State ex rel. Caster v. Columbus (Slip Opinion)

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
ex rel. Caster v. Columbus, Slip Opinion No. 2016-Ohio-8394.]
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. 2016-OHIO-8394
THE STATE EX REL. CASTER v. THE CITY OF COLUMBUS ET AL.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as State ex rel. Caster v. Columbus, Slip Opinion No.
2016-Ohio-8394.]
Mandamus—Public Records Act—R.C. 149.43—Writ of mandamus sought to
obtain records of investigation leading to conviction of criminal
defendant—R.C. 149.43(A)(1)(h)—Confidential-law-enforcement-
investigatory-records exception to disclosure—Specific-investigatory-
work-product exception of R.C. 149.43(A)(2)(c) does not extend beyond the
completion of the trial for which the information was gathered—State ex
rel. Steckman v. Jackson and State ex rel. WLWT-TV5 v. Leis overruled to
extent they held that specific-investigatory-work-product exception
continues until “all proceedings” have been fully completed—Writ granted
and request for attorney fees, statutory damages, and court costs granted.
(No. 2014-1621—Submitted April 20, 2016—Decided December 28, 2016.)
IN MANDAMUS.
SUPREME COURT OF OHIO
_________________
PFEIFER, J.
{¶ 1} This public-records case involves an attempt by an independent entity
to obtain certain law-enforcement records concerning a convicted criminal
defendant whose direct appeals ended more than four years prior to the making of
the request for public records. We hold that the exception from the required
disclosure of public records set forth in R.C. 149.43(A)(2)(c) for specific
investigatory work product does not extend beyond the completion of the trial of
the underlying criminal case at issue. We grant the request for a writ of mandamus,
and we order other relief as stated below.
FACTUAL AND PROCEDURAL BACKGROUND
{¶ 2} Relator, Donald Caster, is an Ohio attorney engaged by the Ohio
Innocence Project (“OIP”), an organization whose mission is to identify,
investigate, and litigate cases in which persons may have been wrongfully
convicted of serious crimes. Respondent Kimberley Jacobs is Chief of the Division
of Police (“DOP”) of respondent the city of Columbus. Caster asserts that
respondents have refused to provide copies of certain requested records.
{¶ 3} As part of an independent investigation into the 2007 murder
conviction of Adam Saleh, Caster requested the police records related to the arrest
and investigation of Saleh. In response, DOP made a blanket rejection of this
request, citing State ex rel. Steckman v. Jackson, 70 Ohio St. 3d 420, 639 N.E.2d 83
(1994), which held that “information assembled by law enforcement officials with
a probable or pending criminal proceeding is, by the work product exception found
in R.C. 149.43(A)(2)(c), excepted from required release as said information is
compiled in anticipation of litigation.” Id. at 435. DOP stated that no records would
be produced until the “completion” of Saleh’s criminal case, even though all
appeals had been exhausted.
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{¶ 4} The facts underlying the records request are as follows. In 2007,
Saleh was convicted of the murder, kidnapping, and attempted rape of Julie
Popovich and tampering with evidence; he was sentenced to 38 years to life in
prison. The Tenth District Court of Appeals affirmed the convictions. This court
declined jurisdiction in July 2009. State v. Saleh, 122 Ohio St. 3d 1457, 2009-Ohio-
3131, 908 N.E.2d 946. No proceedings are currently pending regarding the
convictions in any court, nor were they between September 2013 and the present.
{¶ 5} OIP is engaged in an independent investigation into Saleh’s
convictions to determine whether he was wrongly convicted. Neither Caster nor
OIP currently represents Saleh or any member of his family as a client. OIP cannot
and does not intervene in every case it reviews; rather, it intervenes in a small
percentage of those cases, and its efforts have led to the exoneration of defendants
in a number of cases. OIP requests public records in some cases to determine
whether a defendant is a candidate for its intervention and in some cases to
determine whether other defendants may be viable alternate suspects in cases in
which an inmate appears to have been wrongfully convicted. OIP will determine
whether to enter into an attorney-client relationship with Saleh only after
determining whether there is evidence indicating that Saleh was wrongfully
convicted.
{¶ 6} In a letter dated September 5, 2013, OIP law-student fellows, at
Caster’s direction, made a public-records request of DOP for “a copy of any police
records related to the arrest and subsequent investigation” of Saleh for the crimes
involving Popovich, including “medical records, police reports, investigation notes,
evidence reports, and any other materials compiled by the Columbus Division of
Police.”
{¶ 7} DOP responded with a letter dated September 9, 2013, rejecting the
request. Citing R.C. 149.43(A)(1)(h), which excepts from disclosure under the
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Public Records Act (“PRA”) “confidential law enforcement investigatory records”
(sometimes called “CLEIRs”), the letter stated:
CLEIRS Exception: A Public Office may withhold any
records that pertain to a Law Enforcement matter of criminal, quasi-
criminal, civil, or administrative nature and that, if released, would
create a high probability of disclosing any of the following types of
information: 1.) Identity of an uncharged suspect, 2.) Identity of a
confidential source, 3.) Investigatory techniques or procedures, 4.)
