State ex rel. Beacon Journal Publishing Co. v. WatersState ex rel. Beacon Journal Publishing Co. v. Waters
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[Cite as State ex rel. Beacon Journal Publishing Co. v. Waters (1993), 67 Ohio St.3d 321.]
Mandamus to compel access to subpoenas issued for grand jury proceedings and to log known as Grand Jury Witness Record Book -- Writ denied, when.
(Submitted May 18, 1993 -- Decided September 15, 1993.)
Appeal from the Court of Appeals for Medina County, No. 1999.
Appellants are the Beacon Journal Publishing Company, which publishes the Akron Beacon Journal, and one of the Journal‘s reporters, Christine Maly. Appellees are Jean Waters, the Clerk of the Medina County Court of Common Pleas, Phillip A. Baird and Judith A. Cross, the two judges of that court, and Dean Holman, the Medina County Prosecuting Attorney.
On March 20, 1991, appellant Maly requested access to subpoenas issued for grand jury proceedings being conducted that day and to a log known as the Grand Jury Witness Record Book. Appellee Waters refused access, citing an order of the appellee judges requiring the clerk to maintain secrecy regarding these two documents.
On the same date, appellee Holman asked Maly to leave the basement area of the Medina County Courthouse that the county restricts to participants and witnesses before grand jury proceedings. Maly complied with the request.
On March 26, 1991, appellants filed a complaint for a writ of mandamus in the Court of Appeals for Medina County, seeking to compel appellees to provide access to the subpoenas and the Grand Jury Witness Record Book under the state Public Records Act,
The cause is before the court upon an appeal as of right.
Roetzel & Andress, Ronald S. Kopp and Amie L. Bruggeman for appellants.
Per Curiam. Appellants appeal only that part of the decision concerning the grand jury subpoenas and the Grand Jury Witness Record Book. The parties argue three issues concerning the subpoenas and the witness book: (1) whether the documents are protected by grand jury secrecy under
I. Crim. R. 6(E)
“Secrecy of proceedings and disclosure. Deliberations of the grand jury and the vote of any grand juror shall not be disclosed. Disclosure of other matters occurring before the grand jury may be made to the prosecuting attorney for use in the performance of his duties. A grand juror, prosecuting attorney, interpretor, stenographer, operator of a recording device, or typist who transcribes recorded testimony, may disclose matters occurring before the grand jury, other than the deliberations of a grand jury or the vote of a grand juror, but may disclose such matters only when so directed by the court preliminary to or in connection with a judicial proceeding, or when permitted by the court at the request of the defendant upon a showing that grounds may exist for a motion to dismiss the indictment because of matters occurring before the grand jury.* * *”
The court of appeals decided that the records in question were exempt as “other matters occurring before the grand jury.”
In part,
”
R.C. 149.43(B) states that ‘[a]ll public records shall be * * * made available for inspection to any person * * *.’ As recognized in State ex rel. Natl. Broadcasting Co. v. Cleveland, supra [(1988), 38 Ohio St.3d 79, 526 N.E.2d 786],R.C. 149.43 ‘substantially broadened the common-law approach’to ‘citizen access to governmental information.’ Id. at 81, 526 N.E.2d at 788. As such, the right to access conferred by R.C. 149.43(B) is a substantive right. See Krause v. State (1972), 31 Ohio St.2d 132, 144-145, 60 O.O. 2d 100, 106-107, 285 N.E.2d 736, 744. Because the right to access is substantive, it cannot be abridged byCrim. R. 16 .Section 5(B), Article IV of the Ohio Constitution ; Krause v. State, supra, at paragraph five of the syllabus.”
In Clark, the respondents attempted to use
Therefore, we hold that the statement in Clark that seemed to preclude court rules from ever contradicting substantive statutes was overbroad. The
Providing the limits of grand jury secrecy is an element of “practice and procedure,” under
“The manner by which an accused is charged with a crime, whether by indictment * * * or by information * * *, is strictly a matter of procedure * * *.”
While we have not defined practice and procedure under
“All laws in conflict with such rules shall be of no further force or effect after such rules have taken effect.”
