State ex rel. Cincinnati Enquirer v. Krings

• Decision Date: 19 December 2001
• Docket Number: No. 01-982.,01-982.
• Citation: 758 NE 2d 1135,93 Ohio St.3d 654
• Parties: THE STATE EX REL. CINCINNATI ENQUIRER, DIVISION OF GANNETT SATELLITE INFORMATION NETWORK, INC., APPELLEE, v. KRINGS, CTY. ADMR., ET AL., APPELLANTS.
• Court: Ohio Supreme Court

93 Ohio St.3d 654

758 NE 2d 1135

THE STATE EX REL. CINCINNATI ENQUIRER, DIVISION OF GANNETT SATELLITE INFORMATION NETWORK, INC., APPELLEE, v. KRINGS, CTY. ADMR., ET AL., APPELLANTS.

No. 01-982.

Supreme Court of Ohio.

Submitted October 16, 2001.

Decided December 19, 2001.

Michael K. Allen, Hamilton County Prosecuting Attorney, Carl J. Stich and Christian J. Schaefer, Assistant Prosecuting Attorneys, for appellant David Krings.

Taft, Stettinius & Hollister and William J. Seitz, for appellants Turner Construction Co., D.A.G. Construction Co., Inc., and Barton Malow Co.

Katz, Teller, Brant & Hild, L.P.A., and James F. McCarthy III, for appellant Getz Ventures, L.L.C. Graydon, Head & Ritchey LLP, John C. Greiner, John A. Flanagan and Ann K. Schooley, for appellee.

Per Curiam.

In 1995, Hamilton County, Ohio, and the city of Cincinnati, Ohio, executed a memorandum of understanding in which the county agreed to implement a sales tax increase, subject to referendum, to fund construction of new stadiums and related facilities for the Cincinnati Bengals professional football team and the Cincinnati Reds professional baseball team. Following an election in which the Hamilton County voters approved the increased sales tax to fund the construction of the stadiums, the county began planning for construction.

In January 1998, Hamilton County and Cincinnati entered into an agreement for the redevelopment of the riverfront area, including the construction of Paul Brown Stadium, the new football stadium for the Bengals. In the agreement, the county and the city specified that they had "determined that the construction of the new Stadium on the Cincinnati riverfront will create an extraordinary opportunity to eliminate blight and transform the riverfront into a nucleus of economic development and to make the Riverfront an integral part of a redeveloped downtown Cincinnati."

Pursuant to its authority under R.C. 307.023¹ to construct sports facilities, the Hamilton County Board of Commissioners entered into contracts with appellant Getz Ventures ("Getz") and a joint venture consisting of appellants Turner Construction Company, Barton Malow Company, and D.A.G. Construction Co., Inc. ("TBMD"), to construct Paul Brown Stadium. Getz and the individual firms that constitute TBMD are privately owned and operated businesses that are not political subdivisions or governmental entities of Ohio, are not organized for a public purpose, and do not receive the majority of their revenues from taxes collected by or under the authority of the board of county commissioners. But Getz's and TBMD's compensation under their contracts with the board did come from tax revenue.

Under the board's contract with Getz, Getz agreed to be the project manager for the construction of the new football stadium. The contract provided that at the county's direction, Getz would be authorized to act on behalf of the county as its agent. Getz's contractual duties included identifying significant changes affecting the overall project budget, presenting them to the county during review meetings, advising the county on the development of construction estimates and on the breakdown of the project into appropriate costs, attending cost meetings on behalf of the county, and monitoring expenditures against an agreed cost plan and reporting these items to the county. Furthermore, on behalf of the county, Getz was required to advise the construction manager on the development of cost reports, their frequency, the extent of detail, and the distribution of the reports.

The board contracted with TBMD to have TBMD act as the construction manager for the Paul Brown Stadium project. In this contract, TBMD agreed to "furnish its best skill and judgment in furthering the interests of the Owner." The contract referred to a "construction team," consisting of the Hamilton County Board of Commissioners, Getz, TBMD, and the project architect, which would work from the designing of the project through completion of the construction of the stadium. The construction team is also commonly referred to as the project team. TBMD was contractually required to identify variances between actual and budgeted or estimated costs and advise the board and the architect of steps necessary to meet the guaranteed maximum construction price. The contract further provided that TBMD must maintain cost-accounting records on all work performed, afford the board access to these records, and keep a daily log of construction activity including specified information "and similar relevant data as the Owner may require."

