State ex rel. Thomas v. Ohio State University

[This opinion has been published in Ohio Official Reports at 

71 Ohio St.3d 245

.]




             THE STATE EX REL. THOMAS v. OHIO STATE UNIVERSITY.
        [Cite as State ex rel. Thomas v. Ohio State Univ., 

1994-Ohio-261

.]
Mandamus to compel release of names and work addresses of animal research
        scientists in documents already provided, but which had that information
        redacted, granted, when.
 (No. 94-1074—Submitted November 29, 1994—Decided December 20, 1994.)
                                      IN MANDAMUS.
                                  __________________
        {¶ 1} By letter dated May 2, 1994, relator, Shawn A. Thomas, an attorney,
requested from respondents, The Ohio State University ("OSU") and its Vice
President for Research, Professor Edward F. Hayes, certain information under the
state Public Records Act, R.C. 149.43. Thomas broadly requested information,
including:
        "1. All records *** held or recorded by The Ohio State University and
created between September 23, 1991 and May 2, 1994 *** regarding or related to
POET (Protect Our Earths Treasures), Students For Animals, SPARE (Save Pets
from Abuse Research and Euthanasia), Mr. Robin Russell, Ms. Ritchie Laymon,
Ms. Amy Achor, Mr. Shawn A. Thomas and/or any other pro-animal or humane
action group or individual.
        "2. All records *** created by or received by Edward F. Hayes, any
researcher or principal investigator at The Ohio State University, Herb Asher, Bill
Yonushonis, Steve McDonald, Earle Holland, Rich Tallman and/or any or all
'Research Deans' at The Ohio State University between September 23, 1991 and
May 2, 1994 *** regarding public records requests, policies, strategies, handling or
responding to public records requests."
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       {¶ 2} Thomas further requested that the records be "ready for pick up at
noon on May 9, 1994," and stated that he was prepared to pay for all actual
duplication fees up to an initial amount of fifty dollars.
       {¶ 3} On May 17, 1994, respondent, Steven J. McDonald, an Associate
Legal Counsel with OSU's Office of Legal Affairs, on behalf of OSU and Professor
Hayes, responded to Thomas' written request. Respondents claimed that parts of
Thomas' written request "were framed as broad discovery requests, not as requests
for specific public records, and are extremely vague, ambiguous, overbroad and
burdensome" and therefore, they were "unable to respond" to those portions of the
request.
       {¶ 4} However, McDonald reviewed the files of each of the OSU
employees named in Thomas' request "for documents from the specified time
periods that directly concern (a) the groups and individuals named in [Thomas']
letter, (b) any public records requests that those groups and individuals have made,
(c) Dr. Hayes' March 31, 1994 and April 13, 1994 memos, and (d) the May 11,
1994 meeting with principal investigators." McDonald stated that he had located
and copied ninety-two pages of the foregoing documents which would be available
at his office upon payment of a twenty-three dollar copying charge. Respondents
withheld (1) documents created by or already in the possession of Thomas or the
groups named in the request, (2) documents prepared by McDonald or at his request
as legal counsel, and (3) information disclosing the names, addresses, and telephone
numbers of individual researchers or investigators working on specific projects.
Thomas picked up copies of documents not withheld by respondents.
       {¶ 5} Thomas is seeking a writ of mandamus to compel respondents to
comply with R.C. 149.43 by making available to him unredacted copies of all
requested records. We issued an entry denying Thomas' request for a writ of
mandamus to the extent that his request broadly sought respondents to search for
records containing selected information. State ex rel. Fant v. Tober (Apr. 28, 1993),




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                                January Term, 1994




Cuyahoga App. No. 63737, unreported, affirmed in State ex rel. Fant v. Tober
(1993), 

68 Ohio St.3d 117

, 

623 N.E.2d 1202

. We granted a limited alternative writ
and set a schedule for the filing of records, briefs, and evidence.
       {¶ 6} The cause is now before this court following an in camera inspection
of the records.
                               __________________
       Shawn A. Thomas, pro se.
       Porter, Wright, Morris & Arthur and Kathleen M. Trafford, for respondents.
                               __________________
       Per Curiam.
       {¶ 7} Mandamus is the appropriate 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

. R.C. 149.43 generally is construed
liberally in favor of broad access, and any doubt must be 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

