COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60964 GERALD E. FUERST, CLERK OF COURTS STATE OF OHIO, EX REL. : GARY VAN JOHNSON, : : PETITION FOR WRIT OF : MANDAMUS Plaintiff-Relator, : : CASE NO. 60964 v. : : CITY OF CLEVELAND, ET AL., : : Defendants-Respondents : DATE OF ANNOUNCEMENT OF DECISION : SEPTEMBER 30, 1991 JUDGMENT : GRANTED IN PART AND : DENIED IN PART. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-relator: Nathan A. Ray Jerry L. McHenry Assistant State Public Defenders Ohio Public Defender Commission 8 E. Long Street 11th Floor Columbus, Ohio 43266-0587 For defendants-respondents: Joseph J. Jerse Assistant Director of Law City Hall - Room 106 601 Lakeside Avenue, N.E. Cleveland, Ohio 44114 -2- NAHRA, P.J.: Relator, Gary Van Johnson, is seeking a writ of mandamus pursuant to R.C. 149.43 to compel the production of documents relating to the murder of Eunice Graster. Following the commencement of this action, respondents, the City of Cleveland, the Director of Public Safety, the Chief of Police and the Mayor (collectively the "City"), released several documents to relator and submitted others to this court for review. For the following reasons, after a careful review of each record submitted, we grant a writ of mandamus and order documents released in full or in part as indicated in the Appendix and deny the writ for the remaining documents. I. EXCEPTIONS When material is redacted from a document or when a document is withheld from the public, the governmental body has the burden of proving that the records or material redacted are excepted from disclosure. State, ex rel. National Broadcasting Co., v. Cleveland (1988), 38 Ohio St. 3d 79, paragraph two of the syllabus, 526 N.E.2d 786. The City has claimed various exemptions and we will discuss the application of each exemption separately. A. Trial Preparation 1. Witness Statements The City is withholding witness statements, Records 61, 146-50, as trial preparation documents. Detective Robert Moore, -3- one of the principal investigators of the Eunice Graster homicide, averred in his affidavit both that homicide files are prepared specifically in reasonable anticipation of apprehending and prosecuting the persons responsible for the homicide and that the witness statements were prepared specifically for the use of the prosecutor at trial and for no other reason. The City cites to State, ex rel. Williams, v. Cleveland (Jan. 18, 1991), Cuyahoga App. No. 57769, unreported, and State, ex rel. Jester, v. Cleveland (Jan. 17, 1991), Cuyahoga App. No. 56438, unreported, in support of its argument to except these witness statements. Trial preparation records, which are exempt from disclosure, are records that contain "information that is specifically compiled in reasonable anticipation of, or in defense of, a civil or criminal action or proceeding, including the independent thought processes and personal trial preparation of an attorney." R.C. 149.43(A)(4). General criminal investigatory police files, which may include witness statements, inventory sheets, photographs, etc., are not exempt as trial preparation records, State, ex rel. Coleman, v. Cincinnati (1991), 57 Ohio St. 3d 83, 566 N.E.2d 151; State, ex rel. Zuern, v. Leis (1990), 56 Ohio St. 3d 20, 564 N.E.2d 81; see State, ex rel. Apanovitch, v. Cleveland (Feb. 6, 1991), Cuyahoga App. No. 58867, unreported; State, ex rel. Pinkava, v. Corrigan (Oct. 17, 1990), Cuyahoga App. No. 60041, unreported. Both Williams and Jester were decided prior to Coleman wherein the -4- Supreme Court of Ohio rejected the arguments advanced by the City today. The Court explained that: We concede that police may reasonably anticipate a `criminal action or proceeding,' within the meaning of R.C. 149.43(A)(4), when they investigate a brutal homicide like Tonnie Storey's death. However, such investigations do not meet the `specifically compiled' requirement of the statute. In this case, as in the police shootings in NBC II, police investigated to find out what the facts were. Later, when a prosecutor reviewed the investigations, he decided what, if any, criminal charges should be brought and against whom. Additionally, the language in R.C. 149.43(A)(4) `including the independent thought processes and personal trial preparation of an attorney' suggests that the General Assembly envisioned an attorney would normally direct or conduct the compilation of protected `trial preparation' information based upon trial strategy and the exigencies of litigation. In sum, police criminal investigations do not easily fit within the statutory requirements for excepted trial preparation records. Moreover, broad application of the trial preparation exception to police criminal investigations negates the specifically drawn narrow exceptions