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Callback from 911 Operator Is Public Record

Image of a female 911 operator wearing a telephone headset (David Smith/Thinkstock)

The Ohio Supreme Court determined that a Butler County 911 operator’s call back to a phone number was required to be disclosed under the state’s public records law.

Image of a female 911 operator wearing a telephone headset (David Smith/Thinkstock)

The Ohio Supreme Court determined that a Butler County 911 operator’s call back to a phone number was required to be disclosed under the state’s public records law.

The Ohio Supreme Court ruled today that the recording of a 911 dispatcher’s return call after a caller to the emergency line hung up is a public record.

The Butler County prosecutor had refused to release the recording of the outbound call to the Cincinnati Enquirer. On the call, the man who answered the phone said he had stabbed his dad.

The court ruled that the return call was not exempt from disclosure as a trial preparation record or a confidential law enforcement investigatory record. Nor did the evidence show that state or federal law prohibited the call from being released, Justice Judith L. French wrote in the majority opinion.

While the Twelfth District Court of Appeals had denied an award of attorney fees in the case, the Supreme Court reversed that decision and returned the case to the appeals court to decide the appropriate amount of fees to approve. The Supreme Court upheld the Twelfth District’s ruling that granted statutory damages to the Enquirer.

A Butler County Sheriff’s Office 911 operator took an incoming call on June 17, 2012. The female caller said an accident had occurred, and she needed an ambulance for her husband who was not breathing. The operator, Debra Rednour, alerted officials and asked the caller some questions. The woman hung up.

Rednour called the number back, but there was no answer. On her second attempt, a man who said he was Michael Ray answered the phone. Rednour explained where she was calling from and that she was sending help. Ray responded, “I’m a murderer, and you need to arrest me.” He added that he had been drinking alcohol, had been discovered, and had “snapped” and stabbed his stepfather, who he referred to as “dad” on the call. The operator asked him about the stabbing and about his stepfather’s condition.

That day, an Enquirer reporter asked for the 911 calls from the Butler County Sheriff’s Office. After receiving a copy of the incoming call to Rednour, the reporter submitted a public records request for the two return calls the operator had made to the number.

Butler County’s prosecuting attorney, Michael Gmoser, denied the request. Four days later, the Enquirer again asked for the records. This time Gmoser released the recording of Rednour’s first outgoing call, which no one answered. He then asked Judge Michael Sage, who was assigned to Ray’s murder trial, for a protective order to block the release of the second outbound call. On June 25, the judge approved the order.

The Enquirer then sought a writ of mandamus from the Twelfth District to force the prosecuting attorney to release the recording and a writ of prohibition to stop the judge from enforcing the protective order. The complaint also requested statutory damages and attorney fees.

A few days before Ray’s trial was scheduled to start in October 2012, the judge amended the protective order to allow the recording to be distributed to the media immediately before it was admitted into evidence at trial.

The appeals court granted the writ ordering the release of the outgoing 911 call and awarded statutory damages. It denied the second writ and attorney fees. The judge and Gmoser appealed, and the Enquirer filed a cross-appeal.

Return Call Was Public Record
Justice French explained that the return call from the 911 operator meets the definition of a “public record” in the state’s public records act because it is a record kept by Butler County, a public office. She then considered whether the call was exempt from disclosure under the exceptions in the law (R.C. 149.43) raised by the prosecuting attorney.

Call Was Not Trial Preparation Record
The outgoing call was not exempted from release as a trial preparation record because it was not “specifically compiled in reasonable anticipation of … [a] criminal action or proceeding” as required by the public records law, Justice French determined. She noted that Rednour testified she did not think a crime had occurred at the time she redialed the number. Rednour also said she called back and questioned Ray simply to help emergency personnel and the man who had been stabbed.

Justice French added that not every record that becomes part of the prosecutor’s file can be designated as a trial preparation record and kept from release.

Recording Was Not Confidential Investigatory Record
Justice French noted that the prosecuting attorney did not explain how the recording was law enforcement work product, which would be exempt from disclosure. “Work product” refers to materials prepared by law enforcement officials in anticipation of litigation. Justice French pointed out that Rednour did not question Ray with an expectation of future legal action, she placed the return call as part of her routine duties, and she is not a law enforcement official. The court concluded that Rednour’s outbound call did not constitute an exempt confidential law enforcement investigatory record.

