The State ex rel. Cincinnati Enquirer
Pike County Coroner's Office. The State ex rel. GateHouse Media Ohio Holdings II, Inc., d.b.a. Columbus Dispatch, et al.
Pike County Coroner's Office et al.
Submitted July 11, 2017
Graydon, Head & Ritchey, L.L.P., John C. Greiner, and
Darren W. Ford, for relator Cincinnati Enquirer.
Zeiger, Tigges & Little, L.L.P., John W. Zeiger, Marion
H. Little Jr., and Matthew S. Zeiger, for relators GateHouse
Media Ohio Holdings II, Inc., d.b.a. Columbus Dispatch, and
Holly R. Zachariah.
Michael DeWine, Attorney General, and Sarah E. Pierce and
Ryan L. Richardson, Assistant Attorneys General, for
respondents, Pike County Coroner's Office and David
Carpenter, Lipps & Leland, L.L.P., Michael H. Carpenter,
and Caitlin E. Vetter, urging denial of the writ for amicus
curiae Ohio State Coroners Association.
T. Deters, Hamilton County Prosecuting Attorney, and Michael
J. Friedmann, Assistant Prosecuting Attorney, urging denial
of the writ for amicus curiae Ohio Prosecuting Attorneys
1} In these related original actions, relators,
Cincinnati Enquirer ("the Enquirer") and GateHouse
Media Ohio Holdings II, Inc., d.b.a. Columbus Dispatch, and
reporter Holly R. Zachariah (collectively, "the
Dispatch"), filed complaints seeking a writ of mandamus
to compel the release of unredacted reports on the autopsies
of eight members of the Rhoden and Gilley families who were
murdered in Pike County in April 2016. Separately, the
Enquirer moved for oral argument and the Dispatch moved to
compel access to the unredacted autopsy reports filed under
seal with this court. And the Dispatch and the Enquirer both
seek an award of attorney fees and statutory damages for what
they characterize as the untimely production of the redacted
autopsy reports. We deny the writ, the motions, and the
requests for attorney fees and statutory damages.
FACTS AND PROCEDURAL HISTORY
2} On April 22, 2016, eight people were found
deceased in Pike County, Ohio, all of whom were members of
the Rhoden or Gilley families. Over the next two days, the
chief deputy coroner of Hamilton County conducted autopsies
on the decedents. Respondent Pike County Coroner's Office
("PCCO") received the final autopsy reports on July
3} The Dispatch made a verbal request to PCCO and
respondent David Kessler, M.D., the Pike County coroner, to
inspect the final autopsy reports, pursuant to R.C. 149.43
and 313.10. PCCO denied the request.
4} On July 26, 2016, the Dispatch then e-mailed a
public-records request for the final autopsy reports to PCCO
and the attorney general, again citing R.C. 149.43 and
313.10. On the same day, Robert Strickley Jr., a reporter for
the Enquirer, e-mailed a request for the final autopsy
reports to PCCO, citing R.C. 149.43.
5} Also that same day, Dr. Kessler issued a press
release in which he confirmed that his office was in
possession of all eight final autopsy reports but denied all
media requests for them. Dr. Kessler stated that the final
autopsy reports were exempt from disclosure as
"confidential law enforcement investigatory
6} On July 29, 2016, the Enquirer filed in this
court an original action against PCCO seeking a writ of
mandamus to compel release of the final autopsy reports. On
August 8, 2016, the Dispatch filed a separate original action
in this court seeking the same relief. Both suits were filed
before Dr. Kessler and the attorney general's office
released redacted copies of the eight final autopsy reports
on September 23, 2016. The unredacted final autopsy reports
have not been released.
7} After unsuccessful mediation attempts, PCCO moved
to dismiss both actions. On February 22, 2017, we unanimously
denied the motions to dismiss and granted alternative writs
of mandamus directing the parties to submit evidentiary
materials and merit briefs. 148 Ohio St.3d 1406,
2017-Ohio-573, 69 N.E.3d 747.
