State ex rel. Dispatch Printing Co. v. Morrow Cty. Prosecutor's Office - Ohio Supreme Court Opinion - Ohio Supreme Court Decision

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[Cite as State ex rel. Dispatch Printing Co. v. Morrow Cty. Prosecutor's Office, 105 Ohio St.3d
172, 2005-Ohio-685.]

THE STATE EX REL. DISPATCH PRINTING COMPANY v. MORROW COUNTY
PROSECUTOR'S OFFICE ET AL.
[Cite as State ex rel. Dispatch Printing Co. v. Morrow Cty. Prosecutor's Office,
105 Ohio St.3d 172, 2005-Ohio-685.]
Public records -- Mandamus to compel Morrow County Prosecutor's Office to
provide copy of audiotape of 911 call -- Writ granted, when -- Attorney
fees awarded, when.
(No. 2005-0206 Submitted February 17, 2005 Decided February 24, 2005.)
IN MANDAMUS.
____________________

Per Curiam.
{¶ 1} In January 2005, relator, the Dispatch Printing Company
("Dispatch"), requested that respondent Morrow County Prosecuting Attorney
Charles S. Howland provide it with a copy of the 911 tape relating to the
homicides of Diana Cooper and Cameron Bateman. Howland permitted the
Dispatch to listen to the 911 tape and offered to transcribe it, but refused to
provide the Dispatch with a copy of the tape or allow the Dispatch to record it.
{¶ 2} On January 28, 2005, the Dispatch filed this action under the Ohio
Public Records Act, R.C. 149.43, to compel respondents, Howland, the Morrow
County Prosecutor's office, and Morrow County, to immediately produce a copy
of the requested 911 tape. The Dispatch also moved for a peremptory writ and
requested its costs and expenses, including attorney fees. On February 16, 2005,
respondents filed an answer admitting the pertinent facts. In its motion, the
Dispatch states, "Given the time sensitivity of this matter, it is requested that the
relief be granted forthwith."

SUPREME COURT OF OHIO

{¶ 3} This cause is now before us for our S.Ct.Prac.R. X(5)
determination.
S.Ct.Prac.R. X(5): Standard of Review
{¶ 4} We must now determine whether dismissal, an alternative writ, or
a peremptory writ is appropriate. S.Ct.Prac.R. X(5); State ex rel. Consumers'
Counsel v. Pub. Util. Comm., 102 Ohio St.3d 301, 2004-Ohio-2894, 809 N.E.2d
1146, ¶ 9. The Dispatch requests a peremptory writ of mandamus. "[I]f the
pertinent facts are uncontroverted and it appears beyond doubt that [the relator] is
entitled to the requested writ, we will issue a peremptory writ of mandamus."
State ex rel. Highlander v. Rudduck, 103 Ohio St.3d 370, 2004-Ohio-4952, 816
N.E.2d 213, ¶ 8.
Application of Standard to Mandamus Claim
{¶ 5} The Dispatch is entitled to the requested writ. "Nine-one-one tapes
in general * * * are public records which are not exempt from disclosure and must
be immediately released upon request." State ex rel. Cincinnati Enquirer v.
Hamilton Cty. (1996), 75 Ohio St.3d 374, 379, 662 N.E.2d 334; see, also, State ex
rel. Beacon Journal Publishing Co. v. Maurer (2001), 91 Ohio St.3d 54, 57, 741
N.E.2d 511.
{¶ 6} In Cincinnati Enquirer, we reasoned as follows in holding that all
911 tapes are public records subject to immediate release upon request:
{¶ 7} "Basic 911 systems * * * are systems `in which a caller provides
information on the nature of and location of an emergency, and the personnel
receiving the call must determine the appropriate emergency service provider to
respond at that location.' R.C. 4931.40(B). * * * 911 operators simply compile
information and do not investigate. The 911 tapes are not made in order to
preserve evidence for criminal prosecution. Nine-one-one calls that are received
* * * are always initiated by the callers. * * *
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January Term, 2005
{¶ 8} "From the foregoing, it is evident that 911 tapes are not prepared
by attorneys or other law enforcement officials. Instead, 911 calls are routinely
recorded without any specific investigatory purpose in mind. There is no
expectation of privacy when a person makes a 911 call. Instead, there is an
expectation that the information provided will be recorded and disclosed to the
public. Moreover, because 911 calls generally precede offense or incident form
reports completed by the police, they are even further removed from the initiation
of the criminal investigation than the form reports themselves.
{¶ 9} "The moment the tapes were made as a result of the calls (in these
cases -- and in all other 911 call cases) to the 911 number, the tapes became
public records. * * * Thus, any inquiry as to the release of records should have
been immediately at an end, and the tapes should have been, and should now and
henceforth always be, released.
{¶ 10} "The particular content of the 911 tapes is irrelevant. * * *
{¶ 11} "In addition, the fact that the tapes in question subsequently came
into the possession and/or control of a prosecutor, other law enforcement officials,
or even the grand jury has no significance. Once clothed with the public records
cloak, the records cannot be defrocked of their status." Id., 75 Ohio St.3d at 377-
378, 662 N.E.2d 334.
{¶ 12} Respondents argue that because they permitted the Dispatch to
listen to the 911 tape and offered to transcribe the tape, they satisfied their duty
under R.C. 149.43. But respondents ignore R.C. 149.43(B)(2), which authorizes
the person requesting the public record to choose to have the record duplicated in
the same medium that the public office keeps it:
{¶ 13} "If any person chooses to obtain a copy of a public record in
accordance with division (B)(1) of this section, the public office or person
responsible for the public record shall permit that person to choose to have the
public record duplicated upon paper, upon the same medium upon which the
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SUPREME COURT OF OHIO

