State ex rel. Clough v. Franklin Cty. Children Servs. (Slip Opinion)

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as

State ex rel. Clough v. Franklin Cty. Children Servs., Slip Opinion No. 2015-Ohio-3425.]

NOTICE

This slip opinion is subject to formal revision before it is published in

an advance sheet of the Ohio Official Reports. Readers are requested

to promptly notify the Reporter of Decisions, Supreme Court of Ohio,

65 South Front Street, Columbus, Ohio 43215, of any typographical or

other formal errors in the opinion, in order that corrections may be

made before the opinion is published.

SLIP OPINION NO. 2015-OHIO-3425

THE STATE EX REL. CLOUGH v. FRANKLIN COUNTY CHILDREN SERVICES ET AL.

[Until this opinion appears in the Ohio Official Reports advance sheets, it

may be cited as State ex rel. Clough v. Franklin Cty. Children Servs.,

Slip Opinion No. 2015-Ohio-3425.]

Mandamus—Access to alleged public records—Children-services agency records

of investigation of alleged child abuse are confidential under R.C.

2151.421(H)(1)—Contents of file that are not confidential investigation

records under R.C. 2151.421(H)(1) are confidential under R.C. 5153.17

and may be inspected only for “good cause”—Parent whose child was

subject of investigation has not shown good cause—Writ denied.

(No. 2014-1122—Submitted June 9, 2015—Decided August 27, 2015.)

IN MANDAMUS.

_____________________

Per Curiam.

{¶ 1} Relator, Stephanie Y. Clough, seeks a writ of mandamus to compel

respondent Franklin County Children Services (“FCCS”) to allow her access to

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files maintained by FCCS on Clough’s minor daughter. According to the report

of the special master appointed by this court to review the file, the requested

documents are the records of an investigation of a report of possible child abuse.

They are therefore confidential under R.C. 2151.421(H)(1). To the extent that

certain pages might not be records of that investigation, they are confidential

under R.C. 5153.17 and may be inspected only for “good cause.” Clough has

failed to show good cause. Therefore, we deny the writ.

Facts

{¶ 2} On April 22, 2014, Clough made a verbal request, through an agent,

to inspect records concerning Clough’s daughter, Jasmine. On April 30, 2014,

Clough’s agent received a written response from respondent Anne C. O’Leary,

chief legal counsel for FCCS, denying Clough’s request. The letter explained that

respondent Charles M. Spinning, executive director of FCCS, did not find good

cause to release the records. On May 13, 2014, Clough’s agent tendered to

O’Leary a written request for the inspection of Jasmine’s case file. FCCS

responded, once again refusing to allow inspection of the file. Clough filed her

complaint in mandamus in this court on July 3, 2014.

{¶ 3} Clough asserts in her complaint that the request for access is

authorized by FCCS in an agency document setting forth FCCS board policies.

She avers that this right of access is not subject to any restriction and that this

right contradicts FCCS’s claim that the records may only be released in limited

circumstances. Clough asserts that the response to her request is “inadequate and

illegal” and in direct defiance of her rights as explained in the FCCS document,

specifically her right to access and review information contained in the case

record relating to herself and her children.

{¶ 4} In the complaint Clough further asserts that the FCCS document

grants a right to review all FCCS documents in the presence of FCCS personnel.

She contends that the independent review of her request by the Ohio Department

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of Job and Family Services (“ODJFS”) and the claim that the records are

confidential under Ohio law are “inadequate” grounds for refusing her request.

{¶ 5} Clough asserts that FCCS’s actions have been “in defiance” of that

agency’s memorandum of understanding with various entities, including the

Children’s Advocacy Center1 and CHOICES, a women’s advocacy center.

{¶ 6} According to Clough’s complaint, at one point, the disposition of the

report of possible abuse of Clough’s daughter resulted in findings of

“unsubstantiated.” But she claims that during two grievance hearings, she was

informed that the disposition would be changed to “indicative of abuse.” Clough

asserts that, following the grievance hearings, she has a right to review any notes

or other records for an explanation of why FCCS changed its decision. She

asserts that FCCS has failed to offer any explanation for not following its own

policies and procedures.

