State Ex Rel. Data Trace Information Services, L.L.C. v. Cuyahoga County Fiscal Officer , 131 Ohio St. 3d 255 ( 2012 )

[Cite as State ex rel. Data Trace Information Servs., L.L.C. v. Cuyahoga Cty. Fiscal Officer,
131 Ohio St.3d 255, 2012-Ohio-753.]
THE STATE EX REL. DATA TRACE INFORMATION SERVICES, L.L.C. ET AL. v.
CUYAHOGA COUNTY FISCAL OFFICER.
[Cite as State ex rel. Data Trace Information Servs., L.L.C. v. Cuyahoga Cty.
Fiscal Officer, 131 Ohio St.3d 255, 2012-Ohio-753.]
Public records—County recorders’ real estate records constitute public records—
R.C. 149.011(G)—Electronic copies to be provided at cost—R.C.
149.43(B)—Statutory fee of $2 per photocopied page inapplicable to
electronic copies—R.C. 9.01 and 317.32(I).
(No. 2010-2029—Submitted January 3, 2012—Decided February 29, 2012.)
IN MANDAMUS.
__________________
Per Curiam.
{¶ 1} This is an action for a writ of mandamus to compel respondent, the
Cuyahoga County fiscal officer, to provide to relators, private companies that
store and index electronic images of records and information taken from the
records that county recorders have recorded and officials representing those
companies, copies of electronic images of all documents recorded in the
Cuyahoga County Recorder’s Office in the months of July and August 2010 on
compact discs, to provide those copies based on their actual cost rather than $2
per electronic image of each page, and to amend the office’s public-records policy
to comply with the law. Because the requested electronic images constitute
records subject to disclosure under the Public Records Act and relators are
entitled to copies of those electronic records at actual cost rather than at the higher
statutory charge for photocopying documents, we grant the writ to compel the
fiscal officer to provide the requested electronic copies at actual cost. Insofar as
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the current public-records policy of the recorder’s office does not controvert this
result, however, we deny the writ insofar as it seeks to amend the policy.
Facts
{¶ 2} Relators Data Trace Information Services, L.L.C. and Property
Insight, L.L.C. are limited-liability companies that were created by separate title-
insurance companies. Data Trace and Property Insight store and organize digital
images of and information taken from deeds, mortgages, liens, leases, releases,
and other public records that county recorders’ offices record. Their clients are
companies that evaluate and insure the quality of title to land.
{¶ 3} From 1997 until mid-1998, Patrick O’Malley served as the
Cuyahoga County recorder. During O’Malley’s tenure as county recorder, the
office changed from a paper-based system of managing recorded instruments to a
computer-based system. By 1999, the recorder’s office recorded deeds and other
instruments by electronically scanning the originals to create digital images of
them and storing those images in the office’s computer system.
{¶ 4} The office procedure is as follows. Persons desiring to file a deed,
mortgage, or other instrument with the county recorder tender the instrument and
the applicable recording fee to one of the cashiers in the recorder’s office. The
recorder’s office assigns an automated file number to the instrument that shows
the date the county recorded the instrument and the sequence in which the
instrument is recorded that day. An adhesive label listing the file number and the
time of filing is attached to the document, the person’s name and telephone
number are obtained in case any problem with the document arises, the document
is scanned into the recorder’s computer system with a digital scanner, and the
original paper document is returned to the person tendering it.
{¶ 5} The recorder’s office makes a backup copy of the digital images of
all the instruments recorded every single day on a compact disc. These backup
copies are referred to as master CDs. Using the information that appears on the
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electronically recorded instruments, the recorder’s office also enters certain
information into the computer system that results in the office’s grantor-grantee
index.
{¶ 6} Beginning in 1999, the recorder’s office copied the master CDs
onto several blank CDs and provided the CDs for a fee of $50 to various
companies, including Data Trace and Property Insight. Those companies also
paid a fee of $5,000 each year for regularly updated copies of the recorder’s
office’s grantor-grantee index.
{¶ 7} Neither Data Trace nor Property Insight evaluates the quality of
title to land. Instead, they provide access to their databases and searching
capabilities, which are more detailed and comprehensive than Cuyahoga County’s
database and search options.
{¶ 8} In July 2008, Lillian Greene became Cuyahoga County recorder.
In September 2009, Greene notified Data Trace and Property Insight that she was
increasing the $5,000 annual fee for the updated grantor-grantee index to $7,500
as a result of the “recent county budget crisis” but that the $50 fee for single CDs
of the office’s daily recordings would remain the same. In the spring of 2010, the
recorder’s office notified Data Trace and Property Insight that it would no longer
be providing CD copies of its daily digital images from its master CDs. Instead,
the recorder’s office advised the companies that it would give them only paper
printouts of the digital copies of the recorded instruments at a fee of $2 per page.
The recorder’s office purchases blank CDs for use in its routine course of
business at a rate of $31.81 for 100 discs.
