State ex rel. Fair Housing Opportunities of Northwest Ohio, d/b/a The Fair Housing Center v. The Ohio Fair Plan
No. 20AP-351
IN THE COURT OF APPEALS OF OHIO, TENTH APPELLATE DISTRICT
February 10, 2022
[Cite as State ex rel. Fair Hous. Opportunities of Northwest Ohio v. Ohio Fair Plan, 2022-Ohio-385.]
BEATTY BLUNT, J.
(REGULAR CALENDAR)
DECISION
Rendered on February 10,
On brief: George Thomas, for relator.
IN MANDAMUS ON OBJECTIONS TO THE MAGISTRATE‘S DECISION
BEATTY BLUNT, J.
{1} Relator, Fair Housing Opportunities of Northwest Ohio, d/b/a. The Fair Housing Center (“Fair Housing” or “relator“) seeks a writ of mandamus ordering respondent, The Ohio Fair Plan Underwriting Association (“OFP” or “respondent“), to respond to a public records request made pursuant to
{2} Pursuant to
{3} Respondent OFP has filed four objections to the conclusions of law in the magistrate‘s decision, and relator Fair Housing has filed one counter-objection. OFP‘s objections are as follows:
[I.] The Magistrate erred in determining that the OFP is a “public office” as defined in
R.C. 149.011 .[II.] The Magistrate‘s decision is not supported by
R.C. 3929.48 .[III.] The Magistrate‘s decision is inconsistent with the treatment of FAIR plans in other jurisdictions.
[IV.] The Magistrate failed to apply the functional-equivalency test.
{4} Fair Housing‘s sole counter-objection is as follows:
[I.] The Fair Housing Center objects to the Magistrate‘s decision only in its determination that The Fair Housing Center should not receive attorney fees and statutory damages.
{5} Because OFP and Fair Housing have filed objections, we must independently review the record and the magistrate‘s decision to ascertain whether “the magistrate has properly determined the factual issues and appropriately applied the law.”
{6} Turning to the magistrate‘s conclusions of law and both parties’ objections to them, we begin by observing that “[m]andamus is the appropriate remedy to compel compliance with
{7} Ohio‘s Public Records Act is codified at
{8} Pursuant to
{9} Public offices must promptly prepare and transmit requested public records within a reasonable period of time. Specifically,
{10} The Supreme Court of Ohio has held that ” ’ doubts as to the “public” status of any entity should be resolved in favor of finding it subject to the disclosure statute.’ ” State ex rel. Strothers v. Wertheim, 80 Ohio St.3d 155, 156 (1997), quoting State ex rel. Toledo Blade Co. v. Univ. of Toledo Found., 65 Ohio St.3d 258, 261 (1992). The Supreme Court has also held that for purposes of the Public Records Act, a private corporation may be considered a public office when it performs a function of government. ” ‘An entity need not be operated by the state or a political subdivision thereof to be a public office under
{11} In this case the magistrate was tasked with determining whether OFP is a “public office” for purposes of the Public Records Act and thus must respond to Fair Housing‘s public records request. Upon review, we find the magistrate correctly found that OFP is such a public office for purposes of the Public Records Act and therefore must respond to Fair Housing‘s public records request by providing all records not otherwise exempt from disclosure pursuant to the statute. Furthermore, we find no merit to either OFP‘s objections1 or Fair Housing‘s objection to the magistrate‘s decision, as discussed below.
{12} In its first objection, OFP asserts that the magistrate‘s conclusion that OFP is a public office as defined by
{13} Second,
{14} Third,
{15} OFP makes much of the Supreme Court‘s decision in State ex rel. Bell v. Brooks, 130 Ohio St.3d 87, 2011-Ohio-4897, but Bell is readily distinguished from the instant matter. First, contrary to OFP‘s position that the Bell court held that “providing insurance is not a government function,” what the Bell court actually found was that “providing insurance to counties, which is the function being performed by CORSA, has not been established to be a historically governmental function.” (Emphasis added.) Bell at ¶ 22. It is simply inaccurate to argue the Supreme Court made a blanket finding regarding the provision of insurance. Second, in Bell, the private entity from which the records had been requested-CORSA-was established as a private, joint self-insurance pool by the County Commissions Association of Ohio, not pursuant to a statutory scheme as is the case with OFP, which as stated previously was established and is regulated by
{16} OFP also reiterates its argument that because it is specifically exempt from being considered an “agency” for purposes of the “Sunset Review” requirements of
{17} In summation, the magistrate correctly determined that OFP is a “public office” as defined by
{18} For its second objection, OFP asserts the magistrate‘s decision is not supported by
{19} In our discussion relating to OFP‘s first objection above, we explained why the limited immunity granted to OFP and its agents and the specific exclusion of certain documents of OFP from being public documents provided by
{20} Accordingly, we overrule OFP‘s second objection.
