STATE EX REL. BEACON JOURNAL PUB. CO. v. Bodiker

• Citation: 731 NE 2d 245,134 Ohio App.3d 415
• Decision Date: 08 July 1999
• Docket Number: No. 98AP-827.,98AP-827.
• Parties: The STATE ex rel. BEACON JOURNAL PUBLISHING COMPANY et al. v. BODIKER, Pub. Defender.
• Court: United States Court of Appeals (Ohio)

134 Ohio App.3d 415

731 NE 2d 245

The STATE ex rel. BEACON JOURNAL PUBLISHING COMPANY et al. v. BODIKER, Pub. Defender.

No. 98AP-827.

Court of Appeals of Ohio, Tenth District, Franklin County.

Decided July 8, 1999.

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Roetzel & Andress, Ronald S. Kopp, Amie L. Bruggeman and Alisa Labut Wright, for relators.

Kerger & Kerger and Richard M. Kerger, for respondent.

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PEGGY BRYANT, Judge.

Relators, the Beacon Journal Publishing Company and reporter Jon Craig, commenced this original action in mandamus seeking access to records maintained by the office of respondent David H. Bodiker, Ohio Public Defender.

Relators seek information relating to respondent's representation of Wilford L. Berry, Jr., who was convicted in 1990 of aggravated murder and sentenced to death. Throughout the appellate process, Berry repeatedly indicated that he desired to waive his appellate rights and receive the death penalty. During the direct appeal, Berry's court-appointed private counsel withdrew, and the Ohio Public Defender's Office was assigned to continue Berry's representation. Berry's conviction and sentence were affirmed on appeal. State v. Berry (Oct. 21, 1993), Cuyahoga App. No. 60531, unreported, 1993 WL 425370, affirmed (1995), 72 Ohio St.3d 354, 650 N.E.2d 433, reconsideration denied (1995), 73 Ohio St.3d 1428, 652 N.E.2d 801. On motion of the Ohio Public Defender, the Supreme Court of Ohio appointed a psychiatrist to evaluate Berry's competency to waive collateral review of his sentence and remanded the case to the trial court for a competency hearing. After the competency hearing, the trial court found that Berry was competent to waive further legal challenges of his sentence, and the Supreme Court of Ohio affirmed that ruling. State v. Berry (1997), 80 Ohio St.3d 371, 686 N.E.2d 1097.

After the Supreme Court of Ohio set an execution date, Berry's mother and sister sought a federal writ of habeas corpus in order to determine Berry's competency to waive further review of his sentence. The Ohio Public Defender appeared in the habeas corpus proceedings. Although the federal district court granted the writ and ordered a stay of execution, the United States Court of Appeals for the Sixth Circuit vacated the district court's judgment and reinstated the death sentence. Franklin v. Francis (S.D.Ohio), 997 F.Supp. 916, vacated (C.A.6, 1998), 144 F.3d 429, rehearing denied (C.A.6, 1998), No. 98-3187, unreported, and certiorari denied (1998), 525 U.S. 985, 119 S.Ct. 451, 142 L.Ed.2d 404.

After the case was remanded to the federal district court, the petitioners, joined by the Public Defender, moved the district court to alter or amend the judgment because of new evidence of serious injuries that Berry sustained during a riot at the Mansfield Correctional Institution on September 5, 1997. The district court denied the motion due to lack of jurisdiction. Franklin v. Francis (S.D.Ohio 1998), No. 98-3131, unreported, affirmed (C.A.6, 1999), 168 F.3d 261, application for stay of execution of death sentence and certiorari denied (1999), 525 U.S. 1132, 119 S.Ct. 1022, 142 L.Ed.2d 973. Berry was executed by lethal injection on February 19, 1999.

Pursuant to R.C. 149.43, relators on December 5, 1997, sought disclosure of "all financial records, budgetary records or other material that itemizes, details or otherwise records staff time and public money spent on the Wilford L. Berry, Jr. case." Respondent denied the request on two occasions. As a result, on June 29, 1998, relators filed the present complaint in mandamus, requesting a writ ordering respondent to furnish relators reasonable continuing access and the right to inspect and copy the requested financial and time records. Respondent responded with an answer, asserting that the Ohio Public Defender's Office is not a public office within the contemplation of the Public Records Law, that the financial information relators seek does not constitute records under that law, that the information is excepted from disclosure because it is attorney work product and privileged attorney-client communication, that the information is excluded from the definition of public records by the trial-preparation-records exception and various constitutional provisions, and that public policy prevents disclosure of the financial information relators seek.

