[Cite as Geauga Cty. Pros. Office v. Munson Fire Dept. , 2023

- Ohio

- 4437.]

IN THE COURT OF CLAIMS OF OHIO

{¶1} In this public

- records case, Respondent objec ts to a Special Master ’ s Report and Recommendation and Requester moves to strike Respondent ’ s objections

. The Court overrules Respondent ’ s objections and d enies Requester ’ s motio n to strike for reasons that fol low

. I. Backgro und {¶2} On July 27 , 2023 , Requester G eauga County Prosecutor ’ s Office filed a pu blic

- records com plaint against Respondent Munson Fire Department

. Requeste r claimed that it re queste d, but never received, certain documents , na mely, unredacted payro ll reports ( or an expla nation with the basis for the red actions ) , “ W

- 2sw, ” “ 10 99s, ” paystubs, and financial reports

. The Court appointed a S pecial M aster who referre d the case to mediation. After mediation failed to successfully resolv e all disputed issues , the

case was return ed to the Special Master. {¶3} On October 17, 202 3 , the Special M aster issued a Report and Re commendation (R&R)

. The Special Master determined th at Respondent is the functional equivalent of a public office and th at t he quasi

- agency do ctrine requires Respondent to provide the requested records . The Special Master recommends that (1)

“ Respondent be ordered to produce unredacted copies of the re c ords filed for in camera review or to explain the redactions , ” (2) “ Requester recover its filing fee and costs , GEAUGA COUNTY PROSECUTOR'S OFFICE Requester

v.
MUNSON FIRE DEPARTMENT Respondent Case No. 2023

- 00503PQ Judge Lisa L. Sadler
DECISION AND ENTRYCase No. 2023

- 00503PQ

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exclusive of attorney fees , ” and (3) “ Respondent b e ar any remainin g costs of this case

. ” (R&R, 13.) {¶4} On November 6, 2023, Re spondent filed written ob jections to the Report and Recommendation. A copy of the object io ns “ was provided via U .S. mail to Requester ’ s counsel , ” according to a Cer tificate of Service accompanying Responden t ’s objections

. {¶5} On November 20, 2023, in a combined filing, Requester responded to Respondent ’ s written objections and moved to strike Respondent ’ s objection s for failing to comply with requirements contained in R.C. 2743.75 (F)(2 )

. Requester se rved its filing on Respondent ’ s counsel by cert ified mail, returned receipt requested, according to a Certificate of Service accomp anying Requester ’ s filing. II. L a w a nd Analy sis {¶6} The Gen e ral Ass e mb ly has cre ate d a n al ternat i ve means to resolve public

r e co r ds disput e s th r ough the enact m ent of R.C. 2743. 75

. W e lsh

- Huggin s v. Jeffe rso n Cty . Prose cutor ’ s O ffice , 163 O hio St. 3d 337, 2020

- Oh i o - 5 3 7 1, 17 0 N

. E .3d 76 8 , ¶ 1 1

. S e e R .C. 2743.75 (A). U nder Ohio law a requester “ must establi sh entitlement to r e lief in an acti on fi led in the Court of Claims under R.C. 2743.75 by clear and convincing evidence

. ” Viola v. Cuyahoga Cty. Prosecutor ’ s Offi c e , 8th Dist. C uyahoga N o. 1 103 15 , 2021

- Ohio

- 42 1 0, ¶ 1 6 , citing Hurt v. Liberty Twp. , 2017

- Ohi o - 7820, 97 N.E.3d 1153, ¶ 27

- 30 (5th Dis t.)

. See Welsh

- Huggi ns v. Jefferson Cty. Prosecutor ’ s Office , 1 63 Ohio St.3d 337, 2020

- Ohio

- 5 371, 170 N.E.3d 76 8, ¶ 32

. I t is a r eq u est er ’s burd en t o pro ve, by clear a nd con v incing evidenc e, that the requested reco rds exi st and are p u blic records mainta ined by a r espondent

. See State ex rel. Cordell v. Paden , 15 6 Ohio St .3d 394, 2019

- Ohio

- 121 6, 128 N.E.3d 179, ¶ 8

. {¶7} A pu b lic

- records cu stodian h as t he bu rden to esta bl ish the applic abil ity of an exception to disclo sure of a public rec ord

. State ex rel. Cinc innati Enquirer v. Jones

Kelley , 118 Ohio St.3d 81, 2008

- Oh i o - 1770, 886 N.E.2d 206, paragr aph t wo of the sy llabus. In Jones

- Kell ey , the Ohio Supr eme C ourt held: Exception s to disclosu re under the Public Records Act, R.C. 149.43, a r e strictly construed aga inst the public

- records custodian, and the custodian has the burden to establish the applicability of an exception. A c ustodian does not meet thisCase No. 2023

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bu rd en if it has not prov en that the requested records fall squarely within the exce ption. ( State ex rel

. Car r v

. Akron, 112 Ohio St.3d 351, 2006 Ohio 6714, 859 N.E.2d 9 48, P 30, followed.) K elley at pa ragraph two of the syllabu s. A. R e quester ’ s motion to strike is not wel l taken

. {¶8} Requester moves the Court to strike Respondent ’ s ob jections t o the R e port and Rec ommendation because Respondent failed to serve its objection s by certified mail , as required by R.C. 2743.75(F)(2). See R.C. 2743.75( F)(2) ( “ [e] ither 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 ” )

. {¶9} Re quester ’ s motion to str ike is unpe rsuasive for at least two reasons

. {¶10} First , in R.C. 2 743.75 th e General Assembly has not included a provision that allows a party to move to strike a nother party ’ s objections to a report and recommendation

. See Kish v. City of Akron , 109 Ohio St.3d 162, 2 00 6

- Ohio

- 1244, 846 N.E. 2d 811, ¶ 44 ( the General Assembly is t he ultimate arbiter of policy considerations relevant to pu blic

- r ecords law and the judiciary ’ s role is to interpret existing statutes, not rewrite them)

. Compare R.C. 2743. 03 (D) (providing tha t the Ohio Rules of Civil Procedure “ shall govern pr a ctice and procedure in all actions in the court of claims, except insofar as inc onsistent with this c hapter ” )

. {¶11} Second, notwithstanding that R.C. 2 743.75(F)(2) requires service of an obje ction by cer tifie d mail, return receipt requeste d, it “ is a fundamental tenet o f judicial review in Ohio that courts should decide cases on the merits

. ” 1 De Hart v. Aetna Life Ins. Co. , 69 Ohio St.2d 189, 192, 431 N.E.2d 644 (1982)

. Here , since R e quester has filed a

w rit ten response to the merits of Respondent ’ s objection s , the Cou rt finds that Requester will not be prejudic ed if the Court considers t he merits of Respondent ’ s objec t ions

—

1 Purs uant to R.C. 2 743.75(F)(2), “[e] ither party may ob ject to the report and recommendation within seven business days after receiving the repo rt and recommendation by f iling a written objection with the clerk and s ending a copy to the other party by certified mail, return receipt requested

. ”Case No. 2023

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desp ite Respondent ’ s failure to f ollow requirements contained in R.C. 2 743.75(F)(2) for service of its object ions

. B. R e spondent ’ s objections are not well taken

. {¶12} Pursuant to R.C. 2743.75(F)(2), a ny objection to a report and recommendation “ shall be specific and state with particularity all grounds for the objection. ” In the objections , Respondent maintains : (1) T he Special Master “ mad e the ‘ ove r ly broad ’ statement that ‘ the Township is significantly involved in the Department’s operation ’ and that the two are intertwined. The undisputed facts show that it is simply not the case . Munson Fire is a self

- directed, independent, private corporation ; ” (2) T he Special Master “ ma de inappropriate judgments on the credibility of assertions made by Munson Fire which are inappropriate in a case where there is no evidentiary hearing ; ” and (3) T he Special Master “ ignored and appare ntl y refused to consider f actual and public policy considerations that weighed heavily in favor of a finding that Respondent was neither a ‘ functional equivalent ’ or ‘ quasi

- agency ’ under Ohio law. ” Upon careful consideratio n , t he Court finds that Respondent ’ s objections are unpersuasive

. 1. The Special Master did not err when he found by clear and convincing evidence that Respondent was the func tional equivalent of a public office

. 2 {¶13} Under Ohio la w a priv ate entity may be considered a public office for purpose s of the Ohio Pu blic Records Act

. As used in R.C. Chapter 149, except as otherwise provided, the te rm “ public office ” “ includes any * * * ot her organized body, office, agency, i nstitution, or entity established by the laws of this state for the exercise o f any function o f government. ” Under R. C. 149.011(A) the te rm “ public office , ” however, “ does not i nclude the nonprofit corporation formed under [R.C. 187.01 (JobsOhio) ]

. ” R. C.

