State ex rel. Dann v. Taft

Pfeifer, J.,

concurring in part and dissenting in part.

{¶ 51} Our in camera review of the records the governor sought to withhold reveals a collection of information so inane, so inconsequential, and so insignificant that taken together it could not generate one interesting newspaper story. But it has generated still another opinion by this court.

{¶ 52} I do not choose to reargue or reinterpret Taft I. As for the question arising today, we can all agree that the reports at issue are public records and that the governor may exert no privilege to prevent their disclosure. I depart from the majority’s determination to deny a writ of mandamus. Relator has asked for all the records that this court determines today to be public. For instance, in his public records request of June 16, 2005, relator requested from the governor “[a]ll weekly memoranda, weekly reports, or other periodic reports required by statute or office procedure or practice from James Samuel and James Samuel’s predecessor(s) to the Governor from the years 1998-2005.” That same request became the basis for part of relator’s complaint in mandamus. At paragraph ten of his complaint, relator states:

{¶ 53} “(10) On June 16, 2005, the Relator made three additional written requests pursuant to the Ohio Public Records Act. The first request sought weekly memoranda and other periodic reports from James Samuel (Governor’s liaison to the BWC) and/or his predecessors to the Office of the Governor for the years 1998-2005.”

{¶ 54} Relator asserted in his complaint for mandamus that the governor failed to provide the requested records and sought a writ of mandamus to force their disclosure. Relator did not limit his public records request or his complaint in mandamus to Samuel’s memoranda specifically relating to the BWC. He asked for all of the reports. The governor released to relator only reports relating to the BWC. But that was not an act of largesse by the governor; it was a failure to *264respond completely to the relator’s legitimate public records request. No matter what the relator’s particular area of interest was, he asked for all of the Samuel memoranda.

Gittes & Schulte, Frederick M. Gittes, and Kathaleen B. Schulte, for relator. Jim Petro, Attorney General, and Porter, Wright, Morris & Arthur, L.L.P., Kathleen M. Trafford, and Bryan R. Faller, for respondent.

{¶ 55} If the majority is right that relator sought only records specifically relating to the BWC, then much of this court’s time and many trees have been needlessly sacrificed. Could it be true that all of this litigation was over a bunch of records that no one ever asked for? If so, this matter could have been solved well short of this court’s creation of a gubernatorial-communications privilege. The governor need merely have said, “I gave relator everything he asked for.” What the governor really did was to claim that everything was privileged, but released the records he deemed relevant to the relator’s interest. The balance of what relator sought has been the focus of this matter. Today we hold that all of those records are public.

{¶ 56} Accordingly, since the relator had a right to see everything he sought, I would grant the writ of mandamus. Further, I would award attorney fees to the relator, since he meets this court’s two-pronged test for such an award. First, the public has an unquestioned interest in the competent and ethical administration of the state’s workers’ compensation system, and so relator has established a public benefit. Second, the respondent has failed to comply with this legitimate records request for invalid reasons. State ex rel. Toledo Blade Co. v. Ohio Bur. of Workers’ Comp., 106 Ohio St.3d 113, 2005-Ohio-6549, 832 N.E.2d 711, ¶ 24.