The opinion
[Cite as Newman v. Greater Columbus Arts Council, 2025-Ohio-734.]
IN THE COURT OF CLAIMS OF OHIO
MICHAEL NEWMAN Case No. 2024-00619PQ
Requester Judge Lisa L. Sadler
v. DECISION AND ENTRY
GREATER COLUMBUS ARTS
COUNCIL, et al.
Respondents
{¶1} In this public-records case, Requester, a self-represented litigant, partially
objects to a Special Master’s Report and Recommendation. The Court overrules
Requester’s objections and adopts the Report and Recommendation for reasons
explained below.
I. Background and Procedural History
{¶2} On August 8, 2024, Requester filed a Complaint under R.C. 2743.75(D) in
which Requester alleged: “The Greater Columbus Arts Council [GCAC] and the
Columbus Film Commission [CFC] have improperly denied me of access to their public
records in violation of sections 149.43 and 149.431 of the Ohio Revised Code.”
Requester appended information to the Complaint to support his allegations, including
the following description of his public-records request:
On 7-11-24 I emailed a Public Records Request to John Daugherty,
the Executive Director of CFC. I emailed Mr. Daugherty a slightly revised
request on 7-15‐24 (Exhibit A). My revised request was for the following
documents pertaining to CFC/Film Columbus:
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1. All complete Film Columbus financial reports/expense &
revenue reports/budget reports from the years 2015-2024 with line
item breakdowns showing how this public funding was spent.
2. All Film Columbus annual reports from the years 2015-2024.
3. All travel expense reports with receipts from Film Columbus
executive director John Daugherty for the years 2015-2024 with
complete line item breakdowns.
4. All Film Columbus expense reports with line item breakdowns
for consulting fees, marketing & research studies or reports, and
filmmaker production visits for the years 2015-2024.
5. All invoices from 2015-2024 pertaining to all companies,
consultants, and independent contractors paid by Film Columbus.
6. All financial reports/expense reports/budget reports and
invoices pertaining to the Ohio Film Studio Feasibility Study
conducted by SHM Partners in 2023.
7. An actual copy of the 2023 feasibility report conducted by
SHM Partners.
8. All expense reports for all pitch competitions and all film
summits conducted by Film Columbus from 2015-2024.
9. All expense reports for all workshops conducted by Film
Columbus from 2015- 2024.
10. All Film Columbus expense reports pertaining to all
advocacy efforts for the Ohio Motion Picture Tax Credits from 2015-
2024.
11. All Employment Reviews/Assessments/Valuations of John
Daugherty from the years 2015-2024 conducted by GCAC, the Film
Columbus Board of Trustees and/or the GCAC Board of Trustees.
12. All bylaws & codes of rules and regulations for the Boards
of Trustees for both Film Columbus and GCAC.
13. All contracts between Film Columbus, GCAC, and the City
of Columbus from 2015-2024.
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(Emphasis sic.)
{¶3} Requester asserts that Mr. Daugherty did not respond to his public-records
request, but, according to Requester, on July 15, 2024, he received a response from
CFC’s attorney, Mr. Edward Segelken, which was addressed to Johann Geistmeister, in
which Mr. Segelken, in part, advised:
Ohio law does not require either the CFC nor the GCAC to maintain
any “public records” and there is simply no legal support for requiring either
the CFC or the GCAC to respond to a PRR [public-records request] under
Ohio law.
Your PRR is denied because the CFC and GCAC are not public
offices and furthermore and note [sic] of the requested information falls
within the definition of “public records” under Ohio law. To obtain budgets,
annual reports or other records from the City of Columbus’ regarding Its
functions, policies, decisions, procedures, operation or other activities of the
City, we direct your attention to the City’s website for information on how to
request public records: ….
(Emphasis sic.) (Background, Attachment A.)
{¶4} The Court appointed a Special Master who referred the case for mediation.
After mediation failed to successfully resolve all disputed issues between the parties, the
case was returned to the docket of the Special Master.
{¶5} On January 23, 2025, the Special Master issued a Report and
Recommendation (R&R). The Special Master determined that Requester’s claim for
production of records should be granted, in part. After the Special Master applied the
factors of the functional-equivalency test contained within State ex rel. Oriana House, Inc.
v. Montgomery, 2006-Ohio-4854 to determine whether Respondent (a private entity)
should be deemed a public institution under R.C. 149.011(A), and thus a public office for
purposes of the Public Records Act, the Special Master determined that the evidence was
in equipoise. (R&R, 4.) The Special Master explained that Requester “has shown two
factors, but failed to show two other factors. That falls short of the clear and convincing
evidence required to prove functional equivalence.” (R&R, 4.) However, the Special
Master further determined that R.C. 149.431 entitles Requester to many of the records
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he seeks, but Requester has not shown that all the records otherwise available through
R.C. 149.431 exist. (R&R, 5-8.) The Special Master “recommend[s] that the court:
A. Grant requesters claim for the production of the records generated from
January 1, 2020 through July 15, 2024 that are responsive to parts 1, 6, and
13 of his records request.
