SUPREME COURT RULES COUNTY ENGINEER’S RESPONSE MET REQUIREMENTS OF PUBLIC RECORDS ACT
By Dennis Whalen | March 7, 2013
The Supreme Court of Ohio today denied a writ of mandamus sought by Portsmouth real estate appraiser Robert Gambill to compel the production of certain public records by Scioto County Engineer Craig Opperman.
In a 6-1 per curiam opinion, the court held that Opperman met the requirements of the Ohio Public Records Act by offering to provide Gambill with a copy of the county’s electronic database containing deed information and aerial photos of all property in the county if Gambill paid the estimated $2,000 cost of separating that data from proprietary mapmaking software protected by U.S. patent laws that is “inextricably intertwined” with the data on the engineer’s computer.
Opperman provides maps and aerial photographs to the public by way of a computer terminal at the engineer’s office, where a member of the public may input search terms and obtain a copy of the results. Gambill wanted a copy of the entire database of maps and aerial photographs.
The court wrote: “At issue in this case is Gambill’s request that the engineer’s office provide him with (1) copies of maps and aerial photographs of all the properties in Scioto County in paper form and (2) the electronic database from which the documents can be created.”
“Insofar as Gambill requests paper copies of maps and aerial photographs of all Scioto County properties, the engineer’s office does not maintain the data in this manner. Instead, each requested tax map is a new image that the computer creates when the requester inputs search terms. Opperman has ‘no duty to create or provide access to nonexistent records.’ Gambill may obtain paper copies of maps and aerial photographs of properties in Scioto County by inputting search terms into the computer at the engineer’s office and paying the cost for each document printed.”
“Gambill’s main request, however, is for a copy of the electronic database that Opperman maintains. The database contains the information from which tax maps and aerial photographs are created when search parameters are entered into the free public terminal in the engineer’s office.
Opperman contends that this database does not constitute a record for purposes of R.C. 149.43. … Notwithstanding Opperman’s contentions, the requested electronic database is a record for purposes of the Public Records Act. It is an electronic record created by the engineer’s office by compiling data from various sources, including deeds recorded in the auditor’s office, and it serves to document the activities of the engineer’s office.”
“Opperman contends that if the requested electronic database is a record for purposes of R.C. 149.43, it is exempt from disclosure because it is inextricably intertwined with the copyright-protected Esri software. R.C. 149.43(A)(1)(v) exempts ‘[r]ecords the release of which is prohibited by state or federal law’ from the definition of ‘public record.’ Copyright law constitutes a federal law that exempts applicable records from disclosure under the Public Records Act.”
“Gambill … claims that he is not requesting the exempt software; he is requesting the engineer’s electronic database, which includes the raw data used to create tax maps and access aerial photographs. But the engineer’s office cannot separate the requested raw data from the exempt Esri software files. Therefore, consistent with other cases in which nonexempt materials are inextricably intertwined with exempt materials, the nonexempt records are not subject to disclosure under R.C. 149.43 insofar as they are inseparable.”
“Notwithstanding the inability of the engineer’s office to separate its requested electronic database from the exempt Esri software, it received an estimate from Woolpert—the company that the engineer’s office had hired to make its information system compatible with that of the auditor’s office after the auditor’s office updated its system in 2007—to extract the underlying electronic data from the intertwined exempt software. Woolpert estimated that it would cost $2,000, plus the cost of a hard drive. The engineer’s office then passed along this quote to Gambill. … Opperman acted reasonably in asking Woolpert to provide an estimate to extract the requested electronic data from the exempt Esri software files.”
“The uncontroverted evidence establishes that (1) because of the 2007 update to the auditor’s system, the engineer’s office had to update its computer system to make it compatible, (2) the Esri software is required to compile the data into a readable format, (3) the engineer’s office cannot separate the data from the Esri software files, and (4) Woolpert would charge a minimum fee of $2,000 plus the cost of a hard drive to extract the data that Gambill requested. There is no evidence here that Opperman or the engineer’s office intentionally combined the requested raw data with the exempt software so as to circumvent the Public Records Act. Under these circumstances, it is reasonable to include the cost that the engineer’s office will incur from Woolpert in extracting the requested electronic data and copying it onto a hard drive as part of the actual cost of providing the requested record.”
The court also rejected Gambill’s claim that the engineer’s office charges of $1.00 for an 11-by-17 inch copy of a tax map of a specified property and $2.00 for an 11-by-17 inch map with a black and white aerial photo of the mapped property were excessive, noting that Opperman had supported those charges with evidence that they were less than his actual cost to produce the records while Gambill had not submitted clear and convincing evidence to the contrary. The court concluded by denyingGambill’s request for an award of attorney fees, on the basis that his mandamus claim was found to be without merit.
The majority opinion was joined by Chief Justice Maureen O’Connor and Justices Terrence O’Donnell, Judith Ann Lanzinger, Sharon L. Kennedy, Judith L. French and William M. O’Neill.
Justice Paul E. Pfeifer dissented, stating that in his view “The county engineer in this case has intertwined public records with proprietary software and expects citizens seeking public records to pay an exorbitant price to untie the knot. A person seeking public records should expect to pay the price for copying the records, but not the price for a public entity’s mistake in purchasing inefficient software. … The holding in this case encourages public entities desiring secrecy to hide public records within a software lockbox and require individual citizens to provide the golden key to unlock it.”
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2012-1296. State ex rel. Gambill v. Opperman, Slip Opinion No. 2013-Ohio-761.
In Mandamus. Writ denied.
O’Connor, C.J., and O’Donnell, Lanzinger, Kennedy, French, and O’Neill, JJ., concur.
Pfeifer, J., dissents.