IN THE SUPREME COURT OF OHIO
STATE EX REL. GATEHOUSE MEDIA OHIO
HOLDINGS II, INC., d/b/a THE COLUMBUS
DISPATCH, et al.,
Relators,
v.
PIKE COUNTY CORONERS OFFICE, et al.,
Respondents.
RELATORS MERIT BRIEF
John W. Zeiger (0010707)
Marion H. Little, Jr. (0042679)
Matthew S. Zeiger (0075117)
ZEIGER, TIGGES & LITTLE LLP
3500 Huntington Center
41 South High Street
Columbus, OH 43215
(614) 365-9900
(614) 365-7900 Facsimile
Counsel for Relators
GateHouse Media Ohio Holdings II, Inc. David Kessler, MD
d/b/a The Columbus Dispatch and
Holly R. Zachariah
:
:
:
: Case No. 2016-1153
:
: Original Action in Mandamus
:
:
:
:
:
:
Sarah E. Pierce (0087799)
Ryan L. Richardson (0090382)
Assistant Attorneys General
Constitutional Offices Section
30 East Broad Street, 16th Floor
Columbus, Ohio 43215
Tel: 614-466-2872
Fax: 614-728-7592
Counsel for Respondents
Pike County Coroners Office and
Robert Junk (0056250)
Prosecuting Attorney
Pike County Prosecutors Office
Pike County Court House
100 East Second Street, Suite 100
Waverly, Ohio 45690
Tel: (740) 947-4323
Fax: (740) 947-7617
Counsel for Respondent
Pike County Coroners Office and
David Kessler, MD
 TABLE OF CONTENTS

PAGE

TABLE OF AUTHORITIES ......................................................................................................... vi

I. INTRODUCTION ...............................................................................................................1

II. STATEMENT OF FACTS ..................................................................................................5

A. The Parties Respondents Are The Keepers Of The Subject Public

Records ....................................................................................................................5

B. The Deaths Of The Rhoden Family Members And The Press Releases
And Statements Of The Attorney General And Other Public Officials...................6

C. The Hamilton County Coroners Press Release Providing Select

Details of the Deaths A Press Release Contradicting Prior Public
Statements ................................................................................................................9

D. Another Public Record Delay Obtaining Copies of Death

Certificates. ............................................................................................................10

E. Submission of Multiple Public Records Requests For The Final

Autopsy Reports.....................................................................................................10

F. The Key Information Elicited From Respondents Admissions And

Omissions...............................................................................................................11

1. A Coroners Office Is An Independent Public Office Assigned

Specific Statutory Duties; It Is Not A Law Enforcement
Agency Or Office .......................................................................................12

2. Respondents Did Not Conduct An Investigation .......................................13

3. Law Enforcement Officials Did Not Participate In Or

Otherwise Contribute To Preparation Of The Final Autopsy
Reports .......................................................................................................15

4. The Public Office Responsible For The Keeping Of The Final

Autopsy Reports Did Not Conclude That They Are
Confidential Investigatory Records ...........................................................16

i
 PAGE

5. The Final Autopsy Reports Do Not Contain: (a) Documents

Exempted Under R.C. 313.10(A)(2); Or (b) Confidential Law
Enforcement Investigatory Records ...........................................................17

6. Final Autopsy Reports Are Released To The Next Of Kin With

No Limitations On Dissemination Or Release Of Information;
This Is The Practice Followed By Respondents; And
Respondents Released Non-Public Information To The Next
Of Kin Of The Deceased Rhoden Family Members Without
Any Limitations And With Instructions That They Could, At
Their Discretion, Publicly Disclose The Information ................................19

7. Final Autopsy Reports Are Treated As Public Records And

Released To The Public With No Limitations Or Redactions ...................20

G. Respondents Belated Release Of Redacted Copies Of The Final

Autopsy Reports But Respondents Did Not Make The Redactions ...................22

H. Compelling Public Interests For Full Access.........................................................24

III. ARGUMENT AND PROPOSITIONS OF LAW ..............................................................25

PROPOSITION OF LAW NO. 1: R.C. 313.10 Expressly Provides That Final

Autopsy Reports Are Public Records ................................................................................25

Authorities Relied Upon to Support The Dispatchs Proposition of Law No. 1:

A. The Courts Application Of The Plain Language Of R.C. 313.10 Is

Dispositive The Writ Should Be Granted ...........................................................25

Medcorp, Inc. v. Dept of Job & Family Services, 121 Ohio St.3d 622,
2009-Ohio-2058, 906 N.E. 1125............................................................................25

Jacobson v. Kafoury, --- Ohio St.3d ---, 2016-Ohio-8434, --- N.E.3d --- .............25

Silver Lake v. Metro Regl Transit Auth., 111 Ohio St.3d 324, 2006-
Ohio-5790, 856 N.E. 2d 236 ..................................................................................26

Hubbard v. Canton City Sch. Bd. Of Educ., 97 Ohio St.3d 451, 2002-
Ohio-6718, 780 N.E.2d 543 ...................................................................................26

ii
 PAGE

B. The Legislative History and This Courts Prior Rulings Confirm The
Public Record Status of a Final Autopsy Report ...................................................27

State v. Fluellen, 8th Dist. Cuyahoga No. 78532, 2002-Ohio-3262 .....................27

State ex rel. Dayton Newspapers, Inc. v. Rauch, 12 Ohio St.3d 100,

465 N.E.2d 458 (1984)...........................................................................................27

State v. Craig, 110 Ohio St.3d 306, 2006-Ohio-4571, 853 N.E.2d 621 ...............28

State v. Maxwell, 139 Ohio St.3d, 2014-Ohio-1019, 9 N.E.3d 930 ......................28

State v. Mitchell, 7th Dist. Columbiana No. 05CO63, 2008-Ohio-1525 ..............28

Dunning v. Vernau, S.D.Ohio No. 1:14cv932, 2015 WL 5729332

(Sept. 30, 2015) ......................................................................................................28

C. The Statute Spells Out Certain Narrow Exceptions To The General

Rule That A Coroners Records Are Public Records, But A Final
Autopsy Report Is Not One of The Exceptions .....................................................28

Kish v. City of Akron, 109 Ohio St. 3d 162, 2006-Ohio-1244, 846

N.E.2d 811 ............................................................................................................30

State ex rel. Paluf v. Feneli, 69 Ohio St. 3d 138, 630 N.E.2d 708
(1994) .....................................................................................................................30

Talman v. Quick Air Freight, Inc., 8th Dist. Cuyahoga No. 68879,
1995 WL 584728 (Oct. 5, 1995) ............................................................................30

D. R.C. 313.10(A)(2)(e) Provides Respondents No Defense .....................................31

State v. Taylor, 113 Ohio St.3d 297, 207-Ohio-1950, 865 N.E.2d 37 ...................31

Summerville v. City of Forest Park, 128 Ohio St.3d 221, 2010-Ohio-

6280, 943 N.E.2d 522 ............................................................................................31

State ex rel. Carr v. Akron, 112 Ohio St.3d 351, 2006-Ohio-6714 .......................31

State ex rel. Rocker v. Guernsey County Sheriffs Office, 126 Ohio

St.3d 224, 2010-Ohio-3288....................................................................................31

State v. Craig, 110 Ohio St.3d 306, 2006 -Ohio- 4571, 853 N.E.2d 621 ..............32

iii
 PAGE

State v. Maxwell, 139 Ohio St.3d, 2014-Ohio-1019, 9 N.E.3d 930.......................32

PROPOSITION OF LAW NO. 2: The Final Autopsy Reports Are Not

Confidential Law Enforcement Investigatory Records Within The Meaning
Of R.C. 149(A)(1)(h) and 149.43(A)(2) ............................................................................33

Authorities Relied Upon to Support The Dispatchs Proposition of Law No. 2:

A. A County Coroner Is Not A Law Enforcement Officer, As Defined By

Ohio Law ...............................................................................................................33

State ex rel. Strothers v. Wertheim, 80 Ohio St. 3d 155, 684 N.E.2d

1239 (1997) ............................................................................................................35

B. Even If A CLEIR Exception Were Available For Conduct Undertaken

By A Corner In Preparing A Final Autopsy Report, It Does Not Apply
Here, Because Respondents Were Not Involved In The Investigation
Conducted By Law Enforcement Officials, Nor Did They Conduct
Their Own Investigation ........................................................................................35

C. Public Officials May Not Exert Control Over The Records Kept By
Another Public Office, Regardless Of Their Reasons; Officials May
Not Withhold, Or Delay In Releasing, Records On The Basis That
They May Be Able To Articulate Public Policy Reasons That Conflict
With The Law Mandating The Release Of The Records .......................................36

State ex rel. Mothers Against Drunk Drivers v. Gosser, 20 Ohio St. 3d

30, 485 N.E.2d 706 (1985) ....................................................................................37

State ex rel. WBNS TV, Inc. v. Dues, 101 Ohio St. 3d 406, 2004-Ohio-
1497, 805 N.E.2d 1116 (2004)...............................................................................37

PROPOSITION OF LAW NO. 3: Respondents Failed To Release The

Requested Records Within A Reasonable Time As Required By The Public
Records Act ........................................................................................................................38

Authorities Relied Upon to Support The Dispatchs Proposition of Law No. 3:

State ex rel. Wadd v. City of Cleveland, 81 Ohio St.3d 50, 689 N.E.2d
25 (1989) ................................................................................................................38

State ex rel. Consumer News Services, Inc. v. Worthington City Bd. of

Educ., 97 Ohio St.3d 58, 2002-Ohio-5311, 776 N.E.2d 82 ...................................39

iv
 PAGE

State ex rel. DiFranco v. City of S. Euclid, 138 Ohio St.3d 367, 2014-
Ohio-538, 7 N.E.3d 1136 .......................................................................................39

State ex rel. Warren Newspapers, Inc. v. Hutson, 70 Ohio St.3d 619,

640 N.E.2d 174 (1994)...........................................................................................39

State ex rel. Mun. Constr. Equip. Operators Labor Council v. City of

Cleveland, 8th Dist. Cuyahoga No. 95277, 2011 WL 242890, 2011-
Ohio-117 (Jan. 7, 2011) .........................................................................................39

State ex. rel. Anderson v. City of Vermilion, 134 Ohio St.3d 120, 2012-
Ohio-5320, 980 N.E.2d 975 ...................................................................................40

PROPOSITION OF LAW NO. 4: Relators Are Entitled To An Award Of

Court Costs And Attorneys Fees ......................................................................................40

IV. CONCLUSION ..................................................................................................................41

v
 TABLE OF AUTHORITIES

Cases Page(s)

Dunning v. Vernau, S.D.Ohio No. 1:14cv932, 2015 WL 5729332 (Sept. 30, 2015) ....................28

Hubbard v. Canton City Sch. Bd. Of Educ., 97 Ohio St.3d 451, 2002-Ohio-6718, 780
N.E.2d 543 .....................................................................................................................................26

Jacobson v. Kafoury, --- Ohio St.3d ---, 2016-Ohio-8434, --- N.E.3d --- .....................................25

