State ex rel. Schneider v. Kreiner

[This opinion has been published in Ohio Official Reports at 

83 Ohio St.3d 203

.]




                    THE STATE EX REL. SCHNEIDER v. KREINER.
            [Cite as State ex rel. Schneider v. Kreiner, 

1998-Ohio-271

.]
Public    records—Exemptions—R.C.            2317.023(B)—Disclosure          of    mediation
         communication—Mandamus to compel Hamilton County Municipal Court
         Private Complaint Mediation Service Director to provide relator access to
         “Preliminary Complaint Form” used by mediator during mediation
         between relator and his ex-wife—Writ denied, when.
    (No. 97-1331—Submitted May 26, 1998—Decided September 23, 1998.)
                                      IN MANDAMUS
                                  __________________
         {¶ 1} In 1988, relator, Tom Schneider (“Schneider”), married Theresa
Schneider. They had two children. In 1994, the Schneiders divorced and entered
into a shared parenting agreement. Subsequently, criminal charges were filed
against Schneider for violating the agreement. The criminal case was referred to
the Private Complaint Mediation Service (“Mediation Service”). The Mediation
Service, established by the Hamilton County Municipal Court, mediates disputes
between parties in certain municipal court cases.
         {¶ 2} During a mediation of this type, the mediator listens to the positions
of both parties and then asks each party to agree on the issues and to recommend
possible solutions. If an agreement is reached, the mediation concludes, but the
parties do not sign a written agreement. However, the mediator may suggest that
each party take notes regarding the requirements of the agreement.                   At the
conclusion of the mediation, a “Statement of Voluntary Settlement” is signed by
the parties and filed with the court.          In addition, the mediator completes a
“Preliminary Complaint Form.” On the form, the mediator describes the allegations
made by the plaintiff, denotes the relationship between the parties, and compiles
                             SUPREME COURT OF OHIO




information relating to the parties and the status of the dispute. The mediator also
describes the disposition of the dispute under a section entitled “Hearing
Disposition.” Under another section, the mediator states what future action may be
taken if the agreement is broken and, under a “Comments” section, may make
personal observations about the mediation and the dispute. This form is not shown
to the parties and, unlike the Statement of Voluntary Settlement, is not signed by
them.
        {¶ 3} In December 1996, the Mediation Service mediated the case.
Schneider and his former spouse agreed to perform and refrain from performing
certain acts in exchange for the dismissal of the criminal charges against Schneider.
The parties signed the Statement of Voluntary Settlement form indicating their
agreement.
        {¶ 4} Subsequently, Schneider requested access to the entire mediation file
from respondent, Cathleen Kreiner, director of the Mediation Service. Included in
the file was a copy of the complaint form prepared by the mediator. Kreiner denied
access to the file. Kreiner later offered to provide Schneider a copy of the Statement
of Voluntary Settlement and a disposition report of the mediation service, both of
which were filed in the office of the clerk of courts.
        {¶ 5} Schneider then filed a complaint requesting a writ of mandamus to
compel Kreiner to provide him access to the complaint form. Schneider also
requested attorney fees. This court granted an alternative writ and issued a schedule
for the presentation of evidence and briefs.
        {¶ 6} This cause is now before the court for a consideration of Schneider’s
request for oral argument as well as the merits.
                               __________________
        Kimpel, Hyland, Weinkam & Goodson, William M. Gustavson and Nicole
A. Tipton, for relator.




                                          2
                               January Term, 1998




       Joseph T. Deters, Hamilton County Prosecuting Attorney, and Christian J.
Schaefer, Assistant Prosecuting Attorney, for respondent.
                              __________________
       MOYER, C.J.
       {¶ 7} For the reasons that follow, we deny relator’s request for oral
argument and his request for a writ of mandamus.
                                         I
       {¶ 8} Relator requests oral argument “[i]n the event that the Court finds the
decisional process would be aided by oral argument * * *.”
       {¶ 9} We deny this request because oral argument would not be beneficial
to resolution of this appeal. None of the issues raised is so complex that oral
argument would assist the court in resolution of this cause. Further, relator has
neither established nor argued any factors warranting oral argument here. State ex
rel. McGinty v. Cleveland City School Dist. Bd. of Edn. (1998), 