to the General Assembly's mandated release of police records in R.C. 149.43(A)(2), `confidential law enforcement investigatory record.' If police criminal investigations could qualify generally as trial preparation records, that exception would frustrate the legislative policies behind the public records statute. Coleman, 57 Ohio St. 3d at 84. In our case, the redacted portion of Record 61 is a brief summary of facts contained in Records 146-50. Records 146-50 are three witnesses statements, which, according to Record 61 and the statements themselves, were obtained within hours after the occurrence and then presented to the prosecutor for his review. Thus it appears that the witness statements were taken as a part of the homicide investigation and -5- not specifically as trial preparation. See State, ex rel. Martinelli, v. Cleveland (Apr. 22, 1991), Cuyahoga App. No. 56461, unreported. According to Coleman, none of these withheld statements or redactions qualify as exempted trial preparation material. 2. Trial Notes The City has withheld Records 87-98, 104-05, 108-29/1\ and 151-72/2\ as trial preparation material. Detective Moore averred in his affidavit that he authored Record 105, that he believed Record 88 was written by the prosecutor, and that Detective McKibben, who is retired now, wrote the rest. Detective Moore stated that homicide detectives take notes at trial specifically to assist the prosecutor in the trial of the case. Relator argues that these records cannot constitute trial preparation because they were created during trial. Trial preparation, however, does not necessarily cease when a trial begins. Many times trial preparation becomes more rigorous as a trial progresses depending on each day's events. As each day of a trial unfolds, a litigator prepares for the next day. In most cases, it is very helpful to have a second person taking notes during trial to assist a litigator. The trial attorney can then /1\ Record 116 appears to be a duplicate of Record 115; Record 118 appears to be a duplicate of Record 117; Record 122 appears to be a duplicate of Record 121; Record 126 appears to be a duplicate of Record 125; and Record 128 appears to be a duplicate of Record 127. /2\ Record 162 appears to be a duplicate of Record 161. -6- pay full attention to listening to the testimony as it is being offered and can later review the notes to plan or modify examinations, cross-examinations, proposed jury instructions, motions, briefs or arguments. Although the proof in this particular case could have been stronger, such as including the affidavits of the prosecutor and Detective McKibben, the content of most of the documents reveal that they were taken during trial since they contain summaries of testimony and personal assessments of witnesses, attorneys and jurors. We believe the notes were compiled specifically to assist the prosecutor at trial and are therefore exempt as trial preparation. Moreover, not every written word of a governmental employee is a public record. For example, the personal notes of a judge taken during trial are not public records. State, ex rel. Mothers Against Drunk Drivers, v. Gosser (1985), 20 Ohio St. 3d 30, 32 n.2, 485 N.E.2d 706. We believe the personal notes of the prosecutor and the detectives taken during trial would be exempt as well, even if not considered to be trial preparation. 3. Coroner's Report Record 139 is a Report of Laboratory Findings from the coroner's office. The City urges it is exempt as trial preparation and cites to State, ex rel. Dayton Newspapers, Inc., v. Rauch (1984), 12 Ohio St. 3d 100, 465 N.E.2d 458, and this court's opinions in Martinelli, Apanovitch, Williams and Jester. However, in none of the cited cases does either court exempt the -7- coroner's reports as trial preparation and we decline to do so here. Autopsy reports and other records of the coroner have, however, been exempted as specific investigatory work product under R.C. 149.43(A)(2)(c). B. Confidential Law Enforcement Investigatory Records Investigatory records may be exempt from disclosure as confidential law enforcement investigatory records if release of a 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. R.C. 149.43(A)(2). 1. Uncharged suspect The City has withheld Records 47 and 197 for the reason that they contain information which would reveal the identity of an uncharged suspect. Record 197 is a mug shot and is properly withheld. Record 47, however, contains the names of several -8- people interviewed by the police who were investigating a different homicide. The City is ordered to redact only the information pertaining to disclosure of the identity of the uncharged suspect and to disclose the remainder of Record 47. State, ex rel. National Broadcasting Co., v. Cleveland (1988), 38 Ohio St. 3d 79, paragraph four of the syllabus, 526 N.E.2d 786; see State, ex rel. Toledo Blade Co., v. Telb (1990), 50 Ohio Misc. 2d 1, 552 N.E.2d 243. 