State ex rel. Cincinnati v. Jones-Kelley, No. 2006-2239.

• Court: United States State Supreme Court of Ohio
• Writing for the Court: O'Donnell
• Citation: 2008 Ohio 1770,118 Ohio St.3d 81,886 N.E.2d 206
• Parties: The STATE ex rel. CINCINNATI ENQUIRER, A Division of Gannett Satellite Network, Inc. v. JONES-KELLEY, Dir.
• Decision Date: 17 April 2008
• Docket Number: No. 2006-2239.

886 N.E.2d 206 118 Ohio St.3d 81 2008-Ohio-1770 The STATE ex rel. CINCINNATI ENQUIRER, A Division of Gannett Satellite Network, Inc.
v.
JONES-KELLEY, Dir. No. 2006-2239. Supreme Court of Ohio. Submitted January 8, 2008. Decided April 17, 2008.

[886 N.E.2d 209]

Graydon, Head & Ritchey, L.L.P., John C. Greiner, Cincinnati, and Jeffrey B. Allison, Mitchell, KY, for relator.

Marc Dann, Attorney General, William P. Marshall, Solicitor General, Elise Porter, Deputy Solicitor, Henry G. Appel, Assistant Solicitor, and Jeffrey W. Clark, Senior Assistant Attorney General, for respondent.

Randall B. Muth, urging denial of the writ for amici curiae Public Children Services Association of Ohio and County Commissioners' Association of Ohio.

Porter, Wright, Morris & Arthur, L.L.P., and Kathleen M. Trafford, Columbus, urging denial of the writ for amici curiae Ohio Association of Child Caring Agencies and Ohio Family Care Association.

O'DONNELL, J.

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{¶ 1} This is an original action for a writ of mandamus to compel the director of the Ohio Department of Job and Family Services ("ODJFS") to provide access to an electronic copy of a database of the names and addresses of certified foster caregivers in the state. Because the director failed to meet her burden to establish that the requested record is excepted from disclosure, we grant the writ.

{¶ 2} Relator, the Cincinnati Enquirer, a division of Gannett Satellite Network, Inc. ("Enquirer"), operates and does business as the Cincinnati Enquirer, a newspaper of general circulation in Cincinnati, Ohio. In September 2006, a

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reporter for the Enquirer requested that Barbara Riley, who was then the director of ODJFS, provide "an electronic copy of the ODJFS database containing the names and addresses of all foster associations, institutions or homes certified by the state under O.R.C. Chapter 5103." ODJFS provided the Enquirer with a list of private agencies certified to perform foster-care-related functions, but the department did not provide a list of the names and addresses of certified foster homes. As of August 1, 2007, there were 9,985 certified foster homes in Ohio. According to an ODJFS official, during one investigation, the department learned that approximately 80 percent of all foster homes have had a foster child in the past year. The department did not present evidence that these foster homes had either applied for or received financial assistance from the federal or state government.

{¶ 3} In December 2006, the Enquirer filed this action for a writ of mandamus to compel Riley, in her capacity as director of ODJFS, to provide the requested foster-home record. Respondent, Helen Jones-Kelley, succeeded Riley as the director of ODJFS, filed an answer, and is automatically substituted as the respondent in this case. S.Ct.Prac.R. X(2) and Civ.R. 25(D)(1). After the parties attempted mediation, we granted the Enquirer's application to dismiss Count Two of its complaint, a separate, unrelated public-records claim, and we granted an alternative writ on the remaining count. The parties submitted evidence and briefs, and the Public Children Services Association of Ohio, County Commissioners' Association of Ohio, Ohio Association of Child Caring Agencies, and Ohio Family Care Association submitted amicus curiae briefs in support of the director. The parties presented oral argument on January 8, 2008.

{¶ 4} This cause is now before us for our consideration.

Mandamus

{¶ 5} "Mandamus is the appropriate remedy to compel compliance with

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R.C. 149.43, Ohio's Public Records Act." State ex rel. Physicians Commt. for Responsible Medicine v. Ohio State Univ. Bd. of Trustees, 108 Ohio St.3d 288, 2006-Ohio-903, 843 N.E.2d 174, ¶ 6; R.C. 149.43(C). In determining a public-records mandamus claim, "R.C. 149.43 is construed liberally in favor of broad access, and any doubt is resolved in favor of disclosure of public records." State ex rel. Cincinnati Enquirer v. Hamilton Cty. (1996), 75 Ohio St.3d 374, 376, 662 N.E.2d 334.

{¶ 6} For purposes of R.C. 149.43, ODJFS is a public office and its director is a public official. See R.C. 149.011(A), defining "public office" to include "any state agency"; R.C. 149.011(B), defining "state agency" to include "every department * * * established by the * * * laws of this state for the exercise of any function of state government"; R.C. 149.011(D), defining "public official" to include "all

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officers, employees, or duly authorized representatives or agents of a public office."

