State ex rel. The Warren Newspapers, Inc. v. Hutson

• Decision Date: 26 October 1994
• Docket Number: No. 93-1812,93-1812
• Citation: 640 N.E.2d 174,70 Ohio St.3d 619
• Parties: , 23 Media L. Rep. 1289 The STATE ex rel. THE WARREN NEWSPAPERS, INC. v. HUTSON, Chief of Police, et al.
• Court: Ohio Supreme Court

Page 619

70 Ohio St.3d 619

640 N.E.2d 174, 23 Media L. Rep. 1289

The STATE ex rel. THE WARREN NEWSPAPERS, INC. v. HUTSON, Chief of Police, et al.

No. 93-1812.

Supreme Court of Ohio.

Submitted June 15, 1994.

Decided Oct. 26, 1994.

Relator, The Warren Newspapers, Inc., publisher of The Tribune Chronicle, filed a complaint for a writ of mandamus against respondents, Thomas D. Hutson, Warren Police Chief, H. Herbert Laukhart, Warren Safety-Service Director, and Clifford Evans, a Warren police captain. Relator seeks to compel respondents to, inter alia, (1) comply with R.C. 149.43 and produce all public records requested of the police department in the manner described by statute, (2) make all such public records available for inspection twenty-four hours a day, seven days a week, and (3) make copies of requested public records available at actual cost, not including charges for employee time.

In 1990, the police department refused to permit relator to inspect its incident reports and further refused to reveal the home telephone numbers of its officers. As a result of these refusals, relator instituted a mandamus action in the Trumbull County Court of Common Pleas against the then-acting Warren Police Chief to compel disclosure of public records under R.C. 149.43. The parties agreed to a common pleas court consent order reflecting their settlement agreement. The order provided that the Warren Police Department and its police chief "shall comply with Ohio Revised Code Section 149.43 and shall produce the public records requested of it in the manner described in that Section." The order further provided that the "parties may apply to the [Common Pleas] Court for enforcement of this Order or, upon good cause shown, for modification of this Order."

In a letter dated April 6, 1993, two newspaper employees requested certain records from respondent Hutson, including (1) all internal investigations from 1988 to 1993, (2) all incident reports or traffic tickets written in 1992, and (3) the names and personnel files of all officers in the Warren Police Department. During May and June 1993, newspaper and police representatives discussed arrangements to review the requested public records. In a June 1, 1993 letter Hutson, through the city law director, set the following conditions for the newspaper's review of records: (1) the review must be at a predetermined time so that the police department can have the records custodian and one clerical person available to oversee the retrieval, review, and refiling of the records, (2) only one reporter may be present to review such records, and (3) the city must be reimbursed for the time spent by the records custodian and clerical person to assist in the review.

On June 28, 1993, Alyssa Lenhoff, the newspaper's projects editor, arrived at the Warren Police Department to inspect the records. After two hours of reviewing files, Lenhoff asked to schedule another appointment and was advised that another appointment could not be scheduled for several weeks, since the secretary would be on vacation and that The Tribune Chronicle could not send more than one person to inspect the requested records. By a letter dated that same day, addressed to "[A]ll Local Media," Hutson set forth a new policy for the inspection of public records of the Warren Police Department. Pursuant to this policy, Hutson noted that the police department had "established regular business hours for [the] Records Division File Room between 10:00 a.m. and 1:00 p.m. daily" and that "[s]ome documents may require editing before they are provided." Prior to this new policy, newspaper employees had been able to request public records from 8:00 a.m. until 4:00 p.m. every day. The Warren Police Department operates twenty-four hours a day, seven days a week.

On August 12, 1993, Lenhoff and reporter Jennifer Houtman went to the police department to continue their review of the requested records. They were informed by Evans and the city law director that approximately three hundred files were responsive to the newspaper's request for internal investigation records. Evans reviewed two files and redacted certain information before giving them to Lenhoff and Houtman for their review. On August 18, 1993, when Lenhoff and Houtman continued their review, Evans advised them that only eighteen files could be reviewed by the newspaper, since the remaining files contained information excepted from disclosure under R.C. 149.43. Evans further informed Lenhoff and Houtman that the police department would charge five dollars for a copy of an initial page of each separate file and twelve cents per page for every additional document in any particular file. After citing sexually offensive hypotheticals to Lenhoff and Houtman, Evans cancelled the review.

