|
The Reporters Committee for Freedom of the Press In Support of Relator-Appellee
Table of Contents Argument 4 Conclusion 16
Cases Page Anchorage School Dist. v. Anchorage Daily News, 779 P.2d 1191 (1989) 9 Bradley v. Brd. of Education of the Saranac Community Schools, 455 Mich. 285 (1997) 9 Capital Newspapers Division of Hearst Corp. v. Whalen, 69 N.Y. 2d 246 (1987) 5 Department of Air Force v. Rose, 425 U.S. 352 (1976) 5 John Doe Agency v. John Doe Corp., 493 U.S. 146 (1976) 5 Lexington-Fayette Urban County Gov’t v. Lexington Herald-Leader, 941 S.W.2d 469 (Ky. 1997) 9 Lieberman v. State Board of Labor Relations, 216 Conn. 253 (1990) 8 Mills v. Doyle, 407 So. 2d 348 (Fla. Dist. Ct. App. 1981) 9 State, ex. rel. Cleveland Police Patrolmen’s Assn. v. Cleveland, 84 Ohio St. 3d 310 (1999) 4 State, ex rel. Dispatch Printing Co. et al. v. Wells, 18 Ohio St. 3d 382 (1985) 6, 7 State, ex rel. District 1199, The Health Care and Social Service Union v. Gulyassy, 107 Ohio App. 3d 729 (Appls. Crt., 10th Dist., 1995) 6, 11, 15 State, ex rel. Gannett Satellite Info. Network v. Petro, 80 Ohio St. 3d 261 (1997) 4 State ex. rel. Kinsley v. Berea Brd. of Edn., 64 Ohio App. 3d 659 (1990) 9 State, ex rel. Toledo Blade Co. v. Telb, 50 Ohio Misc. 2d 1 (Ct. Common Pleas, Lucas County, 1990) 7 State of Hawai’i Organization of Police Officers v. SPJ-University of Hawai’i Chapter, 83 Haw. 378 (1996) 8 Trombley v. Bellows Falls Union High School District No. 27, 160 Vt. 101 (1993) 8 United States Department of State v. Ray, 502 U.S. 164 (1991) 5 W.R. Grace & Co. v. Local Union 759, 461 U.S. 757 (1983) 8 Statutes 5 U.S.C. § 552(b) 5 N.Y. Public Officers Law § 84 5 Ohio Rev. Code Ann. § 149.01 (G) 4, 12 Ohio Rev. Code Ann. § 149.31 et seq. 13 Ohio Rev. Code Ann. § 149.39 12, 13, 15 Ohio Rev. Code Ann. § 149.43 4 Ohio Rev. Code Ann. § 149.43 (A)(1) 4, 12, 14 Ohio Rev. Code Ann. § 149.43 (A)(1)(p) 11, 14 Ohio Rev. Code Ann. § 149.43 (A)(1)(q) 12 Ohio Rev. Code Ann. § 149.43 (A)(7) 11 Ohio Rev. Code Ann. § 149.43 (B)(1) 5 Other Respondent’s Responses to Relator The Dispatch Printing Company’s First Amended Request for Admissions. 3 Proposed Intervenor-Appellant 7, 10, 11, 13, 14, 15
The Reporters Committee for Freedom of the Press is a voluntary, unincorporated association of news reporters and editors dedicated to protecting the First Amendment interests and access rights of the news media. The Reporters Committee has provided information, representation, legal guidance, and research for most significant federal and state appellate press-freedom cases in the past 30 years. As a special project, the Reporters Committee sponsors the Freedom of Information Service Center, which advises reporters on issues of access to government records and proceedings. The news media depend on the federal Freedom of Information Act and state public record laws to obtain primary information from government agencies and to report about government activities to their readers, listeners, and viewers. Journalistic principles demand that government statements not be accepted at face value. Journalists, therefore, rely on public record laws to obtain primary sources of information and to receive viewpoints independent of government control. Amicus curiae offers its 30 years of experience as an advocate for freedom of the press to assist this court.
Amicus curiae adopts the statement of the facts of Relator-Appellees: the State of Ohio and The Dispatch Printing Company.
