State ex rel. Nat. Broadcasting Co., Inc. v. City of Cleveland

Decision Date27 July 1988
Docket NumberNo. 87-757,87-757
Citation526 N.E.2d 786,38 Ohio St.3d 79
Parties, 15 Media L. Rep. 1853 The STATE, ex rel. NATIONAL BROADCASTING COMPANY, INC., Appellant, v. CITY OF CLEVELAND et al., Appellees.
CourtOhio Supreme Court

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 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 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 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 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 116, 171 N.E.2d 508).

This language must be the starting point of our analysis. As one commentator has stated: "The Ohio Supreme Court * * * has provided a fairly workable standard which should lead the public and its officials to the conclusion that most, though not all, governmental records should be made available for public inspection." Brown, The Right to Inspect Public Records in Ohio (1976), 37 Ohio St.L.J. 518, 536.

In 1963, when the General Assembly codified the public's right to access of government records, R.C. 149.43 provided, in pertinent part:

"All public records shall be open at all reasonable times for inspection. Upon request, a person responsible for public records shall make copies available at cost, within a reasonable period of time." (130 Ohio Laws 155.)

While R.C. 149.43 did not specifically refer to law enforcement records, the statute generally defined a public record as "any record required to be kept by any governmental unit * * * except records pertaining to physical or psychiatric examinations * * * and records the release of which is prohibited by state or federal law."

In Wooster Republican Printing Co. v. Wooster (1978), 56 Ohio St.2d 126, 10 O.O.3d 312, 383 N.E.2d 124, we were asked to determine whether law enforcement investigatory records were public records under the statute. The court, reading the public records law along with the then newly enacted Privacy Act (R.C. Chapter 1347), held at paragraph four of the syllabus that:

"Police and other law enforcement investigatory records are not subject to compulsory disclosure provisions of R.C. 149.43."

In apparent reaction to this decision, the General Assembly amended R.C. 149.43 to expressly state that law enforcement investigatory records were, subject only to narrow exceptions, within the compulsory disclosure provisions of R.C. 149.43 (138 Ohio Laws, Part I, 245-246). The statute, which has since been amended on a number of other occasions, now provides in relevant part:

"(A) As used in this section:

"(1) 'Public record' means any record that is kept by any public office, including, but not limited to, state, county, city, village, township, and school district units, except medical records, records pertaining to adoption, probation, and parole proceedings, records pertaining to actions under section 2151.85 of the Revised Code and to appeals of actions arising under that section, records listed in division (A) of section 3107.42 of the Revised Code, trial preparation records, confidential law enforcement investigatory records, and records the release of which is prohibited by state or federal law.

"(2) '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 a suspect who has not been charged with the offense to which the record pertains, or of an information source or witness to whom confidentiality has been reasonably promised;

"(b) Information provided by an information source or witness to whom confidentiality has been reasonably promised, which information would reasonably tend to disclose his identity;

"(c) Specific confidential investigatory techniques or procedures or specific investigatory work product;

" * * *

"(4) 'Trial preparation record' means 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."

This court has acknowledged that R.C. 149.43 was amended to reverse the result reached in Wooster Republican Printing, supra, and to subject law enforcement investigatory records to disclosure under the public records law. In State, ex rel. Beacon Journal, v. Univ. of Akron (1980), 64 Ohio St.2d 392, 394, 18 O.O.3d 534, 535-536, 415 N.E.2d 310, 312, we stated:

"In Wooster Republican Printing Co. v. Wooster, supra, 56 Ohio St.2d 126, 10 O.O.3d 312, 383 N.E.2d 124, paragraph four of the syllabus, this court held that: 'Police and other law enforcement investigatory records are not subject to the compulsory disclosure provisions of R.C. 149.43. We reached...

To continue reading

Request your trial
238 cases
  • Narciso v. Powell Police Dep't, Case No. 2018-01195PQ
    • United States
    • Ohio Court of Claims
    • October 22, 2018
    ...Enquirer v. Pike Cty. Coroner's Office, 153 Ohio St.3d 63, 2017-Ohio-8988, 101 N.E.3d 396, ¶ 15; State ex rel. Nat'l Broad. Co. v. Cleveland, 38 Ohio St.3d 79, 82-83, 526 N.E.2d 786 (1988), paragraph 2 of the syllabus. An exception is a state or federal law prohibiting or excusing disclosur......
  • State ex rel. Dann v. Taft
    • United States
    • Ohio Supreme Court
    • April 13, 2006
    ...law and property theories that curtailed citizens' access to governmental information. See [State ex rel.] Natl. Broadcasting Co., [Inc. (1988) ] 38 Ohio St.3d [79] at 81, 526 N.E.2d 786; Wells v. Lewis (1901), 12 Ohio Dec. 170; Moyer, 59 N.Y.U.Ann.Surv.Am.L. at 247-248. Instead, our legisl......
  • State ex rel. Steckman v. Jackson
    • United States
    • Ohio Supreme Court
    • September 7, 1994
    ...law enforcement investigatory records; Furtherance of Justice Fund records); State ex rel. Natl. Broadcasting Co. v. Cleveland (1988), 38 Ohio St.3d 79, 526 N.E.2d 786 ("NBC I ") (investigatory work product exception); and State ex rel. Beacon Journal Publishing Co. v. Univ. of Akron (1980)......
  • Cincinnati Enquirer v. Hamilton Cnty. Bd. of Comm'rs
    • United States
    • Ohio Court of Claims
    • August 25, 2020
    ...DeWine, 135 Ohio St.3d 191, 2013-Ohio-199, 985 N.E.2d 467, ¶ 22 (attorney-client privilege), citing State ex rel. Natl. Broadcasting Co. v. Cleveland, 38 Ohio St.3d 79, 526 N.E.2d 786 (1988), paragraph four of the syllabus. Thus, the Board should be ordered consistent with the directions in......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT