# State ex rel. McCleary v. Roberts

> Ohio Supreme Court · April 12, 2000 · 88 Ohio St. 3d 365

URL: https://www.frixlaw.com/law-library/cases/11152057

## Case

- **Court:** Ohio Supreme Court
- **Decided:** April 12, 2000
- **Citations:** 88 Ohio St. 3d 365; 2000 Ohio 345
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** Douglas, J.
- **Cited by:** 12 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/11152057

## How later opinions describe it (automated extraction)

- concluding that lists of users of a city pool do not document any “organization, functions, policies, decisions, procedures, or operations,” R.C. 149.011(G), of the city’s parks and recreation department and are therefore not public records

## Opinion text

[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.
SUPREME COURT OF OHIO

{¶ 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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January Term, 2000

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

8
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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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__________________

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11152057. Public record. Not legal advice.