State ex rel. Leonard v. White

[This opinion has been published in Ohio Official Reports at 

75 Ohio St.3d 516

.]




             THE STATE EX REL. LEONARD v. WHITE, MAYOR, ET AL.
              [Cite as State ex rel. Leonard v. White, 

1996-Ohio-204

.]
Mandamus to compel Cleveland officials to provide relator access to investigative
        file concerning her son’s unsolved homicide—Writ denied when requested
        records are exempt work product under R.C. 149.43(A)(2)(c).
        (No. 95-1864—Submitted April 15, 1996—Decided May 29, 1996.)
                                      IN MANDAMUS.
                                  __________________
        {¶ 1} In June 1993, an unknown person or persons murdered Lawrence
Leonard.     Lawrence died of a single gunshot wound to the upper right side of his
face. A surviving victim of the same incident reported that Lawrence had been shot
by another person.
        {¶ 2} In March 1994, relator, Anne Leonard, Lawrence’s mother, twice
requested that respondents, Cleveland officials, provide her access to records
pertaining both to the circumstances of Lawrence’s death and to whether Lawrence
was involved in any illegal drug activity between January 1983 and June 1993.
Aside from one computerized summary of an offense report, respondents refused
to provide access to any of the requested records.
        {¶ 3} In 1995, relator filed this action for a writ of mandamus to compel
respondents to provide access to the requested records. Respondents subsequently
provided relator with copies of additional offense reports relating to Lawrence
Leonard’s death. We issued an alternative writ, 

74 Ohio St.3d 1445

, 

656 N.E.2d 345

, and the parties filed evidence and briefs.
                                ____________________
        James R. Goodluck and Virginia K. Miller, for relator.
                            SUPREME COURT OF OHIO




       Sharon Sobol Jordan, Cleveland Director of Law, and Lisa M. Herbert,
Assistant Director of Law, for respondents.
                            ____________________
       Per Curiam.
       {¶ 4} 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

. Exceptions to disclosure are strictly construed against the
custodian of the public records, and the burden to establish an exception is on the
custodian. State ex rel. Thomas v. Ohio State Univ. (1994), 

71 Ohio St.3d 245, 247

,

643 N.E.2d 126, 128

.
       {¶ 5} Relator has received certain offense reports from respondents.
However, respondents apparently do not possess any records suggesting that
Lawrence Leonard was involved in any illegal drug activity between January 1983
and June 1993 that are separate from records compiled following Leonard’s
homicide. State ex rel. Fant v. Mengel (1991), 

62 Ohio St.3d 197, 198

, 

580 N.E.2d 1085, 1086

 (“The Public Records Act, R.C. 149.43, does not require that a public
office create new documents to meet a requester’s demand.”). For the reasons that
follow, we find that the remaining requested records which have not been provided
to relator are exempt from disclosure, and relator is not entitled to extraordinary
relief in mandamus.
       {¶ 6} Relator initially contends that a person requesting public records is
entitled to a “written explanation” from public records custodians specifying the
applicable statutory exceptions whenever requested records are withheld.
Relator’s contention is meritless. In order to comply with R.C. 149.43, custodians
need only make public records available for inspection at all reasonable times
during regular business hours, and make copies available upon request at cost,
within a reasonable period of time. R.C. 149.43(B); State ex rel. Fenley v. Ohio
Historical Soc. (1992), 

64 Ohio St.3d 509, 511

, 

597 N.E.2d 120, 122

; State ex rel.



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                               January Term, 1996




Nelson v. Fuerst (1993), 

66 Ohio St.3d 47, 48

, 

607 N.E.2d 836, 838

 (plurality
opinion); see, also, State ex rel. The Warren Newspapers, Inc. v. Hutson (1994), 

70 Ohio St.3d 619, 621

, 

640 N.E.2d 174, 177

. Therefore, R.C. 149.43 does not impose
any duty on public officials to provide written reasons for withholding requested
records.
       {¶ 7} Relator next asserts that respondents have no valid basis to withhold
the requested records. Conversely, respondents claim that the requested records are
exempt from disclosure as specific investigatory work product under R.C.
149.43(A)(2)(c).
       {¶ 8} In State ex rel. Steckman v. Jackson (1994), 

