[Cite as Schutte v. Gorman Heritage Found., 2019-Ohio-1818.]

{¶1} Requester Alan R. Schutte objects to a special master’s report and 

recommendation issued on March 15, 2019. 

I. Background 

{¶2} On June 29, 2018, pursuant to R.C. 2743.75(D), Schutte filed a complaint 

against respondent Gorman Heritage Farm Foundation, Inc.; DBA Gorman Heritage 

Farm, Gorman Farm (Gorman Heritage Farm Foundation), alleging a denial of access 

to public records. The court appointed an attorney as a special master in the cause. 

The special master referred the case to mediation. After mediation failed to 

successfully resolve all disputed issues between the parties, the court returned the case 

to the special master’s docket. 

{¶3} In a single filing, Gorman Heritage Farm Foundation responded to Schutte’s 

complaint and moved to dismiss the complaint. On March 15, 2019, the special master 

issued a report and recommendation (R&R). The special master recommended 

denying Gorman Heritage Farm Foundation’s motion to dismiss and determining the 

case on the merits. (R&R, 3.) Applying factors contained in State ex rel. Oriana House, 

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

whether Gorman Heritage Farm Foundation constituted a functional-equivalent of a 

public office for purposes of the Ohio Public Records Act, the special master found that 

Schutte had not shown by clear and convincing evidence that Gorman Heritage Farm 

ALAN R. SCHUTTE 

 Requester 

 v. 

GORMAN HERITAGE FOUNDATION; 

DBA GORMAN HERITAGE FARM, 

GORMAN FARM 

 Respondent 

Case No. 2018-01029PQ 

Judge Patrick M. McGrath 

DECISION AND ENTRY 

ADOPTING RECOMMENDATION 

OF SPECIAL MASTER 
Case No. 2018-01029PQ -2- DECISION 

Foundation was the functional equivalent of a public office for purposes of the Ohio 

Public Records Act. (R&R, 12-13.) The special master determined that Schutte had 

waived a claim that Gorman Heritage Farm Foundation should be required to produce 

disputed records based on quasi-agency theory. (R&R, 13.) However, the special 

master did determine that Gorman Heritage Farm Foundation is required to “disclose all 

additional records it maintains pursuant to R.C. 149.431 that are responsive to 

Requests 1, 2, and 3, in any available electronic format” (R&R, 16-17), and that Gorman 

Heritage Farm Foundation “is entitled to redact ‘the financial records of any private 

funds expended in relation to the performance of services pursuant to the contract or 

agreement,’ R.C. 149.431(A)(3), although in its previous release of several 2016 and 

2017 records it refrained from doing so in the interest of transparency.” (R&R, 17.) The 

special master recommended that the court deny requester’s claim for production 

responsive to Request No. 4 and that the claim for records responsive to Request No. 5 

had been rendered moot. 

(R&R, 17.) 

{¶4} On March 25, 2019—six days after the special master issued the R&R—

Schutte, through counsel, filed written objections to the special master’s R&R. In an 

amended certificate of service, Schutte’s counsel represents that he served Schutte’s 

objections on all parties of record “via U.S. Certified Mail Return Receipt Requested” on 

March 25, 2019. Schutte objects to the special master’s findings that the Village of 

Evendale’s contribution to Gorman Heritage Farm Foundation totaled $365,000 

annually, that Gorman Heritage Farm Foundation is not the functional equivalent of the 

Village of Evendale, and that Schutte waived his right to pursue requested records 

under “quasi-agency” theory. 

{¶5} On March 25, 2019, Gorman Heritage Farm Foundation requested 

clarification of the R&R. Three days later, on March 28, 2019, the special master issued 
Case No. 2018-01029PQ -3- DECISION 

an entry addressing Gorman Heritage Farm Foundation’s clarification request. On April 

1, 2019, Gorman Heritage Farm Foundation filed a response to Schutte’s objections. 

II. Law and Analysis 

{¶6} R.C. 2743.75(F)(2) governs objections to a special master’s R&R issued 

under R.C. 2743.75. Pursuant to R.C. 2743.75(F)(2), either party “may object to the 

report and recommendation within seven business days after receiving the report and 

recommendation by filing a written objection with the clerk and sending a copy to the 

other party by certified mail, return receipt requested. * * * If either party timely objects, 

the other party may file with the clerk a response within seven business days after 

receiving the objection and send a copy of the response to the objecting party by 

certified mail, return receipt requested. The court, within seven business days after the 

response to the objection is filed, shall issue a final order that adopts, modifies, or 

rejects the report and recommendation.” 

