Opinion
No. 134427
Decided June 12, 1970.
Municipal corporations — City commission — Regular meetings open to public — Executive meetings, etc., conducted in private — Constitutional law — Freedom of speech and press — Public and non-public meetings determined, how — Courts may determine unlawful abuse of power — May not control legislative or executive discretion.
1. Under the charter of the city of Dayton, Ohio, the city commission transacts business at regular or special meetings that are open to the public.
2. Executive meetings, investigations and informal efforts of the commissioners for preliminary purposes are subject to sovereign legislative and rule making power and may be conducted in private. Charter, Sections 1, 2, 39, 46.
3. The constitutional provision for freedom of speech and of the press grants no additional rights, does not deprive others of their rights and does not impose a duty upon others to aid the press.
4. The balance between access to public meetings and the non-public side of the operation of government is determined first by law and second by the lawful discretion of the officials in charge.
5. Courts may determine an unlawful abuse of power or authority by another branch of the government, but when official discretion — rather than the law — is the criterion, courts have no power to control legislative or executive discretion.
Messrs. Estabrook, Finn McKee, for plaintiffs.
Mr. James W. Drake, for defendants.
The plaintiffs, individually and as an incorporated newspaper, and on behalf of the local news media and all other citizens request a declaratory judgment and a permanent order restraining the city commissioners of Dayton, Ohio, from excluding them from private, or executive conferences of the commissioners.
The questions presented are threefold:
1.
May the commissioners meet in executive sessions or hold private conferences at other than regular or special meetings if no public business is transacted? Answer: Yes.
2.
Are investigations required to be open to the public? Answer: No.
3.
Does the freedom of speech and of the press clause of the Constitution also grant to the press a legal right of entry and access to executive, informal or private meetings of the commissioners? Answer: No.
On December 8, 1969, this court denied a temporary restraining order and discussed investigations which, along with other issues, were reserved for a decision on the merits.
FACTS
The evidence is uncontradicted that the commissioners of the city of Dayton transact all official business at regular or specially called sessions as provided by the city charter and by Section 121.22, Revised Code, if the latter is applicable to a charter city.
In addition to the regular meetings the commissioners meet at other times to discuss among themselves — and with individuals directly interested — policy matters, agenda for regular meetings, personnel problems, employment of a new manager, prospects of federal assistance and other items which may arise at a regular meeting or are otherwise subject to their supervision and control. Such additional gatherings of the commissioners at which no business is transacted are variously designated and differently conducted.
Informal discussion and calendar sessions are open to the public and the press.
In addition, discussions are held in private on policy, appointments, personnel, employment and other subjects at which either the commissioners or those with whom they are negotiating object to or do not desire public exposure at a preliminary stage of their conversations or investigations. The term executive meeting is not used. In a parliamentary sense this is precisely the character of the private sessions since both the public and the press are excluded. Similar private sessions are devoted to what may be described as doing their home work, gaining an understanding of problems, and preparing for the presentation and discussion of municipal business at public meetings.
The editor of the Journal Herald testified that the function of journalists is to collect, evaluate and publish material they consider of public or personal interest. Any impediment at the news source, he said, denies access to information — which is the raw material of their business — and prevents the journalists from informing the public.
Under the premises that all gatherings of public officials are open to the public, the Journal Herald prepared for its reporters a formal demand as of right to be present at a private meeting of the commissioners at which they discussed whether or not to conduct an investigation of the discharge by the city manager of an airport employee. The formal demand was presented and the representatives of the press were politely escorted outside by the mayor, Dave Hall. A private investigation was made at subsequent meetings with the city manager and with the employee in attendance. A formal report was filed with the clerk and made public as required by city ordinance.
One witness for the press claimed "an increasing tendency to conduct business in private" but this was withdrawn when he said that to his knowledge no business in a legal sense had ever been conducted by the commissioners at a private session. The evidence supports as a fact that no decisions were made and no vote or concensus was taken at any private meeting of the commissioners.
Pages from The Dayton Herald for August 5, 6 and 7, 1913, were admitted in evidence. They reported political meetings held to rally support for the adoption of the original charter. These news stories are reminiscent of the exaggerated and spell binding oratory of political rallies and are flavored with editorial encouragement.
