THE STATE EX REL. WTOL TELEVISION, L.L.C., ET AL. v. CEDAR FAIR, L.P., D.B.A. CEDAR FAIR ENTERTAINMENT COMPANY, ET AL.
No. 2022-0914
SUPREME COURT OF OHIO
December 20, 2023
Slip Opinion No. 2023-Ohio-4593
[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State ex rel. WTOL Television, L.L.C. v. Cedar Fair, L.P., Slip Opinion No. 2023-Ohio-4593.]
NOTICE
This slip opinion is subject to formal revision before it is published in an advance sheet of the Ohio Official Reports. Readers are requested to promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65 South Front Street, Columbus, Ohio 43215, of any typographical or other formal errors in the opinion, in order that corrections may be made before the opinion is published.
SLIP OPINION NO. 2023-OHIO-4593
[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State ex rel. WTOL Television, L.L.C. v. Cedar Fair, L.P., Slip Opinion No. 2023-Ohio-4593.]
Mandamus—Public-records requests—Police department that provides security, policing, and law-enforcement services at amusement park acts as functional equivalent of a public institution and therefore must respond to valid public-records requests related to those duties—Respondents failed to meet their burden to show that requested documents, to the extent they exist, are exempt from disclosure—Writ compelling production of certain requested documents granted—Statutory damages and attorney fees denied and court costs awarded.
(No. 2022-0914—Submitted September 12, 2023—Decided December 20,
IN MANDAMUS.
Per Curiam.
{¶ 1} Relators, WTOL Television, L.L.C., WKYC-TV, L.L.C., and WBNS-TV, Inc., filed this original action in mandamus seeking a writ to compel respondents, Cedar Fair, L.P., d.b.a. Cedar Fair Entertainment Company, and Ronald E. Gilson, to provide documents in response to three public-records requests. We grant a writ ordering Cedar Fair and Gilson to produce some, but not all, of the requested documents. We also grant relators’ request for an award of court costs but deny their requests for awards of statutory damages and attorney fees.
I. FACTUAL AND PROCEDURAL HISTORY
A. Background
{¶ 2} Cedar Fair operates amusement parks across the country, including Cedar Point in Sandusky. The Cedar Point Police Department (“CPPD“) provides security, policing, and law-enforcement services at Cedar Point. Gilson is the director of security at Cedar Point and the chief of police of the CPPD.
{¶ 3} Relators are media companies that broadcast news in Ohio. In August 2021, a guest at Cedar Point was allegedly injured near the Top Thrill Dragster ride and WKYC sent a public-records request to the CPPD asking for records related to the incident. Meanwhile, relators had been investigating sexual assaults that allegedly occurred at Cedar Point employee housing beginning in April 2017. In March and June 2022, WTOL and WBNS sent public-records requests to the CPPD asking for records related to the alleged assaults. Relators allege that they have not received any of the requested records.
{¶ 4} Relators filed this mandamus action in July 2022. They seek a writ of mandamus ordering Cedar Fair and Gilson to produce the requested records, and they also seek statutory damages, court costs, and attorney fees. In their answer to the complaint, Cedar Fair and Gilson denied that the CPPD is an entity that is required to respond to public-records requests. They also stated that they did not have any responsive documents and that even if they did, the records are exempt from disclosure as confidential law-enforcement investigatory records and privileged private-security documents.
{¶ 5} We issued an alternative writ and ordered the parties to brief and submit evidence “on whether the Public Records Act,
B. WKYC‘s public-records request
{¶ 6} On August 18, 2021, WKYC emailed a request to the CPPD, seeking “[a]ll incident and investigative reports from the Cedar Point Police and associated Emergency Medical Services personnel regarding an incident Sunday, Aug. 15, 2021, at Cedar Point Park—specifically an injury sustained by a female guest near the Top Thrill Dragster ride.” In addition, WKYC requested witness statements, investigative notes, recordings and video of the incident, and any other documents stemming from the incident. WKYC emailed the request to the CPPD‘s general email address and copied two other Cedar Point contacts. On August 19, WKYC forwarded the request to Gilson and Tony Clark, another Cedar Point employee. Clark responded later that day, stating, “Assuming Cedar Point is required to provide such documents, we have no documents responsive to your public records request.” Clark later offered to connect Cedar Point‘s legal counsel with WKYC. But Cedar Fair and Gilson never provided the requested documents or any further response.
