State ex rel. Nelson v. Fuerst - 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. Nelson, Appellee, v. Fuerst, Clerk, et al.,
Appellants.
[Cite as State ex rel. Nelson v. Fuerst (1993), Ohio
St.3d .]
Public records -- R.C. 149.43 does not require custodians to
mail either copies of public records or the records
themselves.
(No. 91-2099 -- Submitted January 5, 1993 -- Decided March
10, 1993.)
Appeal from the Court of Appeals for Cuyahoga County, No.
62021.
Carl A. Nelson, Sr., relator-appellee, is incarcerated at
Marion Correctional Institute ("MCI"), is indigent, and has
exhausted all direct appeals of his convictions. Nelson sought
a writ of mandamus in the Court of Appeals for Cuyahoga County
to compel Cuyahoga County Clerk of Courts Gerald E. Fuerst and
Cuyahoga County Prosecuting Attorney Stephanie Tubbs Jones,
respondents-appellants, to make available for his inspection
seventy-one pages of documents pertaining to his convictions,
apparently for rape and kidnapping. Nelson filed for the writ
because respondents' $1.00 per page copying fee was less
affordable than the $.12 per page fee charged at MCI.
The court of appeals granted the writ, holding that R.C.
149.43(B) "entitles all persons, at a minimum, to inspect
public records." To enforce this duty, the court ordered:
"(1) Respondent Clerk of Court * * * to notify [Nelson]
of the cost of postage to mail the records to the Marion
Correctional facility;
"(2) Upon receipt of the postage, respondent Clerk of
Court is to mail the records to the Superintendent of the
Marion facility;
"(3) Within two weeks of receipt of the records, the
superintendent is to collect the amount of return postage from
[Nelson] and make the records available for [Nelson's]
inspection and copying at the institution's copying fee, all
under supervision; and
"(4) The Superintendent is to mail the records back to
the Clerk of Court."

The cause is before this court on an appeal as of right.

Carl A. Nelson, Sr., pro se.
Stephanie Tubbs Jones, Prosecuting Attorney, Patrick J.
Murphy and Carol Shockley, Assistant Prosecuting Attorneys, for
appellants.
Robert E. Sexton and Thomas P. Sexton, urging denial of
the writ, for amicus curiae Ohio Clerk of Courts Association.

Per Curiam. The issue presented for our review is: Did
the court of appeals err in finding that respondents had a duty
to mail public records on request? For the reasons that
follow, we hold that R.C. 149.43 does not require custodians to
mail either copies of public records or the records
themselves. Accordingly, we reverse.
Respondents do not dispute that the records Nelson seeks
are subject to public disclosure under R.C. 149.43(B). They
object only to the court's procedure for enforcing this
statute. Respondents contend that this procedure is contrary
to R.C. 149.351(A), which prohibits the removal or transfer of
public records from a public office, "except as provided by
law," and R.C. 2303.09 and 2303.03, which require the clerk of
the common pleas and appellate courts to preserve the papers
filed in his office.
Neither R.C. 149.351(A) nor 2303.09, however, prevents the
removal or transfer of records, with appropriate safeguards,
where required by law. For example, the clerk of a trial court
must transmit the record in a case on appeal pursuant to App.R.
10. Similarly, if R.C. 149.43(B) guarantees inmates access to
public records, the custodians of those records must make the
records available for inspection.
The duty to allow inspection and copying of public records
imposed by R.C. 149.43(B), however, is not absolute. This
statute 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." (Emphasis added.)
Recently, we held that custodians of public records are
not obligated by R.C. 149.43(B) to make copies of such records
available by mail. In State ex rel. Fenley v. Ohio Historical
Soc. (1992), 64 Ohio St.3d 509, 511, 597 N.E.2d 120, 122, we
explained:
"We find the language of R.C. 149.43 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 by R.C.
149.43. We thus find the word 'available' is not synonymous
with 'available by mail.'"
Thus, to comply with R.C. 149.43(B), respondents need only
supply copies of requested public records at a reasonable cost

within a reasonable period of time during regular business
hours. As the duty to allow inspection does not include
mailing copies of public records, custodians of public records
must also have no duty to mail the records themselves for
inspection. Accordingly, the court of appeals erred in
ordering respondents to transfer the records requested by
Nelson by mail for his perusal.1
Therefore, the court of appeals' decision ordering
respondents to mail the pertinent public records to Nelson for
supervised copying is reversed.
Judgment reversed.
Moyer, C.J., A.W. Sweeney and F.E. Sweeney, JJ., concur.
Resnick, J., concurs in judgment only.
Douglas, Wright and Pfeifer, JJ., dissent.

