THE STATE EX REL. BEACON JOURNAL PUBLISHING COMPANY ET AL., APPELLANTS AND CROSS-APPELLEES, v. MAURER, SHERIFF, APPELLEE AND CROSS-APPELLANT.
No. 00-457
Supreme Court of Ohio
February 14, 2001
91 Ohio St.3d 54 | 2001-Ohio-282 | 741 N.E.2d 511
Submitted December 13, 2000 — Decided February 14, 2001. APPEAL and CROSS-APPEAL from the Court of Appeals for Wayne County, No. 99-CA-0026.
{¶ 1} On February 28, 1999, Robert G. Huffman, who was despondent over his imminent arrest by the state of Michigan, the custody circumstances of his ten-year-old son, and Huffman’s inability to help him, telephoned the Wayne County Justice Center. Huffman told the dispatcher there that Huffman was at the Oak Grove Cemetery in Shreve, Ohio, waiting for the police to come and kill him. Wayne County deputy sheriffs and law enforcement officers from several municipalities converged on the cemetery. The officers talked with Huffman for about four hours; Huffman would not surrender. Then, several officers approached Huffman, and Huffman pointed his gun at the officers. One of the officers fired two shots at Huffman, killing him.
{¶ 2} A deputy sheriff reported Huffman’s shooting on an “Ohio Uniform Incident Report” form, listing Huffman as the victim and the “offense” as “sudden
{¶ 3} On March 4 and March 8, 1999, a representative of the Beacon Journal Publishing Company, appellant and cross-appellee, asked Wayne County Sheriff Thomas G. Maurer, appellee and cross-appellant, to release a copy of this incident report. On March 15, 1999, Marilyn Miller Roane, assistant metropolitan editor of the Akron Beacon Journal, appellant and cross-appellee, wrote a letter to Maurer, also requesting a copy of this report. On March 16, 1999, a Beacon Journal Publishing Company representative again asked the sheriff’s office for a copy of this report.
{¶ 4} Finally, on March 18, 1999, the sheriff submitted a copy of the incident report, including the typed narrative statements and witnesses’ statements, but with the names of law enforcement officers blacked out.1 Roane requested an unredacted copy, but Wayne County Prosecuting Attorney Martin Frantz advised Roane that the sheriff would release only the redacted copy of the incident report. Frantz explained that Maurer had blacked out the names so as not to disclose the identity of an uncharged suspect, the officer who shot Huffman. He also reasoned that disclosing the names of the other officers would allow the public to discover the identity of the uncharged suspect by comparing that day’s duty roster with the incident report. Frantz does not plan to indict anyone because of the shooting.
{¶ 6} The court of appeals treated the incident report and the typed narrative statements together as a confidential law enforcement investigatory record. The court did this apparently because the typed narrative statements provided a thorough description of the events leading to the death of Huffman; the court evidently linked the incident report form with the typed narrative statements. The court of appeals understood the report and typed narrative statements to identify the officer who shot Huffman2 and decided not to disclose the officer’s name under the uncharged-suspect exception. Thus, the court of appeals permitted Maurer to withhold this officer’s name but ordered Maurer to disclose the names of the other officers. The court also denied an award of attorney fees because Maurer had pursued reasonable legal theories in the case and had acted in good faith.
{¶ 7} This cause is now before the court upon an appeal and cross-appeal as of right.
{¶ 8} The Beacon Journal essentially argues that Maurer must immediately release this incident report without any redaction under State ex rel. Steckman v. Jackson (1994), 70 Ohio St.3d 420, 639 N.E.2d 83, paragraph five of the syllabus, and State ex rel. Cincinnati Enquirer v. Hamilton Cty. (1996), 75 Ohio St.3d 374, 662 N.E.2d 334. Maurer counters that incident reports on homicides are confidential law enforcement investigatory records. Maurer further maintains that
{¶ 9} Under
“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) ?”
{¶ 10} To decide this case, we must review
“ ‘Confidential law enforcement investigatory record’ means any record that pertains to a law enforcement matter of a criminal, quasi-criminal, civil, or administrative nature, but only to the extent that the release of the record would create a high probability of disclosure of any of the following:
“(a) The identity of a suspect who has not been charged with the offense to which the record pertains * * *;
“ * * *
“(c) Specific confidential investigatory techniques or procedures or specific investigatory work product.”
{¶ 11} We have stated that incident reports initiate criminal investigations but are not part of the investigation. State ex rel. Cincinnati Enquirer v. Hamilton Cty., 75 Ohio St.3d at 378, 662 N.E.2d at 337. Today, we hold that this report, including the typed narrative statements, is not a confidential law enforcement investigatory record but is a public record, and that its custodian, Maurer, must
{¶ 12} In Steckman, we reviewed the work-product exception contained in
{¶ 13} Three years later, in State ex rel. Logan Daily News v. Jones (1997), 78 Ohio St.3d 322, 323, 677 N.E.2d 1195, 1196, we again ruled that “incident reports requested by relator are not exempt from disclosure,” citing Steckman. Thus, the Beacon Journal was entitled to a writ of mandamus when Maurer refused to release this incident report, unredacted, immediately on the Beacon Journal’s request.