{¶ 7} The director of ODJFS is the custodian of the department's records. The requested electronic copy of the database containing the names and addresses of foster caregivers in the state is a record under the Public Records Act because maintaining a record of names and addresses of foster caregivers is part of the department's duty in certifying foster caregivers. R.C. 149.011(G) ("`Records' includes any document, device, or item, regardless of physical form or characteristic, including an electronic record as defined in section 1306.01 of the Revised Code, 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").

{¶ 8} Therefore, in the absence of any exception to disclosure under the Public Records Act, the Enquirer is entitled to a copy of the requested names and addresses of certified foster caregivers in the state.

Exceptions to Disclosure: Construction and Burden of Proof

{¶ 9} The director asserts that the requested electronic copy of the names and addresses of all foster caregivers certified by the state is excepted from disclosure by (1) federal and state law because foster caregivers are recipients of payments from a government program, (2) state law concerning data entered into the uniform, statewide, automated child-welfare-information system ("SACWIS"), and (3) a "good sense" rule consistent with public-records precedent.

{¶ 10} Exceptions to disclosure under the Public Records Act, R.C. 149.43, are strictly construed against the public-records custodian, and the custodian has the burden to establish the applicability of an exception. State ex rel. Carr v. Akron, 112 Ohio St.3d 351, 2006-Ohio-6714, 859 N.E.2d 948, ¶ 30; State ex rel. Beacon Journal Publishing Co. v. Akron, 104 Ohio St.3d 399, 2004-Ohio-6557, 819 N.E.2d 1087, ¶ 23. A custodian does not meet this burden if it has not proven that the requested records fall squarely within the exception. The director relies on R.C. 149.43(A)(1)(v), which excepts from disclosure "[r]ecords the release of which is prohibited by state or federal law."

Exceptions to Disclosure: Foster-Care Maintenance Payments

{¶ 11} "The Congress has enacted several statutes aimed at improving child welfare services provided by the several States," including Title IV-E of the Social Security Act, Section 670 et seq., Title 42,

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U.S.Code, which makes federal funds available to state programs that provide "`foster care and transitional independent living programs for children' and `adoption assistance for children with special needs.'" Nebraska Dept. of

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Health & Human Servs. v. Dept. of Health & Human Servs. (C.A.D.C.2006), 435 F.3d 326, 327, quoting Section 670, Title 42, U.S.Code.

{¶ 12} Under Section 671, Title 42, U.S.Code, a state is eligible for federal payments if it has an approved plan that, among other things, "provides for foster care maintenance payments in accordance with section 672 of this title" and "provides safeguards which restrict the use of or disclosure of information concerning individuals assisted under the State plan" to the specified purposes, including the administration of the plan. Sections 671(a)(1) and (8), Title 42, U.S.Code. "Foster-care maintenance payments" are "payments to cover the cost of (and the cost of providing) food, clothing, shelter, daily supervision, school supplies, a child's personal incidentals, liability insurance with respect to a child, and reasonable travel to the child's home for visitation." Section 675(4)(A), Title 42, U.S.Code. Federal regulations reiterate the requirement of confidentiality specified in the act. See Section 1355.21(a), Title 45, C.F.R. ("The State plans for titles IV-E and IV-B must provide for safeguards on the use and disclosure of information which meet the requirements contained in section 471(a)(8) of the Act"); Section 205.50(a)(1)(i), Title 45, C.F.R. ("use or disclosure of information concerning applicants and recipients" of "financial assistance" is limited to specified purposes); Section 205.50(a)(1)(iv), Title 45, C.F.R. ("Publication of lists or names of applicants and recipients will be prohibited").

{¶ 13} Ohio has implemented its plan by designating ODJFS as "the single state agency to administer federal payments for foster care and adoption assistance made pursuant to Title IV-E" and requiring counties to make payments "on behalf of each child eligible for foster care maintenance payments under Title IV-E * * * to cover the cost of providing * * * [t]he child's food, clothing, shelter, daily supervision, and school supplies." R.C. 5101.141(B) and (C)(1)(a); see also Weaver v. Ohio Dept. of Job & Family Servs., 153 Ohio App.3d 331, 2003-Ohio-3827, 794 N.E.2d 92, ¶ 4-6.

{¶ 14} In compliance with Section 671(a)(8), Title 42, U.S.Code, R.C. 5101.27(A) generally provides that "no person or government entity shall solicit, disclose, receive, use, or knowingly permit, or participate in the use of any information regarding a public assistance recipient for any purpose not directly connected with the administration of a public assistance program." "Public assistance" includes "financial assistance, medical assistance, or social services...