State ex rel. Cincinnati Enquirer v. Sage · 142 Ohio St. 3d 392

The opinion

Pfeifer, J.,

dissenting.

{¶ 50} “[0]ur printers raven on the agonies of their victims, as wolves do on the blood of the lamb.” Thomas Jefferson, Letter to James Monroe, May 5, 1811, available at http://founders.archives.gov/doclfuments/Jefferson/03-03-02-0479.

{¶ 51} I have written previously on the topic of 9-1-1 calls as public records that “[t]he public’s right to scrutinize the workings of the government should be balanced against an individual citizen’s right to privacy. A person should be able to summon the help of police officers or firefighters without having his plea broadcast on the evening news.” State ex rel. Dispatch Printing Co. v. Morrow Cty. Prosecutor’s Office, 105 Ohio St.3d 172 , 2005-Ohio-685 , 824 N.E.2d 64, ¶ 20 (Pfeifer, J., concurring). I have attempted to make the case that citizens should be free from having to publicize their greatest personal tragedies in order to gain the benefit of emergency services their government provides, but I have also recognized that addressing that concern is an issue for the General Assembly. Id,.; see also State ex rel. Cincinnati Enquirer v. Hamilton Cty., 75 Ohio St.3d 374, 381 , 662 N.E.2d 334 (1996) (Pfeifer, J., concurring).

*405 {¶ 52} But this case is different. Here, two specific statutory provisions exempt the call in question in this case from the definition of “public record.” First, pursuant to R.C. 149.43(A)(1)(g), the recording of the call does not constitute a public record because it is a trial-preparation record. Second, a recording of the call is not a public record pursuant to R.C. 149.43(A)(l)(v), because the release of it is “prohibited by state or federal law.” Specifically, the pretrial release of the recording would have violated the defendant’s Sixth Amendment right to a fair trial. Because I would find that the recording of the call in question was not a public record, I dissent.

{¶ 53} The first words Michael Ray heard after he answered the callback call from the 9-1-1 operator, Debra Rednour, were “Okay, I have help on the way. This is the Butler County Sheriffs Office. I need to know what’s going on.” Ray immediately responded, “I’m a murderer, and you need to arrest me.”

{¶ 54} This was not simply a continuation of the earlier 9-1-1 call. Ray was not a part of the original 9-1-1 call. He did not voluntarily begin a 9-1-1 call. Instead, he answered a call to his home and was told that the caller was from the Butler County sheriffs office and that he needed to tell the caller what was going on.

{¶ 55} Here is the way this court described the 9-1-1 calls in State ex rel. Cincinnati Enquirer v. Hamilton Cty., 75 Ohio St.3d at 377-378 , 662 N.E.2d 334 :

Basic 911 systems, including the ones used by [the Hamilton County Communications Center (“HCCC”) ] and [the Cincinnati Police Communications Center (“CPCC”) ], are systems “in which a caller provides information on the nature of and location of an emergency, and the personnel receiving the call must determine the appropriate emergency service provider to respond at that location.” R.C. 4931.40(B). For example, HCCC automatically records 911 calls, which do not include the personal opinions of its employees. HCCC employees do not act under the direction of the county prosecutor or law enforcement officials when receiving and responding to 911 calls. HCCC employees are not employees of any law enforcement agency and are not trained in criminal investigation. The HCCC 911 operators simply compile information and do not investigate. The 911 tapes are not made in order to preserve evidence for criminal prosecution. Nine-one-one calls that are received by HCCC are always initiated by the callers. According to CPCC Senior Police Sergeant Schrand, a 911 call involving criminal conduct is essential *406 ly a citizen’s initial report of the criminal incident, which could typically trigger a police investigation.

(Emphasis added.)

{¶ 56} The call in this case differs in several important regards from the description in Hamilton Cty. of what constitutes a 9-1-1 call. Ray was not the caller, the 9-1-1 operator initiated the call in question to investigate a 9-1-1 call she had received from a different person, and the operator was an employee of the sheriffs office.

(¶ 57} Further, the call in question does not fit within 9-1-1-related definitions in the Revised Code. R.C. 128.01(A) defines a “9-1-1 system” as “a system through which individuals can request emergency service using the telephone number 9-1-1.” In R.C. 128.01(B), a “Basic 9-1-1” system is defined as one “in which the caller provides information on the nature of and the location of an emergency, and the personnel receiving the call must determine the appropriate emergency service provider to respond at that location.” Again, Ray was not the caller in this case. He initiated no request for emergency service.

{¶ 58} The call in question was not a 9-1-1 call as defined by the General Assembly or as described by this court in Hamilton Cty. The court below held that this court’s determination in Hamilton Cty. that 9-1-1 calls do not qualify as trial-preparation records or confidential law-enforcement investigatory records under R.C. 149.43 meant that the call in this case could not meet either of those exceptions. 2013-Ohio-2270 , 992 N.E.2d 1178 , ¶ 22.

