THE STATE EX REL. CINCINNATI ENQUIRER v. PIKE COUNTY CORONER‘S OFFICE
Nos. 2016-1115 and 2016-1153
SUPREME COURT OF OHIO
December 14, 2017
Slip Opinion No. 2017-Ohio-8988
Submitted July 11, 2017
NOTICE
This slip opinion is subject to formal revision before it is published in an advance sheet of the Ohio Official Reports. Readers are requested to promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65 South Front Street, Columbus, Ohio 43215, of any typographical or other formal errors in the opinion, in order that corrections may be made before the opinion is published.
SLIP OPINION NO. 2017-OHIO-8988
THE STATE EX REL. CINCINNATI ENQUIRER v. PIKE COUNTY CORONER‘S OFFICE.
THE STATE EX REL. GATEHOUSE MEDIA OHIO HOLDINGS II, INC., D.B.A. COLUMBUS DISPATCH, ET AL. v. PIKE COUNTY CORONER‘S OFFICE ET AL.
[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State ex rel. Cincinnati Enquirer v. Pike Cty. Coroner‘s Office, Slip Opinion No. 2017-Ohio-8988.]
Mandamus—Coroner‘s records—
(Nos. 2016-1115 and 2016-1153—Submitted July 11, 2017—Decided December 14, 2017.)
O‘CONNOR, C.J.
{¶ 1} In these related original actions, relators, Cincinnati Enquirer (“the Enquirer“) and GateHouse Media Ohio Holdings II, Inc., d.b.a. Columbus Dispatch, and reporter Holly R. Zachariah (collectively, “the Dispatch“), filed complaints seeking a writ of mandamus to compel the release of unredacted reports on the autopsies of eight members of the Rhoden and Gilley families who were murdered in Pike County in April 2016. Separately, the Enquirer moved for oral argument and the Dispatch moved to compel access to the unredacted autopsy reports filed under seal with this court. And the Dispatch and the Enquirer both seek an award of attorney fees and statutory damages for what they characterize as the untimely production of the redacted autopsy reports. We deny the writ, the motions, and the requests for attorney fees and statutory damages.
I. FACTS AND PROCEDURAL HISTORY
{¶ 2} On April 22, 2016, eight people were found deceased in Pike County, Ohio, all of whom were members of the Rhoden or Gilley families. Over the next two days, the chief deputy coroner of Hamilton County conducted autopsies on the decedents. Respondent Pike County Coroner‘s Office (“PCCO“) received the final autopsy reports on July 22, 2016.
{¶ 3} The Dispatch made a verbal request to PCCO and respondent David Kessler, M.D., the Pike County coroner, to inspect the final autopsy reports, pursuant to
{¶ 4} On July 26, 2016, the Dispatch then e-mailed a public-records request for the final autopsy reports to PCCO and the attorney general, again citing
{¶ 6} On July 29, 2016, the Enquirer filed in this court an original action against PCCO seeking a writ of mandamus to compel release of the final autopsy reports. On August 8, 2016, the Dispatch filed a separate original action in this court seeking the same relief. Both suits were filed before Dr. Kessler and the attorney general‘s office released redacted copies of the eight final autopsy reports on September 23, 2016. The unredacted final autopsy reports have not been released.
{¶ 7} After unsuccessful mediation attempts, PCCO moved to dismiss both actions. On February 22, 2017, we unanimously denied the motions to dismiss and granted alternative writs of mandamus directing the parties to submit evidentiary materials and merit briefs. 148 Ohio St.3d 1406, 2017-Ohio-573, 69 N.E.3d 747.
{¶ 8} Before the parties submitted their briefs, PCCO moved to submit unredacted copies of the autopsy reports and explanatory materials under seal for this court‘s in camera inspection. We granted the motion in part, permitting the unredacted autopsy reports to be filed under seal but without additional explanatory materials. 148 Ohio St.3d 1440, 2017-Ohio-1427, 72 N.E.3d 655. PCCO filed the unredacted autopsy reports under seal on May 3, 2017. The next day, the Dispatch moved to compel access to the sealed autopsy reports. On April 11, 2017, the Enquirer filed an unopposed request for oral argument.
II. ANALYSIS
A. Request for oral argument
{¶ 9} We have discretion to determine whether an original action merits oral argument. S.Ct.Prac.R. 17.02(A). In exercising that discretion, we consider
{¶ 10} This case involves a matter of great public importance: whether autopsy reports in open homicide investigations are public records and therefore available for public inspection. However, the remaining factors are not present. The case presents no constitutional question or division among the intermediate appellate courts, the relevant facts are few and uncontested, and the legal questions in the case are all matters of statutory interpretation that the parties have extensively briefed. Accordingly, we deny the Enquirer‘s request for oral argument.
B. Motion to compel access
{¶ 11} We have consistently required in camera inspection of requested documents before determining whether they are exempt from disclosure under the Public Records Act,
If the court were to require the disclosure of the subject records in discovery to permit relator to contest the applicability of a claimed exception, it would render the case moot. And [relator] can still contest the applicability of a claimed exception by challenging the validity of unsealed evidence that the public-records custodian submits to support its reliance on the exception. * * * Thus, due process does not prevent the court‘s consideration of the pertinent records submitted under seal for in camera review.
C. The public-records mandamus petitions
1. Overview
{¶ 12} After conducting an autopsy, the coroner, deputy coroner, or pathologist must file in the coroner‘s office a detailed written report describing the observations made during the autopsy and the conclusions drawn therefrom.
{¶ 13} But
{¶ 14} The Dispatch and the Enquirer argue that as a matter of statutory construction, final autopsy reports can never qualify as CLEIR. And even assuming that the CLEIR exception can apply to some autopsy reports, the newspapers deny that any information contained in the Rhoden and Gilley reports actually satisfies the exception. This latter claim requires us to review the specific information that PCCO redacted from the autopsy reports submitted under seal.
2. Standard of review
{¶ 15} Mandamus is the appropriate remedy by which to compel compliance with the Public Records Act. State ex rel. Physicians Comm. for Responsible Medicine v. Ohio State Univ. Bd. of Trustees, 108 Ohio St.3d 288, 2006-Ohio-903, 843 N.E.2d 174, ¶ 6. The Public Records Act “is construed liberally in favor of broad access, and any doubt is resolved in favor of disclosure of public records.” State ex rel. Cincinnati Enquirer v. Hamilton Cty., 75 Ohio St.3d 374, 376, 662 N.E.2d 334 (1996). Exceptions to disclosure under the act are strictly construed against the record‘s custodian, who has the burden to establish the applicability of any claimed exception. State ex rel. Cincinnati Enquirer v. Jones-Kelley, 118 Ohio St.3d 81, 2008-Ohio-1770, 886 N.E.2d 206, ¶ 10.
