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Kimberly F. Brown of Brown Report Newspaper v. City of Cleveland

Court of Claims of Ohio

May 3, 2019

KIMBERLY F. BROWN OF THE BROWN REPORT NEWSPAPER Requester
v.
CITY OF CLEVELAND Respondent

          Sent to S.C. Reporter 6/28/19

          DECISION

          PATRICK M. MCGRATH, JUDGE

         {¶1} Respondent city of Cleveland (City) objects to a special master's report and recommendation (R&R) issued on March 28, 2019.

         I. Background

         {¶2} Requester Kimberly F. Brown (Brown) of the Brown Report Newspaper sued the City under R.C. 2743.75(D), alleging that the City had failed to respond to a request for "the meeting records from Councilperson Joe Jones with Cloverside residents." (Complaint.) Brown sought "the date of the meeting, the agenda, the attendance sheet and a clear copy of the vote regarding the secondary [street] signage for Saniyah Nicholson." (Complaint.) (Nicholson, a child, was shot on Cloverside Avenue.)

         {¶3} The court appointed an attorney as a special master in the cause. The special master referred the case to mediation. After mediation failed to successfully resolve all disputed issues between the parties, the court returned the case to the special master's docket.

         {¶4} The City responded to Brown's complaint and moved for relief pursuant to Civ.R. 12(B)(6) and (C). The special master ordered the City to submit supplemental pleadings and to file certain records under seal. On March 28, 2019, the special master issued a R&R, wherein (1) he recommended the denial of the City's motion to dismiss, (2) he found clear and convincing evidence to support a conclusion that street addresses of attendees to a Cloverside residents' meeting satisfied the statutory definition of "records" contained in R.C. 149.011(G), and (3) he found that telephone numbers and email addresses of attendees may be redacted. (R&R, 4, 8.) The special master urged the court to issue an order (1) that would grant "the claim for disclosure of the meeting sign-in sheets with only telephone numbers and email addresses redacted," (2) that would find that Brown's claims "are otherwise moot;" and (3) that would specify that Brown is entitled to recover from the City the costs associated with the action, including the twenty-five-dollar filing fee. (R&R, 8.)

         {¶5} Seven business days after the City received a copy of the R&R, the City, through counsel, filed written objections. In a certificate of service accompanying the objections, the City's counsel certified that she sent a copy of the objections "via regular mail" to Brown.

         {¶6} Brown has not filed a timely response to the City's objections.

         II. Law and Analysis

         R.C. 2743.75(F)(2) governs objections to a special master's R&R issued under R.C. 2743.75. 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. * * * 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."

         Upon review, the court finds that the City's objections are timely filed, but the objections are procedurally irregular because the City failed to send a copy of its objections to Brown "by certified mail, return receipt requested," as required by R.C. 2743.75(F)(2). Notwithstanding the procedural irregularity of the City's objections, the court will consider the objections in the interest of justice.

         The City presents two objections for the court's determination.

         Objection No. 1: "Special Master's Report and Recommendation should not be adopted by this Court because the addresses on the sign in sheet do not constitute a public record and ...


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