Franklin County Criminal Law Casebook
Reproduced with permission from
Allen V. Adair and the Franklin County Public Defender Office
PUBLIC RECORDS (ME046)
For cases on authentication and use of
Access using the Public Records Act - R.C. 149.43
Access to specific types of records
R.C. 149.43 -- Availability of public records.
Includes definitions of "public record", "confidential law
investigatory record", and "medical record."
R.C. 149.431 -- Financial records of nonprofit
organizations receiving government funds; confidentiality of
patient and client
Evidence Rule 803(8),(9),and (10) -- Admission
of public records as an exception to the hearsay rule.
Criminal Rule 27 -- Proof of Official Record;
Judicial Notice: Determination of Foreign Law.
Access using the Public Records Act - R.C. 149.43
State ex rel. Montgomery County Public
Defender v. Siroki, 108 Ohio St. 3d 207,
2006-Ohio-662 -- Writ of mandamus
compelling immediate disclosure of public records containing Social Security
numbers denied. Mayor's court clerk was entitled to time for redaction of SSN's.
Writ had been granted insofar as a separate "prosecutor's file" was maintained
and the practice of making requesters view documents through a plexiglas
State ex rel. Rasul-Bey v. Onunwor, 94
Ohio St. 3d 119,
2002-Ohio-67 -- Defendant sought police incident report. Mayor
refused. Peremptory writ of mandamus granted. Report was not exempt from
release. While State ex rel. Steckman v. Jackson (1994), 70 Ohio St. 3d
420 does not allow use of
R.C. 149.43 in a pending criminal action, mandamus may
be used to compel production of non-exempt materials. Attorney fees awarded.
rel. Lanham v. Smith, 112 Ohio St. 3d 527,
2007-Ohio-609 -- Incident reports are subject to disclosure.
Police chief's notes that were never attached to a report are
State ex rel. Cincinnati Enquirer v. Winkler,
149 Ohio App. 3d 350,
2002-Ohio-4803 -- Newspaper sought acres to sealed court
records of a police officer who had been acquitted in a notorious case. Court
agrees to determine constitutionality of expungement statute adjunct to a
mandamus action, without requiring paper to seek declaratory judgment. To save
the statute from being found unconstitutional, it is interpreted to require
consideration of the public's right of access in cases of social, historic or
political significance. Also see State ex rel. Cincinnati Enquirer v. Winkler,
150 Ohio App. 3d 10,
2002-Ohio-7334, holding that the trial judge properly
ordered officer's record sealed. See dissent.
State ex rel. Slagle v. Rogers, 103
Ohio St. 3d 89,
2004-Ohio-4354 -- Syllabus: "When a party to an action requests
copies of a court transcript of the proceedings in that action,
R.C. 149.43 is
superseded by R.C. 2301.24, and the party must pay the official court reporter
the fees designated by the court pursuant to the latter statute." Specific
statute governs over the general statute as to transcripts. However, tapes are
not included, so a copy must be furnished at the cost of duplication.
State ex rel. WDTN-TV-7 v. Lowe (1997), 77
Ohio St. 3d 350 -- Syllabus: "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
State, ex rel. Zuern, v. Leis (1990), 56
Ohio St. 3d 20 -- Voluntary disclosure of exempt materials waives claim of
exemption in subsequent request for disclosure pursuant to
State ex rel Steckman v. Jackson (1994),
70 Ohio St. 3d 420 -- Syllabus: "In a pending criminal case, persons seeking to
secure records alleged to be 'public records,' access to which has been
requested and denied, must, in accordance with
R.C. 149.43(C), use mandamus. (State
ex rel. Scanlon v. Deters
, 45 Ohio St. 3d 376...and its progeny, overruled;
construed and applied.) (2) In the criminal proceeding itself, a defendant may
only use Crim. R. 16 to obtain discovery. (3) Information, not subject to
disclosure pursuant to Crim. R. 16(B), contained in the file of a prosecutor who
is prosecuting a criminal matter, is not subject to release as a public record
pursuant to R.C. 149.43 and is specifically exempt from release as a trial
preparation record in accordance with
R.C. 149.43(A)(4). (4) Once a record
becomes exempt from release as a 'trial preparation record,' that record does
not lose its exempt status unless and until all 'trials,' 'actions,' and/or
'proceedings' have been fully completed. (5) Except as required by Crim. R. 16,
information assembled by law enforcement officials in connection with a probable
or pending criminal proceeding is, by the work product exception found in
149.43(A)(2)(c), excepted from required release as said information is compiled
in anticipation of litigation. The work product exception does not include
ongoing routine offense and incident reports, including, but not limited to,
records relating to a charge of driving while under the influence and records
containing the results of intoxilyzer tests. Routine offense and incident
reports are subject to immediate release upon request. If release is refused, an
action in mandamus, pursuant to
R.C. 149.43(C), will lie to secure the release
of the records. (6) A defendant in a criminal case who has exhausted the direct
appeals of her or his conviction may not avail herself or himself or
to support a petition for postconviction relief. (State ex rel. Clark v.