Between 1998 and the summer of 1999, The Columbus Dispatch repeatedly requested records -- maintained in both paper and electronic mediums -- from the city of Columbus about that police department's use of force. This information was used in an investigation into department practices by the United States Justice Department. The city eventually agreed to release the information, only to then later halt the release after the Fraternal Order of Police-Capitol City Lodge No. 9 ("FOP"), which represents the police officers, objected and threatened to file a labor grievance. The Dispatch successfully filed suit against the city, which admitted during discovery that it considered all of the requested documents to be public police records that were not covered by any exemption. [1] The Reporters Committee for Freedom of the Press supports The Columbus Dispatch in its efforts to access electronic and paper police documents about incidents involving the use of force. Ohio and other states have made it clear that private contracts, including collective bargaining agreements, cannot be used to supplant the mandatory disclosure provisions of a public records law. The FOP brings this appeal to challenge the denial of its attempt to intervene. The Reporters Committee contends that Ohio law does not allow private contracts, including collective bargaining agreements, to limit the public's right to access government information.
Ohio's Public Record Act guarantees a broad right of access to government information. Ohio Rev. Code Ann. § 149.43. As this court has stated, "The purpose of [the law] is to expose government activity to public scrutiny, which is absolutely essential to the proper working of a democracy. [The law] must be construed liberally in favor of broad access, and any doubt is resolved in favor of disclosure of public records." State, ex rel. Gannett Satellite Info. Network v. Petro, 80 Ohio St. 3d 261 (1997)(citations omitted). Under Ohio law, the term "record" includes:
Ohio Rev. Code Ann. § 149.01(G). Although the law does not contain a specific provision on the subject, electronic records nonetheless meet the basic definition for "records" under § 149.01 (G) and have the same protections as other public records. Generally, a record is public if it "is kept by any public office." Ohio Rev. Code Ann. § 149.43 (A)(1). A record is considered not public if it comes within one or more of the law's 16 enumerated exemptions, Id., and those exemptions are to be narrowly construed. State, ex. rel. Cleveland Police Patrolmen's Assn. v. Cleveland, 84 Ohio St. 3d 310, 312 (1999) (citing Gannett Satellite Info. Network, supra, 80 Ohio St. 3d at 264). If a record is public, it "shall be promptly prepared and made available for inspection to any person at all reasonable times during regular business hours." Ohio Rev. Code Ann. § 149.43 (B)(1). This approach mirrors how other states and the federal government treat public records. For example, the New York Freedom of Information Law states: "The more open a government is with its citizenry, the greater the understanding and participation of the public in government." N.Y. Public Officers Law § 84. This sentiment is embodied throughout the law itself and in court decisions interpreting it. See e.g., Capital Newspapers Division of Hearst Corp. v. Whalen, 69 N.Y. 2d 246, 252 (1987)("FOIL is to be liberally construed and its exemptions narrowly interpreted so that the public is granted maximum access to the records of government."). The intent behind the federal Freedom of Information Act likewise was to establish "a general philosophy of full agency disclosure." Department of Air Force v. Rose, 425 U.S. 352, 360 (1976)(citation omitted). While placing a premium on public access to government information, the law recognizes nine exemptions that allow the government to withhold information. 5 U.S.C. § 552(b). The exemptions are to be narrowly construed, John Doe Agency v. John Doe Corp., 493 U.S. 146, 151 (1976), with "a strong presumption in favor of disclosure [that] places the burden on the agency to justify withholding any requested documents." United States Department of State v. Ray, 502 U.S. 164, 173 (1991), quoting Rose, supra, 425 U.S. at 366. At the heart of this case is the question of whether a private contract, such as a collective bargaining agreement, has the force of law to supercede the broad disclosure requirements of the Public Records Act. The answer is no. The lower courts that have considered this matter have properly invoked State, ex rel. Dispatch Printing Co. et al. v. Wells, 18 Ohio St. 3d 382 (1985). Like the instant case, Wells involved a collective bargaining agreement provision that required a city to keep secret some types of public records. This court ruled that such an agreement may not alter the disclosure requirements mandated by the Public Records Act:
Id. at 384 (citations omitted). Ohio courts have repeatedly applied this proposition to void contract provisions that contradict the mandatory disclosure requirements of the Public Records Act. See e.g., State, ex rel. District 1199, The Health Care and Social Service Union v. Gulyassy, 107 Ohio App. 3d 729, 739 (Appls. Crt., 10th Dist., 1995) ("Moreover, collective bargaining agreements concerning the confidentiality of records cannot prevail over R.C. 149.43. Because a collective bargaining agreement cannot, by itself alter relationships between the government and the public at large, such an agreement cannot alter a duty to make public records available." (citing Wells, at 384.)) Wells involved a contract that banned access to a wide variety of public records. The instant case, the FOP claims, involves a contract that only bans access to records that no longer are public because they were meant to be destroyed. The FOP seeks a distinction where there is none. The general policy behind Wells supports application of that rule in the instant case. State, ex rel. Toledo Blade Co. v. Telb, 50 Ohio Misc. 2d 1, 8-9 (Ct. Common Pleas, Lucas County, 1990) ("A governmental body cannot . . . insulate its records from the public scrutiny that is commanded by the Act. To hold otherwise would permit a governmental body effectively to nullify the Act by administrative fiat, a result that is inconsistent with the basic principles of the rule of law in our society."). This court in Wells and other courts across the country have concluded that collective bargaining agreements that alter the public's right of access to government records are against public policy. The FOP argues that unlike the contract in Wells, the collective bargaining agreement here does not alter the public's right to access public documents. [2] That simply is not true, as the collective bargaining agreement inexplicably and without legal authority declares that records are no longer public merely because they are old and are intended for destruction. As discussed below, the public records law itself imposes no statute of limitations or deadlines for destruction of public records. If the collective bargaining agreement's provisions requiring destruction of the requested records were to be enforced, it would violate public policy by detrimentally altering the public's right to access government records. A collective bargaining agreement cannot impose a requirement not mandated by the law. The U.S. Supreme Court has ruled that courts may not enforce collective bargaining agreements that are contrary to public policy. W.R. Grace & Co. v. Local Union 759, 461 U.S. 757, 766 (1983). "[A] court may not enforce a collective bargaining agreement that is contrary to public policy." Several state supreme and appellate courts have struck down on public policy grounds collective bargaining agreement provisions that affected access rights under public record laws. The Connecticut Supreme Court addressed the identical question now before this court in 1990, ruling that the destruction of public documents is an illegal subject for collective bargaining: "We conclude that an agreement to destroy public records conflicts with relevant provisions of the General Statutes, and we hold, therefore, that the destruction of a public employee's discipline record is an illegal subject of collective bargaining." Lieberman v. State Board of Labor Relations, 216 Conn. 253, 261. See also, State of Hawai'i Organization of Police Officers v. SPJ-University of Hawai'i Chapter, 83 Haw. 378, 406 (1996) ("With respect to public record statutes, the virtually unanimous weight of authority holds that an agreement of confidentiality cannot take precedence over a statute mandating disclosure."; Trombley v. Bellows Falls Union High School District No. 27, 160 Vt. 101, n.1 (1993) ("[W]ith regard to the public records claim, we could not allow the public's right of access to be overridden by a contract between the public agency and its employees."); Bradley v. Brd. of Education of the Saranac Community Schools, 455 Mich. 285, 303 (1997) ("The FOIA requires disclosure of all public records not within an exemption. No exemption provides for a public body to bargain away the requirements of the FOIA."); Mills v. Doyle, 407 So. 2d 348, 351 (Fla. Dist. Ct. App. 1981) ("[T]he trial court was correct in shunting aside the argument that the collective bargaining contract . . . established the confidentiality of the subject records, for to allow the elimination of public records from the mandate of Chapter 119 by private contract would sound the death knell of the Act."). Many courts have applied the same public policy arguments to the issue of government settlements, finding that confidentiality provisions in the agreements are against public policy and cannot be enforced because they restrict access to public records. The Supreme Court of Alaska, for example, ruled that a settlement between a public school system and the manufacturer of fireproofing material must be made public, despite a confidentiality provision in the settlement to the contrary. "Thus, we hold that a public agency may not circumvent the