3. Analysis
{¶ 16} Under the Public Records Act, “[c]onfidential law enforcement investigatory records” are exempt from disclosure.
a. Records of a deceased individual
{¶ 17} We first determine whether autopsy reports qualify as “[r]ecords of a deceased individual” pursuant to
{¶ 18} The Enquirer‘s definition is unpersuasive. Notably, the newspapers argue that documents must be prepared by law enforcement in order to qualify as CLEIR. But if that were correct, then such documents could never simultaneously be “[r]ecords of a deceased individual” as the Enquirer wishes to define the phrase. In other words, no document could ever satisfy the
{¶ 19} Unsurprisingly, the Enquirer offers no support for its claim that “[r]ecords of a deceased individual” includes only documents possessed by the deceased and created prior to death. And the Enquirer‘s statutory argument relies
{¶ 20} But the Enquirer oversimplifies the Revised Code‘s use of the preposition.
{¶ 21} Apparently recognizing the flaw in its narrow construction of the word “of,” the Enquirer implies that the phrase “[r]ecords of a deceased individual” may be ambiguous. It is our practice to resolve any doubts concerning the interpretation of the Public Records Act in favor of disclosure. State ex rel. Glasgow v. Jones, 119 Ohio St.3d 391, 2008-Ohio-4788, 894 N.E.2d 686, ¶ 13. When statutory language is ambiguous, it is appropriate to consider the legislative history. But there, too, the Enquirer‘s argument is undermined. In 2009, when the General Assembly amended
“[l]aboratory reports generated from the analysis of physical evidence by the coroner‘s laboratory that is discoverable under Criminal Rule 16.” 2008 Sub.H.B. No. 471. It is logical to conclude that if laboratory reports about the decedent constitute the “records of a decedent” referred to in the preamble, then so too would the decedent‘s autopsy report.
{¶ 22} The newspapers’ second statutory argument is vulnerable to the same objection as the first: it is not apparent what records, if any, would remain subject to the
[A]ny personal effects or other items found on a body or in possession of the deceased at the time of death are ultimately collected, bagged, and kept by law enforcement as evidence. The coroner generally does not keep these types of items and the coroner generally does not collect and take evidence at the crime scene, other than the victim‘s body.
We must presume that the language chosen by the General Assembly was intended to be effective. Thus, we decline to adopt the newspapers’ interpretation of “[r]ecords of a deceased individual.”
{¶ 23} We hold that an autopsy report is a “[r]ecord[] of a deceased individual” within the meaning of
{¶ 24} The Public Records Act defines “confidential law enforcement investigatory record[s]” as including
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:
* * *
(c) Specific confidential investigatory techniques or procedures or specific investigatory work product.
{¶ 25} PCCO argues that the Rhoden and Gilley autopsy reports constitute “specific investigatory work product” as we defined the term in State ex rel. Dayton Newspapers, Inc. v. Rauch, 12 Ohio St.3d 100, 465 N.E.2d 458 (1984). The facts of Rauch are nearly identical to those presented herein: the Hocking County coroner, Dr. John Rauch, denied a public-records request from the Dayton Daily News for final autopsy reports on two homicide victims. At the time, the coroner‘s-records statute,
{¶ 27} The Dayton Daily News argued that the case should be decided under
{¶ 28} In the second part of the opinion, we rejected the premise of the newspaper‘s argument and concluded that an autopsy report was not a “record of the coroner” under former
The coroner shall keep a complete record of and shall fill in the cause of death on the death certificate, in all cases coming under his jurisdiction. * * * Such records shall be properly indexed, and shall state the name, if known, of every deceased person * * * the place where the body was found, date of death, cause of death, and
all other available information. The report of the coroner and the detailed findings of the autopsy shall be attached to the report of each case.
Am.H.B. No. 750, 136 Ohio Laws, Part II, 2976. We construed this section to mean that an autopsy report was “an item separate from the other information the coroner is required to keep as a public record” and therefore was not subject to disclosure in the same manner. Rauch, 12 Ohio St.3d at 101, 465 N.E.2d 458.
{¶ 29} We definitively held in Rauch that information in some autopsy reports can be critical to an ongoing homicide investigation and therefore exempt from disclosure as CLEIR. The Dispatch and the Enquirer vigorously contend that Rauch has been superseded by subsequent amendments to
{¶ 30} The General Assembly has amended the coroner‘s-records statute,
{¶ 32} Thus, the General Assembly, through the addition of
{¶ 33} Whether a document satisfies the CLEIR exception is determined by a two-part test: (1) whether the record is a confidential law-enforcement record and (2) whether release of the record would create a high probability of disclosure of any one of the statutorily enumerated types of information that is exempt from public disclosure. See State ex rel. Musial v. N. Olmsted, 106 Ohio St.3d 459, 2005-Ohio-5521, 835 N.E.2d 1243, ¶ 18-19. (Although the first dissenting opinion argues that we invented this two-part test in State ex rel. Steckman v. Jackson, 70 Ohio St.3d 420, 639 N.E.2d 83 (1994), it dates back to at least State ex rel. Polovischak v. Mayfield, 50 Ohio St.3d 51, 52, 552 N.E.2d 635 (1990). See State ex rel. Beacon Journal Publishing Co. v. Maurer, 91 Ohio St.3d 54, 56, 741 N.E.2d 511 (2001), citing Polovischak at 52.) Of the types of protected CLEIR, PCCO asserts that the Rhoden and Gilley autopsy reports contain “[s]pecific confidential investigatory techniques or procedures or specific investigatory work product,”
{¶ 34} The Dispatch and the Enquirer argue that final autopsy reports can never reveal specific investigatory work product because the coroner is not a law-enforcement official. This argument is unavailing. In attempting to support this
{¶ 35} Indeed, the relevance of Steckman to this case is limited, at best. In Steckman, we specifically addressed “the use (and attempted use) of
{¶ 36} Although Steckman construed the CLEIR exception as it pertains specifically to records sought from law-enforcement agencies and prosecutors’ offices, the Public Records Act defines CLEIR as any “record[s] that pertain[] to a law enforcement matter.” (Emphasis added.)
{¶ 37} Indeed, if the only records that qualify as CLEIR are those prepared by law enforcement, then
{¶ 38} And there is no doubt that the nature of the coroner‘s work in a homicide-related autopsy is investigative and pertains to law enforcement. The General Assembly has recognized that a coroner plays an integral role in law-enforcement investigations. For instance, to determine the cause of death, the coroner may issue subpoenas for witnesses, administer the witness oath, and inquire of witnesses how a death occurred.
