State ex rel. Polovischak v. Mayfield

Douglas, J.,

dissenting. I respect-

fully dissent from the holding of the majority. I would affirm the well-reasoned judgment of the court of appeals in all respects.

*55It is discouraging to see the majority take yet another step away from our previous holdings in public records cases. R.C. 149.43 was intended by the General Assembly to, among other things, ensure the openness of government by affording citizens access to governmental information through inspection of governmental records. With only very limited and narrow exceptions (R.C. 149.43[A][2]), “public record[s],” as defined in R.C. 149.43(A)(1), must be open to the inspection of the public. In fact, the records belong to the public, and the official holding such records does so on behalf of the public.

The majority, in the case at bar, says that some of the records sought are “confidential law enforcement investigatory records.” I do not agree.

The Internal Security Committee of the Bureau of Workers’ Compensation has duties and responsibilities which are set forth in R.C. 4121.122. The question is whether the records generated in performing the statutorily mandated duties pertain to “law enforcement.” The majority says “yes” and I think the majority is wrong.

Virtually all regulatory bodies have statutory and rulemaking authority to enforce the laws coming under their jurisdiction. Such authority may include criminal, quasi-criminal, civil or administrative sanctions. Even accepting this, it does not follow that all the functions of such an administrative agency are “law enforcement” matters.

Further, it would seem that if a “law enforcement” exception for requested records is sought, some legal enforcement activity should be ongoing or at least contemplated. The investigation involved here occurred over four years ago and no “enforcement” action has been taken.

R.C. 149.43(A)(2) provides that a confidential law enforcement investigatory record is “* * * any record that pertains to a law enforcement matter.” (Emphasis added.) I would find that the records sought to be reviewed are not confidential “law enforcement” investigatory records because they do not pertain to a law enforcement matter. Accordingly, the records should not be exempt from disclosure, and because the majority reaches the opposite conclusion, I respectfully dissent.