[Cite as State ex rel. Cincinnati Enquirer v. Sage, 2013-Ohio-2270.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
BUTLER COUNTY
STATE OF OHIO ex rel. THE : CINCINNATI ENQUIRER, CASE NO. CA2012-06-122 : Relator, OPINION : 6/3/2013
- vs - :
: HON. MICHAEL J. SAGE, et al., : Respondents. :
ORIGINAL ACTION IN PROHIBITION AND MANDAMUS
Graydon Head & Ritchey, LLP, John C. Greiner, 1900 Fifth Third Center, 511 Walnut Street, Cincinnati, Ohio 45202, for relator
Michael T. Gmoser, Butler County Prosecuting Attorney, Michael A. Oster, Jr., Government Services Center, 315 High Street, 11th Floor, Hamilton, Ohio 45011, for respondents
M. POWELL, J.
{¶ 1} This is a case in which relator, the Cincinnati Enquirer (the Enquirer), a
newspaper of general circulation in southwestern Ohio, seeks a writ of mandamus and a writ
of prohibition compelling respondents, Butler County Prosecutor Michael Gmoser and Butler
County Common Pleas Judge Michael Sage, to release an audio recording of a telephone Butler CA2012-06-122
conversation between a Butler County 911 operator and a murder suspect.1
FACTUAL BACKGROUND
{¶ 2} On June 17, 2012, the Butler County Sheriff's Office Dispatch Center received
a 911 call at 4:41 p.m. (the First Call). The female caller informed Sheriff's Office Operator
Debra Rednour that her husband was hurt, there had been an accident, and her husband
was not breathing. The call then ended abruptly. Rednour dispatched emergency personnel
and placed a return call to the telephone number which made the original 911 call. This
return call was not answered (the Unanswered Call). Rednour made a second return call
(the Outbound Call).
{¶ 3} This call was answered by a male who identified himself as Michael Ray. Ray
immediately told Rednour that he was a murderer and needed to be arrested. Rednour
asked Ray what had happened. Ray told her that he had been caught drinking his father's
beer, his father got mad at him, and he (Ray) just snapped and stabbed his father. In
response to further questioning by Rednour, Ray told her he had stabbed his father in the
chest with a hunting knife, he had removed the knife from his father's chest, and the knife
was now laying on Ray's bedroom floor. The call was disconnected with the arrival of the
police to the residence.
{¶ 4} In her deposition, Rednour testified it is her duty to make a return call if a 911
call is dropped so that she can find out what is going on, and that if a weapon is involved, she
will make a point to find out its type and location. Rednour testified it was her duty to make a
return call after the First Call was dropped because she did not have enough information to
ensure a proper medical response and the safety of those responding to the emergency. All
she knew after the First Call was dropped was that someone was not breathing. Rednour
1. Gmoser and Judge Sage will be referred collectively as respondents when necessary. -2- Butler CA2012-06-122
stated she had no idea that a crime had been committed when she placed the return call and
that it was not her intention in making the return call to investigate a crime. Rather, the
questions she asked during the Outbound Call were solely to provide for the safety of the first
responders and the victim.
{¶ 5} On the day of the incident, Sheila McLaughlin, a reporter for the Enquirer, made
a request to the Butler County Sheriff's Office for the recording of the First Call. Gmoser
denied the request. Gmoser advised the reporter that he would not release the recording
prior to the conclusion of the investigation and any trial of the matter, and that he would seek
a protective order against such release. Notwithstanding Gmoser's denial, the sheriff's office
released the recording of the First Call to the Enquirer on June 19, 2012. Upon receipt of the
recording, the Enquirer realized there were recordings of other calls relating to the incident.
Consequently, the Enquirer made a request for "all 911 calls to or from Butler County
dispatchers from 4:00 p.m. June 17 until 5:30 p.m. June 17."
{¶ 6} On June 20, Gmoser denied the request on the ground the recordings of the
Unanswered Call and the Outbound Call were both trial preparation records under R.C.
149.43(A)(1)(g) and confidential law enforcement investigatory records under R.C.
149.43(A)(1)(h), and therefore not public records. Gmoser further stated, "Independent of
this basis for refusing your requests * * *, it is my firm belief that the interest of justice
outweighs any public interest in one of the two subject recordings and I shall proceed to ask
for a protective order from the court regarding release of that recording in further criminal
proceedings."
{¶ 7} By letter dated June 21, 2012, the Enquirer, through its legal counsel, reiterated
its request for "all 911 calls to or from Butler County dispatchers from 4:00 p.m. June 17 until
5:30 p.m. June 17." On June 22, Gmoser notified the Enquirer's legal counsel that he would
release the recording of the Unanswered Call, but remained steadfast in his refusal to -3- Butler CA2012-06-122
release the recording of the Outbound Call. That same day, pursuant to Crim.R. 16(C),
Gmoser filed a motion for protective order in the Butler County Common Pleas Court (the
common pleas court) in the case of State v. Ray.2 In the motion, Gmoser asserted that the
Outbound Call was part of an investigation of a 911 incident report. Gmoser reasserted his
claim that the Outbound Call recording was both a trial preparation record and a confidential
law enforcement investigatory record, and therefore not subject to disclosure as a public
record. Gmoser further stated that the recording of the Outbound Call is "so lawfully
prejudicial to any theory of [Ray's] innocence" that its disclosure would endanger Ray's right
to a fair trial.
