State ex rel. Findlay Publishing Co. v. Schroeder

• Decision Date: 02 October 1996
• Docket Number: No. 96-1185,96-1185
• Parties: The STATE ex rel. FINDLAY PUBLISHING COMPANY v. SCHROEDER.
• Court: Ohio Supreme Court

Page 580

76 Ohio St.3d 580

669 N.E.2d 835

The STATE ex rel. FINDLAY PUBLISHING COMPANY v. SCHROEDER.

No. 96-1185.

Supreme Court of Ohio.

Submitted July 24, 1996.

Decided Oct. 2, 1996.

Prior to February 24, 1995, Hancock County Coroner Leroy L. Schroeder, M.D., respondent, prepared and filed in the Office of the Clerk of the Hancock County Court of Common Pleas a report of each death coming under his jurisdiction in the county. Since February 24, 1995, none of Schroeder's records has been available for public inspection, i.e., they had not been filed in the clerk's office. Following Schroeder's repeated refusal to permit inspection of his records, the Findlay Publishing Company, relator, filed this action for a writ of mandamus to compel Schroeder to keep records pursuant to R.C. 313.09 and to permit public inspection and copying of these records pursuant to R.C. 313.10 and 149.43.

On May 20, 1996, after relator's commencement of this mandamus action, Schroeder filed his records in the clerk's office concerning all cases coming under his jurisdiction and supervision since February 24, 1995 involving persons dying by accidental or natural causes and, in one instance, by homicide. However, Schroeder did not file any of his remaining records, which consist of cases in which the cause of death was suicide. Schroeder did not provide public access to these records because family members of the suicide victims requested that the records remain confidential.

Schroeder has filed a motion to dismiss, or, alternatively, for summary judgment. Schroeder has attached to his motion evidence of a declaratory judgment action on the same subject pending in the common pleas court.

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:

"The respondent shall file an answer to the complaint or a motion to dismiss within 21 days of service of the summons and complaint. The respondent may file a motion for judgment on the pleadings at the same time an answer is filed. 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 peremptory writ, if a writ has not already been issued."

Schroeder filed a Civ.R. 12(B)(6) motion to dismiss which alternatively requests summary judgment. In order to dismiss a complaint for failure to state a claim upon which relief can be granted, it must appear beyond doubt that relator can prove no set of facts warranting relief, after all factual allegations of the complaint are presumed true and all reasonable inferences are made in relator's favor. Civ.R. 12(B)(6); State ex rel. Seikbert v. Wilkinson (1994), 69 Ohio St.3d 489, 490, 633 N.E.2d 1128, 1129.

Here, relator concedes that it has now been provided with some of the records it requested. Therefore, this portion of relator's mandamus action is moot. State ex rel. Pennington v. Gundler (1996), 75 Ohio St.3d 171, 173, 661 N.E.2d 1049, 1051; see, also, State ex rel. Neff v. Corrigan (1996), 75 Ohio St.3d 12, 16, 661 N.E.2d 170, 174, and cases cited therein (courts may take judicial notice of appropriate matters in determining Civ.R. 12[B] motion without converting it to a motion for summary judgment); Hughes v. Butler Cty. Bd. of Revision (1944), 143 Ohio St. 559, 560, 28 O.O. 477, 478, 56 N.E.2d 63, 64.

Schroeder claims that the remainder of relator's mandamus action is subject to dismissal under Civ.R. 12(B)(6) because of a previously filed declaratory judgment action. To establish this assertion, Schroeder erroneously relies on evidentiary material attached to his motion. See State ex rel. Boggs v. Springfield Loc. School Dist. Bd. of Edn. (1995), 72 Ohio St.3d 94, 96, 647 N.E.2d 788, 791 (court cannot rely on allegations or evidence outside complaint in determining Civ.R. 12[B] motion). Based solely on the complaint, it does not appear beyond doubt that relator can prove no set of facts entitling it to a writ of mandamus. Schroeder's motion is therefore overruled. Further, Schroeder's alternative request for summary judgment is denied because Civ.R. 56 motions are clearly inapplicable under S.Ct.Prac.R. X(5).

We now determine whether an alternative or a peremptory writ should issue. Relator requests a peremptory writ of mandamus. In its memorandum in opposition to Schroeder's motion to dismiss, relator admits the existence of the pending declaratory judgment action filed prior to this mandamus action. Schroeder and unnamed members of seven different families who had a family member commit suicide in 1995 filed a complaint against relator in the Hancock County Court of Common Pleas. They requested a judgment declaring that Schroeder is not required to disclose records relating to these persons who committed suicide.

Schroeder contends that mandamus should not issue because the pending declaratory judgment action constitutes an adequate remedy in the ordinary course of the law. Generally, " '[w]here parties to a mandamus action are also parties, or may be joined as parties, in a previously filed declaratory judgment action involving the same subject matter, a court, in the exercise of its discretion, may refuse to issue a writ of mandamus.' " State ex rel. Huntington Ins. Agency, Inc. v. Duryee (1995), 73 Ohio St.3d 530, 537, 653 N.E.2d 349, 356, quoting State ex rel. Bennett v. Lime (1978), 55 Ohio St.2d 62, 9 O.O.3d 69, 378 N.E.2d 152, syllabus. However, we have held that persons seeking public records pursuant to R.C. 149.43(C) need not establish the lack of an adequate remedy at law in order to be entitled to a writ of mandamus. See, e.g., State ex rel. Steckman v. Jackson (1994), 70 Ohio St.3d 420, 426, 639 N.E.2d 83, 89 ("[M]andamus is the appropriate remedy to force compliance with the open-records statute."); State ex rel. Scripps-Howard Broadcasting Co. v. Cuyahoga Cty. Court of Common Pleas, Juv. Div. (1995), 73 Ohio St.3d 19, 23, 652 N.E.2d 179, 183 ("As to the juvenile court's contention that a declaratory judgment constitutes an adequate legal remedy which precludes a writ of mandamus, to the extent that relator seeks a copy of the transcript under R.C. 149.43, it need not establish the lack of an adequate remedy."). Therefore, the pending declaratory judgment action does not preclude this mandamus action.

In the declaratory judgment action, Schroeder contends that his coroner's records related to suicides need not be disclosed because of the federal Freedom of Information Act ("FOIA"), R.C. Chapter 1347, and the right of privacy. In essence, Schroeder claims that the release of these records is prohibited by state or federal law. R.C. 149.43(A)(1). Exceptions to disclosure are strictly construed against the custodian of public records, and the burden to establish an exception is on the custodian. State ex rel. James v. Ohio State Univ. (1994), 70 Ohio St.3d 168, 169, 637 N.E.2d 911, 912. R.C. 149.43 is liberally construed to further broad access, and any doubt is resolved in favor of disclosure of public records. State ex rel. Warren Newspapers, Inc. v. Hutson (1994), 70 Ohio St.3d 619, 621, 640 N.E.2d 174, 177.

None of the exceptions raised by Schroeder precludes...