The opinion
[Cite as Ferrise v. Berea City School Dist., 2024-Ohio-5310.]
IN THE COURT OF CLAIMS OF OHIO
ADAM FERRISE Case No. 2024-00504PQ
Requester Special Master Todd Marti
v. REPORT AND RECOMMENDATION
BEREA CITY SCHOOL DISTRICT
Respondent
{¶1} This matter is before me for a R.C.2743.75(F) report and recommendation. I
recommend that the court: (1) order respondent to produce the settlement agreements
requested, subject to redactions to protect third parties’ statutory privacy rights, (2) award
requester his filing fees and other costs, and (3) require respondent to bear the balance
of the costs of this case.
I. Background.
{¶2} Respondent Berea City School District (“the District”) was sued in federal
court over particularly troubling claims (“the Litigation”). Its counsel actively defended the
suits. The District’s Board of Education eventually authorized its superintendent and
treasurer to take any actions necessary to resolve the Litigation. Three functionally
identical settlement agreements were reached. Those agreements provided that the
plaintiffs’ claims would be paid by the District’s insurer. PQ Miscellaneous, filed
September 9, 2024 (“Requester’s Evidence”), pp., 14-62, 148-149, 154-155; Sealed
Documents Received, September 25, 2024.1
{¶3} Requester Adam Ferrise, a reporter for the Cleveland Plain Dealer, made
multiple public records requests for copies of the settlement agreements. The District
1 All references to specific pages of Requester’s Evidence are to the pages of the PDF copy posted in the
court’s docket.
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responded by stating that it had no responsive records. Requester’s Evidence, pp. 10 ¶¶
8-14, 11 ¶¶ 16, 20, 121, 122, 123, 125, 126.
{¶4} Mr. Ferrise brought this case to enforce his requests. Mediation was
unsuccessful and a schedule was set for the parties to file evidence and memoranda
supporting their positions. The District was also ordered to file a copies of the settlement
agreements for in camera review. That schedule has run its course, and the settlement
agreements have been filed, making this case ripe for decision. Order Terminating
Mediation, entered August 23, 2024; Order, entered September 19, 2024; Sealed
Documents Received.
II. Analysis.
A. The settlement agreements are public records and should be produced.
{¶5} A party suing for public records must “prove facts showing that the requester
sought an identifiable public record . . . and that the public office or records custodian did
not make the record available.” Welsh-Huggins v. Jefferson Cty. Prosecutor’s Office,
2020-Ohio-5371, ¶ 33. Mr. Ferrise sought what he claims are public records and the
District did not make those putative public records available. The District does not invoke
any exception to the Public Records Act, but instead argues that the agreements do not
meet the threshold definition of public records. This case therefore turns on whether the
settlement agreements fit within the definition of “public records.”
{¶6} R.C. 149.43(A)(1) defines public records as “records kept by any public office,
including … school district units[.]” (Emphasis added). The settlement agreements are
“records,” they are “kept” by the District for purposes of the Public Records Act, and all
agree that the District is a public office. The settlement agreements are therefore public
records and should be produced.
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1. The settlement agreements are “records.”
{¶7} R.C. 149.011(G) defines a “record,” as relevant here, as “any document . . .
coming under the jurisdiction of any public office . . . which serves to document the . . .
decisions . . . or other activities of the office.” That definition is a direction for “expansion
rather than constriction[.]” Kish v. City of Akron, 2006-Ohio-1244, ¶ 20. Consistent with
that, the courts apply the definition according to its “great breadth” and “expansive scope.”
Id.; State ex rel. Data Trace Information Servs., L.L.C. v. Cuyahoga Cty. Fiscal Officer,
2012-Ohio-753, ¶ 30. The settlement agreements have all the elements of “record[s].”
{¶8} The settlement agreements are “document[s].” A review of the copies filed for
in camera review reveals that they are writings.
{¶9} The settlement agreements came under the District’s “jurisdiction.” On a
general level, “[j]urisdiction is power to act[.]” Roy v. Plageman, 2002-Ohio-6286, ¶ 28 (3d
Dist.); Relief Assn. of Union Works, etc. v. Equitable Life Assur. Soc., 63 Ohio App. 91,
100, (7th Dist.1939). Consistent with that, a matter is within a public office’s jurisdiction
for purposes of R.C. 149.011(G) if the office has statutory authority to address the matter.
Hurt v. Liberty Twp., 2017-Ohio-825, ¶ 16, adopted March 29, 2017 (Ct. of Cl.), aff’d 2017-
Ohio-7820 (5th Dist.).
{¶10} R.C. 3313.17 gave the District power to act regarding the Litigation. It
provides that the District’s Board is “capable of . . . being sued[.]” That language gave
the District power, and indeed the obligation, to “take whatever action is necessary and
appropriate to protect the public interest” in connection with the Litigation. State ex rel.