Kish v. City of Akron, 109 Ohio St. 3d 162, 2006-Ohio-1244, 846 N.E.2d 811 ..........................30

Medcorp, Inc. v. Dept of Job & Family Services, 121 Ohio St.3d 622, 2009-Ohio-
2058, 906 N.E. 1125 ......................................................................................................................25

Silver Lake v. Metro Regl Transit Auth., 111 Ohio St.3d 324, 2006-Ohio-5790, 856
N.E. 2d 236 ....................................................................................................................................26

State ex. rel. Anderson v. City of Vermilion, 134 Ohio St.3d 120, 2012-Ohio-5320,
980 N.E.2d 975 ..............................................................................................................................40

State ex rel. Bell v. White, 5th Dist. Morgan No. CA-93-15, 1994 WL 477795
(Aug. 3, 1994) ................................................................................................................................12

State ex rel. Carr v. Akron, 112 Ohio St.3d 351, 2006-Ohio-6714, 30 .....................................31

State ex rel Cincinnati Enquirer v. Sage, 142 Ohio St.3d 392, 2015-Ohio-974,
31 N.E.3d 616 ................................................................................................................................12

State ex rel. Consumer News Services, Inc. v. Worthington City Bd. of Educ., 97 Ohio
St.3d 58, 2002-Ohio-5311, 776 N.E.2d 82 ....................................................................................39

State ex rel. Dayton Newspapers, Inc. v. Rauch, 12 Ohio St.3d 100, 465 N.E.2d 458
(1984) .............................................................................................................................................27

State ex rel. DiFranco v. City of S. Euclid, 138 Ohio St.3d 367, 2014-Ohio-538, 7
N.E.3d 1136 ...................................................................................................................................39

State ex rel. Mothers Against Drunk Drivers v. Gosser, 20 Ohio St. 3d 30, 485 N.E.2d
706 (1985) .....................................................................................................................................37

State ex rel. Mun. Constr. Equip. Operators Labor Council v. City of Cleveland, 8th
Dist. Cuyahoga No. 95277, 2011 WL 242890, 2011-Ohio-117 (Jan. 7, 2011) .............................39

vi
Cases Page(s)

State ex rel. Paluf v. Feneli, 69 Ohio St. 3d 138, 630 N.E.2d 708 (1994).....................................30

State ex rel. Rocker v. Guernsey County Sheriffs Office, 126 Ohio St.3d 224, 2010-
Ohio-3288 ......................................................................................................................................31

State ex rel. Strothers v. Wertheim, 80 Ohio St. 3d 155, 684 N.E.2d 1239 (1997) .......................35

State ex rel. Wadd v. City of Cleveland, 81 Ohio St.3d 50, 689 N.E.2d 25 (1989) .......................39

State ex rel. Warren Newspapers, Inc. v. Hutson, 70 Ohio St.3d 619, 640 N.E.2d 174
(1994) ............................................................................................................................................39

State ex rel. WBNS TV, Inc. v. Dues, 101 Ohio St. 3d 406, 2004-Ohio-1497, 805
N.E.2d 1116 (2004)........................................................................................................................37

State v. Craig, 110 Ohio St.3d 306, 2006 -Ohio- 4571, 853 N.E.2d 621 ................................28, 32

State v. Fluellen, 8th Dist. Cuyahoga No. 78532, 2002-Ohio-3262 .............................................27

State v. Maxwell, 139 Ohio St.3d, 2014-Ohio-1019, 9 N.E.3d 930.........................................28, 32

State v. Mitchell, 7th Dist. Columbiana No. 05CO63, 2008-Ohio-1525 ......................................28

State v. Taylor, 113 Ohio St.3d 297, 207-Ohio-1950, 865 N.E.2d 37 ...........................................31

Summerville v. City of Forest Park, 128 Ohio St.3d 221, 2010-Ohio-6280, 943
N.E.2d 522 .....................................................................................................................................31

Talman v. Quick Air Freight, Inc., 8th Dist. Cuyahoga No. 68879, 1995 WL 584728
(Oct. 5, 1995) .................................................................................................................................30

Statutes Page(s)

R.C. 149.011(A) ..............................................................................................................................5

R.C. 149.011(D)...............................................................................................................................5

R.C. 149.43 .........................................................................................................................1, 31, 38

R.C. 149.43(B)(1) .................................................................................................................. Passim

R.C. 149.43(C)(3)(b)......................................................................................................................40

R.C. 313 ..........................................................................................................................1, 5, 28, 35

vii
Cases Page(s)

R.C. 313.01(B)(1) ...........................................................................................................................5

R.C. 313.05 ...................................................................................................................................35

R.C. 313.06 ...................................................................................................................................12

R.C. 313.09 .............................................................................................................................10, 27

R.C. 313.091 ..................................................................................................................................18

R.C. 313.10 ............................................................................................................................ Passim

R.C. 313.10(A)(1) .................................................................................................................. Passim

R.C. 313.10(A)(2) ....................................................................................................................29, 32

R.C. 313.10(A)(2)(a)......................................................................................................................19

R.C. 313.10(A)(2)(c)......................................................................................................................19

R.C. 313.10(A)(2)(d) .....................................................................................................................18

R.C. 313.10(A)(2)(e)..........................................................................................................19, 31, 33

R.C. 313.10(A)(2)(f) ......................................................................................................................19

R.C. 313.10(B) ..........................................................................................................................1, 26

R.C. 313.10(C)(1) ...................................................................................................................19, 29

R.C. 313.17 ..............................................................................................................................14, 35

R.C. 2901.01(A)(11)(a) (m) ........................................................................................................34

Ohio Attorney General Opinions Page(s)

1980 Ohio Atty. Gen. Ops. No. 80-091 .........................................................................................33

1996 Ohio Atty. Gen. Ops. No. 96-027 ...................................................................................12, 33

1998 Ohio Atty. Gen. Ops. No. 98-33 ...............................................................................12, 33, 34

viii
I. INTRODUCTION

This original action presents for the Courts consideration several issues arising under

Ohios public records laws. The first is the public records status of the eight final autopsy

reports that Respondents the Pike County Coroners Office and Dr. David Kessler have caused to

be prepared, kept, and filed pursuant to their affirmative statutory obligations under Chapter 313

(the Final Autopsy Reports). This issue is resolved by application of R.C. 313.10(A)(1),

which plainly states that such records are public records. R.C. 313.10(B) then provides that

all records in the coroners office that are public records are open to inspection by the

public, and any person may receive a copy of any such record or part of it .

The second issue is whether the R.C. 149.43 exception for confidential law enforcement

investigatory records (CLEIRs) could theoretically be invoked to abrogate a coroners

statutory obligation to prepare, file, and make publicly available a final autopsy report. The

answer to this question is no. R.C. 313.10 makes all records kept or coming within the

possession of a coroner public records, save for six categories of records. Importantly, the

specific public records and exception provisions of R.C. 313.10 trump the general provisions of

R.C. 149.43, and, thus, the exemptions set forth in R.C. 149.43 are not available. The limited

exemptions under R.C. 313.10 include preliminary autopsy reports, but the General Assembly

did not create an exception for final autopsy reports. See R.C. 313.10(A)(2). Nor did the

General Assembly create an exception for all CLEIRs or, alternatively, suggest that a final

autopsy report itself could constitute a CLEIR. Rather, the General Assembly narrowly tailored

an exception for a CLEIR of a deceased individual, which is an exception not applicable here.

We describe the second issue as theoretical because it is premised upon a hypothetical

unsupported by the record. Relators pushed, over Respondents objections, for the deposition of

1
Respondent Kessler so that they could test any factual contentions Respondents may seek to

advance before this Court. In court-access and public-records cases, the phrase sunshine is the

best disinfectant is often cited. It is a phrase equally applicable to discovery. The results of

such discovery are telling:

The Final Autopsy Reports do not contain any CLEIRs provided by law enforcement

officials.

There is no evidence that CLEIRs from any source were considered or reviewed in

preparing the Final Autopsy Reports.

The Final Autopsy Reports were not prepared in conjunction with or consultation of

law enforcement officials.

Except for the initial contact and then transport of the decedents bodies, Respondents

have not communicated with law enforcement officials regarding the autopsies.

Numerous law enforcement officials are involved in investigating what is now a

nearly one-year-old case, but Respondents have not participated in, or otherwise

communicated with such investigators regarding the investigation.

Respondents, themselves, have not conducted an investigation; they simply have

caused independent medical examinations, in the form of autopsies, to be performed.

The Final Autopsy Reports are available to decedents next of kin without any

limitation on their use or public dissemination.

Respondent Kessler testified that at no time did any law enforcement personnel

inform or advise him that that the autopsies contained confidential information or, if

disclosed to the public, would have had any effect on the ongoing murder

investigation.

2
 Given the foregoing, it is perhaps no surprise Respondent Kessler had not undertaken a

review to determine whether the disclosure of the Final Autopsy Reports would reveal any

confidential investigatory information.

Q. And you, yourself, have not undertaken any type of review or analysis to
determine whether or not the contents of the final autopsy reports, if
revealed to the public, would disclose in any way any confidential
investigatory information, have you?

A. No, I havent.

[Exh. A (Deposition Transcript of

Respondent Kessler (Kessler Tr.) at 46).]

Therefore, the third issue for the Courts consideration is, assuming arguendo that a CLEIR

exception for the coroners records existed, as opposed to an exception for those records

otherwise coming into his possession from law enforcement officials regarding the decedent, is

there an evidentiary basis for invoking that exception here? The discovery results make clear

that no such basis exists.

Next, it is clear that Respondents, as the procurers and keepers of the subject records,

have no basis for denying public access to these records. What has happened, in reality, is that

other agencies, such as the Attorney Generals office and the Pike County Sheriffs Office, have

sought to label as confidential the records held by an independent agency. But a law

enforcement agency may not waive a wand, speak an incantation, and then magically transform a

record created and held by another agency into its own. Nor may a law enforcement agency

simply designate a record kept by another public office as a CLEIR merely because that is its

preference or it would be convenient.

Finally, the Court must address Respondents untimely production of the redacted

version of the Final Autopsy Reports. Respondents received the Final Autopsy Reports on July

3
22, 2016. Relators served numerous public records requests over the course of the following

days. On July 26, 2016, Respondent Kessler issued a press release confirming that the reports

had been received by his office but denying all media and public record requests. Some two

months later, on September 23, 2016, Respondents belatedly released a redacted version of the

Final Autopsy Reports. This Court has declared that promptly means without delay and with

reasonable speed. State ex rel. Wadd v. City of Cleveland, 81 Ohio St.3d 50, 53, 689 N.E.2d 25

(1989) (emphasis added). This language is important, because: When records are available for

public inspection and copying is often as important as what records are available. Id. at 52

(italics in original). By any measure, Respondents did not release the requested records

promptly as required under R.C. 149.43(B)(1).

