State ex rel. Fair Hous. Opportunities of Nw. Ohio v. Ohio Fair Plan

• Decision Date: 10 February 2022
• Docket Number: 20AP-351
• Citation: 184 N.E.3d 952
• Parties: STATE EX REL. FAIR HOUSING OPPORTUNITIES OF NORTHWEST OHIO, d/b/a The Fair Housing Center, Relator, v. The OHIO FAIR PLAN, Respondent.
• Court: Ohio Court of Appeals

184 N.E.3d 952

STATE EX REL. FAIR HOUSING OPPORTUNITIES OF NORTHWEST OHIO, d/b/a The Fair Housing Center, Relator,

v.The OHIO FAIR PLAN, Respondent.

No. 20AP-351

Court of Appeals of Ohio, Tenth District, Franklin County.

Rendered on February 10, 2022

On brief: George Thomas, for relator.

On brief: Crabbe Brown & James, LLP, Larry H. James, Columbus, and Natalie P. Bryans, for respondent.

DECISION

BEATTY BLUNT, J.

{¶ 1} Relator, Fair Housing Opportunities of Northwest Ohio, d/b/a. The Fair Housing Center ("Fair Housing" or "relator") seeks a writ of mandamus ordering respondent, The Ohio Fair Plan Underwriting Association ("OFP" or "respondent"), to respond to a public records request made pursuant to R.C. 149.43, and provide the records requested.

{¶ 2} Pursuant to Civ.R. 53 and Loc.R. 13(M) of the Tenth District Court of Appeals, this matter was referred to a magistrate who issued a decision, including findings of fact and conclusions of law, which is appended hereto. The magistrate found that OFP is a public office for purposes of Ohio's Public Records Act, codified at R.C. 149.43, and thus, that OFP must respond to the public records request made by Fair Housing by providing all records not otherwise exempt from disclosure under the statute. Accordingly, the magistrate recommends this court grant relator's request for a writ of mandamus.

{¶ 3} Respondent OFP has filed four objections to the conclusions of law in the magistrate's decision, and relator Fair Housing has filed one counter-objection. OFP's objections are as follows:

[I.] The Magistrate erred in determining that the OFP is a "public office" as defined in R.C. 149.011.

[II.] The Magistrate's decision is not supported by R.C. 3929.48.

[III.] The Magistrate's decision is inconsistent with the treatment of FAIR plans in other jurisdictions.

[IV.] The Magistrate failed to apply the functional-equivalency test.

{¶ 4} Fair Housing's sole counter-objection is as follows:

[I.] The Fair Housing Center objects to the Magistrate's decision only in its determination that The Fair Housing Center should not receive attorney fees and statutory damages.

{¶ 5} Because OFP and Fair Housing have filed objections, we must independently review the record and the magistrate's decision to ascertain whether "the magistrate has properly determined the factual issues and appropriately applied the law." Civ.R. 53(D)(4)(d). Neither OFP nor Fair Housing has filed objections to the magistrate's findings of fact. Having reviewed the record and the magistrate's decision pertaining to same and finding no error on the part of the magistrate in his determinations of the facts, we hereby adopt the magistrate's findings of fact in their entirety as our own.

{¶ 6} Turning to the magistrate's conclusions of law and both parties’ objections to them, we begin by observing that "[m]andamus is the appropriate remedy to compel compliance with R.C. 149.43, Ohio's Public Records Act." State ex rel. Physicians Commt. For Responsible Medicine v. Bd. of Trustees of Ohio State Univ. , 108 Ohio St.3d 288, 2006-Ohio-903, 843 N.E.2d 174, ¶ 6. A relator must demonstrate entitlement to the writ by clear and convincing evidence. State ex rel. Cleveland Right to Life v. State Controlling Bd. , 138 Ohio St.3d 57, 2013-Ohio-5632, 3 N.E.3d 185, ¶ 2. However, unlike other mandamus cases, "[r]elators in public-records mandamus cases need not establish the lack of an adequate remedy in the ordinary course of law." State ex rel. Data Trace Information Servs., L.L.C. v. Cuyahoga Cty. Fiscal Officer , 131 Ohio St.3d 255, 2012-Ohio-753, 963 N.E.2d 1288, ¶ 25, citing State ex el. 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, ¶ 24.

{¶ 7} Ohio's Public Records Act is codified at R.C. 149.43 (the "Public Records Act") and mandates that requestors have full access to public records unless the requested records fall within one of the exceptions specifically enumerated in the act. State ex rel. Lucas Cty. Bd. of Commrs. v. Ohio Environmental Protection Agency , 88 Ohio St.3d 166, 170, 724 N.E.2d 411 (2000). "The Public Records Act reflects the state's policy that ‘open government serves the public interest and our democratic system.’ " State ex rel. Glasgow v. Jones , 119 Ohio St.3d 391, 2008-Ohio-4788, 894 N.E.2d 686, ¶ 13, quoting State ex rel. Dann v. Taft , 109 Ohio St.3d 364, 2006-Ohio-1825, 848 N.E.2d 472, ¶ 20. Thus, consistent with this policy, courts will construe R.C. 149.43 "liberally in favor of broad access and resolve any doubt in favor of disclosure of public records." Id.

