State ex rel. Toledo Blade Co. v. Telb

• Decision Date: 08 February 1990
• Docket Number: No. 90-0324,90-0324
• Citation: 50 Ohio Misc.2d 1,552 N.E.2d 243
• Parties: , 18 Media L. Rep. 1081 The STATE, ex rel. TOLEDO BLADE CO., v. TELB, Sheriff, et al.
• Court: Ohio Court of Common Pleas

Page 1

50 Ohio Misc.2d 1

552 N.E.2d 243, 18 Media L. Rep. 1081

The STATE, ex rel. TOLEDO BLADE CO., v. TELB, Sheriff, et al.

No. 90-0324.

Court of Common Pleas of Ohio Lucas County.

Feb. 8, 1990.

Fritz Byers for relator.

Anthony G. Pizza, Pros. Atty., and Lynn B. Jacobs, Toledo, for respondents.

RESNICK, Judge.

This mandamus action, filed by the Toledo Blade Company (hereinafter "Blade") pursuant to R.C. 149.43(C), seeks to compel the respondents, Lucas County Sheriff James A. Telb and Jon Rogers, custodian of the internal affairs records of the sheriff's office, to comply with the Ohio public records law, R.C. 149.43. Specifically, the Blade seeks to inspect and copy the internal affairs file of a deputy sheriff.

In response to that request, the respondents, in conjunction with a member of the Lucas County Prosecutor's office, reviewed the file and redacted substantial portions of it, which they believed to be excepted from disclosure under R.C. 149.43. Upon a review by the Blade of the redacted file it is the Blade's contention that the respondents redacted from the record material which is not excepted from disclosure and that the respondents violated their legal duty to redact according to law.

Counsel have entered into certain stipulations, which may be summarized as follows:

(1) The Blade publishes a daily newspaper of general circulation, entitled "The Toledo Blade."

(2) James A. Telb is the Sheriff of Lucas County, Ohio. He is the legal custodian of the records that are the subject of this action.

(3) Jon Rogers is employed by the Lucas County Sheriff's Department. He is the Director of the Internal Affairs Bureau in that department and is the actual custodian of the records that are the subject of this action.

(4) Peter Zieroff is employed as a deputy sheriff by the Lucas County Sheriff's Department.

(5) The Internal Affairs Bureau ("the bureau") of the Lucas County Sheriff's Department maintains files of the regular activities of the bureau, including files for deputy sheriffs who have been investigated by the Internal Affairs Bureau.

(6) The bureau maintains a file that contains the records of all internal affairs investigations regarding Zieroff.

(7) On January 10, 1990, the Blade requested that the custodian of Zieroff's internal affairs file make that file available to the Blade for inspection and copying in accordance with R.C. 149.43.

(8) On or about January 12, 1990, the custodian of Zieroff's internal affairs file made available to the Blade what was said to be an entire copy of that file with extensive portions of the file redacted.

(9) On January 23 and 25, 1990, counsel for the Blade met with counsel for the sheriff's department to discuss the bases for the extensive redaction of Zieroff's internal affairs file. At these meetings, counsel for the Blade requested that the respondents discharge their legal obligation to redact from the file material excepted from disclosure by R.C. 149.43(A) and to disclose the nonexcepted material.

(10) Unless excepted from disclosure by provisions in R.C. 149.43, the internal affairs file of Deputy Sheriff Zieroff is a "public record" within the meaning of R.C. 149.43.

The matter was heard on February 1, 1990 and arguments were had on February 2, 1990. ¹ The evidence introduced by the parties at that hearing included the following:

(1) The stipulations listed above.

(2) The entire internal affairs file of Deputy Sheriff Peter Zieroff without redactions (introduced under seal) (Exhibit A).

(3) Zieroff's entire internal affairs file, as it was redacted by the respondents (Exhibit B).

(4) The union contract of the deputy sheriffs.

(5) The policy and procedures of the Internal Affairs Bureau of the Lucas County Sheriff's Department.

(6) The "rights" statement given to a deputy under investigation by the Internal Affairs Bureau.

(7) Testimony from Jon Rogers, the Director of the Internal Affairs Bureau.

Arguments were then had by all parties regarding the issues raised and the cause was submitted for adjudication.

