The opinion
[Cite as Martin v. Accel Schools Ohio, 2024-Ohio-5965.]
IN THE COURT OF CLAIMS OF OHIO
LAVAR MARTIN Case No. 2024-00490PQ
Requester Special Master Todd Marti
v. REPORT AND RECOMMENDATION
ACCEL SCHOOLS OHIO
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 some of the records
requested, subject redactions to protect third parties’ statutory privacy rights, (2) award
requester his filing fee and costs, (3) order respondent to pay the balance of the costs of
this case, (4) deny all other relief.
I. Background.
{¶2} This case involves claims for access to the records of a private company that
manages two community schools formed pursuant to R.C. Chapter 3314. Three
considerations are relevant: the general nature of such schools and the private
companies that operate them, the relationship between the respondent and two
community schools, and the records request at issue/this action to enforce it.
A. Community schools and the private companies that operate them.
{¶3} A community school, Ohio’s name for a charter school, is a school formed
pursuant to a contract between a R.C. Chapter 1702 corporation and a state approved
oversight entity. Once formed, the school is a public school and a political subdivision.
R.C. 3314.01(B); State ex rel. Ohio Congress of Parents & Teachers v. State Bd. of Edn.,
2006-Ohio-5512, ¶ 7; Cordray v. Internatl. Preparatory School, 2010-Ohio-6136, ¶¶ 22-
24; State ex rel. Electronic Classroom of Tomorrow v. Cuyahoga Cty. Court of Common
Case No. 2024-00490PQ -2- REPORT AND RECOMMENDATION
Pleas, 2011-Ohio-626, ¶¶ 25-27; Hope Academy Broadway Campus v. White Hat Mgt.,
L.L.C., 2015-Ohio-3716, ¶ 32. It is also a public office within the meaning of R.C.
117.01(D). Id.; Cordray, 2010-Ohio-6136, ¶ 24.
{¶4} Community schools have all the defining features of a public body. They
operate on public funding, operating funds from the State and grant funds from the federal
government. R.C. 3314.08, R.C. 3314.081; R.C. 3314.082. They are therefore subject to
state auditing requirements, ethics laws, and the Public Records Act. R.C. 3314.03(A)(8)
and (11). Although community schools are exempted from some laws governing school
districts, they must comply with most of the extensive bodies of state and federal law
governing school districts. Ohio Congress, 2006-Ohio-5512, ¶¶ 30, 33, 110-175; I
Anderson’s Ohio School Law Guide § 2.27 (2024); Baldwin’s Ohio School Law, § 48:7
(2023 update).
{¶5} Community schools are under the control of a “governing authority.” That
entity is roughly analogous to the board of education of a public school district. Adm. Code
3301-102-02(I).
{¶6} Although community schools are under the ultimate authority of their
governing authorities, many are managed on a day-to-day basis by private companies.
Those companies perform functions analogous the those performed by the administration
of a public school district. They usually handle all aspects of a school’s operations. That
can include the establishment and implementation of the school’s educational program,
the hiring and supervision of staff, procuring a facility, equipment, and supplies, and
managing the school’s finances. See e.g. Hope Academy, 2015-Ohio-3716, ¶¶ 5, 42, 45.
In sum, those companies “stand in the shoes of” the schools they manage and are the
“de facto persona of” those schools. 1 Anderson’s Ohio School Law Guide § 2.35.1
(2024); Hope Academy, 2015-Ohio-3716, ¶ 44.
B. The relationship between the respondent and the two community schools
involved in this case.
{¶7} Accel Schools Ohio LLC (“Accel”) manages two community schools in
Cuyahoga County, Ohio College Preparatory School (“OCP”) and Northeast Ohio College
Preparatory School (“NEO”) (collectively, the “Schools”). It has functionally identical
Case No. 2024-00490PQ -3- REPORT AND RECOMMENDATION
contracts with the governing authorities of each school. PQ Miscellaneous, Affidavit of
Linda Newton, (“Newton Aff.”), filed October 23, 2024, p. 1, ¶¶ 2, 3; 1, ¶ 12. PQ
Miscellaneous, Exhibit A (“Contracts”), pp. 1-38.
{¶8} Pursuant to those contracts, Accel manages every aspect of the Schools’
operations. It hires, assigns, manages, and trains the Schools’ employees, finds and
maintains facilities for the Schools, provides food services, does the schools’ purchasing,
provides the Schools’ technology, and handles their finances, payroll, and benefits. It also
manages the School’s academic affairs, setting their curriculum, instructional design,
educational philosophy, fixing the levels of educational staffing, and handling student
discipline. It takes care of the Schools’ compliance with state educational laws, auditing
requirements, and grant conditions. Also relevant here, Accel provides the Schools’
executive leadership. Those executives are employed by Accel, rather than the Schools.
Contracts, Art. II, Art. VI; Newton Aff. p. 4, ¶¶ 17, 18.
{¶9} Those services are funded by the Schools. They pay a flat 18% of their
revenue (state and federal funds) as management fees, and reimburse Accel for the cost
of the goods and services necessary to provide the services described above. Contracts,
Art. IV; Newton Aff., pp. 2-3, ¶¶ 10, 11; Ohio Auditor of State, Single Audit, Ohio College
Preparatory School, for the year ended June 30, 2023, p. 41, notes. 13, 14, (“OCP
Audit”);1 Ohio Auditor of State, Single Audit, Northeast Ohio College Preparatory School,
for the year ended June 30, 2023, pp. 41-42, note 13, (“NEO Audit”).2
C. The records request at issue and this enforcement action.
1https://ohioauditor.gov/auditsearch/Reports/2024/Ohio_College_Preperatory_School_2
023_Cuyahoga_FINAL.pdf (accessed November 25, 2024). The special master advised
the parties that he was considering taking judicial notice of the Schools’ audits and asked
them to note any objection to his doing so. Order, entered, October 24, 2024. Neither
party has objected, and the audits are certified. The special master therefore takes
judicial notice of those audits. See State ex rel. Pike Cty. Convention & Visitor’s Bur. v.
Pike Cty. Bd. of Commrs., 2021-Ohio-4031, ¶ 2, n. 3.
2https://ohioauditor.gov/auditsearch/Reports/2024/Northeast_Ohio_College_Preparatory
_School_2023_Cuyahoga_FINAL.pdf (accessed November 25, 2024).
