Barnes v. Columbus Civ. Serv. Comm.Barnes v. Columbus Civ. Serv. Comm.
Rendered on June 9, 2011
The Gittes Law Group, Frederick M. Gittes, and Jeffrey P. Vardaro, for appellants.
Glenn B. Redick, for appellee.
APPEAL from the Franklin County Court of Common Pleas.
FRENCH, J.
{¶1} Plaintiffs-appellants, Jimmie D. Barnes, Joseph E. Horton, Scott R. Hyland, and Steven A. Wilkinson (collectively, “appellants“), appeal the Franklin County Court of Common Pleas’ entry of summary judgment in favor of defendants-appellees, the city of Columbus (the “City“) and the Columbus Civil Service Commission (“CSC“)
{¶2} In May and June 2008, appellants, all of whom were employed by the City of Columbus, Division of Police, took promotional examinations administered by the CSC, a commission appointed by the City to administer the City‘s classified civil service. The promotional examinations contained both written and oral components, but we are concerned only with the oral phase. During the oral phase of the examinations, each candidate made oral presentations to a panel of three assessors in response to two scenarios. Each assessor assigned the candidate a score on each presentation, based on four scoring criteria. Each presentation was also videotaped, and another panel of three assessors assigned scores based on the videotape. In all, each candidate received 12 scores on the oral phase of the examination.
{¶3} The CSC provides its assessors written instructions and live training regarding testing procedures and scoring criteria. The CSC encourages assessors to take notes during candidates’ presentations to minimize rating errors and makes available to the assessors pre-printed note taking forms, divided into quadrants that correspond to the four scoring criteria. After a presentation, each assessor assigns the candidate a score, based upon the assessor‘s notes and the relevant rating scales. After each assessor assigns an initial score, the panel discusses the candidate‘s presentation, after which the assessors may revise their initial scores. Once the assessors assign final scores for each scenario, a CSC test monitor collects the
{¶4} Unsatisfied with the results of their examinations, appellants filed public record requests for materials associated with the 2008 promotional examinations. The CSC provided some materials, but informed appellants that the notes taken by assessors during the oral phase of the examinations had been destroyed following administration of the examinations.
{¶5} Appellants filed this action on May 29, 2009 against the CSC and filed an amended complaint, adding the City as a defendant, on July 14, 2009. Appellants alleged that the destruction of the assessors’ written notes violated
{¶6} In their timely appeal, appellants raise the following single assignment of error:
THE TRIAL COURT ERRED IN HOLDING THAT THE NOTES THE [CSC] SPECIFICALLY INSTRUCTED ITS EXAMINATION ASSESSORS TO CREATE AND USE IN
GRADING POLICE PROMOTIONAL EXAMINATIONS COULD BE DESTROYED WITHOUT REFERENCE TO A RETENTION SCHEDULE.
{¶7} We review a summary judgment de novo. Koos v. Cent. Ohio Cellular, Inc. (1994), 94 Ohio App.3d 579, 588, citing Brown v. Scioto Cty. Bd. of Commrs. (1993), 87 Ohio App.3d 704, 711. When an appellate court reviews a trial court‘s disposition of a summary judgment motion, it applies the same standard as the trial court and conducts an independent review, without deference to the trial court‘s determination. Maust v. Bank One Columbus, N.A. (1992), 83 Ohio App.3d 103, 107; Brown, at 711. We must affirm the trial court‘s judgment if any grounds the movant raised in the trial court support it. Coventry Twp. v. Ecker (1995), 101 Ohio App.3d 38, 41-42.
{¶8} Pursuant to
{¶9}
Unless otherwise exempted or excepted, almost all documents memorializing the activities of a public office can satisfy the definition of “record.” * * * Indeed, any record that a government actor uses to document the organization, policies, functions, decisions, procedures, operations, or other activities of a public office can be classified reasonably as a record. * * * The document need not be in final form to meet the statutory definition of “record.”