8} Before the parties submitted their briefs, PCCO
moved to submit unredacted copies of the autopsy reports and
explanatory materials under seal for this court's in
camera inspection. We granted the motion in part, permitting
the unredacted autopsy reports to be filed under seal but
without additional explanatory materials. 148 Ohio St.3d
1440, 2017-Ohio-1427, 72 N.E.3d 655. PCCO filed the
unredacted autopsy reports under seal on May 3, 2017. The
next day, the Dispatch moved to compel access to the sealed
autopsy reports. On April 11, 2017, the Enquirer filed an
unopposed request for oral argument.
Request for oral argument
9} We have discretion to determine whether an
original action merits oral argument. S.Ct.Prac.R. 17.02(A).
In exercising that discretion, we consider whether the case
involves a matter of great public importance, complex issues
of law or fact, a substantial constitutional issue, or a
conflict among the courts of appeals. State ex rel. BF
Goodrich Co., Specialty Chems. Div. v. Indus. Comm., 148
Ohio St.3d 212, 2016-Ohio-7988, 69 N.E.3d 728, ¶ 23.
10} This case involves a matter of great public
importance: whether autopsy reports in open homicide
investigations are public records and therefore available for
public inspection. However, the remaining factors are not
present. The case presents no constitutional question or
division among the intermediate appellate courts, the
relevant facts are few and uncontested, and the legal
questions in the case are all matters of statutory
interpretation that the parties have extensively briefed.
Accordingly, we deny the Enquirer's request for oral
Motion to compel access
11} We have consistently required in camera
inspection of requested documents before determining whether
they are exempt from disclosure under the Public Records Act,
R.C. 149.43. Salemi v. Cleveland Metroparks, 145
Ohio St.3d 408, 2016-Ohio-1192, 49 N.E.3d 1296, ¶ 33.
The Dispatch contends that it has a due-process right to
participate in that inspection. But we considered and
rejected the same argument in State ex rel. Lanham v.
DeWine, 135 Ohio St.3d 191, 2013-Ohio-199, 985 N.E.2d
If the court were to require the disclosure of the subject
records in discovery to permit relator to contest the
applicability of a claimed exception, it would render the
case moot. And [relator] can still contest the applicability
of a claimed exception by challenging the validity of
unsealed evidence that the public-records custodian submits
to support its reliance on the exception. * * * Thus, due
process does not prevent the court's consideration of the
pertinent records submitted under seal for in camera review.
(Citation omitted.) Id. at ¶ 23. The Dispatch
has not offered any basis to distinguish its asserted
due-process right from that considered in Lanham.
Thus, we deny the motion to compel access.
The public-records mandamus petitions
12} After conducting an autopsy, the coroner, deputy
coroner, or pathologist must file in the coroner's office
a detailed written report describing the observations made
during the autopsy and the conclusions drawn therefrom. R.C.
313.13(A). Once filed, that report is expressly defined as a
public record and therefore is available for public
inspection. R.C. 313.10(A)(1) and (B).
13} But R.C. 313.10(A)(1) is subject to multiple
exceptions. One of those exceptions provides that
"[r]ecords of a deceased individual that are
confidential law enforcement investigatory records
['CLEIR'] as defined in section 149.43 of the Revised
Code" are not public records. R.C. 313.10(A)(2)(e).
14} The Dispatch and the Enquirer argue that as a
matter of statutory construction, final autopsy reports can
never qualify as CLEIR. And even assuming that the CLEIR
exception can apply to some autopsy reports, the newspapers
deny that any information contained in the Rhoden and Gilley
reports actually satisfies the exception. This latter claim
requires us to review the specific information that PCCO
redacted from the autopsy reports submitted under seal.
Standard of review
15} Mandamus is the appropriate remedy by which to
compel compliance with the Public Records Act. State ex
rel. Physicians Comm. for Responsible Medicine v. Ohio State
Univ. Bd. of Trustees, 108 Ohio St.3d 288,
2006-Ohio-903, 843 N.E.2d 174, ¶ 6. The Public Records
Act "is construed liberally in favor of broad access,
and any doubt is resolved in favor of disclosure of public
records." State ex rel. Cincinnati Enquirer v.
