State ex rel. Master v. City of Cleveland

[This opinion has been published in Ohio Official Reports at 

75 Ohio St.3d 23

.]




        THE STATE EX REL. MASTER ET AL. v. CITY OF CLEVELAND ET AL.
            [Cite as State ex rel. Master v. Cleveland, 

1996-Ohio-228

.]
Mandamus to compel city prosecutor to investigate alleged misuse of a police
        computer by a police officer, to initiate an investigation into criminal
        allegations already being investigated by other law enforcement
        personnel, and to appoint a special prosecutor—Writ denied, when.
     (No. 95-1108—Submitted December 5, 1995—Decided March 4, 1996.)
                                      IN MANDAMUS.
                                  __________________
        {¶ 1} In 1993, relator John H. Nix, a licensed securities broker, befriended
relator John R. Master, an elderly retired physician and widower. Nix thereafter
assisted Master in personal and business matters and moved into Master’s
Brookside Drive residence in Cleveland.             Nix, Master, and relator Rebekah
Deamon formed a partnership to build homes on undeveloped land owned by
Master which was adjacent to his home. According to Master, his neighbors were
upset about the prospective development of the property because they feared that
African-Americans would move to Brookside Drive.
        {¶ 2} During this period, Nix informed the F.B.I. that over $170,000 in
bearer bonds owned by Master had been stolen by Master’s relatives, Lillian and
Orlando Autuori. According to relators, Sue Sazima, a Cleveland police officer
who is also the grandniece of both Master and the Autuoris, became involved in the
dispute between Nix and Master and their neighbors because Sazima wanted to
assist the Autuoris and gain control of Master’s assets. Relators allege that the
Brookside Drive residents, Sazima, and others conspired to achieve their various
objectives by attempting to have Nix implicated in defrauding Master to obtain
control of his assets.
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       {¶ 3} Relators claim that, as part of the alleged conspiracy, telephone
conversations conducted by relators Nix and Master from their Brookside Drive
home were illegally intercepted and recorded in February and March 1994. On
March 29, 1994, Nix was appointed conservator of the estate and person of Master
by the probate court. On the same date, Nix learned about the alleged wiretapping.
       {¶ 4} By letter dated May 6, 1994, relators’ counsel requested that
respondent Lieutenant Henry A. Tekancic, officer-in-charge of the Professional
Conduct Internal Review Unit (“PCIR”) of Cleveland’s Division of Police,
investigate Sazima’s alleged misconduct. This request was made in connection
with a federal lawsuit filed against Sazima and others. The letter alleged that
Sazima had “abused her position as a police officer by using police records and
accessing police computers to conduct an illegal and unauthorized investigation
into the affairs” of relators Nix, Master, and Deamon. The federal complaint
alleged illegal wiretapping by Sazima.
       {¶ 5} The PCIR Unit is a specialized unit within the Cleveland Police
Division which investigates felony criminal acts alleged to have been committed
by division employees. Upon receiving the May 6, 1994 letter, Lieutenant Tekancic
began an investigation into the allegation that Sazima had illegally accessed a
police computer. The investigation was conducted as a criminal matter and was
presented in January 1995 to respondent Carolyn Watts Allen, Chief Municipal
Prosecutor for the city of Cleveland. On January 5, 1995, Allen concluded that
there was insufficient evidence to establish probable cause that Sazima had
committed a crime.
       {¶ 6} Tekancic agreed with Allen’s conclusion, based on evidence that
Lieutenant Richard Petrencsik, head of the division’s Fraud Unit, had asked Sazima
to locate Master’s living blood relatives as part of that unit’s fraud investigation.
While Lieutenant Petrencsik did not specifically instruct Sazima to use a police
computer, he believed that Sazima was authorized to do so.



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                                 January Term, 1996




