COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69159 : ACCELERATED DOCKET ROBERT L. WALTERS, JR., ET AL. : : : JOURNAL ENTRY Plaintiffs-Appellees : : and -vs- : : OPINION ENRICHMENT CENTER OF WISHING WELL : : : PER CURIAM Defendant-Appellant : : : DATE OF ANNOUNCEMENT OF DECISION: MARCH 28, 1996 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court Case No. CV-277566 JUDGMENT: Reversed and Remanded. DATE OF JOURNALIZATION: __________________________ APPEARANCES: For Plaintiffs-Appellees: For Defendant-Appellant: BARBARA QUINN SMITH, ESQ. THOMAS E. DOVER, ESQ. 31900 North Marginal Drive JEFFREY SADLOWSKI, ESQ. Suite 415 GALLAGHER, SHARP, FULTON Willowick, Ohio 44094 & NORMAN 1501 Euclid Avenue Seventh Floor Cleveland, Ohio 44115 CRAIG A. MARVINNEY, ESQ. 113 St. Clair Building Cleveland, Ohio 44115 - 2 - PER CURIAM: Plaintiffs, Dawn and Robert Walters, filed an action against defendants, The Enrichment Center of Wishing Well, Inc. and Janice Carlisle, alleging Janice Carlisle acted in bad faith when she filed charges of child abuse with the Medina County Department of 1 Social Services. Defendants had previously filed a report with MCDSS alleging suspected child abuse. MCDSS investigated the plaintiffs and found no child abuse. After filing a complaint in court, plaintiffs served a discovery request upon defendants asking for: 4. Copies of any correspondence between The Enrichment Center and any social service agency or other investigatory agency, including police departments, which pertain to any allegation of abuse by plaintiff Robert L. Walters, Jr. 5. Copies of any document which pertains to any allegation of abuse by plaintiff Robert L. Walters, Jr. Moving for a protective order, defendants argued that under R.C. 2151.421 the information requested was confidential and not discoverable. The trial court denied the request and defendant timely appealed. Defendant's sole assignment of error states as follows: THE TRIAL COURT ERRED IN DENYING DEFENDANTS-APPELLANTS' MOTION FOR A PROTECTIVE ORDER. This case presents a threshold issue: whether the trial court's decision to deny defendant's request for a protective order 1 The complaint also alleged causes of action for defamation, intentional infliction of emotional distress, breach of contract, breach of duty, and negligent infliction of emotional distress. - 3 - is a final appealable order. Section 3(B)(2), Article IV, of the Ohio Constitution limits appellate jurisdiction to review of final orders, which are defined in R.C. 2505.02: An order that affects a substantial right in an action which in effect determines the action and prevents a judgment, an order that affects a substantial right made in a special proceeding or upon a summary application in an action after judgment, or an order that vacates or sets aside a judgment or grants a new trial is a final order that may be reviewed, affirmed, modified, or reversed, with or without retrial. The Ohio Supreme Court in Polikoff v. Adam (1993), 67 Ohio St.3d 100, syllabus, recently clarified "special proceeding": Orders that are entered in actions that were recognized at common law or in equity and were not specially created by statute are not orders entered in special proceedings pursuant to R.C. 2505.02. (Amato v. Gen. Motors Corp. [1981], 67 Ohio St.2d 253, 21 O.O.3d 158, 423 N.E.2d 452, overruled.) After Polikoff, appellate courts in Ohio have wrestled with how Polikoff applies to certain discovery disputes. More specifically, a question occurs when the underlying case arises from common law, but a party asserts a statutory privilege in a discovery dispute. Two recent appellate decisions have addressed this issue and reached opposite results. In Niemann v. Cooley (1994), 93 Ohio App.3d 81, the court held that in determining whether a discovery order is made in a special proceeding, an appellate court must look to the nature of the privilege asserted as opposed to the underlying case. The court in Niemann stated at 88 as follows: Therefore, until it receives further clarification by the Ohio Supreme Court, we read Polikoff to mean that it is the nature of the privilege, not the underlying cause of action, which must be examined in the case - 4 - before us. All the privileges asserted are statutory and hence we conclude that the order appealed from is one made in a special proceeding for the purposes of R.C. 2505.02. Additionally, in Arnold v. Am. Nat. Red Cross (1994), 93 Ohio App.3d 564, this court took the same approach and held that whereas the underlying case was