State ex rel. Morgan v. Strickland

[Cite as State ex rel. Morgan v. Strickland, 

121 Ohio St.3d 600

, 

2009-Ohio-1901

.]




            THE STATE EX REL. MORGAN v. STRICKLAND, GOVERNOR.
                      [Cite as State ex rel. Morgan v. Strickland,
                        

121 Ohio St.3d 600

, 

2009-Ohio-1901

.]
     (No. 2009-0614 ─ Submitted April 21, 2009 ─ Decided April 24, 2009.)
Mandamus – Public records – R.C. 149.43 – Governor – Request for public
        records – Governor acted reasonably in responding to request given
        request’s broad scope and necessity for review before release – Limited
        writ issued to compel governor to continue reviewing remaining records
        and to provide copies within reasonable time.
                                      IN MANDAMUS.
                                 ____________________
        Per Curiam.
        {¶ 1} This is an original action for a writ of mandamus to compel
respondent, Governor Ted Strickland, to provide copies of certain records related
to the governor’s education-funding plan. Because the requested records serve to
“document the * * * functions, policies, decisions, procedures, operations, or
other activities of the office” of the governor, see R.C. 149.011(G), particularly as
they relate to his school-funding plan, we grant a limited writ of mandamus to
compel the governor to continue reviewing the potentially responsive records and
to provide copies of them to relator within a reasonable time.
                                           H.B. 1
        {¶ 2} Am.Sub.H.B. No. 1 (“H.B. 1”) is the governor’s proposed
operating budget for fiscal years 2010 and 2011. H.B. 1 was introduced as
proposed legislation on February 12, 2009. H.B. 1 would replace the current
school-funding method with a new method, which would adopt an evidence-based
model that calculates an “adequacy amount” for each school district.
                            SUPREME COURT OF OHIO




                               Records Requests
        {¶ 3} Relator, Seth A. Morgan, is a resident of Montgomery County,
Ohio, and is a member of the Ohio House of Representatives for the 36th District.
On March 12, Morgan requested certain records from the governor’s office
concerning the proposed school-funding plan, including any and all documents
and correspondence relating to the evidence-based model and e-mail
communications that refer to the evidence-based model or education funding in
general. Morgan admitted that his request was “comprehensive,” but offered to
assist in helping the governor’s office “narrow the specific documents” he was
requesting. After receiving no response to his March 12 request, Morgan made
another request on March 25 reiterating his previous request.
        {¶ 4} The governor’s office followed its general procedure in responding
to Morgan’s “non-routine” requests for voluminous records, except for failing to
provide written acknowledgement of the request as defined in the governor’s
public-records policy. The record officer received the request on March 17 and
proceeded to determine the scope and possible location of potentially responsive
records. The record officer then ordered a search of all of the office’s e-mail
accounts relating to the evidence-based model and education funding. The initial
search returned over 8,700 e-mail messages comprising over 74,000 pages of
data.
                                Mandamus Case
        {¶ 5} After receiving no response to his requests and while the
governor’s office was proceeding with its preliminary search and review of
potentially responsive records, Morgan filed this action on April 6. Morgan seeks
a writ of mandamus to compel Governor Strickland to make available the records
he requested in accordance with the Public Records Act and to provide a written
explanation that includes legal authority for any records not provided. Morgan
also requests statutory damages and attorney fees.      On April 8, we granted




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Morgan’s motion for expedited consideration, granted an alternative writ, and
ordered an accelerated schedule for the submission of evidence and briefs.
       {¶ 6} On April 7, the governor’s office responded to the requests with a
detailed letter and provided some of the requested records.           Although the
governor objected to many of Morgan’s requests as overbroad, he nevertheless
indicated that he was endeavoring to satisfy the requests by searching for,
compiling, and reviewing potentially responsive records to redact information
protected by state and federal law before providing copies. The governor noted
that he was not invoking executive privilege to withhold the records.
       {¶ 7} Morgan responded with a letter dated April 8 in which he
demanded that the governor’s office immediately provide him with the over 8,700
potentially responsive e-mails referred to in the governor’s office’s April 7 letter.
By letter the next day, the governor’s office provided over 6,100 pages of
additional records, but rejected Morgan’s request for immediate access to the
requested e-mails because they had not yet been reviewed for exempt material.
The governor’s office also noted that it had not yet claimed attorney-client
privilege or any other available privilege or exemption to prevent the release of
the records provided to relator.
       {¶ 8} This cause is now before the court for its consideration of the
merits. As a preliminary matter, any alleged noncompliance with R.C. 109.02
does not prevent us from resolving Morgan’s mandamus claim. In fact, the
governor does not specifically argue that it does. Instead, he merely claims that
the asserted violation of R.C. 109.02 prevents Morgan’s request for attorney fees.
                                      Mandamus
       {¶ 9} The Public Records Act reflects the state’s policy that “open
government serves the public interest and our democratic system.” State ex rel.
Dann v. Taft, 

