State ex rel. Gannett Satellite Info. Network, Inc. v. Petro
Ohio Supreme Court
State ex rel. Gannett Satellite Info. Network, Inc. v. Petro, 1997 Ohio 319 (Ohio 1997)
80 Ohio St. 3d 261
State ex rel. Gannett Satellite Info. Network, Inc. v. Petro
Opinion
[This opinion has been published in Ohio Official Reports at80 Ohio St.3d 261
.]
THE STATE EX REL. GANNETT SATELLITE INFORMATION NETWORK, INC.,
D.B.A. THE CINCINNATI ENQUIRER, v. PETRO, STATE AUDITOR, ET AL.
THE STATE EX REL. THE WARREN NEWSPAPERS, INC. v. COURT OF
JURISDICTION OF THE MAHONING VALLEY SANITARY DISTRICT ET AL.
[Cite as State ex rel. Gannett Satellite Info. Network, Inc. v. Petro,
1997-Ohio-319.]
Mandamus to compel State Auditor to provide relators access to all records relied
on in audit of Mahoning Valley Sanitary District—Writ granted, when—
Attorney fees for relators granted, when.
(Nos. 97-1876 and 97-1893—Submitted October 1, 1997—Decided October 3,
1997.)
IN MANDAMUS.
__________________
{¶ 1} The Mahoning Valley Sanitary District (“MVSD”) is a political
subdivision of the state of Ohio established to provide water service for the cities
of Youngstown and Niles. Respondent Mahoning Valley Sanitary District Court
of Jurisdiction (“MVSD Court”), which is constituted according to the last
paragraph of R.C. 6115.08, supervises the operation of the MVSD. In March 1996,
following newspaper accounts of improprieties concerning the MVSD, the MVSD
Court requested that respondent State Auditor Jim Petro conduct a special audit of
certain MVSD expenditures and transactions over a five-year period. Petro agreed
to investigate the MVSD and issue a report but emphasized that the report would
not constitute an audit and would be solely for the use of the MVSD Court and the
MVSD.
{¶ 2} Petro, however, conducted a special audit of the MVSD and relied on
the MVSD’s records in order to complete the audit. The working papers relied on
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by the auditor included copies of records obtained from the special prosecutor for
the Mahoning County Fraud Task Force. The special prosecutor obtained these
records pursuant to grand jury subpoenas. The special prosecutor had been
appointed to investigate corruption involving public officials in Mahoning County.
Prior to August 25, 1997, Petro made all records used in his audit available for
public inspection.
{¶ 3} On August 7, 1997, Petro publicly released his preliminary special
audit report of the MVSD. Among other things, Petro determined that former
MVSD Director Edward A. Flask had exercised his authority over MVSD contracts
and expenditures to garner personal benefit and political influence. On August 25,
Petro released his final report to the public. Shortly thereafter, the MVSD Court
issued orders precluding Petro from further disclosing the report.
{¶ 4} Petro then refused the requests of relators, Gannett Satellite
Information Network, Inc., d.b.a. The Cincinnati Enquirer (“Gannett”), and The
Warren Newspapers, Inc. (“Warren Newspapers”), for access to most of the
records, although he did provide Gannett with a copy of the special audit report and
a minimal number of working papers. Petro advised relators that the audit report
and working papers relating to the report were public records but that he could not
provide them access due to the MVSD Court’s orders.
{¶ 5} Petro subsequently filed a complaint in this court for a writ of
prohibition to, among other things, prevent the MVSD Court from enforcing its
orders preventing further public release of Petro’s special audit report. State ex rel.
Petro v. Mahoning Valley Sanitary Dist. Court of Jurisdiction, case No. 97-1840.
While that case was pending, relators filed these actions for writs of mandamus to
compel the MVSD Court and Petro to provide access to all records relied on by
Petro in his audit of the MVSD.
