Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Recker v. Ohio State Dental Board

Court of Claims of Ohio

July 5, 2019

FRANK R. RECKER & ASSOCIATES CO., L.P.A. Requester
v.
OHIO STATE DENTAL BOARD Respondent

          Sent to S.C. Reporter 8/15/19

          REPORT AND RECOMMENDATION

          JEFFERY W. CLARK SPECIAL MASTER

         {¶1} 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 survey,

(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.)

         {¶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.

         Motion to Dismiss

         {¶3} 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.

         {¶4} 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.

         Burdens of Proof

         {¶5} 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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.