STATE OF OHIO, EX REL. THE CINCINNATI ENQUIRER, Relator, v. PIKE COUNTY GENERAL HEALTH DISTRICT, ET AL., Respondents.
Case No. 16CA873
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT PIKE COUNTY
RELEASED: 3/17/2017
2017-Ohio-1084
John C. Greiner and Darren W. Ford, Graydon Head & Ritchey, LLP, Cincinnati, Ohio, for relator.
Michael DeWine, Ohio Attorney General, and Sarah E. Pierce and Ryan L. Richardson, Assistant Attorneys General, Columbus, Ohio, for respondents.
Michael H. Carpenter and Caitlin E. Vetter, Carpenter Lipps & Leland, LLP, Columbus, Ohio, urging denial of the writ for amicus curiae Ohio State Coroners Association.
McGrath, J.
{¶1} Relator, The Cincinnati Enquirer, a division of Gannett Satellite Information Network, Inc. (“Enquirer“), seeks extraordinary relief in mandamus to compel the Pike County General Health District (“health district“) and the Pike County Coroner (“coroner“) to make the coroner‘s preliminary autopsy and investigative notes and findings regarding certain homicides available for inspection under the journalist exception in
{¶2} First, because the requested records are not public records, as the Enquirer acknowledges, this case is governed by
{¶3} Second, the Enquirer is not entitled to the requested extraordinary relief against the health district because
{¶4} Third, we reject the Enquirer‘s claim that the journalist exception applies to make a coroner‘s preliminary autopsy and investigative notes and findings subject to inspection by a journalist regardless of whether those records also contain records of a deceased individual that are confidential law enforcement investigatory records. The plain language of
{¶5} Fourth, upon review of the unredacted requested records submitted by the coroner under seal, we agree with the coroner that the redactions to his preliminary autopsy and investigative notes and findings constitute confidential law enforcement investigatory records that are not subject to inspection by the Enquirer under
{¶6} Finally, because we have denied the requested extraordinary relief in mandamus and the Enquirer does not argue in its merit briefs that it is entitled to an award of statutory damages and attorney fees, we deny its request for this additional relief as well.
I. FACTS
A. Coroner‘s Duties
{¶8} Dr. Kessler is not a pathologist so he does not personally perform autopsies or related testing. Instead, the Pike County Coroner contracts with the Hamilton County Coroner to provide autopsy services. Having an experienced pathologist perform the autopsy ensures consistency and reliability of results.
{¶9} On those occasions in which he examines deaths in which foul play is suspected, Dr. Kessler works very closely with law enforcement to investigate and obtain
{¶10} A preliminary autopsy is generally conducted within 24 hours. The pathologist conducts a physical examination of the body and takes blood and other samples for further testing. The preliminary autopsy report contains at least an initial impression of the cause of death. Final autopsy reports incorporate the full details of the physical examination and laboratory testing. According to Bureau of Criminal Investigation (“BCI“) Special Agent Michael D. Trout, preliminary autopsy reports are important to investigators because they provide critical information about the cause and manner of death, the number of injuries, and specific details about those injuries.
{¶11} Once Dr. Kessler orders an autopsy, he notes on the death certificate that the case is pending investigation, which allows the deceased individual to be laid to rest.
B. The Homicides
{¶12} In April 2016, Hannah Gilley, Christopher Rhoden Jr., Christopher Rhoden Sr., Clarence Rhoden, Dana Rhoden, Gary Rhoden, Hanna Rhoden and Kenneth Rhoden were murdered in their homes in Pike County. Dr. Kessler met with BCI investigators to coordinate the examination of the four separate crime scenes. He quickly determined that the manner and cause of death of each victim was homicide by gunshot wound, but ordered autopsies to assist the law enforcement investigation. The bodies
{¶13} Dr. Kessler reviewed the preliminary and final autopsy reports for each of the eight victims and noted the manner and cause of death for each of them.
C. Requests for Records and Responses
{¶14} On May 16, 2016, Kevin Grasha, a reporter for the Cincinnati Enquirer, sent an e-mail to Linda Murphy of the Pike County General Health District requesting under
{¶15} On May 24, 2016, Grasha sent a follow-up e-mail request to Murphy after he had not received a response to his public-records request.
