THE STATE EX REL. CINCINNATI ENQUIRER, DIVISION OF GANNETT SATELLITE INFORMATION NETWORK, INC., APPELLEE, v. KRINGS, CTY. ADMR., ET AL., APPELLANTS.
No. 01-982
SUPREME COURT OF OHIO
December 19, 2001
93 Ohio St.3d 654 | 2001-Ohio-1895
Submitted October 16, 2001. APPEAL from the Court of Appeals for Hamilton County, No. C-000408.
{¶ 1} In 1995, Hamilton County, Ohio, and the city of Cincinnati, Ohio, executed a memorandum of understanding in which the county agreed to implement a sales tax increase, subject to referendum, to fund construction of new stadiums and related facilities for the Cincinnati Bengals professional football team and the Cincinnati Reds professional baseball team. Following an election in which the Hamilton County voters approved the increased sales tax to fund the construction of the stadiums, the county began planning for construction.
{¶ 2} In January 1998, Hamilton County and Cincinnati entered into an agreement for the redevelopment of the riverfront area, including the construction of Paul Brown Stadium, the new football stadium for the Bengals. In the agreement, the county and the city specified that they had “determined that the construction of the new Stadium on the Cincinnati riverfront will create an extraordinary opportunity to eliminate blight and transform the riverfront into a
{¶ 3} Pursuant to its authority under
{¶ 4} Under the board‘s contract with Getz, Getz agreed to be the project manager for the construction of the new football stadium. The contract provided that at the county‘s direction, Getz would be authorized to act on behalf of the county as its agent. Getz‘s contractual duties included identifying significant changes affecting the overall project budget, presenting them to the county during review meetings, advising the county on the development of construction estimates and on the breakdown of the project into appropriate costs, attending cost meetings on behalf of the county, and monitoring expenditures against an agreed cost plan and reporting these items to the county. Furthermore, on behalf of the county, Getz was required to advise the construction manager on the development of cost reports, their frequency, the extent of detail, and the distribution of the reports.
{¶ 6} By letter dated March 6, 2000, Dan Klepal, a reporter for appellee, the Cincinnati Enquirer, a newspaper that is a division of Gannett Satellite Information Network, Inc. (“Enquirer“), requested that appellant Hamilton County Administrator David Krings permit Klepal to promptly inspect under
“All correspondence—including e-mails, memos and reports—between project team members related to cost overruns or potential cost overruns at Paul Brown Stadium. This should include memos and reports between different team members, for example Getz Ventures staff communicating with NBBJ [the project architect] or TBMD, as well as memos and reports among staff on the same company, whether it be Getz, NBBJ or TBMD.”
{¶ 7} The county provided the Enquirer with the following records in response to Klepal‘s request: all records in existence and physically located in the county administration building and all records in existence and authored by,
{¶ 8} After Suzanne Burck, the Director of Administrative Services for Hamilton County, instructed the Enquirer that all communications with the construction team or any member of the team were to be directed through Brooke Hill, the Enquirer requested that Hill, as a representative of TBMD, provide the newspaper with access to inspect all communications, including e-mails, memoranda, reports, and draft reports, between team members relating to cost overruns and the construction schedule at Paul Brown Stadium. Hill is an employee of HMS Success, which had a contract with Getz and was being paid by the county for its services as public information specialist for the project. Hill responded in a letter in which she stated that the project team rejected the Enquirer‘s request, specifying, “We do not believe that internal business documents of a contractor are public documents covered under the Ohio Open Records Act.”
{¶ 9} In June 2000, the Enquirer filed a complaint in the Court of Appeals for Hamilton County for a writ of mandamus to compel appellants, Krings, TBMD, and Getz, to provide it with access to the requested records. The Enquirer also requested an award of attorney fees. In December 2000, after appellants filed answers and motions for summary judgment, the court of appeals granted the writ and ordered appellants to provide the Enquirer with access to the requested cost-overrun records and deferred its consideration of the Enquirer‘s request for attorney fees. We granted the Enquirer‘s motion to dismiss appellants’ initial appeal from the December 2000 entry. State ex rel. Cincinnati Enquirer v. Krings (2001), 91 Ohio St.3d 1458, 743 N.E.2d 399. In May 2001, the court of appeals entered a judgment awarding the Enquirer attorney fees in the amount of $9,991.50 against Krings.
{¶ 10} This cause is now before the court upon the appeals as of right of Krings, TBMD, and Getz.
{¶ 11} Appellants assert that the court of appeals erred in granting the writ of mandamus to compel access to the cost-overrun records relating to the construction of Paul Brown Stadium.