Thus, even if
Having held that
In Petition for Disclosure of Evidence (1980), 63 Ohio St. 2d 212, 17 O.O.3d 131, 407 N.E.2d 513, we held that the court that supervises a grand jury may disclose evidence where justice requires and prescribed a petition to that court as the proper means of obtaining release of materials (paragraphs one and two of the syllabus). We also stated the test for disclosing “other matters“:
“Such disclosure can be ordered only after the court carefully weighs the need to maintain the secrecy of the grand jury proceedings against petitioner‘s need for the information and determines that justice can only be done if disclosure is made.” Id. at 218, 17 O.O. 3d at 135, 407 N.E.2d at 518.
In State v. Greer (1981), 66 Ohio St.2d 139, 20 O.O. 3d 157, 420 N.E.2d 982, we held that disclosure is controlled by
Appellants argue that the court should not follow the precedent of the federal cases construing the former federal rule. However, the former federal rule was similar in content and structure to the current Ohio rule, and we have looked to federal decisions for guidance in this area:
“As a consequence we look to the United States Supreme Court‘s decisions regarding
Fed. R. Crim. P. 6(e) for guidance in the case at bar.” Petition for Disclosure of Evidence, supra, 63 Ohio St.2d at 216, 17 O.O. 3d at 134, 407 N.E.2d at 517.
Accordingly, we find the federal cases construing the former federal rule to be persuasive authority. An Indiana court of appeals has reached the same conclusion in a case involving Indiana‘s Public Records Act. See Pigman v. Evansville Press (Ind. App. 1989), 537 N.E.2d 547.
II. Confidential Law Enforcement Investigatory Records
The parties argued below - - and renew their arguments on appeal - - whether the witness documents are “confidential law enforcement investigatory records,” excepted from being public records under
III. The Medina County Court‘s Order
Notwithstanding the previously discussed bases for protecting the records in question, which came out in the litigation, the original basis for refusing to disclose the records was in fact the appellee judges’ local order, which stated:
“IN RE: GRAND JURY PROCEEDING.
“WHEREAS, it has come to the attention of the Court that the Grand Jury Witnesses’ Book Record is being used to circumvent the time honored secret nature of Grand Jury proceedings, and
“WHEREAS, the law requires that proceedings of the Grand Jury be forever kept secret and that Grand Jurors by law are required to take such an oath for the two-fold purpose
“(1) to protect the good name and reputation of those persons against whom unfounded accusations are made, and
“(2) so that those who are properly indicted do not have an opportunity to escape upon learning of the Grand Jury investigation
“and further, for the reason that witnesses appearing before the Grand Jury should have their identity protected so that they are not harmed or intimidated prior to giving their testimony.
“IT IS THEREFORE ORDERED, ADJUDGED AND DECREED, that the Clerk of this Court shall henceforth seal and keep secret Grand Jury Witnesses’ Book Record together with all Grand Jury Subpoenas which are issued by said Clerk.
“IT IS FURTHER ORDERED that the Sheriff of Medina County,
Ohio and all his deputies, clerks and other personnel who might have contact and knowledge of such subpoenas are also ordered to keep them secret as set forth above.”
Appellees argue that the appellee judges, who constitute the trial court with authority to supervise the grand jury in question, had inherent authority to declare the records confidential. They cite State ex rel. Shoop v. Mitrovich (1983), 4 Ohio St.3d 220, 4 OBR 575, 448 N.E.2d 800; State ex rel. Collins v. O‘Farrell (1991), 61 Ohio St.3d 142, 573 N.E.2d 113; and Petition for Disclosure of Evidence, supra. None of these cases stands for the principle of inherent authority. Shoop, for example, plainly states in its syllabus:
“The court of common pleas has jurisdiction to supervise aspects of the grand jury as enumerated in
R.C. 2939.01 et seq. andCrim. R. 6 * * *.” (Emphasis added.)
Collins discusses the common pleas court‘s authority as stemming from
Therefore, we hold that the appellee judges’ authority to adopt the order in question is subject to
Judgment affirmed.
Moyer, C.J., A.W. Sweeney and F.E. Sweeney, JJ., concur.
Resnick, J., concurs in judgment only.
