State ex rel. Beacon Journal Publishing Co. v. Waters

• Decision Date: 15 September 1993
• Docket Number: No. 92-2050,92-2050
• Citation: 617 N.E.2d 1110,67 Ohio St.3d 321
• Parties: , 22 Media L. Rep. 1019 THE STATE EX REL. BEACON JOURNAL PUBLISHING COMPANY et al., Appellants, v. WATERS, Clerk, et al., Appellees.
• Court: Ohio Supreme Court

Page 321

67 Ohio St.3d 321

617 N.E.2d 1110, 22 Media L. Rep. 1019

THE STATE EX REL. BEACON JOURNAL PUBLISHING COMPANY et al., Appellants, v. WATERS, Clerk, et al., Appellees.

No. 92-2050.

Supreme Court of Ohio.

Submitted May 18, 1993.

Decided Sept. 15, 1993.

Roetzel & Andress, Ronald S. Kopp and Amie L. Bruggeman, Akron, for appellants.

Isaac, Brant, Ledman & Becker, Mark Landes and Barbara L. Kozar, Columbus, for appellees.

PER CURIAM.

Appellants appeal only that part of the decision concerning the grand jury subpoenas and the Grand Jury Witness Record Book. The parties argue three issues concerning the subpoenas and the witness book: (1) whether the documents are protected by grand jury secrecy under Crim.R. 6(E); (2) whether the documents are "confidential law enforcement investigatory records," as defined in R.C. 149.43(A)(2), and thus not "public records," as defined in R.C. 149.43(A)(1); and (3) whether the records are protected by the local court order of the appellee judges, as a manifestation of the inherent authority of a common pleas court to supervise the activities of the grand jury in a county. The court of appeals decided only the first of the three issues, holding that Crim.R. 6(E) provided an exception to disclosure under the Public Records Act. We affirm that judgment.

I. Crim.R. 6(E)

Crim.R. 6(E) states in part:

"Secrecy of proceedings and disclosure. Deliberations of the grand jury and the vote of any grand juror shall not be disclosed. Disclosure of other matters occurring before the grand jury may be made to the prosecuting attorney for use in the performance of his duties. A grand juror, prosecuting attorney, interpreter, stenographer, operator of a recording device, or typist who transcribes recorded testimony, may disclose matters occurring before the grand jury, other than the deliberations of a grand jury or the vote of a grand juror, but may disclose such matters only when so directed by the court preliminary to or in connection with a judicial proceeding, or when permitted by the court at the request of the defendant upon a showing that grounds may exist for a motion to dismiss the indictment because of matters occurring before the grand jury. * * * "

The court of appeals decided that the records in question were exempt as other "matters occurring before the grand jury."

In part, R.C. 149.43(A)(1) defines a "public record" as any record kept by a public office, except certain specifically defined records and "records the release of which is prohibited by state or federal law." Appellants argue that Crim.R. 6(E) cannot be a "state law" for these purposes because, under Section 5(B), Article IV, Ohio Constitution, this court has authority only to "prescribe rules governing practice and procedure in all courts of the state, which rules shall not abridge, enlarge, or modify any substantive right." Appellants argue that if Crim.R. 6(E) is construed to be a state law restricting access to public records, a procedural rule will abridge their substantive right to inspect and copy public records under R.C. 149.43(B). This argument derives from State ex rel. Clark v. Toledo (1990), 54 Ohio St.3d 55, 56-57, 560 N.E.2d 1313, 1314, in which we stated:

"R.C. 149.43(B) states that '[a]ll public records shall be * * * made available for inspection to any person * * *.' As recognized in State ex rel. Natl. Broadcasting Co. v. Cleveland, supra [ (1988), 38 Ohio St.3d 79, 526 N.E.2d 786], R.C. 149.43 'substantially broadened the common-law approach' to 'citizen access to governmental information.' Id. at 81, 526 N.E.2d at 788. As such, the right to access conferred by R.C. 149.43(B) is a substantive right. See Krause v. State (1972), 31 Ohio St.2d 132, 144-145, 60 O.O.2d 100, 106-107, 285 N.E.2d 736, 744. Because the right to access is substantive, it cannot be abridged by Crim.R. 16. Section 5(B), Article IV of the Ohio Constitution; Krause v. State, supra, at paragraph five of the syllabus."

In Clark, the respondents attempted to use Crim.R. 16(B)(2) as a Public Records Act exception outside the criminal process, and in fact after the criminal process had been concluded. This argument should have been rejected on grounds that Crim.R. 16(B)(2) is essentially a discovery rule and has no application after the criminal process has concluded. Crim.R. 6, however, creates the basic procedure for the grand jury, and its provisions are not dependent on the passage of time or changes of status of the parties.

Therefore, we hold that the statement in Clark that seemed to preclude court rules from ever contradicting substantive statutes was overbroad. The R.C. 149.43(A)(1) exception for other "state law" may include procedural court rules, and does include Crim.R. 6(E).