It is no defense that redactions were made. R.C. 149.43(B)(1) provides that [i]f a public

record contains information that is exempt from the duty to permit public inspection or to copy

the public record, the public office or the person responsible for the public record shall make

available all of the information within the public record that is not exempt. See, e.g., State ex.

rel. Anderson v. City of Vermilion, 134 Ohio St.3d 120, 2012-Ohio-5320, 980 N.E.2d 975, 19

(holding city was required to disclose non-exempt portion of records, noting there is no

exception to the explicit duty in R.C. 149.43(B)(1) for public offices to make available all

information that is not exempt after redacting the information that is exempt). Thus, even if

Respondents could redact portions of the Final Autopsy Reports, they were obligated to promptly

do so. They failed.

For these reasons, and those set forth below, the Court should: (a) issue a writ of

mandamus compelling the production of the Final Autopsy Reports; (b) issue a writ to address

Respondents untimely production; and (c) award The Dispatch its attorneys fees.

4
II. STATEMENT OF FACTS

A. The Parties Respondents Are The Keepers Of The Subject Public Records.

Relator GateHouse Media Ohio Holdings II, Inc., is the owner and publisher of The

Columbus Dispatch, a daily newspaper which is circulated throughout central Ohio and

elsewhere. [Exh. J (Zachariah Affd 1).]1 Relator Holly Zachariah is a reporter with The

Columbus Dispatch. Over the course of her 30-year career as a journalist, she has covered rural

Ohio, and her responsibilities have predominately centered on crime reporting. [Id. 2]

Respondent the Pike County Coroners Office is a public office as that term is defined

under R.C. 149.011(A) and is an office created and authorized under Chapter 313 of the Ohio

Revised Code. [Stipulation filed March 14, 2017 (Stip.) 2] Respondent Dr. David Kessler is

a public official as that term is defined under R.C. 149.011(D). [Id. 3] Respondents received

the Final Autopsy Reports no later than July 22, 2016, and have continually kept such reports

with the meaning of Ohio Revised Code Chapter 313 and R.C. 149.43. [Id. 6, 7] Because the

underlying deaths were pronounced in Pike County, Ohio, pursuant to R.C. 313.10(A),

Respondents are responsible for the release of all public records relating to [those] death[s].

[Id. 4; see also R.C. 313.01(B)(1) ( Coroner means the coroner or medical examiner of the

county in which death occurs or the dead human body is found.)] That is, Respondents are the

responsible person/office for all decisions to grant or deny public access to the Final Autopsy

Reports.

Q. And in your capacity as the public official, youre the one responsible for
the maintenance and keeping of what we described as the decedents files?

A. Yeah.

1
All record references herein are to Relators March 14, 2017, evidentiary submission unless otherwise
stated.

5
 Q. And with respect to the final autopsy report reports, excuse me for the
Rhoden family members, you are the public official for the keeping of
those reports?

A. Yes.

Q. And you are the public official responsible for making the decision as to
whether to release or not release those final autopsy reports?

A. Yes.

[Kessler Tr. 28-30 (objections omitted).]

B. The Deaths Of The Rhoden Family Members, And The Press Releases And
Statements Of The Attorney General And Other Public Officials.

On April 22, 2016, Christopher Rhoden, Sr., Christopher Rhoden, Jr., Dana Rhoden,

Clarence Frankie Rhoden, Hanna Rhoden, Hannah Gilley, Kenneth Rhoden, and Gary Rhoden

were all found deceased in their residences in Pike County, Ohio (collectively, the Deceased

Rhoden Family Members). [Stip. 1.] These deaths have been, and continue to be, the subject

of extensive news reporting. [Zachariah Affd Exh. 1 (sampling of news reports) and press

statements (Zachariah Affd Exhs. 2-14 (compilation of Ohio Attorney Generals press

releases).] Reporter Zachariah arrived on the scene literally the day the deaths were discovered

and has maintained an extensive physical presence in Pike Country reporting on the events as

they unfolded. [Zachariah Affd 4-6.]

From the information released from law enforcement officials, including the 911

recordings released by the Attorney General, the public knows that at 7:53 a.m. on April 22,

2016, Pike County Sheriff Charles Reader received a 911 call. [Zachariah Affd 7; id. at Exh.

5.] In that call, a woman named Bobby Jo Manley told a sheriffs office dispatcher that she had

found two people one of them her brother-in-law, both victims with the last name of Rhoden

6
dead inside a home on Pike Countys Union Hill Road. There was, she said, blood everywhere.

She said the bodies had been dragged to a bedroom. [Id. 8.]

But that discovery proved only the beginning. When the first of the county sheriffs

deputies arrived on what locals simply call The Hill, someone flagged them down and said

there was more carnage elsewhere. [Id. 9.] Before the day was done, seven bodies had been

discovered inside three trailers in separate locations on Union Hill Road and another in a fifth-

wheel camper on Left Fork Road, several miles away. The Attorney General reported that the

victims all had been shot in the head, most while sleeping. These were terms that, coupled with

other descriptions, certainly left people with the impression that most victims had been

ambushed while sleeping and shot once, execution-style in the head. [Id. 10 & Exhs. 2-3 (press

releases).] The dead were: Christopher Rhoden Sr., 40 (Bobby Jos brother-in-law); his ex-wife,

Dana Rhoden, 37; their sons, Christopher Rhoden Jr., 16, and Clarence Frankie Rhoden, 20;

their daughter, Hanna Rhoden, 19; Frankies fiance, Hannah Gilley, 20; and Kenneth Rhoden,

44, and Gary Rhoden, 38, a cousin to Chris Sr. and Kenneth. [Id. 11.] Three children a 4-

day-old infant, a 6-month-old, and a 3-year-old had been found bloody but otherwise unharmed

inside the trailers at two of the crime scenes.

When the Pike County Sheriff and Attorney General held two press briefings on April 22,

they had little information to share. The Deceased Rhoden Family Members had been

intentionally targeted but no one knew why. No arrests. No known suspects. No obvious

motive. And the sheriff had a message for the killers: Were coming, were coming. Well

find who did this. [Zachariah Affd 13.] A year later, they have not. [Id. 14.]

Yet the public stays largely in the dark about whether what officials say happened in the

house that night matches the story publicly shared by investigators. [Zachariah Affd 15.]

7
Over that first weekend, one picture of the family emerged. The Rhodens had lived in southern

Ohio for generations. Dana Manley Rhoden was beloved by friends and co-workers, especially

at the nursing home where she had worked a double shift the day she died. Hanna Rhoden was a

new mother. Christopher Jr. was a speak-his-mind teen-ager with a lot of friends. Frankie

Rhoden was described as a family man, working hard to care for his two young sons. They had

their share of scraps with locals seemingly petty fights over someone mouthing off or

sometimes whether anyone was cheating at a demolition derby but nothing, authorities said,

that would seem to bring about the killing of eight people. [Id. 16.]

Two days after the homicides, the story changed. The Attorney General said authorities

had discovered marijuana growing at three of the crime scenes. (That eventually turned out to be

inaccurate; authorities had, in fact, found marijuana growing in three locations at two of the

crime scenes). [Zachariah Affd 17.] Sympathy for the family quickly eroded. It grew worse.

In the coming days and weeks, those descriptions from law enforcement officials would morph

into commercial operation and sophisticated in relation to the marijuana grows. Yet, unlike

in almost any other raid that the Ohio Bureau of Criminal Investigation or local officials publicly

announce, they have continually refused to disclose or provide documents showing the size and

scope of the alleged operation.

The surviving members of the Rhoden family who, by and large, deny any knowledge

of the drugs and none of whom lived on Union Hill Road or even visited there much say that is

unfair, that the marijuana disclosure without any context has caused them pain and

embarrassment, turning them from victims to suspects in the publics eye. It is just one lack of

detail that provides the public little context for whether the drugs were connected to the

homicides. [Zachariah Affd 18, 19.]

8
 The story continued to grow. On April 25, the Attorney General announced that

investigators had found evidence suggesting the Rhoden family might have been breeding

chickens for cockfighting, a charge the survivors deny. [Zachariah Affd 20.]

C. The Hamilton County Coroners Press Release Providing Select Details of

the Deaths A Press Release Contradicting Prior Public Statements.

Then, adding to the intrigue, came a press release from the Hamilton County coroner

regarding the preliminary autopsies performed on the decedents. We note the decision to have

an autopsy performed on a decedent rests solely with Respondent Kessler. [Kessler Tr. 55.]

Autopsies are performed by pathologists, however. Respondent Kessler is not a pathologist and,

thus, Pike County contracted with the Hamilton County Coroners Office to conduct both the

preliminary and final autopsies. [Kessler Tr. at 48-51.]

From this press release, journalists inferred that while law enforcement officials perhaps

had not purposely misled the public with the initial information about the victims wounds, there

certainly was more to the story than initially disclosed. Hamilton County Coroner Dr. Lakshmi

Kode Sammarco wrote in the press release that all the victims sustained fatal gunshot wounds

(GSW) to the body including head, torso and extremities, the first time anyone had mentioned

anything other than head wounds. [Zachariah Affd 21.]

Dr. Sammarco also disclosed that only one victim had been shot once in the head and the

others had each been shot multiple times: One victim (she did not delineate who) was shot nine

times, one was shot twice, two were shot three times, one was shot four times, and two were shot

five times. In addition, she wrote, some had bruises. Different, clearly, than all one-shot-to-the-

head executions. [Zachariah Affd 22.]

9
 D. Another Public Record Delay Obtaining Copies Of Death Certificates.

Only weeks later, on May 26, did the public learn anymore about the victims specific

wounds when The Dispatch, after initially asking for and being denied access, received the

death certificates filed at the Pike County Health Department. Specifically, The Dispatch made

an oral request to inspect the death certificates certificates that R.C. 313.09 compelled

Respondent to complete. The Health Department declined to release the death certificates.

Instead, The Dispatch was advised to submit the request to the Attorney Generals Office. That

request was submitted on May 24, 2016, in writing. [Zachariah Affd 23, Exh. 15.]. No

response was received even though death certificates are public records that a coroner is

obligated to complete in all cases coming under his jurisdiction. [See R.C. 313.09, 313.10]

Having received no response, Reporter Zachariah then physically went to the Pike County Health

Department and again requested access to the death certificates. Yet, another game was played.

Reporter Zachariah was told that she would need to pay more than $20 for each of the eight

certified copies. She responded that she was only requesting an opportunity to inspect the

documents she did not need certified copies. Finally, the prosecutor appeared, and the death

certificates were belatedly released. [Zachariah Affd 23.]

Only then did the public learn who, specifically, suffered what number of wounds and

that Christopher Rhoden Sr. was the one who was shot nine times, Kenneth was shot once.

[Zachariah Affd 24.]

E. Submission Of Multiple Public Records Requests For The Final Autopsy

Reports.

On April 23 and 24, 2016, the Chief Deputy Coroner of Hamilton County conducted

autopsies of the Deceased Rhoden Family Members. [Stip. 5.] Some three months later, on

July 22, 2016, The Dispatch was informed that the Final Autopsy Reports for the Deceased

10
Rhoden Family Members had been filed with the Pike County Coroners Office. [Zachariah

Affd 30.] Reporter Zachariah first made an oral public records request to both Respondents

and to the Attorney Generals office, seeking to inspect the Final Autopsy Reports. [Id. 31.]