{¶ 8} On June 25, a hearing was held on the motion before Judge Sage. Present at
the hearing were Gmoser, the Enquirer's counsel, and Ray's criminal defense counsel. The
recording of the Outbound Call was played for Judge Sage in his chamber in the presence of
Gmoser, the Enquirer's counsel, and Ray's counsel. The recording was neither offered nor
received into evidence. Following this in camera hearing, the parties argued the motion in
open court without the submission of additional evidence. Following argument, Judge Sage
orally granted the protective order from the bench.
{¶ 9} A judgment entry reflecting the granting of the motion was journalized on June
27, 2012. Judge Sage found that because the recording of the Outbound Call contained
statements by Ray that related to precipitory circumstances and evidence, were "highly
inflammatory," and were "highly prejudicial" to Ray, Ray's right to a fair trial would be
prejudiced by the disclosure of the recording. Judge Sage considered alternatives to the
closure of the Outbound Call recording, specifically providing a complete or redacted
2. Ray was indicted for the murder of his father sometime between June 17 and June 22, 2012. In their brief, respondents state Gmoser filed the motion for protective order on the day Ray was indicted for the murder of his father. -4- Butler CA2012-06-122
transcript of the Outbound Call recording, but rejected those alternatives.
{¶ 10} The Enquirer subsequently filed a complaint in this court for a writ of mandamus
against respondents. Specifically, the Enquirer sought orders that the protective order issued
by Judge Sage be vacated, the Outbound Call recording be released to the Enquirer, and
Gmoser be ordered to pay statutory damages and attorney fees for his failure to comply with
R.C. 149.43. The Enquirer subsequently filed an amended complaint for a writ of mandamus
and a writ of prohibition.
{¶ 11} While substantially similar to the original complaint, the amended complaint
also sought to prevent the common pleas court from enforcing its June 27, 2012 judgment
entry granting the motion for protective order. The amended complaint also alleged that
Judge Sage lacked jurisdiction to issue a protective order "in a public records dispute where
the record is not before him in the underlying criminal proceeding." In his answer to the
amended complaint, Judge Sage denied that the recording of the Outbound Call was subject
to disclosure, denied that he had no jurisdiction to issue the protective order prohibiting
disclosure of the Outbound Call recording, and set forth various affirmative defenses.
{¶ 12} On October 11, 2012, Judge Sage issued an amended protective order. That
order authorized the release of the Outbound Call recording "immediately preceding its
admission and publication to the jury in open court at [Ray's murder] trial." Pursuant to the
amended protective order, Gmoser delivered the Outbound Call recording to the Enquirer on
October 15. Consequently, respondents moved to dismiss the Enquirer's action in
mandamus and prohibition as moot. On November 28, 2012, this court denied the motion.
{¶ 13} This case involves the disclosure, pursuant to R.C. 149.43, Ohio's Public
Records Act, of the recording of an outbound call made by a 911 operator. For the reasons
that follow, we hold that the Outbound Call constitutes a 911 call which is a public record not
exempt from disclosure. -5- Butler CA2012-06-122
THE MANDAMUS ACTION
{¶ 14} To prevail on a petition for a writ of mandamus, "relator must establish (1) a
clear legal right to the relief requested, (2) that respondents have a clear legal duty to
perform the act or acts requested, and (3) that relator has no plain and adequate remedy [at
law]." State ex rel. Cincinnati Enquirer v. Heath, 183 Ohio App.3d 274, 2009-Ohio-3415, ¶
11 (12th Dist.), citing State ex rel. Seikbert v. Wilkinson, 69 Ohio St.3d 489, 490 (1994).3
Mandamus is the appropriate remedy to seek compliance with R.C. 149.43. State ex rel.
Beacon Journal Publishing Co. v. Akron, 104 Ohio St.3d 399, 2004-Ohio-6557, ¶ 23. The
Public Records Act "must be construed liberally in favor of broad access, and any doubt
should be resolved in favor of disclosure of public records." State ex rel. Beacon Journal
Publishing Co. v. Bond, 98 Ohio St.3d 146, 2002-Ohio-7117, ¶ 8. "[I]nherent in R.C. 149.43
is the fundamental policy of promoting open government, not restricting it." State ex rel.
Miami Student v. Miami Univ., 79 Ohio St.3d 168, 171 (1997). The government "bears the
burden of establishing that the requested information is exempt from disclosure." Bond at ¶
8.
{¶ 15} The Ohio Supreme Court has held that "911 [recordings] in general *** are
public records which are not exempt from disclosure." State ex rel. Cincinnati Enquirer v.
Hamilton Cty., 75 Ohio St.3d 374, 376 (1996); State ex rel. Dispatch Printing Co. v. Morrow
Cty. Prosecutor's Office, 105 Ohio St.3d 172, 2005-Ohio-685. In ruling that 911 recordings
are public records, the supreme court noted certain indicia of 911 calls, including: (1) 911
calls are automatically recorded; (2) 911 calls are always initiated by the callers; (3) 911
recordings are not prepared by attorneys or other law enforcement officials; (4) 911
3. However, persons seeking public records under R.C. 149.43 need not establish the lack of an adequate remedy at law in order to be entitled to a writ of mandamus. State ex rel. Dist. 1199, Health Care & Soc. Serv. Union, SEIU, AFL-CIO v. Lawrence Cty. Gen. Hosp., 83 Ohio St.3d 351, 354 (1998); State ex rel. Doe v. Tetrault, 12th Dist. No. CA2011-10-070, 2012-Ohio-3879, ¶ 21. -6- Butler CA2012-06-122
recordings are not made to preserve evidence for criminal prosecution; and (5) rather, 911
calls are routinely recorded without any specific investigatory purpose in mind. Cincinnati
Enquirer at 377-378. "The particular content of the 911 [recordings] is irrelevant." Id. at 378.
