State ex rel. Plain Dealer Publishing Co. v. City of ClevelandState ex rel. Plain Dealer Publishing Co. v. City of Cleveland
Lead Opinion
{¶ 1} These are mandamus cases in which relators request copies of police officer photographs. Because these records are peace-officer residential and familial information under
State ex rel. Plain Dealer Publishing Co. v. Cleveland, Case No. 2004-0448
{¶ 2} Relator, Plain Dealer Publishing Company (“Plain Dealer”), publishes the Plain Dealer newspaper, which is circulated to the general public throughout the greater metropolitan area of respondent, the city of Cleveland, Ohio.
{¶ 3} Under General Police Order 1.3.08, Cleveland police officers must maintain current photograph-identification cards, and if the officers are not in uniform, they must display the identification cards on their clothing when they are in police or local court buildings. The Photo Unit of the Cleveland Police Division takes the pictures and prepares the identification cards, with new cards typically issued every five years.
{¶ 5} In December 2002, Cleveland notified the Plain Dealer that it was establishing a procedure in which the city would notify individual police officers when the Plain Dealer requested their photographs and seek written consent from the officers to release their photographs. Cleveland expressed its concern that “providing [the Plain Dealer] with the requested photographs without obtaining permission from each individual affected officer might constitute a civil-rights violation” that would subject the city to “numerous time-consuming and expensive lawsuits by individual police officers and/or their unions.” The Plain Dealer questioned the city’s reliance on constitutional privacy rights because “[uniformed officers are visible on the streets daily, advertising by what they wear that they are police officers.” Nevertheless, the Plain Dealer agreed to wait and see how the city’s new procedure operated.
{¶ 6} In June 2003, the Plain Dealer received a press release from the Rotary Club of Cleveland notifying “Photo and News Editors” of a photograph opportunity. The Rotary Club stated that it would present its annual Medal of Valor awards on June 12, 2003, at a public ceremony to three Cleveland police officers and three Cleveland firefighters. The press release listed the three officers by name. The Rotary Club noted that the three officers were being honored for their actions in confronting and arresting armed robbery suspects and that “[e]ach recipient has been selected by his department chief and the Director of Public Safety in cooperation with the City of Cleveland.”
{¶ 7} On June 11, 2003, the Plain Dealer requested that the Cleveland Police Department provide it with photographs of the June 12 Rotary Club honorees, including the three police officers. On July 14, 2003, the city denied the Plain Dealer’s request because the officers had “declined to authorize release of their photograph[s].” The officers withheld consent because of their concerns for their safety and that of their families. Nevertheless, two officers did not object to being photographed during the June 12 Rotary Club ceremony.
{¶ 8} On November 2 and 3, 2003, the Plain Dealer published articles about the city’s multimillion-dollar annual cost in paying overtime to its police officers for attending court hearings. The Plain Dealer reported that officers had received
{¶ 9} Shortly before the publication of these articles, on October 31, 2003, the Plain Dealer notified the city that it was “preparing reports about the overtime pay that some Cleveland police officers have received.” The Plain Dealer requested access to view and copy photographs of five uniformed police officers who would be named in the articles. On November 17, 2003, the city denied the Plain Dealer’s request because each of the named officers “declined to authorize release of [his] photograph.” These officers declined to authorize release of their photographs because they were concerned for their own and their families’ safety.
{¶ 10} On March 12, 2004, the Plain Dealer filed this action for a writ of mandamus to compel Cleveland to provide photographs of the eight police officers that it had requested in June and October 2003. Cleveland answered the complaint, and on May 26, 2004, we granted an alternative writ. State ex rel. Plain Dealer Publishing Co. v. Cleveland,
{¶ 11} On September 29, 2004, we granted the Plain Dealer’s request for oral argument. State ex rel. Plain Dealer Publishing Co. v. Cleveland,
State ex rel. Vindicator Printing Co. v. Youngstown, Case No. 2004-1765
{¶ 12} On July 4, 2004, a crowd of about 200 people attended an illegal fireworks display in the city of Youngstown, Ohio, respondent. A riot broke out when Youngstown police officers ordered the crowd to disperse. Five police officers were injured, and three people were charged with assaulting police officers.
{¶ 13} One of the officers at the scene wrote a memorandum blaming in part the city administration for the riot because the city’s deployment of police officers created “dangerous conditions” and “backup officers [were] miles away when officers [were] in need of assistance.” The officer distributed the memorandum to the mayor, police chief, and the internal-affairs unit of the Youngstown Police Department. The city administration replied that the officer’s memorandum had some merit but had exaggerated what had occurred.
