State ex rel. Beacon Journal Publishing Co. v. Whitmore

Cook, J.,

dissenting. I respectfully dissent. For the following reasons, the majority errs by failing to hold that the requested letters are records under R.C. 149.011(G) and are subject to disclosure as public records under R.C. 149.43.

Records

First, Judge Whitmore used the letters to carry out her duty to sentence Lewis. As the majority notes, the R.C. 149.011(G) definition of “records” includes “ ‘anything a governmental unit utilizes to carry out its duties and responsibilities * * *.’ ” State ex rel. Mazzaro v. Ferguson (1990), 49 Ohio St.3d 37, 39, 550 N.E.2d 464, 466, quoting State ex rel. Jacobs v. Prudoff (1986), 30 Ohio App.3d 89, 92, 30 OBR 187, 190, 506 N.E.2d 927, 930. Although Judge Whitmore *65claims that she did not ultimately rely on the letters in her sentencing decision, she nevertheless utilized them in sentencing Lewis by reviewing them before sentencing to determine whether further inquiry or verification by the probation department was required.

Judge Whitmore also integrated the letters into a probation department file that she reviews if a postjudgment motion is filed. The uncontroverted evidence thus establishes that the letters, which Judge Whitmore reviewed, integrated into her court and probation department files, and used to determine whether further verification before sentencing was required, were records under R.C. 149.011(G). The letters “document the * * * policies, decisions, procedures, operations, or other activities” of Judge Whitmore’s office. See R.C. 149.011(G).

Second, the majority’s conclusion that the letters are not records for purposes of the Public Records Act is inconsistent with comparable federal precedent. In Tax Analysts v. United States Dept. of Justice (C.A.D.C.1988), 845 F.2d 1060, 1069, which is cited in the majority opinion, the federal court of appeals held that the four relevant considerations for determining whether a document received by a federal agency constitutes an “agency record” for purposes of the federal Freedom of Information Act (“FOIA”) are (1) the intent of the document’s creator to retain or relinquish control over the records, (2) the ability of the agency to use and dispose of the record as it sees fit, (3) the extent to which the agency personnel have read or relied upon the document, and (4) the degree to which the document was integrated into the agency’s record system or files. See, also, Gallant v. Natl. Labor Relations Bd. (C.A.D.C.1994), 26 F.3d 168, 172. Here, the authors of the letters intended to relinquish control of their letters to Judge Whitmore for use in her sentencing decision in Lewis. Judge Whitmore had the authority to use and dispose of the letters as she saw fit. Judge Whitmore reviewed the letters prior to sentencing and used them in her sentencing decision to determine whether further inquiry or verification was warranted, and she integrated the letters into the probation department file on Lewis.

Third, the majority’s conclusion contravenes our duty to liberally construe R.C. 149.43 and 149.011(G) in favor of broad access, with any doubt resolved in favor of disclosure of public records. See, generally, State ex rel. Gannett Satellite Info. Network, Inc. v. Shirey (1997), 78 Ohio St.3d 400, 401, 678 N.E.2d 557, 559.

Fourth, the majority’s holding does not advance the preeminent purpose of R.C. 149.43, i.e., “‘to expose government activity to public scrutiny, which is absolutely essential to the proper working of a democracy.’” State ex rel. Gannett Satellite Info. Network, Inc. v. Petro (1997), 80 Ohio St.3d 261, 264, 685 N.E.2d 1223, 1227, quoting State ex rel. WHIO-TV-7 v. Lowe (1997), 77 Ohio St.3d 350, 355, 673 N.E.2d 1360, 1364. The public has an unquestioned interest in *66knowing which individuals or entities are attempting to influence a judge’s decision in a pending case when the records documenting such attempts are received, considered, and integrated by the judge into her files.

Finally, while I agree with the majority’s rejection of relators’ contention that a document is a record under R.C. 149.011(G) if the public office “could use” the document to carry out its duties and responsibilities, the fact remains that in the case at bar, Judge Whitmore used the letters in conjunction with carrying out her duties and responsibilities.

Based on the foregoing, the letters are public records under R.C. 149.011(G) and 149.43 and are subject to disclosure unless some exception to disclosure applies. For the reasons that follow, I would also find that none of the exceptions raised here is applicable.

State Law Exemptions; Presentence Investigation Report

R.C. 149.43(A)(l)(p) prohibits the disclosure of “[r]ecords the release of which is prohibited by state or federal law.” State ex rel. The Plain Dealer v. Ohio Dept. of Ins. (1997), 80 Ohio St.3d 513, 518, 687 N.E.2d 661, 668. R.C. 2951.03(D) and Crim.R. 32.2(C) provide that presentence investigation reports are confidential and therefore not subject to disclosure under R.C. 149.43. See In re Special Grand Jury Investigation Concerning Organic Technologies (1995), 74 Ohio St.3d 30, 32-33, 656 N.E.2d 329, 331; State v. Dietz (1993), 89 Ohio App.3d 69, 73-74, 623 N.E.2d 613, 616.

Judge Whitmore contends that the letters are excepted from disclosure because they are part of the probation department’s presentence investigation report on Lewis. But, as Judge Whitmore conceded in her deposition-testimony, the letters were not part of the report prepared by the probation department. See R.C. 2951.03(A)(1). Therefore, the claimed exception to disclosure is inapplicable. State ex rel. James v. Ohio State Univ. (1994), 70 Ohio St.3d 168, 169, 637 N.E.2d 911, 912 (“[E]xceptions to disclosure are to be construed strictly against the custodian of public records and doubt should be resolved in favor of disclosure.”).

Public Policy

Judge WTiitmore finally contends that as a matter of public policy, unsolicited letters attempting to influence sentencing decisions that are used by a judge to determine whether further investigation prior to sentencing is necessary should not be subject to disclosure under R.C. 149.43. Though Judge WTiitmore’s viewpoint reflects a genuine concern for the privacy of those who send letters to judges; I nevertheless cannot agree with her contention.

*67First, “ ‘the General Assembly has already weighed and balanced the competing public policy considerations between the public’s right to know how its state agencies make decisions and the potential harm, inconvenience or burden imposed on the agency by disclosure.’ ” State ex rel. Thomas v. Ohio State Univ. (1994), 71 Ohio St.3d 245, 249, 643 N.E.2d 126, 130, quoting James, 70 Ohio St.3d at 172, 637 N.E.2d at 913-914.

Second, because only letters that are actually used by judges in connection with their public duties and integrated into public office files are public records, public policy favors the public disclosure of these records. See, e.g., Tax Analysts, 845 F.2d at 1069.

Conclusion

Accordingly, for the foregoing reasons, relators are entitled to a writ of mandamus to compel Judge Whitmore to provide access to the requested letters. Because the majority opinion does not grant relators the relief to which they are entitled, I dissent.

Moyer, C.J., and Pfeifer, J., concur in the foregoing dissenting opinion.