State ex rel. Multimedia, Inc. v. Snowden

• Decision Date: 03 May 1995
• Docket Number: WLWT-TV5,No. 94-2051,94-2051
• Citation: 647 N.E.2d 1374,72 Ohio St.3d 141
• Parties: , 23 Media L. Rep. 2229 The STATE ex rel. MULTIMEDIA, INC., d.b.a., v. SNOWDEN, Chief.
• Court: Ohio Supreme Court

Page 141

72 Ohio St.3d 141

647 N.E.2d 1374, 23 Media L. Rep. 2229

The STATE ex rel. MULTIMEDIA, INC., d.b.a. WLWT-TV5, v. SNOWDEN, Chief.

No. 94-2051.

Supreme Court of Ohio.

Submitted March 21, 1995.

Decided May 3, 1995.

Respondent, Cincinnati Police Chief Michael Snowden, is responsible for the city's police-recruitment process. As part of this process, the police conduct an investigation of all applicants. The investigation generates the following records: (1) polygraph examination report, (2) National Crime Information Center ("NCIC") and Regional Crime Information Center ("RCIC") "rap sheets," (3) personal history questionnaires, (4) police psychologist report, (5) background investigation report, and (6) credit history. Police applicants are encouraged to be candid and forthcoming about their personal histories during the investigation and are promised confidentiality for the information disclosed by them.

By letters dated July 1 and July 6, 1994, relator, Multimedia, Inc., d.b.a. WLWT-TV5 ("Multimedia"), demanded that Snowden allow it to inspect and, if necessary, copy all personal background and investigation reports, including criminal and traffic records, for all members of the city's then-current police recruit classes. Following additional correspondence from Multimedia, the city rejected relator's demand on the basis that the requested records are "confidential law enforcement investigatory records" as defined in R.C. 149.43(A)(2).

On September 26, 1994, Multimedia instituted this action under R.C. 149.43(C), seeking a writ of mandamus to compel Snowden to make the requested records available for inspection and copying. We issued an alternative writ, and the parties subsequently filed briefs.

Frost & Jacobs and Richard M. Goehler, Cincinnati, for relator.

Fay D. Dupuis, Cincinnati City Sol., and Karl P. Kadon III, Deputy City Sol., for respondent.

PER CURIAM.

Mandamus is the proper remedy to compel compliance with Ohio's Public Records Act, R.C. 149.43. State ex rel. Steckman v. Jackson (1994), 70 Ohio St.3d 420, 426, 639 N.E.2d 83, 88-89. Snowden concedes that the requested records are "records" for purposes of R.C. 149.43 and that they are held by the city's Police Division, which is a "public office." See R.C. 149.011(A) and (G). However, Snowden asserts that the records are excepted from disclosure under R.C. 149.43(A)(2) as "confidential law enforcement investigatory records."

R.C. 149.43(A)(1) excepts confidential law enforcement investigatory records from the definition of "[p]ublic record," and R.C. 149.43(A)(2) defines those records:

" 'Confidential law enforcement investigatory record' means any record that pertains to a law enforcement matter of a criminal, quasi-criminal, civil, or administrative nature, but only to the extent that the release of the record would create a high probability of disclosure of any of the following:

"(a) The identity of * * * an information source * * * to whom confidentiality has been reasonably promised;

"(b) Information provided by an information source * * * to whom confidentiality has been reasonably promised, which information would reasonably tend to disclose his identity[.]" (Emphasis added.)

Excepting records from release under R.C. 149.43(A)(2) involves a two-step analysis: (1) Is the record a confidential law enforcement record? and (2) Would release of the record create a high probability of disclosure of any one of the four types of information specified in R.C. 149.43(A)(2)? State ex rel. Beacon Journal Publishing Co. v. Kent State Univ. (1993), 68 Ohio St.3d 40, 42, 623 N.E.2d 51, 53. Snowden argues that the court should construe the phrases "law enforcement matter" and "administrative" broadly, so as to include anything related to the management of a police department. Nevertheless, in considering Snowden's suggested interpretation of R.C. 149.43(A)(2), exceptions to disclosure must be strictly construed against the custodian of the public records, and the burden to establish an exception is on the custodian. State ex rel. James v. Ohio State Univ. (1994), 70 Ohio St.3d 168, 169, 637 N.E.2d 911, 912. Further, R.C. 149.43 should be construed to further broad access, and any doubt should be resolved in favor of disclosure of public records. State ex rel. The Warren Newspapers, Inc. v. Hutson (1994), 70 Ohio St.3d 619, 621, 640 N.E.2d 174, 177; cf. State ex rel. Steckman, supra.

