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Court News Ohio

Pike County May Withhold Portions of Autopsy Reports from Press

Portions of a county coroner’s autopsy reports that are part of an open homicide investigation are not public records and not available for public inspection until investigators release them, the Ohio Supreme Court ruled today.

In a 4-3 decision, the Supreme Court ruled the Pike County Coroner’s Office properly denied the Cincinnati Enquirer and the Columbus Dispatch unredacted versions of the autopsy reports for eight members of the Rhoden and Gilley families who were murdered in April 2016. Writing for the Court majority, Chief Justice Maureen O’Connor stated the legislature amended the law regarding coroner records in 2009 to exempt “confidential law enforcement investigatory records (CLEIR),” and that the portions redacted by the coroner met the exemption.

In separate dissenting opinions, Justices Sharon L. Kennedy and Patrick F. Fischer wrote that lawmakers clearly made autopsy reports public records and the exception to disclosure for confidential law enforcement investigative records does not apply to the materials the coroner refused to reveal.

The chief justice’s opinion was joined by Justice William M. O’Neill. It was also joined by Eighth District Court of Appeals Judge Frank D. Celebrezze, sitting for Justice Judith L. French, and Twelfth District Court of Appeals Judge Robin N. Piper, sitting for Justice R. Patrick DeWine.

Justice Terrence O’Donnell joined both of the dissenting opinions.

Newspapers Seek Autopsy Reports
After the Rhoden family members were discovered murdered, the Hamilton County chief deputy coroner conducted autopsies on behalf of Pike County. The Pike County coroner’s office received final autopsy reports in July 2016. Within days of the delivery of the final autopsies, reporters from the Enquirer and Dispatch made public record requests of Pike County Coroner Dr. David Kessler, who denied the requests. Kessler cited R.C. 313.10, which references a portion of the Ohio public records act, R.C. 149.43. The coroner stated the final autopsy reports were exempt as CLEIR under the law.

Three days after the denial, the Enquirer sought a writ of mandamus from the Supreme Court to direct the coroner to release the reports, and weeks later, the Dispatch made a similar request. After both suits were filed, Kessler and the Ohio Attorney General’s Office, which is leading the murder investigation, released redacted copies of the eight autopsies.

After the partial release, the coroner sought to dismiss the case, but the Court rejected the request and asked the parties to submit material and briefs to support their legal arguments. The Court did not conduct oral arguments for the cases.

The coroner submitted unredacted copies of the final reports to the Court to review under seal, and the Court denied a request by the Dispatch for access to the sealed reports. The Court issued its opinion today after its review of the reports.

Autopsy Reports Subject to Exemptions
R.C. 313.10 indicates that  final autopsy reports are public records, but R.C. 313.10(A)(1) contains an exception for “records of a deceased individual that are confidential law enforcement investigatory records as defined in section 149.43 of the Revised Code.”

R.C. 149.43 defines CLEIR as any record that pertains to a law enforcement matter but only to the extent that the release of the record would create a high probability of disclosure of certain materials. One type of material that cannot be disclosed is “specific investigatory work product.” Kessler argued the Rhoden and Gilley autopsy reports constitute specific investigatory work product.

Case Similar to Prior Newspaper Request from Coroner
The majority opinion stated the circumstances in this case are nearly identical to the facts the Court resolved in its 1984 State ex rel. Dayton Newspapers, Inc. v. Rauch decision. In that case, the Dayton Daily News was denied final autopsy reports of two homicide victims by Hocking County Coroner Dr. John Rauch. While R.C. 313.10 at the time did not incorporate the CLEIR exception, Rauch pointed to the CLEIR exception in the public records act and denied the reports. The Court unanimously upheld the coroner’s actions.

In today’s decision, the opinion noted that the Enquirer and Dispatch “vigorously contend” that Rauch has been superseded by the revised version of R.C. 313.10. The majority stated while that may be true, the amendments to R.C. 313.10 “demonstrate a legislative desire to exempt some records maintained by the coroner’s office from disclosure as CLEIR, just as we described in Rauch.

Work-Product Exemption Applies
The opinion stated that while the CLEIR exemption can apply to an autopsy report, the newspapers argued that the coroner cannot claim the exemption by citing the specific investigatory work-product provision. The newspapers argued that the exemption only applies to the work of a law enforcement official, and the coroner is not a law enforcement official.

In her dissent, Justice Kennedy maintained that the Court’s 1994 State ex rel. Steckman v. Jackson decision determines whether the work-product exemption can be applied. The dissent stated that Steckman overruled Rauch and the Rauch decision cannot be the basis for rejecting the records request.

The majority opinion stated that the Steckman ruling does not apply because that decision pertained to the records of law enforcement officials and the files of prosecutors in pending criminal cases.

“The question before us today relates to an attempt to obtain records from a coroner’s office in a probable, but not yet pending, criminal case. Indeed, none of the cases cited in Steckman concerned an effort to obtain records from a coroner’s office, and the General Assembly did not even apply the CLEIR exception to coroner’s records until 2009, 15 years after Steckman interpreted the exception as applied to law-enforcement officials and prosecutors,” the opinion stated.

The majority stated that if the only records that qualify as CLEIR were those prepared by law enforcement officials, then the provision to exempt CLEIR in the coroner’s records law “would shield nothing.”

