The Ohio Supreme Court ruled yesterday that a return 911 call out of Butler County was a public record that should have been disclosed to the Cincinnati Enquirer in 2012. The case arose when 911 dispatcher for the Butler County Sheriff's Office Debra Rednour received a call that there had been an accident. After the caller disconnected without giving all the information the dispatcher requested, the dispatcher made a return call. This call was ultimately answered by a man who said that he was a "murderer" and that he had stabbed his stepfather.
That same day, the Cincinnati Enquirer requested a release of that call. The Butler County Prosecutor's Office refused and petitioned the common pleas court for a protective order that would prevent disclosure of the tape, which Judge Sage, who would be handling the criminal trial, granted. The Enquirer filed a mandamus action to force release of the tape and a writ of prohibition to prevent Judge Sage from enforcing the protective order in the 12th District Court of Appeals. The Enquirer also requested statutory damages and attorney fees. Judge Sage subsequently amended the protective order to allow release of the tape right before it would be used at trial. The 12th District then granted mandamus, denied the writ of prohibition and awarded damages, but denied attorney fees. The prosecutor's office appealed the case and the Enquirer cross-appealed, seeking an award of attorney fees.
The Supreme Court found that the call was clearly a public record and then examined whether it fell into a statutory exemption that would have prevented its release. The Court found that it did not, and should have been disclosed by the prosecutor's office. The Court held that the tape was not an "exempt trial preparation record," reasoning that the dispatcher did not make the return call "for the specific purpose of preparing for a criminal proceeding," as the exemption statute would require, and that it did not "suddenly transform into a trial-preparation record simply because it moved from Rednour’s office to the prosecutor’s file."
The Court also found that it was "not an exempt confidential law-enforcement investigatory record," as the dispatcher made the call as part of her normal duties to provide for the care and safety of the injured person and responding officers, and not in order to start a criminal investigation. Additionally, the Court held that the recording was "not exempt as a record whose release is prohibited by state or federal law," because neither the Constitution or Ohio criminal rules provided a basis to prevent its disclosure. Interestingly, the Court seemed to indicate that it sympathized with the idea that the defendant's Sixth Amendment right to a fair trial might be compromised by disclosure of the tape, but ultimately held that because the state presented no evidence to support this, they couldn't find that it should not be disclosed for this reason.
The Court vacated the 12th District's decision on the writ of prohibition, finding it was unnecessary, since the decision to grant mandamus took care of the protective order as well. The Court reversed the 12th District's denial of attorney fees, finding that the prosecutor's office didn't act in good faith when it filed for a protective order, forcing the Enquirer to take additional legal steps to access the recording and making them incur more legal fees. The case was remanded to the 12th District on this issue.
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