State ex rel. James v. Ohio State Univ.

• Decision Date: 31 August 1994
• Docket Number: No. 94-833,94-833
• Citation: 637 N.E.2d 911,70 Ohio St.3d 168
• Parties: , 92 Ed. Law Rep. 1259 The STATE ex rel. JAMES v. OHIO STATE UNIVERSITY et al.
• Court: Ohio Supreme Court

Page 168

70 Ohio St.3d 168

637 N.E.2d 911, 92 Ed. Law Rep. 1259

The STATE ex rel. JAMES v. OHIO STATE UNIVERSITY et al.

No. 94-833.

Supreme Court of Ohio.

Submitted June 29, 1994.

Decided Aug. 31, 1994.

SYLLABUS BY THE COURT

Promotion and tenure records maintained by a state-supported institution of higher education are "public records" pursuant to R.C. 149.43(A)(1), are not subject to any exception, and are, therefore, subject to the public records disclosure requirements of R.C. 149.43(B).

Relator, William Calvin James, an assistant professor in the department of geological sciences at respondent Ohio State University ("university"), seeks access to and copies of records contained in tenure and promotion files maintained by the university in various college and departmental offices. Respondent James Garland, dean of the college of math and physical sciences, offered James access to a redacted version of James's own promotion and tenure file, but refused James access to any other employee's promotion and tenure file. As to James's promotion and tenure file, respondent Garland refused to provide James access to the chairperson's evaluation letter and any information which might reveal the identity of persons evaluating James's work.

James brought this original action in mandamus to compel respondents to provide access to the disputed records.

William Calvin James, pro se.

Porter, Wright, Morris & Arthur and Kathleen M. Trafford, Columbus, for respondents.

WRIGHT, Justice.

At issue in this case is whether documents contained in promotion and tenure files maintained by the university are public records subject to disclosure under R.C. 149.43(B), or whether the records meet any of the exceptions contained in R.C. 149.43(A)(1) so as to prevent disclosure.

The university does not dispute that it is a state agency and public office under R.C. 149.011. Rather, it argues that the records are excepted from disclosure under R.C. 149.43(A)(1). In considering the university's arguments, we are mindful that exceptions to disclosure are to be construed strictly against the custodian of public records and doubt should be resolved in favor of disclosure. State ex rel. Plain Dealer Publishing Co. v. Lesak (1984), 9 Ohio St.3d 1, 4, 9 OBR 52, 54, 457 N.E.2d 821, 823 (Celebrezze, C.J., concurring). Further, the burden to establish an exception is on the custodian of the public records. State ex rel. Natl. Broadcasting Co. v. Cleveland (1988), 38 Ohio St.3d 79, 83, 526 N.E.2d 786, 790.

The university makes two claims that the records are not subject to disclosure: that R.C. 149.43(A)(2)(a) and (b) justify redaction of the evaluators' names, and that disclosure would substantially infringe the university's constitutionally protected right to academic freedom. We reject both arguments.

The university contends that an evaluator is the equivalent of "an information source or witness to whom confidentiality has been reasonably promised" under R.C. 149.43(A)(2)(a) and (b). However, in making this argument the university ignores R.C. 149.43(A)(2), which limits the applicability of R.C. 149.43(A)(2)(a) and (b) to "[c]onfidential law enforcement investigatory record[s]." Under no stretch of the imagination can the personnel records in question be deemed confidential law enforcement investigatory records. Therefore, the university's reliance on R.C. 149.43(A)(2)(a) and (b) is at best misplaced and, at worst, disingenuous.

This is particularly true in light of the university's statement in its own "GUIDELINES FOR PROMOTION AND TENURE PROCEDURES AT THE DEPARTMENT, COLLEGE, AND UNIVERSITY LEVELS," that "[i]t is the policy of the Ohio State University to maintain confidentiality, within the limits of law, regarding access to all letters of evaluation, including those from the inside and outside evaluators, promotion and tenure committees, the chairperson, and the dean. However, these materials are not exempted from the Ohio Public Records Act at this time. Prospective external evaluators should be informed of both these facts." ¹ (Emphasis added.)

The university's other contention is that disclosure of the records at issue would substantially infringe its constitutionally protected right to academic freedom. Without specifically so stating, it would appear that the university is arguing that the records are not public records under R.C. 149.43(A)(1) because their release "is prohibited by state or federal law."

Basically the university's argument is as follows. Academic freedom implicates core First Amendment values. The tenure process is at the heart of academic freedom; therefore, the tenure process also implicates these values. Since the integrity of the tenure process depends on the confidentiality of evaluators of candidates, the disclosure of evaluators' names violates the university's constitutionally protected right to academic freedom.

The university's argument is based on unfounded premises and we reject its conclusion for the same reasons the United States Supreme Court rejected a similar argument when it considered whether promotion and tenure peer review documents are discoverable by the Equal Employment Opportunity Commission in a Title VII investigation. In Univ. of Pennsylvania v. E.E.O.C. (1990), 493 U.S. 182, 110 S.Ct. 577, 107 L.Ed.2d 571, the University of Pennsylvania, a private institution, argued that its constitutional right of academic freedom would be infringed by...