State ex rel. Parker Bey v. Byrd (Slip Opinion) , 2020 Ohio 2766 ( 2020 )

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
ex rel. Parker Bey v. Byrd, Slip Opinion No. 2020-Ohio-2766.]
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. 2020-OHIO-2766
THE STATE EX REL. PARKER BEY, APPELLANT, v. BYRD, CLERK OF COURTS,
APPELLEE.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as State ex rel. Parker Bey v. Byrd, Slip Opinion No.
2020-Ohio-2766.]
Mandamus—Public-records requests—Court of appeals erred in denying
complaint on grounds that it did not invoke Sup.R. 44 through 47 as basis
for request for court records—Generally, it is not necessary to cite a
particular rule or statute in support of a public-records request until
requester attempts to satisfy more demanding standard applicable when
seeking writ of mandamus to compel compliance with request—State ex rel.
Husband v. Shanahan overruled to extent it conflicts with this decision—
Unlike case documents, administrative documents are subject to Sup.R. 44
through 47 regardless of when created—Judgment affirmed in part and
reversed in part, and cause remanded for court of appeals to apply Public
Records Act, R.C. 149.43, to determine whether requester is entitled to writ
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of mandamus to compel clerk of courts to produce requested journal entries
and whether requester is entitled to statutory damages and court costs.
(No. 2019-0547—Submitted October 2, 2019—Decided May 5, 2020.)
APPEAL from the Court of Appeals for Cuyahoga County, No. 107909,
2019-Ohio-800.
________________
O’CONNOR, C.J.
{¶ 1} Appellant, Vincent A. Parker, a.k.a. Vincent El Alan Parker Bey,
appeals the judgment of the Eighth District Court of Appeals denying his complaint
for a writ of mandamus to compel appellee, Nailah K. Byrd, the Cuyahoga County
Clerk of Courts, to produce various court records and denying Byrd’s request that
Parker Bey be declared a vexatious litigator. We affirm in part and reverse in part
the Eighth District’s judgment, and we remand the case for further proceedings
consistent with this opinion.
FACTS AND PROCEDURAL HISTORY
{¶ 2} Parker Bey is incarcerated at the Trumbull Correctional Institution.
In September 2018, he sent two records requests to Byrd by certified mail. In the
first, Parker Bey asked for a copy of a single journal entry from his 1995 criminal
case. In the second, he requested copies of three additional journal entries from the
1995 case, as well as a copy of the clerk of courts’ records-retention schedule. Byrd
did not respond to the first request and provided only one of the journal entries
sought in Parker Bey’s second request.
{¶ 3} On November 16, 2018, Parker Bey filed a complaint for a writ of
mandamus in the court of appeals. Citing the Public Records Act, R.C. 149.43, he
sought an order compelling Byrd to provide copies of the remaining three journal
entries and a copy of the clerk of courts’ records-retention schedule. He also
requested court costs and statutory damages.
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{¶ 4} Byrd moved for summary judgment, arguing that as a matter of law
under R.C. 149.43(B), she had no duty to provide the requested records to Parker
Bey. Byrd’s motion also requested that Parker Bey be declared a vexatious
litigator. On January 2, 2019, the court of appeals denied summary judgment,
noting that a week after Byrd filed her motion, this court held in State ex rel. Harris
v. Pureval, 155 Ohio St. 3d 343, 2018-Ohio-4718, 121 N.E.3d 337, ¶ 10, that the
Public Records Act did not apply to an inmate’s request for court records.
However, the court allowed Byrd to file a supplemental brief.
{¶ 5} In her supplemental brief, Byrd argued that pursuant to Harris, the
Rules of Superintendence govern Parker Bey’s request for court records. Because
Parker Bey seeks relief under R.C. 149.43, Byrd denied any obligation to produce
the records. Nonetheless, Byrd attached copies of two of the requested records to
her brief and averred that the other two records do not exist.
{¶ 6} Parker Bey filed a motion to strike Byrd’s supplemental brief on the
grounds that Byrd had not served him with a copy.1 The court of appeals denied
the motion.
{¶ 7} On March 6, 2019, the court of appeals denied Parker Bey’s request
for mandamus relief. The court noted that the Rules of Superintendence, not the
Public Records Act, apply when an inmate seeks court records and concluded that
Byrd therefore has no clear legal duty to provide the requested records under R.C.
149.43. The appeals court declined to declare Parker Bey a vexatious litigator.
{¶ 8} Parker Bey timely appealed, and the matter is fully briefed. In her
merit brief, Byrd asks this court to impose sanctions on Parker Bey and to declare
him a vexatious litigator, pursuant to S.Ct.Prac.R. 4.03(B) and R.C. 2323.52.
1. Because Parker Bey claims that Byrd never served him with a copy of the supplemental brief, it
is unclear whether Parker Bey received copies of the records that Byrd attached to the brief.
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ANALYSIS
Parker Bey’s propositions of law
{¶ 9} We consider Parker’s Bey’s propositions of law out of order for ease
of analysis.
The third proposition of law
{¶ 10} As his third proposition of law, Parker Bey argues that under R.C.
149.43, he is entitled to the requested records and to statutory damages and court
costs.
The journal entries
{¶ 11} Parker Bey seeks access to three journal entries from his criminal
case, which commenced in 1995. Mandamus is the appropriate remedy by which
to compel compliance with the 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. The Eighth District denied Parker
Bey’s request because it was made pursuant to the Public Records Act, not the
Rules of Superintendence. However, Sup.R. 47(A)(1) states, “Access to case
documents in actions commenced prior to July 1, 2009, shall be governed by federal
and state law.” (Emphasis added.) Journal entries are case documents. See Sup.R.
44(C)(1); State ex. rel. Fernbach v. Brush, 133 Ohio St. 3d 151, 2012-Ohio-4214,
976 N.E.2d 889, ¶ 2. And Parker Bey’s case commenced prior to July 1, 2009.
Accordingly, this action to compel the production of journal entries from a 1995
case was properly brought under the Public Records Act.
{¶ 12} We have previously recognized that Sup.R. 44 through 47, the
public-access provisions of the Rules of Superintendence, apply only to case
documents in cases commenced on or after July 1, 2009. In State ex rel. Striker v.
Smith, 129 Ohio St. 3d 168, 2011-Ohio-2878, 950 N.E.2d 952, ¶ 21, fn. 2, this court
refused to apply Sup.R. 44 through 47, stating, “This case, which challenges the
alleged refusal of a municipal court clerk to timely provide copies of case
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documents, involves a 2008 request for records from a case that was commenced
in 2006. Sup.R. 44 through 47 became effective on July 1, 2009. Therefore, under
Sup.R. 47(A)(1), the court’s public-access superintendence rules are inapplicable
to [the appellant’s] records request.” See also State ex rel. Cincinnati Enquirer v.