Investigatory work product or 5.) Information that would endanger
the life or physical safety of Law Enforcement personnel, a crime
victim, a witness, or a confidential source. * * * State ex rel.
Steckman v. Jackson, 70 Ohio St. 3d 420[.]
In accordance with this section, the Columbus Division of
Police, in co-operation with the Franklin County Prosecutor’s
Office, will supply copies of records from this case, upon
completion of the criminal case. * * * Your current request for
public record(s) has been closed and cleared in our files. Please feel
free to re-file your request after the criminal investigation and all
appeals have been exhausted.
(Boldface sic.)
{¶ 8} In October 2013, Caster directed the law students to resubmit the
public-records request, and they did so. DOP responded the same day with a letter
virtually identical to the one sent in September. Again, DOP provided no records
in response to the request.
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{¶ 9} In November 2013, Caster himself submitted a records request to
DOP by certified mail, explaining that there were no proceedings ongoing in
Saleh’s case. DOP did not respond, nor did it provide copies of any records.
{¶ 10} Caster filed this original action in mandamus in September 2014, and
in October of that year, DOP provided him copies of some records included in the
investigative file, specifically the missing-person-preliminary-investigation forms,
the Franklin County Coroner’s report, newspaper articles, a press release, and
subpoenas. DOP continues to assert that other requested records are excepted from
disclosure under R.C. 149.43(A)(1) and (2)(a) through (d) and under the holdings
of Steckman and its progeny.
{¶ 11} Respondents have filed the affidavit of Jonathan Schirg, the
supervisor of DOP’s public-records unit, who states that he has reviewed DOP’s
records on the Popovich homicide investigation. He asserts that the file contains
confidential law-enforcement investigatory records (including confidential
investigatory techniques, procedures, and specific investigatory work product) and
“the personal notes, working papers, memoranda, evidentiary findings, and similar
materials compiled by the law enforcement investigators in anticipation of criminal
proceedings.” According to Schirg, the file also includes FBI records and identifies
witnesses and confidential sources, the release of which could endanger their lives
or physical safety.
{¶ 12} Caster has filed two supporting affidavits. One is from Randy
Ludlow, a reporter for the Columbus Dispatch, who attaches to his affidavit a
newspaper article he wrote in March 2010 regarding a change in DOP’s
interpretation of Ohio’s public-records laws. Under the newly implemented policy,
DOP would no longer release any police investigatory documents while murderers
remain in prison. Previously, the article related, investigators, journalists, and
relatives of both the victims and the convicted person were permitted—after the
convicted person had exhausted appeals—to obtain case records.
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{¶ 13} The second affidavit filed by Caster is from Martin Yant, who
describes himself as a private investigator. He states that “[a]t least five individuals
[he has] assisted were exonerated, and their convictions were reversed, as a direct
result of [his] ability to obtain criminal case files held by law enforcement agencies
and/or prosecutors through public records requests” under R.C. 149.43.
LAW AND ANALYSIS
Mandamus
{¶ 14} “Mandamus is the appropriate remedy to compel compliance with
R.C. 149.43, Ohio’s Public Records Act.” State ex rel. Physicians Commt. for
Responsible Medicine v. Ohio State Univ. Bd. of Trustees, 108 Ohio St. 3d 288,
2006-Ohio-903, 843 N.E.2d 174, ¶ 6; R.C. 149.43(C)(1).
{¶ 15} Although the PRA is accorded liberal construction in favor of access
to public records, “the relator must still establish entitlement to the requested
extraordinary relief by clear and convincing evidence.” State ex rel. McCaffrey v.
Mahoning Cty. Prosecutor’s Office, 133 Ohio St. 3d 139, 2012-Ohio-4246, 976
N.E.2d 877, ¶ 16. In addition, unlike in other mandamus cases, “[r]elators in
public-records cases need not establish the lack of an adequate remedy in the
ordinary course of law.” State ex rel. Data Trace Information Servs., L.L.C. v.
Cuyahoga Cty. Fiscal Officer, 131 Ohio St. 3d 255, 2012-Ohio-753, 963 N.E.2d
1288, ¶ 25.
{¶ 16} Therefore, Caster has correctly filed an original action in mandamus
to challenge DOP’s refusal to produce documents that he asserts are public records.
Specific Investigatory Work Product
{¶ 17} OPD claims that the records Caster seeks are excepted from
mandatory disclosure under R.C. 149.43(A)(1)(h) as confidential law-enforcement
investigatory records. R.C. 149.43(A)(2) defines that term:
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“Confidential law enforcement investigatory record” means
any record that pertains to a law enforcement matter of a criminal,
quasi-criminal, civil, or administrative nature, but only to the extent
that the release of the record would create a high probability of
disclosure of any of the following:
(a) The identity of a suspect who has not been charged with
the offense to which the record pertains, or of an information source
or witness to whom confidentiality has been reasonably promised;
(b) Information provided by an information source or
witness to whom confidentiality has been reasonably promised,
which information would reasonably tend to disclose the source’s or
witness’s identity;
(c) Specific confidential investigatory techniques or
procedures or specific investigatory work product;
(d) Information that would endanger the life or physical
safety of law enforcement personnel, a crime victim, a witness, or a
confidential information source.
