I must respectfully dissent not because the outcome is not a desirable result, but because it is contrary to the governing statute.
It is true that the courts have, for good reason, traditionally favored negotiated settlements to litigation. It is also true that negotiations are more likely to lead to a settlement if conducted privately, without interference from aggravating outside influences. From this perspective, the majority has arguably adopted the desirable social policy by holding that which is characterized as a draft settlement agreement need not be disclosed to the public. But, in this instance, what may be the desirable result from a policy perspective is simply not the law that the legislature has enacted.
The statute requires that public records defined as any record kept by any public office must be made available to the public upon request.13 A record is further defined to include "any document * * * received by * * * any public office * * * which serves to document the organization, functions, policy, decisions, procedures, operations, or other activities of the office."14 But these *Page 566 expansive definitions are limited by twenty-two exceptions.15 As the majority implicitly acknowledges, there is no exception that explicitly exempts draft settlement agreements from public disclosure. This is significant.
Other state's legislatures that have prohibited the disclosure of draft settlement agreements have done so explicitly.16 And our own legislature knows how to draft such explicit exceptions, because it has specifically exempted collective-bargaining negotiations from the disclosure otherwise required by Ohio's Sunshine Law.17 The absence of such an explicit exception, coupled with the requirement, as acknowledged by the majority, that exceptions to public disclosure are to be narrowly construed, with all doubts resolved in favor of disclosure,18 mandates disclosure here.
The majority also implicitly acknowledges that there is no Ohio authority controlling today's decision. They rely on dicta from opinions holding that final settlement agreements must be disclosed,19 even if the parties have agreed to keep the terms confidential.20 In so doing, the majority has shoehorned the facts of this case into the trial-preparation-record exception, which exempts from disclosure "any record that contains information that is specifically compiled in reasonable anticipation of * * * a civil or criminal action or proceeding."21
But one of the cases the majority cites also notes that "[a] settlement agreement is not a record compiled in anticipation of or in defense of a lawsuit. It simply does not prepare one for trial. A settlement agreement is a contract negotiated with the opposing party to prevent or conclude litigation."22 Because final settlement agreements must generally be disclosed, and, as the majority *Page 567 concedes, draft agreements must generally be disclosed,23 I would hold that draft settlement agreements must also generally be disclosed once they are received by the city.24
Finally, it is important to note that when a unit of the government refuses to release records, it bears the burden of proving that the records are exempt from disclosure.25 The stipulated record reflects only that the Department of Justice had conducted an investigation into alleged patterns and practices of the Cincinnati police department and forwarded a "proposed settlement agreement." That is the extent of the record. It contains nothing about the contents of the proposal, the impetus for the investigation, or what the city has done with the document. Thus we should not assume that the document was prepared in reasonable anticipation of legal action, since investigative materials are often prepared to determine what has occurred, not necessarily in anticipation of litigation.26 In sum, the city has failed to meet its burden of proof.
Though well meaning, the majority's decision misinterprets the law. If the law should be changed, the legislature should change it — we may not do so by judicial fiat. The Enquirer's writ should be granted.
13 R.C. 149.43
14 See R.C. 149.011(G).
15 See R.C. 149.43 (A)(1)(a) through (v).
16 See, e.g., Tex.Govt. Code Ann. Sec. 552.103 ("Exception: Litigation or Settlement Negotiations Involving the State"); Cal.Govt. Code Ann. 6254(a) (preliminary drafts, notes or memoranda); Mo.Ann. Stat. 610.021(1) (litigation matters made public only upon final disposition). Wis.Stat.Ann. 19.32(2) (public records do not include drafts).
17 See R.C. 121.22.
18 See State ex rel. Natl. Broadcasting Co. v. Cleveland (1988),38 Ohio St. 3d 79, 526 N.E.2d 786, paragraph two of the syllabus.
19 See State ex rel. Kinsley v. Berea Bd. of Educ. (1990),64 Ohio App. 3d 659, 582 N.E.2d 653.
20 See State ex rel. Findlay Publishing Co. v. Hancock Cty. Bd. ofCommrs. (1997), 80 Ohio St. 3d 134, 684 N.E.2d 1222.
21 See R.C. 149.43(A)(4).
22 See Kinsley, supra at 663, 582 N.E.2d 653. See, also, Duttonv. Guste (La. 1981), 395 So. 2d 683, 685.
23 See State ex rel. Calvary (2000), 89 Ohio St. 3d 229, 232,729 N.E.2d 1182.
24 See Times Pub. Co. v. St. Petersburg (Fla. 2d App., 1990),558 So. 2d 487, 494.
25 See State ex rel. Natl. Broadcasting Co. v. Cleveland, supra.
26 See State ex rel. Ohio Patrolmen's Benevolent Assn. v. Mentor (2000), 89 Ohio St. 3d 440, 445, 732 N.E.2d 969. *Page 568