{21} In its third objection, OFP asserts the magistrate‘s decision is inconsistent with the treatment of FAIR plans in other jurisdictions. This objection is meritless.
{22} Simply stated, how other states treat their respective FAIR plans with respect to public records requests is simply not relevant. Ohio has its own Public Records Act, its own case law construing same, and its own statutory scheme establishing and regulating the OFP, which is all this court must concern itself with in this matter. OFP has cited to no authority supporting the proposition that we must reconcile other states’ treatment of their FAIR plans in regard to public records requests and we decline to take on such a reconciliation.
{23} Accordingly, we overrule OFP‘s third objection.
{24} Finally, in its fourth objection, OFP asserts that the magistrate should have applied the “functional equivalency” test set forth by the Supreme Court in State ex rel. Oriana House, Inc. v. Montgomery, 110 Ohio St.3d 456, 2006-Ohio-4854, in order to determine whether OFP was subject to the Public Records Act and further, if that test were properly applied, the correct conclusion is that OFP is not a “functional equivalent” of a public agency so as to be subject to the Public Records Act. This objection is meritless.
{25} We have already determined that the magistrate correctly found that OFP is a public office for purposes of the Public Records Act pursuant to the plain language of
{26} Accordingly, we overrule OFP‘s fourth objection.
{27} We now turn to Fair Housing‘s counter-objection, in which it asserts that the magistrate erred in not awarding statutory damages and attorney fees. We disagree.
{29} In this case, we find the magistrate properly found that no award of statutory damages was warranted based on the “prompt and cooperative nature of OFP‘s response to the public records request” and because this case involved a matter of first impression, and thus, the condition of
{30} The Public Records Act also permits an award of reasonable attorney fees in cases where a court renders a judgment that orders a public office to comply with the mandates of the Public Records Act.
[a] court shall not award attorney fees if the following two conditions are met: (1) based on the law as it existed at the time, a well-informed person responsible for the requested public records would have reasonably believed that the conduct of the public office did not constitute a failure to comply with an obligation of
R.C. 149.43(B) , and (2) a well-informed person responsible for the requested public records would have reasonably believed that the conduct of the public office would serve the public policy that underlies the authority that it asserted as permitting that conduct.
Id. at ¶ 14, citing
{31} In
{32} Accordingly, we overrule Fair Housing‘s sole objection.
{33} Therefore, for the foregoing reasons, we overrule the objections filed by OFP and we overrule the objection filed by Fair Housing. Having conducted an examination of the magistrate‘s decision and an independent review of the record pursuant to
Objections overruled; writ of mandamus granted.
MENTEL and NELSON, JJ., concur.
NELSON, J., retired, of the Tenth Appellate District, assigned to active duty under the authority of the Ohio Constitution, Article IV, Section 6(C).
APPENDIX
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State ex rel. Fair Housing Opportunities of Northwest Ohio, d/b/a The Fair Housing Center, Relator,
v.
The Ohio Fair Plan, Respondent.
No. 20AP-351
(REGULAR CALENDAR)
MAGISTRATE‘S DECISION
Rendered on July 28, 2021
George Thomas, for relator.
Crabbe Brown & James, LLP, Larry H. James, and Natalie P. Bryans, for respondent.
