Forhan v. Ohio House of Representatives

[Cite as Forhan v. Ohio House of Representatives, 2026-Ohio-3863.] IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT Elliot P. Forhan, : Plaintiff-Appellee/ : Cross-Appellant, No. 25AP-895 : (Ct. of Cl. No. 2025-00596PQ) v. : (REGULAR CALENDAR) Ohio House of Representatives, : Defendant-Appellant/ Cross-Appellee. : D E C I S I O N Rendered on September 30, 2026 On brief: The Law Office of Elliot P. Forhan, Elliot P. Forhan, pro se; Flowers & Grube, and Louis E. Grube, for plaintiff-appellee/cross-appellant. Argued: Louis E. Grube. On brief: Isaac Wiles Burkholder & Miller, LLC, Scott O. Sheets, Aaron M. Glasgow, and Brian T. Johnson, for defendant-appellant/cross-appellee. Argued: Scott O. Sheets. APPEAL from the Court of Claims of Ohio LELAND, J. {¶ 1} Defendant-appellant/cross-appellee, The Ohio House of Representatives (the “House”), appeals from a judgment of the Court of Claims of Ohio, granting in part and denying in part public records requests filed by plaintiff-appellee/cross-appellant, Elliot P. Forhan (“Forhan”). For the following reasons, we affirm. No. 25AP-895 2 I. Facts and Procedural History {¶ 2} On April 16, 2024, Forhan, a representative in the House, sent a public records request to the House’s Chief Legal Counsel, Kevin Stanek. Forhan asked Stanek to produce the “full investigation file in connection with the report, dated March 15, 2024,” including “notes of interviews.” (House’s Submission of Evidence at 22.) The March 15, 2024 report, drafted by the law firm of Perez and Morris, LLC (“Perez Morris” or the “firm”), addressed allegations of “erratic, aggressive, violent behavior, and interactions by [] Forhan with staff and Members of the Democratic caucus, constituents, stakeholders, and other third parties.” (House’s Submission of Evidence at 1767, the “Forhan Report” at 2.) The report noted that on November 16, 2023, Minority Leader Allison Russo issued a memorandum detailing several concerning incidents involving Forhan and stripped Forhan of his committee assignments and access to caucus staff services. The report also noted that on November 17, 2023, Speaker of the House Jason Stephens suspended Forhan’s badge access to the Ohio Statehouse and directed Forhan to call the House Sergeant-at-Arms regarding access to state facilities. Following a request from the Speaker, the Attorney General appointed Perez Morris to serve as special counsel for the House to investigate the allegations against Forhan. {¶ 3} Perez Morris interviewed 14 individuals during its investigation and determined the witnesses produced “corroborating statements generally supporting the facts outlined in the [November 16, 2023] Russo Memo.” (Forhan Report at 4.) The report found the measures taken by House leadership against Forhan were within the authority granted under “applicable rules of the House, given the concerning pattern of conduct, escalation in behavior, and altercations with others in which [] Forhan engaged.” (Forhan Report at 15.) {¶ 4} On June 3, 2024, the House, through Stanek, produced numerous documents in response to Forhan’s April 16, 2024 public records request. However, the House refused to produce any notes the Perez Morris attorneys took while conducting witness interviews. Stanek explained the House would not produce the interview notes because the notes were “covered by the personal notes exception.” (House’s Submission of Evidence at 25.) No. 25AP-895 3 {¶ 5} Forhan responded to Stanek on June 4, 2024, stating that the personal notes exception was “not applicable” to the interview notes and that he would like the “full file” with “no withholdings.” (House’s Submission of Evidence at 87.) Forhan also requested the “full file for each outside counsel report performed during the last two years for the House.” (House’s Submission of Evidence at 87.) On July 5, 2024, Forhan asked Stanek to produce “any complaints against and discipline files on any House member or staff member since the date [Stanek] last produced records responsive to [Forhan’s] initial request.” (House’s Submission of Evidence at 92.) {¶ 6} On August 13, 2024, Stanek responded to Forhan’s June 6 and July 5, 2024 requests, providing him with records related to Perez Morris’s May 31, 2023 report regarding Sarah Cherry (“Cherry Report”), who was legal counsel for the House Minority Caucus at the time. The Cherry Report addressed Cherry’s “informal complaints” that disciplinary actions by the House’s chief administrative officer were “being conducted, documented, and maintained . . . in a discriminatory or retaliatory manner.” (Cherry Report at 