The Ohio public records law, R.C. 149.43, requires all public offices of the state to make all public records available for inspection to any person at all reasonable times. R.C. 149.43(B). The term "public record" is broadly defined by the statute. Decisions of the Supreme Court of Ohio make clear that the definition is broad, and that unless a record is expressly excepted from disclosure by a provision of the law, the record is public and is subject to disclosure under the law. See, e.g., State, ex rel. Beacon Journal Publishing Co., v. Univ. of Akron (1980), 64 Ohio St.2d 392, 18 O.O.3d 534, 415 N.E.2d 310. " * * * [T]he exceptions to disclosure as enumerated in R.C. 149.43 are to be construed strictly against the * * * custodian * * * and any doubts shall be resolved in favor of disclosure." ² (Emphasis added.) State ex rel. Outlet Communications, Inc., v. Lancaster Police Dept. (1988), 38 Ohio St.3d 324, 328, 528 N.E.2d 175, 178, citing State, ex rel. Plain Dealer Publishing Co., v. Krouse (1977), 51 Ohio St.2d 1, 2, 5 O.O.3d 1, 1-2, 364 N.E.2d 854, 855.

"A governmental body refusing to release records has the burden of proving that the records are excepted from disclosure by R.C. 149.43." State, ex rel. Natl. Broadcasting Co., v. Cleveland (1988), 38 Ohio St.3d 79, 526 N.E.2d 786, paragraph two of the syllabus. Even if a public record contains some material that is excepted from disclosure, the governmental body is obligated to disclose the nonexcepted material, after redacting the excepted material. Id. at 85, 526 N.E.2d at 792, citing State, ex rel. Dispatch Printing Co., v. Wells (1985), 18 Ohio St.3d 382, 18 OBR 437, 481 N.E.2d 632.

The parties have stipulated that the internal affairs file sought by the Blade is a public record unless it is excepted from disclosure by provisions in the law. Accordingly, this case does not raise any issue regarding the general sweep of the public records statute.

The issues that are raised, however, are critical, because they go to the core of the statute and its processes: First, what is the obligation of a governmental official with respect to responding to requests under the Public Records Act to inspect and copy public records? Second, what constitutes a reasonable promise of confidentiality which implicates the exceptions to disclosure set forth in R.C. 149.43(A)(2)? Third, assuming a promise of confidentiality is reasonable, what is the extent of the exceptions relating to that promise? Fourth, what is the meaning of the "medical records" exception set forth in R.C. 149.43(A)(3)? Fifth, what constitutes "specific investigatory work product" under R.C. 149.43(A)(2)(c)?

The answers to the first and third questions are simple, and they are related. First, a governmental body has the legal duty to disclose all materials in public records that are not specifically excepted from disclosure by an explicit provision of the public records law. Second, if a witness is reasonably promised confidentiality, that witness' statement may be redacted to protect the witness' identity.

The Supreme Court has made the existence of that duty clear, if indeed any clarification was required, given the fairly detailed provisions of the law. In this connection, governmental officials must be held to the knowledge that the exceptions to disclosure are narrowly phrased by the legislature, and that the Supreme Court has honored that legislative intention by holding that the exceptions must be narrowly construed. ³

The sheriff contends, in essence, that he has discharged his duty by determining that the record contains excepted material, and submitting the entire record to the court for review and redaction as appropriate. This contention is incorrect and it must be firmly rejected so that the sheriff and other governmental officials do not take this course of action again. Contrary to the sheriff's view, the holding in State, ex rel. Natl. Broadcasting Co., v. Cleveland, supra, is not an invitation to public officials to delegate their duties under the Public Records Act to the courts. In State, ex rel. Natl. Broadcasting Co., v. Cleveland, the Supreme Court clearly announced the legal duty when it held as follows:

" * * * [T]he fact that excepted materials may be contained in records which also contain materials subject to disclosure does not relieve the government of its duty to disclose the nonexcepted material. * * * " Id., 38 Ohio St.3d at 85, 526 N.E.2d at 792.

This language cannot be read to mean that the government has discharged its legal obligation merely by reviewing a record to determine if it contains excepted material and by submitting the records to the court if such material is present. As a general position, then, the sheriff's approach cannot be countenanced.

The sheriff contends further that he undertook to redact the records requested by the Blade in accordance with law, and submitted only disputed portions to the court. This secondary contention similarly fails. It simply is not supported by the evidence. The court has reviewed with care the records produced by the sheriff, following redaction. It is clear to the court that the respondents did not undertake in good faith to redact only those materials that are explicitly excepted from disclosure. Rather, the respondents redacted entire portions of records which could not conceivably be construed to be excepted from disclosure. The evidence at trial makes unmistakable that this approach prevailed at the time the respondents actually undertook the redaction.

The central issue regarding redaction relates to the respondents' contention that persons who provide information to the Internal Affairs Bureau are promised confidentiality. From that contention, the respondents argue that all information provided by confidential informants is excepted from disclosure. This contention is directly contrary to the express...