109 Ohio St.3d 364

, 

2006-Ohio-1825

, 

848 N.E.2d 472, ¶ 20

. The
purpose of the act is “to expose government activity to public scrutiny, which is




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absolutely essential to the proper working of a democracy.” State ex rel. WHIO-
TV-7 v. Lowe (1997), 

77 Ohio St.3d 350, 355

, 

673 N.E.2d 1360

. In accordance
with this salutary purpose, “[w]e construe R.C. 149.43 liberally in favor of broad
access and resolve any doubt in favor of public records.” State ex rel. Toledo
Blade Co. v. Seneca Cty. Bd. of Commrs., 

120 Ohio St.3d 372

, 

2008-Ohio-6253

,

899 N.E.2d 961, ¶ 17

.
       {¶ 10} At issue here is whether the governor has provided copies of the
requested records within a reasonable time. R.C. 149.43(B)(1) provides that
“upon request, a public office or person responsible for public records shall make
copies of the requested public record available at cost within a reasonable period
of time.” The determination of whether the governor complied with his statutory
duty to timely provide copies of the requested records depends upon all of the
pertinent facts and circumstances. See State ex rel. Consumer News Servs., Inc. v.
Worthington City Bd. of Edn., 

97 Ohio St.3d 58

, 

2002-Ohio-5311

, 

776 N.E.2d 82

,
¶ 37-38.
       {¶ 11} Under R.C. 149.43(E)(1), “all public offices shall adopt a public
records policy in compliance with [the Ohio Public Records Act] for responding
to public records requests.”    The governor has done so and recognizes the
importance of the act in his office’s official “Public Records Policy and
Procedures.”
       {¶ 12} Among other things, the official public-records policy of the
governor’s office provides that responses to public-records requests “will be
completed in a reasonable time taking into account the scope of the request, the
ease or difficulty of identifying, compiling and reviewing potentially responsive
records, and the operational needs of the Governor’s Office.” For “non-routine”
requests, like the ones here, seeking a large number of copies or requiring an
extensive search or review, the policy provides that the governor’s office shall
provide a written acknowledgement of its receipt of the request, which includes




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                               January Term, 2009




an estimate of the time it will take to satisfy the request, an estimated cost, and
identification of items that may be exempt from disclosure or subject to redaction.
Under the policy, all records requests are referred promptly to the governor’s
record officer, the responsive records are reviewed to prevent the disclosure of
certain exempt information, and the governor’s office decides whether to invoke
or waive privileges and exemptions. The governor did not comply with the
requirement of the policy that he provide the person requesting records with an
estimate of the time it will take to satisfy the request, an estimated cost, and
identification of items that may be exempt or redacted.
       {¶ 13} We find that thus far, with the exception of that portion of the
policy specified, the governor has acted reasonably and within the parameters of
R.C. 149.43 as well as his duly adopted public-records policy.           As of the
completion of briefing, he had chosen not to invoke either executive privilege or
attorney-client privilege to withhold any of the requested records.
       {¶ 14} Moreover, Representative Morgan’s requests were arguably
overbroad in part. “ ‘[I]t is the responsibility of the person who wishes to inspect
and/or copy records to identify with reasonable clarity the records at issue.’ ”
State ex rel. Morgan v. New Lexington, 

112 Ohio St.3d 33

, 

2006-Ohio-6365

, 

857 N.E.2d 1208, ¶ 29

, quoting State ex rel. Fant v. Tober (Apr. 28, 1993), Cuyahoga
App. No. 63737, 

1993 WL 173743

, *1. “Requests for information and requests
that require the records custodian to create a new record by searching for selected
information are improper requests under R.C. 149.43.” Morgan at ¶ 30.
       {¶ 15}    Morgan’s initial request included “[a]ny and all e-mail
communications * * * which reference in a substantive manner the ‘evidence-
based model’ or education funding in general.” In that request, Morgan attempted
to clarify that he wanted only those e-mails in which the evidence-based model
was “the primary topic or significant part of the communications.” Later, in his
April 8 reply to the governor’s office’s detailed April 7 response to his public-




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records requests, Morgan appeared to request the immediate production of copies
of all e-mails that contained references to the school-funding model regardless of
whether the reference was “substantive” or was the “primary topic” or a
“significant” part of the e-mails. Morgan should therefore work to refine, narrow,
and further clarify his requests.
       {¶ 16} Furthermore, “R.C. 149.43(A) envisions an opportunity on the
part of the public office to examine records prior to inspection in order to make
appropriate redactions of exempt materials.” State ex rel. Warren Newspapers,
Inc. v. Hutson (1994), 

70 Ohio St.3d 619, 623

, 

640 N.E.2d 174

.
       {¶ 17} Given the broad scope of the records requested, the governor’s
office’s decision to review the records before producing them, to determine
whether to redact exempt matter, was not unreasonable.
       {¶ 18}     In addition, R.C. 149.43 contemplates that the requester and the
public-records custodian cooperate in fulfilling a request.      See State ex rel.
Strothers v. Murphy (1999), 

