State ex rel. Strothers v. Wertheim - Ohio Supreme Court Opinion - Ohio Supreme Court Decision

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THE STATE EX REL. STROTHERS, APPELLANT, v. WERTHEIM, APPELLEE.
[Cite as State ex rel. Strothers v. Wertheim (1997), 80 Ohio St.3d 155.]
Public records -- Cuyahoga County Ombudsman Office is a "public office" as
defined by R.C. 149.011(A) and subject to public records disclosure
requirements of R.C. 149.43 -- Records prepared by Ombudsman Office in
investigating complaints of child abuse and neglect not excepted from
disclosure.
(No. 97-187 Submitted May 6, 1997 Decided October 22, 1997.)
APPEAL from the Court of Appeals for Cuyahoga County, No. 71185.

In June 1996, appellant, Gerald O. Strothers, Jr., contacted the Citizens of
Cuyahoga County Ombudsman1 Office ("Ombudsman Office") to request records
pertaining to the Cuyahoga County Juvenile Court, records regarding allegations
of child abuse by staff members of the Cuyahoga County Juvenile Detention
Center, a listing of all records maintained pertaining to the juvenile detention
center, and complaint forms from Cuyahoga County residents regarding the
juvenile detention center staff. Appellee, Stephen Wertheim, Executive
Ombudsman, declined to produce the requested documents, asserting that the
Ombudsman Office was not a "public office" subject to the Public Records Act
and that the requested materials were confidential.

On August 30, 1996, appellant filed in the Court of Appeals for Cuyahoga
County a complaint for writ of mandamus to compel appellee to produce the
requested documents pursuant to R.C. 149.43. On January 9, 1997, the court of
appeals granted appellee's motion for summary judgment and denied the
appellant's request for a writ of mandamus.

This cause is now before this court upon an appeal as of right.
__________________

Gerald O. Strothers, Jr., pro se.

Porter, Wright, Morris & Arthur, Richard M. Markus and Tracey L.
Turnbull, for appellee.
__________________

DOUGLAS, J. Today we are again called upon to decide what constitutes a
"public office" and what records are "public records" for purposes of the Public
Records Act. The Citizens of Cuyahoga County Ombudsman Office is a private,
nonprofit corporation, supported by public funds, established for the purpose of
assisting the citizens of Cuyahoga County in resolving complaints against
agencies of the county government. The primary issue in this case is whether the
Ombudsman Office is a "public office" as defined by R.C. 149.011(A) and thereby
subject to the public records disclosure requirements of R.C. 149.43. A secondary
issue involves whether any of the documents appellant seeks are excepted from
disclosure.
I

R.C. 149.011(A) defines "[p]ublic office" as "any state agency, public
institution, political subdivision, or any other organized body, office, agency,
institution, or entity established by the laws of this state for the exercise of any
function of government." (Emphasis added.) R.C. 149.43(A)(1) defines "public
record" as "any record that is kept by any public office," subject to specific
exceptions enumerated in the statute. Therefore, if the Ombudsman Office is a
public office, it must comply, absent any applicable exception, with the disclosure
requirements of R.C. 149.43.

Appellee contends that appellant's request for records must fail because the
Ombudsman Office is a private, nonprofit corporation that performs its own
unique function and is not a "public office" pursuant to R.C. 149.011(A). In State
2

ex rel. Fostoria Daily Review Co. v. Fostoria Hosp. Assn. (1988), 40 Ohio St.3d
10, 531 N.E.2d 313, we specifically rejected the argument that R.C. 149.43 was
not applicable where the entity was a private, nonprofit corporation supported by
public funds. In State ex rel. Fox v. Cuyahoga Cty. Hosp. Sys. (1988), 39 Ohio
St.3d 108, 529 N.E.2d 443, paragraph one of the syllabus, this court held that "[a]
public hospital, which renders a public service to residents of a county and which
is supported by public taxation, is a `public institution' and thus a `public office'
pursuant to R.C. 149.011(A), making it subject to the public records disclosure
requirements of R.C. 149.43." The entity before us is no different. The
Ombudsman Office receives support from public taxation. The Ombudsman
Office clearly performs a public service in seeking to curtail public agency abuse
by investigating and mediating private citizens' complaints about government.

