State ex rel. Armatas v. Plain Twp. Bd. of Trustees (Slip Opinion)

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State

ex rel. Armatas v. Plain Twp. Bd. of Trustees, Slip Opinion No. 2021-Ohio-1176.]

NOTICE

This slip opinion is subject to formal revision before it is published in an

advance sheet of the Ohio Official Reports. Readers are requested to

promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65

South Front Street, Columbus, Ohio 43215, of any typographical or other

formal errors in the opinion, in order that corrections may be made before

the opinion is published.

SLIP OPINION NO. 2021-OHIO-1176

THE STATE EX REL. ARMATAS, APPELLANT, v. PLAIN TOWNSHIP BOARD OF

TRUSTEES, APPELLEE.

[Until this opinion appears in the Ohio Official Reports advance sheets, it

may be cited as State ex rel. Armatas v. Plain Twp. Bd. of Trustees, Slip

Opinion No. 2021-Ohio-1176.]

Public records—R.C. 149.43—Mandamus—Statutory damages and court costs—

Under the “quasi-agency” test, a public-records requester is entitled to

documents from a public office relating to duties of the office when the office

has delegated the duties to a private entity—Court of appeals’ judgment

reversed in part and affirmed in part and statutory damages and court costs

awarded to relator.

(No. 2020-0479—Submitted January 12, 2021—Decided April 8, 2021.)

APPEAL from the Court of Appeals for Stark County,

No. 2019CA00141, 2020-Ohio-1225.

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SUPREME COURT OF OHIO

Per Curiam.

{¶ 1} In this public-records case, appellant, Steven A. Armatas, sought a

writ of mandamus in the Fifth District Court of Appeals to order appellee, Plain

Township Board of Trustees, to produce an invoice for legal services performed on

the township’s behalf. The township declined to produce the invoice, because the

attorneys who performed the services for the township were hired and supervised

by the claims administrator for the risk-management pool to which the township

belonged; the township therefore claims that it did not possess the invoice and has

no duty to provide it.

{¶ 2} The court of appeals denied the writ and Armatas’s related claims for

statutory damages, attorney fees, and court costs. We reverse the judgment of the

court of appeals in part and affirm it in part. We hold that Armatas is entitled to a

writ of mandamus, statutory damages, and an award of court costs, but we affirm

the court of appeals’ judgment denying an award of attorney fees.

I. BACKGROUND

{¶ 3} On December 10, 2018, Armatas sent an e-mail to the township’s

administrator requesting “copies of any invoices for legal services performed for

Plain Township by Baker, Dublikar[, Beck, Wiley & Mathews] with respect to”

three township matters clearly identified by Armatas about which he was interested.

The township’s administrator replied by e-mail the next day, acknowledging receipt

of the request and stating that she would “gather [the] requested materials.” But

for a period of many months, Armatas received neither access to the records nor a

written denial of his request.

{¶ 4} On September 16, 2019, Armatas filed this mandamus action in the

Fifth District. Thereafter, Armatas received a letter dated September 30, 2019,

from James F. Mathews, counsel for the township and a member of the law firm

that had performed the legal services for which Armatas seeks the related invoice.

The letter included the language “Evid.R. 408 communication” in its caption and

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contained a settlement proposal—an offer of compromise that is ordinarily

inadmissible under Evid.R. 408. The township filed an answer adopting the letter

as its formal denial of Armatas’s public-records request.1 The township also

admitted in its answer that “following the acknowledgment of the request by the

Administrator, inadvertently, [Armatas] was not informed that there was no record

kept by the township responsive to the request, until after the filing of the

complaint.”

{¶ 5} Armatas filed a summary-judgment motion, which was denied, and

the parties submitted evidence and briefs.

{¶ 6} The township filed as evidence affidavits of the township’s

administrator, Mathews, and the billing manager of Mathews’s law firm showing

that the township is a member of the Ohio Township Association Risk Management

Authority (“OTARMA”) and that Public Entity Risk Services of Ohio (“PERSO”)

is OTARMA’s claims administrator. With respect to the three matters that Armatas

referred to in his records request, PERSO, rather than the township, had hired the

attorneys and any invoices for the legal services were sent to PERSO rather than

the township. The township’s administrator explained in her affidavit that “[t]he

only time that Plain Township may receive a copy of a third-party law firm invoice

submitted to PERSO [is] when the work in question falls within the Township’s

deductible under the OTARMA Legal Defense and Claim Payment Agreement.”