Lyons, 140 Ohio St. 3d 7, 2014-Ohio-2354, 14 N.E.3d 989, ¶ 11, fn. 2 (lead opinion)
(relator properly invoked Public Records Act in 2013 mandamus action seeking
documents in actions commenced before July 1, 2009).
{¶ 13} Accordingly, we hold that the court of appeals erred in denying
Parker Bey’s complaint on the grounds that he did not invoke the Superintendence
Rules as the basis for his request. On remand, the court of appeals shall apply the
Public Records Act to determine whether Parker Bey is entitled to a writ of
mandamus to compel Byrd to produce the requested journal entries and whether
Parker Bey is entitled to statutory damages and court costs.
{¶ 14} Both the public-access provisions of the Rules of Superintendence
and the Public Records Act favor open access to records. See Sup.R. 45(A) (“Court
records are presumed open to public access”); State ex rel. Cincinnati Enquirer v.
Hamilton Cty., 75 Ohio St. 3d 374, 376, 662 N.E.2d 334 (1996) (“R.C. 149.43 is
construed liberally in favor of broad access, and any doubt is resolved in favor of
disclosure of public records”). Neither the statute nor the rules require a requester
to identify the legal authority providing a basis for the request when requesting a
record, and records that are open to the public should be reasonably provided. See
Sup.R. 45(B)(1) (“A court or clerk of court shall make a court record available by
direct access, promptly acknowledge any person’s request for direct access, and
respond to the request within a reasonable amount of time”); accord R.C.
149.43(B)(1) (“[u]pon request * * *, all public records responsive to the request
shall be promptly prepared and made available for inspection”). Generally, it is not
necessary to cite a particular rule or statute in support of a records request until the
requester attempts to satisfy the more demanding standard applicable when
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claiming that he is entitled to a writ of mandamus to compel compliance with the
request.
{¶ 15} To the extent that this decision conflicts with this court’s decision in
State ex rel. Husband v. Shanahan, 157 Ohio St. 3d 148, 2019-Ohio-1853, 133
N.E.3d 467, we overrule that decision as having been incorrectly decided and
inconsistent with the clear terms of the Rules of Superintendence. Moreover, we
acknowledge that certain language in Harris, 155 Ohio St. 3d 343, 2018-Ohio-4718,
121 N.E.3d 337, may have led to the Eighth District’s misapplication of the
Superintendence Rules in this case. In Harris, we cited the July 1, 2009 effective
date of Sup.R. 44 through 47 as support for the conclusion that the Public Records
Act did not apply. Id. at ¶ 10. In that case, however, the relator was seeking
certificates of assignment from his 1991 criminal case. Id. at ¶ 4. Although those
documents were created before Sup.R. 44 through 47 became effective, there was
no reason to conclude in that case that the certificates at issue—if they existed at
all—were “case documents” under Sup.R. 44(C) rather than “administrative
documents” under Sup.R. 44(G).2 See Sup.R. 44(G)(1) (defining “administrative
document” as including documents “created, received, or maintained by a court that
serves to record the administrative, fiscal, personnel, or management functions,
policies, decisions, procedures, operations, organization, or other activities of the
court”). Unlike case documents, administrative documents are subject to Sup.R.
44 through 47 regardless of when the documents were created. See Sup.R.
47(A)(2). Accordingly, we correctly applied the Superintendence Rules to the
documents at issue in Harris.
The records-retention schedule
{¶ 16} Parker Bey also requested the Cuyahoga County clerk of courts’
records-retention schedule. Byrd stated in her supplemental brief filed in the court
2. The documents had not been journalized as entries in the 1991 criminal case.
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of appeals that she had no record of Parker Bey’s request, but she nonetheless
served the schedule on Parker Bey, as reflected by the certificate of service that
accompanied the filing. See Civ.R. 5(B)(2); see also Davis v. Immediate Med.
Servs., Inc., 80 Ohio St. 3d 10, 15, 684 N.E.2d 292 (1997). Parker Bey contends
that he never received the document. Because Byrd has made clear that she is
willing to provide Parker Bey with a copy of the retention schedule, there is no
legal dispute here concerning whether Parker Bey is entitled to that record. As a
matter of courtesy, Byrd should send Parker Bey a new copy of the retention
schedule.
Concerns raised in the separate opinions
{¶ 17} This court is remanding this case to the court of appeals to apply the
Public Records Act, and nothing in our decision exempts court records from
disclosure or denies a right to court records. Sup.R. 45(A) states that “[c]ourt
records are presumed open to public access.” Sup.R. 44 recognizes that state or
federal law—such as the Public Records Act—may exempt a record from
disclosure. Sup.R. 44(C)(2)(a) and (G)(2)(a). And Sup.R. 47(B) states that
mandamus relief is available to someone aggrieved by the failure of a court or clerk
of court to comply with the public-access provisions of the Rules of
Superintendence. Requiring those seeking court records and court administrators
responding to such requests to comply with the public-access provisions of the
Rules of Superintendence when appropriate is hardly equivalent to this court’s
exempting itself from the Ohio Civil Rights Act, as the second separate opinion
argues. Ultimately, the public-access provisions of the Rules of Superintendence
and the Public Records Act can function harmoniously. To the extent that the
separate opinions are concerned with the scope or impact of the rules, a rule change,
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if found to be worthwhile, may be proposed, submitted for public comment, and
vetted for approval.3
{¶ 18} It is true that “the clerk is without discretion to disregard a statutory
mandate,” opinion of Kennedy, J., concurring in judgment only in part and
dissenting in part at ¶ 31, and compliance with the public-access provisions of the
Rules of Superintendence does nothing to upset that duty. Speculation about
contrived conflicts does nothing to further the law regarding open access to court
documents. The presumptions of open access in the Public Records Act and the
public-access provisions of the Rules of Superintendence function together in the
sphere of the judicial branch to address the particularized needs of the court and
parties that access the courts.
The first proposition of law
{¶ 19} In support of his first proposition of law, Parker Bey claims that the
court of appeals’ entry denying summary judgment improperly fails to note that
Byrd had filed a summary-judgment motion and that the entry lacks findings of fact
and conclusions of law. But the court of appeals’ entry states that “[r]espondent’s
3. The extensive public input and time involved in developing the public-access provisions of the
Superintendence Rules were described as follows:
The rules were designed by the Supreme Court Commission on the Rules
of Superintendence, chaired by Justice Judith Ann Lanzinger, and based in part
on the report and recommendations of the Privacy and Public Access
Subcommittee of the Supreme Court’s Advisory Committee on Technology and
the Courts, a subcommittee that included members of the public and the media.
