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(A revised version of this article appears in The Construction
Lawyer, Volume 22, No. 2, Spring 2002, published by
the American Bar Association's Forum on the Construction
Industry.)
By John W. Ralls
Howrey LLP
In
1998, Hamilton County, Ohio, entered into contracts for
the construction of a new football stadium for the Cincinnati
Bengals. The county signed a contract with Getz Ventures
("Getz") to act as project manager. The county
also signed a contract with a joint venture of Turner Construction
Company, Barton Malow Company and D.A.G. Construction Co.,
Inc. ("TBMD") to construct the stadium and act
as construction manager.
In
March 2000, the Cincinnati Enquirer made a request to the
county pursuant to the Ohio Public Records Act to obtain
documents "related to cost overruns" for the stadium
project. The county provided the newspaper with the requested
records to the extent they were housed in the county's administration
building or construction trailer.
The
newspaper was not satisfied with the county's document production
and demanded access to all e-mails, memoranda and reports
relating to cost overruns that were in the possession of
Getz and TBMD. This request was rejected. The newspaper
then filed a petition for writ of mandamus with the Ohio
Court of Appeals to compel the county, TBMD and Getz to
provide the records. The Court of Appeals granted the writ.
TBMD, Getz and the county appealed. The Ohio Supreme Court
affirmed. State ex rel. Cincinnati Enquirer v. Krings,
93 Ohio St.3d 654, 758 N.E.2d 1135 (2001).
The
central issue presented to the Ohio Supreme Court was whether
records in the possession of private entities could be public
records. Under Ohio's Public Records Act, a "public
record" is "any record that is kept by any public
office, including, but not limited to... county… units."
Ohio Revised Code §149.43 (A) (1).
The
Supreme Court reasoned that the Public Records Act permits
a mandamus action against either "the public office
or the person responsible for the public record" and
that prior decisions had found this language " 'manifests
an intent to afford access to public records, even when
a private entity is responsible for the records.' "
Quoting State ex rel. Mazzaro v. Ferguson, 49 Ohio
St.3d 37, 39, 550 N.E.2d 464, 467 (1990).
The
court also relied heavily on the county's contracts with
Getz and TBMD. Under its contract with the county, Getz
was authorized to act on behalf of the county as agent and
was to monitor expenditures against an agreed cost plan.
As construction manager, TBMD was contractually required
to identify variances between actual and budgeted costs
and to maintain detailed cost accounting records. TBMD also
was contractually required to advise the county of steps
necessary to meet the guaranteed maximum construction price.
The Supreme Court found "these provisions are sufficiently
broad to establish a right of access on the part of the
county to TBMD and Getz's records concerning cost overruns
on the public construction project." It added: "Governmental
entities cannot conceal information concerning public duties
by delegating those duties to a private entity."
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For more information about the issues covered in this report, please contact John Ralls in our San Francisco office at 415-848-3362 or at rallsj@howrey.com or contact your Howrey attorney. For more information about Howrey's Construction Practice Group, click here.
©2002 Howrey LLP
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