       {¶ 7} After being provided affidavits of Nix and Master and evidence that
Sazima had invoked her Fifth Amendment privilege against self-incrimination in a
related lawsuit, Lieutenant Tekancic commenced an investigation of the
wiretapping allegations in March 1995. This criminal investigation is still ongoing
and is being conducted jointly by the PCIR Unit and the Cuyahoga County
Prosecuting Attorney’s Office.
       {¶ 8} In an April 20, 1995 letter, relators’ counsel informed Chief
Prosecutor Allen that Lieutenant Petrencsik had testified that he had not authorized
Sazima to use the police computer to locate Master’s blood relatives. Relators’
counsel demanded that Allen conduct an immediate investigation into “Tekancic’s
falsifying” of the report which cleared Sazima of misusing a police computer,
Sazima’s “illegal and unauthorized investigation,” her “illegal and unauthorized
use of police department resources,” her “illegal wiretapping,” and the illegal use
and disclosure of the contents of wiretap tapes by Sazima and other police
personnel. Allen refused relators’ request.
       {¶ 9} In May 1995, relators requested that all respondents, various city
officials including Lieutenant Tekancic and Chief Prosecutor Allen, allow relators
to inspect certain records pursuant to Ohio’s Public Records Act, R.C. 149.43.
Relators specifically requested to inspect (1) “[a]ny and all documents pertaining
to the investigation presently being conducted by the Internal Affairs Division ***
relating to the interception and recording of telephone conversations of [relators]
and other persons during the time period of February and March, 1994” from
telephones located at the Brookside Drive address, and (2) “[a]ny and all tape
recordings or transcripts of tape recordings of telephone conversations of [relators]
and other persons intercepted” from the Brookside Drive residence during the same
period. Relators also requested from Lieutenant Tekancic all witness statements
given in connection with the police wiretapping investigation and further requested




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from Chief Prosecutor Allen her file and records as to the police investigation into
Sazima’s alleged misuse of a police computer.
       {¶ 10} According to Lieutenant Tekancic, the only items in the custody of
the PCIR Unit responsive to relators’ public records requests “are those collected
or generated in connection with the ongoing criminal investigation” into the
wiretapping allegations. Chief Prosecutor Allen has only one responsive document
in her custody, i.e., her January 1995 opinion concluding that there was insufficient
evidence to establish probable cause that Sazima had committed a crime in
accessing a police computer. A copy of Allen’s opinion has been provided to
relators. Cleveland Director of Public Safety William Denihan has a copy of
Lieutenant Tekancic’s PCIR Unit report summarizing the status of the criminal
investigation regarding the alleged wiretapping. None of the remaining individual
respondents has possession or custody of any of the requested records.
       {¶ 11} In June 1995, relators, Master, Nix, Deamon, Richard C. Klein, and
accountant William Weinkamer, instituted this action seeking writs of mandamus
(1) to compel Chief Prosecutor Allen to conduct and complete an investigation into
the alleged misconduct of Tekancic, Sazima, and other city employees, and (2) to
compel respondents to allow relators to inspect and copy the requested records. In
conjunction with relators’ public records claim, they also request “appointment of
a Special Prosecutor to investigate and prosecute the wiretappers, and those who
have concealed the wiretapping.” We issued an alternative writ. 

72 Ohio St.3d 1536

, 

650 N.E.2d 477

. The cause is now before the court on the submitted evidence
and briefs.
                             ____________________
       Harold Pollock Co., L.P.A., and Harold Pollock, for relators.
       Sharon Sobol Jordan, Cleveland Director of Law, and Kathleen A. Martin,
Chief Trial Counsel, for respondents.
                             ____________________



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                                January Term, 1996




       Per Curiam.
       {¶ 12} As a preliminary matter, respondents have moved to strike relators’
lengthy complaint on the basis that the complaint does not contain a short and plain
statement of relators’ claims as required by Civ.R. 8(A). Respondents contend that
relators’ complaint is replete with “redundant, immaterial, impertinent, or
scandalous matter.” Civ.R. 12(F). Respondent Allen has also moved to dismiss
relators’ claim against her to investigate various matters, pursuant to Civ.R.
12(B)(6), failure to state a claim upon which relief can be granted.
       {¶ 13} While Civ.R. 8(A) generally requires only notice pleading,
S.Ct.Prac.R. X(4)(B) modifies that standard by mandating the pleading of specific
facts rather than unsupported conclusions in original actions filed in this court.
However, S.Ct.Prac.R. X(4)(B) does not grant the parties license to plead
“redundant, immaterial, impertinent, or scandalous matter.” Nevertheless, we have
issued an alternative writ and the case has been submitted on the evidence and
briefs. An alternative writ recognizes that relators’ complaint “may have merit.”
Staff and Committee Notes to S.Ct.Prac.R. X. Therefore, respondents’ motions are
overruled. See S.Ct.Prac.R. X(2) (“All original actions shall proceed under the
Ohio Rules of Civil Procedure, unless clearly inapplicable.”).         We therefore
consider the merits of this case on the submitted evidence and briefs.
       {¶ 14} Relators assert in their first proposition of law that this court should
issue a writ of mandamus to compel respondent Allen to investigate Sazima’s
alleged misuse of a police computer, Tekancic’s alleged falsification of his
investigative report, and the alleged wiretapping. In order to be entitled to a writ
of mandamus, relators must establish (1) a clear legal right to the requested
investigations, (2) a corresponding clear legal duty on the part of Allen to conduct
the requested investigations, and (3) the lack of an adequate remedy in the ordinary
course of law. State ex rel. Donaldson v. Alfred (1993), 

66 Ohio St.3d 327, 329

,

612 N.E.2d 717, 719

.




