Davis v. Cincinnati Enquirer

• Court: United States State Supreme Court of Ohio
• Citation: 164 Ohio App.3d 36,840 N.E.2d 1150,2005 Ohio 5719
• Decision Date: 28 October 2005
• Docket Number: No. C-050254.,No. C-050269.,C-050254.,C-050269.
• Parties: DAVIS et al., Appellants, v. The CINCINNATI ENQUIRER, Appellee. CNG Financial Corporation et al., Appellants, v. The Cincinnati Enquirer, Appellee.

840 N.E.2d 1150 164 Ohio App.3d 36 2005-Ohio-5719 DAVIS et al., Appellants,
v.
The CINCINNATI ENQUIRER, Appellee.
CNG Financial Corporation et al., Appellants,
v.
The Cincinnati Enquirer, Appellee. No. C-050254. No. C-050269. Court of Appeals of Ohio, First District, Hamilton County. Decided October 28, 2005.

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Katz, Teller, Brant & Hild and Jerome S. Teller, Cincinnati; William A. Busmeyer Co., L.P.A., and William A Busmeyer; and Gerhardstein, Branch & Laufman and Alphonse A. Gerhardstein, Cincinnati, for appellants Judith M. Davis and Allen L. Davis.

Squire, Sanders & Dempsey, L.L.P., Gregory A. Ruehlmann, and Pierre H. Bergeron, Cincinnati, for appellants CNG Financial Corporation and The 409 Group, Inc.

Murdock, Goldenberg, Schneider & Groh, L.P.A., John C. Murdock, Cincinnati, and Todd B. Naylor, for appellee.

DOAN, Presiding Judge.

{¶ 1} The heart of this case is a request for disclosure of public records by appellee, Cincinnati Enquirer, under R.C. 149.43, but it involves a unique set of facts. Because we hold that the procedure used to obtain the records was improper, we reverse the trial court's judgment.

{¶ 2} Appellant Judith M. Davis filed a complaint seeking a divorce from appellant Allen L. Davis. She also named as defendants, appellants CNG Financial Corporation and 409 Group, Inc. (collectively, "CNG"). She alleged that Allen was a major shareholder in CNG and that the company possessed marital property. Subsequently, Judith filed a motion "to seal all the pleadings and to delete all pleadings from the [I]nternet." She contended that to fully litigate her rights to an equitable division of marital property and spousal support, she would have to disclose highly sensitive financial information regarding CNG that would not be in the parties' best interest to disclose to the general public. The domestic relations court granted the motion and ordered the record sealed. The court entered a final divorce decree on December 27, 2002.

{¶ 3} Subsequently, Allen became embroiled in a major federal lawsuit involving his dealings with CNG. Judith later sought to intervene in that case. On March 9, 2005, James McNair, a reporter for the Cincinnati Enquirer, mailed a public-records request to the Hamilton County Clerk of Courts and the domestic relations judge who had presided over the Davises' divorce case. He asked that they make available for inspection all records related to the case. The domestic relations judge sent a letter stating that the court would comply with McNair's request.

{¶ 4} The Davises were notified of the request. They filed a motion for a hearing on the request to inspect the sealed records and a memorandum opposing the request under the previous domestic-relations case number. They contended that the divorce records contained documents that were not public records under R.C. 149.43(A)(1)(v), because they were "Records the release of which is prohibited by state or federal law." CNG filed its own memorandum joining the Davises in opposing the Enquirer's request. The Enquirer, which did not move to intervene or to be joined as a party in any way, filed a

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memorandum in response to the Davises' memorandum.

{¶ 5} The court issued an entry unsealing the record for purposes of the public-records request. It stated that any record used by a court to render a decision was a public record under R.C. 149.43. It went on to state that "[t]he parties cite two hundred and forty statutes in Ohio that they claim make information exempt from the public record. Despite the volume of cited authority, the Court finds each inapplicable. The parties have not supported their claim that the financial information contained in the court's file is entitled to protection from disclosure under R.C. Section 149.43. All requested information except social security numbers, license numbers, employer identification numbers, financial account numbers, and any information that could be used for identity theft are public records." It ordered that the portions of the record that did not require redacting be made available immediately and that any portions to be redacted be made available by a certain date.

{¶ 6} The Davises and CNG both appealed the trial court's decision. This court granted the Davises' motion to stay the order unsealing the records in the divorce, and we ordered the record to be sealed during the pendency of this appeal or until further order of the court. We also granted the Enquirer's motion to intervene.

{¶ 7} Both the Davises and CNG assert the same assignment of error. They contend that the trial court erred in ordering the record in the divorce case unsealed for a public-records inspection. We do not reach the merits of these assignments of error, because we hold that the procedure used in this case was improper.

{¶ 8} The procedural posture in this case is different from most public-records cases. In virtually every case in Ohio that our research has uncovered, a media outlet or other individual sought access to public records, the governmental entity failed to provide those records or claimed that they were exempt, and the media outlet then filed an action in mandamus. R.C. 149.43(C) specifically provides that "[i]f a person allegedly is aggrieved by the failure of a public office to promptly prepare a public record and to make it available to the person for inspection in accordance with division (B) of this section, * * * the person allegedly aggrieved may commence a mandamus action to obtain a judgment that orders the public office or the person responsible for the public record to comply with division (B) of this section * * *." Courts have repeatedly held that mandamus is the proper remedy to seek compliance with the Public Records Act. State ex rel. Highlander v. Rudduck, 103 Ohio St.3d 370, 2004-Ohio-4952, 816 N.E.2d 213, ¶ 18; State ex rel....