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January Term, 1997
{¶ 6} On September 10, Petro filed a notice voluntarily dismissing his
prohibition action based on a settlement agreement with the MVSD Court. Under
the agreement, Petro and the MVSD Court stipulated:
“D. The parties also agree that the report/special audit, together with the
supporting documentation, including responses, the Auditor’s work papers,
reports, depositions, and transcripts of conferences between these parties, shall all
be and constitute public records pursuant to R.C. 149.43, Ohio Public Records
Law, and copies shall be housed at the Auditor’s Niles or Youngstown, Ohio office,
at the Auditor’s option. Accordingly, any persons or entities, including those
subject to a recovery action, are entitled to review and copy the aforemen-tioned
documents, in order to make public comment, if any, regarding their views of the
report/special audit.” (Emphasis added.)
{¶ 7} Despite his earlier representations and the foregoing agreement, Petro
subsequently denied relators’ requests for access to the records that had been
originally obtained by the special prosecutor in response to grand jury subpoena.
Petro claimed that these records were exempted from disclosure because they were
grand jury materials under Crim.R. 6(E) and investigatory work product under R.C.
149.43(A)(2)(c). Petro conceded that he did not have “any detailed knowledge of
the future plans of the Task Force and/or the special prosecutor” concerning these
records. Although Petro requested the special prosecutor to examine the records to
determine whether they were exempt from disclosure under R.C. 149.43, the special
prosecutor did not reply.
{¶ 8} Petro publicly disclosed a grand jury subpoena requesting these
records as well as his special audit report and an index that contained detailed
descriptions of the records. Petro’s office further orally described the withheld
records to a Warren Newspapers representative. The MVSD Court has ordered
Petro to make available for public inspection all records in his possession that were
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identified in paragraph D of their settlement agreement “and/or that are public
records.”
{¶ 9} These causes are now before the court on the merits, respondent
Petro’s motion to consolidate, Gannett’s motion to dismiss the MVSD Court as a
party, Warren Newspapers’ notice voluntarily dismissing the MVSD Court, and
Warren Newspapers’ motions to amend its complaint to include a claim for attorney
fees against Petro.
__________________
Graydon, Head & Ritchey, John C. Greiner and John A. Flanagan, for
relator Gannett Satellite Information Network, Inc.
Arter & Hadden, Gregory V. Mersol, John B. Lewis and John P. Gartland,
for relator The Warren Newspapers, Inc.
Betty D. Montgomery, Attorney General, and Arthur J. Marziale, Jr.,
Assistant Attorney General, for respondent.
__________________
Per Curiam.
Motions
{¶ 10} We initially grant Petro’s motion to consolidate these cases.
Relators do not oppose Petro’s motion, and the cases raise similar legal issues. See,
e.g., State ex rel. Cincinnati Enquirer v. Hamilton Cty. (1996), 75 Ohio St.3d 374,
376,662 N.E.2d 334, 336
.
{¶ 11} We also grant relators’ requests to dismiss the MVSD Court as a
party. The uncontroverted evidence establishes that the MVSD Court is no longer
preventing Petro from publicly disclosing the requested records. See, also,
S.Ct.Prac.R. X(2); Civ.R. 15(A) and 41(A).
{¶ 12} In addition, we grant relators’ requests to amend their complaints to
include claims for attorney fees against Petro. S.Ct.Prac.R. X(2); Civ.R. 15(A).
While relators did not initially request these fees based on Petro’s representations
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that he was only following the MVSD Court’s orders, Petro subsequently denied
access to many of the working papers used in connection with his audit. State ex
rel. Jones v. Montgomery Cty. Court of Common Pleas (1996), 75 Ohio St.3d 642,
643,665 N.E.2d 673, 674
(In mandamus actions, courts are not limited to
considering facts and circumstances at the time a proceeding is commenced, but
should consider facts and conditions at the time it determines whether to issue the
writ.). Petro does not oppose a consideration of these attorney fees claims.