The rules were published over the course of two years. More than 70
individuals and organizations participated in the extensive public comment
periods, including the American Civil Liberties Union of Ohio, the Cleveland Bar
Association, the Legal Aid Society of Southwest Ohio, the Ohio Judicial
Conference and the Ohio State Bar Association. The commission revised and
improved the rules after careful consideration of all comments.
Public access rules in effect: Court offers training, Web page for local authorities, 82 Ohio State
Bar Assn. Report 636, 638 (2009).
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motion for summary judgment is denied,” and a court of appeals is not required to
issue findings of fact and conclusions of law when ruling on a summary-judgment
motion, Civ.R. 52; Maddox v. E. Cleveland, 8th Dist. Cuyahoga No. 96390, 2012-
Ohio-9, ¶ 23.
The second proposition of law
{¶ 20} Parker Bey’s second proposition of law asserts that the court of
appeals should have granted his motion to strike Byrd’s supplemental brief because
she failed to serve him with a copy of the brief. We will not reverse a court’s denial
of a motion to strike on appeal absent an abuse of discretion. State ex rel. Mora v.
Wilkinson, 105 Ohio St. 3d 272, 2005-Ohio-1509, 824 N.E.2d 1000, ¶ 10. Here,
Parker Bey fails to explain how the court of appeals’ denial of his motion was
“unreasonable, arbitrary, or unconscionable,” State ex rel. Cassels v. Dayton City
School Dist. Bd. of Edn., 69 Ohio St. 3d 217, 223, 631 N.E.2d 150 (1994). And
Parker Bey’s attempt to prove lack of service by attaching his inmate mail log to
his brief in this court is unavailing. The mail log is not part of the record in this
case, and “[a] party cannot introduce new evidence on appeal,” In re Adoption of
Z.G.A., 2d Dist. Greene No. 2015-CA-51, 2016-Ohio-238, ¶ 29.
Sanctions and vexatious-litigator declaration
{¶ 21} In her brief, Byrd asks us to impose sanctions against Parker Bey
and to declare him a vexatious litigator.
{¶ 22} Under S.Ct.Prac.R. 4.03(A), this court may impose sanctions on a
party if we determine that the party filed an appeal that “is frivolous or is prosecuted
for delay, harassment, or any other improper purpose.” And if a party “habitually,
persistently, and without reasonable cause engages in frivolous conduct under
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division (A),” we may “find the party to be a vexatious litigator.” S.Ct.Prac.R.
4.03(B).4
{¶ 23} Here, there is no evidence that Parker Bey filed this appeal for delay,
harassment, or any other improper purpose, and we do not find that his appeal was
frivolous. An appeal is “considered frivolous if it is not reasonably well-grounded
in fact or warranted by existing law or a good-faith argument for the extension,
modification, or reversal of existing law.” S.Ct.Prac.R. 4.03(A). We decline to
impose sanctions on Parker Bey or to declare him a vexatious litigator, and we
affirm the judgment of the court of appeals as to Byrd’s vexatious-litigator request.
CONCLUSION
{¶ 24} For these reasons, we affirm in part and reverse in part the judgment
of the court of appeals, and we remand the case for further proceedings consistent
with this opinion.
Judgment affirmed in part
and reversed in part,
and cause remanded.
FRENCH, FISCHER, DONNELLY, and STEWART, JJ., concur.
KENNEDY, J., concurs in judgment only in part and dissents in part, with an
opinion.
DEWINE, J., concurs in judgment only in part and dissents in part, with an
opinion.
_________________
4. Byrd also cites R.C. 2323.52 in support of her request that we declare Parker Bey a vexatious
litigator, but that statute governs civil actions to declare a party a vexatious litigator and provides
that such actions must be filed in a common pleas court.
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KENNEDY, J., concurring in judgment only in part and dissenting in
part.
{¶ 25} I disagree with the majority’s conclusions that access to case
documents and administrative records under the control of the clerk of a court of
common pleas are governed by the Rules of Superintendence. The plain and
unambiguous language of R.C. 2303.26 requires the clerk to exercise her powers
and duties pursuant to statutes and the common law. The Rules of Superintendence
are neither a statute nor a product of common law. The Public Records Act, R.C.
149.43, defines “public record” as a record kept by any public office, R.C.
149.43(A)(1), including the clerk’s office, R.C. 149.011(A). Therefore, the clerk
is required to provide access to case documents and administrative records pursuant
to the Public Records Act.
{¶ 26} For this reason, I would overrule our precedent holding that the
Rules of Superintendence govern the people’s right of access to court records. See
State ex rel. Parisi v. Dayton Bar Assn. Certified Grievance Commt., __ Ohio St.3d
__, 2019-Ohio-5157, __ N.E.3d __, ¶ 20; State ex rel. Husband v. Shanahan, 157
Ohio St. 3d 148, 2019-Ohio-1853, 133 N.E.3d 467, ¶ 5; State ex rel. Harris v.
Pureval, 155 Ohio St. 3d 343, 2018-Ohio-4718, 121 N.E.3d 337, ¶ 10-11; State ex
rel. Richfield v. Laria, 138 Ohio St. 3d 168, 2014-Ohio-243, 4 N.E.3d 1040, ¶ 8. I
would therefore reverse the judgment of the Eighth District Court of Appeals and
remand the case to that court to determine whether appellant, Vincent A. Parker,
a.k.a. Vincent El Alan Parker Bey, is entitled to all public records requested but not
produced and whether he is entitled to statutory damages and costs for this writ
action brought due to the clerk’s failure to comply with R.C. 149.43(B).
Accordingly, I concur in judgment only in part and dissent in part.
{¶ 27} Parker Bey made two public-records requests to appellee, Nailah K.
Byrd, the Cuyahoga County Clerk of Courts, seeking judgment entries in his
criminal case as well as the clerk’s records-retention schedule. He contends that
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Byrd failed to respond to the first of those public-records requests within a
reasonable period of time and that she still has not responded to the second request.
The court of appeals denied him a writ of mandamus compelling Byrd to respond
to his request and rejected his claim for statutory damages and costs for Byrd’s
failure to comply with the Public Records Act within a reasonable period of time.
{¶ 28} On appeal to this court, Parker Bey presents a straightforward
argument: the Public Records Act requires the “person responsible” for public
records to make them available on request, R.C. 149.43(B)(1), and pursuant to R.C.