81 Ohio St.3d 283, 286

, 

690 N.E.2d 1273, 1276

.
                                         II
       {¶ 10} Relator contends that he is entitled to a writ of mandamus under R.C.
149.43. We have construed R.C. 149.43 “ ‘to ensure that governmental records be
open and made available to the public * * * subject to only a few very limited and
narrow exceptions.’ ” State ex rel. The Plain Dealer v. Ohio Dept. of Ins. (1997),

80 Ohio St.3d 513, 518

, 

687 N.E.2d 661, 668

, quoting State ex rel. Williams v.
Cleveland (1992), 

64 Ohio St.3d 544, 549

, 

597 N.E.2d 147, 151

.
       {¶ 11} Among those exceptions in effect at the time of relator’s request was
former R.C. 149.43(A)(1)(k), 146 Ohio Laws, Part III, 4661, which provided that
public records do not include “[r]ecords the release of which is prohibited by state




                                         3
                                 SUPREME COURT OF OHIO




or federal law.”1 Respondent asserts that R.C. 2317.023 exempts the requested
complaint form from disclosure as a confidential mediation communication. We
agree with the respondent.
        {¶ 12} R.C. 2317.023 provides:
        “(A) As used in this section:
        “(1) ‘Mediation’ means a nonbinding process for the resolution of a dispute
in which both of the following apply:
        “(a) A person who is not a party to the dispute serves as mediator to assist
the parties to the dispute in negotiating contested issues.
        “(b) A court, administrative agency, not-for-profit community mediation
provider, or other public body appoints the mediator or refers the dispute to the
mediator, or the parties, engage the mediator.
        “(2) ‘Mediation communication’ means a communication made in the
course of and relating to the subject matter of a mediation.
        “(B) A mediation communication is confidential. Except as provided in
division (C) of this section, no person shall disclose a mediation communication in
a civil proceeding or in an administrative proceeding.” (Emphasis added.)
        {¶ 13} Pursuant to the statute, the initial question is whether the complaint
form sought by Schneider is a “mediation communication” as defined by the statute.
R.C. 2317.023(A)(2) defines a mediation communication as “a communication
made in the course of and relating to the subject matter of the mediation.” The
document sought here is a complaint form completed by the mediator. The
mediator, in completing the form, describes information relating to the parties and
the nature of the dispute. Significantly, the mediator also describes the disposition




1. This provision is now R.C. 149.43(A)(1)(p). R.C. 149.43 now provides a specific exemption for
“[r]ecords containing information that is confidential under section 2317.023 or 4112.05 of the
Revised Code.” R.C. 149.43(A)(1)(i).




                                               4
                                January Term, 1998




of the dispute under a section entitled “Hearing Disposition,” and may make
personal observations about the dispute under a separate section.
       {¶ 14} Under the statutory definition, it is clear that this form is a mediation
communication. It is made in the course of the mediation by the mediator. The
mediator compiles information on the form and then describes the outcome. The
form is also related to the subject matter of the mediation. The form contains
information about the dispute between the parties. It also reflects the thoughts and
impressions of the mediator as to the outcome of the mediation, whether and what
action shall be taken in the event of breach of the agreement, and the mediator’s
own observations about the mediation.
       {¶ 15} R.C. 2317.023(B) states that “[a] mediation communication is
confidential.” The words of this statute are clear. Mediation communications are
confidential and may not be disclosed. “[A]n unambiguous statute means what it
says.” Hakim v. Kosydar (1977), 

49 Ohio St.2d 161, 164

, 

3 O.O.3d 211, 213

, 

359 N.E.2d 1371, 1373

. We give words in statutes their plain and ordinary meaning
unless otherwise defined. Coventry Towers, Inc. v. Strongsville (1985), 

18 Ohio St.3d 120, 122

, 18 OBR 151, 152, 

480 N.E.2d 412, 414

. Accordingly, having
determined that the document sought by relator is a mediation communication, we
are compelled by the words of the statute to conclude that the form is confidential
and may not be disclosed, unless one of the exceptions enumerated in R.C.
2317.023(C) applies to the relator’s cause.
       {¶ 16} Relator contends that the confidentiality requirement of R.C.
2317.023(B) does not apply because R.C. 2317.023(C)(1) and (4) preclude the
application of R.C. 2317.023(B). We disagree.
       {¶ 17} R.C. 2317.023(C) provides:
       “Division (B) of this section does not apply in the following circumstances:




                                          5
                              SUPREME COURT OF OHIO




        “(1) * * * [T]o the disclosure by any person of a mediation communication
made by a mediator if all parties to the mediation and the mediator consent to the
disclosure;
        “***
        “(4) To the disclosure of a mediation communication if a court, after a
hearing, determines that the disclosure does not circumvent Evidence Rule 408,
that the disclosure is necessary in the particular case to prevent a manifest injustice,
and that the necessity for disclosure is of sufficient magnitude to outweigh the
importance of protecting the general requirement of confidentiality in mediation
proceedings.”
        {¶ 18} R.C. 2317.023(C)(1) does not prevent the application of R.C.
2317.023(B) to this cause. There is no evidence that either relator’s former spouse
or the mediator has consented to disclosure of the complaint form.
        {¶ 19} Similarly, R.C. 2317.023(C)(4) does not apply to allow disclosure of
the complaint form compiled by the mediator.            The plain language of R.C.
2317.023(C)(4) requires a hearing to determine whether this exception to
confidentiality is applicable. The presence of a hearing requirement presupposes
that the parties will argue the applicability of the exception at a hearing conducted
solely for that purpose. There has been no such hearing or request for such a
hearing in this cause.
        {¶ 20} Even applying the substantive provisions of this provision, the
relator’s arguments lack merit. Disclosure of the complaint form compiled by the
mediator is not necessary to prevent a manifest injustice, nor is the necessity for
disclosure of sufficient magnitude to outweigh the importance of protecting the
general requirement of confidentiality. Relator’s sole assertion for requesting the
document is that he may face potential criminal charges if he does not comply with
the agreement reached in mediation. However, the mere possibility that the relator
may be involved in future litigation cannot possibly establish the presence of a



                                           6
                                  January Term, 1998




manifest injustice, as required by the statutory exception. Such a conclusion does
not comport with the common meaning of “manifest injustice,” which is defined as
a clear or openly unjust act. See Webster’s Third New International Dictionary
(1986) 1164, 1375. The plain meaning of the words of the statute requires more
than a possibility of future litigation.
        {¶ 21} Likewise, the possibility of future litigation does not create a
necessity for disclosure of a magnitude sufficient to outweigh the general
requirement of confidentiality. Every agreement in mediation may be breached.
Such a breach could result in future litigation. However, this possibility cannot
outweigh the plain words of R.C. 2317.023(B), which establish a requirement of
confidentiality.     By those words, the General Assembly has determined that
confidentiality is a means to encourage the use of mediation and frankness within
mediation sessions. Were we to agree with the relator’s argument, we would
severely undermine that determination by the General Assembly, as reflected in the
clear words of the statute. Accordingly, R.C. 2317.023(C)(4) does not apply to
relator’s request.
        {¶ 22} Finally, relator asserts that R.C. 2317.023(B) does not apply to this
cause because the statute was not effective at the time that the record was created,
i.e., when the mediation session occurred. R.C. 2317.023 became effective on
January 27, 1997, which was after the record was created but before relator
requested the form and filed this mandamus action. 146 Ohio Laws, Part II, 4033.
        {¶ 23} This contention also is meritless. R.C. 2317.023 was effective at the
time of the request for the form. The date the form was created is not relevant for
the purposes of R.C. 149.43. “Since the statute merely deals with record disclosure,
not record keeping, only a prospective duty is imposed upon those maintaining
public records.” State ex rel. Beacon Journal Publishing Co. v. Univ. of Akron
(1980), 

64 Ohio St.2d 392, 396

, 

18 O.O.3d 534, 537

, 

415 N.E.2d 310, 313

.




                                           7
                              SUPREME COURT OF OHIO




          {¶ 24} Accordingly, there is no authority to overcome the confidentiality
requirement of R.C. 2317.023(B). The complaint form sought by the relator is a
mediation communication which is not subject to disclosure under R.C. 149.43
because R.C. 2317.023(B) clearly provides for its confidentiality. Therefore, we
deny the relator’s request for a writ of mandamus, and his request for attorney fees
is also denied.
                                                                       Writ denied.
          RESNICK, F.E. SWEENEY, PFEIFER, COOK and LUNDBERG STRATTON, JJ.,
concur.
          DOUGLAS, J., dissents.
                               __________________




                                          8