The pages are nostalgic. We learn that the Dayton charter "contains the secret which makes the German cities the best governed cities in the world * * *," a false cultural argument with racial motivation directed to a large segment of the local population as it approached its nationalistic agony of World War I.
Of special interest to the plaintiffs is a statement from a speech by Alfred McCray reported in the August 6th issue regarding "pitiless publicity," and quoted in an earlier brief. "All city meetings must be absolutely public." He concludes this paragraph of his political message:
"The officials will be unable to retreat to back rooms and there make contracts which mulct the people of their hard earned taxes and which throw the city into debt."
The speaker, who later became a judge of this court, aimed his remarks at earlier events of undisclosed nature and at the approval of public contracts at executive sessions — a subject upon which there is no disagreement of fact or law in this case. His political position in favor of the passage of the charter is evident. Plaintiffs rely heavily upon portions of his speech. The court has verified from a certified copy of the charter that Alfred McCray was not a member of the original charter commission. The official statement of the commission, submitted to the voters with the charter in 1913 (and published in the reprints) contains no reference to the nature, character, or times of meetings of the city commission. There is no evidence which establishes that McCray's statement contained more than the political opinion of an enthusiastic citizen.
Newspaper accounts of political rallies are not official records or legislative history. They represent individual sentiments (as described in the Ohio Constitution) that are privately evaluated and edited before release. They are an unreliable source for charter or legislative interpretation.
Oscar F. Mauch, clerk of the city commission, from January 1, 1929, until his recent retirement, testified that in 1914 the first commissioners officially adopted regulations consisting of an agenda for its meetings. In 1929, commissioners met regularly with the city manager in closed meetings. Other officials were added and eventually the public and the press were invited. These changes resulted in the current practice of calendar sessions before and discussion sessions after regular meetings.
Closed sessions continued as the need arose on sensitive subjects such as personnel, personalities and acquisition of real estate. Such meetings, Mauch said, preserved the best interests of the public by obtaining frank and open opinions, unobtainable except in private, contributing to a better understanding of problems, background and policy, and avoiding the harm to the city that might result from premature disclosure. A concensus or, as the court construes the current usage of the word, a better or general understanding of respective opinions may have been reached at some meetings, but no votes or commitments were ever obtained. Each commissioner remained free to take his own position or action at regular commission meetings.
The request for a declaratory judgment raises questions regarding the use of executive meetings for investigation and discussion and the right under the Constitution of the press or a citizen to enter executive sessions.
For itself, as distinguished from other citizens, the Journal Herald claims that the freedom of the press clause confers upon it an absolute freedom of access to any meeting, regardless of its character, of public officials or public employees; that public officers may not refuse admittance or access of the press to meetings if any incident of public operation is discussed.
The press demands access to every gathering and to all conversations of commissioners which it considers newsworthy. It demands the right to acquire as well as to evaluate and publish individual statements, privately expressed, no matter how unprepared or incomplete the statement, unformulated or exploratory the opinion, or how harmful to the general public interest the disclosure may be. (Municipal corporations have been held liable for damages suffered by owners in urban renewal cases when the intent to act is disclosed too far in advance of the actual appropriation. Release of information during bargaining with employees or with landowners would destroy useful negotiations.)
STATE AND LOCAL LAW
In searching for answers the starting point is the common law. As stated in Beacon Journal v. Akron (1965), 3 Ohio St.2d 191 :
"It is clear that the public has no common law right to attend meetings of governmental bodies."
Therefore, continued the Supreme Court, any right the public has must arise by reason of statutes, charters or ordinances applicable to the legislative body.
Section 121.22, Revised Code, provides:
"All meetings of any * * * municipal corporation * * * are declared to be public meetings open to the public at all times. No resolution, rule, regulation or formal action of any kind shall be adopted at any executive session of any such board, commission, agency or authority.
"The minutes of a regular or special session or meeting of any such board, commission, * * * shall be promptly recorded and such records shall be open to public inspection. * * *"
This statute is not a police, sanitary or similar regulation under Article XVIII, Section 3, and has no application to the Constitutional powers of municipal corporations to local self government in charter cities. Beacon Journal v. Akron, supra.
The only law that may be considered in derogation of the common law is the Dayton charter and the rules or ordinances adopted by the commissioners who exercise sovereign powers in local government.