{¶ 16} The supreme court further noted that 911 operators (1) do not act under the
direction of a prosecutor or other law enforcement official when receiving or responding to a
911 call, (2) are not employees of a law enforcement agency, (3) are not trained in criminal
investigation, and (4) simply compile information and do not investigate. Id. at 377. The fact
that 911 recordings subsequently come into the possession and/or control of a prosecutor or
other law enforcement official "has no significance. Once clothed with the public records
cloak, the records cannot be defrocked of their status." Id. at 378.
{¶ 17} Respondents first aver that the Outbound Call is not a 911 call, and therefore
not subject to the supreme court's holding in Cincinnati Enquirer, because (1) it was an
outbound call, as opposed to an incoming call; (2) Rednour, the 911 operator placing the
outbound call, was an employee of a law enforcement agency; (3) when Rednour dispatched
emergency personnel to the scene of the emergency after receiving the First Call, the basic
purpose of the 911 emergency system had been fulfilled; and (4) the questions asked by
Rednour were, objectively, the same questions that would be asked by a criminal
investigator. Rather, respondents assert that the recording of the Outbound Call is both a
trial preparation record under R.C. 149.43(A)(1)(g) and a confidential law enforcement
investigatory record under R.C. 149.43(A)(1)(h).
{¶ 18} There are factual distinctions between this case and the 911 call indicia noted
by the supreme court in Cincinnati Enquirer. First, Rednour is an employee of a law
enforcement agency (i.e., the Butler County Sheriff's Office). However, we find this
distinction to be insignificant in the resolution of whether the Outbound Call is a 911 call.
Rednour testified that although she is employed by the Butler County Sheriff's Office, she is a -7- Butler CA2012-06-122
civilian employee neither trained in criminal investigation nor tasked with criminal
investigation duties.
{¶ 19} The other significant distinction advanced by respondents is that the Outbound
Call was initiated by Rednour. We decline to accept this distinction. The Outbound Call was
initiated when the First Call was abruptly ended. The Unanswered Call and the Outbound
Call, while placed by Rednour, constituted a continuation of the First Call so that Rednour
could obtain additional information to provide an emergency response that was both effective
and safe. When Rednour placed the Outbound Call, she had no idea a crime had been
committed, and had no investigatory intent beyond what was necessary to provide an
effective emergency response.
{¶ 20} Likewise, respondents' other assertions do not convert the essential nature of
the Outbound Call into something other than a 911 call. That Rednour dispatched
emergency responders after the First Call did not satisfy her duty as a 911 operator. As
already mentioned, it was imperative that Rednour obtain additional information as to the
nature of the injury so that she could tell emergency responders and let them respond
appropriately and expeditiously and be apprised of any danger that might confront them.
Additionally, although Rednour's questions to Ray may be useful in prosecuting him, their
purpose, and Rednour's intention in asking them, were only to accomplish her duty as a 911
operator.
{¶ 21} Accordingly, we find that the Outbound Call is a 911 call.
{¶ 22} In Cincinnati Enquirer, the Ohio Supreme Court also addressed whether 911
recordings qualify as trial preparation records or confidential law enforcement investigatory
records under R.C. 149.43. The supreme court held that they did not:
The moment the [recordings] were made as a result of the calls (in these cases-and in all other 911 call cases) to the 911 number, the [recordings] became public records. Obviously, at -8- Butler CA2012-06-122
the time the [recordings] 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.
Cincinnati Enquirer, 75 Ohio St.3d at 378.
{¶ 23} We therefore find that the Outbound Call is not exempt from disclosure either
as a trial preparation record or a confidential law enforcement investigatory record.
{¶ 24} Respondents also aver that the Outbound Call recording should not be
released because the release would compromise Ray's Sixth Amendment right to a fair trial
due to potential jury prejudice. Respondents assert the Outbound Call recording is, pursuant
to R.C. 149.43(A)(1)(v), a "record, the release of which is prohibited by state or federal law,"
and is therefore exempt from disclosure. Based upon this concern, Judge Sage granted
Gmoser's motion for protective order which prohibited public dissemination of the Outbound
Call recording.
{¶ 25} It is well-settled that while the First Amendment guarantees the public and
press a right of access, such right of access is not absolute. Bond, 2002-Ohio-7117 at ¶ 15,
17. The "presumption of openness * * * may be overcome 'by an overriding interest based
on findings that closure is essential to preserve higher values and is narrowly tailored to
serve that interest.'" Id. at ¶ 17, quoting Press-Enterprise Co. v. Superior Court of California,
Riverside Cty., 464 U.S. 501, 508, 104 S.Ct. 819 (1984) (Press-Enterprise I). In balancing
the Sixth Amendment right to a fair trial and the First Amendment right of access, the United
States Supreme Court set forth a two-part inquiry to determine whether the presumption of
openness has been rebutted.
