State ex rel. Thomas v. Ohio State Univ.

Decision Date20 December 1994
Docket NumberNo. 94-1074,94-1074
Citation643 N.E.2d 126,71 Ohio St.3d 245
Parties, 96 Ed. Law Rep. 237, 23 Media L. Rep. 1856 The STATE ex rel. THOMAS v. OHIO STATE UNIVERSITY.
CourtOhio Supreme Court

By letter dated May 2, 1994, relator, Shawn A. Thomas, an attorney, requested from respondents, Ohio State University ("OSU") and its Vice-president for Research, Professor Edward F. Hayes, certain information under the state Public Records Act, R.C. 149.43. Thomas broadly requested information, including:

"1. All records * * * held or recorded by The Ohio State University and created between September 23, 1991 and May 2, 1994 * * * regarding or related to POET (Protect Our Earths Treasures), Students For Animals, SPARE (Save Pets from Abuse Research and Euthanasia), Mr. Robin Russell, Ms. Ritchie Laymon, Ms. Amy Achor, Mr. Shawn A. Thomas and/or any other pro-animal or humane action group or individual.

"2. All records * * * created by or received by Edward F. Hayes, any researcher or principal investigator at The Ohio State University, Herb Asher, Bill Yonushonis, Steve McDonald, Earle Holland, Rich Tallman and/or any or all 'Research Deans' at The Ohio State University between September 23, 1991 and May 2, 1994 * * * regarding public records requests, policies, strategies, handling or responding to public records requests."

Thomas further requested that the records be "ready for pick up at noon on May 9, 1994," and stated that he was prepared to pay for all actual duplication fees up to an initial amount of fifty dollars.

On May 17, 1994, respondent, Steven J. McDonald, an Associate Legal Counsel with OSU's Office of Legal Affairs, on behalf of OSU and Professor Hayes, responded to Thomas' written request. Respondents claimed that parts of Thomas' written request "were framed as broad discovery requests, not as requests for specific public records, and are extremely vague, ambiguous, overbroad and burdensome" and, therefore, they were "unable to respond" to those portions of the request.

However, McDonald reviewed the files of each of the OSU employees named in Thomas' request "for documents from the specified time periods that directly concern (a) the groups and individuals named in [Thomas'] letter, (b) any public records requests that those groups and individuals have made, (c) Dr. Hayes' March 31, 1994 and April 13, 1994 memos, and (d) the May 11, 1994 meeting with principal investigators." McDonald stated that he had located and copied ninety-two pages of the foregoing documents that would be available at his office upon payment of a twenty-three dollar copying charge. Respondents withheld (1) documents created by or already in the possession of Thomas or the groups named in the request, (2) documents prepared by McDonald or at his request as legal counsel, and (3) information disclosing the names, addresses, and telephone numbers of individual researchers or investigators working on specific projects. Thomas picked up copies of documents not withheld by respondents.

Thomas is seeking a writ of mandamus to compel respondents to comply with R.C. 149.43 by making available to him unredacted copies of all requested records. We issued an entry denying Thomas' request for a writ of mandamus to the extent that his request broadly sought respondents to search for records containing selected information. State ex rel. Fant v. Tober (Apr. 28, 1993), Cuyahoga App. No. 63737, unreported, 1993 WL 173743, affirmed in State ex rel. Fant v. Tober (1993), 68 Ohio St.3d 117, 623 N.E.2d 1202. We granted a limited alternative writ and set a schedule for the filing of records, briefs, and evidence, 70 Ohio St.3d 1438, 638 N.E.2d 1041.

The cause is now before this court following an in camera inspection of the records.

Shawn A. Thomas, pro se.

Porter, Wright, Morris & Arthur, and Kathleen M. Trafford, Columbus, for respondents.

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, 88-89. R.C. 149.43 generally is construed liberally in favor of broad access, and any doubt must be resolved in favor of disclosure of public records. State ex rel. Warren Newspapers, Inc. v. Hutson (1994), 70 Ohio St.3d 619, 621, 640 N.E.2d 174, 177.

Respondents contend that the names and other information disclosing the identity of the animal research scientists do not constitute records for purposes of the Public Records Act. A "public record" is "any record that is kept by any public office * * *." R.C. 149.43(A)(1). R.C. 149.011(G) broadly defines "records" to include "any * * * device, or item * * * received by * * * any public office of the state * * * which serves to document the organization, functions, policies, decisions, procedures, operations, or other activities of the office." State ex rel. Fant v. Enright (1993), 66 Ohio St.3d 186, 188, 610 N.E.2d 997, 999.

