[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State 

ex rel. Harm Reduction Ohio v. OneOhio Recovery Found., Slip Opinion No. 2023-Ohio-1547.]

NOTICE

This slip opinion is subject to formal revision before it is published in an 

advance sheet of the Ohio Official Reports. Readers are requested to 

promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65 

South Front Street, Columbus, Ohio 43215, of any typographical or other 

formal errors in the opinion, in order that corrections may be made before 

the opinion is published.

SLIP OPINION NO. 2023-OHIO-1547

THE STATE EX REL. HARM REDUCTION OHIO v. ONEOHIO RECOVERY 

FOUNDATION.

[Until this opinion appears in the Ohio Official Reports advance sheets, it 

may be cited as State ex rel. Harm Reduction Ohio v. OneOhio Recovery 

Found., Slip Opinion No. 2023-Ohio-1547.]

Mandamus—Public-records requests—Considering totality of factors, nonprofit 

foundation established to allocate Ohio’s share of settlement proceeds of 

national opioid litigation is functional equivalent of a public office for 

purposes of Public Records Act—Requester demonstrated by clear and 

convincing evidence that it has clear legal right of access to requested 

records and that foundation has clear legal duty to provide access—Writ 

granted, requests for statutory damages and attorney fees denied, and court 

costs awarded.

(No. 2022-0966—Submitted February 28, 2023—Decided May 11, 2023.)

IN MANDAMUS.

__________________
SUPREME COURT OF OHIO

2

Per Curiam.

{¶ 1} Relator, Harm Reduction Ohio (“HRO”), seeks a writ of mandamus 

ordering respondent, OneOhio Recovery Foundation (“the Foundation”), to provide 

documents HRO requested under Ohio’s Public Records Act, R.C. 149.43. HRO 

also seeks awards of statutory damages, court costs, and attorney fees.

{¶ 2} Emphasizing that it is a private nonprofit corporation, the Foundation 

contends that it is not a “public office” and therefore is not bound by the Public 

Records Act. HRO argues, however, that the Foundation is the functional 

equivalent of a public office under the test established in State ex rel. Oriana House, 

Inc. v. Montgomery, 110 Ohio St.3d 456, 2006-Ohio-4854, 854 N.E.2d 193.

{¶ 3} On the record before us, we agree with HRO. We therefore grant the

requested writ and award HRO its court costs. But because the Foundation 

reasonably believed that it is not a public office under the Public Records Act, we 

deny HRO’s requests for statutory damages and attorney fees.

I. FACTUAL AND PROCEDURAL BACKGROUND

A. Creation of the Foundation

{¶ 4} The state and several local governments are currently engaged in 

litigation against pharmaceutical-supply-chain participants that are alleged to be 

liable for contributing to the opioid epidemic.

{¶ 5} The Foundation is an Ohio nonprofit corporation established in 

December 2021. It was created under a memorandum of understanding (“MOU”), 

which the Foundation describes as “a contract between the State and the various 

local governments involved in the opioid litigation to plan for the allocation and 

use of Ohio’s share of the national settlement proceeds.” The governor and attorney 

general signed the MOU on behalf of the state; numerous local governments also 

agreed to be bound by the MOU. According to the state’s “RecoveryOhio” website, 

local governments representing 85 percent of the state’s population, including 73 

of Ohio’s 88 counties, are committed to the MOU. 
January Term, 2023

3

https://recoveryohio.gov/resources/all-resources/aa-oneohio (accessed Apr. 7, 

2023) [https://perma.cc/DG3G-PSLD].

{¶ 6} Under the MOU, the Foundation will receive 55 percent of all “opioid 

funds,” which are defined as amounts obtained through the settlement of claims 

against a “pharmaceutical supply chain participant.” The MOU states that the 

Foundation’s governing board consists of 29 members:

• Six members selected by the State (five selected by the Governor 

and one selected by the Attorney General);

• Four members drawn from the Legislature

o One representative selected by the President of the Ohio 

Senate;

o One representative selected by the Ohio Senate Minority 

Leader;

o One representative selected by the Speaker of the Ohio 

House of Representatives; and

o One representative selected by the Ohio House Minority 

Leader[;]

• Eleven members with one member selected from each nonmetropolitan Regio[n]; and

• Eight members, with one member selected from each 

metropolitan Regio[n].1

The MOU requires the governor to appoint an executive director of the Foundation. 

