State ex rel. Strothers v. Wertheim

Decision Date22 October 1997
Docket NumberNo. 97-187,97-187
Citation684 N.E.2d 1239,80 Ohio St.3d 155
Parties, 26 Media L. Rep. 1179 The STATE ex rel. STROTHERS, Appellant, v. WERTHEIM, Appellee.
CourtOhio Supreme Court

Gerald O. Strothers, Jr., pro se.

Porter, Wright, Morris & Arthur, Richard M. Markus and Tracey L. Turnbull, Cleveland, for appellee.

DOUGLAS, Justice.

Today we are again called upon to decide what constitutes a "public office" and what records are "public records" for purposes of the Public Records Act. The Citizens of Cuyahoga County Ombudsman Office is a private nonprofit corporation, supported by public funds, established for the purpose of assisting the citizens of Cuyahoga County in resolving complaints against agencies of the county government. The primary issue in this case is whether the Ombudsman Office is a "public office" as defined by R.C. 149.011(A) and thereby subject to the public records disclosure requirements of R.C. 149.43. A secondary issue involves whether any of the documents appellant seeks are excepted from disclosure.

I

R.C. 149.011(A) defines "[p]ublic office" as "any state agency, public institution, political subdivision, or any other organized body, office, agency, institution, or entity established by the laws of this state for the exercise of any function of government." (Emphasis added.) R.C. 149.43(A)(1) defines "public record" as "any record that is kept by any public office," subject to specific exceptions enumerated in the statute. Therefore, if the Ombudsman Office is a public office, it must comply, absent any applicable exception, with the disclosure requirements of R.C. 149.43.

Appellee contends that appellant's request for records must fail because the Ombudsman Office is a private, nonprofit corporation that performs its own unique function and is not a "public office" pursuant to R.C. 149.011(A). In State ex rel. Fostoria Daily Review Co. v. Fostoria Hosp. Assn. (1988), 40 Ohio St.3d 10, 531 N.E.2d 313, we specifically rejected the argument that R.C. 149.43 was not applicable where the entity was a private, nonprofit corporation supported by public funds. In State ex rel. Fox v. Cuyahoga Cty. Hosp. Sys. (1988), 39 Ohio St.3d 108, 529 N.E.2d 443, paragraph one of the syllabus, this court held that "[a] public hospital, which renders a public service to residents of a county and which is supported by public taxation, is a 'public institution' and thus a 'public office' pursuant to R.C. 149.011(A), making it subject to the public records disclosure requirements of R.C. 149.43." The entity before us is no different. The Ombudsman Office receives support from public taxation. The Ombudsman Office clearly performs a public service in seeking to curtail public agency abuse by investigating and mediating private citizens' complaints about government.

Time and time again we have held that R.C. 149.43 must be construed liberally in favor of broad access, and any doubt should be resolved in favor of disclosure of public records. See, e.g., State ex rel. Cincinnati Enquirer v. Hamilton Cty. (1996), 75 Ohio St.3d 374, 376, 662 N.E.2d 334, 336. In addition, "doubts as to the 'public' status of any entity should be resolved in favor of finding it subject to the disclosure statute." State ex rel. Toledo Blade Co. v. Univ. of Toledo Found. (1992), 65 Ohio St.3d 258, 261, 602 N.E.2d 1159, 1161.

The Ombudsman Office is unquestionably a publicly funded agency that acts as an intermediary between the citizens and government of Cuyahoga County. The activities of the Ombudsman Office are inextricably intertwined with the functions performed by Cuyahoga County government agencies. In fact, in documents submitted to this court, the Ombudsman Office refers to its relationship with the Cuyahoga County Commissioners as a "partnership." The Ombudsman Office monitors Cuyahoga County government to ensure accessibility, quality, and effectiveness, and additionally provides oversight for some county services. The Ombudsman Office is required to file with the county commissioners an annual accounting of all public funds it receives. The Ombudsman Office, it appears, risks the loss of public funding if it performs its duties unsatisfactorily. Since funding for the Ombudsman Office comes primarily from the county commissioners, it is obvious that the commissioners maintain some control over the entity. Accordingly, even a cursory review of this court's prior case law interpreting R.C. 149.43 and 149.011(A) leads to the inescapable conclusion that the Ombudsman Office is a "public office" and thus subject to the Public Records Act.

