State ex rel. Findlay Publishing Co. v. Schroeder

[This opinion has been published in Ohio Official Reports at 

76 Ohio St.3d 580

.]




      THE STATE EX REL. FINDLAY PUBLISHING COMPANY v. SCHROEDER.
  [Cite as State ex rel. Findlay Publishing Co. v. Schroeder, 

1996-Ohio-361

.]
Mandamus to compel county coroner to permit inspection and copying of records
        in which the cause of death was suicide—Writ granted, when.
       (No. 96-1185—Submitted July 24, 1996—Decided October 2, 1996.)
                                      IN MANDAMUS.
                                  __________________
        {¶ 1} Prior to February 24, 1995, Hancock County Coroner Leroy L.
Schroeder, M.D., respondent, prepared and filed in the Office of the Clerk of the
Hancock County Court of Common Pleas a report of each death coming under his
jurisdiction in the county. Since February 24, 1995, none of Schroeder’s records
has been available for public inspection, i.e., they had not been filed in the clerk’s
office. Following Schroeder’s repeated refusal to permit inspection of his records,
the Findlay Publishing Company, relator, filed this action for a writ of mandamus
to compel Schroeder to keep records pursuant to R.C. 313.09 and to permit public
inspection and copying of these records pursuant to R.C. 313.10 and 149.43.
        {¶ 2} On May 20, 1996, after relator’s commencement of this mandamus
action, Schroeder filed his records in the clerk’s office concerning all cases coming
under his jurisdiction and supervision since February 24, 1995 involving persons
dying by accidental or natural causes and, in one instance, by homicide. However,
Schroeder did not file any of his remaining records, which consist of cases in which
the cause of death was suicide. Schroeder did not provide public access to these
records because family members of the suicide victims requested that the records
remain confidential.
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        {¶ 3} Schroeder has filed a motion to dismiss, or, alternatively, for summary
judgment. Schroeder has attached to his motion evidence of a declaratory judgment
action on the same subject pending in the common pleas court.
                               __________________
        Betts, Miller & Russo and Ralph D. Russo, for relator.
        Robert A. Fry, Hancock County Prosecuting Attorney, for respondent.
                               __________________
        Per Curiam.
        {¶ 4} S.Ct.Prac.R. X(5) provides that in original actions other than habeas
corpus filed in this court:
        “The respondent shall file an answer to the complaint or a motion to dismiss
within 21 days of service of the summons and complaint. The respondent may file
a motion for judgment on the pleadings at the same time an answer is filed. After
the time for filing an answer to the complaint or a motion to dismiss, the Supreme
Court will either dismiss the case or issue an alternative or peremptory writ, if a
writ has not already been issued.”
        {¶ 5} Schroeder filed a Civ.R. 12(B)(6) motion to dismiss which
alternatively requests summary judgment. In order to dismiss a complaint for
failure to state a claim upon which relief can be granted, it must appear beyond
doubt that relator can prove no set of facts warranting relief, after all factual
allegations of the complaint are presumed true and all reasonable inferences are
made in relator’s favor. Civ.R. 12(B)(6); State ex rel. Seikbert v. Wilkinson (1994),

69 Ohio St.3d 489, 490

, 

633 N.E.2d 1128, 1129

.
        {¶ 6} Here, relator concedes that it has now been provided with some of the
records it requested. Therefore, this portion of relator’s mandamus action is moot.
State ex rel. Pennington v. Gundler (1996), 

75 Ohio St.3d 171, 173

, 

661 N.E.2d 1049, 1051

; see, also, State ex rel. Neff v. Corrigan (1996), 

75 Ohio St.3d 12, 16

,

661 N.E.2d 170, 174

, and cases cited therein (courts may take judicial notice of



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                                January Term, 1996




appropriate matters in determining Civ.R. 12[B][6] motion without converting it to
a motion for summary judgment); Hughes v. Butler Cty. Bd. of Revision (1944),