2.) Cherry’s allegations of discrimination “related to implementation of work policies, including work from home, time keeping, discipline and record keeping related to discipline files.” (Cherry Report at 2.) The Attorney General appointed Perez Morris to serve as special counsel for the House to investigate the Cherry matter. Perez Morris interviewed ten witnesses during its investigation and found no support for Cherry’s allegations of discrimination. {¶ 7} Forhan responded to Stanek on August 13, 2024, and asked him to produce the “full investigation file including interview notes and draft reports and any other documents for both of the Perez Morris engagements.” (House’s Submission of Evidence at 1372.) On October 17, 2024, Forhan emailed Sarah Perez, the managing partner at Perez Morris, and asked her to produce “all records of [her] so-called ‘investigation’ into [him], including drafts and all witness interview documentation.” (House’s Submission of Evidence at 1782.) Heather Blessing, the House’s deputy chief legal counsel, responded to Forhan’s August 13 and October 17, 2024 requests, explaining that the House would not produce materials that did not “document the functions or policies of the public office – thus falling under the ‘non-record’ category.” (House’s Submission of Evidence at 1377, 1785.) No. 25AP-895 4 {¶ 8} On January 9, 2025, Forhan emailed Mike Lenzo, deputy chief of staff and general counsel for the Speaker of the House, and requested the “full investigative files, including interview notes, with respect to each of (1) the Perez Morris investigation, completed in March 2024, into me and (2) the Perez Morris investigation, completed in May 2023, into [Cherry].” (House’s Submission of Evidence at 1971.) Blessing responded to Forhan’s January 9, 2025 request, noting that the House had “fulfilled previous public records requests from [Forhan] for the same records” and reiterating that “notes of interviews” did not meet the “definition of record in ORC 149.011(G).” (House’s Submission of Evidence at 1973.) {¶ 9} On June 25, 2025, Forhan filed an R.C. 2743.75 public records access complaint against the House. Forhan alleged the records the House wrongly refused to produce included: “(1) all report drafts and witness interview documentation in connection with the P.M.-Forhan Matter and (2) all interview notes created in connection with the P.M.-[Cherry] Matter.” (Compl. at Attachment 1.) The Court of Claims appointed a special master to the case who ordered the parties to submit evidence supporting their respective positions. The special master also ordered the House to file the documents it claimed were exempt from production under seal. The parties complied with the special master’s order. {¶ 10} On July 24, 2025, the House filed a brief responding to Forhan’s complaint. The House initially argued that the interview notes and drafts of the reports were not public records because the House did not create or receive the documents and the materials did not document activities of the House. The House also asserted that the interview notes were not records of the House because they were “used solely for the benefit of the individual attorney note takers, including for recalling information.” (House’s Trial Brief at 6.) The House claimed the notes and drafts were exempt from disclosure either as trial preparation records or because they were protected by the attorney-client privilege. {¶ 11} Forhan responded to the House’s brief on August 4, 2025. Forhan argued that both the interview notes and report drafts were public records because the House delegated its duty to investigate the Cherry and Forhan matters to Perez Morris. Forhan asserted that the House bore the burden to prove the records satisfied an exception to production, and claimed the House failed to carry its burden of proof. No. 25AP-895 5 {¶ 12} The special master issued a report and recommendation on August 26, 2025, recommending that the court order the House to produce the report drafts but not the interview notes. The special master concluded the documents could be records of the House, because the House delegated its authority to investigate the Cherry and Forhan matters to Perez Morris. The special master determined that Forhan had the burden to establish the interview notes were public records, and found Forhan failed to carry his burden. The special master further found that the drafts were public records and that the House had the burden to prove the drafts satisfied any exception to production. The special master concluded the House failed to carry its burden to establish the drafts were