{¶16} By letter dated May 25, 2016, Pike County Prosecuting Attorney Robert Junk, on behalf of Murphy and the Pike County General Health District, denied Grasha‘s request. Junk reasoned that based on precedent by the Supreme Court of Ohio (State ex rel. Dayton Newspapers, Inc. v. Rauch, 12 Ohio St.3d 100, 465 N.E.2d 458 (1984), and State ex rel. Williams v. Cleveland, 64 Ohio St.3d 544, 597 N.E.2d 147 (1992)), the contents of a county coroner‘s autopsy reports on homicide victims are exempt from disclosure as specific investigatory work product, trial preparation records, and confidential law enforcement investigatory material:
In this case, (8) members of the same extended family were killed at four (4) geographically distinct locations in a short span of time. The killings and killer(s) escaped initial detection, and the killer(s) are still at large. For the killing of such a large group of people to go initially undetected is a very rare occurrence in this country. A massive investigation is ongoing into these murders.
The public already knows the name, age and manner of death of our victims. To allow access to initial technical and graphic details such as the anatomical location of the wounds and the size of the wounds would serve no public interest. Rather, access to such information by those not involved in the investigation would hinder the public‘s right to have a full and complete investigation. Disclosure of such information would alert the killer(s) to what information law enforcement possesses. It would also make it virtually impossible for investigators to use these details to sort out false confessions and false claims made by any person of interest about this type of information.
Our primary, and only, interest in this matter is investigating and prosecuting the individual or individuals who perpetrated these murders. The release of the preliminary autopsy reports is not in the public interest. The public interest is best served by maintaining the integrity of the investigation into these homicides.
{¶17} On May 26, 2016, Grasha sent an e-mail to Prosecuting Attorney Junk, with a copy to Murphy, acknowledging the prosecutor‘s denial of his request to view the preliminary autopsy reports, identifying himself as a journalist employed by the Enquirer, listing the Enquirer‘s address, and specifying that granting his request was in the best interests of the public. This time, Grasha specified that he was requesting the records under the journalist exception in
{¶18} By letter dated June 9, 2016, attorney John C. Greiner, on behalf of the Cincinnati Enquirer, further responded to the prosecuting attorney that the cases he had cited were “superseded by a later enacted provision – 313.10 – of the Ohio Revised Code” and that “[t]he specific provision set out at
{¶19} By e-mail to Prosecuting Attorney Junk on June 28, 2016, attorney Greiner claimed that he had not received a response to his letter. On June 29, 2016, the prosecutor responded that his answer was still no.
{¶20} By e-mail to Prosecuting Attorney Junk dated June 30, 2016, attorney Greiner quoted
{¶21} Finally, by e-mail dated July 12, 2016, attorney Greiner asked Prosecuting Attorney Junk whether he was acting as legal representative for the Pike County Coroner because he needed to know for a mandamus action whether he needed to make a separate records request of the coroner to view the preliminary autopsy report prior to making the coroner a party: “If you are willing to stipulate that your communications thus far are in your role as the legal representative of the coroner, such that a separate request, prior to filing a mandamus action, is not necessary I would like to know that.” By e-mail dated July 15, 2016, the prosecutor acknowledged, “I represent the coroner.”
D. Mandamus Case
{¶22} On July 21, 2016, relator, the Enquirer, filed a complaint in the Pike County Court of Appeals for a writ of mandamus to compel respondents, the health district and the coroner, to make available for inspection the requested preliminary autopsy and investigative notes and findings related to the eight homicides of the Rhoden family and Gilley. The Enquirer claimed a right to inspect the requested records under
{¶23} In September 2016, just before the parties’ evidence was submitted, the coroner made redacted copies of the preliminary and final autopsy reports for the eight homicide victims publicly available. The unredacted portions of the preliminary autopsy reports made available to the public, including media outlets, noted the cause of death of the victims, i.e., “[m]ultiple gunshot wounds to the head” for six of the victims, “[s]ingle gunshot wound to the head” for one of the victims, and “[m]ultiple gunshot wounds to the head, torso and extremity” for the remaining victim.
{¶24} The parties submitted evidence and briefs pursuant to Loc.App.R. 16. In addition, we granted leave for the Ohio State Coroners Association to file an amicus curiae brief in support of respondents.1
{¶25} In February 2017, after hearing oral argument, we ordered respondents to submit an unredacted version of the requested preliminary autopsy reports under seal so we could assess respondents’ claim that the records are excepted from disclosure. See State ex rel. Lanham v. DeWine, 135 Ohio St.3d 191, 2013-Ohio-199, 985 N.E.2d 467, ¶ 22 (“the court has consistently required an in camera inspection of records before determining whether the records are excepted from disclosure“). Respondents have submitted an unredacted version of the requested preliminary autopsy reports under seal.
{¶26} This cause is now before the court for our determination on the merits.
