[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
State ex rel. Clough v. Franklin Cty. Children Servs., Slip Opinion No. 2015-Ohio-3425.]




                                        NOTICE
     This slip opinion is subject to formal revision before it is published in
     an advance sheet of the Ohio Official Reports. Readers are requested
     to promptly notify the Reporter of Decisions, Supreme Court of Ohio,
     65 South Front Street, Columbus, Ohio 43215, of any typographical or
     other formal errors in the opinion, in order that corrections may be
     made before the opinion is published.



                         SLIP OPINION NO. 2015-OHIO-3425
THE STATE EX REL. CLOUGH v. FRANKLIN COUNTY CHILDREN SERVICES ET AL.
  [Until this opinion appears in the Ohio Official Reports advance sheets, it
     may be cited as State ex rel. Clough v. Franklin Cty. Children Servs.,
                         Slip Opinion No. 2015-Ohio-3425.]
Mandamus—Access to alleged public records—Children-services agency records
        of investigation of alleged child abuse are confidential under R.C.
        2151.421(H)(1)—Contents of file that are not confidential investigation
        records under R.C. 2151.421(H)(1) are confidential under R.C. 5153.17
        and may be inspected only for “good cause”—Parent whose child was
        subject of investigation has not shown good cause—Writ denied.
      (No. 2014-1122—Submitted June 9, 2015—Decided August 27, 2015.)
                                    IN MANDAMUS.
                               _____________________
        Per Curiam.
        {¶ 1} Relator, Stephanie Y. Clough, seeks a writ of mandamus to compel
respondent Franklin County Children Services (“FCCS”) to allow her access to
                             SUPREME COURT OF OHIO




files maintained by FCCS on Clough’s minor daughter. According to the report
of the special master appointed by this court to review the file, the requested
documents are the records of an investigation of a report of possible child abuse.
They are therefore confidential under R.C. 2151.421(H)(1). To the extent that
certain pages might not be records of that investigation, they are confidential
under R.C. 5153.17 and may be inspected only for “good cause.” Clough has
failed to show good cause. Therefore, we deny the writ.
                                        Facts
       {¶ 2} On April 22, 2014, Clough made a verbal request, through an agent,
to inspect records concerning Clough’s daughter, Jasmine. On April 30, 2014,
Clough’s agent received a written response from respondent Anne C. O’Leary,
chief legal counsel for FCCS, denying Clough’s request. The letter explained that
respondent Charles M. Spinning, executive director of FCCS, did not find good
cause to release the records. On May 13, 2014, Clough’s agent tendered to
O’Leary a written request for the inspection of Jasmine’s case file.        FCCS
responded, once again refusing to allow inspection of the file. Clough filed her
complaint in mandamus in this court on July 3, 2014.
       {¶ 3} Clough asserts in her complaint that the request for access is
authorized by FCCS in an agency document setting forth FCCS board policies.
She avers that this right of access is not subject to any restriction and that this
right contradicts FCCS’s claim that the records may only be released in limited
circumstances. Clough asserts that the response to her request is “inadequate and
illegal” and in direct defiance of her rights as explained in the FCCS document,
specifically her right to access and review information contained in the case
record relating to herself and her children.
       {¶ 4} In the complaint Clough further asserts that the FCCS document
grants a right to review all FCCS documents in the presence of FCCS personnel.
She contends that the independent review of her request by the Ohio Department