Each request was denied. [Id. 32.] Next, on July 22, 2016, Reporter Zachariah submitted a

written public records request to the Attorney General and Respondents requesting the

opportunity to inspect the reports:

The final autopsy reports and coroner reports, including but not limited
to detailed descriptions of the observations written during the progress
of an autopsy and the conclusions drawn from those observations, as
well as the toxicology reports and accompanying materials for the
eight victims of the April 22 Rhoden family killings: Christopher
Rhoden Sr., Christopher Rhoden Jr., Dana Rhoden, Clarence
Frankie Rhoden, Hanna Rhoden, Hannah Gilley, Kenneth Rhoden
and Gary Rhoden.

[Stip. 9, Exh. A.]

On the following Monday, July 25, 2016, Reporter Zachariah again made oral public records

requests for the Final Autopsy Reports and hand-delivered copies of the written request to both

Respondents and the Pike County Prosecutors Office. [Zachariah Affd 34.]

Some 245 days after the initial requests, Respondents still have not released the Final

Autopsy Reports to The Dispatch. [Stip. 12.]

F. The Key Information Elicited From Respondents Admissions And

Omissions.

In denying the public record requests of The Dispatch and other members of the public,

Respondent Kessler stated in a prepared press release that all autopsy results during a homicide

investigation are considered confidential law enforcement investigatory records .

11
[Zachariah Affd 35.] But even if such an exception existed, Respondents admissions and

omissions show just the contrary.2

1. A Coroners Office Is An Independent Public Office Assigned Specific

Statutory Duties; It Is Not A Law Enforcement Agency Or Office.

Under R.C. 313.01, the coroner is an independently elected public office. R.C. 313.06

charges a coroner with the performance of the duties set forth within Chapter 313. One such

duty is to perform or cause to be performed an autopsy in certain instances to independently

determine the cause and manner of death. [See also Kessler Tr. at 56-58 (Respondents

expectation was that the Hamilton County Coroners Office would conduct an independent

investigation and render its independent opinion).] As such, a coroner is not a division or

subdivision of any law enforcement agency. To no surprise, the Attorney General has repeatedly

opined that a county coroner is not a law enforcement official. See 1998 Ohio Atty. Gen. Ops.

No. 98-33, 1996 Ohio Atty. Gen. Ops. No. 96-027; 1980 Ohio Atty. Gen. Ops. No. 80-091.

Instructive on these points is the testimony of Dr. Jan Gorniak former Franklin County

Coroner and the current chief medical examiner in Fulton County, Georgia. [Exh. B (Gorniak

2
This information has been collected notwithstanding Respondents continued efforts to thwart any inquiry.
Respondents first sought to preclude any deposition of Respondent Kessler. This Court fortunately rejected such
efforts. The Courts review of the transcript of the deposition will reveal why Respondents worked so hard to
prevent the deposition in the first instance. Indeed, the Respondents never even determined or otherwise received
any information from law enforcement officials that the contents of the Final Autopsy Reports, if released, would
impact the criminal investigation in any way. [Kessler Tr. 45-46.] Respondents them compounded the
gamesmanship by a series of objections and instructions not to answer throughout Respondent Kesslers deposition.
Respondents further sought to make ex parte submissions behind closed doors by proposing to file in camera the
underlying reports without even providing copies to Respondents counsel. Of course, where in camera review of
documents is permitted, Relators counsel are entitled to participate. See State ex rel. Warren Newspapers, Inc. v.
Hutson, 70 Ohio St.3d 619, 626 640 N.E.2d 174 (1994) (Relator is entitled toan in camera hearing if respondents
still claim specific exemptions.). In fact, courts routinely permit Relators counsel to participate in in camera
reviews and hearings. See State ex rel. Bell v. White, 5th Dist. Morgan No. CA-93-15, 1994 WL 477795 (Aug. 3,
1994), *1 (The trial court conducted an in camera document review in the presence of the attorneys for the Relator
.) (emphasis added); State ex rel Cincinnati Enquirer v. Sage, 142 Ohio St.3d 392, 2015-Ohio-974, 31 N.E.3d
616, 6 (noting the trial court judge in considering the Enquirers public records request in the presence of counsel
listened to the recording in camera and heard arguments from counsel for the Enquirer and another news
organization).

Despite such efforts, there is ample evidence in the record to establish the public record status of the Final
Autopsy Reports and the unavailability of any exceptions.

12
Affd 1-5.] Dr. Gorniak is certified by the American Board of Pathology in anatomic and

forensic pathology; served on the Board of Directors of the Ohio State Coroners Association;

and is a member of the National Association of Medical Examiners, the International Association

of Coroners and Medical Examiners, and the American Academy of Forensic Sciences. [Id.

6-8.]

Dr. Gorniak described in her affidavit the non-law enforcement function of a county

coroners office in preparing an autopsy:

I did not view nor operate a county coroners office as a law enforcement
agency, the coroner actions are not for law enforcement purposes, and I
did not carry out the function of that office for law enforcement purposes.

Rather, for each autopsy I performed, my duty was confined to

determining (a) the cause and (b) manner of death. In reaching these
determinations, I prepared detailed descriptions of the observations written
during the progress of an autopsy and the conclusions from those
observations and included them in what is known as the final autopsy
report. Once I prepared the final autopsy report, my task was completed.
Of course, I would be available to testify, if necessary, as to the final
autopsy report and its contents. But I did so as independent from law
enforcement officials.

[Gorniak Affd 10-11.]

2. Respondents Did Not Conduct An Investigation.

On the date the bodies were discovered, Respondent Kessler, assisted by Dr. Cathy

Farinet and an investigator from the Adams County Coroners Office, made an initial assessment

of the bodies. The assessment was limited to preparing a one-page document per decedent and

those particular documents are not at issue in this case. Respondents then arranged to have the

bodies placed in a refrigerated van for transport to the Hamilton County Coroners Office for the

performance of the autopsies. [Kessler Tr. 11-14, 21-22, 51-53.]

13
 Respondents did not make any further assessment, inquiry, or investigation. Indeed, the

following excerpts from the Attorney Generals press releases outline the investigation

conducted by others:

Agents with the Attorney Generals Bureau of Criminal Investigation (BCI) have been
asked to lead the investigation at the request of Sheriff Reader. More than a dozen agents
from BCIs Special Investigations Unit, Crime Scene Unit, Criminal Intelligence Unit,
and Cyber Crimes Unit have responded to the scene. [4/22/16 release (Exh. 1 to
Zachariah Affd).]

Investigators from the Ohio Bureau of Criminal Investigation (BCI) and local law
enforcement have worked through the night, talking to individuals, gathering
information, and executing search warrants. Evidence from the crime scenes is being
processed and analyzed through the weekend. [4/23/16 release (Id. Exh. 2).]

Sixty-one additional items of evidence have been sent to the Bureau of Criminal
Investigation (BCI) crime laboratory for DNA, ballistics, latent print, and trace analysis.
These items are in addition to the 18 high-priority items submitted for testing previously,
for a total of 79 pieces of evidence. Additional search warrants were served yesterday in
connection with the investigation, however the number of search warrants and locations
are not being released at this time. Since Friday, more than 300 tips have been received
by both BCI and the Pike County Sheriffs Office, all of which are being investigated.
[4/26/16 release (Id. Exh. 7).]

Ohio Bureau of Criminal Investigation (BCI) agents and Pike County Sheriff deputies
worked through the weekend, including Saturday and Sunday, on the murder
investigation. Over the course of this Investigation, more than 100 total items of
evidence have been sent to the BCI crime laboratory for DNA, ballistics, latent print, and
trace analysis. [5/2/16 release (Id. Exh. 9).]

Respondents, however, have not been involved in such investigatory activities. In fact,

Respondents have not even communicated with law enforcement officials regarding, their

investigation. [Kessler Tr. 106]

We add that Respondents did not independently conduct an investigation. R.C. 313.17

empowers a coroner to issue subpoenas and conduct an inquiry under oath as necessary to

inquire how deceased came to his death. But Respondents did not employ any such powers

here, and there is no evidence suggesting the Hamilton County Coroners Office did so, either.

14
Rather, the preparation of the Final Autopsy Reports was confined to determining the cause and

manner of death.

3. Law Enforcement Officials Did Not Participate In Or Otherwise

Contribute To Preparation Of The Final Autopsy Reports.

Given the independence exercised by a coroners office, there is no reason, let alone

evidence, to believe that law enforcement officials had any impact on or involvement with the

preparation of the Final Autopsy Reports. Specifically, there is no evidence to suggest: (a) any

communications whatsoever between law enforcement officials and Respondents and/or the

Hamilton County Coroners officials regarding the autopsies; (b) any reliance by Respondents

and/or the Hamilton County Coroners Office upon any information, confidential or otherwise,

from law enforcement officials; or (c) any reliance upon or consideration of law enforcement

information or records in the preparation of the Final Autopsy Reports. [Kessler Tr. 58-60.]

Respondent Kessler certainly had no such information, and the evidentiary submission offered to

this Court by Respondents did not include any information, such as an affidavit from the

Hamilton County Coroners Office or a law enforcement official suggesting any involvement.

We add that Respondents records are segregated from those kept by law enforcement

officials. All of the records of the Pike County Coroners Office are kept in paper form.

[Kessler Tr. 23.] A separate file is created for each deceased individual, or decedent, whose case

comes within the jurisdiction of the office. [Id. at 22.] For cases in which Respondent Kessler

decides to order an autopsy, each file typically consists of the following types of documents:

An intake form, which has no official title, but which Respondent Kessler
describes as a one-page sheet that he uses to record information on each decedent
that is gathered by himself at the scene and/or provided by others, such as the
Sheriffs Office and emergency medical responders. [Kessler Tr. 20-22.]

A preliminary autopsy report. [Id. at 20.]

15
 A final autopsy report. [Id. at 20.]

Files pertaining the members of the Rhoden family were created and are kept the same way a

separate file was created for each family member. [Kessler Tr. at 28.]

Highlighting the independence of the offices, law enforcement officials are not permitted

access to Respondents stored records without being accompanied by Respondent or his

assistant.

Q. Now, in terms the physical space where the Coroners Office records are
maintained, are there any law enforcement officials housed in that same
area, to your knowledge?

A. No.

Q. And do law enforcement officials have access to any records of the

Coroners Office without being accompanied by either you or the clerk?

A. Are you saying can they get access to it besides me or the clerk?

Q. Yes, sir.

A. Not that Im aware of.

[Kessler Tr. 46.]

4. The Public Office Responsible For The Keeping Of The Final Autopsy
Reports Did Not Conclude That They Are Confidential Investigatory
Records.

Respondent Kessler testified that at no time did any law enforcement personnel inform or

advise him that that the autopsies contained confidential information or, if disclosed to the

public, would have had any effect on the ongoing murder investigation:

Q. And so at no point in time did any law enforcement official communicate

to you that the contents of the final autopsy report, if publicly disclosed,
would impact in any way any ongoing investigation

MS. PIERCE: Objection.

Q. is that correct?

16
 A. Yes.

Q. And at no point in time did any law enforcement official communicate to

you that any of the information contained in the final autopsy reports
would, if disclosed, reveal to the public any confidential investigatory
information

MS. PIERCE: Objection.

