Franklin Cty. Sheriff's Dept. v. State Emp. Relations Bd.

• Decision Date: 22 April 1992
• Docket Number: No. 90-2033,90-2033
• Citation: 589 N.E.2d 24,63 Ohio St.3d 498
• Parties: , 1992 SERB 4-73 FRANKLIN COUNTY SHERIFF'S DEPARTMENT, Appellee, v. STATE EMPLOYMENT RELATIONS BOARD et al., Appellants.
• Court: Ohio Supreme Court

Page 498

63 Ohio St.3d 498

589 N.E.2d 24, 1992 SERB 4-73

FRANKLIN COUNTY SHERIFF'S DEPARTMENT, Appellee, v. STATE EMPLOYMENT RELATIONS BOARD et al., Appellants.

No. 90-2033.

Supreme Court of Ohio.

Submitted Nov. 19, 1991.

Decided April 22, 1992.

[1992 SERB 4-73]

SYLLABUS BY THE COURT

1. Investigatory files compiled by the State Employment Relations Board pursuant to R.C. 4117.12 must be disclosed upon request pursuant to R.C. 4117.17 and 149.43 unless an in camera inspection demonstrates that all or any portions of the files are excepted from disclosure. Excepted information may be redacted prior to disclosure.

2. Pursuant to R.C. 4117.13(B), it is within the trial court's discretion to remand a case to the State Employment Relations Board to take additional evidence regarding a violation of the order being appealed.

This action was initiated by the Fraternal Order of Police, Capital City Lodge No. 9 ("FOP") when it filed an unfair labor practice charge against the Franklin County Sheriff's Department ("sheriff") in June 1987.

The FOP and the sheriff had entered into a collective bargaining agreement under which deputies working for the sheriff are classified as Deputy 1, Deputy 2 or Deputy 3. A Deputy 1 is not required to hold a valid Ohio Peace Officer Training Certificate, may not carry firearms or make arrests, and may not wear a uniform to or from work. The sheriff also grants auxiliary commissions to deputies. A deputy must obtain a valid Ohio Peace Officer Training Certificate within one year of his appointment date to qualify for such a commission. Deputies with auxiliary commissions may perform additional functions, including patrol duty, service of process, work in the jail, and 911 emergency telephone service. A Deputy 1 who holds an auxiliary commission is designated a Deputy 1A.

The circumstances leading to the FOP charge filed with the State Employment Relations Board ("SERB") arose when two Deputy 1As and a Deputy 2 filed grievances under the collective bargaining agreement. The grievances were denied pursuant to the procedure provided in the collective bargaining agreement. The deputies requested that the grievances be submitted to arbitration. The sheriff then notified the two Deputy 1As that their auxiliary commissions would be revoked, and threatened revocation of all auxiliary commissions.

SERB found that the revocations and threatened revocations constituted unfair labor practices in violation of R.C. 4117.11(A)(1), (3) and (8). Upon appeal of the order to the Franklin County Court of Common Pleas, the court remanded the cause to SERB to take new evidence regarding the sheriff's post-order revocation or nonrenewal of all auxiliary commissions held by Deputy 1s. After hearing additional evidence on remand, SERB found that the revocation of auxiliary commissions was in violation of its December 22, 1988 order.

At the original hearing before SERB, the sheriff requested a copy of SERB's investigatory file. The hearing officer denied access to the file, ruling that it is confidential under Ohio Adm.Code 4117-7-02.

After remand, the trial court found SERB's orders were supported by substantial evidence and in accordance with law. The court of appeals reversed the judgment of the trial court, holding that (1) SERB's investigatory records must be made available to the sheriff if after an in camera inspection it is determined that the records are not excepted from disclosure under R.C. 149.43, (2) the remand to SERB was improper, and (3) the trial court abused its discretion in affirming SERB's December 1988 order.

The cause is now before this court pursuant to the allowance of a motion to certify the record.

Schottenstein, Zox & Dunn and Susan Porter, Columbus, for appellee.

Lee I. Fisher, Atty. Gen., Joseph M. Oser and Barbara A. Serve, Columbus, for appellant State Employment Relations Bd.

Cloppert, Portman, Sauter, Latanick & Foley, Robert W. Sauter and Michael J. Hunter, Columbus, for appellant Fraternal Order of Police.

MOYER, Chief Justice.

