State ex rel. WHIO-TV-7 v. Lowe

[This opinion has been published in Ohio Official Reports at 

77 Ohio St.3d 350

.]




                  THE STATE EX REL. WHIO-TV-7 v. LOWE ET AL.
  THE STATE EX REL WDTN-TV-2, APPELLANT, V. LOWE ET AL., APPELLEES.
           [Cite as State ex rel. WHIO-TV-7 v. Lowe, 

1997-Ohio-271

.]
                                  __________________
Public records—Information that a criminal prosecutor has disclosed to
        defendant for discovery purposes pursuant to Crim.R. 16 is not thereby
        subject to release as a “public record” pursuant to R.C. 149.43.
                                 __________________
        Information that a criminal prosecutor has disclosed to the defendant for
discovery purposes pursuant to Crim.R. 16 is not thereby subject to release as a
“public record” pursuant to R.C. 149.43.
                                  __________________
 (Nos. 95-2224 and 95-2356—Submitted September 10, 1996—Decided January
                                         22, 1997.)
                                      IN MANDAMUS.
     APPEAL from the Court of Appeals for Montgomery County, No. 15450.
                                  __________________
        {¶ 1} These two cases arise out of the same circumstances. In case No. 95-
2224, relator WHIO-TV-7 filed in this court an original action in mandamus. In
case No. 95-2356, appellant WDTN-TV-2 appealed the decision by the
Montgomery County Court of Appeals denying appellant’s complaint in
mandamus.
        {¶ 2} On July 18, 1995, Therressa Jolynn Ritchie reported to a Dayton, Ohio
911 operator that her four-year-old daughter Samantha was missing. The local
media, including both relator and appellant in the cases sub judice, extensively
covered the disappearance. On July 22, 1995, law enforcement investigators found
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Samantha’s body in a water-filled pit on the grounds of an abandoned foundry near
her neighborhood. On August 3, 1995, Therressa Jolynn Ritchie and Ernest Vernell
Brooks were arrested on various charges involving Samantha. On August 31, 1995,
the Montgomery County Grand Jury indicted Ritchie for murder, gross abuse of a
corpse, tampering with evidence, inducing a panic, and making a false alarm. The
grand jury indicted Brooks for gross abuse of a corpse, tampering with evidence,
and obstructing justice. On September 14, 1995, Brooks pled guilty to the three
felony counts for which he had been indicted.
       {¶ 3} On August 10, 1995, counsel for appellant WDTN-TV-2 wrote a
letter to respondent-appellee Ronald Lowe, Sr., Chief of the Dayton Police,
requesting that he grant appellant access to any and all “public records concerning
the Therressa Jolynn Ritchie case * * * including, but not limited to: incident
reports; relevant written or recorded statements of witnesses or defendants; written
or recorded summaries of any oral statements made by witnesses or defendants; the
prior criminal records of the defendants or witnesses; any tangible objects,
documents or photographs; and any results of any mental examinations performed
on the defendants, including polygraph results.” On August 28, 1995, WDTN-TV-
2 filed in the Montgomery County Court of Appeals a complaint for a writ of
mandamus requesting that the court compel appellee Lowe to release the records.
On September 20, 1995, the court of appeals granted the motions of both the
Montgomery County Prosecutor and Ritchie to intervene as party respondents. The
court of appeals granted WHIO-TV-7’s motion to participate as an amicus curiae.
On November 2, 1995, the court of appeals denied the application for a writ of
mandamus. On November 17, 1995, WDTN-TV-2 appealed that decision to this
court. The cause is now before this court upon an appeal as of right.
       {¶ 4} The companion case, No. 95-2224, presents similar facts.           On
September 15, 1995, counsel for relator WHIO-TV-7 requested respondent Ronald
Lowe, Sr., Chief of the Dayton Police, to permit the inspection and copying of any