Although respondents have withheld information concerning the names, work departments, addresses, and telephone numbers of the scientists, Thomas now contends that he only wants the "names and work addresses" of these public employees. Therefore, our analysis is limited only to the foregoing information. See, e.g., State ex rel. James v. Ohio State Univ. (1994), 70 Ohio St.3d 168, 637 N.E.2d 911 (tenure evaluators' names); State ex rel. Toledo Blade Co. v. Univ. of Toledo Found. (1992), 65 Ohio St.3d 258, 602 N.E.2d 1159 (names of donors); State ex rel. Dispatch Printing Co. v. Wells (1985), 18 Ohio St.3d 382, 18 OBR 437, 481 N.E.2d 632 (names and addresses of municipal civil service members); Police & Fire Retirees of Ohio, Inc. v. Police & Firemen's Disability & Pension Fund (1985), 18 Ohio St.3d 231, 18 OBR 289, 480 N.E.2d 482 (names and addresses of members of disability and pension fund). The names and work addresses of the animal research scientists serve to document the organization, functions, and operations of OSU's animal research activities. See State ex rel. Beacon Journal Publishing Co. v. Akron (1994), 70 Ohio St.3d 605, 606, 640 N.E.2d 164, 166 (Social Security numbers of city employees constitute "records" for purposes of Public Records Act). Therefore, the names and work addresses of the individual scientists were improperly redacted from the provided records pursuant to R.C. 149.43(A)(1). Exceptions to disclosure are strictly construed against the custodian of the public records, and the burden to establish an exception is on the custodian. James, 70 Ohio St.3d at 169, 637 N.E.2d at 912. R.C. 149.43(A)(1) excepts from disclosure "records the release of which is prohibited by state or federal law." Respondents generally assert that redaction of names and other identifying information is proper when it is reasonably believed to be necessary to protect the personal privacy and safety of the individual scientists and when the redaction does not unduly inhibit the public's right to know the organization's functions, policies, decisions, procedures, operations or other activities of the public university. More particularly, respondents assert that the "identity of individuals engaged in specific scientific research projects using animals must be found to be constitutionally protected from public disclosure."

Respondents appear to advocate a balancing test similar to that adopted in the Freedom of Information Act ("FOIA"), the federal counterpart to R.C. 149.43. For example, Section 552(b)(6), Title 5, U.S. Code allows federal agencies to withhold information contained in "personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy." Pursuant to this FOIA exemption, the court must balance the privacy interest of the individual against the public interest in disclosure. Dept of the Air Force v. Rose (1976), 425 U.S. 352, 372, 96 S.Ct. 1592, 1604, 48 L.Ed.2d 11, 27. Respondents cite Lesar v. United States Dept. of Justice (C.A.D.C.1980), 636 F.2d 472, which relied on a similar FOIA exemption regarding investigatory records compiled for law enforcement purposes. See Section 552(b)(7)(C), Title 5, U.S. Code. However, as respondents concede, FOIA does not apply here, and R.C. 149.43 contains no similar personal-privacy exception.

In State ex rel. Toledo Blade Co., 65 Ohio St.3d at 266, 602 N.E.2d at 1164-1165, this court rejected contentions by the University of Toledo Foundation that federal and state common-law privacy rights prohibit disclosure of donor names by holding:

"It is the role of the General Assembly to balance the competing concerns of the public's right to know and individual citizens' right to keep private certain information that becomes part of the records of public offices. The General Assembly has done so, as shown by numerous statutory exceptions to R.C. 149.43(B), found in both the statute itself and in other parts of the Revised Code."

The right to privacy has several constitutional meanings, including the Fourth Amendment's restriction on government searches and seizures and the due process and equal protection right to engage in highly personal activities; more specifically, it relates in a due process and equal protection context to certain rights of freedom of choice in marital, sexual, and reproductive matters. 3 Rotunda & Nowak, Treatise on Constitutional Law (2 Ed.1992) 298, Section 18.26. Names and work addresses do not appear to implicate the constitutional right of privacy.

However, in State ex rel. Beacon Journal Publishing Co., supra, the court recently determined that federal constitutional privacy rights forbid disclosure of Social Security numbers ("SSNs") under R.C. 149.43 in the particular circumstances involved. Although this court engaged in weighing interests benefited by disclosure against privacy interests, we emphasized that "[d]ue to the federal legislative...

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