Dayton Newspapers, Inc. v. City of Dayton

William B. Brown, J. Speaking for a unanimous court in State, ex rel. White, v. Cleveland (1973), 34 Ohio St. 2d 37, 40, Justice Corrigan states “* * * that E. C. 149.43 establishes a public right to the inspection and copying of public records and imposes upon 'municipal corporations the mandatory duty to permit same.” The Dayton jail log is certainly a “record.” If it is “required to be kept” by the city, 'appellees must grant access to appellant because the log does not come within any of the exceptions set forth in E. C. 149.43. This court has not directly considered the “required to be kept” element of E. C. 149.43. That element is ambiguous, and the reason for its insertion in the statute is not readily apparent. Appellees urge that we construe it to mean required by statute (or at least, by the official policy of a unit of government) to be kept. We would be more readily inclined to follow appellees’ argument if the statute stated “required by law to be kept.” Cf. State, ex rel. Grosser, v. Boy (1975), 42 Ohio St. 2d 498. On the other hand, appellant would have the statutory phrase describe any record which but for its keeping the governmental unit could not carry out its duties and re [109] sponsibilities; that the raison d’etre of such record is to assure the proper functioning, of the unit. We accept the interpretation suggested; by appellant, and, in so doing, we reject the holdings of the courts below that the Dayton jail log is not. a “public record” subject to disclosure. Prior to the enactment of R. C. 149.43 in 1963. (130 Ohio Laws 155), this court, in State, ex rel. Patterson, v. Ayers (1960), 171 Ohio St. 369, affirmed the issuance of a writ of mandamus to allow inspection of Bureau of Motor Vehicles records. Although the statute therein declared that all records of. the bureau were “public records,” we find instructive the approach taken by the court on the question of access. Judge Zimmerman, at page 371, quoted with approval the following passage from Ohio Jurisprudence: “The rule in Ohio is that public records are the people’s records, and that the officials in whose custody they happen to be are merely trustees for the people; therefore anyone may inspect such records at any time, subject only to the limitation that such inspection does not endanger the safety of the record, or unreasonably interfere with the discharge of the duties of the officer having custody of the same.” And then he stated, at page 372: “How. far the General Assembly might go in limiting-access to and inspection of public records is not now before us.- Suffice it to say, .such body has not denied the right to inspect the records in the office of the Registrar of Motor Vehicles in the respect demanded by relator. We do not doubt that the registrar may-establish and .enforce-.reasonable rules and regulations covering the examination of the records in ■.his' 'custody and control to insure the-orderly and efficient operation of his department, but under.-the statutes -in their present! wording he may not arbitrarily and'wholly close those:reóords to.public view.” (Emphasis sic.)-. See, also, State, ex rel. Louisville Title Ins. Co., v. Brewer (1946), 147 Ohio St. 161, 164, which involved ¿ similar mandamus aptiqu‘'wh%ein á title research company 'requested access to¡a,..special .carJ index.for land rWprd§ kept by the Probate Court of Cuyahoga- County. (The writ-was [110] denied, but the court failed to indicate which of numerous valid grounds were determinative in refusing relief.) On the basis of Ayers, supra (171 Ohio St. 369), we believe that doubt should be resolved in favor of disclosure of records* held by governmental units. Aside from the exceptions mentioned in R. C. 149.43, records should be available to the public unless the custodian of such records can show a legal prohibition to disclosure. Of. R. C. 121.22 (A), as amended November 28,1975. The decision to allow access to governmental records should not rest solely with the custodian. “Law has reached its finest moments when it has freed man from the unlimited discretion of some ruler, some civil or military official, some bureaucrat. Where discretion is absolute, man has always suffered.” United State v. Wunderlich (1951), 342 U. S. 98, 101, Douglas, J., dissenting. We hold that the information contained in the Dayton jail log is required to be kept in the operation of the jail. Accordingly, the judgment of the Court of Appeals is reversed, and the cause its remanded to the Court of Common Pleas for further proceedings consistent with this opinion. Judgment reversed. O’Neill, C. J., Herbert, Corrigan, Stern, Celebrezze and P. Brown, JJ., concur. Footnotes [*] “ ‘A public record has been defined as a record required by law to be. kept, or necessary to be kept, in the discharge of a duty imposed by law, or directed by law to serve as a memorial and evidence of something written, said, or done. * * *’ ” (Emphasis added.) State v. Brooks (1971), 27 Ohio St. 2d 144, 147.