70 Ohio St.3d 420

, 

639 N.E.2d 83

, at paragraph five of the syllabus, we held that “[e]xcept as required by
Crim.R. 16, information assembled by law enforcement officials in connection with
a probable or pending criminal proceeding is, by the work product exception found
in R.C. 149.43(A)(2)(c), excepted from required release as said information is
compiled in anticipation of litigation.” (Emphasis added.) We subsequently held
that “Steckman applies to actual pending or highly probable criminal prosecutions
and defines, in that context, the very narrow exceptions to R.C. 149.43.” (Emphasis
added in part.) State ex rel. Police Officers for Equal Rights v. Lashutka (1995),

72 Ohio St.3d 185, 188

, 

648 N.E.2d 808, 810

; see, also, 

Multimedia, supra,

72 Ohio St.3d at 149

, 

647 N.E.2d at 1382

 (Douglas, J., concurring).
       {¶ 9} Relying on Steckman and Police Officers, relator contends that the
records do not constitute R.C. 149.43(A)(2)(c) work product because there is no
evidence that a criminal proceeding is either “pending” or “highly probable” with
regard to the person or persons who killed Lawrence Leonard. The evidence
indicates that although it became clear almost immediately that Lawrence
Leonard’s death was a homicide, the investigative file remains open, and no persons
have been charged in connection with the homicide.




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                             SUPREME COURT OF OHIO




        {¶ 10} In interpreting paragraph five of the Steckman syllabus, we are
guided by S.Ct.R.Rep.Op. 1(B), which states that “[t]he syllabus of a Supreme
Court opinion states the controlling point or points of law decided in and
necessarily arising from the facts of the specific case before the Court for
adjudication.” (Emphasis added.) State ex rel. Heck v. Kessler (1995), 

72 Ohio St.3d 98, 103

, 

647 N.E.2d 792, 797

. In Steckman, supra, 70 Ohio St.3d at 434, 

639 N.E.2d at 94

, we held that any notes, working papers, memoranda or similar
materials prepared by attorneys or law enforcement officials in anticipation of
litigation constitute work product.
        {¶ 11} Construing paragraph five of the Steckman syllabus in the context of
its discussion concerning work product, it is apparent that relator misinterprets
Steckman.    Almost immediately after Lawrence Leonard’s death, the police
considered it a homicide. Once it is evident that a crime has occurred, investigative
materials developed are necessarily compiled in anticipation of litigation and so fall
squarely within the Steckman definition of work product. Consequently, we hold
that where it is evident that a crime has occurred, although no suspect has yet been
charged, any notes, working papers, memoranda, or similar materials compiled by
law enforcement officials in anticipation of a subsequent criminal proceeding are
exempt from disclosure as R.C. 149.43(A)(2)(c) work product.
        {¶ 12} Under the circumstances of this case, a criminal proceeding is
“probable” within the meaning of paragraph five of the Steckman syllabus and
“highly probable” under Police Officers even where the police have not yet
identified a suspect, as long as it is clear that a crime has in fact been committed.
In cases such as this, the investigative record is necessarily compiled in anticipation
of litigation.   Moreover, as respondents note, if we were to adopt relator’s
construction of the R.C. 149.43(A)(2)(c) work product exception as redefined in
Steckman, police departments’ efforts to effectively investigate and apprehend
criminals would be frustrated.



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                                January Term, 1996




       {¶ 13} Neither Police Officers nor State ex rel. Master v. Cleveland (1996),

75 Ohio St.3d 23

, 

661 N.E.2d 180

, requires a contrary result. In Police Officers,

72 Ohio St.3d 185

, 

648 N.E.2d 808

, we granted a writ of mandamus to compel
access to records relating to police personnel files and internal affairs
investigations. The requested records in Police Officers did not relate to any
criminal investigation. In fact, there was no indication that any crime had been
committed.
       {¶ 14} Similarly, in Master, where we held that the R.C. 149.43(A)(2)(c)
work product exception did not apply, it was not evident that a crime had actually
occurred. When it is not evident that a crime has occurred, the investigative
materials are compiled by law enforcement officials to determine if any crime has
occurred and not necessarily in anticipation of litigation.
       {¶ 15} Therefore, with the exception of the routine offense and incident
reports that have already been provided to relator, we find that the requested records
are exempt work product under R.C. 149.43(A)(2)(c). It is unnecessary to address
the remaining exceptions asserted by respondents.
       {¶ 16} For the foregoing reasons, we deny the writ of mandamus and
overrule relator’s request for attorney fees.
                                                                         Writ denied.
       MOYER, C.J., RESNICK, F.E. SWEENEY, COOK and STRATTON, JJ., concur.
       DOUGLAS, J., concurs in judgment only.
       PFEIFER, J., dissents.
                                __________________




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