By letter dated March 6, 2000, Dan Klepal, a reporter for appellee, the Cincinnati Enquirer, a newspaper that is a division of Gannett Satellite Information Network, Inc. ("Enquirer"), requested that appellant Hamilton County Administrator David Krings permit Klepal to promptly inspect under R.C. 149.43, the Ohio Public Records Act, ten categories of records, including the following:

"All correspondence—including e-mails, memos and reports—between project team members related to cost overruns or potential cost overruns at Paul Brown Stadium. This should include memos and reports between different team members, for example Getz Ventures staff communicating with NBBJ [the project architect] or TBMD, as well as memos and reports among staff on the same company, whether it be Getz, NBBJ or TBMD."

The county provided the Enquirer with the following records in response to Klepal's request: all records in existence and physically located in the county administration building and all records in existence and authored by, addressed to, or copied to county employees and officials at the time of the request and located in the construction trailer for Paul Brown Stadium.

After Suzanne Burck, the Director of Administrative Services for Hamilton County, instructed the Enquirer that all communications with the construction team or any member of the team were to be directed through Brooke Hill, the Enquirer requested that Hill, as a representative of TBMD, provide the newspaper with access to inspect all communications, including e-mails, memoranda, reports, and draft reports, between team members relating to cost overruns and the construction schedule at Paul Brown Stadium. Hill is an employee of HMS Success, which had a contract with Getz and was being paid by the county for its services as public information specialist for the project. Hill responded in a letter in which she stated that the project team rejected the Enquirer's request, specifying, "We do not believe that internal business documents of a contractor are public documents covered under the Ohio Open Records Act."

In June 2000, the Enquirer filed a complaint in the Court of Appeals for Hamilton County for a writ of mandamus to compel appellants, Krings, TBMD, and Getz, to provide it with access to the requested records. The Enquirer also requested an award of attorney fees. In December 2000, after appellants filed answers and motions for summary judgment, the court of appeals granted the writ and ordered appellants to provide the Enquirer with access to the requested cost-overrun records and deferred its consideration of the Enquirer's request for attorney fees. We granted the Enquirer's motion to dismiss appellants' initial appeal from the December 2000 entry. State ex rel. Cincinnati Enquirer v. Krings (2001), 91 Ohio St.3d 1458, 743 N.E.2d 399. In May 2001, the court of appeals entered a judgment awarding the Enquirer attorney fees in the amount of $9,991.50 against Krings.

This cause is now before the court upon the appeals as of right of Krings, TBMD, and Getz.

Mandamus

Appellants assert that the court of appeals erred in granting the writ of mandamus to compel access to the cost-overrun records relating to the construction of Paul Brown Stadium.

Mandamus is the appropriate remedy to compel compliance with Ohio's Public Records Act, R.C. 149.43. State ex rel. Lucas Cty. Bd. of Commrs. v. Ohio Environmental Protection Agency (2000), 88 Ohio St.3d 166, 171, 724 N.E.2d 411, 417. A "public record" is "any record that is kept by any public office, including, but not limited to * * * county * * * units." R.C. 149.43(A)(1). It is uncontroverted that Krings, the county administrator to whom the initial records request was directed, is a public official appointed by a public office, the board of county commissioners. See R.C. 149.011(A) and (D).

As the court of appeals correctly held, the dispositive issue is whether the requested cost-overrun records in the custody of private entities like TBMD and Getz are public records for purposes of the Public Records Act. "Records" that are referred to in R.C. 149.43 include "any document, device, or item, regardless of physical form or characteristic, created or received by or coming under the jurisdiction of any public office of the state or its political subdivisions, which serves to document the organization, functions, policies, decisions, procedures, operations, or other activities of the office." R.C. 149.011(G).

R.C. 149.43(C) permits a mandamus action against either "the public office or the person responsible for the public record" to compel compliance with the Public Records Act. This language "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 (1990), 49 Ohio St.3d 37, 39, 550 N.E.2d 464, 467; State ex rel. Toledo Blade Co. v. Univ. of Toledo Found. (1992), 65 Ohio St.3d 258, 263, 602 N.E.2d 1159, 1163.

In order for a private entity to be subject to R.C....