State ex rel. Fenley v. Ohio Historical Soc. - Ohio Supreme Court Opinion - Ohio Supreme Court Decision

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OPINIONS OF THE SUPREME COURT OF OHIO
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The State ex rel. Fenley v. Ohio Historical Society et al.
[Cite as State ex rel. Fenley v. Ohio Historical Soc.
(1992), Ohio St.3d .]
Public records -- Custodian of public records has no clear
legal duty under R.C. 149.43(B) to transmit copies of
those records by mail.
(No. 90-1902 -- Submitted June 17, 1992 -- Decided
September 2, 1992.)
In Mandamus.
Relator, Ann Fenley, is a genealogist who seeks a writ of
mandamus pursuant to the Public Records Act, R.C. 149.43.
Respondents are the Ohio Historical Society (an "archival
institution" under R.C. 149.44) and four of its officers ("the
Society"). Fenley objects to the Society's charge for finding,
copying, and mailing historical death certificates. Both
Fenley and the Society agree that the certificates are "public
records" as defined by R.C. 149.43(A)(1). In her complaint,
Fenley seeks to compel the Society to mail copies of those
records at a cost of $0.25 each, plus postage.
Fenley, a resident of Montgomery County, asked the Society
to mail her an uncertified copy of a death certificate in June
1989. Based on previous correspondence with the Society,
Fenley was aware that the charge for mailing such a copy was
$6.00 for Society members and $8.00 for nonmembers. Fenley
considered both charges excessive because the fee charged by
the Society to those individuals appearing in person in
Columbus was just $0.25 for making their own copies.
Therefore, Fenley's June 1989 request included a check for
$0.25.
Thereafter, in September 1989, the Society altered its fee
schedule, and instituted a flat $7.00 fee for mailing copies of
uncertified death certificates. At that time, the Society
notified Fenley of this change, forwarded a copy of the death
certificate she had requested to her, and informed her that the
$7.00 mailing fee had been donated by a Society member. Fenley
then brought this original action in mandamus, attempting to
compel the Society to lower the price it charges to mail
uncertified death certificates.

Porter, Wright, Morris & Arthur, Robert E. Portune, Thomas
H. Pyper and Ronald J. Kozar, for relator.
Fred J. Milligan, Jr., for respondents.

Per Curiam. The issue presented by this mandamus action
is whether R.C. 149.43 requires a custodian of public records
to mail copies of those records upon request. For the reasons
which follow, we find that a custodian of public records has no
clear legal duty under R.C. 149.43(B) to transmit copies of
those records by mail, and we deny the writ.
R.C. 149.43(C) authorizes a person who allegedly is
aggrieved by a governmental unit's failure to comply with R.C.
149.43(B) to commence a mandamus action to force compliance,
and also to seek reasonable attorney fees. Before a writ of
mandamus will issue in a public records case we must find that
relator is entitled to respondents' performance of a clear
legal duty. See State ex rel. The Fairfield Leader v. Ricketts
(1990), 56 Ohio St.3d 97, 102, 564 N.E.2d 486, 491.
As an initial matter, the Society argues that it has no
duty to act because Fenley has already been given relief (she
was mailed the certificate after a member donated the $7.00
fee), and that mandamus may not be used "to remedy the
anticipated nonperformance of a duty." State ex rel. Home Care
Pharmacy, Inc. v. Creasy (1981), 67 Ohio St.2d 342, 343, 21
O.O.3d 215, 216, 423 N.E.2d 482, 483 (holding that where an
alleged duty has already been carried out, a writ of mandamus
will not be granted to compel observance of the law
generally). Fenley counters that she is still an "aggrieved"
party under R.C. 149.43(C) because she was not given a copy of
the death certificate in accordance with the cost and access
requirements of R.C. 149.43(B).
We agree with Fenley's position on this initial matter.
The policy she attacks, the Society's $7.00 mailing fee,
remains in effect. To deny Fenley relief under the rule in
Home Care Pharmacy would permit persons responsible for public
records to circumvent review of their practices by making
exceptions for those who object. Fenley's ultimate goal is to
change the Society's mailing-charge policy to comply with what
she believes are the requirements of R.C. 149.43(B). We thus
find that she is an "aggrieved" party for R.C. 149.43(C)
purposes.
The parties stipulate that the death certificate at issue
is a public record. The parties disagree, however, over R.C.
149.43(B)'s requirements regarding the mailing of such a record.
R.C. 149.43(B) provides:
"All public records shall be promptly prepared and made
available for inspection to any person at all reasonable times
during regular business hours. Upon request, a person
responsible for public records shall make copies available at
cost, within a reasonable period of time. In order to
facilitate broader access to public records, governmental units
shall maintain public records in such a manner that they can be
made available for inspection in accordance with this division."
R.C. 149.43(B) does not expressly provide that a custodian
of public records must make copies available by mail, nor does
it detail any procedure to be followed if copies are mailed.
Acknowledging this, Fenley urges this court to construe R.C.

