Opinion
No. 89-1548
Submitted November 21, 1989 —
Decided February 21, 1990.
Public records — Investigative activities of state licensing boards included in R.C. 149.43(A)(2) exemptions from disclosure.
IN MANDAMUS.
Relator, Donald H. McGee, a licensed psychologist, seeks a writ of mandamus to enforce rights under R.C. 149.43, Ohio's public records law. Respondent, the Ohio State Board of Psychology ("board"), is investigating McGee's professional practices. The board started investigating McGee specifically when undisclosed informant(s) talked to the board's president in April 1989. The board promised confidentiality to them. In June 1989, the Attorney General's office intervened.
On August 22, 1989, the Franklin County Municipal Court issued a search warrant for McGee's business office. That court sealed an affidavit, used to secure the warrant, to prevent the "impeding or obstruction of the Special Grand Jury investigation." Officials seized from McGee's office extensive records allegedly relating to Medicaid fraud.
On August 23, 1989, McGee requested the board to release all board public records concerning him. He wanted especially all complaints received.
On August 24, McGee motioned the Court of Common Pleas of Franklin County to return property seized from his office on August 22 and to suppress evidence. He also argued for inspection of any affidavits supporting the search warrant. The Attorney General opposed the motion.
On August 28, 1989, McGee obtained some public records from the board. However, the board refused to release "investigative files." The board has delayed its McGee investigation pending the outcome of the Medicaid fraud criminal investigation. Hence, the board has not charged McGee with any infractions under R.C. 4732.17, a requirement before formal action is taken.
On September 5, 1989, McGee filed this mandamus action. McGee thereafter issued notices seeking to depose nonparty witnesses, the board's investigator and another psychologist. On October 30, we issued protective orders barring those depositions and a show cause order why the records should not be released.
Lane, Alton Horst, Jeffrey J. Jurca and Sam B. Weiner, for relator.
Anthony J. Celebrezze, Jr., attorney general, and Lauren M. Ross, for respondent.
Solomon M. Fulero, for Dr. Cirino.
Ohio's public records statute mandates release of public records, but explicitly excepts "confidential law enforcement investigatory records." R.C. 149.43(A)(2), inter alia, provides:
"`Confidential law enforcement investigatory record' means any record that pertains to a law enforcement matter of a criminal, quasi-criminal, civil, or administrative nature, but only to the extent that the release of the record would create a high probability of disclosure of any of the following:
"(a) The identity of a suspect who has not been charged with the offense to which the record pertains, or of an information source or witness to whom confidentiality has been reasonably promised;
"(b) Information provided by an information source or witness to whom confidentiality has been reasonably promised, which information would reasonably tend to disclose his identity[.]"
The state Board of Psychology's investigation of McGee fits within R.C. 149.43(A)(2) as a "confidential law enforcement investigatory record." The reference in R.C. 149.43(A)(2) to four types of law enforcement matters — criminal, quasi-criminal, civil, and administrative — evidences a clear statutory intention to include investigative activities of state licensing boards. See definitions of "agency" and "adjudication" in R.C. 119.01(A) and (D); and 1981 Ohio Atty. Gen. Ops. No. 81-014, at 2-49.
Under Ohio law, the board is charged with licensing and regulating psychologists, with authority to reprimand, or to suspend or revoke their licenses. The board investigates suspected misconduct and rule violations. See R.C. 4732.06 and 4732.17.
We find that at least one or both of the secondary requirements under R.C. 149.43(A)(2)(a) or (b) also exist. Release of the record creates a high probability of disclosure of uncharged suspects or informants to "whom confidentiality has been reasonably promised." Decisions to delay or not file charges do not override the confidential law enforcement investigatory exception. State, ex rel. Thompson Newspaper, Inc., v. Martin (1989), 47 Ohio St.3d 28, 546 N.E.2d 939.
Under the specific facts of this case, we are satisfied that an in camera inspection is not required. But, see, State, ex rel. Outlet Communications, Inc., v. Lancaster Police Dept. (1988), 38 Ohio St.3d 324, 528 N.E.2d 175; State, ex rel. Fostoria Daily Review Co., v. Fostoria Hosp. Assn. (1988), 40 Ohio St.3d 10, 531 N.E.2d 313. The identity of uncharged suspects and confidential witnesses or information sources would necessarily be intertwined with any retained investigatory records.
This material may also qualify as an exempt "trial preparation record," under R.C. 149.43(A)(4), an issue not briefed here. When the board's investigator briefed the Attorney General's office in June 1989, criminal proceedings for alleged Medicaid fraud may reasonably have been anticipated. But, see, Barton v. Shupe (1988), 37 Ohio St.3d 308, 525 N.E.2d 812.
We also note McGee has alternative remedies available to him in connection with any criminal investigation. See State, ex rel. Scanlon, v. Deters (1989), 45 Ohio St.3d 376, 544 N.E.2d 680. Trial courts are fully able to decide R.C. 149.43 issues in any discovery process. Henneman v. Toledo (1988), 35 Ohio St.3d 241, 520 N.E.2d 207.
For the above-stated reasons, the writ of mandamus is denied.
Writ denied.
MOYER, C.J., SWEENEY, HOLMES, WRIGHT, H. BROWN and RESNICK, JJ., concur.
DOUGLAS, J., dissents.