It further provides that the Foundation shall appoint a nine-member “expert panel” 

1. For purposes of the Foundation’s governance, the MOU divides the state into 19 regions, 11 of 

which are defined as multicounty, nonmetropolitan regions and 8 of which are single- or two-county 

metropolitan regions.
SUPREME COURT OF OHIO

4

consisting of (1) six members chosen by the Foundation’s board members 

representing the local governments, (2) two members chosen by the governor, and 

(3) one member chosen by the attorney general. The expert panel makes 

recommendations to the Foundation to ensure that all of the state’s 19 regions 

created by the MOU can address the opioid epidemic. The MOU also provides 

guidelines for the disbursement of opioid-litigation settlement proceeds and 

contemplates that the Foundation may receive funds from other sources.

B. HRO’s Public-Records Request

{¶ 7} HRO is a statewide nonprofit organization that works to prevent 

overdose deaths. In May 2022, HRO President Dennis Cauchon attempted to attend 

the first meeting of the Foundation’s board of directors. The meeting was held at 

the Ohio Department of Public Safety and was organized by the interim director of 

the governor’s “RecoveryOhio” office. Soon after arriving, however, Cauchon was 

told that members of the public were not permitted to attend the meeting.

{¶ 8} In June 2022, Cauchon emailed a public-records request to the 

Foundation, seeking “[a]ll documents prepared for the OneOhio Recovery 

Foundation Board for its June 23 meeting” as well as documents related to other, 

“unnoticed” board meetings, if any, held before June 23. Cauchon addressed the 

public-records request to multiple recipients “because it was unclear who [wa]s 

responsible for maintaining records, providing meeting notice and complying with 

Ohio law and the [MOU].” Addressees included the provisional board chair and 

secretary of the Foundation. HRO alleges that the Foundation did not respond to 

the request.

{¶ 9} HRO filed this original action in August 2022. It seeks a writ of 

mandamus directing the Foundation to allow access to the requested records, and it

requests awards of statutory damages, court costs, and attorney fees. The 

Foundation filed an answer in which it denied that it is subject to the Public Records 

Act. We granted an alternative writ and ordered the parties “to brief and submit 
January Term, 2023

5

evidence on whether the Public Records Act, R.C. 149.43, applies to [the 

Foundation].” 168 Ohio St.3d 1450, 2022-Ohio-3903, 198 N.E.3d 100.

II. ANALYSIS

{¶ 10} Mandamus is an appropriate remedy to compel compliance with 

Ohio’s Public Records Act. State ex rel. Physicians Commt. for Responsible 

Medicine v. Ohio State Univ. Bd. of Trustees, 108 Ohio St.3d 288, 2006-Ohio-903, 

843 N.E.2d 174, ¶ 6; R.C. 149.43(C)(1)(b). To obtain a writ of mandamus, HRO 

must demonstrate, by clear and convincing evidence, a clear legal right to the 

requested relief and a clear legal duty on the part of the Foundation to provide it. 

State ex rel. Cincinnati Enquirer v. Sage, 142 Ohio St.3d 392, 2015-Ohio-974, 31 

N.E.3d 616, ¶ 10.

{¶ 11} A “public record” is one kept “by any public office.” R.C. 

149.43(A)(1). The principal issue in this case is whether the Foundation is a “public 

office” under the Public Records Act, which defines “public office” as including

“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). Emphasizing that it is 

“a private, not-for-profit entity,” the Foundation contends that it is not a public 

office subject to the Public Records Act.

{¶ 12} As a general proposition, private entities are not subject to the Public 

Records Act. See Oriana House, 110 Ohio St.3d 456, 2006-Ohio-4854, 854 N.E.2d 

193, at ¶ 26. In Oriana House, however, we held that a private entity is subject to 

the Public Records Act if there is “a showing by clear and convincing evidence that 

[it] is the functional equivalent of a public office.” Id. Under the functionalequivalency test:

the court must analyze all pertinent factors, including (1) whether 

the entity performs a governmental function, (2) the level of 
SUPREME COURT OF OHIO

6

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 paragraph two of the syllabus.

