State ex rel. WHIO-TV-7 v. Lowe

• Decision Date: 22 January 1997
• Docket Number: WDTN-TV-2,A,Nos. 95-2224,WHIO-TV-7,95-2356,s. 95-2224
• Citation: 77 Ohio St.3d 350,673 N.E.2d 1360
• Parties: , 25 Media L. Rep. 1756 The STATE ex rel.v. LOWE et al. The STATE ex rel.ppellant, v. LOWE et al., Appellees.
• Court: Ohio Supreme Court

Page 350

77 Ohio St.3d 350

673 N.E.2d 1360, 25 Media L. Rep. 1756

The STATE ex rel. WHIO-TV-7 v. LOWE et al. The STATE ex rel. WDTN-TV-2, Appellant, v. LOWE et al., Appellees.

Nos. 95-2224, 95-2356.

Supreme Court of Ohio.

Submitted Sept. 10, 1996.

Decided Jan. 22, 1997.

SYLLABUS BY THE COURT

Information that a criminal prosecutor has disclosed to the defendant for discovery purposes pursuant to Crim.R. 16 is not thereby subject to release as a "public record" pursuant to R.C. 149.43.

These two cases arise out of the same circumstances. In case No. 95-2224, relator WHIO-TV-7 filed in this court an original action in mandamus. In case No. 95-2356, appellant WDTN-TV-2 appealed the decision by the Montgomery County Court of Appeals denying appellant's complaint in mandamus.

On July 18, 1995, Therressa Jolynn Ritchie reported to a Dayton, Ohio 911 operator that her four-year-old daughter Samantha was missing. The local media, including both relator and appellant in the cases sub judice, extensively covered the disappearance. On July 22, 1995, law enforcement investigators found Samantha's body in a water-filled pit on the grounds of an abandoned foundry near her neighborhood. On August 3, 1995, Therressa Jolynn Ritchie and Ernest Vernell Brooks were arrested on various charges involving Samantha. On August 31, 1995, the Montgomery County Grand Jury indicted Ritchie for murder, gross abuse of a corpse, tampering with evidence, inducing a panic, and making a false alarm. The grand jury indicted Brooks for gross abuse of a corpse, tampering with evidence, and obstructing justice. On September 14, 1995, Brooks pled guilty to the three felony counts for which he had been indicted.

On August 10, 1995, counsel for appellant WDTN-TV-2 wrote a letter to respondent-appellee Ronald Lowe, Sr., Chief of the Dayton Police, requesting that he grant appellant access to any and all "public records concerning the Therressa Jolynn Ritchie case * * * including, but not limited to: incident reports; relevant written or recorded statements of witnesses or defendants; written or recorded summaries of any oral statements made by witnesses or defendants; the prior criminal records of the defendants or witnesses; any tangible objects, documents or photographs; and any results of any mental examinations performed on the defendants, including polygraph results." On August 28, 1995, WDTN-TV-2 filed in the Montgomery County Court of Appeals a complaint for a writ of mandamus requesting that the court compel appellee Lowe to release the records. On September 20, 1995, the court of appeals granted the motions of both the Montgomery County Prosecutor and Ritchie to intervene as party respondents. The court of appeals granted WHIO-TV-7's motion to participate as an amicus curiae. On November 2, 1995, the court of appeals denied the application for a writ of mandamus. On November 17, 1995, WDTN-TV-2 appealed that decision to this court. The cause is now before this court upon an appeal as of right.

The companion case, No. 95-2224, presents similar facts. On September 15, 1995, counsel for relator WHIO-TV-7 requested respondent Ronald Lowe, Sr., Chief of the Dayton Police, to permit the inspection and copying of any written or recorded statements made by defendants Brooks and Ritchie, any written summaries of any oral statements made by the defendants, any photographs, any police reports, any result or reports of physical or mental examinations or scientific tests, and a list of names and addresses of all witnesses in the matter. On September 20, 1995, counsel for WHIO-TV-7 and counsel for WDTN-TV-2 made the same request of Mathias H. Heck, Jr., Montgomery County Prosecutor, and David M. Franceschelli, Assistant Prosecuting Attorney. On November 1, 1995, WHIO-TV-7 filed in this court a complaint in mandamus requesting that the court compel respondents Lowe, Heck, and Franceschelli to release the records.

At this time, respondents-appellees have released only the following documents:

(1) Dayton police arrest report for Therressa J. Ritchie with her Social Security Number redacted;

(2) Arraignment information sheet for Ritchie with her Social Security Number and "remarks for arraignment" redacted;

(3) Dayton police arrest report for Ernest Vernell Brooks with his Social Security Number redacted;

(4) Arraignment information sheet for Brooks with his Social Security Number and "remarks for arraignment" redacted;

(5) Arrest record for Ritchie with her Social Security Number displayed; and

(6) Arrest record for Brooks with certain unspecified information redacted but with his Social Security Number displayed.

