FRANK R. RECKER & ASSOCIATES CO., L.P.A. Requester
OHIO STATE DENTAL BOARD Respondent
to S.C. Reporter 8/15/19
REPORT AND RECOMMENDATION
JEFFERY W. CLARK SPECIAL MASTER
On March 14, 2018, requester Frank Recker made a public
records request to respondent Ohio State Dental Board (Board)
seeking, in part:
I am also requesting a copy of the consumer survey/study/poll
relating to 'dental specialties' that was
commissioned and/or requested by, and received by, the Board,
and any documents actually requesting or commissioning the
(Complaint at 5.) Following release of records in response to
related requests, the Board concluded its response to the
above request as follows:
Records were redacted and/or withheld as trial preparation
records, attorney-client privileged communications and/or
attorney work product, based upon R. C. 149.43(A)(1)(g), and
R. C. 149.43(A)(1)(v).
(Id. at 8.) Among the records withheld were the
questions used in the survey and the results of the survey.
(Reply at 2.)
On March 18, 2019, Recker filed a complaint under R.C.
2743.75 alleging denial of access to public records in
violation of R.C. 149.43(B). Following unsuccessful
mediation, the Board filed a combined response and motion to
dismiss (Response) on May 1, 2019. On May 24, 2019, Recker
filed a response to respondent's motion to dismiss
(Reply). On June 19, 2019, the Board filed additional
documents as directed by the special master's order of
June 5, 2019. On July 12, 2019, the Board filed a motion to
file additional documents under seal. Recker has filed no
opposition to this motion, which is hereby GRANTED.
Although titled as a combined response to the complaint and
motion to dismiss, the Board's response does not assert
any defense listed in Civ.R. 12(B)(1) through (7). The
Board's sole defense is that the requested survey
documents are exempt from disclosure as trial preparation
material and/or attorney work product. (Response,
passim.) The Board does not dispute that the
documents exist, or that they satisfy the definition of a
"record" kept by the Board. R.C. 149.011(G).
See State ex rel. Beacon Journal Publg. Co. v. Bond,
98 Ohio St.3d 146, 2002-Ohio-7117, 781 N.E.2d 180, ¶ 13.
The complaint neither concedes nor demonstrates that the
requested documents are subject to the claimed exemptions.
Therefore, to the extent that the title of the Board's
response asserts a motion to dismiss, I recommend that the
court deny the motion and determine the claim on the merits.
In an action to enforce Ohio's Public Records Act (PRA),
the burden is on the requester to prove an alleged violation.
In mandamus enforcement actions,
[a]lthough the PRA is accorded liberal construction in favor
of access to public records, "the relator must still
establish entitlement to the requested extraordinary relief
by clear and convincing evidence."
State ex rel. Caster v. Columbus, 151 Ohio St.3d
425, 428, 2016-Ohio-8394, 89 N.E.3d 598, ¶ 15.
Entitlement to relief under R.C. 2743.75 must likewise be
established by clear and convincing evidence. Hurt v.
Liberty Twp.,2017-Ohio-78 ...