{¶ 9} On October 5, 2010, Data Trace and Property Insight sent letters to
the Cuyahoga County recorder requesting that Greene provide CDs containing
electronic copies of all documents publicly recorded in her office in July and
August 2010. The letters were sent on their behalf by relator Michael Stutzman,
the operations manager of Data Trace, and relator Michael Carsella, the vice
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president of Midwest operations of Property Insight. The companies objected to
the recorder’s recently adopted policy or practice of imposing a charge for all
copies of recorded documents, whether images or paper, of $2 per page or image,
and requested that the recorder amend her policy of charging more than the actual
cost of copying the electronic images of the recorded documents onto CD. The
then existing public-records policy adopted by the recorder’s office included a
section that provided that “[t]he charge for downloaded computer files to a
compact disc is $1.00 per disc.”
{¶ 10} After three weeks without a response from the recorder, Data
Trace and Property Insight filed a public-records mandamus action against the
Cuyahoga County recorder in this court in case No. 2010-1823. By letters dated
November 16, 2010, the recorder’s office finally responded to the companies’
October 5, 2010 requests by specifying that it would provide the requested
materials upon payment of the statutory fees required by R.C. 317.32. The
recorder then moved to dismiss case No. 2010-1823 because the companies had
not registered to do business in Ohio. The companies filed an application to
dismiss the case, which we granted on November 30, 2010. Data Trace
Information Servs., L.L.C. v. Cuyahoga Cty. Recorder, 127 Ohio St.3d 1439,
2010-Ohio-5806, 937 N.E.2d 569.
{¶ 11} Data Trace and Property Insight registered and paid the fees to do
business in Ohio. On November 24, 2010, relators, Data Trace, Property Insight,
Stutzman, and Carsella, filed this public-records mandamus case against the
Cuyahoga County recorder. On January 5, 2011, relators deposed Recorder
Greene, who claimed that the recorder’s office’s public-records policy, which
provided that the charge for downloaded computer files to compact disc was $1
per disc, did not apply to the companies’ requests for the electronically recorded
instruments because they were not public records.
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{¶ 12} After the deposition, around January 10, 2011, the recorder
adopted a public-records policy that deleted the fee of $1 per compact disc for
downloading computer files and replaced it with a policy that provides that the
“cost for copies is $2.00 per page for recorded documents * * * and $.05 per page
for all administrative or non-recorded documents,” with public-records requests
pertaining “to any documents that document the organization, functions, policies,
decisions, procedures and operations of the office, subject to certain exemptions
under state and federal law.”
{¶ 13} In January 2011, Cuyahoga County’s new charter form of
government became effective. The Cuyahoga County Council adopted a public-
records policy that specified that “[t]he charge for computer files downloaded to a
compact disc shall be the actual cost, not to exceed $1.26 per disc.”
{¶ 14} Under the charter, the Cuyahoga County fiscal officer “shall
exercise all powers and perform all duties now or hereafter vested in or imposed
by general law upon * * * county recorders.” Article V, Section 5.02(1),
Cuyahoga County Charter. Therefore, the Cuyahoga County fiscal officer is
substituted for the Cuyahoga County recorder as the respondent in this case.
S.Ct.Prac.R. 10.2 and Civ.R. 25(D)(1). Although there is no longer a county
recorder, the recorder’s office still remains. See http://recorder.cuyahoga
county.us.
{¶ 15} In February 2011, relators filed a motion for leave to file an
amended complaint. In their amended complaint, relators request a writ of
mandamus to (1) compel the fiscal officer to provide the requested copies of
recorded instruments on compact discs, (2) amend the policy and practice to allow
for copying electronically stored recorded instruments onto CDs and to provide
electronic copies to relators and other members of the public at cost, and (3)
restore the policy limiting the fee charged for electronic copies of records to $1
per CD with no per-page fee.
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{¶ 16} In March 2011, after relators became concerned that the county
had misunderstood their request as asking the recorder’s office to create new
records in a CD format, they sent the fiscal officer letters stating that the
recorder’s office could comply with their October 5, 2010 requests by copying the
master CDs for July and August 2010 onto blank CDs and charging them $1 per
CD in accordance with former recorder Greene’s previous public-records policy.
In response, the fiscal officer specified that the county agreed that Data Trace and
Property Insight could have copies of the records they requested, so the only
question was how much the companies must pay, and it was his view that they
must pay the fee of $2 per page specified in the Revised Code.
{¶ 17} In his answers to relators’ interrogatories, the fiscal officer stated
that the total number of pages of instruments that the recorder’s office recorded
in July and August 2010 was 104,282, and pursuant to R.C. 317.32(I), Data Trace
and Property Insight would be charged $2 per page—a total of $208,564—for the
requested copies.
{¶ 18} In April 2011, we granted relators’ motion for leave to file an
amended complaint, granted an alternative writ, and issued a schedule for the
submission of evidence and briefs. 128 Ohio St.3d 1442, 2011-Ohio-1618, 944
N.E.2d 693. The parties have submitted evidence and briefs. In addition, the
fiscal officer has filed a motion for oral argument, and the Reporters Committee
for Freedom of the Press, Ohio Newspaper Association, and Ohio Land Title
Association have filed amicus curiae briefs in support of relators.
{¶ 19} This cause is now before the court for our consideration of the
merits and the motion for oral argument.