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of Job and Family Services (“ODJFS”) and the claim that the records are
confidential under Ohio law are “inadequate” grounds for refusing her request.
        {¶ 5} Clough asserts that FCCS’s actions have been “in defiance” of that
agency’s memorandum of understanding with various entities, including the
Children’s Advocacy Center1 and CHOICES, a women’s advocacy center.
        {¶ 6} According to Clough’s complaint, at one point, the disposition of the
report of possible abuse of Clough’s daughter resulted in findings of
“unsubstantiated.” But she claims that during two grievance hearings, she was
informed that the disposition would be changed to “indicative of abuse.” Clough
asserts that, following the grievance hearings, she has a right to review any notes
or other records for an explanation of why FCCS changed its decision. She
asserts that FCCS has failed to offer any explanation for not following its own
policies and procedures.
        {¶ 7} Clough maintains that she has a clear legal right to inspect the case
file in the presence of FCCS personnel at their offices. She asserts that she has no
adequate remedy in the ordinary course of the law and that there is no legally
valid excuse for the denial. Clough claims that a writ will serve the public interest
by encouraging FCCS to comply with its own policies and procedures and by
exposing the failure of FCCS to follow protocols under a memorandum of
understanding with other child protective service agencies.
        {¶ 8} Clough requests a writ of mandamus commanding respondents to
immediately allow her to review the case file and notes as mandated under FCCS
policy. She also seeks statutory damages and costs.
        {¶ 9} We assigned the Honorable Kenneth J. Spicer, a retired judge of the
Delaware County Court of Common Pleas, Probate and Juvenile Divisions, as a
special master to conduct an in camera review of the requested documents. He

1
 Clough may be referring to Nationwide Children’s Hospital’s Center for Child and Family
Advocacy.




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did so and filed a report, to which Clough filed a response. FCCS filed a motion
to clarify the report of the special master. Clough has also filed three emergency
motions to expedite the court’s decision.
                                       Analysis
Mandamus
        {¶ 10} Generally, to be entitled to a writ of mandamus, the relator must
establish a clear legal right to the requested relief, a clear legal duty on the part of
the respondents to provide it, and the lack of an adequate remedy in the ordinary
course of the law. State ex rel. Waters v. Spaeth, 131 Ohio St.3d 55, 2012-Ohio-
69, 960 N.E.2d 452, ¶ 6. The relator must prove that she is entitled to the writ by
clear and convincing evidence. Id. at ¶ 13.
        {¶ 11} To the extent that this case is a claim for public records,
“[m]andamus is the appropriate remedy to compel compliance with R.C. 149.43,
Ohio’s Public Records Act.” State ex rel. Physicians Commt. for Responsible
Medicine v. Ohio State Univ. Bd. of Trustees, 108 Ohio St.3d 288, 2006-Ohio-
903, 843 N.E.2d 174, ¶ 6; R.C. 149.43(C)(1).
        {¶ 12} Although the Public Records Act is accorded liberal construction in
favor of access to public records, “the relator must still establish entitlement to the
requested extraordinary relief by clear and convincing evidence.” State ex rel.
McCaffrey v. Mahoning Cty. Prosecutor’s Office, 133 Ohio St.3d 139, 2012-
Ohio-4246, 976 N.E.2d 877, ¶ 16. However, unlike in other mandamus cases,
 “ ‘[r]elators in public-records mandamus cases need not establish the lack of an
adequate remedy in the ordinary course of law.’ ” State ex rel. Data Trace
Information Servs., L.L.C. v. Cuyahoga Cty. Fiscal Officer, 131 Ohio St.3d 255,
2012-Ohio-753, 963 N.E.2d 1288, ¶ 25, quoting State ex rel. Am. Civ. Liberties
Union of Ohio, Inc. v. Cuyahoga Cty. Bd. of Commrs., 128 Ohio St.3d 256, 2011-
Ohio-625, 943 N.E.2d 553, ¶ 24.




                                            4
                                January Term, 2015




Franklin County Children Services grievance and consumer-rights policies
       {¶ 13} Although the requests made by Clough in this case might be
construed as public-records requests to be analyzed under R.C. 149.43, Clough’s
complaint does not specifically cite that statute or characterize the records sought
as “public.” Rather, she asserts that her right to inspect the files is authorized by
FCCS in its document on FCCS board policies.
       {¶ 14} FCCS’s policy does provide that adults and children who are
clients of FCCS have the right to review their case records. However, that
statement of client rights is qualified by the phrase “so long as such access is not
prohibited by law.” Thus, the statement of right that Clough relies on is expressly
limited, as it must be, by its incorporation of applicable law.
       {¶ 15} Even if the policy did not point out limitations to the right, those
limitations exist and are enforceable. A court in a mandamus proceeding cannot
create a duty where none exists. State ex rel. Governor v. Taft, 71 Ohio St.3d 1,
3, 640 N.E.2d 1136 (1994); State ex rel. Hodges v. Taft, 64 Ohio St.3d 1, 3, 591
N.E.2d 1186 (1992). Only the legislature can create a legal duty to be enforced in
mandamus: “creation of the duty is the distinct function of the legislative branch
of government.” Id.
       {¶ 16} Here, the FCCS document on board policies regarding the
inspection of investigatory files does not create or reflect any duty to provide
access that can be enforced in mandamus. No FCCS “policy” can provide access
to the requested files when access is prohibited by law. Because Clough cannot
claim a clear legal right from FCCS’s statement of policies and procedures, we
deny the writ to the extent Clough is basing her claim on those policies and
procedures.
Public records
       {¶ 17} Although Clough does not mention the public-records law in her
complaint, she nevertheless asserts a violation of that law in her brief. Even




