Lerussi v. Calcutta Volunteer Fire Dep't

1

2023-Ohio-3092

CHRISTINE LEA LERUSSI Requester v. CALCUTTA VOLUNTEER FIRE DEPARTMENT Respondent

No. 2023-00434PQ

Court of Claims of Ohio

August 8, 2023

Sent to S.C. Reporter 9/1/23

REPORT AND RECOMMENDATION

TODD MARTI Special Master

{¶1} This matter is before the special master for a R.C. 2743.75(F)(1) report and recommendation. The special master recommends that:

- Requester be given access to all records Respondent has identified as being responsive to the requests giving rise to this case.

- Requester recover her filing fee and costs, exclusive of attorney fees.

I. Background.

{¶2} Respondent Calcutta Volunteer Fire Department ("the Department") is a nonprofit corporation that contracts with St. Clair Township to provide fire fighting services. It operates on two sources of revenue, the proceeds of a township tax levy and funds raised from other sources. The tax levy funds are deposited into and disbursed from a bank account used exclusively for those purposes (the "Tax Account"). The other funds are deposited into and disbursed from a separate account (the "Non-Profit Account"). Evidence Relied Upon in Defense, filed July 6, 2023, pp. 4-5, ¶¶ 3, 4, 6, 8; Amendment to (B)(2) Records Responsive to Request Filing, filed July 20, 2023, p. 4, ¶ 3. ^[1]

{¶3} This is the second case between the Department and Christine Lerussi, the Requester in this case. The first case sought various public records from the Department including "records documenting 'expense categories' and the "the cost and purchase dates of assets" "for the years 2019, 2020, 2021, and January - June 2022." Lerussi v. Calcutta Volunteer Fire Dept, Ct. of Cl. No. 2022-00657PQ, 2023-Ohio-626 ¶¶ 4,5. The Department responded by noting that it had cancelled checks from unspecified accounts that would be responsive to those requests. The court ordered the Department to produce those checks. Id., 2023-Ohio-626, ¶ 5, adopted 2023-Ohio-1171, ¶ 3 ("Lerussi I").

(¶4} This case asserts two claims. One is for the records Ms Lerussi asserts are required by the judgment in Lerussi I that have not been produced. The other seeks to enforce an April 14, 2023, records request.

{¶5} Mediation was not ordered in this case. Instead, a case schedule was set for filing evidence, records for in camera review, and memoranda. Order, entered June 22, 2023.

II. Analysis.

A. The universe of responsive records is not disputed.

{¶6} The Department has identified the following submissions as containing the canceled checks issued during the time covered by public records request giving rise to Lerussi I:

Records

Filing

Exhibit Designation

Checks from Tax Account, January 1, 2019, to June 30, 2022

Copies of Cancelled Checks (filed under seal for In camera review)

C

Checks from Non-Profit Account, January 1, 2019, to June 30, 2022

Copies of Cancelled Checks (filed under seal for In camera review)

D

The Department has identified the following materials as responsive to the April 14 request:

Records

Filing Exhibit

Designation

Tax Account Bank Statements/Cancelled Checks

Copies of All Records Responsive to Request (filed under seal for In camera review)

E

Accountant's Summaries

Copies of All Records Responsive to Request (filed under seal for In camera review)

F

Tax Account Cancelled Checks

Copies of All Records Responsive to Request (filed under seal for In camera review)

G

Nonprofit General Bank Account Statements/Cancelled Checks

Copies of All Records Responsive to Request (filed under seal for In camera review)

H

2023 Financial Spreadsheet

Copies of All Records Responsive to Request (filed under seal for In camera review)

I

Credit Card Statements

Copies of All Records Responsive to Request (filed under seal for In camera review)

J

Bank Statements from Tax Account, March 31,2021, to August 31, 2021

Amendment to (B)(2) Records Responsive to Request Filing (filed under seal for In camera review)

O

Bank Statements from Tax Account, April 29, 2022, to 2021, to June 30, 2022

Amendment to (B)(2) Records Responsive to Request Filing (filed under seal for In camera review)

P

List of Check Numbers and Assets for 2019- 2023

Amendment to (B)(2) Records Responsive to Request Filing (filed under seal for In camera review)

Q

B. Requester is entitled to production of the records collected in Exhibits C, E, F, G, O, and P

{¶7} R.C. 149.43(B)(1) requires a public office to produce copies of responsive public records if a proper request is made and the records do not fit within an exception to the Public Records Act. All those conditions are presented here.