Toledo , 22 Ohio St. 3d 94...and its progeny, overruled.) (7)
Discovery orders are interlocutory and as such are neither final nor appealable.
(Humphrey v. Riverside Methodist Hosp. , 22 Ohio St. 3d 94...and
State v. Port Clinton Fisheries, Inc. , 12 Ohio St. 3d
114...overruled.)" For comments on the scope of Steckman see Justice
Douglas's concurring opinion in State ex rel. Multimedia, Inc., D.B.A.
WLWT-TV5, v. Snowden (1995), 72 Ohio St. 3d 141, 149, and State v. Walker
(1995), 102 Ohio App. 3d 625 which probably mistakenly interprets paragraph 6 of
the syllabus to bar use of materials obtained through
R.C. 149.43 in postconviction actions.
State v. Wallace (1997), 121 Ohio App. 3d
494 -- Steckman held controlling in proceedings which began before it was
decided, notwithstanding the law of the case doctrine.
State ex rel Beacon Journal Publishing Co. v.
Kent State Univ. (1993), 68 Ohio St. 3d 40 -- The General Assembly did not
intend for exemptions from disclosure to swallow up the rule making public
records available. Thus: (1) Threatening letters themselves should have been
disclosed with recipient's name obscured, even though recipient may have been
promised confidentiality. (2) Uncharged suspect exemption should not have been
applied to documents prepared by a university for another purpose. (3)
Investigatory work product exemption should not have been applied to what were
merely the objective facts and observations which were recorded.
State, ex rel. National Broadcasting Co., v.
Cleveland (1988), 38 Ohio St. 3d 79 -- Syllabus: "(1) Law enforcement
investigatory records must be disclosed unless they are excepted from disclosure
by R.C. 149.43. (State, ex rel. Beacon Journal, v. Univ. of Akron ,
64 Ohio St. 2d 392, 18 O.O. 3d 534, 415 N.E. 2d 310, approved and followed.) (2)
A governmental body refusing to release records has the burden of proving that
the records are excepted from disclosure by
R.C. 149.43. (3) The specific
investigatory work product exception,
R.C. 149.43(A)(2)(c), 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. (4) When a
governmental body asserts that public records are excepted from disclosure and
such assertion is challenged, the court must make an individualized scrutiny of
the records in question. If the court finds that these records contain excepted
information, this information must be redacted and any remaining information
must be released."
State ex rel. National Broadcasting Co. v.
Cleveland (1992), 82 Ohio App. 3d 202 -- Final round of litigation
previously reported at 38 Ohio St. 3d 79 and 57 Ohio St. 3d 77. Court determines
applicability of exemption to a broad range of documents in a manner generally
consistent with State ex rel Johnson v. Cleveland (1992), 65 Ohio St. 3d
331 and in accordance with prior Supreme Court decisions in NBC. Also see
State ex rel Jenkins v. Cleveland
(1992), 82 Ohio App. 3d 770 (same analysis in post-conviction action by death
State ex rel Johnson v. Cleveland (1992),
65 Ohio St. 3d 331 -- (1) Witness statements taken during the course of a police
investigation are generally not exempt as trial preparation records. The
language of R.C. 149.43(A)(4) suggests that the exemption applies to the
compilation of information under the direction of an attorney based on trial
strategy and the exigencies of litigation. (2) Notes taken by detectives during
trial under the direction of the prosecutor are exempt trial preparation
records. (3) Autopsy reports are exempt as investigatory work product. (4)
Information identifying witnesses or relatives is exempt only if a risk to their
life or physical safety is self evident or proven by the prosecutor. (5) "Public
records" does not include records the release of which is prohibited by law. For
discussion of access to an assistant prosecutor's notes, perhaps used in the
preparation of a book, see State ex rel. Lundgren v. LaTourette (1993),
85 Ohio App. 3d 809.
State ex rel. Vindicator Printing Co. v.