On January 17, 1996, this court in case No. 95-2224 granted respondent Ritchie's motions to intervene and to consolidate the two cases.

The parties agree that certain requested information does not exist. The parties now agree that the records sought "consist of the following described documents, to the extent that the same have been disclosed to either counsel for Ritchie or to counsel for Brooks, or both, pursuant to Crim.R. 16(B)":

(1) Written or recorded statements made by Ritchie and/or Brooks;

(2) Written summaries of any oral statements made by Ritchie and/or Brooks 3) Photographs;

(4) Police reports in addition to the redacted arrest reports and arraignment information sheets described above;

(5) Results or reports of physical or mental examinations and scientific tests made in connection with this matter; and

(6) A list of the names and addresses of all witnesses.

Porter, Wright, Morris & Arthur, Robert E. Portune, Thomas L. Czechowski and Linda S. Holmes, Dayton, for relator in case No. 95-2224.

Pickrel, Schaeffer & Ebeling, Andrew C. Storar and Michael W. Sandner, Dayton, for appellant WDTN-TV-2 in case No. 95-2356.

Mathias H. Heck, Jr., Montgomery County Prosecuting Attorney, and Carley J. Ingram, Assistant Prosecuting Attorney, for respondents Heck and Franceschelli in case No. 95-2224 and appellee Montgomery County Prosecutor's Office in case No. 95-2356.

J. Anthony Sawyer, Director of Law, for respondent Lowe in case No. 95-2224, and appellee Lowe in case No. 95-2356.

Bieser, Greer & Landis, Michael W. Krumholtz and David P. Williamson, Dayton, for intervening respondent Ritchie in case No. 95-2224, and appellee Ritchie in case No. 95-2356.

ALICE ROBIE RESNICK, Justice.

This case presents the issue of whether information that the criminal prosecutor has disclosed to the defendant for discovery purposes pursuant to Crim.R. 16, and therefore ordinarily would not be considered to be work product or trial preparation materials, is precluded from release to the public pursuant to the public records doctrine.

Appellant and relator argue that because the prosecution has already disclosed to the defendant the subject information pursuant to the criminal discovery rules, the information cannot be deemed "work product" and thus is subject to release pursuant to Ohio's public records doctrine, R.C. 149.43. Appellees and respondents contend that simply because the prosecutor discloses information to the defendant pursuant to Crim.R. 16(B), that information does not automatically become disclosable to the public pursuant to R.C. 149.43. All parties cite our decision in State ex rel. Steckman v. Jackson (1994), 70 Ohio St.3d 420, 639 N.E.2d 83, paragraphs three and five of the syllabus, in support of their assertions.

Crim.R. 16(B) requires the prosecuting attorney to disclose certain information to the criminal defendant upon the defendant's request. This evidence includes any statement of the defendant or co-defendant, the defendant's prior record, and documents and tangible objects, any reports of examination and tests, any witness names and addresses and their criminal records, and any evidence favorable to the defendant. Crim.R. 16(B)(1)(a) through (f). The prosecutor must also allow for the defendant's in camera inspection of any witness's statement. Crim.R. 16(B)(1)(g).

The purpose behind the Rules of Criminal Procedure "is to remove the element of gamesmanship from a trial." State v. Howard (1978), 56 Ohio St.2d 328, 333, 10 O.O.3d 448, 451, 383 N.E.2d 912, 915. As such criminal discovery is a matter solely between the prosecutor and the defendant. See, generally, Lakewood v. Papadelis (1987), 32 Ohio St.3d 1, 3, 511 N.E.2d 1138, 1140. The rules governing discovery do not envision a third party's access to the information exchanged. As the United States Court of Appeals for the Eleventh Circuit stated in United States v. Anderson (C.A.11, 1986), 799 F.2d 1438, 1441:

"Discovery is neither a public process nor typically a matter of public record. Historically, discovery materials were not available to the public or press. See Seattle Times Co. v. Rhinehart, 467 U.S. 20, 32-34, 104 S.Ct. 2199, 2207-08, 81 L.Ed.2d 17 [26-27] (1984) (pretrial interrogatories and depositions 'were not open to the public at common law'); Gannett Co. v. DePasquale, 443 U.S. 368, 396, 99 S.Ct. 2898, 2914, 61 L.Ed.2d 608 (1979) (Burger, C.J., concurring) ('[I]t has never occurred to anyone, as far as I am aware, that a pretrial deposition or pretrial interrogatories were other than wholly private to the litigants.'). Moreover, documents collected during discovery are not 'judicial records.' Discovery, whether civil or criminal, is essentially a private process because the litigants and the courts assume that the sole purpose of discovery is to assist trial preparation. That is why parties regularly agree, and courts often order, that discovery information will...