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       {¶ 15} A prosecuting attorney will not be compelled to prosecute a
complaint except when the failure to prosecute constitutes an abuse of discretion.
State ex rel. Squire v. Taft (1994), 

69 Ohio St.3d 365, 368

, 

632 N.E.2d 883, 885

;
State ex rel. Murr v. Meyer (1987), 

34 Ohio St.3d 46, 47

, 

516 N.E.2d 234, 235

.
Therefore, the decision whether to prosecute is discretionary, and not generally
subject to judicial review. Ohio Assn. of Pub. School Emp., Chapter 643, AFSCME,
AFL-CIO v. Dayton City School Dist. Bd. of Edn. (1991), 

59 Ohio St.3d 159, 160

,

572 N.E.2d 80, 82

.
       {¶ 16} Relators contend that Allen abused her discretion in failing to
prosecute Sazima for illegal use of a police computer for nonlaw-enforcement
purposes and for failing to prosecute Tekancic for falsifying his investigative report
clearing Sazima of that charge. An abuse of discretion connotes a decision that is
unreasonable, arbitrary or unconscionable. Gen. Motors Corp. v. Tracy (1995), 

73 Ohio St.3d 29, 32

, 

652 N.E.2d 188, 190

. The evidence indicates that Sazima was
officially instructed to locate Master’s living relatives as part of a fraud unit
investigation and that Sazima was authorized to use the police computer.
Therefore, Allen could justifiably conclude that Sazima did not misuse the police
computer and that Tekancic did not falsify his report on the allegation against
Sazima. Allen did not abuse her discretion in refusing to reopen the investigation
of Sazima or in failing to prosecute Tekancic.
       {¶ 17} Relators also contend that Allen abused her discretion in refusing to
investigate the wiretapping allegations as specified in relators’ April 20, 1995 letter
to Allen. However, at the time, a joint criminal investigation was being conducted
by the PCIR Unit and the Cuyahoga County Prosecuting Attorney. Allen had no
duty to initiate an investigation into criminal allegations that were already being
investigated by other law enforcement personnel.
       {¶ 18} Relators finally request that this court appoint a special prosecutor
from outside Cleveland to investigate and prosecute the alleged wiretappers.



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                                January Term, 1996




Relators’ goal could be achieved by motion in the Cuyahoga County Court of
Common Pleas. Courts of common pleas possess inherent power to appoint special
prosecutors in criminal matters. See State ex rel. Johnson v. Talikka (1994), 

71 Ohio St.3d 109

, 

642 N.E.2d 353

; State ex rel. Williams v. Zaleski (1984), 

12 Ohio St.3d 109

, 12 OBR 153, 

465 N.E.2d 861

; State v. Bunyan (1988), 

51 Ohio App.3d 190

, 

555 N.E.2d 980

. Since relators have an adequate remedy at law as to their
request for a special prosecutor, extraordinary relief in mandamus is not warranted
on this basis either. Relators’ first proposition of law is overruled.
       {¶ 19} Relators assert in their second proposition of law that they are
entitled to a writ of mandamus compelling respondents to disclose the public
records in their possession. Relators’ mandamus claim is pursuant to R.C. 149.43,
Ohio’s Public Records Act. Mandamus is the appropriate remedy to compel
compliance with R.C. 149.43. State ex rel. Steckman v. Jackson (1994), 

70 Ohio St.3d 420, 426

, 

639 N.E.2d 83, 89

. “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

.
       {¶ 20} Relators rely on Henneman v. Toledo (1988), 

35 Ohio St.3d 241

, 

520 N.E.2d 207

, syllabus, where the court held that “[r]ecords and information
compiled by an internal affairs division of a police department are subject to
discovery in civil litigation arising out of alleged police misconduct if, upon an in
camera inspection, the trial court determines that the requesting party’s need for
the material outweighs the public interest in the confidentiality of such
information.” Relators contend that such records are discoverable regardless of
whether the investigation is pending or closed.
       {¶ 21} In Henneman, the plaintiff in a civil suit alleging civil rights
violations requested the production of various documents which the defendants
claimed were confidential, privileged, and not subject to discovery because the




