Hurt v. Liberty Twp.

[Cite as Hurt v. Liberty Twp., 2017-Ohio-7820.]
wCOURT OF APPEALS
DELAWARE COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
JAMES HURT, ET AL : Hon. Patricia A. Delaney, P.J.
: Hon. W. Scott Gwin, J.
Plaintiffs-Appellees : Hon. John W. Wise, J.
:
-vs- :
: Case No. 17 CAI 05 0031
LIBERTY TOWNSHIP, DELAWARE :
COUNTY, OHIO :
: OPINION
Defendant-Appellant
CHARACTER OF PROCEEDING: Civil appeal from the Ohio Court of Claims,
Case No. 2016-00856-PQ
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: September 22, 2017
APPEARANCES:
For Plaintiffs-Appellees For Defendant-Appellant
JAMES HURT STEPHANIE SCHOOLCRAFT
2081 Bunty Station Road DAVID A. RIEPENHOFF
Delaware, OH 43015 400 South Fifth Street, Suite 200
Columbus, OH 43215-5095
MARK GERGER
5212 Sheffield Avenue
Powell, OH 43065
Delaware County, Case No. 17 CAI 05 0031 2
Gwin, J.
{¶1} Respondent-appellant Liberty Township, Delaware County, Ohio [“Liberty
Township”] appeals from the March 29, 2017 final order and entry of the Ohio Court of
Claims adopting the Special Master’s Report and Recommendation that granted the
public record request of Requestor-appellees James Hurt [“Hurt”] and Mark Gerber
[“Gerber]1.
Facts and Procedural History
{¶2} This action is based on public records requests for interview notes taken by
a private person statutorily designated to carry out an official function, the investigation
and preparation of charges for removal of a township fire chief.
{¶3} On March 21, 2016, the Board of Trustees ("Board") of Liberty Township
passed Resolution #16-0321-11, "to designate Douglas Duckett [“Duckett”] to investigate
the conduct of Fire Chief Tim Jensen and prepare the necessary charges pursuant to
Section 505.38 of the Ohio Revised Code * "."
{¶4} R.C. 505.38 defines a process that is preliminary to the removal of an
employee of the fire department or the fire chief. Pursuant to R.C. 505.38(A), an
employee or a fire chief continues in office until removed from that office. In order to be
removed from that office, the appointing authority must follow the removal proceedings
contained in R.C. 733.35 to 733.39. Consistent with R.C. 505.38(A), a board of township
trustees may institute removal proceedings of the employee or fire chief when it has
1 Ohio Public Employer Labor Relations Association, The Ohio Township Association and the
Coalition of Large Ohio Urban Townships have filed Amicus briefs on Liberty Township’s behalf. Ohio
Collation for Open Government has filed an amicus brief on behalf of the Requestor-appellees for Open
Government.
Delaware County, Case No. 17 CAI 05 0031 3
reason to believe the employee or fire chief is guilty of, "... bribery, misfeasance,
malfeasance, nonfeasance, misconduct in office, gross neglect of duty, gross immorality,
or habitual drunkenness..." in the performance of the fire chief's official duties. R.C.
733.35.
{¶5} The board may designate a private citizen or the fire chief to investigate any
alleged misconduct by the employee or the fire chief. The fire chief or the private citizen
acting as the investigator may prepare any necessary charges in accordance with R.C.
733.35 to 733.39. R.C. 505.38(A). The investigator will prepare charges if the
investigation concludes the employee or the fire chief has violated general or specific
standards of conduct. R.C. 733.35. The charges written by the investigator must include
detailed statements of alleged guilt, and those charges are then filed with the board and
served upon the employee or the fire chief. Id. Once the charges are filed, the charges
must be heard at the next regular meeting of the Board unless the employee or fire chief
seeks an extension of time. R.C. 733.36. The Board of Trustees acts as a quasi-judicial
authority during the hearing.
{¶6} As part of Duckett's investigation, Duckett created and maintained notes
related to sixteen interviews of Township trustees, Township employees, and others
(defined in the Complaint at ¶ 5, 6 and 8 as the "Duckett notes").2
2 The Log of Project Work in Duckett's Invoice to Liberty Township, Requesters' Exhibit B, reflects
interviews conducted on March 24, 2016 with "Cathy Buehrer, Trustee Eichhorn, FF Chalaco Clark, and
BC Bill Piwtorek," on March 25, 2016 with "BC Jim Reardon, FE Scott Simmons, Trustee Leneghan,and
BC Duane Price," on March 29, 2016 with "Cathy Buehrer," on March 30, 2016 with "Trustee Thomas
Mitchell and Township Administrator Matt Huffman," on April 5, 2016 with "Ryan Hanf, Mickey Smith, Jim
Cirigliano, and Warren Yamarick, M.D.," on April 22, 2016 with "former Fiscal Officer Mark Gerber and Fire
Chief Tim Jensen," and on April 25, 2016 with "Fire Chief Jensen."
Delaware County, Case No. 17 CAI 05 0031 4
{¶7} Duckett submitted the final copy of his report to Attorney Kim on May 10,
2016. The Board then directed Duckett to prepare charges against Jensen, which he
filed on June 6, 2016. (Trustee Eichhorn Affidavit at 5-6).
{¶8} A three-day administrative hearing was scheduled for the Board to hear
the charges against Jensen, beginning August 8, 2016. (Trustee Eichhorn Affidavit, ¶
7). Prior to the administrative hearing before the Board, Jensen's counsel filed a
subpoena for the "notes Mr. Duckett took during the interviews of witnesses during his
investigation.” (Trustee Eichhorn Affidavit, ¶ 7-8). Duckett objected to the production
of the notes. (Id. at ¶ 8-9; Trustee Leneghan Affidavit, ¶ 8-9; Trustee Mitchell Affidavit,
¶ 8-19).
{¶9} At the beginning of the hearing on August 8, the Board of Trustees
heard arguments regarding whether or not it should grant attorney Bittner's
subpoena. (Trustee Eichhorn Affidavit, ¶ 10; Trustee Leneghan Affidavit, ¶ 10;
Trustee Mitchell Affidavit, ¶10). After the Board of Trustees heard these
arguments, as well as arguments in favor and in opposition of various procedural
matters, the Board adjourned to executive session. (Id.).
{¶10} The Board considered the subpoena, "and announced it was
granting Mr. Bittner's subpoena and requiring Mr. Duckett to produce the notes
he took during witness interviews to Mr. Bittner.” (Trustee Eichhorn Affidavit, ¶10-
11). The individual trustees and the Township administrator assert in their
affidavits that, other than the mechanical process of handing the subpoenaed
notes to Jensen's counsel at the August 8, 2016 hearing, the Duckett notes were
Delaware County, Case No. 17 CAI 05 0031 5
never in their individual physical possession, and were not introduced into
evidence at the hearing. (Id. at ¶12-15).
{¶11} During the third day of the hearing, August 10, 2016, the Board of
Trustees, Bittner, and Jensen agreed to pursue mediation and the administrative
hearing was stayed pending the outcome of mediation. (Trustee Eichhorn
Affidavit, ¶ 19). The parties engaged in mediation on August 25, 2016, and came
to a settlement agreement where the Board agreed to dismiss the charges
against Jensen and Jensen agreed to become a Fire Prevention Officer for the
Township. (Id. at ¶ 20). Because of the settlement, the Board did not make any
findings or issue a decision based upon the evidence presented at the August
8-10, 2016 hearing, (Id. at ¶ 21).