{¶ 13} HRO argues that the Foundation is the functional equivalent of a 

public office under a balancing of the Oriana House factors. The Foundation 

argues the opposite, contending that HRO has not met its burden to show by clear 

and convincing evidence that any of the four factors cuts in favor of finding that it 

is the functional equivalent of a public office. See State ex rel. Griffin v. Sehlmeyer, 

167 Ohio St.3d 566, 2022-Ohio-2189, 195 N.E.3d 130, ¶ 9 (relator bears the burden 

of showing entitlement to the writ by clear and convincing evidence).

A. Whether the Foundation Performs a Governmental Function

{¶ 14} The first factor of the functional-equivalency test asks whether the 

private entity performs a “historically governmental function” or one traditionally 

performed by private entities. State ex rel. Bell v. Brooks, 130 Ohio St.3d 87, 2011-

Ohio-4897, 955 N.E.2d 987, ¶ 22. HRO argues that the Foundation performs a 

governmental function in that the Foundation is “tasked through the MOU” with 

receiving and distributing funds from the state and local governments’ settlements 

of the opioid litigation. The allocation of these public funds, says HRO, is a 

uniquely governmental function that state and local governments have transferred 

to the Foundation under the terms of the MOU.

{¶ 15} The Foundation frames the “historically governmental function” 

prong differently. The Foundation argues that it is directly receiving settlement 

proceeds from private actors (i.e., the pharmaceutical-supply-chain defendants in 

the opioid litigation) and that it will then “distribute that money to organizations 

that can best use it to alleviate the effects of the opioid crisis.” Emphasizing that 

the MOU and the Foundation’s creation are “unique and unprecedented” in this 
January Term, 2023

7

state, the Foundation contends that the distribution of settlement proceeds obtained 

in the opioid-litigation cases cannot be deemed “uniquely” or “historically” 

governmental.

{¶ 16} The Foundation also relies on State ex rel. Repository v. Nova 

Behavioral Health, Inc., 112 Ohio St.3d 338, 2006-Ohio-6713, 859 N.E.2d 936. In 

Repository, we suggested that we would be more likely to conclude that a private 

entity is performing a governmental function if “presented with the situation in 

which a public agency transfers one of its own functions to [that] private entity.” 

Id. at ¶ 28. The Foundation contends that like the community mental-health 

services at issue in Repository, the services the MOU requires the Foundation to 

use the settlement funds for—namely, providing substance-abuse treatment, 

education, and prevention services—are not exclusively governmental and are, in 

fact, performed by private entities.

{¶ 17} We disagree with the Foundation’s argument. For one thing, the 

Foundation misstates its function. The Foundation is not responsible for providing

substance-abuse treatment, education, and prevention services. Rather, the 

Foundation is responsible for disbursing settlement funds for purposes consistent 

with the MOU. Unlike the private entity we examined in Repository, the 

Foundation is not performing a function performed by private entities.

{¶ 18} Moreover, the Foundation’s true function is a historically 

governmental one. The state and local governments that are parties to the MOU 

have agreed to allocate 55 percent of the opioid-litigation settlement proceeds to 

the Foundation, which in turn is charged with disbursing that revenue in accordance 

with the “approved purposes” specified in the MOU. Under Ohio law, when the 

Foundation disburses those funds, it is engaged in the disbursement of public 

money. See R.C. 117.01(C) (defining “public money” as including “any money 

collected by any individual * * * as a purported representative or agent of the public 
SUPREME COURT OF OHIO

8

office”). Accordingly, we conclude that the Foundation is performing a historically 

governmental function—the disbursement of public money.

B. Level of Government Funding

{¶ 19} “The fact that a private entity receives government funds does not 

convert the entity into a public office for purposes of the Public Records Act.” 

Oriana House, 110 Ohio St.3d 456, 2006-Ohio-4854, 854 N.E.2d 193, at ¶ 29. 

