State ex rel. McCleary v. Roberts

Cook, J.,

concurring in part and dissenting in part. The majority opinion. consists of two main -parts. First, the majority decides that the information sought by the relator does not meet the definition of “record” in R.C. 149.011(G) and that for this reason it cannot be a “public record” under R.C. 149.43(A)(1). The majority’s syllabus stems from this first step. Second, the majority decides that even if the requested information constitutes a “public record,” the informa*373tion is nonetheless exempt from disclosure under former R.C. 149.43(A)(1)(p), now (q). Though I agree that the decisional law of this court leads to the conclusion that the names, addresses, telephone numbers, family information, and medical records of the children enrolled in the city’s database are exempt from disclosure in this case, I write to address concerns raised by both steps of the majority’s analysis.

The majority could have resolved this case solely on the basis of its second step, by applying the R.C. 149.43(A)(1)(q) exemption for records protected from public disclosure by state or federal law. Instead, the majority takes its first step, and creates new syllabus law that arguably restricts the definition of “public record” in a manner that could undermine the disclosure-oriented purpose of the Public Records Act in future cases. See State ex rel. The Miami Student v. Miami Univ. (1997), 79 Ohio St.3d 168, 171, 680 N.E.2d 956, 959 (“inherent in R.C. 149.43 is the fundamental policy of promoting open government, not restricting it”).

I do not find that the applicable precedent warrants this potentially restrictive step. Though the majority relies on this court’s decision in State ex rel. Keller v. Cox and the Sixth Circuit case Kallstrom v. Columbus, both of these cases were decided on the basis of the privacy exemption to the Public Records Act. Neither case went so far as to say that the requested information could never fit the definition of a “public record.” See State ex rel. Keller v. Cox (1999), 85 Ohio St.3d 279, 282, 707 N.E.2d 931, 934; Kallstrom v. Columbus (C.A.6, 1998), 136 F.3d 1055, 1059. Kallstrom, especially, calls into question the breadth of the majority’s syllabus. There, the Sixth Circuit expressly found that “there may be situations in which the release of * * * personal information might further the public’s understanding of the workings of its * * * agencies.” Id. at 1065. The majority’s syllabus contradicts this aspect of Kallstrom by declaring that “personal information” can never meet the definition of “public record.”

I also question the scope of the majority’s second step, where the majority applies the exemption from R.C. 149.43(A)(1)(q). I have voiced a similar concern before. See Keller, 85 Ohio St.3d at 282-284, 707 N.E.2d at 934-935 (Cook, J., dissenting). In Keller, I concluded that the constitutional right to privacy did not necessarily exempt from disclosure the entire contents of the requested personnel files and investigative reports. Id. at 283, 707 N.E.2d at 935. Here again, I am unpersuaded that the entire contents of the city’s electronic database necessarily comes within the applicable exemption. For example, the database likely includes a template upon which the appropriate data is entered. It would seem that the questions asked by the agency on such a template, unadorned by personal responses, would fit the definition of “record” — but not the constitutional privacy exemption in R.C. 149.43(A)(1)(q) — and would, therefore, be subject to *374disclosure. This court has previously held that exempt information can be redacted from nonexempt records so that the nonexempt portions remain subject to disclosure. See, e.g., State ex rel. WLWT-TV5 v. Leis (1997), 77 Ohio St.3d 357, 673 N.E.2d 1365; Franklin Cty. Sheriff’s Dept. v. State Emp. Relations Bd. (1992), 63 Ohio St.3d 498, 589 N.E.2d 24, paragraph one of the syllabus.

Though I agree with the majority that the names, addresses, phone numbers, family information, and medical information of the children registered in the city’s identification database are exempt from disclosure under this court’s decisional law in Keller v. Cox, I do not join the syllabus, and I am not convinced that the entire contents of the city’s electronic database are exempt from disclosure under R.C. 149.43(A)(1)(q).