C. WTOL‘s public-records request
{¶ 7} On March 23 2022, WTOL emailed a public-records request to Gilson, seeking “[c]opies of all reports of sexual misconduct filed with, and maintained by, the Cedar Point Police Department from April 1, 2017 to March 22, 2022.” In addition, WTOL requested “copies and/or recordings of any witness or suspect statements, oral or written; investigative notes; recommendations of charges, and photos and/or videos associated with the reports provided.” Gilson responded by email on March 25, acknowledging receipt of the request and indicating that it had been forwarded to legal counsel for an opinion as to whether the Public Records Act applies to Cedar Point. Gilson wrote:
If Cedar Point is required to respond to the request and there are documents responsive to the request—we will provide the documents within a reasonable time (30 days). If our counsel believes that we are not required under Ohio law to respond, our legal counsel will provide you with the basis for Cedar Point not responding.
(Emphasis sic.)
{¶ 8} WTOL sent a follow-up email to Gilson on March 25 and a follow-up letter on April 15, seeking compliance with the request. Cedar Fair and Gilson have not communicated with WTOL since Gilson‘s initial email message and have not provided any documents to WTOL.
D. WBNS‘s public-records request
{¶ 9} On June 2, 2022, WBNS emailed a request to Gilson for “[c]opies of all reports of sexual misconduct filed with, and maintained by, the Cedar Point Police Department from April 1, 2017 to March 22, 2022.” WBNS also requested “copies and/or recordings of any witness or suspect statements, oral or written; investigative notes; recommendations of charges, and photos and/or videos associated with the reports provided.” On June 6, 9, and 22 and July 18, WBNS sent follow-up emails to Gilson asking about the request. Cedar Fair and Gilson have not produced any documents to WBNS or provided any response to the request.
E. Evidence regarding the CPPD
{¶ 10} A Sandusky ordinance provides that the city manager shall appoint private police officers when requested by a person or business in Sandusky. Sandusky Codified
{¶ 11} In 2014, Sandusky and Cedar Fair entered into an agreement for the appointment of private police pursuant to Sandusky Codified Ordinances 127.04. Each officer must be qualified to serve as a law-enforcement officer in Ohio or must obtain such qualification within one year of appointment. Cedar Fair pays for the officers’ salary, equipment, and training, and it fully indemnifies the city for any liabilities incurred by the officers.
{¶ 12} The agreement states that the city manager “shall appoint and maintain in service at the pleasure of the said City Manager such private police officers as may be reasonably necessary to provide law enforcement services and police protection in an [sic] about the property owned and/or utilized by Cedar [Fair].” However, the agreement‘s provision that the private police officers serve at the pleasure of the city manager contradicts a Sandusky ordinance stating that private police officers serve at the “pleasure of the person, firm, or corporation requesting his appointment,” Sandusky Codified Ordinances 127.04(c). It is not clear from the record whether CPPD officers actually serve at the pleasure of the city manager or of Cedar Fair.
{¶ 13} Pursuant to this agreement, the city manager has commissioned members of the CPPD. Cedar Point police officers swear an oath before the city manager to support the laws of the United States, Ohio, and Sandusky and are commissioned as private police officers for the city. The Ohio Peace Officer Training Commission lists “Sandusky Police/Cedar Point Division” as a police agency. On social media, the Sandusky Police Department referred to Cedar Point police officers as “bonded officers, with full law enforcement authority.”