B. Award requester his filing fees and costs.
C. Require respondent to bear the balance of the costs of this case.
D. Deny all other relief.”
(R&R, 8.)
{¶6} On January 29, 2025, Requester filed written objections in which Requester
partially objects to the Report and Recommendation. Requester has certified that he
served a copy of his objections on Respondent’s counsel “via email and certified mail.”1
On February 4, 2025, Respondent filed a Response to Requester’s objections.
Respondent’s counsel has certified that she served a copy of Respondent’s Response
on Requester “via email and certified mail.”
{¶7} Pursuant to R.C. 2743.75(F)(2), Requester’s objections are before the Court
for determination and the case is before the Court for a final judgment. See R.C.
2743.75(F)(2) (“[t]he court, within seven business days after the response to the objection
is filed, shall issue a final order that adopts, modifies, or rejects the report and
recommendation”).
II. Law and Analysis
A. Legal Standard, Respondent’s Objections, and Requester’s Response.
{¶8} Through the enactment of R.C. 2743.75 the General Assembly created an
alternative means to resolve public-records disputes. Welsh-Huggins v. Jefferson Cty.
Prosecutor’s Office, 2020-Ohio-5371, ¶ 11. See R.C. 2743.75(A). Under Ohio law a
requester “must establish entitlement to relief in an action filed in the Court of Claims
under R.C. 2743.75 by clear and convincing evidence.” Viola v. Cuyahoga Cty.
1 Under R.C. 2743.75(F)(2) either party “may object to [a] report and recommendation within seven
business days after receiving the report and recommendation by filing a written objection with the clerk and
sending a copy to the other party by certified mail, return receipt requested” and “[i]f either party timely
objects, the other party may file with the clerk a response within seven business days after receiving the
objection and send a copy of the response to the objecting party by certified mail, return receipt requested.”
Case No. 2024-00619PQ -5- DECISION & ENTRY
Prosecutor’s Office, 2021-Ohio-4210, ¶ 16 (8th Dist.), citing Hurt v. Liberty Twp., 2017-
Ohio-7820, ¶ 27-30 (5th Dist.). See Welsh-Huggins at ¶ 32. It is a requester’s burden to
prove, by clear and convincing evidence, that the requested records exist and are
public records maintained by a respondent. See State ex rel. Cordell v. Paden, 2019-
Ohio-1216, ¶ 8. See Cross v. Ledford, 161 Ohio St. 469 (1954) (paragraph three of the
syllabus) (“[c]lear and convincing evidence is that measure or degree of proof which is
more than a mere ‘preponderance of the evidence,’ but not to the extent of such certainty
as is required ‘beyond a reasonable doubt’ in criminal cases, and which will produce in
the mind of the trier of facts a firm belief or conviction as to the facts sought to be
established”); State ex rel. Cincinnati Enquirer v. Deters, 2016-Ohio-8195, ¶ 19, quoting
State ex rel. McCaffrey v. Mahoning Cty. Prosecutor’s Office, 2012-Ohio-4246, ¶ 16
(“[a]lthough the Public Records Act is accorded liberal construction in favor of access
to public records, ‘the relator must still establish entitlement to the requested
extraordinary relief by clear and convincing evidence’”).
{¶9} A public-records custodian has the burden to establish the applicability of an
exception to disclosure of a public record. State ex rel. Cincinnati Enquirer v. Jones-
Kelley, 2008-Ohio-1770, paragraph two of the syllabus. In Jones-Kelley, the Ohio
Supreme Court held:
Exceptions to disclosure under the Public Records Act, R.C. 149.43, are
strictly construed against the public-records custodian, and the custodian
has the burden to establish the applicability of an exception. A custodian
does not meet this burden if it has not proven that the requested records fall
squarely within the exception. (State ex rel. Carr v.
Akron, 112 Ohio St.3d 351, 2006-Ohio-6714, 859 N.E.2d 948, ¶ 30,
followed.)
Kelley at paragraph two of the syllabus.
