Smith v. Warcog

2024 Ohio 1402, 242 N.E.3d 785

• Court: Ohio Court of Appeals
• Decided: April 15, 2024
• Docket: 23AP0018
• Status: Published

Opinion

[Cite as Smith v. Warcog, 2024-Ohio-1402.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF WAYNE )

MICHAEL T. SMITH C.A. No. 23AP0018 Relator

v.

WARCOG ORIGINAL ACTION IN MANDAMUS Respondent

Dated: April 15, 2024

PER CURIAM.

{¶1} Relator, Michael T. Smith, has filed a complaint seeking a writ of mandamus to

order Respondent, the Wooster-Ashland Regional Council of Governments, or WARCOG, to

release of public records and for damages for its failure to timely provide the requested records.

After WARCOG filed its answer, both parties moved for summary judgment. For the following

reasons, we deny Mr. Smith’s motion for summary judgment and grant WARCOG’s motion for

summary judgment.

{¶2} The appropriate remedy to compel compliance with the Public Records Act, R.C.

Chapter 149, is mandamus. State ex rel. Physicians Committee for Responsible Medicine v. Ohio

State Univ. Bd. of Trustees, 108 Ohio St.3d 288, 2006-Ohio-903, ¶ 6. When Mr. Smith did not

receive the records he requested under the act, he filed a complaint for writ of mandamus.

{¶3} According to the undisputed facts, Mr. Smith submitted a request to WARCOG for

recordings of calls to a 911 call center regarding two incidents along with documents reflecting the information reported in the calls. WARCOG released redacted documents to Mr. Smith, but

did not provide the audio recordings. WARCOG explained that the redacted information and the

audio recordings were not public records subject to disclosure.

{¶4} In his complaint, Mr. Smith asked this Court to grant the writ of mandamus to order

WARCOG to provide unredacted copies of the documents and the audio recordings. He asserted

that the unredacted documents and audio recordings he requested were public records not subject

to any exception. Mr. Smith also sought damages for the wrongful withholding of the public

records. In its answer, WARCOG admitted to the relevant factual allegations set forth in the

complaint. The answer also responded that the requested documents and recordings were not

public records and, therefore, only the redacted documents Mr. Smith already received should be

provided, but not the audio recordings. After the answer was filed, both parties moved for

Summary Judgment standard

{¶5} To prevail on a motion for summary judgment, the moving party must be able to

point to evidentiary materials that show there is no genuine issue as to any material fact, and that

the moving party is entitled to judgment as a matter of law. Dresher v. Burt, 75 Ohio St.3d 280,

292-293 (1996). Once a moving party satisfies its burden of supporting its motion for summary

judgment with sufficient and acceptable evidence pursuant to Civ.R. 56(C), Civ.R. 56(E) provides

that the non-moving party may not rest upon the mere allegations or denials of the moving party’s

pleadings. Rather, the non-moving party has a reciprocal burden of responding by setting forth

specific facts, demonstrating that a “genuine triable issue” exists to be litigated. State ex rel.

Zimmerman v. Tompkins, 75 Ohio St.3d 447, 449 (1996). Finally, both parties relied on exhibits

in their motions for summary judgment that were not incorporated into properly framed affidavits. Because neither party objected to this procedure, this Court can consider the exhibits in reaching

its decision. State ex rel. Jefferson v. Russo, 159 Ohio St.3d 280, 2020-Ohio-338, ¶ 14.

The Public Records Act and Mandamus

{¶6} The “Public Records Act requires a public office to make public records available

upon request, within a reasonable period of time.” State ex rel. Cincinnati Enquirer v. Wilson,

Slip Opinion No. 2024-Ohio-182, ¶ 7, citing R.C. 149.43(B)(1). As already noted, mandamus is

the appropriate remedy to compel compliance with the Public Records Act. Generally, “Although

‘[w]e construe the Public Records Act liberally in favor of broad access and resolve any doubt in

favor of disclosure of public records,’ * * * the relator must still establish entitlement to the

requested extraordinary relief by clear and convincing evidence.” State ex rel. Motor Carrier

Serv., Inc. v. Rankin, 135 Ohio St.3d 395, 2013-Ohio-1505, ¶ 18, quoting State ex rel. Rocker v.

Guernsey Cty. Sheriff's Office, 126 Ohio St.3d 224, 2010-Ohio-3288, ¶ 6.

{¶7} To be entitled to the writ, Mr. Smith must demonstrate, by clear and convincing

evidence, that he has a clear legal right to the requested relief and that WARCOG has a clear legal

duty to provide that relief. Cincinnati Enquirer v. Wilson, 2024-Ohio-182, ¶ 7. In a public records

case, unlike other mandamus actions, the relator does not need to establish that there is no adequate

remedy at 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, ¶ 24.