either trial preparation records or materials protected by the attorney-client privilege. {¶ 13} The House and Forhan both filed objections to the special master’s report and recommendation. On October 2, 2025, the court issued a decision and entry overruling the parties’ objections and adopting the special master’s report and recommendation. II. Assignments of Error {¶ 14} The House appeals, assigning the following errors for our review: [I.] The Court of Claims erred in concluding that preliminary drafts of investigation reports prepared and used only by outside counsel are public records under R.C. 149.011(G). [II.] The Court of Claims erred in concluding that the drafts are not exempt as trial preparation records or attorney work product. [III.] The Court of Claims erred in concluding that the drafts are not protected by attorney-client privilege. {¶ 15} Forhan has filed a cross-appeal, assigning the following errors for our review: I. The court below erred as a matter of law in omitting to recognize that no personal-notes exception applies if the notes are required to be maintained. II. The court below erred as a matter of law in omitting to recognize that no personal-notes exception applies if other officials had access to the notes. III. The court below erred as a matter of law in omitting to recognize that no personal-notes exception applies if (A) the requester and the public did and do not have access to the transaction or occurrence to which the notes related and (B) No. 25AP-895 6 the requester and the public would lose information as a result of so applying. IV. The court below erred as a matter of law in omitting to recognize that no personal-notes exception may be asserted to conceal the note-taker’s cooperation with wrongdoing. V. The court below erred as a matter of law in finding that Requester bore the burden of proving the non-application of any personal-notes exception. VI. The court below erred in finding that Requester did not provide any evidence that the interview documentation were created for any purpose other than the convenience of the documenters. VII. The court below erred in denying Requester’s request that the court order the House to produce the Requester the interview documentation are public records. VIII. The court below erred in denying Requester’s request that the court order the House to produce to Requester the interview documentation. III. Standard of Review {¶ 16} Ohio’s Public Records Act, codified at R.C. 149.43, mandates that requestors have full access to public records, unless the requested records fall within one of the exceptions specifically enumerated in the statute. State ex rel. Cincinnati Enquirer v. Ohio Dept. of Commerce, Div. of Fire, 2019-Ohio-4009, ¶ 84 (10th Dist.). See R.C. 149.43(B)(1) (stating that “[u]pon request by any person . . . all public records responsive to the request shall be promptly prepared and made available for inspection to the requester at all reasonable times during regular business hours”). The Public Records Act “reflects the state’s policy that ‘open government serves the public interest and our democratic system.’ ” State ex rel. Morgan v. New Lexington, 2006-Ohio-6365, ¶ 28, quoting State ex rel. Dann v. Taft, 2006-Ohio-1825, ¶ 20. See Kish v. Akron, 2006-Ohio-1244, ¶ 16 (noting that “[p]ublic records are one portal through which the people observe their government, ensuring its accountability, integrity, and equity while minimizing sovereign mischief and malfeasance”). Consistent with this policy, courts construe the Public Records Act liberally No. 25AP-895 7 in favor of broad access, and resolve any doubts in favor of disclosure. State ex rel. Hogan Lovells U.S., L.L.P. v. Dept. of Rehab. & Corr., 2018-Ohio-5133, ¶ 12. {¶ 17} The Act defines a “public record” as any “record kept by a public office.” R.C. 149.43(A)(1). The House is a public office. See R.C. 149.011(A). The Act defines a “record” as “any document, device, or item, regardless of physical form or characteristic” that is “created or received by or coming under the jurisdiction of any public office of the state or its political subdivisions, which serves to document the organization, functions, policies, decisions, procedures, operations, or other activities of the office.” R.C. 149.011(G). {¶ 18} A person allegedly aggrieved by a denial of access to public records in violation of R.C. 149.43(B) may file either a complaint in mandamus pursuant to R.C. 149.43(C) or a public records access complaint pursuant to R.C. 2743.75. White v. Ross Corr. Inst., 2026-Ohio-1002, ¶ 17 (10th Dist.). See Welsh-Huggins v. Jefferson Cty. Prosecutor’s