State ex rel. Armatas v. Plain Twp. Bd. of Trs.

• Decision Date: 08 April 2021
• Docket Number: No. 2020-0479,2020-0479
• Citation: 163 Ohio St.3d 304,170 N.E.3d 19
• Parties: The STATE EX REL. ARMATAS, Appellant, v. PLAIN TOWNSHIP BOARD OF TRUSTEES, Appellee.
• Court: Ohio Supreme Court

163 Ohio St.3d 304

170 N.E.3d 19

The STATE EX REL. ARMATAS, Appellant,

v.PLAIN TOWNSHIP BOARD OF TRUSTEES, Appellee.

No. 2020-0479

Supreme Court of Ohio.

Submitted January 12, 2021

Decided April 8, 2021.

Steven A. Armatas, pro se.

Baker, Dublikar, Beck, Wiley & Mathews, James F. Mathews, and Tonya J. Rogers, North Canton, for appellee.

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 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.

{¶ 8} The Fifth District agreed with the township's argument and denied the writ. 2020-Ohio-1225, 2020 WL 1526457, ¶ 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 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 to the public office's delegation of its duty to the private entity. See State ex rel. Am. Civ. Liberties Union of Ohio, Inc. 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, 2020 WL 1526457 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 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; 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...