Armatas v. Plain Twp. Bd. of Trustees, 2021-Ohio-1176, ¶ 20. See also Id. at ¶ 24.
{¶11} The District exercised that statutory power. Its counsel appeared and actively
defended its interests and the District presumably discharged its responsibility to monitor
its counsel’s actions in that lawsuit. Id. at ¶ 24; State ex rel. Hicks v. Clermont Cty. Bd. of
Commrs., 2022-Ohio-4237, ¶ 21 (“in the absence of evidence to the contrary, courts will
presume that public officers have properly performed their duties”); Requester’s
Evidence, pp. 20, 21, 22 at docket entries 6, 8, 21, 27. Further, the District’s Board’s
directed its superintendent and treasurer to “take any actions as may be necessary to
resolve the lawsuit[.]” Id. p. 148. The settlement and the agreements that journalized it
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were therefore within the District’s statutory authority to respond to the Litigation, and
consequently within its jurisdiction for purposes of R.C. 149.43(G).
{¶12} The settlement agreements documented the district’s decisions and actions.
That is true in two respects.
{¶13} First, they documented the District’s response to the Litigation. The District’s
Board decided to seek settlement and directed its superintendent and treasurer to take
action to achieve that result. The settlement agreements document the results of that
decision and those officials’ actions. As the Supreme Court has held, “[s]ettlement
agreements document decisions and activities of the public office” that is a defendant in
the settled litigation. State ex rel. Findlay Publishing Co. v. Hancock Cty. Bd. of Commrs.,
80 Ohio St.3d 134, 136 (1997).
{¶14} Second, they documented the Districts’ financial status. Materials are
records if they shed light on the public office’s financial affairs. State ex rel. Harper v.
Muskingum Watershed Conservancy Dist., 2014-Ohio-1222, ¶ 9 (5th Dist.); Doe v. Ohio
State Univ., 2023-Ohio-4880, ¶ 9, adopted 2024-Ohio-565 (Ct. of Cl.). The Litigation
exposed the District to significant potential liabilities, and the settlement agreements
resolved those liabilities. Those potential liabilities implicated the District’s finances, and
the settlement agreements shed light on those matters. They also shed light on the
District’s future financial status because such settlements can impact insurance
premiums going forward. Armatas, 2021-Ohio-1176, ¶ 24.
{¶15} The settlement agreements are therefore records
{¶16} That is not changed by the District’s assertion that it did not create the
settlement agreements. Statutorily, R.C 149.011(G) does not always require that the office
“create” the document for it to be a record. In the alternative, the document can also be a
record if it is “under the jurisdiction” of the office, as was the case here. Precedentially,
the Supreme Court has treated documents created by entities other than the public office
as records. Armatas, 2021-Ohio-1176, ¶¶ 1, 6, 23, 24 (invoices created by private
lawyers); State ex rel. Cincinnati Enquirer v. Krings, 93 Ohio St.3d 654 (2001) (documents
created by the public office’s contractors and private construction manager). And of
particular import here, the Supreme Court has specifically held that a settlement
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agreement was a record, despite the “preparation of the settlement agreement by the
attorney for the county’s insurer[.]” Findlay Publishing, 80 Ohio St.3d at 137.
{¶17} Nor is it changed by the fact that the District was not a party to the settlement
agreement. Nothing in the text of R.C. 149.011(G) limits the class or records to materials
to which the public office is a party. Consistent with that, the courts have required
production of records documenting transactions the public office was not a party to if those
transactions were related to a delegated governmental function. Armatas, 2021-Ohio-
1176, ¶¶ 1, 6, 24 (invoices to private insurer from law firm hired by the insurer); State ex
rel. Toledo Blade Co. v. Ohio Bur. of Workers’ Comp., 2005-Ohio-3549, ¶¶ 6, 10, 17, 20,
21 (records of transactions between coin brokers and buyers/sellers of coins). Further,
“any material on which a public office . . . did rely” is considered to be a record. State ex
rel. Mazzaro v. Ferguson, 49 Ohio St.3d 37, 40 (1990); Kish, 2006-Ohio-1244, ¶ 20. The
District plainly relied upon the settlement agreements, regardless of whether it was a party
to them; the agreements disposed of significant claims against it. The settlement
agreements are therefore records, regardless of whether the District was a party to the
agreements.
{¶18} Finally, to the extent that there is any doubt about whether the settlement
agreements are records, precedent requires that doubt to be resolved in favor of record
status. State ex rel. Cincinnati Post v. Schweikert, 38 Ohio St.3d 170, 173 (1988); State
ex rel. Dist. 1199, Health Care & Social Serv. Union, SEIU v. Gulyassy, 107 Ohio App.3d
729, 733 (10th Dist.1995); Chernin v. Geauga Park Dist., 2018-Ohio-1579, ¶ 18, adopted
2018-Ohio-1717 (Ct. of Cl.). That tie breaking rule is necessary because public records
are a “portal through which people observe their government, ensuring its accountability,
integrity, and equity while minimizing sovereign mischief and malfeasance.” State ex rel.
