial carrier service. However, in the interest of justice - and under the circumstances of this case only - the court finds that the school district substantially complied with requirements contained in R.C. 2743.75(F)(2). And the court accepts the school district's objections as timely filed.

         {¶8} The court also accepts the CPD's response to the school district's objections as timely filed because the CPD filed its response within seven business days after it received the school district's objections and because it served its response on the school district's counsel by certified mail, return receipt requested, as required by R.C. 2743.75(F)(2).

         I. Hilliard City School District's Objections to Special Master Clark's Report and Recommendation

         Hilliard City School District presents two objections for the court's consideration:

(1)"The Special Master erred in determining that the law enforcement investigatory work product exception, R.C. 149.43(A)(2)(c), applied to the requested records because the Special Master failed to find that it was clear that a crime had in fact been committed."
(2)"The Special Master erred in failing to address Respondent's improper denial of Requestor's public records request based on the claim that the release of the records was prohibited by the alleged victim's constitutional right to privacy, making them 'records the release of which is ...

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