Personnel records of police officers reflecting the discipline of police officers are not confidential law enforcement investigatory records excepted from disclosure under R.C. 149.43(A)(2):

"The limited record before this court strongly suggests that most, if not all, of the records at issue herein are not law enforcement investigatory records as contemplated by the statute. Instead, it is apparent that the records involve the city's monitoring and discipline of its police officers. These internal investigations were not undertaken based upon a specific suspicion of criminal wrongdoing. They were routinely conducted in every incident where deadly force was used by a police officer. * * * [P]ersonnel records reflecting the discipline of police officers are required to be disclosed pursuant to R.C. 149.43. * * * " State ex rel. Natl. Broadcasting Co. v. Cleveland (1988), 38 Ohio St.3d 79, 83, 526 N.E.2d 786, 790 ("NBC I"); see, also, Toledo Police Patrolmen's Assn., Local 10, IUPA v. Toledo (1994), 94 Ohio App.3d 734, 739, 641 N.E.2d 799, 802; cf. State ex rel. Natl. Broadcasting Co. v. Cleveland (1991), 57 Ohio St.3d 77, 566 N.E.2d 146 (records involving police use of deadly force resembled investigatory records rather than mere police personnel records).

As in NBC I, the investigations undertaken by the Cincinnati Police Division were not based on any suspicion of wrongdoing. Instead, the investigations appear to have been routinely conducted on every applicant and were part of the personnel records of each police recruit. In other words, public employee personnel records are generally regarded as public records, absent proof of an exception. See Fant v. Greater Cleveland Regional Transit Auth. (June 9, 1994), Cuyahoga App. No. 66415, unreported, 1994 WL 258556.

More pertinently, it has been held that the phrase "law enforcement matter of a criminal, quasi-criminal, civil, or administrative nature" refers "directly to the enforcement of the law, and not to employment or personnel matters ancillary to law enforcement matters.' " State ex rel. Lorain Journal Co. v. Lorain (1993), 87 Ohio App.3d 112, 115, 621 N.E.2d 894, 896, citing Dinkins v. Ohio Div. of Hwy. Patrol (N.D.Ohio 1987), 116 F.R.D. 270. Investigatory reports compiled by law enforcement agencies to assist employment decisions do not constitute confidential law enforcement investigatory records excepted from disclosure under R.C. 149.43, since they do not directly involve law enforcement. See State ex rel. Lorain Journal (results of polygraph examinations administered to applicants for employment with municipal police department) and Dinkins (prehire background investigation report for applicant for Ohio State Highway Patrol). The foregoing interpretation of R.C. 149.43(A)(2) comports with our duty to strictly construe confidential law enforcement investigatory records and resolve any doubts in favor of disclosure.

Snowden contends that not excepting the subject records as confidential law enforcement investigatory records will result in police applicants' not being as forthcoming and candid in the recruitment process. We have rejected similar contentions by holding that " 'in enumerating very narrow, specific exceptions to the public records statute, the General Assembly has already weighed and balanced the competing public policy considerations between the public's right to know how its state agencies make decisions and the potential harm, inconvenience or burden imposed on the agency by disclosure.' " State ex rel. Thomas v. Ohio State Univ. (1994), 71 Ohio St.3d 245, 249, 643 N.E.2d 126, 130, quoting State ex rel. James, supra, 70 Ohio St.3d at 172, 637 N.E.2d at 913-914. Thus, Snowden's public policy arguments to the contrary are of no avail.

Snowden next asserts that the release of records containing information derived from computerized criminal databases like NCIC and RCIC is prohibited. As relator concedes, NCIC and RCIC "rap sheets" generated in the investigation of police applicants are prohibited from being released by state and federal law. R.C. 149.43(A)(1); R.C. 109.57; Ohio Adm.Code 4501:2-10-06(B); Section 3789g, Title 42, U.S.Code; 28 C.F.R. Section 20.33(a)(3); State ex rel. Natl. Broadcasting Co. v. Cleveland (1992), 82 Ohio App.3d 202, 206-207, 611 N.E.2d 838, 840-841; Ingraham v. Ribar (1992), 80 Ohio App.3d 29, 33-34, 608 N.E.2d 815, 818; 1994 Ohio Atty. Gen.Ops. No. 94-046.

Snowden finally contends that a psychological examination resulting from the referral of an applicant to a police psychologist for evaluation need not be released because it is an R.C. 149.43(A)(3) "medical record" excepted from disclosure. R.C. 149.43(A)(3) defines "[m]edical record" as "any document or combination of documents, except births, deaths, and the fact of admission to or discharge from a hospital, that pertains to the medical history, diagnosis, prognosis, or medical condition of a patient and that is generated and maintained in the process of medical treatment." Although psychologists are not licensed physicians, see, e.g., State ex rel. McMaster v. School Emp. Retirement Sys. (1994), 69 Ohio St.3d 130, 136, 630 N.E.2d 701, 706-707, R.C. 149.43(A)(3) does not restrict medical records to those documented by licensed physicians. Further, the word "medical" refers to the "science and art of the investigation, prevention, cure, and alleviation of disease," Black's Law Dictionary (6 Ed.1990) 982, which would arguably include reports of psychologists.

Nevertheless, in State ex...