Watkins (1993), 66 Ohio St. 3d 129, 135 -- In the context of a newspaper's
attempt to secure public records pertaining to a pending case, and the interplay
between Crim. R. 16 and
R.C. 149.43: "Any decision regarding the release of the
documents at issue herein must therefore be measured by the standards set forth
in R.C. 149.43."
State ex rel Fant v. Enright (1993), 66
Ohio St. 3d 186 -- A person seeking access to public records may not be required
to demonstrate a proper purpose for doing so. "Any person" means any person,
regardless of purpose. The only limitation on release is whether the records in
question are subject to an exemption. Impliedly overrules State v. Tinch
(1992), 84 Ohio App. 3d 111, 119 where it was held that a defendant must
articulate a reasonable factual basis why the records sought are exculpatory.
Also see Chillicothe v. Knight
(1992), 75 Ohio App. 3d 544. Compare State v. Simmons (1993), 87 Ohio
App. 3d 290.
State ex rel. Moreland v. Dayton (1993),
67 Ohio St. 3d 129, 130 -- "We hold that an exemption for uncharged suspects in
R.C. 149.43(A)(2)(a) is not lost by the passage of time or the lack of
enforcement action. Thus, the exemption is not restricted to only current,
uncharged suspects...However, this exemption does not restrict the release of
information about a suspect who has been arrested for the offense."
State ex rel. Sweeney (1994), 93 Ohio App.
3d 349 -- The uncharged suspect exception reaches the results of a polygraph
examination administered to a fire fighter, who ultimately was not charged,
during the investigation of drug use within the fire department.
State ex rel Lowery v. Cleveland
(1993), 67 Ohio St. 3d 126 -- Where the city submitted records to the court for
an in camera inspection, accompanied by arguments in support of claimed
exemptions and asked the court to decide the issue, it may not later claim it
was denied a fair opportunity to present evidence to support its claimed
State, ex rel. Mothers Against Drunk Drivers,
v. Gosser (1985), 20 Ohio St. 3d 30 -- A court may not adopt a local rule
inconsistent with the purposes of
R.C. 149.43. Also see State, ex rel. Toledo
Blade, v. Telb (1990), 50 Ohio Misc. 2d 1.
State, ex rel. McGee, v. Ohio State Board of
Psychology (1990), 49 Ohio St. 3d 59 -- At page 61: "Trial courts are fully
able to decide R.C. 149.43 issues in any discovery process."
State v. Wadsworth (1993), 86 Ohio App. 3d
666, 668 -- A court is required to individually scrutinize records a
governmental body claims are exempt, but only when "such assertion is
State ex rel. Richard v. Cleveland Police
Dept, Division of E.M.S. (1992), 80 Ohio App. 3d 377 -- When the copies of
documents provided are unredacted, there is no requirement that they be
State ex rel. Nelson v. Fuerst (1993), 66
Ohio St. 3d 47 -- Custodian of public records sought by prisoner was not
required to mail records to the prison where the prisoner could make copies at
$.12 per page instead of paying the set fee of $1.00 per page. Also see State
ex rel. Fenley v. Fuerst (1992), 64 Ohio St. 3d 509. Compare State ex
rel. Strothers v. Murphy (1999), 132 Ohio App. 3d 645 citing the statutory
obligation to provide copies at cost, and noting the customary rate in the state
has become five cents per page.
State ex rel. Pierce v. Dowler (1993), 89
Ohio App. 3d 670 -- Proper venue for a mandamus action is the county where the
public official from whom records have been requested exercises his functions,
in this case the Identification Chief at BCI in London. Mandamus brought in the
Tenth District Court of Appeals ordered transferred to the Twelfth District,
which includes Madison County.
State ex rel. Pennington v. Gundler
(1996), 75 Ohio St. 3d 171 -- Syllabus: "A court may award attorney fees
pursuant to R.C. 149.43 where (1) a person makes a proper request for public
records pursuant to R.C. 149.43, (2) the custodian of the public records fails
to comply with the person's request, (3) the requesting person files a mandamus
action pursuant to R.C. 149.43 to obtain copies of the records, and (4) the
person receives the requested public records only after the mandamus action is
filed, thereby rendering the claim for a writ of mandamus moot. (State ex
rel. Toledo Blade Co v. Northwood , 58 Ohio St. 3d 213...overruled.)