149.43(B) broadly in favor of public disclosure, as required by
State ex rel. Cincinnati Post v. Schweikert (1988), 38 Ohio
St.3d 170, 173, 527 N.E.2d 1230, 1232, and to hold that the
custodian's duty to make records "available" includes the
obligation to make copies available by mail. Adopting this
position would increase the availability of public information.
The Society, however, maintains that the plain meaning of
R.C. 149.43(B) is contrary to Fenley's construction. The
statute literally requires only that public records be made
"available" for inspection "at all reasonable times during
regular business hours." The statute further requires the
custodian of the records to make copies "available at cost."
The Society argues that the word "available" is not ambiguous
on the subject of mailing copies, and that all that the statute
requires custodians to do is to allow inspection and copying at
their place of business during business hours.
It is a frequently cited rule of statutory construction
that "where the terms of a statute are clear and unambiguous,
the statute should be applied without interpretation." Wingate
v. Hordge (1979), 60 Ohio St.2d 55, 58, 14 O.O.3d 212, 214, 396
N.E.2d 770, 772. We find that the language of R.C. 149.43 is
clear and unambiguous. A custodian of public records who makes
those records available for inspection, and who makes copies
available upon request at the governmental unit's place of
business, fulfills the responsibilities placed upon him or her
by R.C. 149.43. We thus find that the word "available" is not
synonymous with "available by mail." To apply that
interpretation would be to rewrite the statute beyond what its
literal words will support. Such an interpretation of the
statute would require this court to add words to R. C. 149.43.
We refuse to do this without a more affirmative authorization
from the General Assembly. Moreover, the General Assembly is
well equipped to determine what the cost of such a mailing
should reasonably be, if it does determine that a duty to mail
can appropriately be placed upon the custodian of public
records. Forcing the holders of public records to provide
copies by mail could conceivably place unacceptable burdens
upon the governmental units having custody of the records. The
General Assembly can weigh those burdens against the public's
right to know and legislate an equitable balance.
Fenley also argues that we should extend the principle
established in the second paragraph of the syllabus of State ex
rel. Natl. Broadcasting Co. v. Cleveland (1988), 38 Ohio St.3d
79, 526 N.E.2d 786, to the circumstances of this case. That
syllabus paragraph reads: "A governmental body refusing to
release records has the burden of proving that the records are
excepted from disclosure by R.C. 149.43." Fenley urges us to
apply that reasoning to this case, resulting in a burden being
placed on a custodian of records to show why copies should not
be provided by mail. We do not find Fenley's argument
persuasive. A governmental body's refusal to release records
simply is not analogous to a governmental body's refusal to
mail copies of records it is fully willing to release to the
public. R.C. 149.43 places a duty on the custodian of public
records to release them, with certain noted exceptions; it
places no similar duty to provide copies by mail.
Furthermore, R.C. 149.43(B) establishes a standard with

