While I agree with the result reached by the majority opinion, I write separately to discuss my concern over the conclusion voiced by the majority that the Ohio Supreme Court supported our observation in Watkins I1 that R.C. 149.43 "was not designed to provide a nonparty or the public, prior to the commencement of trial, access to records which may not be disclosed to a criminal defendant until the actual trial." This jurist's reading of Watkins II2 finds that the court very emphatically limited its holding to noncriminal parties and denied application of Crim.R. 16 on that basis. It hinted, as is pointed out by the majority, that some harmonization of the statute and the rule might be possible, but stated that it was not necessary in that case.
In that same opinion, the Ohio Supreme Court reaffirmed its decision in State ex rel. Clark v. Toledo (1990), 54 Ohio St.3d 55, 560 N.E.2d 1313. That decision, which involved a criminal defendant seeking discovery for postconviction relief, would seem to be more applicable to criminal defendants awaiting their appeal than would Watkins II. In Clark, the criminal defendant was found to be a person under R.C. 149.43 and thus entitled to the same disclosure as any other member of the public or press. *Page 814
This court followed Clark and its pronouncement that R.C.149.43 conferred a substantive right and as such that right cannot be abridged by Crim.R. 16. State v. Amato (June 30, 1992), Lake App. No. 91-L-092, unreported, 1992 WL 192327.
Amato, Watkins I and II and Clark are not in conflict on the basic issue that R.C. 149.43 supersedes Crim.R. 16 in each of the fact situations set out in the respective cases.
Although in Watkins II, the Ohio Supreme Court claimed it did not harmonize Crim.R. 16 with R.C. 149.43, I believe it did by its expansive interpretation of the exceptions delineated in R.C. 149.43. To all intents and purposes, the exceptions in the statute are now inclusive of the rule. The Supreme Court's analysis of the appellate court's in camera examination of the documents and files at issue in Watkins I and II confirmed this posture.
The relief sought in this action can be properly denied by relying on the analysis of the majority which does not depend on a discussion of R.C. 149.43 and Crim.R. 16's proper applicability. If it were dependent on that latter discussion, I would be constrained to dissent on the basis that per WatkinsII, the newly defined exceptions to R.C. 149.43 would give relator a right to the disclosure she now seeks. As it is, I concur in judgment only with this concurring opinion.
1 State ex rel. Vindicator Printing Co. v. Watkins (Dec. 31, 1991), Trumbull App. No. 91-T-4555, unreported, 1991 WL 280007.
2 State ex rel. Vindicator Printing Co. v. Watkins (1993),66 Ohio St.3d 129, 609 N.E.2d 551. *Page 815