State ex rel. Beacon Journal Publishing Co. v. Kent State Univ. - Ohio Supreme Court Opinion - Ohio Supreme Court Decision

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OPINIONS OF THE SUPREME COURT OF OHIO
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The State ex rel. Beacon Journal Publishing Company, Appellant,
v. Kent State University et al., Appellees.
[Cite as State ex rel. Beacon Journal Publishing Co. v. Kent
State Univ. (1993), Ohio St.3d .]
Public records -- R.C. 149.43 -- Newspaper seeks state
university police investigative report -- University seeks
to exempt almost the entire file -- List of files court of
appeals directed to release.
(No. 93-1056 -- Submitted September 28, 1993 -- Decided
December 15, 1993.)
Appeal from the Court of Appeals for Portage County, No.
92-P-0042.
In April 1992, relators, Beacon Journal Publishing Company
and reporter Thrity Umrigar, filed a complaint for mandamus
against respondents, Kent State University ("KSU") and KSU's
police chief and Director of Marketing and Communications. The
Beacon Journal sought documents relating to reports that KSU
employees working in the admissions office had received
threatening letters. The Beacon Journal also sought documents
related to reported misconduct by Bruce Riddle, former KSU
Director of the Department of Admissions.
The incident prompting the Beacon Journal requests arose
on November 21, 1991, when a KSU admissions official, termed
"John Doe" for purposes of this opinion, received a
hand-printed anonymous letter threatening to kill him. When
Doe complained to the KSU police, he asked that his identity be
kept confidential, and the police agreed. In December 1991,
Doe received two additional threatening letters. Between those
two December letters, an unknown person shot and killed a KSU
custodian. On January 16, 1992, Doe found a threatening note
on his car parked on campus. On January 29, a student was shot
on campus. On February 2, 1992, KSU police asked Doe not to go
to campus because police feared for his safety.1
After a thorough investigation of the letters, police
identified a possible culprit, but Doe declined to prosecute.
After consulting with the prosecutor, police ended their
investigation of the case without charging anyone.
When faced with the Beacon Journal's mandamus petition,

the respondents released a few records and submitted the
remaining forty-four file folders of documents to the court of
appeals for an in camera inspection. The court of appeals
found almost every one of the documents to qualify as an exempt
"confidential law enforcement investigatory record" under R.C.
149.43. The Beacon Journal and reporter Umrigar disagreed with
the results of the in camera review, and have appealed as a
matter of right to this court.

Roetzel & Andress Co., L.P.A., Ronald S. Kopp, Amie L.
Bruggeman and Howard Groedel, for appellants.
Lee I. Fisher, Attorney General; Climaco, Climaco,
Seminatore, Lefkowitz & Garofoli Co., L.P.A., Dennis R. Wilcox,
Jack D. Maistros and Joseph M. Hegedus, for appellees.