Toledo Blade Co. v. Seneca Cty. Bd. of Commrs., 2008-Ohio-6253, ¶ 20. A holding that
the settlement agreements are not records would thwart that important function, limiting
District residents’ ability to hold the District and its officials accountable for a matter of
significant import.
2. The settlement agreements were “kept by” the District for purposes of the
Public Records Act
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{¶19} Although R.C. 149.43(A)(1) requires that a record be “kept by” a public office
for it to be a “public record,” it does not require that the public office maintain actual
possession of the record. Instead, a record is a public record, even in the possession of
a private party, if that party came to have the record as result of the public office delegating
one of its public functions to the private party. Krings, 93 Ohio St.3d at 656; State ex rel.
Gannett Satellite Information Network v. Shirey, 78 Ohio St.3d 400, 403 (1997); Toledo
Blade, 2005-Ohio-3549, ¶¶ 10, 20, 21; Hurt v. Liberty Twp., 2017-Ohio-7820, ¶¶ 80-90
(5th Dist.); Wengerd v. E. Wayne Fire Dist., 2017-Ohio-8951, ¶¶ 21, 22, adopted
December 11, 2017 (Ct. of Cl.); See also State ex rel. Rea v. Ohio Dept. of Edn., 81 Ohio
St.3d 527, 530-531 (1998).
{¶20} Indeed, Armatas and Findlay Publishing applied those principles in cases
that are indistinguishable from this case. In both, as here, public offices were sued and
their insurers arranged for counsel to defend the offices. In both, as here, those counsel
created documents related to the litigation they were defending, but the offices did not
possess those documents. In both, as here, requesters made public records requests for
those records. In both, as here, the offices denied the requests, asserting that the records
were not public records because they did not possess them.
{¶21} Armadas none the less required that the records be produced because they
were created pursuant to a delegation of one of the office’s public duties:
The prosecution and defense of such lawsuits involves a public duty . . . . In
connection with such lawsuits, the [public office] must take whatever action is
necessary and appropriate to protect the public interest—including hiring and
supervising attorneys. Although the [office] here has delegated that duty . . . the
[office] still occupies one side of the bilateral formal relationship between an
attorney and client—a relationship that persists even when an insurer hires an
attorney and exercises substantial control over the course of litigation. 2021-Ohio-
1176, ¶ 20, 21
The Court therefore concluded that the public office’s duty to “obtain appropriate legal
representation is analogous to other public duties that were delegated by public offices in
cases in which” it required the production of records. Id. at ¶ 21.
Findlay Publishing similarly rejected that argument:
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“The board’s argument is meritless. Government entities cannot conceal public
records by delegating a public duty to a private entity. The preparation of the
settlement agreement by the attorney for the county’s insurer, who is representing
the county and its employees in the lawsuit, constitutes a public duty performed by
the county’s agent.” 80 Ohio St.3d at 137.
{¶22} There is no meaningful distinction between Armadas, Findlay Publishing,
and this case. Those precedents should therefore control this case.
***
{¶23} In sum, the settlement agreements fit within the general definition of public
records. The District has not asserted any specific exemption from that definition. I
therefore recommend that the District be ordered to produce the settlement agreements.
{¶24} That said, the agreements contain the names of private individuals, including
minors, whose identities were shielded in the Litigation. The District should be allowed to
redact the settlement agreements to protect those persons’ statutory privacy rights. Matis
v. Toledo Police Dept., 2023-Ohio-4878, ¶ 10, adopted 2024-Ohio-567 (Ct. of Cl.).
C. Requester is entitled to recover his filing fee and costs; respondent should
bear the balance of the costs.
{¶25} R.C. 2743.75(F)(3)(b) provides that the “aggrieved person shall be entitled
to recover from the public office *** the amount of the filing fee *** and any other costs
associated with the action[.]” Mr. Ferrise was aggrieved by the District withholding the
settlement agreements. I therefore recommend that he recover his filing fee and the costs
he incurred in this case. I also recommend that the District bear the balance of the costs
of this case.
III. Conclusion.
{¶26} Based on the foregoing, I recommend that the court:
A. Order respondent to produce the settlement agreements, subject to redactions
to protect third parties’ statutory privacy rights.
B. Award requester his filing fees and other costs.
C. Require respondent to bear the balance of the costs of this case.
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{¶27} 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
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 October 1, 2024
Sent to S.C. Reporter 11/6/24