Geauga Cty. Pros. Office v. Munson Fire Dept.

[Cite as Geauga Cty. Pros. Office v. Munson Fire Dept., 2023-Ohio-4437.]

IN THE COURT OF CLAIMS OF OHIO

GEAUGA COUNTY Case No. 2023-00503PQ

PROSECUTOR'S OFFICE

Judge Lisa L. Sadler

Requester

DECISION AND ENTRY

v.

MUNSON FIRE DEPARTMENT

Respondent

{¶1} In this public-records case, Respondent objects to a Special Master’s Report

and Recommendation and Requester moves to strike Respondent’s objections. The

Court overrules Respondent’s objections and denies Requester’s motion to strike for

reasons that follow.

I. Background

{¶2} On July 27, 2023, Requester Geauga County Prosecutor’s Office filed a

public-records complaint against Respondent Munson Fire Department. Requester

claimed that it requested, but never received, certain documents, namely, unredacted

payroll reports (or an explanation with the basis for the redactions), “W-2sw,” “1099s,”

paystubs, and financial reports. The Court appointed a Special Master who referred the

case to mediation. After mediation failed to successfully resolve all disputed issues, the

case was returned to the Special Master.

{¶3} On October 17, 2023, the Special Master issued a Report and

Recommendation (R&R). The Special Master determined that Respondent is the

functional equivalent of a public office and that the quasi-agency doctrine requires

Respondent to provide the requested records. The Special Master recommends that (1)

“Respondent be ordered to produce unredacted copies of the records filed for in camera

review or to explain the redactions,” (2) “Requester recover its filing fee and costs,

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exclusive of attorney fees,” and (3) “Respondent bear any remaining costs of this case.”

(R&R, 13.)

{¶4} On November 6, 2023, Respondent filed written objections to the Report and

Recommendation. A copy of the objections “was provided via U.S. mail to Requester’s

counsel,” according to a Certificate of Service accompanying Respondent’s objections.

{¶5} On November 20, 2023, in a combined filing, Requester responded to

Respondent’s written objections and moved to strike Respondent’s objections for failing

to comply with requirements contained in R.C. 2743.75(F)(2). Requester served its filing

on Respondent’s counsel by certified mail, returned receipt requested, according to a

Certificate of Service accompanying Requester’s filing.

II. Law and Analysis

{¶6} The General Assembly has created an alternative means to resolve public-

records disputes through the enactment of R.C. 2743.75. Welsh-Huggins v. Jefferson

Cty. Prosecutor’s Office, 163 Ohio St.3d 337, 2020-Ohio-5371, 170 N.E.3d 768, ¶ 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. Prosecutor’s Office, 8th Dist. Cuyahoga

No. 110315, 2021-Ohio-4210, ¶ 16, citing Hurt v. Liberty Twp., 2017-Ohio-7820, 97

N.E.3d 1153, ¶ 27-30 (5th Dist.). See Welsh-Huggins v. Jefferson Cty. Prosecutor’s

Office, 163 Ohio St.3d 337, 2020-Ohio-5371, 170 N.E.3d 768, ¶ 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, 156

Ohio St.3d 394, 2019-Ohio-1216, 128 N.E.3d 179, ¶ 8.

{¶7} 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, 118 Ohio St.3d 81, 2008-Ohio-1770, 886 N.E.2d 206, 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

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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,

P 30, followed.)

Kelley at paragraph two of the syllabus.

A. Requester’s motion to strike is not well taken.

{¶8} Requester moves the Court to strike Respondent’s objections to the Report

and Recommendation because Respondent failed to serve its objections by certified mail,

as required by R.C. 2743.75(F)(2). See R.C. 2743.75(F)(2) (“[e]ither party may object to

the 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”).

{¶9} Requester’s motion to strike is unpersuasive for at least two reasons.