{¶ 15} In September 2004, a grand jury indicted several persons for crimes arising from the July 4 riot. In October 2004, the Vindicator again requested that the city provide it with the officer’s photograph, and the city again refused. The Youngstown Police Department had notified the officer of the requests, and he advised that if it was standard departmental practice not to release his photograph, then the police department should not release it.
{¶ 16} On October 20, 2004, the Vindicator filed this action for a writ of mandamus to compel Youngstown to permit inspection and copying of the requested police officer photograph. On October 28, the Vindicator moved to consolidate this case with State ex rel. Plain Dealer Publishing Co. v. Cleveland, case No. 2004-0448. The city filed an answer to the Vindicator’s complaint, but did not respond to the motion to consolidate.
{¶ 17} On December 28, 2004, we granted the Vindicator’s motion and ordered case No. 2004-1765, State ex rel. Vindicator Printing Co. v. Youngstown, consolidated with case No. 2004-0448, State ex rel. Plain Dealer Publishing Co. v. Cleveland, for purposes of oral argument and decision.
Oral Argument
{¶ 18} After these cases were consolidated, oral argument was held on April 26, 2005. The causes are now before us for a consideration of the merits of the Plain Dealer’s and the Vindicator’s mandamus claims.
Mandamus:
{¶ 19} The Plain Dealer requests a writ of mandamus to compel Cleveland to provide it with eight photographs of police officers. The Vindicator requests a writ of mandamus to compel Youngstown to provide it with a photograph of one
{¶ 20} “Mandamus is the appropriate remedy to compel compliance with
{¶ 21} “ ‘Public record’ means records kept by any public office.”
{¶ 22} Moreover, despite Cleveland’s assertion to the contrary, the photographs of Cleveland and Youngstown police officers constituted records for purposes of
{¶ 23} The Cleveland photographs, when incorporated into the police-identification cards, are used by Cleveland police officers to gain access to certain buildings and to identify themselves as police officers when any person requests identification. See Dupuis,
{¶ 24} Therefore, the requested photographs are records under
Exemption for Peace-Officer Residential and Familial Information
{¶ 25} The cities assert that the requested photographs are exempt from disclosure under
{¶ 26} “(7) ‘Peace officer, firefighter, or EMT residential and familial information’ means either of the following:
{¶ 27} “(a) Any information maintained in a personnel record of a peace officer, firefighter, or EMT that discloses any of the following:
{¶ 28} “(i) The address of the actual personal residence of a peace officer, firefighter, or EMT, except for the state or political subdivision in which the peace officer, firefighter, or EMT resides;
{¶ 29} “(ii) Information compiled from referral to or participation in an employee assistance program;
{¶ 30} “(iii) The social security number, the residential telephone number, any bank account, debit card, charge card, or credit card number, or the emergency telephone number of, or any medical information pertaining to, a peace officer, firefighter, or EMT;
{¶ 31} “(iv) The name of any beneficiary of employment benefits, including, but not limited to, life insurance benefits, provided to a peace officer, firefighter, or EMT by the peace officer’s, firefighter’s, or EMT’s employer;
{¶ 32} “(v) The identity and amount of any charitable or employment benefit deduction made by the peace officer’s, firefighter’s, or EMT’s employer from the peace officer’s, firefighter’s, or EMT’s compensation unless the amount of the deduction is required by state or federal law;
{¶ 33} “(vi) The name, the residential address, the name of the employer, the address of the employer, the social security number, the residential telephone number, any bank account, debit card, charge card, or credit card number, or the
{¶ 34} “(b) Any record that identifies a person’s occupation as a peace officer, firefighter, or EMT other than statements required to include the disclosure of that fact under the campaign finance law.” (Emphasis added.)
{¶ 35} “A court’s preeminent concern in construing a statute is the legislative intent in enacting a statute.” State ex rel. Van Dyke v. Public Emp. Retirement Bd.,
{¶ 36} Read in accordance with the rules of grammar and common usage,
{¶ 37} Instead, the Plain Dealer and the Vindicator argue that the “General Assembly could not have intended a literal construction” of
{¶ 38} The Plain Dealer’s and the Vindicator’s assertions are meritless.
{¶ 39} Moreover, even were we to use the interpretative rules that the Plain Dealer and the Vindicator request, a different conclusion would not be warranted.