Office, 2020-Ohio-5371, ¶ 11 (explaining that prior to the 2016 enactment of R.C. 2743.75, “an action in mandamus under R.C. 149.43(C) was the remedy to compel compliance with R.C. 149.43”); Law Office of Josh Brown, L.L.C. v. Ohio Secy. of State, 2025-Ohio-2130, ¶ 9 (10th Dist.) (explaining that R.C. 2743.75 “lays out a streamlined litigation procedure” to resolve public records disputes). The standards applicable to proceedings under R.C. 2743.75 are consistent with the standards applicable to mandamus enforcement actions. Welsh-Huggins at ¶ 32. {¶ 19} Whether material qualifies as a record under R.C. 149.011(G), and/or whether a public record is statutorily exempt from disclosure, both present mixed questions of law and fact. Doe v. Ohio State Univ., 2024-Ohio-5891, ¶ 19 (10th Dist.); Welsh-Huggins at ¶ 37. See Schaffer v. Ohio State Univ., 2025-Ohio-5647, ¶ 8 (10th Dist.) (noting that “[r]equests for public records generally involve both legal questions regarding the meaning of provisions within the Public Records Act, R.C. 149.43, as well as factual questions regarding the context underlying a specific request”). “When an issue presents such a mixed question of law and fact, a reviewing court will independently review the legal question de novo but will defer to the trial court’s underlying factual findings, reviewing them only for clear error.” Welsh-Huggins at ¶ 37. No. 25AP-895 8 IV. Forhan’s Cross-Appeal {¶ 20} For ease of analysis, we address Forhan’s cross-appeal first and address his assignments of error out of order. In his cross-appeal, Forhan generally asserts the trial court erred by finding that the interview notes were not public records. {¶ 21} In State ex rel. Steffen v. Kraft, 67 Ohio St.3d 439 (1993), the Supreme Court of Ohio addressed whether personal notes taken by public officials constitute records under the Public Records Act. In the case, a criminal defendant made a public records request for handwritten notes taken by a judge during the defendant’s criminal trial. The court explained that, while R.C. 149.43(A)(1) defines a public record as a record kept by “any public office,” the statute does not define a public record as “any piece of paper on which a public officer writes something.” Id. at 440. The court observed that the judge’s notes were “simply personal papers kept for the judge’s own convenience and not official records,” there was “[n]o law or regulation requir[ing] such notes,” and that no “other court officials had access to or used the notes.” Id. As such, the court held that the judge’s personal notes were not public records. Id. at 439.1 {¶ 22} The Supreme Court addressed personal notes again in State ex rel. Cranford v. Cleveland, 2004-Ohio-4884, superseded by statute on other grounds. The relator in Cranford sought a writ of mandamus to compel the city of Cleveland to produce notes taken by the city’s planning commission director (the “director”) during a pre-disciplinary conference. The court observed that the director’s notes “were kept for his own convenience to recall events and were not kept as part of the city’s or the planning commission’s official records.” Id. at ¶ 18. The court also found no evidence indicating that “other city officials 1 The Steffen court noted that federal courts had also found that “personal uncirculated handwritten notes reflecting an employee’s impression of substantive discussions and agency business meetings [were] not ‘agency records’ ” under the Freedom of Information Act. Id. at 440. See Sibille v. Fed. Reserve Bank, 770 F.Supp. 134, 136-37 (S.D.N.Y. 1991) (stating that, when determining whether personal papers constitute agency records, federal courts “focus[] on whether the documents were used solely by the employee who created them, or were available to other agency employees, as well”); Am. Fedn. of Govt. Emp. Local 2782 v. United States Dept. of Commerce, 632 F.Supp. 1272, 1277 (D.D.C. 1986) (explaining that an employee’s “handwritten ‘logs’ ” created on the employee’s “own initiative and for her own personal convenience” were not public records because “personal notes which are not intended for distribution through normal agency channels and which cannot be said to be within the ‘control or dominion’ of an agency are ordinarily considered to be beyond the scope of [the Freedom of Information Act]”); British Airports Auth. v. Civ. Aeronautics Bd., 531 F.Supp. 408, 415-16 (D.D.C. 1982) (finding a public employee’s handwritten notes were not agency records due to the “personal nature of these documents: Mr. Chesen need not have created them, intended them to be temporary, not permanent, and