{¶10} First, in R.C. 2743.75 the General Assembly has not included a provision

that allows a party to move to strike another party’s objections to a report and

recommendation. See Kish v. City of Akron, 109 Ohio St.3d 162, 2006-Ohio-1244, 846

N.E.2d 811, ¶ 44 (the General Assembly is the ultimate arbiter of policy considerations

relevant to public-records law and the judiciary’s role is to interpret existing statutes, not

rewrite them). Compare R.C. 2743.03(D) (providing that the Ohio Rules of Civil

Procedure “shall govern practice and procedure in all actions in the court of claims, except

insofar as inconsistent with this chapter”).

{¶11} Second, notwithstanding that R.C. 2743.75(F)(2) requires service of an

objection by certified mail, return receipt requested, it “is a fundamental tenet of judicial

review in Ohio that courts should decide cases on the merits.”1 De Hart v. Aetna Life Ins.

Co., 69 Ohio St.2d 189, 192, 431 N.E.2d 644 (1982). Here, since Requester has filed a

written response to the merits of Respondent’s objections, the Court finds that Requester

will not be prejudiced if the Court considers the merits of Respondent’s objections—

1 Pursuant to R.C. 2743.75(F)(2), “[e]ither party may object to the 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.”

Case No. 2023-00503PQ -4- DECISION & ENTRY

despite Respondent’s failure to follow requirements contained in R.C. 2743.75(F)(2) for

service of its objections.

B. Respondent’s objections are not well taken.

{¶12} Pursuant to R.C. 2743.75(F)(2), any objection to a report and

recommendation “shall be specific and state with particularity all grounds for the

objection.” In the objections, Respondent maintains:

(1) The Special Master “made the ‘overly broad’ statement that ‘the Township is

significantly involved in the Department’s operation’ and that the two are

intertwined. The undisputed facts show that it is simply not the case. Munson Fire

is a self-directed, independent, private corporation;”

(2) The Special Master “made inappropriate judgments on the credibility of assertions

made by Munson Fire which are inappropriate in a case where there is no

evidentiary hearing;” and

(3) The Special Master “ignored and apparently refused to consider factual and public

policy considerations that weighed heavily in favor of a finding that Respondent

was neither a ‘functional equivalent’ or ‘quasi-agency’ under Ohio law.”

Upon careful consideration, the Court finds that Respondent’s objections are

unpersuasive.

1. The Special Master did not err when he found by clear and convincing

evidence that Respondent was the functional equivalent of a public office.2

{¶13} Under Ohio law a private entity may be considered a public office for

purposes of the Ohio Public Records Act. As used in R.C. Chapter 149, except as

otherwise provided, the term “public office” “includes any * * * other organized body, office,

agency, institution, or entity established by the laws of this state for the exercise of any

function of government.” Under R.C. 149.011(A) the term “public office,” however, “does

not include the nonprofit corporation formed under [R.C. 187.01 (JobsOhio)].” R.C.

2 Clear 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.” Cross v. Ledford, 161 Ohio St. 469, 469, 120 N.E.2d 118 (1954),

paragraph three of the syllabus.

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149.011(A). Accord State ex rel. Freedom Communs. v. Elida Community Fire Co., 82

Ohio St.3d 578, 579, 697 N.E.2d 210 (1998), citing State ex rel. Toledo Blade Co. v. Univ.

of Toledo Found., 65 Ohio St. 3d 258, 260, 602 N.E.2d 1159 (1992) (“[a]n entity need not

be operated by the state or a political subdivision thereof to be a public office under R.C.

149.011(A). The mere fact that [Elida Community Fire Company] is a private, nonprofit

corporation does not preclude it from being a public office”).

{¶14} In State ex. rel. Oriana House, Inc. v. Montgomery, 110 Ohio St.3d 456,

2006-Ohio-4854, 854 N.E.2d 193, the Ohio Supreme Court set forth a “functional-

equivalency test” with respect to private entities. In State ex rel. Oriana House, the Ohio

Supreme Court stated:

1. 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.

2. 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.

Id. at paragraphs one and two of the syllabus.

{¶15} Upon review, the Court finds that the Special Master correctly determined by

clear and convincing evidence that, by all pertinent factors, Respondent is a public office

under the functional-equivalency test set forth in State ex rel. Oriana House. Specifically,

under the presented evidence, as discussed below, Respondent satisfies three of the four

factors identified in State ex rel. Oriana House.