{¶12} On May 5, 2016, Hurt made the first of his and Requester Gerber’s
public records requests to Township Administrator Matt Huffman for various
items, including the Duckett notes. Over the next three months, Huffman
provided some of the requested items, but responded that the interview notes
were kept by Duckett as personal records and therefore did not meet the
definition of "records."
{¶13} On September 2, 2016, Huffman sent an e-mail to Hurt relaying the
Township legal counsel's advice that "[t]hose notes are not a public record since
the Township does not have possession of those documents. The documents
were never introduced as exhibits and are not in the record. They were given to
Mr. Bittner as a result of a subpoena.” (Requesters' Exhibit C). On October 12,
2016, Hurt and Gerber sent a joint e-mail to both Huffman and Duckett, repeating
Delaware County, Case No. 17 CAI 05 0031 6
their requests for the Duckett notes. On October 13, 2016, Duckett sent an e-
mail to Gerber that stated:
You are incorrect as a matter of law that I am "holding public
records on behalf of Liberty Township. . . ."
Under the express terms of Section 149.43(A)(1) of the Ohio
Revised Code, "Public record means records kept by any public
office, including... township[s]. . . .” I am not a "public office"; I am
an attorney with a private law practice. My records are thus not
"public records.” This has nothing to do with attorney-client
privilege; none of my records are public records by statutory
definition.
Accordingly, I am not providing any documents in response to
your request. You need to focus your request on the public office,
i.e., Liberty Township.
(Requesters' Exhibit F). On September 23, 2016, Township employee Cathy
Buehrer provided Hurt with transcripts of the Duckett interviews of Jensen, and
offered access to the audio recordings of those interviews. (Requesters' Exhibit
G).
{¶14} On November 21, 2016, Requesters filed a complaint against the
Township under R.C. 2743.75 alleging denial of access to a public record in
violation of R.C. 149.43(B), attaching copies of the original records requests and
related correspondence.
Delaware County, Case No. 17 CAI 05 0031 7
{¶15} Consistent with the mandates included in R.C. 2743.75, the parties
participated in mediation, which was unsuccessful. Notice Referring Public Records
Complaint to Mediation, Ohio Court of Claims, Case No. 2016-00856-PQ (November 22,
2016); Notice of Scheduled Mediation Conference, Ohio Court of Claims, Case No. 2016-
00856-PQ (January 3, 2017).
{¶16} Liberty Township filed a motion to dismiss Requestor’s Complaint as well
as a response to the Complaint. Motion to Dismiss and Response to Complainants ORC
2743.75 Complaint, Ohio Court of Claims, Case No. 2016-00856-PQ (February 1, 2017).
Liberty Township asked the Court to find that Duckett's personal notes were not public
records for three reasons: Duckett was a private individual not subject to Ohio's Public
Records Act, that Duckett's notes were personal notes not public records, and finally, that
Liberty Township did not possess, and had never possessed, Duckett's notes.
{¶17} The Special Master assigned to the case issued a Report and
Recommendation on February 22, 2017, finding that Duckett's notes were
public records. Report and Recommendation, Ohio Court of Claims, Case No. 2016-
00856-PQ (February 22, 2017).
{¶18} The Special Master recommended denying the Township's motion to
dismiss. (Report and Recommendation, p. 6). Turning to the merits, the Special Master
found that "with respect to possession of the Duckett notes, I find failure of proof by
clear and convincing evidence that the notes, other than the transcripts and audio
recordings of the Jensen interviews, have been or are physically kept by the Township.”
Id. at 7. Finally, the Special Master stated:
Delaware County, Case No. 17 CAI 05 0031 8
Upon consideration of the pleadings and attachments, I find that
requesters have established by clear and convincing evidence that the
Duckett notes are public records pursuant to R.C. 149.43(A). I further
conclude that the failure of the Township to provide the Duckett notes in
response to requester's requests, in absence of a valid exception to
release, denied requesters access to a public record in violation of division
(B) of section 149.43 of the Revised Code. Accordingly, I recommend that
the court issue an order GRANTING requesters' claim, and which
1) directs the Township to provide requesters with the Duckett
notes, and
2) provides that requesters are entitled to recover from the
Township the costs associated with this action, including the twenty-five
dollar filing fee. R.C. 2743.75(F)(3)(b).
Report and Recommendation at 16.
{¶19} Liberty Township timely filed objections to the Special Master's decision,
and objected to the decision on eight separate grounds. Objections to the Special
Master's Report and Recommendation, Ohio Court of Claims, Case No. 2016-00856-
PQ (March 3, 2017). To summarize, Liberty Township argued the Special Master erred
when he concluded Duckett's personal notes were public records, erred when he
concluded Duckett was a private individual subject to Ohio's Public Records Act, and
erred when he concluded Duckett's personal notes were public records subject to
disclosure. Id. Appellees filed a reply to the objections, urging the Court of Claims to
adopt the Report and Recommendation. Reply to Respondent's Objections to the
Delaware County, Case No. 17 CAI 05 0031 9
Special Master's Report and Recommendations, Ohio Court of Claims, Case No. 2016-
00856-PQ (March 22, 2017).
{¶20} On March 29, 2017, the Court of Claims issued an Entry adopting the
Report and Recommendation, overruling Liberty Township's objections. Entry Adopting
Report and Recommendation, Ohio Court of Claims, Case No. 2016- 00856-PQ (March
29, 2017).
Assignments of Error
{¶21} Liberty Township raises three assignments of error,
{¶22} “I. THE OHIO COURT OF CLAIMS ERRED WHEN IT FOUND DUCKETT
WAS A PRIVATE INDIVIDUAL SUBJECT TO OHIO'S PUBLIC RECORDS ACT.
{¶23} “II. THE OHIO COURT OF CLAIMS ERRED WHEN IT FOUND
DUCKETT'S NOTES WERE NOT PERSONAL NOTES AND THEREFORE RECORDS
BECAUSE DUCKETT'S NOTES WERE TAKEN FOR HIS OWN CONVENIENCE IN
ORDER TO LATER PREPARE A REPORT.
{¶24} “III. THE COURT OF CLAIMS ERRED WHEN IT FOUND DUCKETT'S
NOTES ARE PUBLIC RECORDS SUBJECT TO DISCLOSURE BECAUSE THE NOTES
ARE NOT KEPT BY LIBERTY TOWNSHIP, AND ARE THEREFORE NOT PUBLIC
RECORDS.”
Public Records
{¶25} Ohio’s Public Records Act, codified at R.C. 149.43, mandates full access to
public records upon request, unless the requested records fall within one of the
exceptions specifically enumerated in the Act. State ex rel. Lucas Cty. Bd. of Commrs.
v. Ohio Environmental Protection Agency, 88 Ohio St.3d 166, 170, 724 N.E.2d 411Delaware County, Case No. 17 CAI 05 0031 10
(2000). The Act requires that “upon request and subject to division (B)(8) of this section,
all public records responsive to the request shall be promptly prepared and made
available for inspection to any person * * * [and] upon request a public office or person
responsible for public records shall make copies of the requested public record * * *.”
R.C. 149.43(B)(1).