FOOTNOTE
1 Although Nelson does not argue that he is entitled to
copies of the instant records free of charge, due process
apparently does not guarantee this here, where the indigent
complainant has exhausted the direct appeal of his conviction
and has no post-conviction remedy pending. State ex rel.
Vitoratos v. Yacobucci (1962), 173 Ohio St. 462, 464, 20 O.O.
2d 81, 82, 184 N.E.2d 98, 99, certiorari denied and appeal
dismissed (1962), 371 U.S. 25, 83 S.Ct. 135, 9 L.Ed.2d 96;
State ex rel. Partee v. McMahon (1963), 175 Ohio St. 243, 248,
24 O.O.2d 386, 388-389, 193 N.E.2d 266, 269; State ex rel. Murr
v. Thierry (1987), 34 Ohio St.3d 45, 517 N.E.2d 226.

Douglas, J., dissenting. I respectfully dissent based
upon my dissent in State ex rel. Fenley v. Ohio Historical Soc.
(1992), 64 Ohio St.3d 509, 512, 597 N.E.2d 120, 123. This case
graphically illustrates the unfairness of the Fenley decision.
The majority, herein, says that appellee may have the records.
Now all he has to do is figure a way to get out of prison so he
can go to the public office involved (during regular business
hours, of course) and pick up those records.

Wright, J., dissenting. As I wrote in my dissent in
State ex rel. Fenley v. Ohio Historical Soc. (1992), 64 Ohio
St. 3d 509, 515, 597 N.E.2d 120, 125, I share Justice Douglas's
approach to R.C. 149.43(B). I continue to believe that this
statute "'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.'" Id. at 514-515,
597 N.E.2d at 125 (Douglas, J., dissenting). If the present
case were indistinguishable from Fenley, however, the doctrine
of stare decisis might well require me to concur in today's
judgment. But this case is distinguishable from Fenley, and
even more clearly than Fenley illustrates the error of the
majority's position. Therefore, I respectfully dissent.
The Cuyahoga County Clerk of Courts has asked this court
to vacate a writ of mandamus issued by the court of appeals.
In the court of appeals, Carl A. Nelson, Sr. sought and
obtained a writ of mandamus to compel the clerk to provide
copies of certain records pursuant to R.C. 149.43. There is no
dispute that the records he seeks are public records or that
the clerk's office is a public office under R.C. 149.43(A).

The clerk was willing to provide copies of the records, but
only after Nelson paid a $1.00 per page fee for copying.
Nelson was willing to pay postage for the records to be mailed
to the prison where he could inspect them and copy only those
portions he desired at the rate of $.12 per page. He was also
willing to pay the return postage. Nelson explained to the
court of appeals that at his current prison wage he could not
afford the copying fee charged by the clerk of courts.
The court of appeals recognized that R.C. 149.43(C)
"entitle[d] all persons, at a minimum, to inspect public
records." (Emphasis sic.) Writing for a unanimous panel,
Judge Patton issued the following order:
"(1) Respondent Clerk of Court is to notify relator of
the cost of postage to mail the records to the Marion
Correctional facility;
"(2) Upon receipt of the postage, respondent Clerk of
Court is to mail the records to the Superintendent of the
Marion facility;
"(3) Within two weeks of receipt of the records, the
superintendent is to collect the amount of return postage from
relator and make the records available for relator's inspection
and copying at the institution's copying fee, all under
supervision; and
"(4) The Superintendent is to mail the records back to
the Clerk of Court."
The court of appeals' order is true to the scope and
purpose of R.C. 149.43. Ohio's public-records law is
necessarily broad. "'The rule in Ohio is that public records
are the people's records, and that the officials in whose
custody they happen to be are merely trustees for the people;
therefore anyone may inspect such records at any time, subject
only to the limitation that such inspection does not endanger
the safety of the record, or unreasonably interfere with the
discharge of the duties of the officer having custody of the
same.'" Dayton Newspapers, Inc. v. Dayton (1976), 45 Ohio
St.2d 107, 109, 74 O.O.2d 209, 211, 341 N.E.2d 576, 577-578.
"*** [T]he 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." State ex
rel. Cincinnati Post v. Schweikert (1988), 38 Ohio St.3d 170,
173, 527 N.E.2d 1230, 1232. Thus, in a 1976 opinion for the
court, Chief Justice O'Neill wrote:
"The relator seeks records which the General Assembly has
declared to be public records. The statute makes them
available to any member of the public, including the relator,
at any reasonable time. No pleading of too much expense, or
too much time involved, or too much interference with normal
duties, can be used by the respondent to evade the public's
right to inspect and obtain a copy of public records within a
reasonable time. The respondent is under a statutory duty to
organize his office and employ his staff in such a way that his
office will be able to make these records available for
inspection and to provide copies when requested within a
reasonable time." (Emphasis added.) State ex rel. Beacon
Journal Publishing Co. v. Andrews (1976), 48 Ohio St.2d 283,
289, 2 O.O.3d 434, 437, 358 N.E.2d 565, 569. This court's