{¶ 14} The evidence submitted by relators shows that Cedar Point police officers have the power to arrest and investigate claims and that on occasion, they exercise these powers. The CPPD has taken witness statements and submitted police incident reports to the Sandusky Police Department. One of these reports, for a sexual assault, states that a CPPD officer served as the approving officer. In at least one civil forfeiture action, the CPPD was the plaintiff acting under the name CPPD and identified itself in a court filing as a law-enforcement agency. In response to a public-records request, a Sandusky assistant city manager stated in an email that “Sandusky officers generally handle many of the felony type crimes and [Cedar Point] officers handle most of the misdemeanor type of crimes.” He also stated that “[a]ny arrests made by Cedar Point is [sic] handled in Sandusky Municipal Court.”
{¶ 15} In addition, Cedar Fair and Gilson recognize that at the time of relators’ public-records requests, the CPPD was performing policing duties in addition to providing security. In June 2022—several months after WKYC and WTOL made their public-records requests—Sandusky
[T]he policing authorities of the Cedar Point Police Department will be fully transitioned into the Sandusky Police Department‘s operation, and the Cedar Point Police Department will focus solely on security operations at Cedar Point and its local affiliated properties. Conversely, the Sandusky Police Department will assume all policing responsibilities for Cedar Point and its affiliated properties.
(Emphasis sic.) The release states that the transition was expected to be complete in 2023.
{¶ 16} It is not clear from the record how the CPPD was created. Relators argue that Sandusky created the CPPD in that Sandusky‘s ordinances state that private police officers “shall constitute members of the private police force of the City,” Sandusky Codified Ordinances 127.04(a), and Sandusky appointed officers to perform law-enforcement services at Cedar Point. But nothing in either Sandusky‘s ordinances or the agreement between Sandusky and Cedar Fair creates, or authorizes the creation of, a private police department. Cedar Fair and Gilson state in their brief that the CPPD “was created by Cedar Fair, a private, for-profit limited liability partnership, for the purpose of providing security services to Cedar Fair,” but it has not timely submitted any evidence in support of this assertion.
II. LEGAL ANALYSIS
A. Legal standards
{¶ 17} Mandamus is an appropriate remedy to compel compliance with the Public Records Act.
B. Evidentiary issues
{¶ 18} We issued an alternative writ and ordered the parties to submit evidence by November 29, 2022. 168 Ohio St.3d 1450, 2022-Ohio-3903, 198 N.E.3d 106. Cedar Fair and Gilson did not submit any evidence by that date. Instead, they attached two affidavits to their merit brief: one from Cedar Fair‘s former general counsel and one from Gilson.
{¶ 19} Relators argue that we should not consider these affidavits. We agree. S.Ct.Prac.R. 16.02(B)(5) limits what documents may be attached to a merit brief filed in this court. The rule does not allow litigants to attach affidavits—or any other type of evidence—to a merit brief. Thus, we will not rely on either untimely affidavit. See State ex rel. Gil-Llamas v. Hardin, 164 Ohio St.3d 364, 2021-Ohio-1508, 172 N.E.3d 998, ¶ 14. Even if we were inclined to rely on these affidavits, they are of limited probative value, having been created for different litigation predating the instant case.
C. The case is not moot
{¶ 20} In the final paragraph of their brief, Cedar Fair and Gilson state
D. The Cedar Point Police Department is required to respond to public-records requests
{¶ 21} A threshold issue in this case is whether the CPPD is required to respond to public-records requests. The Public Records Act requires “public office[s]” or “person[s] responsible for public records” to provide public records in response to requests.
1. The Cedar Point Police Department was not established pursuant to city and state law to serve a core government function
{¶ 22} Relators first argue that the CPPD is subject to the Public Records Act because it was established by the city‘s and the state‘s enabling laws “to perform a core function of government: the exercise of plenary police power by sworn, state-certified police officers.” Citing this court‘s precedent in State ex rel. Schiffbauer v. Banaszak, 142 Ohio St.3d 535, 2015-Ohio-1854, 33 N.E.3d 52, ¶ 14, relators contend that the CPPD is thus a public office required to respond to valid public-records requests. We do not agree.
