State ex rel. Williams v. Cleveland - Ohio Supreme Court Opinion - Ohio Supreme Court Decision

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OPINIONS OF THE SUPREME COURT OF OHIO
The full texts of the opinions of the Supreme Court of
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1992, pursuant to a pilot project implemented by Chief Justice
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The State ex rel. Williams et al., Appellants and
Cross-Appellees, v. City of Cleveland et al., Appellees and
Cross-Appellants.
[Cite as State ex rel. Williams v. Cleveland (1992),
Ohio St.3d .]
Public records -- Trial preparation and confidential law
enforcement investigatory records from aggravated murder
conviction cases -- Exempt from disclosure, when -- R.C.
149.43, applied.
(Nos. 91-572, 91-580 and 91-592 -- Submitted June 17, 1992
-- Decided September 2, 1992.)
Appeals and Cross-Appeals from the Court of Appeals for
Cuyahoga County, Nos. 56438, 57769 and 58867.
Relators-appellants, Willie Lee Jester, Anthony
Apanovitch, and Donald Williams, were individually convicted of
capital crimes and sentenced to death. All direct appeals to
which appellants are entitled have been exhausted. State v.
Jester (1987), 32 Ohio St.3d 147, 512 N.E.2d 962, certiorari
denied (1988), 484 U.S. 1047, 108 S.Ct. 785, 98 L.Ed.2d 871;
State v. Apanovitch (1987), 33 Ohio St.3d 19, 514 N.E.2d 394;
and State v. Williams (1988), 38 Ohio St.3d 346, 528 N.E.2d
910, certiorari denied (1989), 489 U.S. 1040, 109 S.Ct. 1176,
103 L.Ed.2d 238. Appellants have individually requested that
the city of Cleveland and various governmental officials,
respondents-appellees and cross-appellants (collectively
referred to as "appellees"), make records available to them for
inspection and copying in accordance with Ohio's open records
law, R.C. 149.43.1 In response to the appellees' not fully
complying with appellants' demands, appellants, pursuant to
R.C. 149.43(C), filed separate actions in mandamus in the Court
of Appeals for Cuyahoga County.
The court of appeals conducted an in camera review of the
records in each of the three cases. The court partially
granted each of the writs, ordering the release of some records
and denying appellants access to other records.
Appellants, Williams, Jester and Apanovitch, separately
appealed to this court in case Nos. 91-572, 91-580 and 91-592,
respectively. Appellees filed cross-appeals.2 The three cases
have been consolidated for purposes of final disposition.3

The causes are now before this court upon appeals as of
right.

Randall M. Dana, Ohio Public Defender, David C. Stebbins
and Dale A. Baich, for appellant and cross-appellee in case No.
91-572.
Randall M. Dana, Ohio Public Defender, S. Adele Shank and
Dale A. Baich, for appellant and cross-appellee in case No.
91-580.
Randall M. Dana, Ohio Public Defender, Scott Z. Jelen and
Richard J. Vickers, for appellant and cross-appellee in case
No. 91-592.
Danny R. Williams, Law Director, Kathleen A. Martin and
Joseph J. Jerse, for appellees and cross-appellants in case
Nos. 91-572, 91-580, and 91-592.

Douglas, J. The central question in each of the cases
before us is whether certain records demanded by appellants
should have been made available to them. Upon a thorough
review of the records, we find the court of appeals did not
abuse its discretion in ordering some records released, some
released as redacted, and some records not released. We affirm
the court of appeals in each case in all respects.
As a threshold matter, it is clear that an action in
mandamus is available to each appellant. In State ex rel.
Clark v. Toledo (1990), 54 Ohio St.3d 55, 560 N.E.2d 1313,
syllabus, we held that "[a] criminal defendant who has
exhausted the direct appeals of his conviction may avail
himself of R.C. 149.43 to support his petition for
post-conviction relief." Further, R.C. 149.43(C) authorizes a
cause of action in mandamus to a person allegedly aggrieved by
the failure of a governmental unit to promptly prepare a public
record and make it available for inspection in accordance with
R.C. 149.43(B).4 A cause of action also exists if a person
requests a copy of a public record and the custodian
responsible for the record fails to make a copy available.
Indeed, there is no question that appellants are "person(s)"
within the contemplation of R.C. 149.43(B). Clark, supra, at
57, 560 N.E.2d at 1314; see, also, State ex rel. Coleman v.
Cincinnati (1991), 57 Ohio St.3d 83, 85, 566 N.E.2d 151, 154.
As a consequence, R.C. 149.43(A) is at issue. R.C.
149.43(A)(1) defines a "public record" as "any record that is
kept by any public office * * * except * * * trial preparation
records, confidential law enforcement investigatory records,
and records the release of which is prohibited by state or
federal law." (Emphasis added.) Here, we are concerned with
trial preparation and confidential law enforcement
investigatory records.
A
Trial Preparation Exemption
Trial preparation records are exempt from disclosure and
are defined in R.C. 149.43(A)(4) as:
"* * * [A]ny 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."

