State ex rel. O'shea & Assocs. Co., L.P.A. v. Cuyahoga Metro. Hous. Auth.

• Decision Date: 19 January 2012
• Docket Number: No. 2010–1536.,2010–1536.
• Citation: 131 Ohio St.3d 149,2012 -Ohio- 115,962 N.E.2d 297
• Parties: The STATE ex rel. O'SHEA & ASSOCIATES COMPANY, L.P.A., Appellee, v. CUYAHOGA METROPOLITAN HOUSING AUTHORITY, Appellant.
• Court: Ohio Supreme Court

131 Ohio St.3d 149

2012 -Ohio- 115

962 N.E.2d 297

The STATE ex rel. O'SHEA & ASSOCIATES COMPANY, L.P.A., Appellee,

v.CUYAHOGA METROPOLITAN HOUSING AUTHORITY, Appellant.

No. 2010–1536.

Supreme Court of Ohio.

Submitted Oct. 5, 2011.Decided Jan. 19, 2012.

O'Shea & Associates Co., L.P.A., and Michael J. O'Shea, Rocky River, for appellee.

Weston Hurd, L.L.P., Shawn W. Maestle, and Hilary S. Taylor, Cleveland, for appellant.

Steven M. Dettelbach, United States Attorney, Kent Penhallurick, Assistant United States Attorney, and Daniel J. Lenerz, United States Department of Justice, urging reversal for amicus curiae, United States of America.LUNDBERG STRATTON, J.

[Ohio St.3d 149] {¶ 1} This is an appeal from a judgment granting appellee, O'Shea & Associates Company, L.P.A. (“O'Shea”), a writ of mandamus to compel appellant, Cuyahoga Metropolitan Housing Authority (“CMHA”), to provide copies of all records that document any and all instances of lead poisoning in the last 15 years in any dwelling owned or operated by CMHA and awarding O'Shea $7,537.50 in attorney fees. Because portions of the requested copies are not obtainable pursuant to the Public Records Act, R.C. 149.43, we reverse the judgment of the court of appeals in part and deny the writ in part. We also reverse the judgment awarding O'Shea attorney fees.

Facts

{¶ 2} O'Shea is an Ohio law firm located in Rocky River, Ohio. On March 26, 2009, O'Shea requested that CMHA provide it with the following:

{¶ 3} “1. Copies of all liability insurance contracts which cover any and all premises liability issues for the last 20 years for any and all buildings owned or operated by CMHA;

{¶ 4} “2. Copies of all minutes of all meetings (for the last 10 years) wherein liability insurance and/or the process, methods and sources of paying legal claims for personal injury claims against CMHA are either discussed or decided; and

{¶ 5} “3. Copies of all documents which document any and all instances of lead poisoning in the last 15 years in any dwelling owned or operated by CMHA.”

[Ohio St.3d 150] {¶ 6} By letter dated April 10, 2009, CMHA responded to O'Shea's request and advised O'Shea that certain insurance policies and meeting minutes were available at its office for inspection and copying. For the lead-poisoning records in the third request, CMHA claimed that the requested records were not public records.

{¶ 7} On May 11, 2009, O'Shea filed a verified petition in the Court of Appeals for Cuyahoga County for a writ of mandamus to compel CMHA to produce all the requested records. O'Shea also requested an award of attorney fees and statutory damages. CMHA filed a motion to dismiss O'Shea's petition because CMHA had produced every insurance policy from 2006 through the present in response to the first item of the request, and for the second and third items, the requests were overbroad and improperly sought selected information rather than specific records.

{¶ 8} In January 2010, the court of appeals granted CMHA's motion to dismiss regarding item two (minutes for meetings in which liability insurance or the payment of personal-injury claims were discussed) because the request improperly sought information rather than records. The court granted leave for the filing of additional briefs and motions as to the remaining requests for the insurance policies and the lead-poisoning records.

{¶ 9} O'Shea moved for summary judgment on the issue of CMHA's failure to provide the lead-poisoning documents. In response, CMHA claimed that (1) O'Shea's request for the lead-poisoning documents was an improper request for information, (2) documents containing lead-paint incidents involving children were not records for purposes of the Public Records Act, and (3) the documents were exempt from disclosure. CMHA attached an affidavit from its chief general counsel in which she stated that when individuals inform CMHA of an elevated level of lead in their blood for themselves or one of their children, the CMHA handles the allegation as a potential legal claim. As part of its investigation, CMHA asks the individual to complete a questionnaire and provide an authorization for the release of medical information.

