State ex rel. Beacon Journal Publishing Co. v. Akron, No. 93-2012

CourtUnited States State Supreme Court of Ohio
Writing for the CourtPFEIFER; MOYER; STEPHEN R. SHAW, J., of the Third Appellate District, sitting for WRIGHT; DOUGLAS
Citation640 N.E.2d 164,70 Ohio St.3d 605
Decision Date26 October 1994
Docket NumberNo. 93-2012
Parties, 23 Media L. Rep. 1225 The STATE ex rel. BEACON JOURNAL PUBLISHING COMPANY et al., Appellees, v. CITY OF AKRON et al., Appellants.

Page 605

70 Ohio St.3d 605
640 N.E.2d 164, 23 Media L. Rep. 1225
The STATE ex rel. BEACON JOURNAL PUBLISHING COMPANY et al., Appellees,
v.
CITY OF AKRON et al., Appellants.
No. 93-2012.
Supreme Court of Ohio.
Submitted May 10, 1994.
Decided Oct. 26, 1994.

[640 N.E.2d 165] Appellee Beacon Journal Publishing Company ("ABJ") publishes the newspaper known as The Akron Beacon Journal. Appellee Robert Paynter is a project editor and employee of ABJ. Appellant Linda Sowa was the finance director of the appellant city of Akron.

ABJ and Paynter asked the city and Sowa to provide them with computer tape records of the city's year-end employee master files for the years 1990 and 1991 pursuant to R.C. 149.43, Ohio's public records statute. These payroll files contain various information including employees' names, addresses, telephone numbers, Social Security numbers ("SSNs"), birth dates, education, employment status and positions, pay rates, service ratings, annual and sick leave information, overtime hours and pay, and year-to-date employee earnings. The city has approximately two thousand five hundred employees. Thirteen employees have access to the computerized employee master payroll file.

Sowa and the city provided copies of these records with the SSNs deleted.

ABJ and Paynter then requested a copy of the same records complete with SSNs.

Sowa and the city refused to disclose the employees' SSNs.

In August 1992, ABJ and Paynter filed a complaint in mandamus in the Court of Appeals for Summit County against Sowa and Akron, alleging that, pursuant to R.C. 149.43, they were entitled to obtain the payroll records complete with SSNs. Sowa and the city denied the existence of this obligation, alleging that SSNs are not "records" as that term is defined in R.C. 149.011(G), and that disclosure of employees' SSNs would violate the employees' right to privacy.

The court of appeals granted the petition for mandamus. The appellate court found that SSNs are public records for purposes of R.C. 149.43, and that their disclosure would not violate the right to privacy.

This cause is now before this court upon an appeal as of right.

Page 606

Roetzel & Andress, Ronald S. Kopp and Amie L. Bruggeman, for appellees.

Max Rothal, Director of Law, and Deborah M. Forfia, Asst. Director of Law, for appellants.

Paul R.Q. Wolfson and David C. Vladeck, urging reversal for amicus curiae, Public Citizen Litigation Group.

Marc Rotenberg and David L. Sobel, urging reversal for amicus curiae, Computer Professionals for Social Responsibility.

PFEIFER, Justice.

We are asked to determine whether the city is obligated to provide the ABJ with the SSNs of approximately two thousand five hundred city employees pursuant to Ohio's public records statute. For the following reasons, we find that disclosure of this information is not required.

640 N.E.2d 166

I

The city and Sowa contend that they are not obligated to provide the SSNs because they are not "records" for purposes of the Public Records Act. We disagree.

When "information in question is not a record, it is not a public record subject to disclosure under R.C. 149.43." State ex rel. Fant v. Mengel (1992), 62 Ohio St.3d 455, 584 N.E.2d 664, 665. R.C. 149.011 broadly defines "records." This definition is to be given an expansive rather than a restrictive construction. State ex rel. Cincinnati Post v. Schweikert (1988), 38 Ohio St.3d 170, 527 N.E.2d 1230. R.C. 149.011 provides the following:

"As used in this chapter:

" * * *

"(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 city has stipulated that its computerized year-end employee master payroll files contain the SSNs of all of its employees. The city uses the SSNs as taxpayer identification numbers in these files. This use of the SSN by the city leads us to conclude that it is a "device * * * received by * * * political subdivisions, which serves to document organization, functions, [and] operations * * * of the office." Thus, the Social Security numbers of the city's employees are "records" for the purposes of the Public Records Act.

