Lerussi v. Calcutta Volunteer Fire Dept.

[Cite as Lerussi v. Calcutta Volunteer Fire Dept., 2023-Ohio-3092.]
IN THE COURT OF CLAIMS OF OHIO
CHRISTINE LEA LERUSSI Case No. 2023-00434PQ
Requester Special Master Todd Marti
v. REPORT AND RECOMMENDATION
CALCUTTA VOLUNTEER
FIRE DEPARTMENT
Respondent
{¶1} This matter is before the special master for a R.C. 2743.75(F)(1) report and
recommendation. The special master recommends that:
- Requester be given access to all records Respondent has identified as being
responsive to the requests giving rise to this case.
- Requester recover her filing fee and costs, exclusive of attorney fees.
I. Background.
{¶2} Respondent Calcutta Volunteer Fire Department (“the Department”) is a non-
profit corporation that contracts with St. Clair Township to provide fire fighting services. It
operates on two sources of revenue, the proceeds of a township tax levy and funds raised
from other sources. The tax levy funds are deposited into and disbursed from a bank
account used exclusively for those purposes (the “Tax Account”). The other funds are
deposited into and disbursed from a separate account (the “Non-Profit Account”).
Evidence Relied Upon in Defense, filed July 6, 2023, pp. 4-5, ¶¶ 3, 4, 6, 8; Amendment
to (B)(2) Records Responsive to Request Filing, filed July 20, 2023, p. 4, ¶ 3. 1
{¶3} This is the second case between the Department and Christine Lerussi, the
Requester in this case. The first case sought various public records from the Department,
1 All references to specific pages of matters filed in this case are to pages of the PDF copies posted on the
Court’s docket, rather than to any internal pagination of the filings.
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including “records documenting ‘expense categories’ and the “the cost and purchase
dates of assets” “for the years 2019, 2020, 2021, and January – June 2022.” Lerussi v.
Calcutta Volunteer Fire Dept., Ct. of Cl. No. 2022-00657PQ, 2023-Ohio-626, ¶¶ 4,5. The
Department responded by noting that it had cancelled checks from unspecified accounts
that would be responsive to those requests. The court ordered the Department to produce
those checks. Id., 2023-Ohio-626, ¶ 5, adopted 2023-Ohio-1171, ¶ 3 (“Lerussi I”).
{¶4} This case asserts two claims. One is for the records Ms. Lerussi asserts are
required by the judgment in Lerussi I that have not been produced. The other seeks to
enforce an April 14, 2023, records request.
{¶5} Mediation was not ordered in this case. Instead, a case schedule was set for
filing evidence, records for in camera review, and memoranda. Order, entered June 22,
2023.
II. Analysis.
A. The universe of responsive records is not disputed.
{¶6} The Department has identified the following submissions as containing the
canceled checks issued during the time covered by public records request giving rise to
Lerussi I:
Records Filing Exhibit
Designation
Checks from Tax Account, Copies of Cancelled Checks (filed C
January 1, 2019, to June 30, under seal for In camera review)
2022
Checks from Non-Profit Account, Copies of Cancelled Checks (filed D
January 1, 2019, to June 30, under seal for In camera review)
2022
The Department has identified the following materials as responsive to the April 14
request:
Records Filing Exhibit
Designation
Tax Account Bank Copies of All Records Responsive E
Statements/Cancelled Checks to Request (filed under seal for In
camera review)
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Accountant’s Summaries Copies of All Records Responsive F
to Request (filed under seal for In
camera review)
Tax Account Cancelled Checks Copies of All Records Responsive G
to Request (filed under seal for In
camera review)
Nonprofit General Bank Account Copies of All Records Responsive H
Statements/Cancelled Checks to Request (filed under seal for In
camera review)
2023 Financial Spreadsheet Copies of All Records Responsive I
to Request (filed under seal for In
camera review)
Credit Card Statements Copies of All Records Responsive J
to Request (filed under seal for In
camera review)
Bank Statements from Tax Amendment to (B)(2) Records O
Account, March 31,2021, to Responsive to Request Filing (filed
August 31, 2021 under seal for In camera review)
Bank Statements from Tax Amendment to (B)(2) Records P
Account, April 29, 2022, to 2021, Responsive to Request Filing (filed
to June 30, 2022 under seal for In camera review)
List of Check Numbers and Amendment to (B)(2) Records Q
Assets for 2019- 2023 Responsive to Request Filing (filed
under seal for In camera review)
B. Requester is entitled to production of the records collected in Exhibits C, E,
F, G, O, and P.
