THE STATE EX REL. MCCLEARY, APPELLEE, v. ROBERTS, APPELLANT.
No. 99-316
SUPREME COURT OF OHIO
Decided April 12, 2000
88 Ohio St.3d 365 | 2000-Ohio-345
APPEAL from the Court of Appeals for Franklin County, No. 98AP-224.
Public records—Personal information of private citizens, obtained by a “public office,” reduced to writing and placed in record form and used by the public office in implementing some lawful regulatory policy, is not a “public record” as contemplated by
Personal information of private citizens, obtained by a “public office,” reduced to writing and placed in record form and used by the public office in imрlementing some lawful regulatory policy, is not a “public record” as contemplated by
(No. 99-316—Submitted December 1, 1999—Decided April 12, 2000.)
Cornell H. McCleary, pro se.
Janet E. Jackson, Columbus City Attorney, and Daniel W. Drake, Chief Counsel, for appellant.
Barry M. Byron, Stephen L. Byron and John Gotherman, urging reversal for amicus curiae Ohio Municipal League.
DOUGLAS, J.
{¶ 1} In May 1996, the city of Columbus (“City“) implemented a photo identification program for its Recreation and Parks Department (“Department“). The program was instituted primarily to combat the increased incidence of violent behavior and vandalism at City swimming pools. The photo identification program requires parents of children who use City pools and other recreation facilities to provide certain personal information regarding their children. Parents provide the Department with the names, home addresses, family information, еmergency contact information, and medical history information of participating children and, in return, each child is provided a photographic identification card to present when using pools and recreation centers. Apparently, as a result of the implementation of the identification system, the Department experienced a marked decrease in violence and unruliness at City pools.
{¶ 2} In November 1996, appellee, Cornell McCleary, requested a copy of the Department‘s electronic database, which contained the personal, identifying information regarding those children who were participating in the photo identification program. Wayne A. Roberts, Assistant Director of Recreation for the Department and appellant herein, refused to release the database and provide appellee with the requested information.
{¶ 3} On January 24, 1997, apрellee filed a complaint in the Court of Common Pleas of Franklin County, seeking a writ of mandamus. The complaint sought, pursuant to
{¶ 5} The matter is now before this court upon the allowance of a discretionary appeal.
{¶ 6} The issue presented for our review is whether the Department‘s database containing certain personal, identifying information regarding children who use the City‘s recreational facilities is a public record subject to disclosure pursuant to
{¶ 7} There is no dispute that the requested information is under the custody and control of a public office. The City‘s Recreation and Parks Department clearly falls under the statutory definition of “public office” as set forth in
{¶ 8} The court of appeals held that the trial court erred when it concluded that the information sought by appellee did not constitute a “record” pursuant to
“(G) ‘Records’ includes any 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 or its political subdivisions, which serves to document the organization, functions, pоlicies, decisions, procedures, operations, or other activities of the office.” (Emphasis added.)
{¶ 10} In State ex rel. Fant v. Enright (1993), 66 Ohio St.3d 186, 188, 610 N.E.2d 997, 999, we emphasized that “not all items in a personnel file may be considerеd public records. A ‘public record’ is ‘any record that is kept by any public office * * *.’
{¶ 11} The information sought by appellee was created by and is under the custody of a public office, the Department. However, the specific information requested consists of certain personal information regarding children who participate in the Department‘s photo identification program. Standing alone, that information, i.e., names of сhildren, home addresses, names of parents and guardians, and medical information, does nothing to document any aspect of the City‘s Recreation and Parks Department.
{¶ 12} In United States Dept. of Justice v. Reporters Commt. for Freedom of the Press (1989), 489 U.S. 749, 109 S.Ct. 1468, 103 L.Ed.2d 774, the United States Supreme Court held that “as a categorical matter * * * a third party‘s request for law enforcement records or information about a private citizen can reasonably be expected to invade that citizen‘s privacy * * *.” (Emphasis added.) Id. at 780, 109 S.Ct. at 1485, 103 L.Ed.2d at 800. In addressing the statutory purpose of the Freedom of Information Act (“FOIA“), Section 552(b)(7)(C), Title 5, U.S.Code, the federal counterpart to
{¶ 13} In Kallstrom v. Columbus (C.A.6, 1998), 136 F.3d 1055, 1064-1065, the Sixth Circuit Court of Appeals used similar reasoning to exempt from disclosure certain personal information contained in the personnel files of law enforcement officers. In State ex rel. Keller v. Cox (1999), 85 Ohio St.3d 279, 282, 707 N.E.2d 931, 934, we relied on Kallstrom and exempted essеntially identical information from disclosure. In Kallstrom, the federal court determined that disclosure of the information sought would do nothing to further the public‘s knowledge of the internal workings of governmental agencies. Thus, the Kallstrom court concluded that the release of the information to any member of the public did not serve the important public interest of ensuring government accountability. Id. at 1065.
{¶ 14} The rationale espoused in the above-referenced cases is equally аpplicable to the instant action. The existence of the Department‘s photo identification program has been well documented. It is no secret as to when the program was initiated, the purpose of the program, how the program operates, and the effect it has had in making the City‘s recreational facilities safer and more manageable. It is also no secret that the Department possesses certain personal information, voluntarily provided, of those children who use the City‘s swimming pools and recreational facilities. We fail to see how release of the requested information to appellee, or anyone else, would provide any further insight into the operation of the Department‘s photo identification program than that already available.
{¶ 15} We recognize that “[o]ne of the salutary purposes of the Public Records Law is to ensure accountability of government to those being governed.” State ex rel. Strothers v. Wertheim (1997), 80 Ohio St.3d 155, 158, 684 N.E.2d 1239, 1242. Inherent in Ohio‘s Public Records Law is the public‘s right to monitor the conduct of government. However, in the instant matter, disclosing the requested information would do nothing to further the purposes of the Act.
