State ex rel. Warren Newspapers, Inc. v. Hutson

Pfeifer, J. Relator asserts in its propositions of law that (1) the Warren Police Department must make its public records available for inspection at all times, since it operates twenty-four hours a day, seven days a week, (2) the Warren Police Department must make its records available for inspection in the order in which they are organized, (3) the Warren Police Department must make its public records available “at cost,” which does not include labor costs or charges for employee time, (4) the Warren Police Department’s misconduct requires the broadest possible mandamus relief, and (5) relator is entitled to an award of attorney fees. Relator claims that since the settlement of its 1990 lawsuit, the police department has “repeatedly violated the public-records statute and its settlement agreement.” Relator asserts in its first proposition of law that a municipal police department that operates twenty-four hours a day, seven days a week, must make its public records available for inspection at all times. In State ex rel. Steckman v. Jackson (1994), 70 Ohio St.3d 420, 639 N.E.2d 83, we determined that R.C. 143.43 entitles a relator to a writ of mandamus in order to seek and secure public records when access to the records has been denied. Respondents contend that they have fully complied with R.C. 149.43. R.C. 149.43(B) provides that “[a]ll public records shall be promptly prepared and made available for inspection to any person at all reasonable times during regular business hours.” The statute literally requires only that public records be made “available” for inspection “at all reasonable times during regular business hours.” State ex rel. Fenley v. Ohio Historical Soc. (1992), 64 Ohio St.3d 509, 511, 597 N.E.2d 120, 122; State ex rel. Nelson v. Fuerst (1993), 66 Ohio St.3d 47, 48, 607 N.E.2d 836, 837-838. Therefore, the initial temporal restriction is “regular business hours” and the further restriction is “all reasonable times” during the first period. Although neither of these phrases is statutorily defined in the Public Records Act, R.C. 149.43 should generally be construed to further broad access, State ex rel. Cater v. N. Olmsted (1994), 69 Ohio St.3d 315, 320, 631 N.E.2d 1048, 1053, and any doubt should be resolved in favor of disclosure of public records. State ex rel. Cincinnati Post v. Schweikert (1988), 38 Ohio St.3d 170, 173, 527 N.E.2d 1230, 1232. Relator relies upon Hengel v. Pine Bluff (1991), 307 Ark. 457, 821 S.W.2d 761, to support its proposition that respondents have a duty to provide records at all times, since the Warren Police Department operates twenty-four hours a day, seven days a week. In Hengel, supra, 307 Ark. at 464, 821 S.W.2d at 765, the Arkansas Supreme Court held: — 622 — “Appellants’ final argument is that it was error for the circuit court to hold that the public’s access to the records of the Pine Bluff Police Department was limited to 8:00 a.m. to 4:00 p.m., Monday through Friday, excepting legal holidays. We cannot sustain that holding. The Arkansas FOIA provides that public records are to be open to inspection ‘during regular business hours of the custodian of the records.’ The Pine Bluff Police Department operates twenty-four hours a day, seven days a week. When the nature of an agency of the public of necessity operates twenty-four hours a day, it follows that in the absence of some showing to the contrary that those are its ‘regular business hours.’ ” However, the Arkansas Public Records Act, as construed in Hengel, is broader than Ohio’s Act, which allows the additional limitation of “all reasonable times” during the custodian’s regular business hours. State ex rel. Butler Cty. Bar Assn. v. Robb (1990), 62 Ohio App.3d 298, 575 N.E.2d 497, upheld as not violative of Ohio’s Public Records Act, a custodian’s reduction of regular business hours of the office, apparently for all purposes and not just public records requests, to 8:30 a.m. to 12:00 p.m. and 1:00 p.m. to 4:00 p.m. Monday through Friday, except holidays. One file room was open only until noon on those days, and the reduced business hours may have been due to budget cuts. State ex rel. Butler Cty. Bar Assn., supra, 62 Ohio App.3d at 300, 575 N.E.2d at 498. In the case at bar, the evidence is that the Warren Police Department operates twenty-four hours a day, seven days a week, and that its policy prior to June 28, 1993, was to allow for inspection of public records from 8:00 