{¶ 7} The township submitted evidence showing that only one invoice was

responsive to Armatas’s request and it argued that the invoice is not a public record,

because the township never possessed the invoice and the invoice did not document

the township’s own operations.

1. Under Evid.R. 408, we may consider the September 30 letter sent by Mathews to the extent that

it has been offered and treated by the parties as the township’s explanation of its basis for denying

Armatas’s records request. But the affidavits filed by the township as evidence, not the letter,

constitute the evidence relevant to the township’s denial of Armatas’s request.

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{¶ 8} The Fifth District agreed with the township’s argument and denied the

writ. 2020-Ohio-1225, ¶ 15, 30-32, 35-36, 45. The court of appeals further held

that the township’s initial response to Armatas’s request by the township’s

administrator was not evidence of the township’s bad faith. Id. at ¶ 26. And the

court determined that evidence of an alleged telephone conversation during which

the township’s administrator allegedly explained to Armatas that the township did

not possess the invoice was immaterial to the outcome. Id. at ¶ 37-40.2

{¶ 9} Having denied the writ, and because Armatas was a pro se litigant, the

court of appeals rejected Armatas’s claims for statutory damages and attorney fees.

Id. at ¶ 41-43. The court of appeals awarded court costs to the township. Id. at

¶ 46.

{¶ 10} Armatas appealed to this court as of right.

II. ANALYSIS

A. Burden of proof and standard of review

{¶ 11} Armatas, as the relator seeking mandamus, bears the burden of

showing his entitlement to the writ by clear and convincing evidence. State ex rel.

McCaffrey v. Mahoning Cty. Prosecutor’s Office, 133 Ohio St.3d 139, 2012-Ohio-

4246, 976 N.E.2d 877, ¶ 16. Here, the township defends its actions not by invoking

an exception to Ohio’s Public Records Act, R.C. 149.43, but by arguing that

Armatas has failed to sustain his burden of showing a clear legal right to access the

invoice he requested and establishing a clear legal duty on the part of the township

2. In her affidavit, the township’s administrator alleged that she had a telephone conversation with

Armatas in late 2018 or early 2019, during which she explained the township’s position that the

requested invoices were not public records in the township’s possession. Armatas has forcefully

disputed that the telephone call occurred. But as Armatas has also maintained, evidence of the

alleged oral conversation is inadmissible because it contradicts admissions in the township’s answer

to Armatas’s complaint—which the township failed to amend under Civ.R. 15. See Civ.R. 8(B) and

(D); Duncan v. Charter One Bank, 4th Dist. Scioto No. 02CA2855, 2003-Ohio-1907, ¶ 15 (“Parties

cannot simply repudiate their written admissions at pleasure”); Stevens v. Cox, 6th Dist. Wood No.

WD-08-020, 2009-Ohio-391, ¶ 57 (same).

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to provide it. See State ex rel. Penland v. Ohio Dept. of Rehab. & Corr., 158 Ohio

St.3d 15, 2019-Ohio-4130, 139 N.E.3d 862, ¶ 9.

{¶ 12} We review the judgment of a court of appeals in a mandamus action

as if it had been filed originally in this court. State ex rel. Haynie v. Rudduck, 160

Ohio St.3d 99, 2020-Ohio-2912, 153 N.E.3d 91, ¶ 10. We also review de novo the

court of appeals’ determinations concerning statutory damages and attorney fees.

State ex rel. DiFranco v. S. Euclid, 138 Ohio St.3d 367, 2014-Ohio-538, 7 N.E.3d

1136, ¶ 13-14, superseded by statute on other grounds as stated in State ex rel.

Cincinnati Enquirer v. Cincinnati, 157 Ohio St.3d 290, 2019-Ohio-3876, 135

N.E.3d 772.

B. Armatas is entitled to a writ of mandamus under the quasi-agency test

{¶ 13} R.C. 149.43(A)(1) defines “public record” as “records kept by any

public office, including * * * [a] township * * *.” That definition is further refined

by R.C. 149.011(G), which defines “records” to include “any document

* * * created or received by or coming under the jurisdiction of any public office

* * * [that] serves to document the organization, functions, policies, decisions,

procedures, operations, or other activities of the office.” Invoices for legal services

provided to public offices are public records to the extent that they contain only

nonprivileged information (privileged communications must be redacted). See

State ex rel. Anderson v. Vermilion, 134 Ohio St.3d 120, 2012-Ohio-5320, 980

N.E.2d 975, ¶ 13; see also State ex rel. Dawson v. Bloom Carroll Local School

Dist., 131 Ohio St.3d 10, 2011-Ohio-6009, 959 N.E.2d 524, ¶ 26-28.

