State ex rel. Cincinnati Enquirer v. Hamilton County

662 N.E.2d 334, 75 Ohio St. 3d 374

• Court: Ohio Supreme Court
• Decided: March 6, 1996
• Docket: Nos. 95-675, 95-677, 95-686 and 95-843
• Status: Published

Opinions

Per Curiam.

These cases involve the disclosure of 911 tapes under Ohio’s Public Records Act, R.C. 149.43. For the reasons that follow, we hold that 911 tapes in general, as well as the particular 911 tapes requested in these cases, are public records which are not exempt from disclosure.

Mandamus is the appropriate remedy to compel compliance with R.C. 149.43. State ex rel. Multimedia, Inc. v. Snowden (1995), 72 Ohio St.3d 141, 142, 647 N.E.2d 1374, 1377. R.C. 149.43 is construed liberally in favor of broad access, and any doubt is resolved in favor of disclosure of public records. State ex rel. Thomas v. Ohio State Univ. (1994), 71 Ohio St.3d 245, 246, 643 N.E.2d 126, 128.

Nine-one-one tapes are “records” for purposes of R.C. 149.43, and they are held by Hamilton County and Cincinnati, which constitute “public offices” under the Act. R.C. 149.43(A)(1); R.C. 149.011(A) and (G); Thomas, supra, 71 Ohio St.3d at 246-247, 643 N.E.2d at 128; State ex rel. Margolius v. Cleveland (1992), 62 Ohio St.3d 456, 461, 584 N.E.2d 665, 670 (public record may be in the form of • paper, videotape, magnetic tape, or magnetic disk).¹

Respondents assert that the requested records are excepted from disclosure under R.C. 149.43(A)(1) and (A)(2). Hamilton County also asserts that its records are excepted under R.C. 149.43(A)(4). Exceptions to disclosure must be strictly construed against the custodian of public records, and the burden to establish an exception is on the custodian. State ex rel. James v. Ohio State Univ. (1994), 70 Ohio St.3d 168, 169, 637 N.E.2d 911, 912. With the foregoing general standards in mind, we turn to the specific claims of the parties.

Case Nos. 95-675 and 95-686

Both of these cases involve the Orr 911 tapes. Transcripts of the tapes were submitted to the court under seal by Hamilton County. During Orr’s criminal trial, the tapes relating to the 911 calls were apparently introduced into evidence. In that the disputed records have now been publicly revealed, relators are entitled to the requested writs of mandamus. State ex rel. Newton v. Court of Claims (1995), 73 Ohio St.3d 553, 557, 653 N.E.2d 366, 370, quoting Oregon v. Dansack (1993), 68 Ohio St.3d 1, 4, 623 N.E.2d 20, 22 (“[I]n mandamus actions * * * ‘a court is not limited to considering facts and circumstances at the time a proceeding is instituted, but should consider the facts and conditions at the time it determines whether to issue a peremptory writ.’ ”).

However, given the importance of the issues raised and the county’s continuing practice of withholding from the public 911 tapes which initiate criminal investigations, we proceed to determine if Hamilton County properly rejected relators’ requests for the records at the time the county refused disclosure. See, e.g., State ex rel. Fenley v. Kyger (1995), 72 Ohio St.3d 164, 165, 648 N.E.2d 493, 494.

The Enquirer initially asserts that 911 tapes are public records which are subject to immediate release upon request, since no exception to disclosure is ever applicable. Hamilton County counters, and the Enquirer’s fellow relator, the Post, agrees,² that 911 tapes are limitless in possible content and could conceivably contain information protected from disclosure under some exception.

Basic 911 systems, including the ones used by HCCC and CPCC, are systems “in which a caller provides information on the nature of and location of an emergency, and the personnel receiving the call must determine the appropriate emergency service provider to respond at that location.” R.C. 4931.40(B). For example, HCCC automatically records 911 calls, which do not include the personal opinions of its employees. HCCC employees do not act under the direction of the county prosecutor or law enforcement officials when receiving and responding to 911 calls. HCCC employees are not employees of any law enforcement agency and are not trained in criminal investigation. The HCCC 911 operators simply compile information and do not investigate. The 911 tapes are not made in order to preserve evidence for criminal prosecution. Nine-one-one calls that are received by HCCC are always initiated by the callers. According to CPCC Senior Police Sergeant Schrand, a 911 call involving criminal conduct is essentially a citizen’s initial report of the criminal incident, which could typically trigger a police investigation.

From the foregoing, it is evident that 911 tapes are not prepared by attorneys or other law enforcement officials. Instead, 911 calls are routinely recorded without any specific investigatory purpose in mind. There is no expectation of privacy when a person makes a 911 call. Instead, there is an expectation that the information provided will be recorded and disclosed to the public. Moreover, because 911 calls generally precede offense or incident form reports completed by the police, they are even further removed from the initiation of the criminal investigation than the form reports themselves.