Relator instituted this action in mandamus and during discovery procedures reviewed approximately ninety-five of the Warren Police Department's internal investigations files on December 28 and 29, 1993, which were fewer than the three hundred files previously specified by Evans and the city law director.

Arter & Hadden, John B. Lewis, Gregory V. Mersol and Cynthia C. Schafer, Cleveland, for relator.

Gregory V. Hicks, Warren Law Director, and James E. Sanders, Asst. Law Director, Warren, for respondent.

PFEIFER, Justice.

Relator asserts in its propositions of law that (1) the Warren Police Department must make its public records available for inspection at all times, since it operates twenty-four hours a day, seven days a week, (2) the Warren Police Department must make its records available for inspection in the order in which they are organized, (3) the Warren Police Department must make its public records available "at cost," which does not include labor costs or charges for employee time, (4) the Warren Police Department's misconduct requires the broadest possible mandamus relief, and (5) relator is entitled to an award of attorney fees. Relator claims that since the settlement of its 1990 lawsuit, the police department has "repeatedly violated the public-records statute and its settlement agreement."

Relator asserts in its first proposition of law that a municipal police department that operates twenty-four hours a day, seven days a week, must make its public records available for inspection at all times.

In State ex rel. Steckman v. Jackson (1994), 70 Ohio St.3d 420, 639 N.E.2d 83, we determined that R.C. 143.43 entitles a relator to a writ of mandamus in order to seek and secure public records when access to the records has been denied. Respondents contend that they have fully complied with R.C. 149.43.

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." The statute literally requires only that public records be made "available" for inspection "at all reasonable times during regular business hours." State ex rel. Fenley v. Ohio Historical Soc. (1992), 64 Ohio St.3d 509, 511, 597 N.E.2d 120, 122; State ex rel. Nelson v. Fuerst (1993), 66 Ohio St.3d 47, 48, 607 N.E.2d 836, 837-838. Therefore, the initial temporal restriction is "regular business hours" and the further restriction is "all reasonable times" during the first period. Although neither of these phrases is statutorily defined in the Public Records Act, R.C. 149.43 should generally be construed to further broad access, State ex rel. Cater v. N. Olmsted (1994), 69 Ohio St.3d 315, 320, 631 N.E.2d 1048, 1053, and any doubt should be resolved in favor of disclosure of public records. State ex rel. Cincinnati Post v. Schweikert (1988), 38 Ohio St.3d 170, 173, 527 N.E.2d 1230, 1232.

Relator relies upon Hengel v. Pine Bluff (1991), 307 Ark. 457, 821 S.W.2d 761, to support its proposition that respondents have a duty to provide records at all times, since the Warren Police Department operates twenty-four hours a day, seven days a week. In Hengel, supra, 307 Ark. at 464, 821 S.W.2d at 765, the Arkansas Supreme Court held:

"Appellants' final argument is that it was error for the circuit court to hold that the public's access to the records of the Pine Bluff Police Department was limited to 8:00 a.m. to 4:00 p.m., Monday through Friday, excepting legal holidays. We cannot sustain that holding. The Arkansas FOIA provides that public records are to be open to inspection 'during regular business hours of the custodian of the records.' The Pine Bluff Police Department operates twenty-four hours a day, seven days a week. When the nature of an agency of the public of necessity operates twenty-four hours a day, it follows that in the absence of some showing to the contrary that those are its 'regular business hours.' "

However, the Arkansas Public Records Act, as construed in Hengel, is broader than Ohio's Act, which allows the additional limitation of "all reasonable times" during the custodian's regular business hours.

State ex rel. Butler Cty. Bar Assn. v. Robb (1990), 62 Ohio App.3d 298, 575 N.E.2d 497, upheld as not violative of Ohio's Public Records Act, a custodian's reduction of regular business hours of the office, apparently for all purposes and not just public records requests, to 8:30 a.m. to 12:00 p.m. and 1:00 p.m. to 4:00 p.m. Monday through Friday, except holidays. One file room was open only until noon on those days, and the reduced business hours may have been due to budget cuts. State ex rel. Butler Cty. Bar Assn., supra, 62 Ohio App.3d at 300, 575 N.E.2d at 498.

In the case at bar, the evidence is that the Warren Police Department operates twenty-four hours a day, seven days a week, and that its policy prior to June 28, 1993, was to allow for inspection of public records from 8:00 a.m. until 4:00 p.m. every day. Shortly following relator's request and attempt to further inspect records, respondent Hutson purported to establish "regular business hours" for the "Records Division...