State ex rel. Beacon Journal Publishing Co. v. Whitmore

Per Curiam. R.C. 149.011(G) and 149.43; Public Records Relators assert that they are entitled to a writ of mandamus to compel the disclosure of the requested letters. Mandamus is the appropriate remedy to compel compliance with Ohio’s Public Records Act, R.C. 149.43. State ex rel. Steckman v. Jackson (1994), 70 Ohio [63] St.3d 420, 426, 639 N.E.2d 83, 89. A “public record” is “any record that is kept by any public office * * *.” R.C. 149.43(A)(1). Judge Whitmore’s office is a “public office.” R.C. 149.011(A) and (B). R.C. 149.011(G) defines “records” broadly to include “any document, device, or item, regardless of physical form or characteristic, created or received by or coming under the jurisdiction of any •public office of the state or its political subdivisions, which serves to document the organization, functions, policies, decisions, procedures, operations, or other activities of the office.” (Emphasis added.) See, generally, State ex rel. Thomas v. Ohio State Univ. (1994), 71 Ohio St.3d 245, 246-247, 643 N.E.2d 126, 128. While it is uncontroverted that Judge Whitmore received the letters and placed them in her files, we hold that, for the following reasons, the letters were not “records” for purposes of R.C. 149.011(G) and 149.43 because they do not serve to document Judge Whitmore’s sentencing decision or any other activity of her office. Judge Whitmore did not use the letters in her decision to sentence Lewis. The R.C. 149.011(G) definition of “records” has been construed to encompass “ ‘anything a governmental unit utilizes to carry out its duties and responsibilities * * *.’ ” State ex rel. Mazzaro v. Ferguson (1990), 49 Ohio St.3d 37, 39, 550 N.E.2d 464, 466, quoting State ex rel. Jacobs v. Prudoff (1986), 30 Ohio App.3d 89, 92, 30 OBR 187, 190, 506 N.E.2d 927, 930; see, also, State ex rel. Rea v. Ohio Dept. of Edn. (1998), 81 Ohio St.3d 527, 530, 692 N.E.2d 596, 600. Judges often receive numerous letters from interested parties attempting to persuade the judge to their viewpoint or to bring some information to the judge’s attention. Many judges have their staff screen and discard such mail because it constitutes an improper ex parte communication, or a judge may, once it becomes apparent what the letter involves, cease reading the letter and, preferably discard the same. Here, although Judge Whitmore did not discard the letters, she never utilized the letters in her sentencing decision. Therefore, the letters are not subject to disclosure because they do not serve to document the organization, functions, policies, decisions, procedures, operations, or other activities of Judge Whitmore’s office. See State ex rel. Wilson-Simmons v. Lake Cty. Sheriffs Dept. (1998), 82 Ohio St.3d 37, 41, 693 N.E.2d 789, 792-793. By so holding, we reject relators’ contention that a document is a “record” under R.C. 149.011(G) if the public office “could use” the document to carry out its duties and responsibilities. While we noted in Mazzaro that “the Auditor either did or could have used Deloitte’s records in furtherance of its responsibility to complete the Euclid biennial audit,” we emphasized the Jacobs test of “anything a governmental unit utilizes to carry out the duties and responsibilities”, to determine whether the documents were records under R.C. 149.011(G). [64] (Emphasis added.) Mazzaro, 49 Ohio St.3d at 39, 550 N.E.2d at 466; Jacobs, 30 Ohio App.3d at 92, 30 OBR at 190, 506 N.E.2d at 930. Mazzaro involved records prepared by a private auditor based on authority delegated by a public officer. The dictum in Mazzaro does not expand the R.C. 149.011(G) definition of “records.” Just as R.C. 149.43(A)(1) “does not define a ‘public record’ as any piece of paper on which a public officer writes something,” State ex rel. Steffen v. Kraft (1993), 67 Ohio St.3d 439, 440, 619 N.E.2d 688, 689, R.C. 149.43 and 149.011(G) do not define “public record” as any piece of paper received by a public office that might be used by that office. Cf. Tax Analysts v. United States Dept. of Justice (C.A.D.C.1988), 845 F.2d 1060, 1068 (“Of course, agency possession and power to disseminate a document are still insufficient by themselves to make it an ‘agency record.’ * * * Agencies must use or rely on the document to perform agency business, and integrate it into their files, before it may be deemed an ‘agency record.’ ”). A contrary conclusion would lead to the absurd result that any document received by a public office and retained by that office would be subject to R.C. 149.43 regardless of whether the public office ever used it to perform a public function. The plain language of R.C. 149.011(G), which requires more than mere receipt and possession of a document in order for it to be a record for purposes of R.C. 149.43, prohibits this result. WilsorirSimmons, 82 Ohio St.3d at 41, 693 N.E.2d at 792-793. Based on the foregoing, the letters are not records under R.C. 149.011(G) and are not subject to disclosure as public records under R.C. 149.43. Accordingly, we deny the writ. Writ denied. Douglas, Resnick, F.E. Sweeney and Lundberg Stratton, JJ., concur. Moyer, C.J., Pfeifer and Cook, JJ., dissent.