(12-22-20) Mercer County Prosecutor Matthew Fox, Mercer County Sheriff Jeff Grey, and the victim in a 2013 sexual battery case have filed a motion to the Ohio Supreme Court asking the court to reconsider its recent decision to require the release of certain records to the father of Christopher Summers..

Summers, a Ft. Recovery school teacher, was convicted 7 years ago on sexual battery charges involving a former student. The motion asks the court to reconsider the potential harm this could cause to the victim in this case and to all other future victims in Ohio.

The filing expressed concern about a victim’s willingness to testify and…“turning the public records law into a potentially life-long sword to be used against them”

Slip Opinion

Reconsideration request

Respondents, Mercer County Prosecutor Matthew Fox and Mercer County Sheriff Jeff Grey, and Intervening Respondent, J.K., by and through respective counsel, respectfully move this Honorable Court, pursuant to Supreme Court Practice Rule 18.02,for reconsideration of the opinion dated December 10, 2020 that granted Relator’s writ of mandamus in part.

Respondents request this Court reconsider its opinion and adopt the dissenting opinion finding Relator Charles A. Summers is the designee of inmate Christopher Summers. First, a public agency, in responding to a public records request, has no ability to question the identity of the requester, except when the relationship between Relator and inmate is clear.The designee standard is a low bar, as this Court implicitly recognized in its previous holding in Barb II. A simple statement by the requester in that case that he sought to demonstrate that his incarcerated brother did not receive a fair trial was sufficient, in and of itself, to form the designee relationship. The majority’s decision in this case turns the designee analysis on its head.As recognized by the dissent, Respondents presented overwhelming evidence,in addition to the familial relationship of Relator and inmate,to demonstrate actual agency and designee status.The express, direct authority standard announced by the majority effectively eliminates designee status under R.C.§ 149.43(B)(8).

Second,the majority accepts as true the averments of Relator’s affidavit flatly claiming he is not his son’s designee without assessing the credibility of the Relator’s self-serving claims and with no recognition that Respondents had no ability to test the claim through cross examination or other methods. Third, the majority opinion conflates exemption and other procedural requirements regarding public record compliance found in R.C.§149.43(B)(8) with the defined exceptions to categories of public records found in R.C. § 149.43(A).In so doing, the majority finds the Respondents have not established Relator is the designee of the inmate by clear and convincing evidence, a burden of proof never previously pronounced.This conflation and newly articulated standard will force public agencies to choose between violating the civil rights of victims of crime and violating the public records law.

Intervening Respondent, J.K.,also requests this Court reconsider its opinion. First, the majority erred when it refused to apply J.K.’s constitutional privacy rights simply because this is a public records matter.Second, the court erred when it ignored J.K.’s state and federal constitutional privacy rights that exist in addition to Marsy’s Law.Third, the court erred when it failed to apply a balancing test to weigh J.K.’s fundamental right to privacy with the State’s interest in complying with public records requests.As written, the opinion would not only harm J.K. and all other Ohio victims by failing to balance their state and federal constitutional privacy rights against the interest in release of records, but it would also subject Ohio public officials and public offices to civil liability.

The reasons for this Joint Motion are more fully set forth in the Memorandum in Support attached hereto and incorporated herein by reference.

Complete Document – Motion for reconsideration

Related story to this and several lawsuits being considered in related Mercer County cases – Supreme Court decision paves way for big change to Sovereign Immunity law

Recently the United States Supreme Court  issued an important unanimous decision that could lay the groundwork for a significant change to sovereign immunity law in the United States. The case, captioned Tanzin v. Tanvir, held that monetary damages against government workers who violate constitutional rights are not only appropriate – but that “this exact remedy has coexisted with our constitutional system since the dawn of the Republic.”