{¶ 26} Specifically, if closure is sought on the ground that disclosure would jeopardize
"the right of the accused to a fair trial," closure shall be ordered "only if specific findings are
made demonstrating that, first, there is a substantial probability that the defendant's right to a -9- Butler CA2012-06-122
fair trial will be prejudiced by publicity that closure would prevent and, second, reasonable
alternatives to closure cannot adequately protect the defendant's fair trial rights." Press-
Enterprise Co. v. Superior Court, 478 U.S. 1, 14, 106 S.Ct. 2735 (1986) (Press-Enterprise II).
In applying these standards, a trial court must "(1) make specific findings, on the record,
demonstrating that there is a substantial probability that the defendant would be deprived of a
fair trial by the disclosure of the [information] and (2) consider whether alternatives to total
suppression of the [information] would have protected the interest of the accused." Bond at ¶
30.
{¶ 27} The case at bar presents a situation similar to that before this court in Heath,
2009-Ohio-3415. The issue in Heath concerned the release of records from a preliminary
hearing in a murder case. After the records were ordered to be sealed by a common pleas
court, a newspaper filed a complaint for a writ of mandamus seeking vacation of the sealing
orders. This court granted the writ of mandamus. This court found that the lower court's
sealing orders did not satisfy the criteria for closure recognized by the United States
Supreme Court in Press-Enterprise I and Press-Enterprise II, and applied by our supreme
court in Bond, 2002-Ohio-7117.
{¶ 28} The protective order in this case did not satisfy the mandates of Press-
Enterprise I, Press-Enterprise II, and Bond. First, other than the recording itself, there was
no evidence submitted to the common pleas court as to why disclosure of the Outbound Call
recording would endanger Ray's right to a fair trial. There was no testimony from
psychologists, sociologists, communications experts, media experts, jury experts,
experienced trial lawyers, former judges, or others as to how pretrial disclosure of the
Outbound Call recording would impact Ray's right to a fair trial. Prejudice cannot be
assumed or presumed simply because the Outbound Call recording includes admissions by
Ray. - 10 - Butler CA2012-06-122
{¶ 29} Furthermore, there is nothing to suggest that Ray's statements to Rednour
would not have been admissible at trial and submitted to the jury for its deliberations. In fact,
Gmoser asserted at the hearing on the motion for protective order that the Outbound Call
recording would be admissible evidence. That the Outbound Call recording would eventually
be submitted to a jury certainly mitigates any adverse impact upon Ray's right to a fair trial
which might result from its pretrial disclosure.
{¶ 30} Moreover, Ray's statements to Rednour do not contain salacious or horrific
details that might arouse an emotional response in the community against Ray. In fact, Ray's
statements include expressions of remorse.
{¶ 31} Finally, there was no mention or consideration of why continuances, voir dire,
change of venue, cautionary jury instructions, and other protective measures would not have
preserved Ray's right to a fair trial. See State ex rel. Vindicator Printing Co. v. Wolff, 132
Ohio St.3d 481, 2012-Ohio-3328, ¶ 35. Rather, Judge Sage only considered two
alternatives, a complete transcript of the Outbound Call or a redacted version, before
rejecting them and noting there were no other reasonable alternatives.
{¶ 32} Respondents have also submitted no other material to this court addressing the
evidentiary deficiencies noted above from which this court can conclude that the pretrial
disclosure of the Outbound Call recording would jeopardize Ray's right to a fair trial, or that
total suppression of the Outbound Call recording is the least restrictive alternative to protect 4 Ray's right to a fair trial.
{¶ 33} We therefore find the presumption of openness has not been overcome in this
case. Accordingly, we grant the writ of mandamus.
4. As this is an original action, the parties may submit evidence to this court. The evidentiary material submitted by the parties include the transcript of the hearing on the motion for protective order, Rednour's deposition, Gmoser's motion for protective order, the protective order and the amended protective order, a recording of the First Call and the Unanswered Call, a transcript of the Outbound Call, and affidavits from counsel (including email and other correspondence between the parties) and Enquirer reporter Sheila McLaughlin. - 11 - Butler CA2012-06-122
THE PROHIBITION ACTION
{¶ 34} The Enquirer also seeks a writ of prohibition against Judge Sage.5
{¶ 35} To warrant a writ of prohibition, the relator must establish that "(1) the court or
officer against whom the writ is sought is about to exercise judicial or quasi-judicial power, (2)
the exercise of that power is clearly unauthorized by law, and (3) denial of the writ will cause
injury for which there is no adequate remedy in the ordinary course of law." State ex rel.
Cincinnati Enquirer v. Bronson, 191 Ohio App.3d 160, 2010-Ohio-5315, ¶ 10 (12th Dist.).
{¶ 36} The Enquirer argues that Judge Sage did not have jurisdiction to issue the
protective order because (1) the Outbound Call recording was not before Judge Sage and
therefore not subject to his jurisdiction; (2) the mandamus remedy provided in R.C.149.43(C)
is the only mechanism for resolving a public records dispute; (3) a public official may not
respond to a request for a public record by seeking declaratory relief from a court regarding
the availability of the record; and (4) there is no justiciable controversy to support declaratory
relief. We will address the Enquirer's arguments separately.