{¶ 7} Clough maintains that she has a clear legal right to inspect the case

file in the presence of FCCS personnel at their offices. She asserts that she has no

adequate remedy in the ordinary course of the law and that there is no legally

valid excuse for the denial. Clough claims that a writ will serve the public interest

by encouraging FCCS to comply with its own policies and procedures and by

exposing the failure of FCCS to follow protocols under a memorandum of

understanding with other child protective service agencies.

{¶ 8} Clough requests a writ of mandamus commanding respondents to

immediately allow her to review the case file and notes as mandated under FCCS

policy. She also seeks statutory damages and costs.

{¶ 9} We assigned the Honorable Kenneth J. Spicer, a retired judge of the

Delaware County Court of Common Pleas, Probate and Juvenile Divisions, as a

special master to conduct an in camera review of the requested documents. He

1

Clough may be referring to Nationwide Children’s Hospital’s Center for Child and Family

Advocacy.

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did so and filed a report, to which Clough filed a response. FCCS filed a motion

to clarify the report of the special master. Clough has also filed three emergency

motions to expedite the court’s decision.

Analysis

Mandamus

{¶ 10} Generally, to be entitled to a writ of mandamus, the relator must

establish a clear legal right to the requested relief, a clear legal duty on the part of

the respondents to provide it, and the lack of an adequate remedy in the ordinary

course of the law. State ex rel. Waters v. Spaeth, 131 Ohio St.3d 55, 2012-Ohio-

69, 960 N.E.2d 452, ¶ 6. The relator must prove that she is entitled to the writ by

clear and convincing evidence. Id. at ¶ 13.

{¶ 11} To the extent that this case is a claim for public records,

“[m]andamus is the appropriate remedy to compel compliance with R.C. 149.43,

Ohio’s Public Records Act.” State ex rel. Physicians Commt. for Responsible

Medicine v. Ohio State Univ. Bd. of Trustees, 108 Ohio St.3d 288, 2006-Ohio-

903, 843 N.E.2d 174, ¶ 6; R.C. 149.43(C)(1).

{¶ 12} Although the Public Records Act is accorded liberal construction in

favor of access to public records, “the relator must still establish entitlement to the

requested extraordinary relief by clear and convincing evidence.” State ex rel.

McCaffrey v. Mahoning Cty. Prosecutor’s Office, 133 Ohio St.3d 139, 2012-

Ohio-4246, 976 N.E.2d 877, ¶ 16. However, unlike in other mandamus cases,

“ ‘[r]elators in public-records mandamus cases need not establish the lack of an

adequate remedy in the ordinary course of law.’ ” State ex rel. Data Trace

Information Servs., L.L.C. v. Cuyahoga Cty. Fiscal Officer, 131 Ohio St.3d 255,

2012-Ohio-753, 963 N.E.2d 1288, ¶ 25, quoting State ex rel. Am. Civ. Liberties

Union of Ohio, Inc. v. Cuyahoga Cty. Bd. of Commrs., 128 Ohio St.3d 256, 2011-

Ohio-625, 943 N.E.2d 553, ¶ 24.

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Franklin County Children Services grievance and consumer-rights policies

{¶ 13} Although the requests made by Clough in this case might be

construed as public-records requests to be analyzed under R.C. 149.43, Clough’s

complaint does not specifically cite that statute or characterize the records sought

as “public.” Rather, she asserts that her right to inspect the files is authorized by

FCCS in its document on FCCS board policies.

{¶ 14} FCCS’s policy does provide that adults and children who are

clients of FCCS have the right to review their case records. However, that

statement of client rights is qualified by the phrase “so long as such access is not

prohibited by law.” Thus, the statement of right that Clough relies on is expressly

limited, as it must be, by its incorporation of applicable law.

{¶ 15} Even if the policy did not point out limitations to the right, those

limitations exist and are enforceable. A court in a mandamus proceeding cannot

create a duty where none exists. State ex rel. Governor v. Taft, 71 Ohio St.3d 1,

3, 640 N.E.2d 1136 (1994); State ex rel. Hodges v. Taft, 64 Ohio St.3d 1, 3, 591

N.E.2d 1186 (1992). Only the legislature can create a legal duty to be enforced in

mandamus: “creation of the duty is the distinct function of the legislative branch

of government.” Id.

{¶ 16} Here, the FCCS document on board policies regarding the

inspection of investigatory files does not create or reflect any duty to provide

access that can be enforced in mandamus. No FCCS “policy” can provide access

to the requested files when access is prohibited by law. Because Clough cannot

claim a clear legal right from FCCS’s statement of policies and procedures, we

deny the writ to the extent Clough is basing her claim on those policies and

procedures.

Public records

{¶ 17} Although Clough does not mention the public-records law in her

complaint, she nevertheless asserts a violation of that law in her brief. Even

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assuming that the issue has been properly presented, Clough cannot prevail. R.C.

149.43(B)(1) requires that upon request, all public records shall be promptly

prepared and made available for inspection at reasonable times. R.C.

149.43(A)(1) defines a “public record” as “records kept by any public office.”

But R.C. 149.43(A)(1)(v) excepts from disclosure “[r]ecords the release of which

is prohibited by state or federal law.”

{¶ 18} FCCS asserts that the documents Clough requested are exempted

from disclosure by R.C. 2151.421(H)(1), which explicitly provides that a children

services agency’s investigatory record resulting from a report of suspected child

abuse is confidential. That statute states: “Except as provided in divisions (H)(4)

and (N) of this section, a report made under this section is confidential.” R.C.

2151.421(H)(1); see State ex rel. Renfro v. Cuyahoga Cty. Dept. of Human Servs.,

54 Ohio St.3d 25, 27, 560 N.E.2d 230 (1990) (“R.C. 2151.421(H)(1) clearly

removes child abuse investigation reports compiled under that statute from the

mandatory disclosure provisions of R.C. 149.43(B)”). This exemption was

explained to Clough in one of the responses to her inspection request.

{¶ 19} Therefore, if the file constitutes a report of a child-abuse allegation

and the investigation of that allegation, as Clough describes it in her brief, the file

is confidential under R.C. 2151.421(H)(1).

Report of the special master

{¶ 20} The special master inspected the file and described its general

contents in his report. His description of the documents is necessarily

circumspect, revealing nothing substantive about their contents. But his report

does indicate, with only a few possible exceptions, that the file is a “report made

under this section” within the meaning of R.C. 2151.421(H)(1) and that it is

therefore confidential.

{¶ 21} The special master concludes that his review of the file confirmed

that a report of suspected abuse had been received and investigated. The case was

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closed with the determination that the report was unsubstantiated, and the parents

were notified. He explicitly declined to express an opinion as to whether the

determination was correct.2

Public-records exceptions

{¶ 22} Considering the special master’s report, the file appears to contain,

with very few possible exceptions, the records of an investigation of a report of

possible child abuse, and therefore falls under the confidentiality provision in

R.C. 2151.421(H)(1). Thus, those records are exempt from disclosure under R.C.

149.43(A)(1)(v).

{¶ 23} Even those documents in the file that might not be confidential

under R.C. 2151.421 are open to inspection only to the persons or entities

specified in R.C. 5153.17:

The public children services agency shall prepare and keep

written records of investigations of families, children, and foster

homes, and of the care, training, and treatment afforded children,

and shall prepare and keep such other records as are required by

the department of job and family services. Such records shall be

confidential, but, except as provided by division (B) of section

3107.17 of the Revised Code, shall be open to inspection by the

agency, the director of job and family services, and the director of

the county department of job and family services, and by other

persons upon the written permission of the executive director.

2

Respondents filed a motion to “clarify” the special master’s report, in which they assert that a

few of the documents were not accurately described. Having no way to independently verify these

assertions, we deny the motion. Moreover, even if the documents are as described by respondents,

it would not change the result here.