{¶ 18} Citing this court’s decision in Steckman, DOP refused to provide
copies of the records Caster sought until “completion of the criminal case,” inviting
Caster to refile his request “after the criminal investigation and all appeals have
been exhausted.” The facts of this case raise the issue that DOP’s response letters
did not attempt to answer: How long must a convicted defendant or a member of
the public wait?
{¶ 19} We deal in this case primarily with records excepted from disclosure
pursuant to the specific-investigatory-work-product exception in R.C.
149.43(A)(2)(c), which, pursuant to this court’s decision in Steckman, provides a
broad exclusion from the reach of the PRA; it includes “information assembled by
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law enforcement officials in connection with a probable or pending criminal
proceeding.” Steckman, 70 Ohio St. 3d at 435, 639 N.E.2d 83. In Steckman, this
court held that records excepted from disclosure pursuant to R.C. 149.43(A)(2)(c)
remain unavailable to a defendant in a criminal case who has exhausted the direct
appeals of his or her conviction and seeks to employ R.C. 149.43 to pursue
postconviction relief. Id. at 437. In State ex rel. WLWT-TV5 v. Leis, 77 Ohio St. 3d
357, 360, 673 N.E.2d 1365 (1997), a case in which a television station sought
investigatory work product following the convictions of two individuals, this court
held that there can be no disclosure of such material “until all proceedings are fully
completed.”
{¶ 20} Caster cites Perry v. Onunwor, 8th Dist. Cuyahoga No. 78398, 2000
WL 1871753 (Dec. 7, 2000), as a case that demonstrates the practical aspects of the
denial of access to records until “all proceedings” are complete. In Perry, a public-
records mandamus action, the relator sought police records, investigative reports,
witness statements, evidentiary reports, and scientific reports in relation to a
criminal case in which the defendant had been convicted a number of years before.
Id. at *2. The court held that “the confidential law enforcement investigatory
records remain exempt from disclosure” as long as “the possibility of further
proceedings and trials remain.” Id. at *3. The court listed the numerous possible
further proceedings that might occur even after a defendant’s direct appeal is
complete—“a postconviction relief petition, a motion to withdraw guilty plea, a
motion for new trial based on newly discovered evidence, a new trial from a
reversal on a successful application to reopen pursuant to App.R. 26(B), and federal
habeas corpus proceedings.” Id. These potentialities, actions not in process nor
necessarily intended to be pursued by the defendant in that case, prevented the
release of the records sought. The court in Perry set forth the cold but logical
conclusion: “[A]bsent proof that no further proceedings are possible, e.g., the
defendant’s death perhaps, a custodian of confidential law enforcement
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investigatory records is under no duty to disclose them.” Id. That is, a defendant
or member of the public can access potentially exonerating material concerning a
defendant only after the defendant is dead. How did we get to this point?
Steckman
{¶ 21} In Steckman, this court sought to bring order to a system of criminal
discovery it considered broken. The court took the “opportunity to meet head-on
the continuing and ever-increasing problem of the use (and attempted use) of R.C.
149.43 (public records law) as a vehicle to obtain records from law enforcement
officials and the contents of the files of prosecutors in pending criminal cases.”
Steckman, 70 Ohio St. 3d at 421, 639 N.E.2d 83.
{¶ 22} The court noted that criminal defendants were seeking records
through public-records requests that they could not procure through Crim.R. 16
discovery as the rule existed at that time. Id. at 428. This led to difficulty in the
lower courts, as both appellate and trial courts faced, “almost daily, demands of
criminal defendants for production of records.” Id. at 421. This court consolidated
three cases in order to address the wide-ranging problems and to “bring some order
out of the confusion.” Id. at 422.
{¶ 23} The nature of former Crim.R. 16 was the source of many of the
problems. This court recognized that “the rule does not provide for what is often
called ‘full,’ ‘complete’ or ‘open file’ discovery.” (Emphasis sic.) Id. at 428. This
led those seeking information to search for different means: “In order to avoid the
results of Crim.R. 16, some defendants (more and more we find) are resorting to
the use of R.C. 149.43 to, we believe, obtain information to which they are not
entitled under Crim.R. 16 and (and we emphasize) to bring about interminable
delay in their criminal prosecutions.” (Emphasis sic.) Id. This court noted that
most death-penalty cases “routinely” included a public-records request that would
add up to two years to the final determination of those cases. Id. There were other
concerns:
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The playing field is not level as there is no reciprocal right of
prosecutors to obtain additional discovery beyond Crim.R. 16(C).
Witness intimidation is now more real than imagined. Criminal
trials are now regularly being disrupted while R.C. 149.43
procedures are pursued. It would seem that the people also have a
right to a speedy trial—a speedy trial of an indicted defendant. Trial
courts, courts of appeals and this court are consuming tremendous
time and resources to review, in some cases, boxes and boxes full of
records alleged to be public. Much of the information being
reviewed is detrimental to the defendant, which raises yet another
problem—how can a trial judge and appellate judges, who become
familiar with such information, fairly judge a defendant when they
have reviewed information that may not ever be admitted or even
admissible as evidence? Last, but not least, are the speedy trial
issues raised by defendants when it is the state appealing an order to
release documents.
