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Court News Ohio

Criminal Defendant’s Public Records Request for Information that is Subject to Discovery Triggers State’s Right to Demand Reciprocal Discovery

The Supreme Court of Ohio ruled today that when the defendant in a criminal case directly or indirectly makes a public records request for information that could have been obtained from the state through a discovery demand, the public records request is the equivalent of a demand for discovery, and it triggers the defendant’s duty under Ohio Criminal Rule 16 to provide reciprocal discovery to the state.

The court’s 4-3 majority decision, authored by Justice Terrence O’Donnell, reversed a ruling by the First District Court of Appeals.

The case arose from a December 20, 2010 traffic stop  in Hamilton County during which Sergeant Cory Wright of the Ohio State Highway Patrol arrested Gary Athon and charged him with operating a motor vehicle while under the influence of alcohol, speeding, and failing to reinstate his driver’s license.  Athon, represented by attorney Steven Adams, pleaded not guilty to the charges. 

Rather than filing a request with the prosecutor under Ohio  Crim.R. 16 for discovery of police reports, blood alcohol test results and other documents related to Athon’s case, Adams asked another attorney, Christopher Finney, to obtain evidence related to Athon’s arrest by filing  a public records request  with the Highway Patrol.  Finney’s public records request  did not identify Athon as the subject  of the requested records , but instead asked for copies of patrol car audio and video recordings, incident reports, and other  documents pertaining to “any OVI arrests” made by Sergeant Wright on the date Athon was arrested.  

The State Highway Patrol provided Finney with recordings of the traffic stop on DVD and CD as well as hundreds of pages of documents related to the testing equipment  that was used to determine  Athon’s blood alcohol content on the night of his arrest.  Finney then delivered these records to Adams. 

The state subsequently moved the trial court to compel Athon to provide discovery regarding the witnesses and evidence Athon intended to present at trial,  asserting that the public records request amounted to a demand for discovery and triggered a reciprocal duty of disclosure by the defendant pursuant to Crim.R. 16(H).  The trial court determined that Finney had obtained public records related to Athon’s arrest “at the request of a straw person” and then provided them to Athon.  It therefore ordered Athon to provide discovery to the state, finding that “when the Defendant, via other people, requested and received public records from an agent of the State of Ohio in this contested criminal proceeding, the request is in effect, a demand for discovery on the State of Ohio.”

Athon appealed.  On review, the First District Court of Appeals reversed the trial court’s reciprocal discovery order,  holding that “a public records request by a criminal defendant, or on behalf of a criminal defendant, seeking public records pertaining to his or her pending criminal case is not tantamount to a demand for discovery. Such a request does not trigger a defendant's duty of disclosure under Crim.R. 16(H).”

The state sought and was granted Supreme Court review of the First District’s ruling.

Writing for the majority in today’s decision,  Justice O’Donnell said the case presented the court with two issues: “whether an accused in a criminal case may request public records to obtain information that could be demanded from the state during discovery, and if so, whether such a request triggers a reciprocal duty of disclosure to the state. “

In addressing those questions, Justice O’Donnell noted that in a 1994 decision, State ex rel. Steckman v. Jackson,  the Ohio Supreme Court held  that “the Public Record Act permits anyone to obtain public records pursuant to R.C. 149.43(A), regardless of purpose, but that in a criminal proceeding, a defendant may use only Crim.R. 16 to obtain discovery.”

Justice O’Donnell wrote: “(O)ur decision in Steckman does not bar an accused from obtaining public records that are otherwise available to the public. Although R.C. 149.43 provides an independent basis for obtaining information potentially relevant to a criminal proceeding, it is not a substitute for and does not supersede the requirements of criminal discovery pursuant to Crim.R. 16.  As we reiterated in State v. Palmer, (2007) ‘(t]he philosophy of the Criminal Rules is to remove the element of gamesmanship from a trial.  The purpose of discovery rules is to prevent surprise and the secreting of evidence favorable to one party. The overall purpose is to produce a fair trial.’”

“In 2010, this court amended the discovery process in criminal cases.  Crim.R. 16(A) now states, ‘This rule is to provide all parties in a criminal case with the information necessary for a full and fair adjudication of the facts, to protect the integrity of the justice system and the rights of defendants, and to protect the well-being of witnesses, victims, and society at large.’ … Crim.R. 16(A) further indicates that ‘[a]ll duties and remedies are subject to a standard of due diligence, apply to the defense and the prosecution equally, and are intended to be reciprocal.’” 

“We continue to recognize that neither R.C. 149.43 nor Crim.R. 16 precludes an accused from obtaining public records from law enforcement agencies, but Crim.R. 16 is specific to the procedure in criminal cases and therefore is the preferred mechanism to obtain discovery from the state.
… Athon’s claim that he is not subject to reciprocal discovery because he has not made a demand on the state is not well taken.  When an accused directly or indirectly makes a public records request for information that could be obtained from the prosecutor through discovery, the request is the equivalent of a demand for discovery and triggers a duty to provide reciprocal discovery as contemplated by Crim.R. 16.  Our resolution here accords with decisions of federal circuit courts holding that the Freedom of Information Act is not a substitute for discovery in criminal cases.’”

Justice O’Donnell’s opinion was joined by Chief Justice Maureen O’Connor and Justices Judith Ann Lanzinger and Judith L. French.

Justice Sharon L. Kennedy entered a dissenting opinion, joined by Justices Paul E. Pfeifer and William M. O’Neill, stating that in her view the majority’s position is contrary to the plain language of Crim.R.16.  Justice Kennedy wrote: “Crim.R. 16(A) contains much aspirational language but only one requirement.  That requirement—that all parties supplement their discovery disclosures—is not triggered until the defense makes a demand for discovery. Nothing in the rule supports the majority’s holding that a ‘public records request [direct or indirect] is the equivalent of a [defendant’s] demand for discovery, and a reciprocal duty of disclosure arises in accordance with Crim.R. 16.’”

“While I am sympathetic to the concerns of the state, I believe that any amendments to Crim.R. 16(A) should be made through our rule-making authority under Article IV, Section 5(B) of the Ohio Constitution.  …   I encourage the Commission on the Rules of Practice and Procedure to review the effects of Crim.R. 16(A) and recommend necessary changes to it after careful study, and this court should amend the rule, if necessary, after public comment.  But to respect our rule-making procedure and follow our precedent, I would affirm the judgment of the court of appeals.”

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2012-0628. State v. Athon, Slip Opinion No. 2013-Ohio-1956.
Hamilton App. Nos. C-110236, C–110237, C–110238, C–110239, and C–110290,
2012-Ohio-765.  Judgment reversed.
O’Connor, C.J., and O’Donnell, Lanzinger and French, JJ., concur.
Pfeifer, Kennedy, and O’Neill, JJ., dissent.

Video clip View oral argument video of this case.

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