{¶ 10} CMHA attached copies of the forms to the affidavit. However, the attached forms refer only to reports for children. CMHA's questionnaire states that “[t]he purpose of this questionnaire is to determine the likely sources of lead exposure and to assist the Lead Risk Assessor in determining where environmental sampling should be conducted” and that “[a]ll information is confidential and will be maintained only at the CMHA Office of Environmental Affairs.” The questionnaire asks for resident information, including the name, address, and telephone number of the resident and any children's names and dates of birth. It then requests general information, including where the child was likely exposed to lead, when the family moved into the home, the addresses, ages, and conditions [Ohio St.3d 151] of the dwellings in which the child resided in the past 12 months, and the dates of residency, and similar information if the child is cared for away from home. The questionnaire continues with queries designed to determine the child's exposure to lead, including lead-based paint and lead-contaminated dust hazards, lead-in-soil hazards, occupational and hobby-related hazards, child-behavior risk factors, and other household-risk factors. For the occupational hazards, the questionnaire requests the family or other occupants' names, places of employment, jobs, and probable lead exposure on the job.

{¶ 11} CMHA's authorization for the release of medical information¹ is used to obtain a child's medical records held by the Cleveland Department of Public Health Lead Poisoning Prevention Program. This form also asks for the name of the parent or guardian of the minor child, the name, age, and address of the child, and the parent's or guardian's signature and Social Security number.

{¶ 12} On May 25, 2010, the court of appeals granted O'Shea's motion for summary judgment regarding the request for lead-poisoning documents and ordered CMHA to provide “ ‘[c]opies of all documents which document any and all instances of lead poisoning in the last 15 years in any dwelling owned or operated by CMHA,’ including—but not limited to—copies of each ‘CMHA EBL Resident Questionnaire’ (“Questionnaire”) and ‘CMHA Authorization for Release of Medical Information.’ ” The court, however, ordered CMHA to redact Social Security numbers from the completed forms. The court of appeals determined that O'Shea's request for lead-poisoning documents was not an improper request for information, the documents were records subject to the Public Records Act, and the documents were not exempt from disclosure.

{¶ 13} The court of appeals also awarded O'Shea $1,000 in statutory damages and granted leave to O'Shea to move for attorney fees.

{¶ 14} CMHA filed a motion for reconsideration and submitted evidence for the first time that purported to show—based on counsel's “information and belief”—that CMHA receives funding from the federal government that is administered through the United States Department of Housing and Urban Development (“HUD”). As a condition of its receipt of federal funding, CMHA is required to comply with all regulations and orders issued by HUD, including the Federal Privacy Act, Section 552a, Title 5, U.S.Code. CMHA argued that if it complied [Ohio St.3d 152] with the court's May 25, 2010 order, it would be in violation of HUD requirements related to protecting the privacy of public-housing residents.

{¶ 15} On July 20, 2010, the court of appeals entered its judgment in the case, reiterating the relief granted in its previous orders and also granting O'Shea $7,537.50 in attorney fees. The court of appeals also denied CMHA's motion for reconsideration.

{¶ 16} This cause is now before the court upon CMHA's appeal as of right. The parties submitted briefs, and the United States submitted amicus curiae briefs in support of CMHA.²

Legal Analysis

Mandamus in Public–Records Cases

{¶ 17} “Mandamus is the appropriate remedy to compel compliance with R.C. 149.43, Ohio's Public Records Act.” State ex rel. Physicians Commt. for Responsible Medicine v. Ohio State Univ. Bd. of Trustees, 108 Ohio St.3d 288, 2006-Ohio-903, 843 N.E.2d 174, ¶ 6; R.C. 149.43(C)(1). “We construe the Public Records Act liberally in favor of broad access and resolve any doubt in favor of disclosure of public records.” State ex rel. Rocker v. Guernsey Cty. Sheriff's Office, 126 Ohio St.3d 224, 2010-Ohio-3288, 932 N.E.2d 327, ¶ 6.

{¶ 18} The parties do not dispute that CMHA is a public office for purposes of R.C. 149.43. CMHA instead claims that the court of appeals erred in granting the writ of mandamus to compel it to provide copies of lead-poisoning documents because O'Shea's request for these documents constituted an overbroad request for records, the documents are not records subject to R.C. 149.43, and the documents are exempt from disclosure under R.C. 149.43.

A Request for Documents, Not Information

{¶ 19} CMHA first contends that O'Shea's request for lead-poisoning documents was improper because it was ambiguous and overbroad, and it sought selected information instead of specific records. “ ‘[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. Taxpayers Coalition v. Lakewood (1999), 86 Ohio St.3d 385, 391, 715 N.E.2d 179, quoting State ex rel. Fant v. Tober (May 20, 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 [Ohio St.3d 153] R.C. 149.43.” State ex rel. Morgan v. New Lexington, 112 Ohio St.3d 33, 2006-Ohio-6365, 857 N.E.2d 1208, ¶ 30.

{¶ 20} O'Shea's request was...