State ex rel. Cincinnati Post v. Schweikert

• Decision Date: 15 August 1988
• Docket Number: No. 87-562,87-562
• Citation: 38 Ohio St.3d 170,527 N.E.2d 1230
• Parties: The STATE, ex rel. CINCINNATI POST, Appellant, v. SCHWEIKERT, Court Admr., Appellee.
• Court: Ohio Supreme Court

Page 170

38 Ohio St.3d 170

527 N.E.2d 1230

The STATE, ex rel. CINCINNATI POST, Appellant, v. SCHWEIKERT, Court Admr., Appellee.

No. 87-562.

Supreme Court of Ohio.

Submitted June 8, 1988.

Decided Aug. 15, 1988.

On Rehearing Oct. 26, 1988.

Syllabus by the Court

1. The Public Records Law, R.C. 149.43, does not exempt compilations of information contained in public records and does not require members of the public to exhaust their energy and ingenuity to gather information which is already compiled and organized in a document created by public officials.

2. A report prepared by a court administrator from factual information contained in public records is a public record subject to disclosure under the Public Records Law, even though such compilations are made for the use of judges in sentencing.

This appeal arises from a mandamus action filed in the Court of Appeals for Hamilton County by the Cincinnati Post ("Post"), a newspaper of general circulation. The Post sought a writ of mandamus to obtain access to reports compiled by Mark R. Schweikert, the Court Administrator for the Hamilton County Municipal Court and Court of Common Pleas. Under the supervision of the judges of the common pleas and municipal courts for Hamilton County, Schweikert heads a staff of over three hundred twenty court employees, including probation officers, court reporters, clerical staff, courtroom employees, assignment commissioners, jury commissioners and arbitration commission personnel.

At issue is the Post's right under the Public Records Law, R.C. 149.43, to examine records compiled and maintained by Schweikert. Specifically, the Post wants access to two types of documents: one, a compilation of statistics about individuals who are in jail ("Judges Report on Prisoner Population--Sentenced Individuals"), and the other, a compilation of statistics about individuals who are about to be sentenced ("Judges Report on Prisoner Population--Pre-Trial and/or Pre-Sentenced Individuals"). Hamilton County judges use these compilations in determining whether to impose or reduce jail sentences. The reports are also used to assess the problem of jail overcrowding.

Both reports contain the same categories of information. For each judge, the reports identify the defendants assigned to his criminal docket; identify the defendants as to sex, race, and age; specify the charges, bond amount, and whether bond was made; inform the judge of "other jurisdiction holder[s]," prior convictions, violent history, drug, alcohol or psychiatric history, and probation violation history; and compile the "days served" by each defendant and note the next scheduled action and its date. There is also a column for comments. The reports on sentenced individuals supply information about sentence disposition and tentative release date.

In his deposition, Schweikert was asked, "Now, most of the information contained in the report[s] is a matter of public record?" Schweikert answered, "Yes." Further, respondent has offered no evidence that any of the information in the reports was not gleaned from public records.

The Post learned of a meeting between court officials and the county commissioners at which jail overcrowding was to be discussed. It also learned that a "report" would be reviewed at the meeting. When a Post reporter was refused attendance at the meeting as well as a copy of the "report," the Post filed an action in mandamus against Schweikert and the county commissioners.

In addition, the Post sought a temporary restraining order to prevent the meeting of the county commissioners in closed session. The Court of Appeals for Hamilton County denied the motion, ruling it moot because the meeting was terminated prior to the conclusion of the hearing conducted by the court. Thereupon the Post filed an amended complaint seeking the two types of documents previously described.

The court of appeals denied the Post's prayer on the ground that the reports are the work product of Schweikert and that the reports had not been delivered to the judges for whom they were made.

The cause is before this court on an appeal as of right.

Baker & Hostetler, Bruce W. Sanford, David L. Marburger, Wood & Lamping and William R. Ellis, Cincinnati, for appellant.

Arthur M. Ney, Jr., Pros. Atty., and Roger E. Friedmann, Cincinnati, for appellee.

HERBERT R. BROWN, Justice.

The issue we must decide is whether a report compiled by a court administrator from information contained in public records for the use of judges in sentencing and for consideration of prison population problems is a public record. We find that it is.