Hamilton Cty., 75 Ohio St.3d 374, 376, 662 N.E.2d 334
(1996). Exceptions to disclosure under the act are strictly
construed against the record's custodian, who has the
burden to establish the applicability of any claimed
exception. State ex rel. Cincinnati Enquirer v.
Jones-Kelley, 118 Ohio St.3d 81, 2008-Ohio-1770, 886
N.E.2d 206, ¶ 10.
16} Under the Public Records Act,
"[confidential law enforcement investigatory
records" are exempt from disclosure. R.C.
149.43(A)(1)(h). And although the coroner's-records
statute generally deems "the records of the
coroner" public records, R.C. 313.10(A)(1), the statute
contains an exception for "[r]ecords of a deceased
individual that are confidential law enforcement
investigatory records, " R.C. 313.10(A)(2)(e). The
coroner's-records statute cross-references the Public
Records Act and incorporates its definition of CLEIR.
Records of a deceased individual
17} We first determine whether autopsy reports
qualify as "[r]ecords of a deceased individual"
pursuant to R.C. 313.10(A)(2)(e). That phrase, according to
the Enquirer, "refers to a decedent's records,
created prior to death, that come into the possession of the
coroner." Autopsy reports, the newspapers argue, are
"records of the coroner" and not protected from
disclosure pursuant to R.C. 313.10(A)(2)(e).
18} The Enquirer's definition is unpersuasive.
Notably, the newspapers argue that documents must be prepared
by law enforcement in order to qualify as CLEIR. But if that
were correct, then such documents could never simultaneously
be "[r]ecords of a deceased individual" as the
Enquirer wishes to define the phrase. In other words, no
document could ever satisfy the R.C. 313.10(A)(2)(e) CLEIR
exception as it is construed by the Dispatch and the
19} Unsurprisingly, the Enquirer offers no support
for its claim that "[r]ecords of a deceased
individual" includes only documents possessed by the
deceased and created prior to death. And the Enquirer's
statutory argument relies on an unreasonably narrow
construction of the word "of." According to the
Enquirer, R.C. 313.10, and R.C. Chapter 313 more generally,
"consistently use" the preposition "of to
"connote possession, ownership, or belonging." For
example, the Enquirer contends, "the records of the
coroner, " as used in R.C. 313.10(A)(1), plainly means
records belonging to the coroner, not records about or
referring to the coroner. The Enquirer also points to the
phrase "the body or remains of a deceased person, "
which appears repeatedly in R.C. 313.08.
20} But the Enquirer oversimplifies the Revised
Code's use of the preposition. R.C. 313.10(A)(2)(b)
exemplifies the erroneous nature of the Enquirer's narrow
interpretation of the word "of." That statute
provides that "[p]hotographs of a decedent made
by the coroner or by anyone acting under the coroner's
direction or supervision" are not public records.
(Emphasis added.) R.C. 313.10(A)(2)(b). Plainly, in this
sentence, "of means "about" or
"depicting" the decedent, not "belonging
to" the decedent.
21} Apparently recognizing the flaw in its narrow
construction of the word "of, " the Enquirer
implies that the phrase "[r]ecords of a deceased
individual" may be ambiguous. It is our practice to
resolve any doubts concerning the interpretation of the
Public Records Act in favor of disclosure. State ex rel.
Glasgow v. Jones, 119 Ohio St.3d 391, 2008-Ohio-4788,
894 N.E.2d 686, ¶ 13. When statutory language is
ambiguous, it is appropriate to consider the legislative
history. But there, too, the Enquirer's argument is
undermined. In 2009, when the General Assembly amended R.C.
313.10 to insert the "[r]ecords of a deceased
individual" language, the preamble to the bill announced
that one purpose of the act was "to specify that certain
records of a decedent relating to the criminal investigation
of the decedent's death are not public records."
2008 Sub.H.B. No. 471. The act made two relevant changes to
the statute: it added R.C. 313.10(A)(2)(e), the CLEIR
exception at issue in this case. And it added R.C.
