State ex rel. Morgan v. Strickland , 121 Ohio St. 3d 600 ( 2009 )


Menu:
  • [Cite as State ex rel. Morgan v. Strickland, 
    121 Ohio St.3d 600
    , 
    2009-Ohio-1901
    .]
    THE STATE EX REL. MORGAN v. STRICKLAND, GOVERNOR.
    [Cite as State ex rel. Morgan v. Strickland,
    
    121 Ohio St.3d 600
    , 
    2009-Ohio-1901
    .]
    (No. 2009-0614 ─ Submitted April 21, 2009 ─ Decided April 24, 2009.)
    Mandamus – Public records – R.C. 149.43 – Governor – Request for public
    records – Governor acted reasonably in responding to request given
    request’s broad scope and necessity for review before release – Limited
    writ issued to compel governor to continue reviewing remaining records
    and to provide copies within reasonable time.
    IN MANDAMUS.
    ____________________
    Per Curiam.
    {¶ 1} This is an original action for a writ of mandamus to compel
    respondent, Governor Ted Strickland, to provide copies of certain records related
    to the governor’s education-funding plan. Because the requested records serve to
    “document the * * * functions, policies, decisions, procedures, operations, or
    other activities of the office” of the governor, see R.C. 149.011(G), particularly as
    they relate to his school-funding plan, we grant a limited writ of mandamus to
    compel the governor to continue reviewing the potentially responsive records and
    to provide copies of them to relator within a reasonable time.
    H.B. 1
    {¶ 2} Am.Sub.H.B. No. 1 (“H.B. 1”) is the governor’s proposed
    operating budget for fiscal years 2010 and 2011. H.B. 1 was introduced as
    proposed legislation on February 12, 2009. H.B. 1 would replace the current
    school-funding method with a new method, which would adopt an evidence-based
    model that calculates an “adequacy amount” for each school district.
    SUPREME COURT OF OHIO
    Records Requests
    {¶ 3} Relator, Seth A. Morgan, is a resident of Montgomery County,
    Ohio, and is a member of the Ohio House of Representatives for the 36th District.
    On March 12, Morgan requested certain records from the governor’s office
    concerning the proposed school-funding plan, including any and all documents
    and correspondence relating to the evidence-based model and e-mail
    communications that refer to the evidence-based model or education funding in
    general. Morgan admitted that his request was “comprehensive,” but offered to
    assist in helping the governor’s office “narrow the specific documents” he was
    requesting. After receiving no response to his March 12 request, Morgan made
    another request on March 25 reiterating his previous request.
    {¶ 4} The governor’s office followed its general procedure in responding
    to Morgan’s “non-routine” requests for voluminous records, except for failing to
    provide written acknowledgement of the request as defined in the governor’s
    public-records policy. The record officer received the request on March 17 and
    proceeded to determine the scope and possible location of potentially responsive
    records. The record officer then ordered a search of all of the office’s e-mail
    accounts relating to the evidence-based model and education funding. The initial
    search returned over 8,700 e-mail messages comprising over 74,000 pages of
    data.
    Mandamus Case
    {¶ 5} After receiving no response to his requests and while the
    governor’s office was proceeding with its preliminary search and review of
    potentially responsive records, Morgan filed this action on April 6. Morgan seeks
    a writ of mandamus to compel Governor Strickland to make available the records
    he requested in accordance with the Public Records Act and to provide a written
    explanation that includes legal authority for any records not provided. Morgan
    also requests statutory damages and attorney fees.      On April 8, we granted
    2
    January Term, 2009
    Morgan’s motion for expedited consideration, granted an alternative writ, and
    ordered an accelerated schedule for the submission of evidence and briefs.
    {¶ 6} On April 7, the governor’s office responded to the requests with a
    detailed letter and provided some of the requested records.           Although the
    governor objected to many of Morgan’s requests as overbroad, he nevertheless
    indicated that he was endeavoring to satisfy the requests by searching for,
    compiling, and reviewing potentially responsive records to redact information
    protected by state and federal law before providing copies. The governor noted
    that he was not invoking executive privilege to withhold the records.
    {¶ 7} Morgan responded with a letter dated April 8 in which he
    demanded that the governor’s office immediately provide him with the over 8,700
    potentially responsive e-mails referred to in the governor’s office’s April 7 letter.
    By letter the next day, the governor’s office provided over 6,100 pages of
    additional records, but rejected Morgan’s request for immediate access to the
    requested e-mails because they had not yet been reviewed for exempt material.
    The governor’s office also noted that it had not yet claimed attorney-client
    privilege or any other available privilege or exemption to prevent the release of
    the records provided to relator.
    {¶ 8} This cause is now before the court for its consideration of the
    merits. As a preliminary matter, any alleged noncompliance with R.C. 109.02
    does not prevent us from resolving Morgan’s mandamus claim. In fact, the
    governor does not specifically argue that it does. Instead, he merely claims that
    the asserted violation of R.C. 109.02 prevents Morgan’s request for attorney fees.
    Mandamus
    {¶ 9} The Public Records Act reflects the state’s policy that “open
    government serves the public interest and our democratic system.” State ex rel.
    Dann v. Taft, 
    109 Ohio St.3d 364
    , 
    2006-Ohio-1825
    , 
    848 N.E.2d 472
    , ¶ 20. The
    purpose of the act is “to expose government activity to public scrutiny, which is
    3
    SUPREME COURT OF OHIO
    absolutely essential to the proper working of a democracy.” State ex rel. WHIO-
    TV-7 v. Lowe (1997), 
    77 Ohio St.3d 350
    , 355, 
    673 N.E.2d 1360
    . In accordance
    with this salutary purpose, “[w]e construe R.C. 149.43 liberally in favor of broad
    access and resolve any doubt in favor of public records.” State ex rel. Toledo
    Blade Co. v. Seneca Cty. Bd. of Commrs., 
    120 Ohio St.3d 372
    , 
    2008-Ohio-6253
    ,
    
