State ex rel. Parisi v. Dayton Bar Ass'n Certified Grievance Comm.

Decision Date18 December 2017
Docket NumberNo. 27123,27123
Parties The STATE of Ohio EX REL. Georgianna I. PARISI, Relator v. DAYTON BAR ASSOCIATION CERTIFIED GRIEVANCE COMMITTEE, et al., Respondents
CourtOhio Court of Appeals

Georgianna Parisi, 257 Regency Ridge Drive, Dayton, Ohio 45459, Relator

Stephen Freeze, Lisa Hesse, One South Main Street, Suite 1800, Dayton, Ohio 45402, Attorneys for Respondents

DECISION AND FINAL JUDGMENT ENTRY

PER CURIAM:

I. INTRODUCTION

{¶ 1} On May 26, 2016, Georgianna I. Parisi filed a Verified Petition for Writ of Mandamus against the Dayton Bar Association and the Dayton Bar Association Certified Grievance Committee (the "DBA" and "DBACGC," respectively). Parisi, an attorney, asks this court to compel the respondents to produce public records related to grievances against her. The DBA and DBACGC moved to dismiss the petition, arguing that the records sought are related to the attorney disciplinary process and are not subject to release. Parisi filed a response; the DBA and DBACGC filed a reply.

{¶ 2} On February 15, 2017, this court notified the parties that it intended to convert the motion to dismiss to a motion for summary judgment, and gave the parties an opportunity to submit additional evidentiary materials and argument. Civ.R. 12(B) ; Loc. App.R. 8(A). The DBA and DBACGC filed a notice that they would stand on the materials already filed. Parisi filed a response to the notice, and separately asked for a continuance to conduct discovery pursuant to Civ.R. 56(F), a request this court overruled on April 3, 2017. We then gave Parisi additional time to file an additional response to the converted motion for summary judgment.

{¶ 3} In response, Parisi filed her own motion for summary judgment, to which the DBA and DBACGC responded. Respondents also moved to strike the exhibits to Parisi's motion, arguing that they were not submitted in accordance with Civ.R. 56 or were otherwise improper. Parisi filed a reply to both filings.

{¶ 4} This matter is therefore before the court on: 1) the DBA and DBACGC's converted motion for summary judgment; 2) Parisi's motion for summary judgment; and 3) the DBA and DBACGC's motion to strike exhibits to Parisi's motion for summary judgment. Parisi's previously-filed motion for leave to file a memorandum of additional authorities is also pending. For the reasons that follow, we conclude that the DBA and DBACGC are entitled to judgment as a matter of law. We deny the request for a writ of mandamus and dismiss this action.

II. LEGAL STANDARDS

A. Standard for a Writ of Mandamus

{¶ 5} "A writ of mandamus is an extraordinary remedy that only applies in a limited set of circumstances." State ex rel. Parisi v. Heck , 2d Dist. Montgomery No. 25709, 2013-Ohio-4948, ¶ 4, 2013 WL 5975008. It is also an appropriate way to seek compliance with Ohio's Public Records Act. R.C. 149.43(C)(1)(b) ; State ex rel. Beacon Journal Publishing Co. v. Akron , 104 Ohio St.3d 399, 2004-Ohio-6557, 819 N.E.2d 1087, ¶ 23.

{¶ 6} To be entitled to a writ of mandamus, Relator must establish that she has a clear legal right to the public records she's requested, and that Respondents have a clear legal duty to provide those records. State ex rel. McQueen v. Weibling–Holliday , 150 Ohio St.3d 17, 2016-Ohio-5107, 78 N.E.3d 825, ¶ 6. Unlike other relators filing in mandamus, "persons requesting records under R.C. 149.43(C) need not establish the lack of an alternative, adequate legal remedy in order to be entitled to the writ." State ex rel. Lucas Cty. Bd. of Commrs. v. Ohio Environmental Protection Agency , 88 Ohio St.3d 166, 171, 724 N.E.2d 411 (2000) ; State ex rel. Caster v. Columbus , Ohio Sup. Ct. Slip Opinion No. 2016-Ohio-8394, ¶ 15, 2016 WL 7448756. "Mandamus will not issue to compel an act that has already been performed." State ex rel. Madsen v. Jones , 106 Ohio St.3d 178, 2005-Ohio-4381, 833 N.E.2d 291, ¶ 11.

B. Standard for Summary Judgment under Civ.R. 56

{¶ 7} Mandamus actions "ordinarily proceed as civil actions under the Ohio Rules of Civil Procedure." Loc. App.R. 8(A). To be entitled to summary judgment under Civ.R. 56, a party must show that: "(1) No genuine issue as to any material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) it appears from the evidence that reasonable minds can come to but one conclusion, and viewing such evidence most strongly in favor of the party against whom the motion for summary judgment is made, that conclusion is adverse to that party." Temple v. Wean United, Inc. , 50 Ohio St.2d 317, 327, 364 N.E.2d 267 (1977), citing Civ.R. 56(C).