{¶8} “If a record does not meet the definition of a public record, or falls within one of

the exceptions to the law, the records custodian has no obligation to disclose the document.” State

ex rel. Plunderbund Media v. Born, 141 Ohio St.3d 422, 2014-Ohio-3679, ¶ 18. In this respect,

however, the approach is generally one allowing open access and exceptions to disclosure are

strictly construed against the public-records custodian. State ex rel. Cincinnati Enquirer v. Jones- Kelley, 118 Ohio St.3d 81, 2008-Ohio-1770, paragraph two of the syllabus. It is the holder of the

public record who has the burden to establish the applicability of an exception. Id.

{¶9} Under R.C. 149.43(A)(1), records kept by any public office are “public records”

unless they fall under an exception. The General Assembly, through the Public Records Act, has

granted a substantive right to inspect and copy public records. Rhodes v. New Philadelphia, 129

Ohio St.3d 304, 2011-Ohio-3279, ¶ 19. The Public Records Act, however, contains a number of

exceptions, including one at issue in this case.

{¶10} R.C. 149.43(A)(1) defines a public record to mean a record kept by a public office.

That same provision also provides that a public record does not mean any of the items specifically

enumerated in the statute. One provision in particular, R.C. 149.43(A)(1)(v), applies to this case.

Read in context, the statute provides that a public record does not mean “[r]ecords the release of

which is prohibited by state or federal law”. Id. Mr. Smith and WARCOG disagree about whether

this provision applies to exempt the records Mr. Smith requested from disclosure.

{¶11} WARCOG relied on this provision when it did not provide all of the requested

records to Mr. Smith. It also relied on this section in its answer and in its motion for summary

judgment. Because the nature of the records is critical, we review them before addressing whether

they are records that may not be released pursuant to state law.

The records Mr. Smith sought

{¶12} Mr. Smith requested audio recordings of two calls to the non-emergency reporting

line at WARCOG. These phone calls, and the related “Call Summary Report” records that

documented the phone calls, provided information about a juvenile female who was reported

missing, had been suspected of being trafficked, and who was with an unrelated adult male. {¶13} Mr. Smith argued in his motion for summary judgment that the 911 recordings were

undisputably public records, citing to State ex rel. Dispatch Printing Co. v. Morrow Cty.

Prosecutor’s Office, 105 Ohio St.3d 172, 2005-Ohio-685. In that decision, the Supreme Court

quoted its earlier decision in which it wrote that the moment the recordings were made as a result

of the calls, “the tapes became public records.” Id., quoting State ex rel. Cincinnati Enquirer v.

Hamilton Cty., 75 Ohio St.3d 374, 377-378 (1996). In Cincinnati Enquirer v. Hamilton Cty., at

377, the Court explained that 911 systems are used to compile information, not to preserve

evidence for criminal prosecution.

{¶14} That discussion is important to deciding this case because of the context. In that

case, the Supreme Court considered the confidential law enforcement investigatory records

exception codified in R.C. 149.43. Id. at 378. When considering that exception, the Court

recognized that 911 calls are not intended to preserve evidence. The Court concluded the

exception did not apply because a 911 call often preceded any criminal investigation. Id. The

calls at issue before the Supreme Court involved reports by citizen-callers of an assault that

resulted in the death of one victim and gun shots that resulted in the death of a second victim. Id.

at 374.

{¶15} The Supreme Court noted one other important aspect of its decision that also applies

here. In describing the purpose of 911 calls, the Court wrote in terms of the context of the case

before it. The Court recognized that 911 recordings are not prepared by attorneys or law

enforcement officials and they are routinely recorded without any specific investigatory purpose

in mind. Id. at 378. Most importantly, the Court explained that “[t]here is no expectation of

privacy when a person makes a 911 call. Instead, there is an expectation that the information

provided will be recorded and disclosed to the public.” Id. In the matter pending before the Supreme Court, under the specific facts of the case, the 911 callers had no expectation of privacy

and, instead, they were reporting ongoing criminal activity. Here, however, the situation is very

different. The caller in the case before this Court had an obligation to report to law enforcement

and, based on the mandatory reporting statute, an expectation that the report would be confidential.

Mandatory reporting of child abuse or neglect

{¶16} By statute, certain people are required to report child abuse or neglect. R.C.

2151.421(A) and (B). The report may be made by telephone, electronically, or in person. R.C.