{¶ 12} Mandamus is the appropriate remedy to compel compliance with Ohio‘s Public Records Act,
{¶ 13} As the court of appeals correctly held, the dispositive issue is whether the requested cost-overrun records in the custody of private entities like TBMD and Getz are public records for purposes of the Public Records Act. “Records” that are referred to in
{¶ 14}
{¶ 16} The construction of stadiums has historically been accomplished by public, rather than private enterprise. See Bazell v. Cincinnati (1968), 13 Ohio St.2d 63, 69, 42 O.O.2d 137, 140, 233 N.E.2d 864, 869, quoting Cleveland v. Bd. of Tax Appeals (1950), 153 Ohio St. 97, 131-132, 41 O.O. 176, 192, 91 N.E.2d 480, 497 (Taft, J., dissenting) (“The construction and operation of modern open-air stadiums have not been developments of private enterprise. They originated in the athletic needs of schools and colleges and have been undertaken generally as municipal functions throughout the country. * * * [The] problems * * * that might arise * * *, if the enterprise were not conducted as a public enterprise, are important factors which justify the conduct of such enterprise at all times under governmental supervision“); Meyer v. Cleveland (1930), 35 Ohio App. 20, 25, 171 N.E. 606, 607, referring to stadiums constructed in ancient Greece and Rome; see, also, CLEAN v. State (1996), 130 Wash.2d 782, 793, 928 P.2d 1054, 1059 (“the overwhelming majority of courts from other jurisdictions confronting this issue have determined that construction of a publicly owned stadium to be leased to professional sports teams serves a public purpose“).
{¶ 17} Under
{¶ 18} In these contracts, TBMD and Getz were obligated to prepare records related to construction costs for the publicly funded stadium, the board and the county had the right to monitor their performance under the contracts, and the board was authorized to access records in order to monitor their performance. In fact, in certain circumstances, Getz had a contractual duty to act as the county‘s agent regarding construction costs, including attending cost meetings on behalf of the county and advising the construction manager, i.e., TBMD, on cost reports. And Getz had a further duty to monitor costs against the plan and report to the county. TBMD specifically agreed to act to further the board‘s interests, to provide access to cost-accounting records, and to record pertinent project information as the board required. These provisions are sufficiently broad to establish a right of access on the part of the county to TBMD and Getz‘s records concerning cost overruns on the public construction project. As the Enquirer notes, it is significant that there is no evidence that either Krings or any representative of the county had been refused access to these records after requesting them from TBMD or Getz.
{¶ 19} Moreover, as in State ex rel. Gannett Satellite Info. Network v. Shirey (1997), 78 Ohio St.3d 400, 403, 678 N.E.2d 557, 560-561, a public office contracted with private entities for a public purpose: to construct a publicly funded stadium, an undertaking of enormous, unquestioned public importance. As we held therein, governmental entities cannot conceal information concerning public duties by delegating these duties to a private entity. Id. at 403, 678 N.E.2d at 561; State ex rel. Findlay Publishing Co. v. Hancock Cty. Bd. of Commrs. (1997), 80 Ohio St.3d 134, 137, 684 N.E.2d 1222, 1225. By undertaking to exercise its statutorily
{¶ 20} Nor were requests for records defective, as appellants contend, for not being properly directed to TBMD and Getz. The Enquirer initially requested that Krings, an appropriate county official, provide access to the requested records and directed its second request to Brooke Hill only upon being instructed by the county‘s director of administrative services that communications being directed to members of the construction team, including TBMD and Getz, be directed to Hill. Hill refused the second request by stating that the project team would not be honoring the Enquirer‘s requests. Under these circumstances, the Enquirer could have justifiably anticipated that additional requests to TBMD and Getz would be unavailing. Cf. State ex rel. White v. Cleveland (1973), 34 Ohio St.2d 37, 63 O.O.2d 79, 295 N.E.2d 665, paragraph two of the syllabus (request for records not required if circumstances establish that action would be futile or unavailing).3
{¶ 21} More important, the requested records should have been made available for the Enquirer‘s inspection after the initial request to Krings so that appellee did “not have to deal with a private third party in order to gain access to the records.” State ex rel. Recodat Co. v. Buchanan (1989), 46 Ohio St.3d 163, 164, 546 N.E.2d 203, 204.
{¶ 22} Furthermore, as the Enquirer notes, if we were to adopt appellants’ view, a private entity performing a government contract that obligates it to act to further the best interest of the governmental entity could prepare records concerning massive cost overruns and fail to divulge these records to the public office unless
{¶ 23} “[T]he inherent, fundamental policy of
{¶ 24} Based on the foregoing, the court of appeals properly held that the requested cost-overrun records are within the jurisdiction of the Hamilton County Board of Commissioners, which appointed Krings, and that the records were public records for purposes of
Attorney Fees
{¶ 25} We also affirm the award of attorney fees against Krings. The Enquirer‘s requests were proper, the Enquirer established an unquestioned benefit through the public‘s right to know about cost overruns in the construction of Paul Brown Stadium, which was largely financed with public tax revenue, and Krings failed to comply for reasons that were devoid of merit. See State ex rel. Dillery v. Icsman (2001), 92 Ohio St.3d 312, 317, 750 N.E.2d 156, 162.
Judgment affirmed.
RESNICK, J., not participating.
Michael K. Allen, Hamilton County Prosecuting Attorney, Carl J. Stich and Christian J. Schaefer, Assistant Prosecuting Attorneys, for appellant David Krings.
Taft, Stettinius & Hollister and William J. Seitz, for appellants Turner Construction Co., D.A.G. Construction Co., Inc., and Barton Malow Co.
Katz, Teller, Brant & Hild, L.P.A., and James F. McCarthy III, for appellant Getz Ventures, L.L.C.
Graydon, Head & Ritchey LLP, John C. Greiner, John A. Flanagan and Ann K. Schooley, for appellee.