a.m. until 4:00 p.m. every day. Shortly following relator’s request and attempt to further inspect records, respondent Hutson purported to establish “regular business hours” for the “Records Division File Room” of 10:00 a.m. until 1:00 p.m. daily. Although respondents contend that the police department records division’s regular business hours were reduced as a result of “budgetary and employee constraints,” they presented no evidence to support this contention. A more reasonable inference from the evidence is that the hours were reduced and “a fictional division” created to retaliate for relator’s records request and unfavorable press coverage concerning the Warren Police Department. Nevertheless, allowing records requests during all hours of the entire department’s operations is unreasonable. Instead, the prior policy of 8:00 a.m. until 4:00 p.m. every day, ie., approximating normal administrative hours, is a reasonable period during the department’s regular business hours. Therefore, relator’s first proposition is sustained in part and overruled in part. Relator asserts in its second proposition of law that respondents created an “artificially slow, complex and irrational process” and forced relator to accept the requested records in a “piecemeal state.” Relator claims that since the Warren — 623 — Police Department maintains the requested records in an “orderly, logical fashion,” the files should be similarly provided to satisfy its public records request. The manner in which the records are organized can add to the value of information contained within records; when such value is added, a new set of enhanced public records is created that must be disclosed to the public. State ex rel. Margolius v. Cleveland (1992), 62 Ohio St.3d 456, 460, 584 N.E.2d 665, 669. Although relator claims that the requested information is kept in an orderly, logical fashion, i.e., personnel files in alphabetical order and incident reports in chronological order, none of the evidence presented supports these assertions. Nevertheless, relator requested pertinent records on April 6, 1993 and on August 12, 1993. Thus, over four months following the initial request, respondents continued to delay relator’s inspection of the records by claiming a need to review files and redact exempt material. In Ohio, public records are the people’s records, and officials in whose custody they happen to be are merely trustees for the people; therefore, anyone may inspect these records at any reasonable 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. State ex rel. Natl. Broadcasting Co. v. Cleveland (1988), 38 Ohio St.3d 79, 81, 526 N.E.2d 786, 788. Further, “ ‘[n]o pleading of too much expense, or too much time involved, or too much interference with normal duties, can be used by the respondent to evade the public’s right to inspect and obtain a copy of public records within a reasonable time. The respondent is under a statutory duty to organize his office and employ his staff in such a way that his office will be able to make these records available for inspection * * *.’ ” State ex rel. Fox v. Cuyahoga Cty. Hosp. Sys. (1988), 39 Ohio St.3d 108, 111, 529 N.E.2d 443, 446, citing State ex rel. Beacon Journal Publishing Co. v. Andrews (1976), 48 Ohio St.2d 283, 289, 2 O.O.3d 434, 437, 358 N.E.2d 565, 569. Additionally, an anomaly exists in R.C. 149.43. All records must be promptly prepared and made available for inspection to any person at all reasonable times during regular business hours. R.C. 149.43(B). However, R.C. 149.43(A) envisions an opportunity on the part of the public office to examine records prior to inspection in order to make appropriate redactions of exempt materials. See R.C. 149.43(A)(2) and (A)(4); State ex rel. Natl. Broadcasting Co., supra, at paragraph two of the syllabus. “There is no requirement on the part of public agencies to create records that are not already in their possession, or to store records in a particular medium in order to provide greater public access to the records,” State ex rel. Margolius, supra, 62 Ohio St.3d at 461, 584 N.E.2d at 670, and “[a]ny increased financial burden” can usually “be passed on to the party making the request.” Id. at 460, 584 N.E.2d at 669, fn. 4. Relator does not seek — 624 — copies of everything requested. Instead, it wants to inspect everything requested and then decide whether to make copies following inspection. The right of inspection, as opposed to the right to request copies, is not