State ex rel. Fostoria Daily Review Co. v. Fostoria Hospital Ass'n

512 N.E.2d 1176, 32 Ohio St. 3d 327, 1987 Ohio LEXIS 390

• Court: Ohio Supreme Court
• Decided: September 9, 1987
• Docket: No. 87-102
• Status: Published

Opinions

Per Curiam.

The determinative issue posed in this appeal is whether R.C. 149.99 provides the exclusive remedy to compel compliance with the public records statute, R.C. 149.43.¹

R.C. 149.99, as amended effective July 1, 1985, provides:

“Any person aggrieved by a violation of section 149.351 or 149.43 of the Revised Code, or both of these sections, may bring a civil action to compel compliance, and may recover a forfeiture of gne thousand dollars and reasonable attorneys fees for each violation.”

The cause sub judice originated in the court of appeals where appellant requested a writ of mandamus seeking disclosure of records kept by the ap-pellee association that are alleged to be public records pursuant to R.C. 149.43. The appellate court held that the legislature had in fact provided parties seeking access to public records with an adequate remedy at law, viz., R.C. ■ 149.99.

As noted by the court of appeals below, it is well-settled that in order to entitle the relator to a writ of mandamus the relator must show, and the record must disclose affirmatively, that there is no plain and adequate remedy in the ordinary course of law. State, ex rel. Stanley, v. Cook (1946), 146 Ohio St. 348, 32 O.O. 419, 66 N.E. 2d 207, paragraph three of the syllabus; State, ex rel. Sibarco Corp., v. Berea (1966), 7 Ohio St. 2d 85, 36 O.O. 2d 75, 218 N.E. 2d 428, certiorari denied (1967), 386 U.S. 957; State, ex rel. Pressley, v. Indus. Comm. (1967), 11 Ohio St. 2d 141, 40 O.O.2d 141, 228 N.E. 2d 631; State, ex rel. Cody, v. Toner (1983), 8 Ohio St. 3d 22, 8 OBR 255, 456 N.E. 2d 813, certiorari denied (1984), 466 U.S. 938.

In our view, the language of. R.C. 149.99 envisions an action instituted in the court of common pleas for injunctive relief, forfeiture and attorney fees. However, in its present form, the precise language of R.C. 149.99 does not appear to encompass an action in mandamus. It must be emphasized that a writ of mandamus is an extraordinary remedy which is carefully and cautiously granted only when there exists no plain and adequate remedy in the ordinary course of the law. See State, ex rel. Roth, v. West (1935), 130 Ohio St. 119, 3 O.O. 146, 197 N.E. 115; and Pressley, supra. While it may be argued that mandamus is in fact a “civil action,” R.C. 149.99 does not contemplate “any” civil action; rather, the very language of the statute details the form and type of civil actions permitted in order to redress alleged violations of R.C. 149.43.

Appellant contends that our recent decision in State, ex rel. Harmon, v. Bender (1986), 25 Ohio St. 3d 15, 25 OBR 13, 494 N.E. 2d 1135, is controlling where it was held that mandamus was the proper mechanism for assuring disclosure of public records. However, the records sought to be disclosed in Harmon were made in a trial occurring before the effective date of the current version of R.C. 149.99. Moreover, no discussion of R.C. 149.99 was rendered in our opinion in that cause.

The prior version of R.C. 149.99 provided:

"Whoever violates section 149.351, 149.43 or 149.431 of the Revised Code shall forfeit not more than five hundred dollars for each offense to the state. The attorney-general shall collect the same by civil action.”

Since the relief permitted under the prior version of R.C. 149.99 required an action instituted by the Attorney General, it was reasonable for us to apparently conclude in Harmon, supra, that the person seeking access to the records had no adequate remedy at law and that an action in mandamus was proper. However, under the amended version of R.C. 149.99, the General Assembly has provided an adequate remedy at law for persons seeking disclosure of public records and, thus, appellant’s action in mandamus must fail on that ground alone.

Accordingly, the judgment of the court of appeals denying the writ of mandamus is hereby affirmed.

Judgment affirmed.

Sweeney, Locher, Holmes and H. Brown, JJ., concur. Moyer, C.J., Douglas and Mc-Cormac, JJ., dissent. McCormac, J., of the Tenth Appellate District, sitting for Wright, J.

1 R.C. 149.43 provides in relevant part:

“(A) As used in this section:

“(1) ‘Public record’ means any record that is kept by any public office, including, but not limited to, state, county, city, village, township, and school district units, except medical records, records pertaining to adoption, probation, and parole proceedings, records pertaining to actions under section 2151.85 of the Revised Code and to appeals of actions arising under that section, records listed in division (A) of section 3107.42 of the Revised Code, trial preparation records, confidential law enforcement investigatory records, and records the release of which is prohibited by state or federal law.

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“(B) All public records shall be promptly prepared and made available for inspection to any member of the general public at all reasonable times during regular business hours. Upon request, a person responsible for public records shall make copies available at cost, within a reasonable period of time. In order to facilitate broader access to public records, governmental units shall maintain public records in such manner that they can be made available for inspection in accordance with this division. * * *”