interpretation of the public-records statute has never before
been dependent on the ability of the records seeker to travel
to the office in which the records are kept.
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." (Emphasis added.)
In Fenley, supra, this court held that a custodian of
public records "has no clear duty under R.C. 149.43(B) to
transmit copies of those records by mail ***." Id. at 510, 597
N.E.2d at 121. Fenley involved a genealogist, Ann Fenley, who
requested that the Ohio Historical Society ("Society")
photocopy and send to her a copy of a certain death
certificate. Fenley argued that the Society was obligated to
provide these services at cost, plus postage, and brought a
mandamus action when the Society refused to do so. It was
undisputed that the Society was a custodian of public records
and stipulated that the document sought was a public record
under R.C. 149.43.
A majority accepted the Society's argument that all R.C.
149.43 requires of custodians "is to allow inspection and
copying at their place of business during business hours." Id.
at 511, 597 N.E.2d at 122. "A custodian of public records,"
the court went on to say, "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." Id.
Although I disagree with this conclusion, the facts of
Fenley do not show that Fenley was unable to travel to the
Historical Society, search the records, and copy the death
certificate she was seeking. Thus, the records were, in a
literal sense, "available" for Fenley's inspection. This
crucial fact distinguishes the Fenley case from today's case.
Nelson is locked in prison. He is unable to leave his
cell, get in a car, drive to Cleveland, and copy the records he
seeks. He clearly cannot afford the $1.00 per page copying fee
the clerk of courts has demanded -- a fee which people who can
travel to the clerk's office are not forced to pay in advance.
In a very real sense the public records Nelson seeks, which he
has an undisputed right to examine, are unavailable for his
inspection. As a matter of undeniable common sense the records
cannot be made "available upon request at the governmental
unit's place of business." See Fenley, supra, at 511, 597
N.E.2d at 122.
The final sentence of R.C. 149.43(B) states: "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.) I believe that the right of the
public to obtain records is important enough that a records
custodian must accommodate those unable to travel to the

records office so that the records "can be made available for
inspection." (Emphasis added.) To achieve the results
required by R.C. 149.43 will sometimes demand flexibility from
records custodians. If a custodian is unwilling to seek
creative solutions, then a court must. In this case the court
of appeals crafted an acceptable solution to a difficult
problem. It properly balanced the need to keep the records
safe and the clerk of courts' financial concerns with Nelson's
right to examine the records. I would not disturb its
judgment.
By reversing the court below, however, the majority seems
to hold that people who are physically unable to travel to the
public-records custodian are not entitled to obtain public
records to the same extent as people who are able to do so in
person. This decision has a most devastating impact on the
right of prisoners, hospitalized people, and the disabled to
examine public records. I feel that the court has foreclosed
to these groups rights under the public-records statute
expressly granted to all Ohioans by the General Assembly. As
to the hospitalized and the disabled, I am especially concerned
that this decision may violate the Americans With Disabilities
Act of 1990, Section 12101 et seq., Title 42, U.S. Code.2 See
Fenley, supra, at 516, 597 N.E.2d at 126 (Wright, J.,
dissenting). I am also concerned that it implicates the equal
protection rights of prisoners.
With the exception of Fenley, our recent decisions have
interpreted R.C. 149.43 broadly in accordance with the intent
of the General Assembly. See, e.g., State ex rel. Toledo Blade
Co. v. Univ. of Toledo Found. (1992), 65 Ohio St.3d 258, 602
N.E.2d 1159. The majority's refusal to permit people who
cannot travel to the records custodian to enjoy their rights
under R.C. 149.43 requires a most narrow reading of the
statute. I would hold that in a case in which one seeking to
examine a public record is physically unable to obtain the
record in person, a public-records custodian is obligated by
R.C. 149.43(B) to make the requested record available to that
person for inspection without prepayment of a copying fee. I
would not set forth firm guidelines as to how this must be
done; each case is unique and must be dealt with in its own
manner.
The reasonable and well-conceived order of the court of
appeals should be affirmed.
Pfeifer, J., concurs in the foregoing dissenting opinion.

FOOTNOTE:
2 Because the implications of the Americans With
Disabilities Act was not raised by the parties, it is not
appropriate to speculate further on its applicability at this
time.