2 Clear and convincing evidence “ is that measure or degree of proof which is more than a mere

‘ preponderance of the evidence, ’ but not to the extent of such certainty as is required ‘ beyond a reasonable doubt ’ in c riminal cases, and which will produce in the mind of the trier of facts a firm belief o r conviction as to the facts sought to be established. ” Cross v. Ledford , 161 Ohio St. 469, 469, 120 N.E.2d 118 (1954) , paragraph three of the syllabus.Case No. 2023

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1 49.011(A). Accord State ex rel. Freedom Communs. v. Elida Community Fire Co. , 8 2 Ohio St.3d 578, 579, 697 N.E.2d 210 (1998) , citing State ex rel. Toledo Blade Co. v. Univ. of Toledo Found. , 65 Ohio St. 3d 258, 260, 6 02 N.E.2d 1159 (1 992) ( “ [a] n entity need not be operated by the state or a politica l subdivision thereof to be a public office under R.C. 149.011(A). The mere fact that [ E lida Comm unity Fire Company ] is a private, nonprofit corporation does not preclude it from being a public office ” )

. {¶14} In S ta te e

x. rel. Oriana Hous e, Inc . v. Montgomery, 110 Ohio St. 3d 456, 2006

- Ohio

- 4854, 854 N.E.2d 193 , the Ohio Supreme C ourt set forth a “ functional

equivale ncy test ” with respect to private entities

. In State ex rel. Oria na House , t he Ohio Supreme Court stated : 1. Private entities are not subject to the Pu blic Record s Act absent a showing by clear

a nd convincing evidence th at the private entity i s the functional equivalent of a public offi ce

. 2. In determining w hether a private entity is a public institution und er R.C. 149.011(A) and thus a public office f or purposes of the Public Records Act, R.C. 149 .43 , a court shall apply th e functional

- equivalency test. Under this test, the court must

an al yze all pertinent factors, including (1) whether the entity performs a gove r n mental function, (2) the level of gove rnme nt funding , (3) the extent of government in vol vement or regulation, and (4) whether the enti ty was created by the government or to avoi d the requirements of the Public Records Act. Id

. at paragraphs one and tw o of t he syllabus

. {¶15} Upon review, the Court finds that the Special Master correctly determined by clear and convi ncing evidence that , by all pertinent factors, Respondent is a public office under the functional

- equivalency test se t forth in State ex rel. Oriana House . Specifically , under the prese nted e vidence, as discussed below, Respondent satisfies three of the f our factors identified in S tate ex rel. Oriana House

. 1) Respondent perform s a governmental function

. {¶16} The provision of fire and emergency medical s ervices constitutes a governmental function. See R.C. 2744.01 (C) (2) (a) (a governmental func tio n includes

“ [t]he pro vision or no n provision of police, fire, emergency medical, a mbulance, and rescue services or protection ” ) ; see also S tate ex rel. Freedom Communs. v. ElidaCase No. 2023

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Community Fire Co. , 82 Ohio St .3d 578, 580, 697 N.E.2d 210 (1998) , quoting Laine v. Rockaway Beach , 134 Ore. App. 655, 664, 896 P.2d 1219, 1223 (1995) , quoting Ayres v. Indian Hts. Volunteer Fire Dept. , 493 N.E.2d 1229, 1235 (Ind. 1986) ( “ ‘ “ [f] irefighting is a service that is uniquely governmental. The need to control, prevent, and fight fires for the co mmon good of the community has been universally accepted as a governmental function and duty in this St ate and, as far as we can determine, in this Nation, from its very beginning ” ’ ” ). {¶17} H ere, i n a contract betwe en Respondent and Munson Township, Munson Township “ recognizes the Fire Department as its sole and exclusive agent for fire and Emergency Med ical Services. ” (Exhibit A to Motion To Dismi ss/Verified Response , Contract, Article 2, Re co gni tion , effective D ecember 4, 2018.) 2) Four