kept them within his own personal files with no intent to distribute them through normal agency channels”). No. 25AP-895 9 had access to or used the notes.” Id. at ¶ 18. As such, the court held that the director’s “personal notes” from the pre-disciplinary conference were “not public records subject to disclosure under R.C. 149.43.” Id. at ¶ 21. See also State ex rel. Carr v. Akron, 2006-Ohio- 6714, ¶ 56 (finding an assessor’s “personal notes” from a promotional examination for firefighters and medics “[were] not public records”); State ex rel. Murray v. Netting, 1998 Ohio App. LEXIS 4719, *2-3 (5th Dist. Sept. 18, 1998) (observing that handwritten notes taken by city officials interviewing candidates for the position of police chief “[were] not public records as defined by R.C. 149.43,” because the interviewer’s notes were the “personal papers of the interviewers”); Vindicator Printing Co. v. Julian, 1994 Ohio App. LEXIS 3362, *6 (7th Dist. July 26, 1994). {¶ 23} In State ex rel. Summers v. Fox, 2020-Ohio-5585, the Supreme Court held that a prosecutor’s personal notes were not public records. The relator in the case argued that the prosecutor’s notes were “subject to disclosure if they contain[ed] exonerating information not in a public report.” Id. at ¶ 65. The court rejected this argument. The court explained that “[p]ersonal notes fall outside the scope of the Public Records Act due to the circumstances of their creation: when the notes are taken by an official for his own personal convenience and are not required to be maintained, they are not records of the office.” (Emphasis in original.) Id. at ¶ 66. The court noted that this characteristic of personal notes “distinguishe[d] the personal-notes exception from other exceptions (for example, the attorney-client privilege) that depend for their existence on the substance of the information contained in the record.” Id. at ¶ 66. {¶ 24} Effective September 30, 2025, the General Assembly amended R.C. 149.011(G) in 2025 H.B. No. 96 to clarify that “records” do not include “personal notes or any document, device, or item, . . . of a public official, or of the official’s attorney, employee, or agent, that is used, maintained, and accessed solely by the individual who creates it or causes its creation.” R.C. 149.011(G). Thus, under the current definition of “records,” any note or document created by the House’s attorney that was used, maintained, and accessed solely by the attorney would not qualify as a record. Because the H.B. No. 96 amendment to R.C. 149.011(G) became effective after Forhan made his public records requests, the amendment does not apply in the present case. See State ex rel. McDougald v. Greene, 2020-Ohio-3686, ¶ 14, fn. 2 (explaining that “[p]ublic-records requests are No. 25AP-895 10 governed by the version of R.C. 149.43 that was in effect at the time that the request was made”); State ex rel. Fraley v. Dept. of Rehab. & Corr., 2026-Ohio-1156, ¶ 10. Nevertheless, the amendment essentially codifies the Supreme Court’s holdings from Steffen, Cranford, and Summers, which this court is bound to follow. See State ex rel. Kelsey-Hayes Co. v. Heinlen, 2006-Ohio-428, ¶ 4 (10th Dist.). {¶ 25} Thus, when a public official writes a note for their own personal convenience, the public official was not required to create or maintain the note, and the note was not accessed or used by others, the note is not a record of the public office. Steffen at 440; Cranford at ¶ 18; Summers at ¶ 66. Forhan claims Ohio courts have “found that notes are public records,” but the cases Forhan relies on are distinguishable. (Forhan’s Cross- Appellant’s Brief at 23.) {¶ 26} For instance, Forhan relies on State ex rel. Verhovec v. Marietta, 2013-Ohio- 5415 (4th Dist.), where the court found handwritten notes taken by the Marietta Clerk of Council during Marietta City Council meeting were not personal notes. The clerk would use their handwritten notes to type the official council meeting minutes and would then discard the notes. The court concluded the handwritten notes “were not merely personal notes taken solely for [the clerk’s] convenience,” because the notes documented the decisions, operations, and activities of city council. Id. at ¶ 30. However, the court never addressed whether the clerk was required to create or maintain the handwritten notes or whether anyone besides the clerk accessed or used the notes. Moreover, the court’s conclusion that the handwritten notes were not personal notes was dicta. See Gissiner v. Cincinnati, 2008-Ohio-3161, ¶ 15 (1st Dist.). The requestor in Verhovec filed a civil forfeiture action seeking to recover