State ex rel. Keller v. Cox

[This opinion has been published in Ohio Official Reports at 

85 Ohio St.3d 279

.]




      THE STATE EX REL. KELLER, APPELLANT, v. COX ET AL., APPELLEES.
                [Cite as State ex rel. Keller v. Cox, 

1999-Ohio-264

.]
Public records—Personnel and internal investigative records pertaining to police
        officers—Exemptions protected by constitutional right of privacy—Police
        officers’ files that contain the names of the officers’ children, spouses,
        parents, home addresses, telephone numbers, beneficiaries, medical
        information, and the like.
      (No. 98-1900—Submitted January 26, 1999—Decided April 7, 1999.)
        APPEAL from the Court of Appeals for Miami County, No. 98CA24.
                                  __________________
        {¶ 1} Carl J. Faehl is the defendant in United States v. Faehl, case No. CR-
3-98-035, a criminal case pending in the United States District Court for the
Southern District of Ohio, Western Division. Appellant, Steven R. Keller, the
Federal Public Defender for the Southern District of Ohio, was appointed to
represent Faehl.
        {¶ 2} In April 1998, Beth Goldstein Lewis, an Assistant Federal Public
Defender in Keller’s office, sent a written request under R.C. 149.43, Ohio’s Public
Records Act, to appellee Wilma Mahan, the Miami County Sheriff’s Department
Records Custodian, to inspect and copy all personnel and internal affairs records
relating to Miami County Sheriff’s Detective Paul Reece. Keller wanted access to
these records as part of his pretrial investigation and preparation on behalf of Faehl.
Keller believed that Detective Reece would be called as a witness against Faehl in
the criminal trial.
        {¶ 3} In May 1998, the United States filed a motion in the federal case to
order Faehl and his attorneys to cease and desist all efforts to obtain personal
information about government law enforcement officers who would be witnesses
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in the criminal case. In the motion, the government represented that Detective
Reece had investigated the importation and distribution of marijuana and cocaine
in the Southern District of Ohio and that as a result of his investigation, Faehl was
charged with the federal offense of conspiracy to possess with intent to distribute
marijuana and cocaine. The government asserted that disclosure of the requested
records would give Keller and Faehl access to the records that they would not
otherwise be entitled to in the criminal case under Fed.R.Crim.P. 16 or Brady v.
Maryland (1963), 

373 U.S. 83

, 

83 S.Ct. 1194

, 

10 L.Ed.2d 215

, and that such
disclosure would also violate Detective Reece’s constitutional right to privacy.
        {¶ 4} Following the government’s motion in the federal criminal case and
the refusal of appellees, Mahan and Miami County Sheriff Charles A. Cox, to
provide access to Detective Reece’s personnel and internal affairs records, Keller
filed a complaint in the Court of Appeals for Miami County to compel appellees to
provide such access pursuant to R.C. 149.43.1 Appellees filed a Civ.R. 12(B)(6)
motion to dismiss the complaint for failure to state a claim upon which relief can
be granted. Appellees attached to their memorandum in support of the motion an
affidavit of Detective Reece stating that Faehl and an individual whom Faehl had
contacted had threatened Detective Reece and his wife. Keller moved to strike
Detective Reece’s affidavit and all unsworn factual allegations contained in
appellees’ memorandum.
        {¶ 5} In September 1998, the court of appeals granted appellees’ Civ.R.
12(B)(6) motion and dismissed Keller’s mandamus complaint. The court of
appeals held that “notwithstanding the fact that personnel and internal investigative
records pertaining to police officers are public records under [R.C.] 149.43 * * *,
the statute is not available as a tool of discovery * * * by criminal defendants.”


1. Keller’s complaint was originally mistakenly filed in Montgomery County, but the court of
appeals sua sponte transferred the case to Miami County.




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                                January Term, 1999




The court of appeals reasoned that this result was mandated by paragraph two of
the syllabus of State ex rel. Steckman v. Jackson (1994), 

