Opinion
No. 92-2104
Submitted June 15, 1993 —
Decided August 11, 1993.
APPEAL from the Court of Appeals for Montgomery County, No. CA 12816.
Relator-appellant, Samuel Moreland, was convicted of five aggravated murders and three attempted aggravated murders and sentenced to death. We affirmed his convictions and death sentence. State v. Moreland (1990), 50 Ohio St.3d 58, 552 N.E.2d 894, certiorari denied, Moreland v. Ohio (1990), 498 U.S. 882, 111 S.Ct. 231, 112 L.Ed.2d 185. In March 1991, relator requested records from Dayton city officials related to the November 1, 1985 homicides for which he was convicted. In April, relator also requested records relating to the apparently unrelated October 18, 1985 homicide of Ulysses S. Russell in Dayton. Relator was not charged with that homicide.
Following the city's alleged inaction, relator filed a complaint in mandamus in the court of appeals under R.C. 149.43 against respondents, the city of Dayton, and its mayor, director of public safety, and chief of police (herein "city"). In response, the city released ninety-three documents to relator and claimed the remaining documents were exempt. After an in camera review, the court of appeals released further documents but found others were exempt in whole or in part. In construing R.C. 149.43(A)(2)(a), the exemption for uncharged suspects, the court of appeals held the "exemption is intended to embrace the identity of anyone who has ever been an uncharged suspect." That construction would protect a person who had not been charged "from the public embarrassment that might result from disclosure of the fact that he had once been a suspect."
In July 1991, the court of appeals ordered that nonexempt records be released and that remaining records be submitted for in camera inspection. That same order "reserves [the court's] * * * prerogative to take testimony, in camera, if necessary, * * * [to determine if records are exempt]." In October 1991, relator filed a prohibition complaint in this court seeking to restrain the court of appeals from considering in camera testimony. Pursuant to a joint application, we dismissed that prohibition case in December 1991. State ex rel. Moreland v. Judges (1992), 62 Ohio St.3d 1491, 583 N.E.2d 315.
The court of appeals found ten documents to be exempt and four partly exempt because they related to an uncharged suspect in the November 1, 1985 homicides. However, an in camera review reveals that these exempted documents concerned Eugene Ray Hagans, an ex-boyfriend of Tia Talbott, a relative of the victims. In fact, police arrested Hagans on November 2, 1985, as a suspect in those aggravated murders. Further police investigation apparently cleared Hagans, and Hagans was not prosecuted for those homicides; instead, Moreland was tried and convicted for the November 1 murders. (See Index I, documents O, P, R.)
The cause is now before us upon an appeal as of right.
James Kura, Ohio Public Defender, and William S. Lazarow, Assistant State Public Defender, for appellant.
J. Anthony Sawyer, Director of Law, and Kenneth E. Barden, Chief General Counsel, for appellee.
We hold that an exemption for uncharged suspects in R.C. 149.43(A)(2)(a) is not lost by the passage of time or the lack of enforcement action. Thus, the exemption is not restricted to only current, uncharged suspects. Releasing such data could compromise the successful reopening of unsolved criminal cases, as well as the privacy rights of uncharged suspects. However, this exemption does not restrict the release of information about a suspect who has been arrested for the offense.
Admittedly, "Ohio law favors disclosure of public records." Barton v. Shupe (1988), 37 Ohio St.3d 308, 309, 525 N.E.2d 812, 813. "Law enforcement investigatory records must be disclosed unless they are excepted from disclosure by R.C. 149.43. * * *" State ex rel. Natl. Broadcasting Co. v. Cleveland (1988), 38 Ohio St.3d 79, 526 N.E.2d 786, paragraph one of the syllabus. "A governmental body refusing to release records has the burden of proving that the records are excepted from disclosure by R.C. 149.43." Natl. Broadcasting Co., supra, at paragraph two of the syllabus.
