State ex rel. McCleary v. Roberts

• Citation: 725 NE 2d 1144,88 Ohio St.3d 365
• Decision Date: 12 April 2000
• Docket Number: No. 99-316.,99-316.
• Parties: THE STATE EX REL. MCCLEARY, APPELLEE, v. ROBERTS, APPELLANT.
• Court: United States State Supreme Court of Ohio

88 Ohio St.3d 365

725 NE 2d 1144

THE STATE EX REL. MCCLEARY, APPELLEE, v. ROBERTS, APPELLANT.

No. 99-316.

Supreme Court of Ohio.

Submitted December 1, 1999.

Decided April 12, 2000.

Cornell H. McCleary, pro se.

Janet E. Jackson, Columbus City Attorney, and Daniel W. Drake, Chief Counsel, for appellant.

Betty D. Montgomery, Attorney General, Mark R. Weaver, Special Counsel, and Lisa Wu Fate, Assistant Attorney General, urging reversal for amicus curiae Attorney General of Ohio.

Barry M. Byron, Stephen L. Byron and John Gotherman, urging reversal for amicus curiae Ohio Municipal League.

DOUGLAS, J.

The issue presented for our review is whether the Department's database containing certain personal, identifying information regarding children who use the City's recreational facilities is a public record subject to disclosure pursuant to R.C. Chapter 149, Ohio's Public Records Act. Subject to certain enumerated exceptions, a "public record" is defined by R.C. 149.43(A)(1) as "any record that is kept by any public office, including, but not limited to, state, county, city, village, township, and school district units * * *." (Emphasis added.) R.C. 149.43(B) provides that "[a]ll public records shall be promptly prepared and made available for inspection to any person at all reasonable times during regular business hours."

There is no dispute that the requested information is under the custody and control of a public office. The City's Recreation and Parks Department clearly falls under the statutory definition of "public office" as set forth in R.C. 149.011(A).¹ Nonetheless, in order to resolve the issue under consideration, we must determine whether the information sought is a "record" as that term is defined by R.C. 149.011(G). If we conclude that the information is a "record," and the information does not fit within one of the exceptions in R.C. 149.43, then appellee would be entitled to the requested information.

The court of appeals held that the trial court erred when it concluded that the information sought by appellee did not constitute a "record" pursuant to R.C. 149.011(G). R.C. 149.011 provides:

"(G) `Records' includes any document, device, or item, regardless of physical form or characteristic, created or received by or coming under the jurisdiction of any public office of the state or its political subdivisions, which serves to document the organization, functions, policies, decisions, procedures, operations, or other activities of the office." (Emphasis added.)

The contention that the information requested in this matter does not fall under the statutory definition of "record" in R.C. 149.011(G) is well taken. For the reasons that follow, we conclude that the information requested by appellee is not a "record" as that term is contemplated by Ohio's Public Records Act.

In State ex rel. Fant v. Enright (1993), 66 Ohio St.3d 186, 188, 610 N.E.2d 997, 999, we emphasized that "not all items in a personnel file may be considered public records. A `public record' is `any record that is kept by any public office * * *.' R.C. 149.43(A)(1). However, a `record' 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). To the extent that any item contained in a personnel file is not a `record,' i.e., does not serve to document the organization, etc., of the public office, it is not a public record and need not be disclosed. To the extent that an item is not a public record and is `personal information,' as defined in R.C. 1347.01(E), a public office `would be under an affirmative duty, pursuant to R.C. 1347.05(G), to prevent its disclosure.' " (Footnotes omitted.) In this regard, R.C. 1347.05(G) provides that all government agencies that maintain personal information systems shall "[t]ake reasonable precautions to protect personal information in the system from unauthorized modification, destruction, use, or disclosure."² The information sought by appellee was created by and is under the custody of a public office, the Department. However, the specific information requested consists of certain personal information regarding children who participate in the Department's photo identification program. Standing alone, that information, i.e., names of children, home addresses, names of parents and guardians, and medical information, does nothing to document any aspect of the City's Recreation and Parks Department.