conditioned on the payment of any fee under R.C. 149.43. Certainly, R.C. 149.43(B) is broad enough to permit relator’s requested inspection. However, if respondents wish to comply with the request, they must make another copy of the original file (assuming there is no dual record system already in place) and then make redactions on the copies before allowing relator’s inspection. Since relator may not ultimately request copies of the “copies” inspected, the financial burden in these circumstances is not passed on to the requesting party. Although this seems to force public offices to keep some sort of dual system that would retain their original files and yet still comply with public records inspection requests, any arguable burden in this regard is mandated by R.C. 149.43(B)’s requirement that “governmental units shall maintain public records in a manner that they can be made available for inspection in accordance with this division.” Further, as mentioned previously, any doubt in construing R.C. 149.43(B) must be resolved in favor of disclosure of public records. State ex rel. Cincinnati Post, supra. Here, respondents did not promptly comply with relator’s request within a reasonable time. Over four months passed from the time of the original request, and respondents were still delaying the review process by claiming further need to review the records to make redactions of exempted materials. The request by relator here, which included all incident reports and traffic tickets written in 1992, is admittedly broad. R.C. 149.43 does not contemplate that any individual has the right to a complete duplication of voluminous files kept by government agencies. See State ex rel. Zauderer v. Joseph (1989), 62 Ohio App.3d 752, 577 N.E.2d 444. However, relator does not seek “complete duplication” of the Warren Police Department’s files; it seeks files in certain categories from specific years in the same manner in which they are organized by respondents. See, e.g., State ex rel. Waterman v. Akron (Oct. 21, 1992), Summit App. No. 14507, unreported, 1992 WL 308525, where the appellate court upheld a request to inspect and copy traffic accident reports dated December 15,1989 through March 15, 1990 as not overbroad. Respondents contend that “[g]iven the multiple year requests, the budgetary and employee constraints, one records custodian with other duties, [and] the size of the requests, * * * they did in fact make available for reasonably prompt inspection all the records kept in the manner in which they were kept.” Respondents further assert that relator’s request forces them to “review and redact over 32,000 pages of documents per year for 5 to 6 years.” As relator — 625 — aptly notes, respondents’ assertions regarding the amount of documents and budgetary and employee constraints are not supported by submitted evidence. However, respondents’ brief refers to their need to redact Social Security numbers as well as “confidential law enforcement investigatory records,” R.C. 149.43(A)(2). To the extent that respondents still assert exemptions, an individualized scrutiny of the subject records and an in camera inspection is required pursuant to State ex rel. Natl. Broadcasting Co., supra, at paragraph four of the syllabus. See, also, Franklin Cty. Sheriff's Dept. v. State Emp. Relations Bd. (1992), 63 Ohio St.3d 498, 503, 589 N.E.2d 24, 28-29. “When a governmental body asserts that public records are excepted from disclosure and such assertion is challenged, the court must make an individualized scrutiny of the records in question.” State ex rel. Natl. Broadcasting Co., supra, at paragraph four of the syllabus. We subsequently held that in this context, “ ‘the court’ obviously means the court in which such assertion is challenged * * *.’ ” State ex rel. Beacon Journal Publishing Co. v. Radel (1991), 57 Ohio St.3d 102, 103, 566 N.E.2d 661, 663. However, in State ex rel. Natl. Broadcasting Co., supra, and Radel, the relators were not parties to any similar common pleas court consent judgment. Therefore, if respondents still claim exemptions, this court will conduct the required in camera review of the requested documents, since we reserve continuing jurisdiction over the matter. Relator’s second proposition is thus sustained in part and overruled in part. Relator asserts in its third proposition that copies of public records should be available at actual cost without charges for labor or employee time. Relator further contends that the $5 initial charge for the first page of any requested document does not reflect actual copying costs. R.C. 149.43(B) provides that “[u]pon request, a person responsible for public records shall make copies available at cost, within a reasonable period of time.” Although the court has not defined “at cost,” it has been stated that a public office, in its sound discretion, may adopt a reasonable policy setting a fee for copies obtained from the public office, with the fee reflecting the actual costs involved in making a copy, unless the cost is otherwise set by statute. 