{¶ 39} As part of the coroner‘s efforts to determine whether the law was violated, the coroner may gather evidence and submit it to BCI as part of the investigation.
{¶ 40} Here, the unredacted portions of the autopsy reports contain substantial information, including the cause of death for each victim, general information about injuries, and observations about the victims’ bodies including detailed descriptions of various organs. Among the redacted information are specific facts about gunshot wounds including the path and trajectory of bullets, specific identifying information such as scars or tattoos, descriptions of body placement, and toxicology results. The investigation into the deaths of these victims is ongoing.
{¶ 42} Special Agent Trout described how the information contained in the Rhoden and Gilley autopsy reports can be used by law enforcement. According to Special Agent Trout, “[d]ecomposition can tell investigators many things such as time of death, conditions that the body was subjected to after death, and the time elapsed between death and autopsy.” And “information from the coroner about the victims’ wounds can give investigators a lot of details about how the crimes were committed and what was happening in the scene as the shots were fired. Other than the investigative team, only the perpetrator(s) of the crimes knows these details.” Other redacted information “can potentially tell investigators what kind of gun and ammunition was used, other details about the perpetrator or the scene of death, and results of toxicology or other forensic information.” “Information from final autopsy reports can also be used to triage tips.” Investigators can compare autopsy information to that provided by alleged witnesses to evaluate their credibility. And Special Agent Trout advised that “[w]hen critical pieces of information are readily available in the media/public, it can be almost impossible to determine if a person is speaking from actual personal knowledge or just regurgitating what they have seen in the news or on social media.”
{¶ 44} Applying the standard we set forth in Rauch, we conclude that the redactions to the final Rhoden and Gilley autopsy reports were made to protect records of the deceased that are CLEIR. Therefore, the information is exempt from public disclosure pursuant to the CLEIR exception while the investigation is ongoing. Accordingly, the Rhoden and Gilley reports satisfy both elements of the exception to disclosure under the coroner‘s-records statute.
c. The Confrontation Clause
{¶ 45} The Enquirer argues that interpreting the CLEIR exception,
{¶ 46} The Confrontation Clause of the Sixth Amendment to the United States Constitution prohibits the admission of “testimonial statements” of a witness
{¶ 47} The Enquirer essentially argues that if we conclude that autopsy reports qualify as CLEIR—and therefore that they are prepared for the primary purpose of accusing a targeted individual or to provide evidence at a criminal trial—then they cannot be nontestimonial business records. But a plurality of the United States Supreme Court rejected a similar claim in Williams v. Illinois, 567 U.S. 50, 132 S.Ct. 2221, 183 L.Ed.2d 89 (2012). In Williams, a majority of the court determined that a DNA-profile report was nontestimonial. Although no majority of the court agreed on a single reason for the determination, a plurality opinion authored by Justice Alito and joined by Chief Justice Roberts, Justice Kennedy, and Justice Breyer concluded that the report was nontestimonial because its “primary purpose was to catch a dangerous rapist who was still at large, not to obtain evidence for use against petitioner, who was neither in custody nor under suspicion at that time,” id. at 84.
{¶ 48} We considered a similar question in State v. Maxwell, 139 Ohio St.3d 12, 2014-Ohio-1019, 9 N.E.3d 930, and concluded that
an autopsy report that is neither prepared for the primary purpose of accusing a targeted individual nor prepared for the primary purpose of providing evidence in a criminal trial is nontestimonial, and its
admission into evidence at trial under Evid.R. 803(6) as a business record does not violate a defendant‘s Sixth Amendment confrontation rights.
{¶ 49} It cannot be disputed that a law-enforcement investigatory purpose is a different, broader category than a trial-preparation purpose such as gaining evidence against a defendant or accusing a targeted individual. Indeed, the plurality opinion in Williams, using a narrower version of the primary-purpose test than we have adopted in Ohio, identified one investigatory purpose—to catch an unknown perpetrator—that is not a trial-preparation purpose.1 And there is no doubt, under our above analysis, that an autopsy with such a purpose would be investigatory and that the information in the report would be subject to redaction pursuant to the CLEIR exception. Indeed, as Special Agent Trout explained, information contained in such a report could be used to triage tips, narrow in on persons of interest, and test the credibility of those claiming to have knowledge of the crime.
{¶ 50} On the other hand, an autopsy report that is “prepared for the primary purpose of accusing a targeted individual” may also contain information, such as bullet trajectories known only to the perpetrator, that would still be detrimental to the investigation if publicized before the perpetrator‘s arrest, and such information may still be withheld under the CLEIR exception.
{¶ 51} This comparison evinces why two separate analyses are necessary—one to determine whether an autopsy report contains CLEIR and another to determine whether it is admissible at trial as a business record. Neither analysis
{¶ 52} Once a perpetrator is identified and discovery commences in a criminal case, a different analysis will control the disclosure of autopsy reports, both as to the public and to the defendant. Further, the trial judge will be responsible for determining the reports’ admissibility during judicial proceedings. Thus, whether an autopsy report may be admitted as a business record at trial and whether it must, almost certainly, be disclosed pursuant to Crim.R. 16 does not answer whether the report meets the CLEIR exception for purposes of public-records disclosure.
d. Availability of CLEIR in autopsy reports upon conclusion of investigation
{¶ 53} In reaching our decision today, we do not forget Justice Brandeis‘s maxim that “‘[s]unlight is said to be the best of disinfectants,‘” Buckley v. Valeo, 424 U.S. 1, 67, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976), quoting Brandeis, Other People‘s Money and How the Bankers Use It 62 (1933). Indeed, we have long been jealously protective of transparency in government and public access to records:
(Ellipsis sic.) Kish v. Akron, 109 Ohio St.3d 162, 2006-Ohio-1244, 846 N.E.2d 811, ¶ 16.
{¶ 54} Thus, we wholeheartedly agree with the first dissenting opinion as to the importance of the media in gathering and disseminating information to the public. But the exceptions to disclosure are as much a part of the Public Records Act as are the general provisions that require disclosure. Although it is difficult to craft a statute that advances conflicting interests, that is exactly what the General Assembly has done here: it has provided that autopsy reports are public records unless they satisfy one of certain narrow exceptions, including confidential law-
{¶ 55} In this case, PCCO has released a great deal of the information contained in the Rhoden and Gilley final autopsy reports and has properly withheld, pursuant to
{¶ 56} Our conclusion recognizes that certain information contained in autopsy reports falls under one of the narrow exceptions to public disclosure for a temporary period. The exception is recognized for the information in autopsy reports that, for a time, constitutes CLEIR. Once the criminal investigation ends, CLEIR contained in autopsy reports may assume the status of public records and become available to the public. In order that justice might be delivered to all, patience may be required of some.