funds under the Public Records Act for every note that had been destroyed, and the court determined that the requestor failed to demonstrate she was an “aggrieved” party under the statute. Id. at ¶ 31. See R.C. 149.351(B)(2). As such, the appellate court affirmed the trial court’s conclusion that the requestor was not entitled to recover forfeiture damages. Id. at ¶ 31. Thus, the Verhovec court’s conclusion that the clerk’s handwritten notes were not personal notes was unnecessary to the court’s resolution of the civil forfeiture issue. The remaining cases Forhan relies on concerned instances where the notes were not personal notes. See State ex rel. Gannett Satellite Information Network, Inc. v. Petro, 1997-Ohio-319 (holding that “audits, audit drafts, and working No. 25AP-895 11 papers and notes relating to audits of public offices are public records,” and implying that such audit “notes” would be official records of the audit rather than personal notes); Hurt v. Liberty Twp., 2017-Ohio-7820, ¶ 74-75 (5th Dist.) (concluding that interview notes taken by an attorney pursuant to a delegated public duty might be public records because the attorney’s billing statements demonstrated he “ ‘debriefed with clients’ after conducting each investigatory interview,” thereby indicating the attorney shared his notes with the board of trustees). {¶ 27} In his fifth cross-assignment of error, Forhan asserts the trial court erred by concluding that he bore the burden of proving the personal notes exception did not apply to the interview notes. In Welsh-Huggins, 2020-Ohio-5371, the Supreme Court addressed “the respective burden or burdens of proof that the parties bear in proceedings to enforce the Public Records Act” under R.C. 2743.75. Welsh-Huggins at ¶ 19. The court noted that a party’s “burden of proof” in any situation is “a composite burden that ‘encompasses two different aspects of proof: the burden of going forward with evidence (or burden of production) and the burden of persuasion.’ ” Welsh-Huggins at ¶ 20, quoting Chari v. Vore, 2001-Ohio-49, ¶ 13. In a proceeding under R.C. 2743.75, “the complainant’s ‘burden of production’ is to plead and prove facts showing that the requester sought an identifiable public record pursuant to R.C. 149.43(B)(1) and that the public office or records custodian did not make the record available.” Welsh-Huggins at ¶ 33. The complainant’s burden of persuasion is to establish their entitlement to relief by clear and convincing evidence. Welsh-Huggins at ¶ 34. {¶ 28} If the claimant satisfies their burden of proof, and the public office or person responsible for public records “refuses to release the requested record on the basis of a statutory exemption, its ‘burden of production’ in the R.C. 2743.75 proceeding is to plead and prove facts establishing that the requested record falls squarely within the exemption.” Welsh-Huggins at ¶ 35. See State ex rel. Besser v. Ohio State Univ., 2000-Ohio-207 (stating that “[e]xceptions to disclosure must be strictly construed against the public records custodian, and the custodian bears the burden to establish the applicability of an exception”). If the exemption is not “obviously apparent and manifest just from the content of the record itself,” the records custodian must produce “competent, admissible evidence to support the asserted exemption.” Welsh-Huggins at ¶ 35, 77. “Conclusory statements No. 25AP-895 12 in an affidavit that are not supported by evidence are not sufficient evidence to establish the exemption’s applicability.” Welsh-Huggins at ¶ 30, citing Besser. {¶ 29} Thus, Forhan had the initial burden to establish by clear and convincing evidence that he sought identifiable public records. Forhan contends that, because the Supreme Court referred to personal notes as the “personal-notes exception” in Summers, 2020-Ohio-5585, at ¶ 66, courts treat personal notes “in the same way as any statutory exception (or exemption).” (Forhan’s Cross-Appellant’s Brief at 19.) As such, Forhan claims the House had the burden to establish the interview notes fell squarely within the personal-notes exception. However, Steffen, Cranford, and Summers, as well as the recent amendment to R.C. 149.011(G), all demonstrate that personal notes are not records of a public office. Thus, personal notes are not public records that satisfy a statutory exception to production; rather, personal notes simply do not qualify as public records from the time of their creation.2 {¶ 30} The trial court did not err by finding Forhan bore the burden to establish that the interview notes were identifiable public records and not personal notes. Based on the foregoing, we overrule Forhan’s fifth cross-assignment of error. 