1) Respondent performs a governmental function.

{¶16} The provision of fire and emergency medical services constitutes a

governmental function. See R.C. 2744.01(C)(2)(a) (a governmental function includes

“[t]he provision or nonprovision of police, fire, emergency medical, ambulance, and

rescue services or protection”); see also State ex rel. Freedom Communs. v. Elida

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Community Fire Co., 82 Ohio St.3d 578, 580, 697 N.E.2d 210 (1998), quoting Laine v.

Rockaway Beach, 134 Ore. App. 655, 664, 896 P.2d 1219, 1223 (1995), quoting Ayres

v. Indian Hts. Volunteer Fire Dept., 493 N.E.2d 1229, 1235 (Ind. 1986) (“‘“[f]irefighting is

a service that is uniquely governmental. The need to control, prevent, and fight fires for

the common good of the community has been universally accepted as a governmental

function and duty in this State and, as far as we can determine, in this Nation, from its

very beginning”’”).

{¶17} Here, in a contract between Respondent and Munson Township, Munson

Township “recognizes the Fire Department as its sole and exclusive agent for fire and

Emergency Medical Services.” (Exhibit A to Motion To Dismiss/Verified Response,

Contract, Article 2, Recognition, effective December 4, 2018.)

2) Four-fifths of Respondent’s funding is from public sources.

{¶18} Respondent represents that it “receives approximately 80% of its funding

from public sources.” (Motion To Dismiss/Verified Response, 7.) Respondent also

represents that it “receives approximately twenty percent (20%) of its funding for its

ambulance services from insurance companies and individuals.” (Id.) Thus, four-fifths of

Respondent’s funding is from public sources.

3) Munson Township is involved in the regulation of Respondent.

{¶19} Respondent asserts that it is a self-directed, independent, private

corporation and that it is not “intertwined” with Munson Township. Under the contract

between Munson Township and Respondent, “[e]xcept as specifically limited by the

explicit provisions of this Contract, [Respondent] retains full right and responsibility to

make all decisions regarding the day-to-day activities of the Fire Department and all

aspects of its operations, employment and employees to provide the highest level of fire

and EMS protection possible.” (Exhibit A to Motion To Dismiss/Verified Response,

Contract, Article 2, Recognition, effective December 4, 2018.)

{¶20} While Respondent may be a self-directed, independent, private corporation,

Munson Township nevertheless is involved in the regulation of Respondent under the

contract between Munson Township and Respondent. For example, pursuant to Article 3,

Respondent

Case No. 2023-00503PQ -7- DECISION & ENTRY

shall provide to the Township any updates to its Employee Policy Manual,

if such updates have been made and exist since the last update provided

to the Township.

From the date of the completion of the next risk-related standards

compliance audit, the Fire Board of Trustees shall provide a new risk-related

standards compliance audit every two (2) years to the Township Board of

Trustees. This internal audit shall provide a system to determine the extent

to which the Fire Department is following the National Fire Protection

Association (NFPA) standards:

• NFPA 1500 Standard for Fire Department Occupational Health and

Safety.

• NFPA 1720 I 1710 Standard for the Organization and Deployment

of Fire Suppression Operations, Emergency Medical Operations, and

Special Operations.

• NFPA 1001 Standard for Fire Fighter Professional Qualifications.

• NFPA 1002 Fire Apparatus Driver/Operator Professional

Qualifications.

• NFPA 1021 Fire Officer Professional Qualifications.

• NFPA 1031 Standard for Professional Qualifications for Fire

Inspector, Fire Investigator and Fire Prevention Officer.

The Fire Department Board of Trustees shall provide, annually to the

Township Trustees short, medium and long-range plans to establish goals

objectives, apparatus replacement and staffing. These planning reports

shall provide an outline of anticipated future growth of the Fire Department.