313.10(A)(2)(f), which excludes from the definition of
"public records" "[l]aboratory reports
generated from the analysis of physical evidence by the
coroner's laboratory that is discoverable under Criminal
Rule 16." 2008 Sub.H.B. No. 471. It is logical to
conclude that if laboratory reports about the decedent
constitute the "records of a decedent" referred to
in the preamble, then so too would the decedent's autopsy
22} The newspapers' second statutory argument is
vulnerable to the same objection as the first: it is not
apparent what records, if any, would remain subject to the
R.C. 313.10(A)(2)(e) CLEIR exception if their interpretation
prevailed. A decedent's medical and psychiatric records
are already exempt from disclosure by another provision of
the statute, as is a decedent's suicide note. R.C.
313.10(A)(2)(c) and (d). What other records belonging to a
deceased individual might a coroner routinely have in his or
her possession? In an affidavit, Special Agent Michael D.
Trout of the Ohio Bureau of Criminal Investigation
("BCI") described his personal experience on crime
scenes and suggested that the answer is none:
[A]ny personal effects or other items found on a body or in
possession of the deceased at the time of death are
ultimately collected, bagged, and kept by law enforcement as
evidence. The coroner generally does not keep these types of
items and the coroner generally does not collect and take
evidence at the crime scene, other than the victim's
presume that the language chosen by the General Assembly was
intended to be effective. Thus, we decline to adopt the
newspapers' interpretation of "[r]ecords of a
23} We hold that an autopsy report is a
"[r]ecord of a deceased individual" within the
meaning of R.C. 313.10(A)(2)(e).
Confidential law-enforcement investigatory records
24} The Public Records Act defines
"confidential law enforcement investigatory
record[s]" as including
any record that pertains to a law enforcement matter of a
criminal, quasi-criminal, civil, or administrative nature,
but only to the extent that the release of the record would
create a high probability of disclosure of any of the
* * *
(c) Specific confidential investigatory techniques or
procedures or specific investigatory work product.
25} PCCO argues that the Rhoden and Gilley autopsy
reports constitute "specific investigatory work
product" as we defined the term in State ex rel.
Dayton Newspapers, Inc. v. Rauch, 12 Ohio St.3d 100, 465
N.E.2d 458 (1984). The facts of Rauch are nearly
identical to those presented herein: the Hocking County
coroner, Dr. John Rauch, denied a public-records request from
the Dayton Daily News for final autopsy reports on two
homicide victims. At the time, the coroner's-records
statute, R.C. 313.10, did not have its own CLEIR provision,
so Dr. Rauch relied on the CLEIR exception in the Public
Records Act, former R.C. 149.43(A)(2)(c), Am.Sub.S.B. No. 62,
138 Ohio Laws, Part I, 245, 246 (now R.C. 149.43(A)(1)(h)).
He argued that the autopsy reports were subject to this
exception because they contained information that
investigators could use in their investigation-namely,
descriptions of the types of wounds and the manner of their
infliction. Dr. Rauch stated that police could test the
credibility of witnesses by comparing their proffered
testimony to the details provided in the autopsy reports.
26} We unanimously denied the newspaper's
petition for a writ of mandamus, agreeing with the coroner
that the autopsy reports were "specific investigatory
work product" and declaring that "[t]he autopsy is,
in itself, an investigation." Rauch at 100. We
noted that the report on an autopsy required as a result of a
homicide is distinguishable from " 'routine factual
reports' " that are subject to disclosure.
Id. at 100-101, quoting State ex rel. Beacon
Journal Publishing Co. v. Univ. of Akron, 64 Ohio St.2d
392, 398, 415 N.E.2d 310 (1980); see also R.C.
313.131(B) (coroner shall perform autopsy only if, in his or
her opinion, one is necessary). And we recognized that
"the confidentiality of the contents of an autopsy
report is essential to its effective use in further
investigation by law enforcement personnel."
Id. at 101.
27} The Dayton Daily News argued that the case
should be decided under R.C. 313.10, the more specific
statute governing coroner's records, rather than under
the Public Records Act. In 1984, when Rauch was
decided, R.C. 313.10 declared simply that "[t]he records
of the coroner, made by himself or by anyone acting under his
direction or supervision [are] public records." G.C.
