State ex rel. Lorain Journal Co. v. Lorain
| Decision Date | 09 June 1993 |
| Docket Number | No. 92CA005328,92CA005328 |
| Citation | 621 N.E.2d 894,87 Ohio App.3d 112 |
| Parties | , 9 IER Cases 443, 22 Media L. Rep. 1061 The STATE ex rel. the LORAIN JOURNAL COMPANY, d.b.a. The Morning Journal, v. CITY OF LORAIN et al. |
| Court | Ohio Court of Appeals |
Richard D. Panza, Russell R. Aukerman, Lorain, for relator.
Michael Scherach, Law Director, Lorain, for respondents.
This cause was heard upon a petition for writ of mandamus and motions for summary judgment. Both parties agreed to submit the case for a decision on the merits, based upon the stipulated facts.
In February 1992, relator, The Morning Journal ("Journal"), requested that respondents, city of Lorain Police Department and Michael Sherach ("city"), provide it with all records involved in the hiring of seven applicants, including questions, answers and results of polygraph tests. The city refused to provide the Journal with the results of the polygraph tests.
The Journal seeks an order from this court requiring the city to provide copies of the results of the polygraph tests taken by the applicants. The city seeks a determination from this court that the polygraph test results are statutorily exempt from disclosure.
R.C. 149.43(B) requires that all public records be promptly prepared and made available for inspection to any member of the general public at all reasonable times during regular business hours. A public record is "any record that is kept by any public office, * * * except * * * confidential law enforcement investigatory records[.]" R.C. 149.43(A)(1). Included within the definition of "public record" is "record," which is something that is "created or received by or coming under the jurisdiction of any public office * * * which serves to document the organization, functions, policies, decisions, procedures, operations, or other activities of the office." R.C. 149.011(G). An item which does not meet the definition of a "record" is not a public record. State ex rel. Fant v. Enright (1993), 66 Ohio St.3d 186, 188, 610 N.E.2d 997, 998. The results of the polygraph tests would meet the definition of a "record" because they are used to document the city's hiring decisions.
In order to be exempt from disclosure under R.C. 149.43, a record must meet two requirements. State ex rel. Natl. Broadcasting Co. v. Cleveland (1991), 57 Ohio St.3d 77, 79, 566 N.E.2d 146, 148. First, the record must be a "confidential law enforcement investigatory record." Second, the release of the record would create a high probability of disclosure of any one of four categories of information specified in R.C. 149.43(A)(2). Id.
The city has the burden of proving that the records meet the requirements to be exempt from disclosure pursuant to R.C. 149.43. State ex rel. Natl. Broadcasting Co. v. Cleveland (1988), 38 Ohio St.3d 79, 526 N.E.2d 786 ("Natl. Broadcasting I ").
The city asserts that the determination of whether a record qualifies for the confidential law enforcement record exception depends upon the nature of the record. State ex rel. Polovischak v. Mayfield (1990), 50 Ohio St.3d 51, 552 N.E.2d 635. The city compares the polygraph records to the investigatory records of state licensing agencies, which are exempt from disclosure under R.C. 149.43(A)(2). State ex rel. McGee v. Ohio State Bd. of Psychology (1990), 49 Ohio St.3d 59, 60, 550 N.E.2d 945, 946. In that case, however, the agency was investigating the psychologist based upon allegations of fraud, rather than making an initial licensing determination. In the present case, the city was not investigating any alleged wrongdoing.
The city also argues that the polygraph records comprise an administrative-type investigation into the background of each of the applicants. Such an investigation, the city argues, resembles a criminal investigation, in that its objective is to verify specific information provided by the job applicant concerning past illegal drug usage, dishonesty in employment, undetected felonies committed and abuse of alcohol. Dr. Horvath, the city's expert witness, states that an administrator's use of polygraph test results "is analogous to a police detective who investigates a criminal matter."
A similar argument was rejected in Dinkins v. Ohio Div. of Highway Patrol (N.D.Ohio 1987), 116 F.R.D. 270. The court found that a " 'law...
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