2303.14, the clerk is the “person responsible” for the public records that her office
maintains. He further argues that the clerk’s records-retention schedule “cannot be
obtained through” Sup.R. 44 through 47. Byrd agrees with the appellate court and
argues that the Rules of Superintendence apply.
{¶ 29} Resolving this narrow question—whether the Rules of
Superintendence control the clerk’s duties regarding a public-records request—I
begin in a familiar place: statutory construction. Our duty in construing a statute is
to determine and give effect to the intent of the General Assembly as expressed in
the language it enacted. Griffith v. Aultman Hosp., 146 Ohio St. 3d 196, 2016-Ohio-
1138, 54 N.E.3d 1196, ¶ 18. “Words and phrases shall be read in context and
construed according to the rules of grammar and common usage.” R.C. 1.42.
“When the language of a statute is plain and unambiguous and conveys a clear and
definite meaning, there is no need for this court to apply the rules of statutory
interpretation.” Symmes Twp. Bd. of Trustees v. Smyth, 87 Ohio St. 3d 549, 553,
721 N.E.2d 1057 (2000). “An unambiguous statute is to be applied, not
interpreted.” Sears v. Weimer, 143 Ohio St. 312, 55 N.E.2d 413 (1944), paragraph
five of the syllabus. With this understanding, I turn to the statutes that created the
office of the clerk, as Parker Bey urges us to do.
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I. The Clerk’s Duties Are Controlled by Statute and Common Law
{¶ 30} The General Assembly created the office of the clerk in R.C.
2303.01. R.C. 2303.09 requires the clerk to “file together and carefully preserve in
his office all papers delivered to him for that purpose in every action or
proceeding,” and R.C. 2303.14 directs the clerk to “keep the journals, records,
books, and papers appertaining to the court and record its proceedings.” R.C.
2303.26 provides, “The clerk of the court of common pleas shall exercise the
powers conferred and perform the duties enjoined upon the clerk by statute and by
the common law; and in the performance of official duties the clerk shall be under
the direction of the court [of common pleas].” (Emphasis added.)
{¶ 31} And as a creature of statute, the clerk is without discretion to
disregard a statutory mandate. See Euclid v. Camp Wise Assn., 102 Ohio St. 207,
210, 131 N.E. 349 (1921) (“If the Legislature had the power to create, it had the
power to destroy, and the power to destroy includes the power to burden or regulate
or to impose conditions or restrictions as its judgment shall dictate”). This court
has described the clerk’s authority as “ministerial,” “clerical,” “nonjudicial,” and
without the exercise of discretion or judicial power. State ex rel. Glass v. Chapman,
67 Ohio St. 1, 65 N.E. 154 (1902), syllabus (“ministerial” and “nonjudicial”);
Mellinger v. Mellinger, 73 Ohio St. 221, 227, 76 N.E. 615 (1906) (“clerical”);
Hocking Valley Ry. Co. v. Cluster Coal & Feed Co., 97 Ohio St. 140, 141-142, 119
N.E. 207 (1918) (without the exercise of discretion or judicial power). Therefore,
based on the plain and unambiguous language of R.C. 2303.26, the clerk’s authority
in fulfilling her duties is defined by statute and the common law.
{¶ 32} The Public Records Act requires a “person responsible for public
records” to make copies of requested public records available within a reasonable
period of time. R.C. 149.43(B)(1). The act provides that “public records” are
records kept by a “public office,” R.C. 149.43(A)(1), which “includes any state
agency, public institution, political subdivision, or other organized body, office,
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agency, institution, or entity established by the laws of this state for the exercise of
any function of government,” R.C. 149.011(A). The clerk’s office is therefore a
public office. The Public Records Act also applies to courts, as “state agency” is
defined as including “any court or judicial agency.” R.C. 149.011(B). This court
has held that when a statute imposes a duty on a particular official to oversee
records, that official is the “person responsible” for complying with R.C.
149.43(B). State ex rel. Mothers Against Drunk Drivers v. Gosser, 20 Ohio St. 3d
30, 485 N.E.2d 706 (1985), paragraph two of the syllabus. Under the Public
Records Act, the clerk is therefore the person responsible for the public records she
maintains, including court records. R.C. 2303.09 and 2303.14. And to enforce the
people’s right to access public records, the General Assembly has provided a right
to an award of attorney fees, costs, and statutory damages in the appropriate
circumstances when access has been improperly denied. See R.C. 149.43(C).
{¶ 33} The majority looks first to the Rules of Superintendence in
determining the clerk’s duties regarding a public-records request. Based on the
language of Sup.R. 44(C)(1), the majority concludes that because Parker Bey seeks
documents from a case that commenced prior to July 1, 2009, the Public Records
Act controls. The majority also suggests that because there is no date of
demarcation for administrative records in Sup.R. 44 through 47, the
Superintendence Rules control Parker Bey’s request for a copy of the clerk’s
records-retention schedule. But the majority’s conclusion that the Rules of
Superintendence control the clerk’s duties regarding a public-records request can
be true only if the rules have the force of law comparable to a statute or common
law.
II. The Rules of Superintendence
{¶ 34} Relying on the authority granted by Article IV, Section 5(A)(1) of
the Ohio Constitution to superintend inferior courts, we adopted Sup.R. 44 through
47 to provide public access to court records, effective July 1, 2009. In 2014, this
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court began denying access to court records based on the requester’s mere failure
to allege entitlement to those records under Sup.R. 44 through 47, eventually stating
that the Superintendence Rules are the “sole vehicle” for obtaining court records in
actions commenced after July 1, 2009. Richfield, 138 Ohio St. 3d 168, 2014-Ohio-
243, 4 N.E.3d 1040, at ¶ 8; Harris, 155 Ohio St. 3d 343, 2018-Ohio-4718, 121
N.E.3d 337, at ¶ 10; Husband, 157 Ohio St. 3d 148, 2019-Ohio-1853, 133 N.E.3d
467, at ¶ 5. But see State ex rel. Vindicator Printing Co. v. Wolff, 132 Ohio St. 3d
481, 2012-Ohio-3328, 974 N.E.2d 89, ¶ 1 (explaining that relief rendered pursuant
to the Superintendence Rules made a claim under the Public Records Act moot).
{¶ 35} A closer look at our decisions in Richfield, Harris, and Husband,
however, demonstrates that we did not just wrongly deny the people’s right to
access public records based on hypertechnicalities that demanded more than Ohio’s
notice pleading requires (as explained below in Part III of this opinion). We also
failed to engage in any statutory-construction analysis, instead leaping to the
conclusion that the Superintendence Rules controlled. In doing so, we failed to
appreciate that this court may be abridging the people’s substantive right to access
court records established under the Public Records Act.