2855-11. According to the Dayton Daily News, an autopsy
report, as a "record of the coroner, " was plainly
a public record.
28} In the second part of the opinion, we rejected
the premise of the newspaper's argument and concluded
that an autopsy report was not a "record of the
coroner" under former R.C. 313.09, the statute
describing the records that the coroner was mandated to keep:
The coroner shall keep a complete record of and shall fill in
the cause of death on the death certificate, in all cases
coming under his jurisdiction. * * * Such records shall be
properly indexed, and shall state the name, if known, of
every deceased person * * *, the place where the body was
found, date of death, cause of death, and all other available
information. The report of the coroner and the detailed
findings of the autopsy shall be attached to the report of
Am.H.B. No. 750, 136 Ohio Laws, Part II, 2976. We construed
this section to mean that an autopsy report was "an item
separate from the other information the coroner is required
to keep as a public record" and therefore was not
subject to disclosure in the same manner. Rauch, 12
Ohio St.3d at 101, 465 N.E.2d 458.
29} We definitively held in Rauch that
information in some autopsy reports can be critical to an
ongoing homicide investigation and therefore exempt from
disclosure as CLEIR. The Dispatch and the Enquirer vigorously
contend that Rauch has been superseded by subsequent
amendments to R.C. 313.10. While that may be true in part,
the General Assembly's post-Rauch 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.
30} The General Assembly has amended the
coroner's-records statute, R.C. 313.10, twice since we
decided Rauch. First, in 2006, the legislature added
language bringing autopsy reports within the definition of
public records. Am.Sub.H.B. No. 235, 151 Ohio Laws, Part IV,
7190, 7192. As a result, R.C. 313.10 now expressly states
that "public records" includes "the detailed
descriptions of the observations written during the progress
of an autopsy and the conclusions drawn from those
observations." R.C. 313.10(A)(1). Further reinforcing
the point, the amended statute excludes preliminary autopsy
reports from the definition of public records, R.C.
313.10(A)(2)(a), but contains no comparable exemption for
final autopsy reports. As a result of the 2006 amendments, we
conclude that our holding in Rauch that an autopsy
report is not a "record of the coroner" is no
31} However, the General Assembly amended the
coroner's-records statute again in 2009, adding the CLEIR
exception in R.C. 313.10(A)(2)(e) that did not exist when
Rauch was decided. 2008 Sub.H.B. No. 471 (effective
Apr. 7, 2009). The new language in R.C. 313.10 declares that
"the following records in a coroner's office are not
public records: * * * [r]ecords of a deceased individual that
are confidential law enforcement investigatory records as
defined in section 149.43 of the Revised Code." R.C.
32} Thus, the General Assembly, through the addition
of R.C. 313.10(A)(2)(e), endorsed what we had held in the
first half of Rauch-that at least some
autopsy reports remain protected from disclosure, at least
for a temporary period, because they are CLEIR.
33} Whether a document satisfies the CLEIR exception
is determined by a two-part test: (1) whether the record is a
confidential law-enforcement record and (2) whether release
of the record would create a high probability of disclosure
of any one of the statutorily enumerated types of information
that is exempt from public disclosure. See State ex rel.
Musial v. N. Olmsted, 106 Ohio St.3d 459,
2005-Ohio-5521, 835 N.E.2d 1243, ¶ 18-19. (Although the
first dissenting opinion argues that we invented this
two-part test in State ex rel. Steckman v. Jackson,
70 Ohio St.3d 420, 639 N.E.2d 83 (1994), it dates back to at
least State ex rel. Polovischak v. Mayfield, 50 Ohio
St.3d 51, 52, 552 N.E.2d 635 (1990). See State ex rel.
Beacon Journal Publishing Co. v. Maurer, 91 Ohio St.3d
54, 56, 741 N.E.2d 511 (2001), citing Polovischak at
52.) Of the types of protected CLEIR, PCCO asserts that the
Rhoden and Gilley autopsy reports contain "[s]pecific
confidential investigatory techniques or procedures or
specific investigatory work product, " R.C.
