Summary
noting that investigation of suspect, unlike arrest or issuance of citation, involves “no public action”
Summary of this case from Galloway v. Town of HartfordOpinion
No. 87-1708
Submitted June 8, 1988 —
Decided September 2, 1988.
Public records — Arrest and intoxilyzer records are not confidential law enforcement investigatory records — Furtherance of Justice Fund records — Disclosure required, when — R.C. 149.43(A)(2)(a).
O.Jur 3d Records and Recording §§ 15, 25.
Arrest records and intoxilyzer records which contain the names of persons who have been formally charged with an offense, as well as those who have been arrested and/or issued citations but who have not been formally charged, are not confidential law enforcement investigatory records within the exception to the Public Records Law, R.C. 149.43(A)(2)(a), and are thus subject to disclosure.
APPEAL from the Court of Appeals for Fairfield County, No. 23-CA-86.
This matter involves an appeal from an original action seeking a writ of mandamus in the court of appeals. Relator-appellant, Outlet Communications, Inc. ("Outlet"), operates a television station, WCMH-TV, in Columbus, Ohio. Mike Brown, a reporter employed by Outlet, wrote a letter to the Lancaster Police Department, a respondent-appellee herein, requesting an opportunity to inspect records maintained by that department pertaining to the arrests and prosecution of drunk driving offenses in Lancaster, Ohio. The records sought included arrest records, intoxilyzer records and "Furtherance of Justice Fund" records. The city law director replied by letter, asserting exceptions under R.C. 149.43 to the Ohio Public Records Law, and accordingly refused to allow the inspection of the records.
It was stipulated by the parties that there are three categories of records at issue, which are as follows:
I. Arrest Records.
A. Arrest record docket book.
The arrest record docket book is a continuous chronological listing of the daily arrest, detention and citation activity of the Lancaster Police Department. The purpose of the docket book is to provide police officers with a daily source of information concerning problem people in their area as well as a daily source for locating persons involved in ongoing investigations.
Identities of the following categories of persons coming into contact with the police department are listed in the docket book:
1. persons arrested on probable cause and charged with a criminal violation;
2. persons not arrested but charged with a criminal violation;
3. persons arrested on probable cause but subsequently not formally charged or indicted for a criminal violation; and
4. persons who are given citations for traffic violations or minor misdemeanor violations and whom the prosecutor subsequently elects not to prosecute.
The names of juveniles as well as adults are listed in the docket book. The docket book is compiled from the following sources: the three-part officers report forms, the four-part traffic citation forms, and the four-part minor misdemeanor citation forms.
In addition, the court dispositions, when available, are recorded for the various individual entries. This disposition is not recorded when the case is still pending or where the entry involves a juvenile arrest, a military AWOL arrest, or where the person arrested was taken to a mental hospital. The procedure for making entries in the docket book is as follows: after the police officer makes out his paperwork, i.e., one or more of the three forms listed above, the officer turns it in to the desk officer. The desk officer reviews each form and then he or a clerk enters the information into the docket book. Once or twice a week, a clerk goes to the courthouse and obtains recent dispositions which are then recorded in the docket book.
B. Non-filed citations.
All traffic citations, adult and juvenile, are issued on the numerically sequential preprinted forms and are not destroyed. A separate file is kept of all citations that are not presented to the court, the prosecutor, or docketed. Citations kept in the latter file include those that contain clerical errors, false initial identification, or designate the wrong traffic statute. All citations are reviewed by senior watch personnel prior to docketing and, when problems such as those listed above are detected, the citations are removed from the system and placed in the nonpresented citation file.
II. Intoxilyzer Records.
The intoxilyzer book is a continuous chronological listing of all individuals arrested and tested on the intoxilyzer for operating a motor vehicle under the influence of alcohol ("OMVI"). The intoxilyzer book is filled out by certified intoxilyzer operators. Notations are made in the book of all instrument calibration tests and repairs or out-of-service time. The book is supplemented by all officer proficiency tests, officer certificates of authority, calibration solution affidavits from the Ohio Department of Health and forms for the individuals' right to refuse the test. The book includes names of persons arrested and charged with OMVI. It also includes names of persons who are arrested for OMVI but whose test results were such that no charge was ever filed. Examples of the latter category of persons include those who tested well below the statutory limit, or those for whom the test results were shown to be invalid.
III. Furtherance of Justice Fund Records.
This file is maintained personally by the chief of police. It is subject to audit by the Lancaster City Auditor and the State Auditor. It is also reviewed by the Chairman of the Finance Committee of the Lancaster City Council. The most recent audit was completed on April 29, 1985. This file contains information regarding uses of the fund, identities of confidential sources and informants (either names or initials), private contributors and public appropriations. Information is also kept regarding expenditures from the funds, i.e., to whom and for what purpose.