{¶8} The Department is a public office. It has conceded that it is the functional equivalent of a public office. Respondent's Response to Complaint/Motion to Dismiss, filed July 20, 2023 ("Response"), pp. 6, 7, 8, 9, 12. {¶9} Exhibits C, E, F, G, O, and P are public records. R.C. 149.43(A)(1) defines public records as "records kept by any public office[.]" (Emphasis added). R.C. 149.011(G) in turn provides that "'Records' includes any document * * * created or received by or coming under the jurisdiction of any public office * * * which serves to document the *** decisions *** or other activities of the office." The materials collected in Exhibits C, E, F, G, O and P were received by the Department; that is how they came to be filed here. They document the Department's expenditures, and expenditures were the result of decisions to disburse the funds and were themselves activities of the Department. See, e.g., State ex rel. R.R. Ventures v. Columbiana Cty. Port, 7th Dist. Columbiana No. 2002 CO 26, 2004-Ohio-391, ¶¶ 33, 38 (ordering production of "copies of checks, invoices"). The materials collected in these exhibits were kept by the Department. They are therefore public records within the plain terms of R.C. 149.43(A)(1) and R.C. 149.011(G).

{¶10} The Department has not challenged the sufficiency of Ms. Lerussi's requests.

{¶11} Nor has the Department argued that the records collected in that Exhibits C, E, F, G, O, and P fit within any exception to the Public Records Act.

{¶12} Ms. Lerussi is therefore entitled to production of the records collected in Exhibits C, E, F, G, O, and P.

C. Requester is entitled to the records collected in Exhibits D, H, I, J, and Q because Respondent has not proven facts making R.C. 149.431(A)(3) applicable and it has not asserted any other exemption from its duty to produce records.

{¶13} Exhibits D, H, I, J, and Q are materials related to private funds that flowed through the Department's Non-Profit Account. As just discussed, R.C. 149.43(B)(1) requires a public office to produce copies of responsive public records if a proper request is made and the records do not fit within an exception to the Public Records Act. All those conditions are present here.

{¶14} The Department is a public office. The Department concedes that it is the functional equivalent of a public office. That is sufficient to trigger obligations under R.C. 149.43(B)(1).

{¶15} Exhibits D, H, I, J, and Q are public records. R.C. 149.43(A)(1) defines a public record as a record kept by a public office. R.C. 149.011(G) defines records as various types of media "created or received by or coming under the jurisdiction of any public office *** which serve[] to document the organization, functions, policies, decisions, procedures, operations, or other activities of the office." These exhibits were "created or received by or [came] under the jurisdiction" of the Department-the Department filed them. They document how the Department disbursed funds entrusted to it. Those disbursements were the results of "decisions" made on behalf of the Department and were "activities of the office." These materials were kept by the Department and the Department is a public office. Exhibits D, H, I, J, and Q possess every element of a public record set by R.C. 149.43(A)(1) and R.C. 149.011(G).

{¶16} That is not changed by the fact that these materials describe the disposition of private funds. There are two reasons for that. Initially, the statutory definition of "record" contains no exception for materials documenting the disposition of private funds and courts are not free to create exceptions when the legislature has not. State ex rel. Sapp v. Franklin Cty. Court of Appeals, 118 Ohio St.3d 368, 2008-Ohio-2637, 889 N.E.2d 500, ¶ 26. Further, precedent requires that R.C. 149.011(G) be applied to reflect the statute's "expansive scope," and that any doubts be resolved in favor of classifying a document as a record. State ex rel. Data Trace Information Servs., LLC. v. Cuyahoga Cty. Fiscal Officer, 131 Ohio St.3d 255, 2012-Ohio-753, 963 N.E.2d 1288, ¶ 30; State ex rel. Cincinnati Post v. Schweikert, 38 Ohio St.3d 170, 173, 527 N.E.2d 1230 (1988). To the extent that this is a close question it must be answered in favor of record status.

{¶17} The Department has not challenged the sufficiency of Ms. Lerussi's requests for those records.

{¶18} The Department has not proven facts supporting the only exemption from production it urges. Its only basis for withholding these records is R.C. 143.431(A)(3). It provides that:

[A]ny *** nonprofit corporation or association *** that enters into a contract or other agreement with *** a political subdivision or taxing unit of this state for the provision of services shall keep accurate and complete financial records of any moneys expended in relation to the performance of the services pursuant to such contract or agreement according to generally accepted accounting principles. Such contract or agreement and such financial records shall be deemed to be public records as defined in division (A)(1) of section 149.43 of the Revised Code and are subject to the requirements of

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