34} The Dispatch and the Enquirer argue that final
autopsy reports can never reveal specific investigatory work
product because the coroner is not a law-enforcement
official. This argument is unavailing. In attempting to
support this claim, the Enquirer misconstrues this
court's opinion in Steckman, arguing that we
required in that case "that 'specific investigatory
work product' be 'prepared by law enforcement
officials.' " We did not impose that requirement in
Steckman. Instead, we recited the work-product rule,
quoted the description in Black's Law Dictionary
of materials exempt from disclosure under that rule-"
'any notes, working papers, memoranda or similar
materials, prepared by attorneys [here, by law enforcement
officials] in anticipation of litigation' "-and
applied it to cases involving records held by law-enforcement
officials. (Brackets sic.) Steckman at 434, quoting
Black's Law Dictionary 1606 (6th Ed.1990).
35} Indeed, the relevance of Steckman to
this case is limited, at best. In Steckman, we
specifically addressed "the use (and attempted use) of
R.C. 149.43 (public records law) as a vehicle to obtain
records from law enforcement officials and the contents of
the files of prosecutors in pending criminal cases."
Id. at 421. We "emphasize[d]" that the
"decision only affects public records involved in
pending criminal proceedings as that term is hereinafter
construed." Id. at 426. 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
36} Although Steckman construed the CLEIR
exception as it pertains specifically to records sought from
law-enforcement agencies and prosecutors' offices, the
Public Records Act defines CLEIR as any "record[s]
that pertain to a law enforcement matter."
(Emphasis added.) R.C. 149.43(A)(2). "[T]he statutory
definition of [CLEIR] focuses on the nature of the record
rather than upon the nature of the individual or agency
holding the record." Polovischak, 50 Ohio St.3d
at 53, 639 N.E.2d 83. In Polovischak, we
specifically extended CLEIR protection to records compiled by
the Bureau of Workers' Compensation's Internal
Security Committee, which had authority to investigate "
'all claims or cases of criminal violations,
abuse of office, or misconduct on the part of bureau
or [Industrial] [C]ommission employees.' " (Emphasis
sic.) Id. at 52-53, quoting former R.C. 4121.122(D),
Am.Sub.H.B. No. 222, 143 Ohio Laws, Part II, 3197, 3280. We
reached this conclusion despite the facts that the
investigative authority was not exercised by law-enforcement
officials and was not restricted to investigating criminal
violations. See also State ex rel. Mahajan v. State Med.
Bd. of Ohio, 127 Ohio St.3d 497, 2010-Ohio-5995, 940
N.E.2d 1280, ¶ 50-53 (memorandum prepared by the State
Medical Board's chief enforcement attorney protected from
disclosure under the Public Records Act by the CLEIR
exception for specific investigatory work product).
37} Indeed, if the only records that qualify as
CLEIR are those prepared by law enforcement, then R.C.
313.10(A)(2)(e) would shield nothing. There is no evidence
that police investigators routinely leave their investigative
reports in the custody of the coroner. If reports prepared by
the coroner do not qualify as CLEIR, then R.C.
313.10(A)(2)(e) becomes a dead letter. We must presume that
the General Assembly intended the entire
coroner's-records statute to be effective. RC. 1.47(B).
38} 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. For instance, to determine
the cause of death, the coroner may issue subpoenas for
witnesses, administer the witness oath, and inquire of
witnesses how a death occurred. R.C. 313.17. The coroner may
even commit witnesses to jail under certain circumstances,
and a judge can, on the coroner's application, compel
compliance on threat of contempt. Id. It cannot be
said that the coroner lacks authority to investigate a
violation of law when, without the coroner's
investigation, a murder could be mistaken for a natural death
and no legal violation would be uncovered.
