State ex rel. Carr v. Akron
| Decision Date | 28 December 2006 |
| Docket Number | No. 2006-0168.,2006-0168. |
| Citation | 2006 Ohio 6714,859 N.E.2d 948,112 Ohio St.3d 351 |
| Parties | The STATE ex rel.] CARR et al. v. CITY OF AKRON. |
| Court | Ohio Supreme Court |
Thompson & Bishop, Dennis R. Thompson, and Christy B. Bishop, Akron, for relators.
Keith McNamara; and Max Rothal, Akron Law Director, and Patricia Ambrose Rubright and Deborah M. Forfia, Assistant Directors of Law, for respondent.
Byron & Byron Co., L.P.A., Barry M. Byron, and Stephen L. Byron, Willoughby; and John Gotherman, Cleveland, urging denial of the writ for amici curiae the Ohio Municipal League and the cities of Euclid, North Ridgeville, Dublin, Upper Arlington, Parma, and Lakewood.
{¶ 1} This is an original action for a writ of mandamus to compel a city to provide access to certain records relating to a fire-captain promotional examination. Because one of the relators never requested the records, because the federal Freedom of Information Act does not apply to the city, and because the remaining requested records either have been provided, do not exist, or are excepted from disclosure under the Public Records Act, we deny the writ.
{¶ 2} Respondent, the city of Akron, Ohio, promotes firefighters within the Akron Division of Fire on the basis of competitive examinations. In December 2004, the city administered promotional examinations for the positions of fire lieutenant and fire captain. The city retained E.B. Jacobs, L.L.C., a consulting firm specializing in psychological testing and assessment, to prepare and score the promotional examinations.
{¶ 3} Under the agreement between Akron and E.B. Jacobs, E.B. Jacobs agreed to prepare the written and oral portions of the promotional examinations, hire assessors to evaluate and score the candidates' performance on the oral exercises, and prepare a final written report including an outline of the process for the development and scoring of the promotional examinations and their relation to the lieutenant and captain positions. E.B. Jacobs further agreed to
{¶ 4} In Section 5 of the contract, the parties agreed that "all data, documents and materials are subject to all applicable public records law." In Section 16, the parties specified that E.B. Jacobs "is an independent contractor and not an agent or employee" of Akron and that the city had no "right to control the mode or manner in which" E.B. Jacobs performed under the contract.
{¶ 5} Relators, Bradley Carr and William Howe, are firefighter/medics holding the rank of lieutenant in the Akron Division of Fire. Both relators took the promotional examination for captain. In April 2005, the promotional list was certified and the examination scores were mailed to the candidates. Based on the promotional examinations, the city promoted several firefighters to lieutenant and captain.
{¶ 6} In May 2005, Carr requested that the city provide him with certain records relating to the fire-captain promotional examination. Carr specified that his request was being made pursuant to the federal Freedom of Information Act ("FOIA"). In September 2005, Carr again requested that the city provide him certain records relating to the fire-captain promotional examination and again specified that his request was being made under the FOIA. In response to these two requests, the city provided relators with over 600 pages of the requested records.
{¶ 7} In October 2005, Carr requested the following records under R.C. 149.43, the Ohio Public Records Act:
{¶ 8} "1. The names and scores for the written exam.
{¶ 9} "2. The names and scores for each days [sic] oral exam.
{¶ 10} "3. The scoring sheets, with the scores, of each answer for every candidate on the oral exam.
{¶ 11} "4. Any other written or other types of information that the assessors made.
{¶ 12} "5. The name of every candidate and which assessor panel they saw on each day.
{¶ 13} "6. All documentation on the pilot testing.
{¶ 14} "7. All documentation on how the test weighting was done.
{¶ 15} "8. All documentation on the job analysis.
{¶ 16} "9. All documentation on the reliability statistics.
{¶ 17} "10. All documentation on the subject matter experts.
{¶ 18} "11. All documentation on the test validity.
{¶ 19} "12. All documentation on Cronbach Alpha.
{¶ 20} "13. All documentation on the final report including the confidential matter.
{¶ 21} "14. All data on the oral assessors.
{¶ 22} "15. All the [E]xcel files sent to the City of Akron reference [sic] the memo dated March 21 from Joe Hinish to Ruth Miller.