a common law case in negligence, the asserted privilege against the disclosure of blood donors was a statutorily created privilege; thus the trial court's discovery order to disclose the names of blood donors was a final order. A later case from Montgomery County, Uschold v. Community Blood Ctr. (1994), 98 Ohio App.3d 1, expressly disagreed with the Niemann court. The court in Uschold looked to the express language of the Polikoff syllabus and, while recognizing that it may create anomalous results, held that an appellate court must look to the underlying case, not the privilege asserted, to determine whether 2 the order is a final order. For purposes of this appeal, we choose to follow the Arnold decision from this court. The Ohio legislature has recognized the importance of keeping blood donor identity and child abuse complaints confidential. If parties in either Arnold or the case at bar could not seek immediate review of discovery orders ordering the disclosure of this information, they would have to wait until the end of the case in order to obtain appellate review. If the information were wrongly divulged, the parties would have no 2 The Uschold court certified a conflict, which the Ohio Supreme Court declined to review. Uschold v. Community Blood Ctr. (1995), 71 Ohio St.3d 1496. - 5 - redress. Neither Humpty Dumpty nor the court can make whole an egg once cracked open. Accordingly, we find that the trial court's decision to deny defendant's motion for a protective order is an order entered in a special proceeding and is final and appealable. As to the merits of this appeal, R.C. 2151.421 covers reports of alleged child abuse and provides in pertinent part as follows: (B) Anyone, who knows or suspects that a child under eighteen years of age or a physically or mentally handicapped child under twenty-one years of age has suffered or faces a threat of suffering any physical or mental wound, injury, disability, or other condition of a nature that reasonably indicates abuse or neglect of the child, may report or cause reports to be made of that knowledge or suspicion to the children services board, the county department of human services exercising the children services function, or to a municipal or county peace officer. * * * (H)(1) Any report made under this section is confidential. The information provided in a report made pursuant to this section and the name of the person who made the report shall not be released for use, and shall not be used, as evidence in any civil action or proceeding brought against the person who made the report. In a criminal proceeding the report is admissible in evidence in accordance with the Rules of Evidence and is subject to discovery in accordance with the Rules of Criminal Procedure. This statute reveals the legislature's unequivocal intent to ensure the confidentiality of any report made under this section. In State ex rel. Renfro v. Cuyahoga Cty. Dept. Of Human Serv. (1990), 54 Ohio St.3d 25, the Ohio Supreme Court reached the same result and upheld the confidentiality of reports made under this statute: 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). The statute is unambiguous. R.C. 2151.421(B) and (H)(2) label - 6 - this report "confidential." It thus functions analogous to a privilege. Moreover, to require complainants to release infor- mation about their complaint of child abuse would have a chilling 3 effect. The strong public policy interest in protecting the making of these reports was recognized by this court when it held that R.C. 2151.421 grants immunity even if the report is allegedly made in the absence of good faith. Cudlin v. Cudlin (1990), 64 Ohio App.3d 249 at 253. Accordingly, the trial court erred by not granting defendant's request for a protective order concerning the report of alleged child abuse. Defendant's assignment of error is well taken and the case is remanded to the trial court. Judgment reversed. 3 The law still provides redress through R.C. 2921.14, which authorizes prosecution for making a false report of child abuse or neglect and carries a penalty of a misdemeanor. - 7 - This cause is reversed and remanded for further proceedings. It is, therefore, considered that said appellant recover of said appellees its costs herein. It is ordered that a special mandate be sent to said court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. PATRICIA A. BLACKMON, PRESIDING JUDGE TERRENCE O'DONNELL, JUDGE, CONCURS IN JUDGMENT ONLY DIANE KARPINSKI, JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate .