State ex rel. Multimedia Inc. v. Snowden

[This opinion has been published in Ohio Official Reports at 

72 Ohio St.3d 141

.]




   THE STATE EX REL. MULTIMEDIA, INC., D.B.A. WLWT-TV5, v. SNOWDEN,
                                          CHIEF.
       [Cite as State ex rel. Multimedia, Inc. v. Snowden, 

1995-Ohio-248

.]
Mandamus to compel police chief to permit inspection and copying of all personal
        background and investigation reports for all members of Cincinnati's police
        recruit classes—Writ granted except for National Crime Information
        Center and Regional Crime Information Center "rap sheets."
        (No. 94-2051—Submitted March 21, 1995—Decided May 3, 1995.)
                                      IN MANDAMUS.
                                  __________________
        {¶ 1} Respondent, Cincinnati Police Chief Michael Snowden, is responsible
for the city's police-recruitment process. As part of this process, the police conduct
an investigation of all applicants.        The investigation generates the following
records: (1) polygraph examination report, (2) National Crime Information Center
("NCIC") and Regional Crime Information Center ("RCIC") "rap sheets," (3)
personal history questionnaires, (4) police psychologist report, (5) background
investigation report, and (6) credit history. Police applicants are encouraged to be
candid and forthcoming about their personal histories during the investigation and
are promised confidentiality for the information disclosed by them.
        {¶ 2} By letters dated July 1 and July 6, 1994, relator, Multimedia, Inc.,
d.b.a. WLWT-TV5 ("Multimedia"), demanded that Snowden allow it to inspect
and, if necessary, copy all personal background and investigation reports, including
criminal and traffic records, for all members of the city's then-current police recruit
classes. Following additional correspondence from Multimedia, the city rejected
relator's demand on the basis that the requested records are "confidential law
enforcement investigatory records" as defined in R.C. 149.43(A)(2).
                             SUPREME COURT OF OHIO




       {¶ 3} On September 26, 1994, Multimedia instituted this action under R.C.
149.43(C), seeking a writ of mandamus to compel Snowden to make the requested
records available for inspection and copying. We issued an alternative writ, and
the parties subsequently filed briefs.
                                  __________________
       Frost & Jacobs and Richard M. Goehler, for relator.
       Fay D. Dupuis, Cincinnati City Solicitor, and Karl P. Kadon III, Deputy
City Solicitor, for respondent.
                                  __________________
       Per Curiam.
       {¶ 4} Mandamus is the proper remedy to compel compliance with Ohio's
Public Records Act, R.C. 149.43. State ex rel. Steckman v. Jackson (1994), 

70 Ohio St.3d 420, 426

, 

639 N.E.2d 83, 88-89

. Snowden concedes that the requested
records are "records" for purposes of R.C. 149.43 and that they are held by the
city's Police Division, which is a "public office." See R.C. 149.011(A) and (G).
However, Snowden asserts that the records are excepted from disclosure under R.C.
149.43(A)(2) as "confidential law enforcement investigatory records."
       {¶ 5} R.C.     149.43(A)(1)       excepts   confidential    law   enforcement
investigatory records from the definition of "[p]ublic record," and R.C.
149.43(A)(2) defines those records:
       "'Confidential law enforcement investigatory record' means any record that
pertains to a law enforcement matter of a criminal, quasi-criminal, civil, or
administrative nature, but only to the extent that the release of the record would
create a high probability of disclosure of any of the following:
       "(a) The identity of *** an information source *** to whom confidentiality
has been reasonably promised;




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                                 January Term, 1995




         "(b) Information provided by an information source *** to whom
confidentiality has been reasonably promised, which information would reasonably
tend to disclose his identity[.]" (Emphasis added.)
         {¶ 6} Excepting records from release under R.C. 149.43(A)(2) involves a
two-step analysis: (1) Is the record a confidential law enforcement record? and (2)
Would release of the record create a high probability of disclosure of any one of
the four types of information specified in R.C. 149.43(A)(2)? State ex rel. Beacon
Journal Publishing Co. v. Kent State Univ. (1993), 

68 Ohio St.3d 40, 42

, 

623 N.E.2d 51, 53

. Snowden argues that the court should construe the phrases "law
enforcement matter" and "administrative" broadly, so as to include anything related
to the management of a police department. Nevertheless, in considering Snowden's
suggested interpretation of R.C. 149.43(A)(2), exceptions to disclosure must be
strictly construed against the custodian of the 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

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

70 Ohio St.3d 619, 621

, 

640 N.E.2d 174, 177

; cf. State ex rel. 