The matter was submitted to the court of appeals on the pleadings, stipulations of fact, cross-motions for summary judgment and related briefs of the parties. The court did not conduct an inspection of the actual records at issue. On August 10, 1987, the court issued an opinion and a judgment entry denying Outlet's request in its entirety. The court found that all the records at issue were excepted from public disclosure. The court held them to be confidential law enforcement investigatory records on the asserted grounds that the arrest records and intoxilyzer records contained "the names of persons who have not been charged with the offense to which the record pertains" pursuant to R.C. 149.43(A)(2)(a), and that the Furtherance of Justice Fund records contained "information from confidential sources which would reasonably tend to disclose their identities * * *" pursuant to R.C. 149.43(A)(2)(b).
The cause is now before this court on an appeal as of right.
Vorys, Sater, Seymour Pease, C. William O'Neill and Charles P. Hurley, for appellant.
John D. Huddle, law director, and Ted V. Russell, for appellees.
The Public Records Law, R.C. 149.43(B), in pertinent part, provides that "[a]ll public records shall be promptly prepared and made available for inspection to any person at all reasonable times during regular business hours. * * *" More pointedly applicable to the questions of law presented here is the definition and exception section to this law, R.C. 149.43(A), which states in pertinent part:
"As used in this section:
"(1) `Public record' means any record that is kept by any public office, including, but not limited to, state, county, city, village, township, and school district units, except medical records, records pertaining to adoption, probation, and parole proceedings, records pertaining to actions under section 2151.85 of the Revised Code and to appeals of actions arising under that section, records listed in division (A) of section 3107.42 of the Revised Code, trial preparation records, confidential law enforcement investigatory records, and records the release of which is prohibited by state or federal law.
"(2) `Confidential law enforcement investigatory record' means 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:
"(a) The identity of a suspect who has not been charged with the offense to which the record pertains, or of an information source or witness to whom confidentiality has been reasonably promised;
"(b) Information provided by an information source or witness to whom confidentiality has been reasonably promised, which information would reasonably tend to disclose his identity;
"(c) Specific confidential investigatory techniques or procedures or specific investigatory work product;
"(d) Information that would endanger the life or physical safety of law enforcement personnel, a crime victim, a witness, or a confidential information source."
There are two basic issues presented within this appeal. First, whether a person who has been arrested or cited for a traffic offense, such as OMVI, but has not been formally charged, falls within the exception to the Public Records Law, R.C. 149.43(A)(2)(a), pertaining to "[t]he identity of a suspect who has not been charged with the offense to which the record pertains * * *." Second, whether R.C. 149.43 requires the disclosure of any public information that might be contained within a record which also contains information which is excepted from disclosure under the law. We answer the first issue in the negative, and answer the second issue in the affirmative.
By virtue of the recent amendments to the Public Records law, which were in response to prior determinations of this court, we must reasonably construe the provisions herein involved to mean that confidential law enforcement investigatory records are, subject only to the specific narrow exceptions, within the compulsory disclosure provisions of the statute. State, ex rel. Natl. Broadcasting Co., v. Cleveland (1988), 38 Ohio St.3d 79, 526 N.E.2d 786, paragraph one of the syllabus. Additionally, this court has shown its public policy awareness of the fundamental use of this Public Records Law as it pertains to drunk driver records in State, ex rel. Mothers Against Drunk Drivers, v. Gosser (1985), 20 Ohio St.3d 30, 20 OBR 279, 485 N.E.2d 706, wherein we held records of intoxilyzer test results are public records which, absent any specific statutory exclusion, must be made available for public inspection.
In State, ex rel. Beacon Journal, v. Univ. of Akron (1980), 64 Ohio St.2d 392, 18 O.O. 3d 534, 415 N.E.2d 310, this court acknowledged that the legislative amendment to R.C. 149.43 was intended to reverse the result reached in Wooster Republican Printing Co. v. Wooster (1978), 56 Ohio St.2d 126, 10 O.O. 3d 312, 383 N.E.2d 124, wherein we held that the prior version of R.C. 149.43 that contained no specific reference to law enforcement records did not require the disclosure of police and other law enforcement investigatory records.
Accordingly, the exceptions to disclosure as enumerated in R.C. 149.43 are to be construed strictly against the police department, the custodian of the records determined to be public herein, and any doubts shall be resolved in favor of disclosure. State, ex rel. Plain Dealer Publishing Co., v. Krouse (1977), 51 Ohio St.2d 1, 2, 5 O.O. 3d 1, 364 N.E.2d 854, 855.
