[Cite as State ex rel. Drum v. Ohio Pub. Emps. Retirement Sys., 2018-Ohio-1614.]

                             IN THE COURT OF APPEALS OF OHIO

                                  TENTH APPELLATE DISTRICT


State ex rel. Mark Drum,                               :

                 Relator,                              :

v.                                                     :                           No. 17AP-635

Ohio Public Employees Retirement                       :                    (REGULAR CALENDAR)
System,
                                                       :
                 Respondent.
                                                       :



                                         D E C I S I O N

                                      Rendered on April 24, 2018


                 On brief: Gwen Callender, for relator.

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


                                   IN MANDAMUS
                    ON OBJECTIONS TO THE MAGISTRATE'S 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.
No. 17AP-635                                                                                2

       {¶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.
No. 17AP-635                                                                              3

       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.
No. 17AP-635                                                                               4

       {¶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; action dismissed.

                            KLATT and BRUNNER, JJ., concur.

                                ___________________
No. 17AP-635                                                                           5

                                    APPENDIX
                        IN THE COURT OF APPEALS OF OHIO

                            TENTH APPELLATE DISTRICT


State ex rel. Mark Drum,                    :

             Relator,                       :

v.                                          :                     No. 17AP-635

Ohio Public Employees Retirement            :                (REGULAR CALENDAR)
System,
                                            :
             Respondent.
                                            :



                           MAGISTRATE'S DECISION

                             Rendered on October 31, 2017


             Gwen Callender, for relator.

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

                                   IN MANDAMUS
                               ON MOTION TO DISMISS


      {¶10} Relator, Mark Drum, seeks a writ of mandamus ordering respondent, the
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
No. 17AP-635                                                                               6

OPERS members and their addresses without sorting or separating members by employer
or other factor.
       {¶11} OPERS has moved to dismiss relator's complaint for a writ of mandamus on
the grounds that the complaint on its face fails to state a claim because the material
identified in relator's public records request and mandamus complaint is statutorily
exempt from disclosure. Because the matter is currently before the magistrate on a
motion to dismiss for failure to state a claim, which tests the sufficiency of the complaint
and assumes the truth of all facts alleged therein, the following findings of fact are based,
where appropriate, on the allegations in the complaint.
Findings of Fact:
       {¶12} 1. Relator, Mark Drum, is the elected State Secretary for the Fraternal
Order of Police of Ohio, Inc.
       {¶13} 2. Respondent, OPERS, is a statutorily-created Ohio state pension fund
with its principal place of business in Franklin County, Ohio.
       {¶14} 3. In September 2017, OPERS conducted its 2017 election for its board of
trustees, including the position of County Employee Representative.
       {¶15} 4. In connection with the election, OPERS generated a mailing list to
distribute ballots to all county-employed OPERS members.
       {¶16} 5. OPERS furnished the mailing list, including names and home addresses
of county-employed OPERS members, to a vendor who would conduct the mail ballot
election.
       {¶17} 6. On August 4, 2017, relator requested by email the mailing list generated
and used in the election.
       {¶18} 7. Also on August 4, 2017, OPERS denied the request, stating that it could
only furnish a list of all members, without separating out subcategories such as current
employer or active or retired status.
       {¶19} 8. On August 11, 2017, relator repeated his request. OPERS again refused,
specifying that the records were exempt from public records disclosure.
       {¶20} 9. Relator commenced the present action with a complaint for a writ of
mandamus filed on September 5, 2017.
No. 17AP-635                                                                               7