Legal Analysis
Oral Argument
{¶ 20} The fiscal officer requests oral argument. “Oral argument is not
required in an original action in this court; instead, oral argument is discretionary
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in these cases.” State ex rel. Mun. Constr. Equip. Operators’ Labor Council v.
Cleveland, 114 Ohio St.3d 183, 2007-Ohio-3831, 870 N.E.2d 1174, ¶ 42.
“Nevertheless, we have discretion to grant oral argument pursuant to S.Ct.Prac.R.
IX(2)(A) [now 9.2(A)], and in exercising this discretion, we consider whether the
case involves a matter of great public importance, complex issues of law or fact, a
substantial constitutional issue, or a conflict among courts of appeals.” State ex
rel. Davis v. Pub. Emps. Retirement Bd., 111 Ohio St.3d 118, 2006-Ohio-5339,
855 N.E.2d 444, ¶ 15.
{¶ 21} First, the fiscal officer does not present any credible reason for oral
argument. He merely states in conclusory fashion that oral argument “will assist
this Court in resolving the important legal issues in this case.” See State ex rel.
Lorain v. Stewart, 119 Ohio St.3d 222, 2008-Ohio-4062, 893 N.E.2d 184, ¶ 18.
{¶ 22} Second, this case does not involve complex facts, a conflict
between courts of appeals, or any constitutional issue.
{¶ 23} Finally, the parties’ briefs are sufficient to resolve this public-
records mandamus case. State ex rel. Mahajan v. State Med. Bd. of Ohio, 127
Ohio St.3d 497, 2010-Ohio-5995, 940 N.E.2d 1280, ¶ 65.
{¶ 24} Therefore, we deny the fiscal officer’s motion for oral argument.
Mandamus in Public-Records Cases
{¶ 25} “Mandamus 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). “Relators in public-
records mandamus cases need not establish the lack of an adequate remedy in the
ordinary course of law.” 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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{¶ 26} “The Public Records Act reflects the state’s policy that ‘open
government serves the public interest and our democratic system.’ ” State ex rel.
Glasgow v. Jones, 119 Ohio St.3d 391, 2008-Ohio-4788, 894 N.E.2d 686, ¶ 13,
quoting State ex rel. Dann v. Taft, 109 Ohio St.3d 364, 2006-Ohio-1825, 848
N.E.2d 472, ¶ 20. “Consistent with this policy, we construe R.C. 149.43 liberally
in favor of broad access and resolve any doubt in favor of disclosure of public
records.” Id.{¶ 27} The fiscal officer argues that relators are not entitled to the
requested electronic copies of recorded documents at cost, because the documents
are not records for purposes of the Public Records Act, and that R.C. 317.32(I),
when read in pari materia with R.C. 9.01, requires the charge of $2 per page.
Documents Recorded in County Recorder’s Office
as Records Subject to R.C. 149.43
{¶ 28} The fiscal officer first claims that relators are not entitled to the
requested electronic copies of documents recorded in the county recorder’s office
at cost because the documents, although otherwise publicly available, are not
records subject to disclosure under R.C. 149.43.
{¶ 29} R.C. 149.43(A)(1) defines “[p]ublic record” for purposes of the
Public Records Act as “records kept by any public office, including, but not
limited to, * * * county [offices].” R.C. 149.011(G) provides that for R.C.
Chapter 149,
“[r]ecords” includes any document, device, or item, regardless of
physical form or characteristic, including an electronic record as
defined in section 1306.01 of the Revised Code, 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
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organization, functions, policies, decisions, procedures, operations,
or other activities of the office.
R.C. 1306.01(G) defines an “[e]lectronic record” as “a record created, generated,
sent, communicated, received, or stored by electronic means.”
{¶ 30} In Kish v. Akron, 109 Ohio St.3d 162, 2006-Ohio-1244, 846
N.E.2d 811, at ¶ 20, we recognized the expansive scope of the R.C. 149.011(G)
definition of “records”:
We previously have held that the General Assembly’s use
of “includes” in R.C. 149.011(G) as a preface to the definition of
“records” is an indication of expansion rather than constriction,
restriction, or limitation and that the statute’s use of the phrase
“any document” is one encompassing all documents that fit within
the statute’s definition, regardless of “form or characteristic.”
State ex rel. Cincinnati Post v. Schweikert (1988), 38 Ohio St.3d
170, 172-173, 527 N.E.2d 1230. There can be no dispute that there
is great breadth in the definition of “records” for the purposes here.
Unless otherwise exempted or excepted, almost all documents
memorializing the activities of a public office can satisfy the
definition of “record.” State ex rel. Beacon Journal Publishing
Co. v. Bond, 98 Ohio St.3d 146, 2002-Ohio-7117, 781 N.E.2d 180,
¶ 13.
{¶ 31} To establish that the electronically recorded documents are records
for purposes of R.C. 149.011(G) and 149.43, they must be (1) documents,
devices, or items, including electronic records, (2) created or received by or
coming under the jurisdiction of the recorder’s office, (3) that serve to document
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the organization, functions, policies, decisions, procedures, operations, or other
activities of the office. R.C. 149.011(G); see also State ex rel. Dispatch Printing
Co. v. Johnson, 106 Ohio St.3d 160, 2005-Ohio-4384, 833 N.E.2d 274, ¶ 19.