Constitutional Issues
A record cannot be disclosed under state or federal law if it prejudices a defendant’s constitutional right to a fair trial, Justice French explained.

The court determined that a test for balancing the First Amendment rights of the press with a defendant’s fair trial rights does not apply in this case. The Enquirer was not seeking access to a historically open criminal proceeding, Justice French reasoned, and it did not have a First Amendment claim to the recording at the time it made its public records request.

“[The Enquirer] was asking to examine a physical piece of evidence in the prosecution’s file, even before that evidence became part of any criminal proceedings,” she wrote. “The First Amendment does not give the Enquirer the right to open the prosecution’s evidence locker.”

However, the court could not assess whether the release of the recording before trial would have infringed on Ray’s fair trial rights because there was nothing in the case record about the issue.

“All we have before us is the recording itself,” Justice French wrote. “And while we can certainly agree that the recording contains prejudicial information, that fact alone is insufficient for us to predict a Sixth Amendment violation. We still need to know whether this prejudicial information would create extensive publicity and whether this publicity would be so pervasive and negative that it would prevent Ray from finding 12 impartial jurors. … We cannot assume or speculate our way to these necessary findings; there must be some evidence in the record that speaks to the possible publicity and its effect on the jury pool.”

The court concluded that the outgoing call from the 911 operator was not subject to an exemption from release in the public records law.

Attorney Fees
Justice French explained that attorney fee awards can be reduced or eliminated for two reasons provided in R.C. 149.43(C)(2)(c). However, those factors can be applied only after a court first decides that attorney fees should be granted, she reasoned.

She pointed out that the prosecutor’s office improperly sought a court order to bar the recording’s release.

“The protective order had no place in this public-records dispute,” she wrote. “Mandamus actions resolve public-records matters; criminal trial motions do not. … Thus, the protective order only served to saddle the Enquirer with more litigation and more attorney fees. These tactics do not demonstrate good faith by the prosecutor’s office, and the court of appeals was unreasonable in concluding otherwise. The office forced the Enquirer to incur additional legal fees. It should be responsible, in some measure, for the extra costs that it created.”

The court remanded the case back to the Twelfth District to decide what amount of attorney fees should be awarded.

Other Matters
Because the Supreme Court held that the Enquirer was entitled to a writ releasing the recording, the protective order preventing the recording’s disclosure was unenforceable. Therefore, Justice French reasoned, the court did not need to address the Enquirer’s request to prohibit enforcement of the protective order. The court also ruled that the statutory damages granted in this case were appropriate.

Joining the majority opinion were Justices Terrence O’Donnell, Sharon L. Kennedy, and William M. O’Neill. Chief Justice Maureen O’Connor and Justice Judith Ann Lanzinger agreed only with the court’s judgment.

Justice Paul E. Pfeifer dissented.

In Dissent
Justice Pfeifer concluded that the outbound call recording was not a public record because it was a trial-preparation record and its release would have jeopardized the defendant’s fair trial rights.

In his view, the return call was not a 911 call. He noted that Ray never called 911; Rednour, not Ray, initiated the return call; and Rednour was investigating the earlier call from another person.

Justice Pfeifer reasoned that once Ray said he was a murderer, the operator knew the call would be evidence in a case against him. Beyond ascertaining the victim’s condition, Rednour’s questions established that Ray had killed his stepfather, Justice Pfeifer wrote. He concluded that the recording was a trial preparation record exempt from release.

He agreed with the majority that the rights of the press did not need to be balanced against the defendant’s rights because First Amendment rights were not at play in this case. He contended that the majority, however, relied on cases involving First Amendment issues to show the case record lacked evidence that Ray’s fair trial rights would be violated if the call was released.

He concluded that the recording was not subject to disclosure because it did infringe on Ray’s Sixth Amendment rights. Justice Pfeifer pointed out that the trial court judge listened to the recording in camera, and, after holding a hearing at which both sides were able to argue their positions, determined that the recording was harmful to Ray’s right to a fair trial and properly tried to protect that right by barring the recording’s release prior to trial.

2013-0945. State ex rel. Cincinnati Enquirer v. Sage, Slip Opinion No. 2015-Ohio-974.

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