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                                January Term, 1997



written or recorded statements made by defendants Brooks and Ritchie, any written
summaries of any oral statements made by the defendants, any photographs, any
police reports, any result or reports of physical or mental examinations or scientific
tests, and a list of names and addresses of all witnesses in the matter. On September
20, 1995, counsel for WHIO-TV-7 and counsel for WDTN-TV-2 made the same
request of Mathias H. Heck, Jr., Montgomery County Prosecutor, and David M.
Franceschelli, Assistant Prosecuting Attorney. On November 1, 1995, WHIO-TV-
7 filed in this court a complaint in mandamus requesting that the court compel
respondents Lowe, Heck, and Franceschelli to release the records.
       {¶ 5} At this time, respondents-appellees have released only the following
documents:
       (1) Dayton police arrest report for Therressa J. Ritchie with her Social
Security Number redacted;
       (2) Arraignment information sheet for Ritchie with her Social Security
Number and “remarks for arraignment” redacted;
       (3) Dayton police arrest report for Ernest Vernell Brooks with his Social
Security Number redacted;
       (4) Arraignment information sheet for Brooks with his Social Security
Number and “remarks for arraignment” redacted;
       (5) Arrest record for Ritchie with her Social Security Number displayed;
and
       (6) Arrest record for Brooks with certain unspecified information redacted
but with his Social Security Number displayed.
       {¶ 6} On January 17, 1996, this court in case No. 95-2224 granted
respondent Ritchie’s motions to intervene and to consolidate the two cases.
       {¶ 7} The parties agree that certain requested information does not exist.
The parties now agree that the records sought “consist of the following described
documents, to the extent that the same have been disclosed to either counsel for




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Ritchie or to counsel for Brooks, or both, pursuant to Crim.R. 16(B)”:
       (1) Written or recorded statements made by Ritchie and/or Brooks;
       (2) Written summaries of any oral statements made by Ritchie and/or
Brooks;
       (3) Photographs;
       (4) Police reports in addition to the redacted arrest reports and arraignment
information sheets described above;
       (5) Results or reports of physical or mental examinations and scientific tests
made in connection with this matter; and
       (6) A list of the names and addresses of all witnesses.
                               __________________
       Porter, Wright, Morris & Arthur, Robert E. Portune, Thomas L. Czechowski
and Linda S. Holmes, for relator in case No. 95-2224.
       Pickrel, Schaeffer & Ebeling, Andrew C. Storar and Michael W. Sandner,
for appellant WDTN-TV-2 in case No. 95-2356.
       Mathias H. Heck, Jr., Montgomery County Prosecuting Attorney, and
Carley J. Ingram, Assistant Prosecuting Attorney, for respondents Heck and
Franceschelli in case No. 95-2224, and appellee Montgomery County Prosecutor’s
Office in case No. 95-2356.
       J. Anthony Sawyer, Director of Law, for respondent Lowe in case No. 95-
2224, and appellee Lowe in case No. 95-2356.
       Bieser, Greer & Landis, Michael W. Krumholtz and David P. Williamson,
for intervening respondent Ritchie in case No. 95-2224, and appellee Ritchie in
case No. 95-2356.
                               __________________


       ALICE ROBIE RESNICK, J.
       {¶ 8} This case presents the issue of whether information that the criminal




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                                January Term, 1997



prosecutor has disclosed to the defendant for discovery purposes pursuant to
Crim.R. 16, and therefore ordinarily would not be considered to be work product
or trial preparation materials, is precluded from release to the public pursuant to the
public records doctrine.
       {¶ 9} Appellant and relator argue that because the prosecution has already
disclosed to the defendant the subject information pursuant to the criminal
discovery rules, the information cannot be deemed “work product” and thus is
subject to release pursuant to Ohio’s public records doctrine, R.C. 149.43.
Appellees and respondents contend that simply because the prosecutor discloses
information to the defendant pursuant to Crim.R. 16(B), that information does not
automatically become disclosable to the public pursuant to R.C. 149.43. All parties
cite our decision in State ex rel. Steckman v. Jackson (1994), 