{¶ 32} Documents electronically recorded by the recorder’s office satisfy
the first two requirements of the three-part definition of “records” under R.C.
149.011(G) and 149.43. The documents are received by the recorder’s office, and
electronic images of them are created by the recorder’s office when they are
scanned into the office’s computer system.
{¶ 33} The dispositive issue for this preliminary question is thus whether
the electronically recorded instruments serve to document the organization,
functions, policies, decisions, procedures, operations, or other activities of the
recorder’s office.
{¶ 34} The fiscal officer contends that documents recorded in a county
recorder’s office are not records subject to R.C. 149.43, because they do not
document the organization, functions, policies, decisions, operations, or other
activities of the recorder’s office. Instead, according to the fiscal officer, they
document the independent acts of third parties who present the instruments to the
officer for recording.
{¶ 35} The fiscal officer’s contention lacks merit. In general, a “county
recorder is an elected public official charged with the performance of duties as
prescribed by statute.” State ex rel. Preston v. Shaver, 172 Ohio St. 111, 114, 173
N.E.2d 758 (1961).
{¶ 36} Under R.C. 5301.25(A), “[a]ll deeds, land contracts * * *, and
instruments of writing properly executed for the conveyance or encumbrance of
lands, tenements, or hereditaments * * * shall be recorded in the office of the
county recorder of the county in which the premises are situated.” County
recorders have various statutory duties, including keeping certain records (R.C.
317.08), recording certified matter in reference to bankruptcy (R.C. 317.10),
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indorsing the date, precise time of presentation, and file number of deeds or other
written instruments that are required or authorized by statute to be recorded and
that are presented to the recorder for that purpose (R.C. 317.13), making and
keeping up direct and reverse indexes of the names of parties to instruments
received for record (R.C. 317.18), and keeping a daily register of deeds and
mortgages (R.C. 317.19).
{¶ 37} R.C. 317.13(B) authorizes county recorders, within their
discretion, to “refuse to record an instrument of writing presented to the recorder
for recording if the instrument is not required or authorized by the Revised Code
to be recorded or the recorder has reasonable cause to believe the instrument is
materially false or fraudulent.” R.C. 317.112 and 317.114 set forth certain
standards for instruments presented to county recorders for recording and impose
various duties on recorders should those standards not be met.
{¶ 38} The instruments that the county recorder’s office electronically
records and places into the office’s computer system reflect the office’s
compliance with its many statutory duties and its exercise of discretion over the
recording process. The electronic records thus manifestly document the
organization, functions, policies, decisions, operations, or other activities of the
recorder’s office. Without these recorded instruments, the recorder’s office could
not perform its preeminent functions. In fact, the chief of staff of the recorder’s
office acknowledged that providing copies of recorded instruments to the public is
a primary function of the office.
{¶ 39} The fiscal officer’s reliance on a Pennsylvania appellate court case
to argue otherwise is unpersuasive. Inkpen v. Roberts, 862 A.2d 700(Pa.Commw.2004). In Inkpen, the intermediate appellate court held that deeds
and mortgages were not public records under the Pennsylvania Right-to-Know
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Act, but the definition of “public record” in that statute is significantly more
limited than the definition of “records” in the Ohio Public Records Act.1
{¶ 40} Notably, we are not addressing the issue of personally identifiable
information in the requested electronically recorded instruments here. Compare
Johnson, 106 Ohio St.3d 160, 2005-Ohio-4384, 833 N.E.2d 274, syllabus (home
addresses of state employees are not records for purposes of R.C. 149.43); State
ex rel. McCleary v. Roberts, 88 Ohio St.3d 365, 370, 725 N.E.2d 1144 (2000)
(personal information regarding children who used city’s recreational facilities
was not “record” subject to R.C. 149.43); see R.C. 317.082 (requiring that
preparers of documents to be recorded not include personal information in the
documents).
{¶ 41} Therefore, the written instruments electronically recorded by the
recorder’s office are records under R.C. 149.011(G) and 149.43, the Public
Records Act. By so holding, we accord the applicable definition of “records” in
R.C. 149.011(G) the breadth that the General Assembly intended and thereby
further the essential purpose of Ohio’s Public Records Act—that the public be
informed and be able to scrutinize and monitor the government’s work and
decisions. See generally Kish, 109 Ohio St.3d 162, 2006-Ohio-1244, 846 N.E.2d
811, ¶ 15-20.
Applicable Fee for Copies of Electronically Recorded Instruments
{¶ 42} The fiscal officer next asserts that relators are required to pay $2
per digital image of each page of the requested electronically recorded documents
from July and August 2010, which would result in Data Trace and Property
1. Title 65, Section 66.1 of the Pennsylvania Statutes defines a public record as “[a]ny account,
voucher or contract dealing with the receipt or disbursement of funds by an agency or its
acquisition, use or disposal of services or of supplies, materials, equipment or other property and
any minute, order or decision by an agency fixing the personal or property rights, privileges,
immunities, duties or obligations of any person or group of persons.”