A. The Outbound Call recording was not before Judge Sage and therefore not subject to his jurisdiction.
{¶ 37} The Enquirer avers that Judge Sage was without jurisdiction to consider and
grant the protection order because the Outbound Call recording was not before him. That is,
the Enquirer claims Judge Sage has jurisdiction to make orders solely with regard to
documents that have been submitted to his court as filings, evidence or otherwise, and are
subject to his direct control. The Enquirer is correct that the Outbound Call recording was not
before Judge Sage in the sense it was not filed with the common pleas court or offered into
5. The Enquirer posits this issue in the context of a declaratory judgment. Gmoser did not seek a declaratory judgment from the court and Judge Sage did not grant one. Except where the Enquirer's argument is applicable only with regard to a declaratory judgment, the court will address the argument within the context of the protection order proceedings. - 12 - Butler CA2012-06-122
evidence. However, at the very least, the Outbound Call recording was discovery material
over which the trial judge assigned to the case has significant authority. See Crim.R. 16(C),
(D), (F), and (L).
{¶ 38} Gmoser filed the motion for protective order pursuant to Crim.R. 16(C). This
rule allows a prosecutor to designate certain discovery material as "counsel only." "'Counsel
only' material may not be shown to the defendant or any other person, but may be disclosed
only to defense counsel, or the agents or employees of defense counsel, and may not
otherwise be reproduced, copied or disseminated in any way." Crim.R. 16(C). Pursuant to
Crim.R. 16(F), "[u]pon motion of the defendant, the trial court shall review the prosecuting
attorney's decision of nondisclosure or designation of 'counsel only' material for abuse of
discretion during an in camera hearing conducted seven days prior to trial, with counsel
participating." (Emphasis sic.)
{¶ 39} Without question, the protective order was not issued in strict compliance with
the procedure contemplated by Crim.R. 16(C). Nonetheless, it is clear that Gmoser implicitly
designated the Outbound Call recording as "counsel only," defense counsel did not object to
that classification, Judge Sage further sanctioned that classification when he issued the
protective order, and the designation means that the material is not to be disseminated to
anyone other than defense counsel and his or her agents. See State v. Hebdon, 12th Dist.
Nos. CA2012-03-052 and CA2012-03-062, 2013-Ohio-1729 (oral nondisclosure certification
requirement satisfied during a hearing).
{¶ 40} Furthermore, separate and apart from Crim.R. 16, criminal courts have inherent
authority to enter orders to preserve the integrity of their proceedings, including closure
orders and orders restricting the litigants and their counsel from disclosing certain information
relative to the litigation. See State v. McKnight, 107 Ohio St.3d 101, 2005-Ohio-6046; State
v. Bush, 76 Ohio St.3d 613 (1996) (trial judges are at the front lines of the administration of - 13 - Butler CA2012-06-122
justice in our judicial system, responding to the rights and interests of the prosecution, the
accused, and victims. A court has the inherent power to regulate the practice before it and
protect the integrity of its proceedings).
{¶ 41} The Enquirer complains that Judge Sage improperly issued the protection order
because there was no evidence before him to support its issuance, and Judge Sage failed to
consider alternatives to a total suppression of the Outbound Call recording. However,
prohibition does not lay where there is merely an imperfect exercise of jurisdiction, but rather
where there is an ultra vires exercise of jurisdiction. Here, there is not "a patent and
unambiguous restriction on the jurisdiction of [Judge Sage nor] a complete and total want of
jurisdiction which clearly places the pertinent controversy outside the court's jurisdiction."
State ex rel. Lester v. Court of Common Pleas, Div. of Domestic Relation, Butler Cty., 12th
Dist. No. CA91-05-080, 1991 WL 219669, *2 (Oct. 28, 1991), citing State ex rel. Aycock v.
Mowrey, 45 Ohio St.3d 347 (1989).
B. The mandamus remedy provided in R.C. 149.43(C) is the only mechanism for resolving a public records dispute.
{¶ 42} Our decision in Heath makes it clear that an order of a court in a criminal matter
ordering closure or sealing of certain records does not mean that those records are beyond
the reach of a writ of mandamus sought pursuant to R.C. 149.43(C). Likewise, that a record
may be subject to a public records request, and therefore a R.C. 149.43 mandamus action,
does not divest a court of jurisdiction to determine whether the record ought to be sealed in
other litigation pending before it.
{¶ 43} As already stated, mandamus is an appropriate remedy to resolve a public
records dispute. A dispute regarding the availability of a record under R.C. 149.43 ought to
be resolved pursuant to the procedure set forth therein. In such a proceeding, a closure or
sealing order may be evidence that the record is one "the release of which is prohibited by
- 14 - Butler CA2012-06-122
state or federal law" pursuant to R.C. 149.43(A)(1)(v).
C. A public official may not respond to a request for a public record by seeking declaratory relief from a court regarding the availability of the record.
{¶ 44} The Enquirer cites the case of State ex rel. Fisher v. PRC Pub. Sector, Inc., 99
Ohio App.3d 387 (10th Dist.1994), in support of its claim that Gmoser could not do an "end
around" of his responsibility to respond to a public records request by asking a court to
determine if the record was subject to disclosure. In Fisher, the Tenth Appellate District held
that:
As an initial matter, we note that the court is the final arbiter regarding disclosure of public records under R.C. 149.43. State ex rel. Dispatch Printing Co. v. Wells (1985), 18 Ohio St.3d 382, 385. Determination of an application for disclosure under R.C. 149.43 must first be made on an ad hoc basis by the governmental body holding the requested information. Id. See, also, State ex rel. Toledo Blade Co. v. Telb (1990), 50 Ohio Misc.2d 1, wherein the court held that governmental bodies could not invoke the court's function as final arbiter in order to avoid their duty to make records available. Declaratory relief may not be used to circumvent the duty to make the initial determination of whether materials are subject to disclosure under R.C. 149.43.