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Access to specific types of records
State ex rel. Glasgow v.
Jones, 119 Ohio St. 3d 391,
2008-Ohio-4788 – P.E.R.S. recipient sought e-mails, text messages, and
correspondence from two state representatives who sponsored a bill which would
have required divestiture by certain public investors of holdings in companies
doing business in Iran and Sudan. Request was overly broad, but accepted that as
related to the subject bill the request was proper as the texts and e-mails were
public records. Opinion does not determine whether e-mails to a private account
were public records.
State ex rel Oriana House
v. Montgomery, 110 Ohio St. 3d 456,
2006-Ohio-4854 -- Syllabus: "(1) Private entities are not subject to the
Public Records Act absent a showing by clear and convincing evidence that the
private entity is the functional equivalent of a public office. (2) In
determining whether a private entity is a public institution under
and thus a public institution under
R.C. 149.43, a
court shall apply the functional-equivalency test. Under this test, the court
must analyze all pertinent factors, including (1) whether the entity performs a
governmental function, (2) the level of government funding, (3) the extent of
government involvement or regulation, and (4) whether the entity was created by
the government or to avoid the requirements of the Public Records Act."
State ex rel. Plain Dealer Publishing v.
City of Cleveland, 106 Ohio St. 3d 70,
2005-Ohio-3807 -- Syllabus: "Police
officer photographs are exempt from disclosure under the Public Records Act
because they constitute 'peace officer residential and familial information.'
R.C. 149.43(A)(1)(p) and (7)(b)."
State ex rel. Beacon Journal Publishing
Company v. Bond, 98 Ohio St. 3d 146,
2002-Ohio-7117 -- Syllabus: "(1) Juror
names, addresses, and questionnaire responses are not 'public records' as
contemplated by R.C. 149.43. Juror questionnaires without responses, however,
constitute 'public records' for purposes of that section. (2) The First
Amendment qualified right of access extends to juror names, addresses, and
questionnaires, thereby creating a presumption of openness that may be overcome
only 'by an overriding interest based on findings that closure is essential to
preserve higher values and is narrowly tailored to serve that interest.' (Press-Enterprise
Co. v. Superior Court , 464 U.S. 501, 510...followed).
State ex rel. Pauer v. Ertel, 149 Ohio
App. 3d 287,
2002-Ohio-4592 -- Judge's personal handwritten notes kept in court
file are not a public record.
State ex rel. Cincinnati Enquirer v.
Dinkelacker (2001), 144 Ohio App. 3d 725 -- Once discovery materials in a
criminal case became exhibits they changed character and became public records,
thus subject to disclosure. While the paper is entitled to a writ of mandamus,
writ is stayed to allow trial court to determine whether release would affect
the criminal defendant's right to a fair trial. Also see Adams v. Metallica
(2001), 143 Ohio App. 3d 482.
Conely v. Correctional Reception Center
(2001), 141 Ohio App. 3d 412 -- Inmate may pursue a mandamus action to obtain
photos and work schedules of corrections officers who were on duty when and
where he claims to have been attacked. The "good sense" rule of State ex rel.
Keller v. Cox 85 Ohio St. 3d 279,
1999-Ohio-264 does not extend to these
rel Russell v. Thornton, 111 Ohio St. 3d 409,
2006-Ohio-5858 -- Inmate filed mandamus seeking police
records. Action properly dismissed pursuant to Civ.R. 12(B)(6)
for failure to state a cause of action as he failed obtain a
judicial finding pursuant to
149.43(B)(4) that they were necessary to support what
appears to be a justiciable claim. See dissent for distinction
between records concerning a criminal investigation or
prosecution and offense and incident reports. Also see
State ex rel. Russell v. Bican, 112
Ohio St. 3d 559.
State ex rel. Farley v. McIntosh (1998),
134 Ohio App. 3d 531 -- Subject of court ordered competency evaluation sought a
writ of mandamus compelling court-appointed psychologist to furnish various
documents and an affidavit addressing a variety of issues. (1) The Public
Records Act does not reach the preparation of affidavits. (2) A court appointed
private psychologist does not hold a public office within the meaning of the
Public Records Act.
