Davis v. Cincinnati Enquirer

• 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.
• Court: United States State Supreme Court of Ohio
• 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.

COPYRIGHT MATERIAL OMITTED

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 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. Cincinnati Enquirer v. Winkler, 101 Ohio St.3d 382, 2004-Ohio-1581, 805 N.E.2d 1094, ¶ 4.

{¶ 9} In this case, the Enquirer requested to inspect the alleged public records, and the domestic relations court agreed to allow the inspection. We note that the domestic relations judge's initial decision to allow the Enquirer reporter to inspect the records was not in a judicial capacity, but in the capacity of a person responsible for the public records. See Rudduck, supra, at ¶ 14-17.

{¶ 10} The Davises and CNG objected, claiming that the records were not public records. While they had standing to object, the filing of those objections in the domestic relations court under their divorce case number was problematic. See State ex rel. Cincinnati Post v. Court of Appeals, Second Appellate Judicial Dist. (1992), 65 Ohio St.3d 378, 382, 604 N.E.2d 153; State ex rel. Beacon Journal Publishing Co. v. Radel (June 1, 1992), 5th Dist. No. CA-8192, 1992 WL 127149, reversed on other grounds (1991), 57 Ohio St.3d 102, 566 N.E.2d 661. Further, once the Davises and CNG filed their objections under the divorce case number, the domestic relations court began acting in its judicial capacity.

{¶ 11} The jurisdiction of the domestic relations court is statutory, and it is limited by statute to the determination of domestic relations matters. R.C. 3105.011; Gibson v. Gibson (1993), 87 Ohio App.3d 426, 431, 622 N.E.2d 425. Certainly the domestic relations court can decide the issue of whether to seal or unseal its own records. If no party raises an issue related to the Public Records Act in a case involving a request to seal or unseal the record, the domestic relations court can properly decide the issue.

{¶ 12} But the Public Records Act takes precedence when the record is not sealed under any statutory authority. See Rudduck, supra, at ¶ 11; Dzina v. Dzina, 8th Dist. No. 80029, 2002-Ohio-2753, 2002 WL 1265585, fn. 2. Documents used by a court to render a decision are public records. State ex rel. WBNS TV, Inc. v. Dues, 101 Ohio St.3d 406, 2004-Ohio-1497, 805 N.E.2d 1116, ¶ 24-27; State ex rel. Miami Valley Broadcasting Corp. v. Davis, 158 Ohio App.3d 98, 2004-Ohio-3860, 814 N.E.2d 88, ¶ 9-10; State ex rel. Cincinnati Enquirer v. Dinkelacker (2001), 144 Ohio App.3d 725, 729, 761 N.E.2d 656. We note that, as a general rule, courts should not order the blanket sealing of records. Dzina, supra, at ¶ 24, fn. 2.

{¶ 13} Ultimately, the issue of whether records are public records under the Public Records Act is a separate issue from the issue of whether a court's record should be sealed. It is an issue for which the legislature has deemed a separate action to be necessary and appropriate. The actual issue presented in this case was whether the disputed records were public records, which was simply not a domestic relations matter. See Gibson, supra, 87 Ohio App.3d at 431, 622 N.E.2d 425; Fields v. Fields (1987), 39 Ohio App.3d 187, 193, 530 N.E.2d 933.

{¶ 14} Further, there is no way that the Enquirer could properly have been before the domestic relations court in the divorce case. The civil rules do not allow for intervention in a divorce case. A third party may be joined as a defendant if that party possesses, controls, or claims an interest in property out of which the husband or wife seeks an award of spousal or other support. Civ.R. 75(B); Maher v. Maher (1978), 64 Ohio App.2d 22, 23-24, 18 O.O.3d 14, 410 N.E.2d 1260; Chrisman v. Chrisman (Mar. 13, 2000), 12th Dist. No. CA99-01-066, 2000 WL 270051. This rule does not apply to the Enquirer in this case, and therefore the Enquirer was a stranger to the case and should not have been permitted to file motions or memoranda. In hindsight, even allowing the Enquirer to intervene in this appeal was arguably improper, see State ex rel. Portune v. Natl. Football League, 155 Ohio App.3d 314, 2003-Ohio-6195, 800 N.E.2d 1188, ¶ 13, but given the convoluted procedural posture of this case, little else could be done to get the Enquirer properly before this court.

{¶ 15} What, then, was the...