Attorney suing Lorain County prosecutor over public records asks judge to reject secrecy arguments

An attorney seeking records related to a controversial settlement between the Lorain County Prosecutor's Office and a former employee there has asked a judge to reject Prosecutor J.D. Tomlinson's arguments that records related to the settlement should remain secret and out of his opponents' hands. "The ability of the public to 'monitor the conduct of government' and 'to expose government activity to public scrutiny' would be thwarted if a public official, like Tomlinson, need only swear out a self-serving affidavit, after covering up/lying about the existence of a public record, and state that it need not be produced because it is sought by a political opponent to use against him," attorney Jonathan Rosenbaum wrote on behalf of his client, James Barilla of Avon Lake. The 18-page document laying out Rosenbaum's argument against an April 5 filing by Tomlinson's attorneys was filed Friday in Lorain County Common Pleas Court. "I haven't reviewed the motion or spoken to my lawyer about it, so I'm not at liberty to comment," Tomlinson said Friday. In the ongoing controversy over a $100,000 payment to former employee Jennifer Battistelli, Tomlinson on April 5 asked Visiting Judge Thomas Teodosio not to allow the public release of a potentially damaging document filled with embarrassing "accusations." Rosenbaum filed suit on behalf of Barilla, a Republican, in February against Tomlinson and his Civil Division chief, Dan Petticord — both Democrats — and Republican county commissioners Jeff Riddell, David Moore and Michelle Hung. He is seeking the release of public records related to the Battistelli settlement. The Chronicle-Telegram made a public records request on April 11 for the document referenced in Tomlinson's filing. As of Friday, the newspaper had not received it. Under Ohio law, a public record is defined as "received by, or (coming under) the jurisdiction of" a public office and must be provided upon request, according to the Ohio Attorney General's Office. Nor has Rosenbaum received the public records he is seeking, he wrote. In his filing on Friday, Rosenbaum wrote that Tomlinson's arguments failed to comply with Ohio law, meaning he can't apply for a so-called "protective order" to try and keep the information secret. Tomlinson and the defendants in the suit "have made no effort to resolve this matter through discussion" with Rosenbaum as required by law. Tomlinson also allegedly admitted he violated Ohio's Public Records Act "and that their prior responses are false," Rosenbaum argued. The violations alleged by Rosenbaum included not releasing cellphone records, computer data, records detailing the allegations made by Battistelli that resulted in the settlement, records giving the identity of the county employee whose conduct was responsible for the settlement, among others. Multiple follow-up requests by Barilla and Rosenbaum were rejected by Tomlinson's office, Rosenbaum wrote. Tomlinson, Petticord and the Board of Commissioners "seek a protective order relieving them from their statutory obligation to produce the document(s) that they once claimed they did not possess or even existed," he wrote. There also is no exception to state open records law that gives Tomlinson a way out of his obligation "to produce a public record because it may cause him political embarrassment or is oppressive," Rosenbaum wrote. Tomlinson also held back other public records sought by Barilla and Rosenbaum, the latter wrote in his filing. Battistelli resigned in August after she reported allegations of discrimination during her time with Tomlinson's office. The allegations were not detailed in a settlement agreement between Battistelli and Tomlinson. Tomlinson has declared any allegations of discrimination "not true" and that the allegations in the document in question "patently false." He allowed the settlement to avoid the cost, stress and resources required by a court case, he has contended. The Board of Commissioners voted to appropriate the money for the settlement in October. Critics have questioned why the settlement was not paid by the county's insurance plan, but out of Tomlinson's own budget. Tomlinson has said in court filings that the funds were available in his budget. Tomlinson is up for reelection in November, challenged by Republican Tony Cillo, a former chief assistant prosecutor for the county. Barilla, Rosenbaum and Cillo "oppose me politically," Tomlinson wrote in court documents in response to Barilla's lawsuit, giving another reason why he is seeking the judge's permission to keep the document out of the public eye. That argument doesn't make sense, Rosenbaum wrote in Friday's filing. Barilla "is not the candidate running against Tomlinson and Tomlinson's claim otherwise is another blatant falsehood," he wrote. "The fact that Tomlinson believes some or all of the allegations to be false is irrelevant," he wrote. "He obviously thought that they impugned his reputation and the integrity of his office to a sufficient degree that he compromised the claim for the large sum of $100,000.00 of taxpayer funds." Another reason Rosenbaum and Tomlinson are at odds with each other: Rosenbaum is the subject of a federal lawsuit by Nancy Smith and Joseph Allen. As a Lorain County assistant prosecutor, Rosenbaum led their successful prosecution on child sexual abuse in the controversial 1990s Head Start case. After being elected prosecutor in 2020, Tomlinson didn't oppose a new trial for Allen and Smith and successfully petitioned county Common Pleas Judge Chris Cook to dismiss the charges against them in 2022. Rosenbaum has denied any wrongdoing and asked a federal judge to dismiss the lawsuit. He has so far declined to comment on the matter except in court filings. Petticord is a first-time candidate in November, seeking a county judgeship in a race against Republican Giovanna Scaletta-Bremke. Contact Dave O'Brien at (440) 329-7129 or dobrien@chroniclet.com.