The city has "all powers" under the Constitution and under the charter. "* * * all such powers, whether expressed or implied, shall be exercised and enforced in the manner prescribed by this charter, or when not prescribed herein, in such manner as shall be provided by ordinance or resolutions of the commission." Section 2 adds all other powers which would be competent for the charter to enumerate.
It is significant that under Section 1 the city has " all powers that now are, or hereafter may be granted to municipalities by the Constitution or law of Ohio * * *." Section 121.22, Revised Code, is such a law of Ohio in that it has been determined that it authorizes executive meetings of governmental bodies (other than charter cities) if no business is actually transacted at such session.
The Dayton charter contains no provision regarding executive sessions.
"Section 39. At ten o'clock A. M. on the first Monday in January, following a regular municipal election, the Commission shall meet at the usual place for holding the meetings of the legislative body of the city, at which time the newly-elected Commissioners shall assume the duties of their office. Thereafter the Commissioners shall meet at such times as may be prescribed by ordinance or resolution, except that they shall meet not less than once each week. The Mayor, any two members of the Commission, or the City Manager, may call special meetings of the Commission upon at least twelve (12) hours written notice to each member of the Commission, served personally on each member or left at his usual place of residence. All meetings of the Commission shall be public and any citizen shall have access to the minutes and records thereof at all reasonable times. The Commission shall determine its own rules and order of business and shall keep a journal of its proceedings."
Sections 88 through 91 of the ordinances fix the time of regular meetings, the place for all meetings, requires the time to be specified in written notices of special meetings and are not directly significant on the question before the court. There is no provision in the ordinances for or against executive meetings.
1. EXECUTIVE AND SIMILAR MEETINGS
In Thomas v. Board, 5 Ohio App.2d 265, the Court of Appeals defined an executive session.
"An executive session is one from which the public is excluded and at which only such selected persons as the board may invite are permitted to be present. * * *
"An executive session of a governmental body is normally one which is limited to the members of the governmental body and such other persons as are specifically invited by such body to attend the meeting. The test is not who is present at a meeting of the governmental body, but whether the meeting is open to the public. If the meeting is open to the public but no one chooses to attend it, except the members of the governmental body, the meeting is not legally an executive session of such body.
"In this case, there is no evidence that the public was excluded from the meeting at which the township trustees acted. The action was taken at the end of a regular meeting, and there is a presumption that the township trustees complied with the law and that such meeting was open to the public. Therefore, we hold that the action of the township trustees was not taken at an executive session."
The demands in the instant case are not restricted to executive meetings. The demand is to be "in on" all activities of the commissioners of the city regardless of the time, place or character of the meeting. The full thrust of plaintiff's claim of right of unlimited entry and access into the privacy of others is demonstrated by an incident, not involved in this record, made by a member of the press joined in this class suit, to sit in on a conference held by an employee of the county with a federal employee. This is similar to the evidence of a private session of the commissioners with an official from the department of justice.
The open meeting laws and the policy supporting them have no application to administrative activities. Neither statute nor court decision sustain any right of the public to participate in or to be present at governmental operations or conversations of officials and employees on all occasions.
A great portion of governmental operation cannot possibly be conducted in a public environment. The public interest in the operation of government recognizes the policy of protecting public officials, employees and even public buildings exclusively for the purpose for which they are dedicated. An interesting explanation by Robert Luce of the need for privacy and executive meetings appears at page 45 of Privacy and Freedom by Alan F. Westin.
To return to the Dayton charter, the definition of regular and special meetings and the use of the words "all meetings" falls within the definition announced by the Supreme Court of Ohio in Beacon Journal v. Akron, 3 Ohio St.2d 191.
"All meetings * * * [are those] * * * where any resolution, rule, regulation or formal action of any kind shall be adopted or passed."
"It is clear," continued the Supreme Court, " that the General Assembly anticipated executive sessions of boards and commissions" in Section 121.22, Revised Code. (Emphasis added.) The Court of Appeals for this district similarly approved executive meetings. State, ex rel., v. Adkins, 18 Ohio App.2d 101.
It is equally clear that the Dayton charter determines what is a public meeting of the commission and that the commissioners have full rule making power in all other respects as well as when it opens or closes its meetings and when it discusses or seeks information on matters that are not required to be conducted at a public meeting. Nothing in the charter grants the plaintiffs or anyone else a right to attend or be "in on" discussions of the commissioners unless and until the gathering is of the type referred to in the charter.