(Emphasis sic.) Id. at 428–429.
{¶ 24} In response to this state of affairs, this court held that “in the criminal
proceeding itself, a defendant may use only Crim.R. 16 to obtain discovery.” Id. at
429. Believing that prior decisions of this court had “hamstrung the proper
administration of justice,” this court also set out to “draw some bright lines in cases
which involve the use of R.C. 149.43 by any person seeking release of records in
pending criminal proceedings.” (Emphasis sic.) Id.
{¶ 25} One area where the court chose to draw a bright line was in regard
to the specific-investigatory-work-product exception in R.C. 149.43(A)(2)(c). The
court in Steckman criticized earlier opinions of this court that had narrowed the
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exception, including State ex rel. Natl. Broadcasting Co., Inc. v. Cleveland, 38 Ohio
St.3d 79, 526 N.E.2d 786 (1988), in which the court held that “[t]he specific
investigatory work product exception, R.C. 149.43(A)(2)(c), protects an
investigator’s deliberative and subjective analysis, his interpretation of the facts,
his theory of the case, and his investigative plans. The exception does not
encompass the objective facts and observations he has recorded.” Natl.
Broadcasting Co. at paragraph three of the syllabus. See Steckman, 70 Ohio St. 3d
at 433–434, 639 N.E.2d 83.
{¶ 26} This court in Steckman related that that holding and similar ones
from other cases had led to an increase in demands to courts and record keepers “to
release the entire contents of a prosecutor’s file and all the records accumulated and
maintained by a police department in connection with a particular defendant and
his or her criminal proceeding.” (Emphasis sic.) Id. at 431. This court opined that
because of those cases, “the exceptions to required disclosure found in R.C.
149.43(A)(2)(c)—‘specific investigatory work product’—and R.C.
149.43(A)(4)—‘trial preparation record’—have virtually been rendered
meaningless. Additionally, these cases have, for all practical purposes, just about
written Rule 16 out of the Criminal Rules.” Id. The court stated its intention to
resolve the issue: “Simply put, this chaos cannot be permitted to continue.” Id.
{¶ 27} In addressing the confidential-law-enforcement-investigatory-
record exception in R.C. 149.43(A)(2), and specifically, the “specific investigatory
work product” exception in R.C. 149.43(A)(2)(c), the court in Steckman expanded
the definition of work product, and it narrowed the kinds of records available as
public records. This court found that it had never satisfactorily defined the term
“work product”—which is undefined in R.C. 149.43—for purposes of R.C.
149.43(A)(2)(c). Id. at 434. The court then looked to the United States Supreme
Court’s decision in Hickman v. Taylor, 329 U.S. 495, 67 S. Ct. 385, 91 L. Ed. 451
(1947), which addressed work-product privilege in the context of the attorney-
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client relationship. This court concentrated on the policy reasons behind work
product discussed in Hickman, in which the United Stated States Supreme Court
“indicated that proper preparation of a client’s case requires that information be
gathered, assembled and sorted and that theories of the case be prepared and
strategy be planned ‘without undue and needless interference.’ ” Steckman at 434,
quoting Hickman at 511. This court also noted that allowing others to view the
work product of an investigation could affect the quality of that investigation:
If the product of such work is to be available merely upon demand,
then there is a very real probability that certain information will
remain unrecorded, witnesses’ names will not be catalogued and
other memoranda will be absent from the “official” files. We should
not, by our rulings, create a situation where there is an incentive to
engage in such conduct.
Steckman at 434.
{¶ 28} This court applied a definition of the work-product rule to the
“specific investigatory work product” exception in R.C. 149.43(A)(2)(c):
[W]ith regard to records assembled by law enforcement officials
(including prosecutors), we now subscribe to Black’s definition of
“work product rule.” “Under this rule any notes, working papers,
memoranda or similar materials, prepared by attorneys [here, by law
enforcement officials] in anticipation of litigation, are protected
from discovery.” Black’s Law Dictionary (6 Ed.Rev.1990) 1606.
This definition (working papers) is broad enough to bring under its
umbrella any records compiled by law enforcement officials.
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(Bracketed text sic.) Steckman, 70 Ohio St. 3d at 434, 639 N.E.2d 83.
{¶ 29} This court thus found that except for material required to be
produced to a defendant pursuant to former Crim.R. 16, “information assembled by
law enforcement officials in connection with a probable or pending criminal
proceeding is, by the work-product exception found in R.C. 149.43(A)(2)(c),
excepted from required release as said information is compiled in anticipation of
litigation.” Steckman at 435. Not included within the exception were “routine
offense and incident reports.” Id.
{¶ 30} The extension of the investigatory-work-product exception beyond
the completion of the trial finds its roots in Steckman’s discussion of the trial-
preparation-record exception of R.C. 149.43(A)(1)(g). R.C. 149.43(A)(4) defines
trial preparation record and reads: “ ‘Trial preparation record’ means any record
that contains information that is specifically compiled in reasonable anticipation of,
or in defense of, a civil or criminal action or proceeding, including the independent
thought processes and personal trial preparation of an attorney.” The court wrote
that “[i]t is difficult to conceive of anything in a prosecutor’s file, in a pending
criminal matter, that would not be either material compiled in anticipation of a
specific criminal proceeding or the personal trial preparation of the prosecutor.”
