State ex rel. Cincinnati Enquirer v. Jones-KelleyState ex rel. Cincinnati Enquirer v. Jones-Kelley
{¶ 1} This is an original action for a writ of mandamus to compel the director of the Ohio Department of Job and Family Services (“ODJFS”) to provide access to an electronic copy of a database of the names and addresses of certified foster caregivers in the state. Because the director failed to meet her burden to establish that the requested record is excepted from disclosure, we grant the writ.
{¶ 2} Relator, the Cincinnati Enquirer, a division of Gannett Satellite Network, Inc. (“Enquirer”), operates and does business as the Cincinnati Enquirer, a newspaper of general circulation in Cincinnati, Ohio. In September 2006, a
{¶ 3} In December 2006, the Enquirer filed this action for a writ of mandamus to compel Riley, in her capacity as director of ODJFS, to provide the requested foster-home record. Respondent, Helen Jones-Kelley, succeeded Riley as the director of ODJFS, filed an answer, and is automatically substituted as the respondent in this case. S.Ct.Prac.R. X(2) and
{¶ 4} This cause is now before us for our consideration.
Mandamus
{¶ 5} “Mandamus is the appropriate remedy to compel compliance with
{¶ 6} For purposes of
{¶ 7} The director of ODJFS is the custodian of the department’s records. The requested electronic copy of the database containing the names and addresses of foster caregivers in the state is a record under the Public Records Act because maintaining a record of names and addresses of foster caregivers is part of the department’s duty in certifying foster caregivers.
{¶ 8} Therefore, in the absence of any exception to disclosure under the Public Records Act, the Enquirer is entitled to a copy of the requested names and addresses of certified foster caregivers in the state.
Exceptions to Disclosure: Construction and Burden of Proof
{¶ 9} The director asserts that the requested electronic copy of the names and addresses of all foster caregivers certified by the state is excepted from disclosure by (1) federal and state law because foster caregivers are recipients of payments from a government program, (2) state law concerning data entered into the uniform, statewide, automated child-welfare-information system (“SACWIS”), and (3) a “good sense” rule consistent with public-records precedent.
{¶ 10} Exceptions to disclosure under the Public Records Act,
Exceptions to Disclosure: Foster-Care Maintenance Payments
{¶ 11} “The Congress has enacted several statutes aimed at improving child welfare services provided by the several States,” including Title IV-E of the Social Security Act, Section 670 et seq., Title 42, U.S.Code, which makes federal funds available to state programs that provide “ ‘foster care and transitional independent living programs for children’ and ‘adoption assistance for children with special needs.’ ” Nebraska Dept. of Health & Human Servs. v. Dept. of
{¶ 12} Under Section 671, Title 42, U.S.Code, a state is eligible for federal payments if it has an approved plan that, among other things, “provides for foster care maintenance payments in accordance with section 672 of this title” and “provides safeguards which restrict the use of or disclosure of information concerning individuals assisted under the State plan” to the specified purposes, including the administration of the plan. Sections 671(a)(1) and (8), Title 42, U.S.Code. “Foster-care maintenance payments” are “payments to cover the cost of (and the cost of providing) food, clothing, shelter, daily supervision, school supplies, a child’s personal incidentals, liability insurance with respect to a child, and reasonable travel to the child’s home for visitation.” Section 675(4)(A), Title 42, U.S.Code. Federal regulations reiterate the requirement of confidentiality specified in the act. See Section 1355.21(a), Title 45, C.F.R. (“The State plans for titles IV-E and IV-B must provide for safeguards on the use and disclosure of information which meet the requirements contained in section 471(a)(8) of the Act”); Section 205.50(a)(l)(i), Title 45, C.F.R. (“use or disclosure of information concerning applicants and recipients” of “financial assistance” is limited to specified purposes); Section 205.50(a)(l)(iv), Title 45, C.F.R. (“Publication of lists or names of applicants and recipients will be prohibited”).