Case No. 2024-00490PQ -4- REPORT AND RECOMMENDATION
{¶10} Requester Lavar Martin was an employee of Accel who worked as the
Assistant Dean of OCP. PQ Sealed Document Filed, filed October 23, 2024 (“In Camera
Docs.”), pp. 193, 197, 204, 243, 249, 256.3 He made a request for records related to
persons who were part of the Schools’ executive leadership and to persons who had
similar roles in connection with other schools Accel manages:
My request pertains to the employment files of all administrators,
regional vice presidents, and regional directors of academics
employed at Acee! Schools, specifically Ohio College Preparatory
and Northeast Ohio College Preparatory School. I would appreciate
receiving the documents electronically at my e-mail address,
lavar.martin30@gmail .com .
1.The personnel files of Debroah Mays, Jennifer Turski, Nova
O’Callaghan, Arnetta Crook, Ivy Dodd, Miysha Godfrey, Horold
Booker, Darryl Owens, Lavar Martin, Temika Whitsett, Veda-Giles
Weeks, Jeremiah Latimore, Barry Yancy, Emma Simpson.
2. Employment files of all administrators employed during the school
years 2020-2024, inclusive of salary information, including the
previously mentioned Names.
3. Details regarding the source of funding for each administrator’s
salary, regional vice presidents, and regional directors of academics,
specifying whether it was funded by state, federal, public, or any
other funds. Additionally, please provide details on the allocation and
distribution of all funds.
4.Offer letters provided to the individuals selected for previously
mentioned Names along with any other Dean of Students, Associate
Dean of Students, Director of Student Culture not mentioned during
the school years 2020-2024.
5. All documents relating to the interviewing and selection process
for previously mentioned Names along with any Dean of Student,
3 All references to specific pages of the In Camera Docs. are based on the Bates numbers
Accel affixed to them.
Case No. 2024-00490PQ -5- REPORT AND RECOMMENDATION
Associate Dean of Student, Director of Student Culture not
mentioned previously. Complaint, filed June 7, 2024, pp. 9-10 (sic).4
Accel responded that it had no public records responsive to this Mr. Martin’s request. That
was based on the fact that the individuals mentioned were employed by Accel rather than
OCP or NEO. Complaint, pp. 7-8, 9; Affidavit of Linda Newton, p. 4, ¶¶ 17, 18.
{¶11} Mr. Martin disputes that response, and filed this case to challenge the denial.
Mediation did not resolve the case, so a schedule was set for the parties to file evidence
and memoranda supporting their positions. Those filings have been made, making the
case ripe for decision. Order Terminating Mediation, entered October 2, 2024; Order,
entered October 11, 2024. See also, Notice of Extension of Time, entered November 14,
2024.
II. Analysis.
A. The Court should deny respondent’s motion to dismiss and decide this
case on the merits.
{¶12} Accel asks the court to dismiss this case for lack of jurisdiction pursuant to
Civ. R 12(B)(1) and for failure to state a claim pursuant to Civ. R. 12(B)(6). Neither basis
is valid.
1. This case is within the jurisdiction granted by R.C. 2743.03(A)(3)(b).
{¶13} Accel asserts that this case is beyond the jurisdiction granted by R.C.
2743.03(A)(3)(b) because it is not a state entity, a political subdivision, or an employee of
such an entity, but instead is a private party. Accel overlooks the plain text of that statute
in two important respects.
{¶14} First, the assertion that R.C. 2743.03(A)(3)(b) only grants jurisdiction over
state entities, political subdivisions, and their employees is rebutted by the legislature’s
use of the phrase “regardless of.” R.C. 2743.03(A)(3)(b) provides that:
In addition to its exclusive, original jurisdiction as conferred by divisions (A)(1) and
(2) of this section, the court of claims has exclusive, original jurisdiction as follows:
4 All references to specific pages of the Complaint are to the pages of the PDF copy
posted on the court’s docket.
Case No. 2024-00490PQ -6- REPORT AND RECOMMENDATION
***
(b) Under section 2743.75 of the Revised Code to hear complaints alleging a denial
of access to public records in violation of division (B) of section 149.43 of the
Revised Code, regardless of whether the public office or person responsible for
public records is an office or employee of the state or of a political subdivision.
(Emphasis added)
{¶15} The phrase “regardless of whether the public office or person responsible for
public records is an office or employee of the state or of a political subdivision” makes a
respondent’s status as a state entity or a political subdivision immaterial. R.C. 1.42
mandates that “[w]ords and phrases shall be … construed according to … common
usage.” The word “regardless” is commonly used as a direction to proceed “without
regard” to, “[w]ithout taking account of,” and “irrespective of” the thing referred to. Collin’s
Dictionary;5 Oxford English Dictionary,6 Consistent with that, Supreme Court precedent
establishes that the phrase “‘regardless of’ means ‘in spite of’ or ‘without taking into
account,’” and that such a phrase “is not limiting but, rather, expansive.” State v. Kyles,
2024-Ohio-5038, ¶ 13. R.C. 2743.03(A)(3)(b)’s grant of jurisdiction over public records
claims “regardless of” whether the respondent “is an office or employee of the state or of
a political subdivision,” therefore grants jurisdiction over the claim “without regard” to,
“[w]ithout taking account of,” and “irrespective of” whether the respondent falls into one
of those categories. That makes the fact that Accel is not a state entity or political
subdivision immaterial to the existence of jurisdiction.
{¶16} Second, Accel’s assertion that R.C. 2643.03(A)(3)(b) does not contemplate
jurisdiction over private parties is rebutted by the statute referring to a “person responsible
for public records” as among the class of potential respondents. R.C. 1.42 also mandates
that “phrases that have acquired a technical or particular meaning . . . shall be construed
accordingly.” R.C. 2743.03(A)(3)(b) was enacted in 2016. 2015 Ohio S.B. 321. It identifies
disputes with a “person responsible for public records” as being within the jurisdiction it
5 https://www.collinsdictionary.com/us/dictionary/english/regardless (accessed November
25, 2024).
6 https://www.oed.com/dictionary/regardless_adj?tl=true (accessed November 25, 2024).