{¶10} Here, Requester “partially object[s] to the Special Master’s Report and
Recommendation. Specifically, [Requester] object[s] to the following Special Master’s
findings:
1. Requester has not made a clear and convincing case that GCAC is the
Case No. 2024-00619PQ -6- DECISION & ENTRY
functional equivalent of a public office because GCAC only meets two of the
four main factors.
2. Records requested in Request #2 are not financial records.
3. Records requested in Requests #7, #11, and #12 are not public
records.
4. Requestor has not shown that all the records otherwise available
through R.C. 149.431 exist.”
Requester seeks the following relief:
“1. Uphold my objections to the Special Master’s Report and
Recommendation.
2. Order GCAC to produce all of the records I requested.
3. Conclude that GCAC is the functional equivalent of a public office.”
In response, Respondent urges: “Put simply, the Special Master got this one right.”
Respondent contends that, in the Report and Recommendation, the Special Master
correctly found that GCAC is not the functional equivalent of a public office and that,
pursuant to R.C. 149.431, Requester is entitled to financial records. Respondent asks
the Court to adopt the Report and Recommendation.
B. Requester has not shown that the Columbus Greater Arts Council (a
private entity) is the functional equivalent of a public office by clear and
convincing evidence.
{¶11} A private entity may be subject to the Ohio Public Records Act if the entity is
shown to be the functional equivalent of a public office by clear and convincing evidence.
See State ex rel. Oriana House, Inc. v. Montgomery, 2006-Ohio-4854, paragraph one of
the syllabus (“[p]rivate 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”); see Cross v. Ledford, supra, at paragraph three of the syllabus (definition
of “clear and convincing evidence”).
{¶12} In Oriana House, the Supreme Court of Ohio established the following
functional-equivalency test to determine whether a private entity is a public institution
under R.C.149.011(A):
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In determining whether a private entity is a public institution under
R.C. 149.011(A) and thus a public office for purposes of the Public Records
Act, R.C. 149.43, a court shall apply the functional-equivalency test. Under
this test, the court must analyze all pertinent factors, including (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. at paragraph two of the syllabus. Application of the
functional-equivalency test “requires a case-by-case analysis, examining all pertinent
factors with no single factor being dispositive.” State ex rel. Oriana House, Inc. at ¶ 23.
{¶13} Despite Requester’s objections, upon independent review, the Court finds
that, in this instance, the Special Master’s correctly applied Oriana House’s functional-
equivalency test, when, after balancing the Oriana House factors, he concluded that the
evidence is in equipoise whether GCAC is the functional equivalent of a public office, and,
consequently, Requester failed to provide clear and convincing evidence to rebut a
presumption that GCAC—a private entity—is not subject to the Ohio Public Records Act.
See Oriana House at ¶ 26 (“hold[ing] that the 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”). The Court agrees with the Special Master’s view that
Requester “has shown two factors, but failed to show two other factors. That falls short of
the clear and convincing evidence required to prove functional equivalence.” (R&R, 4.)
C. The Special Master’s recommendation about Request # 2 is not error.
{¶14} Requester objects to the Special Master’s determinations that records
requested in Request #2 are not financial records for purposes of R.C. 149.431 and that
such records are not required to be provided.
{¶15} In Request # 2, Requester asked for the following: “All Film Columbus annual
reports from the years 2015-2024.” Requester states in his objections: “The Special
Master erroneously concluded that Request #2 does not include financial records. It is
clear that Request #2 is a request for financial documents. Film Columbus’ Annual
Case No. 2024-00619PQ -8- DECISION & ENTRY
Reports are by definition financial records. I included the 2018 Annual Report (Exhibit A)
in my original complaint to show with clear and convincing evidence these annual reports
are financial by nature.” (Objections, 8-9.)
{¶16} In the Report and Recommendation, the Special Master determined that
Request # 2 was not a request for a financial record under R.C. 149.431. The Special
Master reasons: “The materials sought in parts 2, 7, 11, and 12 are not ‘financial’ records
because they do not relate to money, the way money is managed, or monetary receipts
and expenditures. Those materials need not be produced.” (R&R, 7.)
{¶17} R.C. 149.431 applies to certain contracts of nonprofit corporations or
associations with governmental entities and financial records of any moneys expended in
relation to services provided under such contracts. R.C. 149.431 states:
(A) Except as provided in [R.C. 9.833, 2744.081, and 3345.203], any
governmental entity or agency and any nonprofit corporation or association,
except a corporation organized pursuant to [R.C. Chapter 1719] prior to
January 1, 1980 or organized pursuant to [R.C. Chapter 3941], that enters
into a contract or other agreement with the federal government, a unit of
state government, or 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 [R.C.
