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2006-2239. State ex rel. Cincinnati Enquirer v. Jones-Kelley, Slip Opinion No. 2008-Ohio-1770.
In Mandamus. Writ granted.
Moyer, C.J., and Pfeifer, Lundberg Stratton, O'Donnell, Lanzinger, and Cupp, JJ., concur.
O'Connor, J., concurs in judgment only.
Opinion: http://www.supremecourtofohio.gov/rod/docs/pdf/0/2008/2008-Ohio-1770.pdf
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(April 9, 2008) In ruling on a public records request initiated by the Cincinnati Enquirer newspaper, the Supreme Court of Ohio today ordered the Ohio Department of Job and Family Services (ODJFS) to provide the newspaper with all names and addresses of certified foster care providers contained in the department’s internal database on the date of the request that were not covered by a specific confidentiality requirement imposed by state or federal law.
{NOTE: H.B. 214, legislation recently enacted by the General Assembly, now excepts identifying information of foster care providers contained in public records from disclosure under the state Public Records Act. Because that legislation was not made retroactive, however, this decision applies the version of R.C. 149.43 that was in effect at the time the Enquirer’s records request was submitted in September 2006.}
In a 7-0 decision authored by Justice Terrence O’Donnell, the Court found that federal and state laws bar disclosing the identity of individuals assisted under the state’s foster-care plan and persons who are “recipients of public-assistance payments.” It also found that state law bars disclosure of information that has been entered in the Statewide Automated Child Welfare Information System (SACWIS) data bank regarding “care and treatment provided to children and families.” The Court held, however, that ODJFS’ blanket denial of the Enquirer’s 2006 public record request for the department’s entire foster home database was invalid because ODJFS did not submit evidence showing which, if any, of the persons listed in its database on the date of the records request fell within one of the protected categories.
In its opinion, the Court reaffirmed and clarified prior decisions holding that:
Applying those holdings to the records request at issue in this case, the Court ordered ODJFS director Helen Jones-Kelley to review the contents of her department’s foster caregiver database, and to supply the Enquirer with a copy containing any names and addresses listed in that database on the date of the newspaper’s request that were not specifically barred from disclosure on that date because they fell under one or another of the cited statutory exceptions.
The case arose in September 2006 when an Enquirer reporter filed a public records request with the then-director of ODJFS seeking an electronic copy of the department’s database containing the names and addresses of “all foster associations, institutions or homes certified by the state under O.R.C. Chapter 5103.” ODJFS provided the Enquirer with a list of private agencies certified to perform foster-care-related functions, but the department did not provide a list of the names and addresses of certified foster homes. As of August 1, 2007, there were 9,985 certified foster homes in Ohio.
The newspaper then filed an original action in the Supreme Court of Ohio, asking the Court to issue a writ of mandamus to compel ODJFS to release the requested names and addresses on the basis that they are public records as defined by O.R.C. 149.43(A) and are not covered by any exception to disclosure enumerated in that statute. ODJFS argued in response that the requested records were covered by a statutory exception in the public records act for records that are barred from disclosure by a state or federal law, and also by application of a common law “good sense” exception consistent with prior court decisions interpreting the public records act.
In today’s decision, the Court agreed with the department’s argument that foster caregivers who have received federally subsidized “foster care maintenance payments” under Section 671 of the Social Security Act fall under a prohibition in that statute against disclosure of “any information regarding a public assistance recipient for any purpose not directly connected with the administration of a public assistance program.”