However, the level of government funding an entity receives is a relevant factor to 

consider. Id. at ¶ 32.

{¶ 20} HRO argues that the Foundation receives 100 percent of its funding 

from government sources. Under the MOU, the Foundation receives 55 percent of 

all “opioid funds,” defined as monetary amounts obtained through a settlement 

joined by the state and local governments. The MOU arguably provides for 

additional funding by the state and local governments in a provision stating, “The 

State of Ohio and the Local Governments understand and acknowledge that 

additional steps should be undertaken to assist the Foundation in its mission, at a 

predictable level of funding, regardless of external factors.” Elsewhere, the MOU 

states that the Foundation “will partner with the State of Ohio to increase revenue 

streams.” Thus, HRO argues, the MOU does not specify nongovernmental funding 

of the Foundation. HRO also contends that as of January 4, 2023, the Foundation’s 

operational expenses have been paid for entirely by the attorney general while the 

Foundation awaits receipt of settlement proceeds for its funding. Specifically, HRO 

submitted evidence of a $1 million payment from the attorney general’s office to 

the Foundation in September 2022, which was earmarked for Foundation “startup 

expenses.”2

2. The Foundation says that this and other evidence submitted by HRO does not comply with 

S.Ct.Prac.R. 12.06. The Foundation fails to develop this assertion into an argument; it merely raises 

the issue in a footnote in its merit brief. It quotes S.Ct.Prac.R. 12.06(A) at length but does not 

explain which provision of the rule the evidence fails to comply with. Moreover, the Foundation 

does not expressly object to HRO’s evidence, much less dispute the authenticity of it.
January Term, 2023

9

{¶ 21} While acknowledging that the MOU allocates to the Foundation a 

portion of the settlement proceeds, the Foundation emphasizes that these “are 

monies paid by private actors in settlement of litigation.” (Emphasis sic.) Thus, 

the Foundation contends, the funds it receives “will not come directly from state or 

local government coffers” or be “generated through the imposition of state or local 

taxation, assessment, or fees.” Moreover, the Foundation notes that the MOU 

contemplates receipt of funds other than settlement proceeds in that the MOU

expressly provides that the Foundation may receive stocks, bonds, real property,

and cash in addition to settlement proceeds. Thus, the Foundation argues that HRO 

has not met its burden to show that the Foundation receives a significant level of 

government funding.

{¶ 22} We disagree with the Foundation’s argument that the settlement 

proceeds it receives are purely private funds. As we noted above, the Foundation 

is tasked with receiving and disbursing settlement proceeds payable to the state and 

local governments that are parties to the opioid litigation. These settlement 

proceeds are public money. But characterizing the settlement proceeds as public 

money does not end the inquiry under this factor. When considering the 

government-funding factor in our functional-equivalency cases, we have examined 

the percentage of the private entity’s total revenues that come from public sources. 

See Repository, 112 Ohio St.3d 338, 2006-Ohio-6713, 859 N.E.2d 936, at ¶ 32-33 

(92 percent of entity’s revenue coming from government source was “significant”); 

Oriana House, 110 Ohio St.3d 456, 2006-Ohio-4854, 854 N.E.2d 193, at ¶ 32 (88 

percent from government sources was “significant”); Bell, 130 Ohio St.3d 87, 

2011-Ohio-4897, 955 N.E.2d 987, at ¶ 23 (same).

{¶ 23} In this case, while there is evidence of the source of the Foundation’s 

funding—most notably, 55 percent of the opioid-litigation settlement proceeds

allocated to it under the MOU—the record contains no clear evidence of what 

percentage of the Foundation’s total revenue comes from public sources. 
SUPREME COURT OF OHIO

10

Accordingly, here, unlike in Repository, Oriana House, or Bell, we are unable to 

determine whether the Foundation’s level of government funding is “significant” 

as a percentage of its total revenue. HRO therefore has not met its burden of 

proving that this factor weighs in its favor.

