State ex rel. Cincinnati Enquirer v. Dupuis

• Decision Date: 23 December 2002
• Docket Number: No. 2002-1038.,2002-1038.
• Parties: The STATE ex rel. CINCINNATI ENQUIRER, DIVISION OF GANNETT SATELLITE INFORMATION NETWORK, INC., Appellant, v. DUPUIS, Solicitor, et al., Appellees.
• Court: Ohio Supreme Court

Page 163

781 N.E.2d 163

98 Ohio St.3d 126

2002 Ohio 7041

The STATE ex rel. CINCINNATI ENQUIRER, DIVISION OF GANNETT SATELLITE INFORMATION NETWORK, INC., Appellant, v. DUPUIS, Solicitor, et al., Appellees.

No. 2002-1038.

Supreme Court of Ohio.

Submitted November 13, 2002.

Decided December 23, 2002.

Graydon, Head & Ritchey, L.L.P., John C. Greiner and John A. Flanagan, Cincinnati, for appellant.

Julia L. McNeil, Cincinnati City Solicitor, and Richard Ganulin, Assistant City Solicitor, for appellees.

PER CURIAM.

{¶ 1} Appellant, The Cincinnati Enquirer, a division of Gannett Satellite Information Network, Inc. ("Enquirer"), operates as The Cincinnati Enquirer, a newspaper of general circulation in appellee city of Cincinnati, Ohio. Appellee Fay Dupuis is the Cincinnati Solicitor and her official duties include responsibility for the custody of certain documents concerning legal matters involving Cincinnati.

{¶ 2} In April 2001, the United States Department of Justice ("DOJ") started an investigation into alleged patterns and practices of the Cincinnati Police Department. As that investigation proceeded, on March 7, 2002, the city received a proposed settlement agreement from the DOJ. On that same date, Cincinnati Deputy Solicitor Pete Heile advised Greg Korte, a reporter for the Enquirer, that certain documents related to the investigation, including the proposed settlement agreement, were not disclosable.

{¶ 3} By facsimile transmission dated March 8, 2002, Korte requested that Heile provide the Enquirer with the records they had talked about the previous day, including "a copy of the city's settlement with the U.S. Justice Department over its recent patterns and practices investigation, and any drafts, memos, correspondence, reports, notes, analyses, e-mails, annotations, appendices, attachments, or other documents related thereto."

{¶ 4} On February 19, 2002, in Tyehimba v. Cincinnati, S.D. Ohio (W.D.) No. C-1-99-317, 2001 WL 1842470, United States District Court Judge Susan J. Dlott issued a protective order that governed "the parties during negotiations under the Order Establishing Collaborative Procedure." Judge Dlott ordered that "all drafts of any terms for settlement, including correspondence and other documents related to said drafts, whether offered by the Special Master or by the parties, shall be deemed confidential and may not be released by any person receiving said document except to counsel and the parties in this case." The DOJ was not a party in the Tyehimba case. By letter dated March 14, 2002, a confidentiality agreement among the Tyehimba parties was confirmed in which Cincinnati "agreed to release to the collaborative attorneys only, documents related to the proposed settlement between the city and the U.S. Department of Justice, including the draft settlement proposal itself." The agreement by the Tyehimba parties concerned the use of certain materials submitted in the mediation of that case.

{¶ 5} Appellees, Dupuis and Cincinnati, did not provide access to the requested records, including the DOJ's proposed settlement agreement. On March 14, 2002, the Enquirer filed a complaint in the Court of Appeals for Hamilton County for a writ of mandamus to compel Dupuis and the city to make the records available for inspection and copying in accordance with R.C. 149.43(B) and for an award of attorney fees. Dupuis and the city filed an answer, and the parties filed stipulated facts and memoranda. In their answer, Dupuis and the city contended that they had no duty to provide access to the proposed settlement agreement received from the DOJ because (1) the agreement was subject to Judge Dlott's protective order in Tyehimba, (2) disclosure of the proposal would violate Dupuis's professional duty not to disclose confidential attorney-client communications and attorney-work product, (3) the proposal was a confidential law enforcement investigatory record, and (4) the federal Freedom of Information Act ("FOIA") prevented the city from disclosing the proposal.

{¶ 6} On June 14, 2002, the court of appeals, in a two-to-one decision, denied the writ. The court of appeals concluded that the proposed settlement agreement sent by the DOJ to Cincinnati constituted an exempt "trial preparation record" under R.C. 149.43(A)(4). 147 Ohio App.3d 561, 2002-Ohio-2883, 771 N.E.2d 340, at ¶ 4. This cause is now before the court upon the Enquirer's appeal as of right.

Mootness

{¶ 7} On appeal, Cincinnati and its Solicitor claim that the city voluntarily released the requested proposed settlement agreement after a final settlement agreement was approved by Cincinnati and the DOJ. According to appellees, this occurred before oral argument and the judgment of the court of appeals.

