State ex rel. Keller v. Cox

Cook, J.,

dissenting. I respectfully dissent from the judgment affirming the court of appeals’ dismissal of Keller’s mandamus action. As a preliminary matter, I agree with the majority that the constitutional right of privacy exempts certain personnel records of police officers from disclosure under the Public Records Act. See Kallstrom v. Columbus (C.A.6, 1998), 136 F.3d 1055.

Nevertheless, the majority’s and appellees’ reliance on the constitutional right of privacy does not support dismissal of Keller’s mandamus action because any argument that Detective Reece’s constitutional right to privacy exempts all of the requested records is, at this juncture, premature. Cf. State ex rel. Beacon Journal Publishing Co. v. Akron (1994), 70 Ohio St.3d 605, 640 N.E.2d 164 *283(federal constitutional right to privacy exempts disclosure of city employees’ Social Security numbers). Exemptions from disclosure must be strictly construed against the public records custodian, and the custodian has the burden to establish an exemption. State ex rel. McGowan v. Cuyahoga Metro. Hous. Auth. (1997), 78 Ohio St.3d 518, 519, 678 N.E.2d 1388, 1389. Based solely on the allegations of the complaint, appellees have not established that all of the contents of the requested personnel files and internal affairs investigative reports relating to Detective Reece are exempt. In this regard, Kallstrom, the sole authority cited by the majority to support its holding, does not hold that the constitutional right to privacy necessarily exempts from disclosure the entire contents of the testifying officers’ personnel files. Kallstrom merely holds that disclosure of testifying police officers’ addresses, phone numbers, and driver’s licenses, as well as the names, addresses, and phone numbers of their family members, violates their fundamental constitutional rights to privacy, but that other information in their personnel files would have to be analyzed to see whether it also violated these constitutional rights. Id., 136 F.3d at 1069-1070.

In fact, the majority concedes that personnel files that reflect discipline, citizen complaints, or how an officer does her or his job are public records. By affirming the dismissal of Keller’s action, the majority had to have assumed, before the court of appeals conducted an in camera inspection of the records, that all of the requested personnel records in this case are of the types that are shielded from disclosure by the constitutional right of privacy. Keller requested access to all personnel and internal affairs records relating to Detective Reece. His request is broad enough to include the records that the majority concedes would be subject to disclosure under R.C. 149.43, i.e., records that “reflect on discipline, citizen complaints, or how an officer does her or his job * * The majority’s holding, which assumes that all personnel records relating to Detective Reece are exempt, is therefore unsupported by the record, Kallstrom, or the court of appeals’ duty under Civ.R. 12(B)(6) to construe the material factual allegations of Keller’s complaint most strongly in his favor.

Finally, to the extent that the majority relies on a “good sense” rule in addition to the constitutional right of privacy, we have rejected analogous public-policy exemptions by holding that “ ‘in enumerating very narrow, specific exceptions to the public records statute, 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 State ex rel. James v. Ohio State Univ. (1994), 70 Ohio St.3d 168, 172, 637 N.E.2d 911, 913-914; see, also, State ex rel. Multimedia, Inc. v. Snowden (1995), 72 Ohio St.3d 141, 143-144, 647 N.E.2d 1374, 1378. In fact, the fundamental policy *284advanced by R.C. 149.43 is to promote open government, not to restrict it. State ex rel. The Miami Student v. Miami Univ. (1997), 79 Ohio St.3d 168, 171, 680 N.E.2d 956, 959. As noted previously, the applicability of any privacy exemption cannot yet be determined in ruling on appellees’ Civ.R. 12(B)(6) motion because this determination is restricted to the allegations of Keller’s complaint. See State ex rel. Natl. Electrical Contractors Assn., Ohio Conference v. Ohio Bur. of Emp. Serv. (1998), 83 Ohio St.3d 179, 181, 699 N.E.2d 64, 66.

Based on the foregoing, it appears that after construing the material factual allegations of Keller’s complaint most strongly in his favor, he can prove a set of facts entitling him to the requested writ of mandamus. The court of appeals consequently erred in dismissing Keller’s complaint pursuant to Civ.R. 12(B)(6). Accordingly, the judgment of the court of appeals should be reversed and remanded for further proceedings. See State ex rel. Rogers v. McGee Brown (1997), 80 Ohio St.3d 408, 410—411, 686 N.E.2d 1126, 1128. Because the majority does not so decide, I respectfully dissent.