C. Extent of Government Involvement

{¶ 24} In applying this factor, we consider the extent to which “any 

government entity controls the day-to-day operations” of the private entity. Oriana 

House at ¶ 33. HRO emphasizes the fact that the Foundation was created by state 

and local governments and that the MOU dictates (1) the makeup of the 

Foundation’s board, (2) that the governor appoint the Foundation’s executive 

director, and (3) that the Foundation comply with the “approved purposes” 

identified in the MOU.

{¶ 25} For its part, the Foundation argues that there is no hint of government 

control over its day-to-day operations. Even though government officials serve on 

its board of directors, the Foundation notes that this does not equate with 

government involvement in its day-to-day operations for purposes of this factor. 

See Bell, 130 Ohio St.3d 87, 2011-Ohio-4897, 955 N.E.2d 987, at 

¶ 24 (evidence that individual county commissioners made up the board of directors 

of a private corporation did not prove government control over day-to-day 

operations).

{¶ 26} On the record before us, HRO has the better of the arguments 

regarding this factor. Contrary to the Foundation’s position, there is evidence of 

government involvement in its day-to-day operations. Under the Foundation’s 

code of regulations, its day-to-day operations are managed by an executive director, 

who is appointed by the governor. Thus, an appointee of the governor is 

responsible for the day-to-day operations of the Foundation, which is a 

circumstance that distinguishes the Foundation from the private entities in Bell and 

Repository that we found not to be controlled by government entities.
January Term, 2023

11

{¶ 27} Just as importantly, under the MOU and the Foundation’s 

regulations, the disbursement of opioid-litigation settlement funds—the main 

purpose of the Foundation—cannot occur without the board’s approval. This is 

significant because the board consists of government officers and appointees: 10 of 

the 29 board members are appointed by the state (by either the legislature, governor, 

or attorney general), and local governments participate in choosing the remaining 

members. Thus, the Foundation cannot perform its essential function without the 

participation of government appointees. Moreover, the way in which the 

Foundation has conducted its business thus far carries an air of government 

involvement. The evidence shows that the Foundation’s May 16, 2022 board

meeting was organized by the interim director of RecoveryOhio (an organization 

commissioned by the governor) and was held at the Ohio Department of Public 

Safety, where RecoveryOhio typically holds its meetings. Thus, the Foundation

appears to operate in tandem with RecoveryOhio. And as noted previously, the 

attorney general’s office paid for the Foundation’s startup operating expenses.

{¶ 28} Accordingly, there is government involvement in the day-to-day 

operations of the Foundation as well as in the Foundation’s ultimate performance 

of its essential function of disbursing opioid-litigation settlement funds.

D. Creation of the Entity

{¶ 29} The fourth factor of the functional-equivalency test is whether the 

entity was either created by the government or established “as the alter ego of a 

governmental entity to avoid the requirements of the Public Records Act.” Oriana 

House, 110 Ohio St.3d 456, 2006-Ohio-4854, 854 N.E.2d 193, at ¶ 34. Here, the 

Foundation’s creation is spelled out in the MOU, which states that “[t]he Parties 

shall create a private 501(c)(3) foundation * * * for the purpose of receiving and

disbursing [settlement funds] and other purposes set forth both herein and in the 

documents establishing the Foundation.” (Emphasis added.) See 26 U.S.C. 

501(c)(3). The MOU defines the term “the Parties” as including the state and local 
SUPREME COURT OF OHIO

12

governments. Accordingly, the MOU establishes that government entities created 

the Foundation.

{¶ 30} The Foundation does not seriously dispute that it was created as a 

private nonprofit corporation by the parties specified in the MOU—i.e., the state 

and local governments. However, it frames this factor differently, arguing that 

there is no evidence that it “was created as the alter ego of a governmental entity to 

avoid the requirements of the Public Records Act,” Oriana House at ¶ 34. Indeed, 

as the Foundation argues, the MOU contains a provision stating that its meetings 

shall be open and its documents public to the same extent as if the Foundation was 

a public entity.

{¶ 31} However, the Foundation’s argument misstates the inquiry required

under this factor. In Oriana House, we recited the factor as “whether the entity was 

created by the government or to avoid the requirements of the Public Records Act.” 