       {¶21} 10. OPERS moved on October 6, 2017 to dismiss the action for failure to
state a claim. Relator filed his response on October 13, 2017 and OPERS filed a reply on
October 20, 2017.
Discussion and Conclusions of Law:
       {¶22} A motion to dismiss under Civ.R. 12(B)(6) for failure to state a claim is
procedural and tests the sufficiency of the complaint. Dismissal is proper if, after all
factual allegations are presumed to be true and all reasonable inferences are made in
favor of the nonmoving party, it appears beyond doubt from the complaint that the
plaintiff could prove no set of facts warranting the requested relief.       Modern Office
Methods, Inc. v. Ohio State Univ., 10th Dist. No. 11AP-1012, 2012-Ohio-3587, ¶ 9. As long
as there is a set of facts consistent with the complaint that would allow the plaintiff to
recover, dismissal for failure to state a claim is not proper. York v. Ohio State Hwy.
Patrol, 60 Ohio St.3d 143, 145 (1991); Columbus Green Bldg. Forum v. State, 10th Dist.
No. 12AP-66, 2012-Ohio-4244, ¶ 28. The court need not, however, accept as true any
unsupported and conclusory legal propositions advanced in the complaint. Morrow v.
Reminger & Reminger Co., LPA, 183 Ohio App.3d 40, 2009-Ohio-2665, ¶ 7.
       {¶23} In order for this court to issue a writ of mandamus, relator must show a
clear legal right to the relief sought, a clear legal duty for the respondent to perform the
requested act, and the absence of a plain and adequate remedy for relator in the ordinary
course of the law. State ex rel. Berger v. McMonagle, 6 Ohio St.3d 28, 29 (1983).
       {¶24} Ohio's Public Records Act, R.C. 149.43, generally provides that, upon
request, public records shall be promptly prepared and available for inspection to any
person at all reasonable times during regular business hours. Among the numerous
exceptions the statute creates in derogation of that general proposition, the broadest is the
exception for "[r]ecords the release of which is prohibited by state or federal law." R.C.
149.43(A)(1)(v). Applying that exception, respondent argues that R.C. 145.27(A) prohibits
OPERS from releasing the personal history records of its members, and authorizes the
OPERS board to specify and identify any classes of confidential information. Pursuant to
this, the board has promulgated Ohio Adm.Code 145-1-61(A), specifically identifying the
names and addresses of members as confidential, and Ohio Adm.Code 145-1-61(B)(1),
No. 17AP-635                                                                                8

specifying that "any record identifying the service history or service credit of [a] member"
is part of the protected "personal history record" under R.C. 145.27(A).
       {¶25} The magistrate finds that the list of member names, when filtered or
selected by county employment, constitutes the personal history records of OPERS
members and is exempt from public records disclosure under R.C. 143.49(A)(1)(v). The
case is on all fours with the Supreme Court of Ohio's decision in State ex rel. Kerner v.
State Teachers Retirement Bd., 82 Ohio St.3d 273 (1998), examining an identical
restriction on the release of personal information found in the State Teachers Retirement
System ("STRS") statutes.
       {¶26} In Kerner, the relator requested a list comprised of a subclass of STRS
members selected by service credit (greater than five years) and current employment
(inactive). Like relator here, the requestor in Kerner did not request specific service credit
and contributions information for any given individual in the class. The Supreme Court
nonetheless held that disclosure of a subclass identifiable by employment history " 'would
necessarily disclose the [service credit and] record of contributions of each person whose
name is produced.' " (Alterations sic) Kerner at 275, quoting the lower court's decision in
the same case, 10th Dist. No. 97APD03-441 (Apr. 29, 1997) (memorandum decision). The
Supreme Court held that such a disclosure would violate the statutory prohibition on
release of personal service histories:
              The requested records were exempted from disclosure under
              R.C. 149.43 by R.C. 3307.21(B) and Ohio Adm.Code 3307-1-
              03(A). R.C. 3307.21(B)(2)(b) exempts from public inspection
              an individual's "personal history record" unless the individual
              concerned authorizes its release in writing. "Personal history
              record" includes "information maintained by the board on a
              member, former member, contributor, former contributor,
              retirant, or beneficiary that includes the * * * record of
              contributions * * * or other information the board determines
              to be confidential." R.C. 3307.21(B)(1).

Kerner at 275.
       {¶27} Applying the clear precedent in Kerner, the magistrate concludes that
disclosure of a list of OPERS members and their addresses, when sorted to include only
current county employees, necessarily entails the disclosure of prohibited personal
information protected by R.C. 143.49(A)(1)(v), R.C. 145.27(A), and Ohio Adm.Code 145-1-
No. 17AP-635                                                                                9

61(A).    "Personal history record" includes "service history or service credit."       Ohio
Adm.Code 145-1-61(B)(1). Under Kerner, disclosure of a subclass of employees for a
given employer necessarily discloses the record of contribution and service credit for the
names produced.
         {¶28} Relator does not dispute that OPERS twice offered to provide a global,
unfiltered list of members. This is the only information that OPERS is required by law to
provide: a "list of the names and addresses of members, former members, contributors,
former contributors, retirants, or beneficiaries." R.C. 145.27(D)(3). The board has no
legal duty to provide the selective list requested, and relator has no legal right to receive
the list. It is accordingly the magistrate's decision that this court will grant the motion to
dismiss filed by respondent and deny relator's request for a writ of mandamus.


                                               /S/ MAGISTRATE
                                               MARTIN L. DAVIS


                               NOTICE TO THE PARTIES

               Civ.R. 53(D)(3)(a)(iii) provides that a party shall not assign as
               error on appeal the court's adoption of any factual finding or
               legal conclusion, whether or not specifically designated as a
               finding of fact or conclusion of law under Civ.R.
               53(D)(3)(a)(ii), unless the party timely and specifically objects
               to that factual finding or legal conclusion as required by Civ.R.
               53(D)(3)(b).