Steckman at 431–432. The court concluded:
Therefore, we now hold that information, not subject to
discovery pursuant to Crim.R. 16(B), contained in the file of a
prosecutor who is prosecuting a criminal matter, is not subject to
release as a public record pursuant to R.C. 149.43 and is specifically
exempt from release as a trial preparation record in accordance with
R.C. 149.43(A)(4).
Id. at 432.
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{¶ 31} This court then discussed how long records remain exempt under
R.C. 149.43(A)(4) in light of that statue’s definition of “trial preparation record” as
a record “compiled in reasonable anticipation of, or in defense of, a civil or criminal
action or proceeding.” This court looked to the definitions of “trial,” “action,” and
“proceeding,” in Black’s Law Dictionary and found that among the definitions,
there was no distinction made between an initial court proceeding, direct appeals,
and postconviction relief. Steckman, 70 Ohio St. 3d at 432, 639 N.E.2d 83. This
court then held that “once a record becomes exempt from release as a ‘trial
preparation record,’ that record does not lose its exempt status unless and until all
‘trials,’ ‘actions’ and/or ‘proceedings’ have been fully completed.” Id.
{¶ 32} The court acknowledged that that holding “may seem harsh” but
stated that the holding was “not without good reason.” Id. That reason was that a
person convicted of a crime should not have available to him or her in
postconviction proceedings any more evidence than would have been available to
him or her pursuant to former Crim.R. 16 at the original trial:
[W]e still are faced with the situation in which a defendant in a
criminal case might be granted a new trial, on his or her petition for
postconviction relief. Since the possibility of retrial remains, the
defendant, who has obtained records during postconviction
proceedings, would have on retrial more information than she or he
would be entitled to possess if limited to discovery pursuant to
Crim.R. 16. This, of course, could present (at best) an anomalous
result.
Steckman at 432.
{¶ 33} This court did not explicitly hold in Steckman that the specific-
investigatory-work-product exception extends beyond the completion of the trial.
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But that was the clear implication when this court held that the records sought by
Ronald Larkins—the defendant in one of the consolidated cases before it—were
exempt from disclosure based on R.C. 149.43(A)(2)(c). The court concluded in
resolving Larkins’s case that “a defendant in a criminal case who has exhausted the
direct appeals of her or his conviction may not avail herself or himself of R.C.
149.43 to support a petition for postconviction relief.” Id. at 437 and at paragraph
six of the syllabus.
{¶ 34} This court a few years later explicitly held that the specific-
investigatory-work-product exception applies beyond the completion of direct
appeals in State ex rel. WLWT-TV5, 77 Ohio St. 3d 357, 673 N.E.2d 1365. This
court adopted the Steckman reasoning regarding trial-preparation records in holding
that “[a]nalogously, once applicable, the records continue to be exempt work
product until all proceedings are fully completed.” WLWT-TV5 at 360, citing
Steckman at 437. The court once again acknowledged the harshness of the holding,
but reiterated Steckman’s reasoning that a defendant who is granted a new trial on
his or her postconviction petition should not be entitled to information on retrial
that he or she could not obtain though Crim.R.16 discovery. WLWT-TV5 at 360,
citing Steckman at 432.
Changes to Crim.R. 16
{¶ 35} The central reason stated in Steckman and WLWT-TV5 justifying the
admittedly harsh holding extending the specific-investigatory-work-product
exception until all proceedings are fully completed was the seeming disparity
between the information a defendant could obtain to use at retrial compared to what
the defendant could obtain through discovery under former Crim.R. 16.
{¶ 36} This court reasoned—after declaring that only Crim.R. 16 could be
used for discovery in a pending criminal matter—that a person convicted of a crime
but granted a retrial should not have available to him or her any more evidence than
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what was available at the original trial pursuant to former Crim.R. 16. Steckman,
70 Ohio St. 3d at 429, 432, 639 N.E.2d 83; see also WLWT-TV5 at 360.
{¶ 37} But Crim.R. 16 has changed significantly since it was described in
Steckman as not providing “ ‘full,’ ‘complete’ or ‘open file’ discovery.” Steckman
at 428. On July 1, 2010, Ohio’s sweeping reform of Crim.R. 16 went into effect.
Developed collaboratively by the criminal-defense bar and prosecutors, the purpose
of the revisions “is to provide for a just determination of criminal proceedings and
to secure the fair, impartial, and speedy administration of justice through the
expanded scope of materials to be exchanged between the parties.” 2010 Staff Note
to Crim.R. 16(A). The new rule “expands the State’s duty to disclose materials and
information beyond what was required under the prior rule.” 2010 Staff Note to
Crim.R. 16(B). For instance, upon a defendant’s written demand, the state must
generally provide, prior to trial, “[a]ny written or recorded statement by a witness
in the state’s case-in-chief, or that it reasonably anticipates calling as a witness in
rebuttal,” Crim.R. 16(B)(7), as well as “[a]ll reports from peace officers, the Ohio
State Highway Patrol, and federal law enforcement agents,” Crim.R. 16(B)(6).