(Emphasis sic; parallel citations omitted.) Fisher at 391.
{¶ 45} Fisher is factually distinguishable from this case in two important respects.
First, Gmoser did not seek to avoid his responsibility to determine the availability of the
Outbound Call recording by filing the motion for protective order. The communications
between Gmoser and the Enquirer are clear and unambiguous: Gmoser was denying release
of the recording pending completion of the criminal investigation and the commencement of
Ray's trial. Second, the protective order was issued as an incident within the context of a
separate and independent proceeding (i.e., the State v. Ray criminal case) that, in turn, was
not commenced for the sole purpose of determining the availability of the record in dispute.
{¶ 46} Furthermore, there is authority that a trial court ought to be involved in
determining whether i0nformation subject to the control of the court or the litigants and their - 15 - Butler CA2012-06-122
counsel should be disclosed where such disclosure may jeopardize the right of an accused to
a fair trial. In such a case, "[t]hese issues should be determined by the trial court, not merely
by a custodian of the record ***." State ex rel. Cincinnati Enquirer v. Dinkelacker, 144 Ohio
App.3d 725, 733 (1st Dist.2001) (granting a writ of mandamus but staying its issuance for ten
days to give the trial court an opportunity to determine whether the release of the material
would be unfair to the defendant in that case).
D. There is no justiciable controversy to support declaratory relief.
{¶ 47} The motion for protective order is not a declaratory judgment action and is not
subject to declaratory judgment action analysis.
{¶ 48} The writ of prohibition is denied.
ATTORNEY FEES, STATUTORY DAMAGES, AND COURT COSTS
{¶ 49} The Enquirer seeks an award of attorney fees under R.C. 149.43(C)(2)(b) and
statutory damages under R.C. 149.43(C)(1). These provisions allow a court to order a
person who has failed to provide a public record, to pay statutory damages and attorney fees
to the party who has prevailed in obtaining a writ of mandamus for the production of a public
record.
{¶ 50} With regard to statutory damages, R.C. 149.43(C)(1) provides that the amount
of statutory damages "shall be fixed at one hundred dollars for each business day during
which the public office or person responsible for the requested public records failed to comply
with an obligation in accordance with [R.C. 149.43(B)], beginning with the day on which the
requester files a mandamus action to recover statutory damages, up to a maximum of one
thousand dollars." However, the court may reduce an award of statutory damages or not
award statutory damages if it determines both of the following:
That, based on the ordinary application of statutory law and case law as it existed at the time of the conduct or threatened conduct of the public office or person responsible for the requested public - 16 - Butler CA2012-06-122
records that allegedly constitutes a failure to comply with an obligation in accordance with [R.C. 149.43(B)] and that was the basis of the mandamus action, a well-informed public office or person responsible for the requested public records reasonably would believe that the conduct or threatened conduct of the public office or person responsible for the requested public records did not constitute a failure to comply with an obligation in accordance with [R.C. 149.43(B)];
That a well-informed public office or person responsible for the requested public records reasonably would believe that the conduct or threatened conduct of the public office or person responsible for the requested public records would serve the public policy that underlies the authority that is asserted as permitting that conduct or threatened conduct.
R.C. 149.43(C)(1)(a) and (b).
{¶ 51} R.C. 149.43(C)(2)(b) governs a court's award of reasonable attorney fees. As
with statutory damages, a court may reduce an award of attorney fees or not award attorney
fees if it makes both of the above findings. See R.C. 149.43(C)(2)(c)(i) and (ii). With the
exception of R.C. 149.43(C)(2)(c)(i) and (ii) (which mandate an award of attorney fees when
there is no timely response to a public records request or there is a failure to provide access
to the requested records within a prescribed period of time), an award of attorney fees in
public records cases is discretionary. State ex rel. Doe v. Smith, 123 Ohio St.3d 44, 2009-
Ohio-4149, ¶ 30-32. A court may consider the reasonableness of a public officer's failure to
comply with the public records request in determining whether to award attorney fees. Id. at
¶ 34.
{¶ 52} Doe involved a police chief's refusal to release records relating to the arrest of a
juvenile for aggravated arson after the police chief was notified that the juvenile court had
sealed the records relating to the incident. An Ohio citizen (relator) filed a complaint for a writ
of mandamus in the Court of Appeals for Clermont County. The court of appeals granted the
writ. The relator sought $16,875 in attorney fees. The court of appeals awarded $2,000 in
attorney fees. - 17 - Butler CA2012-06-122
{¶ 53} The supreme court upheld the court of appeals’ attorney fees award. The
supreme court found that the police chief (1) had provided "a statutorily sufficient reason for
the denial of the request," (2) had acted reasonably and in good faith based upon his reliance
on the advice of counsel and the juvenile court's letter instructing the police department not to
release information concerning the juvenile, and (3) reasonably believed that his refusal to
produce the requested records would serve the public policy underlying the juvenile court's
sealing order to protect the welfare of juveniles. Doe, 2009-Ohio-4149 at ¶38-40.