“We must presume that the General Assembly intended the entire coroner’s-records statute to be effective,” the opinion stated. “And there is no doubt that the nature of the coroner’s work in a homicide-related autopsy is investigative and pertains to law enforcement. The General Assembly has recognized that a coroner plays an integral role in law-enforcement investigations.”

Records Valuable to Investigators
The majority concluded the reports can be shielded because the redacted material pertains to a law enforcement matter and contains specific investigative work product. It noted the state submitted affidavits of Kessler and Ohio Bureau of Criminal Investigation Special Agent Michael D. Trout that explained the investigative nature of the reports and their relevance to the ongoing criminal investigation.

Chief Justice O’Connor noted the unredacted portions of the autopsy reports contain the cause of death for each victim, and observations about the victims’ bodies, including detailed descriptions of various organs. Within the redacted information are specific facts about gunshot wounds, including the path and trajectory of bullets, specific identifying information such as scars or tattoos, descriptions of body placement, and toxicology results.

The opinion pointed to Trout’s explanation that information in the report, if not released to the public, can be used to verify tips, narrow persons of interests, and test the credibility of those claiming to have knowledge of the crime.

The majority concluded that the information should be made public once the criminal investigation concludes.

“In order that justice might be delivered to all, patience may be required of some,” the opinion stated.

Fischer Dissent Finds Reports Cannot Be Withheld
In his dissent, Justice Fischer wrote that a plain reading of the statute reveals that the final autopsy reports requested by the Enquirer and the Dispatch are public records under R.C. 313.10(A)(1) that are not subject to the exceptions listed in R.C. 313.10(A)(2). 

Justice Fischer recognized that R.C. 313.10(A)(2) contains a “separate, specific, and exhaustive list” of records in the coroner’s office that are not public records. He concluded that because the final autopsy reports, a distinct record under R.C. 313.10(A)(1), are not included in the list of nonpublic records in R.C. 313.10(A)(2), the final autopsy reports are public records that are not exempt from disclosure.

He stated that while “the desire to protect the confidentiality of investigatory records is a laudable and more-than-understandable goal,” the Court cannot read the records exception as “a catchall provision for any record that may be useful to an investigation, including final autopsy reports.”

Justice Fischer stressed that it is the role of the General Assembly, not of the judiciary, to write the laws.

“This court must refrain from rewriting the statute on the basis that it thereby improves the law,” he concluded.

Kennedy Dissent Finds CLEIR Exception Does Not Apply
In her dissent, Justice Kennedy wrote that the CLEIR exception developed in Steckman would be the only way to evaluate if the coroner could claim the specific investigatory work product exemptionand that Rauch no longer applied.

She also maintained that the newspapers correctly argued that the Rauch opinion has been superseded by the amended law and cannot be used as the basis for a decision. She noted the Ohio Attorney General’s Ohio Sunshine Laws: An Open Government Resources Manual stated in its 2013, 2015, and 2016 editions that Rauch was superseded and the autopsy reports are public records. However, seven months after the newspapers challenged the denial, the attorney general changed the 2017 report to state that the law “modified” Rauch.

She charged that the majority has added the concept of “investigative value” into R.C. 313.10. She noted that in recent Supreme Court decisions regarding police vehicle dashboard cameras and 911 calls the Court has ruled that information law enforcement desires to keep confidential because it has investigative value has to be released if it does not meet the specific requirements of the public records law. She stressed that considering whether a record has “investigative value” when determining the application of the CLEIR exception amounts to “building a foundation on quicksand” where the exception will swallow the rule.

“Members of the judicial branch, whose authority is limited to giving effect to the law as written—not rewriting it or legislating from the bench—writing ‘investigative value’ into the statute is beyond our authority,” she wrote.

Justice Kennedy asserted that, applying the test announced in Steckman, the information redacted from the autopsy reports does not constitute CLEIR.  She maintained the majority incorrectly concluded that Steckman did not apply because this case is about a probable, not pending, criminal case. Justice Kennedy wrote the exemption is not dependent on the timing of the investigation, but whether the person seeking the exemption has the “authority to investigate law-enforcement matters.”

She pointed to another attorney general publication – a 1998 attorney general’s opinion that stated a coroner does not qualify as a law enforcement officer and has no authority to investigate law enforcement matters.

“The coroner gathers facts that are used by law enforcement and prosecutors for criminal prosecutions. Law enforcement, not the coroner, investigates any violation of the law that occurred. The coroner’s role is not to investigate a violation of the law but to investigate the cause and manner of death. The majority fails to recognize that the coroner is one degree removed from those law-enforcement officials who are empowered to investigate a murder,” the dissent stated.

Justice Kennedy wrote the autopsy reports may be used by law enforcement, but that does not elevate the coroner to a law enforcement official who can claim the records exemption. She also reasoned that the records failed to meet other parts of the exemption requirements.

She concluded that the majority has worked a disservice by inserting its own policy-making decision into the language of the statute.  “A body of four thereby elevates its policy preferences over the balanced and reasoned decision-making of the whole of the General Assembly,” she wrote.

2016-1115 and 2016-1153. State ex rel. Cincinnati Enquirer v. Pike Cty. Coroner’s Office, Slip Opinion No. 2017-Ohio-8988.

Please note: Opinion summaries are prepared by the Office of Public Information for the general public and news media. Opinion summaries are not prepared for every opinion, but only for noteworthy cases. Opinion summaries are not to be considered as official headnotes or syllabi of court opinions. The full text of this and other court opinions are available online.

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