Information given to defendant during discovery not public

OHIO–In late January, the state Supreme Court in Columbus ruled that information released by a prosecutor to a criminal defendant for discovery purposes is not subject to the state open records law. The high court’s decision precludes the release of records to two television stations that had filed separate suits to compel release of the same information.

In August 1995, Therressa Jolynn Ritchie and Ernest Vernell Brooks were arrested in Dayton and indicted on several charges following the murder of Ritchie’s four-year-old daughter Samantha.

Two television stations, WDTN-TV2 and WHIO-TV7, extensively covered the murder investigation, subsequent arrests and trial. Both stations made written requests to the Dayton Police Chief for access to the records of statements made by witnesses or defendants in the case. After the police chief refused their requests, both stations filed separate lawsuits.

Ohio law allows court action for violation of the public records act to be brought in several ways and each station pursued a different judicial route. WDTN-TV2 filed suit with the Court of Appeals in Dayton asking the court to compel the release of the records. The appeals court denied the request and WDTN-TV2 appealed to the state Supreme Court. WHIO-TV7 took its complaint directly to the high court.

In the consolidated case before the Supreme Court, the stations argued that because the prosecutor had already released the statements to the defendants during trial discovery, the statements were no longer exempt as “work product” and should be released under the open records law. The stations also argued that the records must be released because of the public’s First Amendment Right to information regarding the trial.

The high court held that “discovery is neither a public process nor typically a matter of public record.” Thus, the court reasoned, the public’s First Amendment rights were not violated by denial of access to the records in this case. (Ohio ex rel. WHIO-TV7 v. Lowe; Ohio ex rel. WDTN-TV2 v. Lowe; Media Counsel: Thomas Czechowski (WHIO-TV7) and Andrew Storar (WDTN-TV2))