{¶7} R.C. 149.43(B)(1) requires a public office to produce copies of responsive
public records if a proper request is made and the records do not fit within an exception
to the Public Records Act. All those conditions are presented here.
{¶8} The Department is a public office. It has conceded that it is the functional
equivalent of a public office. Respondent’s Response to Complaint/Motion to Dismiss,
filed July 20, 2023 (“Response”), pp. 6, 7, 8, 9, 12.
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{¶9} Exhibits C, E, F, G, O, and P are public records. R.C. 149.43(A)(1) defines
public records as “records kept by any public office[.]” (Emphasis added). R.C.
149.011(G) in turn provides that “‘Records’ includes any document * * * created or
received by or coming under the jurisdiction of any public office * * * which serves to
document the *** decisions *** or other activities of the office.” The materials collected in
Exhibits C, E, F, G, O and P were received by the Department; that is how they came to
be filed here. They document the Department’s expenditures, and expenditures were the
result of decisions to disburse the funds and were themselves activities of the
Department. See, e.g., State ex rel. R.R. Ventures v. Columbiana Cty. Port, 7th Dist.
Columbiana No. 2002 CO 26, 2004-Ohio-391, ¶¶ 33, 38 (ordering production of “copies
of checks, invoices”). The materials collected in these exhibits were kept by the
Department. They are therefore public records within the plain terms of R.C. 149.43(A)(1)
and R.C. 149.011(G).
{¶10} The Department has not challenged the sufficiency of Ms. Lerussi’s
requests.
{¶11} Nor has the Department argued that the records collected in that Exhibits C,
E, F, G, O, and P fit within any exception to the Public Records Act.
{¶12} Ms. Lerussi is therefore entitled to production of the records collected in
Exhibits C, E, F, G, O, and P.
C. Requester is entitled to the records collected in Exhibits D, H, I, J, and Q
because Respondent has not proven facts making R.C. 149.431(A)(3)
applicable and it has not asserted any other exemption from its duty to
produce records.
{¶13} Exhibits D, H, I, J, and Q are materials related to private funds that flowed
through the Department’s Non-Profit Account. As just discussed, R.C. 149.43(B)(1)
requires a public office to produce copies of responsive public records if a proper request
is made and the records do not fit within an exception to the Public Records Act. All those
conditions are present here.
Case No. 2023-00434PQ -5- REPORT AND RECOMMENDATION
{¶14} The Department is a public office. The Department concedes that it is the
functional equivalent of a public office. That is sufficient to trigger obligations under R.C.
149.43(B)(1).
{¶15} Exhibits D, H, I, J, and Q are public records. R.C. 149.43(A)(1) defines a
public record as a record kept by a public office. R.C. 149.011(G) defines records as
various types of media “created or received by or coming under the jurisdiction of any
public office *** which serve[] to document the organization, functions, policies, decisions,
procedures, operations, or other activities of the office.” These exhibits were “created or
received by or [came] under the jurisdiction” of the Department—the Department filed
them. They document how the Department disbursed funds entrusted to it. Those
disbursements were the results of “decisions” made on behalf of the Department and
were “activities of the office.” These materials were kept by the Department and the
Department is a public office. Exhibits D, H, I, J, and Q possess every element of a public
record set by R.C. 149.43(A)(1) and R.C. 149.011(G).
