State ex rel. Kerner v. State Teachers Retirement Board

Jul 1, 1998
No. 97-1188
Versions:82 Ohio St. 3d 273
695 N.E.2d 256
Per Curiam.

In his propositions of law, Kerner essentially asserts that the court of appeals erred in denying the writ. Kerner claims that the requested names and addresses of STRS members who have completed five years of service credit and who have made no contributions during the prеceding school year are public records that must be disclosed under R.C. 149.43. For the reasоns that follow, Kerner’s argument lacks merit, and we affirm the judgment of the court of appeals.

Initially, as the board cogently noted both below and on appeal, it has no duty to create a new document by searching for and compiling information from its existing records. Seе State ex rel. Lanham v. Ohio Adult Parole Auth. (1997), 80 Ohio St.3d 425, 427, 687 N.E.2d 283, 285, quoting State ex rel. Fant v. Tober (Apr. 28, 1993), Cuyahoga App. No. 63737, unreported, 1993 WL 173743 (“ ‘[Rjelator’s request for mandamus relief is denied to the extent that his public records request brоadly sought respondents to search for records containing selected information.’ ”); see, also, State ex rel. Thomas v. Ohio State Univ. (1994), 70 Ohio St.3d 1438, 638 N.E.2d 1041.

In other words, a compilation of information must already exist ‍​​​‌‌​​‌‌​​‌​​​​​‌‌‌‌​​‌​‌​‌​‌‌‌​‌‌​‌​‌‌​‌‌​​‌​​‍in public records before access to it will be ordered. State ex rel. Scanlon v. Deters (1989), 45 Ohio St.3d 376, 379, 544 N.E.2d 680, 683, overruled on other grounds, State ex rel. Steckman v. Jackson (1994), 70 Ohio St.3d 420, 426-427, 639 N.E.2d 83, 89 (“We hold that the clerk could not be required tо create a new ‘document’ by compiling material to facilitate review of the public records. Conversely, if the clerk’s computer were already programmed to produce the desired printout, the ‘document’ would already exist for the purpose of an R.C. 149.43 request.”); State ex rel. Kinsley v. Berea Bd. of Edn. (1990), 64 Ohio App.3d 659, 664, 582 N.E.2d 653, 656.

Here, the evidence establishes that the board did not have the requested compilation of names and addresses of STRS members who have completed five years of service credit and who have made no contributions during the preceding school year. In ordеr to create the requested records, the board would have had to reprogram its сomputer system. Therefore, the board had no duty to provide access to the requеsted records. Scanlon, 45 Ohio St.3d at 379, 544 N.E.2d at 683. The Public Records Act does not compel the board to creatе a new document to satisfy Kerner’s demands. State ex rel. Fant v. Mengel (1992), 62 Ohio St.3d 455, 455-456, 584 N.E.2d 664, 665.

In addition, assuming the board had a duty to compile the requested records, Kerner ‍​​​‌‌​​‌‌​​‌​​​​​‌‌‌‌​​‌​‌​‌​‌‌‌​‌‌​‌​‌‌​‌‌​​‌​​‍still would not have been entitled to access to the requested records under R.C. 149.43. Public records do not include “[rjecords the release of which is prоhibited by state or federal law.” R.C. 149.43(A)(l)(p); State ex rel. Gannett Satellite Information Network, Inc. v. Petro (1997), 80 Ohio St.3d 261, 265-266, 685 N.E.2d 1223, 1228.

The requested records were exempted from disclosure under R.C. 149.43 by R.C. 3307.21(B) and Ohio Adm.Code 3307-l-03(A). R.C. 3307.21(B)(2)(b) exempts from public inspection an individual’s “personal history record” unless the individual cоncerned authorizes its release in writing. “Personal history record” includes “information maintained by the board on a member, former member, contributor, former contributor, retirant, or benefiсiary that includes the * * * record of contributions * * * or other information the board determines to be confidential.” R.C. 3307.21(B)(1). Ohio Adm.Code 3307-1-03 was promulgated by the board to specify “other information the boаrd determines to be confidential” under R.C. 3307.21(B). State ex rel. Lindsay v. Dwyer (1996), 108 Ohio App.3d 462, 466, 670 N.E.2d 1375, 1378. In the absence of written authorization ‍​​​‌‌​​‌‌​​‌​​​​​‌‌‌‌​​‌​‌​‌​‌‌‌​‌‌​‌​‌‌​‌‌​​‌​​‍of the pеrson to whom the record pertains, Ohio Adm.Code 3307-l-03(A)(2) and (3) prohibit the release to a third party of reсords'identifying service history, service credit, or contributions of STRS members.

Kerner contends that R.C. 3307.21(B) and Ohio Adm.Code 3307-l-03(A) do not apply because he is requesting names and addresses of a subclass of STRS members rather than information сoncerning specific service credit and contributions for any individual. But, as the court of аppeals held, “were respondent to produce the requested names, it would necessarily disclose the [service credit and] record of contributions of each pеrson whose name was produced.” The requested names would divulge that each person had at least five years of service credit and had made no contributions during the preсeding school year. R.C. 3307.21(B) and Ohio Adm.Code 3307-l-03(A) prohibit this disclosure.

In addition, Kerner erroneously relies on R.C. 3307.21(E), Ohio Adm.Code 3307-l-03(B), Police & Fire Retirees of Ohio, Inc. v. Police & Firemen’s Disability & Pension Fund (1985), 18 Ohio St.3d 231, 18 OBR 289, 480 N.E.2d 482, and State ex rel. Public Emp. Retirees, Inc. v. Public Emp. Retirement System (1979), 60 Ohio St.2d 93, 14 O.O.3d 331, 397 N.E.2d 1191, in suppоrt of his claimed entitlement to ‍​​​‌‌​​‌‌​​‌​​​​​‌‌‌‌​​‌​‌​‌​‌‌‌​‌‌​‌​‌‌​‌‌​​‌​​‍the writ. As the court of appeals held, R.C. 3307.21(E) “either allows or requires the board to produce only the names and addresses of the specified pеrsons; it does not allow the board to pare down the list in a fashion which discloses informatiоn otherwise prohibited from disclosure.” Ohio Adm.Code 3307-l-03(B) does not permit disclosure of the requested records because subsection (B) applies only to “[a]ll other information not described in paragraph (A) of this rule or otherwise made confidential by law * * *.” Police & Fire Retirees and Pub. Emp. Retirees are inapposite; nеither involved records exempted from disclosure by R.C. 3307.21(E)'and Ohio Adm.Code 3307-l-03(B).

Based on the foregoing, the court of appeals properly denied the writ. The board had no duty to provide Kerner with access to the requested records. Accordingly, we affirm the judgment of the court of appeals.

Judgment affirmed.

Moyer, C.J., Douglas, Resnick, F.E. Sweeney, Pfeifer, ‍​​​‌‌​​‌‌​​‌​​​​​‌‌‌‌​​‌​‌​‌​‌‌‌​‌‌​‌​‌‌​‌‌​​‌​​‍Cook and Lundberg Stratton, JJ., concur.