These are two significant changes that provide defendants much more information
prior to trial than under former Crim.R. 16.
{¶ 38} Further, pursuant to this court’s decision in State v. Athon, 136 Ohio
St.3d 43, 2013-Ohio-1956, 989 N.E.2d 1006, paragraph three of the syllabus, when
an accused seeks information about his or her case through a public-records request,
“that public records request is the equivalent of a demand for discovery, and a
reciprocal duty of disclosure arises in accordance with Crim.R. 16.” That holding
led to an amendment to Crim.R. 16(H), which now includes the sentence, “A public
records request made by the defendant, directly or indirectly, shall be treated as a
demand for discovery in a criminal case if, and only if, the request is made to an
agency involved in the prosecution or investigation of that case.” See 2016 Staff
Note to Crim.R. 16.
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{¶ 39} Thus, changes to Crim.R. 16 have minimized any perceived
advantage a defendant could gain on retrial through the use of a public-records
request.
Revisiting Steckman and WLWT-TV5
{¶ 40} “R.C. 149.43 is to be construed liberally in favor of broad access,
and any doubt is to be resolved in favor of disclosure of public records.” State ex
rel. Gannett Satellite Information Network v. Shirey, 78 Ohio St. 3d 400, 401, 678
N.E.2d 557 (1997). We look to R.C. 149.43(A)(2)(c) to see whether it requires that
the specific-investigatory-work-product exception extend beyond the trial of the
case. Nothing in the statute itself suggests that the exception should last beyond
the original trial.
{¶ 41} This court’s prior jurisprudence in this area was based on
expedience—the idea that a defendant should not be able to have more information
on retrial than he or she could have gained through Crim.R. 16 discovery for the
original trial. Steckman, 70 Ohio St. 3d at 432, 639 N.E.2d 83; WLWT-TV5, 77 Ohio
St.3d at 360, 673 N.E.2d 1365. The reworking of Crim.R. 16 has allayed those
concerns.
{¶ 42} We should also be concerned with the interests of justice. Ronald
Larkins was one of the appellants in the consolidated cases in Steckman. He had
been convicted of aggravated murder, aggravated robbery, and attempted murder.
His convictions and sentence were affirmed on appeal. Steckman at 422–423.
{¶ 43} Larkins sought from Cleveland’s police chief, through an action in
mandamus, the investigatory records of the crimes for which he was convicted. Id.
at 437. In Steckman, this court held that the records he sought were “exempt from
disclosure based upon the work product exception of R.C. 149.43(A)(2)(c)” and
that as a person who had exhausted his direct appeals, he could not use R.C. 149.43
“to support a petition for postconviction relief.” Id.
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{¶ 44} But Larkins’s case did not end with Steckman. Another person filed
a public-records request for the records Larkins had sought; for unknown reasons,
police turned over the records to that person, who forwarded them to Larkins. State
v. Larkins, 8th Dist. Cuyahoga No. 85877, 2006-Ohio-90, ¶ 6. Based on the
contents of the records, Larkins filed a motion for a new trial on the grounds that
the state had withheld exculpatory evidence. The trial court granted the motion, the
court of appeals affirmed, and the case returned to the trial court. Id. at ¶ 7. Larkins
then moved the trial court to dismiss the indictment, and the court granted the
motion. Id. at ¶ 8. The trial court wrote:
“Finally, and perhaps most importantly to this Court, the
defendant has been trying at least since 1994 to obtain the
exculpatory evidence in possession of the State. * * *
“The issue hence becomes: when the State purposely secrets
exculpatory evidence from a defendant resulting in a ‘verdict
unworthy of confidence’ and then actively seeks to conceal that
evidence for a period of years, and as a result numerous witnesses
are deceased or unable-to-be-located, is dismissal the appropriate
remedy? * * *
“It is clear that the passage of time has gravely prejudiced
the defendant. Whether this is denominated as a Speedy Trial
Violation, a Due Process Violation, a Brady Violation, or a double
jeopardy issue, the fact clearly remains that the defendant cannot
now in 2004-2005, receive the fair trial to which he is entitled.”
Larkins at ¶ 11–13, quoting the trial court’s decision.
{¶ 45} The appellate court affirmed the trial court’s dismissal of the
indictment. Id. at ¶ 52. This court declined to accept the state’s appeal on June 7,
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2006. State v. Larkins, 109 Ohio St. 3d 1495, 2006-Ohio-2762, 848 N.E.2d 858.
Nearly a dozen years had passed since Steckman was decided.
{¶ 46} Larkins gained access to the records that led to the dismissal of his
indictment only through an act of bureaucratic grace. Or a bureaucratic mistake.
Whichever the case, a clear rule would be better and is necessary.