Mandamus is the appropriate remedy to compel compliance with R.C. 149.43. State ex rel. Steckman v. Jackson (1994), 70 Ohio St.3d 420, 426-427, 639 N.E.2d 83, 88-89. A writ of mandamus is warranted when (1) the relator has a clear legal right to the relief prayed for, (2) the respondent is under a clear legal duty to perform the requested act, and (3) the relator has no plain and adequate remedy at law. State ex rel. Berger v. McMonagle (1983), 6 Ohio St.3d 28, 6 OBR 50, 451 N.E.2d 225. A relator meets those three requirements when a public office fails to comply with R.C. 149.43(B) requirements for public access to public records. State ex rel. Dist. 1199, Health Care & Social Serv. Union, SEIU, AFL-CIO v. Gulyassy (1995), 107 Ohio App.3d 729, 733, 669 N.E.2d 487, 489-490, citing State ex rel. Multimedia, Inc. v. Snowden (1995), 72 Ohio St.3d 141, 142, 647 N.E.2d 1374, 1377, and Steckman, supra. "R.C. 149.43 must be liberally construed in favor of broad access, with any doubt resolved in favor of disclosure of public records." State ex rel. Wadd v. Cleveland (1998), 81 Ohio St.3d 50, 51-52, 689 N.E.2d 25, 27-28.

A. Materials at Issue

Relators' public records request does not specify with particularity the materials they seek. Rather, relators requested any records that show the time or money spent in the Berry defense. The request is broad, and arguably so vague as to constitute an improper, general request. See, e.g., State ex rel. Thomas v. Ohio State Univ. (1994), 71 Ohio St.3d 245, 246, 643 N.E.2d 126, 127-128 (denial of writ that "broadly sought respondents to search for records containing selected information"); State ex rel. Zauderer v. Joseph (1989), 62 Ohio App.3d 752, 756, 577 N.E.2d 444, 446. Nonetheless, by depositions taken in this matter, relators have been able to specifically identify three categories of materials that respondent maintains: (1) contracts reflecting expenditures for outside experts, (2) a computer database reflecting hours logged by individual attorneys, and (3) time sheets completed by those attorneys. To that extent, the request is not overly broad and may be considered. See Wadd, supra, 81 Ohio St.3d at 54, 689 N.E.2d at 29; State ex rel. Warren Newspapers, Inc. v. Hutson (1994), 70 Ohio St.3d 619, 624, 640 N.E.2d 174, 178-179.

Relators allege that respondent also keeps itemized, case-specific expense reports in order to facilitate budget requests and to comply with its general duty under R.C. 120.04(B)(4) to "maintain financial records of all cases handled." The record, however, reflects that respondent does not maintain such itemized reports. Specifically, respondent's affidavit and deposition testimony indicate that respondent's office has never generated itemized, case-specific information for budgetary purposes and that the Ohio Public Defender Commission has never requested case-specific information from respondent under R.C. 120.04(B)(4). Relators have not refuted those assertions.

Respondent is not required to generate new documents in response to relators' public records request. State ex rel. Nix v. Cleveland (1998), 83 Ohio St.3d 379, 382-383, 700 N.E.2d 12, 15-16; State ex rel. Kerner v. State Teachers Retirement Bd. (1998), 82 Ohio St.3d 273, 695 N.E.2d 256. "A compilation of information must already exist in public records before access to it will be ordered." Id. at 274, 695 N.E.2d at 258; see, also, State ex rel. Sun Newspapers v. Westlake Bd. of Edn. (1991), 76 Ohio App.3d 170, 173, 601 N.E.2d 173, 175-176. Accordingly, the present action is defined to request the above-noted contracts, database, and time sheets.

B. "Records" under R.C. 149.011(G)

In order for documents or materials to be subject to disclosure under the Public Records Act, they must fall within the statutory definition of a "public record." State ex rel. Rea v. Ohio Dept. of Edn. (1998), 81 Ohio St.3d 527, 529, 692 N.E.2d 596, 599-600. A "public record" is "any record that is kept by any public office," provided that none of the exceptions enumerated in the statute apply. R.C. 149.43(A). According to the definition set forth in R.C. 149.011(G), "records" includes "any document, device, or item, regardless of physical form or characteristic, created or received by or coming under the jurisdiction of any public office of the state or its political subdivisions, which serves to document the organization, functions, policies, decisions, procedures, operations, or other activities of the office."

The time sheets and contracts at issue fall squarely within the definition of "records," as those documents serve to document the operations and activities of the Public Defender's Office. Respondent imposed the time sheet system to increase attorney efficiency, and the contracts with outside experts and legal counsel evidence official agreements with private entities. See State ex rel. Mazzaro v. Ferguson (1990), 49 Ohio St.3d 37, 40, 550 N.E.2d 464, 467-468 (indicating that the statutory definition of "record" includes "any material on which a public office could or did rely"). The definition of "records" is also broad enough to extend to respondent's computer database. State ex rel. Margolius v. Cleveland (1992), 62 Ohio St.3d 456, 461, 584 N.E.2d 665, 669-670.

Respondent nonetheless contends that even if the materials relators seek are records under R.C. 149.011(G), the Ohio Public Defender's Office is not a public office within the contemplation of the Public Records Act. R.C. 149.011(A) states...