Case No. 2024-00490PQ -7- REPORT AND RECOMMENDATION
granted. By 2016, that phrase had acquired the meaning of referring to private parties. In
1990, the Supreme Court held that the phrase “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 (1990) (emphasis added). That understanding
was reiterated between 1990 and R.C. 2743.03(A)(3)(b)’s enactment. State ex rel. Toledo
Blade Co. v. Ohio Bur. of Workers’ Comp., 2005-Ohio-3549, ¶ 20; S/O ex rel. Am. Ctr. for
Economic Equality v. Jackson, 2015-Ohio-4981, ¶¶ 15-16 (8th Dist.). R.C. 1.42 therefore
requires that R.C. 2743.03(A)(3)(b) be read as granting jurisdiction over claims against
private respondents.
{¶17} Those textual directives are not overcome by Accel’s argument that resolving
claims against it through R.C. 2743.75’s streamlined procedures would deprive it of due
process by not allowing discovery under the Civil Rules. That argument does not
persuade because the facts relevant to the claims against Accel should be well known to
it without discovery. The only claims pressed here are based on the functional
equivalence and quasi-agency doctrines. Those doctrines focus almost exclusively on the
nature of the private entity and its interactions with a public office. The vast majority of the
dispositive facts are therefore knowable to and provable by Accel without discovery.
Although some of the relevant facts involve the Schools’ finances, those facts can be
easily understood and proven through publicly available audits and the information Accel
can access because of its control over the Schools’ finances. Contracts, §§ 2.1(d), (c),
(f), (k); 4.2; 4.3; 4.6; 4.7; 4.8. Indeed, it is telling that Accel does not specify any topics it
needs to explore through discovery.
2. Respondent’s Civ.R. 12(B)(6) motion should be denied because it is
based on materials beyond the complaint.
{¶18} A Civ. R. 12(B)(6) motion cannot be granted if the movant relies on matters
beyond the complaint. State ex rel. Hanson v. Guernsey Cty. Bd. of Commrs., 65 Ohio
St.3d 545, 548 (1992). Accel’s motion relies on such matters. It should therefore be
denied.
B. The court should grant portions requester’s claim for production of
records.
Case No. 2024-00490PQ -8- REPORT AND RECOMMENDATION
{¶19} Mr. Martin asserts two bases for requiring Accel to produce the records he
seeks: that Accel is the functional equivalent of the Schools and that it is their quasi-agent.
The evidence supports both bases, at least in part. Further, Accel’s arguments to the
contrary do not withstand scrutiny.
1. Accel is the functional equivalent of a public office.
{¶20} The courts consider multiple factors in determining whether a private entity
is the functional equivalent of a public office, but the analysis is centered around four
inquiries:
- Does the entity perform a governmental function?
- What level of public funding does the entity receive?
- What is the extent of government involvement in or regulation of the entity?
- Was the entity created by the government or to avoid the requirements of the
Public Records Act?
State ex rel. Oriana House, Inc. v. Montgomery, 2006-Ohio-4854, ¶¶ 23, 25. An otherwise
private entity can be a functional equivalent without all four factors suggesting that result,
and no one inquiry is automatically dispositive. State ex rel. Harm Reduction Ohio v.
Oneohio Recovery Found, 2023-Ohio-1547, ¶¶ 23, 32. Further, those four factors are not
the only factors considered. The Supreme Court has recognized that the four factors are
a “nonexhaustive list,” and this court has considered factors beyond those four. Oriana,
2006-Ohio-4854, ¶ 22; Sheil v. Horton, 2018-Ohio-1720, ¶ 21, aff’d, 2018-Ohio-5240 (8th
Dist.); Schutte v. Gorman Heritage Farm Found, 2019-Ohio-1611, ¶ 7, adopted 2019-
Ohio-1818 (Ct. of Cl.), ¶ 7; Geauga Cty. Prosecutor’s Office v. Munson Fire Dept., 2023-
Ohio-3958, ¶¶ 26-28 adopted 2023-Ohio-4437 (Ct. of Cl.). The functional equivalence
test is used by courts construing the other states’ public records laws, so precedents from
those jurisdictions are relevant. Oriana, 2006-Ohio-4854, ¶¶ 21-22; Munson Fire, 2023-
Ohio-3958, ¶¶ 15, 26.
{¶21} A functional equivalence analysis starts with a presumption that the private
entity is not a functional equivalent. That presumption must be overcome with clear and
convincing evidence. Oriana, 2006-Ohio-4854, ¶ 26.
a. Accel performs a fundamental government function.
Case No. 2024-00490PQ -9- REPORT AND RECOMMENDATION
{¶22} Although no one factor is dispositive, the cases place great weight on
whether the private entity performs a government function. State ex rel. WTOL TV, L.L.C.
v. Cedar Fair, L.P., 2023-Ohio-4593, ¶ 33, gave this factor decisive weight in a case when
the other factors were evenly balanced because the public function was a “fundamental
function[] of state government.” This court has also placed significant weight on the
essential nature of the public function. Munson Fire, 2023-Ohio-3958, ¶ 28. That is
consistent with functional equivalence precedents from elsewhere; they hold that this
factor is the “cornerstone” of, the “most critical[],” and of the “utmost importance” in
functional equivalence analyses. Memphis Publishing Co. v. Cherokee Children & Family
Servs., 87 S.W.3d 67, 79; (Tenn.2002); City Press Communs., LLC v. Tennessee
Secondary School Ath. Assn., 447 S.W.3d 230, 235 (Tenn.App.2014).
{¶23} The function Accel performs is indisputably governmental. It manages the
operations of two public schools. R.C. 2744.01(C)(2)(c) identifies public education as a
governmental function, and the cases use that statute as a benchmark in this aspect of a
functional equivalence analysis. Hurt v. Liberty Twp., 2017-Ohio-7820, ¶ 38 (5th Dist.);
S/O ex rel. Am. Ctr. for Economic Equality v. Jackson, 2015-Ohio-4981, ¶ 20 (8th Dist.);
Munson Fire, 2023-Ohio-3958, ¶ 11, adopted 2023-Ohio-4437, ¶ 16. Out of state
functional equivalence precedent recognizes that public education is a governmental
function. Marks v. McKenzie High School Fact-Finding Team, 319 Ore. 451, 464 (1994)
(“Unquestionably, the operation of a public school is a function traditionally associated
with government”); Tennessee Secondary School Ath. Assn., 447 S.W.3d at 238; Bd. of
Trustees of Woodstock Academy v. Freedom of Information Com., 181 Conn. 544, 554
(1980). Of particular interest here, our Supreme Court has noted, albeit in another
context, that “the management company of a community school . . . performs[s] a
traditional government function[.]” Hope Academy, 2015-Ohio-3716, ¶ 12.
