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Criminal Law Casebook
Franklin County Criminal Law Casebook
Reproduced with permission from:
David L. Strait
Franklin County Public Defender Office
-- Availability of public records. Includes definitions of "public record", "confidential law enforcement investigatory record", and "medical record."
-- Financial records of nonprofit organizations receiving government funds; confidentiality of patient and client records.
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
Last updated 1/5/2017
State ex rel. Caster v. Columbus
, Slip Opinion No
Specific-investigatory work-product exception of
does not extend beyond the completion of the trial for which the information was gathered. Most law enforcement records involving the investigation of a suspect become public record once the suspect’s trial concludes.
State ex rel Cincinnati Enquirer v. Bronson
, 191 Ohio App. 3d 160,
– Newspaper wanted a reporter to go along for the jury view, which meant entering private property. Paper also wanted the personnel file of a detective. Court disposed of both requests without holding a hearing. Writs of prohibition issued on the basis the issues were capable of repetition evading review. Appellate court suggests the magic language needed to defeat the paper’s requests with regard to the jury view, and directs adherence to
exemptions for personnel file release.
State ex rel. Montgomery County Public Defender v. Siroki
, 108 Ohio St. 3d 207,
-- 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 partition.
State ex rel. Rasul-Bey v. Onunwor
94 Ohio St. 3d 119,
-- 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
in a pending criminal action, mandamus may be used to compel production of non-exempt materials. Attorney fees awarded.
State ex rel. Lanham v. Smith
, 112 Ohio St. 3d 527,
-- Incident reports are subject to disclosure. Police chief's notes that were never attached to a report are not.
State ex rel. Cincinnati Enquirer v. Winkler
, 149 Ohio App. 3d 350,
-- 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,
, holding that the trial judge properly ordered officer's record sealed. See dissent.
State ex rel. Slagle v. Rogers
, 103 Ohio St. 3d 89,
-- Syllabus: "When a party to an action requests copies of a court transcript of the proceedings in that action,
is superseded by
, 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
, 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
and is specifically exempt from release as a trial preparation record in accordance with
. (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
, 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
, 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
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
in postconviction actions.
State v. Wallace
(1997), 121 Ohio App. 3d 494 --
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
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
. (3) The specific investigatory work product exception,
, 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
. Also see
State ex rel Jenkins v. Cleveland
(1992), 82 Ohio App. 3d 770 (same analysis in post-conviction action by death row inmate).
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
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
: "Any decision regarding the release of the documents at issue herein must therefore be measured by the standards set forth in
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
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 exemptions.
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
. 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
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 challenged."
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 certified.
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
where (1) a person makes a proper request for public records pursuant to
, (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
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.)
Access to Specific Types of Records
State ex rel. Glasgow v. Jones
, 119 Ohio St. 3d 391,
– 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,
-- 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
, 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,
-- 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,
-- Syllabus: "(1) Juror names, addresses, and questionnaire responses are not 'public records' as contemplated by
. 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,
-- 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,
does not extend to these circumstances.
State ex rel Russell v. Thornton
, 111 Ohio St. 3d 409,
-- 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
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 information."
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.
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 basis.
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,
, 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
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
. 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 record."
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
as it does not serve to document the organization, functions, policies, decisions, procedures, operations or other activities of the Sheriff's Department.
State ex rel. Fuerst v. Nelson
(1995), 101 Ohio App. 3d 436 -- An inmate may use a designee to assist in gaining access to public records.
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 of petitioner.
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
, 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
are available to the public provided they are public records as defined by
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
is not entitled to attorney fees.
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
, 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.
State v. Silverman
, Franklin App. Nos. 05AP-837, 838, 839,
, ¶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 762,
-- 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 involved.
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,
-- 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. 01-CA-100,
-- 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,
-- 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. (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 admissible.
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 defendant.
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
. At page 200: "It is important to note that we are not further expressly or implicitly holding that
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 issue.
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).
David L. Strait
Copyright © Franklin County Public Defender and David L. Strait, 2015
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