State ex rel. Quolke v. Strongsville City School District Board of Education

Per Curiam. ¶ 1 This is an appeal of a judgment in an action seeking public records brought by appellee, David Quolke, president of the Cleveland Teachers Union, against appellants, Strongsville City School District Board of Education, its superintendent, the board president, and the board treasurer (collectively, “the board”). Quolke requested the release of the names and identification numbers of all teachers and substitute teachers (“replacement teachers”) employed by the 510 board during a teachers’ strike. The board asserted that releasing the names of those teachers would violate their privacy and put them in danger from striking teachers and their supporters. The court of appeals found for Quolke and ordered the board to produce the names. ¶ 2 The board has presented little evidence that there is any threat to the teachers’ privacy or well-being now that the strike is over. We affirm. Facts ¶ 3 The board operates a preschool and ten elementary and secondary public schools in its district, serving over 6,200 students. The board employs approximately 385 teachers and other licensed personnel. The teachers are represented by the Strongsville Education Association (“SEA”) for collective bargaining of the terms and conditions of employment. Quolke is the president of the Cleveland Teachers Union. The strike and associated incidents ¶ 4 On February 21, 2013, SEA gave the board ten days’ notice under R.C. 4117.14(D) that it would strike at 12:00 a.m. on Monday, March 4, 2013. On March 4, SEA commenced its labor strike. ¶ 5 The day before the strike, the board began hiring temporary replacement teachers to take the place of the striking SEA teachers. The board used the city of Strongsville’s council chambers to conduct background checks, collect paperwork, and otherwise process applications for employment of replacement teachers. On March 3, a crowd of 75 to 100 people outside the city-council building chanted, jeered, and cursed at the applicants as they entered and exited the building to apply for jobs. The crowd took pictures of applicants and screamed obscenities at one applicant who entered the building with her two small children. ¶ 6 Many applicants were visibly shaking when they entered the building. Others were in tears and afraid to leave. Eventually, school administrators began leading applicants to their cars through a rear entrance with a police escort. Some applicants never returned. Several media outlets reported on the crowd’s actions. ¶ 7 During the strike, acts of harassment and intimidation aimed at the replacement teachers continued. Replacement teachers discovered notes left in classrooms containing offensive messages. Signs were distributed in neighborhoods where some replacement teachers lived identifying the teacher by name and disclosing his or her address. SEA posted a “wall of shame” on its website with the pictures of some replacement teachers; the posting was accompanied by derogatory and offensive comments. Picketers continued to harass and intimidate replacement teachers during the strike. 511 ¶ 8 It was reported that a striking teacher was arrested by the Strongsville Police Department for reckless driving when he allegedly cut off a van transporting replacement teachers to work. The replacement teachers reported to the police that the other driver nearly caused a collision with the van. The replacement teachers described the incident as “harrowing” and “outrageous” and stated that they “feared the worst” and were “frightened.” ¶ 9 A replacement teacher reported to the police that she was driving home after work when a car pulled up next to her and the passenger yelled “scab” and threw an object at her windshield, breaking the glass. ¶ 10 The strike ended April 28, 2013. The public-records request ¶ 11 On March 5, 2013, and again on March 20, 2013, attorneys Susannah Muskovitz and William Froehlich, at Quolke’s direction, made public-records requests of the board. Specifically, they requested the names, home addresses, home-telephone numbers, cell-phone numbers, employee-identification numbers, and payroll information for all replacement teachers employed by the board from the date the strike began until the date of the request. ¶ 12 On April 3, 2013, after the board indicated that it would respond but did not do so, Quolke sued in mandamus in the Eighth District Court of Appeals for the records. ¶ 13 On April 4, 2013, before it had been served with the lawsuit, the board provided copies of some responsive records, but claimed that many of the requested records were not subject to disclosure. In particular, the board asserted that the names of the replacement teachers were not considered public records because of the threat of harm to those teachers. ¶ 14 Quolke amended his complaint in the public-records case, eventually narrowing the question to whether the names of all teachers employed by the board between March 4, 2013, and the request were public records. ¶ 15 The court of appeals determined first that Quolke had standing to sue, even though he had not personally made the public-records request but had done so through his counsel. The court also determined that the board was required to disclose the names of the replacement teachers because there was insufficient evidence regarding the threat of harm after the strike had ended on April 28, 2013. The court stated that it issued the writ “taking into consideration the facts and circumstances” as they existed at the time the opinion was rendered. 