70 Ohio St.3d 420

, 

639 N.E.2d 83

, which provides that “[i]n the criminal proceeding itself, a defendant
may use only Crim.R. 16 to obtain discovery.” The court of appeals ruled that the
requested records could be acquired by Keller “only via Crim.R. 16, if at all.” The
court of appeals did not expressly rule on Keller’s motion to strike.
       {¶ 6} This cause is now before the court upon an appeal as of right.
                               __________________
       Steven R. Keller, Federal Public Defender, Beth Goldstein Lewis and
Randolph W. Alden, Assistant Federal Public Defenders, for appellant.
       Gary A. Nasal, Miami County Prosecuting Attorney, for appellees.
                               __________________
       Per Curiam.
       {¶ 7} Keller asserts in his various propositions of law that the court of
appeals erred in granting appellees’ Civ.R. 12(B)(6) motion and dismissing his
mandamus action for failure to state a claim upon which relief can be granted.
       {¶ 8} Keller initially contends that the court of appeals erred in failing to
grant his motion to strike and relying on improper evidence to dismiss his
complaint. The court of appeals in effect overruled Keller’s motion to strike by
failing to rule on it. “[W]hen a trial court fails to rule on a pretrial motion, it may
ordinarily be presumed that the court overruled it.” State ex rel. The V Cos. v.
Marshall (1998), 

81 Ohio St.3d 467, 469

, 

692 N.E.2d 198, 201

.
       {¶ 9} However, we do find that the court of appeals erred in overruling
Keller’s motion to strike the attached affidavit and unsworn factual allegations in
appellees’ memorandum in support of their Civ.R. 12(B)(6) dismissal motion.
Civ.R. 12(B)(6) movants like appellees cannot rely on allegations or evidence
outside the complaint to support their motion. State ex rel. Boggs v. Springfield
Local School Dist. Bd. of Edn. (1995), 

72 Ohio St.3d 94, 96

, 

647 N.E.2d 788

, 791.




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       {¶ 10} Nevertheless, the court of appeals’ error in overruling Keller’s
motion to strike did not prejudice Keller. See State ex rel. Fuqua v. Alexander
(1997), 

79 Ohio St.3d 206, 208

, 

680 N.E.2d 985, 987

. Although the court of
appeals cited some of the unsworn factual allegations contained in appellees’
memorandum in its decision, it did not rely on these allegations to resolve its Civ.R.
12(B)(6) legal determination, and the allegations cited were also contained in the
government motion attached as an exhibit to Keller’s complaint. Cf. State ex rel.
Findlay Publishing Co. v. Schroeder (1996), 

76 Ohio St.3d 580, 581

, 

669 N.E.2d 835, 837

, where we held that courts “cannot rely on allegations or evidence outside
[a] complaint in determining [a] Civ.R. 12(B)(6) motion”; see, also, State ex rel.
Crabtree v. Franklin Cty. Bd. of Health (1997), 

77 Ohio St.3d 247, 249

, 

673 N.E.2d 1281, 1283, fn. 1

 (“Material incorporated in a complaint may be considered part of
the complaint for purposes of determining a Civ.R. 12[B][6] motion to dismiss”).
       {¶ 11} Regarding Keller’s main contentions attacking the court of appeals’
decision to dismiss pursuant to Civ.R. 12(B)(6) his complaint for a writ of
mandamus, we disagree with the court of appeals that Steckman applies to this case.
The records sought by appellant are not part of “criminal discovery” because they
have nothing to do with the crime or the criminal case itself.
       {¶ 12} But based on Kallstrom v. Columbus (C.A.6, 1998), 

136 F.3d 1055

,
the requested records are exempt because they are protected by the constitutional
right of privacy. Police officers’ files that contain the names of the officers’
children, spouses, parents, home addresses, telephone numbers, beneficiaries,
medical information, and the like should not be available to a defendant who might
use the information to achieve nefarious ends. This information should be protected
not only by the constitutional right of privacy, but, also, we are persuaded that there
must be a “good sense” rule when such information about a law enforcement officer
is sought by a defendant in a criminal case. On the other hand, any records needed
by a defendant in a criminal case that reflect on discipline, citizen complaints, or




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                                January Term, 1999




how an officer does her or his job can be obtained, if any exist, through internal
affairs files in accordance with previous decisions of this court.
       {¶ 13} Accordingly, based on the foregoing, we affirm the judgment of the
court of appeals.
                                                                  Judgment affirmed.
       MOYER, C.J., DOUGLAS, RESNICK, F.E. SWEENEY, PFEIFER and LUNDBERG
STRATTON, JJ., concur.
       COOK, J., dissents.
                               __________________
       COOK, J., dissenting.
       {¶ 14} I respectfully dissent from the judgment affirming the court of
appeals’ dismissal of Keller’s mandamus action. As a preliminary matter, I agree
with the majority that the constitutional right of privacy exempts certain personnel
records of police officers from disclosure under the Public Records Act. See
Kallstrom v. Columbus (C.A.6, 1998), 