II. LAW AND ANALYSIS
A. Mandamus-General Requirements
{¶27} In its complaint, the Enquirer sought the requested preliminary autopsy reports from two different respondents—the health district and the coroner—based on two different statutes—
{¶28} Ordinarily in a claim for public records, “[m]andamus is the appropriate remedy to compel compliance with
{¶29} To be certain, “[e]xcept as otherwise provided” in
{¶30} Nevertheless, the requested records at issue in this case—preliminary autopsy reports—are not public records. See
{¶31} And although the Enquirer invokes the journalist exception in
{¶32} Therefore, we conclude that the Enquirer‘s claim is governed by
{¶33} The Enquirer lacks an adequate remedy in the ordinary course of law to compel respondents to comply with the journalist exception of
{¶34} Therefore, the dispositive issue in this case is whether the Enquirer has established a clear legal right to view the requested preliminary autopsy reports under the
B. The Health District is not an Appropriate Respondent
{¶35} The Enquirer seeks the writ of mandamus against the health district and the coroner based on the journalist exception in
A journalist may submit to the coroner a written request to view preliminary autopsy and investigative notes and findings, suicide notes, or photographs of the decedent made by the coroner or by anyone acting under the coroner‘s discretion or supervision. The request shall include the journalist‘s name and title and the name and address of the journalist‘s employer and state that the granting of the request would be in the best interest of the public. If a journalist submits a written request to the coroner to view the records described in this division, the coroner shall grant the journalist‘s request. The journalist shall not copy the preliminary autopsy and investigative notes and findings, suicide notes, or photographs of the decedent.
{¶36} The Enquirer is not entitled to a writ of mandamus to compel the health district to provide it with the opportunity to view the preliminary autopsy and investigative notes and findings.
C. R.C. 149.43 and 313.10: Precedent and Legislative Action
{¶37} The Enquirer seeks the requested records based on
{¶38} To better understand the Enquirer‘s claim, we consider the historical backdrop of public access to autopsy reports. In 1984, the Dayton Daily News instituted an action in the Supreme Court of Ohio for a writ of mandamus to compel the Hocking County Coroner to release copies of his autopsy records and reports on two homicide victims. Like the Enquirer in this case, the Dayton Daily News claimed entitlement to the autopsy reports based on
{¶39} In so holding, the Supreme Court rejected the newspaper‘s argument that
{¶40} Eight years later, in 1992, the Supreme Court of Ohio reaffirmed its holding in Rauch that autopsy reports of homicide victims are exempt from disclosure as confidential law enforcement investigatory records. State ex rel. Williams v. Cleveland, 64 Ohio St.3d 544, 547-548, 597 N.E.2d 147 (1992). In his responses to the Enquirer‘s request for the preliminary autopsy reports at issue here, the coroner cited Rauch and Williams and suggested that they remain the applicable precedent.
{¶41} However, in 2006, the General Assembly amended
{¶42} Because
{¶43} Nevertheless, as respondents and amicus curiae aptly assert,2 this does not end the inquiry because in 2008, the General Assembly amended
(a) Preliminary autopsy and investigative notes and findings made by the coroner or by anyone acting under the coroner‘s direction or supervision;
(b) Photographs of a decedent made by the coroner or by anyone acting under the coroner‘s direction or supervision;
(c) Suicide notes;
(d) Medical and psychiatric records provided to the coroner, a deputy coroner, or a representative of the coroner or a deputy coroner under section
313.091 of the Revised Code;(e) Records of a deceased individual that are confidential law enforcement investigatory records as defined in section
149.43 of the Revised Code;(f) Laboratory reports generated from the analysis of physical evidence by the coroner‘s laboratory that is discoverable under Criminal Rule 16. in a coroner‘s office are not public records.
(Emphasis added.)