{¶24} Further, education is a fundamental function of state government. The
State’s duty to provide public education arises from a constitutional mandate. Ohio
Const., art. VI. The community school laws were enacted to fulfill that obligation. Ohio
Congress, 2006-Ohio-5512, ¶¶ 23-34. This factor therefore strongly supports
equivalence.
Case No. 2024-00490PQ -10- REPORT AND RECOMMENDATION
{¶25} That conclusion is not undermined by Accel’s arguments to the contrary.
{¶26} Accel’s assertion that it is not involved in the Schools’ teaching function is
rebutted by its contracts with the Schools. Under those contracts, Accel:
- Sets the Schools’ curriculum, instructional design, and educational philosophy
and is “solely responsible for implementing” those things. Contracts, § 2.1(h).
- Selects instructional materials. Id., § 2.2.4(e).
- Evaluates pupils’ performance. Id., § 2.2.4(c).
- Provides special education. Id., § 2.2.4(d).
- Decides how many teachers the Schools need. Id., § 6.3.
- Hires, assigns, and provides professional development for teachers, including
training them to become highly qualified teachers. Id., §§ 2.1(l), 6.3.
Further, Accel’s involvement in those matters is not that of a hands off consultant, it has
“exclusive authority” over them. Id., § 2.2.1.
{¶27} Accel’s argument that acts taken to administer a charter school are not
governmental does not persuade. Not only does Accel fail to provide any authority for this
assertion, the cases demonstrate that administrative actions taken on behalf of charter
schools are governmental acts under analogous standards. Riester v. Riverside
Community School, 257 F.Supp.2d 968, 971-973 (S.D. Ohio 2002); Matwijko v. Bd. of
Trustees of Global Concepts Charter School, 2006 U.S. Dist. LEXIS 103155 (W.D.N.Y,
August 3, 2006).
b. There is no evidence showing the percentage of Accel’s funding
that comes from government.
{¶28} “When considering the government-funding factor” the Supreme Court has
“examined the percentage of the private entity’s total revenues that come from public
sources.” Harm Reduction, 2023-Ohio-1547, ¶ 22. There is no evidence on this point. It
therefore cuts against functional equivalence.
c. Government involvement or regulation.
Case No. 2024-00490PQ -11- REPORT AND RECOMMENDATION
{¶29} This factor is phrased in the disjunctive; it considers “the extent of
government involvement or regulation[.]” Oriana, 2006-Ohio-4854, paragraph two of the
syllabus (emphasis added). It can therefore be satisfied with proof of either a high degree
of involvement with government or a high degree of regulation by government. Sheil,
2018-Ohio-5240, ¶¶ 32-35; Munson Fire, 2023-Ohio-3958, ¶ 17. Both are present here.
i. Accel is intimately involved with the daily operation of two
public schools.
{¶30} An entity is likely to be the functional equivalent of a public office if it is
“closely intertwined” with a government body. That is true even if the entity’s day-to-day
operations are not controlled by government. Sheil, 2018-Ohio-5240, ¶ 35; Schutte, 2019-
Ohio-1611, ¶ 17; Munson Fire, 2023-Ohio-3958, ¶ 17. Several groups of facts establish
that Accel is closely intertwined with the Schools, which are public offices.
{¶31} Operationally, Accel is involved in every aspect of the Schools’ activities. As
shown in its contracts, Accel controls every aspect of the Schools’ day-to-day operations.
Accel:
- Sets and implements the Schools’ educational programs, including the
selection and acquisition of instructional materials, equipment and supplies,
and the administration of extra-curricular and co-curricular activities. Contracts,
§§ 2.1(h), 2.2.4(d), (e).
- Sets the Schools’ operating procedures. Id., § 2.2.4(a)
- Disciplines students. Id., § 2.2.4(a).
- Sets the Schools’ staffing levels. Id., § 2.2.4(f); 6.1; 6.2; 6.4.
- Hires, fires, assigns, and trains the Schools’ line employees and handles the
Schools’ human resources matters. Id., §§ 2.1(a), (b), (e), (l); 2.2.4(f); 6.1, 6.3,
6.2, 6.5.
- Provides the Schools’ executive leadership. Id., §§ 2.1(g); 6.2.
- Finds and maintains the Schools’ facilities. Id., § 2.1(c); 2.2.4(g).
Case No. 2024-00490PQ -12- REPORT AND RECOMMENDATION
- Is responsible for all aspects of the Schools’ food service operations. Id.,
§ 2.1(j).
- Controls the Schools’ funds. Id., § 2.1(d); 4.2; 6.1.
- Purchases all goods and services necessary for the orderly operation of the
Schools. Id. § 2.1(m).
- Handles the Schools’ technology. Id. § 2.1(r)
- Represents the Schools in their interactions with grantors, the Department of
Education, and Auditor of State. Id., § 2.1 (f), (j), (k); 4.8.
{¶32} In short, Accel is granularly involved in every aspect of the Schools’
operations. Similar to Munson Fire, the private entity and public bodies “are operationally
intertwined in multiple ways[.]” 2023-Ohio-3958, ¶ 19. Indeed, Accel’s involvement is far
more pervasive than that found to support equivalence in Munson Fire.
{¶33} Financially, Accel and the Schools are joined at the hip. The Schools fund
the expenditures Accel must make pursuant to its contracts with the Schools, so Accel
could not sustain its operations on their behalf without that support. Contracts, § 4.3.5;
6.1; OCP Audit p. 41, notes. 13, 14 NEO Audit, pp. 41-42, note. 13. Indeed, the essential
nature of the Schools’ funding is evidenced by the fact that Accel has expressly declined
to make those purchases from its own funds and that the lack of funding from the Schools
is grounds for terminating its relationship with them. Contracts, §§ 2.2.2; 3.2. Similarly,
the Schools could not operate without the things purchased by those expenditures; Accel
purchases “all goods and services necessary for the orderly operation of the School[s].”