39} As part of the coroner's efforts to
determine whether the law was violated, the coroner may
gather evidence and submit it to BCI as part of the
investigation. R.C. 313.08(I). And in cases "in which,
in the judgment of the coroner or prosecuting attorney,
further investigation is advisable" (emphasis
added), the coroner is statutorily required to "promptly
deliver, to the prosecuting attorney of the county in which
[the] death occurred, copies of all necessary records
relating to [the] death." R.C. 313.09; see also
R.C. 313.12(A) ("When any person dies as a result of
criminal or other violent means * * * or in any suspicious or
unusual manner, * * * the physician called in attendance, or
any member of an ambulance service, emergency squad, or law
enforcement agency who obtains knowledge thereof arising from
the person's duties, shall immediately notify the office
of the coroner of the known facts concerning the time, place,
manner, and circumstances of the death, and any other
information that is required pursuant to sections 313.01 to
313.22 of the Revised Code"). It is unreasonable to
argue that a coroner, conducting a preliminary investigation
to determine whether an offense was committed-for instance,
whether a cardiac-arrest death was caused by a heart attack
or a poisoning-is not participating in a law-enforcement
40} Here, the unredacted portions of the autopsy
reports contain substantial information, including the cause
of death for each victim, general information about injuries,
and observations about the victims' bodies including
detailed descriptions of various organs. Among 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 investigation into the
deaths of these victims is ongoing.
41} PCCO submitted affidavits of Dr. Kessler and BCI
Special Agent Trout to explain the investigative nature of
the autopsy reports and their relevance to the ongoing
criminal investigation. Dr. Kessler averred that the
"information in the * * * final autopsy reports reflect
[sic] the type of specific information used by law
enforcement to investigate a homicide." For instance,
according to Dr. Kessler, "law enforcement can use the
location and direction of * * * bullet wounds and tracks to
recreate the scene of death." Toxicology reports can
determine whether drugs "may be a contributing factor to
the death, and might play a role in law enforcement's
investigation." In some cases, "strangulation marks
left on the body * * * might indicate if one or more people
were involved in the death [which] helps the law enforcement
investigation move forward * * *."
42} Special Agent Trout described how the
information contained in the Rhoden and Gilley autopsy
reports can be used by law enforcement. According to Special
Agent Trout, "[decomposition can tell investigators many
things such as time of death, conditions that the body was
subjected to after death, and the time elapsed between death
and autopsy." And "information from the coroner
about the victims' wounds can give investigators a lot of
details about how the crimes were committed and what was
happening in the scene as the shots were fired. Other than
the investigative team, only the perpetrator(s) of the crimes
knows these details." Other redacted information
"can potentially tell investigators what kind of gun and
ammunition was used, other details about the perpetrator or
the scene of death, and results of toxicology or other
forensic information." "Information from final
autopsy reports can also be used to triage tips."
Investigators can compare autopsy information to that
provided by alleged witnesses to evaluate their credibility.
And Special Agent Trout advised that "[w]hen critical
pieces of information are readily available in the
media/public, it can be almost impossible to determine if a
person is speaking from actual personal knowledge or just
regurgitating what they have seen in the news or on social
43} In Rauch, we acknowledged that the
confidentiality of the contents of an autopsy report is
"essential to its effective use in further investigation
by law enforcement personnel." 12 Ohio St.3d at 100, 465
N.E.2d 458. Based on our review of the Rhoden and Gilley
autopsy reports and the sworn statements of Dr. Kessler and
Special Agent Trout, it is clear that the information
redacted from the reports is precisely the type of
information shielded from disclosure in Rauch due to
its investigative value to law enforcement. See also
State ex rel. Cincinnati Enquirer v. Dept. of Pub.
Safety, 148 Ohio St.3d 433, 2016-Ohio-7987, 71 N.E.3d
258, ¶ 45 (emphasizing relevance of investigative value
to public-records determination and recognizing that
dash-cam-recording images with "concrete investigative
value" may be withheld while images with little or no
investigative value must be disclosed). As Special Agent
Trout emphasized, the value of that information to
investigators will be lost if it is prematurely disclosed.
44} Applying the standard we set forth in
Rauch, we conclude that the redactions to the final
Rhoden and Gilley autopsy reports were made to protect
records of the deceased that are CLEIR. Therefore, the
information is exempt from public disclosure pursuant to the
CLEIR exception while the investigation is ongoing.
Accordingly, the Rhoden and Gilley ...