In State v. Vanzandt, 2015 Ohio 236, the Ohio Supreme Court reversed the Ohio First District Court of Appeals and remanded the case back to the trial court with instructions to vacate its judgment. In reversing the First District, who had affirmed the trial court’s granting of the State’s motion to unseal the records from the sealed/expunged case to be used as evidence in a criminal prosecution, the Ohio Supreme Court held that courts do not possess discretion to create additional exceptions permitting access to sealed records for purposes other than those listed in R.C. 2953.53(D).

R.C. 2953.53 entitled “Order to seal records – index” provides in pertinent part,

D)…A public office or agency also may maintain an index of sealed official records…access to which may not be afforded to any person other than the person who has custody of the sealed official records… The sealed official records…shall not be available to any person, except that the official records of a case that have been sealed may be made available to the following persons for the following purposes:

(1) To the person who is the subject of the records upon written application, and to any other person named in the application, for any purpose;

(2) To a law enforcement officer who was involved in the case, for use in the officer’s defense of a civil action arising out of the officer’s involvement in that case;

(3) To a prosecuting attorney or the prosecuting attorney’s assistants to determine a defendant’s eligibility to enter a pre-trial diversion program established pursuant to section 2935.36 of the Revised Code;

(4) To a prosecuting attorney or the prosecuting attorney’s assistants to determine a defendant’s eligibility to enter a pre-trial diversion program… under division (E)(2)(b) of section 4301.69 of the Revised Code.

In Vanzandt, the trial court had granted the applicant’s motion to expunge/seal the records of drug trafficking charges after he had been found not guilty. However, three (3) days after the expungement/sealing was granted, the State charged the applicant with retaliation against the State’s informant in the drug trafficking case in which he had been acquitted, and then moved the trial court to unseal the records of the expunged/sealed drug trafficking case to be used as evidence. The trial court granted the State’s motion and the defendant appealed.

The First District affirmed the trial court noting that despite the specific R.C. 2953.53(D) exceptions, the trial court’s determination whether to exercise its discretion to unseal records should be guided by the same standard the Ohio Supreme Court set forth in Pepper Pike v. Jane Doe, 66 Ohio St.2d 374 (1981), which allowed the trial court to exercise its extrastatutory discretion to seal records in unusual and exceptional cases, after weighing the applicant’s interests in sealing the records against the government’s interest in maintaining the records.

However, the Ohio Supreme Court held that Doe was inapplicable, because Doe involved a request to seal criminal case records resulting from an acquittal or dismissal and which at the time, no statutory provision existed.

The Ohio Supreme Court further held the R.C. 2953.32 statutory language at issue was unambiguous and that sealed official records may not be made accessible for purposes other than those provided in R.C. 2953.53(D).

If you or someone you care about has any questions regarding Criminal Justice System expungement/sealing eligibility, please contact Attorney Michael C. Hennenberg to schedule a consultation.