{¶ 23} In Schiffbauer, we held that Otterbein University‘s police department was a public office for purposes of the Public Records Act. Id. at ¶ 2. Otterbein is a private university that established a campus police department pursuant to
{¶ 25} The CPPD exercises a core function of government. However, it is not an “organized body, office, agency, institution, or entity established by the laws of this state for the exercise of any function of government,”
{¶ 26} The record does not clearly show how the CPPD was created, but there is no evidence indicating that it was “established by the laws of this state for the exercise of any function of government,”
2. The Cedar Point Police Department is subject to the Public Records Act as the functional equivalent of a public institution
{¶ 27} As an alternative basis for its position that the CPPD is required to respond to public-records requests, relators argue that the CPPD is the functional equivalent of a public institution for purposes of the Public Records Act under the test established by this court in State ex rel. Oriana House, Inc. v. Montgomery, 110 Ohio St.3d 456, 2006-Ohio-4854, 854 N.E.2d 193. We agree with this argument.
{¶ 28} In Oriana House, we held that although private entities generally are not subject to the Public Records Act, a private entity is subject to the act if there is “a showing by clear and convincing evidence that the private entity is the functional equivalent of a public office.” Id. at paragraph one of the syllabus. When determining whether a private entity is the equivalent of a public office for purposes of
{¶ 29} Here, regarding the first factor, the CPPD performs a government function. Its officers provide law-enforcement services and police protection on Cedar Point property. Enforcement of criminal laws is a core government function. Schiffbauer, 142 Ohio St.3d 535, 2015-Ohio-1854, 33 N.E.3d 52, at ¶ 14.
Therefore, the first factor weighs strongly in favor of the CPPD being subject to the Public Records Act.
{¶ 30} As for the second factor, the CPPD receives little or no government funding. Cedar Fair pays the salaries and benefits of the CPPD‘s officers and also pays for related expenses such as training, equipment, insurance, workers’ compensation, and unemployment compensation. Sandusky may incur some limited costs related to the CPPD, but the second factor weighs in favor of our concluding that the CPPD is not subject to the Public Records Act.
{¶ 31} The third factor is the extent of government involvement or regulation regarding the entity. The city regulates and is involved with the CPPD. Cedar Point police officers are subject to the “same regulations as other police officers.” Sandusky Codified Ordinances 127.04(b). They are sworn, state-certified peace officers who undergo the same certification as other peace officers. Sandusky Codified Ordinances 127.04(d). They are appointed by the city manager. And the CPPD works closely with the Sandusky Police Department when investigating crimes and performing other law-enforcement duties. Accordingly, the third factor points in favor of the CPPD being subject to the Public Records Act.
{¶ 32} The fourth factor is whether the entity was created by the government or to avoid the requirements of the Public Records Act. The record is unclear regarding how the CPPD was created. Its officers are appointed by the city pursuant to an agreement with Cedar Fair, but there is no evidence indicating that the department itself was created by the government. There is also no evidence that the department was created to avoid the requirements of the Public Records Act. Therefore, the fourth factor weighs in favor of our concluding that the CPPD is not subject to the Public Records Act.
{¶ 33} Weighing these factors, we conclude that the CPPD is the functional equivalent of a public institution. At the time of the public-records requests, the CPPD was serving as the police department for the employees and guests of Cedar Point. It does much more than just provide security for Cedar Point. Enforcing criminal laws is a core government function. Schiffbauer, 142 Ohio St.3d 535, 2015-Ohio-1854, 33 N.E.3d 52, at ¶ 14. Although Schiffbauer is not directly analogous, our observation in that case that organizations made up of “sworn, state-certified police officers who exercise plenary police power” exercise “one of the most fundamental functions of government,” id. at ¶ 2, 13, supports the conclusion that on
{¶ 34} We recognize that Ohio law has long allowed private entities to hire private police officers. See, e.g.,
E. Writ of mandamus
{¶ 35} Having determined that the CPPD is required to respond to valid public-records requests, we next address whether relators are entitled to a writ of mandamus ordering Cedar Fair and Gilson to produce records responsive to relators’ particular requests.
{¶ 36} Upon request, a person responsible for public records must promptly make the requested public records available.
{¶ 37} Initially, Cedar Fair and Gilson also asserted that the requested records
{¶ 38} A records custodian bears the burden “‘to plead and prove facts clearly establishing the applicability of the [exception].‘” (Brackets sic.) State ex rel. Myers v. Meyers, 169 Ohio St.3d 536, 2022-Ohio-1915, 207 N.E.3d 579, ¶ 30, quoting Welsh-Huggins v. Jefferson Cty. Prosecutor‘s Office, 163 Ohio St.3d 337, 2020-Ohio-5371, 170 N.E.3d 768, ¶ 27. Exceptions to public-disclosure requirements are strictly construed against the record custodian, and the custodian must prove that the requested records fall squarely within the exception. Id.
{¶ 39} Here, Cedar Fair and Gilson asserted as affirmative defenses that they are not required to release privileged records or confidential law-enforcement investigatory records. But they have not offered any argument explaining how any record requested by relators meets the requirements for either of these exceptions to apply. Nor have they submitted any documents for in camera inspection. Thus, Cedar Fair and Gilson have not met their burden to show that these documents, to the extent that they exist, are exempt from disclosure. See State ex rel. Ware v. Parikh, ___ Ohio St.3d ___, 2023-Ohio-759, ___ N.E.3d ___, ¶ 12 (concluding that the respondent had not met his burden to show the applicability of an exception when he had failed to “meaningfully analyz[e]” whether the exception applied).
{¶ 40} Thus, we order Cedar Fair and Gilson to produce any records responsive to relators’ requests that they possess and have not already produced. Specifically, Cedar Fair and Gilson must produce copies of reports of sexual misconduct filed with the CPPD between April 1, 2017, and March 22, 2022, and associated “copies and/or recordings of any witness or suspect statements, oral or written; investigative notes; recommendations of charges, and photos and/or videos associated with the reports provided.” They must also produce copies of “[a]ll incident and investigative reports from the Cedar Point Police [Department]” related to the Top Thrill Dragster incident that allegedly occurred on August 15, 2021.
{¶ 41} However, we do not order the production of incident or investigative reports created by emergency-medical-services (“EMS“) personnel or related to EMS services. WKYC requested, among other things, incident reports and related records created by EMS personnel during the alleged Top Thrill Dragster incident. EMS services are not police services, and there is no evidence in the record indicating that the CPPD provides EMS services or employs EMS personnel. To the extent that Cedar Fair provided EMS services related to the alleged Top Thrill Dragster incident, relators have produced no evidence showing that these services were provided through the CPPD.
F. Court costs, statutory damages, and attorney fees
{¶ 42} Finally, we turn to relators’ requests for court costs, statutory damages, and attorney fees. We award court costs but deny statutory damages and attorney fees.
1. Court costs
{¶ 43} An award of court costs is mandatory when “the court orders the public office or the person responsible for [a] public record to comply with”
2. Statutory damages
{¶ 44} Statutory damages shall be awarded if a public-records requester transmitted a written request by hand delivery, electronic submission, or certified mail and the public office or person responsible for the records failed to comply with any of its obligations under
{¶ 45} A court may reduce or not award statutory damages, however, if it determines both that (1) based on the law as it existed at the time of the request, a well-informed person responsible for the requested public records would have reasonably believed that
{¶ 46} Although we conclude that the CPPD is the functional equivalent of a public institution under Oriana House, 110 Ohio St.3d 456, 2006-Ohio-4854, 854 N.E.2d 193, two of the four parts of the functional-equivalence test weigh in favor of Cedar Fair and Gilson. See supra at Part II(D)(2). A well-informed person could have reasonably believed that Cedar Point is not the equivalent of a public institution subject to the act. See State ex rel. Harm Reduction Ohio v. OneOhio Recovery Found., 172 Ohio St.3d 149, 2023-Ohio-1547, 221 N.E.3d 835, ¶ 38 (denying statutory damages after determining that a well-informed person responsible for a private entity‘s records could have reasonably believed that private entity was not subject to Public Records Act); see also State ex rel. Fair Housing Opportunities of Northwest Ohio v. Ohio Fair Plan, ___ Ohio St.3d ___, 2023-Ohio-2667, ___ N.E.3d ___, ¶ 34 (denying statutory damages in case deciding question of first impression regarding whether entity was a public office for purposes of Public Records Act). We therefore decline to award statutory damages.