Time and time again we have held that R.C. 149.43 must be construed
liberally in favor of broad access, and any doubt should be resolved in favor of
disclosure of public records. See, e.g., State ex rel. Cincinnati Enquirer v.
Hamilton Cty. (1996), 75 Ohio St.3d 374, 376, 662 N.E.2d 334, 336. In addition,
"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. Toledo Blade Co. v. Univ.
of Toledo Found. (1992), 65 Ohio St.3d 258, 261, 602 N.E.2d 1159, 1161.

The Ombudsman Office is unquestionably a publicly funded agency that
acts as an intermediary between the citizens and government of Cuyahoga County.
The activities of the Ombudsman Office are inextricably intertwined with the
functions performed by Cuyahoga County government agencies. In fact, in
documents submitted to this court, the Ombudsman Office refers to its relationship
with the Cuyahoga County Commissioners as a "partnership." The Ombudsman
Office monitors Cuyahoga County government to ensure accessibility, quality and
3

effectiveness, and additionally provides oversight for some county services. The
Ombudsman Office is required to file with the county commissioners an annual
accounting of all public funds it receives. The Ombudsman Office, it appears,
risks the loss of public funding if it performs its duties unsatisfactorily. Since
funding for the Ombudsman Office comes primarily from the county
commissioners, it is obvious that the commissioners maintain some control over
the entity. Accordingly, even a cursory review of this court's prior case law
interpreting R.C. 149.43 and 149.011(A) leads to the inescapable conclusion that
the Ombudsman Office is a "public office" and thus subject to the Public Records
Act.
II

The appellee contends, and the court of appeals found, in the alternative,
that if the Ombudsman Office is a public office, many of the documents appellant
seeks would be exempt from disclosure under R.C. 2151.421. We disagree.

R.C. 2151.421 governs the reporting and investigating of incidents of child
abuse and neglect. R.C. 2151.421(H) states that reports made pursuant to this
section are confidential. The Cuyahoga County Court of Appeals stated in State
ex rel. Munici v. Kovacic (June 15, 1994), Cuyahoga App. No. 64818, unreported,
1994 WL 264265, that "[t]he thrust of R.C. 2151.421 is directed to the children
services boards or the departments of human services." It is the responsibility of
the departments of human services and children services boards to investigate
allegations of child abuse and neglect, and the reports that are mandated by R.C.
2151.421 are prepared by those social service agencies. Thus, records prepared by
the Ombudsman Office in investigating complaints of child abuse and neglect are
not excepted by R.C. 2151.421.
III
4

Appellee additionally argues that the records appellant seeks are
confidential law enforcement investigatory records excepted from disclosure
pursuant to R.C. 149.43(A). R.C. 149.43(A)(2) provides that a confidential law
enforcement investigatory record is "* * * any record that pertains to a law
enforcement matter." (Emphasis added.) The records sought by appellant are not
protected from disclosure because they do not pertain to a law enforcement matter.
As noted previously, pursuant to R.C. 2151.421, it is the responsibility of the
departments of human services and children services boards to investigate
allegations of child abuse and neglect. The Ombudsman Office is not a law
enforcement agency, and it has no legally mandated enforcement or investigatory
authority. In fact, the Ombudsman Office verifies that all complaints concerning
child abuse and neglect have been reported to the proper investigatory authority in
Cuyahoga County, the Department of Children and Family Services.

Finally, appellee contends that the records of the Ombudsman Office are not
subject to disclosure because they contain medical records which are specifically
excepted from disclosure under R.C. 149.43(A). R.C. 149.43(A)(3) defines
"medical record" as "any document or combination of documents * * * that
pertains to the medical history, diagnosis, prognosis, or medical condition of a
patient and that is generated and maintained in the process of medical treatment."
In order to fit within the "medical record" exception to the public records law, "a
record must pertain to a medical diagnosis and be generated and maintained in the
process of medical treatment." (Emphasis sic.) State, ex rel. Toledo Blade Co. v.
Telb (C.P.1990), 50 Ohio Misc.2d 1, 10, 552 N.E.2d 243, 251. In Telb, the court
held that to be excepted from disclosure, the records sought must meet the
conjunctive requirements of the statute. In the instant matter, records held by the
Ombudsman Office may involve diagnosis and treatment, but they are not
5