2 Forhan also asserts that the reasons identified by the Supreme Court for placing the burden of proof on the records custodian to establish a statutory exception apply equally “when a records custodian refuses to release a requested record based on any personal-notes exception.” (Appellant’s Brief at 18.) In State ex rel. Natl. Broadcasting Co. v. Cleveland, 38 Ohio St.3d 79 (1988), the court noted the following “cogent reasons” for placing the burden on the government to establish that withheld records fall within a statutory exception to production: (1) the “custodian of the record has knowledge of the contents of the record” while the requestor does not; (2) placing the burden on the government is consistent with the general rule that a person “asserting an exception is required to prove the facts warranting such an exception,” and (3) placing the burden on the government is consistent with the Supreme Court ’s approach of strictly construing R.C. 149.43 in favor of disclosure. Natl. Broadcasting at 83. We agree with Forhan that the first reason arguably applies to personal notes, because the records custodian will likely have possession of the notes while the requester will not. The second and third reasons, however, arguably do not apply to personal notes, because personal notes are not records and therefore are not subject to the requirements of the Public Records Act. Nevertheless, it seems reasonable to this court to require the records custodian, who has possession of the requested record, to demonstrate that the document satisfies the elements of a personal note. Placing the burden of proof on the requestor who does not have access to the document and may not know the circumstances of its creation would appear to place the requestor at a distinct disadvantage. Yet, in Steffen, Cranford, and Summers, the Supreme Court held that personal notes do not qualify as public records, and in Welsh-Huggins, the court held that requestors have the initial burden to establish requested records are identifiable public records. As an appellate court in this state, “we are bound to follow the decisions of the Supreme Court of Ohio, which are the prevailing law unless and until reversed or overruled.” Kelsey-Hayes Co., 2006-Ohio-428, at ¶ 4 (10th Dist.), citing State v. Tinker, 2005-Ohio-2289 (10th Dist.). Accordingly, while it may be logical to place the burden of proof on the records custodian to demonstrate a document is a personal note, that currently is not the law in Ohio. No. 25AP-895 13 {¶ 31} Forhan next takes issue with various aspects of the court’s ruling that he failed to carry his burden to demonstrate the interview notes were public records. In his sixth cross-assignment of error, Forhan contends the trial court erred by failing to find that the interview notes were created for a purpose other than the convenience of the individual notetaker. Forhan claims the applicable retention agreements “required Perez Morris to create the Interview [Notes].” (Forhan’s Cross-Appellant’s Brief at 25-26.) {¶ 32} The House asked the Attorney General to appoint special counsel to investigate and report on both the Cherry and Forhan matters. The Attorney General retained Perez Morris to serve as special counsel on both matters and executed retention agreements with Perez Morris for each assignment. The retention agreements obligated Perez Morris to perform its work as special counsel “in a manner consistent with accepted standards of practice in the legal profession.” (Forhan’s Aug. 4, 2025 Response, Ex. I-D at 2; Forhan’s Submission of Evidence, Ex. P, at 2.) Forhan notes that Prof.Cond.R. 1.1 required the Perez Morris attorneys to “use methods and procedures meeting the standards of competent practitioners.” (Forhan’s Cross-Appellant’s Brief at 27.) See Prof.Cond.R. 1.1 (stating that “[a] lawyer shall provide competent representation to a client,” and explaining that competent representation “requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation”). (Emphasis in original.) {¶ 33} Forhan claims that, because the House hired Perez Morris to investigate each matter and Perez Morris interviewed various witnesses during its investigation, Prof.Cond.R. 1.1 required the Perez Morris attorneys to “document[] the content of the witness interviews.” (Forhan’s Cross-Appellant’s Brief at 27.) As such, Forhan contends the attorneys created their interview notes “as an operational matter necessity, not for personal convenience.” (Forhan’s Cross-Appellant’s Brief at 28.) {¶ 34} While the House requested, and the