Summary
In Zuern, supra, the Ohio Supreme Court rejected making a blanket exemption for investigatory files under the trial preparation exception.
Summary of this case from State ex Rel. Jenkins, v. ClevelandOpinion
No. 90-645
Submitted August 29, 1990 —
Decided December 5, 1990.
Public records — Sheriff's department's homicide investigative file does not qualify as an exempt "trial preparation record" under R.C. 149.43(A)(4), when — File not "specifically compiled" in anticipation of litigation — Possible exemption waived when contents of file are voluntarily disclosed in another lawsuit.
APPEAL from the Court of Appeals for Hamilton County, No. C-880791.
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.
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, for appellee.
Arthur M. Ney, Jr., prosecuting attorney, and William E. Breher, for appellants.
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 respondent's 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, 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, at 84-85, 526 N.E.2d at 790-792. In Barton v. Shupe, supra, 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 correspondence stationery.
On the evidence, respondents did not prove that the investigation met the threshold requirement of being "specifically compiled" in anticipation of litigation. While law enforcement investigations may include trial preparation material, as respondents claim, this investigation did not fit the precise language of R.C. 149.43(A)(4). See State, ex rel. Natl. Broadcasting Co., v. Cleveland, supra; State, ex rel. Beacon Journal, v. Univ. of Akron, supra.
The court of appeals in the case now before us followed this court's mandate in State, ex rel. Natl. Broadcasting Co., v. Cleveland, supra, and inspected the records in camera. After inspection, it properly concluded the records were not exempt from release under the trial preparation exemption. Despite respondents' claim to the contrary, the court of appeals' decision was reasoned, logical, and based on precedent. Its decision followed and applied our previous decisions in State, ex rel. Natl. Broadcasting Co., v. Cleveland, supra, and State, ex rel. Beacon Journal, v. Univ. of Akron, supra.
Furthermore, respondents, by the prior voluntary disclosure of this material in the Pence civil litigation, waived any claim of exemption under R.C. 149.43. The sheriff's office in that case neither sought protective orders or continued confidentiality, nor did it make any claim of privilege under Civ. R. 26(B)(3).
Voluntary disclosure can preclude later claims that records are exempt from release as public records. See Cooper v. United States Dept. of the Navy (C.A. 5, 1979), 594 F.2d 484; Mead Data Central, Inc. v. United States Dept. of the Air Force (C.A.D.C. 1977), 566 F.2d 242, 257-258.
In North Dakota, ex rel. Olson, v. Andrus (C.A. 8, 1978), 581 F.2d 177, the court held that the government waived its right to assert exemptions under the Freedom of Information Act ("FOIA") by voluntarily surrendering public documents in separate litigation with a private party. Condemning selective disclosure, that court noted: "The selective disclosure exhibited by the government in this action is offensive to the purposes underlying the FOIA and intolerable as a matter of policy. Preferential treatment of persons or interest groups fosters precisely the distrust of government that the FOIA was intended to obviate. * * *" North Dakota, ex rel. Olson, v. Andrus, supra, at 182.
In this case, the interests of Pence's representative and Zuern were antagonistic, as were the interests in North Dakota, ex rel. Olson, v. Andrus, supra. Yet the sheriff's office voluntarily released the records in the Pence litigation. But now respondents refuse to give them to Zuern, who is sentenced to death for Pence's murder. Even if the records were otherwise exempt, respondents have waived any right to exemption by previously voluntarily disclosing the records. North Dakota, ex rel. Olson, v. Andrus, supra; Cooper v. Dept. of the Navy, supra.
For the foregoing reasons, the judgment of the court of appeals is affirmed.
Judgment affirmed.
MOYER, C.J., SWEENEY, DOUGLAS, WRIGHT, H. BROWN and RESNICK, JJ., concur.
HOLMES, J., concurs in judgment only.