- fif ths of Respondent ’ s f unding is from public sources

. {¶18} Respondent represents that it “ receives approximately 80% of its fundin g from public sources. ” ( Motion To Dismiss/Verified Response , 7 .) Respondent also represents that it “ receives approximately twenty percent (20%) of its funding for its ambulance services from insurance co m panies and individuals

. ” (Id.) Thus, f our - fifths of R espondent ’ s funding is from pub lic sources. 3) Munson Township is involved in the regulation of Respondent

. {¶19} Respondent a sserts that it is a self

- direc ted, independent, private corporation and that it is not “ intertwined ” with Muns on Township. Under the contract between M unson Township and R e spondent, “ [e] xcep t as specifically limited by the explicit provisions of this Contract, [ Respondent ] retains full right and responsibility to make all decisions regarding the day

- to

- day activities of the Fire Department and all aspects of its operation s, employment and employees to provide the highest level of fire and EMS p rotection po ssible. ” (Exhibit A to Motion To Dismiss/Verified Response , Contract, Article 2, Re co gni tion , effective D ecember 4, 2018.) {¶20} While R espondent may be a self

- directed, independent , private corporation , Munson Township never theless is involved in the regulation of Resp ondent under the

con tract between Munson Township and R espondent

. For example, p ursuant to Article 3 , RespondentCase No. 2023

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shall provide to the Township any updates to its Employee Policy Manual, if such updates have been made and exist since the last u pdate provided to the Township. From the date of the completion of the next risk

- related standards compliance audit, the Fire Board of Trustees shall provide a new risk

- related standards compliance audit every two (2) years to the Township Board of Trustees. This internal audit sha ll provide a system to determine the extent to which the Fire Department is following th e National F ire Protection Association ( NFPA) standards: • NFPA 1500 Standard for Fire Department Occupational Health and Safety. • NFPA 1720 I 1710 Standard for the Organiz ation and Deployment of Fire Suppression Operations, Emergency Medical Operations, and Special Operatio ns. • NFPA 1001 Standard for Fire Fighter Professional Qualifications.

• NFPA 1002 Fire Apparatus Driver/Operator Professiona l Qualifications. • NFPA 1021 Fire Officer Professional Qualifications.

• NFPA 1031 Standard for Professional Q ualification s for Fire Inspector, Fire I nvestigator and Fire Prevention Officer

. The Fire Department Board of Trustees shall provide , annually to the Township Trustees short , medium and long

- range plans to establish goals objectives, apparatus replacement and staffing. These planning reports shall provide an outline of anticipated future growth of the Fire Department. {¶21} Additionally, under Article 4 of the Contract, Respondent “ shall assure the Township (in writing) that all high priority target hazards in t he Township will be inspected at least a nnually. ” And under Article 5 of the Contract, Respondent “ shall establish a maintenance program for all Fire Department vehicles an d repairs shall be performed by the Fire Department or an established repair business. The Fire Departm ent will provide the Township Fiscal Officer with the appropriate itemize d document ation to esta blish that the work has been completed. ”Case No. 2023

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{¶22} Additionally, pursuant to Article 7 of the Contra ct, It is fu rther agreed that [Respondent] will i nsure all ap paratus for loss

or damage b y fire, theft, or other casualty and the Township shall be named an additional insured party on such i nsurance. [ Respondent ] also agr ees to procure liability insurance for injury to persons and property in the minimum amount of Two (2) Million dollars ($2,000,000.00) per occurrence and include both the Towns hip and Fi re Department Boards of Trustees as an additional insured on such insurance. [ Respondent ] agrees to provide to the T ownship annual copies or updated copi es, as they may occur, of all insurance policies carried by the Fire Department. And, under Article 16 of the Contra ct,

On or before January 30th of each new year the Fire Department shall provide to the Township an accounting of: • All tax and EMS dollars received during th e previous tax year • The December 31st cash balances of all tax and EMS dollar acc ounts • Total tax and EMS dollar expenditures transacted during the tax year