136 F.3d 1055

.
       {¶ 15} Nevertheless, the majority’s and appellees’ reliance on the
constitutional right of privacy does not support dismissal of Keller’s mandamus
action because any argument that Detective Reece’s constitutional right to privacy
exempts all of the requested records is, at this juncture, premature. Cf. State ex rel.
Beacon Journal Publishing Co. v. Akron (1994), 

70 Ohio St.3d 605

, 

640 N.E.2d 164

 (federal constitutional right to privacy exempts disclosure of city employees’
Social Security numbers). Exemptions from disclosure must be strictly construed
against the public records custodian, and the custodian has the burden to establish
an exemption. State ex rel. McGowan v. Cuyahoga Metro. Hous. Auth. (1997), 

78 Ohio St.3d 518, 519

, 

678 N.E.2d 1388, 1389

. Based solely on the allegations of
the complaint, appellees have not established that all of the contents of the
requested personnel files and internal affairs investigative reports relating to
Detective Reece are exempt. In this regard, Kallstrom, the sole authority cited by




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the majority to support its holding, does not hold that the constitutional right to
privacy necessarily exempts from disclosure the entire contents of the testifying
officers’ personnel files. Kallstrom merely holds that disclosure of testifying police
officers’ addresses, phone numbers, and driver’s licenses, as well as the names,
addresses, and phone numbers of their family members, violates their fundamental
constitutional rights to privacy, but that other information in their personnel files
would have to be analyzed to see whether it also violated these constitutional rights.

Id.,

136 F.3d at 1069-1070

.
          {¶ 16} In fact, the majority concedes that personnel files that reflect
discipline, citizen complaints, or how an officer does her or his job are public
records. By affirming the dismissal of Keller’s action, the majority had to have
assumed, before the court of appeals conducted an in camera inspection of the
records, that all of the requested personnel records in this case are of the types that
are shielded from disclosure by the constitutional right of privacy. Keller requested
access to all personnel and internal affairs records relating to Detective Reece. His
request is broad enough to include the records that the majority concedes would be
subject to disclosure under R.C. 149.43, i.e., records that “reflect on discipline,
citizen     complaints,    or    how     an       officer   does   her   or   his   job
* * *.” The majority’s holding, which assumes that all personnel records relating
to Detective Reece are exempt, is therefore unsupported by the record, Kallstrom,
or the court of appeals’ duty under Civ.R. 12(B)(6) to construe the material factual
allegations of Keller’s complaint most strongly in his favor.
          {¶ 17} Finally, to the extent that the majority relies on a “good sense” rule
in addition to the constitutional right of privacy, we have rejected analogous public-
policy exemptions by holding that “ ‘in enumerating very narrow, specific
exceptions to the public records statute, the General Assembly has already weighed
and balanced the competing public policy considerations between the public’s right
to know how its state agencies make decisions and the potential harm,




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                                  January Term, 1999




inconvenience or burden imposed on the agency by disclosure.’ ” State ex rel.
Thomas v. Ohio State Univ. (1994), 

71 Ohio St.3d 245, 249

, 

643 N.E.2d 126, 130

,
quoting State ex rel. James v. Ohio State Univ. (1994), 

70 Ohio St.3d 168, 172

, 

637 N.E.2d 911, 913-914

; see, also, State ex rel. Multimedia, Inc. v. Snowden (1995),

72 Ohio St.3d 141, 143-144

, 

647 N.E.2d 1374, 1378

. In fact, the fundamental policy
advanced by R.C. 149.43 is to promote open government, not to restrict it. State ex
rel. The Miami Student v. Miami Univ. (1997), 

79 Ohio St.3d 168, 171

, 

680 N.E.2d 956, 959

. As noted previously, the applicability of any privacy exemption cannot
yet be determined in ruling on appellees’ Civ.R. 12(B)(6) motion because this
determination is restricted to the allegations of Keller’s complaint. See State ex rel.
Natl. Electrical Contractors Assn., Ohio Conference v. Ohio Bur. of Emp. Serv.
(1998), 

83 Ohio St.3d 179, 181

, 

699 N.E.2d 64

, 66.
       {¶ 18} Based on the foregoing, it appears that after construing the material
factual allegations of Keller’s complaint most strongly in his favor, he can prove a
set of facts entitling him to the requested writ of mandamus. The court of appeals
consequently erred in dismissing Keller’s complaint pursuant to Civ.R. 12(B)(6).
Accordingly, the judgment of the court of appeals should be reversed and remanded
for further proceedings. See State ex rel. Rogers v. McGee Brown (1997), 

80 Ohio St.3d 408, 410-411

, 

686 N.E.2d 1126, 1128

. Because the majority does not so
decide, I respectfully dissent.
                                  __________________




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