{¶ 59} But since the call at issue was not a 9-1-1 call, the record of the call could fall under a statutory exception to the public-records law. The majority seems to recognize this also, as it ignores the issue whether the call in question was a 9-1-1 call and addresses whether the call constitutes a trial-preparation record under R.C. 149.43(A)(1)(g) or a confidential law-enforcement investigatory record under R.C. 149.43(A)(1)(h). I would hold that the recording of the call constitutes a trial-preparation record.

{¶ 60} A trial-preparation record is “any record that contains information that is specifically compiled in reasonable anticipation of, or in defense of, a civil or criminal proceeding, including the independent thought processes and personal trial preparation of an attorney.” R.C. 149.43(A)(4). The recording of the call in question assuredly contained information that was specifically compiled in reasonable anticipation of a criminal proceeding. Once Michael Ray declared, “I’m a murderer, and you need to arrest me,” there could be no doubt in the operator’s mind that the recording would be the key piece of evidence in a criminal proceeding against Ray. Rednour, a sheriffs department employee, calmly got Ray to state his name, the basics of what had happened, including why he had *407 stabbed his stepfather, where he had stabbed his stepfather, and finally, the location of the murder weapon. These were statements describing past events that established Ray’s role as his stepfather’s killer. Rednour sought out information from Ray not specifically related to the medical condition of the victim.

{¶ 61} In Davis v. Washington, 547 U.S. 813 , 126 S.Ct. 2266 , 165 L.Ed.2d 224 (2006), the United States Supreme Court considered whether information provided to a 9-1-1 operator from a domestic-violence victim (as in this case, the call was a callback from the operator following a hang-up on the original 9-1-1 call) was testimonial. In making that determination, the court recognized that the inquiries of a police operator in the course of a 9-1-1 call can constitute an interrogation. Id. at 823 . Rednour, a sheriffs office employee, conducted a skilled interrogation of Ray. The record of this call identifies the killer, the killer’s motive, and the murder weapon, and all of that information followed questioning by Rednour. I would hold that the information gleaned from the call in question was specifically compiled in reasonable anticipation of a criminal proceeding. Thus, I would hold that pursuant to R.C. 149.43(A)(1)(g) and (A)(4), the recording of the call is not a public record.

{¶ 62} R.C. 149.43(A)(l)(v) excludes from the definition of “public record” “[rjecords the release of which is prohibited by state or federal law.” The majority acknowledges that “where ‘release of the records would prejudice the right of a criminal defendant to a fair trial, such information would be exempt from disclosure pursuant to R.C. 149.43(A)(1) during the pendency of the defendant’s criminal proceeding.’ ” Majority opinion at ¶ 20, quoting State ex rel. Vindicator Printing Co. v. Watkins, 66 Ohio St.3d 129, 138 , 609 N.E.2d 551 (1993). Significantly, the majority also acknowledges that the Enquirer had no countervailing First Amendment right to the 9-1-1 call that would require a balancing of the two rights by the trial court. The majority writes:

Here, the Enquirer was not seeking access to a historically public proceeding. It was asking to examine a physical piece of evidence in the prosecution’s file, even before that evidence became part of any criminal proceedings. The First Amendment does not give the Enquirer the right to open the prosecution’s evidence locker. * * *

So, at the time the Enquirer made its public-records request, it had no First Amendment claim to the recording, and the Press-Ent. [Co. v. Superior Court of California for Riverside Cty., 478 U.S. 1, 14 , 106 S.Ct. *408 2735 , 92 L.Ed.2d 1 (1986) ] balancing test is inapplicable. Instead, the only question we must ask is whether pretrial disclosure of the recording would have prejudiced Ray’s Sixth Amendment rights.

Majority opinion at ¶ 22.

{¶ 63} But although the majority concludes that the First Amendment is not in play in this case, it relies on cases in which First Amendment concerns were at issue in concluding that there are insufficient facts in the record to find that the defendant’s Sixth Amendment right to a fair trial would be jeopardized by the pretrial release of the 9-1-1 return call.

{¶ 64} Nebraska Press Assn. v. Stuart, 427 U.S. 539 , 96 S.Ct. 2791 , 49 L.Ed.2d 683 (1976), concerned prior restraint of the press, as a trial court prohibited reporting on certain information revealed during court hearings regarding a multiple-murder case in a small Nebraska town. The three-part test from Nebraska Press relied on by the majority was part of a larger test balancing the rights of the accused with the freedom of the press. The majority writes:

In determining whether pretrial release of information to the media will violate a defendant’s Sixth Amendment rights, judges must (1) “assess the probable publicity that would [arise] prior to the time a jury was selected,” (2) “examine the probable nature of the publicity,” and (3) “determine how it would affect prospective jurors.” Nebraska Press Assn. v. Stuart, 427 U.S. 539, 562 , 96 S.Ct. 2791 , 49 L.Ed.2d 683 (1976).