Id., § 2.1(m) (Emphasis added); OCP Audit p. 41, notes. 13, 14; NEO Audit, pp. 41-42,
note. 13. That mutual dependence also supports the existence of an intertwined
relationship. Munson Fire, 2023-Ohio-3958, ¶¶ 19, 21.
{¶34} Legally, Accel and the schools are in a fiduciary relationship. “A management
company that undertakes the daily operation of a community school has a fiduciary
relationship with the community school that it operates.” Hope Academy, 2015-Ohio-
3716, paragraph two of the syllabus. Accel therefore owes strong fiduciary duties to the
Case No. 2024-00490PQ -13- REPORT AND RECOMMENDATION
Schools. See Renaissance Academy for Math & Science of Missouri, Inc. v. Imagine
Schools, Inc., 2014 U.S. Dist. LEXIS 174728 (W.D. Mo., December 18, 2014), **11-14,
25 (describing the duties). As this court has held, a fiduciary relationship is “an inherently
close relationship” that supports functional equivalence. Munson Fire, 2023-Ohio-3958, ¶
18.
{¶35} Publicly, Accel represents itself as being one with the schools themselves.
Its website presents the Schools as being its own, speaking of them in terms of “we” and
“our[s].”7 That too shows the type of intertwinement supporting functional equivalence.
Sheil, 2018-Ohio-1720, ¶ 12, aff’d, 2018-Ohio-5240, ¶¶ 33, 35; Munson Fire, 2023-Ohio-
3958, ¶ 20.
ii. Accel’s actions on behalf of the Schools are extensively
regulated by government.
{¶36} An entity that manages all aspects of a community school’s operations
“stand[s] in the shoes of” the school. 1 Anderson’s Ohio School Law Guide § 2.35.1. It is
therefore appropriate to consider regulation of a school as regulation of its management
company.
{¶37} Although community schools are exempted from some of the more
“picayune” laws governing other public schools, they are expected to comply with most
of the state and federal laws governing school districts. Ohio Congress, 2006-Ohio-5512,
¶¶ 30, 33, 110-175. Those laws are extensive, including, among other things,
proficiency/achievement standards/testing, teacher licensure requirements, special
education standards/procedures, student privacy laws, verifications of hours of instruction
provided. 1 Anderson’s Ohio School Law Guide § 2.27; Baldwin’s Ohio School Law, §
48:7; Electronic Classroom of Tomorrow, 2018-Ohio-3126. The seminal case of the
functional equivalence test found much less comprehensive regulation of a private
educational entity sufficient to support equivalence. Woodstock Academy, 181 Conn. at
554 (finding that the fact that the private entity had “its operations examined and certified
7 Accel Schools, Our Schools, https://accelschools.com/our-schools/ (accessed
November 25, 2024).
Case No. 2024-00490PQ -14- REPORT AND RECOMMENDATION
by the state board of education so as to be eligible for reimbursement for tuition fees”
supported functional equivalence).
iii. Oriana and Nova do not undermine this aspect of equivalence.
{¶38} Accel relies on Oriana and State ex rel. Repository v. Nova Behavioral
Health, Inc., 2006-Ohio-6713, to argue that this factor does not support equivalence, but
those cases cannot bear the weight Accel places on them. That is true in two respects.
{¶39} First, neither case considered the “government involvement” aspect of this
factor, but instead considered only the “regulation” alternative of this disjunctive test.
Oriana’s disjunctive language and the Eighth District’s decision in Sheil establish that
significant involvement with government is sufficient to support equivalence—even if
government does not regulate the private entity’s day-to-day activities, 2018-Ohio-5240,
¶¶ 31-35. Accel is significantly involved in the Schools’ operations, and they are
government bodies. That supports this factor, independent of the government regulation
prong of this factor.
{¶40} To the extent that Oriana and Nova are relevant to this prong of this
disjunctive factor, they support equivalence. They focused on the “day-to day” interaction
of private entities and government bodies. Accel’s involvement with the Schools is day-
to-day involvement to the nth degree—Accel’s total control over the Schools means that
it is involved all day, every day, in every aspect of their operations.
{¶41} Second, Oriana and Nova are factually distinguishable regarding the
“regulation” alternative because, unlike the entities considered there, Accel is subject to
extensive regulation. As previously discussed, Accel “stand[s] in the shoes of” the Schools
and is their “de facto persona.” 1 Anderson’s Ohio School Law Guide § 2.35.1; Hope
Academy, 2015-Ohio-3716, ¶ 44. As such, its operation of the Schools are subject to
extensive substantive regulation. That regulation is far more pervasive than that in Oriana
and Nova Health. Further, it is more complete than the regulation found sufficient to
support equivalence in Cedar Fair, 2023-Ohio-4593, ¶ 31.
d. Creation.
{¶42} This factor considers whether the private entity “was created by the
government or to avoid the requirements of the Public Records Act.” Oriana, 2006-Ohio-
Case No. 2024-00490PQ -15- REPORT AND RECOMMENDATION
4854, paragraph two of the syllabus. There is no evidence that either of these things are
true of Accel. This factor cuts against functional equivalence.
e. Other factors.
{¶43} The Supreme Court has recognized that the four factors discussed above
are “nonexhaustive[.]” Oriana, 2006-Ohio-4854, ¶ 22. Consistent with that, this court has
considered factors beyond those four. Sheil, 2018-Ohio-1720, ¶ 21; Schutte, 2019-Ohio-
1611, ¶ 7; Munson Fire, 2023-Ohio-3958, ¶¶ 26-28. Four additional factors support
functional equivalence.
{¶44} The first is the large amount of public money involved. This factor is different
from the second factor discussed above in that it does not focus on the public funding’s
impact on the private entity’s finances, but instead considers the private entity’s impact
upon the public body’s finances. Functional equivalence is supported by large outflows of
public money from the public office because the public has an interest in monitoring how
its money is spent. Munson Fire, 2023-Ohio-3958, ¶ 28.
{¶45} Very large amounts of public money flow from the Schools to Accel. Their
most recent state audits reported that during the fiscal year ending June 30, 2023, the
Schools transferred $7,104,733 to Accel. OCP Audit, p. 41, notes. 13, 14; NEO Audit, pp.
