State ex rel. Fenley v. Ohio Historical Society

Wright, J.

I respectfully dissent from this court’s decision to deny relator’s request for a writ of mandamus. I would order further briefing on the issue of the actual cost to the Ohio Historical Society before deciding whether the writ should be granted or denied.

Although I share Justice Douglas’s interpretation of R.C. 149.43(B), I write separately to register my strong disagreement with the majority’s contention that the statute does not impose a duty upon a custodian of public records to mail copies of documents to requestors who are willing to pay for same. Today’s decision runs contrary to several recent decisions by this court which have broadened the public’s access to public records under R.C. 149.43. See, e.g., State ex rel. Margolius v. Cleveland (1992), 62 Ohio St.3d 456, 584 N.E.2d 665; State ex rel. Natl. Broadcasting Co. v. Cleveland (1988), 38 Ohio St.3d 79, 526 N.E.2d 786; State ex rel. Clark v. Toledo (1990), 54 Ohio St.3d 55, 560 N.E.2d 1313; State ex rel. Fostoria Daily Review v. Fostoria Hosp. Assn. (1988), 40 Ohio St.3d 10, 531 N.E.2d 313.

*516As a matter of public policy, custodians should adopt and implement reasonable measures which will allow the broadest range of access to public records by Ohio citizens. Although I believe the party making the request should bear reasonable costs associated therewith, a mandate that custodians make copies of public records available by mail is neither burdensome nor unreasonable. This practice would provide access to those Ohio citizens who are unable to travel to the custodian due to distance or otherwise. Indeed, we may well be sanctioning the violation of the Americans With Disabilities Act of 1990, Section 12101 et seq., Title 42, U.S.Code,1 if we do not place a duty on custodians of public records to respond to reasonable requests, such as the one before us.

Our recent decisions have interpreted R.C. 149.43 broadly in order to provide Ohio citizens with complete access to public records. This court’s failure to impose a duty to respond by mail to requests is most disappointing. Thus, my dissent.

. Subchapter II of the Act provides that:

“ * * * no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” Section 12132, Title 42, U.S.Code.