COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69952 : JOHN McGRAW : : : JOURNAL ENTRY Plaintiff-Appellant : : and v. : : OPINION CITY OF EUCLID, ET AL. : : : Defendants-Appellees : : : DATE OF ANNOUNCEMENT OF DECISION: JULY 18, 1996 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court Case No. CV-275340 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: For Plaintiff-Appellant: For Defendants-Appellees: PAUL MANCINO, JR., ESQ. DEBORAH A. LEBARRON, ESQ. 75 Public Square, Suite 1016 Director of Law Cleveland, Ohio 44113-2098 City of Euclid W. JOSEPH MELNIK, ESQ. Assistant Director of Law 585 East 222nd Street Euclid, Ohio 44123 - 2 - KARPINSKI, J.: Plaintiff-appellant John McGraw appeals from an order of the common pleas court granting the joint motion of defendants- appellees, City of Euclid and Police Chief Wayne Baumgart, to dismiss his complaint for failure to state a claim. McGraw's complaint alleged that Euclid and Chief Baumgart violated his rights under the Ohio Privacy Act, R.C. 1347.10, by disclosing records to a newspaper concerning his prior employment with the Euclid Police Department. Euclid and Chief Baumgart filed a joint answer denying the substantive allegations of the complaint. Inter alia, the answer stated that McGraw's employment records were disclosed pursuant to a request under the Public Records Act, R.C. 149.43, that McGraw's complaint failed to state a claim, and that defendants were immune under the Political Subdivision Tort Liability Act, R.C. Chapter 2744. Euclid and Chief Baumgart thereafter filed a joint motion to dismiss or, in the alternative, for summary judgment. McGraw filed a brief in opposition to the joint motion and his own cross-motion for summary judgment on the issue of liability. Euclid and Chief Baumgart filed a brief in opposition to McGraw's cross-motion for summary judgment. The trial court thereafter granted the motion to dismiss and denied as moot the parties' respective motions for summary judgment. - 3 - McGraw timely appeals from the order dismissing his complaint for failure to state a claim, raising the following three assignments of error: I. THE COURT ERRED IN GRANTING A MOTION TO DISMISS BECAUSE CLAIMED DISPUTED ISSUES EXISTED AS TO DEFENDANTS' EXEMPTION UNDER CHAPTER 1347 OF THE OHIO REVISED CODE. II. THE COURT ERRED IN GRANTING A MOTION TO DISMISS BECAUSE AN ISSUE OF FACT EXISTED AS TO WHETHER DEFENDANTS WERE IN COMPLIANCE WITH CHAPTER 149 OF THE OHIO REVISED CODE. III. THE COURT ERRED IN GRANTING A MOTION TO DISMISS BECAUSE DEFENDANTS ARE NOT IMMUNE BY REASON OF A CLAIMED GOVERNMENTAL IMMUNITY. These assignments are overruled. McGraw contends that his complaint should not have been dismissed because it stated a claim for violation of the Ohio Privacy Act, the disclosure was not exempted by the Public Records Act, and his claim was not barred by the Political Subdivision Tort Immunity Act. The Ohio Supreme Court recently summarized the standard governing the dismissal of complaints in Fahnbulleh v. Strahan (1995), 73 Ohio St.3d 666. The Court held that a complaint should not be dismissed for failure to state a claim under Civ.R.12(B)(6) unless it appears beyond doubt that plaintiff can prove no set of facts entitling him to recovery. Id. at 667 (citing O'Brien v. Univ. Community Tenants Union, Inc. (1975), 42 Ohio St.2d 242, syllabus). McGraw's third assignment of error contends that the trial court erred when it dismissed his complaint on the basis that the - 4 - Political Subdivision Tort Immunity Act barred the claim. However, the Fahnbulleh Court affirmed the dismissal of claims against a municipality and its employee on precisely this basis. As in Fahnbulleh, McGraw's complaint in this case, alleging that Euclid and Chief Baumgart improperly disclosed his employment records, falls within the scope of statutory immunity and contains no factual allegations to defeat statutory immunity. Political subdivisions and their employees are generally immune from liability in damages unless the asserted claim falls within a statutory exception. R.C. 2744.02(A)(1) grants immunity to political subdivisions, such as the City of Euclid in this case, as follows: Except as provided in division (B) of this section, a political subdivision is not liable in damages in a civil action for injury, death, or loss to persons or property allegedly caused by any act or omission of the political subdivision or an employee of the political subdivision in connection with a governmental or proprietary function. The Lucas County Court of Appeals was confronted with a strikingly similar situation in Powell v. The Toledo Blade Co. (1994), 93 Ohio App.3d 341. Powell involved a claim against the City of Toledo by one of its police officers arising out of the release by the police department of the wrong photograph to a newspaper. The officer's photograph was published with a story that reported misconduct of other officers. The Powell court held that the police officer's claim against the city was barred by the Political Subdivision Tort Immunity Act. Id. at 343. - 5 - McGraw's claim against Chief Baumgart is likewise barred by statutory immunity. R.C. 2744.03(A)(6) specifically grants immunity to political subdivision employees and provides in pertinent part as follows: *** the employee is immune from liability unless one of the following applies: (a) His acts or omissions were manifestly outside the scope of his employment or official responsibilities; (b) His acts or omissions were with malicious purpose, in bad faith, or in a wanton or reckless manner; (c) Liability is expressly imposed upon the employee by a section of the Revised Code. McGraw's complaint contains no allegations to defeat this statutory immunity. Paragraph two of his complaint specifically alleges to the contrary that Chief Baumgart acted within the course and scope of his employment. Moreover, the complaint does not allege malice, bad faith, or wanton or reckless conduct of any kind. Finally, R.C. 1347.10 does not expressly impose liability against public employees to overcome their statutory immunity. Accordingly, McGraw's attempt to distinguish Powell, because it did not cite R.C. 1347.10, is unpersuasive. His third assignment of error lacks merit and is overruled. McGraw's remaining two assignments of error are moot in light of our resolution of McGraw's third assignment of error, and we decline to address them, pursuant to App.R. 12(A)(1)(c). It should be noted, however, that to the extent McGraw's complaint purported to state a claim against the Euclid Police Department, it also failed to state a claim under the Ohio - 6 - Privacy Act. See Wilson v. Patton (1988), 49 Ohio App.3d 150, 154. R.C. 1347.04 specifically exempts law enforcement agencies from the scope of the Ohio Privacy Act and provides in pertinent part as follows: (A)(1) Except as provided in division (A)(2) of this section or division (C)(2) of section 1347.08 of the Revised Code, the following are exempt from the provisions of this chapter: (a) Any state or local agency, or part of a state or local agency, that performs as its principal function any activity relating to the enforcement of the criminal laws, including police efforts to prevent, control, or reduce crime or to apprehend criminals; The Wilson Court recognized that dismissal of a claim for failure to state a claim for relief under the Ohio Privacy Act was warranted in a case involving an analogous exemption for state correctional facilities under 1347.04(A)(1)(d). Id. Accordingly, McGraw's three assignments of error are overruled. Judgment affirmed. - 7 - It is ordered that appellees recover of appellant their costs herein taxed. The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the common pleas 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. PORTER, P.J., and DYKE, J., CONCUR. 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 journalization, at which time it will become the judgment and .