State ex rel. Ames v. Dublikar, Beck, Wiley & Mathews , 2022 Ohio 3990 ( 2022 )

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
ex rel. Ames v. Dublikar, Beck, Wiley & Mathews, Slip Opinion No. 2022-Ohio-3990.]
NOTICE
This slip opinion is subject to formal revision before it is published in an
advance sheet of the Ohio Official Reports. Readers are requested to
promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
South Front Street, Columbus, Ohio 43215, of any typographical or other
formal errors in the opinion, in order that corrections may be made before
the opinion is published.
SLIP OPINION NO. 2022-OHIO-3990THE STATE EX REL. AMES, APPELLANT, v. BAKER, DUBLIKAR, BECK, WILEY &
MATHEWS ET AL., APPELLEES.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as State ex rel. Ames v. Dublikar, Beck, Wiley & Mathews, Slip
Opinion No. 2022-Ohio-3990.]
Mandamus—Public records—Private entities may be subject to public-records law
under quasi-agency test—Under Civ.R. 12(B)(6), a court must presume that
a complaint’s factual allegations are truthful and draw all reasonable
inferences in the nonmovant’s favor—Court of appeals departed from the
Civ.R. 12(B)(6) standard—Judgment reversed and cause remanded.
(No. 2022-0170—Submitted July 12, 2022—Decided November 10, 2022.)
APPEAL from the Court of Appeals for Portage County, No. 2021-P-0046.
_________________
Per Curiam.
{¶ 1} Appellant, Brian M. Ames, appeals the judgment of the Eleventh
District Court of Appeals dismissing his petition for a writ of mandamus against
SUPREME COURT OF OHIO
appellees, Baker, Dublikar, Beck, Wiley & Mathews (“the Baker firm”), Public
Entity Risk Services of Ohio (“PERSO”), and the Ohio Township Association Risk
Management Authority (“OTARMA”). Ames brought his action under Ohio’s
Public Records Act, R.C. 149.43, to obtain unredacted copies of invoices that the
Baker firm had prepared for PERSO. The court of appeals dismissed Ames’s
petition, determining that he was not entitled to the writ, because the information
the Baker firm had redacted was protected by the attorney-client privilege. We
conclude that the court of appeals did not properly apply the standard of review in
dismissing Ames’s petition, and we therefore reverse the judgment and remand this
cause to the court of appeals with instructions that it conduct an in camera
inspection of the contested invoices.
I. BACKGROUND
{¶ 2} Ames set forth the following facts in his amended petition. Ames is
a resident of Portage County, in which Rootstown Township is located. OTARMA
is a governmental risk-sharing pool with Ohio townships, including Rootstown
Township, as members. PERSO is an Ohio for-profit corporation that provides
claim-handling services to OTARMA and its members. And the Baker firm
provides legal services to PERSO, documenting the services it provides in invoices
addressed to PERSO.
{¶ 3} Prior to making the public-records request that is the basis for this
case, Ames had brought multiple actions against the Rootstown Township Board
of Trustees (“Rootstown”) alleging violations of Ohio’s Open Meetings Act, R.C.
121.22. In response to those actions, Rootstown filed three claims with PERSO.
In turn, the Baker firm provided legal services to PERSO related to those claims.
{¶ 4} In April 2021, Ames emailed a public-records request to James F.
Mathews, an attorney at the Baker firm who had defended Rootstown against
Ames’s prior actions, and David P. McIntyre, the Rootstown Township Board of
Trustees’ chairman. Ames sought “copies of the invoices for legal services
2
January Term, 2022
provided to [Rootstown] by [OTARMA] and [PERSO] for [nine] cases.” The
Baker firm provided the invoices but redacted the narrative portions, citing legal
authority holding that the narratives were protected from disclosure under the
attorney-client privilege. After Ames received the redacted records, he emailed a
second records request to the Baker firm and McIntyre specifying that he wanted
unredacted copies of the records he had originally received. The Baker firm refused
his request for unredacted records.
{¶ 5} Ames then filed a petition in the court of appeals, seeking a writ of
mandamus ordering appellees to produce unredacted copies of the records he had
requested. Each appellee moved for dismissal under Civ.R. 12(B)(6). The court of
appeals determined that appellees were subject to the Public Records Act despite
their private-party status, but it nevertheless dismissed Ames’s petition on the
ground that the narrative portions of itemized attorney-fee billing statements
containing descriptions of legal services performed by counsel for a client are
protected by the attorney-client privilege. See 2022-Ohio-171, ¶ 19, 39. This
appeal followed.
II. ANALYSIS
A. PERSO is not immune from suit1
{¶ 6} As a threshold matter, PERSO argues that a private entity like itself
should not be subject to the Public Records Act simply because it conducts business
with a public entity. PERSO insists that in reaching a contrary conclusion, the court
of appeals misread this court’s decision in State ex rel. Armatas v. Plain Twp. Bd.
of Trustees, 163 Ohio St.3d 304, 2021-Ohio-1176, 170 N.E.3d 19.2
1. OTARMA and the Baker firm do not argue, as PERSO does, that they are immune from suit
under the Public Records Act.