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assuming that the issue has been properly presented, Clough cannot prevail. R.C.
149.43(B)(1) requires that upon request, all public records shall be promptly
prepared and made available for inspection at reasonable times.                   R.C.
149.43(A)(1) defines a “public record” as “records kept by any public office.”
But R.C. 149.43(A)(1)(v) excepts from disclosure “[r]ecords the release of which
is prohibited by state or federal law.”
       {¶ 18} FCCS asserts that the documents Clough requested are exempted
from disclosure by R.C. 2151.421(H)(1), which explicitly provides that a children
services agency’s investigatory record resulting from a report of suspected child
abuse is confidential. That statute states: “Except as provided in divisions (H)(4)
and (N) of this section, a report made under this section is confidential.” R.C.
2151.421(H)(1); see State ex rel. Renfro v. Cuyahoga Cty. Dept. of Human Servs.,
54 Ohio St.3d 25, 27, 560 N.E.2d 230 (1990) (“R.C. 2151.421(H)(1) clearly
removes child abuse investigation reports compiled under that statute from the
mandatory disclosure provisions of R.C. 149.43(B)”).            This exemption was
explained to Clough in one of the responses to her inspection request.
       {¶ 19} Therefore, if the file constitutes a report of a child-abuse allegation
and the investigation of that allegation, as Clough describes it in her brief, the file
is confidential under R.C. 2151.421(H)(1).
Report of the special master
       {¶ 20} The special master inspected the file and described its general
contents in his report.       His description of the documents is necessarily
circumspect, revealing nothing substantive about their contents. But his report
does indicate, with only a few possible exceptions, that the file is a “report made
under this section” within the meaning of R.C. 2151.421(H)(1) and that it is
therefore confidential.
       {¶ 21} The special master concludes that his review of the file confirmed
that a report of suspected abuse had been received and investigated. The case was




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                                     January Term, 2015




closed with the determination that the report was unsubstantiated, and the parents
were notified. He explicitly declined to express an opinion as to whether the
determination was correct.2
Public-records exceptions
        {¶ 22} Considering the special master’s report, the file appears to contain,
with very few possible exceptions, the records of an investigation of a report of
possible child abuse, and therefore falls under the confidentiality provision in
R.C. 2151.421(H)(1). Thus, those records are exempt from disclosure under R.C.
149.43(A)(1)(v).
        {¶ 23} Even those documents in the file that might not be confidential
under R.C. 2151.421 are open to inspection only to the persons or entities
specified in R.C. 5153.17:


                 The public children services agency shall prepare and keep
        written records of investigations of families, children, and foster
        homes, and of the care, training, and treatment afforded children,
        and shall prepare and keep such other records as are required by
        the department of job and family services. Such records shall be
        confidential, but, except as provided by division (B) of section
        3107.17 of the Revised Code, shall be open to inspection by the
        agency, the director of job and family services, and the director of
        the county department of job and family services, and by other
        persons upon the written permission of the executive director.



2
  Respondents filed a motion to “clarify” the special master’s report, in which they assert that a
few of the documents were not accurately described. Having no way to independently verify these
assertions, we deny the motion. Moreover, even if the documents are as described by respondents,
it would not change the result here.




