State ex rel. Plain Dealer Publishing Co. v. City of Cleveland

Alice Robie Resnick, J.,

concurring. While I concur in the judgment reached by the majority granting the writ of mandamus, I write separately to stress the need for a specific exemption that protects an individual government employee’s right to privacy.

The majority correctly holds that Ohio’s Public Records Act, R.C. 149.43, mandates the disclosure of the resumes submitted by applicants for the position of Cleveland Police Chief. However, because of the growing number of cases before this court that involve the balance between an individual government employee’s right to privacy and the public’s right to know, I am concerned that the General Assembly has not specifically provided a general exception for privacy. As the majority points out, resumes are not protected by a limited constitutional right of privacy, nor is there a special state or federal legislative scheme protecting resumes. Therefore, if there is to be an exemption for resumes and other general privacy concerns, the General Assembly must establish such an exemption. State ex rel. Thomas v. Ohio State Univ. (1994), 71 Ohio St.3d 245, 248 , 643 N.E.2d 126, 129 ; State ex rel. Beacon Journal Publishing Co. v. Akron (1994), 70 Ohio St.3d 605, 615-616 , 640 N.E.2d 164, 172 (Douglas, J., dissenting); State ex rel. Toledo Blade Co. v. Univ. of Toledo Found. (1992), 65 Ohio St.3d 258 . 266. 602 N.E.2d 1159 . 1164-1165.

*40 Other states and the federal government have fashioned such an exemption in their open records laws. See, e.g., Section 552(b)(6), Title 5, U.S.Code (The public information statute “does not apply to matters that are * * * personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy * * *.”); Cal.Gov.Code 6254(c) (exemption from disclosure of “[personnel, medical, or similar files, the disclosure of which would constitute an unwarranted invasion of personal privacy”); 5 Ill.Comp.Stat.Ann. 140/7(l)(b) (“Information that, if disclosed, would constitute a clearly unwarranted invasion of personal privacy” is exempt from inspection and copying.); Ky.Rev.Stat.Ann. 61.878(l)(a) (excludes from disclosure “[pjublic records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy”); Mich.Comp.Laws Ann., Chapter 15.243(1) (“A public body may exempt from disclosure as a public record under this act: (a) Information of a personal nature where the public disclosure of the information would constitute a clearly unwarranted invasion of an individual’s privacy.”); N.Y.Public Officers Law 87(2)(b) (A public agency may deny access to records or portions thereof that “if disclosed would constitute an unwarranted invasion of personal privacy * * *.”); 65 Penn.Stat.Ann. 66.1(2) (The term “public record” shall not mean “any report, communication or other paper, the publication of which * * * would operate to the prejudice or impairment of a person^ reputation or personal security * * *.”). These statutes allow for the balancing of the privacy interests of the individual government employee against the public’s right to know.

In applying these privacy exemptions to requests for information concerning candidates for public employment, selected state supreme courts have held that the considerable privacy interests of the candidates in maintaining secret their identities outweigh the public’s right to know. See, e.g., Booth Newspapers v. Univ. of Michigan (1993), 444 Mich. 211, 233 , 507 N.W.2d 422, 432 (Identity of candidates may in fact be personal, however, the disclosure of regents’ travel expense reports created in candidate search procedure could only “ ‘conceivably ’ lead to the revelation of personal information” and thus is not exempt from disclosure. [Emphasis sic.]); Young v. Rice (1992), 308 Ark. 593, 598 , 826 S.W.2d 252, 255 (Substantial privacy interest exists in candidates’ identities because the release of such information “could subject the candidates to embarrassment and could perhaps threaten their future employment.”); Atty. Gen. v. School Commt. of Northampton (1978), 375 Mass. 127, 132 , 375 N.E.2d 1188, 1191 (Candidates’ identities are exempt from disclosure if proven to be invasions of personal privacy.). See, also, Core v. United States Postal Serv. (C.A.4, 1984), 730 F.2d 946, 948 (Because the identity of candidates had already been revealed, “disclosure that they wished to leave their former employment cannot embarrass them * * *.”); Dubuque v. Telegraph Herald, Inc. (Iowa 1980), 297 N.W.2d 523, *41 528 (No evidence was introduced to show disclosure would substantially and irreparably injure any applicant; mere inconvenience or embarrassment is not enough.). But, see, Hubert v. Harte-Hanks Texas Newspapers, Inc. (Tex.App. 1983), 652 S.W.2d 546, 551 (“We do not regard the candidates’ names to be facts of a highly embarrassing or intimate nature, which, if publicized, would be highly objectionable to a reasonable person.”).

This privacy exemption is of such importance that it certainly is worthy of consideration by Ohio’s General Assembly. Disclosing the candidates’ identities could possibly adversely affect the candidates’ attempts to obtain future employment, their abilities to function in the job they currently hold, and their standing in their communities. School Commt. of Northampton , 375 Mass at 132, 375 N.E.2d at 1191, fn. 5 .

In addition to exempting private information, at least oné state has determined that the specific interests in maintaining secret the applications of candidates for public employment are so important as to require a specific exemption. 5 Ill.Comp.Stat.Ann. 140/7(l)(b)(ii) (exemption from disclosure for “personnel files and personal information maintained with respect to employees, appointees or elected officials of any public body or applicants for those positions * * *.” [Emphasis added.]). In Ohio, there exists neither an exemption for an individual’s personal privacy nor an exemption for employment applications. The General Assembly, in its review of the public records statutes, has the power to add a privacy exemption which would allow for the weighing of the individual applicant’s privacy interests against the public’s right to know.

Pfeifer, J., concurs in the foregoing concurring opinion.