41-42, note. 13. All that money is public money. Sun Bldg. Ltd. Partnership v. Value
Learning & Teaching Academy, Hamilton C.P. No. A1404504, 2018 Ohio Misc. LEXIS 2,
¶ 22 (Mar. 26, 2018). Further, that is only the amount transferred in one year of the
Schools’ 10 year contracts with Accel, so it represents only a small portion of the public
funds flowing from the Schools. The public has a strong interest in understanding how
that large amount of public money is spent. That supports equivalence.
{¶46} The second is that Accel exercises governmental authority to make
decisions binding third parties. The functional equivalence test was derived in part from
cases considering whether the federal Freedom of Information Act (“FOIA”) applied to
private entities. Oriana, 2006-Ohio-4854, ¶¶ 21, 25; Woodstock Academy, 181 Conn. at
553-555. Those cases placed significant weight on whether the private entities were
empowered to exercise governmental authority to make decisions binding third parties.
FOIA was applied if they were, but was not if they were not. Grumman Aircraft Eng. Corp.
Case No. 2024-00490PQ -16- REPORT AND RECOMMENDATION
v. Renegotiation Bd., 482 F.2d 710, 715 (D.C. Cir. 1973); Washington Research Project,
Inc. v. Dept. of Health, Edn. & Welfare, 504 F.2d 238, 247-248 (D.C. Cir.1974); Ciba-
Geigy Corp. v. Mathews, 428 F.Supp. 523, 527-528 (S.D.N.Y.1977); Ry. Labor Executives’
Assoc. v. Consol. Rail Corp., 580 F.Supp. 777, 779 (D. D.C. 1984). Other states applying
the functional equivalence test likewise consider the private entity’s ability to make
decisions binding on third parties. Meri-Weather, Inc. v. Freedom of Information Comm.,
47 Conn. Supp. 113, 120 (2000), aff’d & opinion adopted, 63 Conn. App. 695 (2001)
(“Courts have held that entities that are the functional equivalent of a public agency have
the power to govern or to regulate or to make decisions”); Marks, 319 Ore. at 464-465,
466. See also News & Observer Pub. Co. v. Wake Cty. Hosp. Sys., Inc., 55 N.C. App. 1,
8-9 (1981).
{¶47} Accel has that authority. It can hire, fire, assign, and discipline the Schools’
employees. It can discipline students. It determines the nature of the special education
students receive. It can regulate parents’ actions with regard to the school. Contracts, §§
2.1(a), b); 2.2.4(a), (d), (f); 6.1; 6.2; 6.3. Each of those actions would be the exercise of
governmental authority if taken by a traditional public school. There is no apparent reason
why they are not the exercise of governmental authority here. Further, Accel’s decisions
are final because the Schools have given Accel “exclusive authority” over those matters
and have reserved only the right to provide informational input. Id., §§ 2.2.1; 2.2.5. Accel’s
decisions on those matters therefore bind third parties (employees, students, parents).
This too supports functional equivalence.
{¶48} The third is that the functions Accel performs would have been performed by
the Schools’ absent their contracts with Accel. The Supreme Court noted in Nova that
functional equivalence is more likely when the private entity performs tasks that would
otherwise be within the scope of a public body’s responsibilities. 2006-Ohio-6713,¶ 28. It
relied on that dynamic to support a finding of equivalence in Harm Reduction, 2023-Ohio-
1547, ¶¶ 33, 34.
{¶49} The functions Accel performs would unquestionably be performed by the
Schools absent their contracts with Accel. The Schools are public schools and the
functions Accel performs for them are the nuts and bolts, the blocking and tackling, of
Case No. 2024-00490PQ -17- REPORT AND RECOMMENDATION
running a public school. Those tasks would necessarily be performed by the Schools
absent their delegation to Accel. That supports functional equivalence.
{¶50} The fourth is the complete nature of delegation the Schools made to Accel.
As this court has noted, “equivalence is supported by the complete transfer of the
government function involved . . . equivalence is more likely when a public body makes
a wholesale delegation of its duties to a private entity.” Munson Fire, 2023-Ohio-3958,
¶ 26. That is because a “finding against equivalence would frustrate” the purpose of the
Public Records Act by “effectively placing the [delegating office’s] operations . . . in a
black box.” Id. at ¶ 28. Courts performing the functional equivalence analyses in other
states likewise find that sweeping delegations support equivalence. Mem. Hosp.-West
Volusia v. News-Journal Corp., 729 So.2d 373, 381 (Fla.1999); Memphis Publishing, 87
S.W.3d at 78-79.
{¶51} The Schools have made a complete delegation of their functions to Accel.
Accel performs every aspect of the Schools’ operations. All the schools have retained is
a limited ability to negotiate their annual budgets; they have ceded all other functions and
all other discretion to Accel. This too supports equivalence.
f. Weighing the factors.
{¶52} The balance of the factors tips towards equivalence. Of the six factors
applicable here, four support equivalence (governmental function, involvement
with/regulation by government, amount of public money involved, exercise of
governmental authority, the otherwise public nature of the work performed, the complete
nature of the delegation). Further, those factors do so strongly; they do not present close
questions. In contrast, only two factors weigh against equivalence (proportion of the
private entity’s public funding, the circumstances of the entity’s creation). Other cases
have found equivalence despite those factors cutting against it. Harm Reduction, 2023-
Ohio-1547, ¶ 23 (percentage of private entity’s public funding); Cedar Fair, 2023-Ohio-
4593, ¶¶ 30, 32 (percentage of private entity’s public funding, circumstances of creation);
Munson Fire, 2023-Ohio-3958, ¶ 23 (circumstances of creation). I therefore recommend
that the court find that Accel is the functional equivalent of the Schools.
Case No. 2024-00490PQ -18- REPORT AND RECOMMENDATION
{¶53} I do not, however, recommend that the court find that Accel is the functional
equivalent of any other school. Functional equivalence must be supported by clear and
convincing evidence. Oriana, 2006-Ohio-4854, ¶ 26. Although that evidence is present
regarding the Schools, no evidence is present regarding Accel’s relationship to any other
school. Any order requiring the production of records based on functional equivalence
should therefore be limited to records related to the Schools.
2. The quasi-agency doctrine also requires Accel to produce some of the
records requested.