{¶ 57} For the foregoing reasons, we deny the requested writ of mandamus to compel disclosure of the information redacted from the autopsy reports at issue in this case.
{¶ 58} The Enquirer and the Dispatch seek statutory damages, arguing that PCCO failed to promptly release the redacted autopsy reports. Under
{¶ 59} Two months passed between relators’ requests for the final autopsy reports and PCCO‘s release of the redacted reports to the public. Although we have found a delay as short as six days to be unreasonable, it “‘depends largely on the facts in each case.‘” State ex rel. Consumer News Servs., Inc. v. Worthington City Bd. of Edn., 97 Ohio St.3d 58, 2002-Ohio-5311, 776 N.E.2d 82, ¶ 37, 54, quoting State ex rel. Wadd v. Cleveland, 81 Ohio St.3d 50, 53, 689 N.E.2d 25 (1998), quoting Black‘s Law Dictionary 1214 (6th Ed.1990). Here, PCCO articulated a plausible explanation for the two-month delay—specifically, the magnitude of the investigation into the murders and the corresponding need to redact the reports with care. We find that two months was a reasonable amount of time in which to redact and release the reports. Therefore, statutory damages are unwarranted in this case.
{¶ 60} The Enquirer and the Dispatch also request that attorney fees be awarded in this case. But because we deny the writ, the newspapers are not entitled to attorney fees in connection with their seeking the release of the unredacted autopsy reports.
acted in bad faith when the office * * * voluntarily made the public records available to the relator for the first time after the relator commenced the mandamus action, but before the court issued any order concluding whether or not the public office * * * was required to comply with division (B) of this section.
But that provision was added by 2016 Sub.S.B. No. 321, effective September 28, 2016. Because, as the Enquirer concedes,
III. CONCLUSION
{¶ 61} For the foregoing reasons, we deny the Enquirer‘s and the Dispatch‘s motions and the requested writ of mandamus.
Writ and motions denied.
CELEBREZZE, O‘NEILL, and PIPER, JJ., concur.
KENNEDY, J., dissents, with an opinion joined by O‘DONNELL, J.
FISCHER, J., dissents, with an opinion joined by O‘DONNELL, J.
FRANK D. CELEBREZZE JR., J., of the Eighth Appellate District, sitting for FRENCH, J.
ROBIN N. PIPER, J., of the Twelfth Appellate District, sitting for DEWINE, J.
KENNEDY, J., dissenting.
{¶ 62} “‘[P]ublic records are the people‘s records, and * * * the officials in whose custody they happen to be are merely trustees for the people.‘” Dayton Newspapers, Inc. v. Dayton, 45 Ohio St.2d 107, 109, 341 N.E.2d 576 (1976),
{¶ 63} When interpreting the Public Records Act,
{¶ 64} The majority denies the request of relator Cincinnati Enquirer for oral argument, but because the controversy before the court involves an issue of great public importance, I would grant the Enquirer‘s request. Without the benefit of oral argument, the majority relies on State ex rel. Dayton Newspapers, Inc. v. Rauch, 12 Ohio St.3d 100, 465 N.E.2d 458 (1984), which was categorically overruled in our landmark decision in State ex rel. Steckman v. Jackson, 70 Ohio St.3d 420, 434, 639 N.E.2d 83 (1994), overruled in part on other grounds, State ex rel. Caster v. Columbus, ___ Ohio St.3d ___, 2016-Ohio-8394, ___ N.E.3d ___, ¶ 47. The majority thereby fails to strictly construe the exception for “confidential
{¶ 65} Applying the definition of CLEIR established in Steckman to the current version of
I. REQUEST FOR ORAL ARGUMENT
{¶ 66} It is within our discretion to determine whether an original action merits oral argument. S.Ct.Prac.R. 17.02(A). In exercising that discretion, we consider “‘whether the case involves a matter of great public importance, complex issues of law or fact, a substantial constitutional issue, or a conflict among courts of appeals.‘” (Emphasis added.) State ex rel. BF Goodrich Co., Specialty Chems. Div. v. Indus. Comm., 148 Ohio St.3d 212, 2016-Ohio-7988, 69 N.E.2d 728, ¶ 23, quoting State ex rel. Davis v. Pub. Emps. Retirement Bd., 111 Ohio St.3d 118, 2006-Ohio-5339, 855 N.E.2d 444, ¶ 15. In denying the Enquirer‘s request for oral argument, the majority concedes that this is a matter of great public importance but finds that the remaining factors are not present.
{¶ 68} The benefit of oral argument cannot be overstated. “Oral argument provides a window to the decision-making process that is unavailable when there is no public scrutiny.” DiVito, Surviving the Death of Oral Argument, 99 Ill.B.J. 188 (2011).
{¶ 69} The court‘s decision today will affect every county, newspaper, and homicide investigation in Ohio. By denying oral argument, the majority has perpetrated a great disservice to the citizens of Ohio in that it has deprived them of “the only opportunity * * * to see the [justices] at work and to witness at least some of the process that leads to appellate decisions,” id. at 189. Accordingly, I would grant the Enquirer‘s request for oral argument.
II. ANALYSIS
A. Steckman categorically overruled Rauch
{¶ 70} The majority‘s declaration that “the relevance of Steckman to this case is limited, at best,” majority opinion at ¶ 35, is misguided and based on the faulty premise that the definition of CLEIR as announced in Steckman applies only in pending criminal cases. While the majority attempts to limit Steckman, the reach of Steckman is much wider. When the General Assembly amended
{¶ 71} Steckman established a “bright line” rule that rendered “all cases (even though not specifically cited) that are contrary, in whole or in part,” to Steckman “of no further force or effect,” Steckman, 70 Ohio St.3d at 426, 429, 639 N.E.2d 83:
We recognize we have decided a plethora of cases that have not all, necessarily, been consistent. Differing fact patterns, the civil versus criminal context and the timing of
R.C. 149.43 requests have brought about decision-making on a case-by-case basis. This * * * has in many ways hamstrung the proper administration of justice. We have avoided “bright line” rulings only because the lines were not very bright. Today‘s three cases, when combined, now place in clear focus many of the problems arising from sometimes inconsistent rulings. Thus, we now believe it is time to draw some bright lines in cases which involve the use ofR.C. 149.43 by any person seeking release of records in pending criminal proceedings.We are cognizant of, and have reviewed, all of our cases on this subject as well as a number of court of appeals and trial court decisions. We make this point so that any interested reader can be assured that even absent citation to a particular case, we have in fact considered, in reaching our decision herein, each matter pertinent to this decision.
(Emphasis added.) Steckman at 429.