{¶26} “The Public Records Act reflects the state’s policy that ‘open government
serves the public interest and our democratic system.’” State ex rel. Glasgow v. Jones,
119 Ohio St.3d 391, 2008-Ohio-4788, 894 N.E.2d 686, ¶ 13, quoting State ex rel. Dann
v. Taft, 109 Ohio St.3d 364, 2006-Ohio-1825, 848 N.E.2d 472, ¶ 20. “Consistent with this
policy, we construe R.C. 149.43 liberally in favor of broad access and resolve any doubt
in favor of disclosure of public records.” Id.Burden of Proof
{¶27} R.C. 2743.75 does not define the burden of proof in an action commenced
in the Court of Claims to obtain public records. However, “Mandamus is the appropriate
remedy to compel compliance with R.C. 149.43, Ohio’s Public Records Act.” State ex rel.
Physicians Commt. for Responsible Medicine v. Ohio State Univ. Bd. of Trustees, 108
Ohio St.3d 288, 2006-Ohio-903, 843 N.E.2d 174, ¶ 6; see also R.C. 149.43(C)(1); R.C.
2743.75(C)(1).
{¶28} To be entitled to a writ of mandamus compelling the production of public
records, a relator must establish by clear and convincing evidence that the relator has a
clear legal right to the records and that the respondent has a clear legal duty to provide
them. State ex rel. Cincinnati Enquirer v. Sage, 142 Ohio St.3d 392, 2015-Ohio-974, 31
N.E.3d 616, ¶ 10. Further, a governmental body refusing to release records has the
Delaware County, Case No. 17 CAI 05 0031 11
burden of proving that the records are excepted from disclosure pursuant to R.C. 149.43.
State ex rel. Natl. Broadcasting Co. v. Cleveland, 38 Ohio St.3d 79, 526 N.E.2d 786,
(1988), para 2 of the syllabus. Accord, State ex rel. Thomas v. Ohio State University, 71
Ohio St.3d 245, 247, 643 N.E.2d 126(1994); State ex rel James v. Ohio State University,
70 Ohio St.3d 168, 169, 637 N.E.2d 911(1994).
{¶29} If courts were to apply a different burden of proof to a public records action
commenced in the Court of Claims under R.C. 2743.75 than to a public records
mandamus action commenced pursuant to R.C. 149.43(C)(1)(b), inconsistency would
result. A party may establish a right to relief under one burden of proof but not the other
burden of proof.
{¶30} To promote consistent application of the public records law, we shall review
a case brought pursuant to R.C. 2743.75 under the standard of proof required in cases
brought under R.C. 149.43(C)(1)(b). The special master applied that burden of proof in
the case at bar. See, Report and Recommendation of the Special Master, February 22,
2017 at 4.
Appellate Review
{¶31} The Supreme Court of Ohio has concluded that the issue of whether
information sought is confidential and privileged from disclosure is a question of law that
should be reviewed de novo. Med. Mut. of Ohio v. Schlotterer, 122 Ohio St.3d 181, 2009-
Ohio-2496, 909 N.E.2d 1237, at ¶ 13; see also Roe v. Planned Parenthood Southwest
Ohio Region, 122 Ohio St.3d 399, 2009-Ohio-2973, 912 N.E.2d 61, ¶ 29. “When a court’s
judgment is based on an erroneous interpretation of the law, an abuse-of-discretion
standard is not appropriate.” Medical Mutual of Ohio v. Schlotterer, 122 Ohio St.3d 181,
Delaware County, Case No. 17 CAI 05 0031 12
2009-Ohio-2496, 909 N.E.2d 1237, ¶13 (citing, Swartzentruber v. Orrville Grace Brethren
Church, 163 Ohio App.3d 96, 2005-Ohio-4264, 836 N.E.2d 619 (9th Dist.), ¶ 6; Huntsman
v. Aultman Hosp., 5th Dist. Stark No. 2006 CA 00331, 2008-Ohio-2554, ¶ 50).
{¶32} Application of statutory language, to determine whether specific information
is confidential and privileged, is a question of law that we must review de novo. See Flynn
v. Univ. Hosp., Inc., 172 Ohio App.3d 775, 2007-Ohio-4468, 876 N.E.2d 1300, ¶ 4 (1st
Dist.); Block Communications, Inc. v. Pounds, 6th Dist. Lucas No. L-13-1224, 2015-Ohio-
2679, ¶44 (trade secrets pursuant to R.C. 1333.51). However, insofar as factual issues
must be determined by the trial court as a predicate to resolving the legal question of
privilege, such factual determinations should be accorded deference. MA Equip. Leasing
I, LLC v. Tilton, 10th Dist., 2012-Ohio-4668, 980 N.E.2d 1072, ¶18; Block
Communications, Inc. v. Pounds, 2015-Ohio-2679, ¶44.
{¶33} We find the standard of review utilized to determine whether specific
information is confidential and privileged to be the appropriate standard for the analysis
of a public records request case. We review questions of law de novo and questions of
fact under an abuse of discretion standard.
I.
{¶34} In the First Assignment of Error, Liberty Township contends that the special
master and the judge erred when it found Duckett was a private individual subject to
Ohio’s Public Records Act. Subsumed within this generalized objection are three
challenges to the trial court's ruling. Specifically, Liberty Township contends that:
1).Duckett was not carrying out a function of Liberty Township when he conducted his
investigation; 2). The Board of Trustees did not monitor Duckett’s investigation because
Delaware County, Case No. 17 CAI 05 0031 13
of the due process considerations required by R.C. 505.38 investigations; and 3). The
trustees did not have access to Duckett’s personal notes because they were not filed with
the Board during the R.C. 505.38 hearing.
A. The “functional equivalency test” and the “quasi-agency test.
{¶35} The Ohio Supreme Court has developed two distinct tests to determine
whether a private entity is subject to the public records law.
1. The “functional equivalency test.”
{¶36} “‘Public office’ includes any state agency, public institution, political
subdivision, or other organized body, office, agency, institution, or entity established by
the laws of this state for the exercise of any function of government.” R.C. 149.011(A).
{¶37} The Ohio Supreme Court has held that a private entity may be the
“functional equivalent” of a public office where the court analyzes the following factors:
(1) whether the entity performs a governmental function; (2) the level of government
funding; (3) the extent of government involvement or regulation; and (4) whether the entity
was created by the government or to avoid the requirements of the Public Records Act.
State ex rel. Oriana House, Inc. v. Montgomery, 110 Ohio St.3d 456, 2006-Ohio-4854,
854 N.E.2d 193, paragraph two of the syllabus. This functional-equivalency analysis
“begins with the presumption that private entities are not subject to the Public Records
Act absent a showing by clear and convincing evidence that the private entity is the
functional equivalent of a public office.” Id. at ¶ 26. Courts must apply the functional-
equivalency analysis on a case-by-case basis, “examining all pertinent factors with no
single factor being dispositive.” Id. at ¶ 23, citing Ry. Labor Executives Assn. v. Consol.
Delaware County, Case No. 17 CAI 05 0031 14
Rail Corp., 580 F.Supp. 777, 778 (D.C. 1984) (“All relevant factors are to be considered
cumulatively, with no single factor being essential or conclusive.”).
a. Application of the factors to the facts of this case.