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                             SUPREME COURT OF OHIO




records were compiled by the police department in its internal investigation of
alleged police misconduct. This court explicitly held that the requested documents
were subject to discovery in that case notwithstanding R.C. 149.43(A)(2)’s
exemption for “[c]onfidential law enforcement investigatory record[s]”:
       “In arguing that internal affairs investigatory files are shielded from
disclosure in this case by [R.C. 149.43(A)(2)], appellants rely heavily on cases from
this court holding that law enforcement investigation records are exempt from the
public disclosure requirements of R.C. 149.43.        *** Appellants’ reliance is
misplaced. These cases stand for the proposition that the law enforcement records
described in R.C. 149.43(A)(2) are not subject to the requirement of R.C. 149.43(B)
that all public records must be made available to the general public upon request at
any reasonable time. Appellee herein is not contending that the records she requests
must be made available to her as a member of the general public. R.C. 149.43(A)(2)
only operates to exempt the records described therein from the requirement of
availability to the general public on request. It does not protect records from a
proper discovery request in the course of litigation, if such records are otherwise
discoverable. Thus, R.C. 149.43 is not dispositive.” 

Id.,

35 Ohio St.3d at 244-245

,

520 N.E.2d at 210-211

.
       {¶ 22} Henneman’s balancing test cannot be applied to public records
requests under R.C. 149.43 because “‘the General Assembly has already weighed
and balanced the competing public policy considerations between the public’s right
to know how its state agencies make decisions and the potential harm,
inconvenience or burden imposed on the agency by disclosure.’” State ex rel.
Thomas, supra, 71 Ohio St.3d at 249, 

643 N.E.2d at 130

, quoting State ex rel. James
v. Ohio State Univ. (1994), 

70 Ohio St.3d 168, 172

, 

637 N.E.2d 911, 913-914

; see,
also, State ex rel. Multimedia, Inc. v. Snowden (1995), 

72 Ohio St.3d 141, 143-144

,

647 N.E.2d 1374, 1378

. Henneman is therefore not controlling as to relators’ R.C.
149.43 claims. See State ex rel. Multimedia, Inc. v. Whalen (1990), 

48 Ohio St.3d 8

                               January Term, 1996




41, 41-42, 

549 N.E.2d 167, 167-168

. However, Henneman may be applicable in
the civil lawsuit which relators have filed which alleges the same police
misconduct.
       {¶ 23} Addressing the merits of relators’ public records claim, we find that
respondents’ evidence indicates that except for Tekancic, Denihan, and Allen, none
of the respondents has possession of any of the requested records. Allen has already
provided relators with the only responsive record that is in her custody.
Consequently, relators’ public records claims against the respondents, except
Tekancic and Denihan, are without merit. See 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.”).
       {¶ 24} Respondents contend that the requested records are excepted from
disclosure as specific investigatory work product under R.C. 149.43(A)(2)(c).
“Except 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.” 

Steckman, supra,

70 Ohio St.3d 420

, 

639 N.E.2d 83

, at paragraph five of the syllabus. In State
ex rel. Police Officers for Equal Rights v. Lashutka (1995), 

72 Ohio St.3d 185, 188

,

648 N.E.2d 808, 810

, this court clarified Steckman, holding that “Steckman applies
to actual pending or highly probable criminal prosecutions and defines, in that
context, the very narrow exceptions in R.C. 149.43.” (Emphasis sic.)
       {¶ 25} In the case at bar, respondents’ evidence establishes that an active
and ongoing criminal investigation is being jointly conducted by the PCIR Unit of
the Cleveland Police Division and the Cuyahoga County Prosecuting Attorney. A
criminal investigation of a police officer by the PCIR unit is conducted in a manner




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                              SUPREME COURT OF OHIO




similar to other criminal investigations “aimed at possible prosecution,” and could
result in criminal charges.
       {¶ 26} There is no evidence that criminal charges against police officers or
other individuals involved in the alleged wiretapping against relators are either
“pending” or “highly probable” as required for application of the work product
exception. See 

