THE STATE EX REL. POLICE OFFICERS FOR EQUAL RIGHTS ET AL. v. LASHUTKA, MAYOR, ET AL.
No. 95-603
SUPREME COURT OF OHIO
April 20, 1995
72 Ohio St.3d 185 | 1995-Ohio-19
Submitted March 30, 1995
IN MANDAMUS AND PROHIBITION.
{¶ 1} On March 23, 1995, relators, Police Officers for Equal Rights (“POER“), James Moss and John S. Marshall filed an original action in this court denominated as “Petition for Writs of Mandamus and Prohibition.” Named respondents are Gregory S. Lashutka, Mayor of thе city of Columbus, and James Jackson, Chief of the Columbus Division of Police.
{¶ 2} In their petition, relators allege that, pursuant to
{¶ 3} Relators further allege that the respondents are аbout to destroy records of the Division of Police pursuant to the city of Columbus‘s records retention policy, adopted in June 1994, and that some of the rеcords scheduled for
{¶ 4} In their prayer for relief, relators then “* * * request that this Court issue an order compelling the Rеspondents to furnish Relators with the requested records for inspection and copying,” that “this Court issue an order compelling the Respondents to modify their rеcord retentions system so that files of its personnel can be accessed in a reasonable period of time following a request by a member оf the public to inspect such records,” and “that this Court issue a peremptory writ prohibiting the Respondents or their agents and/or employees from prоceeding with any destruction of records which are subject to the Relators’ pending public records requests.”
{¶ 5} Accompanying relators’ petition, rеlators also filed, on March 23, 1995, a memorandum in support of their requests, two affidavits and a motion to expedite hearing of the cause. On March 31, 1995, relators and respondents filed a “Joint Motion of the Parties for Issuance of a Preemptory [sic] Writ of Prohibition.” (Emphasis added.) The order proposed by thе parties would have granted a peremptory writ of prohibition which was designed to prevent the destruction of the records sought by relators. That samе day, March 31, 1995, the parties withdrew their motions and simultaneously filed a “Joint Motion of the Parties for Issuance of a Peremptory Writ of Mandamus.” (Emphasis added.) Thе filing included a proposed order which would issue a peremptory writ of mandamus ordering the Columbus Chief of Police and other city officers and employees, during the pendency of this original action, to refrain from destroying certain records.
{¶ 7} The matter is now before us for decision.
Spater, Gittes, Schulte & Kolman and Frederick M. Gittes, for relators.
Ronald J. O‘Brien, Columbus City Attorney, for respondents.
DOUGLAS, J.
{¶ 8} This is yet another in a series of casеs involving public records. While we have, time and time again, informed public officials and public agencies of their duties pursuant to
{¶ 9} Relators have requested that respondents provide certаin records maintained by the Columbus Department of Public Safety, Division of Police. In response to their request, relators received a letter (which is part of the record in this case) from the Legal Bureau of the Division of Police. The letter, dated February 17, 1995, emphatically states that the request of relаtors for records is denied on the authority of State ex rel. Steckman v. Jackson (1994), 70 Ohio St.3d 420, 639 N.E.2d 83. The letter states, in part, that “[a]pplying the language in Steckman to Internal Affairs investigations, it is clear they are not public records.” (Emphasis sic.) The Division of Police is just plain wrong!
Prohibition
{¶ 10} The requested peremptory writ of prohibition is denied. That part of relators’ petition is dismissеd.
{¶ 11} What relators seek in their prohibition action is an order to tell the Columbus Police Department how to keep, store, maintain and make availаble public records and an order preventing record destruction. Such an action is in the nature of declaratory judgment and/or injunction. This court has nо original jurisdiction over either type of action as original relief. We do have such jurisdiction as ancillary to other appropriate relief. Such is not relators’ prohibition action.
{¶ 12} In addition, the act of destroying (or keeping) public records is neither judicial nor quasi-judicial. Thus, the first prong of the test for prohibition (that the court or officer against whom prohibition is sought is аbout to exercise judicial or quasi-judicial power) is clearly nonexistent here. See, generally, Goldstein v. Christiansen (1994), 70 Ohio St.3d 232, 234-235, 638 N.E.2d 541, 543, and State ex rel. Hensley v. Nowak (1990), 52 Ohio St.3d 98, 99, 556 N.E.2d 171, 172-173. Thus, the prohibition portion of relators’ petition is denied and dismissed.
II
Mandamus and Steckman
{¶ 13} The mandamus portion of relators’ petition, which seeks the ultimate relief of release of the records sought, is granted. In addition, an аward of attorney fees is allowed.
{¶ 15} Accordingly, we allow a writ of mandamus ordering the respondents to, forthwith, make the records sought by relators available to relators for inspection and copying. There must be no further delay. This, then, also addresses the question of imminent record destructiоn at least as far as that alleged proposed action pertains to the specific records sought.
{¶ 16} Further, we allow an award of costs аnd reasonable attorney fees. Counsel for relators is instructed to submit to this court a bill and documentation in support of the request for allowance of fees, all of which shall be in accordance with the guidelines set forth in DR 2-106.
Writ of prohibition denied;
writ of mandamus allowed.
MOYER, C.J., DOUGLAS, RESNICK, F.E. SWEENEY, PFEIFER and COOK, JJ., concur.