{¶ 54} In the case at bar, Gmoser and Judge Sage acted in good faith to protect Ray's
right to a fair trial. The pretrial disclosure of a murder suspect's confession raises legitimate
issues under the Sixth Amendment guarantee of a fair trial. Gmoser further acted reasonably
in promptly bringing the issue to the attention of the common pleas court by seeking the
protection order. Additionally, Gmoser had ethical concerns pursuant to Prof.Cond.R. 3.6.
The facts confronting Gmoser and Judge Sage were unusual in that a telephone call was
placed by a 911 operator who was employed by a law enforcement agency, and who
solicited incriminating statements from a murder suspect. Gmoser and Judge Sage
reasonably believed that withholding the Outbound Call recording and issuing the protective
order would promote the underlying public policy of preserving an accused's right to a fair
trial.
{¶ 55} The Ohio Supreme Court has also recognized that a determination as to
whether to award attorney fees in a public records case ought to include some consideration
of the public benefit conferred by the issuance of the writ of mandamus. Doe, 2009-Ohio-
4149 at ¶ 33, 43 (in granting or denying attorney fees under R.C. 149.43(C), courts can
consider the degree to which the public will benefit from release of the records in question).
In the case at bar, there is certainly a public benefit from a disclosure of the Outbound Call
recording as it will inform the public as to the functioning of both the 911 emergency system - 18 - Butler CA2012-06-122
and the criminal justice system. It will also raise public awareness of domestic violence and
substance abuse.
{¶ 56} On the other hand, in this domestic violence case, by the time the Outbound
Call was disconnected, the perpetrator had been identified and was quickly apprehended
shortly after. The immediate disclosure of the Outbound Call recording would not have
enhanced public safety or public awareness of an ongoing threat. Further, this is not a case
in which Gmoser was refusing to disclose the Outbound Call recording under all and any
circumstances. Rather, Gmoser was delaying disclosure until completion of the criminal
investigation and the commencement of Ray's trial. The public benefit from an immediate
disclosure of the Outbound Call recording, as opposed to its delayed disclosure, is, at best,
marginal.
{¶ 57} Based upon the foregoing, we find that an award of attorney fees is not
warranted and we overrule the Enquirer's prayer for the same. However, because disclosure
of the Outbound Call recording was denied without a proper legal justification, we award the
maximum statutory damages to the Enquirer in the sum of $1,000 pursuant to R.C.
149.43(C)(1).
{¶ 58} Court costs are ordered to be paid by Gmoser. Court cost and statutory
damages shall be paid by Gmoser in his capacity as county prosecutor.
HENDRICKSON, P.J., concurs.
PIPER, J., concurs separately.
PIPER, J., concurring separately.
{¶ 59} I concur with my colleagues. The law in regard to matters decided today is
inflexible, yet reasonable application of R.C. 149.43(C) would prevent us from awarding
- 19 - Butler CA2012-06-122
attorney fees. While both sides of this controversy have genuine concerns, the actions and
arguments of counsel reveal shortcomings in the interaction of R.C. 149.43 with the criminal
justice system.
{¶ 60} In the pivotal case of Cincinnati Enquirer, Hamilton County had a blanket policy
of automatically denying all public records requests for 911 recorded calls. See 75 Ohio
St.3d 374 (1996). While Hamilton County and the Cincinnati Post proposed to the Supreme
Court the adoption of a case-by-case, content-based approach to disclosure, the Supreme
Court pronounced a per se rule requiring immediate disclosure regardless of content. Among
those reasons discussed in our majority opinion today, the court in Cincinnati Enquirer
determined that 911 calls preceded incident reports and thus could not be considered to be a
part of a criminal investigation thereby deserving no confidentiality or exemption pursuant to
R.C. 149.43.
{¶ 61} Prosecutor Gmoser, as well as defense counsel, considered the Outbound Call
to be crucial evidence in the criminal case and its public dissemination to be highly prejudicial
to the defendant in receiving a fair trial from an impartial jury.6
{¶ 62} We know today that, depending on the circumstances, the judge presiding over
a criminal case may determine that certain evidence disclosed to defense counsel must not
be disseminated. Crim.R. 16. The recent amendment to Crim.R. 16 permits a prosecutor in
discovery to disclose evidence only to opposing counsel. Despite the demands of due
process and constitutional rights that an individual possesses when confronting the
6. The defendant's right to an impartial jury within the venue where the offense occurred is constitutionally derived, and if denied, may improperly infringe upon the individual's due process rights. State v. Hampton, 134 Ohio St.3d 447, 2012-Ohio-5688. See also Rideau v. State of Louisiana, 373 U.S. 723, 83 S.Ct. 1417 (1963) (finding that a video interview played repetitively on television irreversibly tainted the jury pool); and Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507(1966) (finding failure of a judge to protect the defendant from prejudicial publicity deprived the defendant of a fair trial consistent with due process). - 20 - Butler CA2012-06-122
government at trial, such rights may nevertheless be regulated.7
{¶ 63} Even though not officially filed with the court, prosecutor Gmoser did submit the
Outbound Call to Judge Sage for review. Prosecutor Gmoser also gave a copy of the
recording to defense counsel as discovery material. "Information that a criminal prosecutor
has disclosed to the defendant for discovery purpose * * * is not thereby subject to release as
a 'public record' pursuant to R.C. 149.43." State ex rel. Vindicator Printing v. Wolff, 132 Ohio
St.3d 481, 2012-Ohio-3328, ¶ 28, quoting State ex rel. WHIO-TV-7 v. Lowe, 77 Ohio St.3d
350 (1997). Yet the per se rule of Cincinnati Enquirer requires immediate release regardless 8 of any intended uses or unintended consequences. There appears no room to balance
fundamental principles.