Q. is that correct?

A. Yes.

[Kessler Tr. 45-46.]

Respondents themselves, the keepers of the records, also had not undertaken a review to

determine whether the disclosure of the Final Autopsy Reports would reveal any confidential

investigatory information.

Q. And you, yourself, have not undertaken any type of review or analysis to
determine whether or not the contents of the final autopsy reports, if
revealed to the public, would disclose in any way any confidential
investigatory information, have you?

A. No, I havent.

[Id. at 46.]

5. The Final Autopsy Reports Do Not Contain: (a) Documents Exempted

Under R.C. 313.10(A)(2); Or (b) Confidential Law Enforcement
Investigatory Records.

The Final Autopsy Reports contained in Exhibit 1 to Respondent Kesslers deposition

comprise the entirety save for the redactions of the decedents autopsy reports. There were

no additional documents created for purposes of the Final Autopsy Reports. [Kessler Tr. 50-51.]

However, there are different categories of records created, retained or received by a coroners

office. Again, Dr. Gorniaks testimony is instructive:

17
 I am familiar with R.C. 313.10. Section 313.10 addresses a number of
different types of records. Section 313.10(A)(1) addresses the coroners
final filed autopsy report, which again includes the detailed descriptions of
the observations written during the progress of an autopsy and the
conclusions from those observations. This is a record of the coroners
office and always treated as a public record.

Section 313.10(B) addresses other types of records: including preliminary

autopsy and investigative findings; photographs of the decedent, suicide
notes, medical and psychiatric records provided to the coroner, records of
a deceased individual that are confidential law enforcement investigatory
records, laboratory reports generated from the analysis of physical
evidence by the coroners laboratory.

None of these other types of records capture final autopsy report. Rather,
they are separate and distinct types of records which are different from
final autopsy report. Each of these documents is maintained separately
from the final autopsy report as is any confidential information received
from any law enforcement official.

[Gorniak Affd 12-14.]

The Final Autopsy Reports contained no other materials exempted from the Public

Records Act. They contain no photographs of the decedents.3 [Kessler Tr. at 93-95.] The

reports contain no medical or psychiatric records relating to any of the decedents or make any

reference to information contained in any such records even though, pursuant to R.C. 313.091,

a coroner can request a decedents medical and psychiatric records.4 [Id. at 98.] The reports

contain no preliminary notes or findings made by the coroner or anyone acting under his

supervision; indeed, the reports were prepared by the Hamilton County Coroners Office, and the

only such preliminary documents identified by Respondent Kessler are the separate one-page

3
R.C. 313.10(A)(2)(b) 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.
4
Medical and psychiatric records provided to or obtained by a coroners office in connection with the
performance of its duties are not public records subject to R.C. 149.43. See R.C. 313.091. Also, R.C.
313.10(A)(2)(d) provides that [m]edical and psychiatric records provided to a coroners office under Section
313.091 are not public records.

18
intake forms contained in each file.5 [Id. at 20-22.] The reports contain no law enforcement

investigatory records, whether confidential or otherwise, as Respondent Kessler testified that if

his office had received any such documents from law enforcement agencies concerning the

Deceased Rhoden Family Members, the documents would have been included in their files, but

he was unaware of any such documents in their files.6 [Id. at 25, 81-82.] The Final Autopsy

Reports are also believed not to contain laboratory reports within the meaning of R.C.

313.10(A)(2)(f).7 [Id. at 98-100.] Finally, there are obviously no suicide notes in this murder

case.8

6. Final Autopsy Reports Are Released To The Next of Kin With No

Limitations On Dissemination Or Release Of Information; This Is
The Practice Followed By Respondents; And Respondents Released
Non-Public Information To The Next of Kin Of The Deceased Rhoden
Family Members Without Any Limitations And With Instructions
That They Could, At Their Discretion, Publicly Disclose The
Information.

R.C. 313.10(C)(1) provides that [t]he coroner shall provide a copy of the full and

compete records of the coroner with respect to a decedent who makes a written request as the

next of kin of the decedent. In short, upon demand, a coroner is obligated to release not only a

final autopsy report but also all other records to a decedents next of kin. Respondents conceded

this obligation and that a next of kin is entitled to receive a final autopsy report without the

imposition of any confidentiality limitations on the use or dissemination. [Kessler Tr. at 66-68.]

5
R.C. 313.10(A)(2)(a) provides that [p]reliminary autopsy and investigative notes and findings made by the
coroner or anyone acting under the coroners direction or supervision are not public records.
6
R.C. 313.10(A)(2)(e) provides that [r]ecords of a deceased individual that are confidential law
enforcement records as defined in section 149.43 of the Revised Code are not public records.
7
R.C. 313.10(A)(2)(f) provides that [l]aboratory reports generated from the analysis of physical evidence
by the coroners laboratory that is discoverable under Criminal Rule 16 are not public records. While
Respondents redactions obviously impair Relators review, it is not believed that the reports contain such reports.
8
R.C. 313.10(A)(2)(c) provides that [s]uicide notes are not public records.

19
Even though Respondents have refused to release the records to the public, they admitted that if

the next of kin of a Deceased Rhoden Family Member requested a copy of the Final Autopsy

Report, they would release unredacted copies and not make the release or receipt conditioned

upon execution of any form of confidentiality agreement. [Id.]

And, indeed, Respondent Kessler has spoken to the next of kin of the Deceased Rhoden

Family Members regarding the contents of preliminary autopsy reports reports which are not

public records and he did not impose any confidentiality obligation upon them.9 [Kessler Tr.

91-92] Instead, he explained to the next of kin it was their prerogative and discretion as to what

information to publicly disclose. [Id.]

7. Final Autopsy Reports Are Treated As Public Records And Released

To The Public With No Limitations Or Redactions.

Given the express statutory command of R.C. 313.10, it is perhaps no surprise that

coroners deem final autopsy reports public records that are to be issued without delay,

limitations, or redactions, and do so notwithstanding any pending investigation. Dr. Gorniak,

again the former Franklin County Coroner, confirmed this:

As Franklin County Coroner from 2009-2014, our office received

hundreds of public records requests for final autopsy reports.

My office never denied a single public records request for a final autopsy
report during the time I was the Franklin County Coroner. In fact, each
request was fulfilled without redaction since we were obligated to do since
final autopsy reports are public record.

Final autopsy reports were produced pursuant to Section 313.10 of the

Ohio Revised Code irrespective of any pending criminal or law
enforcement investigation.

Even if there was an active law enforcement investigation related to the

decedents death, such an investigation is unrelated to the coroners final
autopsy report for that decedent which becomes a public record

9
The difference between preliminary and final autopsy reports is that the preliminary report does not include
toxicology results. [Kessler Tr. at 82-83.]

20
 immediately following the signing of the final autopsy report by the
coroner.

The public records status of coroner records like final autopsy reports is
extremely important as it provides much needed transparency in
government and, through news reporting agencies, serves to inform the
public about threats to their community and serves as an education
function in helping to bring awareness to serious health and mental health
issues.

[Gorniak Affd 15-19.]

Ted Decker, a print journalist who has covered hundreds of homicides, traffic fatalities,

and unintentional deaths, also confirmed that he regularly secured final, unredacted autopsy

reports from the coroners office for review.

I cannot recall a single instance in which a public records request for this
information has been denied, and I have received autopsy reports on
victims from all walks of life: males and females, minors and adults, high-
profile citizens and still-unidentified John Does. I have also requested and
received final autopsy reports during the pendency of ongoing criminal
investigations without any delay.

[Decker Affd 4.]

In conjunction with this litigation, The Dispatch conducted a survey, via public records

request, soliciting the views of various coroners offices. County coroner after county coroner

confirmed they treated final autopsy reports as public records and did not deny public access to

them. [Zeiger Affd 3 (Auglaize, Carroll, Defiance, Erie, Knox, Lake, Portage, Ross, Shelby,

and Union).] Several coroners responded with affidavits confirming the same: Brown County

[Exh. E], Clinton County [Exh. F], Darke County [Exh. G], Hamilton County [Exh. H], and

Wyandot County [ Exh. I].

The deposition of Respondents confirmed this practice is no different in Pike County.

Other than with respect to the Final Autopsy Reports, Respondent Kessler could think of no

other instance in which the Coroners Office has even kept redacted copies of final autopsy

21
reports. [Kessler Tr. at 117-18.] The Pike County Coroners Office has no written policy

prohibiting the release of final autopsy reports or allowing their withholding given the pendency

of any investigation. [Id.] When presented with a public records request, the offices practice is

to routinely release final autopsy reports without redactions and until now it has never denied a

request. [Id. 68-69.]

G. Respondents Belated Release Of Redacted Copies Of The Final Autopsy

Reports But Respondents Did Not Make The Redactions.

Relators filed this action on August 8, 2016. On September 23, 2016, Respondents

belatedly released heavily redacted copies of the Final Autopsy Reports. [Zachariah Affd 47;

see also Stip. 11.] Respondent Kessler did not make the redactions or even confer with any

law enforcement officials regarding the redactions. [Kessler Tr. at 37]

Q. Did you at any point in time speak to any law enforcement officials as
to any recommendations you might have as to redactions in the final
autopsy reports?

A. No.

Q. Did you have communications at any point in time with law enforcement
officials as to any recommendations they might have as to redactions in
the final autopsy reports?

A. Not directly, no.

Q. And when you say not directly, we can agree that you didnt have any
communications with law enforcement officials regarding the redactions
found in the final autopsy reports; is that correct?

* * *
Q. We can agree that you did not have any communications with law
enforcement officials regarding the redactions found in the final autopsy
reports?

A. Yes.

[Kessler Tr. at 43-45 (objections omitted).]

22
Rather, he was merely presented with a copy of the redactions from legal counsel. [Id. at 38.]

Of course, the unredacted excerpts that were belatedly produced proved only to represent

more game-playing. Again, Respondents stated that they refused to produce the Final Autopsy

Reports because of supposedly confidential investigatory information. As explained below, that

is not a basis for withholding the records. But the unredacted excerpts reveal Respondents

withholding of basic information that could have not been, under any possible theory, described

as confidential. For example, the redacted report for Christopher Rhoden, Jr., reveals the

following type of information Respondents had refused to release in response to the multiple

public record requests:

The diagnosis: Multiple gunshot wounds to the head.

The cause of death: It is my opinion based on the autopsy findings and the
information available to me at the time of the autopsy that the cause of death is
multiple gunshots to the head.

The description of where, when and by whom the autopsy was performed.

The history: The decedent is a 16-year old male who was found deceased in his
home with multiple gunshot wounds.

The results of the external examination revealing such unremarkable facts as: (a)
[t]he body is that of a normally developed, well-nourished young adult male who
is 165 pounds, 70-inches in height, and appears appropriate for the stated age;
(b) a description of the hair color; (c) a description of whether there is facial hair;
and (c) examination results of the mouth, chest, and spine.

The results of the internal examination, including observations on the lungs,

spleen, liver and gall bladder, and the like.

[Kessler Dep. Exh. 1, 001-008] The same types or categories of information were found in the

other redacted reports.