which custodians of public records must comply: to make the
records available for inspection during business hours and to
makes copies available at cost. But, the statute also affords
a measure of discretion, which this court has held to govern
the method of compliance. State ex rel. Recodat Co. v.
Buchanan (1989), 46 Ohio St.3d 163, 165, 546 N.E.2d 203, 205;
State ex rel. Margolius v. Cleveland (1992), 62 Ohio St.3d 456,
461, 584 N.E.2d 665, 670 ("R.C. 149.43 requires the message,
not the medium, to be disclosed."). Thus, a custodian of
public records who complies with the access requirements
specified in R.C. 149.43(B) should have some discretion to
determine what if any additional access he or she will permit.
Many of the arguments presented by both relator and
respondents are public policy arguments going to the question
of whether it is appropriate to require the custodian of
records to provide copies by mail. As discussed supra, those
contentions are better addressed by the General Assembly than
by this court. For the same reason, it is unnecessary for us
to consider the arguments raised by both parties concerning
what a "reasonable" cost charged for mailing records should be.
Because we hold that R.C. 149.43(B) places no duty on the
person responsible for public records to provide copies of
those records by mail, relator is not entitled to respondents'
performance of the requested act. The writ of mandamus is
denied.
Writ denied.
Moyer, C.J., Sweeney, Holmes and H. Brown, JJ., concur.
Douglas, Wright and Resnick, JJ., concur.
Douglas, J., dissenting. Today a majority of this court
takes yet another whack at the public records law. See, e.g.,
State ex rel. Toledo Blade Co. v. Northwood (1991), 58 Ohio
St.3d 213, 569 N.E.2d 904. Because I disagree with the holding
of the majority, I must respectfully dissent. I do so because
I believe that the majority has incorrectly construed R.C.
149.43(B).
The parties to this original action in mandamus are Ann
Fenley ("relator"), a resident citizen of Ohio who, for many
years, has pursued the vocation of genealogy, and the Ohio
Historical Society ("OHS") and certain officials and employees
of OHS, collectively referred to as "respondents." OHS is a
state-chartered nonprofit corporation which performs specified
public functions. Included among the public functions of the
OHS is OHS serving as the archives administration for the state
and its political subdivisions as provided for in R.C. 149.31
to 149.42. OHS is an "archival institution" pursuant to R.C.
149.44.
Prior to December 1988, the Ohio Department of Health,
Division of Vital Statistics ("DVS") (now office of Vital
Statistics), had possession of all death certificates of Ohio
decedents for the time period of 1908-1936. On occasion, when
relator sought a copy or copies of death certificates, she
would mail her request to DVS which would provide her the
requested copies at $1.10 each. If a special search of the
files and records became necessary to locate the requested
certificate, an additional charge was made in accordance with
former R.C. 3705.05 (now see 3705.24[A]).
In December 1988, DVS transferred the 1908-1936 death

certificates to OHS. Relator soon discovered that the DVS
copying and mailing policy and charges would not be followed by
OHS. While the cost factor of making the copies in question
has been placed at issue by the parties, the majority only
decides the question of whether, upon proper request and
payment of some fee, a public record must be mailed to a
requesting person by an agency holding public records. Because
the majority does not deal with the cost factor, neither will
this dissent notwithstanding that such question is a critical
part of this case. Suffice to say, OHS's policy of charging
relator for requested copies by mail amounts to nearly a six
hundred percent increase over the costs previously charged by
DVS.
Feeling that she was an "aggrieved" person, relator
commenced this original action in mandamus. She did so on the
basis that her rights granted by R.C. 149.43 were being
abridged in two ways: that she could not obtain copies of
records by mail and that she could not receive copies at "cost"
as provided for by statute. While it appears from the record
that OHS would make the copies available by mail to relator at
a specified cost, the majority nevertheless decides this case
solely on the basis that a custodian of public records does not
have a duty, even given a proper request and tendered payment,
to mail properly requested public records. It is with this
decision of the majority that I take exception.
R.C. 149.43(B) provides that:
"All public records shall be promptly prepared and made
available for inspection to any person at all reasonable times
during regular business hours. Upon request, a person
responsible for public records shall make copies available at
cost, within a reasonable period of time. In order to
facilitate broader access to public records, governmental units
shall maintain public records in such a manner that they can be
made available for inspection in accordance with this
division." (Emphasis added.)
The majority, in construing the term "available," as used
in R.C. 149.43(B), says that "the word 'available' is not
synonymous with 'available by mail.' To apply that
interpretation would be to rewrite the statute beyond what its
literal words will support. Such an interpretation of the
statute would require this court to add words to R.C. 149.43."
I do not agree.
The rationale behind Ohio's public records law is that
public records belong to the public, and the governmental unit
or custodian holding the record does so on behalf of the
public. See State ex rel. Natl. Broadcasting Co. v. Cleveland
(1988), 38 Ohio St.3d 79, 526 N.E.2d 786. "Further, the law's
public purpose requires a broad construction of the provisions
defining public records. Because the law is intended to
benefit the public through access to records, this court has
resolved doubts in favor of disclosure." (Emphasis added.)
State ex rel. Cincinnati Post v. Schweikert (1988), 38 Ohio
St.3d 170, 173, 527 N.E.2d 1230, 1232.
By its own terms, R.C. 149.43(B) runs counter to the
majority's opinion. R.C. 149.43(B) explicitly provides that
"[i]n order to facilitate broader access to public records,
governmental units shall maintain public records in such a