II

The appellee contends, and the court of appeals found, in the alternative, that if the Ombudsman Office is a public office, many of the documents appellant seeks would be exempt from disclosure under R.C. 2151.421. We disagree.

R.C. 2151.421 governs the reporting and investigating of incidents of child abuse and neglect. R.C. 2151.421(H) states that reports made pursuant to this section are confidential. The Cuyahoga County Court of Appeals stated in State ex rel. Munici v. Kovacic (June 15, 1994), Cuyahoga App. No. 64818, unreported, 1994 WL 264265, that "[t]he thrust of R.C. 2151.421 is directed to the children services boards or the departments of human services." It is the responsibility of the departments of human services and children services boards to investigate allegations of child abuse and neglect, and the reports that are mandated by R.C. 2151.421 are prepared by those social service agencies. Thus, records prepared by the Ombudsman Office in investigating complaints of child abuse and neglect are not excepted by R.C. 2151.421.

III

Appellee additionally argues that the records appellant seeks are confidential law enforcement investigatory records excepted from disclosure pursuant to R.C. 149.43(A). R.C. 149.43(A)(2) provides that a confidential law enforcement investigatory record is " * * * any record that pertains to a law enforcement matter." (Emphasis added.) The records sought by appellant are not protected from disclosure because they do not pertain to a law enforcement matter. As noted previously, pursuant to R.C. 2151.421, it is the responsibility of the departments of human services and children services boards to investigate allegations of child abuse and neglect. The Ombudsman Office is not a law enforcement agency, and it has no legally mandated enforcement or investigatory authority. In fact, the Ombudsman Office verifies that all complaints concerning child abuse and neglect have been reported to the proper investigatory authority in Cuyahoga County, the Department of Children and Family Services.

Finally, appellee contends that the records of the Ombudsman Office are not subject to disclosure because they contain medical records which are specifically excepted from disclosure under R.C. 149.43(A). R.C. 149.43(A)(3) defines "medical record" as "any document or combination of documents * * * that pertains to the medical history, diagnosis, prognosis, or medical condition of a patient and that is generated and maintained in the process of medical treatment." In order to fit within the "medical record" exception to the public records law, "a record must pertain to a medical diagnosis and be generated and maintained in the process of medical treatment." (Emphasis sic.) State ex rel. Toledo Blade Co. v. Telb (C.P.1990), 50 Ohio Misc.2d 1, 10, 552 N.E.2d 243, 251. In Telb, the court held that to be excepted from disclosure, the records sought must meet the conjunctive requirements of the statute. In the instant matter, records held by the Ombudsman Office may involve diagnosis and treatment, but they are not "maintained in the process of medical treatment" and therefore are not exempt from disclosure.

Conclusion

One of the salutary purposes of the Public Records Law is to ensure accountability of government to those being governed. Thus, records, with certain enumerated exceptions, held by government entities belong to the public and must be open for inspection to all citizens. Accordingly, we reverse the judgment of the Cuyahoga County Court of Appeals and order that a writ of mandamus issue directing appellee to make the requested records available for inspection.

Judgment reversed and writ granted.

FRANCIS E. SWEENEY, Sr. and PFEIFER, JJ., concur.

RESNICK, J., concurs in judgment only.

MOYER, C.J., dissents.

COOK and LUNDBERG STRATTON, JJ., dissent.

MOYER, Chief Justice, dissenting.

I respectfully dissent because the Cuyahoga County Ombudsman Office is not a "public office" as defined by R.C. 149.011(A).

The Citizens of Cuyahoga County Ombudsman Office ("Ombudsman Office") is a private, nonprofit corporation that receives financial assistance from Cuyahoga County as well as private contributors. The Ombudsman Office resolves citizens' complaints against Cuyahoga County government agencies by functioning as an intermediary between the public and county government. It offers information regarding certain county services and provides mediation when necessary.

The Ombudsman Office commences an investigation only after it receives a complaint. When the Ombudsman Office receives a complaint concerning child neglect or abuse that has not been previously reported to an appropriate government agency, it reports the matter to the investigative unit of the Cuyahoga County Department of Children and Family Services and also conducts its own investigation.

The Ombudsman Office, however, has no legal duty to investigate any complaint; it can refuse to serve anyone or decline to investigate or mediate any complaint as long as it does not violate any antidiscrimination law. In addition, although it provides the county commissioners with its annual report and budget, the Ombudsman Office has no duty to satisfy any government agency that it is performing any task properly. It is not listed in the county government telephone...

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