State ex rel. Gannett Satellite Info. Network, Inc. v. Petro - Ohio Supreme Court Opinion - Ohio Supreme Court Decision

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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), 80 Ohio
St.3d 261.]
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.

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.

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 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.

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.

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.

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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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.)

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.

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

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available for public inspection all records in his possession that were identified in
paragraph D of their settlement agreement "and/or that are public records."

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

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.

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).

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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 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

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.

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

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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.,
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.' ").

With the foregoing standards in mind, we consider relators' contentions.
Waiver

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.

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.

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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
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.

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.

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

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

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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 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.)

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.

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R.C. 149.43(A)(2)(c); Work Product

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."

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 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.

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).

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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.

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

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 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

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
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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. 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.

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 Petro did not
waive the claimed exemptions" as mere surplusage that is not essential to the
resolution of this case.

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.
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