{¶54} The quasi-agency doctrine allows access to records in a private party’s
possession that are related to a delegated public function. State ex rel. Armatas v. Plain
Twp. Bd. of Trustees, 2021-Ohio-1176, ¶¶ 16-18; State ex rel. Ames v. Baker, Dublikar,
Beck, Wiley & Mathews, 2022-Ohio-3990, ¶¶ 6-14. It is based on the settled principle
that public “entities cannot conceal public records by delegating a public duty to a private
entity.” State ex rel. Findlay Publishing Co. v. Hancock Cty. Bd. of Commrs., 80 Ohio St.3d
134, 137 (1997). The quasi-agency doctrine applies even if the private entity is not the
functional equivalent of a public office. Armatas, 2021-Ohio-1176, ¶ 15, n. 3. A requester
is entitled to records under this test if the evidence establishes that the records sought
are related to a delegated governmental function. Id. at ¶ 16.
{¶55} The evidence here establishes that records related to the persons
specifically named in Mr. Martin’s request are related to a delegated public function. Mr.
Martin seeks several types of personnel records related to several named persons who
served the Schools. As discussed in connection with functional equivalence, running a
public school is a governmental function, and the various specific tasks involved in doing
so are normally performed by the school, a public office. Hiring managerial staff is a
governmental function that supports the application of the quasi-agency doctrine if a
public office delegates that function to a private entity. State ex rel. Gannett Satellite
Information Network v. Shirey, 78 Ohio St.3d 400, 403 (1997); State ex rel. Plain Dealer
Publishing Co. v. City of Cleveland, 75 Ohio St.3d 31, 35 (1996). Documents related to
human resources matters are generally public records. Ohio Attorney General, Ohio
Case No. 2024-00490PQ -19- REPORT AND RECOMMENDATION
Sunshine Laws 2024, An Open Government Resource Manual, p. 75.8 The Schools are
public offices, and they have delegated their hiring and other human resources functions
to Accel. Contracts, §§ 2.1(a), (b), (g), (e); 2.2.4(f); Art. VI. The records sought in
paragraphs 1, 2, 4, and 5 of Mr. Martin’s request are all related to that function: hiring
managerial staff for the Schools and related human resources matters. Further, the In
Camera Docs. show that all the persons Mr. Martin specifically identified were hired to
perform services for one or both of the Schools:
Named Individual Position In Camera Doc. pp.
Deborah Mays Superintendent 1612-1613
Jennifer Turski Director of Academics, 1100, 1113, 1119, 1126,
1134, 1295
Nova O’Callaghan Principal 1760, 1767, 1778
Arnetta Crook Director of Academics 315, 322, 330
Veda-Giles Weeks Principal, Director of Student 2001, 2325, 2339
Services
Emma Simpson Family and Community Liaison 818, 824, 834,
Ivy Dodd Associate Principal, Director of 968, 1045, 1053, 1067,
Academics, Family & Community 1075
Liaison
Miysha Godfrey Dean of Students, Office 1667, 1694
Manager
Horold Booker Dean of Students 900, 907
Darryl Owens Dean of Students 745
Lavar Martin Assistant Dean 193, 197, 204, 243, 249,
256
Temika Whitsett Director of Academics, Director 1871, 1921,
of Professional Learning
Jeremiah Latimore Dean of Student 1304
Barry Yancy Dean of Students, Basketball 336, 354, 363, 369, 376
Coach
The records regarding those persons are therefore accessible via the quasi-agency
doctrine.
8https://www.ohioattorneygeneral.gov/Files/Publications-Files/Publications-for-
Legal/Sunshine-Laws-Publications/2024-Sunshine-Manual (accessed November 25,
2024)
Case No. 2024-00490PQ -20- REPORT AND RECOMMENDATION
{¶56} The evidence does not, however, establish that the doctrine applies to
records regarding the unnamed administrators referenced in Mr. Martin’s request. There
must be evidence proving facts making the quasi-agency doctrine applicable. Armatas,
2021-Ohio-1176, ¶¶ 16, 18; Ames, 2022-Ohio-3990, ¶ 7. There is no evidence that the
unnamed administrators performed any function delegated from the Schools or any other
public office, so the doctrine cannot be applied to records concerning them.
{¶57} Those conclusions are not undermined by Accel’s arguments against
applying the quasi-agency doctrine. Each of those arguments are rebutted by controlling
precedent.
{¶58} Accel’s argument that the materials sought were not public records because
they were not created or received by the Schools overlooks Armatas and Ames. Those
cases held that a document is a record if it is “under the jurisdiction” of a public office,
even if it was not created or received by the office. They further held that a document
generated in connection with the delegated performance of an office’s public functions is
under the office’s jurisdiction and hence is a public record. Armatas, 2021-Ohio-1176,
¶¶ 14, 22, 23; Ames, 2022-Ohio-3990, ¶ 8. See also, Ferrise v. Berea City School Dist.,
2024-Ohio-5310, ¶¶ 9-11, 16 (Ct. of Cl.). Here, the Schools were required to find
administrators to oversee their operations and delegated that function to Accel. The
materials sought are related to Accel performing that function. Those materials are
therefore under the School’s jurisdiction, and hence public records, even if the Schools
did not create or receive those records.
{¶59} Accel’s argument that the materials need not be produced because they are
owned by it, rather than the Schools, overlooks State ex rel. Mazzaro v. Ferguson, 49
Ohio St.3d 37 (1990). It held that “[r]ecords owned or possessed by private entities . . .
are subject to statutory disclosure requirements . . . R.C. 149.43(B) requires the
disclosure of public records and applies despite any ownership interest.” Id. at 40
(Emphasis added).
{¶60} Accel’s argument that the quasi-agency doctrine must be invoked against
the public office, rather than the private delegee, overlooks Ames and the case law it
summarized. Ames rejected the same argument because the cases had “extended the
Case No. 2024-00490PQ -21- REPORT AND RECOMMENDATION
quasi-agency test to private entities, requiring them to produce public records” and
because “the Public Records Act authorizes a mandamus action against either ‘a public
office or the person responsible for the public record,’ R.C. 149.43(C)(1)(b).” 2022-Ohio-
3990, ¶ 10 (Emphasis added). State ex rel. Brown v. Columbiana Cty. Jail, 2024-Ohio-
4969, is not to the contrary. Although Brown upheld bringing a quasi-agency claim against
the office rather than its delegee, it did not require that approach.
