Justices say prosecutor can’t shield 911 call from Ohio newspaper

Editor's Note: The Ohio Coalition for Open Government filed an amicus brief in support of the Enquirer's lawsuit. From The Columbus Dispatch

A recording of a 911 dispatcher’s outgoing call is a public record, the Ohio Supreme Court said yesterday in a ruling that criticized a prosecutor for trying to keep a newspaper from hearing it.The court’s 6-1 decision came in the case of a southwestern Ohio dispatcher’s return call in 2012 to a man who then confessed to fatally stabbing his stepfather.The ruling was a victory for The Cincinnati Enquirer, which sued Butler County Prosecutor Michael Gmoser over his contention that the call was a confidential investigatory record. Gmoser also argued the recording’s release could affect defendant Michael Ray’s right to a fair trial.

Justice Judith L. French, writing for the majority, said Gmoser failed to show that releasing the record would violate the U.S. Constitution or state law.

French said there’s no evidence the dispatcher returned the call and asked questions to prepare for a criminal proceeding. As a result, the recording could not become evidence just because it moved from the dispatcher’s office “to the prosecutor’s file,” French said.

French also said The Enquirer should be awarded attorneys’ fees and ordered a lower-court hearing to determine the amount.

Not only did Gmoser not have authority to withhold the call, he made things worse by asking a judge for a protective order keeping the call from being made public.

That action forced the newspaper into “a two-front war” as it sought the recording while defending itself against the protective order, French said.

“These tactics do not demonstrate good faith by the prosecutor’s office,” the justice wrote.

Justice Paul Pfeifer, who has argued in the past for limits on releases of 911 calls, said the recording was part of the prosecutor’s evidence and shouldn’t be made public.

Ray, 20, is serving a 15-year sentence for murder, according to prison records.