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Insight paying $208,564 each for the 104,282 pages of recorded instruments
requested.
{¶ 43} In general, “R.C. 149.43(B)(1) provides that copies of public
records shall be made available ‘at cost.’ ” State ex rel. Slagle v. Rogers, 103
Ohio St.3d 89, 2004-Ohio-4354, 814 N.E.2d 55, ¶ 5; R.C. 149.43(B)(1) (“upon
request, a public office or person responsible for public records shall make copies
of the requested public record available at cost”). This means actual cost and
does not include labor costs for employee time to respond to the request and make
the copies. See State ex rel. Warren Newspapers, Inc. v. Hutson, 70 Ohio St.3d
619, 625-626, 640 N.E.2d 174 (1994), citing State ex rel. Bonnell v. Cleveland,
8th Dist. No. 64854, 1993 WL 335426 (Aug. 26, 1993) (court relied on stipulated
evidence regarding actual per-page copying costs consisting of costs of toner,
paper, and copying time).
{¶ 44} Relators claim that the requested CDs containing copies of
electronically recorded instruments from July and August 2010 would likely have
an actual cost of no more than $1 per CD and that they should pay this fee under
R.C. 149.43(B).
{¶ 45} The fiscal officer counters that R.C. 317.32 controls the cost of the
requested copies. Subsection (I) of R.C. 317.32 provides that the county recorder
shall charge $2 per page for photocopying a recorded document:
The county recorder shall charge and collect the following
fees, to include base fees for the recorder’s services and housing
trust fund fees * * *:
***
(I) For photocopying a document, other than at the time of
recording and indexing as provided for in division (A) of this
section, a base fee of one dollar and a housing trust fund fee of one
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dollar per page, size eight and one-half inches by fourteen inches,
or fraction thereof.
{¶ 46} In determining which statutory cost provision applies for the
requested copies of electronically recorded documents, the fiscal officer claims
that the more specific provision that applies to fees charged by county recorders
for photocopying a recorded document—R.C. 317.32(I)—prevails over the more
general public-records provision—R.C. 149.43(B)(1).
{¶ 47} R.C. 1.51 provides:
If a general provision conflicts with a special or local
provision, they shall be construed, if possible, so that effect is
given to both. If the conflict between the provisions is
irreconcilable, the special or local provision prevails as an
exception to the general provision, unless the general provision is
the later adoption and the manifest intent is that the general
provision prevail.
{¶ 48} “When two statutory provisions are alleged to be in conflict, R.C.
1.51 requires us to construe them, where possible, to give effect to both.”
(Emphasis sic.) Gahanna-Jefferson Local School Dist. Bd. of Edn. v. Zaino, 93
Ohio St.3d 231, 234, 754 N.E.2d 789 (2001). “ ‘Only where the conflict is
deemed irreconcilable does R.C. 1.51 mandate that one provision shall prevail
over the other.’ ” (Emphasis sic.) Id., quoting United Tel. Co. of Ohio v.
Limbach, 71 Ohio St.3d 369, 372, 643 N.E.2d 1129 (1994).
{¶ 49} In assessing whether there is a conflict between R.C. 317.32(I) and
149.43(B)(1), we must determine the meaning of the word “photocopy” because
the special fee provision in R.C. 317.32(I) applies only to “photocopying a
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document” that has been recorded in a county recorder’s office. “In order to
understand a particular word used in a statute, a court is to read it in context and
construe it according to the rules of grammar and common usage. R.C. 1.42. If,
as here, a term is not defined in the statute, it should be accorded its plain and
ordinary meaning.” Rhodes v. New Philadelphia, 129 Ohio St.3d 304, 2011-
Ohio-3279, 951 N.E.2d 782, ¶ 17.
{¶ 50} The plain and ordinary meaning of “photocopy” is “a negative or
positive photographic reproduction of graphic matter (as a drawing or printing),”
and the common definition of “photograph” is “a picture, image, or likeness
obtained by photography.” Webster’s Third New International Dictionary 1702
(1986).
{¶ 51} In addition, relators’ expert, Peter Shulman, an assistant professor
of history at Case Western Reserve University, provided uncontroverted evidence
that the modern meaning of photocopying emphasizes xerography—a process
originally called electron photography. According to Professor Shulman, this
process consists of the following five steps: (1) a special plate is charged with
static electricity, (2) once the plate is charged, the document to be copied is placed
above it, a light projects an image of the document onto the plate, and the charge
drains away from the plate except in places where the ink on the document was
projected, (3) a dry ink called toner is dusted over the selectively charged plate so
that the toner forms an image of the document to be copied atop the charged plate,
(4) a blank sheet of paper receives the duplicated image, and (5) the duplicated
document is heated to fuse or melt the toner to the paper, creating a permanent
copy, and the charged plate is wiped clean of the charge and residual toner.
Photocopying relies on copying physical pages one at a time.
{¶ 52} By contrast, copying electronic images of recorded documents
onto a CD involves no photography or xerography and is done through stored
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computer memory, and the data is stored not in terms of “pages” but in terms of
sequences of 1s and 0s. No paper is involved in the process.