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                             SUPREME COURT OF OHIO




       {¶ 24} “[T]he confidentiality promised by R.C. 5153.17 is not absolute.”
Renfro, 54 Ohio St.3d at 29, 560 N.E.2d 230. Ohio courts have held that while it
is the primary duty of the executive director of a county children services agency
to keep its records confidential, the executive director may allow inspection when
the requester shows “good cause.” See, e.g., Johnson v. Johnson, 134 Ohio
App.3d 579, 583, 731 N.E.2d 1144 (3d Dist.1999); Conrad v. Richland Cty.
Children Servs., 5th Dist. Richland No. 2011 CA 124, 2012-Ohio-3871, ¶ 16-19.
“Good cause” is established when the requester shows that disclosure is in the
best interests of the child or that the due process rights of the requester are
implicated. Swartzentruber v. Orrville Grace Brethren Church, 163 Ohio App.3d
96, 2005-Ohio-4264, 836 N.E.2d 619, ¶ 9 (9th Dist.), quoting Johnson at 585.
       {¶ 25} The exceptions to the confidentiality provision in R.C. 5153.17 are
narrow.    A parent’s right to a fair trial might override the confidentiality
requirement. See Renfro at 29; Davis v. Trumbull Cty. Children Servs. Bd., 24
Ohio App.3d 180, 493 N.E.2d 1011 (11th Dist.1985) (“good cause” may be
established by a showing that a county children services agency is relying on the
records to deprive the child’s parents of custody through a dependency action).
“Good cause” may be shown when the requester has a right arising under another
statute to inspect the records in question. In re Trumbull Cty. Children Servs. Bd.,
32 Ohio Misc.2d 11, 513 N.E.2d 360 (C.P.1986). The good cause shown must
outweigh the considerations underlying the confidentiality requirement. Johnson
at 585. Indeed, we have refused to order disclosure even when the authorities
were using a report to refuse to return a child to her foster parents and to advocate
against the recertification of the home for foster care. Renfro, 54 Ohio St.3d 25,
560 N.E.2d 230. In Swartzentruber, a trial court ordered the disclosure of a
child’s preadoptive case file to the plaintiffs in an action alleging that the
defendants’ adopted child had sexually abused the plaintiffs’ daughter.         The
plaintiffs were seeking access to the file to determine whether the alleged abuser




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                               January Term, 2015




had ever been a victim of sex abuse, which they claimed would prove a
propensity to commit such abuse against others. The Ninth District Court of
Appeals reversed, finding that the plaintiffs had failed to show good cause, since
the reason for disclosure was greatly outweighed by the need for confidentiality.
       {¶ 26} Clough’s argument in support of disclosure is that FCCS did not
follow its own policies and procedures in denying her request. This does not
qualify as good cause. While her case is sympathetic, and she is no doubt
concerned about the investigation of her daughter’s possible abuse, she has not
alleged that the child is currently in any specific danger, that her due process
rights are in jeopardy, or that there is any similarly compelling reason to depart
from the statutory mandate of confidentiality.
       {¶ 27} Finally, Clough’s second argument is that she is entitled to records
pertaining to the grievance hearings held in 2009 and 2010.           Although the
hearings are mentioned in the complaint and brief, these records are not
mentioned in her requests to FCCS. Clough may not seek a writ of mandamus for
documents that she did not request before filing her complaint.
                                    Conclusion
       {¶ 28} In short, Clough has requested to inspect documents that are
deemed confidential by statute without any showing of good cause for overriding
confidentiality.   We therefore deny the writ and deny Clough’s emergency
motions to expedite the decision. We also deny the motion to clarify the report of
the special master. Costs for the special master shall be borne by the court.
                                                                       Writ denied.
       O’CONNOR, C.J., and PFEIFER, O’DONNELL, KENNEDY, FRENCH, and
O’NEILL, JJ., concur.
       LANZINGER, J., concurs in judgment only.
                            _____________________
       Stephanie Y. Clough, pro se.




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       Ron O’Brien, Franklin County Prosecuting Attorney, Nick A. Soulas Jr.,
First Assistant Prosecuting Attorney, and Amy L. Hiers, Assistant Prosecuting
Attorney, for respondents.
                             ______________________




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