It would be technically correct to find in part that in the absence of written notice no special meeting was held on the investigations and that at most these were private conferences. Such a simple solution would be unfair to the parties on both sides. It would not contribute a solution to the problem that plagues local officials and disturbs the press. The need for a better understanding justifies the length of this opinion.
As has been indicated the parties concede that regular and special meetings are open to the public. There is no evidence of a denial of access at these or at the so-called informal and calendar sessions held before and after regular meetings. At issue is the demand, as of right, to be present at executive meetings, conferences and other private gatherings at which no rule, regulation or formal action of any kind has ever been or may ever be adopted or passed.
A governmental body that has complete rule-making power has the inherent parliamentary or sovereign right to hold executive sessions. Nothing in the charter of the city of Dayton destroys that right. Further, while the Legislature cannot reduce the constitutional power of municipalities under the home rule amendment it may increase that power. Charter, Section 1. It has enacted Section 121.22, Revised Code, which is consistent with the city charter and raises no conflict with the police power of the state.
In its unanimous per curiam opinion in Beacon Journal v. Akron, 3 Ohio St.2d 191, the court pointed out at page 199:
It is clear that the General Assembly anticipated executive sessions of boards or commissions when it provided, "No resolution, rule, regulation or formal action of any kind shall be adopted at any executive session of any board or commission * * *." (Emphasis added by the Supreme Court.) Section 121.22, Revised Code. The council of the city of Akron and the General Assembly have not prohibited executive sessions of any board or commission.
The Dayton Charter provides a part time salary for part time commissioners who must meet at intervals to decide legislative and handle other delegated responsibilities for the community. The charter does not prohbit other efforts, discussions or meetings by the commissioners. An express prohibition in the charter or city ordinances is required to strip the commission of its legislative power to determine the question of executive sessions.
The members of a public body with rule-making power may unveil their minds and expose their personalities if they choose, but they are not compelled to do so by open meeting laws except when they act officially on official business. The free and private exchange of ideas when the group is not formally gathered for the conduct of official business, cannot be controlled by outsiders.
The mental gymnastics of each legislator operates in an unpredictable universe of its own, unfettered by law. Such mental operations are not confined to moments when all are assembled on the public stage. Any attempt to control them has no probability of success, constitutes an interference with the power of a separate branch of government and interferes with personal rights of privacy. The constitutional aspects of the claims of the plaintiffs are discussed in the concluding porton of this decision.
But, it is argued, the words "all meetings" in Section 39 of the charter includes executive or private gatherings of the commissioners.
This does not follow for several reasons:
First, Section 121.22, Revised Code, similarly refers to "all meetings" and this has been construed by the Ohio Supreme Court in Beacon Journal v. Akron, supra, as not prohibiting private meetings.
Second, the term "all meetings" in Section 39 of the charter refers to the types of meetings defined and described in that section. The section applies only to special and regular meetings and the conditions applicable to each. The specific subject matter included in Section 39 excludes that which is omitted. Since only regular and special meetings are mentioned, it cannot be inferred that executive sessions are in any way included in the described meetings which are open to the public. Moreover, the fact that the parliamentary use of executive meetings antedates the adoption of the charter strengthens this interpretation.
Third, the grant in the charter of full legislative power, expressed and implied, authorizes the commission to provide its own rules for the time, place, conduct and character of meetings. The effect of this unlimited rule making power is discussed by the Ohio Supreme Court as to the health commission under the Akron charter at page 197 of the Beacon Journal case. "The health commission has full legislative power * * * and is not controlled by ordinances passed by the city council. The health commission can provide its own rules for the conduct of its meetings." In other words, it was not restricted by charter, state statute or city ordinance.
Under the Dayton charter the only limitation on this full legislative power is confined to regular and special meetings. The fact that the commission has not exercised its power to adopt a formal resolution on executive, informal and similar private or semi-private meetings does not restrict its power to hold such sessions or conferences. The purpose or intent of Section 39 is in effect similar to that of Section 121.22, Revised Code. The only difference is that the state statute expressly approves executive meetings while the Dayton charter permits such meetings under the grant of full legislative power.
Since the charter does not prohibit executive meetings or other forms of association by the commissioners, it follows that the same condition is true as to conferences, discussions and other gatherings of such individuals at which no action, required to be recorded at a public meeting, is taken.