3. Attorney fees
{¶ 47} A court may award attorney fees to a relator if the court orders the respondent to comply with its obligations under the Public Records Act.
However, the court shall not award attorney fees if the court determines that (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
{¶ 48} For the same reasons that we deny statutory damages, we also deny attorney fees. See Harm Reduction Ohio at ¶ 41.
{¶ 49} For the foregoing reasons, we issue a writ of mandamus compelling Cedar Fair and Gilson to produce all unproduced records responsive to relators’ public-records requests except for records created by EMS personnel or related to EMS services. We grant relators’ request for an award of court costs. And we deny relators’ requests for awards of statutory damages and attorney fees.
Writ granted.
FISCHER, DEWINE, DONNELLY, BRUNNER, and DETERS, JJ., concur.
KENNEDY, C.J., concurs in part and dissents in part, with an opinion joined by STEWART, J.
KENNEDY, C.J., concurring in part and dissenting in part.
{¶ 50} I concur in the majority opinion to the extent that it concludes that the Cedar Point Police Department (“the Department“) is the functional equivalent of a public office and therefore is subject to the Public Records Act,
{¶ 51} I part ways with the majority, however, in its denial of awards of statutory damages and attorney fees to relators. Based on the law existing at the time of relators’ requests, a well-informed person responsible for the requested public records would have reasonably believed that respondents had an obligation under the Public Records Act to produce the requested records. Therefore, relators are entitled to statutory damages and this court should award attorney fees.
I. Relevant Evidence Regarding the Cedar Point Police Department
{¶ 52} The majority paints a suitable picture of the facts and evidence in this case. I highlight the following aspects about the Department because they are relevant to determining whether this court must award statutory damages and should award attorney fees.
{¶ 53} The Sandusky City Manager, a government official, appoints and maintains the Department‘s police officers. These officers contractually serve at the pleasure of the city manager. These officers also must be qualified to serve as law-enforcement officers in Ohio, pursuant to both a Sandusky ordinance and the agreement between Sandusky and Cedar Fair, and they swear an oath before the city manager to uphold the laws of Sandusky, the state of Ohio, and the United States. Further, the Ohio Peace Officer Training Commission lists “Sandusky Police/Cedar Point Division” as a police agency.
{¶ 54} The Department also has, and exercises, police powers. For example, the Department has taken witness statements, submitted police incident reports to the Sandusky Police Department, identified itself in court filings as a law-enforcement agency, handled misdemeanor crimes, and handled arrests in cases that are prosecuted in the Sandusky Municipal Court. Even respondents admit that the Department was performing policing duties at the time of relators’ records requests.
II. Statutory Damages and Attorney Fees in Public Records Act Cases
{¶ 55} If a court determines that a public office or a person responsible for public records fails to comply with any of
{¶ 56} A court also has the discretion to award attorney fees to an aggrieved requester,
III. Relevant Caselaw
{¶ 57} The following two cases cited by the majority illuminate the fact that respondents should have been aware that the Department is subject to the Public Records Act and that respondents were therefore required to comply with
A. State ex rel. Schiffbauer v. Banaszak
{¶ 58} In State ex rel. Schiffbauer v. Banaszak, 142 Ohio St.3d 535, 2015-Ohio-1854, 33 N.E.3d 52, the editor of a student newspaper brought a mandamus action against the Otterbein University Police Department seeking to compel the department to produce records in response to a public-records request. This court held that the private university‘s police department was a public office under the Public Records Act and that it therefore was required to produce the requested records. Id. at ¶ 2. We came to that conclusion because the department had been established by the laws of this state and because its sworn, state-certified police officers exercised the plenary police power to enforce laws and maintain the peace, a function of government. Id. at ¶ 2, 9.