R.C. 149.43; Audit Reports
{¶ 13} Relators assert that they are entitled to a writ of mandamus to compel
Petro to provide access to the requested records. “[T]he purpose of Ohio’s Public
Records Act, R.C. 149.43, is to expose government activity to public scrutiny,
which is absolutely essential to the proper working of a democracy.” State ex rel.
WHIO-TV-7 v. Lowe (1997), 77 Ohio St.3d 350, 355,673 N.E.2d 1360
, 1364; White v. Clinton Cty. Bd. of Commrs. (1996),76 Ohio St.3d 416, 420
,667 N.E.2d 1223, 1226-1227
. Mandamus is the appropriate remedy to compel compliance with R.C. 149.43. State ex rel. Steckman v. Jackson (1994),70 Ohio St.3d 420, 426-427
,639 N.E.2d 83, 89
. R.C. 149.43 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, Inc. v. Shirey (1997),78 Ohio St.3d 400, 401
,678 N.E.2d 557, 559
.
{¶ 14} In general, audits, audit drafts, and working papers and notes relating
to audits of public offices are public records that are subject to disclosure under
R.C. 149.43, even where the audit was performed by a private entity on behalf of a
public office. State ex rel. Mazzaro v. Ferguson (1990), 49 Ohio St.3d 37,550 N.E.2d 464
; see, also, R.C. 117.26. Even if, as initially contended by the MVSD Court, Petro’s investigation and report were not a statutory audit, Petro, a public officer, relied on the records to perform his investigation of the MVSD, a public office, and the working papers thus would normally constitute public records.Id.,
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49 Ohio St.3d at 40,550 N.E.2d at 467
(“[B]y construing R.C. 149.011[G] to include any material on which a public office could or did rely, our decision preserves the public’s right of access to public records * * *.”); State ex rel. Thomas v. Ohio State Univ. (1994),71 Ohio St.3d 245, 246-247
,643 N.E.2d 126, 128
(“R.C. 149.011[G] broadly defines ‘records’ to include ‘any * * * device, or item
* * * received by * * * any public office of the state * * * which serves to document
the organization, functions, policies, decisions, procedures, operations, or other
activities of the office.’ ”).
{¶ 15} With the foregoing standards in mind, we consider relators’
contentions.
Waiver
{¶ 16} Relators initially contend that Petro and the special prosecutor
waived any rights Petro had to rely on exemptions. Exemptions are usually fully
applicable absent evidence that the public office having custody of the records
disclosed the records to the public. State ex rel. WLWT-TV5 v. Leis (1997), 77 Ohio
St.3d 357, 361,673 N.E.2d 1365, 1369-1370
; State ex rel. Zuern v. Leis (1990),56 Ohio St.3d 20, 22
,564 N.E.2d 81, 84
. For the following reasons, Petro and the
special prosecutor waived Petro’s right to deny access to records based on claimed
exemptions.
{¶ 17} First, the special prosecutor released copies of the records to Petro
for use in his special audit. The prosecutor should have been aware that records
which Petro considered in his audit of a public entity would be subject to disclosure
under R.C. 149.43. Mazzaro and Thomas, supra. Second, Petro made these records
available to the public prior to the MVSD Court’s orders barring access. Zuern, 56
Ohio St.3d at 22,564 N.E.2d at 84
(“Voluntary disclosure can preclude later claims
that records are exempt from release as public records.”). Third, Petro represented
to relators that the records were public records and that they would be provided
access to all working papers involved in his audit when his prohibition case was
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January Term, 1997
settled. Fourth, Petro disclosed a grand jury subpoena requesting the records. Fifth,
Petro publicly released his special audit report and a detailed index of the records,
which described the records withheld. Sixth, Petro orally described these records
to a representative of Warren Newspapers. Finally, although Petro contacted the
special prosecutor, the special prosecutor has not asserted that the records requested
by relators are exempt.
{¶ 18} Based on all of the foregoing circumstances, Petro waived his right
to assert exemptions to disclosure of the requested records. Unlike State ex rel.