A public meeting law requires that official business be conducted in public. Such a law is conditioned upon official conduct in the performance of an official act. If the conduct is not official or if no official act is performed, the law has no application.
2. INVESTIGATIONS
Legislative investigations are separately governed by Section 46 of the charter:
"The Commission, or any committee thereof duly authorized by the Commission to do so, may investigate the financial transaction of any office or department of the city government and the official acts and conduct of any city official, and by similar investigations may secure information upon any matter. * * *"
The section outlines the procedure, provides subpoena power and contains a provision suggestive of the secrecy of the grand jury.
"No witness shall be excused from testifying touching his knowledge of the matter under investigation in any such inquiry, but such testimony shall not be used against him in any criminal prosecution except for perjury committed upon such inquiry."
This provision protects the primary interest of the public with the least possible sacrifice of the constitutional rights of the witness. The primary purpose of those who drafted and approved the charter is destroyed when the proceedings, parties and witnesses are exposed, as at a public trial, before any reason or probable cause for an accusation is uncovered. What good does the immunity from prosecuton serve if the witness is convicted by the press if he cooperates at an open investigation?
Consistent with the charter the commission adopted ordinances 124 through 129 relating to investigation. Subsection 6 of Section 124 of the ordinances continues the power to "adopt such rules and regulations as such commission * * * may deem proper and expedient for the purpose of conducting such inquiry, and to do, in a lawful manner, all things which may be found necessary to successfully carry on such inquiry." Rule making power is preserved to the full extent necessary to insure the success of the investigation.
Ordinance 129 requires a report of the proceedings together with recommendations, all of which shall be received by the commission and filed as a permanent record in the office of the clerk of the commission. This portion is in derogation of the common law.
The framers of the charter did not impose conditions, other than those that the commission may and did adopt, upon the privacy of investigations.
The separation of sovereign power prevents the judiciary from imposing other restrictions upon the legislative branch, as represented by the commission, or upon the executive, as represented by the city manager, unless otherwise required by law.
Can Sections 39 and 46 be construed in pari materia? This rule of construction can be applied only when two sections relate to the same subject matter. If each is distinct or if the result would be clearly contrary to the expressed intent, such sections cannot be construed together.
Section 39 is precise, defining its subject as regular and special meetings. Public meetings are for the conduct of official business of the city. Section 46 is equally precise, being limited to the purpose of inquiry or investigation leading to recommendations for future action. An investigation is a preliminary step in the legislative process and under the charter is not conducted at a public meeting as set forth in Section 39. These two sections are separate and independent. They cannot be construed together.
The special provisions for investigations recognize a right and a necessity, at times, for secrecy in investigations by or on behalf of the commission. What other purpose could be served by requiring disclosure upon completion? The express condition excludes consideration of others.
The court finds that the commission may conduct investigations according to such rules as it may adopt and that under the charter and ordinances it is not required to conduct its investigations in public.
3. FREEDOM, PRIVACY AND THE PRESS
The petition joins all media as well as every citizen and every taxpayer of the city of Dayton, Ohio, as a party plaintiff. To the extent that this involves those similarly situated it may concede that freedom of expression and of the press is the same for all.
Plaintiff, however, asserts a quasi-public right on behalf of the privately owned press that is foreign, if not antagonistic to its position that this is a taxpayer's class action on behalf of all citizens.
If executive meetings are proper under the charter and laws of Ohio, plaintiff argues that the Constitution grants the press a special legal right to enter and to participate in executive, informal and private gatherings of the commissioners so as to aid it in conducting its private business of selling newspapers. The plaintiff attempts to salvage its position by asserting an exclusive legal right to represent and to inform the people under the freedom of expression clause of the Constitution. Founded upon this assumption it demands for its private benefit a right of access and a right to information not shared by other citizens.
Since the city charter and the state statutes do not restrict the rule making power of the commissioners, the demand to eliminate executive meetings based upon the freedom of expression clause of the Constitution poses a direct challenge to the basic authority of the commissioners and the right of public officials to privacy and freedom. The rule making power of the commissioners is no different than that of any other sovereign parliamentary body. If successful, the attack upon public authority could be launched upon the General Assembly or upon the Congress of the United States. The seriousness of the challenge to government transcends local complaints and commands more than cursory consideration.
