State ex rel. Dispatch Printing Co. v. City of Columbus

Moyer, C.J. The issue presented by this appeal is whether the FOP could legally intervene in the mandamus action filed by the Dispatch, which seeks the release of public records pursuant to R.C. 149.43, based upon a provision in a collective bargaining agreement that requires periodic disposal of certain police records. Because our decision in State ex rel. Dispatch Printing Co. v. Wells (1985), 18 Ohio St.3d 382, 18 OBR 437, 481 N.E.2d 632, controls the disposition of this case, we affirm the judgment of the court of appeals. Civ.R. 24(A)(2) provides that anyone shall be allowed to intervene in a cause of action if “the applicant claims an interest relating to the property or transaction that is the subject of the action and the applicant is so situated that the disposition of the action may * * * impede the applicant’s ability to protect that interest * * *.” Furthermore, the applicant’s interest in the action must be one that is “legally protectable.” In re Schmidt (1986), 25 Ohio St.3d 331, 336, 25 OBR 386, 391, 496 N.E.2d 952, 957. Because we conclude that the FOP, through — 41 — a collective bargaining agreement, cannot bar the statutorily mandated release of available public records, we hold that its interest was not an interest that is “legally protectable.” In enacting R.C. 149.43, the General Assembly sought to provide broad access to public records. State ex rel. Allright Parking of Cleveland, Inc. v. Cleveland (1992), 63 Ohio St.3d 772, 775, 591 N.E.2d 708, 710. As we have stated, the exceptions to R.C. 149.43 are limited, and the statute must be liberally construed to provide access unless access is clearly not provided by statute. See State ex rel. Wadd v. Cleveland (1998), 81 Ohio St.3d 50, 51-52, 689 N.E.2d 25, 27. When the release of a public record is challenged, it is the function of the courts to analyze the information to determine whether it is exempt from disclosure. See State ex rel. Natl. Broadcasting Co. v. Cleveland (1988), 38 Ohio St.3d 79, 526 N.E.2d 786. When we examine the requested information at issue, there is no question that it is a public record. The FOP concedes this fact in its brief. The FOP argues, however, that because the requested information should have been disposed of pursuant to a provision in a collective bargaining agreement, the requested information can no longer be released. Essentially the FOP is asking us to hold that if a collective bargaining agreement sets forth a time frame for the destruction of public records, once that time expires the information loses its status as a public record. As we have often stated, so long as a public record is kept by a government agency, it can never lose its status as a public record. State ex rel. Cincinnati Enquirer v. Hamilton Cty. (1996), 75 Ohio St.3d 374, 378, 662 N.E.2d 334, 338; see, also, State v. Williams (2000), 88 Ohio St.3d 513, 526, 728 N.E.2d 342, 356. Accordingly, even if a public record was scheduled for disposal but was not destroyed, it remains a public record kept by a government agency and is subject to the terms of R.C. 149.43. The only question that remains, then, is whether a provision in a collective bargaining agreement may supersede the mandates of R.C. 149.43. We answered this question in Wells. In Wells, a newspaper requested the civil service personnel files of a police detective. The civil service commission refused to provide the requested documents, citing a provision in a collective bargaining agreement between the city and the police department which indicated that ensuring the confidentiality of personnel records of police officers would take precedence over R.C. 149.43. 18 Ohio St.3d at 384, 18 OBR at 438, 481 N.E.2d at 634. The civil service commission argued that the collective bargaining agreement prevailed over R.C. 149.43 because former R.C. 4117.10(A) stated that, with regard to collective bargaining agreements, “Chapter 4117 of the Revised Code prevails over any and all other conflicting laws, resolutions, provisions, present or future, except as — 42 — otherwise specified in Chapter 4117 of the Revised Code or as otherwise specified by the General Assembly.” We found this argument to be without merit. We held that “[t]he wording in the cited portion of R.C. 4117.10(A) was designed to free public employees from conflicting laws which may act to interfere with the newly established right to collectively bargain. If respondents’ construction of this provision were accepted, private citizens would be empowered to alter legal relationships between a government and the public at large via collective bargaining agreements.” 18 Ohio St.3d at 384, 18 OBR at 439, 481 N.E.2d at 634. Such a result was beyond the General Assembly’s contemplation in enacting R.C. 4117.10(A). The FOP argues, however, that the court of appeals misapplied Wells, stating that both the requested information and the collective bargaining provision at issue in Wells are factually distinct from those at issue in this case and, therefore, R.C. 4117.10(A) nullifies the effect of R.C. 149.43. Although the requested information and provisions are different, the FOP misinterprets the true purpose of R.C. 4117.10(A). The statement in current R.C. 4117.10(A) that “this chapter [R.C. Chapter 4117] prevails over any and all other conflicting laws” was never meant to allow parties to circumvent other laws passed by the General Assembly through the collective bargaining process. If the FOP’s interpretation of R.C. 4117.10(A) were correct, then parties to a collective bargaining agreement could include a provision that all disputes between labor and management would be settled by a duel. As indicated in Wells, “[i]t is an axiom of judicial interpretation that statutes be construed to avoid unreasonable or absurd consequences.” 18 Ohio St.3d at 384, 18 OBR at 439, 481 N.E.2d at 634. It is not the substantive subject matter that the parties collectively bargain for that R.C. 4117.10(A) seeks to protect, but rather the procedures of the collective bargaining process. R.C. 4117.10(A) protects the procedures of the bargaining process with the goal of providing robust, open communication between the respective parties. The procedures for bargaining outlined in R.C. Chapter 4117 will, therefore, take precedence over any and all contrary laws, regulations, or resolutions that attempt to alter the bargaining process. While R.C. 4117.10(A) protects the procedures for collective bargaining, it does not allow parties to contract away the obligations of a government to its citizens. Cf. State ex rel. Dist. 1199, Health Care & Social Serv. Union v. Gulyassy (1995), 107 Ohio App.3d 729, 738-739, 669 N.E.2d 487, 493. Further, there is nothing in either R.C. Chapter 4117 or Chapter 149 that mandates disposal of public records. R.C. Chapter 4117 does not suggest in any of its sections that R.C. Chapter 4117 prevails over R.C. 149.43. In addition, while R.C. Chapter 149 includes several provisions that require various state — 43 — agencies to provide rules and review procedures for public record disposal, it does not require the disposal of public records at any specified intervals of time. See R.C. 149.333. Accordingly, because the FOP could not legally bar the production of available public records through a records disposition provision in a collective bargaining agreement, it had ■ no “legally protectable” interest that would allow it to intervene in the mandamus action filed by the Dispatch. We therefore affirm the judgment of the court of appeals. Judgment affirmed. Cook, J., concurs. Pfeifer and Lundberg Stratton, JJ., concur in part and dissent in part. Douglas, Resnick and F.E. Sweeney, JJ., dissent.