State ex rel. Benesch, Friedlander, Coplan &
Arnoff, L.L.P. v. Rossford
(2000), 140 Ohio App. 3d 149 -- Preliminary drafts of legal documents are within
the attorney-client privilege and are not subject to disclosure as public
records, unless their contents have otherwise appeared in public documents.
State v. Hall (2001), 141 Ohio App. 3d 561
-- Defendant was found incompetent to stand trial for causing explosion at a
fireworks store than killed nine people. No error in refusing to seal evaluation
reports, which were not "medical records" and as judicial records or documents
were subject to disclosure at common law and pursuant to
State ex rel. Cleveland Police Patrolman's
Association v. Cleveland (1999), 84 Ohio St. 3d 310 -- Police officer was
convicted of assault, but later withdrew her appeal and agreed not to seek
further review. Work product exemption ended and union was entitled to documents
pertaining to the investigation.
Henneman v. Toledo (1988), 35 Ohio St. 3d
241 -- Syllabus: "Records and information compiled by an internal affairs
division of a police department are subject to discovery in civil litigation
arising out of alleged police misconduct if, upon an in camera
inspection, the trial court determines that the requesting party's need for the
material outweighs the public interest in the confidentiality of such
State ex rel. Keller v. Cox (1999), 85
Ohio St. 3d 279 -- Federal Public Defender sought personnel and internal affairs
records relating to a deputy sheriff expected to be a witness in federal court.
Steckman does not bar access as materials sought were not a part of criminal
discovery as they had nothing to do with the crime. However, the constitutional
right to privacy protects files containing personal information such as names of
family members. Dissent states entire contents should not be exempt on this
Barton v. Shupe (1988), 37 Ohio St. 3d 308
-- Records created during the investigation of allegations made against police
chief are not excepted as trial preparation records merely because litigation
might result. Also see State, ex rel. Dyer, v. Middletown (1988), 52 Ohio
App. 3d 87; State, ex rel. Cincinnati Post, v. Marsh (1985), 26 Ohio
Misc. 2d 5 .
State, ex rel. Cincinnati Post, v. Schweikert
(1988), 38 Ohio St. 3d 170 -- Syllabus: "(1) The Public Records Law,
149.43, does not exempt compilations of information contained in public records
and does not require members of the public to exhaust their energy and ingenuity
to gather information which is already complied and organized in a document
created by public officials. (2) A report prepared by a court administrator from
factual information contained in public records is a public record subject to
disclosure under the Public Records Law, even though such compilations are made
for the use of judges in sentencing." Newspaper wanted reports on jail
population referred to by judges at sentencing.
State ex rel. Beacon Journal Publishing Co. v.
Bodiker (1999), 134 Ohio App. 3d 415 -- The Ohio Public Defender is a public
office within the contemplation of the Public Records Act. Attorney time sheets,
contracts, and computer data bases with respect to a capital case are with few
exceptions subject to disclosure following execution.
Woodman v. Lakewood (1988), 44 Ohio App.
3d 118 -- A legal memorandum prepared by outside counsel at the request of a
city law director, which is protected by the attorney-client privilege, is not
subject to disclosure under the Public Records Law.
State, ex rel. Thompson Newspapers, Inc., v.
Martin (1989), 47 Ohio St. 3d 28 -- Paragraph two of the syllabus: "A
prosecutor's decision not to file formal charges against a suspect does not take
the record of the investigation outside the exception provided for confidential
law enforcement investigatory records in
R.C. 149.43(A)(2). (State, ex rel.
Outlet Communications, Inc., v. Lancaster Police Dept. (1988), 38 Ohio St.
3d 324, 528 N.E. 2d 175, explained and followed.)" Also see State, ex rel.
Polvischak, v. Mayfield (1990), 50 Ohio St. 3d 51.
