An Ashland County judge failed to justify sealing the divorce records of former U.S. Senate candidate and state Treasurer Josh Mandel and his ex-wife, the Supreme Court of Ohio ruled today.

In a per curiam opinion, the Supreme Court ruled Ashland County Domestic Relations Court Judge Ronald Forsthoefel did not cite the proper legal authority to seal documents related to Josh and Ilana Mandel’s April 2020 marriage dissolution petition. The Court granted the Cincinnati Enquirer’s request to overturn Judge Forsthoefel’s order and directed the judge to conduct a thorough review to determine what records are public.

The opinion stated that the Rules of Superintendence for the Courts of Ohio require a judge to provide clear and convincing evidence that the need to seal court records outweighs the right of the public to access records. Judge Forsthoefel did not hold a hearing after he agreed to seal the records, and his order “does not illuminate his reasoning” for sealing, the Court concluded.

Chief Justice Maureen O’Connor and Justices Patrick F. Fischer, Michael P. Donnelly, Melody Stewart, and Jennifer Brunner joined the per curiam opinion.

In a concurring opinion, Justice Sharon L. Kennedy agreed that Judge Forsthoefel’s order should be overturned, but stated that the issue should have been decided using R.C. 149.43, the Ohio Public Records Act, rather than the Court-created Rules of Superintendence:

“This court has egregiously overreached, exceeding the limits of its enumerated constitutional power by using its own rules to exempt itself and lower courts from the Public Records Act,” she wrote.

She explained that the Ohio Constitution prohibits the Supreme Court from creating rules that enlarge, abridge, or modify any substantive right, and that the superintendence rules abridge the right of the people to view public records under the Public Records Act. Nonetheless, Justice Kennedy concurred in the majority’s judgment, noting that the Enquirer’s decision to seek the records under the superintendence rules was understandable given the Court’s precedent.

Justice R. Patrick DeWine joined Justice Kennedy’s opinion.

Couple Requests Documents Be Sealed
When the Mandels submitted their marriage dissolution petition, they filed a motion to seal 22 documents related to their case, including the dissolution petition, the separation agreement, and the shared parenting plan. The motion described Josh Mandel as the former state treasurer and member of the Ohio House of Representatives and Ilana as a member of a “very public family in the state.” The two stated that sealing was necessary to preserve the confidentiality of personal financial information and to protect the safety of their minor children. The motion cited no legal authority to support the sealing.

Judge Forsthoefel described the motion as “well taken” and sealed 21 of the 22 documents in the case on the day it was filed. He indicated one document would not be sealed because it had not been filed with the court. His order noted the documents would be unsealed “only upon further order” of his court.

In February 2021, Mandel announced his candidacy for the U.S. Senate. That same month the Enquirer sought a writ of prohibition to prevent Judge Forsthoefel from sealing the divorce records, and a writ of mandamus ordering the judge to review each document he sealed and release those considered public under the court rules.

Mandel’s staff provided the Enquirer with some of the documents related to the dissolution. Judge Forsthoefel noted that the information contained in the newspaper’s article was consistent with the documents that he had sealed. He requested that the Supreme Court dismiss the case as moot because the Enquirer had the documents it sought.

The Enquirer objected, noting that it received redacted copies of the Mandels’ case documents and that its request was to inspect the records in their entirety. The Enquirer noted that it did not object to the court restricting access to personal information, such as Social Security numbers and financial account numbers, which is exempt from disclosure under the public records rules.

Supreme Court Examined Sealing Requirements
The per curiam opinion noted that under Sup.R. 45, a party in a case can request that a court restrict public access to a case document or information in a document. The rule allows a court to restrict access “if it finds by clear and convincing evidence that the presumption of allowing public access is outweighed by a higher interest” after considering factors such as the security of the person requesting restriction or the potential for the invasion of the requester’s privacy. When a court agrees to restrict access, the rule requires the court to use “the least restrictive means available.”

The Enquirer argued that Judge Forsthoefel did not provide any evidence for sealing the records and that he did not use the least restrictive means, such as redacting only the information in the documents that the Mandels were entitled to keep private.

The Court opinion noted neither Josh nor Ilana Mandel submitted an affidavit explaining why sealing the records was necessary. Josh Mandel’s attorney fleshed out the Mandels’ argument for restricting access in his motion to seal the record, but the Court noted that an attorney’s argument is “not evidence.”

“The sweeping nature of Judge Forsthoefel’s sealing order is also at odds with Sup.R. 45(E)(3)’s requirement that he use the ‘least restrictive means available.’ Not only does his order fail to explain why he thought the wholesale sealing of 21 case documents was the only legally proper way of resolving the Mandels’ motion, it also fails to disclose whether he considered a less restrictive means of limiting public access, such as redaction,” the opinion stated.

The Court ordered the judge to ”conduct a proper review” of the documents, under court rules.

2021-0203. State ex rel. Cincinnati Enquirer v. Forsthoefel, Slip Opinion No. 2022-Ohio-3580.

Please note: Opinion summaries are prepared by the Office of Public Information for the general public and news media. Opinion summaries are not prepared for every opinion, but only for noteworthy cases. Opinion summaries are not to be considered as official headnotes or syllabi of court opinions. The full text of this and other court opinions are available online.

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