State ex rel. Nelson v. Fuerst

Per Curiam.

The issue presented for our review is: Did the court of appeals err in finding that respondents had a duty to mail public records on request? For the reasons that follow, we hold that R.C. 149.43 does not require custodians to mail either copies of public records or the records themselves. Accordingly, we reverse.

Respondents do not dispute that the records Nelson seeks are subject to public disclosure under R.C. 149.43(B). They object only to the court’s procedure for enforcing this statute. Respondents contend that this procedure is contrary to R.C. 149.351(A), which prohibits the removal or transfer of public records from a public office, “except as provided by law,” and R.C. 2303.09 and 2303.03, which require the clerk of the common pleas and appellate courts to preserve the papers filed in his office.

Neither R.C. 149.351(A) nor 2303.09, however, prevents the removal or transfer of records, with appropriate safeguards, where required by law. For example, the clerk of a trial court must transmit the record in a case on appeal pursuant to App.R. 10. Similarly, if R.C. 149.43(B) guarantees inmates access to public records, the custodians of those records must make the records available for inspection.

The duty to allow inspection and copying of public records imposed by R.C. 149.43(B), however, is not absolute. This statute provides:

“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.)

Recently, we held that custodians of public records are not obligated by R.C. 149.43(B) to make copies of such records available by mail. In State ex rel. Fenley v. Ohio Historical Soc. (1992), 64 Ohio St.3d 509, 511, 597 N.E.2d 120, 122, we explained:

“We find the language of R.C. 149.43 clear and unambiguous. A custodian of public records who makes those records available for inspection, and who makes copies available upon request at the governmental unit’s place of business, fulfills the responsibilities placed upon him by R.C. 149.43. We thus find the word ‘available’ is not synonymous with ‘available by mail.’ ”

Thus, to comply with R.C. 149.43(B), respondents need only supply copies of requested public records at a reasonable cost within a reasonable period of time during regular business hours. As the duty to allow inspection does not *49include mailing copies of public records, custodians of public records must also have no duty to mail the records themselves for inspection. Accordingly, the court of appeals erred in ordering respondents to transfer the records requested by Nelson by mail for his perusal.1

Therefore, the court of appeals’ decision ordering respondents to mail the pertinent public records to Nelson for supervised copying is reversed.

Judgment reversed.

Moyer, C.J., A.W. Sweeney and F.E. Sweeney, JJ., concur. Resnick, J., concurs in judgment only. Douglas, Wright and Pfeifer, JJ., dissent.

. Although Nelson does not argue that he is entitled to copies of the instant records free of charge, due process apparently does not guarantee this here, where the indigent complainant has exhausted the direct appeal of his conviction and has no post-conviction remedy pending. State ex rel. Vitoratos v. Yacobucci (1962), 173 Ohio St. 462, 464, 20 O.O.2d 81, 82, 184 N.E.2d 98, 99, certiorari denied and appeal dismissed (1962), 371 U.S. 25, 83 S.Ct. 135, 9 L.Ed.2d 96; State ex rel. Partee v. McMahon (1963), 175 Ohio St. 243, 248, 24 O.O.2d 386, 388-389, 193 N.E.2d 266, 269; State ex rel. Murr v. Thierry (1987), 34 Ohio St.3d 45, 517 N.E.2d 226.