State ex rel. Zuern v. Leis

• Decision Date: 05 December 1990
• Docket Number: No. 90-645,90-645
• Parties: The STATE, ex rel. ZUERN, Appellee, v. LEIS, Sheriff, et al., Appellants.
• Court: Ohio Supreme Court

Page 20

56 Ohio St.3d 20

564 N.E.2d 81

The STATE, ex rel. ZUERN, Appellee, v. LEIS, Sheriff, et al., Appellants.

No. 90-645.

Supreme Court of Ohio.

Submitted Aug. 29, 1990.

Decided Dec. 5, 1990.

On June 9, 1984, inmate William G. Zuern fatally stabbed Sheriff's Deputy Phillip J. Pence, a guard, at the Community Correctional Institute ("CCI") in Hamilton County, Ohio. At the time, the sheriff's department operated CCI. Immediately following Pence's stabbing, sheriff's detectives thoroughly investigated the facts and circumstances surrounding the stabbing. A jury subsequently convicted Zuern of aggravated murder, and his conviction and death sentence were affirmed. See State v. Zuern (1987), 32 Ohio St.3d 56, 512 N.E.2d 585, certiorari denied (1988), 484 U.S. 1047, 108 S.Ct. 786, 98 L.Ed.2d 872.

In November 1988, Zuern's counsel requested that respondent Hamilton County Sheriff Simon L. Leis, Jr. make available for inspection and copying all public records maintained by the sheriff's department concerning the homicide investigation. Before Leis responded to the request, Zuern filed under R.C. 149.43 a petition for a writ of mandamus against Sheriff Leis and his department to secure public records. After extensive discovery, the court of appeals reviewed the evidence, inspected the documents in camera, heard oral argument, and then granted Zuern's motion for summary judgment. That court issued a writ of mandamus ordering respondents to release the records now in dispute. The disputed records include a homicide check list, three investigative reports, a diagram of Zuern's cell, thirty-six photographs, and statements from two prisoners and nine CCI personnel.

In a separate lawsuit filed in 1985, a personal representative of Pence's estate sued, inter alia, the Hamilton County Sheriff, claiming damages for Pence's death. In the Pence lawsuit, the respondents voluntarily disclosed on discovery all of the documents now sought by Zuern except for one witness statement.

Randall M. Dana, Ohio Public Defender, Jane P. Perry and Randall L. Porter, Columbus, for appellee.

Arthur M. Ney, Jr., Pros. Atty., and William E. Breyer, Cincinnati, for appellants.

PER CURIAM.

We find that the court of appeals did not abuse its discretion in finding that the sheriff's department's homicide investigative file did not qualify as an exempt "trial preparation record" under R.C. 149.43(A)(4). Further, we find that respondents waived any possible exemption to public release of the records by voluntarily disclosing them in the Pence case. Hence, we affirm the judgment of the court of appeals.

In their two propositions of law, respondents argue for a broad interpretation of the "trial preparation record" exemption to R.C. 149.43, which mandates release of public records. R.C. 149.43(A)(4) provides: " 'Trial preparation record' means any record that contains information that is 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." (Emphasis added.)

Respondents contend that all investigative records including the witness statements, photographs, cell diagram, as well as the detectives' reports, were specifically compiled for Zuern's criminal trial, thus qualifying as exempt "trial preparation records." Respondents do not argue that the documents come under the specific investigatory work product exemption, R.C. 149.43(A)(2)(c). Nor are we confronted with an argument concerning the relationship between Crim.R. 16 and R.C. 149.43. See State ex rel. Clark v. Toledo (1990), 54 Ohio St.3d 55, 560 N.E.2d 1313.

Zuern, relying upon a stricter interpretation of the trial preparation exemption, argues that respondents failed to prove these documents fit within that exemption. Zuern further contends that a court of appeals' decision releasing public records should not be reversed absent an abuse of discretion. Lastly, Zuern argues that the sheriff's department's prior disclosure of the records in the Pence case precludes an exemption claim under R.C. 149.43(A)(4).

We find that respondents' expansive interpretation of the trial preparation exemption conflicts with our prior holdings. First, we note that "[l]aw enforcement investigatory records must be disclosed unless they are excepted from disclosure by R.C. 149.43. (State ex rel. Beacon Journal v. Univ. of Akron [1980], 64 Ohio St.2d 392, 18 O.O.3d 534, 415 N.E.2d 310, approved and followed.)" State ex rel. Natl. Broadcasting Co. v. Cleveland (1988), 38 Ohio St.3d 79, 526 N.E.2d 786, paragraph one of the syllabus. "Ohio law favors disclosure of public records. * * *" Barton v. Shupe (1988), 37 Ohio St.3d 308, 525 N.E.2d 812. Second, "[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, supra, at paragraph two of the syllabus.

For the trial preparation exemption to apply, R.C. 149.43(A)(4) requires records to be "specifically compiled in reasonable anticipation" of litigation. Investigations conducted for multiple purposes do not qualify. State ex rel. Natl. Broadcasting Co. v. Cleveland, supra, 38 Ohio St.3d at 84-85, 526 N.E.2d at 790-792. In Barton v. Shupe, supra, 37 Ohio St.3d at 309, 525 N.E.2d at 813, we emphasized the strictly limited nature of the trial preparation exemption. In State ex rel. Beacon Journal v. Univ. of Akron (1980), 64 Ohio St.2d 392, 398, 18 O.O.3d 534, 538, 415 N.E.2d 310, 314, we noted: " * * * Clearly, the wording of the statute indicates that the General Assembly sought to guard against these exceptions swallowing up the rule which makes public records available. * * * "

The detectives did not investigate Pence's death just to prosecute Zuern. The sheriff's detectives investigated a homicide within a correctional facility operated by the sheriff's department and staffed with sheriff's deputies and personnel. The security and safety of the facility and existing procedures must necessarily have been involved. Yet, no other internal investigation was conducted, and CCI manuals and procedures required deaths to be investigated and unusual incidents reported. Each guard addressed his statement to a superior officer and placed it on internal...