IN THE SUPREME COURT OF OHIO STATE ex rel. WHIO-TV-7 (MIAMI VALLEY BROADCASTING CORPORATION) 1414 Wilmington Avenue Dayton, Ohio 45420 * CASE NO: 633 * * * ORIGINAL ACTION IN MANDAMUS vs. Relator SHERIFF KEVIN O'LEARY Shelby County Sheriff 555 Gearhart Road Sidney, Ohio 45365-8734 Respondent ------------------------------------------------------------------ MOTION OF RELATOR, WHIO-TV-7 FOR PEREMPTORY, ALTERNATIVE AND PERMANENT WRIT OF MANDAMUS UNDER OHIO PUBLIC RECORDS ACT - R.C. 149.43 Robert E. Portune (Ohio Reg. 0018098) (Counsel of Record) Martina M. Dillon (Ohio Reg. 0066942) Gottschlich & Portune, LLP 201 East Sixth Street Dayton, Ohio 45402 Phone: 937-824-2811 Fax: 937-824-2818 Email:buzz@gplawdayton.com Counsel for Relator WHIO-TV-7 (Miami Valley Broadcasting Corporation) -1- APR 11 2t197 MARCIA J MEMGEL, CLERK SUPREME C(JtJRT OF Ol?iq
MOTION OF RELATOR, WHIO-TV-7 FOR PEREMPTORY, ALTERNATIVE AND PERMANENT WRIT OF MANDAMUS UNDER OHIO PUBLIC RECORDS ACT - R.C. 149.43 Now comes Relator, Miami Valley Broadcasting Corporation which operates a television station under the name WHIO-TV-7 (hereinafter "WHIO") serving the Miami Valley, including viewers in Shelby County, Ohio and moves this Court for an Order granting Peremptory, Alternative and/or Permanent Writs of Mandamus directing Respondent Shelby County Sheriff Kevin O'Leary to permit immediate inspection and copying of all recorded 911 calls made to the Shelby County Sheriff dispatch center by Victoria Eilerman and members of her family in connection with Ms. Eilerman's recent kidnapping and murder. Despite being public records to which access is guaranteed under R.C. 149.43, Sheriff O'Leary is refusing to promptly permit inspection and copying. Such denial violates rights guaranteed to WHIO under the Ohio Open Records Act and relief in mandamus is being sought from this Court. A Memorandum in Support is appended hereto. Robert E. Portune (Ohio Reg. 0018098) Martina M. Dillon (Ohio Reg. 0066942) Gottschlich & Portune, LLP 201 East Sixth Street Dayton, Ohio 45402 Phone: 937-824-2811 Fax: 937-824-2818 Email:buzz@gplawdayton.com Attorneys for Relator WHIO-TV-7 Miami Valley Broadcasting Corporation
MEMORANDUM IN SUPPORT 1. PRELIMINARY STATEMENT This original action in mandamus seeks access under the authority of the Ohio Public Records Act, R.C. 149.43 to all recorded 911 calls made to the Shelby County Sheriff dispatch center by Victoria Eilerman and members of her family in connection with Ms. Eilerman's recent kidnapping and murder. Although Respondent Shelby County Sheriff Kevin O'Leary has been advised by the Shelby County Prosecutor that these 911 tapes are public records, he is refusing to promptly permit inspection and copying, asserting instead that he has a "reasonable period of time" in which to make such records available and intends to take as long as thirty (30) days to do so. Relators ask this Court to find that that these 911 tapes are public records that must be promptly disclosed under R.C. 149.43 and to issue a peremptory or alternative and permanent writs of mandamus directing Sheriff O'Leary to permit immediate inspection and copying. II. JURISDICTION Mandamus is the appropriate remedy to seek compliance with the Public Records Act under R.C. 149.43. See, State ex rel. Beacon Journal Publishing Co. v. Bond (2002), 98 Ohio St.3d 146, 160. The Supreme Court has original jurisdiction to allow a writ of mandamus, peremptory and alternative writs. See, Ohio Constitution Art. IV 2(B)(1)(b) and R.C. 2731.02, and SCt R. X.
As the custodian of the 911 tapes recorded by the Shelby County Sheriff's dispatch center, Shelby County Sheriff O'Leary is the proper party to whom a writ of mandamus to compel production should issue under Revised Code 149.43(B). Ill. BACKGROUND On Thursday, April 5, 2007, Victoria M. Eilerman, an 84 year old resident of Shelby County, Ohio was kidnapped and murdered. Prior to her death she made one or more phone calls using the "911" system to the Shelby County Sheriff Dispatch Center. Other 911 calls were made by Ms. Eilerman's family. Thereafter, on Friday, April 6 and Monday, April 9, 2007, WHIO reporters Jill Del Greco and Steve Baker and WHIO Managing Editor Caryn Golden made public records requests to Sheriff O'Leary to inspect and copy the 911 calls. When these requests were denied, Robert E. Portune, attorney for WHIO contacted Sheriff O'Leary's office as well as the office of Shelby County Prosecutor Ralph Bauer and followed up with a written public records request dated April 9, 2007. (See, paragraph 6 of WHIO's Verified Complaint and Exhibit A attached thereto.) On Tuesday, April 10, 2007, Sheriff O'Leary advised WHIO that while he acknowledge that the 911 tapes were "public records" under Ohio Rev. Code Section 149.43, he contended that he had a "reasonable period of time" in which to permit them to be inspected and copies and that he intended to take as long as thirty (30) days to comply with WHIO's request - a delay which is contrary to his obligation to "promptly permit inspection" as required by the Ohio Public Records Act.