However, R.C. 149.43(A)(2)(a) exempts from release "[t]he identity of a suspect who has not been charged with the offense to which the record pertains * * *." Thus, the names of suspects in a criminal investigation who were neither charged with nor arrested for an offense are specifically exempt from release under R.C. 149.43(A)(2)(a). See State ex rel. Outlet Communications, Inc. v. Lancaster Police Dept. (1988), 38 Ohio St.3d 324, 328, 528 N.E.2d 175, 178.
Moreover, the statute does not limit the exemption to "current" suspects or require an active, ongoing investigation. Nor does the statute express the concept that the passage of time or the lack of follow-up prosecution erodes that statutory protection. In State ex rel. Thompson Newspapers, Inc. v. Martin (1989), 47 Ohio St.3d 28, 546 N.E.2d 939, at paragraph two of the syllabus, we held that a "prosecutor's decision not to file formal charges against a suspect does not take the record of the investigation outside the exception * * * in R.C. 149.43(A)(2) * * *." There, we stated:
"One of the purposes for the public records exception * * * is to avoid the situation in which the release of confidential law enforcement investigatory records would subject a person to adverse publicity where he may otherwise never have been identified with the matter under investigation." Thompson Newspapers, supra, at 30, 546 N.E.2d at 942. Accord State ex rel. Polovischak v. Mayfield (1990), 50 Ohio St.3d 51, 552 N.E.2d 635, syllabus.
Moreover, releasing information about uncharged suspects in inactive criminal investigations could compromise later efforts to reopen and solve those inactive cases. On occasion, police cannot secure enough evidence to convict a suspect until years after an investigation has been labeled "inactive."
Also, a rule requiring that uncharged suspects be current suspects would be difficult to apply. Time-consuming efforts would be required to find out if the uncharged suspects were "current" suspects. We believe the General Assembly rather than this court has the responsibility to place such conditions on this exemption.
The court of appeals correctly followed our prior decisions in State ex rel. Polovischak v. Mayfield, supra, and State ex rel. Thompson Newspapers, Inc. v. Martin, supra. Moreland has presented no compelling reasons why we should overrule those decisions, and we decline to do so.
However, in reviewing the records relating to the November 1, 1985 murders, the court of appeals apparently overlooked the fact that the police arrested suspect Eugene Ray Hagans on November 2, 1985 for attempted aggravated murder. That arrest took Hagans out of the exemption category in R.C. 149.43(A)(2)(a), a "suspect who has not been charged with the offense to which the records pertains * * *."
In State ex rel. Outlet Communications, Inc. v. Lancaster Police Dept., supra, 38 Ohio St.3d at 328, 528 N.E.2d at 178-179, we found that a person who had been arrested or given a citation "* * * is more than just a suspect under investigation, at least for purposes of application of R.C. 149.43. * * * [E]ven though [such] a person * * * may subsequently not be prosecuted on such violation, it may be reasonably concluded that such person has been charged." (Emphasis added.)
Thus, we find that the court of appeals incorrectly applied R.C. 149.43(A)(2)(a) to exempt records relating to Hagans; he was not an "uncharged" suspect, having been arrested in connection with the November 1, 1985 homicides. (See Index I, documents H, J, K [pages 2 and 3], O, P, Q, R, S, U, V, and W.) The court of appeals did correctly apply R.C. 149.43(A)(2)(a) to exempt investigative records as to the October 18, 1985 Russell homicide.
Accordingly, the judgment of the court of appeals is affirmed in part as to the disposition of investigative records on the October 18, 1985 Russell homicide. The judgment of the court of appeals is reversed in part and the cause is remanded to the court of appeals for release of additional records relating to the November 1, 1985 homicides consistent with this opinion.
Judgment affirmed in part and reversed in part.
MOYER, C.J., A.W. SWEENEY, WRIGHT and PFEIFER, JJ., concur.
DOUGLAS and RESNICK, JJ., dissent and would affirm the court of appeals' opinion in its entirety.
F.E. SWEENEY, J., dissents and would affirm.