We have recognized, on numerous occasions, the limited
availability of the trial preparation exception. See State ex
rel. Zuern v. Leis (1990), 56 Ohio St.3d 20, 564 N.E.2d 81;
State ex rel. Beacon Journal Publishing Co. v. Univ. of Akron
(1980), 64 Ohio St.2d 392, 398, 18 O.O.3d 534, 538, 415 N.E.2d
310, 314; and State ex rel. Natl. Broadcasting Co. v. Cleveland
(1988), 38 Ohio St.3d 79, 526 N.E.2d 786 ("NBC I").5 In Beacon
Journal, supra, at 398, 18 O.O.3d at 538, 415 N.E.2d at 314, we
noted that "* * * 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 court of appeals, in each of the cases, followed this
court's mandate in NBC I, supra, paragraph four of the
syllabus, and conducted an in camera review of the records.
After review, the court applied the trial preparation
exemption, concluding that some of the records were exempt, in
whole or in part, from release. Specifically, the court of
appeals applied the exemption to five records in case No.
91-572 (Williams), fifteen records in case No. 91-580 (Jester),
and one record in case No. 91-592 (Apanovitch). For the most
part, these records contain certain statements from various
witnesses and/or involve trial preparation by the prosecution.
We have carefully inspected the foregoing records in
question and are convinced that the court of appeals did not
err in applying the trial preparation exemption to these
records. The court followed and correctly applied previous
decisions from this court, rejecting an expansive
interpretation of R.C. 149.43(A)(4). Furthermore, it is
apparent that the court of appeals recognized that in order for
the trial preparation exception to apply, R.C. 149.43(A)(4)
requires records to be "specifically compiled in reasonable
anticipation" of litigation. Zuern, supra, at 21, 564 N.E.2d
at 83.
B
Confidential Law Enforcement Investigatory Exemption
R.C. 149.43(A)(2) permits nondisclosure of "confidential
law enforcement investigatory record(s)" only insofar as their
release would create a high probability of disclosure of the
following:
"* * *
"(c) Specific confidential investigatory techniques or
procedures or specific investigatory work product;
"(d) Information that would endanger the life or physical
safety of law enforcement personnel, a crime victim, a witness,
or a confidential information source."
In all three cases, the court of appeals found that some
records were exempt from release on the basis of the "specific
investigatory work product" exemption, R.C. 149.43 (A)(2)(c).
The court determined that these records contained information
derived from a coroner's autopsy or concerned information
derived from particular scientific tests. The court's
decisions were based to a large extent, on NBC I, supra, or
State ex rel. Dayton Newspapers, Inc. v. Rauch (1984), 12 Ohio
St.3d 100, 12 OBR 87, 465 N.E.2d 458, or a combination of both
cases.
In Rauch, we affirmed the principle that exceptions to the

