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

• Docket Number: 2022-0244
• Decision Date: 03 August 2023
• Citation: 2023 Ohio 2667
• Parties: THE STATE EX REL. FAIR HOUSING OPPORTUNITIES OF NORTHWEST OHIO, D.B.A. FAIR HOUSING CENTER, APPELLEE AND CROSS-APPELLANT, v. OHIO FAIR PLAN, APPELLANT AND CROSS-APPELLEE.
• Court: Ohio Supreme Court

1

2023-Ohio-2667

THE STATE EX REL. FAIR HOUSING OPPORTUNITIES OF NORTHWEST OHIO, D.B.A. FAIR HOUSING CENTER, APPELLEE AND CROSS-APPELLANT, v. OHIO FAIR PLAN, APPELLANT AND CROSS-APPELLEE.

No. 2022-0244

Supreme Court of Ohio

August 3, 2023

Submitted March 22, 2023

Appeal and Cross-Appeal from the Court of Appeals for Franklin County, No. 20AP-351, 2022-Ohio-385.

George Thomas, for appellee and cross-appellant.

Crabbe, Brown & James, L.L.P., Larry H. James, and Christopher R. Green, for appellant and cross-appellee.

Community Legal Aid Services, Inc., Andrew D. Neuhauser Gregory R. Sain, and Joshua L. Hinkel, urging affirmance for amicus curiae Community Legal Aid Services, Inc.

Advocates for Basic Legal Equality, Inc., Michael Loudenslager, Chelsea Kemper, and Heather L. Hall, urging affirmance for amicus curiae Advocates for Basic Legal Equality, Inc.

Legal Aid of Western Ohio, Inc., and Kevin Mulder, urging affirmance for amicus curiae Legal Aid of Western Ohio, Inc.

Legal Aid Society of Cleveland and Thomas Mlakar, urging affirmance for amicus curiae Legal Aid Society of Cleveland.

Legal Aid Society of Columbus, Melissa Lenz, Thomas Pope, and Benjamin Horne, urging affirmance for amicus curiae Legal Aid Society of Columbus.

Legal Aid Society of Southwest Ohio, L.L.C., and John E. Schrider Jr., urging affirmance for amicus curiae Legal Aid Society of Southwest Ohio, L.L.C.

Southeastern Ohio Legal Services and Kristen Finzel Lewis, urging affirmance for amicus curiae Southeastern Ohio Legal Services.

DONNELLY, J.

{¶ 1} Appellant and cross-appellee, the Ohio Fair Plan Underwriting Association ("OFP"), appeals the judgment of the Tenth District Court of Appeals granting a writ of mandamus ordering OFP to provide documents in response to the public-records request of appellee and cross-appellant, Fair Housing Opportunities of Northwest Ohio, d.b.a. the Fair Housing Center ("Fair Housing"). Fair Housing has cross-appealed the portion of the court of appeals' judgment denying it statutory damages and attorney fees. We affirm the court of appeals' judgment in all respects.

I. FACTUAL AND PROCEDURAL BACKGROUND

A. OFP

{¶ 2} OFP is an association created under R.C. 3929.43 and has existed since the late 1960s. All insurers licensed to write basic property insurance policies in Ohio must be members of OFP. R.C. 3929.43(A). The General Assembly created OFP to (1) help applicants in urban areas secure basic property insurance or homeowners' insurance and (2) formulate and administer a program for the equitable apportionment of basic property insurance or homeowners' insurance when such insurance cannot be obtained in the normal market. Id.

{¶ 3} OFP is governed by a 12-member board of governors. Four members are appointed by the governor of Ohio with the advice and consent of the Senate to serve two-year terms. R.C. 3929.43(G). The remaining eight members are representatives from OFP's member insurance companies and are elected annually by members of OFP. Id. OFP's employees are not state employees and do not participate in the Ohio Public Employees Retirement System.

{¶ 4} The Ohio superintendent of insurance supervises OFP. R.C. 3929.43(H). OFP's board of governors must submit a plan of operation to the superintendent for approval. R.C. 3929.43(C). The plan

shall provide for economical, fair, and nondiscriminatory administration of a program for the equitable apportionment among members of basic property insurance or homeowners insurance which may be afforded in urban areas to applicants whose property is insurable in accordance with reasonable underwriting standards, but who are unable to procure such insurance through normal channels.

Id. OFP's approved plan of operation and any amendments thereto are codified in the Ohio Administrative Code. See id; Ohio Adm.Code 3901-1-18.

{¶ 5} Under R.C. 3929.44(A), any person unable to obtain basic property insurance in an urban area may apply to OFP for it. OFP must inspect the property, and if the inspection finds the property to be insurable under reasonable underwriting standards, OFP must issue a binder or policy of insurance subject to the applicant's payment of the premium. R.C. 3929.44(B) and (C); see also R.C. 3929.481 (authorizing OFP to issue insurance policies in its own name). A binder or policy issued by OFP lasts one year. Ohio Adm.Code 3901-1-18(H)(6) and (I)(5). OFP, as a joint underwriting association, assumes 100 percent of the risk on behalf of the member insurers. Ohio Adm.Code 3901-1-18(O)(1).