Page 607

II

We must next determine whether SSNs, while being "records," are also "public records" for purposes of the Public Records Act. For the following reasons, we conclude that they are not public records.

To compel the city to disclose the SSNs of its employees, the ABJ must prove that they are public records. R.C. 149.43(A) defines "public records," as follows:

"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 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. * * * "

Records that are "public records" as defined in R.C. 149.43(A) must be disclosed pursuant to R.C. 149.43(B). 1

The city and amici contend that disclosure of the SSNs would violate the right to privacy of city employees and, thus, is not permissible. R.C. 149.43(A) expressly excludes the release of records which would violate state or federal law. Because we find that the disclosure of the SSNs would violate the federal constitutional right to privacy, we find them to be excluded from mandatory disclosure. 2

"The cases sometimes characterized as protecting 'privacy' have in fact involved at least two different kinds of interests. One is the individual interest in avoiding disclosure of personal matters, and another is the interest in independence in making certain kinds of important decisions." (Footnotes omitted.) Whalen v. Roe (1977), 429 U.S. 589, [640 N.E.2d 167] 598-600, 97 S.Ct. 869, 876, 51 L.Ed.2d 64, 73. The first interest is relevant to the matter before us.

The right to avoid disclosure of personal matters is so broad in scope that it applies to the most public of our public figures. Even the President of the

Page 608

United States possesses this right. Nixon v. Admr. of Gen. Serv. (1977), 433 U.S. 425, 457, 97 S.Ct. 2777, 2797, 53 L.Ed.2d 867, 900.

In Nixon, the United States Supreme Court discussed the right to have personal matters free from disclosure to the public. President Nixon sought to prevent the Administrator of the General Services Administration from taking custody of an estimated forty-two million pages of documents and eight hundred eighty tape recordings from the Nixon presidency, and promulgating rules for eventual public access. Nixon argued, among other things, that the Presidential Recordings and Materials Preservation Act ("PRMPA"), which prescribes the process by which these documents were to be disclosed, violated Nixon's right to privacy. Pursuant to the PRMPA, government archivists were entrusted with responsibility of preventing confidential and personal matters from being disclosed.

The Nixon court found that "appellant [Nixon] has a legitimate expectation of privacy in his personal communications." Id., 433 U.S. at 465, 97 S.Ct. at 2801, 53 L.Ed.2d at 905. The court concluded, however, that this right to privacy was not absolute. Instead, the court found that when an individual has an interest in avoiding disclosure, that interest must be weighed with the government's interest in disclosing the information. "[T]he constitutionality of the Act must be viewed in the context of the limited intrusion of the screening process, of appellant's status as a public figure, of his lack of any expectation of privacy in the overwhelming majority of the materials, of the important public interest in preservation of the materials, and of the virtual impossibility of segregating the small quantity of private materials without comprehensive screening. When this is combined with the Act's sensitivity to appellant's legitimate privacy interests * * *, the unblemished record of the archivists for discretion, and the likelihood that the regulations to be promulgated by the Administrator will further moot appellant's fears that his materials will be reviewed by 'a host of persons,' * * * we are compelled to agree with the District Court that appellant's privacy claim is without merit." Id.

Thus, according to the Nixon case, there is a federal right to privacy which protects against governmental disclosure of the private details of one's life. Nixon, although not dispositive of the case before us, sets forth the parameters of the right to privacy that we apply to the present case. We must use an analysis similar to that used in Nixon to determine whether the right to privacy of city employees is invaded when the city reveals their SSNs to all inquirers. We must determine whether the city employees have a legitimate expectation of privacy in their SSNs and then whether their privacy interests outweigh those interests benefited by disclosure of the numbers. Slayton v. Willingham (C.A.10, 1984), 726 F.2d 631, 635.