IV. RELATORS HAVE A CLEAR LEGAL RIGHT TO INSPECT AND COPY THE 911 TAPES A. The Public Records Act Relators have a clear legal right to inspect the 911 tapes generated in connection with the Eilerman matter by virtue of the Ohio Public Records Act, R.C. 149.43. The Public Records Act requires that "all public records shall be promptly prepared and made available for inspection to any person at all reasonable times during regular business hours." R.C. 149.43(B). The Ohio Supreme Court has consistently construed the Public Records Act as guaranteeing the broadest possible access to public records, which public records include copies of audiotapes of 911 emergency calls.. See, State ex rel. Cincinnati Enauirer v. Hamilton Countv. Ohio (1996), 75 Ohio St. 3d 374 wherein the Court stated at 376: [W]e hold that 911 tapes in general, as well as the particular 911 tapes requested in these cases, are public records which are not exempt from disclosure. (emphasis supplied). V. Providing Access To Public Records Within A Reasonable Time. The Public Records Act permits public offices, a "reasonable time" to respond to a public records request. R.C. 149.43(B)(1). Relators submit that more than a reasonable amount of time has already passed and that the 911 tapes should be made available immediately for inspection and copying. Requests have been pending since Friday, April 6, 2007 and Sheriff O'Leary is now asserting that he will not comply for up to an additional thirty (30) days, apparently asserting that a delay in disclosure of sensitive, tragic information would be best for the community. But see, State ex. Rel. Consumer News Services, Inc. v. Worthington City Board of Education, (2002), 97 Ohio
St.3d 58, wherein this court determined that the reasons for a six (6) day delay in complying were meritless stating at 66: It is not within the province of a public office or officer to determine for the requester when a requester's purpose in obtaining public records would best be served. Brooks' purpose in requesting to inspect and copy public records is irrelevant.' (Emphasis supplied) See also, State ex rel. Wadd v. City of Cleveland, (1998) 81 Ohio St. 3d 50 where a delay of 23 days was found to be a violation of R.C. 149.43, holding instead that an eight (8) day period was reasonable under the facts of that case.z In the instant action, the tapes are available and could be inspected immediately except for Sheriff O'Leary's improper interpretation of the term "reasonable" and reluctance to provide WHIO with prompt access and copying. Relators are entitled to immediate access to the requested records. VI. WHIO's Entitlement To A Peremptory Writ Ohio Rev. Code Section 2731.06 states: When the right to require the performance of an act is clear and it is apparent that no valid excuse can be given for not doing it, a court, in the first instance, may allow a peremptory mandamus. In all other cases an alternative writ must first be issued on the allowance of the court, or a judge thereof. WHIO submits that Sheriff O'Leary has no valid excuse for not permitting prompt inspection and copying by WHIO. A peremptory writ requiring Sheriff O'Leary to comply is appropriate. 'It should be noted that just because WHIO accesses these 911 tapes that it will necessarily broadcast them. It may well agree with the Sheriff that they should not be aired. However that editorial and broadcasting right is a privilege reserved to WHIO. It is not the Sherifrs decision to make under R.C. 149.43 or the First Amendment. Z The court noted at n. 2 that it might have considered an even shorter period than 8 days had Relator so requested. Id. at. 54, n. 2. -6-
VII. Conclusion Sheriff O'Leary lacks the authority to refuse to disclose a public record unless the record falls within a specifically enumerated exception contained in R.C. 149.43. In this case, the 911 tapes are public records, not qualifying under any exceptions, and must be promptly prepared upon request for inspection by the media and the public atlarge. Relator WHIO respectfully requests that peremptory or alternative and permanent writs of mandamus be issued to Respondent Sheriff O'Leary directing the disclosure of all recorded 911 calls made to the Shelby County Sheriff dispatch center by Victoria Eilerman and members of her family in connection with Ms. Eilerman's recent kidnapping and murder. WHIO also submits that the refusal to comply by Respondent supports an award of reasonable attorney fees and costs incurred herein. Reectfully submitte Robert E. PortdneTOhio Reg. 0018098) Martina M. Dillon (Ohio Reg. 0066942) Gottschlich & Portune, LLP 201 East Sixth Street Dayton, Ohio 45402 Phone: 937-824-2811 Fax: 937-824-2818 Email:buzz@gplawdayton.com Attorneys for Relator WHIO-TV-7 Miami Valley Broadcasting Corporation
CERTIFICATE OF SERVICE This shall certify that a true copy of the foregoing was hand delivered or sent by first class mail, postage prepaid to the following parties and courtesy copies delivered to other counsel as follows this 11th day of April, 2007: Sheriff Kevin O'Leary Shelby County Sheriff 555 Gearhart Road Sidney, Ohio 45365-8734 Ralph Bauer, Esq. Shelby County Prosecutor 126 North Main Street Sidney, Ohio 45365