2. PERSO also notes this court’s citation in Armatas to State ex rel. Bell v. Brooks, 130 Ohio St.3d
87, 2011-Ohio-4897, 955 N.E.2d 987. In Bell, we determined that a joint self-insurance pool was
not the functional equivalent of a public office. Id. at ¶ 26. But the court of appeals here rested its
3
SUPREME COURT OF OHIO
{¶ 7} In Armatas, the relator brought a mandamus action against a
township’s trustees, seeking the production of invoices for legal services that had
been performed on the township’s behalf. Armatas involved the same entities that
Ames has sued here: the Baker firm had been hired and supervised by PERSO on
behalf of OTARMA, to which Plain Township belonged. In determining whether
the township could be required to produce legal-services invoices, this court applied
the quasi-agency test. Armatas at ¶ 14-22. Traditionally, that test required—in
order for a relator in an R.C. 149.43 mandamus action to be entitled to relief—a
determination that “(1) a private entity prepare[] records in order to carry out a
public office’s responsibilities, (2) the public office [be] able to monitor the private
entity’s performance, and (3) the public office ha[ve] access to the records for this
purpose,” State ex rel. Mazzaro v. Ferguson, 49 Ohio St.3d 37, 39, 550 N.E.2d 464(1990). But based on our survey of the caselaw in Armatas, we applied a modified
version of this test and concluded that “when a requester has adequately proved the
first prong of the quasi-agency test, the requester has met his burden: proof of a
delegated public duty establishes that the documents relating to the delegated
functions are public records,” id. at ¶ 16.
{¶ 8} In Armatas, we determined that the township’s activities satisfied the
modified test. Id. at ¶ 22-23 (intervening subheading) (“The invoice at issue comes
under the township’s jurisdiction and documents procedures and operations that the
township delegated to OTARMA and PERSO”). We reasoned that PERSO’s
decision to hire attorneys for the township constituted a delegation of the
township’s duty to prosecute and defend itself against lawsuits, which necessarily
involves hiring and supervising attorneys. Id. at ¶ 19-20. And the invoices were a
means for the township, as the client of the lawyers hired by PERSO, to “protect
the public interest by knowing what and how its lawyers [were] being paid, to
decision on the quasi-agency test, not the functional-equivalency test. We accordingly limit our
discussion to the quasi-agency test.
4
January Term, 2022
ensure the quality of the representation.” Id. at ¶ 24. Although the township did
not possess the invoices, we nevertheless found that the invoices were “under the
township’s jurisdiction,” id.; see R.C. 149.011(G).
{¶ 9} It follows from Armatas that Rootstown has delegated a public duty
to PERSO. Here, as in Armatas, PERSO provides claim handling for OTARMA
and the Baker firm provides legal services to PERSO in connection with actions
that Ames brought against Rootstown. And the records in question relate to the
delegation of that duty.
{¶ 10} In Armatas, the relator sued the public body while here, Ames has
sued PERSO, OTARMA, and the Baker firm—but that distinction does not matter.
As this court recognized in Armatas, we have extended the quasi-agency test to
private entities, requiring them to produce public records. Id., 163 Ohio St.3d 304,
2021-Ohio-1176, 170 N.E.3d 19, at ¶ 15 (citing two prior decisions). Additionally,
the Public Records Act authorizes a mandamus action against either “a public office
or the person responsible for the public record,” R.C. 149.43(C)(1)(b). This
provision reflects the Public Records Act’s “intent to afford access to public
records, even when a private entity is responsible for the records.” Mazzaro, 49
Ohio St.3d at 39, 550 N.E.2d 464.
{¶ 11} In State ex rel. Toledo Blade Co. v. Ohio Bur. of Workers’ Comp.,
106 Ohio St.3d 113, 2005-Ohio-3549, 832 N.E.2d 711, this court concluded that a
newspaper company properly brought a mandamus action against two private
entities, reasoning that they were “ ‘person[s] responsible’ ” for the records in
question because all elements of the traditional, tripartite quasi-agency test were
met. (Brackets added.) Id. at ¶ 20-21, quoting R.C. 149.43(C). Under Toledo
Blade, then, PERSO may be sued under the Public Records Act when, as here, the
quasi-agency test is satisfied.
{¶ 12} It is true that PERSO did not prepare the records in question here;
the Baker firm did. Even so, this does not cut in PERSO’s favor. The relationships
5
SUPREME COURT OF OHIO
in this case among Rootstown, OTARMA, PERSO, and the Baker firm present a
more complicated picture than the paradigmatic case featuring records prepared and
possessed by a sole private entity. See, e.g., Mazzaro (private accounting firm
prepared and possessed the records). Given that PERSO is the recipient of records
relating to a public duty that Rootstown delegated to it, we conclude that it is a
proper party to this suit.