{¶ 40} Admittedly, we have on occasion noted that “the natural meaning of words is not always conclusive as to the construction of statutes” and that no portion of a statute should be treated as superfluous unless it is manifestly necessary to do so. D.A.B.E., Inc. v. Toledo-Lucas Cty. Bd. of Health,
{¶ 41} In fact,
{¶ 42} Nor does
{¶43} Consequently, instead of nullifying these laws,
{¶ 44} Furthermore, the application of the exemption to photographs of uniformed police officers does not create an absurd result. The General Assembly makes no distinction in
{¶ 45} In addition, subsequent amendments to
{¶ 46} Moreover, the history immediately preceding the General Assembly’s enactment of
{¶ 47} In 1998, the United States Court of Appeals for the Sixth Circuit held that police officers have a constitutionally protected privacy right in information contained in their personnel files, including drivers’ licenses containing their photographs, which required the balancing of the interests of the officers against the interests of the city in releasing that information. Kallstrom v. Columbus (C.A.6, 1998),
{¶ 48} In April 1999, we relied on Kallstrom to hold that police officers’ files that contain the names of the officers’ childrén, parents, home addresses, telephone numbers, beneficiaries, medical information, and similar records are exempt from disclosure under the Public Records Act by the constitutional right of privacy. State ex rel. Keller v. Cox (1999),
{¶ 50} In April 2000, this court — citing the constitutional right of privacy — held that personal information about children who use a city’s recreational facilities was exempt from disclosure under
{¶ 51} In May 2000, effective June 2000, the General Assembly amended
{¶ 52} Based on this historical context, the General Assembly could have been justifiably concerned that the disclosure of certain personal information of police officers might endanger them and their families and compromise their constitutional privacy rights. The General Assembly could have reasonably concluded that the exemptions now contained in
{¶ 53} Moveover, the Vindicator’s suggested interpretation of
{¶ 54} Additionally, even if we disagreed with any policy supporting the General Assembly’s enactment of
{¶ 55} Finally, the Plain Dealer and the Vindicator argue that construing the
{¶ 56} In so arguing, the Plain Dealer and the Vindicator attempt to expand this case beyond the narrow issue before us: the applicability of the exemption to police officer photographs. Consequently, we will not address the applicability of the exemption to police records not at issue. This is consistent with our general rule that we will not issue advisory opinions. State ex rel. Essig v. Blackwell,
{¶ 57} Therefore, because the plain language of
Constitutional Right of Privacy
{¶ 58} Cleveland, Youngstown, and amici police labor unions also claim that the requested photographs are exempt from disclosure based on the officers’ constitutional right of privacy. Constitutional privacy rights are “state or federal law” under
Waiver of Exemptions
{¶ 59} The Plain Dealer and the Vindicator next assert that even assuming that the claimed exemptions apply, the cities waived their right to rely on those records by adopting policies affirmatively making identities of uniformed police officers available to the public.
{¶ 61} Moreover, the fact that some members of the public may already know the physical characteristics of the police officers does not waive the exemptions. See State ex rel. Ohio Patrolmen’s Benevolent Assn. v. Mentor (2000),
{¶ 62} Therefore, Cleveland and Youngstown did not waive their right to rely on exemptions to preclude disclosure of the requested photographs.
Constitutional Considerations
{¶ 63} Finally, the Plain Dealer and the Vindicator assert that
{¶ 64} Neither the Plain Dealer nor the Vindicator, however, raised this constitutional claim in its complaint. Nor did they seek to amend their complaints to raise this claim. Alternative writs were granted based on the allegations of the complaints, and evidence was presented by the parties without notice that the claim was being raised. Under these circumstances, we will not consider the merits of this improperly raised claim. See State ex rel. Massie v. Gahanna-Jefferson Public Schools Bd. of Edn. (1996),
{¶ 65} Further, protecting this personal information about police officers from disclosure is no more offensive than protecting similar personal information in the custody of the Bureau of Motor Vehicles. See
{¶ 66} And although both the Plain Dealer and the Vindicator cite Richmond Newspapers, Inc. v. Virginia (1980),
Conclusion
{¶ 67} Based on the manifest clarity and applicability of
Writs denied.
Notes
. One officer did not attend the ceremony because of the death of his grandfather.
Concurrence in Part
concurring in part and dissenting in part.
{¶ 68} I concur in the bulk of the majority opinion. I write separately because not every picture maintained by the police departments in this case is an exception to the Public Records Act.
{¶ 69} The majority opinion states, “