{¶ 8} In general, the provision of requested records to a relator in a public-records mandamus case renders the mandamus claim moot. State ex rel. Wadd v. Cleveland (1998), 81 Ohio St.3d 50, 52, 689 N.E.2d 25; State ex rel. Taxpayers Coalition v. Lakewood (1999), 86 Ohio St.3d 385, 392, 715 N.E.2d 179. An event that causes a case to become moot may be proved by extrinsic evidence outside the record. State ex rel. Nelson v. Russo (2000), 89 Ohio St.3d 227, 228, 729 N.E.2d 1181.

{¶ 9} Appellees, however, offer no proof that they have provided this record aside from the bare unverified assertions in their appellate brief. The Enquirer has not conceded that it has received the proposed settlement agreement, and the court of appeals never so found. Furthermore, the Enquirer's claim of attorney fees would not be rendered moot by the provision of the requested record. State ex rel. Pennington v. Gundler (1996), 75 Ohio St.3d 171, 661 N.E.2d 1049, syllabus.

{¶ 10} Based on the foregoing, we refuse to dismiss this appeal based on mootness.

Mandamus: General Provisions

{¶ 11} The Enquirer seeks a writ of mandamus to compel Cincinnati and its Solicitor to provide it with access to the requested proposed settlement agreement. Mandamus is the appropriate remedy to compel compliance with R.C. 149.43, Ohio's Public Records Act. State ex rel. Cincinnati Enquirer v. Krings (2001), 93 Ohio St.3d 654, 657, 758 N.E.2d 1135. "R.C. 149.43 must be construed liberally in favor of broad access to records kept by public offices, and any doubt is to be resolved in favor of disclosure of the records." State ex rel. Wallace v. State Med. Bd. of Ohio (2000), 89 Ohio St.3d 431, 433, 732 N.E.2d 960. With these standards in mind, the Enquirer's claims are now considered.

R.C. 149.43 and 149.011(G): Records

{¶ 12} A "public record" includes "records kept by any public office." R.C. 149.43(A)(1). R.C. 149.011(G) defines "[r]ecords" broadly to include "any document * * * created or received by * * * 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 proposed settlement agreement requested by the Enquirer constituted a record for purposes of R.C. 149.43. See R.C. 149.011(G).

{¶ 13} In its response to the Enquirer's claim in the court of appeals, Cincinnati admitted that it "did not produce the proposed settlement agreement to the Cincinnati Enquirer while settlement negotiations were proceeding between the City and the Department of Justice." The city and its Solicitor note on appeal, and the court of appeals found, that the proposal was merely a step in the negotiation process between the city and the DOJ. By so arguing, appellees in effect concede that they considered the proposal in the negotiation process concerning the investigation by the DOJ into the patterns and practices of the Cincinnati Police Department.

{¶ 14} Consequently, the requested DOJ proposal kept by appellees and used by them in attempting to reach a settlement in the DOJ investigation of the city's police department constituted a public record for purposes of R.C. 149.43(A)(1) and 149.011(G).

Trial Preparation Record

{¶ 15} The court of appeals recognized that an agreement settling a lawsuit in which a public office is a party is generally a public record subject to disclosure under R.C. 149.43. State ex rel. Findlay Publishing Co. v. Hancock Cty. Bd. of Commrs. (1997), 80 Ohio St.3d 134, 136, 684 N.E.2d 1222; State ex rel. Sun Newspapers v. Westlake Bd. of Edn. (1991), 76 Ohio App.3d 170, 601 N.E.2d 173.

{¶ 16} Nevertheless, the court of appeals determined that the proposed settlement agreement was exempt from disclosure as a trial-preparation record. R.C. 149.43(A)(1)(g). "[E]xceptions to disclosure must be strictly construed against the public records custodian, and the custodian bears the burden to establish the applicability of an exception." State ex rel. Besser v. Ohio State Univ. (2000), 89 Ohio St.3d 396, 398, 732 N.E.2d 373.

{¶ 17} The court of appeals erred in so concluding. As the appellate court in State ex rel. Kinsley v. Berea Bd. of Edn. (1990), 64 Ohio App.3d 659, 663, 582 N.E.2d 653, observed in rejecting a comparable argument concerning the applicability of the trial-preparation exemption to a settlement agreement:

{¶ 18} "A settlement agreement is not a record compiled in anticipation of or in defense of a lawsuit. It simply does not prepare one for trial. A settlement agreement is a contract negotiated with the opposing party to prevent or conclude litigation."

{¶ 19} Similarly, a settlement proposal received by a public office is not a record compiled in anticipation of or in defense against a lawsuit. It is simply an offer intended to prevent or conclude litigation.

{¶ 20} Moreover, we have consistently held that "[e]ven if a record is not in final form, it may still constitute a `record' for purposes of R.C. 149.43 if it documents the organization, policies, functions, decisions, procedures, operations, or other activities of a public office." See State ex rel. Calvary v. Upper Arlington (2000), 89 Ohio St.3d...