The STATE ex rel. THE CINCINNATI ENQUIRER, DIVISION OF GANNETT SATELLITE INFORMATION NETWORK, INC. v. WINKLER et al., 151 Ohio App. 3d 10

Doan, Presiding Judge. {¶ 1} The relator, The Cincinnati Enquirer, has filed this original action for a writ of mandamus to compel the respondents, Hamilton County Municipal Court Judge Ralph E. Winkler and Clerk of Courts James C. Cissell, to make available for inspection and copying the record of the court proceedings in State v. Roach, case No. B-0103023.

Judge Winkler, who had earlier granted Roach’s application under R.C. 2953.52 to have the record sealed, denied the Enquirer’s request under the Ohio Public Records Act to examine the record. {¶ 2} In Enquirer 1, we held that R.C. 2953.52 was, as written, facially unconstitutional because of its overly broad restriction on the public’s right of access to court records, thus violating the First Amendment’s proscription that the government shall pass no law abridging the freedom of the press.

We held that, unless narrowly tailored, the statute violated the public’s right of access to court proceedings guaranteed not only by the First Amendment, but also by Sections 11 and 16,

Article I of the Ohio Constitution (the Ohio “Open Courts” Amendment). {¶ 3} Rather than striking down the statute, however, we concluded that R.C. 2953.52 was amenable to a saving construction that would protect the public’s right of access as well as the government’s needs and Roach’s privacy interests. Our construction required that the trial court weigh all three factors and consider, particularly in a case of public importance such as this, whether Roach’s articulated privacy interests were sufficient to overcome the public’s presumptive right of access to court proceedings and records.

Because of the new construction we had given the statute, we ordered Judge Winkler to submit new findings. {¶ 4} Judge Winkler has submitted his findings and detailed at great length his thought process in again granting Officer Roach’s application to have the record of the trial sealed. Having reviewed Judge Winkler’s findings, we are convinced that he has given careful thought to the public ramifications of this case, but that he still feels strongly that Officer Roach’s privacy interests prevail over the public’s limited right of access.

As this court has previously held, R.C. 2953.52 vests in the trial court the discretion either to grant or to deny an application to seal the record. State v. Grove (1986), 29 Ohio App.3d 318, 29 OBR 418, 505 N.E.2d 297. This being so, we cannot order the trial court to act simply because we may disagree with its judgment. Rather, in order to compel disclosure, we must, at the very least, be convinced that the trial court acted unreasonably, arbitrarily, or unconscionably. State ex rel. Duncan v. Chippewa Twp. Trustees (1995), 73 Ohio St.3d 728, 654 N.E.2d 1254.

Judge Winkler’s findings cannot be said to amount to an abuse of discretion. Accordingly, we hold that the record was properly sealed under R.C. 2953.52, and that it is therefore excluded from the Ohio Public Records Act under R.C. 149.43(A)(1)(v). That subsection specifically exempts from the definition of a “public record” those “[rjecords the release of which is prohibited by state or federal law.” {¶ 5} Accordingly, we decline to issue a writ of mandamus. Writ denied. SUNDERMANN, J. Concurs. Gorman, J., dissents. .

Pursuant to R.C. 2721.12(A), the relator served a copy of the complaint on the Attorney General, who has neither entered an appearance nor moved for leave to intervene. . 149 Ohio App.3d 350, 2002-Ohio-4803, 777 N.E.2d 320, 31 Media L.Rep. 1021.