{¶ 13} Ohio has implemented its plan by designating ODJFS as “the single state agency to administer federal payments for foster care and adoption assistance made pursuant to Title IV-E” and requiring counties to make payments “on behalf of each child eligible for foster care maintenance payments under Title IV-E * * * to cover the cost of providing * * * [t]he child’s food, clothing, shelter, daily supervision, and school supplies.”
{¶ 14} In compliance with Section 671(a)(8), Title 42, U.S.Code,
{¶ 15} The director claims that because foster-care maintenance payments under these federal and state provisions are made to foster caregivers on behalf of the foster children, foster caregivers are “individuals assisted under the State
{¶ 16} The Enquirer counters that because the ODJFS director admitted in her deposition that the foster-care maintenance payments pay foster caregivers for their services in caring for children and are not considered to be “public assistance,” the court should reject the director’s claimed exception. The Enquirer’s contention, however, lacks merit because — as the director asserts — the interpretation of the pertinent federal and state provisions raises a legal question rather than an evidentiary issue to be determined by witness testimony. See, e.g., Shimko v. Lobe,
{¶ 17} In construing the pertinent federal and state provisions, our paramount concern is the intent in enacting them. See, e.g., State ex rel. Russell v. Thornton,
{¶ 18} Foster-care maintenance payments, although made on behalf of an eligible child, are delivered to the possession of and thus are received by a foster caregiver or by a public or nonprofit, private, child-placement or child-care agency. Section 672(b), Title 42, U.S.Code (“Foster care maintenance payments may be made under this part only on behalf of a child described in subsection (a) of this section who is — (1) in the foster family home of an individual, whether the payments therefore are made to such individual or to a public or private child-placement or child-care agency”). Although the children are the ultimate beneficiaries, the foster caregivers become assisted individuals who are partially reimbursed for certain costs related to child care. See Timmy S. v. Stumbo (C.A.6, 1990),
{¶ 19} This construction of the pertinent provisions is supported by precedent. In Claudio v. Dowling (1997),
{¶ 20} Similarly, even if foster caregivers are not considered at least partial beneficiaries of foster-care maintenance payments, they would still be recipients of these payments. See In re Estate of Bundy (1977),
{¶ 21} Therefore, based on the plain language of Section 671(a)(8), Title
{¶ 22} Nevertheless, the director still bears the burden of establishing that these federal and state exceptions to disclosure are applicable to the requested record, which is a list of the names and addresses of certified foster caregivers in Ohio. In this regard, the director has not yet introduced evidence that all of the certified foster caregivers in the requested record had received or were receiving foster-care maintenance payments or had applied for them at the time of the Enquirer’s request. Notably, under Section 672(a), Title 42, U.S.Code, these payments can be made only on behalf of eligible children. There is again no evidence in the record that all of the certified foster caregivers were caring for eligible children when the Enquirer made its request. At best, the director submitted evidence that about 80 percent of all foster homes had a placement in the year before a certain investigation occurred. There is no indication that the placements cited were of eligible children or that every certified foster caregiver
{¶ 23} Therefore, the director has not yet met her burden to establish that the disclosure of the list of names and addresses of certified foster caregivers would necessarily disclose which, if any, of the certified foster caregivers are, in fact, public-assistance recipients or applicants. The mere fact that ODJFS has certified certain individuals as foster caregivers does not make these individuals “assisted” under the state plan for purposes of federal law or “public-assistance recipients” or “applicants” under state law.
{¶ 24} In other words, federal and state law except from disclosure information concerning individuals assisted under the state foster-care plan and public-assistance recipients, but absent evidence showing that a list of the names and addresses of certified foster caregivers discloses which, if any, of those caregivers is a public-assistance recipient, the list is not excepted from disclosure under federal and state law. Section 671(a)(8), Title 42, U.S.Code;
{¶ 25} Based on the foregoing, the director’s contention that federal and state law except the foster caregivers’ names and addresses from disclosure because they are recipients of foster-care maintenance payments lacks merit.