The moment the tapes were made as a result of the calls (in these cases — and in all other 911 call cases) to the 911 number, the tapes became public records. Obviously, at the time the tapes were made, they were not “confidential law enforcement investigatory records” (no investigation was underway), they were not “trial preparation records” (no trial was contemplated or underway), and neither state nor federal law prohibited their release. Thus, any inquiry as to the release of records should have been immediately at an end, and the tapes should have been, and should now and henceforth always be, released.

The particular content of the 911 tapes is irrelevant. Therefore, it 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. Cf. R.C. 149.43(A)(1), 149.43(A)(2)(a) and (d). Further, although less likely to occur, it makes no difference that the disclosure of the tapes might reveal Social Security Numbers or trade secrets. Cf. State ex rel. Beacon Journal Publishing Co. v. Akron (1994), 70 Ohio St.3d 605, 640 N.E.2d 164; State ex rel. Seballos v. School Emp. Retirement Sys. (1994), 70 Ohio St.3d 667, 640 N.E.2d 829.

In addition, the fact that the tapes in question subsequently came into the possession and/or control of a prosecutor, other law enforcement officials, or even the grand jury has no significance. Once clothed with the public records cloak, the records cannot be defrocked of their status. See State ex rel. Carpenter v. Tubbs Jones (1995), 72 Ohio St.3d 579, 580, 651 N.E.2d 993, 994 (“[N]on-exempt records do not become ‘trial preparation records’ simply because they are contained within a prosecutor’s file”); but, cf., John Doe Agency v. John Doe Corp. (1989), 493 U.S. 146, 110 S.Ct. 471, 107 L.Ed.2d 462 (for purposes of federal Freedom of Information Act [“FOIA”], exemption from disclosure for records “compiled for law enforcement purposes” held to apply to documents originally collected for nonlaw-enforcement purposes but later “recompiled” with law enforcement purpose); KTVY-TV v. United States (C.A.10, 1990), 919 F.2d 1465, 1469 (“The FOIA does not require that records must have been originally compiled for a law enforcement investigation; the records merely must have been so compiled when the government invokes an exemption to the FOIA request.”).

Accordingly, we reject the case-by-case approach advocated by Hamilton County and the Post, and adopt the per se rule asserted by the Enquirer. Nine-one-one tapes in general, and these 911 tapes in particular, are public records which are not exempt from disclosure and must be immediately released upon request. Our holding appears to be consistent with the holdings reached by other jurisdictions. See State v. Cain (1992), 223 Conn. 731, 741, 613 A.2d 804, 809 (“Since tape recordings of 911 calls are public records, they are subject to the regulations regarding preservation and disposition of such records promulgated by the public records administrator * * *.”); State v. Gray (Mo.App.1987), 741 S.W.2d 35, 38 (911 tape was a public record); cf. Payne v. Grand Rapids Police Chief (1989), 178 Mich.App. 193, 443 N.W.2d 481 (court, although not adopting any per se rule, held that conclusory allegations that disclosure of tape recordings of emergency calls might have a chilling effect on citizen calls were insufficient to deny access to tapes under Michigan Freedom of Information Act).

The requested Orr 911 tapes are not exempted from disclosure by any of the exceptions asserted by Hamilton County. Hamilton County erred in rejecting relators’ requests for release of the Orr 911 tapes and transcripts under R.C. 149.43.

Case Nos. 95-677 and 95-843

In these cases, the city of Cincinnati denied the Enquirer’s request for access to the Jones 911 tape and the Post’s request for access to the Jones, Lumpkin, and Scott tapes. As discussed above, we adopt the Enquirer’s contention that all 911 tapes are subject to immediate release upon request. Therefore, it is unnecessary to consider the various exceptions to disclosure raised by Cincinnati.

Disposition

Based on the foregoing, in case Nos. 95-675 and 95-686, we grant relators writs of mandamus compelling disclosure of the Orr 911 tapes and transcripts. In case No. 95-677, we grant the Enquirer a writ of mandamus compelling disclosure of the Jones 911 tape. In case No. 95-843, we grant the Post a writ of mandamus compelling disclosure of the Jones, Lumpkin, and Scott 911 tapes. Relators have additionally established a sufficient public benefit, and respondents failed to comply with the records requests for invalid reasons. Accordingly, relators are entitled to attorney fees. Multimedia, supra, 72 Ohio St.3d at 145, 647 N.E.2d at 1379. Relators’ counsel are instructed to submit bills and documentation in support of their requests for attorney fees, in accordance with the guidelines in DR 2-106.

Writs granted.

Moyer, C.J., Wright, Resnick and Cook, JJ., concur. Douglas, J., concurs in judgment only. F.E. Sweeney, J., concurs in judgment only. Pfeifer, J., concurs separately.

1 . Respondents do not contend that 911 tapes are not subject to disclosure because of their audiotape format.

2 . The Post states that “unless respondent proves that a tape of a 911 call satisfies the statutory criteria for exemption from mandatory public access, the tape must be disclosed.” In addition, the Post “does not dispute that, under appropriate circumstances, a criminal defendant’s right to a fair trial overrides a public office’s statutory duty to provide public access to records under R.C. 149.43.”