It is settled that relator, to secure a writ of mandamus, must demonstrate (1) a clear legal right to the relief prayed for; (2) respondents are under a clear duty to perform the acts; and (3) relator has no plain and adequate remedy in the ordinary course of law.

I

The records being sought are compilations, "work product" as the appellate court characterizes them. Our first question is whether the type of records being sought is subject to disclosure under the Public Records Law.

R.C. 149.43(A) defines "public record" as:

" * * * [A]ny 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."

"Record" is defined in R.C. 149.011(G) as:

" * * * [A]ny 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 Public Records Law imposes a duty upon the custodian of government records to allow any person to inspect them. R.C. 149.43(B). The Act represents a legislative policy in favor of the open conduct of government and free public access to government records. As we noted in Dayton Newspapers, Inc. v. Dayton (1976), 45 Ohio St.2d 107, 109, 74 O.O.2d 209, 211, 341 N.E.2d 576, 577:

" 'The rule in Ohio is that public records are the people's records, and that the officials in whose custody they happen to be are merely trustees for the people; therefore anyone may inspect such records at any time * * *.' "

The compilations at issue are created by public employees working under the supervision of the court administrator. The compilations contain statistics about individuals whom the government has imprisoned and convicted, or is about to imprison. The compilations document an operation of the Hamilton County justice system and they serve as a tool to be used in combating the Hamilton County jail overpopulation problem.

In R.C. 149.011(G), the General Assembly prefaces its definition of "records" with the term "includes," a term of expansion, not one of limitation or restriction. In re Hartman (1983), 2 Ohio St.3d 154, 155-156, 2 OBR 699, 700, 443 N.E.2d 516, 517; Craftsman Type, Inc. v. Lindley (1983), 6 Ohio St.3d 82, 83, 6 OBR 122, 123, 451 N.E.2d 768, 770.

R.C. 149.011(G) also provides that a record is "any" document that fits within the statutory description, regardless Before July 1985, the Public Records Law defined a "public record" as any record that is "required to be kept" by any governmental unit. Arguably, this definition excluded preliminary work product because such material may not be "required to be kept" until it reaches its final stage or official destination. However, in July 1985, the General Assembly changed the definition of public record, by eliminating the words "required to be [kept]" and substituting the words "is [kept]" (141 Ohio Laws, Part II, 2761, 2774).

                of the document's "form or characteristic."   That language encompasses documents such as the compilations at issue even if they may be characterized as work product.  See Dougherty v. Torrence (1982), 2 Ohio St.3d 69, 70, 2 OBR 625, 626, 442 N.E.2d 1295, 1296;  Wachendorf v. Shaver (1948), 149 Ohio St. 231, 236-237, 36 O.O. 554, 556-557, 78 N.E.2d 370, 374
                

Further, the law's public purpose requires a broad construction of the provisions defining public records. Because the law is intended to benefit the public through access to records, this court has resolved doubts in favor of disclosure. See the more comprehensive discussion by Justice Wright in State, ex rel. Natl. Broadcasting Co., v. Cleveland (1988), 38 Ohio St.3d 79, 526 N.E.2d 786. See, also, Dayton Newspapers, Inc., supra.

In light of the law's broad language and our construction of it, the compilations sought by the Post are public records even if they are work product in the sense that an effort has been made to bring together information from a variety of sources. See State, ex rel. Natl. Broadcasting Co., supra. See, also, Beacon Journal Pub. Co. v. Stow (Aug. 7, 1985), Summit App. No. 12058, unreported, affirmed (1986), 25 Ohio St.3d 347, 25 OBR 399, 496 N.E.2d 908. ¹

It is significant the so-called "work product" of Schweikert is a compilation of factual matter gleaned from public records. The United States Supreme Court has ruled that the work-product exemption in the federal Freedom of Information Act, Section 552(b)(5), Title 5, U.S.Code, does not apply to factual material. Environmental Protection Agency v. Mink (1973), 410 U.S. 73, 89, 93 S.Ct. 827, 837, 35 L.Ed.2d 119 accord Bristol-Myers Co. v. Federal Trade Comm. (C.A.D.C.1970), 424 F.2d 935, 939, certiorari denied (1970), 400 U.S. 824, 91 S.Ct. 46, 27 L.Ed.2d...