State ex rel. Beacon Journal Publishing Co. v. Kent State Univ. (1993), 68 Ohio St.3d 40, 623 N.E.2d 51 (confidential law enforcement investigatory records); * * * State ex rel. Morales v. Cleveland (1993), 67 Ohio St.3d 573, 621 N.E.2d 403 (trial preparation documents—postconviction); State ex rel. Lawhorn v. White (1993), 67 Ohio St.3d 158, 616 N.E.2d 888; State ex rel. Hamblin v. Brooklyn (1993), 67 Ohio St.3d 152, 616 N.E.2d 883 (trial preparation records and work product—postconviction); State ex rel. Vindicator Printing Co. v. Watkins (1993), 66 Ohio St.3d 129, 609 N.E.2d 551 (trial preparation and confidential law enforcement investigatory records); State ex rel. Johnson v. Cleveland (1992), 65 Ohio St.3d 331, 603 N.E.2d 1011 (trial preparation, investigatory work product, risk to witnesses and state/federal law exemptions); State ex rel. Williams v. Cleveland (1992), 64 Ohio St.3d 544, 597 N.E.2d 147 (trial preparation and confidential law enforcement investigatory exemptions—postconviction); * * * State ex rel. Coleman v. Cincinnati (1991), 57 Ohio St.3d 83, 566 N.E.2d 151 (trial preparation records—police department‘s homicide investigation files); State ex rel. Natl. Broadcasting Co. v. Cleveland (1991), 57 Ohio St.3d 77, 566 N.E.2d 146 (investigatory and trial preparation records); State ex rel. Zuern v. Leis (1990), 56 Ohio St.3d 20, 564 N.E.2d 81 (trial preparation records); * * * State ex rel. Multimedia, Inc. v. Whalen (1990), 48 Ohio St.3d 41, 549 N.E.2d 167 (confidential law enforcement investigatory records); State ex rel. Outlet Communications, Inc. v. Lancaster Police Dept. (1988), 38 Ohio St.3d 324, 528 N.E.2d 175 (arrest and intoxilyzer records—confidential law enforcement investigatory records; Furtherance of Justice Fund records); State ex rel. Natl. Broadcasting Co. v. Cleveland (1988), 38 Ohio St.3d 79, 526 N.E.2d 786 (“NBC I“) (investigatory work product exception); and State ex rel. Beacon Journal Publishing Co. v. Univ. of Akron (1980), 64 Ohio St.2d 392, 18 O.O.3d 534, 415 N.E.2d 310 (“routine incident reports“).
Steckman at 429-430.
{¶ 73} Rauch, upon which the majority relies, was decided ten years prior to Steckman. In Rauch, without defining “specific investigatory work product” as used in
{¶ 74} Moreover, the Rauch court interpreted an earlier version of
{¶ 76} Because of the sweeping language used in Steckman, the absence in Steckman of a specific citation to Rauch is of no consequence. Rauch was overruled by Steckman and is not the law. Therefore, the majority errs in relying on the court‘s conclusory statement in Rauch that an “autopsy” is an “investigation,” 12 Ohio St.3d at 100, 465 N.E.2d 458.
B. The majority misinterprets the CLEIR exception by failing to apply Steckman
{¶ 77} Despite the fact that Rauch has been overruled, the majority relies on it and in doing so, fails to use the two-step analysis established in Steckman that we and the courts of appeals have used to apply the CLEIR exception for over 20 years. See, e.g., State ex rel. Leonard v. White, 75 Ohio St.3d 516, 664 N.E.2d 527 (1996); Gannett Satellite Information Network, Inc. v. Petro, 80 Ohio St.3d 261, 266-267, 685 N.E.2d 1223 (1997); State ex rel. Beacon Journal Publishing Co. v. Maurer, 91 Ohio St.3d 54, 56-57, 741 N.E.2d 511 (2001); State ex rel. Miller v. Ohio State Hwy. Patrol, 136 Ohio St.3d 350, 2013-Ohio-3720, 995 N.E.2d 1175,
{¶ 78} To apply the bright-line rule for considering a claim for a record‘s exemption from disclosure as “specific investigatory work product” under
{¶ 79} The General Assembly did not define the phrase “specific investigatory work product” for purposes of
{¶ 80} Years after Steckman, in 2006, the General Assembly amended
{¶ 81} Because the General Assembly did not expressly provide a definition for CLEIR when it inserted that phrase in
{¶ 82} To determine, as the majority does, that the General Assembly‘s 2009 amendment adding the CLEIR exception to
{¶ 83} Moreover, when the General Assembly enacts a statute, it “does not intend sub silentio to enact statutory language that it has earlier discarded in favor of other language.” Immigration & Naturalization Serv. v. Cardoza-Fonseca, 480 U.S. 421, 442-443, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987). As introduced in the Ohio House of Representatives in 2008, H.B. 471 originally contained two new exceptions to the general rule that autopsy reports are public records. The exception proposed as
{¶ 84} When H.B. 471 was voted out of committee and sent to the full House, the bill had been amended and the above-quoted language had been deleted. In its place, the committee had inserted the CLEIR exception as it exists today in
{¶ 85} Even the attorney general has asserted that Rauch has been superseded by the General Assembly‘s amendments to
{¶ 86} As further support for its conclusion that the unredacted autopsy reports requested in this case should not be released, the majority asserts that information detailing “gunshot wounds including the path and trajectory of bullets, specific identifying information such as scars or tattoos, descriptions of body placement, and toxicology results” should be shielded from public disclosure “due to its investigative value to law enforcement.” (Emphasis added.) Majority opinion at ¶ 43. That consideration, however—the subjective preferences of law enforcement, including its determination that certain information has “investigative value“—was not added to the statutory text when the General Assembly amended
{¶ 87} Moreover, whether information has “investigative value” is not considered under the two-step analysis established in Steckman and applied by its progeny. See Leonard, 75 Ohio St.3d 516, 664 N.E.2d 527; Gannett Satellite Information Network, Inc. v. Petro, 80 Ohio St.3d at 266-267, 685 N.E.2d 1223; Maurer, 91 Ohio St.3d at 56-57, 741 N.E.2d 511; Miller, 136 Ohio St.3d 350, 2013-Ohio-3720, 995 N.E.2d 1175, at ¶ 25-26.
{¶ 88} We have consistently rejected taking into account the subjective consideration of whether a document or recording contains some “investigative value” when analyzing the applicability of a public-records exception under
{¶ 89} The effect of today‘s majority opinion cannot be understated. Advancing the subjective consideration of whether a record or some information contained in a record has “investigative value” when analyzing the CLEIR exception under the Public Records Act amounts to building a foundation on quicksand—where the exception swallows the rule.
