State ex rel. Fenley v. Ohio Historical Society

Douglas, J.,

dissenting. Today a majority of this court takes yet another whack at the public records law. See, e.g., State ex rel. Toledo Blade Co. v. Northwood (1991), 58 Ohio St.3d 213, 569 N.E.2d 904. Because I disagree *513with the holding of the majority, I must respectfully dissent. I do so because I believe that the majority has incorrectly construed R.C. 149.43(B).

The parties to this original action in mandamus are Ann Fenley (“relator”), a resident citizen of Ohio who, for many years, has pursued the vocation of genealogy, and the Ohio Historical Society (“OHS”) and certain officials and employees of OHS, collectively referred to as “respondents.” OHS is a state-chartered nonprofit corporation which performs specified public functions. Included among the public functions of the OHS is OHS serving as the archives administration for the state and its political subdivisions as provided for in R.C. 149.31 to 149.42. OHS is an “archival institution” pursuant to R.C. 149.44.

Prior to December 1988, the Ohio Department of Health, Division of Vital Statistics (“DVS”) (now office of Vital Statistics), had possession of all death certificates of Ohio decedents for the time period of 1908-1936. On occasion, when relator sought a copy or copies of death certificates, she would mail her request to DVS which would provide her the requested copies at $1.10 each. If a special search of the files and records became necessary to locate the requested certificate, an additional charge was made in accordance with former R.C. 3705.05 (now see 3705.24[A]).

In December 1988, DVS transferred the 1908-1936 death certificates to OHS. Relator soon discovered that the DVS copying and mailing policy and charges would not be followed by OHS. While the cost factor of making the copies in question has been placed at issue by the parties, the majority only decides the question of whether, upon proper request and payment of some fee, a public record must be mailed to a requesting person by an agency holding public records. Because the majority does not deal with the cost factor, neither will this dissent notwithstanding that such question is a critical part of this case. Suffice to say, OHS’s policy of charging relator for requested copies by mail amounts to nearly a six hundred percent increase over the costs previously charged by DVS.

Feeling that she was an “aggrieved” person, relator commenced this original action in mandamus. She did so on the basis that her rights granted by R.C. 149.43 were being abridged in two ways: that she could not obtain copies of records by mail and that she could not receive copies at “cost” as provided for by statute. While it appears from the record that OHS would make the copies available by mail to relator at a specified cost, the majority nevertheless decides this case solely on the basis that a custodian of public records does not have a duty, even given a proper request and tendered payment, to mail properly requested public records. It is with this decision of the majority that I take exception.

*514R.C. 149.43(B) provides that:

“All public records shall be promptly prepared and made available for inspection to any person at all reasonable times during regular business hours. Upon request, a person responsible for public records shall make copies available at cost, within a reasonable period of time. In order to facilitate broader access to public records, governmental units shall maintain public records in such a manner that they can be made available for inspection in accordance with this division.” (Emphasis added.)

The majority, in construing the term “available,” as used in R.C. 149.43(B), says that “the word ‘available’ is not synonymous with ‘available by mail.’ To apply that interpretation would be to rewrite the statute beyond what its literal words will support. Such an interpretation of the statute would require this court to add words to R.C. 149.43.” I do not agree.

The rationale behind Ohio’s public records law is that public records belong to the public, and the governmental unit or custodian holding the record does so on behalf of the public. See State ex rel. Natl. Broadcasting Co. v. Cleveland (1988), 38 Ohio St.3d 79, 526 N.E.2d 786. “Further, the law’s public purpose requires a broad construction of the provisions defining public records. Because the law is intended to benefit the public through access to records, this court has resolved doubts in favor of disclosure.” (Emphasis added.) State ex rel. Cincinnati Post v. Schweikert (1988), 38 Ohio St.3d 170, 173, 527 N.E.2d 1230, 1232.

By its own terms, R.C. 149.43(B) runs counter to the majority’s opinion. R.C. 149.43(B) explicitly provides that “[i]n order to facilitate broader access to public records, governmental units shall maintain public records in such a manner they can be made available for inspection * * (Emphasis added.) Indeed, the General Assembly has encouraged and anticipated that governmental units which are in possession of public records will take affirmative action to ensure that public records remain open and available to the public. Providing records by mail was not a contemplated barrier to such action.

Further, there is no question that R.C. 149.43 is a remedial statute and, as a consequence, “[rjemedial laws and all proceedings under them shall be liberally construed in order to promote their object and assist the parties in obtaining justice.” R.C. 1.11. Thus, I would interpret the phrase “shall make copies available at cost, within a reasonable period of time,” as requiring a governmental unit or custodian of public records to transmit copies of records by mail if requested by a person entitled to such records. The governmental unit or custodian should, of course, be able to charge a reasonable fee.

Rather than the law pronounced by the majority, I believe that a syllabus in this case should state that “R.C. 149.43 requires custodians of public records *515to accept and honor, upon payment of a reasonable fee, requests for public records to be mailed to a requesting person.” In holding contra to this, the majority does not consider the need for and the right to obtain public records by incarcerated persons, out-of-state persons, or even in-state persons who do not have access to or who are not in close proximity to the public agency from which records are sought. Permitting public authorities to disregard requests that public records be mailed restricts meaningful access to such records to citizens or their agents who are fortunate enough to live within, or have transportation to, the location of where the public records are held. In this day and age when Ohioans can even obtain their vehicle license plates (or stickers) by mail, the majority truly reaches a curious result re public records. Unfortunately, from this day forward, any public agency is now authorized to refuse to mail a properly requested public record. Any citizen seeking any public record must now appear in person or by agent to secure such record — a record(s) that in the first instance already belongs to that citizen as a member of the public.

Today’s decision deviates from our long-established course to ensure that public records remain open and available to the public. This court has repeatedly applied R.C. 149.43 in a liberal manner, affording aggrieved citizens access to governmental information. Why the majority has suddenly decided to chart a different course is a mystery to me. Accordingly, I respectfully dissent.

Resnick, J., concurs in the foregoing dissenting opinion.