526 N.E.2d 786 (Ohio 1988), 87-757, State ex rel. Nat. Broadcasting Co., Inc. v. City of Cleveland

Docket Nº:87-757.
Citation:526 N.E.2d 786, 38 Ohio St.3d 79
Opinion Judge:WRIGHT, J.
Party Name:The STATE, ex rel. NATIONAL BROADCASTING COMPANY, INC., Appellant, v. CITY OF CLEVELAND et al., Appellees.
Attorney:Vorys, Sater, Seymour & Pease, C. William O'Neill and Charles P. Hurley, Columbus, for appellant., Marilyn G. Zack, Director of Law, Nick Tomino and Barbara R. Marburger, Cleveland, for appellees., John T. Corrigan, Pros. Atty., Patrick J. Murphy and Colleen C. Cooney, Cleveland, urging affirmanc...
Judge Panel:MOYER, C.J., and SWEENEY, LOCHER, HOLMES and DOUGLAS, JJ., concur.
Case Date:July 27, 1988
Court:Supreme Court of Ohio
 
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Page 786

526 N.E.2d 786 (Ohio 1988)

38 Ohio St.3d 79

The STATE, ex rel. NATIONAL BROADCASTING COMPANY, INC., Appellant,

v.

CITY OF CLEVELAND et al., Appellees.

No. 87-757.

Supreme Court of Ohio.

July 27, 1988

Submitted June 8, 1988.

Syllabus by the Court

1. Law enforcement investigatory records must be disclosed unless they are excepted from disclosure by R.C. 149.43. (State, ex rel. Beacon Journal, v. Univ. of Akron [1980], 64 Ohio St.2d 392, 18 O.O.3d 534, 415 N.E.2d 310, approved and followed.)

2. A governmental body refusing to release records has the burden of proving that the records are excepted from disclosure by R.C. 149.43.

3. The specific investigatory work product exception, R.C. 149.43(A)(2)(c), protects an investigator's deliberative and subjective analysis, his interpretation of the facts, his theory of the case, and his investigative plans. The exception does not encompass the objective facts and observations he has recorded.

4. When a governmental body asserts that public records are excepted from disclosure and such assertion is challenged, the court must make an individualized scrutiny of the records in question. If the court finds that these records contain excepted

Page 787

information, this information must be redacted and any remaining information must be released.

Relator-appellant, National Broadcasting Company, Inc. ("NBC"), operates television station WKYC-TV in Cleveland, Ohio. NBC filed a complaint for a writ of mandamus in the Court of Appeals for Cuyahoga County seeking disclosure of certain records kept by respondents-appellees, city of Cleveland ("city") and several of its officials, pertaining to the investigation and review of twelve incidents in which police officers of the city of Cleveland had used deadly force against civilians. These incidents occurred over a ten-year period from 1975 through 1985.

Asserting that the files contained routine reports maintained by the police department, NBC requested to inspect the files as public records pursuant to R.C. 149.43(A)(1). Claiming the files were excepted from release as confidential law enforcement investigatory records and/or trial preparation records under R.C. 149.43(A)(2)(c) and (A)(4), respectively, the city refused the request.

The matter was submitted to the appellate court on the pleadings, stipulation of facts and exhibits, and the [38 Ohio St.3d 80] briefs of the parties. 1 Without inspecting the records at issue, the court of appeals held that the records were excepted from release as "specific investigatory work product" and "trial preparation records" and denied the writ.

The cause is now before this court upon an appeal as of right.

Vorys, Sater, Seymour & Pease, C. William O'Neill and Charles P. Hurley, Columbus, for appellant.

Marilyn G. Zack, Director of Law, Nick Tomino and Barbara R. Marburger, Cleveland, for appellees.

John T. Corrigan, Pros. Atty., Patrick J. Murphy and Colleen C. Cooney, Cleveland, urging affirmance for amicus curiae, Pros. Atty. of Cuyahoga County.

J. Anthony Sawyer, Law Director, and Arthur W. Harmon, Jr., Dayton, urging affirmance for amici curiae, city of Dayton et al.

WRIGHT, Justice.

It is well-settled that in order for a writ of mandamus to issue the relator must demonstrate (1) a clear legal right to the relief prayed for; (2) respondents are under a clear duty to perform the acts; and (3) relator has no plain and adequate remedy in the ordinary course of law. State, ex rel. Berger, v. McMonagle (1983), 6 Ohio St.3d 28, 29, 6 OBR 50, 51, 451 N.E.2d 225, 226-227, citing State, ex rel. Harris, v. Rhodes (1978), 54 Ohio St.2d 41, 42, 8 O.O.3d 36, 37, 374 N.E.2d 641; State, ex rel. Heller, v. Miller (1980), 61 Ohio St.2d 6, 15

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O.O.3d 3, 399 N.E.2d 66, paragraph one of the syllabus; State, ex rel. Westchester, v. Bacon (1980), 61 Ohio St.2d 42, 15 O.O.3d 53, 399 N.E.2d 81, paragraph one of the syllabus.

The city argues that NBC had no clear legal right of inspection and that the city had no clear legal duty to allow inspection of the records at issue because the records were excepted from release as confidential law enforcement investigatory records and/or trial preparation records as defined [38 Ohio St.3d 81] by R.C. 149.43. For the reasons set forth below, we disagree.

I

In a democratic nation such as ours, it is not difficult to understand the societal interest in keeping governmental records open. At early common law, citizen access to governmental information was severely restricted. Indeed, a citizen could inspect documents only with the consent of the crown or by showing that inspection was necessary to maintain or defend a legal action. See Cross, The People's Right to Know (1965) 25-26.

From this historical perspective, it is easy to see why many states have enacted statutes that have substantially broadened the common-law approach. The rationale behind Ohio's public records law was succinctly stated by this court in Dayton Newspapers v. Dayton (1976), 45 Ohio St.2d 107, 74 O.O.2d 209, 341 N.E.2d 576, where we held:

" 'The rule in Ohio is that public records are the people's records, and that the officials in whose custody they happen to be are merely trustees for the people; therefore anyone may inspect such records at any time, subject only to the limitation that such inspection does not endanger the safety of the record, or unreasonably interfere with the discharge of the duties of the officer having custody of the same.' " Id. at 109, 74 O.O.2d at 211, 341 N.E.2d at 577-578 (quoting from State, ex rel. Patterson, v. Ayers [1960], 171 Ohio St. 369, 14 O.O.2d...

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