{¶ 90} “Value” is defined as “relative worth, utility, or importance.” Webster‘s Third New International Dictionary 2530 (2002). The relative worth, utility, or importance of certain information is, by its very nature, in the eye of the beholder. This case bears out the very subjective nature of the inquiry and the slippery slope the majority has created.
{¶ 92} As explained above, when the General Assembly enacted
{¶ 93} This court in Westfield Ins. Co. v. Galatis, 100 Ohio St.3d 216, 2003-Ohio-5849, 797 N.E.2d 1256 (2003), established a tripartite test to overrule precedent; once overruled, a precedent cannot be called forth from the grave like Lazarus. “In a word the genius of a great judge in the reading of statutes lies not in a bias for this or that tactical value, however worthy, but in his respect for the limits of his own function—for that grand strategic division of labor between legislature and court, between Nation and State.” Mendelson, Mr. Justice Frankfurter on the Construction of Statutes, 43 Cal.L.Rev. 652, 673 (1955).
C. The autopsy reports are not CLEIR pursuant to Steckman
{¶ 94} “In matters of statutory construction * * * it makes a great deal of difference whether you start with an answer or with a problem.” Frankfurter, Some Reflections on the Reading of Statutes, 47 Colum.L.Rev. 527, 529 (1947). In this
{¶ 95} Applying our two-step analysis and the definitive definition of CLEIR as announced in Steckman, I would hold that PCCO has failed to prove that the information redacted from the autopsy reports at issue here falls within the definition of CLEIR because the information neither “pertains to a law enforcement matter” nor reveals “specific investigatory work product,”
1. CLEIR must “pertain[] to a law enforcement matter”
{¶ 96} For a record to be considered a “confidential law enforcement investigatory record,” the record must “pertain[] to a law enforcement matter of a criminal, quasi-criminal, civil, or administrative nature.”
{¶ 97} I agree with the majority that the coroner plays an important role in gathering facts after a death that might later be charged as a murder, but this role is limited “to decid[ing] on a diagnosis giving a reasonable and true cause of death,”
{¶ 98} The majority contends that a “coroner‘s work in a homicide-related autopsy is investigative” and points to
{¶ 99}
{¶ 100}
{¶ 101} Without a doubt, the General Assembly instills broad authority and latitude in coroners to determine the cause and manner of death, but
{¶ 102} Contrary to the majority‘s assertion,
{¶ 103} The coroner gathers facts that are used by law enforcement and prosecutors for criminal prosecutions. Law enforcement, not the coroner, investigates any violation of the law that occurred. The coroner‘s role is not to investigate a violation of the law but to investigate the cause and manner of death.
The majority fails to recognize that the coroner is one degree removed from those law-enforcement officials who are empowered to investigate a murder. Therefore, an autopsy in a homicide case does not “pertain[] to a law enforcement matter” within the meaning of2. R.C. 149.43(A)(2)(c) : Specific investigatory work product
{¶ 104} As discussed above, the majority attempts to limit this court‘s landmark decision in Steckman, in which we initially defined “specific investigatory work product” in
{¶ 105} First, the autopsy reports are not “notes, working papers, memoranda, or similar materials.” The majority describes the information redacted from the autopsy reports as
general information about injuries, and observations about the victims’ bodies including detailed descriptions of various organs. Among the redacted information are specific facts about gunshot wounds including the path and trajectory of bullets, specific
identifying information such as scars or tattoos, descriptions of body placement, and toxicology results.
Majority opinion at ¶ 40.
{¶ 106} The autopsy reports at issue document factual information regarding the appearance of the deceased individuals’ bodies. This kind of factual information—describing who, what, where, and how—constitutes a public record when contained within a law-enforcement incident report. See Steckman at paragraph five of the syllabus (“work product exception does not include ongoing routine offense and incident reports“). The autopsy reports are devoid of the coroner‘s theories as to who perpetrated the killings.
{¶ 107} The second prong of the definition of “specific investigatory work product” requires that the record was prepared by law-enforcement officials. Steckman, 70 Ohio St.3d at 434, 639 N.E.2d 83. We have rejected an interpretation of the CLEIR exception for specific investigatory work product that would shield dash-cam recordings from disclosure “merely because they contain potential evidence of criminal activity that may aid in a subsequent prosecution.” Dept. of Pub. Safety, 148 Ohio St.3d 433, 2016-Ohio-7987, 71 N.E.3d 258, at ¶ 45. Nevertheless, the majority relies on the affidavits of Dr. Kessler and Special Agent Michael Trout of the Ohio Bureau of Criminal Investigation to support withholding the unredacted autopsy reports because the information contained in them would be useful to law enforcement in investigating the crimes.
{¶ 108} The attorney general has concluded that a county coroner does not qualify as a “law enforcement officer” for purposes of either the Revised Code or the Rules of Criminal Procedure. 1998 Ohio Atty.Gen.Ops. No. 98-033, at 5. Instead, as noted above, the coroner‘s primary duty and purpose is to determine the cause and manner of death. See Maxwell, 139 Ohio St.3d 12, 2014-Ohio-1019, 9
{¶ 109} The potential that autopsy reports may be used in a criminal prosecution also does not transform the purpose of a report routinely prepared to determine and memorialize the cause and manner of death into a document prepared in anticipation of litigation. Under the third prong of its definition, “specific investigatory work product” is strictly construed to include only those records that are “compiled in anticipation of litigation,” Steckman at paragraph five of the syllabus, as opposed to routinely generated records that may someday be of use in a criminal prosecution.
{¶ 110} Lastly, our Confrontation Clause jurisprudence is helpful because in it, we have analyzed whether evidence was prepared in anticipation of litigation and therefore is testimonial such that its admission in the absence of a witness‘s testimony would violate a defendant‘s right under the Sixth Amendment to the United States Constitution to confront the witnesses against him. See State v. Craig, 110 Ohio St.3d 306, 2006-Ohio-4571, 853 N.E.2d 621, ¶ 82. The majority dismisses reliance on this jurisprudence because whether a document is admissible at trial and whether a document is a public record are “distinct questions.” Majority opinion at ¶ 45. While I agree that these questions are different, our answers to the question whether material was prepared in anticipation of litigation should not depend on the nature of the larger legal issue giving rise to the question. In Craig,
{¶ 111} The majority, after examining the same cases, concludes that these holdings are not applicable, stating, “It cannot be disputed that a law-enforcement investigatory purpose is a different, broader category than a trial-preparation purpose such as gaining evidence against a defendant or accusing a targeted individual.” Majority opinion at ¶ 49. Instead of relying on Steckman, which restricts the CLEIR exception for specific investigatory work product to records “compiled in anticipation of litigation,” 70 Ohio St.3d 420, 639 N.E.2d 83, at paragraph five of the syllabus, the majority relies on a plurality opinion of the United States Supreme Court that rejected a Confrontation Clause challenge to the admission of a record because it was “not prepared for the primary purpose of accusing a targeted individual,” Williams v. Illinois, 567 U.S. 50, 84, 132 S.Ct. 2221, 183 L.Ed.2d 89 (2012). However, this phrase does not appear in Steckman, in which we defined “specific investigatory work product” as information “compiled in anticipation of litigation.” Steckman at paragraph five of the syllabus.