{¶38} In the case at bar, Duckett was performing a governmental function. A
“governmental function” traditionally includes such tasks as providing police, fire, and
emergency services, public education, and a free public library system, preserving the
peace, regulating the use and maintenance of roads, operating jails, regulating traffic,
and collecting refuse. See R.C. 2744.01(C)(2). The decision to remove a firefighter is
regulated under R.C. 733.35 to R.C. 733.39. A private party cannot initiate removal
proceedings or conduct the removal hearing. A private party is limited to investigating the
conduct and preparing the charges if necessary. The ultimate decision and responsibility
for investigating, initiating, hearing and deciding the issue of whether to remove a fire
chief are “governmental functions.” To remove such officer the votes of two thirds of the
Township Trustees is required. R.C. 733.36.
{¶39} Turning to the second factor, the level of government funding, we note
Duckett was paid by Liberty Township with public tax dollars. See, Requestor’s Exhibit
A.
{¶40} The extent of governmental involvement in the removal of a firefighter or a
fire chief is extensive and can only be accomplished in accordance with procedures
established by the legislature. R.C. 733.35 to R.C. 733.39. A private person must be
appointed by the Township Trustees and must perform the services set forth in R.C.
733.35.
Delaware County, Case No. 17 CAI 05 0031 15
{¶41} Nothing in the record indicates Duckett was appointed to avoid the
requirements of the Public Records Act. See, State ex rel. Oriana House, Inc. v.
Montgomery, 110 Ohio St.3d 456, 2006-Ohio-4854, 854 N.E.2d 193, ¶ 34 (2006).
{¶42} Considering the totality of the above factors, we find that Duckett is the
functional equivalent of a public office sufficient to compel compliance with the Public
Records Act.
2. The “quasi-agency test.”
{¶43} Ohio courts have also held that when a public office contracts with a private
entity to perform government work, the private entity can be a “person responsible for
public records” sufficient to compel compliance with the Public Records Act, even if not a
“public office.” State ex rel. Toledo Blade Co. v. Bur. of Workers' Comp., 106 Ohio St.3d
113, 2005-Ohio-3549, 832 N.E.2d 711, ¶ 20; R.C. 149.43(C). Accordingly, under this
“quasi-agency” theory, the private entity may be subject to R.C. 149.43 where (1) the
private entity prepares records in order to carry out a public office's responsibilities; (2)
the public office is able to monitor the private entity's performance; and (3) the public
office has access to the records for this purpose. State ex rel. Carr v. Akron, 112 Ohio
St.3d 351, 2006-Ohio-6714, 859 N.E.2d 948, ¶ 36, citing State ex rel. Mazzaro v.
Ferguson, 49 Ohio St.3d 37, 39, 550 N.E.2d 464 (1990); see also State ex rel. ACLU of
Ohio v. Cuyahoga Cty. Bd. of Commrs., 128 Ohio St.3d 256, 2011-Ohio-625, 943 N.E.2d
553.
1. Duckett was carrying out a function of the township when he conducted
his investigation.
{¶44} R.C. 505.38 defines a process that is preliminary to the removal of a fire
Delaware County, Case No. 17 CAI 05 0031 16
chief. Pursuant to R.C. 505.38(A), a fire chief continues in office until removed from that
office, and in order to be removed from that office, the appointing authority must follow the
removal proceedings contained in R.C. 733.35 to 733.39. Consistent with R.C.
505.38(A), a board of township trustees may institute removal proceedings of the fire chief
when it has reason to believe the fire chief is guilty of, "... bribery, misfeasance, malfeasance,
nonfeasance, misconduct in office, gross neglect of duty, gross immorality, or habitual
drunkenness..." in the performance of the fire chief's official duties. R.C. 733.35.
{¶45} The board may designate the fire chief or a private citizen to investigate any
alleged misconduct. R.C. 505.38(A) provides in relevant part,
To initiate removal proceedings, and for that purpose, the board shall
designate the fire chief or a private citizen to investigate the conduct and
prepare the necessary charges in conformity with those sections.
(Emphasis added).
{¶46} No special qualifications or expertise is required of the private citizen. In
other words, anyone can serve. Compare R.C. 2743.75, which states,
(A) In order to provide for an expeditious and economical procedure
that attempts to resolve disputes alleging a denial of access to public
records in violation of division (B) of section 149.43 of the Revised Code,
except for a court that hears a mandamus action pursuant to that section,
the court of claims shall be the sole and exclusive authority in this state that
adjudicates or resolves complaints based on alleged violations of that
section. The clerk of the court of claims shall designate one or more current
employees or hire one or more individuals to serve as special masters to
Delaware County, Case No. 17 CAI 05 0031 17
hear complaints brought under this section. All special masters shall have
been engaged in the practice of law in this state for at least four years and
be in good standing with the supreme court at the time of designation or
hiring. The clerk may assign administrative and clerical work associated
with complaints brought under this section to current employees or may hire
such additional employees as may be necessary to perform such work.
(Emphasis added).
{¶47} In other words, if the legislature had intended the private citizen to have
special powers, qualification, duties or requirements they would have spelled those out in
R.C. 505.38(A). They did not. Accordingly, the private citizen and the fire chief stand on
equal ground when conducting an investigation. To accept Liberty Township’s argument
would lead to an incongruous and disparate result. The Township employs the fire chief.
When the fire chief conducts an investigation into a firefighter’s alleged misconduct the
public records laws would apply; however, if a private citizen investigates the alleged
misconduct of the fire chief the private citizen’s investigation would be shielded from
public scrutiny. Nothing in R.C. 505.38(A) or in R.C. 733.35 to 733.39 requires the private
citizen be treated any differently than a fire chief when conducting an investigation
pursuant to appointment. Nor can it be seen that the legislature intend the investigation
of alleged misconduct of a fire chief be accorded more protection than the investigation
into the alleged misconduct of any other employee of the department.
{¶48} The fire chief or the private citizen will prepare charges if the investigation
concludes a firefighter or the fire chief have violated general or specific standards of
conduct. R.C. 733.35. The charges written by the investigator must include detailed
Delaware County, Case No. 17 CAI 05 0031 18
statements of alleged guilt, and those charges are then filed with the board and served
upon the fire chief. Id. Once the charges are filed, the charges must be heard at the next
regular meeting of the board unless the fire chief seeks an extension of time. R.C. 733.36.
{¶49} Liberty Township Resolution 16-0321-11, which appointed Duckett,
provides,
Authorize Expenditure for Investigatory Review of Fire
Department
WHEREAS, it is incumbent upon the Board of Trustees to ensure the
Liberty Township Fire Department is managed and operating in the most
effective and efficient manner, and
WHEREAS, the Board of Trustees has the authority to conduct an
investigation and/or review of the operations and management of the Fire
Department to assist the Trustees and management in improving the
operations and performance of the department, and
WHEREAS, the Trustees approved Resolution #16-0307-04 which
in part designated Laurie Worcester to complete this investigation and since
that time Ms., Worcester is no longer able to perform these services and,
therefore, another citizen has been selected to conduct this investigation.
NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF
TRUSTEES OF LIBERTY TOWNSHIP, DELAWARE COUNTY, OHIO to
designate Douglas Duckett to investigate the conduct of Fire Chief Tim
Jensen and prepare the necessary charges pursuant to Section 505„38 of
the Ohio Revised Code at a cost not to exceed $7,500.00, any additional
Delaware County, Case No. 17 CAI 05 0031 19
expenditures to Mr. Duckett will be considered by the Board prior to the
services being performed.