{¶ 14} In Cincinnati Enquirer, decided in 1996, we had ruled that 911 tapes, which record emergency calls received by 911 operators, were public records, so the public agencies receiving and recording them must release them immediately upon request. We stated, 75 Ohio St.3d at 378, 662 N.E.2d at 337, that “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
{¶ 15} We rule this way despite the risk that the report may disclose the identity of an uncharged suspect. A deputy incorporated the typed narrative statements by reference in the incident report. He consequently incorporated them in a public record. He cannot now remove the “public records cloak.” In Cincinnati Enquirer, we stated:
“[I]t does not matter that release of the tapes might reveal the identity of an uncharged suspect or contain information which, if disclosed, would endanger the life or physical safety of a witness. * * *
“ * * * Once clothed with the public records cloak, the records cannot be defrocked of their status.” 75 Ohio St.3d at 378, 662 N.E.2d at 337-338.
{¶ 16} Next, the Beacon Journal asks us to award it attorney fees. The court of appeals denied the award of attorney fees because, as the court reasoned, Maurer pursued reasonable legal theories and did not act in bad faith. We must decide whether the court of appeals abused its discretion in not awarding these fees. State ex rel. Olander v. French (1997), 79 Ohio St.3d 176, 178-179, 680 N.E.2d 962, 964.
{¶ 17} Awarding “attorney fees in public records cases is discretionary and is to be determined by the presence of a public benefit conferred by relator seeking the disclosure. Moreover, since the award is punitive, reasonableness and good faith of the respondent in refusing to make disclosure may also be considered.” State ex rel. Multimedia, Inc. v. Whalen (1990), 51 Ohio St.3d 99, 100, 554 N.E.2d 1321, 1322.
{¶ 18} Here, as in Whalen, we find a public benefit. The Beacon Journal publishes a newspaper and securing this record enables it to provide “complete and accurate news reports * * * to the public.” Id. at 100, 554 N.E.2d at 1322. Furthermore, our prior decisions have unequivocally held that incident reports are
{¶ 19} Accordingly, we reverse the decision of the court of appeals and remand this cause to it. We direct the court of appeals to issue a writ compelling Maurer to release an unredacted copy of the incident report and to determine the amount of attorney fees to award the Beacon Journal.
Judgment reversed and cause remanded.
MOYER, C.J., RESNICK, F.E. SWEENEY and PFEIFER, JJ., concur.
DOUGLAS, J., concurs in judgment.
COOK and LUNDBERG STRATTON, JJ., dissent.
COOK, J., dissenting.
{¶ 20} Because I would affirm the judgment of the court of appeals in every respect, I respectfully dissent.
{¶ 21}
{¶ 22} The majority decides that the incident report at issue here is a public record because it does not satisfy the first part of the definition. Relying on State ex rel. Cincinnati Enquirer v. Hamilton Cty. (1996), 75 Ohio St.3d 374, 662 N.E.2d 334, the majority states that the incident reports “initiate the criminal investigation [but] are not part of it.” Thus, the majority essentially decides that the incident report is not a record that pertains to a law enforcement matter of a criminal, quasi-criminal, civil, or administrative nature. I cannot agree.
{¶ 23} In Cincinnati Enquirer, we decided that 911 tapes were not confidential law enforcement investigatory records because they were not prepared by law enforcement officials or attorneys and were routinely recorded without any specific investigatory purpose. Id. at 378, 662 N.E.2d at 337. The same cannot be said of incident reports prepared by police officers.3 An officer generates an incident report only after some initial investigation, such as visiting an accident or crime scene and speaking to witnesses. To conclude that the incident reports prepared by police “are not part of” an investigation ignores the fact that the substance of the report is a product of an officer’s investigatory work. I would therefore conclude that the incident report satisfies the first prong of the definition of “confidential law enforcement investigatory record.”4
{¶ 25} Although the Wayne County Prosecutor has decided not to charge anyone in the Huffman shooting, this decision does not affect the applicability of the exemption. Thompson Newspapers, 47 Ohio St.3d 28, at paragraph two of the syllabus; see, also, State ex rel. Polovischak v. Mayfield (1990), 50 Ohio St.3d 51, 552 N.E.2d 635, syllabus. “[T]he statute does not limit the exemption to ‘current’ suspects or require an active, ongoing investigation. Nor does the statute express the concept that the passage of time or the lack of follow-up prosecution erodes that statutory protection.” Moreland, 67 Ohio St.3d at 130-131, 616 N.E.2d at 236.
{¶ 27} I recognize that the public records statute should be liberally construed in favor of broad access, with any doubt resolved in favor of disclosure. See Cincinnati Enquirer, 75 Ohio St.3d at 376, 662 N.E.2d at 336. But this court’s decisions interpreting
LUNDBERG STRATTON, J., concurs in the foregoing dissenting opinion.
Roetzel & Andress, Ronald S. Kopp and Stephen W. Funk, for appellants and cross-appellees.
Eugene P. Nevada, for appellee and cross-appellant.