Hurt v. Liberty Twp.
2017 Ohio 7820
| Ohio Ct. App. | 2017Background
- Liberty Township hired private investigator Douglas Duckett under R.C. 505.38 to investigate its fire chief and prepare removal charges; Duckett interviewed multiple trustees, employees, and others and created interview notes (the “Duckett notes”).
- Duckett submitted a final report and charges were filed, an administrative hearing began in August 2016, a subpoena for Duckett’s notes was issued to defense counsel, and the hearing later ended by settlement without adjudication.
- Requesters Hurt and Gerber sought the Duckett notes via public-records requests; the Township refused, asserting the notes were Duckett’s private records and not in the Township’s possession.
- Requesters sued in the Ohio Court of Claims under R.C. 2743.75 alleging denial of access to public records; the Special Master found the notes were public records and recommended disclosure and costs.
- The Court of Claims adopted the Special Master’s Report; Liberty Township appealed, arguing (1) Duckett was not subject to the Public Records Act, (2) the notes were personal convenience notes and not records, and (3) the Township did not possess the notes.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Duckett (private investigator) is subject to Ohio Public Records Act | Requesters: Duckett performed a governmental function for the Township and thus is a person responsible for public records | Township: Duckett was a private individual not subject to the Act because he was not a public office or equivalent | Court: Duckett is the functional equivalent / quasi‑agency for the assignment; public-records law applies |
| Whether Duckett’s interview notes are "records" (not mere personal notes) | Requesters: Notes documented Township functions and were prepared to carry out the Board’s public responsibilities | Township: Notes were private convenience drafts used to prepare a report and therefore exempt/non‑records | Court: Township failed to prove an exception; notes may document public office activity and must be disclosed |
| Whether the Township must produce notes it does not physically possess | Requesters: Public offices cannot avoid disclosure by contracting out work; records on which the office relied are subject to disclosure regardless of physical custody | Township: Because notes remained in Duckett’s possession and were not filed with the Board, they are not Township records | Court: Physical possession is not dispositive; under Mazzaro/Shirey principles, records created for a public purpose and on which the office relied are subject to disclosure |
| Burden and standard of proof in Court of Claims public-records action | Requesters: Standard should mirror mandamus actions — clear & convincing proof of right to records and duty to provide | Township: (implicit) higher or different burden in Court of Claims | Court: Applies mandamus/public-records standard (clear & convincing for entitlement; custodian bears burden to prove any exception) |
Key Cases Cited
- State ex rel. Oriana House, Inc. v. Montgomery, 110 Ohio St.3d 456 (2006) (functional‑equivalency factors to determine when a private entity is subject to public‑records law)
- State ex rel. Mazzaro v. Ferguson, 49 Ohio St.3d 37 (1990) (three‑part test: private entity performed public duties, public office could oversee, and public office had access to records)
- State ex rel. Gannett Satellite Info. Network v. Shirey, 78 Ohio St.3d 400 (1997) (public office cannot evade disclosure by delegating a public task to a private consultant)
- State ex rel. Pietrangelo v. City of Avon Lake, 149 Ohio St.3d 273 (2016) (distinguishing when handwritten notes used solely to prepare a final report and then destroyed may be non‑existent/non‑disclosable)
- State ex rel. Natl. Broadcasting Co. v. Cleveland, 38 Ohio St.3d 79 (1988) (records that contain excepted information must be individually scrutinized and redacted as appropriate)