Attorney General appointed, Perez Morris to serve as special counsel to investigate the Cherry and Forhan matters, the House and Attorney General left the manner and methods of each investigation to the discretion of the firm. Indeed, no provision in the assignment letters or retention agreements expressly required the Perez Morris attorneys to take notes during the witness interviews. The House filed Sarah Perez’s affidavit in the trial court, and Perez explained that during the interviews the “investigating attorneys took their own notes for their own personal use.” No. 25AP-895 14 (Perez Aff. at ¶ 13.) Perez stated the notes were “intended for personal use and the convenience of the individual interviewer,” and that the attorneys “used their own notes as needed to recall information from interviews.” (Perez Aff. at ¶ 14.) {¶ 35} Thus, Perez’s affidavit demonstrated the Perez Morris attorneys took notes during the witness interviews for their own personal use to aid their ability to recall statements from the interviews. Arguably, an attorney with perfect memory would have had no need to create such notes. Forhan’s tenuous argument regarding the retention agreements and the rules of professional conduct did not amount to clear and convincing evidence establishing that the House or Attorney General required the Perez Morris attorneys to create the interview notes. {¶ 36} Based on the foregoing, we overrule Forhan’s sixth cross-assignment of error. {¶ 37} In his second cross-assignment of error, Forhan asserts the trial court erred by failing to recognize that the interview notes were not personal notes because other officials had access to the notes. Forhan bases his argument in this regard on the fact that the retention agreements required Perez Morris to turn certain documents over to the Attorney General and/or the House upon request. {¶ 38} The retention agreements stated that all materials “commissioned or gathered by Special Counsel or in Special Counsel’s possession that fulfilled an obligation of this Retention Agreement shall be considered the property of the Attorney General and the [House] and must be turned over to the Attorney General or the [House] immediately upon request.” (Forhan’s Submission of Evidence, Ex. P at 5; Forhan’s Aug. 4, 2025 Resp., Ex. I-D at 5.) Forhan relies on his argument in his sixth cross-assignment of error to claim that the retention agreements required the Perez Morris attorneys to create the interview notes. However, we have already rejected that argument. Forhan points to no other evidence to establish that the interview notes were materials commissioned by, gathered by, or in the possession of the Perez Morris attorneys because they fulfilled an obligation of the retention agreements. As such, he fails to demonstrate that the retention agreements required the attorneys to turn their interview notes over to the House or Attorney General upon request. Moreover, nothing in the record indicates that the Attorney General or the House asked Perez Morris to produce the interview notes at any point prior to Forhan’s public records request. No. 25AP-895 15 {¶ 39} Forhan also claims it was “likely” that “other Perez Morris interviewers, had access to the Interview [notes].” (Forhan’s Cross-Appellant’s Brief at 11.) Perez explained in her affidavit that the attorney investigators each took their “own, separate notes related to the interviews [they] attended.” (Perez Aff. at ¶ 7.) Perez further stated that she did not “access or review” the other attorney’s notes and that, to her knowledge, the other attorneys “did not share their notes with anyone and did not access or rely upon each other’s notes.” (Perez Aff. at ¶ 7-8, 12-13.) Perez explained each attorney used their own interview notes “to draft the section of the report relaying the facts gathered in the interview,” and stated that “[b]ecause each attorney ha[d] their own personal notes from these interviews, there [was] not a reason to consult the notes of anyone else in the drafting process.” (Perez Aff. at ¶ 18.) {¶ 40} Forhan contends that, because the House did not present affidavits from every Perez Morris attorney who worked on the Cherry and Forhan matters, the House did not dispel the possibility that another attorney besides Perez may have accessed other attorney’s interview notes. Forhan’s argument in this regard misconstrues who had the burden of proof on this issue. As noted, Forhan had the burden to establish the interview notes were public records and not personal notes. Thus, although it did not have the burden to do so, the House presented some evidence indicating that the Perez