{¶ 36} The majority chides me for engaging in “[s]peculation about
contrived conflicts” between the Public Records Act and the Superintendence
Rules. Majority opinion at ¶ 18. However, Parker Bey has laid the matter squarely
at our feet. Just because Byrd failed to address Parker Bey’s statutory argument
and the majority turns a blind eye to it as well does not make his argument an
apparition. Parker Bey hits the nail on the head when, relying on the clerk’s
statutory authority, he argues that the Public Records Act controls the clerk’s duties
and that Sup.R. 44 through 47 cannot apply to the clerk’s records-retention
schedule.
{¶ 37} Article IV, Section 5 of the Ohio Constitution vests this court with
authority to promulgate two types of court rules. First, Section 5(A)(1) states: “In
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addition to all other powers vested by this article in the supreme court, the supreme
court shall have general superintendence over all courts in the state. Such general
superintending power shall be exercised by the chief justice in accordance with
rules promulgated by the supreme court.”
{¶ 38} As commentators have noted, the purpose of this provision was to
remedy case-management problems that had caused backlogs in resolving cases.
Marburger & Idsvoog, Access with Attitude: An Advocate’s Guide to Freedom of
Information in Ohio 151-152 (2011); Milligan & Pohlman, The 1968 Modern
Courts Amendment to the Ohio Constitution, 29 Ohio St.L.J. 811, 821-822 (1968).
Similarly, we have recognized that the Rules of Superintendence “are designed ‘(1)
to expedite the disposition of both criminal and civil cases in the trial courts of this
state, while at the same time safeguarding the inalienable rights of litigants to the
just processing of their causes; and (2) to serve that public interest which mandates
the prompt disposition of all cases before the courts.’ ” State v. Steffen, 70 Ohio
St.3d 399, 409, 639 N.E.2d 67 (1994), quoting State v. Singer, 50 Ohio St. 2d 103,
109-110, 362 N.E.2d 1216 (1977).
{¶ 39} Article IV, Section 5(B) authorizes a second type of court rules: “The
supreme court shall prescribe rules governing practice and procedure in all courts
of the state, which rules shall not abridge, enlarge, or modify any substantive right.
* * * All laws in conflict with such rules shall be of no further force or effect after
such rules have taken effect.” Section 5(B) expressly empowers this court to adopt
procedural rules that supersede the enactments of the General Assembly. Morris v.
Morris, 148 Ohio St. 3d 138, 2016-Ohio-5002, 69 N.E.3d 664, ¶ 30. But the framers
of the Modern Courts Amendment of 1968, which added Section 5(B) to Article
IV, placed two important limitations on our authority to supplant the enactments of
the General Assembly: first, our procedural rules may not abridge, enlarge, or
modify any substantive right; and second, the General Assembly has oversight
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because the legislature by joint resolution may disapprove any proposed procedural
rule prior to its taking effect. See Article IV, Section 5(B), Ohio Constitution.
{¶ 40} In stark contrast, nothing in Article IV, Section 5(A)(1), which
empowers our superintendence over the courts, grants this court a similar power to
preempt the lawful enactments of the legislative branch of government by adopting
a rule under our authority to supervise the lower courts. Unlike Section 5(B),
Section 5(A)(1) does not provide that the Superintendence Rules supersede all laws
that are in conflict with them, nor does it contain any requirement to submit
proposed superintendence rules to the General Assembly for review. Therefore,
the Superintendence Rules do not have the same force of law as our procedural
rules or a statute. Rather, as the preface to the Superintendence Rules explains,
those rules were adopted simply to ensure the “prompt disposition of all causes, at
all times, in all courts of this state.” And importantly, we have described our
superintendence authority as “ensur[ing] that state courts act in compliance and
consistency with the will of the General Assembly.” State v. Smith, 136 Ohio St. 3d
1, 2013-Ohio-1698, 989 N.E.2d 972, ¶ 4, fn. 2.
{¶ 41} Simply put, “[t]he Rules of Superintendence are not designed to alter
basic substantive rights * * *.” Singer, 50 Ohio St. 2d at 110, 362 N.E.2d 1216.
Ohio courts—including every appellate district—have consistently recognized that
the rules adopted pursuant to our supervisory power over lower courts do not
supersede statutes with which they are in conflict and do not create either
substantive rights or procedural law. State v. Ventura, 2016-Ohio-5151, 69 N.E.3d
189, ¶ 24 (1st Dist.); State v. Keeble, 2d Dist. Greene No. 03CA84, 2004-Ohio-
3785, ¶ 17; Larson v. Larson, 3d Dist. Seneca No. 13-11-25, 2011-Ohio-6013,
¶ 13; In re K.W., 2018-Ohio-1933, 111 N.E.3d 368, ¶ 99 (4th Dist.); Sepich v. Bell,
5th Dist. Stark No. CA-7350, 1988 WL 17155, *3 (Feb. 8, 1988); In re T.C., 6th
Dist. Lucas No. L-15-1106, 2015-Ohio-3665, ¶ 21; In re Guardianship of Myers,
7th Dist. Mahoning Nos. 02-CA-6 and 02-CA-42, 2003-Ohio-5308, ¶ 21; In re
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A.P.D., 8th Dist. Cuyahoga No. 100504, 2014-Ohio-1632, ¶ 13; In re Z.H., 2013-
Ohio-3904, 995 N.E.2d 295, ¶ 16 (9th Dist.); Myers v. Wade, 10th Dist. Franklin
No. 16AP-667, 2017-Ohio-8833, ¶ 22; In re A.R., 11th Dist. Ashtabula No. 2018-
A-0078, 2019-Ohio-2166, ¶ 29; In re Guardianship of Bernie, 12th Dist. Butler No.
CA2018-01-005, 2019-Ohio-334, ¶ 27-28, appeal not accepted, 155 Ohio St. 3d
1469, 2019-Ohio-2100, 122 N.E.3d 1294.
{¶ 42} As the Third District Court of Appeals has explained,
“whereas rules of procedure adopted by the Supreme Court require
submission to the legislature, rules of superintendence are not so
submitted and, hence, are of a different category. They are not the
equivalent of rules of procedure and have no force equivalent to a
statute. They are purely internal housekeeping rules which are of
concern to the judges of the several courts but create no rights in
individual defendants.”
(Emphasis omitted.) Larson at ¶ 13, quoting State v. Gettys, 49 Ohio App. 2d 241,
243, 360 N.E.2d 735 (3d Dist.1976).