State ex rel. Carpenter v. Tubbs Jones
(1995), 72 Ohio St. 3d 579 -- Records within the prosecutor's file remain
subject to release to a criminal defendant pursuant to
R.C. 149.43. These
include materials in his, or codefendant's files, which were subject to
discovery under Criminal Rule 16, and other records such as routine officer or
indictment reports which fall outside the definition or "trial preparation
State ex rel. Wilson-Simmons v. Lake County
Sheriff's Department (1998), 82 Ohio St. 3d 37 -- Racist e-mail disseminated
over the Sheriff's computer system is not a public record for purposes of
149.43 as it does not serve to document the organization, functions, policies,
decisions, procedures, operations or other activities of the Sheriff's
State ex rel. Fuerst v. Nelson (1995), 101
Ohio App. 3d 436 -- An inmate may use a designee to assist in gaining access to
State ex rel. Arnold v. Belmont Corrections
Infirmary (1997), 123 Ohio App. 3d 183 -- An inmate may not use
to gain access to his medical records, but is allowed access under
State ex rel. Swigart v. Barber (1997),
118 Ohio App. 3d 238 -- Prosecutor brought mandamus seeking opportunity to
listen to tape of plea hearing in preparation for hearing on a postconviction
petition. Court reporter refused, offering to sell a transcript. Writ granted.
State, ex rel. Harmon, v. Bender (1986),
25 Ohio St. 3d 15 -- Videotapes of courtroom proceedings are public records
subject to disclosure.
State ex rel. Blankenship v. Baden (1996),
115 Ohio App. 3d 127 -- Juror questionnaires do not fall within the definition
of public records.
State ex rel. Multimedia, Inc., D.B.A.
WLWT-TV5, v. Snowden (1995), 72 Ohio St. 3d 141 -- Writ of mandamus issued
directing release of records pertaining to police recruit class, including
polygraph examination reports, personal history questionnaires, police
psychologist report, background investigation report and credit history. CIC and
RCIC rap sheets need not be released. Police chief ordered to pay attorney fees
State ex rel. Beacon Journal Publishing Co. v.
Whitmore (1998), 83 Ohio St. 3d 61 -- Unsolicited letters received by a
judge with respect to sentencing, but not "utilized," held not to be public
records with three justices dissenting. Majority notes many judges discard such
letters as improper ex parte communication.
State ex rel. James v. Ohio State University
(1994), 70 Ohio St. 3d 168 -- Syllabus: "Promotion and tenure records maintained
by a state-supported institution of higher education are 'public records'
pursuant to R.C. 149.43(A)(1), are not subject to any exception, and are,
therefore, subject to the public records disclosure requirements of
State ex rel. Steffen v. Kraft (1993), 67
Ohio St. 3d 439 -- "A trial judge's personal handwritten notes made during the
course of a trial are not public records."
State v. Moore (1991), 74 Ohio App. 3d 334
-- Police officer's personal notes are not subject to disclosure pursuant to
State ex rel. Beacon Journal Publishing Co. v.
Waters (1993), 67 Ohio St. 3d 321 -- Public records law may not be used to
gain access to grand jury subpoenas and grand jury witness record book. Criminal
Rule 6(E) construed as a law restricting release. However, an order of common
pleas court judges is not a valid basis for exemption.
State ex rel. Hamblin v. Brooklyn (1993),
67 Ohio St. 3d 152 -- Witness statements clearly prepared for trial and which
were not the mere chronicling of fact were properly exempted. Dissenting justice
would like to see prosecutor's entire file turned over at the conclusion of the
first round of appeals. Also see State ex rel Martin v. Cleveland (1993),
67 Ohio St. 3d 155 and dissent in State ex rel Lawhorn v. White (1993),
67 Ohio St. 3d 158.
State, ex rel. Beacon Journal, v. Univ. of
Akron , 64 Ohio St. 2d 392 -- Syllabus: "Law enforcement records
compiled before the amendment of
R.C. 149.43 are available to the public
provided they are public records as defined by
R.C. 149.43 and are not exempted
from disclosure by its provisions." Routine factual reports compiled by the
police were at issue.
Ingraham v. Ribar (1992), 80 Ohio App. 3d
29 -- (1) Materials identifying a suspect are not disclosable, those simply
listing names are. (2) Records compiled for multiple purposes do not qualify as
trial preparation records. (3) LEADS computer information is exempt. (4) A pro
se litigant in a mandamus action pursuant to
R.C. 149.43 is not entitled to
State ex rel. Margolius v. Cleveland
(1992), 62 Ohio St. 3d 456 -- Syllabus: "A governmental agency must allow the
copying of the portions of computer tapes to which the public is entitled
pursuant to R.C. 149.43, if the person requesting the information has presented
a legitimate reason why a paper copy of the records would be insufficient or
impracticable, and if such person assumes the expense of copying."