    899 N.E.2d 961
    , ¶ 17.
    {¶ 10} At issue here is whether the governor has provided copies of the
    requested records within a reasonable time. R.C. 149.43(B)(1) provides that
    “upon request, a public office or person responsible for public records shall make
    copies of the requested public record available at cost within a reasonable period
    of time.” The determination of whether the governor complied with his statutory
    duty to timely provide copies of the requested records depends upon all of the
    pertinent facts and circumstances. See State ex rel. Consumer News Servs., Inc. v.
    Worthington City Bd. of Edn., 
    97 Ohio St.3d 58
    , 
    2002-Ohio-5311
    , 
    776 N.E.2d 82
    ,
    ¶ 37-38.
    {¶ 11} Under R.C. 149.43(E)(1), “all public offices shall adopt a public
    records policy in compliance with [the Ohio Public Records Act] for responding
    to public records requests.”    The governor has done so and recognizes the
    importance of the act in his office’s official “Public Records Policy and
    Procedures.”
    {¶ 12} Among other things, the official public-records policy of the
    governor’s office provides that responses to public-records requests “will be
    completed in a reasonable time taking into account the scope of the request, the
    ease or difficulty of identifying, compiling and reviewing potentially responsive
    records, and the operational needs of the Governor’s Office.” For “non-routine”
    requests, like the ones here, seeking a large number of copies or requiring an
    extensive search or review, the policy provides that the governor’s office shall
    provide a written acknowledgement of its receipt of the request, which includes
    4
    January Term, 2009
    an estimate of the time it will take to satisfy the request, an estimated cost, and
    identification of items that may be exempt from disclosure or subject to redaction.
    Under the policy, all records requests are referred promptly to the governor’s
    record officer, the responsive records are reviewed to prevent the disclosure of
    certain exempt information, and the governor’s office decides whether to invoke
    or waive privileges and exemptions. The governor did not comply with the
    requirement of the policy that he provide the person requesting records with an
    estimate of the time it will take to satisfy the request, an estimated cost, and
    identification of items that may be exempt or redacted.
    {¶ 13} We find that thus far, with the exception of that portion of the
    policy specified, the governor has acted reasonably and within the parameters of
    R.C. 149.43 as well as his duly adopted public-records policy.           As of the
    completion of briefing, he had chosen not to invoke either executive privilege or
    attorney-client privilege to withhold any of the requested records.
    {¶ 14} Moreover, Representative Morgan’s requests were arguably
    overbroad in part. “ ‘[I]t is the responsibility of the person who wishes to inspect
    and/or copy records to identify with reasonable clarity the records at issue.’ ”
    State ex rel. Morgan v. New Lexington, 
    112 Ohio St.3d 33
    , 
    2006-Ohio-6365
    , 
    857 N.E.2d 1208
    , ¶ 29, quoting State ex rel. Fant v. Tober (Apr. 28, 1993), Cuyahoga
    App. No. 63737, 
    1993 WL 173743
    , *1. “Requests for information and requests
    that require the records custodian to create a new record by searching for selected
    information are improper requests under R.C. 149.43.” Morgan at ¶ 30.
    {¶ 15}    Morgan’s initial request included “[a]ny and all e-mail
    communications * * * which reference in a substantive manner the ‘evidence-
    based model’ or education funding in general.” In that request, Morgan attempted
    to clarify that he wanted only those e-mails in which the evidence-based model
    was “the primary topic or significant part of the communications.” Later, in his
    April 8 reply to the governor’s office’s detailed April 7 response to his public-
    5
    SUPREME COURT OF OHIO
    records requests, Morgan appeared to request the immediate production of copies
    of all e-mails that contained references to the school-funding model regardless of
    whether the reference was “substantive” or was the “primary topic” or a
    “significant” part of the e-mails. Morgan should therefore work to refine, narrow,
    and further clarify his requests.
    {¶ 16} Furthermore, “R.C. 149.43(A) envisions an opportunity on the
    part of the public office to examine records prior to inspection in order to make
    appropriate redactions of exempt materials.” State ex rel. Warren Newspapers,
    Inc. v. Hutson (1994), 
    70 Ohio St.3d 619
    , 623, 
    640 N.E.2d 174
    .
    {¶ 17} Given the broad scope of the records requested, the governor’s
    office’s decision to review the records before producing them, to determine
    whether to redact exempt matter, was not unreasonable.
    {¶ 18}     In addition, R.C. 149.43 contemplates that the requester and the
    public-records custodian cooperate in fulfilling a request.      See State ex rel.
    Strothers v. Murphy (1999), 
    132 Ohio App.3d 645
    , 651, 
    725 N.E.2d 1185
     (court
    urged parties to cooperate to satisfy a public-records request). For example, R.C.
    149.43(B)(2) provides, “If a requester makes an ambiguous or overly broad
    request or has difficulty in making a request for copies or inspection of public
    records under this section such that the public office or the person responsible for
    the requested public record cannot reasonably identify what public records are
    being requested, the public office or the person responsible for the requested
    public record may deny the request but shall provide the requester with an
    opportunity to revise the request by informing the requester of the manner in
    which records are maintained by the public office and accessed in the ordinary
    course of the public office’s or the person’s duties.”
    {¶ 19} We have also recognized that “a reasonably exercised spirit of
    mutual cooperation among the various branches of government is essential.”
    State ex rel. Johnston v. Taulbee (1981), 
    66 Ohio St.2d 417
    , 420, 
    20 O.O.3d 361
    ,
    6
    January Term, 2009
    