{¶ 64} Similarly, if there is clear and convincing evidence establishing that a
defendant's right to a fair trial would be violated, a judge, after considering alternatives, may
seal records in a criminal case overriding the presumption of openness. See State ex rel.
Cincinnati Enquirer v. Heath, 183 Ohio App.3d 274, 2009-Ohio-3415 (12th Dist.); and State
ex rel. Vindicator Printing, 2012-Ohio-3328 (decided upon rules of superintendence). Yet
again, neither R.C. 149.43 nor the holding in Cincinnati Enquirer permit room for deliberation
or the weighing of competing interests. Relator urges us to find Prosecutor Gmoser acted in
"bad faith" and was deliberately attempting to sabotage the media's request. The evidence
suggests the contrary. As a minister of justice carrying the responsibility to see that each and
7. With the increase of gang intimidation and organized crime, Crim.R. 16 was also modified to permit the withholding of witness names when a prosecutor is concerned for the witnesses' safety, with judicial review seven days before trial. Crim.R. 16(F).
8. For example, in State v. Adams III, 12th Dist. No. CA2009-11-293, 2011-Ohio-536, this court affirmed the defendant's conviction for aggravated murder after he was found guilty of killing a man labeled "a snitch." The victim was riding in a car that was being pursued by the police, and the driver jumped from the car and was not apprehended. The victim surrendered to police, and while in the back of the police cruiser, was videotaped identifying the driver of the car to police officers. The videotape was copied and disseminated within the community, and the victim was murdered for talking to the officer.
- 21 - Butler CA2012-06-122
every defendant is accorded justice, Prosecutor Gmoser is prohibited from contributing to
even the appearance of impropriety in causing unfai prejudice to a defendant. See
Prof.Cond.R. 3.8 comment.9
{¶ 65} Concerned with privacy interests, Justice Pfeifer has consistently suggested the
need to balance rights in considering the dissemination of 911 recordings. State ex rel.
Dispatch Printing Company v. Monroe County Prosecutor's Office, 105 Ohio St.3d 172, 2005-
Ohio-685; State ex rel. Cincinnati Enquirer v. Hamilton County, 75 Ohio St.3d 374 (1996).
Equally important to the public's right to information is the public's interest in protecting
individual constitutional rights in the course of administering criminal justice.
{¶ 66} There is no doubt that the public's right to be aware of governmental workings
is monumentally important. The press must be empowered to protect the public's interests
with a complete and full opportunity to keep the public informed. In this case, Prosecutor
Gmoser was not attempting to suppress information about the workings of government or
otherwise defeat public awareness, but rather sought guidance from the court to determine
the proper timing of such disclosure. The prosecutor, in a timely manner, sought a very brief
delay in disclosure so that the trial court could determine if dissemination of records into the
public domain would infringe upon the defendant's constitutional rights. Even when the
concern is genuine, R.C. 149.43 and established precedent prevent a prosecutor from
attempting to protect an individual's constitutional rights. This is inconsistent with a
prosecutor's responsibilities in administering justice.
9. It places a prosecutor between a rock and a hard place to suggest public records should be released because a change of venue might fix the prejudice created by disseminating information into the media mainstream before trial. This, in essence, requires a prosecutor to engage in the misconduct of creating the prejudice only to force the defendant to give up his original, and proper, venue. If a prosecutor deliberately created prejudice to a defendant so that he would be forced to select a different venue, it would undoubtedly be labeled prosecutorial misconduct. See State v. Depew, 38 Ohio St.3d 275 (1988), wherein the dissent criticized the prosecutor for the misconduct of expressing a lack of concern for the defendant's fair trial during pretrial proceedings. A prosecutor's responsibilities in seeking that which is just are more than those of an advocate. Prof.Cond.R. 3.8 comment. - 22 - Butler CA2012-06-122 10 {¶ 67} The legislature continues to deny attention where needed. Justice Kennedy
recently urged the Commission on Rules of Practice and Procedure to examine the
dysfunction between Crim.R. 16 and R.C. 149.43. State v. Athon, Slip Opinion No. 2013-
Ohio-1956. Similarly, the commission on the Rules of Practice and Procedure should
carefully review Crim.R. 16 and make appropriate recommendations so that various interests
may be addressed. The dissemination of 911 recordings, and other public records to be
used in the criminal proceedings, could be subject to immediate judicial review and
disclosure as determined reasonable and appropriate in order to protect everyone's interest.
Otherwise, a prosecutor is forced to engage in conduct contrary to the real ethical concern for
the preservation of individual rights by disseminating public records. If we expect prosecutors
to fulfill ethical responsibilities beyond those of an advocate, we should empower them as
well as the media.
10. Justice Pfeifer expressed concerns and invited the legislature to review R.C.149.43 over 17 years ago in Cincinnati Enquirer. - 23 -