{¶50} Accordingly, Liberty Township recognizes that the statutory process for
removing a fire chief from office is a function coming under its jurisdiction. Duckett was
to “file with the legislative authority, except when the removal of such head of department
or officer is otherwise provided for, written charges against such person, setting forth in
detail a statement of such alleged guilt and, at the same time, or as soon thereafter as
possible, serve a true copy of such charges upon the person against whom they are
made.” R.C. 733.35. Because the Board of Trustees must hear the charges and conduct
the hearing, an investigator is necessary. The investigator performs the function of the
mayor of a municipal corporation under R.C. 733.35. The action remains one for the
removal of a township employee governed by R.C. 733.35 to R.C. 733.39 and under the
jurisdiction of the Board of Trustees. The investigation and preparation of charges is not
a private function. The Board of Trustees must initiate the removal proceedings by
appointing an investigator. There is no right provided for a private, third party to initiate
the process.
{¶51} Accordingly, the Board of Trustees was engaged in the performance of a
governmental function when they appointed Duckett to conduct the investigation of the
fire chief pursuant to R.C. 505.38(A). Duckett was engaged in the performance of a
governmental function acting in place of the Board of Trustees when pursuant to R.C.
505.38(A) he conducted his investigation and prepared the documents for the Board of
Trustees to initiate the removal proceedings under R.C. 733.35.
2. The Township did monitor Duckett’s investigation.
Delaware County, Case No. 17 CAI 05 0031 20
{¶52} Liberty Township argues that it did not monitor Duckett’s performance
because the Board of Trustees was required to conduct the hearing on the charges
involving Chief Jensen. Liberty Township contends that to monitor the investigation would
have violated Chief Jensen’s due process rights.
{¶53} However, in contradiction of those concerns, Duckett’s detailed Billing
Statement submitted as Requestor’s Exhibit B contains the following:
Initial telephone conference with Matt Huffman and Cathy Buehrer to
discuss scope of investigation; review of Liberty Township website for
information on key figures in Liberty Township. 3/10/16 0.75
Meeting with Matt Huffman and Cathy Buehrer to review background
to case and related documents; plan for witness interviews. 3/15/16 7.50
Initial review of background documents and collective bargaining
agreement. 3/18/16 1.25
Reviewed notes and document summary; prepared detailed outline
of investigatory interview of Cathy Buehrer. 3/21/16 2.00
Drafted detailed outline of investigatory interview of Matt Huffman,
Trustee Shyra Eichhorn, Battalion Chiefs James Reardon, Bill Piwtorak,
and Duane Price, and FF Chalaco Clark; T/C with attorney Edward Kim re
procedural issues and notice of interviews: redrafted notice of interviews
and sent to Matt Huffman. 3/22/16 5.00
T/Cs with Matt Huffman re interview notices and possible interview
with Dr. Yamarick; reviewed and revised interview schedule, outline
investigatory interview of Trustee Melanie Leneghan. T/Cs with Matt
Delaware County, Case No. 17 CAI 05 0031 21
Huffman and Cathy Buehrer, as well as union attorney Michael Moses, re
interview procedures and Garrity issues; updated interview outlines.
3/23/16 2.50
T/C with Matt Huffman; travel to Powell; investigatory interviews
of Cathy Buehrer Trustee Eichhorn, FF Chalaco, Clark, and BC Bill
Piwtorek; multiple T/Cs with attorney Mike Moses; debriefed with client;
travel to hotel. Reviewed summary prepared by Trustee Leneghan and
revised interview outline based on her concerns; revised other outlines to
reflect Garrity notices to bargaining-unit witnesses. 3/24/16 12.50
Planning discussions with Matt Huffman; investigatory interviews
with BC Jim Reardon, FF Scott Simmons, Trustee Leneghan, and BC
Duane Price; debriefing with clients and discussion of next steps; travel to
Cincinnati. 3/25/16 9.50
T/C with Matt Huffman; outlined investigatory interview with Trustee
Thomas Mitchell. 3/28/16 0.75
Travel to Liberty Township; completed investigatory interview of
Cathy Buehrer; discussion of next steps with Mr. Huffman and Ms. Buehrer;
travel to hotel; reviewed and revised outline of Trustee Mitchell's interview.
3/29/16 5.75
Investigatory interviews of Trustee Thomas Mitchell and Township
Administrator Matt Huffman; debriefing with clients; travel to Cincinnati.
3/30/16 6.50
Delaware County, Case No. 17 CAI 05 0031 22
T/C with Cathy Bucker re additional interviews; worked out outlining
remaining bystander witness interviews. 4/1/16 0.25
Multiple T/Cs and e-mail with Cathy Buehrer re interview schedule
for Tuesday; drafted outlines of interviews of Ryan Hanf, Mickey Smith, Jim
Cirigliano, Mark Gerber, and Dr. Warren Yamarick. 4/4/16 3.00
Travel to Liberty Township; completed investigatory interview of
Ryan Hanf, Mickey Smith, Jim Cirigliano, and Warren Yamarick, M.D.,
return to Cincinnati. 4/5/16 12.50
T/C with Matt Huffman and with Edward Kim, Esq. to brief on status
of investigation and next steps. 4/6/16 0.75
Inquiries from news media; e-mails and T/C with Matt Huffman on
response and on arranging interview with Dr. Mark Gerber. 4/12/16 0.25
T/Cs with Dr. Mark Gerber re scheduling; T/Cs and e-mails with
Edward Kim and Matt Huffman re scheduling and status or investigation;
retrieved and saved or printed additional documents requested. Second,
extended T/C with Mr. Kim to review end of investigatory process; reviewed
documents to prepare for interview of Chief Jensen.
4/14/16 0.75
T/C with Matt Huffman; reviewed additional documents provided and
notes from earlier witness interviews. Additional T/C with Matt Hoffman and
Cathy Buehrer re additional, possible witness. 4/15/15 2.00
Began outline of investigatory interview of Chief Jensen.
4/17/16 1.50
Delaware County, Case No. 17 CAI 05 0031 23
Continued work on outline of interview of Chief Jensen.
4/18/16 0.075
Completed outline of investigatory interview of Chief Jensen; T/Cs
with attorney Edward Kim and Matt Huffman re arrangements for
tomorrow's interviews and records requests; travel to Powell; further review
of and addition to outlines.
4/21/16 7.50
Investigatory interviews of former Fiscal Officer Mark Gerber and Fire
Chief Tim Jensen; debriefing with attorney Edward Kim and Matt Huffman;
return travel to Cincinnati. 4/22/16 11.00
Concluded investigatory interview of Fire Chief Jensen; travel to and
from Liberty Township; T/C with Edward Kim. 4/25/16 8.50
Extended T/C with Edward Kim, Matt Huffman, and Cathy Buehrer
re status and direction of investigation; reviewed notes of interviews and
began outline of issues and completed draft of factual summary in report.
4/26/16 2.25
***
{¶54} It is clear that the Township through the Trustees3, Administrator4 and
Attorney5 monitored the investigation by conferring repeatedly with Duckett in person and
by telephone to review documents, plan interviews, debrief with client, revise interview
3 Eichhorn, Leneghan and Mitchell.
4 Matt Huffman
5 Ed Kim
Delaware County, Case No. 17 CAI 05 0031 24
outlines based on concerns of Trustee Leneghan, discuss next steps, discuss procedural
issues, prepare status updates, assist with briefing and direct the filing of charges.