.
       {¶ 8} Respondents contend that the names and other information disclosing
the identity of the animal research scientists do not constitute records for purposes
of the Public Records Act. A "public record" is "any record that is kept by any
public office ***." R.C. 149.43(A)(1). R.C. 149.011(G) broadly defines "records"
to include "any *** device, or item *** received by *** any public office of the
state *** which serves to document the organization, functions, policies, decisions,
procedures, operations, or other activities of the office." State ex rel. Fant v.
Enright (1993), 

66 Ohio St.3d 186, 188

, 

610 N.E.2d 997, 999

.
       {¶ 9} Although respondents have withheld information concerning the
names, work departments, addresses, and telephone numbers of the scientists,
Thomas now contends that he only wants the "names and work addresses" of these
public employees.     Therefore, our analysis is limited only to the foregoing




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information. See, e.g., State ex rel. James v. Ohio State Univ. (1994), 

70 Ohio St.3d 168

, 

637 N.E.2d 911

 (tenure evaluators' names); State ex rel. Toledo Blade Co. v.
Univ. of Toledo Found. (1992), 

65 Ohio St.3d 258

, 

602 N.E.2d 1159

 (names of
donors); State ex rel. Dispatch Printing Co. v. Wells (1985), 

18 Ohio St.3d 382

, 18
OBR 437, 

481 N.E.2d 632

 (names and addresses of municipal civil service
members); Police & Fire Retirees of Ohio, Inc. v. Police & Firemen's Disability &
Pension Fund (1985), 

18 Ohio St.3d 231

, 18 OBR 289, 

480 N.E.2d 482

, (names
and addresses of members of disability and pension fund). The names and work
addresses of the animal research scientists serve to document the organization,
functions, and operations of OSU's animal research activities. See State ex rel.
Beacon Journal Publishing Co. v. Akron (1994), 

70 Ohio St.3d 605, 606

, 

640 N.E.2d 164, 166

 (Social Security numbers of city employees constitute "records"
for purposes of Public Records Act). Therefore, the names and work addresses of
the individual scientists were properly redacted from the provided records pursuant
to R.C. 149.43(A)(1). Exceptions to disclosure are strictly construed against the
custodian of the public records, and the burden to establish an exception is on the
custodian. James, 

70 Ohio St.3d at 169

, 

637 N.E.2d at 912

. R.C. 149.43(A)(1)
excepts from disclosure "records the release of which is prohibited by state or
federal law." Respondents generally assert that redaction of names and other
identifying information is proper when it is reasonably believed to be necessary to
protect the personal privacy and safety of the individual scientists and when the
redaction does not unduly inhibit the public's right to know the organization's
functions, policies, decisions, procedures, operations or other activities of the
public university.   More particularly, respondents assert that the "identity of
individuals engaged in specific scientific research projects using animals must be
found to be constitutionally protected from public disclosure."
       {¶ 10} Respondents appear to advocate a balancing test similar to that
adopted in the Freedom of Information Act ("FOIA"), the federal counterpart to




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                                 January Term, 1994




R.C. 149.43. For example, Section 552(b)(6), Title 5, U.S. Code allows federal
agencies to withhold information contained in "personnel and medical files and
similar files the disclosure of which would constitute a clearly unwarranted
invasion of personal privacy." Pursuant to this FOIA exemption, the court must
balance the privacy interest of the individual against the public interest in
disclosure. Dept. of the Air Force v. Rose (1976), 

425 U.S. 352, 372

, 

96 S.Ct. 1592, 1604

, 

48 L.Ed.2d 11, 27

. Respondents cite Lesar v. United States Dept. of Justice
(C.A.D.C.1980), 

636 F.2d 472

, which relied on a similar FOIA exemption
regarding investigatory records compiled for law enforcement purposes. See
Section 552(b)(7)(C), Title 5, U.S. Code. However, as respondents concede, FOIA
does not apply here, and R.C. 149.43 contains no similar personal-privacy
exception.
       {¶ 11} In State ex rel. Toledo Blade Co., 

65 Ohio St.3d at 266

, 

602 N.E.2d at 1164-1165

, this court rejected contentions by the University of Toledo
Foundation that federal and state common-law privacy rights prohibit disclosure of
donor names by holding:
       "It is the role of the General Assembly to balance the competing concerns
of the public's right to know and individual citizens' right to keep private certain
information that becomes part of the records of public offices. The General
Assembly has done so, as shown by numerous statutory exceptions to R.C.
149.43(B), found both in the statute itself and in other parts of the Revised Code."
       {¶ 12} The right to privacy has several constitutional meanings, including
the Fourth Amendment's restriction on government searches and seizures and the
due process and equal protection right to engage in highly personal activities; more
specifically, it relates in a due process and equal protection context to certain rights
of freedom of choice in marital, sexual, and reproductive matters. 3 Rotunda &
Nowak, Treatise on Constitutional Law (2 Ed.1992) 298, Section 18.26. Names
and work addresses do not appear to implicate the constitutional right of privacy.