23
 Respondents refused to offer any explanation as to how information withheld in July (but

released in September) could have conceivably affected any investigation. When asked

specifically, Respondents were instructed by counsel not to answer. [Kessler Tr. at 73-74]10

H. Compelling Public Interests For Full Access.

Respondents continued refusal to produce the Final Autopsy Reports not only violates

R.C. 313.10, it serves to unfairly stymie the newsgathering process. To date, various theories

have emerged regarding the killings. There is a widely held theory across the region that, at best,

law enforcement had voluntarily looked the other way at the Rhodens drug operation, and thus

they no choice but to conduct an exhaustive investigation to avoid somehow looking complicit.

Another theory is that a law enforcement officer was somehow involved in the killings

themselves, which Relators believe to be unfounded, but a conclusion nonetheless that locals

have drawn from what officials say is an apparently remarkable lack of evidence uncovered at

the crime scenes. [Zachariah Affd 38.]

When authorities withhold information that clearly is public, it only fuels that conspiracy

fire. And if the locals are focused only on officials perceived incompetence or on law

enforcement as potential suspects, they could well be ignoring obvious evidence or tips that are

right in front of them. [Zachariah Affd 39.]

One of the essential elements of newsgathering is to ensure that what the public is being

told is true. Numerous cases exist many written about in The Columbus Dispatch in which

investigators got it wrong. A journalists job is to verify what public officials are communicating

to the public. Unfortunately, Respondents have unlawfully prevented the media from doing so.

[Zachariah Affd 40.]

10
Such objections were the rule, not the exception, in Respondent Kesslers deposition. Over the course of
120 pages, Respondents counsel said objection no less than 173 times.

24
III. ARGUMENT AND PROPOSITIONS OF LAW

PROPOSITION OF LAW NO. 1: R.C. 313.10 Expressly Provides That Final

Autopsy Reports Are Public Records.

A. The Courts Application Of The Plain Language Of R.C. 313.10 Is

Dispositive The Writ Should Be Granted.

The analysis here begins and ends with the plain language of R.C. 313.10, which

expressly states that the records of the coroner, including final autopsy reports, are public

records:

Except as otherwise provided in this section, the records of the coroner

including, but not limited to, the detailed descriptions of the observations
written during the progress of an autopsy and the conclusions drawn from
those observations filed in the office of the coroner under division (A) of
section 313.13 of the Revised Code, made personally by the coroner or by
anyone acting under the coroners direction or supervision, are public
records. Those records, or transcripts or photostatic copies of them,
certified by the coroner shall be received as evidence in any criminal or
civil action or proceeding in a court in this state, as to the facts contained
in those records. The coroner of the county where the death was
pronounced shall be responsible for the release of all public records
relating to that death.

[R.C. 313.10(A)(1) (emphasis added).]

To apply the statute, the Court need look no further than the first basic rule of statutory

construction: When construing a statute, we first examine its plain language and apply the

statute as written when the meaning is clear and unambiguous. The words used must be

afforded their usual, normal, and/or customary meanings. Medcorp, Inc. v. Dept of Job &

Family Services, 121 Ohio St.3d 622, 2009-Ohio-2058, 906 N.E. 1125, 9 (emphasis added).

If the language of a statute is plain and unambiguous and conveys a clear and definite meaning

there is no occasion for resorting to rules of statutory interpretation, because an unambiguous

statute is to be applied, not interpreted. Jacobson v. Kafoury, --- Ohio St.3d ---, 2016-Ohio-

25
8434, --- N.E.3d ---, 8 (citing Sears v. Weimer, 143 Ohio St. 312, 55 N.E.2d 413 (1944),

paragraph five of the syllabus.

Moreover, this Court has declared: We do not have the authority to dig deeper than

the plain meaning of an unambiguous statute under the guise of either statutory interpretation or

liberal construction. Id. (citing Morgan v. Ohio Adult Parole Auth., 68 Ohio St.3d 344, 347,

626 N.E.2d 939 (1994). If we were to brazenly ignore the unambiguous language of a statute,

or if we found a statute to be ambiguous only after delving deeply into the history and

background of the laws enactment, we would invade the role of the legislature: to write the

laws. Id. In this plain-meaning application, the Court remain[s] careful, however, not to pick

out one sentence and disassociate it from the context. We instead focus on everything within

the four corners of the enactment in order to determine the intent of the enacting body. Id.

9 (citing Black-Clawson Co. v. Evatt, 139 Ohio St. 100, 104, 38 N.E.2d 403 (1941). Accord:

Silver Lake v. Metro Regl Transit Auth., 111 Ohio St.3d 324, 2006-Ohio-5790, 856 N.E. 2d 236

17 ([s]tatutory interpretation involves an examination of the words used by the legislature in a

statute, and when the General Assembly has plainly and unambiguously conveyed its legislative

intent, there is nothing for a court to interpret or construe, and therefore, the court applies the law

as written); Hubbard v. Canton City Sch. Bd. Of Educ., 97 Ohio St.3d 451, 2002-Ohio-6718,

780 N.E.2d 543, 13 (courts give words in a statute their plain and ordinary meaning unless

legislative intent indicates a different meaning).

The Courts plain-meaning application shows that R.C. 313.10 does not state that records

of the coroner may or might be public records. It expressly states that they are public

records unless stated otherwise in R.C. 313.10. And, of course, Section 313.10(B) provides that

26
all records in the coroners office that are public records are open to inspection by the

public, and any person may receive a copy of any such record or part of it .

B. The Legislative History And This Courts Prior Rulings Confirm The Public
Record Status Of A Final Autopsy Report.

The foregoing analysis is confirmed by a review of the legislative history of R.C. 313.10

and this Courts construction of a subsequently modified version of the statute. The statutory

language of R.C. 313.10 in 1984 read: The records of the coroner, made personally by the

coroner or by anyone acting under the coroners direction or supervision, are public records.

Records, or transcripts, or photostatic copies of them, certified by the coroner, shall be received

as evidence in any criminal or civil court in this state, as to the facts contained in those records.

See State v. Fluellen, 8th Dist. Cuyahoga No. 78532, 2002-Ohio-3262, 17 (quoting prior

language).

In State ex rel. Dayton Newspapers, Inc. v. Rauch, 12 Ohio St.3d 100, 465 N.E.2d 458

(1984), the Court interpreted the interplay between Section 313.09 and the 1984 version of

Section 313.10. There, this Court held that an autopsy report in a homicide case was not a public

record based on its conclusion that R.C. 313.09 treats the autopsy report as an item separate

from the other information the coroner is required to keep as a public record under R.C.

313.10. Id. at 101.

The General Assembly then changed the law, however. Effective August 17, 2006, the

General Assembly enacted H.B. 235 and amended R.C. 313.10(A)(1) to explicitly add that the

public records kept by a coroners office include the detailed descriptions of the observations

written during the progress of an autopsy and the conclusions drawn from those observations

filed in the office of the coroner. (Emphasis added.) Since then, every case that has applied the

amended language of R.C. 313.10 has held that final autopsy reports are public records. See

27
State v. Craig, 110 Ohio St.3d 306, 2006-Ohio-4571, 853 N.E.2d 621, 80 (holding certified

final autopsy report is a public record kept by a coroner under Section 313.10); State v. Maxwell,

139 Ohio St.3d, 2014-Ohio-1019, 9 N.E.3d 930, 57 (holding autopsy report is created for the

primary purpose of documenting cause of death for public records and records and public

health) (emphasis added); State v. Mitchell, 7th Dist. Columbiana No. 05CO63, 2008-Ohio-

1525, 101-02 (holding autopsy report is a public record) (citing Craig). Most recently, in

Dunning v. Vernau, S.D.Ohio No. 1:14cv932, 2015 WL 5729332 (Sept. 30, 2015), the court

observed that an autopsy report is automatically a public record under R.C. 313.10. Id. at *6

(emphasis added).

C. The Statute Spells Out Certain Narrow Exceptions To The General Rule
That A Coroners Records Are Public Records, But A Final Autopsy Report
Is Not One Of The Exceptions.

There is no exception available to Respondents. The General Assembly has expressly

stated that final autopsy records are public records and made no allowance for any exceptions

even though in the same statute it enumerated specific exceptions for other records. Chapter 313

contemplates that a coroner may keep or come into possession of several categories of records,

some created by the coroner and others created or provided by other sources including law

enforcement agencies. The General Assembly elected to create limited exceptions for several of

those categories of records kept by or coming within the possession of the coroner. Thus, in

R.C. 313.10(A)(1), it included the prefatory language [e]xcept as otherwise provided in this

section to the general statutory rule that the records of the coroner are public records.

(Emphasis added.) Then, in R.C. 313.10(A)(2), the General Assembly identified the six types of

records that, although they may be kept in a coroners office, are not public records.

Subsection (2) reads:

28
 (2) Except as otherwise provided in division (D) or (E) of this section, the
following records in a coroners office are not public records:

(a) Preliminary autopsy and investigative notes and findings made by the
coroner or by anyone acting under the coroners direction or supervision;

(b) Photographs of a decedent made by the coroner or by anyone acting

under the coroner's direction or supervision;

(c) Suicide notes;

(d) Medical and psychiatric records provided to the coroner, a deputy

coroner, or a representative of the coroner or a deputy coroner under
section 313.091 of the Revised Code;

(e) Records of a deceased individual that are confidential law

enforcement investigatory records as defined in section 149.43 of the
Revised Code;

(f) Laboratory reports generated from the analysis of physical evidence

by the coroners laboratory that is discoverable under Criminal Rule 16.11

[Emphasis added.]

11
We note that R.C. 313.10(A)(2) refers what may be described as exceptions to the exceptions contained
in Subsections (D) and (E), which allow documents that are not public records to be disclosed on a limited basis.

Section 313.10(D) allows a journalist to inspect, although not obtain copies of, preliminary autopsy and
investigative notes and findings, suicide notes, or photographs of the decedent made by the coroner of anyone acting
under the coroners supervision or discretion.

Section 313.10(E) provides that insurers, for purposes enumerated in Subsection (E)(3), may request and
receive records kept by a coroner that might include documents that are not public records under R.C.
313.10(A)(2). It does so by providing that insurers may receive disclosures of the full and complete records of the
coroner, a term defined in Section 313.10(G)(1)(f) as including items deemed not public records under R.C.
313.10(A)(2).

The Section 313.10(G)(1)(f) definition of full and complete records, in turn, also applies to Section
313.10(C)(1), which provides that [t]he coroner shall provide a copy of the full and complete records of the coroner
with respect to a decedent to a person who makes a written request as the next of kin of the decedent, and Section
313.10(C)(2), which provides that the full and complete records may be provided to a representative of the estate
if there is no next of kin.

Thus, the only exceptions to Section 313.10s command that the coroners records are public records
provide that: (i) journalists may inspect although not receive copies of certain documents listed in Section
313.10(A)(2), and (ii) three classes of persons next of kin, estate representatives, and insurers may request and
receive records kept by a coroner that might include documents that are not public records under R.C.
313.10(A)(2). None of these exceptions are relevant here because Relators are not seeking anything but the final
autopsy reports, which are public records.