{¶ 53} Therefore, the plain meaning of “photocopying” does not
encompass relators’ requests that the fiscal officer copy onto a CD electronically
recorded instruments. There is no conflict, much less an irreconcilable one,
between R.C. 317.32(I) and 149.43(B)(1) for the requested records. In cases in
which photocopying physical pages of recorded documents is requested, a county
recorder shall charge $2 per page. R.C. 317.32(I). In cases in which CDs
containing electronically recorded documents are requested, the county recorder
shall charge the actual cost of the copies. R.C. 149.43(B)(1). We reached a
similar result in Slagle, 103 Ohio St.3d 89, 2004-Ohio-4354, 814 N.E.2d 55, in
which we held that R.C. 2301.24 superseded the “at cost” provision of R.C.
149.43(B)(1) for copies of transcripts of court proceedings, but not for audiotapes
of those proceedings. By so construing these provisions, we give effect to both.
{¶ 54} The fiscal officer next relies on R.C. 9.01 to equate electronically
copying recorded documents with photocopying for purposes of charging relators
$2 per digital image of each page under R.C. 317.32(I).
{¶ 55} R.C. 9.01 provides:
When any officer, office, court, commission, board,
institution, department, agent, or employee of the state, of a
county, or of any other political subdivision who is charged with
the duty or authorized or required by law to record, preserve, keep,
maintain, or file any record, document, plat, court file, paper, or
instrument in writing, or to make or furnish copies of any of them,
deems it necessary or advisable, when recording or making a copy
or reproduction of any of them or of any such record, for the
purpose of recording or copying, preserving, and protecting them,
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reducing space required for storage, or any similar purpose, to do
so by means of any photostatic, photographic, miniature
photographic, film, microfilm, or microphotographic process, or
perforated tape, magnetic tape, other magnetic means, electronic
data processing, machine readable means, or graphic or video
display, or any combination of those processes, means, or displays,
which correctly and accurately copies, records, or reproduces, or
provides a medium of copying, recording, or reproducing, the
original record, document, plat, court file, paper, or instrument in
writing, such use of any of those processes, means, or displays for
any such purpose is hereby authorized. Any such records, copies,
or reproductions may be made in duplicate, and the duplicates shall
be stored in different buildings. The film or paper used for a
process shall comply with the minimum standards of quality
approved for permanent photographic records by the national
bureau of standards. All such records, copies, or reproductions
shall carry a certificate of authenticity and completeness, on a form
specified by the director of administrative services through the
state records program.
Any such officer, office, court, commission, board,
institution, department, agent, or employee of the state, of a
county, or of any other political subdivision may purchase or rent
required equipment for any such photographic process and may
enter into contracts with private concerns or other governmental
agencies for the development of film and the making of
reproductions of film as a part of any such photographic process.
When so recorded, or copied or reproduced to reduce space
required for storage or filing of such records, such photographs,
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microphotographs, microfilms, perforated tape, magnetic tape,
other magnetic means, electronic data processing, machine
readable means, graphic or video display, or combination of these
processes, means, or displays, or films, or prints made therefrom,
when properly identified by the officer by whom or under whose
supervision they were made, or who has their custody, have the
same effect at law as the original record or of a record made by
any other legally authorized means, and may be offered in like
manner and shall be received in evidence in any court where the
original record, or record made by other legally authorized means,
could have been so introduced and received. Certified or
authenticated copies or prints of such photographs,
microphotographs, films, microfilms, perforated tape, magnetic
tape, other magnetic means, electronic data processing, machine
readable means, graphic or video display, or combination of these
processes, means, or displays, shall be admitted in evidence
equally with the original.
(Emphasis added.)
{¶ 56} The fiscal officer’s contention lacks merit. He relies on the
sentence specifying that copies shall have “the same effect at law” as the original
record. But R.C. 9.01 merely provides that a copy of a recorded document shall
“have the same effect at law as the original record or of a record made by any
other legally authorized means, and may be offered in like manner and shall be
received in evidence in any court where the original record, or record made by
other legally authorized means, could have been so introduced and received.”
The manifest meaning of this provision is that copies of recorded documents have
the same substantive legal effect as the original recorded document regardless of
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January Term, 2012
the medium in which the copy is made. This provision does not cover the price a
county recorder may charge for an electronic copy of a recorded instrument.
{¶ 57} The fiscal officer relies on a 1933 attorney general opinion to
support his interpretation of R.C. 9.01 and 317.32(I). 1933 Ohio Atty.Gen.Ops.
No. 167. But “Attorney General opinions are not binding on courts; at best, they
are persuasive authority.” State ex rel. Van Dyke v. Pub. Emps. Retirement Bd.,
99 Ohio St.3d 430, 2003-Ohio-4123, 793 N.E.2d 438, ¶ 40. In the opinion, the
attorney general ruled that the photostatic or photographic process authorized by
G.C. 32-1, a predecessor statute to R.C. 9.01, was included in the term “printing”
as used in G.C. 2778, a predecessor statute to R.C. 317.32. That opinion,
however, recognized that the common dictionary definition of “printing” in G.C.
2778 included the photostatic or photographic process. Id. at 196. By contrast,
the definition of “photocopying” in R.C. 317.32(I) does not include electronically
copying documents.
{¶ 58} In addition, the opinion addressed the fee charged for recording
documents and not the fee for copying recorded documents.
{¶ 59} Further, the sentence in R.C. 9.01 that confers the “same effect at
law” and that the fiscal officer relies on was not included in the version of G.C.
32-1 construed by the attorney general in 1933 Ohio Atty.Gen.Ops. No. 167. 113
Ohio Laws 773.
{¶ 60} In fact, in more recent opinions, the attorney general has not cited
1933 Ohio Atty.Gen.Ops. No. 167 and has instead adopted a strict construction of
when the R.C. 317.32(I) fee of $2 per page for photocopying a recorded document
is applicable. 2004 Ohio Atty.Gen.Ops. No. 2004-033, syllabus (“A county
recorder who makes available in her office a photocopying machine for use by the
public may not charge the two dollar per page fee set forth in R.C. 317.32(I)
where the photocopier is operated by the public without the assistance of the
recorder or her staff. The recorder is, instead, subject to R.C. 149.43(B), which
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requires a public office to provide copies of public records ‘at cost’ ”); 2004 Ohio
Atty.Gen.Ops. No. 2004-011, paragraph one of the syllabus (“R.C. 317.32(I) does
not require or authorize a county recorder to impose the fees described therein
upon a member of the public who is using a digital camera or other equipment to
make copies of documents in the recorder’s office, where the equipment is not
provided by the county recorder. R.C. 149.43 requires a county recorder to make
the public records he maintains available for inspection, without charge, to
members of the public, including those that bring their own equipment to make
copies of the records they inspect”); 2000 Ohio Atty.Gen.Ops. No. 2000-046,
paragraph three of the syllabus (“A county recorder may not charge and collect
the fee prescribed by R.C. 317.32(I) for photocopying a document when a person
accesses an indexed public record by way of the Internet and prints a copy of the
record on a computer printer that the recorder neither operates nor maintains”);
1994 Ohio Atty.Gen.Ops. No. 94-006, paragraph three of the syllabus (“If a
person requests copies of public records stored by the county recorder on
microfiche or film, R.C. 149.43(B) requires the county recorder to make available
in the same medium a copy of the portions of the microfiche or film containing
those public records, * * * if the person assumes the expense of making a copy in
that medium, in lieu of the photocopying fee prescribed by R.C. [317.32(I)]”).
{¶ 61} Finally, this result is consistent with the practice of most county
recorders’ offices in Ohio. In March and April 2011, a witness for relators asked
each of the remaining 87 county recorders’ offices to provide him with a CD
containing copies of instruments recorded on August 25, 2010. Sixty of those
counties complied with the requests, and they charged him fees ranging from $1
to $20 per compact disc. Only one county requested that he pay $2 per page for
paper copies of the requested records. Cuyahoga County thus appears to be an
outlier in requiring the $2 per page fee for electronic records of recorded
instruments.
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January Term, 2012
{¶ 62} Therefore, relators are entitled to copies of the requested
electronically recorded documents for July and August 2010 at actual cost rather
than the fee of $2 per page in R.C. 317.32(I) for photocopies. Because relators
claim that the actual cost is no more than $1 per CD, and the fiscal officer did not
submit evidence establishing a different actual cost, relators are entitled to the
requested records at that cost.
Electronic Copies of Master CDs
{¶ 63} Insofar as relators now claim that they are entitled to copies of the
recorder’s office’s master CDs of the instruments recorded in July and August
2010, “ ‘it 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.
Taxpayers Coalition v. Lakewood, 86 Ohio St.3d 385, 391, 715 N.E.2d 179(1996), quoting State ex rel. Fant v. Tober, 8th Dist. No. 63737, 1993 WL
173743, *1 (May 20, 1993), affirmed, 68 Ohio St.3d 117, 623 N.E.2d 1202(1993). In addition, “ ‘R.C. 149.43(C) requires a prior request as a prerequisite to
a mandamus action.’ ” Am. Civ. Liberties Union of Ohio, 128 Ohio St.3d 256,
2011-Ohio-625, 943 N.E.2d 553, ¶ 33, quoting Taxpayers Coalition at 390.
{¶ 64} Relators’ October 5, 2010 records requests, which are the subject
of this mandamus case, did not specifically request copies of the recorder’s
office’s master CDs for July and August 2010. Instead, relators requested
electronic copies of all documents publicly recorded in the office for those
months. After relators filed an amended complaint, they informed the fiscal
officer that copies of the master CDs would satisfy their record requests. But
relators never amended their amended complaint to include a request for copies of
the master CDs, and the fiscal officer has not consented to a modification of
relators’ records requests or the relief prayed for in relators’ amended complaint.
Therefore, the fiscal officer need not provide copies of the master CDs to comply
with the relators’ requests at issue in this case.