Master v. Cleveland (1996), 76 Ohio St.3d 340, 343,667 N.E.2d 974, 976-977
, this
is not simply a case in which prior publicity is asserted to support the media’s
waiver contention.
{¶ 19} Further, for the reasons that follow, even assuming that Petro did not
waive the claimed exemptions, they are inapplicable here.
Crim.R. 6(E); Grand Jury Materials
{¶ 20} Petro contends that the records are exempt because they are grand
jury materials under Crim.R. 6(E). Public records do not include “[r]ecords the
release of which is prohibited by state or federal law.” R.C. 149.43(A)(1)(o).
Crim.R. 6(E) exempts certain grand jury materials from disclosure under R.C.
149.43. WLWT-TV5, 77 Ohio St.3d at 361, 673 N.E.2d at 1369; State ex rel. Beacon Journal Publishing Co. v. Waters (1993),67 Ohio St.3d 321
,617 N.E.2d 1110
.
More specifically, Crim.R. 6(E) provides:
“Deliberations of the grand jury and the vote of any grand juror shall not be
disclosed. Disclosure of other matters occurring before the grand jury may be made
to the prosecuting attorney for use in the performance of his duties. A grand juror,
prosecuting attorney, interpreter, stenographer, operator of a recording device, or
typist who transcribes recorded testimony, may disclose matters occurring before
the grand jury, other than the deliberations of a grand jury or the vote of a grand
juror, but may disclose such matters only when so directed by the court preliminary
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to or in connection with a judicial proceeding, or when permitted by the court at the
request of the defendant upon a showing that grounds may exist for a motion to
dismiss the indictment because of matters occurring before the grand jury. * * * No
obligation of secrecy may be imposed upon any person except in accordance with
this rule.” (Emphasis added.)
{¶ 21} The records here do not include either grand jury deliberations or the
vote of a grand juror. In addition, the State Auditor is not one of the persons listed
in Crim.R. 6(E) regarding the disclosure of other “matters occurring before the
grand jury,” like records submitted in response to a grand jury subpoena.
Therefore, Crim.R. 6(E) does not exempt disclosure by Petro of the requested
records, which he obtained from the special prosecutor, who had in turn received
them in response to grand jury subpoenas. See, generally, 1 Wright, Federal
Practice and Procedure (1982) 246, Section 106 (No obligation of secrecy can be
imposed on any person except those specified in Fed.R.Crim.P. 6[E], which is
analogous to Crim.R. 6[E].). Petro’s reliance on WLWT-TV5 and Waters is
misplaced because in both of those cases, the prosecutor, as opposed to a person
not specified in Crim.R. 6(E), refused access to the grand jury records.
R.C. 149.43(A)(2)(c); Work Product
{¶ 22} Petro also contends that the records are exempt work product under
R.C. 149.43(A)(2)(c), which includes within the definition of exempt “confidential
law enforcement investigatory record” records the release of which “would create
a high probability of disclosure of * * * specific investigatory work product.”
{¶ 23} The work product exemption does not apply. First, Petro did not
introduce evidence that established the applicability of the work product
exemption. 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
. Information assembled by law
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January Term, 1997
enforcement officials in connection with a pending or highly probable criminal
proceeding constitutes exempt work product under R.C. 149.43(A)(2)(c). See, e.g.,
State ex rel. Leonard v. White (1996), 75 Ohio St.3d 516, 517,664 N.E.2d 527
,
529. In refusing Gannett’s request for access to the records, Petro admitted that his
office did “not have any detailed knowledge of the future plans of the Task Force
and/or the special prosecutor,” i.e., no knowledge that the records obtained by grand
jury subpoena were in connection with a pending or highly probable criminal
proceeding.
{¶ 24} Second, given Petro’s disclosure of other records, such as the index
and audit report, and oral statements describing the withheld records, it is doubtful
that disclosure of these working papers would create a high probability of
disclosure of investigatory work product, as required for R.C. 149.43(A)(2)(c). Cf.