149.43(A)(1)] and are subject to the requirements of [R.C. 149.43], except
that:
(1) Any information directly or indirectly identifying a present or
former individual patient or client or such an individual patient’s or client’s
diagnosis, prognosis, or medical treatment, treatment for a mental or
emotional disorder, treatment for a developmental disability, treatment for
drug abuse or alcoholism, or counseling for personal or social problems is
not a public record;
Case No. 2024-00619PQ -9- DECISION & ENTRY
(2) If disclosure of the contract or agreement or financial records is
requested at a time when confidential professional services are being
provided to a patient or client whose confidentiality might be violated if
disclosure were made at that time, disclosure may be deferred if reasonable
times are established when the contract or agreement or financial records
will be disclosed.
(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.
(B) Any nonprofit corporation or association that receives more than
fifty per cent of its gross receipts excluding moneys received pursuant to
Title XVIII of the “Social Security Act,” 49 Stat. 620 (1935), 42 U.S.C. 301,
as amended, in a calendar year in fulfillment of a contract or other
agreement for services with a governmental entity shall maintain
information setting forth the compensation of any individual serving the
nonprofit corporation or association in an executive or administrative
capacity. Such information shall be deemed to be public records as defined
in [R.C. 149.43 (A)(1)] and is subject to the requirements of division (B) of
that section.
Nothing in this section shall be construed to otherwise limit the
provisions of section 149.43 of the Revised Code.
The term “financial” or “financial records” is not defined in R.C. 149.431. In common
usage, the term “financial” means “pertaining to monetary receipts and expenditures;
pertaining or relating to money matters; pecuniary.”
https://www.dictionary.com/browse/financial (accessed Feb. 14, 2025). See R.C. 1.42
(“[w]ords and phrases shall be read in context and construed according to the rules of
grammar and common usage. Words and phrases that have acquired a technical or
particular meaning, whether by legislative definition or otherwise, shall be construed
accordingly”). Here, the Special Master states: “The materials sought in parts 2, 7, 11,
Case No. 2024-00619PQ -10- DECISION & ENTRY
and 12 are not ‘financial’ records because they do not relate to money, the way money is
managed, or monetary receipts and expenditures.” (R&R, 7.) Such reasoning is
consistent with the meaning of “financial,” as defined above.
{¶18} The Court, however, is cognizant that, in common usage, the term “financial”
may be broadly defined as “relating to finance or financiers,” which, in turn, may pertain
to a document, such as an annual report.
{¶19} Notably, under R.C. 149.431(A)(3) any nonprofit corporation or association
that receives both public and private funds in fulfillment of a contract or other agreement
with a political subdivision “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.” In the excerpts from CFC’s 2018 Annual Report (which
Requester states that he obtained from a public-records request to the City of Columbus’
Finance Division in 2022 and which Requester appended to his Complaint), “in kind” and
“contributions” (in addition to “fiscal sponsors”) are listed as sources of revenue.
Additionally, “contract personnel,” “insurance,” “telephone,” and “office expenses” are
listed as “expenses.” It thus appears that CFC’s annual reports may include a listing of
private funds that are received and from which a portion such private funds is expended
to pay for expenses.
{¶20} Upon independent review, the Court finds Requester’s objection to the
Special Master’s recommended disposition of Request # 2 is not persuasive.
D. The Special Master’s recommendations about Requests No. 7, No. 11, and
No. 12 are not error.
{¶21} In Requests #7, #11, and # 12, Requester seeks the following:
7. An actual copy of the 2023 feasibility report conducted by SHM Partners.
11. All Employment Reviews/Assessments/Valuations of John Daugherty
from the years 2015-2024 conducted by GCAC, the Film Columbus Board
of Trustees and/or the GCAC Board of Trustees.
12. All bylaws & codes of rules and regulations for the Boards of Trustees
for both Film Columbus and GCAC.
Requester states in his objections: “If this Court agrees with my argument that GCAC is
the functional equivalent of a public office, then the records pertaining to requests #7,
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#11, and #12 should be provided to me because they would be, by definition, public
records.” (Objections, 9.)
{¶22} As discussed above, the Court disagrees with Requester’s contention that
he has proven by clear and convincing evidence that GCAC is the functional equivalent
of a public office. The Court finds that Requester’s objections pertaining to the Special
Master’s recommended disposition of Request Nos. 7, 11, and 12 are not persuasive.
E. Requester has not shown by clear and convincing evidence that records
pertaining to Request Nos. 3, 4, 9, and 10 exist.