State ex rel. Community Corrections
Association, Inc. v. Ohio Department of Rehabilitation and Correction
(1992), 84 Ohio App. 3d 821 -- Under the Public Records Law the Department is
ordered to turn over records pertaining to its investigation of a privately
operated corrections facility in Mahoning County.
State ex rel. Athens County Property Owners
Association, Inc. v. Athens (1992), 85 Ohio App. 3d 129 -- Writ of mandamus
may direct party be permitted to inspect public record in diskette form. (Data
base files. Association would have had to furnish its own copy of the
proprietary software required to read the files.)
State v. Dietz (1993), 89 Ohio App. 3d 69
-- Presentence investigation reports are not public records subject to
disclosure. Also see In re Special Grand Jury Investigation Concerning
Organic Technologies (1995), 74 Ohio St. 3d 30.
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Also see Hearsay;
State v. Silverman,
Franklin App. Nos. 05AP-837, 838, 839,
2006-Ohio-3826, ¶76-90 -- a transcript of proceedings in probate court was
properly admitted under the public records exception in Evid. R. 803(8), but the
admissibility of specific statements within the transcript is subject to
specific exceptions to the hearsay rule such as statements by a party-opponent,
or statements by an individual not available as a witness.
State v. Skimmerhorn, 162 Ohio App. 3d
2005-Ohio-4300 -- At the suppression hearing the state offered a photocopy
of a certified copy of the ODH batch solution certificate. The original was at
ODH. The certified copy remained at the police station. The trial court properly
excluded the exhibit. The officer testified he had compared the copy with the
certified copy, but had never seen the original. This did not satisfy the Rules
of Evidence. The copy was not self-authenticating. A copy of a seal is not the
same as a seal. In these circumstances Evid. R. 1005 latitude on admission of
copies for originals may not be further diluted with respect to the
admissibility of photocopies under Evid. R. 1003 when public records are
Sikora v. Gibbs (1999), 132 Ohio App. 3d
770, 774-775 -- Unsworn statement of an officer sued by arrestee, prepared after
civil suit was filed, was not admissible under the business records exception to
the hearsay rule as the contents are likely to be self-serving, thus not
satisfying the trustworthiness requirement of Evid. R. 803(8).
State v. Gau, Lake App. No. 2000-L-109,
2002-Ohio-4216 -- The defendant in a criminal case may use a police report as a
public record insofar as it sets forth the officer's activities and matters
observed. The defendant may not use the statements of others, such as civilian
witnesses, which are included in the report unless those individuals were also
under a duty to report.
State v. Thomas, Mahoning App. No.
2003-Ohio-4004 -- The prosecution may not use a police report to
introduce information concerning the defendant's social security number and
birth date. Evid. R. 803(8) applied.
State v. Scurti, 153 Ohio App. 3d 183,
2003-Ohio-3286 -- BAC Datamaster was taken out of service for software
modifications. Issue was whether it had been reapproved by the Director of the
Ohio Department of Health following modifications. Letters from the department
to the company qualified for admission as public records. Letters from the
company to the department did not, but met the requisites for admission as
business records. CEO of the company was sufficiently qualified as an expert.
Peppers v. Ohio Dept. of Rehab. and Corr.
(1988), 50 Ohio App. 3d 87 -- Public records are not admissible if they are not
trustworthy. If the self interest of the person preparing the record is evident,
he should be called as a witness.
Sanders v. Hairston (1988), 51 Ohio App.
3d 63 -- (1) A police report is a public record for purposes of Evid. R. 803(8)
to the extent it records an officer's own observations, as to which there was a
duty to report. [Note: this portion of Evid. R. 803(8)(b) does not apply in
criminal cases, except when the material is offered by the defendant.] (2) While
ordinarily a witness should not be allowed to paraphrase the contents of a
public record, this may be done when only a limited part of the record is
State v. York (1996), 115 Ohio App. 3d
245, 148 -- Though accident reports are public records, statements contained
within them are admissible only if the declarant was under an official duty to
relate. Thus an officer's first hand observations are admissible, but statements
by a motorist are not unless made under an official duty to report.
State v. Spinks (1992), 79 Ohio App. 3d
720, 729 -- Statements of the decedent in a police report concerning threats
made by the defendant were inadmissible: "...(N)either Evid. R. 803(6) nor Evid.