Majority opinion at ¶ 24. In applying those factors in Nebraska Press, the United States Supreme Court concluded that the trial judge had reasonably concluded that the defendant’s right to a fair trial would be jeopardized by pretrial publicity and recognized that making such a determination is inherently speculative:

Our review of the pretrial record persuades us that the trial judge was justified in concluding that there would be intense and pervasive pretrial publicity concerning this case. He could also reasonably conclude, based on common man experience, that publicity might impair the defendant’s right to a fair trial. He did not purport to say more, for he found only “a clear and present danger that pre-trial publicity could impinge upon the defendant’s right to a fair trial.” (Emphasis added.) His conclusion as to the impact of such publicity on prospective jurors was of necessity speculative, dealing as he was with factors unknown and unknowable.

*409 Nebraska Press Assn. v. Stuart, 427 U.S. at 562-563 , 96 S.Ct. 2791 , 49 L.Ed.2d 683 .

{¶ 65} In Nebraska Press, it was not a lack of evidence but rather First Amendment implications that led the court to conclude that the orders put into place by the trial judge were unlawful, that the high barriers to prior restraint of the press had not been overcome.

The state trial judge in the case before us acted responsibly, out of a legitimate concern, in an effort to protect the defendant’s right to a fair trial. What we must decide is not simply whether the Nebraska courts erred in seeing the possibility of real danger to the defendant’s rights, but whether in the circumstances of this case the means employed were foreclosed by another provision of the Constitution.

Id. at 555-556 .

{¶ 66} Like Nebraska Press, the other cases cited by the majority on the Sixth Amendment issue all involve instances of prior restraint of the press and attendant First Amendment implications.

{¶ 67} In State ex rel. Toledo Blade Co. v. Henry Cty. Court of Common Pleas, 125 Ohio St.3d 149 , 2010-Ohio-1533 , 926 N.E.2d 634 , relator sought a writ of prohibition to prevent a common pleas court and its judge from enforcing a gag order prohibiting the media from reporting about the trial proceedings in one criminal case until a jury was impaneled in a separate criminal case. In State ex rel. Chillicothe Gazette, Inc. v. Ross Cty. Court of Common Pleas, 2 Ohio St.3d 24, 26 , 442 N.E.2d 747 (1982), this court considered the trial court’s order prohibiting the appellee from publishing information gathered in open court. In State ex rel. Dayton Newspapers, Inc. v. Phillips, 46 Ohio St.2d 457 , 351 N.E.2d 127 (1976), this court granted a writ of prohibition to prevent the enforcement by a trial court of an order improperly excluding the public and members of the press from pretrial hearings on a motion to suppress evidence.

{¶ 68} Here, there are no First Amendment implications, and, as the majority states, the Press-Ent. test is not relevant here. The onerous requirement from Press-Ent. that there must be a “substantial probability” of prejudice to the defendant is thus absent from this case. The appellate court found fault with the evidence presented in the trial court:

There was no testimony from psychologists, sociologists, communications experts, media experts, jury experts, experienced trial lawyers, former *410 judges, or others as to how pretrial disclosure of the Outbound Call recording would impact Ray’s right to a fair trial.

Graydon, Head & Ritchey, L.L.P., and John C. Greiner, for appellee and cross-appellant.

Michael T. Gmoser, Butler County Prosecuting Attorney, and Michael A. Oster Jr. and Kimberly L. McManus, Assistant Prosecuting Attorneys, for appellants and cross-appellees.

Baker Hostetler, L.L.P., and David L. Marburger, urging reversal of the denial of the writ of prohibition for amicus curiae, Ohio Coalition for Open Government.

2013-Ohio-2270 , 992 N.E.2d 1178 , ¶ 28. But the appellate court thought that it was applying a Press-Ent. balancing test. Id. at ¶ 26. It erred in applying that test.

{¶ 69} Here, the trial court heard a recording of a defendant describing himself as a murderer, admitting that he stabbed his stepfather, and saying that he did so because he had snapped. This court wrote in Watkins that “[w]here a[n] * * * in camera inspection reveals that release of the records would prejudice the right of a criminal defendant to a fair trial, such information would be exempt from disclosure pursuant to R.C. 149.43(A)(1) during the pendency of the defendant’s criminal proceeding.” State ex rel. Vindicator Printing Co. v. Watkins, 66 Ohio St.3d at 138 , 609 N.E.2d 551 . The trial judge here did more than simply review the tape in camera; he held a hearing at which both sides were able to argue their positions.

{¶ 70} The judgment the trial judge made in this case was another in the innumerable judgments a trial judge must make as part of his or her job. This case required no expert testimony. It required only a prosecutor trying to do the right thing and a trial judge who was willing, if necessary to preserve the Sixth Amendment rights of the defendant, to make a decision that would be unpopular with the local media. I would find that the trial judge appropriately attempted to preserve the defendant’s Sixth Amendment right to a fair trial in this case, and I accordingly dissent.