{¶55} Although Liberty Township contend that the billing references show that
“Duckett needed to contact various Township personnel in order to properly coordinate
and schedule his investigation,”6 we note Duckett did not submit an affidavit. Nor were
his notes sealed and submitted for an in camera inspection by the lower court.
3. The Trustees could have accessed the Duckett notes.
{¶56} Liberty Township next argues that it did not have access to the notes
because the notes were not filed with the Board of Trustees. In addition, Liberty Township
contends that they are prohibited from accessing the notes out of concern for Captain
Jensen’s right to due process.
{¶57} At the outset, we note that the disciplinary proceedings against Jensen have
concluded. Therefore, there are no due process concerns as to the Board’s ability to now
access the Duckett notes. The question to be addressed is not whether Liberty Township
could have accessed the notes to prosecute Jensen. Rather, the issue presently is
whether the public is entitled to review the notes.
{¶58} In permitting mandamus against “either the governmental unit or the person
responsible for a public record * * * [, the statute] manifests an intent to afford access to
public records, even when a private entity is responsible for the records.” State ex rel.
Mazzaro v. Ferguson, 49 Ohio St.3d 37, 39, 550 N.E.2d 464 (1990) (emphasis added).
The public’s right of access to public records, includes “any material on which a public
office could or did rely, * * * regardless of where they are physically located, or in whose
6 Liberty Township Brief at 12.
Delaware County, Case No. 17 CAI 05 0031 25
possession they may be.” Mazzaro at 40, 550 N.E.2d 464 (emphasis added). A public
office cannot escape its responsibility for public records simply by contracting with a
private entity. See State ex rel. Gannett Satellite Info. Network v. Shirey, 78 Ohio St.3d
400, 403, 678 N.E.2d 557 (1997). Thus, even without a finding that the private entity is a
public office, or a functional equivalent, its records might be subject to disclosure under
R.C. 149.43. State ex rel. Toledo Blade Co. v. Univ. of Toledo Found, 65 Ohio St.3d 258,
263, 602 N.E.2d 1159 (1992).
{¶59} In State ex rel. Mazzaro v. Ferguson, 49 Ohio St.3d 37, 550 N.E.2d 464(1990), the Ohio Supreme Court held that a city auditor who delegated part of an audit of
the city to a private firm had to disclose under R.C. 149.43(B) the records created by the
private firm. Such records, the Supreme Court held, must be disclosed by a public office
when a private entity performs the duties of a public office, the public office is able to
oversee the private entity, and the public office has access to the records produced by
the private entity. Although the petitioner in Mazzaro requested the records from the
public office, the Court noted that R.C. 149.43(C) authorizes a mandamus action against
either the public office or a private entity holding public records (citing State ex rel.
Mothers Against Drunk Drivers v. Gosser [1985], 20 Ohio St.3d 30, 33, 20 OBR 279, 282,
485 N.E.2d 706, 710).
{¶60} The Ohio Supreme Court has also determined that regardless of whether
the relator has established that the private consultant acted as the City's agent or that the
relationship between the City and the consultant satisfied the three-prong test in Mazzaro,
supra, where a public official contracted with a private entity for a public purpose, the
Delaware County, Case No. 17 CAI 05 0031 26
records are public records subject to disclosure under R.C. 149.43. State ex rel. Gannett
Satellite Info. Network v. Shirey, 78 Ohio St.3d 400, 403, 678 N.E.2d 557(1997).
{¶61} In Shirey, the city of Cincinnati contracted with a private consultant to assist
the city in hiring a safety director. The private consultant agreed to provide the city
manager with a list of final applicants, but all applications and resumes would become the
sole property of the private consultant and would not be subject to public review. In
response to a reporter's public records request for all records regarding the applicants for
safety director, the city denied the request based upon the fact that the records were in
the possession of the private contractor.
{¶62} The Ohio Supreme Court determined that the requested documents (which
included applicant resumes and supporting documents of the safety director applicants)
were subject to disclosure under R.C. 149.43. Shirey at 403–404, 678 N.E.2d 557. The
court noted that had the city undertaken the task without hiring the private consultant, the
records at issue would have been subject to disclosure. Id., quoting Forum Publishing
Co. v. Fargo, 391 N.W.2d 169, 172 (N.D. 1986). In concluding that the city could not
attempt to circumvent R.C. 149.43 by contracting with a private company, the court stated
that “to hold otherwise, governmental entities could conceal information concerning the
hiring of important public officials from the public by merely delegating this uniquely public
duty to a private entity.” Id. at 404; State ex rel. Plain Dealer Publishing Co. v. Cleveland,
75 Ohio St.3d 31, 661 N.E.2d 187 (1996) (where a public official contracted with a private
entity for a public purpose—to assist in the filling of a municipal position—the documents
in the private entity's possession are no less a public record simply because they were in
the possession of the private entity, regardless of whether an agency relationship had
Delaware County, Case No. 17 CAI 05 0031 27
been established or the entity had been established as the “person responsible for public
records”).
{¶63} We find the analysis in Shirey to be equally applicable to a case such as the
case at bar where the public officials seek to terminate the employment of a township fire
chief. In the case at bar, Duckett was hired to conduct an investigation. The purpose of
this investigation was to determine whether there were sufficient grounds to prepare
charges for the removal of the fire chief. Without question, the provision and maintenance
of the fire department is a public function undertaken by the Board of Trustees. The
removal of the acting fire chief directly relates to the operation of the fire department, and
can only be accomplished by the Board of Trustees. To that end, Duckett prepared his
reports and interviews in order to carry out the Board’s public responsibilities. If a fire
chief rather than a private individual conducts the investigation, then the records of the
fire chief, who is a Township employee, would be accessible by the Board and subject to
disclosure.
{¶64} Accordingly, in reviewing the above factors, we find that the relationship
between the Township and Duckett satisfied the test in both Mazzaro and Shirey and is
sufficient to compel compliance with the Public Records Act.
{¶65} For all the foregoing reasons, Liberty Township’s First Assignment of Error
is overruled.
II.
{¶66} In the Second Assignment of Error, Liberty Township contends that the Ohio
Court of Claims erred when it found Duckett's notes were not personal notes and
Delaware County, Case No. 17 CAI 05 0031 28
therefore not records subject to disclosure because Duckett's notes were taken for his
own convenience in order to later prepare a report.
{¶67} R.C. 149.011 defines the term “record” as follows,
(G) “Records” includes any document, device, or item, regardless of
physical form or characteristic, including an electronic record as defined in
section 1306.01 of the Revised Code, 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.
{¶68} R.C. 149.43(A)(1) defines “public record” as follows,
(1) “Public record” means records kept by any public office, including,
but not limited to, state, county, city, village, township, and school district
units, and records pertaining to the delivery of educational services by an
alternative school in this state kept by the nonprofit or for-profit entity
operating the alternative school pursuant to section 3313.533 of the
Revised Code.