Per Curiam. We find that the court of appeals erred in
exempting from release virtually all of the KSU investigative
file and accordingly remand the case to the court of appeals
for release of further documents.
The Ohio Public Records Act, R.C. 149.43, requires public
officials to provide access to all public records upon request
from a member of the public. State ex rel. Natl. Broadcasting
Co. v. Cleveland (1988), 38 Ohio St.3d 79, 526 N.E.2d 786.
"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 * * * subject only to a few
very limited and narrow exceptions." State ex rel. Williams v.
Cleveland (1992), 64 Ohio St.3d 544, 549, 597 N.E.2d 147, 151.
Admittedly, reversing the court of appeals' decision as to
the disclosure of records on the basis of a factual
determination, following its in camera review of the records,
requires finding an abuse of discretion. State ex rel. Hamblin
v. Brooklyn (1993), 67 Ohio St.3d 152, 153, 616 N.E.2d 883,
884; State ex rel. Vindicator Printing Co. v. Watkins (1993),
66 Ohio St.3d 129, 136-137, 609 N.E.2d 551, 558. However,
relators labor under an imposing handicap, not having access to
the records to prove an abuse of discretion. In fact, KSU, as
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.
As public records, "[l]aw enforcement investigatory
records must be disclosed unless they are excepted from
disclosure by R.C. 149.43." Natl. Broadcasting Co., supra, at
paragraph one of the syllabus. However, respondents argue the
documents are exempt "confidential law enforcement
investigatory records" under R.C. 149.43(A)(2).
Exempting the records from release on that basis requires
a two-step analysis. "First, is the record a confidential law
enforcement record? Second, would release of the record
'create a high probability of disclosure' of any one of four
kinds of information specified in R.C. 149.43(A)(2)?" State ex
rel. Polovischak v. Mayfield (1990), 50 Ohio St.3d 51, 52, 552
N.E.2d 635, 637.
In fact, "the General Assembly sought to guard against
these exceptions swallowing up the rule which makes public
records available." 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. Like Beacon Journal, this case
involves that newspaper seeking a state university police
investigative report, and the university seeks to exempt almost
the entire file.
Relators argue that KSU wrongfully attempted to
"privatize" a crime by granting confidential informer status to
the victim who received the threatening notes. Yet Doe, as a
witness fearful for his personal safety, qualifies as a
"witness to whom confidentiality has been reasonably promised"
under R.C. 149.43(A)(2)(b). See State ex rel. Johnson v.
Cleveland (1992), 65 Ohio St.3d 331, 333, 603 N.E.2d 1011,
1013; State ex rel. Polovischak v. Mayfield, supra.
However, we find no basis under the facts to extend
confidentiality to the text of the threatening letters. The
letter writer clearly knew that Doe had reported the letters to
the police, and no confidentiality interest protects their
text. If the victim's name and any identifying features are
deleted, the text of the letters would not, directly or by
inference, identify the informant. Thus, releasing the
redacted letters creates no "high probability of disclosure" of
the confidential informant's identity.
The court of appeals also abused its discretion in
applying the uncharged-suspect exception, R.C. 149.43(A)(2)(a),
to exempt some internal documents of the admissions office.
Police did not create these routine administrative documents,
which were used for other than investigative purposes; in fact,
most of these predated the investigation. More important,
release of these documents would not create a "high
probability" of disclosing either the informant's identity or
the names of uncharged suspects. Nor would release of these
documents compromise "confidential investigatory techniques"
protected by R.C. 149.43(A)(2)(c). See Natl. Broadcasting Co.,
supra, 38 Ohio St.3d at 83, 526 N.E.2d at 790.
Thus the court of appeals needs to release certain student
appointment forms, requests for leave, a seventeen-page
schedule of visits and the computer printout of admissions
office employees. (Files 34, 35, 39 and 41.) Of course, the
court of appeals may make any appropriate redactions, e.g.,
Social Security numbers.
Respondents also overused the exemption for investigatory
work product, R.C. 149.43(A)(2)(c). That exemption "protects
an investigator's deliberative and subjective analysis, his
interpretation 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." NBC, supra
at paragraph three of the syllabus. See, also, State ex rel.
Natl. Broadcasting Co. v. Cleveland (1991), 57 Ohio St.3d 77,
566 N.E.2d 146.
Accordingly, the court of appeals is directed to further
inspect factual reports and release documents in selected files
after any needed redaction to protect the identity of the
confidential informant and various uncharged suspects. (See
files 7, 22 [report on Cunningham], 31 [summary report] and 38
[summary report].)
The court of appeals did not abuse its discretion in
finding the remainder of the investigative file exempt.

Release of remaining documents would create a high probability
of disclosing the protected identity of uncharged suspects and
the confidential informant. Protected identities of uncharged
suspects and confidential informants are inextricably
intertwined with the remaining materials. See State ex rel.
Moreland v. Dayton (1993), 67 Ohio St.3d 129, 616 N.E.2d 234;
State ex rel. McGee v. Ohio State Bd. of Psychology (1990), 49
Ohio St.3d 59, 60, 550 N.E.2d 945, 947; State ex rel. Thompson
Newspapers, Inc. v. Martin (1989), 47 Ohio St.3d 28, 546 N.E.2d
939. (Files 12, 14, 26, 33, 36 and 40, and the court of
appeals' May 5, 1993 summary.)
Accordingly, the judgment of the court of appeals is
reversed and the cause is remanded to that court for additional
release of documents as follows:
a. Release the text of the threatening letters after
deleting the recipient's name and any other language that would
identity the victim. (Files 1, 2, 4, 11 and 42.)
b. Release nineteen student appointment forms (file 39),
twenty-three requests for leave (file 34), the seventeen-page
schedule of visits (file 34), eighty-two applications for leave
(file 35), and a computer printout of all admissions office
employees (file 41) after any appropriate redaction (for
instance, to delete Social Security numbers).
c. Release, after appropriate redaction such as to conceal
the identity of the informant and uncharged suspects, the
factual reports in files 7, 22 (report on Cunningham), 31
(summary report) and 38 (summary report).

Judgment accordingly.
Moyer, C.J., A.W. Sweeney, Douglas, Resnick, F.E. Sweeney
and Pfeifer, JJ., concur.
Wright, J., not participating.

FOOTNOTE
1 On February 10, 1992, Kent police shot and killed Mark
Cunningham after Cunningham had fired at KSU police. The
ensuing police investigation suggested that Cunningham may have
shot the KSU custodian and student, but those shootings appear
unrelated to the threatening letters sent to Doe.