State ex rel. Findlay Publishing Co. v. Hancock Cty. Bd. of Commrs., 97-970

• Decision Date: 22 October 1997
• Docket Number: No. 97-970,97-970
• Citation: 684 N.E.2d 1222,80 Ohio St.3d 134
• Parties: The STATE ex rel. FINDLAY PUBLISHING COMPANY v. HANCOCK COUNTY BOARD OF COMMISSIONERS.
• Court: Ohio Supreme Court

Page 134

80 Ohio St.3d 134

684 N.E.2d 1222

The STATE ex rel. FINDLAY PUBLISHING COMPANY v. HANCOCK COUNTY BOARD OF COMMISSIONERS.

No. 97-970.

Supreme Court of Ohio.

Submitted Aug. 26, 1997.

Decided Oct. 22, 1997.

Betts, Miller & Russo and Ralph D. Russo, Findlay, for relator.

Robert A. Fry, Hancock County Prosecuting Attorney, for respondent.

PER CURIAM.

S.Ct.Prac.R. X(5) provides that in original actions other than habeas corpus filed in this court, "after the time for filing an answer to the complaint or a motion to dismiss, the Supreme Court will either dismiss the case or issue an alternative or a peremptory writ, if a writ has not already been issued." The board filed an answer and a Civ.R. 12(C) motion for judgment on the pleadings, which is permitted by S.Ct.Prac.R. X(5).

In order to be entitled to dismissal under Civ.R. 12(C), it must appear beyond doubt that relator can prove no set of facts warranting the requested relief, after construing all material factual allegations in the complaint and all reasonable inferences therefrom in relator's favor. State ex rel. Midwest Pride IV, Inc. v. Pontious (1996), 75 Ohio St.3d 565, 570, 664 N.E.2d 931, 936.

R.C. 149.43; Settlement Agreements

Relator contends that it is entitled to a writ of mandamus compelling the board to provide access to the settlement agreement pursuant to Ohio's Public Records Act, R.C. 149.43. 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, 639 N.E.2d 83, 89. A "public record" is "any record that is kept by any public office," with certain specified exceptions. R.C. 149.43(A)(1). R.C. 149.011(G) broadly defines "records" to include "any document, device, or item * * * 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." See, also, State ex rel. Thomas v. Ohio State Univ. (1994), 71 Ohio St.3d 245, 246-247, 643 N.E.2d 126, 128.

In general, a settlement agreement of a lawsuit in which a public office is a party is a public record subject to disclosure under R.C. 149.43. State ex rel. Sun Newspapers v. Westlake Bd. of Edn. (1991), 76 Ohio App.3d 170, 601 N.E.2d 173; State ex rel. Kinsley v. Berea Bd. of Edn. (1990), 64 Ohio App.3d 659, 582 N.E.2d 653; see, also, Bowman v. Parma Bd. of Edn. (1988), 44 Ohio App.3d 169, 542 N.E.2d 663. Settlement agreements document decisions and activities of the public office. R.C. 149.011(G).

The inclusion of settlement agreements involving public offices in the definition of public records subject to R.C. 149.43 comports with the court's duties to construe R.C. 149.43 liberally in favor of broad access and to resolve any doubt 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, 336.

The result is also consistent with the holdings of courts in other jurisdictions construing their own public records statutes. Daily Gazette Co., Inc. v. Withrow (1986), 177 W.Va. 110, 115, 350 S.E.2d 738, 743 ("It is clear that a * * * litigation settlement document in which one of the parties is a public body, involving an act or omission of the public body in the public body's official capacity, is a 'public record' within the meaning of a freedom of information statute * * *."); Dutton v. Guste (La.1981), 395 So.2d 683, 685; News & Observer Publishing Co. v. Wake Cty. Hosp. Sys. (1981), 55 N.C.App. 1, 12-13, 284 S.E.2d 542, 549; see, also, 1 O'Reilly, Federal Information Disclosure (2 Ed.1995) 9-23, Section 9.06 ("There will be areas in which the agency and court may sympathize with the desirability of withholding [disclosure of the records], as in litigation settlement situations, but these do not qualify for exempt status." [Emphasis added.] ).

