State ex rel. Enquirer v. Sage

• Citation: 142 Ohio St.3d 392,2015 Ohio 974,31 N.E.3d 616
• Decision Date: 19 March 2015
• Docket Number: No. 2013–0945.,2013–0945.
• Parties: The STATE ex rel. CINCINNATI ENQUIRER, Appellee and Cross–Appellant, v. SAGE, Judge, et al., Appellants and Cross–Appellees.
• Court: United States State Supreme Court of Ohio

142 Ohio St.3d 392

31 N.E.3d 616

2015 Ohio 974

The STATE ex rel. CINCINNATI ENQUIRER, Appellee and Cross–Appellant,

v.SAGE, Judge, et al., Appellants and Cross–Appellees.

No. 2013–0945.

Supreme Court of Ohio.

Submitted May 28, 2014.

Decided March 19, 2015.

Graydon, Head & Ritchey, L.L.P., and John C. Greiner, Cincinnati, for appellee and cross-appellant.

Michael T. Gmoser, Butler County Prosecuting Attorney, and Michael A. Oster Jr. and Kimberly L. McManus, Assistant Prosecuting Attorneys, for appellants and cross-appellees.

Baker Hostetler, L.L.P., and David L. Marburger, Cleveland, urging reversal of the denial of the writ of prohibition for amicus curiae, Ohio Coalition for Open Government.

FRENCH, J.

{¶ 1} In this case, we determine the fate of a public-records request made by appellee/cross-appellant, the Cincinnati Enquirer. The Enquirer sought the recording of an outgoing phone call placed by a Butler County 9–1–1 dispatcher. We find that the recording is a public record under R.C. 149.43. We therefore affirm the court of appeals' decision holding that the Enquirer was entitled to a writ of mandamus ordering the release of the recording. We also affirm the court's award of statutory damages to the Enquirer. We find, however, that the court of appeals abused its discretion in not awarding attorney fees, and we reverse that holding.

FACTS

{¶ 2} On June 17, 2012, Debra Rednour, a 9–1–1 operator for the Butler County Sheriff's Office, answered an incoming 9–1–1 call. An unidentified female caller stated that there had been an accident, that her husband was not breathing, and that she needed an ambulance. Rednour dispatched the St. Clair Township Fire Department and a sheriff's deputy to the address. Rednour also asked the caller several questions, but the caller abruptly hung up the phone without providing further information.

{¶ 3} Rednour immediately attempted a callback to the original number. The first call resulted in no answer, so Rednour tried again. This time, a man identifying himself as "Michael Ray" answered the phone. Rednour told Ray that she was with the Butler County Sheriff's Office and that help was on the way. Ray replied, "I'm a murderer, and you need to arrest me." Rednour asked him what had happened. Ray stated, "I was caught drinking my dad's alcohol" and "He came in and got mad at me, and I just snapped and stabbed him." Rednour then proceeded to ask Ray a series of questions, including "where did you stab him?"; "[w]here is the knife?"; "was this just a regular kitchen knife [?]"; "[i]s your dad breathing?"; "[w]here is your dad right now?"; "[c]an you see if he's breathing?"; and "is the knife still in his chest?"

{¶ 4} That same day, Sheila McLaughlin, a reporter from the Enquirer, submitted a public-records request to the Butler County Sheriff's Office for 9–1–1 calls. The sheriff provided McLaughlin with a copy of the incoming 9–1–1 call that Rednour had received. McLaughlin then submitted a second request for the two return calls that Rednour had placed. Appellant/cross-appellee Butler County Prosecuting Attorney Michael Gmoser responded, denying McLaughlin's request. Gmoser claimed that the return calls were both trial-preparation records under R.C. 149.43(A)(1)(g) and confidential law-enforcement investigatory records under R.C. 143.43(A)(1)(h) and thus were exempt from the public-records laws.

{¶ 5} On June 21, 2012, the Enquirer reiterated its request for recordings of Rednour's two outgoing calls. Gmoser again asserted that the recordings were not public records but nevertheless released the recording of the first outbound call that had resulted in no answer. Gmoser then filed a motion for a protective order with appellant/cross-appellee Judge Michael J. Sage, who had just been assigned to handle Ray's then-pending murder trial. In the motion, Gmoser asked the trial court to issue an order precluding dissemination of the second return call.

{¶ 6} On June 25, 2012, Judge Sage conducted a hearing on the motion. He listened to the recording in camera and heard arguments from Gmoser, Ray's counsel, and counsel for the Enquirer and another news organization. Judge Sage granted the motion and issued a protective order prohibiting public dissemination of the call.

{¶ 7} Within days of the ruling, the Enquirer filed a complaint in the Twelfth District Court of Appeals. The Enquirer sought a writ of mandamus ordering Gmoser to release the recording. It also sought a writ of prohibition precluding Judge Sage from enforcing the protective order. The Enquirer also asked for attorney fees and statutory damages.

