State ex rel. Plain Dealer Pub. Co. v. Lesak

• Decision Date: 04 January 1984
• Docket Number: No. 83-922,83-922
• Parties: , 15 Ed. Law Rep. 354, 9 O.B.R. 52 The STATE, ex rel. PLAIN DEALER PUBLISHING COMPANY, Appellee, v. LESAK, Supt. of Schools, et al., Appellants.
• Court: Ohio Supreme Court

Page 1

9 Ohio St.3d 1

457 N.E.2d 821, 15 Ed. Law Rep. 354, 9 O.B.R. 52

The STATE, ex rel. PLAIN DEALER PUBLISHING COMPANY, Appellee, v. LESAK, Supt. of Schools, et al., Appellants.

No. 83-922.

Supreme Court of Ohio.

Jan. 4, 1984.

Baker & Hostetler, James P. Garner, Louis A. Colombo and Karen B. Newborn, Cleveland, for appellee.

Schwarzwald, Robiner, Wolf & Rock Co., L.P.A., Donald M. Robiner and Paul F. Levin, Cleveland, for appellants Lesak et al.

Purola & Savage and Albert L. Purola, Willoughby, for appellant John Doe.

PER CURIAM.

The issue is whether the banking records pertaining to the two illicit checking accounts are public records pursuant to R.C. 149.43. For the reasons that follow we affirm the court of appeals' decision to compel disclosure of these records.

Public records must be available and open to inspection within a reasonable period of time pursuant to R.C. 149.43(B). The test for public records is twofold. First, the records must be kept by a governmental unit. Second, the records must be specifically required to be kept by law. State, ex rel. Citizens' Bar Assn., v. Gagliardo (1978), 55 Ohio St.2d 70, 378 N.E.2d 153 ; State, ex rel. Beauty Supply Co., v. State Bd. of Cosmetology (1977), 49 Ohio St.2d 245, 361 N.E.2d 444 .

It is beyond argument that the two checking accounts at issue should have been kept by a governmental unit and as specifically required by law. While monies relating only to Ohio High School Athletic Association sponsored tournaments, placed in special accounts to be closed or brought to zero balance immediately after cessation of a particular activity, might escape the mandate of R.C. 3315.062(C), the instant case is clearly within the statute. The distinction here is based upon the factual peculiarity that the checking accounts were personally created and maintained by the athletic director. Arguably, the records pertaining to purely personal accounts should not be subject to public scrutiny. We make no effort at this time to pass on the question of whether initial nondisclosure to the state would have precluded the imposition of disclosure under the statute. In this case, however, the athletic director released the records to the school district treasurer. As a result the athletic director waived any claim to an exception from the disclosure requirements. Once the records were in the hands of a governmental unit, and in the absence of a statutory exception to disclosure, R.C. 149.43 made disclosure a necessity.

The fact that the funds are within the purview of R.C. 3315.062(C), in conjunction with the waiver of privacy by the athletic director's action in releasing the bank records for governmental scrutiny, necessitates the finding that a clear legal duty arose to make those records public pursuant to R.C. 149.43.

Mandamus will lie where a court finds that the relator has a clear legal right to the relief prayed for, that the respondent is under a clear legal duty to perform the requested act, and that relator has no plain and adequate remedy at law. State, ex rel. Westchester, v. Bacon (1980), 61 Ohio St.2d 42, 399 N.E.2d 81 ; State, ex rel. Harris, v. Rhodes (1978), 54 Ohio St.2d 41, 374 N.E.2d 641 .

In the instant case R.C. 3315.062(C) and 149.43 provide the basis in law for disclosure of the checking account records and create the legal duty for the school board to comply with such disclosure. Insofar as appellants have refused to comply, and relator has no plain and adequate remedy at law, mandamus will lie.

The judgment of the court of appeals is affirmed.

Judgment affirmed.

FRANK D. CELEBREZZE, C.J., and WILLIAM B. BROWN, SWEENEY, LOCHER, HOLMES, CLIFFORD F. BROWN and JAMES P. CELEBREZZE, JJ., concur.

FRANK D. CELEBREZZE, Chief Justice, concurring.

I concur with the result reached by the majority herein. I write separately, however, in order to address appellants' argument that the records in question are excepted from the disclosure requirements of R.C. 149.43(A)(1) as confidential law enforcement investigatory records. This argument was addressed by the court of appeals and fully briefed by the parties herein, but was not mentioned in the majority opinion.

Pursuant to R.C. 149.43(A)(1), confidential law enforcement investigatory records are not "public records" subject to the disclosure requirements of R.C. 149.43(B). That term is defined in R.C. 149.43(A)(2), which provides, in relevant part:

" 'Confidential law enforcement investigatory record' means any record that pertains to a law enforcement matter of a criminal, quasi-criminal, civil, or administrative nature, but only to the extent that the release of the record would create a high probability of disclosure of any of the following:

"(a) The identity of a suspect who has not been charged with the offense to which the record pertains, or of an information source or witness to whom confidentiality has been reasonably promised;"

Appellants' argument in this regard is based upon the fact that after learning of the...