{¶ 13} Further, we decline to entertain PERSO’s request to revisit our
opinion in Armatas. PERSO argues that by jettisoning the second and third prongs
of the quasi-agency test, this court broke with precedent and opened the floodgates
to litigation against private entities. PERSO misses the mark. In assigning primacy
to the first prong in Armatas, we did not chart a new course; rather, as the opinion
says, we simply followed the logic of this court’s earlier decisions applying the
quasi-agency test. For instance, Armatas cites State ex rel. Gannett Satellite
Information Network v. Shirey, 78 Ohio St.3d 400, 403-404, 678 N.E.2d 557(1997), in which we determined that a city’s inability to either monitor a
consultant’s performance or access the consultant’s records was not dispositive.
Armatas, 163 Ohio St.3d 304, 2021-Ohio-1176, 170 N.E.3d 19, at ¶ 17. And as
Armatas makes clear, this court has long permitted mandamus actions against
private entities under the Public Records Act. Moreover, PERSO does not cite any
cases to support its speculation that Armatas opened the floodgates. If that trickle
eventually turns into a flood, then the General Assembly can address it. See Kish
v. Akron, 109 Ohio St.3d 162, 2006-Ohio-1244, 846 N.E.2d 811, ¶ 44 (observing
that the General Assembly may alter—and in the past has altered—the Public
Records Act in response to a judicial interpretation it disagrees with).
{¶ 14} In summary, PERSO is not immune from a lawsuit brought under
the Public Records Act.
6
January Term, 2022
B. The court of appeals departed from the Civ.R. 12(B)(6) standard
{¶ 15} Under existing caselaw, an invoice for a legal service provided to a
public-office client is a public record, with the caveat that the narrative portion of
the invoice describing the service is protected from disclosure by the attorney-client
privilege. See Armatas at ¶ 13, citing State ex rel. Anderson v. Vermilion, 134 Ohio
St.3d 120, 2012-Ohio-5320, 980 N.E.2d 975, ¶ 13, and State ex rel. Dawson v.
Bloom Carroll Local School Dist., 131 Ohio St.3d 10, 2011-Ohio-6009, 959 N.E.2d
524, ¶ 26-28. Drawing on this precedent, the court of appeals concluded that
Ames’s request for unredacted invoices had failed to state any claim upon which
relief could be granted and found appellees’ motions to dismiss well-taken. 2022-
Ohio-171 at ¶ 35-44. In reaching this conclusion, the court of appeals departed
from the Civ.R. 12(B)(6) standard.
{¶ 16} As Ames correctly observes, a Civ.R. 12(B)(6) motion limits a court
to testing the sufficiency of the complaint and the materials incorporated into it.
State ex rel. Hanson v. Guernsey Cty. Bd. of Commrs., 65 Ohio St.3d 545, 548, 605
N.E.2d 378 (1992); State ex rel. Peoples v. Schneider, 159 Ohio St.3d 360, 2020-
Ohio-1071, 150 N.E.3d 946, ¶ 9. In this case, the materials incorporated into
Ames’s petition included redacted invoices sent to Ames by the Baker firm.
{¶ 17} In opposing appellees’ motions to dismiss, Ames argued to the court
of appeals that it was required to presume the truth of his allegation that “[t]here is
no attorney-client privileged information reflected on the invoices.” But the court
of appeals did the opposite: it concluded that the invoices contained privileged
information. 2022-Ohio-171 at ¶ 41, 53. That was error, because under Civ.R.
12(B)(6), a court must presume a complaint’s factual allegations are truthful and
draw all reasonable inferences in the nonmovant’s favor. See Clark v. Connor, 82
Ohio St.3d 309, 311, 695 N.E.2d 751 (1998).
{¶ 18} Because the court of appeals misapplied the Civ.R. 12(B)(6)
standard, we must reverse and remand for further proceedings. In doing so, we
7
SUPREME COURT OF OHIO
instruct the court of appeals on remand to conduct an in camera inspection of the
contested invoices. See State ex rel. Lanham v. DeWine, 135 Ohio St.3d 191, 2013-
Ohio-199, 985 N.E.2d 467, ¶ 22 (“the court has consistently required an in camera
inspection of records before determining whether the records are excepted from
disclosure”). Appellees’ suggestion that no such inspection is warranted because
Ames did not ask for one in his petition is not supported by apposite authority.
III. CONCLUSION
{¶ 19} We reverse the judgment of the court of appeals and remand the
cause with instructions that the court of appeals conduct an in camera inspection of
the contested invoices.
Judgment reversed
and cause remanded.
O’CONNOR, C.J., and KENNEDY, DEWINE, DONNELLY, STEWART, and
BRUNNER, JJ., concur.
FISCHER, J., dissents.
_________________
Brian M. Ames, pro se.
Baker, Dublikar, Beck, Wiley & Mathews, James F. Mathews, and Andrea
K. Ziarko, for appellee Baker, Dublikar, Beck, Wiley & Mathews.
Buechner, Haffer, Meyers & Koenig Co., L.P.A., Robert J. Gehring, and
Saba N. Alam, for appellee Ohio Township Association Risk Management
Authority.
Reminger Co., L.P.A., Patrick Kasson, and Thomas Spyker, for appellee
Public Entity Risk Services of Ohio.
_________________
8