disclosure requirements of R.C. 149.43(B) be strictly construed
against the custodian of the records. However, we held that
autopsy reports are exempt from disclosure as specific
investigatory work product under R.C. 149.43(A)(2)(c),
reasoning that an autopsy is, in itself, an investigation.
In NBC I, supra, paragraphs two and three of the syllabus,
we held that:
"2. A governmental body refusing to release records has
the burden of proving that the records are excepted from
disclosure by R.C. 149.43.
"3. The specific investigatory work product exception,
R.C. 149.43(A)(2)(c), protects an investigator's deliberative
and subjective analysis, his interpretations of the facts, his
theory of the case, and his investigative plans. The exception
does not encompass the objective facts and observations he has
recorded."
We further explained that:
"* * * The content of the record, not the fact that it
was created during the investigation of a specific crime,
determines whether material may be withheld as a 'specific
investigatory work product' exception.
"Specific investigatory work product can best be defined
as material that demonstrably contains or reveals the theories,
mental impressions and thought processes of the investigator.
* * *" Id. at 83-84, 526 N.E.2d at 790.
Appellants take exception to the court of appeals'
application of R.C. 149.43(A)(2)(c) in their respective cases.
Appellants contend that scientific test results and coroner's
examination results necessarily involve objective facts and
observations of an investigator. Therefore, urge appellants,
such records are public records subject to disclosure.
Appellants further urge that we overrule Rauch, supra, arguing
that it is inconsistent with NBC I, supra.
We disagree with appellants' arguments. Our review of the
records indicates that the court of appeals properly applied
the work product exception. Further, we decline appellants'
invitation to overrule Rauch. In determining which records
were public records subject to disclosure, and which records
were exempt from release under the "specific investigatory work
product" exceptions, the court of appeals properly applied and
relied on the NBC I and Rauch decisions.6
The court of appeals, in case No. 91-572 (Williams),
exempted thirty-one records, in whole or in part, based on
threats to the physical safety of informants or witnesses.
R.C. 149.43(A)(2)(d). The court did not apply this exception
in case No. 91-580 (Jester) or in case No. 91-592 (Apanovitch).
Appellants challenge the court of appeals' decision in
case No. 91-572, arguing that the appellees failed to satisfy
the burden imposed on them to prove that the records withheld
from disclosure are exempt under R.C. 149.43(A)(2)(d).
Appellees, on the other hand, defend the court of appeals'
decision in case No. 91-572 and, in addition, request reversal
of case No. 91-592, urging that several witnesses expressed
fear of appellant, Apanovitch.
We have reviewed the records in question and conclude that
the court of appeals in case Nos. 91-572 and 91-592 properly
determined that certain records were exempt or not exempt under

R.C. 149.43(A)(2)(d). The court correctly recognized that
appellees had "the burden of proving that the records are
excepted from disclosure by R.C. 149.43." NBC I, supra,
paragraph two of the syllabus.
C
Conclusion
The court of appeals, in each of the cases, conducted an
extensive in camera inspection of the records. The court
concluded, among other things, that some of the records should
be released in full, some not disclosed, and some released only
after redacting certain portions. In rendering its decisions,
we are convinced that the court was aware that R.C. 149.43 was
intended by the General Assembly to be liberally construed to
ensure that governmental records be open and made available to
the public and that public records are subject only to a few
very limited and narrow exceptions. We defer to the discretion
of the court of appeals in all three cases in all respects.
Accordingly, the judgments of the court of appeals are
affirmed.
Judgments affirmed.
Moyer, C.J., Sweeney, Wright, H. Brown and Resnick, JJ.,
concur.
Holmes, J., dissents.
FOOTNOTES:
1 It appears that Jester and Williams have requested certain
public records to support or prepare their petitions for
post-conviction relief.
2 The court of appeals permitted the Cuyahoga County
Prosecutor to intervene.
3 Appellants have filed a consolidated brief in this court.
4 R.C. 149.43(B) provides:
"All public records shall be promptly prepared and made
available for inspection to any person at all reasonable times
during regular business hours. Upon request, a person
responsible for public records shall make copies available at
cost, within a reasonable period of time. In order to
facilitate broader access to public records, governmental units
shall maintain public records in such a manner that they can be
made available for inspection in accordance with this division."
5 See, also, State ex rel. Natl. Broadcasting Co. v.
Cleveland (1991), 57 Ohio St.3d 77, 566 N.E.2d 146 ("NBC II");
and State ex rel. Coleman v. Cincinnati (1991), 57 Ohio St.3d
83, 566 N.E.2d 151. Both of these cases were decided after the
court of appeals rendered its decisions in case Nos. 91-572 and
91-580 (Williams and Jester, respectively) but before case No.
91-592 (Apanovitch).
6 We also reject appellees' argument that the court of
appeals applied the investigatory work product exemption too
narrowly. Appellees did not specifically assert how the court
of appeals erred or which documents that were previously
ordered released need to be exempted.