143 Ohio St. 559, 560

, 

28 O.O. 477, 478

, 

56 N.E.2d 63, 64

.
       {¶ 7} Schroeder claims that the remainder of relator’s mandamus action is
subject to dismissal under Civ.R. 12(B)(6) because of a previously filed declaratory
judgment action. To establish this assertion, Schroeder erroneously relies on
evidentiary material attached to his motion. See State ex rel. Boggs v. Springfield
Loc. School Dist. Bd. of Edn. (1995), 

72 Ohio St.3d 94, 96

, 

647 N.E.2d 788

, 791
(court cannot rely on allegations or evidence outside complaint in determining
Civ.R. 12[B][6] motion). Based solely on the complaint, it does not appear beyond
doubt that relator can prove no set of facts entitling it to a writ of mandamus.
Schroeder’s motion is therefore overruled. Further, Schroeder’s alternative request
for summary judgment is denied because Civ.R. 56 motions are clearly inapplicable
under S.Ct.Prac.R. X(5).
       {¶ 8} We now determine whether an alternative or a peremptory writ should
issue. Relator requests a peremptory writ of mandamus. In its memorandum in
opposition to Schroeder’s motion to dismiss, relator admits the existence of the
pending declaratory judgment action filed prior to this mandamus action.
Schroeder and unnamed members of seven different families who had a family
member commit suicide in 1995 filed a complaint against relator in the Hancock
County Court of Common Pleas. They requested a judgment declaring that
Schroeder is not required to disclose records relating to these persons who
committed suicide.
       {¶ 9} Schroeder contends that mandamus should not issue because the
pending declaratory judgment action constitutes an adequate remedy in the ordinary
course of the law. Generally, “‘[w]here parties to a mandamus action are also
parties, or may be joined as parties, in a previously filed declaratory judgment
action involving the same subject matter, a court, in the exercise of its discretion,




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may refuse to issue a writ of mandamus.’” State ex rel. Huntington Ins. Agency,
Inc. v. Duryee (1995), 

73 Ohio St.3d 530, 537

, 

653 N.E.2d 349, 356

, quoting State
ex rel. Bennett v. Lime (1978), 

55 Ohio St.2d 62

, 

9 O.O.3d 69

, 

378 N.E.2d 152

,
syllabus. However, we have held that persons seeking public records pursuant to
R.C. 149.43(C) need not establish the lack of an adequate remedy at law in order
to be entitled to a writ of mandamus. See, e.g., State ex rel. Steckman v. Jackson
(1994), 

70 Ohio St.3d 420, 426

, 

639 N.E.2d 83, 89

 (“[M]andamus is the appropriate
remedy to force compliance with the open-records statute.”); State ex rel. Scripps-
Howard Broadcasting Co. v. Cuyahoga Cty. Court of Common Pleas, Juv. Div.
(1995), 

73 Ohio St.3d 19, 23

, 

652 N.E.2d 179, 183

 (“As to the juvenile court’s
contention that a declaratory judgment constitutes an adequate legal remedy which
precludes a writ of mandamus, to the extent that relator seeks a copy of the
transcript under R.C. 149.43, it need not establish the lack of an adequate
remedy.”). Therefore, the pending declaratory judgment action does not preclude
this mandamus action.
       {¶ 10} In the declaratory judgment action, Schroeder contends that his
coroner’s records related to suicides need not be disclosed because of the federal
Freedom of Information Act (“FOIA”), R.C. Chapter 1347, and the right of privacy.
In essence, Schroeder claims that the release of these records is prohibited by state
or federal law. R.C. 149.43(A)(1). Exceptions to disclosure are strictly construed
against the custodian of public records, and the burden to establish an exception is
on the custodian. State ex rel. James v. Ohio State Univ. (1994), 

70 Ohio St.3d 168, 169

, 

637 N.E.2d 911, 912

. R.C. 149.43 is liberally construed to further broad
access, and any doubt is resolved in favor of disclosure of public records. State ex
rel. Warren Newspapers, Inc. v. Hutson (1994), 

70 Ohio St.3d 619, 621

, 

640 N.E.2d 174, 177

.
       {¶ 11} None of the exceptions raised by Schroeder precludes disclosure of
the subject records. FOIA does not apply to state agencies or officers. See, e.g.,



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                                January Term, 1996




