State ex rel. McCleary v. Roberts

[This opinion has been published in Ohio Official Reports at 88 Ohio St.3d 365.]

THE STATE EX REL. MCCLEARY, APPELLEE, v. ROBERTS, APPELLANT.

[Cite as State ex rel. McCleary v. Roberts, 2000-Ohio-345.]

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 R.C. 149.43.

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 R.C. 149.43.

(No. 99-316—Submitted December 1, 1999—Decided April 12, 2000.)

APPEAL from the Court of Appeals for Franklin County, No. 98AP-224.

__________________

{¶ 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, emergency

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.

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{¶ 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, appellee filed a complaint in the Court of

Common Pleas of Franklin County, seeking a writ of mandamus. The complaint

sought, pursuant to R.C. 149.43, Ohio’s Public Records Law, to compel appellant

to provide appellee a copy of the photo identification program database. The trial

court granted summary judgment to appellant. The trial court held that the

information requested by appellee did not qualify as a public record. Specifically,

the trial court determined that the information sought, although in the custody of a

public office, was not a “record” as defined by R.C. 149.011(G). Further, the trial

court concluded that certain portions of the requested information included

“medical records” and thus were exempt from disclosure pursuant to R.C.

149.43(A)(3), now (A)(1)(a).

{¶ 4} Appellee appealed to the Court of Appeals for Franklin County. The

court of appeals reversed the trial court’s decision granting summary judgment and

remanded the matter to the trial court with instructions to grant appellee’s requested

writ of mandamus.

{¶ 5} The matter is now before this court upon the allowance of a

discretionary appeal.

__________________

Cornell H. McCleary, pro se.

Janet E. Jackson, Columbus City Attorney, and Daniel W. Drake, Chief

Counsel, for appellant.

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Betty D. Montgomery, Attorney General, Mark R. Weaver, Special Counsel,

and Lisa Wu Fate, Assistant Attorney General, urging reversal for amicus curiae

Attorney General of Ohio.

Barry M. Byron, Stephen L. Byron and John Gotherman, urging reversal for

amicus curiae Ohio Municipal League.

__________________

DOUGLAS, J.

{¶ 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 R.C. Chapter 149, Ohio’s Public Records Act. Subject to certain

enumerated exceptions, a “public record” is defined by R.C. 149.43(A)(1) as “any

record that is kept by any public office, including, but not limited to, state, county,

city, village, township, and school district units * * *.” (Emphasis added.) R.C.

149.43(B) provides that “[a]ll public records shall be promptly prepared and made

available for inspection to any person at all reasonable times during regular

business hours.”

{¶ 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 R.C.

149.011(A).1 Nonetheless, in order to resolve the issue under consideration, we

must determine whether the information sought is a “record” as that term is defined

by R.C. 149.011(G). If we conclude that the information is a “record,” and the

information does not fit within one of the exceptions in R.C. 149.43, then appellee

would be entitled to the requested information.

1. R.C. 149.011 provides:

“(A) ‘Public office’ includes any state agency, public institution, political subdivision, or

any other organized body, office, agency, institution, or entity established by the laws of this state

for the exercise of any function of government.”

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{¶ 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

R.C. 149.011(G). R.C. 149.011 provides:

“(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, policies, decisions, procedures,

operations, or other activities of the office.” (Emphasis added.)

{¶ 9} The contention that the information requested in this matter does not

fall under the statutory definition of “record” in R.C. 149.011(G) is well taken. For

the reasons that follow, we conclude that the information requested by appellee is

not a “record” as that term is contemplated by Ohio’s Public Records Act.

{¶ 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

considered public records. A ‘public record’ is ‘any record that is kept by any

public office * * *.’ R.C. 149.43(A)(1). However, a ‘record’ is something that is

‘created or received by or coming under the jurisdiction of any public office * * *

which serves to document the organization, functions, policies, decisions,

procedures, operations, or other activities of the office.’ R.C. 149.011(G). To the

extent that any item contained in a personnel file is not a ‘record,’ i.e., does not

serve to document the organization, etc., of the public office, it is not a public record

and need not be disclosed. To the extent that an item is not a public record and is

‘personal information,’ as defined in R.C. 1347.01(E), a public office ‘would be

under an affirmative duty, pursuant to R.C. 1347.05(G), to prevent its disclosure.’