(Emphasis added.) Oriana House at paragraph two of the syllabus and 

¶ 25. The test is in the disjunctive. And here, as set forth in the MOU, the 

Foundation was created by the state and local governments.

E. Weighing of the Factors

{¶ 32} “Applying the functional-equivalency test requires a case-by-case 

analysis, examining all pertinent factors with no single factor being dispositive.” 

Id., 110 Ohio St.3d 456, 2006-Ohio-4854, 854 N.E.2d 193, at ¶ 23. In this case, 

three factors appear to support HRO’s position that the Foundation is the functional 

equivalent of a public office while one factor (level of government funding) is, at 

best, equivocal. Considering the totality of the factors, we conclude that the 

Foundation is the functional equivalent of a public office for purposes of the Public 

Records Act.

{¶ 33} When applying the functional-equivalency test, we consider whether 

providing public access to the records at issue “serve[s] the policy of governmental 

openness that underlies the Public Records Act.” Repository, 112 Ohio St.3d 338, 
January Term, 2023

13

2006-Ohio-6713, 859 N.E.2d 936, at ¶ 39. In this case, allowing public access to 

the Foundation’s records serves that policy. In the absence of the MOU, opioidlitigation settlement funds would have flowed directly to either the state or the local 

governments that are parties to those cases. See R.C. 109.21 (“The attorney general 

shall pay all moneys collected or received by the attorney general on behalf of the 

state into the state treasury to the credit of the general revenue fund”); R.C. 

733.46(A) (“The treasurer of a municipal corporation shall receive * * * all funds 

of the municipal corporation and such other funds as arise in or belong to any 

department or part of the municipal corporation * * *”); R.C. 319.13 (“the county 

auditor shall certify all moneys into the county treasury” and “charge the treasurer 

with such moneys”). Instead, the state and local governments entered into the MOU 

to govern the disbursement of the settlement proceeds, with 55 percent of those 

funds diverted to the Foundation, a private entity created by the state and local 

governments. And under the terms of the MOU and the Foundation’s bylaws, the 

state and local governments are to be heavily involved in the Foundation’s 

operation.

{¶ 34} Put another way, the state and local governments have delegated to 

the Foundation the task of spending public money. Under this backdrop, the 

Foundation is the functional equivalent of a public office and subjecting it to the 

requirements of the Public Records Act is consistent with the act’s policy of 

governmental openness.
SUPREME COURT OF OHIO

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F. Foundation’s Policy Arguments

{¶ 35} The Foundation warns that we will beget “negative consequences” 

if we determine that it is subject to the Public Records Act. The Foundation argues 

that such a ruling will jeopardize its ability to obtain tax-exempt status from the 

Internal Revenue Service and will hamper its ability to conduct business. The 

Foundation also fears that being subject to the Public Records Act will pose an 

obstacle to its ability to raise additional funds. And most importantly, the 

Foundation worries that being deemed a public office for purposes of the Public 

Records Act will somehow mean that the opioid-litigation settlement funds within 

its control “will be available for the Ohio General Assembly to use for purposes 

other than those set forth in the MOU,” which the Foundation says the MOU “was 

designed to prevent.” The Foundation harkens back to proceeds from the state’s 

settlement with tobacco-product manufacturers, when the General Assembly 

reallocated funds from the Tobacco Use Prevention and Cessation Trust Fund to 

other purposes more than a decade ago. See Tobacco Use Prevention & Control 

Found. Bd. of Trustees v. Boyce, 127 Ohio St.3d 511, 2010-Ohio-6207, 941 N.E.2d 

745, ¶ 2-5. The Foundation does not want the same fate for the opioid-litigation 

settlement funds.

{¶ 36} We are not persuaded by the Foundation’s policy arguments. They 

are speculative in both law and fact. If the Foundation is the functional equivalent 

of a public office under the four-factor test this court articulated in Oriana House, 

then “the policy of governmental openness that underlies the Public Records Act,” 

Repository, 112 Ohio St.3d 338, 2006-Ohio-6713, 859 N.E.2d 936, at ¶ 39, is the 

one that must be honored.

