THE STATE EX REL. CLOUGH v. FRANKLIN COUNTY CHILDREN SERVICES ET AL.
No. 2014-1122
Supreme Court of Ohio
August 27, 2015
[Cite as State ex rel. Clough v. Franklin Cty. Children Servs., 144 Ohio St.3d 83, 2015-Ohio-3425.]
Submitted June 9, 2015
{¶ 1} Relator, Stephanie Y. Clough, seeks a writ of mandamus to compel respondent Franklin County Children Services (“FCCS“) to allow her access to files maintained by FCCS on Clough‘s minor daughter. According to the report of the special master appointed by this court to review the file, the requested documents are the records of an investigation of a report of possible child abuse. They are therefore confidential under
Facts
{¶ 2} On April 22, 2014, Clough made a verbal request, through an agent, to inspect records concerning Clough‘s daughter, J.C. On April 30, 2014, Clough‘s agent received a written response from respondent Anne C. O‘Leary, chief legal counsel for FCCS, denying Clough‘s request. The letter explained that respondent Charles M. Spinning, executive director of FCCS, did not find good cause to release the records. On May 13, 2014, Clough‘s agent tendered to O‘Leary a written request for the inspection of J.C.‘s case file. FCCS responded, once again refusing to allow inspection of the file. Clough filed her complaint in mandamus in this court on July 3, 2014.
{¶ 3} Clough asserts in her complaint that the request for access is authorized by FCCS in an agency document setting forth FCCS board policies. She avers that this right of access is not subject to any restriction and that this right contradicts FCCS‘s claim that the records may be released in only limited
{¶ 4} In the complaint, Clough further asserts that the FCCS document grants a right to review all FCCS documents in the presence of FCCS personnel. She contends that the independent review of her request by the Ohio Department of Job and Family Services (“ODJFS“) and the claim that the records are confidential under Ohio law are “inadequate” grounds for refusing her request.
{¶ 5} Clough asserts that FCCS‘s actions havе been “in defiance” of that agency‘s memorandum of understanding with various entities, including the Children‘s Advocacy Center1 and CHOICES, a women‘s advocacy center.
{¶ 6} According to Clough‘s complaint, at one point, the disposition of the report of possible abuse of Clough‘s daughter resulted in findings of “unsubstantiated.” But she claims that during two griеvance hearings, she was informed that the disposition would be changed to “indicative of abuse.” Clough asserts that following the grievance hearings, she has a right to review any notes or other records for an explanation of why FCCS changed its decision. She asserts that FCCS has failed to offer any explanation for not following its own policies and procedures.
{¶ 7} Clough maintains that she has a clear legal right to inspect the case file in the presence of FCCS personnel at their offices. She asserts that she has no adequate remedy in thе ordinary course of the law and that there is no legally valid excuse for the denial. Clough claims that a writ will serve the public interest by encouraging FCCS to comply with its own policies and procedures and by exposing the failure of FCCS to follow protocols under a memorаndum of understanding with other child-protective-service agencies.
{¶ 8} Clough requests a writ of mandamus commanding respondents to immediately allow her to review the case file and notes, as mandated under FCCS policy. She also seeks statutory damages and costs.
{¶ 9} We assigned thе Honorable Kenneth J. Spicer, a retired judge of the Delaware County Court of Common Pleas, Probate and Juvenile Divisions, as a special master to conduct an in camera review of the requested documents. He did so and filed a report, to which Clough filed a response. FCCS filed a motion to clarify the report of the special master. Clough has also filed three emergency motions to expedite the court‘s decision.
Mandamus
{¶ 10} Generally, to be entitled to a writ of mandamus, the relator must establish a clear legal right to the requested relief, a clear legal duty on the part of the respondents to provide it, and the lack of an adequate remedy in the ordinary course of the law. State ex rel. Waters v. Spaeth, 131 Ohio St.3d 55, 2012-Ohio-69, 960 N.E.2d 452, ¶ 6. The relator must prove that she is entitled to the writ by clear and convincing evidence. Id. at ¶ 13.
{¶ 11} To the extent that this case is a claim for public records, “[m]andamus is the appropriate remedy to compel compliance with
{¶ 12} Although the Public Records Act is accorded liberal construction in favor of access to public records, “the relator must still establish entitlement to the requested extraordinary relief by clear and convincing evidence.” State ex rel. McCaffrey v. Mahoning Cty. Prosecutor‘s Office, 133 Ohio St.3d 139, 2012-Ohio-4246, 976 N.E.2d 877, ¶ 16. However, unlike in other mandamus cases, “[r]elators in public-records mandamus cases need not establish the lack of an adequate remedy in the ordinary course of law.” State ex rel. Data Trace Information Servs., L.L.C. v. Cuyahoga Cty. Fiscal Officer, 131 Ohio St.3d 255, 2012-Ohio-753, 963 N.E.2d 1288, ¶ 25, quoting State ex rel. Am. Civ. Liberties Union of Ohio, Inc. v. Cuyahoga Cty. Bd. of Commrs., 128 Ohio St.3d 256, 2011-Ohio-625, 943 N.E.2d 553, ¶ 24.