” (Footnotes omitted.) In this regard, R.C. 1347.05(G) provides that all

government agencies that maintain personal information systems shall “[t]ake

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reasonable precautions to protect personal information in the system from

unauthorized modification, destruction, use, or disclosure.”2

{¶ 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 children, 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 R.C. Chapter 149, the Supreme Court stated that the basic

purpose of the FOIA is “ ‘to open agency action to the light of public scrutiny.’ ”

Id. at 772, 109 S.Ct. at 1481, 103 L.Ed.2d at 795, quoting Dept. of Air Force v.

Rose (1976), 425 U.S. 352, 372, 96 S.Ct. 1592, 1604, 48 L.Ed.2d 11, 27. In that

regard, the court reasoned that “[o]fficial information that sheds light on an

agency’s performance of its statutory duties falls squarely within that statutory

purpose. That purpose, however, is not fostered by disclosure of information about

2. Note that R.C. 1347.08(A) provides that “[e]very state or local agency that maintains a personal

information system, upon the request and the proper identification of any person who is the subject

of the personal information in the system, shall:

“***

“(2) * * * permit the person, the person’s legal guardian, or an attorney who presents a

signed written authorization made by the person, to inspect all personal information in the system

of which the person is the subject.” (Emphasis added.)

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private citizens that is accumulated in various governmental files but that reveals

little or nothing about an agency’s own conduct. In this case—and presumably in

the typical case in which one private citizen is seeking information about another—

the requester does not intend to discover anything about the conduct of the agency

that has possession of the requested records. Indeed, response to this request would

not shed any light on the conduct of any Government agency or official.” Reporters

Commt. at 773, 109 S.Ct. at 1481, 103 L.Ed.2d at 795-796. The Supreme Court

thus concluded in Reporters Commt. that “when the request seeks no ‘official

information’ about a Government agency, but merely records what the Government

happens to be storing, the invasion of privacy is ‘unwarranted.’ ” Id. at 780, 109

S.Ct. at 1485, 103 L.Ed.2d at 800.

{¶ 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 essentially 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

applicable 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

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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

records 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 R.C. 149.43 and not subject to

disclosure. See State ex rel. Dispatch Printing Co. v. Wells (1985), 18 Ohio St.3d

382, 385, 18 OBR 437, 439, 481 N.E.2d 632, 634-635.

3. Whether this is or is not a proper function of government (to acquire, compile, and create a private

file on individual citizens) is a question not now before us.

4. It is conceivable that a police agency, or any other public office agency, could create a “private”

file on any citizen and that the file could contain fiction as well as fact, untruth as well as truth.

Once the information in any such file is released as a “public record,” the argument would go, of

course, that all the information must be fact and truthful because, after all, it comes directly from an

“official” file. Once the information is disseminated and published, the damage is done.

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{¶ 17} Because the information sought herein is not a “record,” as defined

by R.C. 149.011(G), it follows that it cannot be a “public record” as that term is

contemplated by R.C. 149.43(A)(1). We, therefore, find that 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 R.C. 149.43.

{¶ 18} However, even if we were to conclude that the requested information

is a “record” for purposes R.C. Chapter 149, appellee still would not be entitled to

the requested writ of mandamus.

{¶ 19} Appellant contends that the information sought is exempt under R.C.

149.43(A)(1)(p), now (q). This section of the Public Records Act specifically

excepts from disclosure any record “the release of which is prohibited by state or

federal law.” Specifically, appellant urges that the records in contention are

protected by the fundamental right to privacy founded in the Fourteenth

Amendment Due Process Clause of the United States Constitution. In State ex rel.

Natl. Broadcasting Co. v. Cleveland (1988), 38 Ohio St.3d 79, 526 N.E.2d 786,

paragraph two of the syllabus, we held that “[a] governmental body refusing to

release records has the burden of proving that the records are excepted from

disclosure by R.C. 149.43.” See, also, State ex rel. James v. Ohio State Univ.

(1994), 70 Ohio St.3d 168, 169, 637 N.E.2d 911, 912. Assuming, arguendo, that

the information requested herein is a public record pursuant to R.C. 149.43(A)(1),

we conclude that the Department has met its burden of proving that the information

is exempt from disclosure.

{¶ 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 Sheriff’s Detective. We noted in Keller that

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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 information 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.