State ex rel. Thomas v. Ohio State Univ. (1994), 

71 Ohio St.3d 245, 247-248

, 

643 N.E.2d 126, 129

; St. Michael’s Convalescent Hosp. v. California (C.A.9, 1981),

643 F.2d 1369

, 1373; Sections 551(1) and 552(f), Title 5, U.S. Code. R.C. Chapter
1347, the Ohio Privacy Act, does not limit the provisions of R.C. 149.43, the Public
Records Act. R.C. 149.43(D); see, also, R.C. 1347.04(B) (“The provisions of this
chapter shall not be construed to prohibit the release of public records, or the
disclosure of personal information in public records, as defined in section 149.43
of the Revised Code ***.”). Finally, in that there is no legislative scheme protecting
the names of suicide victims from disclosure or incorporating the personal privacy
exemption adopted by other states and the federal government, the right of privacy
does not exempt the coroner’s records from disclosure. See Thomas, 71 Ohio St.3d
at 248, 

643 N.E.2d at 129

; State ex rel. The Plain Dealer Publishing Co. v.
Cleveland (1996), 

75 Ohio St.3d 31, 34-35

, 

661 N.E.2d 187, 190

. Moreover, even
if R.C. 149.43 contained a privacy exemption, it is unclear whether a coroner’s
records pertaining to suicides would necessarily be exempt. See, generally, 1
Braverman & Chetwynd, Information Law (1985) 411, Section 10-4.1.2 (“The law
remains unsettled as to whether deceased persons have privacy interests. The
Department of Justice’s position is that an individual’s privacy rights end at death.
*** [W]hile the privacy interest may not be important to the decedent, disclosure
of some information could possibly invade the privacy of surviving relatives and
associates.”) (Footnotes omitted.); Prosser & Keeton, The Law of Torts (5 Ed.1984)
860-861 (The privilege of giving publicity to news and other matters of public
interest includes suicides.); Rush v. Chronicle Telegram (May 30, 1980), Cuyahoga
App. No. 40919, unreported.
       {¶ 12} In addition, the requests of the victim’s relatives to withhold the
suicide records do not alter the public nature of the records. See State ex rel.
Dispatch Printing Co. v. Wells (1985), 

18 Ohio St.3d 382, 384

, 18 OBR 437, 439,

481 N.E.2d 632, 634

 (contractual provision between city and employees cannot




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alter duty of city to provide access to public records under R.C. 149.43); State ex
rel. Sun Newspapers v. Westlake Bd. of Edn. (1991), 

76 Ohio App.3d 170, 173

, 

601 N.E.2d 173, 175

 (public entity cannot enter into enforceable promises of
confidentiality with respect to public records).
        {¶ 13} Therefore, the release of the subject records is not prohibited by
other state or federal law under R.C. 149.43(A)(1).         In fact, other state law
establishes that Schroeder’s records are unquestionably public records. See R.C.
313.09 and 313.10; cf. State ex rel. Dayton Newspapers, Inc. v. Rauch (1984), 

12 Ohio St.3d 100, 101

, 12 OBR 87, 88, 

465 N.E.2d 458, 459-460

 (autopsy reports on
homicide victims are distinct from other information coroners are required to keep
as public records).
        {¶ 14} In that the pertinent facts are uncontroverted and from these facts it
appears beyond doubt that relator is entitled to the requested extraordinary relief,
no further evidence and briefing is necessary for our resolution of the merits of this
case. Accordingly, we grant a peremptory writ of mandamus to immediately
compel Schroeder to provide the records he is currently withholding. See, e.g.,
State ex rel. Smith v. Frost (1995), 

74 Ohio St.3d 107, 112

, 

656 N.E.2d 673, 678

.
We also find that relator is entitled to attorney fees. 

Pennington, supra.

 Relator’s
counsel is ordered to submit a bill and documentation in support of its request for
attorney fees, in accordance with the guidelines set forth in DR 2-106.
                                                                      Writ granted.
        MOYER, C.J., DOUGLAS, RESNICK, F.E. SWEENEY, COOK and STRATTON,
JJ., concur.
        PFEIFER, J., dissents and would grant only an alternative writ.
                               __________________




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