statutory disclosure requirements by agreeing to keep the terms of a settlement agreement confidential. Under Alaska law, a confidentiality provision such as the one in the case at bar is unenforceable because it violates the public records disclosure statutes." Anchorage School Dist. v. Anchorage Daily News, 779 P.2d 1191, 1193 (1989). Ohio courts have also held that government settlement agreements are themselves public records. See e.g., State ex. rel. Kinsley v. Berea Brd. of Edn., 64 Ohio App. 3d 659,663. (1990). See also, Lexington-Fayette Urban County Gov't v. Lexington Herald-Leader, 941 S.W.2d 469, 471 (Ky. 1997) ("There could be no viable contention that an agreement which represents the final settlement of a civil lawsuit whereby a governmental entity pays public funds to compensate for an injury it inflicted is not a public record."). These precedents make it clear that the FOP cannot do what it is attempting: using a private contract -- a collective bargaining agreement in this case -- to subvert the mandatory disclosure provisions of the Public Records Act. Such contracts are against public policy and may not be enforced. The FOP's collective bargaining agreement violates public policy in a second way that further denies access to public records. The FOP should be rebuked not only for its attempt to deny access to older police records but also for its efforts to withhold the names of police officers involved in using force. The FOP is targeting old records in general, but its real enemy is records that identify police officers who used force during the line of duty and other disciplinary records. According to the collective bargaining agreement's schedule for record retention, only the "member identifiable information" contained in old police disciplinary records must be destroyed. The underlying narratives contained in the records may be retained under the agreement. The FOP has suggested that the collective bargaining agreement provisions at issue were intended to prevent police officers from embarrassment and discrimination based on information contained in old records. Brief of Proposed Intervenor-Appellant, p. 32. Inexplicably, the FOP claims an officer's name is "highly personal information" that must be protected, despite the mandatory disclosure provisions of the Public Records Act. Brief of Proposed Intervenor-Appellant, p. 36. This provision of the collective bargaining agreement cuts off access to government information the General Assembly has deemed public. As such, the provision may not be enforced and access to police "member identifiable information" may not be denied. The General Assembly must be given deference in its determination of what constitutes a public record: "[T]he legislature expresses Ohio public records law through R.C. 149.43." Gulyassy, supra, 107 Ohio App. 3d at 737 (citation omitted). The General Assembly has seen fit to exempt from public disclosure some information that is personal to individual police officers. Under Ohio Rev. Code Ann. § 149.43 (A)(1)(p), the public may not use the Public Records Act to obtain "[p]eace officer residential and familial information," defined under Ohio Rev. Code Ann. § 149.43 (A)(7) to include a police officer's home address, the names of the officer's spouse or children, the officer's Social Security Number, medical history and financial information. The exemption, however, clearly does not include a police officer's name, age or gender, information that would seem to comprise what the FOP labels as "member identifiable information." No other exemption would serve to keep such basic identifying information secret either. It is highly unlikely that the General Assembly's decision to exempt some police officer information from disclosure was rooted in a desire to protect officers from embarrassment, as the FOP suggests. The General Assembly intended to protect police officers and their families from harassment and physical violence that may result from that line of work. The General Assembly has chosen not to exempt from disclosure the names of police officers, and the FOP cannot seek to reverse that determination though a collective bargaining agreement. There is no question that the requested documents meet the definition for "records." Ohio Rev. Code Ann. § 149.01 (G). They are "documents" -- "regardless of physical form or characteristics" -- "created" by a "public office of the state." Amicus curiae further argues that all of the requested documents are public because they are records "kept by any public office" and not subject to any of the Public Record Act's 16 enumerated exemptions. Ohio Rev. Code Ann. § 149.43 (A)(1). The FOP disagrees, arguing Ohio Rev. Code Ann. § 149.43 (A)(1)(q) -- which protects records "the release of which is prohibited by state or federal law" -- exempts at least the requested electronic records from public disclosure. The FOP argues that Ohio Rev. Code Ann. § 149.39, which establishes a framework for cities to follow in developing record-maintenance