The First Amendment to the Constitution provides:
"Congress shall make no law respecting the establishment of religion, * * * or abridging the freedoms of speech, or of the press * * *."
This clause spells out freedoms. It assigns no duty to the press. It imposes no duty on citizens to assist religion, speech or the press.
The Ohio document is more explicit, recognizing the responsibility for an abuse of the constitutional freedom of expression.
"Every citizen may freely speak, write, and publish his sentiments on all subjects, being responsible for the abuse of the right; and no law shall be passed to restrain or abridge the liberty of speech, or of the press * * *." Article I, Section 11.
Here again the restraint, this time upon the General Assembly, prohibts a law that restrains the right to speak freely or of the press to publish freely.
Interpretation or construction is confined to the plain and ordinary meaning of the language used and the expressed or implied purpose of the document. Neither should be distorted by fancy footwork nor additions and subtractions from the intent expressed.
Judicial interpretation fails in its purpose when it becomes entangled in wishful or opinionated semantics of flaying opponents. The distinction between a meeting of the commission and a meeting of commissioners or the distinction between a meeting and a gathering served no purpose.
In this case it is necessary to rely, not upon semantics, but the plain and ordinary meaning of grants to the press and to charter cities and to determine between the two a fundamental issue of constitutional power, rights and duties. Does the right of citizens and of the press to freely speak and to freely publish mean more than the state and federal constitutions say? Does the constitutional grant of unlimited local power and the charter grant of unlimited rule making power mean anything less?
It requires no mental gymnastics to see that these rights are not antagonistic. The right to freely publish includes no right to freely collect, no right to freely acquire and no right to appropriate information with or without compensation. It includes no right to represent anyone else and no duty of any kind. It does not include the right to enter uninvited on to property or into a gathering of persons.
It is equally clear that public officials with sovereign rule making or administrative power may, if not otherwise restrained by law, determine the rules by which they conduct governmental affairs entrusted to them. It is unthinkable that any court could deny to officials the power granted by the people or award to a private citizen or to a private group a right of entry or acquisition not provided in the Constitution.
The constitutional restraints upon the establishment of religion and the abridgement of freedom of the press relate to two private groups in the social structure. The federal Constitution does not establish religion or the press as a part of government. They are excluded. The press and religion have a unique but private and isolated — though not antagonistic — position in legal, social and political life. The press and religion enjoy a freedom from restraint or other infringement of their rights that leave them unrestrained and unassisted.
The Constitution grants the press a freedom, shared by all, but no special or other right to insure its success. Every individual or group enjoys the same freedom through speech and print and through the press, radio or television. Assistance to the press could in certain circumstances be used as a practical way to infringe upon its freedom.
The so-called "right of the public to know" is a rationalization developed by the Fourth Estate to gain rights not shared by others and to usurp an ultra-legal and self-appointed representative position on behalf of the people from which to assert incidents of sovereign power to improve its private ability to acquire information which is a raw asset of its business.
The right and duty of citizens and of the press to know what they are talking about is controlled by ability, initiative and opportunity, enjoyed by all whether it be Peter Pan, the PTA or the press. Since the public is not permitted to attend executive meetings, the press also is denied that right.
The Constitution does not appoint the Fourth Estate the spokesmen of the people. The people speak through the elective process and through the individuals it elects to positions it created for that purpose. The press has no right that exceeds that of other citizens. Equal rights is not an idle word.
The expression, "the right of the public to know," when used by one business or segment in society for its own gain, is rhetoric disguised as a plausible argument. As discussed later, if the public wishes to unveil phases of the intricate process of government it is necessary to do so by enacting open meeting or similar laws. This must be done by the regular legislative process; it cannot be accomplished by judicial fiat.
Once upon a time dissent and freedom of expression took place peacefully in public parks on improvised soap boxes or at community gatherings. While this one method of dissemination of information may have been displaced by the attractive influence of the TV camera and while the interest of the citizenry may be at a low ebb, the court cannot say that any vehicle of expression has a legal position superior to that of the citizen on the soapbox or that our constitutional society is restricted to information from a single media. Books, magazines, leaflets, speeches, conversations — even false gossip — still play a significant role in the dissemination of information, as evidenced by unexpected results at the polls. Freedom of the press includes vehicles other than radio, television or newspapers.