Steckman, supra.

         {¶ 7} Personnel records of police officers reflecting the discipline of police
officers are not confidential law enforcement investigatory records excepted from
disclosure under R.C. 149.43(A)(2):
         "The limited record before this court strongly suggests that most, if not all,
of the records at issue herein are not law enforcement investigatory records as
contemplated by the statute. Instead, it is apparent that the records involve the city's
monitoring and discipline of its police officers. These internal investigations were
not undertaken based upon a specific suspicion of criminal wrongdoing. They were
routinely conducted in every incident where deadly force was used by a police




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officer. *** [P]ersonnel records reflecting the discipline of police officers are
required to be disclosed pursuant to R.C. 149.43. ***"            State ex rel. Natl.
Broadcasting Co. v. Cleveland (1988), 

38 Ohio St.3d 79, 83

, 

526 N.E.2d 786, 790

 ("NBC I"); see, also, Toledo Police Patrolmen's Assn., Local 10, IUPA v.
Toledo (1994), 

94 Ohio App.3d 734, 739

, 

641 N.E.2d 799, 802

; cf. State ex rel.
Natl. Broadcasting Co. v. Cleveland (1991), 

57 Ohio St.3d 77

, 

566 N.E.2d 146

(records involving police use of deadly force resembled investigatory records rather
than mere police personnel records).
       {¶ 8} As in NBC I, the investigations undertaken by the Cincinnati Police
Division were not based on any suspicion of wrongdoing.                  Instead, the
investigations appear to have been routinely conducted on every applicant and were
part of the personnel records of each police recruit.        In other words, public
employee personnel records are generally regarded as public records, absent proof
of an exception. See Fant v. Greater Cleveland Regional Transit Auth. (June 9,
1994), Cuyahoga App. No. 66415, unreported.
       {¶ 9} More pertinently, it has been held that the phrase "law enforcement
matter of a criminal, quasi-criminal, civil, or administrative nature" refers "directly
to the enforcement of the law, and not to employment or personnel matters ancillary
to law enforcement matters.'" State ex rel. Lorain Journal Co. v. Lorain (1993), 

87 Ohio App.3d 112, 115

, 

621 N.E.2d 894, 896

, citing Dinkins v. Ohio Div. of Hwy.
Patrol (N.D.Ohio 1987), 

116 F.R.D. 270

. Investigatory reports compiled by law
enforcement agencies to assist employment decisions do not constitute confidential
law enforcement investigatory records excepted from disclosure under R.C. 149.43,
since they do not directly involve law enforcement. See State ex rel. Lorain Journal
(results of polygraph examinations administered to applicants for employment with
municipal police department) and Dinkins (prehire background investigation report
for applicant for Ohio State Highway Patrol). The foregoing interpretation of R.C.




                                          4
                                January Term, 1995




149.43(A)(2) comports with our duty to strictly construe confidential law
enforcement investigatory records and resolve any doubts in favor of disclosure.
       {¶ 10} Snowden contends that not excepting the subject records as
confidential law enforcement investigatory records will result in police applicants'
not being as forthcoming and candid in the recruitment process. We have rejected
similar contentions 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,
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, supra, 

70 Ohio St.3d at 172

, 

637 N.E.2d at 913-914

.
Thus, Snowden's public policy arguments to the contrary are of no avail.
       {¶ 11} Snowden next asserts that the release of records containing
information derived from computerized criminal databases like NCIC and RCIC is
prohibited. As relator concedes, NCIC and RCIC "rap sheets" generated in the
investigation of police applicants are prohibited from being released by state and
federal law. R.C. 149.43(A)(1); R.C. 109.57; Ohio Adm. Code 4501:2-10-06(B);
Section 3789g, Title 42, U.S.Code; 28 C.F.R. Section 20.33(a)(3); State ex rel. Natl.
Broadcasting co. v. Cleveland (1992), 

82 Ohio App.3d 202, 206-207

, 

611 N.E.2d 838, 840-841

; Ingraham v. Ribar (1992), 

80 Ohio App.3d 29, 33-34

, 

608 N.E.2d 815, 818

; 1994 Ohio Atty Gen.Ops. No. 94-046.
       {¶ 12} Snowden finally contends that a psychological examination resulting
from the referral of an applicant to a police psychologist for evaluation need not be
released because it is an R.C. 149.43(A)(3) "medical record" excepted from
disclosure. R.C. 149.43(A)(3) defines "[m]edical record" as "any document or
combination of documents, except births, deaths, and the fact of admission to or
discharge from a hospital, that pertains to the medical history, diagnosis, prognosis,




