AGO 1993-038.

• Case Date: November 16, 1993
• Court: Ohio

Ohio Attorney General Opinions 1993. AGO 1993-038. November 16, 1993OPINION NO. 1993-038Joseph R. Sabino, Jr., R. Ph., President State Board of Pharmacy 77 S. High Street, 17th Floor Columbus, Ohio 43266-0320 Dear President Sabino: One of your predecessors requested an opinion concerning the sealing of criminal conviction records. Specifically, your predecessor asked:

When a court of law orders expungement or sealing of criminal conviction records and related investigative documents pursuant to Section 2953.31 et. seq. of the Ohio Revised Code, how is an administrative licensing agency, its records and reports, its administrative orders, and its official minutes of meetings, affected by such order?(fn1) (Footnote added.)

Sealing of Records

An individual who has been convicted of an offense in this state or any other jurisdiction and who previously or subsequently has not been convicted of the same or a different offense in this state or any other jurisdiction may apply to the sentencing court if convicted in this state, or to a court of common pleas if convicted in another state or in a federal court, for the sealing of his record in the case after a specified lapse of time.(fn2) R.C. 2953.32(A)(1). Upon the filing of an application under R.C. 2953.32(A)(1), the court is required to set a hearing date and notify the prosecuting attorney in the case thereof. R.C. 2953.32(B). If the court determines that the individual is a first offender, that no criminal proceeding is pending against him, that the interests of the individual in having the records pertaining to his conviction sealed are not outweighed by any legitimate governmental needs to maintain such records, and that the rehabilitation of the individual has been attained to the satisfaction of the court, the court, except as provided in R.C. 2953.32(G),(fn3) is required to order all official records pertaining to the case sealed and, except as provided in R.C. 2953.32(F),(fn4) all index references to the case deleted. R.C. 2953.32(C)(2). The proceedings in a case the records of which have been ordered sealed pursuant to R.C. 2953.32(C)(2) are to be considered not to have occurred, R.C. 2953.32(C)(2), and "an order to seal the record of a person's conviction restores the person who is the subject of the order to all rights and privileges not otherwise restored by termination of sentence or probation or by final release on parole," R.C. 2953.33(A).

An Administrative Licensing Agency Is Not, as a General Matter, Required to Seal Its Official Records

1983 Op. Att'y Gen. No. 83-100, which discussed the sealing of records maintained by the State Board of Psychology, concluded as follows:

2. When a court orders that the criminal conviction of an individual who is a licensee of the Ohio State Board of Psychology be sealed, pursuant to R.C. 2953.32(C), the Ohio State Board of Psychology is not required to seal any of its official records because of the order, unless specifically directed to do so by the court.

3. To the extent that records maintained by the Ohio State Board of Psychology contain information or other data the release of which is prohibited by R.C. 2953.35(A), such records are not "public records" within the meaning of R.C. 149.43(A)(1). The Board may, therefore, seal such information or data or otherwise segregate it from its public records in order to comply with R.C. 2953.35(A).

Op. No. 83-100 (syllabus, paragraphs two and three). As noted in Op. No. 83-100, no provision of R.C. 2953.31-.36 explicitly requires an administrative licensing agency to seal its records pertaining to a case the records of which have been ordered sealed pursuant to R.C. 2953.32(C)(2). Id. at 2-387. However, since R.C. 2953.32(C) empowers a court to order the sealing of "all official records pertaining to the case," a court may "have the authority to determine in a particular case that the official records of an administrative [licensing agency] are so interconnected with those of a related criminal case that such administrative records are in fact 'official records pertaining to the case.'" Op. No. 83-100 at 2-387. Upon making such a determination, a court may order the sealing of the pertinent official records of an administrative licensing agency. Id. Since the issuance of Op. No. 83-100, the General Assembly has not enacted a provision that expressly requires an administrative licensing agency to seal its records pertaining to a case the records of which have been ordered sealed pursuant to R.C. 2953.32(C)(2). Nevertheless, R.C. 2953.32(C) still authorizes a court to order the sealing of "all official records pertaining to the case," including the pertinent official records of an administrative licensing agency where the court concludes that such action is appropriate. In light of the above, it is apparent that Op. No. 83-100's determination that an administrative licensing agency is not required to seal its records pertaining to a case the records of which have been ordered sealed pursuant to R.C. 2953.32(C)(2), unless specifically directed to do so by the court, remains a correct statement of law. But see R.C. 2953.51(D) (for purposes of R.C. 2953.51-.55, which concerns the sealing of official records after not guilty finding, dismissal of proceedings, or no bill, the term "official records" "means all records that are possessed by any public office or agency that relate to a criminal case"); see also R.C. 2953.32(G) (a board of education of a city, local, exempted village, or joint vocational school district that maintains records of an individual who has been permanently excluded from attending any of the public schools of this state under R.C. 3301.121 and R.C. 3313.662 is permitted to maintain records regarding a conviction that was used as the basis for the individual's permanent exclusion, regardless of a court order to seal the record). Accordingly, when a court, acting pursuant to R.C. 2953.32(C)(2), orders the sealing of all official records pertaining to a case, and such order does not specifically require the sealing of the pertinent official records of an administrative licensing agency, the agency is not required to seal any of its records. See Op. No. 83-100 (syllabus, paragraph two).

An Administrative Licensing Agency May, in Certain Situations, Seal Its Official Records

Pursuant to R.C. 2953.35(A), however,

[e]xcept as authorized by divisions (D), (E), and (F) of section 2953.32 of the Revised Code,(fn5) any officer or employee of the state, or a political subdivision of the state, who releases or otherwise disseminates or makes available for any purpose involving employment, bonding, or licensing in connection with any business, trade, or profession to any person, or to any department, agency, or other instrumentality of the state, or any political subdivision of the state, any information or other data concerning any arrest, complaint, indictment, trial, hearing, adjudication, conviction, or correctional supervision the records with respect to which he had knowledge of were sealed by an existing order issued pursuant to sections 2953.31 to 2953.36

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