B. State ex rel. Oriana House, Inc. v. Montgomery
{¶ 59} In State ex rel. Oriana House, Inc. v. Montgomery, 110 Ohio St.3d 456, 2006-Ohio-4854, 854 N.E.2d 193, this court devised a test to determine whether a private entity is the functional equivalent of a public office such that it is subject to the Public Records Act. In determining whether a private entity is the functional equivalent of a public office, courts consider the following factors: “(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.” Id. at ¶ 25.
IV. Relators Are Entitled to Statutory Damages and Should Be Awarded Attorney Fees
{¶ 60} Relators are entitled to statutory damages and this court should exercise our discretion to award attorney fees because (1) relators sent their requests electronically as permitted by
{¶ 61} As the majority states, the Department “performs a government function.” Majority opinion, ¶ 29. The majority goes so far as to say that the Department “exercises a core function of government.” (Emphasis added.) Id. at ¶ 25; see Oriana House at ¶ 25. And the majority recognizes that pursuant to a city ordinance, the Department and its officers have the authority to exercise police powers and are subject to the same regulations as other police departments and state-certified officers. Majority opinion at ¶ 24; see Schiffbauer, 142 Ohio St.3d 535, 2015-Ohio-1854, 33 N.E.3d 52, at ¶ 2, 9. As we said long ago, “[p]olice power is the very backbone, heart, and head of all government.” Froelich v. Cleveland, 99 Ohio St. 376, 398, 124 N.E. 212 (1919).
{¶ 62} Even more, the majority recognizes that Sandusky regulates and is involved with the Department. Majority opinion at ¶ 31; see Oriana House, 110 Ohio St.3d 456, 2006-Ohio-4854, 854 N.E.2d 193, at ¶ 25. It cannot deny that the Department‘s sworn, state-certified police officers, see Schiffbauer at ¶ 2, are appointed by the city manager, a government official, and that they work closely with the Sandusky Police Department. See majority opinion at ¶ 31.
{¶ 63} The majority also finds that the Department‘s officers are similar to the officers in Schiffbauer, whom this court determined were members of a public office. Majority opinion at ¶ 24. The majority even points out that in Schiffbauer, the private university‘s board of trustees had appointed the officers, while here, a government official appointed the Department‘s officers. Majority opinion at ¶ 24.
{¶ 64} Even so, in the majority‘s eyes, a well-informed person responsible for the public records requested by relators could be aware of all this and still have reasonably believed that disclosure of the records was not required under the Public Records Act. Although it is not obvious how the Department was created, see Oriana House at ¶ 25, and although the Department receives little or no government funding, see id., the Department is inextricably intertwined with the government and was fully aware that it has and exercises police power, a traditional government function. Therefore, at the time of relators’ requests, under existing law emanating from Schiffbauer and Oriana House, a well-informed person responsible for the requested public records would have reasonably believed that respondents had an obligation under the Public Records Act to produce them. Accordingly, relators are entitled to statutory damages and should be awarded attorney fees.
V. Conclusion
{¶ 65} I concur in the majority‘s judgment granting a writ of mandamus ordering that certain records requested by relators be produced and awarding court costs. But because relators sent their requests electronically, respondents failed to comply with their obligations under the Public Records Act, and the first factor under both
STEWART, J., concurs in the foregoing opinion.
Frost Brown Todd, L.L.C., Ryan W. Goellner, and Kevin T. Shook, for relators.
Reminger Co., L.P.A., Justin D. Harris, and Hannah R. Duschl, for respondents.