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                             SUPREME COURT OF OHIO




or medical condition of a patient and that is generated and maintained in the process
of medical treatment." Although psychologists are not licensed physicians, see,
e.g., State ex rel. McMaster v. School Emp. Retirement Sys. (1994), 

69 Ohio St.3d 130, 136

, 

630 N.E.2d 701

, 706-707, R.C. 149.43(A)(3) does not restrict medical
records to those documented by licensed physicians. Further, the word "medical"
refers to the "science and art of the investigation, prevention, cure, and alleviation
of disease," Black's Law Dictionary (6 Ed.1990) 982, which would arguably
include reports of psychologists.
       {¶ 13} Nevertheless, in State ex rel. Toledo Blade Co. v. Telb (C.P.1990),

50 Ohio Misc.2d 1, 10

, 

552 N.E.2d 243, 251

, the court held that documents
containing opinions of psychologists sought by a sheriff to assist him in making a
decision as to an employee's suitability for continued employment were not medical
records excepted from disclosure under R.C. 149.43:
       "To fall within this exception, a record must pertain to a medical diagnosis
and be generated and maintained in the process of medical treatment.             The
respondents' argument fails because they do not meet the conjunctive requirements
of the statute, in that the records were not maintained in the process of medical
treatment. Rather, the documents themselves make clear that, in each case, the
report of the psychologist was sought as part of the sheriff's decision-making
process regarding Zieroff's employment. They were not sought in the process of
medical treatment." (Emphasis sic.)
       {¶ 14} Analogously, the police psychologist report in this case was not
obtained in the process of the applicant's medical treatment. Instead, it was
garnered to assist in the police-hiring process. Therefore, the psychological report
that is part of the requested records is not a medical record that is excepted from
disclosure.




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                               January Term, 1995




       {¶ 15} Multimedia is thus entitled to a writ of mandamus compelling the
disclosure of all of the requested records except for the NCIC and RCIC "rap
sheets." Multimedia's request for an in camera review is moot.
       {¶ 16} Multimedia also requests attorney fees. An award of attorney fees
under R.C. 149.43(C) is not mandatory. State ex rel. Fox v. Cuyahoga Cty. Hosp.
Sys. (1988), 

39 Ohio St.3d 108

, 

529 N.E.2d 443

, paragraph two of the syllabus.
Multimedia must demonstrate a sufficient benefit to the public to warrant an award
of attorney fees, and the court may also consider the reasonableness of Snowden's
refusal to comply, since an award of attorney fees is punitive. State ex rel. The
Warren Newspapers, Inc. v. Hutson (1994), 

70 Ohio St.3d 619, 626

, 

640 N.E.2d 174, 180

. Multimedia has demonstrated a sufficient public benefit. Further,
Snowden failed to comply with the records request based on reasons that have been
found to have been meritless. Additionally, although one of Snowden's claimed
exceptions possesses merit, Multimedia had informed him by letter dated August
22, 1994, that information from the NCIC could be redacted prior to disclosure of
the remaining requested records. Consequently, Multimedia is entitled to an award
of attorney fees.
       {¶ 17} Accordingly, we grant a writ of mandamus compelling Chief
Snowden to release all of the records requested except for the NCIC and RCIC "rap
sheets," grant Multimedia's request for attorney fees, and deny Multimedia's request
for an in camera review.
                                                                      Writ granted.
       MOYER, C.J., WRIGHT, PFEIFER and COOK, JJ., concur.
       DOUGLAS, RESNICK and F.E. SWEENEY, JJ., concur separately.
                              __________________




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                             SUPREME COURT OF OHIO




       DOUGLAS, J., concurring.
       {¶ 18} I concur with the judgment of the majority which orders release of
the records in question and allows an award of attorney fees. I write separately to
make three points.
                                           I
       {¶ 19} I continue to believe that the discussion in the majority opinion
which supports the attorney fees award is inaccurate. Multimedia (or any other
successful plaintiff-relator) need not demonstrate a benefit to the public to warrant
an award of attorney fees. Implicit in gaining release of public records, to which
access has been denied, is that the public has benefited by release of records that
already belong to the public. Further, R.C. 149.43(C) specifically contemplates an
award of attorney fees. In pertinent part, the statute states that "* * * if a person,
who has requested a copy of a public record allegedly is aggrieved by the failure of
a person responsible for it to make a copy available to him in accordance with
division (B) of this section, the person allegedly aggrieved may commence a
mandamus action to obtain a judgment that orders the governmental unit or the
person responsible for the public record to comply with division (B) of this section
and that awards reasonable attorney's fees to the person that instituted the
mandamus action." (Emphasis added.) The word "may" does not modify the
verbiage regarding attorney fees. The word "may" does modify the commencing
of a mandamus action.
       {¶ 20} On this same issue, in State ex rel. The Warren Newspapers, Inc. v.
Hutson (1994), 