{¶7} Upon review, the court finds that both Schutte’s objections and Gorman 

Heritage Farm’s response are timely and filed in accordance with R.C. 2743.75(F)(2)’s 

requirements. However, Gorman Heritage Farm’s response to Schutte’s objections fails 

to comport with R.C. 2743.75(F)(2)’s requirement that a response should be sent by 

certified mail, return receipt requested. In the interest of justice, the court will consider 

Gorman Heritage Farm Foundation’s response. 

A. Objection No. 1: Schutte’s challenge to the special master’s factual finding 

that the Village of Evendale contributed $365,000 annually to the Gorman 

Heritage Foundation. 

{¶8} The special master stated in the R&R: “Evendale annually contributes 

$300,000 to the Gorman Foundation for general expenses and $65,000 for capital 

improvements. (Contract, Article III, § 3.1-3.2.)” (R&R, 8.) Schutte contends that “this 

finding ignores reality.” According to Schutte, based on copies of ordinances attached 

to a memorandum in opposition filed by Schutte, the Village of Evendale “contributed an 

average of $395,223 annually” to the Gorman Heritage Farm Foundation. Schutte 
Case No. 2018-01029PQ -4- DECISION 

states: “Beginning in 2016, and every year after, Evendale provided a fuel allotment of 

$1,000.” Schutte reasons: “Because [the special master’s analysis] was based on 

erroneous facts, it is fatally flawed.” 

{¶9} Even assuming for the sake of argument that the Village of Evendale’s 

annual financial contributions exceeded $365,000, it does not necessarily follow that the 

special master’s overall analysis is “fatally flawed.” In Oriana House, the Ohio Supreme 

Court examined whether an appellate court was correct in its determination that Oriana 

House, a private, nonprofit corporation managing the day-to-day operations of the 

Summit County Community-Based Correctional Facility and Program, was a public 

office for purposes of the Public Records Act. Oriana House, ¶ 16. Oriana House 

holds: 

1. Private entities are not subject to the Public Records Act absent a 

showing by clear and convincing evidence that the private entity is the 

functional equivalent of a public office. 

2. In determining whether a private entity is a public institution under 

R.C. 149.011(A) and thus a public office for purposes of the Public 

Records Act, R.C. 149.43, a court shall apply the functional-equivalency 

test. Under this test, the court must analyze all pertinent factors, including 

(1) whether the entity performs a governmental function, (2) the level of 

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. 

(Emphasis added.) Oriana House, paragraphs 1 and 2 of the syllabus. According to 

Oriana House, the level of government funding is one factor, but, in applying Oriana 

House’s functional-equivalency test, a court is required to analyze “all pertinent factors.”

Oriana House, paragraph 2 of the syllabus. Since under Oriana House the level of 

government funding is but one factor, in this instance, additional annual government 

funding purportedly in the amount of about $30,000, does not, of itself, compel a 
Case No. 2018-01029PQ -5- DECISION 

conclusion that the special master’s overall analysis is fatally flawed, as Schutte 

maintains. 

{¶10} The court concludes that the Schutte’s first objection should be overruled. 

B. Objection No. 2: Schutte’s challenge to the special master’s application of 

Oriana House’s functional-equivalence test. 

{¶11} Schutte contends that the special master “made arbitrary judgments about 

the ‘strength’ of the four primary factors” of Oriana House’s functional-equivalence test. 

Schutte reasons that the court should therefore reject the special master’s 

determination. 

{¶12} In this instance, the special master weighed the evidence before him, 

applied Oriana House’s factors, and found that Schutte failed to show by clear and 

convincing evidence that Gorman Heritage Farm Foundation was the functional 

equivalent of a public office for purposes of the Ohio Public Records Act. See, e.g.,

State ex rel. Repository v. Nova Behavioral Health, Inc., 112 Ohio St.3d 338, 2006-

Ohio-6713, 859 N.E.2d 936, ¶ 38 (applying Oriana House’s factors) (stating that “[t]he 

only factor that is wholly in the Repository’s favor is the level at which Nova was 

governmentally funded”). A disagreement about the application of the Oriana House

factors does not necessarily compel a conclusion that an assessment of the evidence is 

arbitrary. Application of the Oriana House functional-equivalency factors may result in 

different views. See, e.g., Oriana House, at ¶ 43-51 (application of functionalequivalency test) (Moyer, C.J., dissenting with opinion, with Resnick and O’Connor, JJ., 

concurring in the dissenting opinion); Sheil v. Horton, 8th Dist. Cuyahoga No. 107329, 

2018-Ohio-5240 (reversing this court’s application of Oriana House’s functionalequivalency test), discretionary review denied, William B. Sheil v. John Horton, Ohio 

Sup. Ct. No. 2018-1816 (April 3, 2019) (Kennedy and French, JJ., dissenting, and 

Fischer, J., dissenting and voting to accept the cause on proposition of law No. I). 
Case No. 2018-01029PQ -6- DECISION 

{¶13} Upon consideration of Schutte’s second objection, the court determines 

that the second objection should be overruled. 

C. Objection No. 3: Schutte’s challenge to the special master’s conclusion 

that Schutte waived a claim that records should be produced under a 

quasi-agency theory. 

{¶14} In the R&R, the special master stated that Schutte “waived [a claim of 

entitlement to the records] because he could have raised, but failed to raise, the claim in 

his complaint. Nova Behavioral Health at ¶ 40-41.” (R&R, 13.) 

{¶15} In State ex rel. Repository v. Nova Behavioral Health, Inc., 112 Ohio St.3d 

338, 2006-Ohio-6713, 859 N.E.2d 936, the Repository, a daily newspaper of general 

circulation in Stark County, Ohio, sought a writ of mandamus to compel Nova 

Behavioral Health, Inc., a private, nonprofit corporation to provide access to certain 

records under the Public Records Act, R.C. 149.43. The Supreme Court of Ohio stated 

that the Repository waived its “claim that even if Nova was not a public office, it was ‘the 

person responsible for the public record’ under R.C. 149.43(C) and therefore subject to 

the Public Records Act.” Nova Behavioral Health, Inc., at ¶ 40-41. 

{¶16} The Repository...could have raised, but failed to raise, the claim in its 

complaint or amend its complaint to include it...and there is no indication that Nova

consented to trial of the alternate claim. Id., citing State ex rel. Taxpayers Coalition v. 

Lakewood (1999), 86 Ohio St.3d 385, 391, 1999 Ohio 114, 715 N.E.2d 179; State ex 

rel. Musial v. N. Olmsted, 106 Ohio St.3d 459, 2005 Ohio 5521, 835 N.E.2d 1243, ¶ 31. 

A review of Schutte’s complaint discloses that Schutte alleged that “the GHF [Gorman 

Heritage Farm] is the functional equivalent of the Village of Evendale, having been 

established to operate a publicly accessible educational farm, which itself is owned by 

the Village of Evendale, and it is an entity receiving public funds and subject to R.C. 

149.43 by R.C. 149.431.” Schutte could have raised an entitlement to the requested 

records based on a theory of quasi-agency in the complaint; however, he did not. 
Case No. 2018-01029PQ -7- DECISION 

{¶17} The court determines that the special master’s determination of waiver 

based on Nova Behavioral Health, Inc. at ¶ 40-41, is not error. The court concludes that 

Schutte’s third objection should be overruled. 

III. Conclusion 

{¶18} For reasons set forth above, the court determines that Schutte’s objections 

to the special master’s R&R of March 15, 2019, should be overruled. 

 

 PATRICK M. MCGRATH 

 Judge 
[Cite as Schutte v. Gorman Heritage Found., 2019-Ohio-1818.]

{¶19} For the reasons set forth in the decision filed concurrently herewith, and 

upon independent review of the objected matters, the court OVERRULES requester 

Alan R. Schutte’s objections to the special master’s report and recommendation (R&R) 

issued on March 15, 2019. The court adopts the special master’s R&R as the court’s 

own. Judgment is rendered in part in favor of Schutte and in part in favor of respondent 

Gorman Heritage Farm Foundation, Inc.; DBA Gorman Heritage Farm, Gorman Farm 

(Gorman Heritage Farm Foundation). 

{¶20} Because Gorman Heritage Farm Foundation has denied Schutte access to 

public records in violation of R.C. 149.43(B), the court ORDERS Gorman Heritage Farm 

Foundation to forthwith permit Schutte to inspect or receive copies of the public records 

delineated in the special master’s R&R, as clarified in the special master’s entry of 

March 28, 2019. Schutte is entitled to recover from Gorman Heritage Farm Foundation 

the amount of the filing fee of twenty-five dollars and other costs associated with the 

ALAN R. SCHUTTE 

 Requester 

 v. 

GORMAN HERITAGE FOUNDATION; 

DBA GORMAN HERITAGE FARM, 

GORMAN FARM 

 Respondent 

Case No. 2018-01029PQ 

Judge Patrick M. McGrath 

ENTRY 
Case No. 2018-01029PQ -2- ENTRY 

action, but Schutte is not entitled to recover attorney fees. Court costs are assessed 

equally against the parties. The clerk shall serve upon all parties notice of this judgment 

and its date of entry upon the journal. 

 

 PATRICK M. MCGRATH 

Judge 

Filed April 8, 2019 

Sent to S.C. Reporter 5/10/19