"maintained in the process of medical treatment" and therefore are not exempt
from disclosure.
Conclusion

One of the salutary purposes of the Public Records Law is to ensure
accountability of government to those being governed. Thus, records, with certain
enumerated exceptions, held by government entities belong to the public and must
be open for inspection to all citizens. Accordingly, we reverse the judgment of the
Cuyahoga County Court of Appeals and order that a writ of mandamus issue
directing appellee to make the requested records available for inspection.
Judgment reversed
and writ granted.
F.E. SWEENEY and PFEIFER, JJ., concur.

RESNICK, J., concurs in judgment only.

MOYER, C.J., dissents.

COOK and LUNDBERG STRATTON, JJ., dissent.
FOOTNOTE:
1.
Black's Law Dictionary (6 Ed.1990) 1086, defines "Ombudsman" as "[a]n
official or semi official office or person to which people may come with
grievances connected with the government."

MOYER, C.J., dissenting. I respectfully dissent because the Cuyahoga
County Ombudsman Office is not a "public office" as defined by R.C. 149.011(A).

The Citizens of Cuyahoga County Ombudsman Office ("Ombudsman
Office") is a private, nonprofit corporation that receives financial assistance from
Cuyahoga County as well as private contributors. The Ombudsman Office
resolves citizens' complaints against Cuyahoga County government agencies by
6

functioning as an intermediary between the public and county government. It
offers information regarding certain county services and provides mediation when
necessary.

The Ombudsman Office commences an investigation only after it receives a
complaint. When the Ombudsman Office receives a complaint concerning child
neglect or abuse that has not been previously reported to an appropriate
government agency, it reports the matter to the investigative unit of the Cuyahoga
County Department of Children and Family Services and also conducts its own
investigation.

The Ombudsman Office, however, has no legal duty to investigate any
complaint; it can refuse to serve anyone or decline to investigate or mediate any
complaint as long as it does not violate any antidiscrimination law. In addition,
although it provides the county commissioners with its annual report and budget,
the Ombudsman Office has no duty to satisfy any government agency that it is
performing any task properly. It is not listed in the county government telephone
directory.

Beginning in June 1996, appellant, Gerald O. Strothers, Jr., requested that
the Ombudsman Office provide him with access to certain records, including (1)
records pertaining to allegations of child abuse by staff members of the Cuyahoga
County Juvenile Detention Center, (2) a listing of all records maintained relating
to the juvenile detention center, and (3) complaint forms from county residents
concerning juvenile detention center staff. The Ombudsman Office refused
Strothers's requests.

We have consistently interpreted the Public Records Act to "ensure that
governmental records be open and made available to the public * * * subject to
only a few very limited and narrow exceptions." State ex rel. Williams v.
7

Cleveland (1992), 64 Ohio St.3d 544, 549, 597 N.E.2d 147, 151. However, our
interpretations of the Public Records Act have never been meant to create a per se
rule of disclosure. With certain specified exceptions, "[p]ublic record" means
"any record that is kept by any public office." R.C. 149.43(A)(1). R.C.
149.011(A) defines "public office" as "any state agency, public institution,
political subdivision, or any other organized body, office, agency, institution, or
entity established by the laws of this state for the exercise of any function of
government." (Emphasis added.)

An entity need not be operated by the state, or a political subdivision
thereof, to be a public office under R.C. 149.011(A). State ex rel. Toledo Blade
Co. v. Univ. of Toledo Found. (1992), 65 Ohio St.3d 258, 260, 602 N.E.2d 1159,
1161. An entity which performs a public function and is supported by public tax
money is a "public office" within the meaning of R.C. 149.011(A). Id.