1. The invoice at issue is a public record under the quasi-agency test

{¶ 14} Public-records requests typically involve a request to a public office

for records kept by the office that document its official activities. See R.C.

149.43(A)(1) and 149.011(G). However, in cases in which a public office receives

a request for records that are in the possession of a private entity, we have

articulated a “quasi-agency” test for determining whether the records are connected

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to the public office’s delegation of its duty to the private entity. See State ex rel.

Am. Civ. Liberties Union of Ohio v. Cuyahoga Cty. Bd. of Commrs., 128 Ohio St.3d

256, 2011-Ohio-625, 943 N.E.2d 553, ¶ 52-53. Even if the public office does not

“create” or “receive” the records, the records may nonetheless be “under the

jurisdiction” of the public office, R.C. 149.011(G). See also Am. Civ. Liberties

Union of Ohio at ¶ 52-53.

{¶ 15} Here, the court of appeals characterized the quasi-agency test as the

basis for determining whether a private entity is subject to the public-records

requirements of R.C. 149.43. 2020-Ohio-1225 at ¶ 31. Indeed, we have applied

the quasi-agency test to a private entity and determined that a private entity may be

required to produce public records. See, e.g., State ex rel. Toledo Blade Co. v. Ohio

Bur. of Workers’ Comp., 106 Ohio St.3d 113, 2005-Ohio-3549, 832 N.E.2d 711,

¶ 19-20; State ex rel. Cincinnati Enquirer v. Krings, 93 Ohio St.3d 654, 657-658,

758 N.E.2d 1135 (2001). But that is not the issue presented in this case. Here, we

must determine whether the quasi-agency test requires the public office itself—the

township—to produce records based on its delegation of its public duty to a private

entity.3

{¶ 16} The quasi-agency theory applies when “ ‘(1) a private entity

prepares records in order to carry out a public office’s responsibilities, (2) the

public office is able to monitor the private entity’s performance, and (3) the public

office has access to the records for this purpose.’ ” Am. Civ. Liberties Union of

Ohio at ¶ 53, quoting State ex rel. Mazzaro v. Ferguson, 49 Ohio St.3d 37, 39, 550

N.E.2d 464 (1990). The caselaw demonstrates, however, that when a requester has

3. When a public-records request is directed at a private entity and seeks records that document its

operations, we ask whether the private entity is “functionally equivalent” to a public office. See

State ex rel. Bell v. Brooks, 130 Ohio St.3d 87, 2011-Ohio-4897, 955 N.E.2d 987, ¶ 18-20. Notably,

in Brooks, we held that a risk-management pool similar to OTARMA was not functionally

equivalent to a public office. Id. at ¶ 26-27, 29. But even if OTARMA does not qualify as a public

office under Brooks, that does not prevent the application of the quasi-agency test to documents in

its possession that are “under the jurisdiction” of a township that is one of its members.

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adequately proved the first prong of the quasi-agency test, the requester has met his

burden: proof of a delegated public duty establishes that the documents relating to

the delegated functions are public records.

{¶ 17} For example, in State ex rel. Gannett Satellite Information Network

v. Shirey, 78 Ohio St.3d 400, 678 N.E.2d 557 (1997), a newspaper company sought

records relating to applications for a position with a city, and the city had retained

a private consultant to process the applications. We held not only that the hiring of

the consultant “did not alter the public nature” of the records but also that

addressing a public-records request to the city was proper—despite provisions in

the city’s contract with the consultant that interfered with the city’s ability to

monitor the consultant’s performance or to access the requested records: “[E]ven

assuming that [the requester] did not establish that * * * the relationship between

the city and [the consultant] satisfied the tripartite test in [Mazzaro], it is evident

that * * * a public official contracted with a private entity for a public purpose.” Id.

at 403-404. Of similar import is our decision in State ex rel. Findlay Publishing

Co. v. Hancock Cty. Bd. of Commrs., 80 Ohio St.3d 134, 137, 684 N.E.2d 1222

(1997), in which we held that a confidentiality provision in a settlement agreement

entered into by a public office did not preclude a document from being a public

record, even though the document was in the possession of the public office’s

private attorney rather than the public office itself.

{¶ 18} It follows from our holdings in those cases that a requester fulfills

his burden once he sufficiently shows that the public office delegated the public

duty to which the requested records relate. When such a delegation has been

proved, contractual impediments to the public office’s ability to monitor a

contractor’s performance and to access documents in the contractor’s possession

do not affect the office’s public-records responsibilities. Our decision in Am. Civ.