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SUPREME COURT OF OHIO
{¶ 65} Nevertheless, the fiscal officer could now comply with the requests
by providing copies of the master CDs for July and August 2010, which also
constitute records subject to the Public Records Act. See R.C. 149.011(G); State
ex rel. Margolius v. Cleveland, 62 Ohio St.3d 456, 459, 584 N.E.2d 665 (1992)
(“a compilation of information gathered from public records is a separate public
record subject to disclosure under R.C. 149.43”), citing State ex rel. Cincinnati
Post v. Schweikert, 38 Ohio St.3d 170, 527 N.E.2d 1230 (1988). The master CDs
document the daily procedure and operation of the recorder’s office of making
backup copies of digital images of all instruments recorded every day on compact
discs. And notwithstanding the fiscal officer’s assertion, he has not established
that the master CDs constitute security records, as defined in R.C. 149.433(A)(3),
which would be exempt from disclosure. See R.C. 149.433(B); see generally
State ex rel. Cincinnati Enquirer v. Jones-Kelley, 118 Ohio St.3d 81, 2008-Ohio-
1770, 886 N.E.2d 206, paragraph two of the syllabus.
{¶ 66} As relators ultimately acknowledge, “it really doesn’t matter
whether the [fiscal officer or recorder’s office] dubs [the] master CDs to comply
with relators’ requests, which takes only a few minutes, or chooses to copy digital
deeds directly from its server to a CD, which takes longer.” See R.C.
149.43(B)(6) (“The public office or the person responsible for the public record
shall permit that person to choose to have the public record duplicated upon
paper, upon the same medium upon which the public office or person responsible
for the public record keeps it, or upon any other medium upon which the public
office or person responsible for the public record determines that it reasonably can
be duplicated as an integral part of the normal operations of the public office or
person responsible for the public record”).
Public-Records Policy
{¶ 67} Relators request that the fiscal officer amend the recorder’s
office’s public-records policy so that the recorder’s office returns to the policy in
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January Term, 2012
effect when former recorder Greene was deposed, which specified a charge of $1
per compact disc for downloaded computer files.
{¶ 68} Under R.C. 149.43(E)(1), “all public offices shall adopt a public
records policy in compliance with this section for responding to public records
requests.” See also State ex rel. Morgan v. Strickland, 121 Ohio St.3d 600, 2009-
Ohio-1901, 906 N.E.2d 1105, ¶ 11. Cuyahoga County adopted a new public-
records policy in January 2011, which the fiscal officer claims superseded the
recorder’s office’s policy that relators contest here. Relators do not claim
otherwise. Because the policy adopted by the Cuyahoga County Council in 2011
does not have the same defect regarding the charge for electronic copies that was
contained in the recorder’s office policy they contested, relators are not entitled to
a writ of mandamus to compel the fiscal officer to amend a policy that, evidently,
no longer exists.
Attorney Fees and Statutory Damages
{¶ 69} Relators request an award of attorney fees and statutory damages.
Although relators requested attorney fees and statutory damages in their amended
complaint and reiterated their request in the conclusion of their merit briefs, they
included no separate argument in either brief concerning their request. Relators
thus waived this claim. Mun. Constr. Equip. Operators’ Labor Council, 114 Ohio
St.3d 183, 2007-Ohio-3831, 870 N.E.2d 1174, at ¶ 83 (relators in mandamus case
waived claim for attorney fees by not including any argument in support of claim
in merit brief).
{¶ 70} Moreover, even if waiver did not apply, relators are not entitled to
statutory damages, because they did not transmit their October 5, 2010 records
requests “by hand delivery or certified mail,” as required by R.C. 149.43(C)(1).
See State ex rel. Mahajan v. State Med. Bd. of Ohio, 127 Ohio St.3d 497, 2010-
Ohio-5995, 940 N.E.2d 1280, ¶ 59.
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Conclusion
{¶ 71} Based on the foregoing, we grant a writ of mandamus to compel
the Cuyahoga County fiscal officer to provide to relators copies of electronic
images of all documents recorded in the Cuyahoga County Recorder’s Office in
July and August 2010 on compact discs at a cost of $1 per disc. Because the
county’s existing public-records policy does not violate the requirement to charge
the actual cost of these records, however, we deny the writ of mandamus insofar
as it seeks to amend a policy that is no longer effective. By so holding, we
recognize that the Public Records Act “protects the general right of the people of
Ohio to monitor the decisions of their own government through the more specific
right to freely access public records.” Rhodes, 129 Ohio St.3d 304, 2011-Ohio-
3279, 951 N.E.2d 782, ¶ 19.
Writ granted in part
and denied in part.
O’CONNOR, C.J., and PFEIFER, LUNDBERG STRATTON, O’DONNELL,
LANZINGER, CUPP, and MCGEE BROWN, JJ., concur.
__________________
Baker & Hostetler, L.L.P., David Marburger, Michael Mumford, and John
Blanton, for relators.
McDonald Hopkins, L.L.C., David T. Movius, and Matthew J. Cavanagh,
for respondent.
Lucy A. Dalglish, urging granting of the writ for amicus curiae Reporters
Committee for Freedom of the Press.
Zeiger, Tigges & Little, L.L.P., Marion H. Little Jr., and Kris Banvard,
urging granting of the writ for amicus curiae Ohio Land Title Association.
Graydon, Head & Ritchey, L.L.P., and John C. Greiner, urging granting of
the writ for amicus curiae Ohio Newspaper Association.
______________________
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