{¶ 23} "16. All information on the scoring templates reference [sic] the February 18 memo from Joe Hinish to Ruth Miller.
{¶ 24} "17. The name, address, phone number, their rank, and what fire department they are from for each of the assessors.
{¶ 25} (Emphasis sic.)
{¶ 26} The city did not provide relators with additional documents in response to Carr's third request, because it considered it to be a duplicative request.
{¶ 27} On January 26, 2006, Carr and Howe filed this action for a writ of mandamus to compel Akron to provide the records requested by Carr in May, September, and October 2005. According to Howe, he worked with Carr to obtain all the records related to the fire-captain promotional examination. The city filed an answer, and the parties stipulated that the city had provided additional documents in response to Carr's public-records requests, including raw scores on the oral and written portions of the fire-captain promotional examination, adverse-impact analyses, and "Fire-Captain Examination Project Schedule, and Supplies and Resources and Project Timeline." Firefighter names and Social Security numbers had been redacted by the city from the raw scores and the adverse-impact analyses.
{¶ 28} We granted an alternative writ, and the parties submitted evidence and briefs. 110 Ohio St.3d 1435, 2006-Ohio-3862, 852 N.E.2d 185. The Ohio Municipal League and the cities of Euclid, North Ridgeville, Dublin, Upper Arlington, Parma, and Lakewood filed an amicus curiae brief urging denial of the writ. Relators did not submit a timely reply brief. This cause is now before the court for our consideration of the merits.
{¶ 29} "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). In assessing a public-records mandamus claim, "R.C. 149.43 is construed liberally in favor of broad access, and any doubt is resolved in favor of disclosure of public records." State ex rel. Cincinnati Enquirer v. Hamilton Cty. (1996), 75 Ohio St.3d 374, 376, 662 N.E.2d 334.
{¶ 30} Insofar as Akron asserts that some of the requested records fall within certain exceptions to disclosure under R.C. 149.43, "we strictly construe exceptions against the public-records custodian, and the custodian has the burden to establish the applicability of an exception." State ex rel. Beacon Journal Publishing Co. v. Akron, 104 Ohio St.3d 399, 2004-Ohio-6557, 819 N.E.2d 1087, ¶ 23.
{¶ 31} Howe requests a writ of mandamus to compel the release of the requested promotional-examination records. But Howe never requested these records. The three requests that are the basis of relators' mandamus claim were all made by Carr. "R.C. 149.43(C) requires a prior request as a prerequisite to a mandamus action." State ex rel. Taxpayers Coalition v. Lakewood (1999), 86 Ohio St.3d 385, 390, 715 N.E.2d 179. Therefore, because Howe never requested the records that are the subject of relators' mandamus claim, he is not entitled to the writ. State ex rel. Hammons v. Chisholm, 99 Ohio St.3d 405, 2003-Ohio-4125, 792 N.E.2d 1120, ¶ 15.
{¶ 32} Carr bases his claim for a writ of mandamus on his three requests for records relating to the fire-captain promotional examination, which Carr made in May, September, and October 2005.
{¶ 33} Regarding his requests in May and September 2005, however, Carr specified that these requests were made pursuant to the FOIA. Carr's mandamus claim based on these two requests lacks merit because the FOIA does not apply to nonfederal entities like Akron. Sections 551(1) and 552(f), Title 5, U.S.Code; State ex rel. Cincinnati Enquirer v. Dupuis, 98 Ohio St.3d 126, 2002-Ohio-7041, 781 N.E.2d 163, ¶ 32. Therefore, Carr's only potentially viable mandamus claim concerns his October 2005 records request, which was properly based on R.C. 149.43 rather than the FOIA.
{¶ 34} Carr and Howe are two of 29 plaintiffs in a civil case they filed against Akron in the Summit County Court of Common Pleas. Howe v. Akron, Summit C.P. case No. 2006-04-2310. The plaintiffs in that case allege that the promotional examinations for lieutenant and captain illegally discriminated against certain firefighters based on their age and race.
{¶ 35} The mere fact that Carr may be entitled to obtain the same records he requests by way of discovery in his pending civil discrimination case does not preclude his entitlement to...
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