I

Public Records

R.C. 149.43 states in pertinent part:

"(A) As used in this section:

"(1) 'Public record' means any record that is kept by any public office, including, but not limited to, state, county, city, village, township, and school district units, except medical records, records pertaining to adoption, probation, and parole proceedings, records pertaining to actions under section 2151.85 [1992 SERB 4-74] of the Revised Code and to appeals of actions arising under that section, records listed in division (A) of section 3107.42 of the Revised Code, trial preparation records, confidential law enforcement investigatory records, and records the release of which is prohibited by state or federal law.

"(2) 'Confidential law enforcement investigatory record' means any record that pertains to a law enforcement matter of a criminal, quasi-criminal, civil, or administrative nature, but only to the extent that the release of the record would create a high probability of disclosure of any of the following:

" * * *

"(c) Specific confidential investigatory techniques or procedures or specific investigatory work product[.]

" * * *

"(4) 'Trial preparation record' means any record that contains information that is specifically compiled in reasonable anticipation of, or in defense of, a civil or criminal action or proceeding, including the independent thought processes and personal trial preparation of an attorney.

"(B) All public records shall be promptly prepared and made available for inspection to any person at all reasonable times during regular business hours. Upon request, a person responsible for public records shall make copies available at cost, within a reasonable period of time. In order to facilitate broader access to public records, governmental units shall maintain public records in such a manner that they can be made available for inspection in accordance with this division."

R.C. 4117.17 states:

"Formal charges, petitions, complaints, orders, evidence, fact-finding recommendations, and other proceedings instituted by the state employment relations board under Chapter 4117. of the Revised Code are public records and available for inspection or copying subject to rules made by the board. All hearings on complaints or petitions pursuant to Chapter 4117. of the Revised Code are open to the public."

Appellants argue that R.C. 4117.17 rather than R.C. 149.43 governs access to SERB's files. They contend that R.C. 4117.17 is a specific statute covering the same subject matter as R.C. 149.43 and therefore prevails over the latter, more general statute.

R.C. 1.51 states:

"If a general provision conflicts with a special or local provision, they shall be construed, if possible, so that effect is given to both. If the conflict between the provisions is irreconcilable, the special or local provision prevails as an exception to the general provision, unless the general provision is the later adoption and the manifest intent is that the general provision prevail."

As R.C. 1.51 states, if there is a conflict and the statutes cannot be construed to give effect to both, the special provision ordinarily prevails. We, however, find no conflict between the statutes in question. R.C. 149.43 provides a broad definition of public records. R.C. 4117.17 provides specific direction when a request for SERB's records is made. For example, there can be no question now, as there may have been prior to the enactment of R.C. 4117.17, that the specifically designated categories in R.C. 4117.17 constitute public records. However, R.C. 149.43 must be applied to SERB's records not specifically designated in R.C. 4117.17 and to exceptions such as "trial preparation" materials and confidential law enforcement investigatory records. Effect may be given to both statutes because a determination of whether certain of SERB's records are public begins with R.C. 4117.17. If there remains a question, R.C. 149.43 must be applied. We must assume that had the General Assembly intended R.C. 4117.17 to be exclusive of other public records statutes, one or both of the statutes would reflect that intention.

The first question, therefore, is whether the records listed in R.C. 4117.17 include SERB's investigatory files. Two references in the statute are applicable--"evidence" and "other proceedings instituted."

It is clear by the terms of R.C. 4117.12(B) that when a charge is filed with SERB, the purpose of SERB's investigation is to gather evidence that tends to prove or disprove the charge. Based on the evidence before it, SERB initially determines whether there exists probable cause upon which to issue a complaint. While there may be material in SERB's investigatory file that is not evidence and not available to the public, that material may be redacted by a trial judge after an in camera inspection of the files. All evidence in the files that is not excepted under R.C. 149.43 must be disclosed, as "evidence" is a category specifically designated in R.C. 4117.17.

R.C. 4117.17 also states that "other proceedings instituted" by SERB are public. Appellants' assertion that the General Assembly intended to exclude items not specifically listed is unsupported and without merit. The clear language of the statute demonstrates that the General Assembly intended a policy of openness for proceedings by SERB. Investigatory files are therefore not implicitly excluded under this language and, unless excepted from disclosure, are public records under R.C. 149.43.

As stated supra, "evidence" in SERB's investigatory files must be disclosed. Pursuant to R.C. 149.43, the balance of the information in SERB's investigatory files must also be disclosed unless the material is specifically excepted, because such files constitute a record kept by a public office. Appellants claim the file is excepted under R.C. 149.43. An analysis of the exceptions under that statute is therefore...