State ex rel. WLWT-TV5 v. Leis, WLWT-TV5

• Decision Date: 22 January 1997
• Docket Number: No. 96-141,WLWT-TV5,96-141
• Citation: 673 N.E.2d 1365,77 Ohio St.3d 357
• Parties: The STATE ex rel.v. LEIS, Sheriff, et al.
• Court: Ohio Supreme Court

Page 357

77 Ohio St.3d 357

673 N.E.2d 1365

The STATE ex rel. WLWT-TV5 v. LEIS, Sheriff, et al.

No. 96-141.

Supreme Court of Ohio.

Submitted Oct. 8, 1996.

Decided Jan. 22, 1997.

The Ohio Brotherhood of Deputy Sheriffs ("Brotherhood"), which previously served as the bargaining agent for over five-hundred Hamilton County corrections officers, engaged in fundraising activities for several years. The Brotherhood sold advertisements in a directory that listed local businesses. In 1994, the Brotherhood conducted its fundraising from a sheriff's substation. After business owners complained about high pressure sales tactics used by the Brotherhood and questioned who benefited from donations to the group, the Hamilton County Sheriff's Department began investigating the Brotherhood in late 1994. The sheriff's department subsequently forwarded its entire investigative file concerning the Brotherhood to the Hamilton County Prosecuting Attorney's Office for review and further investigation. The records in the possession of the sheriff and prosecutor's offices were compiled with the specific intention of preparing for and prosecuting criminal actions.

As a result of the investigation by the prosecutor's office in July 1995, a Hamilton County Grand Jury indicted Lynne Patterson, treasurer of an anti-merger citizens group, on two counts of perjury and one count of election falsification relating to a donation made by the Brotherhood to the anti-merger group in 1994. In October 1995, Patterson pled guilty to one count of election fraud (a reduced charge) and one count of election falsification.

Since early 1995, relator, WLWT-TV5 ("WLWT"), a Cincinnati television station, requested on several occasions that respondents, Hamilton County Sheriff Simon L. Leis, Jr., and Hamilton County Prosecuting Attorney Joseph T. Deters, provide it with the opportunity to inspect and copy all records in their possession relating to the Brotherhood. Respondents refused WLWT's requests on the basis that the records were exempt from disclosure. WLWT then filed this action for a writ of mandamus to compel respondents to provide access to the requested records.

In February 1996, as a result of the respondents' investigation, the Brotherhood, its president, Sergeant Theodore Hornsby, and a professional solicitor employed by the Brotherhood, John Henry Taylor, were charged with various criminal misdemeanors relating to the solicitation of funds for charitable purposes. The Brotherhood was charged with failing to file an annual registration statement in violation of R.C. 1716.02 and failing to file an annual financial report in violation of R.C. 1716.04. Hornsby was charged with failing to file an annual registration statement in violation of R.C. 1716.02 and failing to enter into a written contract with a professional solicitor, and further failing to comply with the requirements of such contract in violation of R.C. 1716.08. Taylor was charged with the same offenses as Hornsby. Hornsby entered pleas of no contest to the charges. Hornsby was subsequently sentenced. Taylor, a Florida resident, has not been arrested or brought to trial on the charges. Further charges may be brought by the prosecutor in the future.

The cause is now before this court on the parties' submitted evidence and briefs, an in camera inspection of the subject records, and WLWT's request for an inventory of the sealed records.

Frost & Jacobs, and Richard M. Goehler, Cincinnati, for relator.

Joseph T. Deters, Hamilton County Prosecuting Attorney, and William E. Breyer, Assistant Prosecuting Attorney, for respondents.

PER CURIAM.

WLWT seeks a writ of mandamus compelling respondents to provide access to the requested records. Mandamus is the appropriate remedy to compel compliance with R.C. 149.43, Ohio's Public Records Act. State ex rel. Master v. Cleveland (1996), 75 Ohio St.3d 23, 28, 661 N.E.2d 180, 184 ("Master I "). "Exceptions to disclosure are strictly construed against the custodian of the public records, and the burden to establish an exception is on the custodian." State ex rel. Thomas v. Ohio State Univ. (1994), 71 Ohio St.3d 245, 247, 643 N.E.2d 126, 128.