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                             SUPREME COURT OF OHIO




       {¶ 13} However, in State ex rel. Beacon Journal Publishing Co., supra, the
court recently determined that federal constitutional privacy rights forbid disclosure
of Social Security numbers ("SSNs") under R.C. 149.43 in the particular
circumstances involved.     Although this court engaged in weighing interests
benefited by disclosure against privacy interests, we emphasized that "[d]ue to the
federal legislative scheme involving the use of SSNs, city employees have a
legitimate expectation of privacy in their SSNs." Id. at 609, 640 N.E.2d at 167.
There is no similar legislative scheme protecting the names and work addresses of
public employees in general or animal research scientists in particular.
Additionally, although there is evidence of an increase in reported incidents of
threats, harassment, and violence against animal research scientists, there does not
appear to be the same "high potential for *** victimization" found by the court to
be apparent from the disclosure of SSNs. Id. at 612, 640 N.E.2d at 169. Therefore,
respondents' assertion that the constitutional right to privacy excepts names and
work addresses from disclosure under R.C. 149.43 is without merit.
       {¶ 14} Respondents further claim that the disclosure of the names and work
addresses of animal research scientists would have a chilling effect on their
constitutional right to academic freedom. Respondents contend that "[i]ndividual
faculty members understandably may be reluctant to continue significant,
medically important research, if by doing so they may jeopardize their own privacy,
security and physical safety and that of their families and neighbors." Id. We
rejected a similar contention by OSU in seeking to withhold tenure evaluators'
names in James, finding the claimed injury to academic freedom of not receiving
candid information in the tenure process to be "'remote and attenuated.'" James, 

70 Ohio St.3d at 171

, 

637 N.E.2d at 913

, citing Univ. of Pennsylvania v. Equal Emp.
Opportunity Comm. (1990), 

493 U.S. 182, 200

, 

110 S.Ct. 577, 588

, 

107 L.Ed.2d 571, 589

. We further noted:




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                               January Term, 1994




       "Even if we were convinced that the integrity of the promotion and tenure
process would be diminished by the disclosure of the documents at issue, this is a
public policy consideration which it is not our place to evaluate. As we have
recognized in State ex rel. Multimedia v. Whalen (1990), 

48 Ohio St.3d 41

, 

549 N.E.2d 167

, 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." James, 

70 Ohio St.3d at 172

, 

637 N.E.2d at 913-914

.
       {¶ 15} Therefore, while there is a concern that criminal conduct might result
from the release of names and work addresses of animal research scientists under
R.C. 149.43, the "answer is that criminal conduct should be punished by criminal
sanctions" or that the General Assembly should consider a personal privacy
exemption similar to those in FOIA, rather than resolving the matter through
judicial expansion of the constitutional rights to privacy and academic freedom to
forbid their disclosure. Cf. State ex rel. Beacon Journal Publishing Co., 70 Ohio
St.3d at 618, 

640 N.E.2d at 173

 (Douglas, J., Dissenting). Thomas is entitled to the
names and work addresses of the individual scientists which respondents had
improperly redacted from the records provided to him.
       {¶ 16} Respondents contend that they properly withheld other records from
Thomas based upon attorney-client privilege. The attorney-client privilege is based
on the premise that confidences shared in the attorney-client relationship are to
remain confidential. Moskovitz v. Mt. Sinai Med. Ctr. (1994), 

69 Ohio St.3d 638, 660

, 

635 N.E.2d 331, 349

. Records of communications between attorneys and their
state-government clients pertaining to the attorneys' legal advice are excepted from
disclosure under R.C. 149.43(A)(1) since the release of these records is prohibited
by state law. See Woodman v. Lakewood (1988), 

