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

• Citation: 32 Ohio St.3d 327,512 N.E.2d 1176
• Decision Date: 09 September 1987
• Docket Number: No. 87-102,87-102
• Parties: The STATE, ex rel. FOSTORIA DAILY REVIEW COMPANY, Appellant, v. FOSTORIA HOSPITAL ASSOCIATION et al., Appellees.
• Court: United States State Supreme Court of Ohio

Page 327

32 Ohio St.3d 327

512 N.E.2d 1176

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

No. 87-102.

Supreme Court of Ohio.

Sept. 9, 1987.

Appellee, Fostoria Hospital Association ("association"), is a nonprofit corporation organized, inter alia, for the purpose of operating Fostoria City Hospital. On December 18, 1961, the association executed a lease with the city of Fostoria for the use of the facility, and began operating the hospital in June 1962. The lease requires no rental payments for the association's use of the facility and provides that the hospital be open to all, regardless of ability to pay. Moreover, all operating expenses including insurance are undertaken by the appellee association. In 1974, a bond issue was approved by the voters of the city of Fostoria providing for the redemption of bonds through city income tax revenues. While proceeds for the bond sale have been used for capital improvements to the hospital facility, apparently no city funds have been provided for operating expenses.

On September 15, 1986, appellant Fostoria Daily Review Company, a corporation engaged in the business of publishing a daily newspaper of general circulation, instituted the instant original action in mandamus in the court of appeals seeking access to records kept by the association that it alleges are public records pursuant to R.C. 149.43. In particular, the appellant has sought all records of meetings held by the association's board of trustees and its five standing committees. Such records include the minutes of meetings and any audiotape recordings or written transcriptions thereof.

On December 19, 1986, the court of appeals denied the writ, holding that mandamus would not lie where appellant has an adequate remedy at law. Specifically, the court concluded that the General Assembly, in enacting R.C. 149.99, has delineated the procedure to be followed when redress is sought for violation of the public records statute, R.C. 149.43.

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

Baker & Hostetler, David L. Marburger and Susan M. Gilles, Cleveland, for appellant.

Shumaker, Loop & Kendrick, H. Francis McDaniel, Jr., Timothy C. McCarthy and David B. Shaver, Toledo, for appellees.

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

Baker & Hostetler, George W. Hairston, Robert B. McAlister and Daniel T. Kobil, Columbus, urging reversal for amicus curiae Ohio Newspaper Assn.

Roetzel & Andress, Norman S. Carr, Ronald S. Kopp and Robert J. Caffrey, Akron, urging reversal for amici curiae Beacon Journal Publishing Co. et al.

Dale V. Bring, Columbus, urging reversal for amicus curiae Ohio Ass'n of Broadcasters.

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

Bricker & Eckler, James J. Hughes, Jr. and Robert D. Jacobs, Columbus, urging affirmance for amicus curiae Ohio Hosp. Ass'n.

PER CURIAM.

The determinative issue posed in this appeal is whether R.C. 149.99 provides the exclusive remedy to compel compliance with the public records statute, R.C. 149.43. ¹ R.C. 149.99, as amended effective July 1, 1985, provides:

"Any person aggrieved by a violation of section 149.351 or 149.43 of the Revised Code, or both of these sections, may bring a civil action to compel compliance, and may recover a forfeiture of one thousand dollars and reasonable attorneys fees for each violation."

The cause sub judice originated in the court of appeals where appellant requested a writ of mandamus seeking disclosure of records kept by the appellee association that are alleged to be public records pursuant to R.C. 149.43. The appellate court held that the legislature had in fact provided parties seeking access to public records with an adequate remedy at law, viz., R.C. 149.99.

As noted by the court of appeals below, it is well-settled that in order to entitle the relator to a writ of mandamus the relator must show, and the record must disclose affirmatively, that there is no plain and adequate remedy in the ordinary course of law. State, ex rel. Stanley, v. Cook (1946), 146 Ohio St. 348, 32 O.O. 419, 66 N.E.2d 207, paragraph three of the syllabus; State, ex rel. Sibarco Corp., v. Berea (1966), 7 Ohio St.2d 85, 36 O.O.2d 75, 218 N.E.2d 428, certiorari denied (1967), 386 U.S. 957, 87 S.Ct. 1022, 18 L.Ed.2d 104; State, ex rel. Pressley, v. Indus. Comm. (1967), 11 Ohio St.2d 141, 40 O.O.2d 141, 228 N.E.2d 631; State, ex rel. Cody, v. Toner (1983), 8 Ohio St.3d 22, 8 OBR 255, 456 N.E.2d 813, certiorari denied (1984), 466 U.S. 938, 104 S.Ct. 1912, 80 L.Ed.2d 461.