Kish v. Akron, 109 Ohio St.3d 162, 2006-Ohio-1244, ¶20. (Internal citations omitted.)
{¶10}
(A) All records are the property of the public office concerned and shall not be * * * destroyed * * * or otherwise damaged or disposed of, in whole or in part, except as provided by law or under the rules adopted by the records commissions
provided for under sections 149.38 to149.42 of the Revised Code * * *.1(B) Any person who is aggrieved by the * * * destruction * * * or by other damage to or disposition of a record in violation of division (A) of this section * * * may commence either or both of the following * * *:
(1) A civil action for injunctive relief to compel compliance with division (A) of this section * * *;
(2) A civil action to recover a forfeiture in the amount of one thousand dollars for each violation * * *.
Appellants seek relief under both
{¶11} In their motion for summary judgment, appellees stated that the determinative issue in this case is whether the assessors’ notes qualify as “public records” and argued that they were entitled to judgment as a matter of law because the notes were not “public records.” The trial court accepted appellees’ argument in its entirety, stating that the assessors’ personal notes “are not public records and, therefore, the [appellants‘] claims * * * fail as a matter of law.”
{¶12}
{¶13} The term “public record” is notably absent from
{¶14} To maintain a successful mandamus action under
{¶15} Whether the assessors’ notes were subject to records retention requirements, therefore, depends not upon whether the notes were “public records,” but on whether they were “records,” as broadly defined in
{¶16} We conclude, however, that we need not reach the question whether the assessors’ notes qualify as “records” under
{¶17} Only persons “aggrieved by” a violation of
{¶18} Thus, a person is aggrieved when his or her legal right to disclosure of a public record is infringed by the impermissible destruction of the public record. That is not to say, however, that a person could not otherwise establish a legal right to disclosure of a document that is not a public record and, thus, still demonstrate that he or she is an aggrieved party. In Walker, this court agreed with the trial court (1) that completed questionnaires, gathered as part of a state university academic study, were not public records subject to disclosure under
{¶19} Appellees rely on a number of cases in which courts, including the Supreme Court of Ohio, have considered whether personal notes by public officials or employees constitute public records. First, in State ex rel. Steffen v. Kraft, 67 Ohio St.3d 439, 1993-Ohio-32, the Supreme Court held that a judge‘s notes, handwritten during trial, were not public records, and affirmed the dismissal of a mandamus action for disclosure of those notes. The court recognized that
{¶20} The Supreme Court of Ohio examined a similar issue in State ex rel. Cranford v. Cleveland, 103 Ohio St.3d 196, 2004-Ohio-4884, in which the petitioner sought a writ of mandamus to compel the city of Cleveland to produce notes taken by the City Planning Commission Director during a predisciplinary conference with the petitioner. The director read from and relied on his notes during a hearing on the petitioner‘s appeal from his subsequent discharge. The court again held that the notes were not public records subject to disclosure under
{¶21} More recently, the Supreme Court of Ohio decided State ex rel. Carr v. Akron, 112 Ohio St.3d 351, 2006-Ohio-6714, which involved facts that closely parallel those in this case. In Carr, firefighters/medics who took promotional examinations filed an action for a writ of mandamus to compel the city to permit access to records relating to the examinations, including the assessors’ notes. Although much of the court‘s
{¶22} The Second District Court of Appeals recently relied on this line of cases in Silberstein v. Montgomery Cty. Community College Dist., 2d Dist. No. 23439, 2009-Ohio-6138, in which the plaintiff alleged that the defendant violated
{¶23} Appellants attempt to distinguish the assessors’ notes here from the personal notes in the foregoing cases. They maintain that the assessors’ notes were not taken for the assessors’ own convenience because the CSC strongly and repeatedly encouraged note taking to minimize error in the scoring process. They also assert that the notes were not personal because assessors shared their notes with each other and turned them into the CSC after the examination. Despite appellants’ arguments, we discern no basis for the distinctions appellants urge this court to make.
