Cobb v. New Franklin Police Dept. of Summit Cty. , 2020 Ohio 844 ( 2020 )

[Cite as Cobb v. New Franklin Police Dept. of Summit Cty., 2020-Ohio-844.]
CINDEE COBB Case No. 2019-00435PQ
Requester Judge Patrick M. McGrath
v. DECISION AND ENTRY
NEW FRANKLIN POLICE
DEPARTMENT OF SUMMIT COUNTY
Respondent
{¶1} Requester Cindee Cobb, a self-represented litigant, has filed objections and
amended objections to a special master’s report and recommendation.
I. Background
{¶2} On April 2, 2019, pursuant to R.C. 2743.75(D), Cobb sued respondent New
Franklin Police Department of Summit County (New Franklin PD), alleging a denial of
access to public records. The court appointed a special master in the cause. The
court, through the special master, referred the case to mediation. After mediation failed
to successfully resolve all disputed issues between the parties, New Franklin PD,
through counsel, moved to dismiss Cobb’s complaint.
{¶3} On January 3, 2020, the special master issued a report and
recommendation (R&R) wherein he recommended (1) denying the motion to dismiss
and determining on the merits Cobb’s claim for production of records other than an
initial offense and incident report, (2) dismissing a claim for production of an initial
offense report and incident report as moot, (3) finding that “the CLEIRs [confidential law
enforcement investigatory records] specific investigatory work product exception applies
to the responsive records beyond the initial incident report, in the hands of New Franklin
PD,” (4) finding that New Franklin PD “has not met its burden to prove that any other
CLEIRs exception applies to the requested records,” and (5) denying Cobb’s remaining
claims for production of records. (R&R, 3, 10.)
Case No. 2019-00435PQ -2- DECISION AND ENTRY
{¶4} According to the court’s docket, Cobb received a copy of the R&R by
certified mail on January 11, 2020. Six business days later—on January 21, 2020—
Cobb filed written objections and amended written objections to the R&R. Cobb
represents that she served a copy of her objections and amended objections on New
Franklin PD’s counsel by certified mail, return receipt requested.
{¶5} New Franklin PD has not filed a timely response to either Cobb’s objections
or amended objections.
II. Law and Analysis
1. R.C. 2743.75(F)(2) governs objections to a special master’s report and
recommendation.
{¶6} R.C. 2743.75(F)(2) sets forth the standard for reviewing objections to a
special master’s report and recommendation issued under R.C. 2743.75. Pursuant to
R.C. 2743.75(F)(2),
[e]ither 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 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.
2. R.C. 2743.75(F)(2) does not permit a party to file amended objections
to a report and recommendation.
Case No. 2019-00435PQ -3- DECISION AND ENTRY
{¶7} Cobb has timely filed objections and amended objections to the R&R and
she has informed the court that she served her objections and amended objections on
New Franklin PD’s counsel, by certified mail, return receipt requested, as required by
R.C. 2743.75(F)(2). Cobb thus has complied with certain procedural requirements
contained in R.C. 2743.75(F)(2).
{¶8} R.C. 2743.75(F)(2) does not, however, expressly permit a party to file
amended objections to a report and recommendation. In the interest of justice, the
court will nevertheless consider Cobb’s amended objections. Because Cobb has filed
amended objections, Cobb’s objections are moot. See Black’s Law Dictionary 1161
(10th Ed.2014) (defining moot as “[h]aving no practical significance; hypothetical or
academic”).
3. Cobb’s amended objections are not well taken.
{¶9} In the first amended objection, Cobb states: “Requester would formally
object to the application of the specific investigatory work product exception to this case
in light of the holding in [State ex rel. Caster v. Columbus, 151 Ohio St.3d 425, 2016-
Ohio-8394, 89 N.E.3d 598], that that the work product exception ‘does not extend
beyond the completion of trial for which the information was gathered.’ Caster at ¶ 47.”
{¶10} In Caster at ¶ 47, the Ohio Supreme Court held that “the specific-
investigatory-work-product exception of R.C. 149.43(A)(2)(c) does not extend beyond
the completion of the trial for which the information was gathered.” In the R&R, the
special master cited to an attestation by New Franklin PD that an investigation has
continued after a first suspect was charged, and that prosecution of a recently charged
second has not concluded. (R&R, 7). The special master then found that New Franklin
PD “has met its burden of proof in showing that the withheld records pertain to a law
enforcement matter of a criminal nature that has not yet concluded, and that the law
enforcement investigatory work product exception continues to apply all requested
records other than the initial incident report.” (Id.) The court does not find an error in
Case No. 2019-00435PQ -4- DECISION AND ENTRY
the special master’s application of Caster’s holding at ¶ 47. Cobb’s first amended
objection is not well-taken.
{¶11} In the second amended objection, Cobb states: “[I]n light of Respondent’s
inclinations to avoid disclosure of the requested documents, rather than dismiss this
case outright, subject to refiling and re-litigation of the entire process, Requester would
Object to dismissal of the case and would ask this Court to stay the proceeding until the
charges against the of [sic] the co-defendant, if deemed applicable * * * have been
resolved.” Under R.C. 2743.75(F)(2) this court does not have authority to stay a matter.
Rather, pursuant to R.C. 2743.75(F)(2), within seven business days after a response to
an objection is filed, this court “shall issue a final order that adopts, modifies, or rejects
the report and recommendation.” (Emphasis added.) See Dorrian v. Scioto
Conservancy Dist., 27 Ohio St.2d 102, 271 N.E.2d 834 (1971), paragraph one of the
syllabus (in statutory construction, the word “‘shall’ shall be construed as mandatory
unless there appears a clear and unequivocal legislative intent that they receive a
construction other than their ordinary usage”). Cobb’s second amended objection is not
well-taken.
III. Conclusion
{¶12} For reasons set forth above, the court OVERRULES as moot Cobb’s
objections of January 21, 2020, OVERRULES Cobb’s amended objections of January
21, 2020, and adopts the special master’s R&R of January 3, 2020. Judgment is
rendered in favor of respondent. Court costs are assessed against Cobb. The clerk
shall serve upon all parties notice of this judgment and its date of entry upon the journal.
PATRICK M. MCGRATH
Judge
Case No. 2019-00435PQ -5- DECISION AND ENTRY
Filed February 12, 2020
Sent to S.C. Reporter 3/6/20