State ex rel. Quolke v. Strongsville City School District Board of Education

O’Donnell, J.,

dissenting.

{¶ 35} Respectfully, I dissent.

{¶ 36} In my view, the court of appeals abused its discretion in granting a writ of mandamus compelling the Strongsville City School District Board of Education to release the names of the replacement teachers to David Quolke because the evidence demonstrates that during the strike, the replacement teachers faced a substantial risk of serious bodily harm from the release of their names, and the *516board could not have disclosed their identities during or in the months following the strike without violating their constitutional privacy rights. Compare State ex rel. Cincinnati Enquirer v. Craig, 132 Ohio St.3d 68, 2012-Ohio-1999, 969 N.E.2d 243, ¶ 14, 22-23 (holding that R.C. 149.43(A)(1)(v) excepted from disclosure the names of officers when the disclosure would violate constitutional privacy rights by placing the officers at a substantial risk of serious bodily harm and was not narrowly tailored to further a compelling state interest). In addition, the passage of a few months after the settlement of the strike without incident does not permit the inference that the risk of disclosing the replacement teachers’ names has diminished, nor does a decision based on a lack of new incidents adequately consider the animosity that picketers and others displayed toward the replacement teachers during the strike.

History of the Request

{¶ 37} On February 21, 2013, the Strongsville Education Association (“SEA”) notified the board that it would commence a labor strike on March 4, 2013. On March 3, 2013, as the board began to hire replacement teachers, picketers jeered, cursed, and photographed those who applied for positions as replacement teachers.

{¶ 38} During the strike, picketers screamed at replacement teachers as they entered and exited district property. At one school, picketers frequently surrounded vans transporting the replacement teachers and yelled at those inside. Some replacement teachers discovered notes in their classrooms with messages like “scabs aren’t qualified teachers,” “teachers have class, scabs don’t,” and “how dare you take my job?” The SEA posted a “Wall of Shame” on the Internet that contained pictures of some replacement teachers, comments referring to them as “scabs,” and one comment stating, “They don’t even realize how this is gonna follow them for their entire career.”

{¶ 39} During the strike, someone distributed flyers in the neighborhood of some replacement teachers that disclosed the replacement teachers’ names and addresses and identified them as scabs. An unknown individual purportedly followed two vans transporting replacement teachers to a hotel, and the vans had slashed tires the next morning. A striking teacher allegedly cut off a van transporting replacement teachers and nearly caused a collision. In addition, a replacement teacher reported that while she drove home from work one day, someone yelled “scab” and threw an object at her vehicle, damaging her windshield.

{¶ 40} On March 5 and again on March 20, 2013, at Quolke’s request, attorneys Susannah Muskovitz and William Froehlich made public records requests of the board for the release of names, home addresses, and other information relating to the identity of the replacement teachers, along with their payroll information.

*517{¶ 41} Although the board indicated that it was considering those requests, Quolke filed this action in the Eighth District Court of Appeals on April 3, 2013, seeking an order to release the names, employee identification numbers, and payroll information of the replacement teachers. The next day, the board provided the requested payroll information but redacted the names of the replacement teachers along with other personal identifying information.

{¶ 42} The strike ended on April 28, 2013, when the board and SEA certified a successor collective bargaining agreement. Subsequently, Quolke amended his complaint to seek only the names of the replacement teachers. The appellate court granted the writ and ordered the board to release the names to Quolke because it had failed to establish that threats and acts against the replacement teachers continued after the strike ended.

{¶ 43} The board now appeals the issuance of the writ.

Exceptions to Disclosure

{¶ 44} The Public Records Act excepts from disclosure “[rjecords the release of which is prohibited by state or federal law.” R.C. 149.43(A)(l)(v). “Exceptions to disclosure under the Public Records Act are strictly construed against the public-records custodian, and the custodian has the burden to establish the applicability of an exception.” State ex rel. Miller v. Ohio State Hwy. Patrol, 136 Ohio St.3d 350, 2013-Ohio-3720, 995 N.E.2d 1175, ¶ 23. “A custodian does not meet this burden if it has not proven that the requested records fall squarely within the exception.” Id.