{¶ 8} Pursuant to R.C. 149.43(A)(1), a " ‘public record’ means records kept by any public office." In turn, "record" is defined by R.C. 149.011(G) as "any document, device, or item, regardless of physical form or characteristic, including an electronic record as defined in section 1306.01 of the Revised Code, 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." "Public office" is defined by R.C. 149.011(A) as "any state agency, public institution, political subdivision, or other organized body, office, agency, institution, or entity established by the laws of this state for the exercise of any function of government." Thus, if an entity meets this definition, it must make its records available under the conditions established by R.C. 149.43.

{¶ 9} Public offices must promptly prepare and transmit requested public records within a reasonable period of time. Specifically, R.C. 149.43(B)(1) provides, in pertinent part, "[u]pon request by any person * * * all public records responsive to the request shall be promptly prepared and made available for inspection to the requester at all reasonable times during regular business hours. * * * [A] public office or person responsible for public records shall make copies of the requested public record available to the requester at cost and within a reasonable period of time." R.C. 149.43(B)(1). Notably, the word "promptly" is not defined in R.C. 149.43 or any other applicable statute. It must, therefore, be given its usual normal or customary meeting. State ex rel. Wadd v. Cleveland, 81 Ohio St.3d 50, 53, 689 N.E.2d 25 (1998). Furthermore, whether a public office has provided records within a "reasonable period of time" depends upon all the pertinent facts and circumstances of the case. State ex rel. Cordell v. Paden , 156 Ohio St.3d 394, 2019-Ohio-1216, 128 N.E.3d 179, ¶ 12, citing State ex rel. Morgan v. Strickland , 121 Ohio St.3d 600, 2009-Ohio-1901, 906 N.E.2d 1105, ¶ 10. The requester bears the burden of demonstrating that a public office's response to a public records request was unreasonably delayed. Id. , citing State ex rel. Dispatch Printing Co. v. Johnson , 106 Ohio St.3d 160, 2005-Ohio-4384, 833 N.E.2d 274, ¶ 44.

{¶ 10} The Supreme Court of Ohio has held that " ‘doubts as to the "public" status of any entity should be resolved in favor of finding it subject to the disclosure statute.’ " State ex rel. Strothers v. Wertheim , 80 Ohio St.3d 155, 156, 684 N.E.2d 1239 (1997), quoting State ex rel. Toledo Blade Co. v. Univ. of Toledo Found. , 65 Ohio St.3d 258, 261, 602 N.E.2d 1159 (1992). The Supreme Court has also held that for purposes of the Public Records Act, a private corporation may be considered a public office when it performs a function of government. " ‘An 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 [the entity] is a private, nonprofit corporation does not preclude it from being a public office.’ " State ex rel. Schiffbauer v. Banaszak , 142 Ohio St. 3d 535, 2015-Ohio-1854, 33 N.E.3d 52, quoting State ex rel. Freedom Communications, Inc. v. Elida Community Fire Co. , 82 Ohio St.3d 578, 579, 697 N.E.2d 210 (1998), citing State ex rel. Toledo Blade Co. at 260, 602 N.E.2d 1159. Furthermore, when a private entity, by the plain language of R.C. 149.011(A), is a "public office" for purposes of the Public Records Act, the functional equivalency test set forth in State ex rel. Oriana House, Inc. v. Montgomery , 110 Ohio St.3d 456, 2006-Ohio-4854, 854 N.E.2d 193 is inapplicable. Id.

{¶ 11} In this case the magistrate was tasked with determining whether OFP is a "public office" for purposes of the Public Records Act and thus must respond to Fair Housing's public records request. Upon review, we find the magistrate correctly found that OFP is such a public office for purposes of the Public Records Act and therefore must respond to Fair Housing's public records request by providing all records not otherwise exempt from disclosure pursuant to the statute. Furthermore, we find no merit to either OFP's objections¹ or Fair Housing's objection to the magistrate's decision, as discussed below.

{¶ 12} In its first objection, OFP asserts that the magistrate's conclusion that OFP is a public office as defined by R.C. 149.011(A) is erroneous. We disagree, and instead find the magistrate's conclusion that OFP qualifies as a "public office" as defined by R.C. 149.011(A) is amply supported for three reasons. First, OFP and its board of governors, and its purpose, operation, and regulation thereof, were specifically established by the Ohio legislature through the enactment of R.C. 3929.41 through 3929.49. Such statutory origin evinces a legislative intent that OFP be considered a public office.

{¶ 13} Second, R.C. 3929.47 specifically provides for an administrative process for appeal of any decision made by OFP to the board of governors, whose decision may then be appealed to the superintendent of insurance. This statute provides that "[a]ll final orders and decisions of the superintendent of insurance are subject to judicial review as provided in ...