G. Statutory Damages

{¶ 37} Under R.C. 149.43(C)(2), a requester of public records is entitled to 

recover statutory damages when (1) he submits a written public-records request “by 

hand delivery, electronic submission, or certified mail,” (2) the request “fairly 
January Term, 2023

15

describes the public record or class of public records to the public office or person 

responsible for the requested public records,” and (3) “a court determines that the 

public office or the person responsible for public records failed to comply with an 

obligation” imposed by R.C. 149.43(B). Statutory damages accrue at $100 for each 

business day, starting from the day the mandamus action was filed, during which 

the public office failed to comply with R.C. 149.43(B), up to a maximum of $1,000. 

R.C. 149.43(C)(2).

{¶ 38} We deny HRO’s request for statutory damages. Under R.C. 

149.43(C)(2), we may reduce or deny statutory damages if we determine that (1) 

based on the law as it existed at the time of the request, a well-informed person 

responsible for the records reasonably would have believed that R.C. 149.43(B) did 

not require their disclosure and (2) a well-informed person responsible for the 

records reasonably would have believed that withholding the records would serve 

the public policy that underlies the authority asserted for withholding the records. 

Under the circumstances here and given that a private entity is presumed not to be 

subject to the Public Records Act, Oriana House, 110 Ohio St.3d 456, 2006-Ohio4854, 854 N.E.2d 193, at ¶ 26, we believe that a well-informed person responsible 

for the Foundation’s records could have reasonably believed the Foundation was a 

private corporation not subject to the Public Records Act. However, future private 

entities situated similarly to the Foundation should take notice that with this case 

as guidance, a well-informed person may draw a different conclusion in the future.

H. Costs and Attorney Fees

{¶ 39} HRO also requests awards of court costs and attorney fees. Because 

we conclude that HRO is entitled to a writ of mandamus ordering the Foundation 

to provide public records responsive to its request, an award of costs to HRO is 

mandatory under R.C. 149.43(C)(3)(a)(i). State ex rel. Hicks v. Fraley, 166 Ohio 

St.3d 141, 2021-Ohio-2724, 184 N.E.3d 13, ¶ 25.
SUPREME COURT OF OHIO

16

{¶ 40} As for attorney fees, an award is discretionary under R.C. 

149.43(C)(3)(b). Id. at ¶ 26. We must deny attorney fees if (1) based on the law 

as it existed at the time of the request, a well-informed person responsible for the 

records reasonably would have believed that R.C. 149.43(B) did not require their 

disclosure and (2) a well-informed person responsible for the records reasonably 

would have believed that withholding the records would serve the public policy that 

underlies the authority asserted for withholding the records. See R.C. 

149.43(C)(3)(c). These are the same factors used for determining whether a 

reduction or denial of statutory damages is appropriate under R.C. 149.43(C)(2). 

Hicks at ¶ 28.

{¶ 41} We deny HRO’s request for attorney fees for the same reasons we

deny its request for statutory damages. The Foundation reasonably believed that it 

was not subject to the Public Records Act, because it is a private corporation and 

therefore presumed not to be a “public office” under our case law. See Oriana 

House, 110 Ohio St.3d 456, 2006-Ohio-4854, 854 N.E.2d 193, at ¶ 26.

III. CONCLUSION

{¶ 42} For the foregoing reasons, HRO has demonstrated by clear and 

convincing evidence that it has a clear legal right of access to the requested records 

and that the Foundation has a clear legal duty to provide access. We grant a writ 

of mandamus ordering the Foundation to provide to HRO the public records 

responsive to HRO’s June 2022 public-records request. We award court costs to 

HRO but deny its requests for statutory damages and attorney fees.

Writ granted.

KENNEDY, C.J., and FISCHER, DEWINE, DONNELLY, STEWART, BRUNNER, 

and DETERS, JJ., concur.

_________________

Graydon, Head & Ritchey, L.L.P., and John C. Greiner, for relator.

Benesch, Friedlander, Coplan & Aronoff, L.L.P., Robert A. Zimmerman, 
January Term, 2023

17

and Mark D. Tucker, for respondent.

_________________