Franklin County Children Services grievance and consumer-rights policies
{¶ 13} Although the requests made by Clough in this case might be construed as public-records requests to be analyzed under
{¶ 14} FCCS‘s policy does provide that adults and children who are clients of FCCS have the right to review their case records. However, that statement of client rights is qualified by the phrase “so long as such access is not prohibitеd by law.” Thus, the statement of right that Clough relies on is expressly limited, as it must be, by its incorporation of applicable law.
{¶ 15} Even if the policy did not point out limitations to the right, those limitations exist and are enforceable. A court in a mandamus proceeding cannot create a duty where none exists. State ex rel. Governor v. Taft, 71 Ohio St.3d 1, 3, 640 N.E.2d 1136 (1994); State ex rel. Hodges v. Taft, 64 Ohio St.3d 1, 3, 591 N.E.2d 1186 (1992). Only the legislature can create a legal duty to be enforced in mandamus: “creation of the duty is the distinct function of the legislative branch of government.” Id.
{¶ 16} Here, the FCCS document on board policies regarding the inspection of investigatory files does not create or reflect any duty to provide access that can be enforced in mandamus. No FCCS “policy” can provide access to the requested files when access is prohibited by law. Because Clough cannot claim a clear legal right from FCCS‘s statement of policies and procedures, we deny the writ to the extent Clough is basing her claim on those policies and procedures.
Public records
{¶ 17} Although Clough does not mention the public-records law in her complaint, she nevertheless asserts a violation of that law in her brief. Even assuming that the issue has been properly presented, Clough cannot prevail.
{¶ 18} FCCS asserts that the documents Clough requested are exempted from disclosure by
{¶ 19} Therefore, if the file constitutes a report of a child-abuse allegation and the investigation of that allegation, аs Clough describes it in her brief, the file is confidential under
Report of the special master
{¶ 20} The special master inspected the file and described its general contents in his report. His description of the documents is necessarily circumspect, revealing nothing substantive about their contents. But his report does indicate, with only a few possible exceptions, that the file is a “report made under this section” within the meaning of
Public-records exceptions
{¶ 22} Considering the special master‘s report, the file appears to contain, with very few possible exceptions, the records of an investigation of a report of possible child abuse, and therefore falls under the confidentiality provision in
{¶ 23} Even those documents in the file that might not be confidential under
The public children services agency shall prepare and keep written records of investigations of families, children, and foster homes, and of the care, training, and treatment afforded children, and shall prepare and keep such other records as are required by the department of job and family services. Such records shall be confidential, but, except as provided by division (B) of section 3107.17 of the Revised Code, shall be open to inspection by the agency, the director of job and family services, and the director of the county department of job and family services, and by other persons upon the written permission of the executive director.
{¶ 24} “[T]he confidentiality promised by
{¶ 25} The exceptions to the confidentiality provision in
{¶ 26} Clough‘s argument in support of disclosure is that FCCS did not follow its own policies and procedures in denying her request. This does not qualify as good cause. While her case is sympathetic, and she is no doubt concerned about the investigatiоn of her daughter‘s possible abuse, she has not alleged that the child is currently in any specific danger, that her due-process rights are in jeopardy, or that there is any similarly compelling reason to depart from the statutory mandate of confidentiality.
{¶ 27} Finally, Clough‘s second argument is that she is entitled to records pertaining to the grievance hearings held in 2009 and 2010. Although the hearings are mentioned in the complaint and brief, these records are not mentioned in her requests to FCCS. Clough may not seek a writ of mandamus for documents that she did not request before filing hеr complaint.
Conclusion
{¶ 28} In short, Clough has requested to inspect documents that are deemed confidential by statute without any showing of good cause for overriding confidentiality. We therefore deny the writ and deny Clough‘s emergency motions to
Writ denied.
O‘CONNOR, C.J., and PFEIFER, O‘DONNELL, KENNEDY, FRENCH, and O‘NEILL, JJ., concur.
LANZINGER, J., concurs in judgment only.
Stephanie Y. Clough, pro se.
Ron O‘Brien, Franklin County Prosecuting Attorney, Nick A. Soulas Jr., First Assistant Prosecuting Attorney, and Amy L. Hiers, Assistant Prosecuting Attorney, for respondents.