Liberties Union of Ohio, 128 Ohio St.3d 256, 2011-Ohio-625, 943 N.E.2d 553, is

consistent with this determination. In that case, although we held that the requester

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had not carried its burden of showing that the public office was able to monitor the

private entities’ performance and to access the records, that holding depended on

our earlier conclusion in that case that there had been no delegation of public duties

from the public office to the private entities. See id. at ¶ 44, 51, 54.

{¶ 19} In this case, the township contends that because the trustees are not

attorneys and because the township has no duty to defend against lawsuits,

PERSO’s decision to hire lawyers to represent the township does not involve the

delegation of a public duty of the township. We reject that argument.

{¶ 20} The township is “a body politic and corporate” that “may sue and be

sued, plead and be impleaded.” R.C. 503.01. The prosecution and defense of such

lawsuits involves a public duty of the township and its trustees. In connection with

such lawsuits, the township and its trustees must take whatever action is necessary

and appropriate to protect the public interest—including hiring and supervising

lawyers. See id. Although the township here has delegated that duty by becoming

a member of OTARMA, the township 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. See Prof.Cond.R. 1.8(f) (preserving the client’s rights and protecting the

client’s interest when the attorney is compensated by a third party).

{¶ 21} The township’s duty to obtain appropriate legal representation is

analogous to other public duties that were delegated by public offices in cases in

which we applied the quasi-agency test. See, e.g., Mazzaro, 49 Ohio St.3d at 39,

550 N.E.2d 464 (because a private entity was hired to perform a periodic audit that

the state auditor otherwise had a legal duty to perform, the audit records were

“within the Auditor’s jurisdiction,” even though they were in the possession of the

private entity); Shirey, 78 Ohio St.3d at 403-404, 678 N.E.2d 557 (city was

responsible for records relating to the hiring of a city official, even though the

records were in the possession of a private consultant and constituted the “property”

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of the consultant under the contract); Krings, 93 Ohio St.3d at 657-658, 758 N.E.2d

1135 (county was responsible for cost-overrun records relating to a stadium that

was built with public funds, even though the records were in the possession of

private contractors).

{¶ 22} We conclude that because Armatas has proved that the requested

legal invoice relates to a delegated public duty, he has satisfied the quasi-agency

test and has shown that the legal invoice constitutes a public record.

2. The invoice at issue comes under the township’s jurisdiction and documents

procedures and operations that the township delegated to OTARMA and PERSO

{¶ 23} The township contends that because it delegates to others the hiring

and payment of legal counsel, legal invoices relating to that delegation are not

public records because they do not “document the organization, functions, policies,

decisions, procedures, operations, or other activities” of the township under R.C.

149.011(G). But because that delegation involves public duties, this argument

lacks merit.

{¶ 24} Although the township has largely submerged certain financial

obligations in a risk-management pool, at some point the payment policies of

OTARMA and PERSO will affect the township’s insurance premiums or the

township’s contributions to the risk-management pool. The township’s trustees

have the obligation to ensure that the township’s participation in OTARMA is the

proper way to handle its obligations on behalf of its residents. Moreover, as the

client of the lawyers hired by PERSO, the township must protect the public interest

by knowing what and how its lawyers are being paid, to ensure the quality of the

representation. Accordingly, the invoice documents public duties delegated by the

township to a private entity and constitutes a public record under the township’s

jurisdiction. The township has a clear legal duty to make it available to Armatas,

and we therefore hold that Armatas is entitled to a writ of mandamus.

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C. Armatas is entitled to statutory damages

{¶ 25} Under R.C. 149.43(C)(2), the “requester shall be entitled to recover”

statutory damages if (1) he submits a written request “by hand delivery, electronic

submission, or certified mail,” (2) the request “fairly describes the public record or

class of public records,” and (3) “a court determines that the public office or the

person responsible for public records failed to comply with an obligation” imposed

by R.C. 149.43(B). Statutory damages accrue “at one hundred dollars for each

business day during which the public office or person responsible for the requested

public records failed to comply * * *, beginning with the day on which the requester

files a mandamus action to recover statutory damages, up to a maximum of one

thousand dollars.” R.C. 149.43(C)(2).

{¶ 26} Armatas submitted his request by e-mail, the request fairly described

the records he was seeking, and the township failed to comply with R.C.

149.43(B)(1) by not producing the requested records promptly. Additionally, the

township failed to provide a written explanation for denying the request, in

violation of R.C. 149.43(B)(3), until after the filing of the mandamus action, despite

the fact that the township’s administrator initially indicated that the township would

comply with the request.