29
 This Court has previously reaffirm[ed] that the General Assembly is the ultimate arbiter

of policy considerations relevant to public-records laws, and it is for the legislature to weigh[ ]

and balance[ ] the competing public policy considerations between the publics right to know

how its state agencies make decisions and the potential harm, inconvenience or burden imposed

on the agency by disclosure. Kish v. City of Akron, 109 Ohio St.3d 162, 2006-Ohio-1244, 846

N.E.2d 811, 44 (citing State ex rel. Cincinnati Enquirer v. Dupuis, 98 Ohio St.3d 126, 2002-

Ohio-7041, 781 N.E.2d 163, 21). The same is no less true here. In prescribing specific

exceptions, the General Assembly has already balanced the competing public concerns in

determining in what narrow categories of coroner records are exempt from production.

While the General Assembly prescribed an exception for a preliminary autopsy report,

no such exception was made for a final autopsy report. Although a plain-meaning review

compels the conclusion that there is no exception for a final autopsy report, another rule of

statutory construction makes this even more clear: Expressio unius est exclusio alterius is an

interpretative maxim meaning that if certain things are specified in a law, contract, or will, other

things are impliedly excluded. State ex rel. Paluf v. Feneli, 69 Ohio St.3d 138, 143, 630 N.E.2d

708 (1994). See, e.g., Talman v. Quick Air Freight, Inc., 8th Dist. Cuyahoga No. 68879, 1995

WL 584728 (Oct. 5, 1995), *2 (holding statute that allows costs of a deposition of a physician to

be charged to the Bureau of Workers Compensation but makes no mention of other deposition

costs demonstrates the intent of the statute is that other deposition costs are excluded). Because

final autopsy reports are excluded from the list of documents defined as not public records in

Section 313.10(A)(2), they are public records under Section 313.10(A)(1). If the General

Assembly had intended to create such an exception, it could have readily provided one just as it

did for preliminary autopsy reports. It did not.

30
 D. R.C. 313.10(A)(2)(e) Provides Respondents No Defense.

Nevertheless, Respondents have attempted to rewrite R.C. 313.10 to include an exception

that figuratively swallows the rule. At the outset, Respondents do not (at least do not appear to)

contend that the exceptions set forth in R.C. 149.43, including for confidential law enforcement

investigatory records (CLEIRs), apply directly. Nor could they. [W]here a statute couched in

general terms conflicts with a specific statute on the same subject, the latter must control. State

v. Taylor, 113 Ohio St.3d 297, 207-Ohio-1950, 865 N.E.2d 37, 12. This rule carries even more

force where a specific statute [is] enacted later in time than a preexisting general statute.

Summerville v. City of Forest Park, 128 Ohio St.3d 221, 2010-Ohio-6280, 943 N.E.2d 522, 26.

The language at issue here is contained in a statute specific to coroners records and was enacted

with the substantial revisions to Section 313.10 in 2006 and 2008. Its enactment long post-dated

the enactment of the exception for CLEIRs contained in R.C. 149.43, which is a general statute

concerning public records kept by a multitude of public offices. Thus, the public record status of

a final autopsy report, again, starts and stops with R.C. 313.10.

As such, Respondents have resorted to arguing that R.C. 313.10(A)(2)(e) exempts

[r]ecords of a deceased individual that are confidential law enforcement investigatory records

as defined in R.C. 149.43 of the Revised Code. (Emphasis added.) According to them, any

final autopsy report involving a murder case is a CLEIR and is somehow a record of deceased

individual, thus falling within the exception.12

12
It is long settled that access to public records is to liberally construed in favor of access and any exceptions
narrowly construed. See, e.g., State ex rel. Carr v. Akron, 112 Ohio St.3d 351, 2006-Ohio-6714, 30 (Insofar as
Akron asserts that some of the requested records fall within certain exceptions to disclosure under R.C. 149.43, we
strictly construe exceptions against the public-records custodian, and the custodian has the burden to establish the
applicability of an exception. ). The public office has the burden of establishing that an exemption applies and
does not meet that burden if it has not proven that the requested records fall squarely within the exemption. See
State ex rel. Rocker v. Guernsey County Sheriffs Office, 126 Ohio St.3d 224, 2010-Ohio-3288, 7.

31
 Application of the plain-meaning rule, however, is rule is fatal to Respondents position,

as its requires the Court to recognize the distinction between records of the coroner, which are

public records under R.C. 313.10(A)(1), and records of a deceased individual under R.C.

313.10(A)(2) that may constitute CLEIR under R.C. 149.43. This is a distinction with meaning,

both practically and legally. So lets be clear: A Final Autopsy Report is a record of the

coroner. It is a record promulgated pursuant to the coroners statutory obligation. It is a record

that the General Assembly has declared is self-authenticating for judicial proceedings. It is a

record that this Court has even described as being prepared in the course of regularly conducted

business. State v. Craig, 110 Ohio St.3d 306, 2006-Ohio-4571, 853 N.E.2d 621, held that an

autopsy report is admissible in court as a public self-authenticating record under R.C. 313.10 and

also admissible under the business record exception of Evidence Rule 803(6), because such

records or statements are not testimonial in nature because they are prepared in the ordinary

course of regularly conducted business. Id. 80, 82. As the Court has also noted, the primary

purpose of an autopsy report is to document[ ] cause of death for public records and public

health, not to establish criminal liability. State v. Maxwell, 139 Ohio St.3d, 2014-Ohio-1019, 9

N.E.3d 930, 55-57.

To be sure, a coroners office may come into possession of various records of a

deceased individual for an assortment of records. The evidence submitted to this Court,

including that from the affidavit of Dr. Gorniak, makes this clear. Such records may be, at times,

CLEIRs. Law enforcement officials could have unilaterally provided such information to

Respondents. Similarly, Respondents could have solicited such information from law

enforcement officials. But such records do not somehow transform a duly executed and finalized

final autopsy report into a record of the decedent.

32
 Yet, even if the Court were to consider the question of whether a final autopsy report

incorporating or relying upon CLEIRs was exempt under R.C. 313.10(A)(2)(e), it would be

merely a hypothetical. Respondent Kesslers testimony establishes that the Final Autopsy

Reports do not contain such information. He did not receive CLEIRs from any law enforcement

agency there is no evidence that the Hamilton County coroner did. He did not participate in

the investigation there is no evidence that the Hamilton County coroner did. To the contrary,

the Final Autopsy Reports are merely the product of an independent medical examination to

document the cause of death for public records and public health.

Accordingly, Respondents violated R.C. 313.10 in failing to release the Final Autopsy

Reports.13

PROPOSITION OF LAW NO. 2: The Final Autopsy Reports Are Not

Confidential Law Enforcement Investigatory Records Within The Meaning Of
Chapters 149 and 313.

A. A County Coroner Is Not A Law Enforcement Officer, As Defined By Ohio

Law.

With neither Respondents nor the Hamilton County coroner having received or relied

upon CLEIRs, Respondents also cannot be heard to argue that an autopsy itself is a CLEIR

especially on the record submitted to this Court. First, a coroner is not a law enforcement

officer. The Revised Code makes this clear, and the Attorney Generals Office has issued

multiple opinions saying so. See 1998 Ohio Atty. Gen. Ops. No. 98-33, 1996 Ohio Atty. Gen.

Ops. No. 96-027; 1980 Ohio Atty. Gen. Ops. No. 80-091. In the most recent opinion, the

Attorney Generals Office was presented with the question: Are the county coroner and his

13
Shortly before the filing of this Brief, Relators became aware of the decision filed by the Fourth District
Court of Appeals on March 17, 2017, in the matter styled State of Ohio, ex rel. The Cincinnati Enquirer v. Pike
County General Health District, et al., Case No. 16CA873, addressing preliminary autopsy reports. That decision
confirms that a coroners records are public records, with the exception of the types of documents enumerated in
R.C. 313.10(A)(2). Other aspects of that decision are addressed herein.

33
deputies law enforcement officers? and the answer was: neither a county coroner nor deputy

coroner is a [l]aw enforcement officer. 1998 Ohio Atty. Gen. Ops. No. 98-33, at 1, 5. The

1998 opinion relied upon and updated the earlier opinions that reached the same conclusion:

In determining that county coroners and deputy coroners are not law
enforcement officers for purposes of the Revised Code, 1996 Op. Atty
Gen. No. 96-027 examined R.C. 2901.01(K), now R.C. 2901.01(A)(11),
and concluded that the definition of [l]aw enforcement officer set forth
therein for use throughout the Revised Code does not include county
coroners and deputy coroners. See also 1980 Op. Atty Gen. No. 80-091
at 2-356 (in carrying out his duties of determining cause, mode, and
manner of death, a coroner is not a law enforcement officer for purposes
of R.C. 2901.01(K)). In this regard, the opinion stated:

The county coroner, deputy coroners, and the

director of the county emergency management agency are
not specifically listed in R.C. 2901.01(K). In addition,
none of these officials is imposed, by statute, with a duty to
conserve the peace or to enforce all or certain laws and the
authority to arrest violators. Finally, neither the county
coroner, deputy coroners, nor the director of the county
emergency management agency is sworn to enforce the
criminal and traffic laws of the state. Accordingly, I find
that the county coroner, deputy coroners, and the director
of the county emergency management agency are not, as a
general matter, law enforcement officers or other persons
sworn to enforce the criminal and traffic laws of the state.

1996 Op. Atty Gen. No. 96-027 at 2-100; see 1980 Op. Atty Gen. No.
80-091 at 2-356 and 2-357.

Since the issuance of 1996 Op. Atty Gen. No. 96-027,

amendments to R.C. 2901.01 have not included a county coroner or
deputy coroner within the definition of law enforcement officer set forth
therein, or changed the duties and authority an individual must discharge
and possess in order to come within that definition.

[1998 Ohio Atty. Gen. Ops. No. 98-33, at 2.]

Nothing has changed since 1998. The statutory definition of law enforcement officer

set forth in R.C. 2901.01(A)(11)(a) (m) lists a host of public officers and officials who are

deemed to be law enforcement officers, and the list has not been amended to include coroners

34
and deputy coroners. Thus, this Courts decision in State ex rel. Strothers v. Wertheim, 80 Ohio

St.3d 155, 684 N.E.2d 1239 (1997), remains instructive. There this Court held that a record

created by a county executives public ombudsman office was not a CLEIR because [t]he

Ombudsman Office is not a law enforcement agency, and it has no legally mandated

enforcement or investigatory authority. Id. at 158. As the above-cited Attorney Generals

opinions confirm, coroners are also not statutorily mandated to enforce the laws of this state.

B. Even If A CLEIR Exception Were Available For Conduct Undertaken By A

Coroner In Preparing A Final Autopsy Report, It Does Not Apply Here,
Because Respondents Were Not Involved In The Investigation Conducted By
Law Enforcement Officials, Nor Did They Conduct Their Own Investigation.

Even if a CLEIR exception existed, it would be unavailable here. The record is clear

that, although the Attorney General and various law enforcement agencies have conducted an

extensive investigation, Respondents are not participants in this process. They do not participate.

They do not communicate with the law enforcement personnel regarding the process. Simply

put, they are not involved. [See Section II.F.2, above.]