{¶ 22} The information sought in the case at bar is no different from that

information prohibited from disclosure in Keller and Kallstrom, supra. The

officers’ personnel files in Keller and Kallstrom contained essentially the same type

of information, i.e., home addresses, phone numbers, names of family members,

and medical records, as that contained in the Department’s database. As did the

situations in Keller and Kallstrom, a release of the requested information by the

Department in this matter places those who are the subject of the records request at

risk of irreparable harm, albeit not necessarily by appellee.

{¶ 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

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purchases and cellular telephone use. The advent of the Internet and its

proliferation of 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 such 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

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unacceptable risk that a child could be victimized. We cannot in good conscience

take that chance.

{¶ 28} We therefore hold that appellant is under no obligation, statutory or

otherwise, to make available the information sought by appellee in this matter.

Accordingly, we reverse the judgment of the court of appeals and deny appellee’s

requested writ of mandamus.

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.

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{¶ 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 R.C. 149.011(G) and that for this reason it cannot be a “public record”

under R.C. 149.43(A)(1). The majority’s syllabus stems from this first step.

Second, the majority decides that even if the requested information constitutes a

“public record,” the information is nonetheless exempt from disclosure under

former R.C. 149.43(A)(1)(p), now (q). Though I agree that the decisional law of

this court leads to the conclusion that the names, addresses, telephone numbers,

family information, and medical records of the children enrolled in the city’s

database are exempt from disclosure in this case, I write to address concerns raised

by both steps of the majority’s analysis.

{¶ 32} The majority could have resolved this case solely on the basis of its

second step, by applying the R.C. 149.43(A)(1)(q) exemption for records protected

from public disclosure by state or federal law. Instead, the majority takes its first

step, and creates new syllabus law that arguably restricts the definition of “public

record” in a manner that could undermine the disclosure-oriented purpose of the

Public Records Act in future cases. See State ex rel. The Miami Student v. Miami

Univ. (1997), 79 Ohio St.3d 168, 171, 680 N.E.2d 956, 959 (“inherent in R.C.

149.43 is the fundamental policy of promoting open government, not restricting

it”).

{¶ 33} I do not find that the applicable precedent warrants this potentially

restrictive step. Though the majority relies on this court’s decision in State ex rel.

Keller v. Cox and the Sixth Circuit case Kallstrom v. Columbus, both of these cases

were decided on the basis of the privacy exemption to the Public Records Act.

Neither case went so far as to say that the requested information could never fit the

definition of a “public record.” See State ex rel. Keller v. Cox (1999), 85 Ohio

St.3d 279, 282, 707 N.E.2d 931, 934; Kallstrom v. Columbus (C.A.6, 1998), 136

F.3d 1055, 1059. Kallstrom, especially, calls into question the breadth of the

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majority’s syllabus. There, the Sixth Circuit expressly found that “there may be

situations in which the release of * * * personal information might further the

public’s understanding of the workings of its * * * agencies.” Id. at 1065. The

majority’s syllabus contradicts this aspect of Kallstrom by declaring that “personal

information” can never meet the definition of “public record.”

{¶ 34} I also question the scope of the majority’s second step, where the

majority applies the exemption from R.C. 149.43(A)(1)(q). I have voiced a similar

concern before. See Keller, 85 Ohio St.3d at 282-284, 707 N.E.2d at 934-935

(Cook, J., dissenting). In Keller, I concluded that the constitutional right to privacy

did not necessarily exempt from disclosure the entire contents of the requested

personnel files and investigative reports. Id. at 283, 707 N.E.2d at 935. Here again,

I am unpersuaded that the entire contents of the city’s electronic database

necessarily comes within the applicable exemption. For example, the database

likely includes a template upon which the appropriate data is entered. It would

seem that the questions asked by the agency on such a template, unadorned by

personal responses, would fit the definition of “record”—but not the constitutional

privacy exemption in R.C. 149.43(A)(1)(q)—and would, therefore, be subject to

disclosure. This court has previously held that exempt information can be redacted

from nonexempt records so that the nonexempt portions remain subject to

disclosure. See, e.g., State ex rel. WLWT-TV5 v. Leis (1997), 77 Ohio St.3d 357,

673 N.E.2d 1365; Franklin Cty. Sheriff’s Dept. v. State Emp. Relations Bd. (1992),

63 Ohio St.3d 498, 589 N.E.2d 24, paragraph one of the syllabus.

{¶ 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 R.C. 149.43(A)(1)(q).

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