Page 609

A

Expectation of Privacy

Due to the federal legislative scheme involving the use of SSNs, city employees have a legitimate expectation of privacy in their SSNs. Uncodified Section 7 of the Privacy Act of 1974 provides the following:

"(a)(1) It shall be unlawful for any Federal, State or local government agency to deny to any individual any right, benefit, or privilege provided by law because of such individual's refusal to disclose his...

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57 practice notes
  • Narciso v. Powell Police Dep't, Case No. 2018-01195PQ
    • United States
    • Court of Claims of Ohio
    • October 22, 2018
    ...v. Roberts, 88 Ohio St.3d 365, 725 N.E.2d 1144 (2000) (personal information of children); State ex rel. Beacon Journal Publg. v. Akron, 70 Ohio St.3d 605, 640 N.E.2d 164 (1994) (employee social security numbers). {¶41} Powell PD provides no factual support for the proposition that disclosur......
  • Ostergren v. Cuccinelli, Nos. 09-1723, 09-1796.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • July 26, 2010
    ...the government from disclosing SSNs without consent. See, e.g., 615 F.3d 280 State ex rel. Beacon Journal Publ'g Co. v. City of Akron, 70 Ohio St.3d 605, 640 N.E.2d 164, 169 (1994). Although not dispositive, these practices indicate a broad consensus that SSNs' public disclosure should be s......
  • State v. Williams, No. 99-286
    • United States
    • United States State Supreme Court of Ohio
    • April 28, 2000
    ...(Brandeis, J., dissenting). Yet the right to privacy is not absolute. See State ex rel. Beacon Journal Publishing Co. v. Akron (1994), 70 Ohio St.3d 605, 608, 640 N.E.2d 164, 167. Privacy of the individual will yield 88 Ohio St.3d 526 when required by public necessity. Time, Inc., 385 U.S. ......
  • Kish v. Akron, No. 2004-0738.
    • United States
    • United States State Supreme Court of Ohio
    • March 20, 2006
    ...records can be items, documents, and items within documents. See, e.g., State ex rel. Beacon Journal Publishing Co. v. Akron (1994), 70 Ohio St.3d 605, 606, 640 N.E.2d 164 (Social Security numbers found within payroll files were "records" for purposes of R.C. 149.011(G)); Dupuis, 98 Ohio St......
  • Request a trial to view additional results
57 cases
  • Narciso v. Powell Police Dep't, Case No. 2018-01195PQ
    • United States
    • Court of Claims of Ohio
    • October 22, 2018
    ...v. Roberts, 88 Ohio St.3d 365, 725 N.E.2d 1144 (2000) (personal information of children); State ex rel. Beacon Journal Publg. v. Akron, 70 Ohio St.3d 605, 640 N.E.2d 164 (1994) (employee social security numbers). {¶41} Powell PD provides no factual support for the proposition that disclosur......
  • Ostergren v. Cuccinelli, Nos. 09-1723, 09-1796.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • July 26, 2010
    ...the government from disclosing SSNs without consent. See, e.g., 615 F.3d 280 State ex rel. Beacon Journal Publ'g Co. v. City of Akron, 70 Ohio St.3d 605, 640 N.E.2d 164, 169 (1994). Although not dispositive, these practices indicate a broad consensus that SSNs' public disclosure should be s......
  • State v. Williams, No. 99-286
    • United States
    • United States State Supreme Court of Ohio
    • April 28, 2000
    ...(Brandeis, J., dissenting). Yet the right to privacy is not absolute. See State ex rel. Beacon Journal Publishing Co. v. Akron (1994), 70 Ohio St.3d 605, 608, 640 N.E.2d 164, 167. Privacy of the individual will yield 88 Ohio St.3d 526 when required by public necessity. Time, Inc., 385 U.S. ......
  • Kish v. Akron, No. 2004-0738.
    • United States
    • United States State Supreme Court of Ohio
    • March 20, 2006
    ...records can be items, documents, and items within documents. See, e.g., State ex rel. Beacon Journal Publishing Co. v. Akron (1994), 70 Ohio St.3d 605, 606, 640 N.E.2d 164 (Social Security numbers found within payroll files were "records" for purposes of R.C. 149.011(G)); Dupuis, 98 Ohio St......
  • Request a trial to view additional results

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