The fact that one media is dominant in the field of communication and may be overwhelmed by demands for its services adds not one whit to a constitutional right to enter private meetings or to demand information.
The right of privacy applies to individuals, corporations, associations, institutions and to public officials. The right responded slowly to modern developments but it is firmly established. An instruction by Judge Mills of this court led to its formal recognition by the Supreme Court of Ohio. Housh v. Peth, 165 Ohio St. 35.
The distinction in government between privacy and required disclosure or exposure to the public poses difficulties. As stated by President Washington there is a public and a private side to governmental office. Nearly two centuries later President Eisenhower repeated that privacy is essential to the efficient and effective administration of our government.
Freedom of speech and the right to privacy unquestionably include the right of officials to discuss and to debate with aides and associates and to develop and prepare presentations to the public. The Constitution itself was prepared behind closed doors in sworn secrecy. Historians agree that its adoption was due in no small measure to executive sessions that prevented premature releases.
Freedom of the press is subordinated to public and private rights as well as to any abuse of freedom. The press may not publish all that it considers news. Copyright laws must be observed. When privacy or restricted information is violated the press is responsible to those injured. Writings, correspondence and photographs are private property and may not be appropriated by the press without the writer's or owner's consent. Surveillance by wire or phone, without lawful justification, and other forms of spying are as reprehensible by the press as by the government or by the people. There are limits to all freedoms.
A recognition of a constitutional right of unrestricted access to meetings and news sources would sovereignize the freedom of the press clause. It would destroy the rights of individuals, associations, as well as the agents of the government. If such a right existed in the Constitution it would override governmental power and the power of its agents to administer and to preserve the nation, state, city and village.
Such a condition was compared by a witness to a demand by a steel company to an unrestricted right of access to take iron ore from citizens or from the national reserves of the government. As the editor testified, "whether you are baking a cake or making steel, if the quality or quantity of input is limited or controlled, the output is quite obviously controlled." Upon this false premise, he concluded that the press is controlled if it is not given or if it is not free to take what it wishes.
No private business can serve its function or role in society without access to a source of supply for its raw materials. Yet raw materials and privacy are subject to personal and property rights. A private right to appropriate raw materials to bake a cake or operate a newspaper does not exist. An unrestricted right of access to news is an appropriation and an unlawful conversion of property of another.
Complete freedom for thought and freedom for expression, whether it be in private, public or in the press, are imperative principles in the Constitution. This includes freedom to choose when and to whom a thought is expressed. The right to eliminate outsiders and to restrict the range of thought and speech is basic to the freedom of expression clause as well as to the right to privacy. An expression that is private is more sacred than the right of the press because the latter is effective only upon release, waiver or consent for public exposition.
The right of private thought and private expression is not sacrificed by accepting governmental responsibilities; except, of course, to the extent necessary to lawfully execute the public trust. Privacy and freedom of the individual cannot be denied or nibbled away by the competitive portion of the private media. There is no right of the press superior to either right of the individual.
In his work on privacy and freedom, Alan W. Westin indicates in his concluding paragraph in Chapter Two on privacy in a democratic state that privacy in governmental decision making is not an evil but —
"* * * is a necessary element for the protection of organizational autonomy, gathering of information and advice, preparation of positions, internal decision making, inter organizational negotiations, and time of disclosure. Privacy is thus not a luxury for organizational life; it is a vital lubricant of the organizational system in free societies." Page 51.
The court previously incorporated a statement by Robert Luce to the same effect. Westin describes privacy as an irreducibly critical element in the operations of government in a democratic system with a liberal culture such as we have in the states..
"Government agencies have the same basic need to be free from constant and immediate public exposure as do corporations, unions, universities, religious bodies and civic groups. Each government agency must also resist intrusions into its privacy by other government agencies under our separation of powers * * *." Page 42.
"Of course, society decides that certain phases of activity by some organizations are so charged with public interest that they must be carried out in the open with full visibility." Page 46.
Such public interest has resulted in laws requiring open meetings, disclosure of income, inspection of records, annual vistations and annual reports. In these areas the public has decided that it has a right to know. The Dayton charter outlines the areas of such public interest. They include open regular and special meetings, as well as reports and recommendations of investigations. The failure to include others in the charter is an intent not to change the common law rule in any other respect.