{¶ 43} R.C. 149.43(B)(2) states that “[a] public office also shall have
available a copy of its current records retention schedule at a location readily
available to the public.” By sidestepping Parker Bey’s statutory argument,
however, the majority evades the issue whether this court’s Superintendence Rules
may negate a substantive right to specific public records granted by the Public
Records Act—i.e., the clerk’s records-retention schedule. Parker Bey did not
request the court’s records-retention schedule, he requested the clerk’s records-
retention schedule, by certified mail—in addition to the requested entries. The
return receipt showing delivery of that request is attached to the complaint,
providing evidence that the request was made and that the clerk’s office received
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it. Byrd did not file an answer denying the allegations of the complaint, and
evidence that the clerk’s office could not find a record of Parker Bey’s request does
not, standing alone, prove that he did not make the request. The majority’s
suggestion that the Superintendence Rules apply to this request because they
control access to administrative documents regardless of when the documents were
created, see Sup.R. 47(A)(2), is contrary to law.
{¶ 44} The clerk is not a “court” subject to our Superintendence Rules. See
Article IV, Section 5(A)(1), Ohio Constitution (“the supreme court shall have
general superintendence over all courts in the state”). As one court put it, a clerk
of courts “is not a judicial officer, and cannot perform judicial duties or act in
exercise of the judicial power.” State v. Wilson, 102 Ohio App. 3d 467, 472, 657
N.E.2d 518 (2d Dist.1995), citing Mellinger, 73 Ohio St. 221, 76 N.E. 615.
{¶ 45} And while the clerk may act under the direction of the common pleas
court, R.C. 2303.26, this court has no power over the clerk. Ours is not a unified
court system in which separately run courts are consolidated into one centrally
managed court system. And not even the common pleas court, which has the power
to direct the work of the clerk, has authority to compel the clerk to disobey a statute.
{¶ 46} This court has recently suggested that the Public Records Act is
unconstitutional as applied to court records, because “the ‘important constitutional
principles of separation of powers’ required this court to regulate judicial records
through its Rules of Superintendence.” Parisi, __ Ohio St.3d __, 2019-Ohio-5157,
__ N.E.3d __, at ¶ 16, quoting Moyer, A message from the Chief Justice: Openness
is foundation of Ohio Government, 81 Ohio State Bar Assn. Report 170, 171 (2008).
Tellingly, however, the majority opinion in Parisi is bereft of legal authority or
specific analysis either supporting its suggestion that the Public Records Act
violates the separation-of-powers doctrine or discussing the purposes of the Rules
of Superintendence.
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{¶ 47} American common law recognized the right of the people to inspect
and copy public records and documents, including judicial records and documents.
Nixon v. Warner Communications, Inc., 435 U.S. 589, 597, 98 S. Ct. 1306, 55
L. Ed. 2d 570 (1978); State ex rel. Scripps Howard Broadcasting Co. v. Cuyahoga
Cty. Court of Common Pleas, Juv. Div., 73 Ohio St. 3d 19, 22, 652 N.E.2d 179
(1995). In fact, we have recognized that the guarantee of open courts under Article
I, Section 16 of the Ohio Constitution includes a qualified right to access court
records that document the proceedings. State ex rel. Cincinnati Enquirer v.
Winkler, 101 Ohio St. 3d 382, 2004-Ohio-1581, 805 N.E.2d 1094, ¶ 8-9.
{¶ 48} In 1963, “the General Assembly codified the public’s right to access
of government records” by enacting R.C. 149.43. State ex rel. Natl. Broadcasting
Co., Inc. v. Cleveland, 38 Ohio St. 3d 79, 81, 526 N.E.2d 786 (1988). 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, and “reinforce[s] the understanding that
open access to government papers is an integral entitlement of the people, to be
preserved with vigilance and vigor,” Kish v. Akron, 109 Ohio St. 3d 162, 2006-
Ohio-1244, 846 N.E.2d 811, ¶ 17. This court has never questioned the
constitutionality of the General Assembly’s inclusion of “any court or judicial
agency,” R.C. 149.011(B), in the definition of “state agency” as a public office
subject to the Public Records Act.
{¶ 49} Undisputedly, the General Assembly has plenary power to enact any
law that does not conflict with the United States or Ohio Constitution. Toledo v.
State, 154 Ohio St. 3d 41, 2018-Ohio-2358, 110 N.E.3d 1257, ¶ 17. “ ‘Before any
legislative power, as expressed in a statute, can be held invalid, it must appear that
such power is clearly denied by some constitutional provision.’ ” Tobacco Use
Prevention & Control Found. Bd. of Trustees v. Boyce, 127 Ohio St. 3d 511, 2010-
Ohio-6207, 941 N.E.2d 745, ¶ 10, quoting Williams v. Scudder, 102 Ohio St. 305,
20
January Term, 2020
307, 131 N.E. 481 (1921). And the power to invalidate a statute “is circumscribed
by the rule that laws are entitled to a strong presumption of constitutionality and
that a party challenging the constitutionality of a law bears the burden of proving
that the law is unconstitutional beyond a reasonable doubt.” Yajnik v. Akron Dept.
of Health, Hous. Div., 101 Ohio St. 3d 106, 2004-Ohio-357, 802 N.E.2d 632, ¶ 16.
{¶ 50} It is true that Article IV, Section 1 of the Ohio Constitution places
all “judicial power” in this court, the courts of appeals, the courts of common pleas,
and other courts as the General Assembly may establish. And Article II, Section
32 expressly bars the General Assembly from exercising “any judicial power.” But
exactly how the Public Record Act impinges upon these constitutional limitations
the court in Parisi never explains.
{¶ 51} Additionally, there is no indication that the Public Records Act
violates the separation-of-powers doctrine by impeding the administration of
justice or trammeling the exercise of the judicial function. See State v.
Hochhausler, 76 Ohio St. 3d 455, 463-464, 668 N.E.2d 457 (1996) (statute violated
separation-of-powers doctrine by barring a court from granting a stay of an
administrative license suspension); Norwood v. Horney, 110 Ohio St. 3d 353, 2006-
Ohio-3799, 853 N.E.2d 1115, ¶ 11 (statute prohibiting a court from enjoining the
taking of private property prior to appellate review is unconstitutional); State v.
Bodyke, 126 Ohio St. 3d 266, 2010-Ohio-2424, 933 N.E.2d 753, paragraphs two
and three of the syllabus (statutory provisions granting the executive branch the
authority to review judicial decisions and to require the reopening of final
judgments are unconstitutional). And in the past, we have declared certain judicial
records beyond the reach of the Public Records Act. See State ex rel. Steffen v.
Kraft, 67 Ohio St. 3d 439, 619 N.E.2d 688 (1993) (affirming dismissal of mandamus
complaint seeking access to judge’s personal trial notes).