132 Ohio App.3d 645, 651

, 

725 N.E.2d 1185

 (court
urged parties to cooperate to satisfy a public-records request). For example, R.C.
149.43(B)(2) provides, “If a requester makes an ambiguous or overly broad
request or has difficulty in making a request for copies or inspection of public
records under this section such that the public office or the person responsible for
the requested public record cannot reasonably identify what public records are
being requested, the public office or the person responsible for the requested
public record may deny the request but shall provide the requester with an
opportunity to revise the request by informing the requester of the manner in
which records are maintained by the public office and accessed in the ordinary
course of the public office’s or the person’s duties.”
       {¶ 19} We have also recognized that “a reasonably exercised spirit of
mutual cooperation among the various branches of government is essential.”
State ex rel. Johnston v. Taulbee (1981), 

66 Ohio St.2d 417, 420

, 

20 O.O.3d 361

,




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                                 January Term, 2009

423 N.E.2d 80

. We anticipate the continued cooperation between the governor’s
office and the relator concerning the requested records pertinent to the governor’s
school-funding plan in H.B. 1.
       {¶ 20} Therefore, because the requested records serve to “document the
* * * functions, policies, decisions, procedures, operations, or other activities of
the office” of the governor, see R.C. 149.011(G), particularly as it relates to his
school-funding plan, we grant a limited writ of mandamus to compel the governor
to continue reviewing the remaining responsive records and, after making
appropriate redactions, to provide copies to Representative Morgan within a
reasonable time. The parties are encouraged to cooperate to achieve a mutually
acceptable resolution of the pending records requests. The request for attorney
fees and statutory damages is denied at this time.
                                    Conclusion
       {¶ 21} The requested records relating to the governor’s school-funding
plan are unquestionably important. Their timely disclosure after the governor’s
opportunity to review them to redact exempt material is consistent with the
precept that “[i]n order to ensure that government performs effectively and
properly, it is essential that the public be informed and therefore able to scrutinize
the government’s work and decisions.” Kish v. Akron, 

109 Ohio St.3d 162

, 2006-
Ohio-1244, 

846 N.E.2d 811

, ¶ 15. The ultimate disclosure of the requested
records here helps “illuminate and foster understanding of the rationale”
underlying the governor’s school-funding plan and will better inform both the
public and the General Assembly about the plan. Id. at ¶ 16.
       {¶ 22} For these reasons, we grant a limited writ of mandamus to compel
Governor Strickland to continue reviewing the remaining responsive records and
to provide copies of them to Representative Morgan within a reasonable time.
                                                              Judgment accordingly.




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                             SUPREME COURT OF OHIO




       MOYER, C.J., and LUNDBERG STRATTON, O’CONNOR, O’DONNELL,
LANZINGER, and CUPP, JJ., concur.
       PFEIFER, J., concurs separately.
                             ____________________
       PFEIFER, J., concurring.
       {¶ 23} I have no objection to the substance of the “limited writ” granted
by this court today. There isn’t any substance to object to. But I am less than
certain that the writ provides any meaningful guidance to the parties in the event
that there are unresolved differences.
       {¶ 24} What we have here is failure to communicate. And this court,
despite proven resources at our disposal, does nothing to resolve that problem.
This dispute cries out for mediation. For despite some heated rhetoric, there does
not seem to be much disagreement between the parties as to the law. Rather than
issuing a writ of any kind, this court should have taken the more prudent course of
following a procedure that we frequently employ in public-records cases, and that
is to encourage mediation upon the filing of the pleadings.
       {¶ 25}    At this point, we should order mediation. All sides here know
what the law is; this court’s professional mediation staff could manage and
monitor the production of documents. Mediation could facilitate a narrowing of
the documents requested – some of what Representative Morgan has demanded
may become moot or meaningless due to the fact that, not surprisingly, the
majority leaders of the House of Representatives have significantly changed the
governor’s proposed legislation. Further alterations will continue throughout the
legislative process. Mediation could keep a bevy of lawyers from wasting their
efforts and also save a good number of trees.
       {¶ 26}    We should take this public-records request seriously, and
employ our best methods to encourage diligent communication between the
parties in order to bring about a resolution that is consistent with Ohio’s strong




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                                January Term, 2009




tradition of open records. We have squandered an opportunity to ensure that this
matter does not devolve into political theater.
       {¶ 27} The parties themselves are still able to seek mediation through
this court. This court’s skilled mediation staff is experienced in public-records
mediation and remains an available and valuable resource.
                             ____________________
       KBH Law Office and Kari B. Hertel, for relator.
       Richard Cordray, Attorney General, and Aaron D. Epstein, Pearl M. Chin,
and Daniel C. Roth, Assistant Attorneys General, for respondent.
                             ____________________




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