    423 N.E.2d 80
    . We anticipate the continued cooperation between the governor’s
    office and the relator concerning the requested records pertinent to the governor’s
    school-funding plan in H.B. 1.
    {¶ 20} Therefore, because the requested records serve to “document the
    * * * functions, policies, decisions, procedures, operations, or other activities of
    the office” of the governor, see R.C. 149.011(G), particularly as it relates to his
    school-funding plan, we grant a limited writ of mandamus to compel the governor
    to continue reviewing the remaining responsive records and, after making
    appropriate redactions, to provide copies to Representative Morgan within a
    reasonable time. The parties are encouraged to cooperate to achieve a mutually
    acceptable resolution of the pending records requests. The request for attorney
    fees and statutory damages is denied at this time.
    Conclusion
    {¶ 21} The requested records relating to the governor’s school-funding
    plan are unquestionably important. Their timely disclosure after the governor’s
    opportunity to review them to redact exempt material is consistent with the
    precept that “[i]n order to ensure that government performs effectively and
    properly, it is essential that the public be informed and therefore able to scrutinize
    the government’s work and decisions.” Kish v. Akron, 
    109 Ohio St.3d 162
    , 2006-
    Ohio-1244, 
    846 N.E.2d 811
    , ¶ 15. The ultimate disclosure of the requested
    records here helps “illuminate and foster understanding of the rationale”
    underlying the governor’s school-funding plan and will better inform both the
    public and the General Assembly about the plan. Id. at ¶ 16.
    {¶ 22} For these reasons, we grant a limited writ of mandamus to compel
    Governor Strickland to continue reviewing the remaining responsive records and
    to provide copies of them to Representative Morgan within a reasonable time.
    Judgment accordingly.
    7
    SUPREME COURT OF OHIO
    MOYER, C.J., and LUNDBERG STRATTON, O’CONNOR, O’DONNELL,
    LANZINGER, and CUPP, JJ., concur.
    PFEIFER, J., concurs separately.
    ____________________
    PFEIFER, J., concurring.
    {¶ 23} I have no objection to the substance of the “limited writ” granted
    by this court today. There isn’t any substance to object to. But I am less than
    certain that the writ provides any meaningful guidance to the parties in the event
    that there are unresolved differences.
    {¶ 24} What we have here is failure to communicate. And this court,
    despite proven resources at our disposal, does nothing to resolve that problem.
    This dispute cries out for mediation. For despite some heated rhetoric, there does
    not seem to be much disagreement between the parties as to the law. Rather than
    issuing a writ of any kind, this court should have taken the more prudent course of
    following a procedure that we frequently employ in public-records cases, and that
    is to encourage mediation upon the filing of the pleadings.
    {¶ 25}    At this point, we should order mediation. All sides here know
    what the law is; this court’s professional mediation staff could manage and
    monitor the production of documents. Mediation could facilitate a narrowing of
    the documents requested – some of what Representative Morgan has demanded
    may become moot or meaningless due to the fact that, not surprisingly, the
    majority leaders of the House of Representatives have significantly changed the
    governor’s proposed legislation. Further alterations will continue throughout the
    legislative process. Mediation could keep a bevy of lawyers from wasting their
    efforts and also save a good number of trees.
    {¶ 26}    We should take this public-records request seriously, and
    employ our best methods to encourage diligent communication between the
    parties in order to bring about a resolution that is consistent with Ohio’s strong
    8
    January Term, 2009
    tradition of open records. We have squandered an opportunity to ensure that this
    matter does not devolve into political theater.
    {¶ 27} The parties themselves are still able to seek mediation through
    this court. This court’s skilled mediation staff is experienced in public-records
    mediation and remains an available and valuable resource.
    ____________________
    KBH Law Office and Kari B. Hertel, for relator.
    Richard Cordray, Attorney General, and Aaron D. Epstein, Pearl M. Chin,
    and Daniel C. Roth, Assistant Attorneys General, for respondent.
    ____________________
    9
    

