State ex rel. Sweeney v. Parma Hts.

• Decision Date: 28 February 1994
• Docket Number: No. 65608,65608
• Citation: 93 Ohio App.3d 349,638 N.E.2d 614
• Parties: The STATE ex rel. SWEENEY v. CITY OF PARMA HEIGHTS.
• Court: Ohio Court of Appeals

Page 349

93 Ohio App.3d 349

638 N.E.2d 614

The STATE ex rel. SWEENEY v. CITY OF PARMA HEIGHTS.

No. 65608.

Court of Appeals of Ohio, Eighth District, Cuyahoga County.

Decided Feb. 28, 1994.

Hudson & Hudson and Thomas S. Hudson, Cleveland, for appellant.

Stavole & Miller and Dwight Miller, Cleveland, for appellee.

PER CURIAM.

In October 1990, fire fighters for the respondent-appellee, the city of Parma Heights, complained about the smell of marijuana at the Parma Heights Police Station. As part of the ensuing investigation conducted by the Parma Heights Police Department, one fire fighter underwent a polygraph examination in January 1991. No evidence of misconduct was disclosed by the investigation, and it was completed without any charges being leveled against anyone.

Relator-appellant, James M. Sweeney, filed a petition for a writ of mandamus in the Court of Common Pleas of Cuyahoga County on November 16, 1992. Relator sought to receive, pursuant to R.C. 149.43, all of the investigatory materials compiled by respondent in connection with the investigation of drug use by members of the city's fire department.

The trial court, after conducting an in camera inspection of the respondent's investigatory materials, denied the writ in part. As a result, respondent was ordered to release to relator all of its records pertaining to the investigation, including the polygrapher's report which was redacted to conceal the polygraph subject's identity; however, the polygraph tracings were excluded from the order pursuant to R.C. 149.43(A)(2)(a).

It is the partial denial which compelled relator to file the instant appeal and to submit the following error for our review:

"The trial court erred in denying disclosure of polygraph reports on the basis that they would disclose the subject of the tests, where the respondent has previously publicly revealed both the fact of the test and the identity of the test subject."

Initially, relator is limited to arguing on appeal those arguments he presented to the trial court in support of his petition. See First Fed. S. & L. Assn. of Akron v. Cheton & Rabe (1989), 57 Ohio App.3d 137, 567 N.E.2d 298. We are thus unable to take into account relator's argument that respondent waived its right to keep confidential the polygraph test results by allowing the local newspapers to report the events. This court is also precluded from considering evidentiary materials not supplied to the trial court by relator in rendering our decision. See State v. Ishmail (1978), 54 Ohio St.2d 402, 8 O.O.3d 405, 377 N.E.2d 500; Middletown v. Allen (1989), 63 Ohio App.3d 443, 579 N.E.2d 254; App.R. 9(A); Loc.App.R. 4(A). We are, therefore, unable to confer any importance to the newspaper accounts of the events, since these articles were not furnished to the trial court.

The only issue before this court is whether the results of the polygraph test administered by respondent's police department fall within R.C. 149.43(A)(2). With regard to R.C. 149.43(A)(2), the Supreme Court of Ohio pronounced in State ex rel. Polovischak v. Mayfield (1990), 50 Ohio St.3d 51, 52, 552 N.E.2d 635, 636-637:

"To determine whether a record is exempt from public disclosure under R.C. 149.43, a two-step analysis is required. First, is the record a confidential law enforcement record? Second, would release of the record 'create a high probability of disclosure' of any one of four kinds of information specified in R.C. 149.43(A)(2)?"

R.C. 149.43(A) states 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[.]"

R.C. 149.43(B) makes it clear that "public records" are to be made available to any person except as restricted by R.C. 149.43(A). However, a governmental body which refuses to release records has the burden of proving that the records are excepted from...