Westin's study on privacy and freedom in this country and the tendency of government, the press and citizens to spy on one another is recommended reading. Privacy and Freedom by Alan F. Westin, Atheneum, New York, 1967.
The press is extended privileges not shared by all. Radio and television receive licenses to operate and special parking for mobile units. Reporters are provided privileges in attendance and in seating. And so are others not of the fourth estate: doctors, chaplains, Red Cross, Box 21, USO, to name but a few invited persons and organizations. These privileges are granted by those who exercise public or police power to those who have a private purpose when the private purpose serves and does not interfere with the public function. Acceptance of such privileges to this extent involves the acceptance of regulation imposed by those responsible for the public operation.
The test for the regulation of such privileges, and at times of rights, is a reasonable exercise of authority and discretion measured by the private purpose and the necessity for control by the agent in charge of the public function to insure life, property and other rights or duties. Preferred seating for the press in a courtroom is one thing; seating in Apollo XIII is another.
On the final question of a special right of the press the court must say whether the Constitution accords city commissioners their lawful power or subjects them to the will of a segment of the private business world. The language of the constitutions of the United States and of the state of Ohio as well as considerations of public necessity leave no choice.
An issue or personality in the public arena widens the scope of what may be published without liability for invasion of privacy or reputation. This is a limited exception to the general rule. It does not otherwise lay bare individuals to public exposure to the point of indecency or to any other invasion of their right to freedom, privacy or to property. This is true of public officials and characters who must at times perform on a public stage and thereby waive any claim against honest comment that is not malicious.
In governmental affairs there is a balance between what and how much of the individual is subject to required exposure in the public domain and what and how much privacy is retained.
By whom is this balance determined? As previously discussed, the balance is determined by law and, if not unlawful or an abuse of authority, by the discretion possessed by the officials in charge. Within these limits public officials, and not the court or the press, determined the balance of privacy. This is apparent in countless areas in the operation of legislative, executive and judicial functions. Courts may determine an unlawful abuse of power by another branch of government but where official discretion — rather than the law — is the criterion, the court has no power to control legislative or executive discretion.
It is the possession of authorized general police, legislative or other sovereign power that determines the right of officials to open and to close meetings and to exclude, regulate or control those present. So it is with a meeting of the city commission or any other body with the necessary public power.
If the court denies a sovereign legislative body, such as the city commission, its express and inherent power to open and close its meetings for the conduct of public business, the court either usurps a legislative power or hands over to strangers a portion of the power entrusted to public officials. A transfer in this case would constitute a delegation of an incident of legislative power to a private agency, responsible to no one, and would remove such power from elected officials, who alone are responsible to the public in this area of public affairs.
The courts assiduously avoid encroachment upon legislative and executive powers. The judiciary shuns interferring with the lawful exercise of discretion in other branches of government as vigorously as it asserts and exercises it within the courts.
The free press is powerful in its private sector, but it is not a branch of the government. It may not share or participate, other than as a private person, in the exercise of any incident of sovereignty.
Much has been said in recent years of the problem of a fair trial and a free press. The question is one of coexistent and conflicting constitutional rights. Less has been said of the problem of a free state and a free press.
In the present situation, if one reporter has a legal right to enter and to join in executive, informal or private gatherings of officials or judges so have the members of all the media, others in publishing ventures and the public. The massive and sometimes dangerous congregation of competitive media with their heavy equipment and the boisterous crowds attracted to them could destroy or bring to a stop the governmental operation of the people and their chosen representatives. This was tolerated in Dallas one unforgettable day.
What the court is saying is that our government and its servants may not be bridled to any private interest; that the courts may not strip the government and its servants of their power to lawfully perform public service in a manner they consider in the best interests of the public. The right to speak freely and to print freely is no guaranty of truth or accuracy and there is no power in the government or special right in the press to make it so.
The fourth estate, in which the court includes its younger members in radio and television and others in publishing ventures, serves best when it exercises its freedom independent of special rights or special duties and independent of any branch of government. Other rights or duties that it has are those, and precisely those, shared equally by all. If it were otherwise, freedom of the press, the rights of others or the sovereign power of government would be in jeopardy.
It should be unnecessary to mention that courts are not the forum for legislative relief, constitutional changes or charter amendments.
The request for a permanent order is denied.
The costs are assessed against the plaintiff.