{¶69} In Kish v. Akron, the Ohio Supreme Court recognized the expansive scope
of the R.C. 149.011(G) definition of “records”:
We previously have held that the General Assembly’s use of
“includes” in R.C. 149.011(G) as a preface to the definition of “records” is
an indication of expansion rather than constriction, restriction, or limitation
and that the statute’s use of the phrase “any document” is one
encompassing all documents that fit within the statute’s definition,
Delaware County, Case No. 17 CAI 05 0031 29
regardless of “form or characteristic.” State ex rel. Cincinnati Post v.
Schweikert (1988), 38 Ohio St.3d 170, 172–173, 527 N.E.2d 1230. There
can be no dispute that there is great breadth in the definition of “records” for
the purposes here. Unless otherwise exempted or excepted, almost all
documents memorializing the activities of a public office can satisfy the
definition of “record.” State ex rel. Beacon Journal Publishing Co. v. Bond,
98 Ohio St.3d 146, 2002-Ohio-7117, 781 N.E.2d 180, ¶ 13.
109 Ohio St.3d 162, 2006-Ohio-1244, 846 N.E.2d 811, ¶20. “Even if a record is not in
final form, it may still constitute a ‘record’ for purposes of R.C. 149.43 if it documents the
organization, policies, functions, decisions, procedures, operations, or other activities of
a public office.” See State ex rel. Calvary v. Upper Arlington, 89 Ohio St.3d 229, 232,
729 N.E.2d 1182(2000).
{¶70} Liberty Township argues that the interview notes were taken only for
Duckett's personal convenience, and did not in their own right document the organization,
functions, policies, decisions, procedures, operations or other activities of the Township.
Liberty Township cites State ex rel. Pietrangelo v. City of Avon Lake, 149 Ohio St.3d 273,
2016-Ohio-5725, 74 N.E.3d 419 in support of its contention that personal notes of a public
official are not public records if the notes are taken for the individuals own convenience
to later prepare a report and the notes are not kept as part of the department’s official
records.
{¶71} We note that in Pietrangelo,
The officers state in their affidavits that the officer who wrote the
report used his notes to prepare it, and then both officers’ notes were
Delaware County, Case No. 17 CAI 05 0031 30
destroyed. If the notes have been destroyed, correctly or not, they cannot
be produced at this point. Respondents cannot be ordered to produce
records that no longer exist.
149 Ohio St.3d, ¶20. Further, the Ohio Supreme Court noted,
All existing documents related to the December 29, 2014 skate-park
incident have apparently been produced, and the case is moot. We
therefore deny the request for a writ.
149 Ohio St.3d, ¶22. In the case at bar, unlike the officers in Pietrangelo, Duckett
did not submit an affidavit. Nor were the notes produced for the lower court to
review.
{¶72} Likewise, in Hunter v. Ohio Bureau of Workers’ Comp., also relied upon by
Liberty Township,
{¶27} The evidence at trial indicates that two interviewers were
always present during each of the June 2010 interviews conducted by SIU
with the three interviewees (appellant, Roach, and Hasty). A union steward
was also present at each interview. Both interviewers took their own
handwritten notes. Later, the interviewers verbally compared responses
from their notes and prepared a typewritten report of the interview; each
interviewer subsequently destroyed their own handwritten notes. In
response to his records request, appellant received copies of the
typewritten reports documenting his interviews on January 27 and June 22,
2010, as well as the typewritten reports prepared following the interviews of
Roach and Hasty conducted on June 24, 2010.
Delaware County, Case No. 17 CAI 05 0031 31
{¶ 28} At trial, the magistrate heard testimony regarding the agency’s
policy for disposing of interview notes as part of an investigatory interview.
Specifically, Fox testified that SIU’s “established practice” in handling an
investigation is to “memorialize in one document what occurred,” and then
“our notes are destroyed.” (Tr. 175.) Fox stated that the practice followed
by the interviewers during the investigatory interviews with appellant,
Roach, and Hasty was in accordance with SIU policy. Fox related that both
interviewers took notes during the interviews, and that the interviewers
subsequently “talked and compared verbally” in the course of preparing the
typewritten report. (Tr. 230.) Fox testified that BWC’s policy requires
consistency with respect to keeping or destroying notes; Fox noted that he
“always destroy[s]” his notes. (Tr. 233.)
{¶29} Similar to the testimony of Fox, BWC employees Pandilidis and
Saunders testified that they followed SIU policy in shredding the handwritten
notes following the interviews. Saunders, who shredded her personal notes
after the “final document” was prepared, explained that “[o]nce I was
finished with them, they were * * * no longer of administrative value to me *
* *. And per policy we always shred them or we always keep them.” (Tr.
308.)
{¶ 30} At trial, a copy of SIU’s policy regarding interview procedures
was admitted into evidence…
10th Dist. Franklin No. 13AP-457, 2014-Ohio-5660.
Delaware County, Case No. 17 CAI 05 0031 32
{¶73} In sharp contrast, in the case at bar Duckett did not submit an affidavit nor
were the records produced for review by the lower court. Rather, Liberty Township relies
upon Duckett’s billing statement as its sole support for its contention that Duckett’s notes
were for his personal convenience.
{¶74} Duckett’s Billing Statement reveals that he prepared “detailed outlines” of
his “investigatory interview” with the witnesses before he actually interviewed each
witness. Thus, it cannot be said that all of the notes were created contemporaneously
with the interviews to provide Duckett a means to refresh his memory. Further, Duckett
revised his “interview outline” based upon the concerns of Trustee Leneghan. Thus, it
appears Duckett reviewed his outlines with the Trustees and the Trustees had input into
the content of the outlines. Duckett’s billing statement further suggests the he “debriefed
with clients” after conducting each investigatory interview. Thus, the record suggests that
Duckett and the Board discussed each person’s interview and how the interview related
to the charges against Jensen.
{¶75} Thus, whether Duckett’s notes did in their own right document the
organization, functions, policies, decisions, procedures, operations or other activities of
the Township is still in question based on the record before this Court.
{¶76} In our disposition of Liberty Township’s First Assignment of Error, we held
that the relationship between Liberty Township and Duckett was sufficient to compel
compliance with the public records law. Liberty Township does not cite any of the
numerous exceptions set forth in R.C. 149.43 as grounds for not disclosing Duckett’s
notes. Instead, Liberty Township relies exclusively upon its contention that notes were
taken only for Duckett's personal convenience. We find that this is the substantial
Delaware County, Case No. 17 CAI 05 0031 33
equivalent of an “exception” to disclosure. Accordingly, Liberty Township bears the
burden of proof on this issue.
{¶77} “[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.” State ex rel. Besser v. Ohio State Univ. (2000), 89 Ohio St.3d 396, 398, 732
N.E.2d 373; State ex rel. Cincinnati Enquirer, Div. of Gannett Satellite Info. Network, Inc.
v. Dupuis, 98 Ohio St.3d 126, 2002-Ohio-7041, 781 N.E.2d 163, ¶ 16 (2002). “When a
governmental body asserts that public records are excepted from disclosure and such
assertion is challenged, the court must make an individualized scrutiny of the records in
question. If the court finds that these records contain excepted information, this
information must be redacted and any remaining information must be released. The data
and records in question should be sealed and preserved as part of the record for possible
appellate review.” State ex rel. Nat. Broadcasting Co. v. City of Cleveland, 38 Ohio St.3d
79, 85, 526 N.E.2d 786, 791–92 (1988)
{¶78} We find Liberty Township did not introduce sufficient evidence to establish
an exemption from disclosure or that Duckett’s notes did not in their own right document
the organization, functions, policies, decisions, procedures, operations or other activities
of the Township. Notably lacking is any factual evidence to support Liberty Township’s
conclusory statements and argument. A custodian does not meet this burden to prove
that records are exempt from disclosure if it has not proven that the requested records
fall squarely within the exception. State ex rel. Cincinnati Enquirer v. Jones–Kelley, 118
Ohio St.3d 81, 2008-Ohio-1770, 886 N.E.2d 206. The notes were not provided to the
Court of Claims and were not sealed and preserved as part of the record for our review.
