State ex rel. Outlet Communications, Inc. v. Lancaster Police Dept.

• Decision Date: 02 September 1988
• Docket Number: No. 87-1708,87-1708
• Citation: 528 N.E.2d 175,38 Ohio St.3d 324
• Parties: , 15 Media L. Rep. 2087 The STATE, ex rel. OUTLET COMMUNICATIONS, INC., Appellant, et al., v. LANCASTER POLICE DEPARTMENT, et al., Appellees.
• Court: Ohio Supreme Court

Page 324

38 Ohio St.3d 324

528 N.E.2d 175, 15 Media L. Rep. 2087

The STATE, ex rel. OUTLET COMMUNICATIONS, INC., Appellant, et al., v. LANCASTER POLICE DEPARTMENT, et al., Appellees.

No. 87-1708.

Supreme Court of Ohio.

Submitted June 8, 1988.

Decided Sept. 2, 1988.

Syllabus by the Court

Arrest records and intoxilyzer records which contain the names of persons who have been formally charged with an offense, as well as those who have been arrested and/or issued citations but who have not been formally charged, are not confidential law enforcement investigatory records within the exception to the Public Records Law, R.C. 149.43(A)(2)(a), and are thus subject to disclosure.

This matter involves an appeal from an original action seeking a writ of mandamus in the court of appeals. Relator-appellant, Outlet Communications, Inc. ("Outlet"), operates a television station, WCMH-TV, in Columbus, Ohio. Mike Brown, a reporter employed by Outlet, wrote a letter to the Lancaster Police Department, a respondent-appellee herein, requesting an opportunity to inspect records maintained by that department pertaining to the arrests and prosecution of drunk driving offenses in Lancaster, Ohio. The records sought included arrest records, intoxilyzer records and "Furtherance of Justice Fund" records. The city law director replied by letter, asserting exceptions under R.C. 149.43 to the Ohio Public Records Law, and accordingly refused to allow the inspection of the records.

It was stipulated by the parties that there are three categories of records at issue, which are as follows:

I. Arrest Records.

A. Arrest record docket book.

The arrest record docket book is a continuous chronological listing of the daily arrest, detention and citation activity of the Lancaster Police Department. The purpose of the docket book is to provide police officers with a daily source of information concerning problem people in their area as well as a daily source for locating persons involved in ongoing investigations.

Identities of the following categories of persons coming into contact with the police department are listed in the docket book:

1. persons arrested on probable cause and charged with a criminal violation;

2. persons not arrested but charged with a criminal violation;

3. persons arrested on probable cause but subsequently not formally charged or indicted for a criminal violation; and

4. persons who are given citations for traffic violations or minor misdemeanor violations and whom the prosecutor subsequently elects not to prosecute.

The names of juveniles as well as adults are listed in the docket book. The docket book is compiled from the following sources: the three-part officers report forms, the four-part traffic citation forms, and the four-part minor misdemeanor citation forms.

In addition, the court dispositions, when available, are recorded for the various individual entries. This disposition is not recorded when the case is still pending or where the entry involves a juvenile arrest, a military AWOL arrest, or where the person arrested was taken to a mental hospital. The procedure for making entries in the docket book is as follows: after the police officer makes out his paperwork, i.e., one or more of the three forms listed above, the officer turns it in to the desk officer. The desk officer reviews each form and then he or a clerk enters the information into the docket book. Once or twice a week, a clerk goes to the courthouse and obtains recent dispositions which are then recorded in the docket book.

B. Non-filed citations.

All traffic citations, adult and juvenile, are issued on the numerically sequential preprinted forms and are not destroyed. A separate file is kept of all citations that are not presented to the court, the prosecutor, or docketed. Citations kept in the latter file include those that contain clerical errors, false initial identification, or designate the wrong traffic statute. All citations are reviewed by senior watch personnel prior to docketing and, when problems such as those listed above are detected, the citations are removed from the system and placed in the non-presented citation file.

II. Intoxilyzer Records.

The intoxilyzer book is a continuous chronological listing of all individuals arrested and tested on the intoxilyzer for operating a motor vehicle under the influence of alcohol ("OMVI"). The intoxilyzer book is filled out by certified intoxilyzer operators. Notations are made in the book of all instrument calibration tests and repairs or out-of-service time. The book is supplemented by all officer proficiency tests, officer certificates of authority, calibration solution affidavits from the Ohio Department of Health and forms for the individuals' right to refuse the test. The book includes names of persons arrested and charged with OMVI. It also includes names of persons who are arrested for OMVI but whose test results were such that no charge was ever filed. Examples of the latter category of persons include those who tested well below the statutory limit, or those for whom the test results were shown to be invalid.

III. Furtherance of Justice Fund Records.

This file is maintained personally by the chief of police. It is subject to audit by the Lancaster City Auditor and the State Auditor. It is also reviewed by the Chairman of the Finance Committee of the Lancaster City Council. The most recent audit was completed on April 29, 1985. This file contains information regarding uses of the fund, identities of confidential sources and informants (either names or initials), private contributors and public appropriations. Information is also kept regarding expenditures from the funds, i.e., to whom and for what purpose.

The matter was submitted to the court of appeals on the pleadings, stipulations of fact, cross-motions for summary judgment and related briefs of the parties. The court did not conduct an inspection of the actual records at issue. On August 10, 1987, the court issued an opinion and a judgment entry denying Outlet's request in its entirety. The court found that all the records at issue were excepted from public disclosure. The court held them to be confidential law enforcement investigatory records on the asserted grounds that the arrest records and intoxilyzer records contained "the names of persons who have not been charged with the offense to which the record pertains" pursuant to R.C. 149.43(A)(2)(a), and that the Furtherance of Justice Fund records contained "information from confidential sources which would reasonably tend to disclose their identities * * * " pursuant to R.C. 149.43(A)(2)(b).

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

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

John D. Huddle, Law Director, and Ted V. Russell, Lancaster, for appellees.

HOLMES, Justice.

The Public Records Law, R.C. 149.43(B), in pertinent part, provides that "[a]ll public records shall be promptly prepared and made available for inspection to any person at all reasonable times during regular business hours. * * * " More pointedly applicable to the questions of law presented here is the definition and exception section to this law, R.C. 149.43(A), which states in pertinent part:

"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;

"(d) Information that would endanger the life or physical safety of law enforcement personnel, a crime victim, a...