IN MANDAMUS
{34} Relator, Fair Housing Opportunities of Northwest Ohio, doing business as The Fair Housing Center (“Fair Housing“) seeks a writ of mandamus ordering respondent, The Ohio fair plan underwriting association (“OFP“), to respond to a public records request made pursuant to
Findings of Fact:
{35} 1. Respondent OFP is an association created pursuant to
{36} 2. As defined in
{37} 3. OFP‘s employees are not state employees and do not participate in any Ohio public employee retirement system. (Agreed Statement of Facts, at 2.)
{38} 4. Under
{39} 5. Under
{40} 6. Under
{41} 7. The regulations governing OFP‘s operations are promulgated by the superintendent of insurance at Ohio Adm.Code 3901-1-18.
{42} 8. On April 9, 2020, Fair Housing submitted via certified mail to OFP a request for public records:
[One] A complete copy of every underwriting standards (sometimes referred to as “underwriting guidelines“) that Ohio FAIR Plan has used since 1999.
[Two] A list of every address that has received insurance through Ohio FAIR Plan since 2015. If at all possible, please provide this list in Microsoft Excel, or other similar spreadsheet format, with separate columns indicating:
a. the address of each property,
b. the type of insurance, and
c. the amount of the insurance.[Three] A list of every address that Ohio FAIR Plan rejected for insurance coverage since 2015. If at all possible, please provide this list in Microsoft Excel, or other similar spreadsheet format, with separate columns indicating:
a. the address of each property,
b. the type of insurance applied for,
c. the amount of the insurance applied for, and
d. the reason the application was rejected.
[Four] Any records explaining, detailing, providing guidance on the meaning of, or stating why Ohio FAIR Plan adopted the underwriting criteria of “Dwelling structure must have coverage equal to or greater than Insurance Services Office‘s rating minimum...”
a. Perform a search of the Ohio FAIR Plan‘s email servers for the phrase “Dwelling structure must have coverage equal to or greater than Insurance Services Office‘s rating minimum” and provide any resulting records.
[Five] Any records explaining, detailing, or providing guidance on the meaning of, or stating why Ohio FAIR Plan adopted the underwriting criteria of “Dwelling structure coverage carried must be at least 50% of the replacement cost.”
a. Perform a search of the Ohio FAIR Plan‘s email servers for the phrase “Dwelling structure coverage carried must be at least 50% of the replacement cost” and provide any resulting records.
(Agreed Statement of Facts, Ex. 1.)
{43} 9. On April 20, 2020, counsel for OFP responded to the public records request with a letter denying that OFP was
{44} 10. Correspondence dated May 18, 2020 from OFP‘s counsel to Fair Housing elaborated on OFP‘s reasons for limiting its response to the records request:
This letter is a follow-up to our letter of April 24 and our follow-up telephone conversation.
The board of governors for the Ohio Fair Plan is explicitly excluded from the definition of “agency” set forth in
R.C. 101.82 “Sunset Review Committee Definitions.”In 1995, the Ohio Fair Plan inquired as to whether it was a public entity and therefore required to file an annual report as required by
R.C. 101.86 .Pursuant to
R.C. 101.82 , “agency” was defined as “any board, commission, committee, or council, or any other similar public body established under the laws of this state for the exercise of
any function of state government and to which members are appointed or elected.”
Our office argued that the board of governors of the Ohio Fair Plan is not a public agency as defined by
R.C. 101.82 , and therefore not required to file an annual report as required byR.C. 101.86 , becauseR.C. 3929.43 provides that the majority of the Plan‘s board shall be elected by the private insurance company members of the Plan. Because the majority of the board is made of the private insurance members, the board does not fall withinR.C. 101.82 ‘s definition as comprising of members appointed or elected by the general public.The Legislative Service Committee met on December 12, 1995. After considering our office‘s argument pertaining to the Fair Plan‘s status as a private association, the Legislative Service Committee unanimously passed a motion exempting the Fair Plan from the reporting requirements for the fiscal year 1995.
Subsequently, in 1997, the Ohio State Legislature amended
R.C. 101.82 to explicitly exclude the Ohio Fair Plan from the definition of “agency.” Specifically,R.C. 101.82(A)(11) now provide that the definition of “agency” “does not include:...[t]he board of directors of the Ohio insurance guaranty association and the board of governors of the Ohio [F]air [P]lan underwriting association.”As you can see from the above, the Ohio FAIR Plan is not subject to public records request. It is not a public agency for such purposes.
(Emphasis sic.) (Agreed Statement of Facts, Ex. 4.)
{45} 11. On May 19, 2020, OFP further wrote that, although it maintained its position that it was not obligated to respond, it wished to cooperate to the extent possible with the public records request. OFP offered to provide information to Fair Housing regarding OFP‘s underwriting guidelines and general statistics, while refusing any information that would compromise privacy for individual borrowers. (Agreed Statement of Facts, Ex. 5.)
{46} 12. On July 10, 2020, Fair Housing filed its complaint in mandamus with this court, seeking a writ declaring that OFP is a public entity subject to the Ohio Public Records Act, and ordering OFP to provide the requested records to the extent that they did not constitute protected information under
Discussion and Conclusions of Law:
{47} To obtain a writ of mandamus, a relator must show a clear legal right to the relief sought and a clear legal duty on the part of the respondent to provide that relief, in conjunction with the absence of a plain and adequate remedy in the ordinary course of the law. State ex rel. Pressley v. Indus. Comm., 11 Ohio St.2d 141 (1967); State ex rel. Berger υ. McMonagle, 6 Ohio St.3d 28 (1983). Jurisdiction and venue for this original action in mandamus lie with this court pursuant to the Ohio Constitution, Article IV, Section 3(B)(1)(b),
{48} The purpose of the Ohio Public Records Act is to “expose government activity to public scrutiny, which is absolutely essential to the proper working of a democracy.” State ex rel. Gannett Satellite Info. Network, Inc. v. Petro, 80 Ohio St.3d 261 (1997), citing State ex rel. WHIO-TV-7 v. Lowe, 77 Ohio St.3d 350 (1997). Scrutiny of public records allows citizens to evaluate the rationale behind government decisions so that government officials can be held accountable. White v. Clinton Cty. Bd. of Commrs., 76 Ohio St.3d 416, 420 (1996).
{49} The appropriate remedy to compel compliance with Ohio‘s Public Records Act is an action in mandamus.
{50} The requestor of public records must identify the records sought “with reasonable clarity,” so that the public office can identify responsive records based on the manner in which it ordinarily maintains and accesses its records. State ex rel. Zidonis v. Columbus State Community College, 133 Ohio St.3d 122, 2012-Ohio-4228, ¶¶ 26, 33. See also State ex rel. Glasgow v. Jones, 119 Ohio St.3d 391, 2008-Ohio-4788, ¶ 17. Otherwise put, the Public Records Act does not require the public office to speculate regarding the selection of public records of specific interest to the requestor. State ex rel. Thomas v. Ohio State Univ., 71 Ohio St.3d 245 (1994).
{51} The
{52} Fair Housing argues that OFP easily meets the standard. In the alternative, Fair Housing argues that OFP is a “quasi-agency” that is subject to public records requirements under State ex rel. Carr v. Akron, 112 Ohio St.3d 351, 2006-Ohio-6714, ¶ 37, a case finding that a testing contractor conducting firefighter promotional examinations was subject to public records law. Fair Housing provides the additional, and essentially overlapping, argument that OFP is the functional equivalent of an agency under State ex rel. Oriana House, Inc. v. Montgomery, 110 Ohio St.3d 456, 2006-Ohio-4854.
{53} Because the magistrate concludes that OFP is a public office as defined in
{54} It is undisputed that OFP is a creature of statute. The legislature enacted
{55} Pursuant to the above statute, the Department of Insurance has promulgated regulations providing an administrative process for appeal of the decisions of OFP in the issuance of insurance. Ohio Adm.Code 3901-1-18(J)(2) states:
Any applicant, insured, or member insurer shall have the right to appeal to the superintendent any action or decision of the board. * * * The decision of the superintendent of an appeal is a final order and is subject to judicial review as provided in Chapter 119. of the Revised Code.
{56} OFP then funds itself under
{57} OFP correctly points out that not all heavily regulated private enterprises will be brought into the ambit of Ohio‘s Public Records Act as public offices. Defining a public office must necessarily be a case-by-case proposition. One important factor is the nature of the public
The Ohio Public Defender is established by
R.C. 120.04 for the purpose of furthering various government objectives relating to the representation of indigent persons. In that regard, the Ohio Public Defender‘s Office is a “public office” as defined inR.C. 149.11(A) .
