State, ex rel. Margolius v. Cleveland, 91-367

• Citation: 62 Ohio St.3d 456,584 N.E.2d 665
• Decision Date: 05 February 1992
• Docket Number: No. 91-367,91-367
• Parties: , 19 Media L. Rep. 2122 The STATE, ex rel. MARGOLIUS, v. CITY OF CLEVELAND et al.
• Court: United States State Supreme Court of Ohio

Page 456

62 Ohio St.3d 456

584 N.E.2d 665, 19 Media L. Rep. 2122

The STATE, ex rel. MARGOLIUS, v. CITY OF CLEVELAND et al.

No. 91-367.

Supreme Court of Ohio.

Submitted Nov. 6, 1991.

Decided Feb. 5, 1992.

SYLLABUS BY THE COURT

A governmental agency must allow the copying of the portions of computer tapes to which the public is entitled pursuant to R.C. 149.43, if the person requesting the information has presented a legitimate reason why a paper copy of the re cords would be insufficient or impracticable, and if such person assumes the expense of copying.

In her complaint for a writ of mandamus filed pursuant to the Public Records Act, R.C. 149.43, relator, Barbara Haas Margolius, requests that we direct respondents, city of Cleveland, Cleveland Chief of Police Edward Kovacic, and Donald Kasner, city of Cleveland Data Center Manager, to provide her with copies of certain magnetic computer tapes that contain records of Cleveland police activity from 1980 until the present. ¹ The Cleveland Police Department compiled the records in question by taking specific information from a sample of dispatch tickets and storing the information on the requested tapes in a data base, commonly referred to as the LASH data base. Relator also seeks, in paper form, a copy of the record layout of the information contained on the tapes, in order that she be able to access the data on the tapes.

Relator is a private citizen residing in Shaker Heights, Ohio, and is a doctoral student in operations research ² at Case Western Reserve University in Cleveland, Ohio. Margolius states in her complaint that she needs the tapes and record layout in order to complete her research into the effectiveness of the city's deployment and utilization of its police force. Such analysis, she asserts, can only be performed using a computer because of the large amount of data involved. She contends that the public has a clear legal right to copies of the tapes and the record layout because they constitute public records under R.C. 149.43. She further contends that by rejecting her repeated requests for the tapes, respondents have violated that right.

Respondents agree that the information contained on the computer tapes constitutes public records when the records are kept on paper, but contend that R.C. 149.43 does not confer upon relator the right to insist upon the form in which the records must be made available to the public. Relying upon this court's interpretation of the scope of R.C. 149.43 in State, ex rel. Recodat, v. Buchanan (1989), 46 Ohio St.3d 163, 546 N.E.2d 203, respondents have refused to provide relator with copies of the tapes she desires. Respondents instead have offered to provide to relator, at cost, a paper copy of the contents of the tapes. Respondents acknowledge that a paper copy does not currently exist, but they have agreed to print the information out from the tapes within a reasonable time at cost to relator.

Relator asserts that respondents' offer to provide her with a printout, which she estimates would stack eight to ten feet high and fill thirteen computer paper boxes, would effectively preclude her analysis of the data by computer, because of the amount of time and expense involved in transferring the data from the paper copy to computer files for use in her analysis. She suggests that respondents' action is a deliberate attempt to thwart public access to, and her analysis of, the data in question. She further asserts that their reading of Recodat results in an unwarranted expansion of that decision. ³

American Civil Liberties Union of Ohio and Susan M. Gilles, Columbus, for relator.

Danny Williams, Director of Law, Cleveland, Gary N. Travis, Parma Heights, and Joseph J. Jerse, Cleveland, for respondents.

Baker & Hostetler, David L. Marburger and Loretta H. Garrison, Cleveland, urging allowance of the writ for amici curiae, Plain Dealer Publishing Co. et al.

WRIGHT, Justice.

This action requires a comprehensive review of State, ex rel. Recodat, v. Buchanan (1989), 46 Ohio St.3d 163, 546 N.E.2d 203, a decision in which we declared that " * * * neither R.C. 149.43(B) nor 9.01 requires a public office to provide to the public * * * actual copies of the means of storage of public information [i.e., computer tapes]." Id. at 165, 546 N.E.2d at 205. We reached that conclusion in order to protect the proprietary interests of a third party in a computer software program that had been the subject of the Public Records Act request in that case. Id. Although the parties stipulated that the software was necessary to read certain computer tapes containing public records also requested by the petitioner, we rejected petitioner's request for a copy, holding that the proprietary software did not constitute a public record. Id.

Notwithstanding the broad sweep of that opinion, the facts presented in Recodat did not require us to address directly the questions presented here. The Recodat respondents had agreed to provide copies of the computer tapes in question to the petitioner therein; the dispute concerned only the request for proprietary software. Here the facts require us to consider other issues. These include whether the public is entitled to a copy of the public information on the tapes in computer-readable form in lieu of a paper copy of their contents, or alternatively whether computer tapes containing public, nonproprietary records are themselves public records.

In view of a certain degree of confusion generated by Recodat, we limit that decision to the unique facts of that case, and to the proposition that proprietary software does not constitute a public record under R.C. 149.43, even if such software is necessary in order to read public information contained on computer tapes. We now set forth what we believe is a clearer explanation of the duties of public agencies with respect to a request from the public for copies of public records fixed in a tangible medium such as computer tapes or disks.

R.C. 149.43(B) provides:

"All public records shall be promptly prepared and made available for inspection to any person at all reasonable times during regular business hours. Upon request, a person responsible for public records shall make copies available at cost, within a reasonable period of time. In order to facilitate broader access to public records, governmental units shall maintain public records in such a manner that they can be made available for inspection in accordance with this division."

The parties agree that the information stored upon the computer tapes constitutes a set of public records. They disagree whether relator has a right under the Public Records Act to expect release of the records in the form in which they were created.

Respondents assert that Recodat settles the issue and argue that that decision gives them the discretion to choose the form in which the public records will be provided to relator. Unless they are given such discretion, respondents argue, the city of Cleveland will not be able to perform its other governmental functions, because "scarce and valuable resources" of computer time and personnel will have to be dedicated to fulfilling records requests.

Relator contends that respondents' interpretation of R.C. 149.43, if adopted by the court, would give government agencies unbridled discretion to choose the form in which to produce public records, even if that choice diminishes the utility of the information to the public. Instead, relator urges the court to limit Recodat to its facts and fashion a rule that would require a government agency to make public records available in the form in which they were created, unless there is a demonstrable prejudice to the rights of other citizens.

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