{¶ 47} Because the PRA should be construed liberally to provide broad
access, because the revisions to Crim.R. 16 have leveled the disparity between
information available through the PRA and through Crim.R. 16 discovery, and in
the interests of justice, we hold that the specific-investigatory-work-product
exception of R.C. 149.43(A)(2)(c) does not extend beyond the completion of the
trial for which the information was gathered. To the extent that they hold otherwise,
State ex rel. Steckman v. Jackson, 70 Ohio St. 3d 420, 639 N.E.2d 83, and State ex
rel. WLWT-TV5 v. Leis, 77 Ohio St. 3d 357, 673 N.E.2d 1365, are overruled.
Writ granted
{¶ 48} Accordingly, we grant the writ. Respondents should have produced
to Caster all the records that were withheld based on respondents’ claim that the
records constituted specific investigatory work product pursuant to R.C.
149.43(A)(2)(c), because Saleh’s original trial had long been completed. It should
be noted that we order the production of those records that were withheld based on
the specific-investigatory-work-product exception; other CLEIR exceptions under
R.C. 149.43(A)(2)—as long as the conditions justifying those exceptions still
exist—may require the withholding of some records or parts of some records. Thus,
DOP need not produce records that would create a high probability of disclosure of
“[t]he identity of a suspect who has not been charged with the offense to which the
record pertains, or of an information source or witness to whom confidentiality has
been reasonably promised,” pursuant to R.C. 149.43(A)(2)(a); “[i]nformation
provided by an information source or witness to whom confidentiality has been
reasonably promised, which information would reasonably tend to disclose the
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source’s or witness’s identity,” pursuant to R.C. 149.43(A)(2)(b); “[s]pecific
confidential investigatory techniques or procedures,” pursuant to R.C.
149.43(A)(2)(c); or “[i]nformation that would endanger the life or physical safety
of law enforcement personnel, a crime victim, a witness, or a confidential
information source,” pursuant to R.C. 149.43(A)(2)(d). Moreover, as Caster
concedes, redactions to remove information regarding matters such as Social
Security numbers would be appropriate in the same way that they are appropriate
in any public-records case.
Attorney fees, statutory damages, and court costs
{¶ 49} We now consider Caster’s request for attorney fees, statutory
damages, and court costs. Former R.C. 149.43(C)(2), 2013 Am.Sub.H.B. No. 59,
addresses the awarding of attorney fees in public-records cases and governs our
analysis here. Pursuant to former R.C. 149.43(C)(2)(b)(i) the court shall award
attorney fees when the person responsible for public records “failed to respond
affirmatively or negatively to the public records request” within a reasonable
amount of time. Here, DOP failed to respond to Caster’s November 20, 2013
public-records request. However, Caster made it known in the November request
that the September 5, 2013 request by the OIP fellows had been made at Caster’s
direction. We also note that DOP had responded to the OIP fellows’ October 31,
2013 request. This court has held that a reiterated request for the same records does
not require an additional response. State ex rel. Laborers Internatl. Union of N.
Am., Local Union No. 500 v. Summerville, 122 Ohio St. 3d 1234, 2009-Ohio-4090,
913 N.E.2d 452, ¶ 6.
{¶ 50} But in this case, Caster’s November 20, 2013 request was
sufficiently different to constitute a new request. The letter was responsive to
DOP’s earlier refusals. Caster pointed out deficiencies in the prior DOP
responses—DOP had simply issued a blanket denial and had not set forth which of
the four categories of confidential law-enforcement investigatory records it
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January Term, 2016
specifically applied to deny the requests. And Caster added the information that
Saleh’s criminal case was complete, that Saleh’s direct-appeal process had
concluded, and that there were no pending collateral attacks on the conviction, in
response to DOP’s earlier advisements that the request should be refiled upon
completion of the criminal case.
{¶ 51} Since DOP failed to respond to the November 20, 2013 public-
records request, an award of attorney fees is mandatory. Pursuant to former R.C.
149.43(C)(2)(c), 2013 Am.Sub.H.B. No. 59, the court “may reduce an award of
attorney’s fees to the relator or not award attorney’s fees to the relator” upon
application of the factors in former R.C. 149.43(C)(2)(c)(i) and (ii), but we decline
to do so.
{¶ 52} Because Caster transmitted his request for public records by certified
mail, he is entitled to statutory damages pursuant to former R.C. 149.43(C)(1), 2013
Am.Sub.H.B. No. 59. Because of the failure of DOP to provide some records—
missing-person-preliminary-investigation forms, the coroner’s report, newspaper
articles, a press release, and subpoenas—that were clearly public records, the
mitigating factors in former R.C. 149.43(C)(1)(a) and (b) are not applicable, so we
award Caster statutory damages. In this situation, Caster is entitled to $1,000, the
maximum amount of statutory damages stated in former R.C. 149.43(C)(1).
{¶ 53} Finally, because this court issues a writ of mandamus ordering
respondents to comply with Caster’s public-records request, we award Caster court
costs pursuant to former R.C. 149.43(C)(2)(a), 2013 Am.Sub.H.B. No. 59. Caster
shall provide the court with an itemized application for reasonable attorney fees
and costs to be awarded pursuant to R.C. 149.43(C).
CONCLUSION
{¶ 54} We hold that Caster had a clear legal right to the requested records
and that respondents had a clear legal duty to provide the records in accordance
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with R.C. 149.43(B)(1). We grant Caster’s request for attorney fees, statutory
damages, and court costs.
