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State3/5/1991
avit establishes that the lieutenant searched the investigatory records of the sheriff's department and that the "department does not have any records whatsoever relating to the death of Gary Andrew Buchwald or the criminal investigation of Joseph P. Martinelli."
To respond properly to a motion for summary judgment, the non-moving party must set forth specific facts which are based on personal knowledge and would be admissible in evidence. Civ.R. 56(E). Tomlinson v. Cincinnati (1983), 4 Ohio St.3d 66, 4 OBR 155, 446 N.E.2d 454. A court may not consider inadmissible statements, such as hearsay or speculation, which are inserted into an opposing affidavit If the opposing affidavits, disregarding the inadmissible statements, do not create a genuine issue of material fact, then the court may grant summary judgment, if the moving party is otherwise entitled to judgment. Pond v. Carey Corp. (1986), 34 Ohio App.3d 109, 517 N.E.2d 928; Penwell v. Taft Broadcasting Co. (1984), 13 Ohio App.3d 382, 13 OBR 466, 469 N.E.2d 1025.
In the present case Martinelli does not rebut Lt. Garner's affidavit that the sheriff's department has no investigatory records relating to the murder trial or the death of Buchwald. Martinelli speculates that the trial court may have ordered investigations after trial, but such speculations do not allege specific facts based on personal knowledge. Thus, Martinelli has not carried his burden as to investigatory records.
However, he does state specific facts as to other records relating to the underlying murder trial. The sheriff's department arrested Martinelli after his bond pending appeal had been revoked, and the department transferred him to the penitentiary in June 1983.
Records of arresting Martinelli after his bond had been revoked or transferring him to prison would not qualify as confidential law enforcement records. State, ex rel. Outlet Communications, Inc., v. Lancaster Police Dept. (1988), 38 Ohio St.3d 324, 528 N.E.2d 175, established that general arrest records are not exempt from disclosure.
Accordingly, the writ of mandamus is granted as to Sheriff McFaul as to any arrest records, transfer records or other records which so relate to the underlying murder trial.
The parties made various motions for extensions of time to respond to various motions. The court examined all filings submitted; thus, these motions are denied as moot. Martinelli moved to compel for discovery, and the county defendants moved for a protective order. These motions are also denied as moot.
In conclusion, the city of Cleveland motion's to dismiss is granted, and Martinelli's motion to consolidate this action with case No. 56461 is denied. The county defendants' motion for summary judgment is granted as to Judge Daniel O. Corrigan and the county coroner. The sheriff's motion for sum-
mary judgment is granted in part only as to investigatory records relating to the trial and the death of Buchwald; the sheriff established that he had no such records. Martinelli's writ of mandamus is granted as to the sheriff's records relating to any arrests of Martinelli or other such records relating to the trial. The sheriff shall allow Martinelli or his duly authorized representative to inspect those records or send him copies once the fee is paid. All other motions, including the county defendants' first motion to dismiss, are denied as moot.
Judgment accordingly.
DYKE and ANN MCMANAMON, JJ., concur.
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