Providing the limits of grand jury secrecy is an element of "practice and procedure," under Section 5(B), Article IV, Ohio Constitution, and properly addressed by court rule. Although we have not previously construed Crim.R. 6(E) in this context, we have construed Crim.R. 6(A), which provides that the grand jury shall consist of nine members. In State v. Brown (1988), 38 Ohio St.3d 305, 528 N.E.2d 523, we held that the number of grand jurors is a procedural matter and thus suitable to be addressed by rule, citing Wells v. Maxwell (1963), 174 Ohio St. 198, 200, 22 O.O.2d 147, 148, 188 N.E.2d 160, 161, which held:

"The manner by which an accused is charged with a crime, whether by indictment * * * or by information * * *, is strictly a matter of procedure * * *."

While we have not defined practice and procedure under Section 5(B), Article IV, in Krause v. State (1972), 31 Ohio St.2d 132, 145, 60 O.O.2d 100, 107, 285 N.E.2d 736, 744, we defined "substantive" as used in that section as "that body of law which creates, defines and regulates the rights of the parties." Given this definition, we find that grand jury secrecy is a procedural matter rather than a substantive matter and, as such, properly a subject for court rule. Providing the degree of openness to be observed in grand jury matters is inherently procedural and not a matter of creating, defining, or regulating rights. No one has a right to any particular degree of openness or secrecy, except as provided by law.

Crim.R. 6(E) is thus seen as a lawful procedural rule adopted pursuant to constitutional authority. As such, it is analogous to an administrative rule lawfully adopted. "Administrative rules enacted pursuant to a specific grant of legislative authority are to be given force and effect of law." Doyle v. Ohio Bur. of Motor Vehicles (1990), 51 Ohio St.3d 46, 554 N.E.2d 97, paragraph one of the syllabus. Properly adopted judicial rules have the same force and effect. Section 5(B), Article IV emphasizes this fact by stating:

"All laws in conflict with such rules shall be of no further force or effect after such rules have taken effect."

Thus, even if R.C. 149.43(A)(1) did not contain an exception to the broad disclosure rights of R.C. 149.43(B) for disclosures prohibited by other state law, Section 5(B), Article IV provides the exception. As Crim.R. 6(E) is a lawful procedural rule, the conflicting R.C. 149.43(B) would be of no further force and effect. See Clark, supra, Holmes, J., dissenting. However, since R.C. 149.43(A)(1) explicitly provides for an exception for other state law, we read the statute and constitutional provision harmoniously rather than as conflicting. Accordingly, R.C. 149.43(B) grants appellants a substantive right to inspect and copy public records. However, it grants no right to records that are otherwise exempt by law from release as public records. R.C. 149.43(A)(1) excepts records whose disclosure is prohibited by state law from release as public records. Section 5(B), Article IV, Ohio Constitution and Crim.R. 6(E), adopted thereunder, are state laws for this purpose. Together they create a valid exception to disclosure under R.C. 149.43.

Having held that Crim.R. 6(E) may be the basis for a public records exception, we must now decide whether it does provide such an exception. Appellants argue that the rule does not expressly provide for secrecy regarding subpoenas and the witness book, but the court of appeals held that the subpoenas and witness book are "matters occurring before the grand jury" under the rule, and thus are subject to disclosure only as provided by the rule. The court of appeals relied on 1984 Ohio Atty.Gen.Ops. No. 84-79 and cases from other jurisdictions, particularly federal cases, construing former Fed.R.Crim.P. 6(e). (Current Fed.R. of Crim.P. 6[e] expressly subjects subpoenas and other records to secrecy requirements.) The most directly applicable federal cases are United States v. White Ready-Mix Concrete Co. (N.D.Ohio 1981), 509 F.Supp. 747; and Application of State of California to Inspect Grand Jury Subpoenas (E.D.Pa.1961), 195 F.Supp. 37. Both cases held that subpoenas and witness identity were "matters occurring before the grand jury" under the former federal rule and thus subject to disclosure only as provided in the rule.

In Petition for Disclosure of Evidence (1980), 63 Ohio St.2d 212, 17 O.O.3d 131, 407 N.E.2d 513, we held that the court that supervises a grand jury may disclose evidence where justice requires and prescribed a petition to that court as the proper means of obtaining release of materials (paragraphs one and two of the syllabus). We also stated the test for disclosing "other matters":

"Such disclosure can be ordered only after the court carefully weighs the need to maintain the secrecy of the grand jury proceedings against petitioner's need for the information and determines that justice can only be done if disclosure is made." Id. at 218, 17 O.O.3d at 135, 407 N.E.2d at 518.

In State v. Greer (1981), 66 Ohio St.2d 139, 20 O.O.3d 157, 420 N.E.2d 982, we held that disclosure is controlled by Crim.R. 6(E) (paragraph one of the syllabus) and that an accused wrongdoer could not...