• Total tax and EMS dollars acc rued and on account for capitalization toward vehicle and apparatus purchase and repl acement • Total tax and EMS dollars accrued and on account for capitalization toward other non

- operati onal expenditures • Total tax a nd EMS dollars accrued and on account for capitalization toward the1 st quarter Fire Department expendit ures of the new tax year. Such amount shall be calculated as the total ta x and EMS dollar expenditures transacted during the previous tax year divided by four (4 ) and rounded up to the neares t one hu ndred ($100.00) dollars. {¶23} A review of Respondent ’ s contract with Muns on Towns hip th us demonstrates by clear and convincing evidence that Munson Township is significantly involved in Respondent ’ s operation

. The Court rejects Respondent ’ s claim that the Special Master “ made the ‘ overly broad ’ statement that ‘ the Township is significantly involved in the Department’s operation ’ and that the two are intertwined. ”Case No. 2023

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4) No evidence supports a determination that Respondent was created by the government or to avoi d the requirements of the Public Records A ct

. {¶24} The Special Master s tated: “ N ei th e r pa rt y h as s u bm i tted ev i de n ce on t h is point. T h i s f ac t or does not s u pport f u n ct i ona l eq u iva l e n ce

. ” B ased on the Court ’ s revie w, the Court agrees with the Special Master ’ s determination. {¶25} After all the factors outline d in State ex rel. Oriana House are analy zed, an analysis of the submitted evidence shows by clear and convincing evidence that Respondent is the functional equivalent of a pu blic office for p urp oses of the Ohio Pu blic Records Act

. {¶26} Respondent urges , howev er, that the Special Master failed to co nsider other

“ per tinent factors ” in his analysis, including the a past revocation of Respondent ’ s 501 c 4

s tatus by th e Internal Reven u e Service in 2017 and a motion by Munson Township to

“ r eturn operat ion of Mun son Fire to th e newly

- form ed Munson Fire Depa rtment Board of Trustees. ” Despite Respondent ’ s urgings, the Co urt does not conclude that the Special Master failed to give due consideration to th ese factors , as Respondent claim s

. {¶27} Respondent also challenges the Spe cial M aster ’ s application o f State ex rel. Freedom Communs. v. Elida Community Fire Co. , 82 Ohio St.3d 578, 697 N.E.2d 210 (1998) , and the Spe cial Master ’ s reliance on State ex rel. Harm Reduction Ohio v. Oneohio Recovery Found. , 2023

- Ohio

- 1547, and State ex rel. Stys v. Parm a Community Gen. Hosp. , 93 Ohio St.3d 438, 439, 755 N. E.2d 874 (2001)

. Upon consid eration of these arguments , the Court finds that the Special Master did not misapply Elida Community Fire Company

, O ne o hio Recovery Foundation , or Parma Community General Hospital

. {¶28} In sum, after all pertinent factors are analyzed, the submitted evidence shows by clear and convincing evidence th at Respondent is the functional equivalent of a pu blic office for p urp oses of the Ohio Pu blic Records Act. 2. The Special Master did not err in appl ying the “ quasi
- agency test

. ” {¶29} In State ex rel. Armatas v. Plain Twp. Bd . of Trustees , 163 Ohio St.3d 304, 2021

- Ohio

- 1176, 170 N.E.3d 19, ¶ 14 , the Ohio Supreme Co urt des cribed the “ quasi

age ncy test, ” statin g that “ in cases in which a public office rec eives a request for records that are in the possession of a private entity, we have articulated a ‘ quasi

- agency ’ t est forCase No. 2023

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determining whether the records are connected to the public office's delegation of its duty to the p rivate entity. ” In State ex rel. Armatas the O hio Supreme Court exp lained:

The quasi

- agency theory applies w hen “ ‘ (1) a private entity prepares records in order to carry out a public office ’ s responsibilities, (2) the public office is able to monitor the privat e entity's performance, and (3) the public office has access to the records for this purpose. ’ ” Am. Civ. Liberties Union of Ohio at ¶ 53, quot ing State ex rel. Mazzaro v. Fe rguson , 49 Ohio St.3d 37, 39, 550 N.E.2d 464 (1990). The caselaw demonstrates * * * that when a request er has adequately proved the first prong of the q u asi

- agency test, the requester ha s met his burden: proof of a delegated public duty establishes that the documents relating to the delegated function s are public records. State ex rel. A rmatas at ¶ 16

. {¶30} Here, Reques ter seeks records that document compensation paid to individual s who provide fire protectio n to Munson Township , a governme ntal function of Munso n Township

. Requester thus has satisfied the first prong of the “ quasi

- agency ” tes t, as stated in Arma tas , and has met its burden o f pro of under the first prong of the

“ quasi

- agency ” te st

. See ex rel . Armatas at ¶ 16. Requester thus has satisfied its burden of proof that the records about compensat ion that Requester seeks are public r ecords. Id. {¶31} Respondent ’ s contention that the Spe cial Master misapplied the “ quasi

agency test ” is unpersu asive. 3. The Special Master did not m a ke inappropriate judgments on t he credibility of assertions made by Respondent. {¶32} Respondent contend s that the Special Master unfairly a nd improperly dismiss ed as “ speculative ” the Munson Fire Department ’ s Fire Chie f an d Treasurer ’ s affirmation s that a finding that Respondent is a functional equivalent of a public agenc y and quasi

- ag ency would lead to administrative dif ficu lties . Respondent further contends that the Special Master’ s Report and Recommendation requires a small fire department with twenty

- f o ur (24) employees to bear the brun t and costs of unnecessarily responding to public information reques ts from disgruntled members of the public who sometimesCase No. 2023

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make overly broad requests that have no legitimate connection to the needs of the community

. {¶33} Respondent ’ s arguments are unpersu asive. To the extent that the Munson Fir e Depa rt ment ’ s Fire Chief and Treasurer ’ s aff irmation s are based on theoretical rather than dem onstrable knowledge, these affirmations reasonably may be viewed as

“ speculative. ” Moreo ver, i n State ex rel. Bott Law Gro up, LLC v. Ohio Dept. of Natural Resources , 10th Dist. Franklin No. 12AP

- 448, 2013

- Ohio

- 5219, ¶ 21 , the Tenth District C our t of Appeals stated, While we recognize that [ R.C. 149.43(B)(1 ) ] imposes a sizeable burden upon responding agencies [,] * * * “ ‘ [n]o pleading of too much expense, or too much time involved, or too much interference with normal duties, can be used by the [public agency] to evade the public ' s right to inspect and obtain a copy of public records within a r easonable time. ’ ” State ex rel. Fo x v. Cuyahoga Cty. Hosp. Sys ., 39 Ohio St.3d 108, 111, 529 N.E.2d 44 3 (1988), quoting State ex rel. Bea con Journal Publishing Co. v. Andrews , 48 Ohio St.2d 283, 289, 358 N.E.2d 565 (1976 ). Indeed, a public agency “ is under a statutory duty to organize [its] office and employ [its] staff in such a way that [its] office will be able to make [ public] records available for inspection and to provide copies when req uested within a reasonable time. ” Id ., quoting State ex rel. Beac on Journal

. See also State ex rel. Hartkemeyer v. Fairfield Twp ., 12th Dist. No. CA2012

- 04

- 080, 2012

- Ohio

5842, ¶ 25. {¶34} Although the Court is s ensitive to Respondent ’ s view that it may be overbur dened by requests for pu bli c records, the Court determines that the Special Master did not err by the use of the term “ speculative

. ” III. Conclusion {¶35} For reasons set forth above, the Court overrules Respondent ’ s ob jections , denies Request er ’ s motion to strike , and adopts the Special Master ’ s Report and Recommendation , excepting the recommendation that Re spo ndent be ordered to explain the redactions

. The Court orders Respondent to produce unredacted copies o f the

re c ords filed for in camera review to Requester. Requester is entitled to re cover fromCase No. 2023

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R espondent the amount of the filing fee of twenty

- five dollars an d any ot her costs

ass oci ated with the ac t ion that are incurre d by t he Reque ster , exc epting attorney fe es

. Court costs a r e assessed against Respondent

. The C ler k s ha ll se rve upon all p arties notice of this judgment and its date o f e ntry upon the jou rnal

.

LISA L. SADLER Judge

Filed N o vember 28 , 2023 Sent to S.C. Reporter 1 2 / 7 /23