Analysis

{¶ 45} The board has demonstrated that the replacement teachers’ names are excepted from disclosure under R.C. 149.43(A)(l)(v), because release of the names is prohibited by state or federal law.

{¶ 46} Constitutional privacy rights meet that qualification pursuant to R.C. 149.43(A)(1)(v). See Craig, 132 Ohio St.3d 68, 2012-Ohio-1999, 969 N.E.2d 243, at ¶ 13. Thus, because constitutional privacy rights prohibit the release of the replacement teachers’ names, R.C. 149.43(A)(1)(v) excepts them from disclosure.

{¶ 47} In Craig, we considered whether Cincinnati’s police chief had a duty to disclose the names of officers wounded in a shootout with an outlaw motorcycle gang that resulted in the death of the gang’s national enforcer. Id. at ¶ 1, 4. There, the Cincinnati Enquirer requested the officers’ names, their personnel files, a copy of the incident report, and other records related to the shootout. Id. at ¶ 6. The police chief disclosed the requested documents but redacted the identities of officers. Id. at ¶ 21. Shortly after the shootout, the police chief had received information that the gang members would target police, particularly the *518officers involved in the shootout, and that the threat of retaliation could last indefinitely. Id. at ¶ 5.

{¶ 48} The First District denied the Enquirer’s request for a writ of mandamus compelling disclosure of the names. State ex rel. Cincinnati Enquirer v. Streicher, 1st Dist. Hamilton No. C-100820, 2011-Ohio-4498, 2011 WL 3962999. In affirming, we held that “[officers have a fundamental constitutional interest in preventing the release of private information when disclosure would create a substantial risk of serious bodily harm, and possibly even death, ‘from a perceived likely threat,’ so any such disclosure by the state should be measured under strict scrutiny.” Craig at ¶ 14, quoting Kallstrom v. Columbus, 136 F.3d 1055, 1064 (6th Cir.1998). We stated that “ ‘[w]here state action infringes upon a fundamental right, such action will be upheld under the substantive due process component of the Fourteenth Amendment only where the governmental action furthers a compelling state interest, and is narrowly drawn to further that state interest.’ ” Id., quoting Kallstrom at 1064.

{¶ 49} We concluded that credible evidence of a perceived likely threat that the gang would retaliate against the wounded officers existed in that confidential information confirmed the threat against the officers, the gang had a history of threatening police, and the police chief had historical knowledge about the retaliatory behavior of outlaw motorcycle gangs. Id. at ¶ 5, 20. In addition, we held that disclosure of the identities “was not narrowly tailored to achieve the public purpose of examining the performance of the police.” Id. at ¶ 22. The record did not support the Enquirer’s contention that redacting the names blocked meaningful review of information relating to discipline of and citizen complaints regarding the wounded officers. Id. at ¶ 21. The Enquirer had received information on discipline and complaints in the redacted personnel files. Id. We concluded that the wounded officers’ constitutional privacy rights prohibited disclosure of their names. Id. at ¶ 23.

{¶ 50} Teachers have no less of an interest than police officers in preventing the release of private information when disclosure would create a substantial risk of serious bodily harm from a perceived likely threat. As the Sixth Circuit has stated, “[individuals have ‘a clearly established right under the substantive component of the Due Process Clause to personal security and to bodily integrity,’ and this right is fundamental where ‘the magnitude of the liberty deprivation that [the] abuse inflicts upon the victim * * * strips the very essence of personhood.’ ” (Emphasis added.) Kallstrom at 1062-1063, quoting Doe v. Claiborne Cty., 103 F.3d 495, 506-507 (6th Cir.1996). “[W]here the release of private information places an individual at substantial risk of serious bodily harm, possibly even death, from a perceived likely threat, the ‘magnitude of the *519liberty deprivation * * * strips the very essence of personhood.’ ” (Emphasis added.) Id. at 1064, quoting Doe at 506-507.