R. 803(8), the public records and reports exception to the hearsay rule, permits
the state to prove its case through police records or reports or portions
thereof...In criminal cases, that procedure violates both the hearsay rule and
the accused's constitutional right of confrontation."
State v. Sanders (1998), 130 Ohio App. 3d
789, 797 -- Defense used report to refresh officer's recollection during cross.
State was erroneously allowed to admit report. Evid. R. 612 permits only an
adverse party to introduce writings used to refresh recollection, and the
officer was the state's own witness. Furthermore, Evid. R. 803(8) forbids
admission of police reports in criminal cases, except upon motion of the
State v. Watkins (1981), 2 Ohio App. 3d
402 -- A defendant's self-serving statements, included in a police report, are
not admissible under the official records exception to the hearsay rule.
State v. Steinman (1992), 79 Ohio App. 3d
246 -- Automobile titles bearing odometer readings are admissible under the
public records exception to the hearsay rule.
Cincinnati Insurance Co. v. Volkswagen of
America, Inc. (1987), 41 Ohio App. 3d 239 -- Investigative and evaluative
reports prepared by a governmental entity are not public records admissible
under Evid. R. 803(8) unless .
Maloney v. Maloney (1986), 34 Ohio App. 3d
9 -- Headnote 2: "A court may not take judicial notice of arrearages in alimony
payments as stated in official records of the court's bureau of support.
Instead, the records must be authenticated and admitted into evidence..."
State v. Sims (1983), 10 Ohio App. 3d 56
-- Computer printout showing license plates had been reported stolen
inadmissible hearsay for purposes of proving plates were in fact stolen.
State v. Robles (1989), 65 Ohio App. 3d
104 -- It was reversible error to permit an expert witness to base his opinion
on the prevalence of the victim's blood type in the population on FBI reports
which had not been admitted into evidence. To be utilized such records must be
properly authenticated and introduced.
State v. Vogelsang (1992), 82 Ohio App. 3d
354 -- In a medicaid fraud prosecution held that computer generated records were
not properly admitted as public records pursuant to Evid. Rules 803 and 901
(authentication). At page 360: "It is not sufficient for admission of an alleged
public record for a witness to state that this is information accessed through a
computer operated by a public agency * * * In general, for the public record
exception to apply, the record must be one that is required by law to be
maintained in the office in question whether originated by or filed in that
office, or the nature of the record must be such that there is a duty by the
agency to record and maintain the information therein. * * * In general, there
must be either an express requirement or implied duty set forth by statute for
the public record exception to apply other than with respect to activities of
the office or agency."
State v. Ward (1984), 15 Ohio St. 3d 355
-- Syllabus: Certified copies of police logs showing calibration of intoxilyzer
equipment are admissible against a defendant in a prosecution for...(OMVI),
despite the absence of the calibrating officer at trial." Also see State v.
Tyson (1985), 20 Ohio St. 3d 40; State v. Boyd (1985), 15 Ohio St. 3d
7; State v. Waite (1984), 13 Ohio App. 3d 379; State v. Beam
(1991), 77 Ohio App. 3d 200 (RFI test report not stating observations made as a
part of a criminal investigation).
State v. Walker (1978), 53 Ohio St. 2d 192
-- Certified copies of pages from breath analysis machine log books are
admissible in an OMVI prosecution as an exception to the hearsay rule under
2317.42. At page 200: "It is important to note that we are not further expressly
or implicitly holding that all
documents qualifying under the Official Reports as Evidence Act are admissible
in a criminal proceeding."
State v. Schell (1984), 13 Ohio App. 3d
313, 317-318 -- Affidavit of chemist at Highway Patrol Crime Lab (treated as a
public record), regarding solution used for calibration, improperly admitted at
the request of the state, applying Evid. R. 803(8)(b). Note: An affidavit would
generally not be viewed as a record, though the sort of affidavit involved here
may be in the nature of a record. See
State v. Glacken (1984), 13 Ohio Misc. 2d 17. In this case the affiant's
status as a police officer, making the document a police report, and his refusal
to honor a defense subpoena, thereby denying confrontation, may have been real
State v. Mendieta (1984), 20 Ohio App. 3d
18 -- Though entries in intoxilyzer logbook are not admissible as public records
in a criminal case because they are prepared by police officers [see Evid. R.
803(8)(b)] they are admissible as a business record under Evid. R. 802.(6).
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