Nor did Respondents conduct their own investigation even though such powers exist.

Certain provisions of Chapter 313 allow a coroner to appoint an investigator, and other

provisions allow a coroner to serve subpoenas to seek testimony of witnesses as necessary to

inquire into the cause of a death. See R.C. 313.05 (providing coroner may appoint investigators,

including law enforcement officers to act as investigators); R.C. 313.17 (coroner may issue

subpoenas for such witnesses as are necessary, administer to such witnesses the usual oath, and

proceed to inquire how the deceased came to his death, whether by violence to self or from any

other persons, by whom, whether as principals or accessories before or after the fact, and all

circumstances relating thereto.).

35
 Respondent Kessler did not undertake any such investigative role in this case. He served

no subpoenas, questioned no witnesses, conducted no investigation, and made no findings

concerning who was involved in the homicides. [See Section II.F.2, above.] Rather, in this case,

Respondent Kessler simply discharged the basic duties of a coroner: He and/or a deputy or a

coroners official from another county conducted an initial examination of the bodies,

Respondent Kessler had the bodies transported to the Hamilton County Coroners Office for

autopsies, he received reviewed the final autopsy reports, and he made no changes or additions.

[See Section II.F.2, above.]

C. Public Officials May Not Exert Control Over The Records Kept By Another
Public Office, Regardless Of Their Reasons; Officials May Not Withhold, Or
Delay In Releasing, Records On The Basis That They May Be Able To
Articulate Public Policy Reasons That Conflict With The Law Mandating
The Release Of The Records.

Finally, other governmental agencies, such as the Attorney Generals office or the Pike

Sheriffs office, may not hijack Respondents Final Autopsy Reports as their own. The record is

clear that Respondent Kessler: (a) had not determined that the reports contained confidential

information; (b) had not been advised by law enforcement officials that the reports contained

such information; and (c) had no action or involvement in deciding that portions of the Final

Autopsy Reports would be redacted before disclosure to the public or which portions would or

would not be redacted.

Rather, those positions are being taken by others outside the Pike County Coroners

Office, apparently upon orders of unnamed law enforcement officials from other local and/or

state agencies, and it was then dictated to Respondent Kessler what portions of the offices

records would be publicly released and what would not. [See Section II.G, above.] It is

36
inappropriate indeed, highly unusual for one agency to take control over the public records of

another agency that is charged with the duty of keeping and releasing public records.

Let there be no mistake: It is Respondents statutory duty to create final autopsy reports;

it is their duty to keep such records; and it is their duty to respond appropriate to public records

requests for such records. R.C. 313.10(A)(1) specifically provides: [t]he coroner of the county

where the death was pronounced shall be responsible for the release of all public records relating

to that death. See, e.g., State ex rel. Mothers Against Drunk Drivers v. Gosser, 20 Ohio St.3d

30, 485 N.E.2d 706 (1985) (When statutes impose a duty on a particular official to oversee

records, that official is the person responsible under R.C. 149.43(B) for releasing public

records in response to a request).

Even if we assume that the persons who exerted control over records Respondent Kessler

is responsible for have valid policy reasons for wanting to shield information from public view

while a criminal investigation is ongoing, their actions are inappropriate. Public officials cannot

circumvent the Public Records Act merely because they have unilaterally determined, as a matter

of policy, that information should be withheld. As this Court has confirmed time and again:

Although there may be good policy reasons to exempt [certain information

from public disclosure], these policy considerations cannot override R.C.
149.43, because the General Assembly is the ultimate arbiter of public
policy. Respondents cannot withhold public records simply because they
disagree with the policies behind the law permitting the release of these
records.

[State ex rel. WBNS TV, Inc. v. Dues, 101 Ohio

St.3d 406, 2004-Ohio-1497, 805 N.E.2d 1116, 37
(2004) (citations omitted; emphasis added).]

There is no such thing as law enforcement prerogative that allows law enforcement

officials to unilaterally declare the records of another agency as CLEIRs at their convenience or

preference.

37
 PROPOSITION OF LAW NO. 3: Respondents Failed To Release The Requested
Records Within A Reasonable Time As Required By The Public Records Act.

The Public Records Act plainly provides that the public office shall produce public

records promptly to the requesters, and, if copies are requested, they must be furnished within

a reasonable period of time.

Upon request , all public records responsive to the request shall be

promptly prepared and made available for inspection to any person at all
reasonable times during regular business hours. [U]pon request, a
public office or person responsible for public records shall make copies of
the requested public record available at cost and within a reasonable
period of time.

[R.C. 149.43(B)(1).]

This Court has declared that promptly means without delay and with reasonable

speed. State ex rel. Wadd v. City of Cleveland, 81 Ohio St.3d 50, 53, 689 N.E.2d 25 (1989)

(emphasis added). This language is important, because: When records are available for public

inspection and copying is often as important as what records are available. Id. at 52 (italics in

original).

Here, Respondents did not release the requested records promptly. Respondents

received the Final Autopsy Reports on July 22, 2016. [Stip. 6.] On that day, The Dispatch

initially made an oral public records request for the reports, which was denied. [Stip. 8.] Also

on that day, The Dispatch e-mailed a public records request pursuant to R.C. 149.43 and R.C.

313.10. [Stip. 9.] Four days later, on July 26, 2016, Respondent Kessler issued a press release

confirming that the reports had been received by his office but denying all media and public

record requests, including that of The Dispatch. [Stip. 10.] It was not until nearly two months

later, on September 23, 2016, that Respondents released redacted copies of the Final Autopsy

Reports. [Stip. 11.]

38
 Even if we assume Respondents release of the redacted Final Autopsy Reports satisfied

their obligations (which it did not), Respondents cannot show that the two-month time period

taken to release them was reasonable. In State ex rel. Consumer News Services, Inc. v.

Worthington City Bd. of Educ., 97 Ohio St.3d 58, 2002-Ohio-5311, 776 N.E.2d 82, for example,

this Court found that the respondents six-day delay in providing responsive records that were

readily identifiable and available to the respondent was neither prompt nor reasonable. Id. 54.

In State ex rel. DiFranco v. City of S. Euclid, 138 Ohio St.3d 367, 2014-Ohio-538, 7 N.E.3d

1136, similar to this case, the agency failed for two months to respond to the request, and the

Court held that, [I]t follows that the absence of any response over a two-month period

constitutes a violation of the obligation in accordance with division (B) to respond within a

reasonable period of time per R.C. 149.43(B)(7). The delay also violates the mandate of R.C.

149.43(B)(1) that the records be promptly prepared and made available. Id. 21. Accord:

State ex rel. Wadd, 81 Ohio St.3d at 53 (holding delays of thirteen to twenty-four days to provide

access to accident reports were neither prompt nor reasonable); State ex rel. Warren Newspapers,

Inc. v. Hutson, 70 Ohio St.3d 619, 624, 640 N.E.2d 174 (1994) (holding that although a request

that included all incident reports and traffic tickets written in 1992 was admittedly broad,

respondents four-month day in releasing records was neither prompt nor reasonable); State ex

rel. Mun. Constr. Equip. Operators Labor Council v. City of Cleveland, 8th Dist. Cuyahoga No.

95277, 2011 WL 242890, 2011-Ohio-117 (Jan. 7, 2011), *2 (court held twenty-seven-day delay

in releasing two emergency response plans and two items of correspondence was unreasonable).

We further note that even though Respondents take the position that parts of the Final

Autopsy Reports are properly subject to redaction, Respondents were obligated to promptly

produce the unredacted information. Instead, Respondents produced nothing for two months.

39
They finally produced the redacted documents after that two-month period and, even then, only

after Respondents were forced to file this action. R.C. 149.43(B)(1) provides that [i]f a public

record contains information that is exempt from the duty to permit public inspection or to copy

the public record, the public office or the person responsible for the public record shall make

available all of the information within the public record that is not exempt. See, e.g., State ex.

rel. Anderson v. City of Vermilion, 134 Ohio St.3d 120, 2012-Ohio-5320, 980 N.E.2d 975, 19

(holding city was required to disclose non-exempt portion of records, noting there is no

exception to the explicit duty in R.C. 149.43(B)(1) for public offices to make available all

information that is not exempt after redacting the information that is exempt).

PROPOSITION OF LAW NO. 4: Relators Are Entitled To An Award Of Court

Costs And Attorneys Fees.

Multiple grounds compel an award of attorneys fees. The Court should award attorneys

fees to Relators for either or both of the following reasons:

First, Respondents failed to timely produce public records and a writ should issue.

Specifically, Respondents failed to comply with R.C. 149.43(B) by failing to produce unredacted

Final Autopsy Reports within a reasonable time after the request was made and unreasonably

delaying the production of even the unredacted portions that Respondents concede are public

records. A fee award is thus merited under R.C. 149.43(C)(3)(b) (allowing attorney-fee award

[i]f the court renders a judgment that orders the public office or the person responsible for the

public record to comply with division (B) of this section.).

Second, the Court should determine that Respondents acted in bad faith when they

made the redacted public records available for the first time after the [Relators] commenced the

mandamus action but before the court issued any order, two months after the request was made.

R.C. 149.43(C)(3)(b)(iii). Respondents do not dispute that the redacted portions are public

40
records, yet he failed to offer any reasonable basis for their clear circumvention of the Public

Records Act by delaying for two months their release of the unredacted copies.

IV. CONCLUSION

For these reasons, the Court should (a) issue a writ of mandamus compelling the

production of the requested public records; (b) issue a writ to address Respondents untimely

production; and (c) award The Dispatch its attorneys fees.

Respectfully submitted,

/s/ Marion H. Little, Jr.

John W. Zeiger (0010707)
Marion H. Little, Jr. (0042679)
Matthew S. Zeiger (0075117)
ZEIGER, TIGGES & LITTLE, LLP
3500 Huntington Center
41 South High Street
Columbus, Ohio 43215
Tel.: 614-365-9900 | Fax: 614-365-7900
zeiger@litohio.com
little@litohio.com
zeigerm@litohio.com

Counsel for Relators GateHouse Media

Ohio Holdings II, Inc. d/b/a The Columbus
Dispatch and Holly R. Zachariah

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 CERTIFICATE OF SERVICE

The undersigned hereby certifies that a copy of the foregoing has been served this 24th

day of March 2017, via e-mail upon the following counsel of record:

SARAH E. PIERCE ROBERT JUNK (0056250)

RYAN L. RICHARDSON
Assistant Attorneys General
Constitutional Offices Section
30 East Broad Street, 16th Floor
Columbus, Ohio 43215
sarah.pierce@ohioattorneygeneral.gov
ryan.richardson@ohioattorneygeneral.gov
Counsel for Respondent
Pike County Coroners Office and
David Kessler, MD
Prosecuting Attorney
Pike County Prosecutors Office
Pike County Court House
100 East Second Street, Suite 100
Waverly, Ohio 45690
rob.junk@pikecounty.oh.gov
Counsel for Respondent
Pike County Coroners Office and
David Kessler, MD

/s/ Marion H. Little, Jr.

Marion H. Little, Jr. (0042679)

1115-001:657797

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