State ex rel. Fostoria Daily Review Co. v. Fostoria Hosp. Ass'n

• Decision Date: 30 November 1988
• Docket Number: No. 87-2055,87-2055
• Parties: , 16 Media L. Rep. 1021 The STATE, ex rel. FOSTORIA DAILY REVIEW COMPANY, v. FOSTORIA HOSPITAL ASSOCIATION, et al.
• Court: Ohio Supreme Court

Page 10

40 Ohio St.3d 10

531 N.E.2d 313, 16 Media L. Rep. 1021

The STATE, ex rel. FOSTORIA DAILY REVIEW COMPANY, v. FOSTORIA HOSPITAL ASSOCIATION, et al.

No. 87-2055.

Supreme Court of Ohio.

Submitted Sept. 20, 1988.

Decided Nov. 30, 1988.

Baker & Hostetler and David L. Marburger, Cleveland, for relator.

Shumaker, Loop & Kendrick, H. Francis McDaniel, Jr., Timothy C McCarthy and Robert A. Koenig, Toledo, for respondents.

Baker & Hostetler and Susan M. Gilles, Cleveland, urging allowance for amici curiae, Associated Press, et al.

Anthony J. Celebrezze, Jr., Atty. Gen., and Simon B. Karas, Columbus, urging allowance for amicus curiae, Atty. Gen.

Timothy D. Smith, Stow, urging allowance for amicus curiae, Common Cause/Ohio.

Bricker & Eckler, James J. Hughes, Jr. and Richard T. Taps, Columbus, urging denial for amicus curiae, Ohio Hosp. Ass'n.

PER CURIAM.

For the reasons stated below, we hold that Fostoria City Hospital is a public office whose public records must be disclosed by FHA. Therefore, we grant the writ.

This court held in State, ex rel. Fostoria Daily Review Co., v. Fostoria Hosp. Assn. (1987), 32 Ohio St.3d 327, 512 N.E.2d 1176, that mandamus is not available to one seeking public records because there is an adequate remedy at law. Thereafter, the General Assembly amended R.C. 149.43 to permit a mandamus action to obtain public records, specifically expressing its intent to supersede the effect of Fostoria Daily Review, supra. See Section 3 of S.B. 275, effective October 15, 1987. Thus, the instant action is before this court for a decision on the merits.

"Mandamus will lie where a court finds that the relator has a clear legal right to the relief prayed for, that the respondent is under a clear legal duty to perform the requested act, and that relator has no plain and adequate remedy at law." (Citations omitted.) State, ex rel. Plain Dealer Publishing Co., v. Lesak (1984), 9 Ohio St.3d 1, 3, 9 OBR 52, 53, 457 N.E.2d 821, 822-823.

Relator argues that Fostoria City Hospital is a public institution of the city of Fostoria and that the records documenting its operation are public records. Respondents focus their argument on the status of FHA as the body ultimately responsible for the management and operation of the hospital and as the custodian of the records in question. Since FHA is a private, nonprofit corporation, respondents argue, R.C. 149.43 may not be applied to compel disclosure of the records relator seeks.

All public records are to be promptly prepared and made available to any person seeking them. R.C. 149.43(B). A "public record" is defined in R.C. 149.43(A)(1) 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."

"Public office" is defined in R.C. 149.011(A) as:

" * * * [A]ny state agency, public institution, political subdivision, or any other organized body, office, agency, institution, or entity established by the laws of this state for the exercise of any function of government."

In State ex rel. Fox v. Cuyahoga Cty. Hosp. System (1988), 39 Ohio St.3d 108, 529 N.E.2d 443, paragraph one of the syllabus, we stated that:

"A public hospital, which renders a public service to residents of a county and which is supported by public taxation, is a 'public institution' and thus a 'public office' pursuant to R.C. 149.011(A), making it subject to the public records disclosure requirements of R.C. 149.43."

Thus, if we find that a particular hospital is a public hospital, renders a public service to residents, and is supported by public taxation, we must hold that it is a public office required to disclose its public records.

In the instant case, the main hospital building was originally leased pursuant to R.C. 749.35, which authorizes the lease of a city-owned hospital building to a nonprofit corporation for use as a general hospital. See, also, R.C. 140.05. According to R.C. 749.35, if the nonprofit corporation fails to operate the hospital as a public general hospital, the lease may be terminated and the control and management of the hospital, including equipment, revert to the city.

The instant lease embodies these terms. Moreover, the Fostoria City Hospital is the only hospital within the city of Fostoria. Thus, under the law and the facts, the Fostoria City Hospital is a public hospital that renders a public service to the residents of the city.

The next question, whether the hospital is supported by public taxation, must also be answered in the affirmative. In Cleveland Elec. Illum. Co. v. Cleveland (1988), 37 Ohio St.3d 50, 524 N.E.2d 441, this court, in holding that a city may not support a municipally owned public utility with tax-generated revenue where such support is banned by the city charter, stated:

"It cannot be disputed that once the debt is excused, Muni Light becomes a tax supported utility, since the money advanced was taken from tax-generated city funds." Id. at 53, 524 N.E.2d at 444.

Further, at 54, 524 N.E.2d at 445, the court stated:

"Nor are the words 'non-tax supported' limited in their prohibitive effect to outright transfers of tax-generated funds to utilities such as Muni Light. Support in any form is forbidden where such support is derived from tax revenue. Any money advanced to Muni Light from the general fund or other tax-generated source on terms substantially more favorable than those generally available in the commercial market constitutes 'support' to the extent that Muni Light enjoys a benefit therefrom. Where a 'non-tax supported' utility receives an advancement from a tax-generated fund on terms which call for, as an example, interest payments far lower than the prevailing rate, or which set forth an unrealistically lengthy repayment schedule, the advancement...