We have held that certain entities are public offices under R.C. 149.011(A)
and are thereby subject to R.C. 149.43. See, e.g., Toledo Blade, at paragraph one
of the syllabus ("A private nonprofit corporation that acts as a major gift-receiving
and soliciting arm of a public university and receives support from public taxation
is a `public office' pursuant to R.C. 149.011[A], and is subject to the public
records disclosure requirements of R.C. 149.43[B]."); State ex rel. Fostoria Daily
Review Co. v. Fostoria Hosp. Assn. (1988), 40 Ohio St.3d 10, 531 N.E.2d 313
(nonprofit corporation operating a city hospital under a rent-free lease with city is
a public office under R.C. 149.011[A]); State ex rel. Fox v. Cuyahoga Cty. Hosp.
Sys. (1988), 39 Ohio St.3d 108, 529 N.E.2d 443, paragraph one of the syllabus ("A
public hospital, which renders a public service to residents of a county and which
is supported by public taxation, is a `public institution' and thus a `public office'
8

pursuant to R.C. 149.011[A], making it subject to the public records disclosure
requirements of R.C. 149.43.").

Strothers and the majority rely on the foregoing cases to assert that the court
of appeals erred in holding that the Ombudsman Office is not a public office under
R.C. 149.011 and denying the writ of mandamus. For the reasons that follow, I
conclude that the court of appeals properly held that the Ombudsman Office is not
a public office under R.C. 149.011 and therefore is not subject to the disclosure
requirements of R.C. 149.43.

First, as the court of appeals determined, the Ombudsman Office, while
providing services which undoubtedly benefit the public, does not exercise any
government function. It has no duty, other than complying with antidiscrimination
laws, to serve the public or investigate complaints, and the Cuyahoga County
government has no authority to compel it to perform these duties. Cf. Ohio
Historical Soc. v. State Emp. Relations Bd. (1993), 66 Ohio St.3d 466, 476, 613
N.E.2d 591, 599 (association is not public employer under R.C. Chapter 4117
because it was not created by the state and it is not subject to state control). In
fact, the government investigation of previously unreported child neglect and
abuse complaints is performed by the Cuyahoga County Department of Children
and Family Services upon referral by the Ombudsman Office. Conversely, in
Fostoria Daily Review, we emphasized that the Fostoria Hospital Association had
an express duty under its lease with Fostoria to act as a "public general hospital"
in holding that the association was performing a government function. 40 Ohio
St.3d at 12, 531 N.E.2d at 315.

Second, the Ombudsman Office is not controlled by the county government
to the extent generally required for entities to be subject to public records
provisions. See 1 O'Reilly, Federal Information Disclosure (2 Ed.1990) 4-7,
9

Section 4.02 ("Other entities enjoy statutory creation or governmental status, but
not statutory inclusion within the [Freedom of Information Act's] agency status. *
* * The court analyzes the substantial supervision and control exercised by federal
officials."). The Ombudsman Office need not satisfy any government agency that
it is performing any task properly. In contrast, in Fostoria Daily Review, the city
possessed the right to inspect the hospital and to terminate the lease of the
building and equipment to the hospital association if it determined that the
association failed to perform as a public general hospital. 40 Ohio St.3d at 12, 531
N.E.2d at 315; see, also, Fox, 39 Ohio St.3d at 110, 529 N.E.2d at 445, where the
respondents conceded that the hospital was "owned and operated by [the] county."

Third, the Ombudsman Office is not performing duties historically
performed by entities that exercised government functions or were public
institutions. Instead, it acts in a unique role as an intermediary between the public
and county government. The cases cited by Strothers are thus inapposite. Toledo
Blade, 65 Ohio St.3d at 262, 602 N.E.2d at 1162 ("Given the relatively recent
merger of the corporation and alumni foundation to create the present entity, the
continuation of the essential mission of the predecessors, and the continued
support of the university, the foundation cannot be viewed in legal isolation from
those entities from which it came."); Fostoria Daily Review (city operated hospital
for over thirty years before leasing it rent-free to nonprofit hospital association);
Fox, 39 Ohio St.3d at 110, 529 N.E.2d at 445 (hospital owned and operated by
county).

Fourth, although the Ombudsman Office receives funding from Cuyahoga
County, the county possesses discretion under R.C. 307.691 to provide this
assistance, and the Ombudsman Office also receives money from private sources.
The expenditure of taxpayer funds does not automatically transform recipient
10

entities into public offices subject to R.C. 149.43. Cf. Irwin Mem. Blood Bank of
the San Francisco Med. Soc. v. Am. Natl. Red Cross (C.A.9, 1981), 640 F.2d 1051
(receipt of money from government contracts did not make Red Cross an "agency"
subject to FOIA absent substantial federal control or supervision of its operations).