Id. at 422.
{58} Similarly, OFP was established for the purpose of furthering the government objective of providing insurance availability in areas where difficulties had arisen when private insurers were left free to underserve a market. The legislature then created a heavily regulated and overseen entity, mandated to create a plan satisfactory to the superintendent of the Department of Insurance, to implement this public policy goal. On balance, the magistrate concludes that in its genesis and implementation OFP is a public office as defined by statute and must comply with Ohio‘s Public Records Act.
{59} Beyond its general statutory structure, OFP relies on a pair of specific statutory sections for the proposition that it is exempt from public records requests. OFP notes that
There shall be no liability on the part of, and no cause of action of any nature shall arise against any insurer, inspection bureau, or the Ohio fair plan underwriting association, or a director, agent, or employee of any of these, or the superintendent of insurance or his authorized representatives, for any inspections undertaken or statements made by any of them concerning the property to be insured, or any acts or omissions in connection therewith. Any reports and communications in connection therewith are not public documents.
{60} The magistrate concludes that the specific exception for certain categories of documents produced by OFP only reinforces the proposition that all other documents are public records under the rule of inclusio unius est exclusio alterius. Summerville v. Forest Park, 128 Ohio St.3d 221, 2010-Ohio-6280, ¶ 35; State ex rel. Newark Group, Inc. v. Administrator, Bur. of Workers’ Comp., 10th Dist. No. 19AP-544, 2021-Ohio-1939.
{61} OFP also argues that exclusion of OFP, under
{62} The magistrate accordingly concludes that OFP is a public office for purposes of Ohio‘s Public Records Act and must respond to Fair Housing‘s public records request with all records not otherwise exempt from disclosure under statute. It is therefore the decision and recommendation of the magistrate that a writ issue directing OFP to that effect.
{63} Fair Housing has moved for an award of costs, statutory damages, and fees in this matter.
{64} An award of costs is mandated under
{65} With respect to statutory damages and attorneys’ fees, the magistrate notes the prompt and cooperative nature of OFP‘s response to the public records request; while OFP has denied that it is subject to the Public Records Act, it has worked with the requestor to provide information. Moreover, because determinations of whether an entity is a public office under the Public Records Act are often clouded and precedent can be sparse, the magistrate concludes that there is no bad-faith element in OFP‘s response. “The Public Records Act ‘outlines four triggering events that grant a court discretion to order reasonable attorney fees in a public-records case.’ ” State ex rel. Summers v. Fox, 164 Ohio St.3d 583, 2021-Ohio-2061, ¶ 12, quoting State ex rel. Rogers v. Dept. of Rehab & Corr., 155 Ohio St.3d 545, 2018-Ohio-5111, ¶ 32. If a court renders judgment ordering a public office to comply with the act, a court may award attorney fees to the relator.
(1) based on the law as it existed at the time, a well-informed person responsible for the requested public records would have
reasonably believed that the conduct of the public office did not constitute a failure to comply with an obligation of
R.C. 149.43(B) , and (2) a well-informed person responsible for the requested public records would have reasonably believed that the conduct of the public office would serve the public policy that underlies the authority that it asserted as permitting that conduct.
Summers at ¶ 14, citing
{66} “A prevailing party‘s attorney-fees request in a public-records mandamus action will be denied where the case presents a matter of first impression because courts should not engage in the practice of punishing a party to a lawsuit for taking a rational position on a justiciable, unsettled legal issue.” State ex rel. Cincinnati Enquirer v. Daniels, 108 Ohio St.3d 518, 2006-Ohio-1215, ¶ 35.
{67} The magistrate applies Summers and Daniels in this case to find that the position taken by OFP in this matter fulfills both prongs of the test to preclude an award of fees. Similarly, an award of statutory damages pursuant to
{68} It is therefore the further decision and recommendation of the magistrate that costs shall be awarded to relator but that no fee or statutory damages award will issue in this case despite the issuance of a writ.
/S/ MAGISTRATE
MARTIN L. DAVIS
NOTICE TO THE PARTIES