{¶24} Although the CSC undisputedly encouraged assessors to use their notes, instead of relying exclusively on their memories, to aid in assigning scores, neither CSC‘s encouragement of note taking nor its provision of note taking forms suggests that the assessors’ notes were not for their own convenience, even if the result was to minimize rating errors. In the prior personal note cases, like here, the notes at issue related to a matter upon which the note taker was charged with making a decision or aiding in the decision-making process. Especially similar to this case is Murray, in which interviewers took notes while interviewing employment candidates and used their notes to complete evaluation forms for the candidates. Also, in Cranford, the Supreme Court rejected the contention that notes kept “to recall events” were public records. Here, the CSC encouraged note taking as an alternative to assessors’ reliance exclusively on their memory. Thus, the assessors used their notes to recall relevant
{¶25} Next, contrary to appellants’ assertion, there is no evidence that the assessors shared their notes with each other or with others. Laura Hausman, a CSC personnel analyst, testified in her deposition that, after the assessors assign their initial, independent scores, they compare scores, and if the scores differ by more than two points, they discuss the candidate‘s performance to determine the reason for the differential. She testified that, during such a discussion, assessors typically look at their notes to voice their rationale or reasoning for their initial rating. Although the assessors were free to rely on their notes in discussing a candidate‘s performance, the record contains no evidence that the assessors had access to each other‘s notes.
{¶26} Finally, while the test monitor collected the assessors’ notes, there is no evidence that the CSC collected the notes to preserve them as official records. Indeed, the undisputed evidence is that the CSC immediately had its clerical staff shred the notes for test security reasons. Thus, while the notes were briefly in the CSC‘s possession, CSC did not keep them as official records. See Ertel at ¶9; see also State ex rel. Cincinnati Enquirer, Div. of Gannett Satellite Information Network, Inc. v. Cincinnati Bd. of Edn., 99 Ohio St.3d 6, 2003-Ohio-2260 (hiring materials submitted by finalists for position of school district superintendent during interviews, but returned to
{¶27} For these reasons, we discern no basis for differentiating the assessors’ notes here from the personal notes in Steffen, Cranford, Carr, and the other foregoing cases. In accord with those cases, the assessors’ notes did not qualify as “public records,” subject to disclosure to a member of the public, pursuant to
{¶28} Appellants offer other, alternative reasons for why they were aggrieved, even if the assessors’ notes were not “public records.” For example, appellants, who are union members, contend that they had a contractual right, via their collective bargaining agreement, to access the information in the assessors’ notes through review by a union-appointed testing expert. Appellants also state that they “intended to, and did, take subsequent promotional exams, which could and should have been improved using an analysis of the notes by such an expert (or by the [CSC] itself, which destroyed the notes without conducting any analysis).” Lastly, appellants argue that they are considering a legal challenge to the examinations and that access to the notes would have been beneficial to their claims. None of these arguments persuades the court that appellants are aggrieved under
{¶29} The Fraternal Order of Police, Capital City Lodge No. 9 (“FOP“), is the exclusive bargaining representative of all full-time, sworn police officers and police supervisors below the rank of Deputy Chief, who are employed by the City Division of
{¶30} We similarly reject appellants’ argument that they are aggrieved because they took subsequent promotional examinations that “should have been improved using an analysis of the notes” and because they have considered bringing a legal challenge to the subject examinations. The fact that appellants took subsequent examinations does not alter the fact that they had no legal right to view the assessors’ notes, which were not public records. Had appellants filed an action to challenge the examinations, requested the assessors’ notes in discovery, and established that appellees wrongfully
{¶31} In conclusion, we agree with the trial court that the assessors’ notes at issue in this case did not constitute “public records,” as defined by
Judgment affirmed.
BRYANT, P.J., and CONNOR, J., concur.