State ex rel. The Plain Dealer Publishing Co. v. Cleveland

CourtUnited States State Supreme Court of Ohio
Citation661 N.E.2d 187,75 Ohio St.3d 31
Docket NumberNo. 95-594,95-594
PartiesThe STATE ex rel. The PLAIN DEALER PUBLISHING COMPANY v. CITY OF CLEVELAND.
Decision Date04 March 1996

Baker & Hostetler, David L. Marburger, Michael K. Farrell and Elizabeth A. McNellie, Columbus, for relator.

Sharon Sobol Jordan, Cleveland Director of Law, Stephen J. Terry, Chief Counsel, and Kathleen A. Martin, Chief Trial Counsel, for respondent.

John E. Gotherman, Cleveland, urging denial of the writ for amici curiae.

PER CURIAM.

Mandamus is the appropriate remedy to compel compliance with Ohio's Public Records Act, R.C. 149.43. State ex rel. Steckman v. Jackson (1994), 70 Ohio St.3d 420, 426, 639 N.E.2d 83, 89. There is no dispute that the requested resumes are "records" for purposes of R.C. 149.43 and that they are subject to R.C. 149.43 because Lamalie and the committees acted for a public purpose in seeking and collecting the resumes. See, e.g., State ex rel. Toledo Blade Co. v. Univ. of Toledo Found. (1992), 65 Ohio St.3d 258, 263, 602 N.E.2d 1159, 1163. Instead, the city and amici contend that the release of resumes is prohibited by the constitutional right of privacy and the doctrine of separation of powers. Relator initially contends that the city has waived its right to assert these exceptions because it failed to plead them as affirmative defenses in its answer.

Civ.R. 8(C) provides that "[i]n pleading to a preceding pleading, a party shall set forth * * * any * * * matter constituting an avoidance or affirmative defense." An affirmative defense is waived under Civ.R. 12(H), unless it is presented by motion before pleading pursuant to Civ.R. 12(B), affirmatively in a responsive pleading under Civ.R. 8(C), or by amendment under Civ.R. 15. Hoover v. Sumlin (1984), 12 Ohio St.3d 1, 4, 12 OBR 1, 4, 465 N.E.2d 377, 380.

In the city's answer, it generally denied that the resumes are public records and specified that "confidentiality is necessary to identify and hire the best qualified candidate for the office of Chief of Police." However, the city did not specify the exceptions it now claims, nor did it seek amendment of its answer to include these exceptions.

An affirmative defense is a new matter which, assuming the complaint to be true, constitutes a defense to it. See Davis v. Cincinnati, Inc. (1991), 81 Ohio App.3d 116, 119, 610 N.E.2d 496, 498; Black's Law Dictionary (6 Ed.1990) 60. "An affirmative defense is any defensive matter in the nature of a confession and avoidance. It admits that the plaintiff has a claim (the 'confession') but asserts some legal reason why the plaintiff cannot have any recovery on that claim (the 'avoidance')." (Footnote omitted.) 1 Klein, Browne & Murtaugh, Baldwin's Ohio Civil Practice (1988) 33, T 13.03.

Exceptions to disclosure under R.C. 149.43 are not in the nature of a confession and avoidance because the assertion of an exception does not admit the allegations of an R.C. 149.43(C) mandamus action, i.e., it does not concede that the requested records are "public records." This is consistent with federal courts' interpretation of exemptions to the federal Freedom of Information Act ("FOIA"), according courts discretion to consider exemption claims which are not raised in a timely manner. 1 O'Reilly, Federal Information Disclosure (2 Ed.1990) 8-31, Section 8.11; see, also, Kay v. Fed. Communications Comm. (D.D.C.1994), 867 F.Supp. 11, 21-22; but, see, Detroit News, Inc. v. Detroit (1990), 185 Mich.App. 296, 300, 460 N.W.2d 312, 314 ("Exemptions are affirmative defenses to requests for documents" under the Michigan Freedom of Information Act.). Based on the foregoing, exceptions to disclosure under R.C. 149.43 are not affirmative defenses, and the city's failure to raise the exceptions it now relies on does not prohibit the court from considering them.

As to the merits of the city's claimed exceptions, any exceptions to disclosure are strictly construed against the custodian of public records, and the burden to establish an exception is on the custodian. State ex rel. James v. Ohio State Univ. (1994), 70 Ohio St.3d 168, 169, 637 N.E.2d 911, 912. R.C. 149.43 is liberally construed to further broad access, and any doubt is resolved in favor of disclosure of public records. State ex rel. The Warren Newspapers, Inc. v. Hutson (1994), 70 Ohio St.3d 619, 621, 640 N.E.2d 174, 177.