1989 Ohio Atty.Gen.Ops. No. 89-073; cf. State ex rel. Nelson v. Fuerst (1993), 66 Ohio St.3d 47, 48, 607 N.E.2d 836, 838, where the court referred in dicta to “reasonable cost” in a public records case. Since the General Assembly could have, but failed to, specify “reasonable cost,” we hold that R.C. 149.43(B) means “actual cost.” Although the federal Freedom of Information Act (“FOIA”) provides for specific fee provisions covering duplication, search, and review time, FOIA charges the news media for the costs of duplication only. See 1 Braverman, Chetwynd & Toran, Information Law (Supp.1990) 43-44, Section 3-3. Ohio does not specify any charge for search and/or review time in R.C. 149.43. As held by one Florida court, the “supervision, observation, and watchfullness over the — 626 — records is one of the prime duties that [a custodian] assumes when he takes the office, and the law fixes no fee or compensation therefor.’ ” Sunbeam Television Corp. v. Bay Harbor Islands (Fla.App.1981), 7 Med.L.Rptr. 1757, 1758, quoting State ex rel. Davis v. McMillan (1905), 49 Fla. 243, 248, 38 So. 666, 667. Since respondents are already compensated for performing their duties, and responding to public records requests is merely another duty, the cost set forth in R.C. 149.43(B) should not include labor costs regarding employee time. Respondents’ policy to the contrary was inconsistent with that provision. Additionally, there is no evidence in the record that the charge of $5 per initial page of each separate file is tied to the actual copying costs. See, e.g., State ex rel. Bonnell v. Cleveland (Aug. 26, 1993), Cuyahoga App. No. 64854, unreported, 1993 WL 335426 (court relied on stipulated evidence regarding actual per-page copying costs consisting of costs of toner, paper and copying time). Relator’s third proposition is sustained. Relator’s fourth proposition asserts that broad mandamus relief is appropriate when a public agency has repeatedly and habitually violated R.C. 149.43. Relator is entitled to the relief previously specified, i.e., an in camera hearing if respondents still claim specific exemptions, the right to inspect requested public records in the same manner in which they are organized, copies at actual cost without charges for employee time, and the ability to inspect the Warren Police Department’s requested public records from 8:00 a.m. until 4:00 p.m. every day. • Relator contends in its fifth and final proposition of law that it is entitled to attorney fees. An award of attorney fees under R.C. 149.43(C) is not mandatory. State ex rel. Fox, supra, at paragraph two of the syllabus. Relator must demonstrate a sufficient benefit to the public to warrant an award of attorney fees, and the court may also consider the reasonableness of respondents’ refusal to comply, since attorney fees are regarded as punitive. State ex rel. Beacon Journal Publishing Co. v. Ohio Dept. of Health (1990), 51 Ohio St.3d 1, 4, 553 N.E.2d 1345, 1347. We conclude from the evidence presented in this manner that the respondents, in retaliation for relator’s public records request, drastically reduced the amount of time that records are available for inspection. Prior to relator’s request, respondents allowed records to be inspected for an eight-hour period each day. After relator’s request was made, respondents allowed public records to be inspected for only three hours each day. This conduct by respondents directly conflicts with the portions of R.C. 143.43 that require public records to be available for inspection at all reasonable times during business hours. Relator’s request for attorney fees is granted. Accordingly, for the foregoing reasons, relator is granted a limited writ of mandamus as provided in this opinion. Writ granted in part and denied in part. — 627 — Moyer, C.J., A.W. Sweeney and Wright, JJ., concur. Douglas, Resnick and F.E. Sweeney, JJ., concur in part and dissent in part.