Douglas, J., dissents with opinion.
Pfeifer, J., dissents.
Wright, J., not participating.
Alice Robie Resnick, J., concurring in judgment only. I respectfully disagree with the reasoning of the majority but concur in the judgment for the same reasons as those set forth in Pigman v. Evansville Press (Indiana App. 1989), 537 N.E.2d 547, 551 (“*** the importance of, and preference for, disclosure that is inherent in ‘Public Records’ enactments has given way to the preservation of the grand jury system and the concomitant necessity for secrecy attending the proceedings. The disclosure of grand jury subpoenas, revealing as they must the names of witnesses, targets, and the nature of the grand jury investigation[,] has been consistently disallowed, since subpoenas reveal the inner workings of the grand jury. Moreover, the interest in secrecy is not eliminated when an investigation has ended, because disclosure may affect the functioning of future grand juries, since witnesses may be reluctant to testify knowing that their identities may be disclosed at some future date.” [Footnote omitted.]). Indeed, for purely public-policy reasons the secrecy always attendant to grand jury proceedings must be preserved. Such secrecy, of necessity, must include the subpoenas, as well as the witness
If the public-policy argument advanced in cases such as Pigman were not so compelling, then I would join Justice Douglas in his dissenting opinion and agree that the matter must be remanded to the court of appeals for further consideration under
For the foregoing reasons I concur in judgment only, and vote to affirm the judgment of the court of appeals.
Douglas, J., dissenting. I respectfully dissent. I do not believe that procedural court rules (see
I write no further on these subjects because I do not believe they are even before us. The preliminary issue to be decided is the applicability of I concede, without further comment, the historical significance of grand jury “proceedings” being secret. As there are good reasons for the rule, I am in full accord. But that is not the issue here. The question before us is whether grand jury subpoenas and a Grand Jury Witness Record Book are public records and thus available to the public pursuant to The majority has set forth the pertinent language of Webster‘s Third New International Dictionary (1986) 1561, defines “occur” as to “take place: HAPPEN.” Webster‘s, supra, at 197, defines “before” as “in front of” or “in the presence of.” Thus, “occurring before” means something that takes place or happens in front of or in the presence of the grand jury. Given that the usual procedure for the issuing of grand jury subpoenas is that the prosecutor prepares the subpoena, gives it to the clerk for recording, who then gives it to the sheriff for service, it is clear that the subpoena is not something that “occurs before” the grand jury. Probably recognizing this fact, the majority says we should look, for authority, to how federal courts interpret “Sealed Records. Records, orders and subpoenas relating to grand jury proceedings shall be kept under seal to the extent and for such time as is necessary to prevent disclosure of matters occurring before a grand jury.” (Emphasis added.) The notes of the Advisory Committee on Criminal Rules, in commenting on this new provision, cite the report of the Comptroller General, (Oct. 16, 1980), More Guidance and Supervision Needed over Federal Grand Jury Proceedings 14, as follows: “‘Subpoenas are the fundamental documents used during a grand jury‘s investigation because through subpoenas, grand juries can require witnesses to testify and produce documentary evidence for their consideration. Subpoenas can identify witnesses, potential targets, and the nature of an investigation. Rule 6(e) does not provide specific guidance on whether a grand jury‘s subpoenas should be kept secret. Additionally, case law has not consistently stated whether the subpoenas are protected by rule 6(e). “‘District courts still have different opinions about whether grand jury subpoenas should be kept secret. Out of 40 Federal District Courts we contacted, 36 consider these documents to be secret. However, 4 districts do make them available to the public.‘” It is crystal clear that the United States Supreme Court What is sought by the underlying order of the court of common pleas and both the judgment of the court of appeals and the the majority herein in affirming that order is to ensure the secrecy of the records sought to be obtained by appellants. Such a result might be achieved by applying the “confidential law enforcement investigatory records” exception found in I would reverse the court of appeals in its judgment concerning the issue of other matters “occurring before” the grand jury. I would remand the case to the court of appeals for that court to consider appellees’ arguments concerning the exceptions found in Because the majority does not so direct, I respectfully -- but vigorously -- dissent.