44 Ohio App.3d 118

, 

541 N.E.2d 1084

; State ex rel. Natl. Broadcasting Co. v. Cleveland (1992), 

82 Ohio App.3d 7

                              SUPREME COURT OF OHIO




202, 

611 N.E.2d 838

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

57 Ohio St.3d 77, 81

, 

566 N.E.2d 146, 150

 (on remand, court of appeals
ordered to consider claimed attorney-client privilege excepting records from
release under R.C. 149.43).
       {¶ 17} The records withheld by respondents based on the attorney-client
privilege included documents which consisted of communications between
McDonald, an attorney employed by OSU's Office of Legal Affairs, and certain
OSU employees pertaining to public-records requests made by Thomas and POET.
Thomas claims that the attorney-client privilege does not apply since McDonald
was never appointed as an Assistant Attorney General. R.C. 3345.15 provides:
       "The Attorney General shall be the attorney for each state college and
university and shall provide legal advice in all matters relating to its powers and
duties."
       {¶ 18} Under R.C. 109.05, the Attorney General "may appoint such
employees as are necessary." In October 1991, OSU and Attorney General Lee
Fisher entered into a "Memorandum of Understanding" regarding the provision of
legal services to OSU. Section III(B) of the agreement allows OSU to employ
attorneys to carry out university business with the condition that "the Attorney
General must approve such appointments and the Attorney General shall appoint
such attorneys as Assistant Attorneys General, with appropriate limitations or
conditions of appointment as may be deemed necessary by either the Attorney
General or the General Counsel." According to an affidavit of Christopher M.
Culley, Assistant Attorney General, Chief, Education Section, McDonald was
approved as an Assistant Attorney General through an interview process and had
been in this position since his employment at OSU, with authorization to practice
law on behalf of OSU. 

Id.

       {¶ 19} Thomas claims that absent evidence of a letter of appointment by the
Attorney General, respondents cannot meet their burden to establish the existence




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                                January Term, 1994




of an attorney-client privilege as to the records of communications concerning
McDonald's legal advice on the public records requests of Thomas and POET.
Thomas cites State ex rel. Walton v. Crabbe (1924), 109 Ohio St.623, 

143 N.E. 189

, State ex rel. Renner v. Guilbert (1898), 

58 Ohio St. 637

, 

51 N.E. 117

 and
Columbian Building & Loan Co. v. Evatt (B.T.A.1940), 

18 O.O. 33

, 

6 Ohio Supp. 116

, in support of his contention that a letter of appointment from the Attorney
General is necessary to establish authority on the part of a university attorney to
represent the university. However, none of the foregoing cases hold that an
appointment by the Attorney General can only be established by evidence of a letter
of appointment. In the instant case, Culley's affidavit provides sufficient evidence
that McDonald was properly appointed as an Assistant Attorney General.
       {¶ 20} Thomas alternatively contends, without citation of authority, that the
attorney[-]client   privilege   "does   not   extend   beyond   [Thomas']    actual
communications to include second or third generation recitations of the gist of his
advice." (Relator's Brief, P. 21) However, the attorney-client privilege applies to
documents containing communications between members of the public entity
represented about the legal advice given. See State ex rel. Natl. Broadcasting Co.,
82 Ohio App.3d at 207, 

611 N.E.2d at 841

. Thus, respondents properly withheld
these documents based on attorney-client privilege.
       {¶ 21} Finally, Thomas claims that he is entitled to an attorney-fees award.
R.C. 149.43(C) allows for an award of reasonable attorney fees to the person that
instituted the mandamus action. Although federal courts are split as to the issue of
a pro se litigant's entitlement to an award of attorney fees under FOIA, see,
generally, Annotation, Pro Se Litigant as Entitled to Award of Attorneys' Fees for
Value of His Own Services Rendered in Lawsuit Under Freedom of Information
Act (5 USCS { 552) (1982), 56 A.L.R. Fed 573, this court has consistently held that
pro se litigants are not entitled to attorney fees under R.C. 149.43. State ex rel.
Fant v. Mengel (1991), 

62 Ohio St.3d 197

, 

580 N.E.2d 1085

; Fant v. Bd. of




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                             SUPREME COURT OF OHIO




Trustees, Regional Transit Auth. (1990), 

50 Ohio St.3d 72

, 

552 N.E.2d 639

. Thus,
Thomas' request for attorney fees is denied.
       {¶ 22} Accordingly, based on the foregoing, Thomas is granted a writ of
mandamus to compel the release of names and work addresses of the animal
research scientists in the documents already provided to him by respondents which
had redacted that information. In all other respects, the writ is denied.
                                                                Writ granted in part
                                                                  and denied in part.
                               __________________
       MOYER, C.J., A.W. SWEENEY, DOUGLAS, WRIGHT, RESNICK, F.E. SWEENEY
and PFEIFER, JJ., concur.
                               __________________




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