8th Dist. Cuyahoga No. 99733 (Aug. 21, 2013). The court specifically stated that it was not resolving “the issue whether the constitutional right of privacy and personal safety” could prohibit the release of the names during a strike. The 512 court denied Quolke’s request for statutory damages, but it ordered further evidence and briefing regarding attorney fees. ¶ 16 On October 7, 2013, the court issued a final journal entry and opinion awarding Quolke $7,972.50 in attorney fees and costs. 2013-Ohio-4481, 2013 WL 5594445. The court of appeals rejected the argument that Quolke was not entitled to fees because he had failed to demonstrate that he was personally responsible for paying the fees. ¶ 17 The board appealed and requests that this court reverse the judgment and hold that Quolke lacked standing to bring the action, that the names of the replacement teachers are not a public record, and that Quolke is not entitled to attorney fees. Analysis Public records ¶ 18 “Mandamus is the appropriate remedy to compel compliance with R.C. 149.43, Ohio’s Public Records Act.” State ex rel Physicians Commt. for Responsible Medicine v. Ohio State Univ. Bd. of Trustees, 108 Ohio St.3d 288, 2006-Ohio-903, 843 N.E.2d 174, ¶ 6; R.C. 149.43(C)(1). Thus, mandamus is the appropriate remedy for Quolke to obtain access to a public record. ¶ 19 Although “[w]e construe the Public Records Act liberally in favor of broad access and resolve any doubt in favor of disclosure of public records,” State ex rel. Rocker v. Guernsey Cty. Sheriffs Office, 126 Ohio St.3d 224, 2010-Ohio-3288, 932 N.E.2d 327, ¶ 6, the relator must still establish entitlement to the requested extraordinary relief by clear and convincing evidence, State ex rel. Doner v. Zody, 130 Ohio St.3d 446, 2011-Ohio-6117, 958 N.E.2d 1235, paragraph three of the syllabus. ¶ 20 To be entitled to a writ of mandamus, Quolke must establish a clear legal right to the requested relief and a clear legal duty on the part of the board to provide it. State ex rel. Am. Civ. Liberties Union of Ohio, Inc. v. Cuyahoga Cty. Bd. of Commrs., 128 Ohio St.3d 256, 2011-Ohio-625, 943 N.E.2d 553, ¶ 22, citing State ex rel. Broum v. Lemmerman, 124 Ohio St.3d 296, 2010-Ohio-137, 921 N.E.2d 1049, ¶ 9. Standing ¶ 21 In its first proposition of law, the board argues, as it did below, that Quolke lacks standing to bring this case because his attorneys did not inform the board that they were making the public-records request on his behalf. The board argues that R.C. 149.43(C)(1) allows only “the person allegedly aggrieved” to commence a mandamus action for public records and that Quolke cannot be the “person allegedly aggrieved.” However, the board does not assert that Quolke 513 was not the real requester, just that they were not informed that Quolke, and not the law firm, was the actual requestor of the documents. ¶ 22 Just because the board did not initially know Quolke was the requestor does not mean he is not the “person aggrieved.” Our opinion in State ex rel. Steckman v. Jackson, 70 Ohio St.3d 420, 639 N.E.2d 83 (1994), contradicts the board’s argument. In that case, we examined the definition of a “person” under R.C. 149.43 and concluded that the definition is broad and permits anyone to obtain records under the Public Records Act. We concluded that “if the records sought are, in fact, public and not subject to any exception as to their release, then whether or not a person is acting as a designee is not an issue.” Id. at 427. ¶ 23 We reiterated in Rhodes v. New Philadelphia, 129 Ohio St.3d 304, 2011-Ohio-3279, 951 N.E.2d 782, ¶ 20, that “a public office is obligated to honor a records request by ‘any person’ and that a person does not have to explain his or her reasons for wanting to inspect and copy a public record in order to validly request the record.” The concept is codified in R.C. 149.43(B)(4), which states that unless it is otherwise specifically permitted by law, “no public office or person responsible for public records may limit or condition the availability of public records by requiring disclosure of the requester’s identity or the intended use of the requested public record.” ¶ 24 Therefore, the identity of the original requester, as well as his reason for requesting the records, is irrelevant, and Quolke is an “aggrieved person” even though he made his original requests through counsel. He has standing to sue, and we affirm the court of appeals on that issue. Release of the teachers’ names ¶ 25 In its second proposition of law, the board argues that it properly withheld the names of the replacement teachers under R.C. 149.43(A)(l)(v), which allows the withholding of records “the release of which is prohibited by state or federal law,” to protect the replacement teachers’ privacy and well-being. The case law does establish a right to privacy in circumstances in which a person might be at substantial risk of serious bodily harm if personal information is disclosed. State ex rel. Cincinnati Enquirer v. Craig, 132 Ohio St.3d 68, 2012-Ohio-1999, 969 N.E.2d 243, ¶ 14 (officers who were targeted by gang members as the result of a shootout had a fundamental constitutional interest