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  Justices Reverse Public Records Action Ruling

By Keith Arnold
Daily Reporter
July 21, 2010

http://www.sourcenews.com/news/today/cdr_c.lasso

The Mason, Ohio, attorney arguing on behalf of an eastern Ohio woman who claims a priest sexually assaulted her when she was a child, heralded the Supreme Court of Ohio's decision Tuesday as one that strikes the delicate balance intended in the state's Public Records Act.

Konrad Kircher, partner of the firm Kircher, Arnold & Dame LLC, said the well reasoned decision both protected the identity of an uncharged suspect and satisfied the requirement that public records be made available to Ohio residents making a request.

"It's a common-sense application of the act," he said.

The Supreme Court found in a 5-2 decision that the 5th District Court of Appeals erred in holding that all of the withheld records were exempt from disclosure under the R.C. 149.43(A)(2)(a) uncharged-suspect exception to the law.

Accordingly, the high court reversed the judgment and remanded the cause for further proceedings consistent with the opinion.

Case summary revealed that Beth Rocker reported to the Guernsey County Sheriff's Office in January 2008 that she had been sexually assaulted in the early 1990s, when she was a child. She claimed the priest of the church she had attended as a child was the perpetrator of the crime. The matter was submitted to a grand jury, but no indictment was returned.

Subsequent to the conclusion of the investigation, Rocker, through counsel, made a public-records request Oct. 1, 2008 "for the entire contents of the investigative file and any documents reviewed during or related to the investigation." The sheriff's office provided Rocker with a copy of the incident report, but denied her access to the remaining investigative records, summary detailed.

Rocker next filed a complaint in the 5th District Court of Appeals for a writ of mandamus to compel the sheriff's office to provide her with access to "all documents reviewed during, related to, or prepared concerning the criminal investigation" of the suspect.

After the sheriff's office filed a response, the court ordered the office to submit copies of all the requested records under seal for an in camera inspection, summary continued. Pursuant to the court's order, the parties submitted briefs on whether the various categories of investigative records withheld by the sheriff's office are disclosable under the Public Records Act, R.C. 149.43.

The appellate court denied the writ Dec. 2, 2009.

"We have reviewed the sealed records and conclude that some of the withheld records are subject to disclosure under the Public Records Act because they are not inextricably intertwined with the suspect's protected identity," the court wrote per curiam.

"For most of these records, if the sheriff's office redacts the priest's name, the name, location, and diocese of the church he worked at, and other specific identifying information, the disclosure of the records will not create a high probability of disclosure of the priest's identity.

"For example, after the priest's name and specific identifying information are redacted, the call record does not disclose the priest's identity."

Justices based their determination on the decisions in State ex rel. Master v. Cleveland (1996), 76 Ohio St.3d 340, 342, 667 N.E.2d 974; State ex rel. Ohio Patrolmen's Benevolent Assn. v. Mentor (2000), 89 Ohio St.3d 440, 444, 732 N.E.2d 969; and State ex rel. Musial v. N. Olmsted, 106 Ohio St.3d 459, 2005-Ohio-5521, 835 N.E.2d 1243.

"Notably, in (those cases), we did not hold that the claimed uncharged-suspect exemption applied to all the requested records," the majority continued. "Therefore, the court of appeals erred in concluding that all the withheld investigative records were covered by a blanket uncharged-suspect exemption."

In a dissenting opinion, Justice Evelyn Lundberg Stratton characterized the majority's holding as "a weakening of the uncharged suspect exception to the Public Records Act, R.C. 149.43(A)(2)(a)," making it more difficult for trial courts to determine which parts of particular records are exempt from disclosure.

"... The court of appeals has already reviewed the disputed 10 sealed documents and found them to be confidential law enforcement investigatory records, each of which is exempt from disclosure, concluding that release of the disputed records would 'undoubtedly reveal the identity of the uncharged suspect,'" (as in State ex rel. Rocker v. Guernsey Cty. Sheriff's Office, 2009-Ohio-6336).

"As the court noted, 'not only do most of the records reveal the name of the suspect, they also reveal facts unique to him which would have a high probability of revealing his identity.'

"Despite the majority's attempt to redact some of this identifying information, I continue to believe that the release of these documents will create a high probability of revealing the uncharged suspect's identity.

"Absent an abuse of discretion, we should not second-guess these findings and substitute our own opinion for that of the lower courts. The court below followed our case law. Some on this court merely disagree with the factual conclusions. ..."

Chief Justice Eric Brown and justices Paul Pfeifer, Maureen O'Connor, Judith Ann Lanzinger and Robert Cupp joined the court's lead opinion, while Justice Terrence O'Donnell joined Stratton's dissent.

Guernsey County Prosecuting Attorney Dan Padden was not immediately available for comment.

The case is cited as State ex rel. Rocker v. Guernsey Cty. Sheriff's Office, Slip Opinion No. 2010-Ohio-3288.

 
 

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