D. Confidential Law Enforcement Investigatory Records are not Subject to Disclosure under the Journalist Exception in R.C. 313.10(D)
{¶44} The Enquirer claims that it is entitled to view the requested preliminary autopsy reports under the journalist exception of
{¶45} The Enquirer argues that the plain language of
{¶46} “When a court interprets the meaning of a statute, ‘[w]ords and phrases shall be read in context and construed according to the rules of grammar and common
{¶47}
{¶48} “[U]nder the general rule of statutory construction, expressio unius est exclusio alterius, ‘the expression of one or more items of class implies that those not identified are to be excluded.’ ” State ex rel. Salim v. Ayed, 141 Ohio St.3d 129, 2014-
{¶49} Moreover, when the General Assembly has intended that all of the types of records deemed nonpublic by
{¶50} Finally, we are not persuaded that “[p]reliminary autopsy and investigative notes and findings made by the coroner or by anyone acting under the coroner‘s direction or supervision” and “[r]ecords of a deceased individual that are confidential law enforcement investigatory records as defined in section
{¶51} Therefore, based on the plain language of the pertinent provisions of
E. Inspecting the Requested Records to Determine if they are Confidential Law Enforcement Investigatory Records
{¶52}
{¶53} “For this exception to apply, respondents must therefore establish that each of the withheld [records] ‘pertains to a law enforcement matter of a criminal, quasi-criminal, civil, or administrative nature’ and that its release would create a high probability of disclosure of * * * specific work product.” State ex rel. Cincinnati Enquirer v. Ohio Dept. of Pub. Safety, __ Ohio St.3d __, 2016-Ohio-7987, __ N.E.3d __, ¶ 38, quoting
{¶54} Respondents have established that the withheld, redacted portions of the requested preliminary autopsy reports regarding the Rhoden/Gilley homicides pertain to a law enforcement matter of a criminal nature. Dr. Kessler stated in an affidavit that he ordered the autopsies “to assist the law enforcement investigation.” (Resp. Ev., Kessler Aff., ¶ 19) This is consistent with judicial recognition that “[a] coroner‘s forensic examination is a classic function of the police power of the state,” and “[m]any times, autopsy specimens and the results of the forensic examination are essential evidence in the prosecution of a crime.” Albrecht, 118 Ohio St.3d 348, 2008-Ohio-2617, 889 N.E.2d 120, at ¶ 29.
{¶55} Respondents have also established that the release of the redacted portions of the requested records would create a high probability of disclosure of specific work product. Dr. Kessler states in an affidavit that the information in the requested preliminary autopsy reports “reflect the type of specific information used by law enforcement to investigate a homicide.” In his supplemental affidavit, Dr. Kessler specified that “[t]he redactions protect information that, if released, would jeopardize and impede the active investigation into these individuals’ deaths.” (Resp. Ev., Kessler Supp. Aff., ¶ 4)
{¶56} According to BCI special agent Trout, preliminary autopsy reports “are very important to investigators as they provide critical information about the cause and manner of death, the number of injuries, and specific details about those injuries,” and for gunshot wounds, “the preliminary autopsy reports might indicate the trajectory of the bullets, the type of bullets or weapon used, the proximity to the victim(s) when the shots were fired.” Investigators use the information in preliminary autopsy reports to: (1) narrow the list of suspects; (2) rule in or out persons of interest; (3) recreate the scenario that led to the death of the victim; and (4) determine the credibility of someone claiming responsibility for the crime. Trout claims that providing details of autopsy reports to the public significantly complicates the investigation and the ability of investigators to assess the credibility of information they receive from witnesses and suspects and can hinder investigations by wasting resources. Trout has reviewed the redacted and unredacted copies of the preliminary autopsy reports relating to each of the victims and determined that the redactions relate to investigative facts known only to the investigators of the crimes and the perpetrators of them. He notes that “[t]his information includes the location and description of injuries; body decomposition at the time of autopsy; whether forensic evidence was captured; and other details about these victims that are not generally known to the public.”
{¶57} Our own review of the redacted portions of the requested preliminary autopsy reports confirms the description of them by respondents’ evidence. We conclude that they have properly withheld these parts of the records because they constitute confidential law enforcement investigatory records of the eight deceased homicide victims. This result comports with the Supreme Court‘s traditional view that “[t]he autopsy
{¶58} Therefore, we deny the Enquirer‘s requested extraordinary relief in mandamus against the coroner.
F. Request for Statutory Damages and Attorney Fees
{¶59} In its complaint, the Enquirer also requested statutory damages under
III. CONCLUSION
{¶60} The Enquirer has established neither a clear legal right to view the requested preliminary autopsy reports by the coroner concerning the Rhoden/Gilley homicides nor a clear legal duty on the part of the coroner or the health district to provide it with the opportunity to view them under the journalist exception of
Brogan, J.* & Handwork, J.** Concur in Judgment and Opinion.
WRIT DENIED.
FOR THE COURT
Patrick M. McGrath***
Judge
NOTICE
This document constitutes a final judgment entry and the time period for appeal commences from the date of filing with the clerk.
Pursuant to Civ.R. 58(B), the clerk is ORDERED to serve notice of the judgment and its date of entry upon the journal on all parties who are not in default for failure to appear. Within three (3) days after journalization of this entry, the clerk is required to serve notice of the judgment pursuant to Civ.R. 5(B), and shall note the service in the appearance docket.
* James A. Brogan, retired judge of the Second Appellate District, sitting by assignment of The Supreme Court of Ohio in the Fourth Appellate District.
** Peter M. Handwork, retired judge of the Sixth Appellate District, sitting by assignment of The Supreme Court of Ohio in the Fourth Appellate District.
*** Patrick M. McGrath, retired judge of the Tenth Appellant District, sitting by assignment of The Supreme Court of Ohio in the Fourth Appellate District.