The court of appeals found that the arrest records and intoxilyzer records were confidential law enforcement investigatory records pursuant to R.C. 149.43(A)(2)(a) on the ground that they contained the names of persons who had been arrested and/or issued citations but who had not been formally charged. We conclude that it is neither necessary nor controlling to engage in a query as to whether or not a person who has been arrested or issued a citation for minor criminal violations and traffic violations, as primarily involved herein, has been formally charged. Arrest records and intoxilyzer records which contain the names of persons who have been formally charged with an offense, as well as those who have been arrested and/or issued citations but who have not been formally charged, are not confidential law enforcement investigatory records within the exception of R.C. 149.43(A)(2)(a).
We find that the statute, by referring to "suspects," was intended to except documents that identified persons who were subject to ongoing investigations as to which no public action, such as an arrest or a citation, had yet been taken. The term "suspects" clearly implies persons subject to ongoing investigations. One who has been arrested or given a citation, which is in lieu of arrest for a minor misdemeanor in Ohio as provided by statute, is more than just a suspect under investigation, at least for purposes of application of R.C. 149.43. Within the context of our discussion here, even though a person who has been arrested or given a citation for a traffic violation may subsequently not be prosecuted on such violation, it may be reasonably concluded that such person has been charged.
R.C. 2935.26 provides, in pertinent part:
"(A) Notwithstanding any other provision of the Revised Code, when a law enforcement officer is otherwise authorized to arrest a person for the commission of a minor misdemeanor, the officer shall not arrest the person, but shall issue a citation, unless one of the following applies:
"(1) The offender requires medical care or is unable to provide for his own safety.
"(2) The offender cannot or will not offer satisfactory evidence of his identity.
"(3) The offender refuses to sign the citation."
Accordingly, in relation to the arrest records and the intoxilyzer records involved here, we hold that for purposes of the application of the Public Records Law such records contain names of persons who have been charged with an offense and that these records are not confidential law enforcement investigatory records, and are subject to disclosure pursuant to R.C. 149.43.
In the instant case, the court of appeals held that the Furtherance of Justice Fund records were confidential law enforcement investigatory records excepted from disclosure by R.C. 149.43(A)(2)(b) because the records contained "information from confidential sources which would reasonably tend to disclose their identities." As stated previously, these records contained information of the sources of the fund, uses of the fund, identities of confidential sources and informants, and specific entries as to distribution of the fund. In analyzing such filed information, some of it would appear to be confidential and some would appear to be public. We conclude that that which may be considered in the latter category must be open to inspection pursuant to R.C. 149.43, and that which is in the former confidential category must be withheld, or redacted, from disclosure. The fact that excepted material is contained in a record that also contains material subject to disclosure does not relieve the agency of its duty to disclose the nonexempted material. State, ex rel. Dispatch Printing Co., v. Wells (1985), 18 Ohio St.3d 382, 18 OBR 437, 481 N.E.2d 632. As we recently stated in State, ex rel. Natl. Broadcasting Co., v. Cleveland, supra, at paragraph four of the syllabus:
"When a governmental body asserts that public records are excepted from disclosure and such assertion is challenged, the court must make an individualized scrutiny of the records in question. If the court finds that these records contain excepted information, this information must be redacted and any remaining information must be released."
As to the Furtherance of Justice Fund records involved herein, a portion of the files may contain names of confidential sources, witnesses, police tipsters and information sources which should be protected as confidential, both from the standpoint of the safety of the individuals involved and from the standpoint of maintaining a continued line of communication from these sources in order to aid the policy investigatory process. In State, ex rel. Natl. Broadcasting Co., supra, we made it clear that the burden of proving that a record falls within an exception to the Public Records Law is placed on the government.
Here, the court of appeals held that the Furtherance of Justice Fund file should be excepted in its entirety on the basis that it held some non-public information. In that we have concluded that any such record must be reviewed in its various component parts, this blanket holding of exception was error. This file is subject to being severed as to its public and non-public content. Since this was not done by the court of appeals, this matter will be remanded for such purpose.
Accordingly, we hereby reverse the court of appeals as to its decision regarding the arrest records and the intoxilyzer records and order that a writ of mandamus issue directing appellees to make these records available to Outlet for inspection. As to Furtherance of Justice Fund records, we hereby reverse the court of appeals, and remand this issue to the court of appeals for a determination of that portion of this particular file which may be public and therefore open for inspection, versus those portions which may be non-public and therefore confidential and not open for inspection pursuant to R.C. 149.43.
Judgment reversed and cause remanded.
MOYER, C.J., SWEENEY, LOCHER, DOUGLAS and WRIGHT, JJ., concur.
H. BROWN, J., not participating.