{¶ 26} Now that we have interpreted the applicable law, the status of the requested records can be established. We believe that the proper course is to allow the director to establish which information fits into this exception to disclosure, which had been undefined before our analysis. Forcing the director to make full disclosure of the names and addresses of all foster caregivers may jeopardize Ohio’s eligibility to receive federal funding for the state’s foster-care program and irrevocably destroy the privacy of foster caregivers whose identities are required under federal and state law to remain confidential.
Exception to Disclosure:
{¶ 27} Under Section 674(a)(3)(C), Title 42, U.S.Code, each state that has an approved plan is entitled to partial reimbursement of expenses for the creation of certain statewide, mechanized, data-collection and information-retrieval systems. The General Assembly enacted
{¶28}
{¶ 29} “(1) Investigations of children and families, and children’s care in out-of-home care, in accordance with sections 2151.421 and 5153.16 of the Revised Code;
{¶ 30} “(2) Care and treatment provided to children and families;
{¶ 32} In general, “information contained in or obtained from the information system established and maintained under
{¶ 33} The director contends that all of the names and addresses of foster caregivers are excepted from disclosure based on
{¶ 34} Again, we believe that the proper course is to allow the director to establish which information fits into this exception to disclosure.
Exception to Disclosure: “Good Sense” Rule
{¶ 35} Finally, the director and some of the amici claim that the names and addresses of foster caregivers should be held confidential under the “good sense” rule mentioned in State ex rel. Keller v. Cox (1999),
{¶ 36} In Keller,
{¶ 38} We also noted in dicta that even if the requested information constituted a record subject to
{¶ 39} For the following reasons, neither Keller nor McCleary supports the application of a “good sense” exception to disclosure under the Public Records Act in this case.
{¶ 40} First, our decision in Keller was premised upon the constitutional right of privacy, and the director does not claim that the requested record here is protected by this right. See Conley v. Corr. Reception Ctr. (2001),
{¶ 41} Second, “to the extent that Keller also suggests a good-sense rule regarding the release of public records, the rule appears to be inextricably intertwined with the facts of Keller, which involved requests by criminal defendants for personal information about law enforcement personnel.” State ex rel. Beacon Journal Publishing Co. v. Bodiker (1999),
{¶ 42} Third, our holding in McCleary relied on the fact that the requested database did not constitute a record for purposes of the Public Records Act. By contrast, the requested copy here is a record. Moreover, our dicta in McCleary relied on the constitutional right of privacy, which the director does not assert in this case.
{¶ 43} Fourth, like the lead-citation notices at issue in State ex rel. Cincinnati Enquirer v. Daniels,
{¶ 45} In sum, a judicially created “good sense” rule does not except a public record from disclosure under
Conclusion — Mandamus Claim
{¶ 46} Based on the foregoing, the director is ordered to divulge the database containing the names and addresses not otherwise excluded by application of the law as explained in this opinion.
Attorney Fees
{¶ 47} The Enquirer also requests an award of attorney fees. An award under the applicable version of
{¶ 48} The director’s position was reasonable because of the possible applicability of the claimed federal and state exceptions to the requested database of names and addresses. We have not previously considered these claimed exceptions. “ ‘[CJourts should not be in the practice of punishing parties for taking a rational stance on an unsettled legal issue.’ ” Daniels,
{¶ 49} Moreover, the director introduced evidence of four instances in which biological parents located children who had been removed from their homes and proceeded to harm or threaten to harm the children and their caregivers. The state official in charge of overseeing foster-care and adoption programs for ODJFS has opined that the release of the names and addresses of foster caregivers would harm children, discourage adoption, and make it difficult to recruit and retain foster caregivers. Four separate groups have filed amicus curiae briefs in support of the director. In February 2008, the governor signed into law Am.Sub.H.B. No. 214, effective May 14, which exempts identifying information of current and prospective foster caregivers, including records of the type sought here.
{¶ 50} Based on the foregoing, we deny the Enquirer’s request for attorney fees.
Judgment accordingly.
Notes
. Effective September 29, 2007,
. The parties submitted supplemental briefs addressing what impact, if any, Am.Sub.H.B. No. 214, which generally exempts this type of record, has on this case. We find that the act does not apply retroactively to this case, because the General Assembly has not so specified. State v. LaSalle,