{¶ 51} The evidence here shows that disclosure of the names would violate the replacement teachers’ constitutional privacy rights — both during and after the strike. During the strike, picketers verbally intimidated the replacement teachers at schools, and the intimidation continued on the Internet, on the roads, and in the community. The allegedly erratic driving of a striking teacher almost caused an accident that could have seriously injured or killed replacement teachers. And the life of another replacement teacher was endangered by an object thrown at her vehicle while driving that damaged her windshield. Thus, in contrast to the facts in Craig, the replacement teachers faced more than just a likely threat of retaliation — they actually became victims of retaliatory attacks.

{¶ 52} The majority agrees that during the strike, the board reasonably concluded that disclosure of the names would expose the replacement teachers to a substantial risk of serious harm, but concludes that the appellate court did not abuse its discretion in holding the danger had receded at the time it issued the writ. The court of appeals reached its holding based on the board’s failure to produce evidence of new threats made against the replacement teachers after the strike. The majority agrees that the board presented “little evidence that there is any threat to the teachers’ privacy or well-being now that the strike is over.” Majority opinion at ¶ 2.

{¶ 53} In focusing solely on the passage of time without a documented incident, neither the majority nor the court of appeals gave due consideration to the demonstrated animosity picketers and others exhibited towards the replacement teachers and the fact that once the strike ended, it became harder to locate the replacement teachers without their names or personal information, making the occurrence of new incidents less likely. See generally Chicago Tribune Co. v. Natl. Labor Relations Bd., 79 F.3d 604, 608 (7th Cir.1996) (In deciding whether an employer’s post-strike refusal to give a union the addresses of replacement employees hired during the strike constituted an unfair labor practice, stating “[a] rule that focuses solely on the amount of time that has passed since a documented incident of violence fails to take into account the nature of the animosity that exists between former strikers and their replacements”).

{¶ 54} The evidence here demonstrates that a decision allowing the disclosure of names of the replacement teachers fails to take into account the nature of the animosity that exists between the former strikers and their replacements and may expose the replacement teachers to a substantial risk of serious bodily harm that could last indefinitely, violating their right to personal security and bodily integrity.

Muskovitz & Lemmerbrock, L.L.C., Susannah Muskovitz, and William E. Froehlich, for appellee. Pepple & Waggoner, Ltd., Christian M. Williams, and Jacqueline T. Walsh, for appellants. The Gittes Law Group, Frederick M. Gittes, and Jeffrey P. Vardaro, urging affirmance for amicus curiae Ohio Employment Lawyers Association. Baker & Hostetler, L.L.P., and David L. Marburger, urging affirmance for amicus curiae Ohio Coalition for Open Government.

{¶ 55} In addition, disclosure of the replacement teachers’ identities is not narrowly tailored to further a compelling state interest. The purpose of the Public Records Act “ ‘is to expose government activity to public scrutiny.’ ” State ex rel. Dispatch Printing Co. v. Johnson, 106 Ohio St.3d 160, 2005-Ohio-4384, 833 N.E.2d 274, ¶ 27, quoting State ex rel. Cincinnati Enquirer v. Winkler, 101 Ohio St.3d 382, 2004-Ohio-1581, 805 N.E.2d 1094, ¶ 5. It is not apparent that without the replacement teachers’ names, the public could not conduct a meaningful review of the school district’s activities.

{¶ 56} For these reasons, in my view, the appellate court abused its discretion when it granted the writ of mandamus, and I would therefore reverse its judgment.

Conclusion

{¶ 57} The appellate court abused its discretion in granting a writ to order release of the names of replacement teachers because during the strike the evidence demonstrated that they faced a substantial risk of serious bodily harm and the disclosure now violates their constitutional privacy rights and is not narrowly tailored to further a compelling state interest.

{¶ 58} In addition, the passage of a few months after the strike does not permit the inference that the risks of disclosure have diminished nor does a lack of new incidents adequately consider the nature of the animosity that existed between the former strikers and the replacement teachers.

Lanzinger, J., concurs in the foregoing opinion.