public office or person responsible for the public record keeps it, or upon any
other medium upon which the public office or person responsible for the public
record determines that it reasonably can be duplicated as an integral part of the
normal operations of the public office or person responsible for the public record.
When the person seeking the copy makes a choice under this division, the public
office or person responsible for the public record shall provide a copy of it in
accordance with the choice made by the person seeking the copy." (Emphasis
added.)
{¶ 14} Because R.C. 149.43(B)(2) is unambiguous, we must apply it as
written. See, e.g., State ex rel. Lee v. Karnes, 103 Ohio St.3d 559, 2004-Ohio-
5718, 817 N.E.2d 76, ¶ 23. Respondents concede that they keep the requested
record in audiotape format and that despite the Dispatch's requesting a copy of
the tape in this format, respondents refused to release copies of the tape and did
not allow the Dispatch to copy it. Under R.C. 149.43(B)(2), they had a duty to
provide the Dispatch with a copy of the 911 tape in that same format.
{¶ 15} Issuing a writ in this case is consistent with precedent. See
Cincinnati Enquirer and State ex rel. Slagle v. Rogers, 103 Ohio St.3d 89, 2004-
Ohio-4354, 814 N.E.2d 55, ¶ 16-17. In Slagle, we cited Cincinnati Enquirer and
held that a person requesting a copy of an audiotape of a trial-court proceeding
was not limited to a transcribed version of the tape:
{¶ 16} "As to Slagle's claim that he is entitled to have the State v. Call
audiotape, he alleged in his complaint that he needed a copy of the audiotape of
the suppression hearing in order to prepare for trial. Although Judge Rogers
agrees that the recording should be made available for reasonable inspection, he
argues that Slagle should not be allowed to have the tape copied at cost under
R.C. 149.43(B)(1). Instead, he maintains that a party to the action is limited to a
transcribed version of the tape, to be ordered from the court reporter for the fee
fixed by the court.
4

January Term, 2005
{¶ 17} "We disagree with this position. In State ex rel. Cincinnati
Enquirer v. Hamilton Cty. (1996), 75 Ohio St.3d 374, 662 N.E.2d 334, we held
that tapes of 911 calls were public records and were subject to release under the
Ohio Public Records Act. In this case, Slagle is not asking to have the tape
transcribed or to have a transcript of the tape copied for him--he is only
requesting a copy of the audiotape. Under these circumstances, he is entitled to
the copy at cost." (Emphasis added.)
{¶ 18} Similarly, the Dispatch is entitled to a copy of the 911 tape at cost.
Moreover, because 911 tapes "must be immediately released upon request," we
grant an immediate peremptory writ. Cincinnati Enquirer, 75 Ohio St.3d at 379,
662 N.E.2d 334.
Attorney Fees
{¶ 19} The Dispatch is also entitled to attorney fees. It has established a
sufficient public benefit, and respondents failed to comply with the records
requests for invalid reasons. Cincinnati Enquirer, 75 Ohio St.3d at 379, 662
N.E.2d 334. We order the Dispatch's counsel to submit a bill and documentation
of evidence in support of its request for attorney fees, in accordance with the
guidelines in DR 2-106.
Writ granted.

MOYER, C.J., RESNICK, LUNDBERG STRATTON, O'CONNOR, O'DONNELL
and LANZINGER, JJ., concur.

PFEIFER, J., concurs separately.
__________________

PFEIFER, J., concurring.
{¶ 20} I concur in the decision of the majority. The law is clear.
However, as I wrote in State ex rel. Cincinnati Enquirer v. Hamilton Cty. (1996),
75 Ohio St.3d 374, 662 N.E.2d 334, the General Assembly should consider
changing the law. Id at 380-381, 662 N.E.2d 334 (Pfeifer, J., concurring). The
5

SUPREME COURT OF OHIO

public's right to scrutinize the workings of the government should be balanced
against an individual citizen's right to privacy. A person should be able to
summon the help of police officers or firefighters without having his plea
broadcast on the evening news. A transcript of a 911 call would convey the
necessary information without transforming a personal tragedy into a public
spectacle.
__________________

Zeiger, Tigges, Little & Lindsmith, L.L.P., John W. Zeiger, and Marion H.
Little Jr., for relator.

Charles S. Howland, Morrow County Prosecuting Attorney, for
respondents.
____________________
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