The board, however, contends that the settlement agreement here is not subject to disclosure under R.C. 149.43. The board rejected relator's request for access to the settlement agreement based on the agreement's confidentiality provision and the fact that the board no longer had a copy of the agreement. In its Civ.R. 12(C) motion for judgment on the pleadings, the board contends that R.C. 121.22(G)(3) exempts the agreement from disclosure.

Confidentiality Provision

The confidentiality provision of the settlement agreement does not preclude disclosure under R.C. 149.43. A public entity cannot enter into enforceable promises of confidentiality regarding public records. State ex rel. Findlay Publishing Co. v. Schroeder (1996), 76 Ohio St.3d 580, 583, 669 N.E.2d 835, 839, citing Sun Newspapers, 76 Ohio App.3d at 173, 601 N.E.2d at 175; cf. State ex rel. Dispatch Printing Co. v. Wells (1985), 18 Ohio St.3d 382, 384, 18 OBR 437, 439, 481 N.E.2d 632, 634 (A contractual provision between city and employees cannot alter city's duty to provide access to public records under R.C. 149.43.). In fact, the board now concedes this point despite its earlier reliance on the unenforceable confidentiality provision.

Possession of Settlement Agreement

The board contends that although it had the settlement agreement when it adopted the resolution approving it, it returned the original and copies of the agreement to the private attorney hired by the county's insurer to defend the lawsuit on behalf of the county and its employees. The board thus suggests that since it no longer keeps the record, it is not subject to R.C. 149.43.

The board's argument is meritless. Government entities cannot conceal public records by delegating a public duty to a private entity. State ex rel. Gannett Satellite Info. Network v. Shirey (1997), 78 Ohio St.3d 400, 404, 678 N.E.2d 557, 561. The preparation of the settlement agreement by the attorney for the county's insurer, who is representing the county and its employees in the lawsuit, constitutes a public duty performed by the county's agent. See, e.g., State ex rel. Mazzaro v. Ferguson (1990), 49 Ohio St.3d 37, 550 N.E.2d 464; see, also, Daily Gazette at 117, 350 S.E.2d at 744, fn. 5 ("Preparation of a writing, such as a litigation settlement document, by an attorney for a public body or by an attorney for a public body's insurer is viewed as preparation by the public body for the purpose of [the State Freedom of Information Act.]. Otherwise a public body could thwart disclosure under the State FOIA by having an attorney or an insurer's attorney prepare every writing which the public body wishes to keep confidential.").

R.C. 121.22(G)(3)

In its motion for judgment on the pleadings, the board contends that R.C. 121.22(G)(3) exempts the settlement agreement from disclosure under R.C. 149.43. R.C. 149.43(A)(1) exempts from disclosure "[r]ecords the release of which is prohibited by state or federal law." R.C. 121.22(G) provides that "members of a public body may hold [a private] executive session only after a majority of a quorum of the public body determines, by a roll call vote, to hold an executive session and only at a regular or special meeting for the sole purpose of the consideration of any of the following matters: * * * (3) Conferences with an attorney for the public body concerning disputes involving the public body that are the subject of pending or imminent court action."

According to the board, it held an executive session at which it discussed the settlement agreement prior to adopting the resolution approving the agreement in an open meeting. As relator notes, however, these purported facts are not properly considered in determining the board's Civ.R. 12(C) motion for judgment on the pleadings because relator is entitled to have all material allegations in its complaint, with all reasonable inferences to be drawn therefrom, construed in its favor as true. Peterson v. Teodosio (1973), 34 Ohio St.2d 161, 165-166, 63 O.O.2d 262, 264, 297 N.E.2d 113, 117.

Further, even assuming the accuracy of the board's statement of facts in its motion, R.C. 121.22(G)(3) does not exempt the settlement agreement from disclosure under R.C. 149.43. As the Court of Appeals for Cuyahoga County noted in rejecting an identical contention in Kinsley, 64 Ohio App.3d at 664, 582 N.E.2d at 656:

"While R.C. 121.22(G)(3) permits a governmental body to privately discuss litigation, the statute expressly invalidates any resolution, rule or formal action adopted in the closed session unless the resolution, rule or formal action is adopted in an open meeting. See R.C. 121.22(H). Thus, once a conclusion is reached regarding pending or imminent litigation, the conclusion is to be made...