in preventing the release of private information when disclosure would create a substantial risk of serious bodily harm and even death); State ex rel. Keller v. Cox, 85 Ohio St.3d 279, 282, 707 N.E.2d 931 (1999) (“good sense” rule prevents release of files containing police officers’ personal information to a criminal defendant who might use the information for “nefarious ends”); State ex rel. McCleary v. Roberts, 88 Ohio St.3d 365, 371-372, 725 N.E.2d 1144 (2000) (photo-identification database of 514 children attending city swimming pools is not a public record partly because the release of the children’s private information to the public increases the risk of harm to the children). ¶ 26 Some cases also indicate that even when imminent bodily harm is not threatened or is not a potential risk, disclosure is nevertheless precluded because of the potential for nonphysical harm. See, e.g., State ex rel. Beacon Journal Publishing Co. v. Akron, 70 Ohio St.3d 605, 609-610, 640 N.E.2d 164 (1994) (social security numbers of government employees are exempt because of the harm that can be inflicted by the disclosure of the number to unscrupulous individuals). ¶ 27 During the strike, the replacement teachers were primarily subjected to nonphysical threats, such as jeering and obscenities when they arrived to apply for the jobs, nasty notes left in classrooms, and the distribution of “scab” leaflets. However, there were also a few reports of incidents that threatened the physical safety of replacement teachers, such as the reckless-driving incident when a van carrying replacement teachers was cut off on the road and the incident in which an object was thrown through the windshield of a replacement teacher’s car. There may have been a genuine threat to the replacement teachers’ physical well-being from supporters of the strike. ¶ 28 Thus, during the strike, the board reasonably concluded that disclosure of the names and other personal information about the replacement teachers would expose them to a substantial risk of serious harm. ¶ 29 However, in general, a court is to consider the facts and circumstances existing at the time that it makes its determination on a writ of mandamus, not at some earlier time. State ex rel. Pressley v. Indus. Comm., 11 Ohio St.2d 141, 162, 228 N.E.2d 631 (1967).1 ¶ 30 The board points out that one of the threats against the replacement teachers was that their decision to work during the strike would “follow them throughout their careers.” However, the court of appeals granted the writ specifically because the board had presented little or no evidence that once the strike was over, there was any remaining threat to the replacement teachers. That decision was issued “taking into consideration the facts and circumstances as they exist[ed] * * *, several months after the strike.” 8th Dist. Cuyahoga No. 099733, ¶ 12 (Aug. 21, 2013). 515 ¶ 31 The court of appeals did not abuse its discretion by holding that the danger of retaliation or physical harm to the replacement teachers had receded at the time that it made its decision and that the board is now obligated to produce the relevant documents with the teachers’ names unredacted. We therefore affirm the court of appeals on this issue. Attorney fees ¶ 32 The board argues in its third proposition of law that the court of appeals erred in awarding Quolke attorney fees because he has not shown that he is personally responsible for paying those fees. The board points to cases in which this court and lower courts have denied fees on this basis, but those cases are inapposite. ¶ 33 Quolke was represented by an independent law firm. Unlike in State ex rel. O’Shea & Assocs. Co., L.P.A. v. Cuyahoga Metro. Hous. Auth., 131 Ohio St.3d 149, 2012-Ohio-115, 962 N.E.2d 297, ¶ 45, he was not an employee or partner in the firm. Unlike in State ex rel. Beacon Journal Publishing Co. v. Akron, 104 Ohio St.3d 399, 2004-Ohio-6557, 819 N.E.2d 1087, ¶ 62, he was not represented by in-house counsel. And unlike in State ex rel. Besser v. Ohio State Univ., 87 Ohio St.3d 535, 542, 721 N.E.2d 1044 (2000), he was not represented by a relative. ¶ 34 The board argues that because Quolke is the president of the teachers’ union, it is really the union, not Quolke, who is obligated to pay the fees, and therefore he should not be awarded fees. This argument is also without merit for at least two reasons. First, evidence shows that he is a client of a law firm; the time sheet and other statements submitted by counsel refer to the client as Quolke, not the union. And second, even if Quolke is a front or designee for the union, someone is obligated to pay the attorney fees, unlike in O’Shea, Beacon Journal, or Besser. Counsel here is an independent law firm, and therefore Quolke is entitled to request fees when appropriate. We affirm on this issue also. Judgment affirmed. O’Connor, C.J., and Pfeifer, Kennedy, French, and O’Neill, JJ., concur. O’Donnell and Lanzinger, JJ., dissent. Footnotes [1] This principle is not absolute. For example, when a mandamus action involves the review of an administrative agency’s discretion, the decision to issue the writ must be made based on the facts before the agency at the time it made its original decision. State ex rel. Portage Lakes Edn. Assn., OEA/NEA v. State Emp. Relations Bd., 95 Ohio St.3d 533, 2002-Ohio-2839, 769 N.E.2d 853, ¶ 55.