The city and amici initially contend that the constitutional right of privacy prevents disclosure of the police chief resumes. The right of privacy involves the interest of avoiding disclosure of personal matters and independence in making certain kinds of important decisions. Whalen v. Roe (1977), 429 U.S. 589, 598-600, 97 S.Ct. 869, 876, 51 L.Ed.2d 64, 73. In a due process and equal protection context, the right to privacy relates to certain rights of freedom of choice in marital, sexual, and reproductive matters. See, generally, 3 Rotunda & Nowak, Treatise on Constitutional Law (2 Ed.1992) 298-299, Section 18.26. Resumes do not seem to be encompassed in this limited constitutional right of privacy.

Nevertheless, Cleveland and amici rely on State ex rel. Beacon Journal Publishing Co. v. Akron (1994), 70 Ohio St.3d 605, 640 N.E.2d 164, where the court held that, under the circumstances of the case, federal constitutional privacy rights forbid disclosure of Social Security numbers ("SSNs") under R.C. 149.43. Beacon Journal Publishing was subsequently distinguished in State ex rel. Thomas v. Ohio State Univ. (1994), 71 Ohio St.3d 245, 248, 643 N.E.2d 126, 129, where the court held:

"Although this court engaged in weighing interests benefited by disclosure against privacy interests, we emphasized that '[d]ue to the federal legislative scheme involving the use of SSNs, city employees have a legitimate expectation of privacy in their SSNs.' [Beacon Journal Publishing Co., supra] 70 Ohio St.3d at 609, 640 N.E.2d at 167. There is no similar legislative scheme protecting the names and work addresses of public employees in general or animal research scientists in particular. Additionally, although there is evidence of an increase in reported incidents of threats, harassment, and violence against animal research scientists, there does not appear to be the same 'high potential for * * * victimization' found by the court to be apparent from the disclosure of SSNs. Id. at 612, 640 N.E.2d at 169. Therefore, respondents' assertion that the constitutional right to privacy excepts names and work addresses from disclosure under R.C. 149.43 is without merit."

Similarly, in the case at bar, unlike Beacon Journal Publishing Co., there is no legislative scheme protecting resumes of applicants for public employment similar to the statutes protecting SSNs, and the city has not established the same high potential for victimization that could result from disclosure of resumes that the court found in Beacon Journal Publishing Co. as to SSNs. Therefore, as in Thomas, the city's assertion that the constitutional right to privacy excepts resumes of applicants seeking public employment from disclosure under R.C. 149.43 is without merit.

This result comports with State ex rel. Beacon Journal Publishing Co. v. Akron Metro. Hous. Auth. (Apr. 13, 1988), Summit App. No. CA 13575, unreported, 1988 WL 38067, affirmed as to denial of attorney fees (1989), 42 Ohio St.3d 1, 535 N.E.2d 1366 (court of appeals holding that applications and resumes of candidates for the executive director's position of a city housing authority constituted public records which did not fall within any of the exceptions enumerated in R.C. 149.43[A] ), State ex rel. Multimedia, Inc. v. Snowden (1995), 72 Ohio St.3d 141, 647 N.E.2d 1374 (writ of mandamus granted to compel release of personal background and investigation reports for police recruits, except for "rap sheets"), and Toledo Blade Co., supra (federal and state common-law privacy rights do not prohibit disclosure of donor names). See, also, Forum Publishing Co. v. Fargo (N.D.1986), 391 N.W.2d 169 (applications and supporting documents submitted to consulting firm under contract to city to assist in hiring police chief disclosable under state open records law).

In addition, even in jurisdictions which have substantially incorporated the "clearly unwarranted invasion of personal privacy [exemption]" contained in FOIA or which specify a right to privacy in their state court constitutions, courts have generally permitted disclosure under their state public records acts of records similar to those requested by relator in the instant case. Annotation, What Constitutes Personal Matters Exempt from Disclosure by Invasion of Privacy Exemption under State Freedom of Information Act (1983), 26 A.L.R.4th 666, 671, Section 2[a] ("[C]ourts have held that various types of * * * personnel records, job applications, and other job-related information * * * were not exempt from public disclosure, under the applicable freedom of information act as personal matters, the disclosure of which would constitute an invasion of personal privacy.") and 675-681, Section 4; Dubuque v. Telegraph Herald, Inc. (Iowa 1980), 297 N.W.2d 523 (disclosure pursuant to state public records law of names and other information about applicants for position of city manager who had requested confidentiality was not excepted under privacy exemption); Gannett River States Publishing v. Hussey (La.App.1990), 557 So.2d 1154 (state constitutional right to privacy does not prevent disclosure under state public records law of records relating to mayor's selection of fire chief); Kenai v. Kenai Peninsula Newspapers (Alaska 1982), 642 P.2d 1316; but, see, Core v. United States Postal Serv. (C.A.4, 1984), 730 F.2d 946; Booth Newspapers, Inc. v. Univ. of Michigan Bd. of Regents (1992), 192 Mich.App. 574, 481 N.W.2d 778.

As to the city's contentions that permanent confidentiality of police chief applicants is necessary to identify and...

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