{¶ 6} Any person or insurer "aggrieved by any action or decision" of OFP may appeal to OFP's board of governors. R.C. 3929.47; Ohio Adm.Code 3901-1-18(J)(1). Decisions of the board are appealable to the superintendent of insurance; all final orders and decisions of the superintendent are appealable under R.C. Chapter 119. See R.C. 3929.47; Ohio Adm.Code 3901-1-18(J)(2).

B. Fair Housing's Public-Records Request

{¶ 7} In a letter dated April 9, 2020, Fair Housing made a public-records request to OFP by certified mail, seeking:

1. A complete copy of every underwriting standards [sic] (sometimes referred to as "underwriting guidelines") that [OFP] has used since 1999.

2. A list of every address that has received insurance through [OFP] since 2015. * * *

3. A list of every address that [OFP] rejected for insurance coverage since 2015. * * *

4. Any records explaining, detailing, providing guidance on the meaning of, or stating why [OFP] adopted the underwriting criteria of "Dwelling structure must have coverage equal to or greater than Insurance Services Office's rating minimum * * *." * * *

5. Any records explaining, detailing, or providing guidance on the meaning of, or stating why [OFP] adopted the underwriting criteria of "Dwelling structure coverage carried must be at least 50% of the replacement cost."

(Third ellipsis sic.)

{¶ 8} In a letter dated April 20, OFP responded to Fair Housing's request, stating that OFP is "not a public agency and thus [is] not subject to public records requests." OFP further stated that disclosure of the information requested by Fair Housing "may violate [OFP's] customer/client privacy rights." OFP nonetheless offered to discuss with Fair Housing ways that OFP could accommodate the request. OFP subsequently sent additional letters to Fair Housing, explaining that OFP is excluded from the statutory definition of "public agency" in R.C. 101.82 and indicating that OFP had never been required to respond to a public-records request. In a letter dated May 19, OFP provided information that it contends is partially responsive to Fair Housing's public-records request.

{¶ 9} Fair Housing commenced this action in the Tenth District Court of Appeals on July 10, 2020, seeking a writ of mandamus ordering OFP to provide records responsive to the April 9 public-records request. Fair Housing also sought awards of statutory damages and attorney fees under R.C. 149.43. The court of appeals referred the case to a magistrate, who recommended that the court (1) grant a writ directing OFP to produce the records responsive to Fair Housing's request and (2) deny Fair Housing's request for statutory damages and attorney fees. Both parties objected to the magistrate's decision.

{¶ 10} The court of appeals unanimously overruled OFP's objections to the magistrate's decision. 2022-Ohio-385, 184 N.E.3d 952, ¶ 11. It found that OFP is a "public office" subject to the Public Records Act, in part because "OFP and its board of governors, and its purpose, operation, and regulation thereof, were specifically established by the Ohio legislature [in] R.C. 3929.41 through 3929.49[,]" "evinc[ing] a legislative intent that OFP be considered a public office." Id. at ¶ 12. The court of appeals also overruled Fair Housing's objection to the magistrate's decision to deny statutory damages and attorney fees. Id. at ¶ 27, 32. The court agreed with the magistrate's determination that OFP was "prompt and cooperative" in responding to Fair Housing's request and that the issue of OFP's public-office status was a matter of first impression. Id. at ¶ 29. Thus, the court of appeals found that statutory damages and attorney fees were unwarranted.

{¶ 11} OFP appealed the court of appeals' judgment granting a writ of mandamus ordering OFP to provide records in response to Fair Housing's April 2020 public-records request. Fair Housing cross-appealed the portion of the judgment denying statutory damages and attorney fees.

II. ANALYSIS

A. OFP's Appeal

{¶ 12} Mandamus is the appropriate remedy to compel compliance with Ohio's Public Records Act, R.C. 149.43. State ex rel. Dispatch Printing Co. v. Johnson, 106 Ohio St.3d 160, 2005-Ohio-4384, 833 N.E.2d 274, ¶ 16. This court reviews the judgment of a court of appeals in a mandamus action as if it had been filed originally in this court. State ex rel. Armatas v. Plain Twp. Bd. of Trustees, 163 Ohio St.3d 304, 2021-Ohio-1176, 170 N.E.3d 19, ¶ 12.

{¶ 13} R.C. 149.43(A)(1) defines a "public record" as a record kept by "any public office." The dispute in this case centers on whether OFP is a "public office" within the meaning of the Public Records Act. A "public office" is defined 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." R.C. 149.011(A). Any doubt as to the "public" status of an entity for purposes of the Public Records Act should be resolved in favor of finding it subject to the statute's provisions requiring the disclosure of records. See State ex rel. Toledo Blade Co. v. Univ. of Toledo Found., 65 Ohio St.3d 258, 261, 602 N.E.2d...