2. Work product The City has claimed R.C. 149.43(A)(2)(c) for most of the withheld documents. This exception protects specific confidential investigatory techniques or procedures and specific investigatory work product. Specific investigatory work product "protects an investigator's deliberative and subjective analysis, his interpretation of the facts, his theory of the case, and his investigative plans. The exception does not encompass the objective facts and observations he has recorded." State, ex rel. National Broadcasting Co., v. Cleveland (1988), 38 Ohio St. 3d 79, paragraph three of the syllabus, 526 N.E.2d 786. The City contends Record 47 contains subjective analysis. Detective Moore testified in his affidavit that he was using Record 47, which pertains to the homicide of Ricky Washington, to analyze whether any connection existed between the Graster homicide and the Washington homicide. The report itself, however, contains no subjective analysis and is to be disclosed, -9- subject to the redaction pursuant to R.C. 149.43(A)(2)(a) discussed above regarding the identity of an uncharged suspect. Record 61 contains no subjective analysis as claimed and is to be disclosed. The redacted portions of Records 62 and 67 contain an officer's theories of what occurred and are exempt from disclosure. The handwritten trial notes, Records 87-98, 104-05, 108-29 and 151-72, do contain some subjective analyses by the detectives as purported, but because these records are exempt in total, no redaction of the exempted analyses is necessary. Finally, the coroner's Report of Laboratory Findings, Record 139, is exempt as specific investigatory work product pursuant to R.C. 149.43(A)(2)(c). State, ex rel. Dayton Newspapers, Inc., v. Rauch (1984), 12 Ohio St. 3d 100, 465 N.E.2d 458. 3. Physical safety The City has claimed R.C. 149.43(A)(2)(d) for six of the withheld documents or redacted information. This exception exempts records which, if released, would create a high probability of disclosure of "[i]nformation that would endanger the life or physical safety of law enforcement personnel, a crime victim, a witness, or a confidential information source." R.C. 149.43(A)(2)(d). Exceptions to disclosure are to be construed strictly against the governmental body, and the burden of proving an exception is on the governmental body. State, ex rel. -10- National Broadcasting Co., v. Cleveland (1988), 38 Ohio St. 3d 79, 526 N.E.2d 786. All doubts are to be resolved in favor of disclosure. Id. Thus, unless it is self-evident or it is shown that an individual's identity or other information was withheld during trial, an allegation that disclosed information would pose a threat will be insufficient absent a showing of why the physical safety of the nontestifying witness would be in danger while the physical safety of a testifying witness who provides critical evidence would not be in danger. Records 43, 101 and 196 involve the same individual. Record 43 is the witness's statement to the police, Record 101 is a Bureau of Motor Vehicles printout regarding this witness, and Record 196 is her mug shot. It is evident from this witness's statement to the police that her safety was at risk. She asked the officers not to reveal to the "street people" that she was cooperating with the police. We believe this information and the circumstances of this witness are sufficient to require her identity and the information she provided to be withheld unless, of course, the witness provided the information at trial. Records 48 and 49 contain the identity, address and phone number of a relative of the victim. Detective Moore averred in his affidavit that this information should not be disclosed "due to the possibility that the revealing of her identity would pose a threat to her health, safety, or well-being." Since endangerment is not self-evident, see State, ex rel. Lippitt, v. Kovacic (Jan. 17, 1991), Cuyahoga App. No. 58243, unreported, -11- this bare assertion is insufficient to satisfy the City's burden of proving endangerment to this individual. Consequently, these records are to be released in full. Record 54 contains the name, address and birth date of an individual characterized by Detective Moore as a "jail house snitch." It is self-evident that an incarcerated informant suffers a high degree of risk to his or her physical well-being after providing information to the police. The City's redaction of this individual's identity was proper unless, of course, the informant's identity was disclosed at trial. C. Miscellaneous The City has claimed that Records 75-78 and the redacted portion of