{¶ 112} The majority substantially broadens the scope of records that can be considered specific investigatory work product because information used in “accusing a targeted individual” is a much broader category than records “compiled in anticipation of litigation.” This broader category based on Williams would
{¶ 113} We should not abandon the bright-line rule established in Steckman that defines “specific investigatory work product” as records “compiled in anticipation of litigation.” It would be illogical in a public-records case to declare that an autopsy report is prepared in anticipation of litigation and shielded from disclosure when we have already held—over a constitutional challenge of a defendant facing a possible death sentence if convicted—that an autopsy report is prepared in the ordinary course of business and therefore admissible in court pursuant to the business-record hearsay exception. See Maxwell, 139 Ohio St.3d 12, 2014-Ohio-1019, 9 N.E.3d 930, at ¶ 63; Craig, 110 Ohio St.3d 306, 2006-Ohio-4571, 853 N.E.2d 621, at ¶ 88. Because the autopsy reports at issue here were not created in anticipation of litigation, the redacted portions cannot be withheld under the CLEIR exception for “specific investigatory work product,”
{¶ 114} The majority decries both dissenting opinions for disrespecting the “meaning and purpose of the CLEIR exception as expressed by the legislature” and
{¶ 115} In
{¶ 116} Because the General Assembly did not define CLEIR in
{¶ 117} The only disservice done to the language of the statute and to the legislature is done at the hands of the majority by inserting its own policy-making decisions into the language of the statute. A body of four thereby elevates its policy preferences over the balanced and reasoned decision-making of the whole of the General Assembly.
[T]he courts are not at large. * * * They are under the constraints imposed by the judicial function in our democratic society. As a matter of verbal recognition certainly, no one will gainsay that the function in construing a statute is to ascertain the meaning of words used by the legislature. To go beyond it is to usurp a power which our democracy has lodged in its elected legislature. * * * A judge must not rewrite a statute, neither to enlarge nor to contract it. Whatever temptations the statesmanship
of policy-making might wisely suggest, construction must eschew interpolation and evisceration. He must not read in by way of creation. He must not read out except to avoid patent nonsense or internal contradiction.
Frankfurter, 47 Colum.L.Rev. at 533. “[T]he only sure safeguard against crossing the line between adjudication and legislation is an alert recognition of the necessity not to cross it and instinctive, as well as trained, reluctance to do so.” Id. at 535.
D. Statutory Damages, Attorney Fees, and Costs
{¶ 118} Relators e-mailed their respective public-records request to PCCO. To be entitled to statutory damages, however, the request had to be transmitted by either hand delivery or certified mail.
{¶ 119} Neither of the subsections in
{¶ 120} For the foregoing reasons, I would grant oral argument and would grant the requested writs of mandamus to compel the production of the unredacted autopsy reports because PCCO has failed to prove that the CLEIR exception applies to the information redacted from the reports. Additionally, I would award relators court costs and reasonable attorney fees, pursuant to
O‘DONNELL, J., concurs in the foregoing opinion.
FISCHER, J., dissenting.
{¶ 121} I respectfully dissent and would grant the requested writs of mandamus. Relators, Cincinnati Enquirer, GateHouse Media, d.b.a. Columbus Dispatch, and reporter Holly Zachariah, are entitled to the final autopsy reports that they requested. Based on a plain reading of the relevant statutory provisions, the final autopsy reports requested are “the detailed descriptions of the observations written during the progress of an autopsy and the conclusions drawn from those observations filed in the office of the coroner under [
I. LEGAL ANALYSIS
A. Under R.C. 313.10(A)(1) , final autopsy reports are public records
{¶ 122} Relators assert that the requested final autopsy reports are public records pursuant to
B. Final autopsy reports are not 10(A)(2)(e) Records
{¶ 123} PCCO argues that the requested final autopsy reports are exempt from disclosure as public records because they are also “records of a deceased individual that are confidential law enforcement investigatory records” pursuant to
{¶ 124} However, to conclude that the final autopsy reports constitute 10(A)(2)(e) Records is to ignore a plain reading of the text of the statute and to render part of the statute superfluous. 13(A) Records and 10(A)(2)(e) Records are separate and distinct types of records under
1. Principles of Statutory Interpretation
{¶ 125} The text of the statute is the primary and initial means of explaining a law. E.g., Hughes v. Aircraft Co. v. Jacobson, 525 U.S. 432, 438, 119 S.Ct. 755, 142 L.Ed.2d 881 (1999). “When construing a statute, we first examine its plain language and apply the statute as written when the meaning is clear and unambiguous.” Medcorp, Inc. v. Dept. of Job & Family Servs., 121 Ohio St.3d 622, 2009-Ohio-2058, 906 N.E. 1125, ¶ 9. Ambiguity exists only when the statutory language is “capable of bearing more than one meaning.” Dunbar v. State, 136 Ohio St.3d 181, 2013-Ohio-2163, 992 N.E.2d 1111, ¶ 16.
{¶ 126} We must give effect to the words used, refraining from inserting or deleting words. Cleveland Elec. Illum. Co. v. Cleveland, 37 Ohio St.3d 50, 53-54, 524 N.E.2d 441 (1988). “The words used must be afforded their usual, normal, and/or customary meanings.” Medcorp at ¶ 9. “[W]ords in a statute do not exist in a vacuum.” D.A.B.E., Inc. v. Toledo–Lucas Cty. Bd. of Health, 96 Ohio St.3d 250, 2002-Ohio-4172, 773 N.E.2d 536, ¶ 19. We remain careful “not to ‘pick out one sentence and disassociate it from the context’ ” but instead focus our attention on the “‘four corners of the enactment‘” in order to determine legislative intent. Jacobson v. Kaforey, 149 Ohio St.3d 398, 2016-Ohio-8434, 75 N.E.3d 203, ¶ 8, quoting Black Clawson Co. v. Evatt, 139 Ohio St. 100, 104, 38 N.E.2d 403 (1941). If a statute is unambiguous, “inquiry into legislative intent, legislative history, public policy, the consequences of an interpretation, or any other factors identified in R.C. 1.49 is inappropriate.” Dunbar at ¶ 16; accord State v. Brown, 142 Ohio St.3d 92, 2015-Ohio-486, 28 N.E.3d 81, ¶ 10.
