State, ex rel. William Polovischak v. James Mayfield, Administrator, Bureau of Workers' Compensation.

• Decision Date: 04 April 1989
• Docket Number: 87AP-1231,89-LW-0974
• Parties: STATE, ex rel. William POLOVISCHAK, Relator, v. James MAYFIELD, Administrator, Bureau of Workers' Compensation, et al., Respondents.
• Court: Ohio Court of Appeals

STATE, ex rel. William POLOVISCHAK, Relator, v. James MAYFIELD, Administrator, Bureau of Workers' Compensation, et al., Respondents.

No. 87AP-1231. Judgment reversed and cause remanded 50 Ohio St. 3d 51 (1990).

89-LW-0974 (10th)

Court of Appeals of Ohio, Tenth District Franklin.

April 4, 1989

In Mandamus.

Wellman & Jeren Co., L.P.A., John A. Jeren, Jr., and Timothy Hackett for relator.

Anthony J. Celebrezze, Jr., Attorney General, and Merl H. Wayman, for respondents.

OPINION

BRYANT Judge.

Relator, William Polovischak, has filed this original action requesting that this court issue a writ of mandamus ordering respondents, James Mayfield, Administrator, Bureau of Workers' Compensation, and Steve Gelety, Chairman, Internal Security Committee, Bureau of Workers' Compensation, to release to relator certain documents alleged to be public records pursuant to the provisions of R.C. 149.43. At issue, is the investigatory file on relator compiled by the Internal Security Committee.

The investigatory file at issue has been submitted under seal to the court along with respondents' brief, pending this litigation; and this matter has been submitted to the court on a stipulation of facts, exhibits, and answers to interrogatories, along with the pleadings and briefs of the parties.

Pursuant to Civ.R. 53, and Section 13, Loc.R. 11 of the Tenth Appellate District, this matter was referred to a referee who on November 18, 1988 issued a report, including findings of fact and conclusions of law. The referee concluded that relator is an allegedly aggrieved person for whom mandamus is an available remedy within the meaning of R.C. 149.43(C); that, however, respondents have met their burden of proving that the investigatory file submitted under seal herein is excepted from disclosure as a confidential law enforcement investigatory record which identifies a witness to whom confidentiality has been reasonably promised within the meaning of R.C. 149.43(A)(2)(a) and (b); and that, accordingly, the file is not subject to disclosure. As a result, the referee recommended that the court deny relator's requested writ of mandamus.

Relator's action is filed pursuant to R.C. 149.43(C), which states:

"If a person allegedly is aggrieved by the failure of a governmental unit to promptly prepare a public record and to make it available to him for inspection in accordance with division (B) of this section, or if a person who has requested a copy of a public record allegedly is aggrieved by the failure of a person responsible for it to make a copy available to him in accordance with division (B) of this section, the person allegedly aggrieved may commence a mandamus action to obtain a judgment that orders a governmental unit or the person responsible for the public record to comply with division (B) of this section and that awards reasonable attorney's fees to the person that instituted the mandamus action. * * * "

For the reasons set forth in the referee's report, we agree with the referee's conclusion that mandamus is an appropriate remedy herein. Hence, we must determine whether the investigatory file at issue is a public record subject to disclosure. R.C. 149.43(A)(1) defines a public record as follows:

" "Public record' means any record that is kept by any public office, including, but not limited to, state, county, city, village, township, and school district units, except medical records, records pertaining to adoption, probation, and parole proceedings, records pertaining to actions under section 2151.85 of the Revised Code and to appeals of actions arising under that section, records listed in division (A) of section 3107.42 of the Revised Code, trial preparation records, confidential law enforcement investigatory records, and records the release of which is prohibited by state or federal law."

R.C. 149.43(A)(2) then defines a confidential law enforcement investigatory file as follows:

" "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;

"(b) Information provided by an information source or witness to whom confidentiality has been reasonably promised, which information would reasonably tend to disclose his identity;

"(c) Specific confidential investigatory techniques or procedures or specific investigatory work product[.]"

The referee determined that the investigatory file is a confidential law enforcement investigatory record under R.C 149.43(A)(2)(a) and (b) and that it, thus, is excepted from disclosure. In so concluding, the referee properly noted that a record need not be compiled by a law enforcement agency to meet the standard set forth in R.C. 149.43(A)(2); rather, it need only pertain to a law enforcement matter, as specified in that section. Even so, we cannot agree with the...