{¶ 16} Moreover, the personal information requested is not contained in a personnel file. At issue here is information regarding children who use the City‘s swimming pools and recreational facilities. The subjects of appellee‘s public reсords request are not employees of the government entity having custody of the information. They are children—private citizens of a government, which has, as a matter of public policy, determined that it is necessary to compile private information on these citizens.3 It seems to us that there is a clear distinction between public employees and their public employment personnel files and files on private citizens created by government.4 To that extent the personal information requested by appellee is clearly outside the scope of
{¶ 18} However, even if we were to conclude that the requested information is a “record” for purposes
{¶ 19} Appellant contends that the information sought is exempt under
{¶ 20} In State ex rel. Keller v. Cox, supra, we recognized a constitutional right of privacy in certain personal information contained in the personnel files of law enforcement officers. Keller involved a public records request whereby an Assistant Federal Public Defender sought access to all personnel and internal affairs records relating to a Miami County Shеriff‘s Detective. We noted in Keller that this information should be protected not only by the constitutional right of privacy, but, also, that there should be a “good sense” rule when such information is sought. In reaching our conclusion, we reasoned that personnel files containing the names of police officers’ children, spouses, parents, home addresses, telephone numbers, medical information, and similar information should not be available to anyone “who might use the infоrmation to achieve nefarious ends.” Id., 85 Ohio St.3d at 282, 707 N.E.2d at 934.
{¶ 21} Our decision in Keller was based on the Sixth Circuit Court of Appeals case of Kallstrom v. Columbus, supra. Kallstrom involved a factual situation essentially identical to Keller. The federal court of appeals held in Kallstrom that the police officers’ privacy interest in the personal information contained in their personnel records implicated a fundamental liberty interest in preserving their lives and the lives of their family members, as well as preserving their personal security and bodily integrity. Id., 136 F.3d at 1062.
{¶ 23} Furthermore, any perceived threat that would likely follow the release of such information, no matter how attenuated, cannot be discounted. We live in a time that has commonly been referred to as The Information Age. Technological advances have made many aspects of our lives easier and more enjoyable but have also made it possible to generate and collect vast amounts of personal, identifying information through everyday transactions such as credit card purchases and cellular telephone use. The advent of the Internet and its proliferation оf users has dramatically increased, almost beyond comprehension, our ability to collect, analyze, exchange, and transmit data, including personal information.
{¶ 24} In that regard, it is not beyond the realm of possibility that the information at issue herein might be posted on the Internet and transmitted to millions of people. Access to the Internet presents no difficulty. Anyone with a personal computer can transmit and receive information on line via the Internet. This court has long recognized that children possess certain fundamental rights, among which are the right “to be free from physical, sexual and other abuses.” In re Schmidt (1986), 25 Ohio St.3d 331, 335, 25 OBR 386, 390, 496 N.E.2d 952, 956. Because, unfortunately, we live in a society where children all too often fall victim to abuse, it is necessary to take precautions to prevent, or at least limit, any opportunities for victimization.
{¶ 25} We do not suggest that appellee poses any threat to the safety of the children who are the subject of the records sought. There is nothing in the record before this court, or otherwise, that indicates that appellee intends any harm to these children. However, in Kallstrom the court noted that disclosure of personal information, even to a benevolent organization posing no apparent threat to the safety of the officers or their families, increases the risk that the information will fall into the wrong hands. Id., 136 F.3d at 1064.
{¶ 26} Moreover, this court in Keller and the federal court in Kallstrom were not unmindful that the release of suсh personal information could increase the potential for harm to those least able to protect themselves. Those decisions sought not only to protect police officers but the officers’ family members as well.
{¶ 27} The case now before us is no different. Because of the inherent vulnerability of children, release of personal information of this nature creates an unacceptable risk that a child could be victimized. We cannot in good conscience take that chance.
Judgment reversed
and writ denied.
MOYER, C.J., RESNICK, F.E. SWEENEY and LUNDBERG STRATTON, JJ., concur.
PFEIFER, J., concurs separately.
COOK, J., concurs in part and dissents in part.
__________________
PFEIFER, J., concurring.
{¶ 29} I fully agree with the majority opinion that the database at issue in this case is not a record, and that if it were a record it would not be public because of the children‘s right to privacy. State ex rel. Beacon Journal Publishing Co. v. Akron (1994), 70 Ohio St.3d 605, 640 N.E.2d 164.
{¶ 30} It merits mention that according to McCleary, he originally sought access to the database in an attempt to recruit urban youngsters for the Boy Scouts. But, as McCleary later said during oral argument, he became concerned that the parks department might be sharing its database with Columbus police to target unruly children. Whether that is a valid concern is undeveloped in the record, but I would caution that the children‘s privacy rights to the information they provided the parks department extends not just to private citizens but to other city agencies as well.
__________________
COOK, J., concurring in part and dissenting in part.
{¶ 31} The majority opinion consists of two main parts. First, the majority decides that the information sought by the relator does not meet the definition of “record” in
{¶ 32} The majority could have resolved this case solely on the basis of its second step, by applying the
{¶ 34} I also question the scope of the majority‘s second step, where the majority applies the exemption from
{¶ 35} Though I agree with the majority that the names, addresses, phone numbers, family information, and medical information of the children registered in the city‘s identification database are exempt from disclosure under this court‘s decisional law in Keller v. Cox, I do not join the syllabus, and I am not convinced that the entire contents of the city‘s electronic database are exempt from disclosure under