{¶ 8} On October 11, 2012, four days before Ray's criminal trial was to begin, Judge Sage amended the protective order, permitting the dissemination of the recording to the media immediately before its admission into evidence. Gmoser released the recording on the day of trial.

{¶ 9} Following release of the recording, Judge Sage and Gmoser filed a motion to dismiss the Enquirer's mandamus complaint as moot. The Twelfth District overruled the motion.¹ After briefing and oral argument, the court granted the writ of mandamus, denied the writ of prohibition, denied attorney fees, and awarded statutory damages. Judge Sage and Gmoser appealed, and the Enquirer cross-appealed.

ANALYSIS

Writ of Mandamus

{¶ 10} "Mandamus is the appropriate remedy to compel compliance with R.C. 149.43, Ohio's Public Records Act." State ex rel. Physicians Commt. for Responsible Medicine v. Ohio State Univ. Bd. of Trustees, 108 Ohio St.3d 288, 2006-Ohio-903, 843 N.E.2d 174, ¶ 6 ; see also R.C. 149.43(C)(1). Thus, mandamus is the appropriate cause of action for the Enquirer to bring here. To be entitled to a writ of mandamus, the Enquirer must establish a clear legal right to the requested relief and a clear legal duty on the part of Gmoser to provide the relief. State ex rel. Waters v. Spaeth, 131 Ohio St.3d 55, 2012-Ohio-69, 960 N.E.2d 452, ¶ 6. The Enquirer must prove that it is entitled to the writ by clear and convincing evidence. Id. at ¶ 13.

The 9–1–1 Return Call Is a Public Record

{¶ 11} A "public record" is any record "kept by any public office, including, but not limited to, state, county, city, village, township, and school district units." R.C. 149.43(A)(1). The return call clearly meets the threshold definition of "public record" under R.C. 149.43 ; it is a record kept by Butler County, which qualifies as a public office under the Public Records Act. R.C. 149.011(A) and (G). Therefore, for Gmoser to withhold the recording from the Enquirer, the recording must fit within a statutory exception.

{¶ 12} Gmoser asserts that the return call falls under three exceptions. He argues that it constitutes a "[t]rial preparation record" under R.C. 149.43(A)(1)(g), a "confidential law enforcement investigatory record" under R.C. 149.43(A)(1)(h), and a "[r]ecord[ ] the release of which is prohibited by state or federal law" under R.C. 149.43(A)(1)(v). We find no merit to these claims.

The Recording Is Not an Exempt Trial–Preparation Record

{¶ 13} First, the recording of the phone call is not a trial-preparation record. R.C. 149.43(A)(4) defines "trial preparation record" as "any record that contains information that is specifically compiled in reasonable anticipation of, or in defense of, a civil or criminal action or proceeding, including the independent thought processes and personal trial preparation of an attorney." The recorded call does not meet this definition because it was not "specifically compiled in reasonable anticipation of * * * [a] criminal action or proceeding." R.C. 149.43(A)(4). Rednour testified that when she placed the return call, she had no reason to believe that a crime had taken place. Indeed, the caller had described the incident as an accident. Rednour further testified that the entire purpose of the callback and her questions to Ray was to assist the first responders and the victim, not to investigate a potential crime.

{¶ 14} Even if we ignored Rednour's explicit testimony and generously agreed with appellants that Rednour's call may have had dual purposes, the call would still fall outside the definition of a "trial preparation record." As we have held, "when an investigation has multiple purposes, the records of that investigation cannot be said to be trial preparation records."

Franklin Cty. Sheriff's Dept. v. State Emp. Relations Bd., 63 Ohio St.3d 498, 502, 589 N.E.2d 24 (1992). Even general fact-finding investigations do not produce trial-preparation records, as "such investigations do not meet the ‘specifically compiled’ requirement of the statute." State ex rel. Coleman v. Cincinnati, 57 Ohio St.3d 83, 84, 566 N.E.2d 151 (1991), quoting R.C. 149.43(A)(4).

{¶ 15} Appellants also argue that the recording must be a trial-preparation record because it eventually became a part of the prosecution's file. This court has explicitly rejected that argument before, holding that "[n]ot every record contained within a prosecutor's file is an exempt ‘trial preparation record.’ " State ex rel. Carpenter v. Tubbs Jones, 72 Ohio St.3d 579, 580, 651 N.E.2d 993 (1995) ; see also State ex rel. Cincinnati Enquirer v. Hamilton Cty., 75 Ohio St.3d 374, 378, 662 N.E.2d 334 (1996) ("the fact that the tapes in question subsequently came into the possession and/or control of a prosecutor, [or] other law enforcement officials * * * has no significance [to their public-records status]").

{¶ 16} Here, the recording is not a trial-preparation record, because Rednour did not place the return call or question Ray for the specific purpose of preparing for a criminal proceeding. And the recording could not suddenly transform into a trial-preparation record simply because it moved from Rednour's office to the prosecutor's file. See Carpenter at 580, 651 N.E.2d 993 ("non-exempt records do not become ‘trial preparation records' simply because they are contained within a prosecutor's file"). Simply put, the record here...