{¶ 52} But the court in Parisi made no attempt to explain how R.C. 149.43
had encroached on the judicial power, and it cited no decision even hinting that the
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Public Records Act is unconstitutional as applied to court records or that the records
sought were beyond the reach of the act. In fact, we long ago recognized that
notwithstanding the inherent authority of courts to promulgate local court rules,
Cassidy v. Glossip, 12 Ohio St. 2d 17, 21, 231 N.E.2d 64 (1967), a local rule that
“effectively forb[ade] public access to public records, thereby conflicting with R.C.
149.43(B),” was invalid, Mothers Against Drunk Drivers, 20 Ohio St. 3d at 33-34,
485 N.E.2d 706 (issuing a writ of mandamus to compel a municipal court to
produce court records that met the statute’s definition of “public record”); see also
State v. Pariag, 137 Ohio St. 3d 81, 2013-Ohio-4010, 998 N.E.2d 401, ¶ 12
(explaining that the expungement statutes “set out the limits of the trial court’s
jurisdiction to grant a request to seal the record of convictions or charges that have
been dismissed”).
{¶ 53} The majority in Parisi failed to consider these principles and, in
effect, presumed that the Public Records Act could no longer apply to court records.
However, Article IV, Section 5(A)(1) of the Ohio Constitution, unlike Section 5(B),
does not permit Sup.R. 44 through 47 to abridge substantive rights such as those
enacted by the Public Records Act. The Public Records Act therefore does not
contravene this court’s rulemaking power granted by Article IV, Section 5.
III. Other Concerns about the Majority Opinion
{¶ 54} Although the majority overrules Husband, 157 Ohio St. 3d 148,
2019-Ohio-1853, 133 N.E.3d 467, to a limited extent, it leaves untouched this
court’s holding in Husband that the Superintendence Rules override the Public
Records Act, including R.C. 149.43(B)(8), which restricts an inmate’s access to
certain records. See id. at ¶ 10 (O’Connor, C.J., concurring in judgment only)
(“Allowing the Rules of Superintendence to control over the Public Records Act
unconstitutionally extends the substantive right of inmates to access certain public
records beyond the boundaries set by the General Assembly”). Therefore, if R.C.
149.43(B)(8) does not apply to courts and there is no parallel provision in the
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Superintendence Rules, then an incarcerated individual may inspect or obtain a
copy of a case document “concerning a criminal investigation or prosecution” in an
action commenced after July 1, 2009, in clear contravention of the public-policy
choice of the General Assembly.
{¶ 55} The majority also compounds the errors of the past by requiring a
party seeking court records to plead the specific legal authority granting him access
to those records. It states that a public-records request need not “identify the legal
authority providing a basis for the request when requesting a record” (emphasis
added), majority opinion at ¶ 14, yet it requires the requester to identify that
authority in the complaint for a writ of mandamus seeking to compel access to those
records, id. at ¶ 14 (“it is not necessary to cite a particular rule or statute in support
of a records request until the requester attempts to satisfy the more demanding
standard applicable when claiming that he is entitled to a writ of mandamus to
compel compliance with the request” [emphasis added]). That conclusion is wholly
inconsistent with the concept of notice pleading, under which in Ohio, the
complaint in a mandamus action must allege “the mandamus conditions with
sufficient particularity so that reasonable notice of the claim is given to the
respondent,” State ex rel. Williams Ford Sales, Inc. v. Connor, 72 Ohio St. 3d 111,
113, 647 N.E.2d 804 (1995). “[A] plaintiff or relator is not required to prove his or
her case at the pleading stage and need only give reasonable notice of the claim.”
State ex rel. Harris v. Toledo, 74 Ohio St. 3d 36, 37, 656 N.E.2d 334 (1995). This
procedural pitfall does nothing to aid our resolution of cases involving public-
records requests other than winnow out mandamus actions brought by the unwary.
{¶ 56} The majority’s resort to judicial modesty rings hollow for two
reasons. First, the majority’s criticism that this opinion “contrive[s]” a conflict
between R.C. 149.43 and the Superintendence Rules is wrong; as set forth above,
Parker Bey argued that the clerk is required by statute to comply with R.C. 149.43.
Second, and more fundamentally, it is the majority that lacks judicial modesty and
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restraint in concluding that we have the power to elevate our Rules of
Superintendence as the sole vehicle for obtaining court records, thereby preempting
the lawful enactment of the General Assembly. We should “remedy[] a clear
mistake before it is repeated again,” State ex rel. Maxcy v. Saferin, 155 Ohio St. 3d
496, 2018-Ohio-4035, 122 N.E.3d 1165, ¶ 14; otherwise, judicial restraint is only
an accomplice to rejecting the plain meaning of our Constitution.
{¶ 57} Nothing in our constitutional power to superintend Ohio courts
permits us to disregard the substantive right of the people to access court records
or the substantive limits on that access that have been established by the legislature
in the Public Records Act. Nor may we abridge requesters’ statutory rights to
attorney fees, costs, and statutory damages enacted to enforce the people’s right of
access in appropriate cases. The Rules of Superintendence are neither a statute nor
a product of common law, and they cannot control the exercise of the clerk’s duties
regarding requests for case documents or administrative records. Only the Public
Records Act—the statute—can control the duties of the clerk regarding access to
public records. Parker Bey’s claims that the clerk violated the Public Records Act
by failing to respond to all of his requests and that he is entitled to costs and
statutory damages remain live issues.
IV. Conclusion
{¶ 58} The Rules of Superintendence are neither a statute nor a product of
common law. The plain and unambiguous language of R.C. 2303.26 requires the
clerk to comply with all statutes and the common law in the exercise of her powers
and duties. The Public Records Act defines a public record as a record kept by any
public office, R.C. 149.43(A)(1), including the clerk’s office, R.C. 149.011(A).
Therefore, the Public Records Act controls the clerk’s duties regarding a request
for case documents or administrative records. I would overrule our precedent
holding that the Superintendence Rules—not the Public Records Act—govern the
people’s access to court records. See Parisi, __ Ohio St.3d __, 2019-Ohio-5157,
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January Term, 2020
__ N.E.3d __, at ¶ 20; Husband, 157 Ohio St. 3d 148, 2019-Ohio-1853, 133 N.E.3d
467, at ¶ 5; Harris, 155 Ohio St. 3d 343, 2018-Ohio-4718, 121 N.E.3d 337, at
¶ 10-11; Richfield, 138 Ohio St. 3d 168, 2014-Ohio-243, 4 N.E.3d 1040, at ¶ 8.