In United States Dept. of Justice v. Reporters Commt. for Freedom of the Press (1989), 489 U.S. 749, 109 S.Ct. 1468, 103 L.Ed.2d 774, the United States Supreme Court held that "as a categorical matter * * * a third party's request for law enforcement records or information about a private citizen can reasonably be expected to invade that citizen's privacy * * *." (Emphasis added.) Id. at 780, 109 S.Ct. at 1485, 103 L.Ed.2d at 800. In addressing the statutory purpose of the Freedom of Information Act ("FOIA"), Section 552(b)(7)(C), Title 5, U.S.Code, the federal counterpart to R.C. Chapter 149, the Supreme Court stated that the basic purpose of the FOIA is "`to open agency action to the light of public scrutiny.'" Id. at 772, 109 S.Ct. at 1481, 103 L.Ed.2d at 795, quoting Dept. of Air Force v. Rose (1976), 425 U.S. 352, 372, 96 S.Ct. 1592, 1604, 48 L.Ed.2d 11, 27. In that regard, the court reasoned that "[o]fficial information that sheds light on an agency's performance of its statutory duties falls squarely within that statutory purpose. That purpose, however, is not fostered by disclosure of information about private citizens that is accumulated in various governmental files but that reveals little or nothing about an agency's own conduct. In this case—and presumably in the typical case in which one private citizen is seeking information about another—the requester does not intend to discover anything about the conduct of the agency that has possession of the requested records. Indeed, response to this request would not shed any light on the conduct of any Government agency or official."Reporters Commt. at 773, 109 S.Ct. at 1481, 103 L.Ed.2d at 795-796. The Supreme Court thus concluded in Reporters Commt. that "when the request seeks no `official information' about a Government agency, but merely records what the Government happens to be storing, the invasion of privacy is `unwarranted.'" Id. at 780, 109 S.Ct. at 1485, 103 L.Ed.2d at 800.

In Kallstrom v. Columbus (C.A.6, 1998), 136 F.3d 1055, 1064-1065, the Sixth Circuit Court of Appeals used similar reasoning to exempt from disclosure certain personal information contained in the personnel files of law enforcement officers. In State ex rel. Keller v. Cox (1999), 85 Ohio St.3d 279, 282, 707 N.E.2d 931, 934, we relied on Kallstrom and exempted essentially identical information from disclosure. In Kallstrom, the federal court determined that disclosure of the information sought would do nothing to further the public's knowledge of the internal workings of governmental agencies. Thus, the Kallstrom court concluded that the release of the information to any member of the public did not serve the important public interest of ensuring government accountability. Id. at 1065.

The rationale espoused in the above-referenced cases is equally applicable to the instant action. The existence of the Department's photo identification program has been well documented. It is no secret as to when the program was initiated, the purpose of the program, how the program operates, and the effect it has had in making the City's recreational facilities safer and more manageable. It is also no secret that the Department possesses certain personal information, voluntarily provided, of those children who use the City's swimming pools and recreational facilities. We fail to see how release of the requested information to appellee, or anyone else, would provide any further insight into the operation of the Department's photo identification program than that already available.

We recognize that "[o]ne of the salutary purposes of the Public Records Law is to ensure accountability of government to those being governed." State ex rel. Strothers v. Wertheim (1997), 80 Ohio St.3d 155, 158, 684 N.E.2d 1239, 1242. Inherent in Ohio's Public Records Law is the public's right to monitor the conduct of government. However, in the instant matter, disclosing the requested information would do nothing to further the purposes of the Act.

Moreover, the personal information requested is not contained in a personnel file. At issue here is information regarding children who use the City's swimming pools and recreational facilities. The subjects of appellee's public records request are not employees of the government entity having custody of the information. They are children—private citizens of a government, which has, as a matter of public policy, determined that it is necessary to compile private information on these citizens.³ It seems to us that there is a clear distinction between public employees and their public employment personnel files and files on private citizens created by government.⁴ To that extent the personal information requested by appellee is clearly outside the scope of R.C. 149.43 and not subject to disclosure. See State ex rel. Dispatch Printing Co. v. Wells (1985), 18 Ohio St.3d 382, 385, 18 OBR 437, 439, 481 N.E.2d 632, 634-635.

Because the information sought herein is not a "record," as defined by R.C. 149.011(G), it follows that it cannot be a "public record" as that term is contemplated by R.C. 149.43(A)(1). We, therefore, find that personal information of private citizens, obtained by a "public office," reduced to writing and placed in record form and used by the public office in implementing some lawful, regulatory policy is not a "public record" as...