Opinion
Case No. 2020-00507PQ
03-11-2021
ANTHONY VIOLA Requester v. OHIO ATTORNEY GENERAL'S OFFICE-PUBLIC RECORDS UNIT Respondent
DECISION AND ENTRY
{¶1} Requester Anthony Viola objects to a special master's report and recommendation in this public-records dispute. For reasons set forth below, the Court overrules Viola's objections and adopts the report and recommendation.
I. Background
{¶2} Viola made a public-records request to Respondent Ohio Attorney General's Office - Public Records Unit (AGO). On August 18, 2020, Viola brought a lawsuit in this Court against the AGO. Viola stated in the complaint: "I asked the Ohio Attorney General to determine whether or not Assistant Attorney General Dan Kasaris was violating Ohio records laws by utilizing his personal Yahoo account for official business and to search that e mail account for responsive public records, but that office refused. When I attempted to discuss the matter with them, no phone calls or e mails were returned."
{¶3} The Clerk of this Court appointed a special master who 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 AGO filed a combined response to the complaint, motion to strike, and motion to dismiss. On January 29, 2021, the Special Master issued a report and recommendation (R&R). The Special Master ordered a portion of certain filings submitted by Viola to be stricken, recommended denying the AGO's motion to dismiss, and concluded: "Based on the pleadings, affidavits, and documents submitted in this action, the special master recommends the court find that requester has not shown that respondent violated R.C. 149.43(B). It is recommended that costs be assessed to requester." (R&R, 3, 4, 9.)
{¶5} On February 16, 2021, Viola filed written objections to the R&R. According to a certificate of service accompanying Viola's objections, Viola served a copy of his objections on the AGO's counsel "via email and regular U.S. mail, postage prepaid." Nine days later, on February 25, 2021, pursuant to Evid.R. 201(B), Viola moved the Court to take judicial notice of a certain internet article dated February 15, 2021.
{¶6} On March 1, 2021, in a single filing the AGO responded to Viola's objections and moved to strike Viola's motion for judicial notice.
II. Law and Analysis
{¶7} R.C. 2743.75(F)(2) governs objections to a special master's report and recommendation. 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."
1. Viola's motion to take judicial notice is not well-taken.
{¶8} Viola's motion to take judicial notice is not well-taken for several reasons. First, R.C. 2743.75(F)(2)'s plain language does not expressly authorize a party to engage in motion practice after a report and recommendation is issued. Second, Evid.R. 201 governs judicial notice of adjudicative facts, i.e., the facts of the case. Evid.R. 201(A). The internet article of which Viola seeks the Court to take judicial notice is dated after the R&R. The internet article thus does not concern the facts of the case as presented to the Special Master. Third, under Evid.R. 201(B) a judicially noticed fact "must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned." In the Court's view, Viola's proffered internet article, without more, does not satisfy Evid.R. 201(B).
2. The AGO's motion to strike is not well taken.
{¶9} The Court finds that the AGO's motion to strike in not well-taken for several reasons. First, R.C. 2743.75(F)(2)'s plain language permits a party to file objections and responses after a Special Master issues a report and recommendation. R.C. 2743.75(F)(2)'s plain language does not, however, expressly authorize a party to engage in motion practice after a report and recommendation is issued.
{¶10} Second, since the Court has declined Viola's request to take judicial notice of the internet article, the AGO's motion to strike has been rendered moot. See City of Grove City v. Clark, 10th Dist. Franklin No. 01AP-1369, 2002-Ohio-4549, ¶ 11, quoting Culver v. Warren, 84 Ohio App. 373, 393, 83 N.E.2d 82 (11th Dist.1948) (stating that "'[a]ctions or opinions are described as "moot" when they are or have become fictitious, colorable, hypothetical, academic or dead'").
3. The Court adopts the Special Master's recommendation to deny the AGO's motion to dismiss.
{¶11} The Special Master has recommended denying AGO's motion to dismiss (R&R, 4.) The Court adopts the recommendation to deny the AGO's motion to dismiss.
4. Viola's objections are procedurally irregular and not well taken.
{¶12} Viola's written objections are procedurally irregular because he has failed to send a copy of his written objections to AGO's counsel by certified mail, return receipt requested, as required by R.C. 2743.75(F)(2) However, in the interest of justice, the Court will consider Viola's objections, despite the procedural irregularity.