In our view, the language of R.C. 149.99 envisions an action instituted in the court of common pleas for injunctive relief, forfeiture and attorney fees. However, in its present form, the precise language of R.C. 149.99 does not appear to encompass an action in mandamus. It must be emphasized that a writ of mandamus is an extraordinary remedy which is carefully and cautiously granted only when there exists no plain and adequate remedy in the ordinary course of the law. See State, ex rel. Roth, v. West (1935), 130 Ohio St. 119, 3 O.O. 146, 197 N.E. 115; and Pressley, supra. While it may be argued that mandamus is in fact a "civil action," R.C. 149.99 does not contemplate "any" civil action; rather, the very language of the statute details the form and type of civil actions permitted in order to redress alleged violations of R.C. 149.43.

Appellant contends that our recent decision in State, ex rel. Harmon, v. Bender (1986), 25 Ohio St.3d 15, 25 OBR 13, 494 N.E.2d 1135, is controlling where it was held that mandamus was the proper mechanism for assuring disclosure of public records. However, the records sought to be disclosed in Harmon were made in a trial occurring before the effective date of the current version of R.C. 149.99. Moreover, no discussion of R.C. 149.99 was rendered in our opinion in that cause.

The prior version of R.C. 149.99 provided:

"Whoever violates section 149.351, 149.43 or 149.431 of the Revised Code shall forfeit not more than five hundred dollars for each offense to the state. The attorney general shall collect the same by civil action."

Since the relief permitted under the prior version of R.C. 149.99 required an action instituted by the Attorney General, it was reasonable for us to apparently conclude in Harmon, supra, that the person seeking access to the records had no adequate remedy at law and that an action in mandamus was proper. However, under the amended version of R.C. 149.99, the General Assembly has provided an adequate remedy at law for persons seeking disclosure of public records and, thus, appellant's action in mandamus must fail on that ground alone.

Accordingly, the judgment of the court of appeals denying the writ of mandamus is hereby affirmed.

Judgment affirmed.

SWEENEY, LOCHER, HOLMES and HERBERT R. BROWN, JJ., concur.

MOYER, C.J., and DOUGLAS and McCORMAC, JJ., dissent.

McCORMAC, J., of the Tenth Appellate District, sitting for WRIGHT, J.

DOUGLAS, Justice, dissenting.

Because I believe that the majority decision is wrong on the facts, wrong on the law and, in addition, sets a very bad, serious and frightening policy with which I vigorously disagree, I must dissent.

This court has repeatedly recognized mandamus as an appropriate means of securing access to public records under R.C. 149.43. See, e.g., State, ex rel. Harmon, v. Bender (1986), 25 Ohio St.3d 15, 25 OBR 13, 494 N.E.2d 1135; State, ex rel. Dispatch Printing Co., v. Wells (1985), 18 Ohio St.3d 382, 18 OBR 437, 481 N.E.2d 632; State, ex rel. Plain Dealer Pub. Co., v. Lesak (1984), 9 Ohio St.3d 1, 9 OBR 52, 457 N.E.2d 821. However, the majority today decides that the recent amendment, effective July 1, 1985, to R.C. 149.99 now provides an adequate remedy at law, and that mandamus is therefore no longer available. For several reasons, this conclusion is untenable.

The mere existence of an alternative remedy at law does not render a writ of mandamus inappropriate. The remedy at law must be "adequate." See, e.g., State, ex rel. Pressley, v. Indus. Comm. (1967), 11 Ohio St.2d 141, 40 O.O.2d 141, 228 N.E.2d 631, paragraph one of the syllabus. This court has recently stated that a remedy at law is adequate only if the remedy is "complete in its nature, beneficial and speedy." State, ex rel. Liberty Mills, Inc., v. Locker (1986), 22 Ohio St.3d 102, 104, 22 OBR 136, 137, 488 N.E.2d 883, 885-886.

According to the majority, the alternative remedy at law in this case is provided by R.C. 149.99, as amended, which allows for a civil action in the common pleas court to compel compliance with R.C. 149.43, the statute requiring accessibility of public records. The majority concludes that the existence of this remedy at law precludes relief in mandamus. Among other matters, what the majority does not consider is whether this remedy is "adequate." The inevitable conclusion is that it is not.

Under the circumstances of this case, mandamus provides the only means of securing "complete * * *, beneficial and speedy" relief. The obvious reason that persons, particularly those in the news media, seek access to public records is to gain the information such records can impart. This information will be rendered stale, even useless, if the party seeking access is forced to pursue an ordinary civil action through the crowded dockets of the common pleas courts and then through the lengthy appellate process. The records being sought will very often contain information the public has a right and a need to know. The interests of the people of this state are clearly not served if the news media are forced to wage protracted legal battles, in the dubious hope of finally gaining access to information that will no longer be timely. This remedy can scarcely be characterized as "beneficial" or "speedy...