Delaware County, Case No. 17 CAI 05 0031 34
{¶79} For all the forgoing reasons, Liberty Township’s second assignment of error
is overruled.
III.
{¶80} In the Third Assignment of Error, Liberty Township argues that the Court of
Claims erred when it found Duckett's notes are public records subject to disclosure
because the notes are not kept by Liberty Township, and are therefore not public records.
{¶81} The public’s right of access to public records, includes “any material on
which a public office could or did rely, * * * regardless of where they are physically located,
or in whose possession they may be.” State ex rel. Mazzaro v. Ferguson, 49 Ohio St.3d
37, 40, 550 N.E.2d 464 (1990). A public office cannot escape its responsibility for public
records simply by contracting with a private entity. See State ex rel. Gannett Satellite
Info. Network v. Shirey, 78 Ohio St.3d 400, 403, 678 N.E.2d 557 (1997).
{¶82} Where a public official contracted with a private entity for a public purpose,
the records are public records subject to disclosure under R.C. 149.43. State ex rel.
Gannett Satellite Info. Network v. Shirley, 78 Ohio St.3d 400, 403, 678 N.E.2d 557(1997).
{¶83} In State ex rel. Mazzaro v. Ferguson, 49 Ohio St.3d 37, 550 N.E.2d
464(1990), the Ohio Supreme Court held that a city auditor who delegated part of an audit
of the city to a private firm had to disclose under R.C. 149.43(B) the records created by
the private firm. Such records, the Supreme Court held, must be disclosed by a public
office when a private entity performs the duties of a public office, the public office is able
to oversee the private entity, and the public office has access to the records produced by
the private entity. Although the petitioner in Mazzaro requested the records from the
public office, the Court noted that R.C. 149.43(C) authorizes a mandamus action against
Delaware County, Case No. 17 CAI 05 0031 35
either the public office or a private entity holding public records (citing State ex rel.
Mothers Against Drunk Drivers v. Gosser [1985], 20 Ohio St.3d 30, 33, 20 OBR 279, 282,
485 N.E.2d 706, 710).
{¶84} We have already concluded that under both the functional equivalency test
and the quasi-agency test, Duckett prepared records in order to carry out a public office's
responsibilities, Liberty Township monitored Duckett’s performance and Liberty Township
had access to the records.
{¶85} In permitting mandamus against “either the governmental unit or the person
responsible for a public record * * * [, the statute] manifests an intent to afford access to
public records, even when a private entity is responsible for the records.” State ex rel.
Mazzaro v. Ferguson, 49 Ohio St.3d 37, 39, 550 N.E.2d 464 (1990) (emphasis added).
The public’s right of access to public records, includes “any material on which a public
office could or did rely, * * * regardless of where they are physically located, or in whose
possession they may be.” Mazzaro at 40, 550 N.E.2d 464 (emphasis added). A public
office cannot escape its responsibility for public records simply by contracting with a
private entity. See State ex rel. Gannett Satellite Info. Network v. Shirey, 78 Ohio St.3d
400, 403, 678 N.E.2d 557 (1997). Thus, even without a finding that the private entity is a
public office, or a functional equivalent, its records might be subject to disclosure under
R.C. 149.43. State ex rel. Toledo Blade Co. v. Univ. of Toledo Found, 65 Ohio St.3d 258,
263, 602 N.E.2d 1159 (1992).
{¶86} In State ex rel. Mazzaro v. Ferguson, 49 Ohio St.3d 37, 550 N.E.2d
464(1990), the Ohio Supreme Court held that a city auditor who delegated part of an audit
of the city to a private firm had to disclose under R.C. 149.43(B) the records created by
Delaware County, Case No. 17 CAI 05 0031 36
the private firm. Such records, the Supreme Court held, must be disclosed by a public
office when a private entity performs the duties of a public office, the public office is able
to oversee the private entity, and the public office has access to the records produced by
the private entity. Although the petitioner in Mazzaro requested the records from the
public office, the Court noted that R.C. 149.43(C) authorizes a mandamus action against
either the public office or a private entity holding public records (citing State ex rel.
Mothers Against Drunk Drivers v. Gosser [1985], 20 Ohio St.3d 30, 33, 20 OBR 279, 282,
485 N.E.2d 706, 710).
{¶87} The Ohio Supreme Court has also determined that regardless of whether
the relator has established that the private consultant acted as the City's agent or that the
relationship between the City and the consultant satisfied the three-prong test in Mazzaro,
supra, where a public official contracted with a private entity for a public purpose, the
records are public records subject to disclosure under R.C. 149.43. State ex rel. Gannett
Satellite Info. Network v. Shirey, 78 Ohio St.3d 400, 403, 678 N.E.2d 557(1997).
{¶88} In Shirey, the city of Cincinnati contracted with a private consultant to assist
the city in hiring a safety director. The private consultant agreed to provide the city
manager with a list of final applicants, but all applications and resumes would become the
sole property of the private consultant and would not be subject to public review. In
response to a reporter's public records request for all records regarding the applicants for
safety director, the city denied the request based upon the fact that the records were in
the possession of the private contractor.
{¶89} The Ohio Supreme Court determined that the requested documents (which
included applicant resumes and supporting documents of the safety director applicants)
Delaware County, Case No. 17 CAI 05 0031 37
were subject to disclosure under R.C. 149.43. Shirey at 403–404, 678 N.E.2d 557. The
court noted that had the city undertaken the task without hiring the private consultant, the
records at issue would have been subject to disclosure. Id., quoting Forum Publishing
Co. v. Fargo, 391 N.W.2d 169, 172 (N.D. 1986). In concluding that the city could not
attempt to circumvent R.C. 149.43 by contracting with a private company, the court stated
that “to hold otherwise, governmental entities could conceal information concerning the
hiring of important public officials from the public by merely delegating this uniquely public
duty to a private entity.” Id. at 404; State ex rel. Plain Dealer Publishing Co. v. Cleveland,
75 Ohio St.3d 31, 661 N.E.2d 187 (1996) (where a public official contracted with a private
entity for a public purpose—to assist in the filling of a municipal position—the documents
in the private entity's possession are no less a public record simply because they were in
the possession of the private entity, regardless of whether an agency relationship had
been established or the entity had been established as the “person responsible for public
records”).
{¶90} Accordingly, the notes were not exempt from disclosure simply because the
notes are in Duckett’s possession.
{¶91} For all the foregoing reasons, Liberty Township’s Third Assignment of Error
is overruled.
Delaware County, Case No. 17 CAI 05 0031 38
{¶92} The Judgment of the Ohio Court of Claims is affirmed and this matter is
remanded for proceedings in accordance with our opinion and the law.
{¶93} The court finds there were reasonable grounds for this appeal.
By Gwin, J.,
Delaney, P.J., and
Wise, John, J., concur