While noting that a recent investigation found that approximately 80 percent of the homes listed in the ODJFS database had received maintenance payments for providing foster care services within the preceding year, and therefore would presumably be exempt from disclosure, Justice O’Donnell wrote: “Nevertheless, the director still bears the burden of establishing that these … exceptions to disclosure are applicable to the requested record, which is a list of the names and addresses of certified foster caregivers in Ohio. In this regard, the director has not yet introduced evidence that all of the certified foster caregivers in the requested record had received or were receiving foster-care maintenance payments or had applied for them at the time of the Enquirer’s request. Notably, under Section 672(a), Title 42, U.S.Code, these payments can be made only on behalf of eligible children. There is again no evidence in the record that all of the certified foster caregivers were caring for eligible children when the Enquirer made its request. At best, the director submitted evidence that about 80 percent of all foster homes had a placement in the year before a certain investigation occurred. There is no indication that the placements referenced were of eligible children or that every certified foster caregiver had applied for or received foster-care maintenance payments at the time of the records request. Therefore, the director has not yet met her burden to establish that the disclosure of the list of names and addresses of certified foster caregivers would necessarily disclose which, if any, of the certified foster caregivers are, in fact, public-assistance recipients or applicants.”
Rather than ordering ODJFS to make full disclosure of all names and addresses in its database, which he said could jeopardize Ohio’s federal funding for foster care programs and expose the identities of caregivers who are required under federal law to remain confidential, Justice O’Donnell wrote: “Now that we have interpreted the applicable law, the status of the requested records has been established. We believe the proper course is to allow the director to establish which information fits into this exception to disclosure, which had been unidentified before our analysis.”
The Court also agreed with the department’s claim that names and addresses from its foster caregiver database that had been entered into the SACWIS data bank would qualify for exclusion under a provision of state law, R.C. 5101.131, that bars disclosure of information in the SACWIS system regarding “care and treatment provided to children and families.” Again, however, Justice O’Donnell noted that the information provided to the Court by ODJFS to justify its denial of the newspaper’s records request was not sufficient to support exclusion of all names and addresses in the department’s internal database from disclosure.
“The director contends that all of the names and addresses of foster caregivers are excepted from disclosure based on R.C. 5101.131 because they are being entered into SACWIS as records relating to the “[c]are and treatment provided to children and families” under R.C. 5101.13(A)(2),” wrote Justice O’Donnell. “But the director has not yet introduced sufficient evidence on the possible applicability of this exception. The evidence regarding SACWIS is limited to a brief reference in the director’s deposition in which she noted that the system would allow the state to have information ‘about all the children in care, [and] all of the systems that are operating with those children and families.’ In her merit brief, the director conceded that ‘some names and addresses are not yet protected under R.C. 5101.13[1]’ because they have not been entered into the system. In fact, the director submitted no evidence on how many, if any, foster caregivers’ names and addresses were contained in SACWIS at the time of the Enquirer’s request. Again, we believe the proper course is to allow the director to establish which information fits into this exception to disclosure.”
Finally, the Court distinguished this case from two prior decisions in which it recognized a limited common law “good sense” exception to public records disclosure. One of the prior cases involved a criminal defendant’s demand for personnel records containing the home address and family information of the arresting police officer (State ex rel. Keller v. Cox, 1999). The other requested access to the home addresses of children who used city-owned swimming pools (State ex rel. McCleary v. Roberts, 2000).
Noting that the rulings in both Keller and McCleary were rooted in privacy claims not asserted by ODJFS, and that McCleary held that the documents requested were not “records” as defined by the public records act, Justice O’Donnell quoted this Court’s 2006 holding in Kish v. Akron that: “‘the General Assembly is the ultimate arbiter of policy considerations relevant to public records laws … and it is for the legislature to weigh[ ] and balance[ ] the competing public policy considerations between the public’s right to know how its state agencies make decisions and the potential harm, inconvenience or burden imposed on the agency by disclosure.’ A judicially created ‘good sense’ rule cannot override this precedent.”
Justice O’Donnell concluded: “Based on the foregoing, the director is ordered to divulge the database containing the names and addresses not otherwise excluded by application of the law as explained in this opinion.”
Justice O’Donnell’s opinion was joined by Chief Justice Thomas J. Moyer and Justices Paul E. Pfeifer, Evelyn Lundberg Stratton, Judith Ann Lanzinger and Robert R. Cupp. Justice Maureen O’Connor concurred in judgment only.
Contacts
John C. Greiner, 513.629.2734, for the Cincinnati Enquirer.
Henry G. Appel, 614.466.8600, for the Ohio Department of Job & Family Services.