THE STATE EX REL. FENLEY v. OHIO HISTORICAL SOCIETY ET AL.
No. 90-1902
SUPREME COURT OF OHIO
September 2, 1992
64 Ohio St.3d 509 | 1992-Ohio-2
Submitted June 17, 1992
IN MANDAMUS.
Porter, Wright, Morris & Arthur, Robert E. Portune, Thomas H. Pyper and Ronald J. Kozar, for relator.
Fred J. Milligan, Jr., for respondents.
Per Curiam.
{¶ 1} Relator, Ann Fenley, is a genealogist who seeks a writ of mandamus pursuant to the Public Records Act,
{¶ 2} Fenley, a resident of Montgomery County, asked the Society to mail her an uncertified copy of a death certificate in June 1989. Based on previous correspondence with the Society, Fenley was aware that the charge for mailing such a copy was $6.00 for Society members and $8.00 for nonmembers. Fenley considered both charges excessive because the fee charged by the Society to those individuals appearing in person in Columbus was just $0.25 for making their own copies. Therefore, Fenley‘s June 1989 request included a check for $0.25.
{¶ 3} Thereafter, in September 1989, the Society altered its fee schedule,
{¶ 4} The issue presented by this mandamus action is whether
{¶ 5}
{¶ 6} As an initial matter, the Society argues that it has no duty to act because Fenley has already been given relief (she was mailed the certificate after a member donated the $7.00 fee), and that mandamus may not be used “to remedy the anticipated nonperformance of a duty.” State ex rel. Home Care Pharmacy, Inc. v. Creasy (1981), 67 Ohio St.2d 342, 343, 21 O.O.3d 215, 216, 423 N.E.2d 482, 483 (holding that where an alleged duty has already been carried out, a writ of mandamus will not be granted to compel observance of the law generally). Fenley counters that she is still an “aggrieved” party under
{¶ 7} We agree with Fenley‘s position on this initial matter. The policy she attacks, the Society‘s $7.00 mailing fee, remains in effect. To deny Fenley relief under the rule in Home Care Pharmacy would permit persons responsible for public records to circumvent review of their practices by making exceptions for those who object. Fenley‘s ultimate goal is to change the Society‘s mailing-charge policy to comply with what she believes are the requirements of
{¶ 8} The parties stipulate that the death certificate at issue is a public record. The parties disagree, however, over
{¶ 9}
“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 such a manner that they can be made available for inspection in accordance with this division.”
{¶ 10}
{¶ 11} The Society, however, maintains that the plain meaning of
{¶ 12} It is a frequently cited rule of statutory construction that “where the terms of a statute are clear and unambiguous, the statute should be applied without interpretation.” Wingate v. Hordge (1979), 60 Ohio St.2d 55, 58, 14 O.O.3d 212, 214, 396 N.E.2d 770, 772. We find that the language of
{¶ 13} Fenley also argues that we should extend the principle established in the second paragraph of the syllabus of State ex rel. Natl. Broadcasting Co. v. Cleveland (1988), 38 Ohio St.3d 79, 526 N.E.2d 786, to the circumstances of this
{¶ 14} Furthermore,
{¶ 15} Many of the arguments presented by both relator and respondents are public policy arguments going to the question of whether it is appropriate to require the custodian of records to provide copies by mail. As discussed supra, those contentions are better addressed by the General Assembly than by this court. For the same reason, it is unnecessary for us to consider the arguments raised by both parties concerning what a “reasonable” cost charged for mailing records should be.
{¶ 16} Because we hold that
Writ denied.
MOYER, C.J., SWEENEY, HOLMES and H. BROWN, JJ., concur.
DOUGLAS, WRIGHT and RESNICK, JJ., concur.
DOUGLAS, J., dissenting.
{¶ 17} Today a majority of this court takes yet another whack at the public records law. See, e.g., State ex rel. Toledo Blade Co. v. Northwood (1991), 58 Ohio St.3d 213, 569 N.E.2d 904. Because I disagree with the holding of the majority, I must respectfully dissent. I do so because I believe that the majority has incorrectly construed
{¶ 18} The parties to this original action in mandamus are Ann Fenley (“relator“), a resident citizen of Ohio who, for many years, has pursued the vocation of genealogy, and the Ohio Historical Society (“OHS“) and certain officials and
{¶ 19} Prior to December 1988, the Ohio Department of Health, Division of Vital Statistics (“DVS“) (now office of Vital Statistics), had possession of all death certificates of Ohio decedents for the time period of 1908-1936. On occasion, when relator sought a copy or copies of death certificates, she would mail her request to DVS which would provide her the requested copies at $1.10 each. If a special search of the files and records became necessary to locate the requested certificate, an additional charge was made in accordance with former
{¶ 20} In December 1988, DVS transferred the 1908-1936 death certificates to OHS. Relator soon discovered that the DVS copying and mailing policy and charges would not be followed by OHS. While the cost factor of making the copies in question has been placed at issue by the parties, the majority only decides the question of whether, upon proper request and payment of some fee, a public record must be mailed to a requesting person by an agency holding public records. Because the majority does not deal with the cost factor, neither will this dissent notwithstanding that such question is a critical part of this case. Suffice to say, OHS‘s policy of charging relator for requested copies by mail amounts to nearly a six hundred percent increase over the costs previously charged by DVS.
{¶ 21} Feeling that she was an “aggrieved” person, relator commenced this original action in mandamus. She did so on the basis that her rights granted by
{¶ 22}
“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 such a manner that they can be made available for inspection in accordance with this division.” (Emphasis added.)
{¶ 23} The majority, in construing the term “available,” as used in
{¶ 24} The rationale behind Ohio‘s public records law is that public records belong to the public, and the governmental unit or custodian holding the record does so on behalf of the public. See State ex rel. Natl. Broadcasting Co. v. Cleveland (1988), 38 Ohio St.3d 79, 526 N.E.2d 786. “Further, the law‘s public purpose requires a broad construction of the provisions defining public records. Because the law is intended to benefit the public through access to records, this court has resolved doubts in favor of disclosure.” (Emphasis added.) State ex rel. Cincinnati Post v. Schweikert (1988), 38 Ohio St.3d 170, 173, 527 N.E.2d 1230, 1232.
{¶ 25} By its own terms,
{¶ 26} Further, there is no question that
{¶ 27} Rather than the law pronounced by the majority, I believe that a syllabus in this case should state that ”
{¶ 28} Today‘s decision deviates from our long-established course to ensure that public records remain open and available to the public. This court has repeatedly applied
RESNICK, J., concurs in the foregoing dissenting opinion.
{¶ 29} I respectfully dissent from this court‘s decision to deny relator‘s request for a writ of mandamus. I would order further briefing on the issue of the actual cost to the Ohio Historical Society before deciding whether the writ should be granted or denied.
{¶ 30} Although I share Justice Douglas‘s interpretation of
{¶ 31} As a matter of public policy, custodians should adopt and implement reasonable measures which will allow the broadest range of access to public records by Ohio citizens. Although I believe the party making the request should bear reasonable costs associated therewith, a mandate that custodians make copies of public records available by mail is neither burdensome nor unreasonable. This practice would provide access to those Ohio citizens who are unable to travel to the custodian due to distance or otherwise. Indeed, we may well be sanctioning the violation of the Americans With Disabilities Act of 1990,
{¶ 32} Our recent decisions have interpreted