{¶23} Requester maintains that, despite the Special Master’s findings to the
contrary, he has satisfied his burden to prove by clear and convincing evidence that
records pertaining to Request Nos. 3, 4, 9, and 10 exist. In Request Nos. 3, 4, 9, and 10,
Requester sought the following records:
3. All travel expense reports with receipts from Film Columbus
executive director John Daugherty for the years 2015-2024 with complete
line item breakdowns.
4. All Film Columbus expense reports with line item breakdowns for
consulting fees, marketing & research studies or reports, and filmmaker
production visits for the years 2015-2024.
9. All expense reports for all workshops conducted by Film Columbus
from 2015- 2024.
10. All Film Columbus expense reports pertaining to all advocacy
efforts for the Ohio Motion Picture Tax Credits from 2015-2024.
Within the submitted evidence is an affidavit of Thomas J. Katzenmeyer, President &
CEO, Greater Columbus Arts Commission (GCAC). (Katzenmeyer Affidavit, filed
Dec. 26, 2024). In the affidavit, Mr. Katzenmeyer avers:
….
2. Columbus Film Commission ceased operations in 2020. That year,
the Film Commission became part of GCAC, at which point the Film
Commission formally dissolved.
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3. Due to the dissolution of the Film Commission and merger of the
two organizations, GCAC does not have in its possession any document
prior to 2020.
4. GCAC does not maintain travel expense reports with receipts for
John Daugherty.
5. GCAC does not maintain expense reports with line item
breakdowns for consulting fees, marketing & Research studies or reports,
and filmmaker production visits.
6. GCAC does not maintain expense reports for all workshops
conducted by Film Columbus.
7. GCAC does not maintain invoices pertaining to all companies,
consultants, and independent contractors paid by Film Columbus. That
information can be found in GCAC’s IRS 990 forms.
8. GCAC does not maintain expense reports pertaining to all
advocacy efforts for the Ohio Motion Picture Tax Credits. That information
can be found in GCAC’s IRS 990 forms.
{¶24} In Sell v. Trumbull Cty. Juv. Div., 2024-Ohio-6139, ¶ 6 (Ct. of Cl.), this Court
recently stated:
Where a public office asserts that all records have been provided, a
requester must provide sufficient evidence that the records exist in order to
succeed on a public records claim. State ex rel. Sultaana v. Mansfield Corr.
Inst., 2023-Ohio-1177. If the public office provides affidavit testimony that
no records exist, the requester must provide clear and convincing evidence
that the records do exist. State ex rel. McCaffrey v. Mahoning Cty.
Prosecutor’s Office, 2012-Ohio-4246. However, “some evidence” is
sufficient if the office does not provide affidavit testimony negating the
existence of additional responsive records. Sultaana at ¶ 37-43. Some
evidence exists if the requester establishes facts that would usually result
in the existence of the additional records or if other records refer to or
otherwise suggest the existence of the additional records. Id.; Mattis v
Toledo Police Dept., 2023-Ohio-4878 (Ct. of Cl.).
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{¶25} Upon independent review, the Court finds that Requester has not provided
clear and convincing evidence to rebut Mr. Katenmeyer’s averments that no records
responsive to Request Nos. 3, 4, 9, and 10 exist. Requester’s challenge to the Special
Master’s recommendations concerning Request Nos. 3, 4, 9, and 10 is not well taken.
III. Conclusion
{¶26} After carefully considering the parties’ arguments and relevant law, and after
carefully considering the facts and circumstances presented here, the Court
OVERRULES Requester’s Partial Objections to the Special Master’s Report And
Recommendation. The Court ADOPTS the Report and Recommendation issued on
January 23, 2025.
{¶27} In accordance with the Special Master’s recommendations, the Court
GRANTS Requester’s claim for the production of the records generated from January 1,
2020 through July 15, 2024 that are responsive to parts 1, 6, and 13 of Requester’s
records request. The Court ORDERS that, within 45 days of the date of this entry,
Respondent shall file a written certification that Respondent has produced to Requester
the records generated from January 1, 2020 through July 15, 2024 that are responsive to
parts 1, 6, and 13 of Requester’s records request. The Court further ORDERS that
Requester is entitled to recover from Respondent the amount of the filing fee of twenty-
five dollars and any other costs associated with the action that are incurred by Requester,
excepting attorney fees. Court costs are assessed against Respondent. All other relief
is denied. The Clerk shall serve upon all parties notice of this judgment and its date of
entry upon the journal.
LISA L. SADLER
Judge
Filed February 18, 2025
Sent to S.C. Reporter 3/6/25