70 Ohio St.3d 619

, 

640 N.E.2d 174

, Justices Resnick, F.E. Sweeney
and I wrote, while concurring in part and dissenting in part, that the amorphous test
of "public benefit" was not and is not the test to be used for the awarding of attorney
fees to a successful litigant. What we said there bears repeating here:
       "Finally, I continue to disagree with the proposition, as set forth in the
majority opinion, that a '[r]elator must demonstrate a sufficient benefit to the public




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                                  January Term, 1995




to warrant an award of attorney fees * * *.' The statute does not require this and
the amending process engaged in by the General Assembly clearly makes this point.
Regarding this issue, I believe that the information set forth in my dissenting
opinion in State ex rel. Fox v. Cuyahoga Cty. Hosp. (1988), 

39 Ohio St.3d 108, 112-114

, 

529 N.E.2d 443, 447-448

, is instructive. Therein, it was stated:
        "'With regard to the holding of the majority in denying reasonable attorney
fees to relators, I respectfully dissent.
        "'Given the specific language of the statute and the legislative history of the
public records legislation, it is difficult for me to understand how the majority can
reach its conclusion. The theory of any public disclosure law is not that an
individual is benefited but that the public as a whole is the beneficiary of the
government's business being open to the public. When a "public office" refuses a
legitimate and reasonable request to make available, pursuant to R.C. 149.43,
public records, some individual or organization must be the catalyst to enforce the
law. If we, as we are doing today, prevent the recovery of reasonable attorney fees
for those who seek to enforce the law on behalf of all of us, then truly those self-
appointed surrogates will be "volunteers" in every sense of the word and will find
themselves burdened with heavy expenses which they must personally underwrite.
There will be little incentive, except possibly for news-gathering organizations, to
seek enforcement of the law which, in effect, defeats the very purpose of the law.
        "'The General Assembly obviously realized this problem when it enacted,
effective October 15, 1987, a new subdivision (C) to R.C. 149.43. In doing so, the
General Assembly repealed R.C. 149.99, which had provided the penalty for
violation of R.C. 149.43. As set forth in fn. 2 of the majority opinion, the now
repealed penalty was that an aggrieved person "may recover a forfeiture of one
thousand dollars and reasonable attorneys fees for each violation."
        "'Arguably, the use of the word "may" by the legislature could be construed
to make any award by a court, for violation of the law, discretionary. So what did




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                               SUPREME COURT OF OHIO




the General Assembly do when confronted with this problem? It repealed R.C.
149.99 and enacted R.C. 149.43(C), which provides (in part) in no uncertain terms
that a "* * * person allegedly aggrieved may commence a mandamus action to
obtain a judgment that orders the governmental unit * * * responsible for the public
record to comply with division (B) of this section and that awards reasonable
attorney's fees to the person that instituted the mandamus action." (Emphasis
added.)
          "'In reviewing this language the majority says, "[t]his provision does not
appear to require the award of attorney fees but makes such an award
discretionary." The majority misses the mark. The word "may" in this newly
revised section does not modify the reasonable-attorney-fees language. The word
"may" only modifies the verbiage "commence a mandamus action." It was placed
in the statute so there could be no further question that an allegedly aggrieved party
could use the speedy remedy of mandamus, a course of action which had been
prevented by a majority of this court in State ex rel. Fostoria Daily Review Co. v.
Fostoria Hosp. Assn. (1987), 

32 Ohio St.3d 327

, 

512 N.E.2d 1176

. An allegedly
aggrieved party can still file a civil action in the common pleas court to compel
compliance with R.C. 149.43 but now may also use mandamus as a vehicle to bring
about compliance.
          "'To support its decision regarding attorney fees, the majority cites Black's
Law Dictionary and several cases, all of which involve something other than the
Public Records Law.        Further, in doing so, the majority ignores the explicit
language of the Act and, in addition, ignores or overlooks the very precise language
found in Section 5 of Am.Sub.S.B. No. 275, effective October 15, 1987, which
provides:
          "'"This act is hereby declared to be an emergency measure necessary for
immediate preservation of the public peace, health, and safety. The reason for the
necessity is that, unless the effect of the recent decision of the Ohio Supreme Court