{¶ 127} “‘No part [of the statute] should be treated as superfluous unless that is manifestly required, and the court should avoid that construction which renders a provision meaningless or inoperative.‘” (Brackets sic.) State ex rel. Carna v. Teays Valley Local School Dist. Bd. of Edn., 131 Ohio St.3d 478, 2012-Ohio-1484, 967 N.E.2d 193, ¶ 19, quoting State ex rel. Myers v. Spencer Twp. Rural School Dist. Bd. of Edn., 95 Ohio St. 367, 373, 116 N.E. 516 (1917).
2. Plain-Reading Analysis of R.C. 313.10
{¶ 128} The plain language of the text of
Except as otherwise provided in this section, the records of the coroner who has jurisdiction over the case, including, but not limited to, the detailed descriptions of the observations written during the progress of an autopsy and the conclusions drawn from those observations filed in the office of the coroner under [
R.C. 313.13(A) ], made personally by the coroner or by anyone acting under the coroner‘s direction or supervision, are public records.
(Emphasis added.) The above provision provides a nonexhaustive list of specific records of the coroner that are public records. See Colbert v. Cleveland, 99 Ohio St.3d 215, 2003-Ohio-3319, 790 N.E.2d 781, ¶ 14; State Farm Mut. Auto. Ins. Co. v. Grace, 123 Ohio St.3d 471, 2009-Ohio-5934, 918 N.E.2d 135, ¶ 27. 13(A) Records, i.e., final autopsy reports, are the example of public records that was explicitly identified by the General Assembly in this provision.
{¶ 129} In contrast to
{¶ 130} PCCO argues that because
{¶ 131} The text of
As used in this section:
(1) “Full and complete records of the coroner” includes, but is not limited to, the following:
(a) The detailed descriptions of the observations written by the coroner or by anyone acting under the coroner‘s direction or supervision during the progress of an autopsy and the conclusions drawn from those observations that are filed in the office of the coroner under [
R.C. 313.13(A) ];
(b) Preliminary autopsy and investigative notes and findings made by the coroner * * *;
(c) Photographs of a decedent made by the coroner * * *;
(d) Suicide notes;
(e) Medical and psychiatric records provided to the coroner * * * under [
R.C. 313.091 ];(f) Records of a deceased individual that are confidential law enforcement investigatory records as defined in [
R.C. 149.43 ];(g) Laboratory reports generated from the analysis of physical evidence by the coroner‘s laboratory that is discoverable under Criminal Rule 16.
(Emphasis added.) The General Assembly‘s inclusion of both types of records in the text of the list of the “[f]ull and complete records of the coroner” establishes that 13(A) Records and 10(A)(2)(e) Records are separate and distinct types of records of the coroner.
{¶ 132} The majority‘s determination that 13(A) Records, i.e., final autopsy reports, constitute 10(A)(2)(e) Records renders
{¶ 133} Although the desire to protect the confidentiality of investigatory records is a laudable and more-than-understandable goal, we must not read the
{¶ 134} Therefore, in order to avoid reading
{¶ 135} Because relators have demonstrated by clear and convincing evidence that the requested final autopsy reports are
C. Statutory damages, attorney fees, and court costs
{¶ 136} Relators also request reasonable attorney fees, statutory damages, and court costs. I conclude that relators are not entitled to statutory damages but should be awarded reasonable attorney fees and court costs.
{¶ 137} I agree with the majority that relators are not entitled to statutory damages as provided under
2. Attorney Fees
{¶ 138} The majority denies the requested writs of mandamus and therefore concludes that relators are not entitled to attorney fees under
{¶ 139} “If the court renders a judgment that orders the public office or the person responsible for the public record to” produce requested public records, attorney fees may be awarded to the requesting party.
{¶ 140} This court may award relators attorney fees pursuant to
{¶ 141} PCCO argues that relators should not be granted any attorney fees, even discretionary attorney fees, because PCCO acted in accordance with
{¶ 142} Arguably, State ex rel. Dayton Newspapers, Inc. v. Rauch, 12 Ohio St.3d 100, 465 N.E.2d 458 (1984), supported PCCO‘s assertion that it had a “reasonabl[e] belie[f]” that the final autopsy reports contained confidential law-enforcement investigatory records and were, therefore, exempt as 10(A)(2)(e) Records that PCCO could withhold and thereby serve the public interest.
{¶ 143} PCCO denied the public-records request for the final autopsy reports in total and then later released portions of the reports. Therefore, PCCO‘s release of the redacted final autopsy reports demonstrates that PCCO did not believe that the unredacted portions, which PCCO originally withheld, fell under the 10(A)(2)(e) Records exception. Thus, as a matter of logic, once relators requested the records, PCCO was required to redact them promptly and release the redacted reports within a reasonable period of time. See
{¶ 144} PCCO released the redacted autopsy reports to relators 59 days after relators’ requests. The majority asserts (for purposes of determining whether relators are entitled to statutory damages) that this is a reasonable amount of time in which to redact and release the reports, specifically due to the magnitude of the investigation into the murders and the corresponding need to redact the reports with care. I disagree.
{¶ 145} As recognized by the majority, whether public records were released within a reasonable period of time depends largely on the facts of each
{¶ 146} Therefore, I would hold that PCCO failed to provide the final autopsy reports within a reasonable period of time pursuant to
3. Court Costs
{¶ 147} Because I would grant relators’ requests for writs of mandamus ordering PCCO to comply with
II. CONCLUSION
{¶ 148} Relators requested final autopsy reports that are public records pursuant to
O‘DONNELL, J., concurs in the foregoing opinion
Graydon, Head & Ritchey, L.L.P., John C. Greiner, and Darren W. Ford, for relator Cincinnati Enquirer.
Zeiger, Tigges & Little, L.L.P., John W. Zeiger, Marion H. Little Jr., and Matthew S. Zeiger, for relators GateHouse Media Ohio Holdings II, Inc., d.b.a. Columbus Dispatch, and Holly R. Zachariah.
Michael DeWine, Attorney General, and Sarah E. Pierce and Ryan L. Richardson, Assistant Attorneys General, for respondents, Pike County Coroner‘s Office and David Kessler, M.D.
Carpenter, Lipps & Leland, L.L.P., Michael H. Carpenter, and Caitlin E. Vetter, urging denial of the writ for amicus curiae Ohio State Coroners Association.
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Michael J. Friedmann, Assistant Prosecuting Attorney, urging denial of the writ for amicus curiae Ohio Prosecuting Attorneys Association.