70 Ohio St.3d 420

,

639 N.E.2d 83

, paragraphs three and five of the syllabus, in support of their
assertions.
       {¶ 10} Crim.R. 16(B) requires the prosecuting attorney to disclose certain
information to the criminal defendant upon the defendant’s request. This evidence
includes any statement of the defendant or co-defendant, the defendant’s prior
record, and documents and tangible objects, any reports of examination and tests,
any witness names and addresses and their criminal records, and any evidence
favorable to the defendant. Crim.R. 16(B)(1)(a) through (f). The prosecutor must
also allow for the defendant’s in camera inspection of any witness’s statement.
Crim.R. 16(B)(1)(g).
       {¶ 11} The purpose behind the Rules of Criminal Procedure “is to remove
the element of gamesmanship from a trial.” State v. Howard (1978), 

56 Ohio St.2d 328, 333

, 

10 O.O.3d 448, 451

, 

383 N.E.2d 912, 915

. As such criminal discovery
is a matter solely between the prosecutor and the defendant. See, generally,
Lakewood v. Papadelis (1987), 

32 Ohio St.3d 1, 3

, 

511 N.E.2d 1138, 1140

. The
rules governing discovery do not envision a third party’s access to the information




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exchanged. As the United States Court of Appeals for the Eleventh Circuit stated
in United States v. Anderson (C.A. 11, 1986), 

799 F.2d 1438

, 1441:
       “Discovery is neither a public process nor typically a matter of public
record. Historically, discovery materials were not available to the public or press.
See Seattle Times Co. v. Rhinehart, 

467 U.S. 20, 32-34

, 

104 S.Ct. 2199, 2207-08

,

81 L.Ed.2d 17

[, 26-27] (1984) (pretrial interrogatories and depositions ‘were not
open to the public at common law’); Gannett Co. v. DePasquale, 

443 U.S. 368, 396

, 

99 S.Ct. 2898, 2914

, 

61 L.Ed.2d 608

[, 632] (1979) (Burger, C.J., concurring)
(‘[I]t has never occurred to anyone, as far as I am aware, that a pretrial deposition
or pretrial interrogatories were other than wholly private to the litigants.’).
Moreover, documents collected during discovery are not ‘judicial records.’
Discovery, whether civil or criminal, is essentially a private process because the
litigants and the courts assume that the sole purpose of discovery is to assist trial
preparation. That is why parties regularly agree, and courts often order, that
discovery information will remain private. Marcus, Myth and Reality in Protective
Order Litigation, 69 Cornell L.Rev. 1, 15 (1983).
       “If it were otherwise and discovery information and discovery orders were
readily available to the public and the press, the consequences to the smooth
functioning of the discovery process would be severe. Not only would voluntary
discovery be chilled, but whatever discovery and court encouragement that would
take place would be oral, which is undesirable to the extent that it creates
misunderstanding and surprise for the litigants and the trial judge. Litigants should
not be discouraged from putting their discovery agreements in writing, and district
judges should not be discouraged from facilitating voluntary discovery.”
       {¶ 12} We agree with the foregoing that discovery should be encouraged
and that public disclosure would have a chilling effect on the parties’s search for
and exchange of information pursuant to the discovery rules.
       {¶ 13} By contrast, the purpose of Ohio’s Public Records Act, R.C. 149.43,




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                                January Term, 1997



is to expose government activity to public scrutiny, which is absolutely essential to
the proper working of a democracy. White v. Clinton Cty. Bd. of Commrs. (1996),

76 Ohio St.3d 416, 420

, 

667 N.E.2d 1223, 1226-1227

; see State ex rel. Natl.
Broadcasting Co. v. Cleveland (1988), 

38 Ohio St.3d 79, 81

, 

526 N.E.2d 786, 788

.
However, there are certain governmental activities that would be “totally frustrated
if conducted openly.” Press-Enterprise Co. v. California Superior Court (1986),

478 U.S. 1, 8-9

, 

106 S.Ct. 2735, 2740

, 

92 L.Ed.2d 1, 10

. Criminal discovery is one
of those governmental activities that would be frustrated if subjected to the required
disclosure contemplated by R.C. 149.43. If all information exchanged is subject to
complete public disclosure, then parties may cease open exchange. This would
thwart entirely the objective of removing “the element of gamesmanship from a
trial.” Howard, 