                                           10
                               January Term, 1995




in State ex rel. Fostoria Daily Review Co. v. Fostoria Hosp. Assn. (1987), 

32 Ohio St.3d 323

 [sic 327] [

512 N.E.2d 1176

] is immediately superseded and a civil action
for a writ of mandamus available in all courts with original jurisdiction
reestablished as the remedy to enforce the Public Records Law, members of the
general public could be denied access to public records in violation of the Public
Records Law, and have no recourse other than to pursue an inadequate, statutorily
prescribed remedy in the court of common pleas of injunctive relief, a forfeiture of
$1,000, and a reasonable attorney's fees award. Therefore, this action shall go into
immediate effect." (Emphasis added.)
        "'Accordingly, since the majority ignores the specific language and intent
of the General Assembly, ignores the legislative history, frustrates the purpose of
the Act and leaves aggrieved parties without a practical remedy, I must dissent from
that portion of the majority opinion which denies relators their reasonable counsel
fees.
        "'By today's decision, the majority leaves an offending governmental unit
with no reason to comply with the Act. Any such unit will be defended at the
taxpayers' expense since its attorney fees will be paid out of government funds. If
the "public office" loses and is not required to pay costs and reasonable attorney
fees, then no penalty at all attaches since the General Assembly has repealed R.C.
149.99. Can the majority really believe it is following the will of the legislative
branch of government?'
        "This case is a perfect example of why the General Assembly provides for
the awarding of attorney fees. With regard to this now four-year delay in producing
records requested by relator, the majority finds that '[a] more reasonable inference
from the evidence is that the hours were reduced and "a fictional division" created
to retaliate for relator's records request and unfavorable press coverage
concerning the Warren Police Department.' (Emphasis added.) Such a finding,
while not needed to award attorney fees under the statute, certainly militates for




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                             SUPREME COURT OF OHIO




such an award. I applaud the majority for seeing its way clear to make such an
award in this case. The majority should have done so, however, based upon the
dictates of the law rather than on the basis of some amorphous, subjective weighing
process that requires a case-by-case determination by whoever happens, at any
particular moment, to be sitting in judgment." Id. at 628-630, 

640 N.E.2d 182

-183.
       {¶ 21} Accordingly, relator is entitled to an award of attorney fees and I
enthusiastically concur with the majority in so finding. The only way to effectively
enforce the Public Records Law is to make noncompliance hurt. The General
Assembly has provided such a remedy. We should enforce their wisdom and will.
                                         II
       {¶ 22} This complaint for a writ of mandamus was filed in this court on
September 26, 1994. It is now May 1995. Given that we are issuing one of the
great writs, it would seem that greater speed should be our guide -- especially when
the public information being sought is necessary for the public's need to know on a
timely basis.
                                         III
       {¶ 23} On September 7, 1994, this court decided State ex rel. Steckman v.
Jackson (1994), 

70 Ohio St.3d 420

, 

639 N.E.2d 83

. In that case, the court took
great pains to spell out how limited the exceptions to R.C. 149.43 really are. We
said that offense and incident reports (and we meant whether "routine" or not) are
subject to immediate release upon request. We made clear that Steckman applied
only in pending criminal cases and could not and should not be used to attempt to
thwart the release of public records which have no direct current connection with
the prosecution of a criminal matter. It is interesting to note that what criticism
Steckman has received has not been on the law of the case but only on what those
criticizing would like the law, for their purpose, to be. Some of us might even agree
with a different philosophical position, but our job is to follow and interpret what
the law says.




                                         12
                                January Term, 1995




       {¶ 24} While the respondent herein does not cite (and properly so)
Steckman as his reason for refusing relator's request for public records, he and his
counsel should certainly be aware of the case. Even a cursory reading of Steckman
as applied to the facts of the case now before us has to lead to the inescapable
conclusion that the records sought by relator should have been released to relator
long ago. Since the records have not been released, the granting of the requested
writ and attorney fees is entirely appropriate.
                                         IV
       {¶ 25} Accordingly, I concur with the judgment of the majority, but express
reservations concerning some of the reasoning set forth in the majority opinion.
       RESNICK and F.E. SWEENEY, JJ., concur in the foregoing opinion.
                               __________________




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