Finally, no public entity delegated its duties to the Ombudsman Office. See
State ex rel. Gannett Satellite Info. Network v. Shirey (1997), 78 Ohio St.3d 400,
678 N.E.2d 557; see, also, State ex rel. Toledo Blade Co. v. Economic Opportunity
Planning Assn. of Greater Toledo (C.P.1990), 61 Ohio Misc.2d 631, 645, 582
N.E.2d 59, 68, relied on by Strothers, where the common pleas court noted that
critical aspects of power traditionally associated with the state had been delegated
to the entity held to be a public office.

Contrary to the assertions of the majority, the duties of the Ombudsman
Office are not "inextricably intertwined" with the functions performed by the truly
public agencies of Cuyahoga County. Merely because the Ombudsman Office is
required to file an accounting of public funds with the county commissioners does
not create the presence of a relationship such that it can be said that the activities
of the office are inextricably intertwined with the public agencies of the county.
The Ombudsman Office is a private entity funded substantially through private
means. Far from holding itself out to the public as a public agency, it performs a
function of resolving complaints against government agencies. Although the
office is, as the majority states, a partially publicly funded agency, that does not
compel the inescapable conclusion that the office is a "public office" as defined by
the Public Records Act.

Today the majority effectively creates a new test for defining a public
office. The majority determines that the Ombudsman Office is a public office
because it works in "partnership" with the county commissioners and because it
11

receives some public funding. By placing emphasis upon these two aspects of the
office rather than analyzing the nature of the office in its entirety, this new
standard may cast a net far broader than the General Assembly envisioned when it
defined "public office" under the Public Records Act. There are countless private
entities that work in tandem with agencies of government in public-private
partnerships. Likewise, hundreds of private organizations receive some public
funding for their operations. The holding here produces the result that the records
of any private entity either receiving some public funding or maintaining a
working partnership with a government agency are now subject to public
disclosure. If the policy of the law is to be changed by subjecting private
organizations that are neither controlled nor created by a public agency to the
Public Records Act, the General Assembly, not this court, should do it.

Based upon the foregoing, the court of appeals correctly held that the
Ombudsman Office is not a public office under R.C. 149.011(A) and is therefore
not subject to the disclosure requirements of R.C. 149.43. The Ombudsman Office
is neither a public institution nor an "entity established by the laws of this state for
the exercise of any function of government" pursuant to R.C. 149.011(A). It lacks
sufficient ties to any government entity to be appropriately considered a public
office. See Toledo Blade, 65 Ohio St.3d at 261-262, 602 N.E.2d at 1162. No
authority cited by Strothers compels a contrary result, even after construing the
summary judgment evidence most strongly in Strothers's favor and resolving any
doubts in favor of disclosure. Accordingly, I respectfully dissent.

COOK, J., dissenting. I respectfully dissent. The definition of "public
office" found at R.C. 149.011(A) limits itself to entities "established by the laws
of this state for the exercise of any function of government." (Emphasis added.)
12

Today's majority reads that part of the requirement out of the statute by classifying
as a "public office" any entity that (1) performs a public service and (2) is
supported by public funds. That conclusion follows a short progression of cases in
which this court has not specifically analyzed whether the entity involved was
"established under the laws of this state for the exercise of any function of
government," instead, analyzing only whether the entity actually exercises a
function of government. I believe that we ought to give effect to the entire
definitional phrase and apply it to this case to conclude that the Cuyahoga County
Ombudsman Office does not meet the statutory definition of a "public office."
In
State ex rel. Fox v. Cuyahoga Cty. Hosp. Sys. (1988), 39 Ohio St.3d 108,
529 N.E.2d 433, the court determined that a hospital owned and operated by
Cuyahoga County was a "public institution" and, therefore, a "public office"
within the meaning of R.C. 149.011(A). The Fox court supported its classification
of the hospital as a "public institution" by recognizing that the hospital rendered a
public service to county residents and was supported by public taxation. Because
county hospitals are established pursuant to statute (R.C. 339.03; 339.06), the
remaining issue in that case was whether the hospital was established to exercise
"any function of government" as required under R.C. 149.011(A). The court's
opinion did not specifically address the statutory authority under which the county
hospital was created, focusing its analysis instead on whether county hospitals, in
fact, exercise a function of government. Accordingly, R.C. 149.011(A)'s
definitional requirement that a "public office" be "established by the laws of this
state for the exercise of any function of government" was not fully incorporated
into the body or syllabus of the Fox opinion.
In
State ex rel. Fostoria Daily Review Co. v. Fostoria Hosp. Assn. (1988),
40 Ohio St.3d 10, 531 N.E.2d 313, this court apparently applied the syllabus in
13