Respondents contend that the records are exempt from disclosure as R.C. 149.43(A)(2)(c) work product and R.C. 149.43(A)(4) trial preparation records. R.C. 149.43(A)(1) excepts from the definition of "public record" "confidential law enforcement investigatory record[s]" and "trial preparation record[s]." "Confidential law enforcement investigatory records" include records pertaining to a law enforcement matter of a criminal nature which, if released, would create a high probability of disclosure of "specific investigatory work product." R.C. 149.43(A)(2)(c). "Trial preparation records" are records containing information 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. R.C. 149.43(A)(4).

Information assembled by law enforcement officials in connection with a probable or pending criminal proceeding is, by the work product exception found in R.C. 149.43(A)(2)(c), excepted from required release to the public, as said information is compiled in anticipation of litigation whether or not some of such information may be disclosed to the defendant pursuant to Crim.R. 16. State ex rel. Steckman v. Jackson (1994), 70 Ohio St.3d 420, 639 N.E.2d 83, paragraph five of the syllabus. "[W]here it is evident that a crime has occurred, although no suspect has yet been charged, any notes, working papers, memoranda, or similar materials compiled by law enforcement officials in anticipation of a subsequent criminal proceeding are exempt from disclosure as R.C. 149.43(A)(2)(c) work product." State ex rel. Leonard v. White (1996), 75 Ohio St.3d 516, 518, 664 N.E.2d 527, 529. Here, shortly after respondents' investigation commenced, it became evident that crimes had occurred. Therefore, most of the sealed records constitute exempt work product, since they were compiled by respondents in anticipation of subsequent criminal proceedings. Id.

Similarly, the requested records are contained in the file of respondent prosecutor, who has prosecuted some of the charged offenses arising from the investigation. Trial preparation records that a criminal prosecutor has disclosed or may disclose to the defendant pursuant to Crim.R. 16 are not thereby subject to release as public records pursuant to R.C. 149.43 and are specifically exempt from release in accordance with R.C. 149.43(A)(4). Steckman, supra, at paragraph three of the syllabus.

Although the sealed investigative records indicate several possible areas of criminal conduct, all of the records are relevant to the respondents' general investigation of the Brotherhood as well as the particular criminal offenses charged thus far. For example, the Brotherhood, Hornsby, and Taylor were charged with violating R.C. 1716.02 by failing to file annual charitable organization registration statements. R.C. 1716.02(A) provides that "[e]very charitable organization, except those exempted under section 1716.03 of the Revised Code, that intends to solicit contributions in this state by any means or have contributions solicited in this state on its behalf by any other person, charitable organization, commercial co-venturer, or professional solicitor, or that participates in a charitable sales promotion, prior to engaging in any of these activities and annually thereafter, shall file a registration statement with the attorney general upon a form prescribed by him." The investigative records provide evidence of the Brotherhood's solicitation of charitable contributions in Ohio over the course of several years, which is pertinent to the R.C. 1716.02(A) violations. While some of the sealed records have greater relevance to uncharged offenses, this does not alter the records' general relevance to the offenses already charged and their consequent exempt status as work product and trial preparation records.

WLWT claims that the work product and trial preparation exemptions are inapplicable because Patterson, Hornsby, and Taylor have already been charged with certain crimes and Patterson and Hornsby have been convicted and sentenced. WLWT argues that Steckman limits the viability of these exemptions to "pending" criminal matters and that Leonard is distinguishable because in that case, no suspect had yet been charged.

WLWT's contention is meritless. Steckman expressly held at paragraph four of its syllabus that "[o]nce a record becomes exempt from release as a 'trial preparation record,' that record does not lose its exempt status unless and until all 'trials,' 'actions' and/or 'proceedings' have been fully completed." Analogously, once applicable, the records continue to be exempt work product until all proceedings are fully completed. See Steckman, 70 Ohio St.3d at 437, 639 N.E.2d at 96 ("The records sought by appellant are exempt from disclosure based upon the work product exception of R.C....