Document Info

Docket Number: 2009-0614

Citation Numbers: 2009 Ohio 1901, 121 Ohio St. 3d 600, 906 N.E.2d 1105

Judges: Moyer, Stratton, O'Connor, O'Donnell, Lanzinger, Cupp, Pfeifer

Filed Date: 4/24/2009

Precedential Status: Precedential

Modified Date: 10/19/2024

Cited By (34)

Felts v. ODRC Southern Ohio Corr. Facility , 2022 Ohio 966 ( 2022 )

Paramount Advantage v. Ohio Dept. of Medicaid , 2021 Ohio 4180 ( 2021 )

Parks v. Blanchester Bd. of Pub. Affairs , 2021 Ohio 4653 ( 2021 )

State ex rel. Fair Hous. Opportunities of Northwest Ohio v. ... , 2022 Ohio 385 ( 2022 )

DeCrane v. Cleveland , 2018 Ohio 3476 ( 2018 )

Chillicothe Gazette v. Chillicothe City Schools , 2018 Ohio 5445 ( 2018 )

State ex rel. Util. Supervisors Employees' Assn. v. ... , 2023 Ohio 463 ( 2023 )

WCPO-TV v. Ohio Dept. of Health , 2021 Ohio 1151 ( 2021 )

Cleveland Ass'n of Rescue Employees/Ila Local 1975, Relator ... , 123 N.E.3d 374 ( 2018 )

Kanter v. Cleveland Hts. , 2018 Ohio 4592 ( 2018 )

State ex rel. Carr v. London Corr. Inst. , 2014 Ohio 1325 ( 2014 )

Darr v. Huber Heights , 2018 Ohio 2911 ( 2018 )

State ex rel. Cincinnati Enquirer v. Deters (Slip Opinion) , 148 Ohio St. 3d 595 ( 2016 )

State ex rel. Cincinnati Enquirer v. Pike Cty. Coroner's ... , 153 Ohio St. 3d 63 ( 2017 )

Parrish v. Village of Glendale , 2018 Ohio 2913 ( 2018 )

King v. Dept. of Job & Family Servs. , 2018 Ohio 3478 ( 2018 )

The Cincinnati Enquirer v. Cincinnati , 2019 Ohio 969 ( 2019 )

Chillicothe Gazette v. Chillicothe City Schools , 2019 Ohio 965 ( 2019 )

State ex rel. Davis v. Metzger , 2013 Ohio 1620 ( 2013 )

State ex rel. Davis v. Metzger , 2013 Ohio 1699 ( 2013 )

View All Citing Opinions »