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{¶ 24} “[T]he confidentiality promised by R.C. 5153.17 is not absolute.”

Renfro, 54 Ohio St.3d at 29, 560 N.E.2d 230. Ohio courts have held that while it

is the primary duty of the executive director of a county children services agency

to keep its records confidential, the executive director may allow inspection when

the requester shows “good cause.” See, e.g., Johnson v. Johnson, 134 Ohio

App.3d 579, 583, 731 N.E.2d 1144 (3d Dist.1999); Conrad v. Richland Cty.

Children Servs., 5th Dist. Richland No. 2011 CA 124, 2012-Ohio-3871, ¶ 16-19.

“Good cause” is established when the requester shows that disclosure is in the

best interests of the child or that the due process rights of the requester are

implicated. Swartzentruber v. Orrville Grace Brethren Church, 163 Ohio App.3d

96, 2005-Ohio-4264, 836 N.E.2d 619, ¶ 9 (9th Dist.), quoting Johnson at 585.

{¶ 25} The exceptions to the confidentiality provision in R.C. 5153.17 are

narrow. A parent’s right to a fair trial might override the confidentiality

requirement. See Renfro at 29; Davis v. Trumbull Cty. Children Servs. Bd., 24

Ohio App.3d 180, 493 N.E.2d 1011 (11th Dist.1985) (“good cause” may be

established by a showing that a county children services agency is relying on the

records to deprive the child’s parents of custody through a dependency action).

“Good cause” may be shown when the requester has a right arising under another

statute to inspect the records in question. In re Trumbull Cty. Children Servs. Bd.,

32 Ohio Misc.2d 11, 513 N.E.2d 360 (C.P.1986). The good cause shown must

outweigh the considerations underlying the confidentiality requirement. Johnson

at 585. Indeed, we have refused to order disclosure even when the authorities

were using a report to refuse to return a child to her foster parents and to advocate

against the recertification of the home for foster care. Renfro, 54 Ohio St.3d 25,

560 N.E.2d 230. In Swartzentruber, a trial court ordered the disclosure of a

child’s preadoptive case file to the plaintiffs in an action alleging that the

defendants’ adopted child had sexually abused the plaintiffs’ daughter. The

plaintiffs were seeking access to the file to determine whether the alleged abuser

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had ever been a victim of sex abuse, which they claimed would prove a

propensity to commit such abuse against others. The Ninth District Court of

Appeals reversed, finding that the plaintiffs had failed to show good cause, since

the reason for disclosure was greatly outweighed by the need for confidentiality.

{¶ 26} Clough’s argument in support of disclosure is that FCCS did not

follow its own policies and procedures in denying her request. This does not

qualify as good cause. While her case is sympathetic, and she is no doubt

concerned about the investigation of her daughter’s possible abuse, she has not

alleged that the child is currently in any specific danger, that her due process

rights are in jeopardy, or that there is any similarly compelling reason to depart

from the statutory mandate of confidentiality.

{¶ 27} Finally, Clough’s second argument is that she is entitled to records

pertaining to the grievance hearings held in 2009 and 2010. Although the

hearings are mentioned in the complaint and brief, these records are not

mentioned in her requests to FCCS. Clough may not seek a writ of mandamus for

documents that she did not request before filing her complaint.

Conclusion

{¶ 28} In short, Clough has requested to inspect documents that are

deemed confidential by statute without any showing of good cause for overriding

confidentiality. We therefore deny the writ and deny Clough’s emergency

motions to expedite the decision. We also deny the motion to clarify the report of

the special master. Costs for the special master shall be borne by the court.

Writ denied.

O’CONNOR, C.J., and PFEIFER, O’DONNELL, KENNEDY, FRENCH, and

O’NEILL, JJ., concur.

LANZINGER, J., concurs in judgment only.

_____________________

Stephanie Y. Clough, pro se.

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Ron O’Brien, Franklin County Prosecuting Attorney, Nick A. Soulas Jr.,

First Assistant Prosecuting Attorney, and Amy L. Hiers, Assistant Prosecuting

Attorney, for respondents.

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