{¶ 27} Armatas filed this mandamus action in September 2019 and he still

has not been granted access to the requested records. He therefore is entitled to the

maximum amount of statutory damages, unless circumstances justify a reduction

of the award pursuant to R.C. 149.43(C)(2)(a) and (b). Those provisions authorize

a court to reduce an award of statutory damages if it finds (1) that “a well-informed

public office * * * reasonably would believe that the conduct * * * that allegedly

constitutes a failure to comply with an obligation” imposed by R.C. 149.43(B) “did

not constitute a failure to comply with an obligation” imposed by that provision,

“based on the ordinary application of statutory law and case law as it existed at the

time of the conduct,” R.C. 149.43(C)(2)(a), and (2) that “a well-informed public

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office * * * reasonably would believe that [its] conduct * * * would serve the

public policy that underlies the authority that is asserted as permitting that conduct,”

R.C. 149.43(C)(2)(b).

{¶ 28} Significantly, R.C. 149.43(C)(2) requires that the findings upon

which we might predicate a reduction not merely consist of reasonable grounds for

denying Armatas’s request. Instead, for this court to reduce the award of statutory

damages, we must find that the township’s “conduct” that Armatas alleges to have

violated R.C. 149.43(B)—all such conduct—had a reasonable basis in legal

authority and public policy. And as noted above, Armatas’s complaint alleged not

only a wrongful failure to produce requested records, but also a wrongful failure to

provide a written denial explaining the township’s reason for the denial.

Significantly, the township’s failure to provide a written explanation for the denial

prior to the filing of the mandamus action followed the township’s initial indication

that it would comply with Armatas’s request.

{¶ 29} R.C. 149.43(B)(3) states:

If a request is ultimately denied, in part or in whole, the

public office or the person responsible for the requested public

record shall provide the requester with an explanation, including

legal authority, setting forth why the request was denied. If the

initial request was provided in writing, the explanation also shall be

provided to the requester in writing.

{¶ 30} The township contends that “R.C. 149.43 does not actually require a

written response when there are simply no responsive documents, rather, the statute

requires a written explanation only when the request is denied.” We disagree.

Quite simply, the township’s determination that the legal invoice was not a public

record in its possession constituted a denial of the request that required the township

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to provide Armatas with a written explanation. And under these circumstances, the

statutory requirement to provide a written explanation to Armatas was even more

apparent because the township’s administrator had initially stated in writing that

the township would “gather [his] requested materials.”

{¶ 31} Accordingly, we hold that the township lacked a reasonable legal

basis for failing to provide Armatas with a written explanation for its denial before

he filed his mandamus complaint and, as a result, no reduction of statutory damages

is warranted. We therefore do not reach the question whether the township had a

reasonable basis for denying access to the requested records.

D. Armatas is entitled to an award of court costs

{¶ 32} R.C. 149.43(C)(3)(a)(i) provides for an award of court costs if a

court orders the production of requested public records. Because the court of

appeals erred by not granting the writ, it also erred by awarding court costs to the

township trustees instead of determining and awarding them to Armatas.

E. Armatas is not entitled to an award of attorney fees

{¶ 33} The court of appeals denied Armatas’s request for attorney fees, in

principal part, because Armatas acted pro se and did not incur any attorney fees.

See 2020-Ohio-1225 at ¶ 42. The court of appeals’ conclusion on that issue was

correct, and we affirm that portion of its judgment. See State ex rel. Thomas v.

Ohio State Univ., 71 Ohio St.3d 245, 251, 643 N.E.2d 126 (1994).

III. CONCLUSION

{¶ 34} We reverse the court of appeals’ judgment and determination that

the requested records are not public records and that Armatas was not entitled to

statutory damages and an award of court costs. We affirm the court of appeals’

judgment denying Armatas’s request for attorney fees. We hold that Armatas is

entitled to a writ of mandamus, statutory damages in the amount of $1,000, and a

determination and award of all court costs. We remand the cause to the court of

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appeals for further proceedings consistent with this opinion. Costs of this appeal

are taxed to respondent.

Judgment reversed in part

and affirmed in part,

and cause remanded.

O’CONNOR, C.J., and KENNEDY, FISCHER, DEWINE, DONNELLY, STEWART,

and BRUNNER, JJ., concur.

_________________

Steven A. Armatas, pro se.

Baker, Dublikar, Beck, Wiley & Mathews, James F. Mathews, and Tonya

J. Rogers, for appellee.

_________________

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