669 N.E.2d 487 | Ohio Ct. App. | 1995
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *731 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *732 Relators, District 1199, Health Care and Social Service Union, SEIU, AFLCIO, as well as its president, Tom Woodruff, and its secretary-treasurer, David Mott, brought this original action in mandamus seeking access to and inspection of records maintained by respondents Stephen Gulyassy, Deputy Director of the Ohio Office of Collective Bargaining ("OCB"), and James Conrad, Director of the Ohio Department of Administrative Services.
Pursuant to R.C.
The requested documents are drafts of OCB proposals advocating amendments to Chapter 4117 of the Revised Code. OCB employees either prepared the documents or received them from other state departments or from third-parties. Although some of the documents are written in the form of legislative bills, none have been presented to members of the General Assembly or introduced as legislation.1 Rather, OCB circulated the drafts within the office and to other state departments, including to people who were not acting as agents, employees *733 or representatives of OCB. None of the drafts necessarily represents OCB's final position regarding legislative proposals.
On January 5, 1995, respondent Gulyassy denied access to the requested documents, contending that they contained material in draft form which could not constitute R.C.
On January 6, 1995, relators in response filed a complaint in mandamus, requesting an order which requires respondents to prepare the requested records at actual cost and to cease all interference and retaliation against relator for its exercise of rights under the Ohio Public Records Act.2 Pursuant to R.C.
A writ of mandamus is warranted when (1) the relator has a clear legal right to the relief prayed for; (2) the respondent is under a clear legal duty to perform the requested act; and (3) the relator has no plain and adequate remedy at law. Relators meet those three points when a keeper of public records fails to comply with R.C.
R.C.
"All public records shall be promptly prepared and made available for inspection to any person at all reasonable times during regular business hours. Upon request, a person responsible for public records shall make copies available at cost, within a reasonable period of time. In order to facilitate broader access to public records, governmental units shall maintain public records in a manner that they can be made available for inspection in accordance with this division."
The duty to make records available applies only to documents satisfying the Revised Code definitions of "record" and "public record." Those definitions are to be construed broadly; any doubts are to be resolved in favor of disclosure. State ex rel.Cincinnati Post v. Schweikert (1988),
"[A]ny document, device, or item, regardless of physical form or characteristic, created or received by or coming under the jurisdiction of any public office of the state * * * which serves to document the organization, functions, policies, decisions, procedures, operations, or other activities of the office."
If a document is a record, it becomes a "public record" under R.C.
"[K]ept by any public office, including, but not limited to, state * * * units, except medical records, records pertaining to adoption, probation, and parole proceedings, records pertaining to actions under section
The parties stipulate that the requested documents do not fall within the exceptions for "medical records, records pertaining to adoption, probation, and parole proceedings, records pertaining to actions under R.C.
Under the R.C.
Respondents nonetheless claim that because the documents are in draft form, they cannot "document" OCB's policies, and thus do not fall within the R.C.
Relators having met the definition of "records," they must next demonstrate that the documents requested are public records. Under the definition of "public records," we first must determine whether the drafts are "kept by any public office" and if so, whether their release "is prohibited by state or federal law." R.C.
In urging that the drafts are not "public records," respondents rely upon several cases holding that the term "public records" does not include public officials' personal memoranda created for their own benefit. See State ex rel.Steffen v. Kraft (1993),
For example, the Supreme Court in Steffen held that a trial judge's personal handwritten notes made during trial are not public records, as they were personal papers kept for the judge's own convenience, no other court officials had access to these notes, and the clerk of court did not have custody of them.Id. The court therefore concluded the trial judge's notes were not "public records" because they were not kept by any publicoffice. Id. Further, the public was not deprived of any benefit by the result, as the public could access the trial transcript.Id. See, also, Voinovich, supra (Governor's personal calendar not subject to disclosure).
Similarly, evaluation forms completed by individual board of education members were held not to be public records.Vindicator Printing, supra. Rather, the forms were personal to the board members, they were made exclusively to prepare members for the meeting, and individual board members were not required to compile the forms or to turn in their evaluations. Id. Because the forms were an aid to individual board members for their personal use, they did not document the decision of the entire board. Further, because the board as a whole compiled a "public record" evaluation, the public also was not harmed by lack of a public record. Id.
Whereas the cases upon which respondents rely concern documents that are personal to the writer and written for the writer's convenience, here the drafts were not created for any one public official's personal benefit or convenience. They were circulated beyond the writer and outside OCB, and they were not *736
maintained in a manner indicating a private purpose. SeeSibille v. Fed. Res. Bank (S.D.N.Y. 1991),
In that regard, respondents urge that we adopt a "deliberative privilege" as part of state law prohibiting the release of what are otherwise public records.3 Respondents' argument arises out of Exemption 5 to the Freedom of Information Act, Section 552, Title 5, U.S. Code, which states that agencies need not provide public access to "inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency." Section 552(b)(5), Title 5, U.S. Code ("Exemption 5").
The exemption covers both attorney work product prepared in contemplation of litigation and documents that are predecisional and deliberative. Senate of Puerto Rico v. United States Dept.of Justice (C.A.D.C. 1987),
Underlying Exemption 5 is the policy that "a government agency cannot always operate effectively if it is required to disclose documents or information which it has received or generated before it completes the process of awarding a contract or issuing an order, decision or regulation." Schell, supra,
Even if respondents' public policy arguments may have some merit, the legislature expresses Ohio public records law through R.C.
In balancing the competing public policy considerations, the legislature has excepted some public records from disclosure. However, the exceptions mention attorney "work product" only as it concerns preparation for litigation, and it mentions investigatory work product only as it concerns confidential law enforcement investigatory records. See R.C.
For the foregoing reasons, we decline respondents' invitation to create an Exemption 5-type privilege to R.C.
Alternatively, respondents assert that provisions of R.C. Chapter 4117 comprehensively regulate all aspects of the collective bargaining relationship and preempt R.C.
R.C.
Further, to the extent respondents contend that R.C.
Respondents also contend that terms within the pertinent collective bargaining agreement exclusively govern relators' access to public records. Respondents, however, cite no section concerning the bargaining unit's access to what are otherwise public records. While Section 7.06 of the agreement states that the parties intend to share all relevant records and to facilitate resolution of grievances, that provision does not concern access to what are otherwise public records. Article 36, concerning employees' access to their personnel files, also does not mention access to what are otherwise public records.
Indeed, the pertinent collective bargaining agreement contains no specification about access to public records. Given that fact, R.C.
Respondents contend that Wells, supra, does not apply when public employees attempt to access public records. If we adopted respondents' distinction, whether a person had access to public records would depend upon whether he or she was a public employee. We find no authority for the proposition that the employment of the person requesting the records affects their availability. See, e.g., R.C.
For the foregoing reasons, R.C.
Pursuant to R.C.
For the foregoing reasons, we grant relators' writ of mandamus and deny their request for attorney fees.
Writ of mandamus granted; request for attorney fees denied.
JOHN C. YOUNG and PETREE, JJ., concur.