{¶13} Under R.C. 2743.75(F)(2) any objection to a report and recommendation "shall be specific and state with particularity all grounds for the objection." Here, Viola presents three objections for the Court's consideration. For ease of analysis, the Court will analyze Viola's objections jointly.
A. OBJECTION NUMBER ONE
{¶14} Viola states in his first objection:
The Magistrate Does Not Address the fact that Kasaris has submitted a materially false affidavit in these proceedings. Initially, in these matters, Kasaris swore under oath he NEVER used his private Yahoo account for official business, EXHIBIT B.(Emphasis sic.)
Later, in this very case, Kasaris admitted that his initial statements were false, and submitted a different sworn statement, EXHIBIT C.
Despite making false statements during these proceedings, the Magistrate accepts the word of Mr. Kasaris without addressing these inconsistent statements, or determining that Kasaris' use of a private email account with his official signature MAY contain public records and must be searched by the Attorney General.
B. OBJECTION NUMBER TWO
{¶15} Viola's second objection states:
Page 7 of the Magistrate's Report states:
There is no evidence that ... emails sent by Kasaris to his personal account still exist, or that Kasaris violated any records retention provision by copying them and then deleting them.
Requestor did not state that ALL private emails affixed with Mr. Kasaris' official signature are public records, but that these emails MAY constitute public records, and must be searched.(Emphasis sic.)
Without searching these Yahoo emails, how would we know if the emails still exist, or involve official business or not?
C. OBJECTION NUMBER THREE
{¶16} Viola's third objection states: "The Magistrate's report never answered the question as to whether or not emails between a prosecutor and government witness constitute public records, requiring the production of all Kasaris-Clover emails."
D. Discussion
{¶17} At issue in this dispute is whether the AGO violated R.C. 149.43(B) based on allegations contained in Viola's complaint. See R.C. 2743.75(A) (granting authority to this Court to adjudicate or resolve complaints based on alleged violations of R.C. 149.43(B)). Under R.C. 2743.75(F)(1) a special master is required to submit to this Court "a report and recommendation based on the ordinary application of statutory law and case law as they existed at the time of the filing of the complaint."
{¶18} The plain language of R.C. 2743.75(A) and (F)(1) does not require a special master to answer all questions that a requester may seek to have answered. Moreover, neither R.C. 2743.75(A) nor (F)(1) require a special master to determine whether certain evidence is materially false. Viola's contention in his first objection that the Special Master erred by failing to determine whether Kasaris submitted materially false affidavits is not persuasive. Similarly, Viola's contention in his third objection that the Special Master "never answered the question as to whether or not emails between a prosecutor and government witness constitute public records, requiring the production of all Kasaris-Clover emails" is of no moment as neither R.C. 2743.75(A) nor (F)(1) require a special master to determine whether emails between a prosecutor and government witness constitute public records. Viola's third objection is not well-taken.
{¶19} Finally, in the Court's view, Viola's suggestion in his second objection that Kasaris' personal email account may contain public records is insufficient to rebut the Special Master's finding that, under the facts and circumstances of this case, Viola has not shown by clear and convincing evidence that the manner in which the AGO processed Viola's public-records request violated R.C. 149.43(B). (R&R, 9.) See Welsh-Huggins v. Jefferson Cty. Prosecutor's Office, 2020-Ohio-5371, ¶ 32-34 (discussing burdens of persuasion and production under R.C. 2743.75); Cross v. Ledford, 161 Ohio St. 469, 469, 120 N.E.2d 118 (1954), paragraph three of the syllabus (holding that "clear and convincing evidence" "is that measure or degree of proof which is more than a mere 'preponderance of the evidence,' but not to the extent of such certainty as is required 'beyond a reasonable doubt' in criminal cases, and which will produce in the mind of the trier of facts a firm belief or conviction as to the facts sought to be established").
III. Conclusion
{¶20} For reasons set forth above, the Court OVERRULES Viola's objections, DENIES Viola's motion to take judicial notice, DENIES the AGO's motion to strike, and ADOPTS the Special Master's R&R of January 29, 2021. Judgment is rendered in favor of the AGO. Court costs are assessed to Viola. The clerk shall serve upon all parties notice of this judgment and its date of entry upon the journal.
/s/_________
PATRICK E. SHEERAN
Judge Filed March 11, 2021
Sent to S.C. Reporter 4/6/21