State ex rel. The Plain Dealer Publishing Co. v. Cleveland
Decision Date | 04 March 1996 |
Docket Number | No. 95-594,95-594 |
Citation | 661 N.E.2d 187,75 Ohio St.3d 31 |
Parties | The STATE ex rel. The PLAIN DEALER PUBLISHING COMPANY v. CITY OF CLEVELAND. |
Court | Ohio Supreme Court |
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.
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. (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 ( ). 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:
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 ( ), State ex rel. Multimedia, Inc. v. Snowden (1995), 72 Ohio St.3d 141, 647 N.E.2d 1374 ( ), and Toledo Blade Co., supra ( ). See, also, Forum Publishing Co. v. Fargo (N.D.1986), 391 N.W.2d 169 ( ).
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] () and 675-681, Section 4; Dubuque v. Telegraph Herald, Inc. (Iowa 1980), 297 N.W.2d 523 ( ); Gannett River States Publishing v. Hussey (La.App.1990), 557 So.2d 1154 ( ); 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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