56 Ohio St.2d at 333

, 

10 O.O.3d at 451

, 

383 N.E.2d at 915

. We
therefore hold that information that a criminal prosecutor has disclosed to the
defendant for discovery purposes pursuant to Crim.R. 16 is not thereby subject to
release as a “public record” pursuant to R.C. 149.43.
       {¶ 14} Relator also argues that the records must be released because of the
public’s First Amendment right to information regarding the trial. In Seattle Times
Co. v. Rhinehart (1984), 

467 U.S. 20, 27

, 

104 S.Ct. 2199, 2204

, 

81 L.Ed.2d 17, 23

,
the United States Supreme Court considered a trial court’s protective order
prohibiting the litigants from publishing, disseminating, or using certain
information obtained through pretrial discovery in any way except where necessary
to prepare for trial. The Supreme Court noted that the danger of abusing the liberal
pretrial discovery rules by publicly releasing information that is irrelevant and
could be damaging to reputation and privacy is great and thus the court held that
the governmental interest in preventing such abuse is substantial. 

Id. at 34-35

, 

104 S.Ct. at 2208-2209

, 

81 L.Ed.2d at 28

. The court also noted that pretrial discovery
is not a public component of a trial and any controls on the discovery process do
not prevent the public dissemination of information gathered through means other




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than discovery.   

Id. at 33-34

, 

104 S.Ct. at 2207-2208

, 

81 L.Ed.2d at 27

.
Accordingly the court held that the limitation on “‘First Amendment freedoms [is]
no greater than is necessary or essential to the protection of the particular
governmental interest involved,’” 

id. at 32

, 

104 S.Ct. at 2207

, 

81 L.Ed.2d at 26

,
quoting Procunier v. Martinez (1974), 

416 U.S. 396, 413

, 

94 S.Ct. 1800, 1811

, 

40 L.Ed.2d 224, 240

, and thus the protective order did not violate the First
Amendment.
       {¶ 15} The foregoing reasoning supports both a protective order as
considered in Seattle Times Co. and this court’s denial of a writ of mandamus
prohibiting public dissemination of information exchanged through pretrial
discovery in the case sub judice. Accordingly, appellant’s and relator’s First
Amendment rights have not been violated by denial of access to the information in
question.
       {¶ 16} For the above reasons, the writ of mandamus is denied in case No.
95-2224 and the judgment of the court of appeals is affirmed in case No. 95-2356.
                                   Writ of mandamus denied in case No. 95-2224
                                     and judgment affirmed in case No. 95-2356.
       MOYER, C.J., DOUGLAS, RESNICK, F.E. SWEENEY, PFEIFER, COOK and
STRATTON, JJ., concur.
       STRATTON, J., concurs separately.
The State ex rel WDTN-TV-2. Appellant, v. Lowe et al., Appellee.
                             __________________




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                                 January Term, 1997



         STRATTON, J., concurring.
         {¶ 17} The court’s decision today strikes a careful balance between the
public’s right to know and the need to guard the fundamental integrity and fairness
of a trial for both the defendant and the state.
         {¶ 18} Appellant and relator focus on the jury process and the curative
powers of a judge to correct pretrial publicity problems generated by publicizing
the discovery records at issue, such as the use of voir dire and venue changes to
keep the jury pool untainted. However, a more serious issue which affects the
integrity of the trial itself, and which no judicial order can cure, is the tainting of
witness testimony from witness exposure to the publicized information.
         {¶ 19} During trial, witnesses are separated to keep their testimony
untainted, prevent collusion, or prevent unintended, subconscious shading of their
testimony because of other knowledge gained about the case. If a witness learns
through the media of the confession of a defendant, statements by other witnesses,
test results, or expert witness reports, the witness’s testimony may become tainted
and unreliable.     Witnesses may not only use the publicized information to
consciously bolster the prosecution’s or defense’s case, but also may be
subconsciously influenced by this information so as to shade their testimony as a
result of perceptions and beliefs newly formed from exposure to the publicized
information. Once a witness is tainted, the problem cannot be reversed. The court
correctly struck a balance between the public’s right to know and the integrity of
the trial itself.
                                __________________




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