dissenting. Appellee, Akron Beacon Journal, prior to filing a complaint in mandamus in the Fifth District Court of Appeals, attempted to have Judge Ket-tler conduct an in camera inspection of the records of former Judge Musser, since it had been brought to the ap-pellee’s attention during the campaign of Judges Musser and Kettler that records of Judge Musser may not have been sealed in accordance with R.C. Chapter 2953. However, Judge Kettler failed to conduct an in camera inspection and instead filed a certificate of disqualification in the Stark County Common Pleas Court. Appellee, being unable to obtain the relief it sought in the trial court, sought a writ of mandamus in the court of appeals. The court of appeals granted a peremptory writ ordering Judge Kettler to conduct an in camera inspection of the records of former Judge Musser and, if any records were found to have been improperly sealed, to disclose them to ap-pellee.
The majority, in reversing the judgment of the appellate court, relies on State, ex rel. Natl. Broadcasting Co., v. Cleveland (1988), 38 Ohio St. 3d 79, 526 N.E. 2d 786, paragraph four of the syllabus, wherein it is stated, “[w]hen a governmental body asserts that public records are excepted from disclosure and such assertion is challenged, the court must make an individualized scrutiny of the records in question.* * *” In this instance no actual challenge is being made by anyone at this point regarding the question of disclosure. Instead, the only real issue in this case is which court is to make the in camera inspection of Judge Musser’s cases. A majority of tins court would have the court of appeals make such inspection, contending that before a writ can be issued a hearing and in camera inspection must be conducted. However, under the circumstances of this case the inspection properly falls within the jurisdiction of the Massillon Municipal Court, where all of the records in question are found.
The keepers of these records are the judges of the Massillon Municipal Court and the clerk of that court; all are parties to this action.1 The appellee’s requests for access were directed to the Clerk of Court and Judge Kettler. It was the duty of a judge of the Massillon Municipal Court to hold a hearing to determine the very issues which this court is requiring the court of appeals to determine. A majority of this court has placed an impossible task upon the court of appeals.
In the complaint for the writ of mandamus, it is alleged that former Judge Musser did not comply with R.C. Chapter 2953. R.C. 2953.52(B)(1) provides in pertinent part that “* * * the court shall set a date for a hearing and shall notify the prosecutor * * *.” The statute then proceeds to set forth the procedure for the court to follow in determining whether to grant the application to seal the records. The af*106fidavit of Jolene Limbacher, a reporter employed by appellee, states that the Massillon Law Director, John D. Fer-rero, Jr., was not notified when the records of a Meghan Howes were sealed. Additionally, in that same affidavit it is alleged that Ferrero told Lim-bacher that he was aware of one other illegal expungement. Under the facts found in the complaint in mandamus and affidavit, the appellate court was correct to issue a peremptory writ. These issues should be resolved in the trial court.
Additionally, the majority raises the question of whether due process requires notifying the persons whose records were previously sealed. Again, the Massillon Municipal Court is in a much better position to properly address these concerns.
Thus, this case falls squarely within the holding of State, ex rel. Cleveland Hts., v. Cuyahoga Metro. Hous. Auth. (1990), 50 Ohio St. 3d 47, 553 N.E. 2d 249, wherein we distinguished the holding of State, ex rel. Temke, v. Outcalt (1977), 49 Ohio St. 2d 189, 3 O.O. 3d 248, 360 N.E. 2d 701. As in Cleveland Hts., the case before us involves a situation where the right to performance is clear. An in camera inspection must be conducted to determine which records of former Judge Musser have been improperly sealed. This is an act which the municipal court is under a clear legal duty to perform.
The majority states that the court of appeals granted relief on the naked assertions of the Beacon Journal. However, the Beacon Journal had attempted to get the trial court to act on this matter to no avail. It was the duty of the trial court when it was called to its attention that some of its records were improperly sealed to hold a hearing to determine the truth or falsity of such allegations. The judges of the municipal court did nothing when these allegations were made, thus causing the Beacon Journal to resort to the appellate court for relief. The appellate court has granted a peremptory writ only to get the trial court to do what it should have done in the first instance. It is the function of the trial court to conduct a hearing and ascertain the truth of the allegations presented to it.
I would affirm the decision of the Fifth District Court of Appeals, which issued a peremptory writ on May 14, 1990, ordering Judge Richard T. Ket-tler, the Presiding Judge of the Massillon Municipal Court, to review in camera criminal records sealed by former Judge Virgil Musser and to release any records found to have been improperly sealed.
Douglas, J., concurs in the foregoing dissenting opinion.Although Judge Eugene M. Fellmeth, the only other judge of the Massillon Municipal Court, was not named as a party in the court of appeals, appellee Beacon Journal has filed a motion in this court to join Judge Fellmeth as a party, as well as an amended complaint naming him as a respondent. While this court has not ruled on this motion, Judge Fellmeth joined Judge Kettler in filing an answer to this amended complaint, so it can fairly be said that he has submitted himself to the jurisdiction of this court.