State ex rel. Plain Dealer Publishing Co. v. Lesak (1984), 9 Ohio St.3d 1, 4, 9 OBR 52, 54,457 N.E.2d 821, 824
(Celebrezze, C.J., concurring).
{¶ 25} Finally, the requested records consist largely of nonexempt public
records, e.g., newspaper articles, MVSD contracts and records, and records of
campaign contributions. Records which are unquestionably nonexempt do not
become exempt simply because they are placed in a prosecutor’s file or, as in this
case, are the subject of grand jury subpoenas. WLWT-TV5, 77 Ohio St.3d at 361,673 N.E.2d at 1370
; Cincinnati Enquirer,75 Ohio St.3d at 378
,662 N.E.2d at 338
.
{¶ 26} Therefore, relators are entitled to writs of mandamus to compel Petro
to provide access to the requested records. Petro waived any exemptions and, even
assuming no waiver, the exemptions are inapplicable.
Attorney Fees
{¶ 27} Relators also claim attorney fees. Relators have established a
sufficient public benefit by satisfaction of the public’s right to know. State ex rel.
Olander v. French (1997), 79 Ohio St.3d 176, 180,680 N.E.2d 962, 965
. The
records involve alleged improprieties concerning a public office, which were
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initially disclosed to the public as a result of articles based on prior public records
requests. In addition, Petro did not have a reasonable basis to preclude access to the
requested records. Id.,79 Ohio St.3d at 179
,680 N.E.2d at 964-965
. In fact, he
had previously represented to relators that the records were public and that he would
disclose them but for the MVSD Court’s orders. Therefore, relators are entitled to
an award of attorney fees against Petro.
Conclusion
{¶ 28} Accordingly, we grant relators writs of mandamus compelling
respondent Petro to provide access to requested records, grant relators attorney fees
against Petro, and order relators to submit bills and documentation in support of
their requests for attorney fees in accordance with the guidelines set forth in DR 2-
106.
Writs granted and
attorney fees granted.
MOYER, C.J., PFEIFER, COOK and LUNDBERG STRATTON, JJ., concur.
RESNICK and F.E. SWEENEY, JJ., concur separately.
DOUGLAS, J., not participating.
__________________
ALICE ROBIE RESNICK, J., concurring separately.
{¶ 29} I join with the majority in finding that relators are entitled to writs of
mandamus compelling Petro to provide access to the requested records. I also join
with the majority in finding that relators are entitled to awards of attorney fees.
However, I do not agree with all of the reasoning employed by the majority.
{¶ 30} I would simply find that the records must be disclosed because Petro
and the special prosecutor waived the right to assert any exemptions that were
raised or that could have been raised. I view the remainder of the majority’s
discussion regarding the inapplicability of possible exemptions “assuming that
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January Term, 1997
Petro did not waive the claimed exemptions” as mere surplusage that is not essential
to the resolution of this case.
{¶ 31} Furthermore, I disagree with the majority’s application of a “public
benefit” test to support the award of attorney fees against Petro. Relators are
prevailing parties under R.C. 149.43(C) and should be entitled to mandatory awards
of attorney fees. See State ex rel. Olander v. French (1997), 79 Ohio St.3d 176,
180-181,680 N.E.2d 962, 965-966
(Douglas, J., dissenting, joined by Resnick and Francis E. Sweeney, JJ.); State ex rel. Pennington v. Gundler (1996),75 Ohio St.3d 171, 175-178
,661 N.E.2d 1049, 1052-1054
(Francis E. Sweeney, J., concurring in
part and dissenting in part, joined by Douglas and Resnick, JJ.).
F.E. SWEENEY, J., concurs in the foregoing concurring opinion.
__________________
11
Reference
- Cited By
- 18 cases
- Status
- Published
- Syllabus
- Mandamus to compel State Auditor to provide relators access to all records relied on in audit of Mahoning Valley Sanitary District—Writ granted, when—Attorney fees for relators granted, when.