{¶16} That is not changed by the fact that these materials describe the disposition
of private funds. There are two reasons for that. Initially, the statutory definition of “record”
contains no exception for materials documenting the disposition of private funds and
courts are not free to create exceptions when the legislature has not. State ex rel. Sapp
v. Franklin Cty. Court of Appeals, 118 Ohio St.3d 368, 2008-Ohio-2637, 889 N.E.2d 500,
¶ 26. Further, precedent requires that R.C. 149.011(G) be applied to reflect the statute’s
“expansive scope,” and that any doubts be resolved in favor of classifying a document as
a record. State ex rel. Data Trace Information Servs., L.L.C. v. Cuyahoga Cty. Fiscal
Officer, 131 Ohio St.3d 255, 2012-Ohio-753, 963 N.E.2d 1288, ¶ 30; State ex rel.
Cincinnati Post v. Schweikert, 38 Ohio St.3d 170, 173, 527 N.E.2d 1230 (1988). To the
extent that this is a close question it must be answered in favor of record status.
{¶17} The Department has not challenged the sufficiency of Ms. Lerussi’s requests
for those records.
{¶18} The Department has not proven facts supporting the only exemption from
production it urges. Its only basis for withholding these records is R.C. 143.431(A)(3). It
provides that:
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[A]ny *** nonprofit corporation or association *** that enters into a contract or other
agreement with *** a political subdivision or taxing unit of this state for the provision
of services shall keep accurate and complete financial records of any moneys
expended in relation to the performance of the services pursuant to such contract
or agreement according to generally accepted accounting principles. Such
contract or agreement and such financial records shall be deemed to be public
records as defined in division (A)(1) of section 149.43 of the Revised Code and
are subject to the requirements of division (B) of that section, except that:
***
(3) Any nonprofit corporation or association that receives both public and private
funds in fulfillment of any such contract or other agreement is not required to keep
as public records the financial records of any private funds expended in relation to
the performance of services pursuant to the contract or agreement.
***
Nothing in this section shall be construed to otherwise limit the provisions of
section 149.43 of the Revised Code (emphasis added).
{¶19} As the Department notes, R.C. 149.431 is an exception to R.C. 149.43.
Guardian Home Nursing v. Medina Cty. Health Dept., 113 Ohio App.3d 734, 736, 682
N.E.2d 4 (9th Dist.1996) (“the general rule regarding disclosure of all public records is
subject to certain exceptions. For instance, R.C. 149.431, which governs the disclosure
of the financial records of organizations receiving government funds”). That is consistent
with precedent holding that statutes making different provisions for access to particular
types of records are exemptions from the general provisions of R.C. 149.43. State ex rel.
Dublin Secs. v. Ohio Div. of Secs, 68 Ohio St.3d 426, 430, 627 N.E.2d 993 (1994); State
ex rel. Motor Carrier Serv. v. Rankin, 135 Ohio St.3d 395, 2013-Ohio-1505, 987 N.E.2d
670, ¶¶ 26, 29.
{¶20} The Department has the burden of proving facts making R.C. 149.43(A)(3)
applicable because R.C. 149.431 is an exemption from R.C. 149.43. A public office
asserting an exemption has “the burden of production *** to plead and prove facts clearly
establishing the applicability of the exemption.” Welsh-Huggins v. Jefferson Cty.
Prosecutor’s Office, 163 Ohio St.3d 337, 2020-Ohio-5371, 170 N.E.3d 768, ¶ 27 (internal
punctuation omitted). See also, Id. at ¶¶ 35, 54. That burden must be carried with
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“competent, admissible evidence[.]” Id. at ¶¶ 53, 77. “Unsupported conclusory statements
in an affidavit are insufficient.” Id. at 35. The public office must produce extrinsic evidence
if the applicability of the exemption is “not obviously apparent and manifest just from the
content of the record itself[.]” Id. ¶ 35. See also id. at ¶¶ 30, 50, 53. Further, the office
must make a strong showing. It “does not meet this burden if it has not proven that the
requested records fall squarely within the exception,” and courts must “resolve any doubt
in favor of disclosure.” Id. at ¶¶ 27, 63 See also id. at ¶¶ 50, 63. Given that, “it is not
enough to say that a record is probably within a statutorily prescribed exemption[.]” Id. at
¶ 63 (emphasis sic.).