{¶21} Additionally, under Article 4 of the Contract, Respondent “shall assure the

Township (in writing) that all high priority target hazards in the Township will be inspected

at least annually.” And under Article 5 of the Contract, Respondent “shall establish a

maintenance program for all Fire Department vehicles and repairs shall be performed by

the Fire Department or an established repair business. The Fire Department will provide

the Township Fiscal Officer with the appropriate itemized documentation to establish that

the work has been completed.”

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{¶22} Additionally, pursuant to Article 7 of the Contract,

It is further agreed that [Respondent] will insure all apparatus for loss

or damage by fire, theft, or other casualty and the Township shall be named

an additional insured party on such insurance. [Respondent] also agrees to

procure liability insurance for injury to persons and property in the minimum

amount of Two (2) Million dollars ($2,000,000.00) per occurrence and

include both the Township and Fire Department Boards of Trustees as an

additional insured on such insurance. [Respondent] agrees to provide to the

Township annual copies or updated copies, as they may occur, of all

insurance policies carried by the Fire Department.

And, under Article 16 of the Contract,

On or before January 30th of each new year the Fire Department

shall provide to the Township an accounting of:

• All tax and EMS dollars received during the previous tax year

• The December 31st cash balances of all tax and EMS dollar accounts

• Total tax and EMS dollar expenditures transacted during the tax year

• Total tax and EMS dollars accrued and on account for capitalization toward

vehicle and apparatus purchase and replacement

• Total tax and EMS dollars accrued and on account for capitalization toward

other non-operational expenditures

• Total tax and EMS dollars accrued and on account for capitalization toward

the1st quarter Fire Department expenditures of the new tax year. Such

amount shall be calculated as the total tax and EMS dollar expenditures

transacted during the previous tax year divided by four (4) and rounded up

to the nearest one hundred ($100.00) dollars.

{¶23} A review of Respondent’s contract with Munson Township thus

demonstrates by clear and convincing evidence that Munson Township is significantly

involved in Respondent’s operation. The Court rejects Respondent’s claim that the

Special Master “made the ‘overly broad’ statement that ‘the Township is significantly

involved in the Department’s operation’ and that the two are intertwined.”

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4) No evidence supports a determination that Respondent was created by the

government or to avoid the requirements of the Public Records Act.

{¶24} The Special Master stated: “Neither party has submitted evidence on this

point. This factor does not support functional equivalence.” Based on the Court’s review,

the Court agrees with the Special Master’s determination.

{¶25} After all the factors outlined in State ex rel. Oriana House are analyzed, an

analysis of the submitted evidence shows by clear and convincing evidence that

Respondent is the functional equivalent of a public office for purposes of the Ohio Public

Records Act.

{¶26} Respondent urges, however, that the Special Master failed to consider other

“pertinent factors” in his analysis, including the a past revocation of Respondent’s 501c4

status by the Internal Revenue Service in 2017 and a motion by Munson Township to

“return operation of Munson Fire to the newly-formed Munson Fire Department Board of

Trustees.” Despite Respondent’s urgings, the Court does not conclude that the Special

Master failed to give due consideration to these factors, as Respondent claims.

{¶27} Respondent also challenges the Special Master’s application of State ex rel.

Freedom Communs. v. Elida Community Fire Co., 82 Ohio St.3d 578, 697 N.E.2d 210

(1998), and the Special Master’s reliance on State ex rel. Harm Reduction Ohio v.

Oneohio Recovery Found., 2023-Ohio-1547, and State ex rel. Stys v. Parma Community

Gen. Hosp., 93 Ohio St.3d 438, 439, 755 N.E.2d 874 (2001). Upon consideration of these

arguments, the Court finds that the Special Master did not misapply Elida Community Fire

Company, Oneohio Recovery Foundation, or Parma Community General Hospital.

{¶28} In sum, after all pertinent factors are analyzed, the submitted evidence

shows by clear and convincing evidence that Respondent is the functional equivalent of

a public office for purposes of the Ohio Public Records Act.

