State ex rel. Master v. City of Cleveland , 76 Ohio St. 3d 340 ( 1996 )

Per Curiam.

In our previous opinion in this case, we held that the R.C. 149.43(A)(2)(c) work-product exception did not justify withholding the subject records because “[tjhere is no evidence that criminal charges against police officers or other individuals involved in the alleged wiretapping are either ‘pending’ or ‘highly probable’ as required for application of the work product exception.” Master, 75 Ohio St.3d at 29, 661 N.E.2d at 186; State ex rel. Steckman v. Jackson (1994), 70 Ohio St.3d 420, 639 N.E.2d 83, paragraph five of the syllabus; State ex rel. Police Officers for Equal Rights v. Lashutka (1995), 72 Ohio St.3d 185, 188, 648 N.E.2d 808, 810.

In State ex rel. Leonard v. White (1996), 75 Ohio St.3d 516, 518, 664 N.E.2d 527, 529-530, we clarified paragraph five of the Steckman syllabus and Police Officers, by holding that “where it is evident that a crime has occurred, although no suspect has yet been charged, any notes, working papers, memoranda, or similar materials compiled by law enforcement officials in anticipation of a subsequent criminal proceeding are exempt from disclosure as R.C. 149.43(A)(2)(c) work product.” Leonard distinguished Master because in Master, it was not evident that the alleged illegal wiretapping had occurred. Id. However, we reached our conclusion in Master prior to an in camera inspection of the subject records.

The records submitted under seal indicate that some person or persons purposely intercepted and recorded relators Nix and Master’s cordless telephone conversations through the use of some interception device. The foregoing constitutes a violation of R.C. 2933.52(A). State v. Bidinost (1994), 71 Ohio St.3d 449, 644 N.E.2d 318, paragraph two of the syllabus. Consequently, we now hold that based on an examination of the sealed records, the subject records constitute exempt R.C. 149.43(A)(2)(c) work product, since they were compiled in anticipation of litigation. Leonard, supra.

In addition, we find that most of the subject records are exempt under the R.C. 149.43(A)(2)(a) uncharged-suspect exception because the protected identities of uncharged suspects are inextricably intertwined with the investigatory records. State ex rel. Beacon Journal Publishing Co. v. Kent State Univ. (1993), 68 Ohio St.3d 40, 44, 623 N.E.2d 51, 54; State ex rel. McGee v. Ohio State Bd. of Psychology (1990), 49 Ohio St.3d 59, 60, 550 N.E.2d 945, 947.

Respondents’ investigation of the illegal wiretapping of Master and Nix’s residence was prompted by relators’ allegations. Relators provided information to respondents which alleged that several Cleveland police officers, attorneys, and all of relators’ Brookside Drive neighbors were involved in the illegal wiretapping. Given the breadth of the allegations relators provided to the police, every neighbor and several police officers were “suspects,” and the identities of these uncharged suspects are necessarily intertwined with most of the investigatory records.

In so holding, we reject relators’ assertion that the uncharged-suspect exception does not apply where the accusation of criminal conduct is already public knowledge. Initially, R.C. 149.43(A)(2)(a) does not preclude the exception’s application in cases where a person’s status as a suspect in a criminal matter has been previously disclosed by media reports. Admittedly, a person who has previously been identified with the criminal matter under investigation has already been subjected to some adverse publicity. Nevertheless, in these circumstances, release of the investigatory records could create a high probability of additional disclosure of the person’s status as an uncharged suspect. The actual investigatory records would be more credible evidence of a person’s status as a suspect to law enforcement officials than either unconfirmed media reports or the speculation of individuals like relators. In other words, another purpose of the uncharged-suspect exception is to avoid subjecting such persons to additional adverse publicity where, as here, there have been public reports alleging that certain persons were suspects in the wiretapping matter.

Second, avoidance of subjecting persons to adverse publicity where they may otherwise never have been identified with the matter under investigation is only one of the purposes of the uncharged-suspect exception. Master, 75 Ohio St.3d at 30, 661 N.E.2d at 186; State ex rel. Thompson Newspapers v. Martin (1989), 47 Ohio St.3d 28, 30, 546 N.E.2d 939, 942. Another of the exception’s purposes is to prevent compromising subsequent efforts to reopen and solve inactive cases. Master, 75 Ohio St.3d at 30, 661 N.E.2d at 186; State ex rel. Moreland v. Dayton (1993), 67 Ohio St.3d 129, 131, 616 N.E.2d 234, 236. Disclosure of these records might interfere with law enforcement efforts to further investigate the wiretapping matter.

Finally, it appears that the publicity which relators contend renders the uncharged-suspect exception inapplicable has been instigated by their civil litigation and their own allegations. It would be unreasonable to hold that publicity generated by litigation and related media reports initiated by relators entitles them to records that would otherwise be excepted from disclosure under R.C. 149.43(A)(2)(a). If that were the case, individuals could determine which records should be disclosed by their own generation of publicity. See, e.g., In re T.R. (1990), 52 Ohio St.3d 6, 20, 556 N.E.2d 439, 453, where we rejected a newspaper’s contention that media coverage which preceded closure and gag orders was so pervasive as to render those orders ineffective because accepting such argument would let the media determine which hearings should be open by publicizing the case; cf. State ex rel. Plain Dealer Publishing Co. v. Lesak (1984), 9 Ohio St.3d 1, 4, 9 OBR 52, 54, 457 N.E.2d 821, 824 (Celebrezze, C.J., concurring). This is not a case where respondents have already disclosed the investigatory records and thereby waived the application of the uncharged-suspect exemption. See State ex rel. Zuern v. Leis (1990), 56 Ohio St.3d 20, 22, 564 N.E.2d 81, 84; State ex rel. Lundgren v. LaTourette (1993), 85 Ohio App.3d 809, 811, 621 N.E.2d 509, 511. Therefore, the prior publicity concerning the wiretapping does not preclude the applicability of the R.C. 149.43(A)(2)(a) uncharged-suspect exception.

Further, the submitted evidence contains LEADS printouts, which are exempt under R.C. 149.43(A)(1) and Ohio Adm.Code 4501:2-10-06. See State ex rel. Multimedia, Inc. v. Snowden (1995), 72 Ohio St.3d 141, 144, 647 N.E.2d 1374, 1378; State ex rel. Natl. Broadcasting Co. v. Cleveland (1992), 82 Ohio App.3d 202, 206-207, 611 N.E.2d 838, 840-841.

Therefore, based on the foregoing, the subject records are exempt from disclosure under the R.C. 149.43(A)(2)(c) work-product, the R.C. 149.43(A)(2)(a) uncharged-suspect, and the R.C. 149.43(A)(1) other-law provisions. The records do not indicate any police cover-up or fictitious investigation, as relators have alleged. Instead, the sealed investigatory file indicates a thorough investigation by law enforcement officials.

Relators also present a lengthy argument as to their entitlement to the appointment of a special prosecutor. However, in Master, we already denied relators’ request for a writ of mandamus on this claim. We decline relators’ invitation to revisit this issue.

Accordingly, based on an inspection of the sealed records and a consideration of the arguments of the parties, the writ of mandamus and request for attorney fees is denied. This also moots relators’ motion to expedite.

Writ denied.

Moyer, C.J., Resnick, F.E. Sweeney, Cook and Stratton, JJ., concur. Douglas, J., concurs in judgment only. Pfeifer, J., concurs in part and dissents in part.