Record 73 beginning with "F.B.I. No." are exempt from disclosure under R.C. 149.43(A)(1) due to the prohibition against disclosure in 42 U.S.C. 3789g. These documents and redaction are as claimed and are exempt from disclosure. State, ex rel. Jester, v. Cleveland (Jan. 17, 1991), Cuyahoga App. No. 56438, unreported; State, ex rel. Lippitt, v. Kovacic (Jan. 17, 1991), Cuyahoga App. No. 58243, unreported. Similarly, Records 79-80 and the redacted portion of Record 73 beginning with "O.S.B. No." are BCI records and information which this court has previously held exempt from disclosure under R.C. 149.43(A)(1) pursuant to R.C. 109.57. Jester, Cuyahoga App. No. 56438; Lippitt, Cuyahoga App. No. 58243, slip op. at 7. Finally, the City has redacted an individual's Social Security number in Record 82. This number -12- was redacted properly. R.C. 149.43(A)(1); 5 U.S.C. 552(b); 42 U.S.C. 405; see Swisher v. Department of the Air Force (1980), 495 F. Supp. 337; see, e.g., R.C. 3727.14. II. ADEQUATE REMEDY The City argues, as it has in previous cases,/3\ that relator failed to establish the lack of an adequate remedy to obtain these records because he could have used Crim. R. 16 or he could utilize discovery in his postconviction relief action. This argument is rejected again on the authority of State, ex rel. Clark, v. Toledo (1990), 54 Ohio St. 3d 55 (Syl.), 560 N.E.2d 1313. See State, ex rel. Williams, v. Cleveland (Jan. 18, 1991), Cuyahoga App. No. 57769, unreported; see also State, ex rel. Bey, v. Cuyahoga County Common Pleas Court (Mar. 22, 1991), Cuyahoga App. No. 61423, unreported. III. CRIMINAL RULE 16 The City contends that Crim. R. 16 is unconstitutional if R.C. 149.43 permits broader access to investigatory files because Crim. R. 16 would be abrogating a substantive right in violation of Article IV, Section 5(B) of the Ohio Constitution. For the reasons stated in State, ex rel. Williams, v. Cleveland (Jan. 18, 1991), Cuyahoga App. No. 57769, unreported, this issue again is not ripe for determination. /3\ In fact, counsel for the City has referred to a previous relator instead of Mr. Van Johnson throughout his brief in this case. See respondents' brief at 3, 19, 20. -13- IV. CONCLUSION The relator has established a legal right to the records we have deemed public in whole or in part in accordance with this opinion. The relator's petition for writ of mandamus is hereby granted in part and denied in part. Because all of the parties have the right to appeal from this judgment, and in accord with previous decisions, see, e.g., State, ex rel. Martinelli, v. Cleveland (Apr. 22, 1991), Cuyahoga App. No. 56461, unreported, we are resealing the records submitted to us until appeals are exhausted or the parties agree to end the litigation. Costs to respondents. DAVID T. MATIA, J., and PRESIDING JUDGE JOHN F. CORRIGAN, J., CONCUR. JOSEPH J. NAHRA -14- APPENDIX DOCUMENTS TO BE RELEASED IN FULL RECORD(S) NO. GENERAL IDENTITY 61 Page 1 of two-page Supplementary Report by Det. McKibben (4-27-83) 48-49 Supplementary Reports (5-1-83, 5-2-83) 146-50 Three witness statements -15- DOCUMENTS EXEMPT IN WHOLE OR IN PART RECORD(S) NO. GENERAL IDENTITY DISPOSITION & REASON 43 Page 2 of two-page Redacted unless dis- Supplementary Report by closure at trial. Det. Moore (5-4-83) R.C. 149.43(A)(2)(d) 47 Supplementary Report, City to redact per Different Homicide R.C. 149.43(A)(2)(a) 54 Supplementary Report Redacted unless dis- (4-28-83) closure at trial. R.C. 149.43(A)(2)(d) 62 Page 2 of two-page Redacted. Supplementary Report by R.C. 149.43(A)(2)(c) Det. McKibben (4-27-83) 67 Page 5 of Supplementary Redacted. Report of Det. McKibben R.C. 149.43(A)(2)(c) (4-26-83) 73 SIB Rap Sheet Redacted. R.C. 149.43(A)(1); 42 U.S.C. 3789g; R.C. 109.57 75-78 FBI Rap Sheet Withheld. R.C. 149.43(A)(1); 42 U.S.C. 3789g 79-80 Ohio BCI Rap Sheets Withheld. R.C. 149.43(A)(1); R.C. 109.57 82 Handwritten note Social Security Number redacted. R.C. 149.43(A)(1); 5 U.S.C. 552(b); 42 U.S.C. 405 87-98 Handwritten trial notes Withheld. R.C. 149.43(A)(4); State, ex rel. Mothers Against Drunk Drivers, v. Gosser (1985), 20 Ohio St. 3d 30, 32 n.2, 485 N.E.2d 706 -16- 101 BMV Computer printout Withheld unless dis- closure at trial. R.C. 149.43(A)(2)(d) 104-05; Handwritten trial notes Withheld. 108-29 R.C. 149.43(A)(4); State, ex rel. Mothers Against Drunk Drivers, v. Gosser (1985), 20 Ohio St. 3d 30, 32 n.2, 485 N.E.2d 706 139 Coroner's Report of Withheld. Laboratory Findings R.C. 149.43(A)(2)(c) 151-72 Handwritten trial notes Withheld. R.C. 149.43(A)(4); State, ex rel. Mothers Against Drunk Drivers, v. Gosser (1985), 20 Ohio St. 3d 30, 32 n.2, 485 N.E.2d 706 196 Mug shot Withheld unless dis- closure at trial. R.C. 149.43(A)(2)(d) 197 Mug shot Withheld. R.C. 149.43(A)(2)(a) .