schedules, prohibits the release of the requested records. Columbus followed Ohio Rev. Code Ann. § 149.39 in adopting its Schedule of Records Retention and Disposition (hereafter "schedule"). The general scheme for record retention and destruction outlined in Columbus' schedule was then incorporated into the collective bargaining agreement between the city and its police officers. The FOP argues that its private contract should control whether the public has access to some or all of the requested documents. The FOP argues the city is in violation of the agreement because it has maintained, in electronic format, records that it was required to destroy, let alone that it is willing to release them to The Dispatch. The lower courts, however, recognized that the Code's record-maintenance sections are permissive, not mandatory. A city must establish a record-maintenance program, but the law also gives cities great discretion as to how they dispose of records. "Records may be disposed of by the commission pursuant to the procedure outlined in this section. The commission may at any time review any schedule it has previously approved, and for good cause shown revise that schedule." Ohio Rev. Code Ann. § 139 (emphasis added). Mandatory destruction of government records is not required, as the FOP suggests. Because Ohio Rev. Code Ann. §§ 149.31 to 149.42 allows the state and municipalities to establish schedules for retaining and destroying government records, the FOP argues that similar schemes contained in collective bargaining agreements must be must be given deference and read in conjunction with the public records act. The FOP "asks this Court to correct, in reviewing the Court of Appeals decision, the erroneous implication that Section 149.43 preempts eleven sections of the Revised Code that provide for orderly records management and disposition." Brief of Proposed Intervenor-Appellant, p. 31. Contrary to what the FOP asserts, record destruction is not a requirement of law. Record-maintenance laws should be construed as requiring a minimum life span for government documents, not a maximum. Record-maintenance laws recognize that some government documents are still important and useful long after they have been created, while other documents are not. Documents that are no longer essential to the performance of government may be destroyed. But those documents that a city still needs may be kept, regardless of what the schedule states. The record-maintenance laws only create a rebuttable presumption of how long government documents remain useful and need to be kept. Nothing in Ohio law suggests a document loses its status as a "public record" merely because it is old and could be destroyed under a record-maintenance schedule. That a record is "kept by any public office," Ohio Rev. Code Ann. § 149.43 (A)(1), is dispositive on its status as a public record. A public record remains public until it is destroyed, regardless of when it was scheduled for destruction under a record-maintenance system. Finally, public policy does not support the FOP's argument that Ohio Rev. Code Ann. § 149.43 A(1)(p) should be applied to keep the records secret. The FOP claims that a contrary result subverts the true intent of record-retention schedules: to protect employees from embarrassment and harm from information contained in old documents. Governments would be able to ignore the record-destruction provisions of collective bargaining agreements and maintain "prejudicial" personnel records indefinitely that could injure an employee's reputation, the FOP suggests. Brief of Proposed Intervenor-Appellant, p. 32. But the FOP offers no support for its conspiracy theories. Instead, the FOP asserts that the General Assembly intended for record-retention-and-destruction schedules to supplant the mandatory disclosure provisions of the Public Records Act. Brief of Proposed Intervenor-Appellant, p. 24. The argument is without merit. The General Assembly has recognized that public policy requires broad public access to government information. "Even if respondent's public policy arguments may have some merit, the legislature expresses Ohio public records law through R.C. 149.43 . . . The General Assembly has done all of the balancing needed in public records law; public policy arguments should not sway our interpretation." Gulyassy, supra, 107 Ohio App. 3d at 737. The General Assembly has chosen not to establish a statute of limitations to control when a record is public. The FOP improperly wants to use Ohio Rev. Code Ann. § 149.39 to does just that. Such a result is surely not what the General Assembly envisioned when it created an exemption for records the release of which was "prohibited" by law.
For these reasons, The Reporters Committee for Freedom of the Press respectfully urges the Court to uphold the judgment of Franklin County Court of Appeals. Dated: March 23, 2000 Respectfully submitted, Arlington, Virginia
______________________________ Byron R. Brown, Esq.
The Reporters Committee
Footnotes:
|