{¶ 59} For this reason, I would reverse the judgment of the Eighth District
Court of Appeals and remand the case to that court to determine whether Parker
Bey is entitled to all the public records that were requested but not produced and
whether he is entitled to statutory damages and costs for this writ action brought
due to Byrd’s failure to comply with R.C. 149.43(B). Therefore, I concur in
judgment only in part and dissent in part.
_________________
DEWINE, J., concurring in judgment only in part and dissenting in part.
{¶ 60} I write separately because I believe that the Public Records Act
applies to the judiciary, just as it does to the rest of state government. We are not
above the law. And we do not possess the authority to simply decree—without any
reasoned basis in law—that an enactment of the General Assembly does not apply
to us.
{¶ 61} The majority is correct in its determination that the Eighth District
Court of Appeals erred in denying Vincent El Alan Parker Bey’s complaint on the
grounds that he did not cite the Rules of Superintendence as the basis for his public-
records request. But the other separate opinion is also right to say that this court
should explicitly overrule our prior decisions holding that the Public Records Act
does not apply to the judiciary. Let me add a few more thoughts about why those
decisions should be repudiated.
{¶ 62} As Justice Kennedy points out, in prior opinions devoid of legal
reasoning on the subject, this court has ordained that the Public Records Act does
not apply to the judicial branch of government. See State ex rel. Richfield v. Laria,
138 Ohio St. 3d 168, 2014-Ohio-243, 4 N.E.3d 1040, ¶ 8; State ex rel. Harris v.
Pureval, 155 Ohio St. 3d 343, 2018-Ohio-4718, 121 N.E.3d 337, ¶ 10; State ex rel.
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Parisi v. Dayton Bar Assn. Certified Grievance Commt., __ Ohio St.3d __, 2019-
Ohio-5157, __ N.E.3d __, ¶ 21. Today we learn from the majority that the Public
Records Act does apply to requests for case documents from actions commenced
prior to July 1, 2009. But by leaving undisturbed this court’s decisions in Laria,
Harris, and Parisi, the majority implies that the Public Records Act doesn’t apply
to requests for documents from cases commenced on or after July 1, 2009, and that
it doesn’t apply to any request for administrative court documents.
{¶ 63} Pause for a moment and consider what it means for a court to
announce that it will not follow a law adopted by the General Assembly. If the
Public Records Act doesn’t apply to the courts, what other laws can this court
exempt itself from? The Ohio Civil Rights Act bars discrimination on the basis of
race, color, religion, sex, military status, familial status, national origin, disability,
age, or ancestry. See R.C. 4112.01 et seq. It also prescribes procedures for handling
charges of unlawful discrimination, including granting powers to the Civil Rights
Commission to investigate allegations of discrimination. See R.C. 4112.04 and
4112.05. Could this court, through our superintendence powers, effectively
immunize court officials from investigation? Could we use those powers to adopt
our own process for handling allegations of discrimination, thereby thwarting the
rights granted under the Civil Rights Act? The obvious answer to both questions
should be no; this court is not above the law. Why then is the Public Records Act
any different? Or consider that R.C. 3517.10 requires anyone running a campaign
for public office to file a statement documenting contributions and expenditures.
Again, it should be obvious that this court cannot use the Rules of Superintendence
to modify or eliminate that requirement for judicial campaigns. But it’s unclear
why the Public Records Act is any different. Or consider that the bribery statute
makes it illegal for a public servant to accept things of value for corrupt purposes.
See R.C. 2921.02(B). Unquestionably, that provision applies to judges, too,
regardless of what we put in the Rules of Superintendence.
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January Term, 2020
{¶ 64} So, one wants to know—is there some reasoned legal basis for
saying that the Public Records Act is any different from the multitude of other laws
that unquestionably apply to the courts? This court hasn’t offered one. Indeed, in
the series of decisions announcing that the Public Records Act doesn’t apply to
requests for certain court documents, the court has done nothing to explain why the
act should be treated differently from the many other statutes that impose
obligations on public officials. One is left with the impression that the court’s
decision to exempt itself from the Public Records Act is wholly arbitrary, based not
on law but on judicial whim.
{¶ 65} Do not overlook the extraordinary breadth of what this court has
done. The exemption from the Public Records Act applies not just to pleadings and
the like but also to “administrative documents.” Indeed, the majority’s reasoning
implies that administrative documents are exempt from disclosure under the Public
Records Act, no matter when they were filed. See majority opinion at ¶ 15.
Administrative documents include fiscal records detailing how Ohio courts are
spending taxpayer dollars. Sup.R. 44(G).5 Thus, the implication is that this court
can unilaterally exempt itself from public scrutiny of its financial dealings. That
runs counter to the clear statutory text and evident purpose of the Public Records
Act and to the principles of good governance that the act supports.
{¶ 66} One might be tempted to protest that these worries are overstated
because this court, in its beneficence, has decided that the public may access our
records through the Rules of Superintendence. But that misses the point. The right
to court records shouldn’t be a matter of this court’s beneficence. The General
Assembly has passed a law enabling the public to scrutinize the dealings of the
5. Sup.R. 44(G) provides that “ ‘[a]dministrative document’ means a document and information in
a document created, received, or maintained by a court that serves to record the administrative,
fiscal, personnel, or management functions, policies, decisions, procedures, operations,
organization, or other activities of the court, subject to the exclusions in division (G)(2) of this rule.”
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public institutions that serve them. Under our constitutional system, that scrutiny
is something that the people ought to be able to achieve through their elected
representatives in the General Assembly. It should not be something that can be
achieved only through the beneficent prerogative of the courts.
{¶ 67} Moreover, the Rules of Superintendence aren’t an adequate
substitute for what the General Assembly achieved with the Public Records Act.
The Public Records Act, unlike the Rules of Superintendence, contains terms meant
to ensure that public entities comply with its mandates; officials who do not timely
comply with record requests may be subject to the payment of statutory damages,
court costs, and attorney fees. See R.C. 149.43(C). There is no reason these same
strictures should not apply to the courts.
{¶ 68} Thus, while the majority rightly holds that Parker Bey is entitled to
the journal entries he seeks in this case, I cannot support its reasoning. And I
disagree with the majority’s refusal to apply the Public Records Act to Parker Bey’s
request for the record-retention schedule. I therefore concur in the court’s judgment
insofar as it remands the matter to the court of appeals for it to apply the Public
Records Act to his request for the journal entries. But I would also require the court
of appeals to apply the Public Records Act to Parker Bey’s request for the record-
retention schedule.
_________________
Vincent El Alan Parker Bey, pro se.
Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Brian
R. Gutkoski, Assistant Prosecuting Attorney, for appellee.
_________________
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