State ex rel. Miller v. Pinkney (Slip Opinion)

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
ex rel. Miller v. Pinkney, Slip Opinion No. 2017-Ohio-1335.]
NOTICE
This slip opinion is subject to formal revision before it is published in an
advance sheet of the Ohio Official Reports. Readers are requested to
promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
South Front Street, Columbus, Ohio 43215, of any typographical or other
formal errors in the opinion, in order that corrections may be made before
the opinion is published.
SLIP OPINION NO. 2017-OHIO-1335
THE STATE EX REL. MILLER v. PINKNEY, SHERIFF, ET AL.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as State ex rel. Miller v. Pinkney, Slip Opinion No.
2017-Ohio-1335.]
Mandamus—Public Records Act—R.C. 149.43—Routine incident reports are
public records—Writ granted in part and denied in part.
(No. 2015-0612—Submitted February 7, 2017—Decided April 12, 2017.)
IN MANDAMUS.
_____________________
Per Curiam.
{¶ 1} Relator, Mark W. Miller, filed this original action in mandamus
against the Cuyahoga County sheriff. Frank Bova held that office at the time this
litigation commenced, and therefore all prior rulings in this case were issued under
the caption State ex rel. Miller v. Bova. Clifford Pinkney currently serves as
Cuyahoga County sheriff and has been automatically substituted as respondent in
place of Bova. Civ.R. 25(D)(1). The mandamus action seeks to compel the
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production of the following records pursuant to R.C. 149.43, Ohio’s Public Records
Act:
all offense or incident reports in the possession, custody or control
of the Cuyahoga County Sheriff’s Office in which Edward
FitzGerald was identified in any of the following capacities: (i)
reportee; (ii) complainant; or (iii) victim.
Respondent Judy Blatnik, the public records manager for the sheriff, denied the
request, asserting the records were security records pursuant to R.C.
149.433(A)(3)(a)—recodified in 2016 as R.C. 149.433(A)(1), 2016 Sub.S.B. No.
321.
{¶ 2} This court sua sponte ordered the respondents to
submit under seal each offense and incident report in the possession
of the sheriff’s office that is responsive to relator Mark Mi1ler’s
request so that the court may review the records in camera to
determine which reports may be released and which reports satisfy
the definition of a “security record” in R.C. 149.433.
State ex rel. Miller v. Bova, 147 Ohio St. 3d 1456, 2016-Ohio-8121, 64 N.E.3d
1001.
{¶ 3} Incident reports “initiate criminal investigations but are not part of the
investigation.” State ex rel. Beacon Journal Publishing Co. v. Maurer, 91 Ohio
St.3d 54, 56, 741 N.E.2d 511 (2001). Routine offense and incident reports are
public records and are “normally subject to immediate release upon request.” State
ex rel. Lanham v. Smith, 112 Ohio St. 3d 527, 2007-Ohio-609, 861 N.E.2d 530,
¶ 13. In contrast, a security record is “[a]ny record that contains information
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directly used for protecting or maintaining the security of a public office against
attack, interference, or sabotage.” R.C. 149.433(A)(1). A security record is not a
public record and “is not subject to mandatory release or disclosure” pursuant to
the Public Records Act. R.C. 149.433(B)(1).
{¶ 4} Upon examination of the records delivered to this court pursuant to
our order, we have determined that among the records are incident reports dated
May 1, 2012; June 1, 2012; September 26, 2012; March 18, 2013; October 1, 2013;
April 24, 2014; May 14, 2014; August 2, 2014; and August 27, 2014—all of which
are attached to this opinion as an appendix—they are not security records and are
subject to release with the redaction of exempt information. We therefore grant the
writ in part and deny it in part, and we award costs and reasonable attorney fees
which will be determined upon review of Miller’s filing of an itemized application.
Writ granted in part
and denied in part.
O’CONNOR, C.J., and O’DONNELL, KENNEDY, FRENCH, O’NEILL, FISCHER,
and DEWINE, JJ., concur.
_________________
The Law Firm of Curt C. Hartman and Curt C. Hartman; Koehler Fitzgerald,
L.L.C., and Daniel P. Carter; and Finney Law Firm, L.L.C., and Christopher P.
Finney, for relator.
Robert J. Triozzi, Cuyahoga County Law Director, and Robin M. Wilson,
Assistant Law Director, for respondents.
_________________
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