manner they can be made available for inspection * * *."
(Emphasis added.) Indeed, the General Assembly has encouraged
and anticipated that governmental units which are in possession
of public records will take affirmative action to ensure that
public records remain open and available to the public.
Providing records by mail was not a contemplated barrier to
such action.
Further, there is no question that R.C. 149.43 is a
remedial statute and, as a consequence, "[r]emedial laws and
all proceedings under them shall be liberally construed in
order to promote their object and assist the parties in
obtaining justice." R.C. 1.11. Thus, I would interpret the
phrase "shall make copies available at cost, within a
reasonable period of time," as requiring a governmental unit or
custodian of public records to transmit copies of records by
mail if requested by a person entitled to such records. The
governmental unit or custodian should, of course, be able to
charge a reasonable fee.
Rather than the law pronounced by the majority, I believe
that a syllabus in this case should state that "R.C. 149.43
requires custodians of public records to accept and honor, upon
payment of a reasonable fee, requests for public records to be
mailed to a requesting person." In holding contra to this, the
majority does not consider the need for and the right to obtain
public records by incarcerated persons, out-of-state persons,
or even in-state persons who do not have access to or who are
not in close proximity to the public agency from which records
are sought. Permitting public authorities to disregard
requests that public records be mailed restricts meaningful
access to such records to citizens or their agents who are
fortunate enough to live within, or have transportation to, the
location of where the public records are held. In this day and
age when Ohioans can even obtain their vehicle license plates
(or stickers) by mail, the majority truly reaches a curious
result re public records. Unfortunately, from this day
forward, any public agency is now authorized to refuse to mail
a properly requested public record. Any citizen seeking any
public record must now appear in person or by agent to secure
such record -- a record(s) that in the first instance already
belongs to that citizen as a member of the public.
Today's decision deviates from our long-established course
to ensure that public records remain open and available to the
public. This court has repeatedly applied R.C. 149.43 in a
liberal manner, affording aggrieved citizens access to
governmental information. Why the majority has suddenly
decided to chart a different course is a mystery to me.
Accordingly, I respectfully dissent.
Resnick, J., concurs in the foregoing dissenting opinion.
Wright, J. I respectfully dissent from this court's
decision to deny relator's request for a writ of mandamus. I
would order further briefing on the issue of the actual cost to
the Ohio Historical Society before deciding whether the writ
should be granted or denied.
Although I share Justice Douglas's interpretation of R.C.
149.43(B), I write separately to register my strong
disagreement with the majority's contention that the statute
does not impose a duty upon a custodian of public records to

mail copies of documents to requestors who are willing to pay
for same. Today's decision runs contrary to several recent
decisions by this court which have broadened the public's
access to public records under R.C. 149.43. See, e.g., State
ex rel. Margolius v. Cleveland (1992), 62 Ohio St.3d 456, 584
N.E.2d 665; State ex rel. Natl. Broadcasting Co. v. Cleveland
(1988), 38 Ohio St.3d 79, 526 N.E.2d 786; State ex rel. Clark
v. Toledo (1990), 54 Ohio St.3d 55, 560 N.E.2d 1313; State ex
rel. Fostoria Daily Review v. Fostoria Hosp. Assn. (1988), 40
Ohio St.3d 10, 531 N.E.2d 313.
As a matter of public policy, custodians should adopt and
implement reasonable measures which will allow the broadest
range of access to public records by Ohio citizens. Although I
believe the party making the request should bear reasonable
costs associated therewith, a mandate that custodians make
copies of public records available by mail is neither
burdensome nor unreasonable. This practice would provide
access to those Ohio citizens who are unable to travel to the
custodian due to distance or otherwise. Indeed, we may well be
sanctioning the violation of the Americans With Disabilities
Act of 1990, Section 12101 et seq., Title 42, U.S.Code,1 if we
do not place a duty on custodians of public records to respond
to reasonable requests, such as the one before us.
Our recent decisions have interpreted R.C. 149.43 broadly
in order to provide Ohio citizens with complete access to
public records. This court's failure to impose a duty to
respond by mail to requests is most disappointing. Thus, my
dissent.
FOOTNOTE:
1 Subchapter II of the Act provides that:
"* * * no qualified individual with a disability shall, by
reason of such disability, be excluded from participation in or
be denied the benefits of the services, programs, or activities
of a public entity, or be subjected to discrimination by any
such entity." Section 12132, Title 42, U.S. Code.