C. Standards for Public Records Act Requests

{¶ 8} Ohio's Public Records Act ("PRA") is codified in R.C. 149.43. The PRA requires a "public office" to provide "public records" maintained by that office upon request, subject to certain exceptions and exemptions. A "public office," for purposes of the PRA, "includes any state agency, public institution, political subdivision, or other organized body, office, agency, institution, or entity established by the laws of this state for the exercise of any function of government." R.C. 149.011(A) ; State ex rel. Toledo Blade Co. v. Univ. of Toledo Found. , 65 Ohio St.3d 258, 259–260, 602 N.E.2d 1159 (1992) (using definition in R.C. 149.011(A) to determine if R.C. 149.43 applied). Of note, a "state agency" "includes every department, bureau, board, commission, office, or other organized body established by the constitution and laws of this state for the exercise of any function of state government, including any state-supported institution of higher education, the general assembly, any legislative agency, any court or judicial agency , or any political subdivision or agency of a political subdivision." (Emphasis added.) R.C. 149.011(B). But see Thomas J. Moyer, Chief Justice Offers Historical Perspective on Public Records, Open Government , Supreme Court & Judicial System News (Feb. 12, 2008), available at https://www.supremecourt.ohio.gov/PIO/news/2008/pubrecords_021208.asp (accessed Nov. 7, 2017) ("While the courts in Ohio have always acted in accordance with the Public Records Act, the act does not govern the courts").

{¶ 9} A "Record" includes "any document, device, or item, regardless of physical form or characteristic, including an electronic record as defined in section 1306.01 of the Revised Code, 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." R.C. 149.011(G).

{¶ 10} Under the PRA, a public record means "records kept by any public office." R.C. 149.43(A)(1). However, not all records kept by a public office are public records. The definition of public records excludes, among other things, "records the release of which is prohibited by state or federal law." R.C. 149.43(A)(1)(v). Of relevance here, the Supreme Court Rules for the Government of the Bar (the "Disciplinary Rules") have been treated by courts as state law that may prohibit the release of records. See, e.g., State ex rel. McCaffrey v. Mahoning Cty. Prosecutor's Office , 133 Ohio St.3d 139, 2012-Ohio-4246, 976 N.E.2d 877, ¶ 30 (records relating to a filed grievance were exempt from disclosure in a public records request by a previous version of the Disciplinary Rules); State ex rel. Parisi v. Heck , 2d Dist. Montgomery No. 25709, 2013-Ohio-4948, ¶ 11, 2013 WL 5975008 (same).

{¶ 11} The PRA "mandates access to public records upon request unless the requested records are specifically excepted from disclosure."

State ex rel. Lucas Cty. Bd. of Commrs. v. Ohio Environmental Protection Agency , 88 Ohio St.3d 166, 170, 724 N.E.2d 411 (2000), citing State ex rel. Miami Student v. Miami Univ. , 79 Ohio St.3d 168, 170, 680 N.E.2d 956 (1997). "Release may be prohibited by an exception or by another statute providing protection to the subject of the information sought." Cuyahoga Cty. Bd. of Health v. Lipson O'Shea Legal Group , 145 Ohio St.3d 446, 2016-Ohio-556, 50 N.E.3d 499, ¶ 6.

{¶ 12} The records "custodian has the burden to establish the applicability of an exception" to release or access. State ex rel. Beacon Journal Publishing Co. v. Akron , 104 Ohio St.3d 399, 2004-Ohio-6557, 819 N.E.2d 1087, ¶ 23 ; State ex rel. Carr v. Akron , 112 Ohio St.3d 351, 2006-Ohio-6714, 859 N.E.2d 948, ¶ 30. The PRA is "to be construed liberally as favoring broad access, and any questions should be determined in favor of disclosure of public records." State ex rel. Dayton Newspapers v. Dayton Bd. Of Edn. , 140 Ohio App.3d 243, 246, 747 N.E.2d 255 (2d Dist.2000).

{¶ 13} Even with such a construction, a " ‘relator must still establish entitlement to the requested extraordinary relief by clear and convincing evidence.’ " State ex rel. Caster v. Columbus , Ohio Sup. Ct. Slip Opinion No. 2016-Ohio-8394, ¶ 15, 2016 WL 7448756, quoting McCaffrey at ¶ 16. "Clear and convincing evidence is ‘that measure or degree of proof which is more than a mere "preponderance of the evidence," but not to the extent of such certainty as is required "beyond a reasonable doubt" in criminal cases, and which will produce in the mind of the trier of facts a firm belief or conviction as to the facts sought to be established.’ " State v. Corp. for Findlay Mkt. , 135 Ohio St.3d 416, 2013-Ohio-1532, 988 N.E.2d 546, ¶ 15, quoting Cross v. Ledford , 161 Ohio St. 469, 120 N.E.2d 118 (1954), paragraph three of the syllabus.

D. Standards for Confidentiality in the Ohio Attorney Disciplinary Process

{¶ 14} The public records requests at issue here seek records from a bar association and its certified grievance committee related to grievances against an attorney. In this unusual situation, Parisi is both the requestor and the subject of the requests. The DBA and DBACGC are the putative public...

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