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State ex rel. Drum v. Ohio Public Employees Retirement System

Court of Appeals of Ohio, Tenth District

April 24, 2018

State ex rel. Mark Drum, Relator,
v.
Ohio Public Employees Retirement System, Respondent.

         IN MANDAMUS ON OBJECTIONS TO THE MAGISTRATE'S

          On brief: Gwen Callender, for relator.

          On brief: Michael DeWine, Attorney General, and John J. Danish, for respondent.

          DECISION

          BROWN, P.J.

         {¶1} Relator, Mark Drum, seeks a writ of mandamus ordering respondent, Ohio Public Employees Retirement System ("OPERS"), to comply with relator's public records request seeking a mailing list containing the names and home addresses of OPERS employees currently employed by counties in the State of Ohio. OPERS has denied the request on the basis that the information sought is specifically exempted from public records requests, and that by law, OPERS can only release a general list of all OPERS members and their addresses without sorting or separating members by employer or other factors. OPERS has filed a motion to dismiss.

          {¶2} This matter was referred to a court-appointed magistrate pursuant to Civ.R. 53 and Loc.R. 12(M) of the Tenth District Court of Appeals. The magistrate issued the appended decision, including findings of fact and conclusions of law, and recommended this court grant the motion to dismiss filed by OPERS and deny relator's request for a writ of mandamus. Relator has filed objections to the magistrate's decision.

         {¶3} In order to obtain a writ of mandamus, relator would be required to demonstrate that: (1) he has a clear legal right to the relief prayed for, (2) OPERS is under a clear legal duty to perform the act requested, and (3) OPERS has no plain and adequate remedy in the ordinary course of law. State ex rel Thompson v. Ohio Adult Parole Auth., 10th Dist. No. 10AP-24, 2011-Ohio-429, ¶ 23, citing State ex rel. Berger v. McMonagle, 6 Ohio St.3d 28, 29 (1983).

         {¶4} In his objections, relator raises no new issues. Relator reiterates that neither R.C. 145.27(A)(2) nor (D)(3) exclude from public disclosure the names and addresses he has requested from OPERS. He also asserts OPERS's own policy indicates a record is available to the public as long as the record is used in the regular course of OPERS business and is not otherwise exempt from law. He further contends that, although Ohio Adm.Code 145-1-61(C) excludes OPERS from publicly disclosing personal history and medical reports of a member, his request did not include a request for such. He claims the requested mailing list does not reveal any information that is exempt as a personal history record. He argues the fact that names and addresses are derived from the personal history records of OPERS members does not except them from being a public record. He also asserts that, contrary to the magistrate's finding that disclosure of a subclass of employees for a given employer necessarily discloses the record of contribution and service credit for the names produced, he did not request such but only the names and addresses of members employed by counties. Relator also takes issue with the magistrate's reliance on State ex rel. Kerner v. State Teachers Retirement Bd., 82 Ohio St.3d 273 (1998).

         {¶5} We agree with the magistrate that the records requested by relator are exempt from public disclosure. The magistrate concisely linked the relevant Ohio Revised Code and Ohio Administrative Code sections to arrive at this conclusion. R.C. 149.43, the Ohio Public Records Act, provides for the disclosure of public records, except for, among other things, those "records the release of which is prohibited by state or federal law." R.C. 149.43(A)(1)(v). R.C. 145.27(A) prohibits OPERS from releasing the personal history records of its members, and allows OPERS to specify what it deems confidential information. Through Ohio Adm.Code 145-1-61(A), OPERS has specified the names and addresses of its members as confidential, and through Ohio Adm.Code 145-1-61(B)(1), OPERS has specified that a record identifying the service history or service credit of a member is considered a personal history record under R.C. 145.27(A). The magistrate then explained that by filtering its list of member names to form a subclass of county employees, OPERS necessarily identifies the service history and service credit of a member. Relator's arguments that none of the specific exclusions from public disclosure contained in R.C. 145.27 and Ohio Adm.Code 145-1-61 apply here, and he did not specifically request personal history records, do not counter the magistrate's reasoning that sorting its member names by county employees necessarily identifies the service history and credit of the members and, as such, prohibits OPERS from disclosing a list of such employees to relator.

         {¶6} As for the magistrate's comparison of the present case to Kerner, relator attempts to distinguish it from the circumstances here. Relator claims that, in Kerner, the Supreme Court of Ohio found if the State Teacher's Retirement System ("STRS") had created the list in the public records request, it would have necessarily disclosed the personal history records of the members by divulging that each person had at least five years of service credit and had made no contributions during the preceding year. Relator argues that, here, the fact the names and addresses in his request are derived from the personal history records of OPERS members does not except it from being a public record. He contends he did not directly request the records of contribution and/or service credit of the county employed OPERS members, and disclosure of the mailing list would not have revealed any prohibited information.

         {¶7} However, for purposes of the present case, the import of Kerner is that disclosing a subclass of employees for a given employer necessarily discloses the personal history records for those employees. Disclosure of those members would reveal they are employed by a county, which is a part of an employee's personal history record. We can find no error in the magistrate's reliance on Kerner.

          {¶8} Finally, relator argues that nothing in R.C. 145.058, which allows OPERS to hire an outside vendor to administer elections, shields a mailing list created for that vendor from public disclosure. Relator points out it is this already existing mailing list that he seeks in his public records request. However, even though the mailing list relator seeks with his request had already been created by OPERS, the rules of public disclosure relied upon by the magistrate still apply. Despite the existence of the exact records relator seeks, R.C. 149.43(A)(1)(v), 145.27(A), Ohio Adm.Code 145-1-61(A), and (B)(1) still prohibit OPERS from releasing the personal history records of its members, as explained above. For these reasons, we overrule relator's objections.

         {¶9} Accordingly, after an examination of the magistrate's decision, an independent review of the record, pursuant to Civ.R. 53, and due consideration of relator's objections, we overrule his objections and adopt the magistrate's findings of fact and conclusions of law. OPERS's motion to dismiss is granted, and the action is dismissed.

         Objections overruled; ...


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