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State ex Rel. Lowery v. Cleveland

Supreme Court of Ohio
Aug 11, 1993
67 Ohio St. 3d 126 (Ohio 1993)


No. 92-1556

Submitted May 18, 1993 —

Decided August 11, 1993.

APPEAL from the Court of Appeals for Cuyahoga County, No. 63242.

In September 1991, relator-appellee, Marilyn Lowery, requested public records from Cleveland officials relating to the 1976 homicide of her husband, Edward Lowery, and the arrest and conviction of James Kimble for that homicide. She also asked for records pertaining to a wrongful death lawsuit that she filed, as administrator of her husband's estate, against the city. Following the city's alleged inaction, relator petitioned the court of appeals under R.C. 149.43 for a writ of mandamus against respondents, the city of Cleveland and its mayor, director of public safety, and chief of police (herein "city").

In response, the city moved to dismiss the petition, asserting relator had another adequate legal remedy via discovery, but later abandoned that argument, since relator's wrongful death lawsuit had been settled years before. The city also released some redacted records, claimed exemptions for others, and submitted unreleased records for an in camera review.

The court of appeals, noting the submission of records for in camera inspection, sua sponte converted respondents' motion to dismiss to a motion for summary judgment. In its reply brief filed in the court of appeals, the city asserted it "would ask [that] Court to simply apply the exemptions asserted by the Respondents in its submitted brief and affidavit by conducting an in camera review of the records. * * * The issues are more fully developed in the motion to dismiss previously submitted * * * which is being treated a Motion for Summary Judgment."

After inspecting the records in camera, the court issued a writ of mandamus, in part, ordering the release of some retained records. The city now appeals as a matter of right.

Marilyn Lowery, pro se. Danny R. Williams, Law Director, and Pamela A. Pfleger Walker, Assistant Law Director, for appellants.

Here, the city submitted the records for in camera inspection, presented evidence and argument to support its claimed exemptions to public release, and asked the court to decide the issues. Under the circumstances, the city cannot now claim it lacked a fair opportunity to present evidence to support its claimed exemptions.

We agree that public officials must be given an adequate opportunity to present evidence about claimed exemptions. "A governmental body refusing to release records has the burden of proving that the records are excepted from disclosure by R.C. 149.43." State ex rel. Natl. Broadcasting Co. v. Cleveland (1988), 38 Ohio St.3d 79, 526 N.E.2d 786, paragraph two of the syllabus. Moreover, exemptions to the release of records may not be self-evident on a document's face, and courts regularly rely upon other evidence to decide exemptions. See, generally, State ex rel. McGee v. Ohio State Bd. of Psychology (1990), 49 Ohio St.3d 59, 550 N.E.2d 945.

However, the court of appeals decided the case only after the city submitted the disputed documents to the court, asserted exemptions, and asked the court to decide the issues on the basis of an in camera inspection of the documents. See State ex rel. Natl. Broadcasting Co. v. Cleveland, supra, at paragraph four of the syllabus. Since the court did as the city asked, the city cannot complain now about the lack of opportunity to present evidence. As we reaffirmed in Center Ridge Ganley, Inc. v. Stinn (1987), 31 Ohio St.3d 310, 313, 31 OBR 587, 590, 511 N.E.2d 106, 109, "[u]nder the `invited error' doctrine, `[a] party will not be permitted to take advantage of an error which he himself invited or induced the trial court to make.' Lester v. Leuck (1943), 142 Ohio St. 91, 26 O.O. 280, 50 N.E.2d 145, paragraph one of the syllabus."

Thus, the court's summary judgment for relator neither prejudiced the city's procedural rights nor denied the city an opportunity to submit evidence. See State ex rel. Cuyahoga Cty. Hosp. v. Bur. of Workers' Comp. (1986), 27 Ohio St.3d 25, 28, 27 OBR 442, 444, 500 N.E.2d 1370, 1373; Houk v. Ross (1973), 34 Ohio St.2d 77, 63 O.O.2d 119, 296 N.E.2d 266, paragraph one of the syllabus. But, see, Marshall v. Aaron (1984), 15 Ohio St.3d 48, 15 OBR 145, 472 N.E.2d 335, syllabus.

The judgment of the court of appeals is affirmed.

Judgment affirmed.


DOUGLAS and F.E. SWEENEY, JJ., concur in judgment only.

Summaries of

State ex Rel. Lowery v. Cleveland

Supreme Court of Ohio
Aug 11, 1993
67 Ohio St. 3d 126 (Ohio 1993)
Case details for

State ex Rel. Lowery v. Cleveland

Case Details


Court:Supreme Court of Ohio

Date published: Aug 11, 1993


67 Ohio St. 3d 126 (Ohio 1993)
616 N.E.2d 233

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