2151.421(C). The report, however it is made, is confidential (with limited exceptions, not

applicable here, that allow disclosure to protect the juvenile or if the juvenile dies). R.C.

2151.421(I)(1).

{¶17} Thus, the facts in this case differ in one significant way from Cincinnati Enquirer

v. Hamilton Cty. In that case, the 911 callers made their calls to report ongoing criminal activity.

The Supreme Court referred to the recordings as the “tapes which initiate criminal investigations”

because, in that case, that is precisely what happened. Cincinnati Enquirer, 75 Ohio St.3d at 377.

But the callers were not required to call 911 to report the criminal activity. They did so and, as the

Supreme Court recognized, they had no expectation of privacy when they placed the call. Id. at

378.

{¶18} In this case, where child abuse or neglect was at issue, the caller was required by

statute to immediately report that abuse or neglect. R.C. 2151.421(A) and (B). A mandated

reporter who calls law enforcement to make a report, unlike the citizen-callers in Cincinnati

Enquirer v. Hamilton Cty., has an expectation of privacy in that call because, by statute, the report

is confidential. R.C. 2151.421(I)(1). {¶19} Mr. Smith articulated a number of reasons why these recordings and documents

should not be excepted from disclosure. He noted, for example, that calls to a non-emergency

number should not be treated any differently than calls to an emergency number. That argument

misses two important points. First, the Supreme Court’s decisions that required disclosure of 911

call recordings did not deal with the same kinds of calls at issue in this case. The Supreme Court

did not need to consider whether a call reporting a matter that, by statute, is confidential must be

disclosed. It did, however, recognize that one of the newspapers that sought disclosure of the 911

recordings acknowledged that disclosure would not be required if the holder of 911 recordings

could establish a 911 call satisfies an exemption from public access. Cincinnati Enquirer at 377,

fn.2. That is precisely the situation in this case.

{¶20} Second, the Supreme Court has recognized that the question of whether something

must be confidential has already been decided by the General Assembly. By enumerating narrow,

specific, exceptions to the public records act, the General Assembly has weighed the competing

public policy considerations and, as it relates to this case, determined that calls reporting abuse of

a child shall be confidential. See, e.g., State ex rel. James v. Ohio State Univ., 70 Ohio St.3d 168,

172 (1994). While Mr. Smith may have arguments to the contrary, those are for the General

Assembly to consider, not this Court. The Supreme Court has “not authorized courts or record

custodians to create new exceptions to R.C. 149.43 based on a balancing of interests or generalized

privacy concerns.” State ex rel. WBNS TV, Inc. v. Dues, 101 Ohio St.3d 406, 2004-Ohio-1497, ¶

31.

Mandatory reports are confidential and not subject to disclosure

{¶21} R.C. 2151.421(A) and (B) require a report of abuse or neglect of a juvenile. That

report is confidential, pursuant to state law. R.C. 2151.421(I)(1). Mr. Smith sought records from WARCOG pursuant to R.C. 149.43. WARCOG provided redacted documents but did not provide

the audio recordings.

{¶22} R.C. 149.43 requires the holder of public records to provide the requested records

upon request, unless an exception applies. R.C. 149.43(A)(1)(v) exempts from disclosure any

records the release of which is prohibited by state law. R.C. 2151.421(I)(1) mandates that a report

pursuant to R.C. 2151.421(A) or (B) is confidential. Because the records fall under the

confidentiality provision of R.C. 2151.421(I)(1), they are exempt from disclosure under R.C.

149.43(A)(1)(v). See, e.g., State ex rel. Clough v. Franklin Cty. Children Servs., 144 Ohio St.3d

83, 2015-Ohio-3425, ¶ 22.

Conclusion

{¶23} Upon review of the competing motions for summary judgment, we have concluded

that there is no genuine dispute as to material facts. We further conclude that the requested records

are excepted from disclosure because the release of the records is prohibited by state law. Thus,

WARCOG is entitled to judgment as a matter of law. Accordingly, Mr. Smith’s motion for

summary judgment is denied and WARCOG’s motion for summary judgment is granted.

{¶24} Judgment is granted in favor of WARCOG and the complaint for writ of mandamus

and damages is denied.

{¶25} Costs of this action are taxed to Mr. Smith. The clerk of courts is hereby directed

to serve upon all parties not in default notice of this judgment and its date of entry upon the journal.

See Civ.R. 58(B).

JENNIFER L. HENSAL FOR THE COURT STEVENSON, J. FLAGG LANZINGER, J. CONCUR.

APPEARANCES:

MICHAEL T. SMITH, Pro se, Relator.

JOHN A. SCAVELLI, JR., Director of Law, for Respondent.