{¶21} The text of R.C. 149.431(A)(3) establishes two requirements for exempting
records from disclosure. One is that non-profit invoking the exception “receive[d] both
public and private funds in fulfillment of any such contract[.]” The other is that the
putatively exempted records pertain to “private funds expended in relation to the
performance of *** the contract[.]” The Department has not proven either requirement.
{¶22} There is no evidence that the Department “receive[d] both public and private
funds” pursuant to its contract with St. Clair Township. The contract does not mention
payments to the Department of anything other than tax levy funds. Evidence Relied Upon
in Defense, filed July 6, 2023, pp. 12-13, Ex. B. The affidavits submitted on the
Department’s behalf do not prove that it received private funds pursuant to the contract,
but instead state that the private funds in the Non-Profit Account came from other sources.
Id. at p.5, ¶ 8.
{¶23} Nor is there evidence that the funds discussed in Exhibits D, H, I, J and Q
were “expended in relation to the performance of services pursuant to the contract”
between the Department and the Township. That connection is not evident from the
records themselves and the Department offers no extrinsic evidence establishing that
connection.
{¶24} The special master recognizes that this leads to an anomalous result; one at
odds with the case law reflecting a reluctance to apply the Public Records Act to records
reflecting private finances. State ex rel. Oriana House, Inc. v. Montgomery, 110 Ohio
Case No. 2023-00434PQ -8- REPORT AND RECOMMENDATION
St.3d 456, 2006-Ohio-4854, 854 N.E.2d 193, ¶ 36. There are two reasons why that result
is unavoidable here.
{¶25} First, R.C. 149.431(A)(3)’s applicability is expressly conditioned upon a
connection between the private funds described in the records and the non-profit’s
contract with a government entity. Applying the statute without proof of that connection
would amount to editing the statute by removing those express requirements. Courts are
not free to take such action. State ex rel. CNN, Inc. v. Bellbrook-Sugarcreek Local
Schools, 163 Ohio St.3d 314, 2020-Ohio-5149, 170 N.E.3d 748, ¶ 24.
{¶26} Second, this result is consistent with controlling precedent requiring that any
doubt be resolved against an exception. State ex rel. Natl. Broadcasting Co. v. City of
Cleveland, 38 Ohio St.3d 79, 83, 526 N.E.2d 786 (1988); Welsh-Huggins, 163 Ohio St.3d
337, ¶ 28. If there is any doubt about what is required to trigger R.C. 149.431(A)(3), it
must be resolved against applying the exemption.
{¶27} In sum, R.C. 149.431(A)(3) is the only basis the Department asserts for
withholding Exhibits D, H, I, J, and Q. The Department did not carry its burden of proving
that R.C. 149.431(A)(3) applies here. The special master therefore recommends that the
court order that Ms. Lerussi be given access to Exhibits D, H, I, J, and Q.
D. Costs.
{¶28} R.C. 2743.75(F)(3)(b) provides that the “aggrieved person shall be entitled
to recover from the public office or person responsible for the public records the amount
of the filing fee of twenty-five dollars and any other costs associated with the action[.]”
Ms. Lerussi was aggrieved because the Department failed to produce Exhibits D, H, I, J,
and Q. She is therefore entitled to recover her filing fee and all costs incurred in this case.
III. Conclusion.
I. Conclusion.
In light of the foregoing the Special Master recommends that:
A. Requester be given access to Respondent’s Exhibits C, D, E, F, G, H, I, J, O, P,
and Q.
B. Requester recover her filing fee and costs, exclusive of attorney fees.
{¶29} Pursuant to R.C. 2743.75(F)(2), either party may file a written objection with
the clerk of the Court of Claims of Ohio within seven (7) business days after receiving this
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report and recommendation. Any objection shall be specific and state with particularity all
grounds for the objection. A party shall not assign as error on appeal the court’s adoption
of any factual findings or legal conclusions in this report and recommendation unless a
timely objection was filed thereto. R.C. 2743.75(G)(1).
TODD MARTI
Special Master
Filed August 8, 2023
Sent to S.C. Reporter 9/1/23