Fox, supra, as a complete test to determine whether an entity falls under R.C.
149.011(A)'s definition of a "public office," stating that "[s]ince Fostoria City
Hospital meets all the criteria stated in paragraph one of the syllabus in State ex
rel. Fox v. Cuyahoga Cty. Hosp. [Sys.], supra, it is a public institution, and its
public records must be disclosed * * *." Id. at 13, 531 N.E.2d at 316. The court
reached this conclusion without explicitly analyzing whether the hospital was
established by statute for the exercise of a function of government, noting only
that "the main hospital building was originally leased pursuant to R.C. 749.35,
which authorizes the lease of a city-owned hospital building to a nonprofit
corporation for use as a general hospital. See, also, R.C. 140.05. According to
R.C. 749.35, if the nonprofit corporation fails to operate the hospital as a public
general hospital, the lease may be terminated and the control and management of
the hospital, including equipment, revert to the city." Id. at 12, 531 N.E.2d at 315.

While it is possible that the Fostoria court intended its discussion of the
statutory relationship between the city of Fostoria as owner of the hospital
building and the Fostoria Hospital Association as its tenant to fulfill R.C.
149.011(A)'s definitional requirement that a "public office" be established by the
laws of this state for the exercise of a function of government, that intent is not
entirely clear from its opinion.
In
State ex rel. Toledo Blade Co. v. Univ. of Toledo Found. (1992), 65 Ohio
St.3d 258, 602 N.E.2d 1159, this court again did not discuss that portion of the
definition of "public office" requiring that an entity be "established by the laws of
this state for the exercise of a public function." Instead, the court considered
university support and the public function served by the private, nonprofit
corporation therein under consideration, emphasizing that the corporation could
not be separated from the public institution that it served (the University of
14

Toledo). Because the court found the corporation was, in effect, an "entity of the
university," it reasoned that it too was subject to R.C. 149.43's reporting
requirements.

Although the laws of this state authorize a county or municipal authority to
cooperate and give financial assistance to a nonprofit ombudsman corporation
(R.C. 307.691), that corporation itself is not established by statute to exercise a
function of government. Instead, as a private, nonprofit corporation, the
Cuyahoga County Ombudsman Office is formed by its incorporators under the
laws of this state and those incorporators determine the corporation's purpose.
R.C. 1702.03. Accordingly, I believe that the Cuyahoga County Ombudsman
Office is not a "public office" within the meaning of R.C. 149.011(A). Moreover,
even assuming that Fostoria and Toledo Blade impliedly establish a relaxed
interpretation of R.C. 149.011(A)'s requirement that a public office be
"established by the laws of this state for the exercise of any function of
government," Chief Justice Moyer's dissent nonetheless demonstrates that the
Cuyahoga County Ombudsman Office does not meet even that relaxed
interpretation.

I am mindful that this court has repeatedly emphasized that R.C. 149.43
must be "construed liberally in favor of broad access, and that any doubt is
resolved in favor of disclosure of public records." State ex rel. Cincinnati
Enquirer v. Hamilton Cty. (1996), 75 Ohio St.3d 374, 376, 662 N.E.2d 334, 336,
citing State ex rel. Thomas v. Ohio State Univ. (1994), 71 Ohio St.3d 245, 246,
643 N.E.2d 126, 128. Liberal construction, however, does not empower this court
to ignore the phrasing of statutory definitions. I would, therefore, affirm the
judgment of the appellate court, based on the fact that the Cuyahoga County
15

Ombudsman Office is not established by the laws of this state for the exercise of a
function of government.

LUNDBERG STRATTON, J., concurs in the foregoing dissenting opinion.
16