State Ex Rel. v. Dayton Bd. of Edn. , 140 Ohio App. 3d 243 ( 2000 )

I must respectfully but strongly dissent, although I agree with the legal analysis of the issues addressed by the majority.

In my opinion, the materials sought by the relators no longer exist as public records. These materials are the job applications, including resumes, of individuals responding to a search by the Dayton Board of Education for a new superintendent of its schools.

The public had a legitimate interest in these materials in the process of evaluating all the candidates for a high profile public office.¹ However, once the new superintendent was chosen, the materials sought simply became nonexistent for public evaluation purposes.

Once the board had made its decision, it had two choices with regard to the materials sought here: (1) immediately send them back to the unsuccessful candidates or (2) shred them. Why would the board keep such materials that are no longer of interest to it or, for that matter, to the general public? In any event, we should regard them as constructively shredded and refuse the writ.

Even more important than the fact that there exists no public purpose to release the materials is the generally accepted view, even by the majority here, that such an act would likely cause many of these unsuccessful applicants significant embarrassment or perhaps even outright financial harm.

The issuance of the writ of mandamus "is largely controlled by equitable principles, and the writ may be refused for reasons comparable to those which would have led a court of equity to exercise its discretion in favor of withholding its protection of an undoubted legal right." 67 Ohio Jurisprudence 3d (1999) 276, Mandamus, Procedendo, and Prohibition, Section 6. Even this court has recognized that principle. State ex rel. Beane v. Krebs (1945), 75 Ohio App. 427, 31 O.O. 247, 43 Ohio Law Abs. 238, 62 N.E.2d 526.

There is no need to wait for the General Assembly to act to protect the job applications of unsuccessful applicants from publication after the job has been filled. After all, "[m]andamus is of ancient origin in the English common law, originating in the courts — not the Legislature." State ex rel. Burton v. Smith (1962), 118 Ohio App. 248,250, 25 O.O.2d 90, 194 N.E.2d 70, 72.

There is great equity in favor of protecting these applicants from the harm that will befall them if the materials are released now, and no equity in favor of the release because there is no genuine public interest now in their release. If the relators were to publish these materials now, it would only be an act of media voyeurism.

The writ should be refused.

¹ Ironically, the Dayton public did not need the materials sought by the relators to decisively influence the board to choose a widely popular local, and the only local, candidate for the new superintendent. A grass loots campaign was mounted for this candidate and succeeded in persuading some members of the board to reverse their votes immediately following a heavily attended meeting where the board was confronted with massive public support for this one local candidate.