2. The Special Master did not err in applying the “quasi-agency test.”

{¶29} In State ex rel. Armatas v. Plain Twp. Bd. of Trustees, 163 Ohio St.3d 304,

2021-Ohio-1176, 170 N.E.3d 19, ¶ 14, the Ohio Supreme Court described the “quasi-

agency test,” stating that “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

Case No. 2023-00503PQ -10- DECISION & ENTRY

determining whether the records are connected to the public office's delegation of its duty

to the private entity.” In State ex rel. Armatas the Ohio Supreme Court explained:

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 * * * that when

a requester has 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.

State ex rel. Armatas at ¶ 16.

{¶30} Here, Requester seeks records that document compensation paid to

individuals who provide fire protection to Munson Township, a governmental function of

Munson Township. Requester thus has satisfied the first prong of the “quasi-agency”

test, as stated in Armatas, and has met its burden of proof under the first prong of the

“quasi-agency” test. See ex rel. Armatas at ¶ 16. Requester thus has satisfied its burden

of proof that the records about compensation that Requester seeks are public records.

Id.

{¶31} Respondent’s contention that the Special Master misapplied the “quasi-

agency test” is unpersuasive.

3. The Special Master did not make inappropriate judgments on the credibility

of assertions made by Respondent.

{¶32} Respondent contends that the Special Master unfairly and improperly

dismissed as “speculative” the Munson Fire Department’s Fire Chief and Treasurer’s

affirmations that a finding that Respondent is a functional equivalent of a public agency

and quasi-agency would lead to administrative difficulties. Respondent further contends

that the Special Master’s Report and Recommendation requires a small fire department

with twenty-four (24) employees to bear the brunt and costs of unnecessarily responding

to public information requests from disgruntled members of the public who sometimes

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make overly broad requests that have no legitimate connection to the needs of the

community.

{¶33} Respondent’s arguments are unpersuasive. To the extent that the Munson

Fire Department’s Fire Chief and Treasurer’s affirmations are based on theoretical rather

than demonstrable knowledge, these affirmations reasonably may be viewed as

“speculative.” Moreover, in State ex rel. Bott Law Group, LLC v. Ohio Dept. of Natural

Resources, 10th Dist. Franklin No. 12AP-448, 2013-Ohio-5219, ¶ 21, the Tenth District

Court of Appeals stated,

While we recognize that [R.C. 149.43(B)(1)] imposes a sizeable burden

upon responding agencies[,] * * * “‘[n]o pleading of too much expense, or

too much time involved, or too much interference with normal duties, can

be used by the [public agency] to evade the public's right to inspect and

obtain a copy of public records within a reasonable time.’” State ex rel. Fox

v. Cuyahoga Cty. Hosp. Sys., 39 Ohio St.3d 108, 111, 529 N.E.2d 443

(1988), quoting State ex rel. Beacon Journal Publishing Co. v. Andrews, 48

Ohio St.2d 283, 289, 358 N.E.2d 565 (1976). Indeed, a public agency “is

under a statutory duty to organize [its] office and employ [its] staff in such a

way that [its] office will be able to make [public] records available for

inspection and to provide copies when requested within a reasonable

time.” Id., quoting State ex rel. Beacon Journal. See also State ex rel.

Hartkemeyer v. Fairfield Twp., 12th Dist. No. CA2012-04-080, 2012-Ohio-

5842, ¶ 25.

{¶34} Although the Court is sensitive to Respondent’s view that it may be

overburdened by requests for public records, the Court determines that the Special

Master did not err by the use of the term “speculative.”

III. Conclusion

{¶35} For reasons set forth above, the Court overrules Respondent’s objections,

denies Requester’s motion to strike, and adopts the Special Master’s Report and

Recommendation, excepting the recommendation that Respondent be ordered to explain

the redactions. The Court orders Respondent to produce unredacted copies of the

records filed for in camera review to Requester. Requester is entitled to recover from

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Respondent the amount of the filing fee of twenty-five dollars and any other costs

associated with the action that are incurred by the Requester, excepting attorney fees.

Court costs are assessed against Respondent. The Clerk shall serve upon all parties

notice of this judgment and its date of entry upon the journal.

LISA L. SADLER

Judge

Filed November 28, 2023

Sent to S.C. Reporter 12/7/23