[Cite as State ex rel. Callos Staffing Co., L.L.C. v. Ohio Dept. of Job & Family Servs., 2011-Ohio-3662.]
                            STATE OF OHIO, MAHONING COUNTY

                                   IN THE COURT OF APPEALS

                                         SEVENTH DISTRICT


STATE ex rel. CALLOS STAFFING                       )        CASE NO. 11 MA 5
COMPANY, LLC                                        )
                                                    )
        RELATOR                                     )
                                                    )
VS.                                                 )        OPINION AND
                                                    )        JUDGMENT ENTRY
DIRECTOR, OHIO DEPARTMENT                           )
OF JOB AND FAMILY SERVICES                          )
                                                    )
        RESPONDENT                                  )

CHARACTER OF PROCEEDINGS:                                    Complaint for Writ of Mandamus

JUDGMENT:                                                    Dismissed.

APPEARANCES:

For Relator:                                                 Atty. Jerry M. Bryan
                                                             Atty. Jeremy R. Teaberry
                                                             Henderson, Covington, Messenger
                                                               Newman & Thomas Co., L.P.A.
                                                             6 Federal Plaza Central, Suite 1300
                                                             Youngstown, Ohio 44503


For Respondent:                                              Atty. Michael DeWine
                                                             Attorney General of Ohio
                                                             Atty. Patrick MacQueeney
                                                             Assistant Ohio Attorney General
                                                             615 West Superior Avenue, 11th Floor
                                                             Cleveland, Ohio 44113

JUDGES:

Hon. Cheryl L. Waite
Hon. Gene Donofrio
Hon. Joseph J. Vukovich
                                                             Dated: July 13, 2011
[Cite as State ex rel. Callos Staffing Co., L.L.C. v. Ohio Dept. of Job & Family Servs., 2011-Ohio-3662.]
PER CURIAM.


        {1}      On January 12, 2011, Relator Callos Staffing Company, LLC,
commenced a public records mandamus action pursuant to R.C. 149.43 against the
Director of the Ohio Department of Jobs and Family Services. The records request
involved documents relating to an audit of Relator’s unemployment insurance
records. Respondent answered that the requested records were not public records.
R.C. 4141.21 does exempt Respondent’s records from the definition of public
records, and therefore, there is no basis for this mandamus action. The complaint is
dismissed.
        {2}      If a person is aggrieved by the failure of a public office to make a public
record available, mandamus is an appropriate remedy. R.C. 149.43(C); State ex rel.
Cincinnati Enquirer v. Winkler, 101 Ohio St.3d 382, 2004-Ohio-1581, 805 N.E.2d
1094, ¶4. It is settled law that in order for a writ of mandamus to issue, a relator must
demonstrate: (1) that he has a clear legal right to the relief prayed for; (2) that
respondents are under a clear legal duty to perform the acts requested; and (3) that
relator has no plain and adequate remedy in the ordinary course of the law. State ex
rel. Berger v. McMonagle (1983), 6 Ohio St.3d 28, 451 N.E.2d 225. Dismissal of the
writ of mandamus is required when it appears beyond doubt, after presuming the
truth of all material factual allegations of the complaint and making all reasonable
inferences in the relator’s favor, that he or she is not entitled to the requested
extraordinary relief in mandamus. State ex rel. Satow v. Gausse-Milliken, 98 Ohio
St.3d 479, 2003-Ohio-2074, 786 N.E.2d 1289, ¶11.
        {3}      R.C. 149.43(A)(1)(v) excludes from the definition of public records:
“Records the release of which is prohibited by state or federal law”. The records
requested by Relator are not public records pursuant to R.C. 4141.21. This section
states: “* * * the information maintained by the director of job and family services or
furnished to the director by employers or employees pursuant to this chapter is for
the exclusive use and information of the department of job and family services in the
discharge of its duties and shall not be open to the public or be used in any court in
any action or proceeding pending therein, or be admissible in evidence in any action,
                                                                                  -2-

other than one arising under this chapter or section 5733.42 of the Revised Code. * *
*”
      {4}    The Sixth District Court of Appeals has held that:       “R.C. 4141.21
exempts the disclosure of information provided to the Ohio Bureau of Employment
Services from the disclosure requirements of the Ohio Public Records Act, R.C.
149.43; accord, Ohio Civ. Rights Comm. v. Campbell (1975), 46 Ohio App.2d 110, 75
O.O.2d 88, 345 N.E.2d 438.” Wiggins v. Ohio Bur. of Emp. Serv. (1992), 80 Ohio
App.3d 829, 832, 610 N.E.2d 1150; concur Hanson v. Ohio Edison (Jan. 10, 1996),
9th Dist. No. 17169.
      {5}    Because there is no clear legal duty for Respondent to make records
available under R.C. 149.43 that are not public, we sua sponte dismiss this complaint
for writ of mandamus.
      {6}    Costs taxed against Relator. Final order. Clerk to serve notice as
provided by the Civil Rules.


Waite, P.J., concurs.

Donofrio, J., concurs.

Vukovich, J., concurs.