{¶61} Accel’s arguments about the various subparts of the quasi-agency other than
the delegation of a public function overlooks Armatas. That case held that those subparts
are immaterial if the requester shows that the materials sought are related to a delegated
public function. 2021-Ohio-1176, ¶¶ 16-18. That has been shown here, making those
subparts irrelevant.
3. Accel’s other arguments against production are flawed.
{¶62} Accel makes two other arguments against production of records, but neither
is valid.
{¶63} Accel has waived its arguments that Mr. Martin’s request was ambiguous
and overbroad. A respondent “that does not timely deny a request as ambiguous or overly
broad and provide the requester with the opportunity to cure that defect has waived the
defense of overbreadth in subsequent enforcement litigation.” Hunt Eng., LLC v. Ohio
EPA, 2022-Ohio-3141, ¶ 11, adopted 2022-Ohio-3557 (Ct. of Cl.); Schaffer v. Ohio State
Univ., 2024-Ohio-2185, ¶ 46, adopted 2024-Ohio-2625 (Ct. of Cl.); R.C. 149.43(B)(2).
Accel did not raise ambiguity or overbreadth in its responses to Mr. Martin’s requests.
Complaint, pp. 7-9. It has therefore waived those defenses.
{¶64} Accel’s assertion that it is excused from producing records containing
information exempted from the Public Record Act overlooks the text of R.C. 149.43(B)(1).
It does not authorize the wholesale withholding of a record because it contains some
exempt information. It instead requires that if “a public record contains information that is
exempt … the public office or the person responsible for the public record shall make
available all of the information within the public record that is not exempt.” (Emphasis
Case No. 2024-00490PQ -22- REPORT AND RECOMMENDATION
added). The fact that some of the records responsive to Mr. Martin’s request contain
exempted information therefore provides no basis for withholding those records.
4. Paragraph 3 of requester’s request is unenforceable.
{¶65} R.C. 149.43(B)(1) codifies a right to records that capture information, but not
to information apart from records. It nowhere mentions information in the abstract. It
instead provides that upon “request . . . public records responsive to the request shall be
. . . made available[.]” (emphasis added). A “public record” consists of a “record,” and a
“record” is something that contains information, but is different than the information itself.
It is a “document, device, or item” recording information. R.C. 149.011(G). R.C.
149.43(B)(1) therefore does not direct offices to provide free floating information, but only
documents, devices, or items containing information. The cases reflect the distinction.
Relief is denied when the claimant has “requested information rather than records” State
ex rel. Griffin v. Sehlmeyer, 2022-Ohio-2189, ¶ 1, because requests “for information ***
are improper requests under R.C. 149.43.” State ex rel. Morgan v. City of New Lexington,
2006-Ohio-6365, ¶ 30. See also Griffin, 2022-Ohio-2189, ¶¶ 10-13; State ex rel. Griffin v.
Sehlmeyer, 2021-Ohio-1419, ¶¶ 11-12; State ex rel. Griffin v. Sehlmeyer, 2021-Ohio-
3624, ¶¶ 5-6.
{¶66} The third paragraph of Mr. Martin’s request seeks information about Accel’s
funding, apart from records. It is therefore unenforceable.
5. The court should deny requester’s motion to compel.
{¶67} The court should deny Mr. Martin’s October 24, 2024, Motion to Compel for
because he failed to provide proof that the motion was served. Civ. R. 5(B)(4) therefore
prohibits any relief based on that motion.
6. Summary of recommendation regarding production of records.
{¶68} The scope of the productions I recommend vary depending upon the legal
bases for applying the Public Records Act to Accel.
{¶69} If the court holds that Accel is the functional equivalent of the Schools, Accel
should be ordered to produce all records responsive to paragraphs 1, 2, 4, and 5 of Mr.
Case No. 2024-00490PQ -23- REPORT AND RECOMMENDATION
Martin’s request that pertain to either of the Schools, regardless of whether they pertain
to the individuals named in paragraph 1 of that request. Accel should not be required to
produce, in this case, records related to other schools. Accel should not be ordered
produce the information sought in paragraph 3 of Mr. Martin’s request. All records
produced should be redacted to protect third parties’ statutory privacy rights.
{¶70} If the court does not conclude that Accel is the functional equivalent of the
Schools, but does find that the quasi-agency doctrine applies, Accel should be ordered to
produce all records responsive to paragraphs 1, 2, 4, and 5 of Mr. Martin’s request that
pertain to the individuals named in paragraph 1 of that request. Accel should not be
ordered to produce records related to the unnamed administrators mentioned in Mr.
Martin’s request. Nor should Accel be required to respond to the requests for information
made in paragraph 3 of Mr. Martin’s request. All records produced should be redacted to
protect third parties’ statutory privacy rights.
C. Requester is entitled to recover his filing fee and costs; respondent
should bear the balance of the costs.
{¶71} 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. Martin was aggrieved by the Accel withholding records
he was entitled to. I therefore recommend that he recover his filing fee and the costs he
incurred in this case. I also recommend that Accel bear the balance of the costs of this
case.
III. Conclusion.
{¶72} In light of the foregoing, I recommend that:
A. If the court accepts the proposition that Accel is the functional equivalent of the
Schools, Accel be ordered to produce all records responsive to paragraphs 1,
2, 4, and 5 of Mr. Martin’s request that pertain to either of the Schools,
regardless of whether they pertain to the individuals named in paragraph 1 of
that request. All records produced should be redacted to protect third parties’
statutory privacy rights.
Case No. 2024-00490PQ -24- REPORT AND RECOMMENDATION
B. If the court does not conclude that Accel is the functional equivalent of the
Schools, but does find that the quasi-agency doctrine applies, Accel be ordered
to produce all records responsive to paragraphs 1, 2, 4, and 5 of Mr. Martin’s
request that pertain to the individuals named in paragraph 1 of that request. All
records produced should be redacted to protect third parties’ statutory privacy
rights.
C. The court order that Mr. Martin recover from Accel his filing fee and the other
costs he incurred in connection with this case and that Accel bear the balance
of the costs of this case.
D. That the court deny all other relief.
{¶73} 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 November 25, 2024
Sent to S.C. Reporter 12/20/24