Steckman, supra,

 at paragraph five of the syllabus, and Police
Officers for Equal Rights, supra, 

72 Ohio St.3d at 188

, 

648 N.E.2d at 810

. Here,
the evidence shows only that criminal charges are possible. R.C. 149.43(A)(2)(c)
does not except the requested records.
       {¶ 27} Nevertheless, the evidence establishes the applicability of a separate,
albeit unargued, exception. See State ex rel. Plain Dealer Publishing Co. v.
Cleveland (1996), ___ Ohio St.3d ___, ___ N.E.2d ___ (exceptions to disclosure
are not affirmative defenses, and the city’s failure to raise exceptions does not
prevent the court from considering them). R.C. 149.43(A)(2)(a) is the exception
for uncharged suspects:
       “‘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 ***:
       “(a) The identity of a suspect who has not been charged with the offense to
which the record pertains ***.”
       {¶ 28} R.C. 149.43(A)(2)(a) excepts records that identify persons who have
neither been charged with nor arrested for an offense. State ex rel. Moreland v.
Dayton (1993), 

67 Ohio St.3d 129, 130

, 

616 N.E.2d 234, 236

; State ex rel. Outlet
Communications, Inc. v. Lancaster Police Dept. (1988), 

38 Ohio St.3d 324, 328

,

528 N.E.2d 175, 178

. “[O]ne of the purposes for [this] 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



                                         10
                                January Term, 1996




otherwise never have been identified with the matter under investigation.” State ex
rel. Thompson Newspapers, Inc. v. Martin (1989), 

47 Ohio St.3d 28, 30

, 

546 N.E.2d 939, 942

. The uncharged suspect exception applies despite the passage of time, the
lack of enforcement action, or a prosecutor’s decision not to file formal charges.

Moreland, supra,

67 Ohio St.3d at 130-131

, 

616 N.E.2d at 236

; State ex rel. Natl.
Broadcasting Co., Inc. v. Cleveland (1991), 

57 Ohio St.3d 77, 80

, 

566 N.E.2d 146, 149

. It is thus not restricted to current, uncharged suspects. State ex rel. Sweeney
v. Parma Hts. (1994), 

93 Ohio App.3d 349, 352

, 

638 N.E.2d 614, 617

. Even
releasing information concerning uncharged suspects in inactive criminal
investigations might “compromise later efforts to reopen and solve those inactive
cases.” 

Moreland, supra,

67 Ohio St.3d at 131

, 

616 N.E.2d at 236

. As stated by
Tekancic in his affidavit, “it is unfair to publicly disclose that someone is a suspect
in a criminal investigation until such time as that person may be criminally
charged.”
       {¶ 29} Relators specifically request to inspect and copy the PCIR Unit
investigative records in order “to identify all of the persons who have committed
wiretapping offenses against them, and who have been involved in the conspiracy
to conceal the wiretapping ***.”       (Emphasis added.)       However, under R.C.
149.43(A)(2)(a), relators are not entitled to disclosure of the requested records
which identify uncharged suspects in the alleged wiretapping. Therefore, relators
are only entitled to those portions of the requested records which do not create a
high probability of disclosure of the identity of uncharged suspects, e.g., any tape
recordings of relators’ telephone conversations.
       {¶ 30} Relators request that the court conduct an in camera inspection of
the subject records pursuant to Henneman. As previously discussed, Henneman is
inapposite here. However, normally, “[w]hen 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




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finds that these records contain excepted information, this information must be
redacted and any remaining information must be released.” State ex rel. Natl.
Broadcasting Co., Inc. v. Cleveland (1988), 

38 Ohio St.3d 79

, 

526 N.E.2d 786

,
paragraph four of the syllabus; see, also, State ex rel. Natl. Broadcasting Co., Inc.
v. Cleveland, supra, 

57 Ohio St.3d at 81

, 

566 N.E.2d at 150

. Here, an in camera
review of the subject records is appropriate in order to determine which portions
are properly redacted under the uncharged suspect exception, R.C. 149.43(A)(2)(a),
and which portions must be disclosed.
       {¶ 31} Accordingly, for the foregoing reasons, we order respondents
Tekancic and Denihan to submit the subject records under seal, and allow the
parties to file briefs on the applicability of the uncharged suspect exception.
Relators’ requests for writs of mandamus are, in all other respects, denied.
                                                             Judgment accordingly.
       MOYER, C.J., WRIGHT, RESNICK and COOK, JJ., concur.
       DOUGLAS, F.E. SWEENEY and PFEIFER, JJ., concur in judgment only.
                              __________________




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