Judgment accordingly.
KENNEDY, FRENCH, and O’NEILL, JJ., concur.
O’CONNOR, C.J., concurs in part and dissents in part, with an opinion joined
by LANZINGER, J.
O’DONNELL, J., dissents and would not overrule any portion of State ex rel.
Steckman v. Jackson, 70 Ohio St. 3d 420, 639 N.E.2d 83 (1994).
_________________
O’CONNOR, C.J., concurring in part and dissenting in part.
{¶ 55} The Columbus Division of Police (“CDP”) has an obligation under
Ohio law to individually review the records that relator, Donald Caster, requested,
including “medical records, police reports, investigation notes, evidence reports,
and any other materials compiled by the Columbus Division of Police,” to
determine which, if any, are subject to disclosure. Accordingly, I would grant the
writ and require CDP to make available all public records in its files that meet
relator’s request.
{¶ 56} However, as detailed below, I dissent from the majority opinion to
the extent that it orders CDP to produce “all the records that were withheld based
on respondents’ claim that the records constituted specific investigatory work
product.” Majority opinion at ¶ 48. I also dissent from the majority’s decision to
overrule State ex rel. Steckman v. Jackson, 70 Ohio St. 3d 420, 639 N.E.2d 83
(1994), and State ex rel. WLWT-TV5 v. Leis, 77 Ohio St. 3d 357, 673 N.E.2d 1365
(1997), to the extent that those cases hold that the specific-investigatory-work-
product exception of R.C. 149.43(A)(2)(c) extends beyond the completion of the
trial for which the information was gathered. Instead, I would modify Steckman’s
definition of the specific-investigatory-work-product exception.
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January Term, 2016
Breadth of Work-Product Exception
{¶ 57} I dissent from the majority’s order to CDP to produce “all the records
that were withheld based on respondents’ claim that the records constituted specific
investigatory work product.” Majority opinion at ¶ 48.
{¶ 58} The Public Records Act, R.C. 149.43, excepts from disclosure
confidential law-enforcement investigatory records that would disclose “specific
investigatory work product.” R.C. 149.43(A)(2)(c). In our early case law
interpreting “specific investigatory work product,” we narrowly construed the term.
In State ex rel. Beacon Journal Publishing Co. v. Univ. of Akron, 64 Ohio St. 2d
392, 415 N.E.2d 310 (1980), we found that the specific-investigatory-work-product
exception did not protect two reports from disclosure. Id. at 397-398. The
University of Akron’s security department had compiled the two reports: one
related to the alleged rape of a student and the other recounted the student’s death
and surrounding circumstances. Id. at 392-393. And in State ex rel. Natl.
Broadcasting Co., Inc. v. Cleveland, 38 Ohio St. 3d 79, 526 N.E.2d 786 (1988), we
stated:
Specific investigatory work product can best be defined as
material that demonstrably contains or reveals the theories, mental
impressions, and thought processes of the investigator. This
definition is consistent with this court’s philosophy that “* * *
exceptions to disclosure enumerated in R.C. 149.43 are to be
construed strictly against the custodian of public records and that
all doubt should be resolved in favor of this disclosure.”
(Ellipses sic.) Id. at 84, quoting State ex rel. Plain Dealer Publishing Co. v. Lesak,
9 Ohio St. 3d 1, 4, 457 N.E.2d 821 (1984) (Celebrezze, C.J., concurring).
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{¶ 59} However, we reached a turning point in Steckman and repudiated
these earlier cases and others that allowed for broad disclosure of law-enforcement
investigatory files under the Public Records Act. Specifically, in Steckman, the
court was concerned that the Public Records Act allowed for broader access to
records than the version of Crim.R. 16 in place at the time allowed and that
defendants were using the Public Records Act to “obtain information to which they
[were] not entitled under Crim.R. 16 and * * * to bring about interminable delay in
their criminal prosecutions.” (Emphasis sic.) Id., 70 Ohio St.3d at 428, 639 N.E.2d
83. Providing broad access to investigatory files under the Public Records Act, we
determined, created a “playing field [that] is not level as there is no reciprocal right
of prosecutors to obtain additional discovery beyond” Crim. R. 16(C). Id. at 428-
29. We concluded that if law-enforcement work product “is to be available merely
upon demand, then there is a very real probability that certain information will
remain unrecorded, witnesses’ names will not be catalogued and other memoranda
will be absent from the ‘official’ files.” Id. at 434. With that concern in mind, we
found that the work-product exception, as we explained it, “is broad enough to bring
under its umbrella any records compiled by law enforcement officials,” id.,
although we specifically found that the “exception does not include ongoing routine
offense and incident reports,” id. at 435.
{¶ 60} Today, to the extent that Steckman and its progeny relied on
Hickman v. Taylor, 329 U.S. 495, 67 S. Ct. 385, 91 L. Ed. 451 (1947), to broadly
define the work-product exception such that only “routine offense and incident
reports,” must be disclosed, Steckman at paragraph five of the syllabus, I would
modify the definition based on the 2010 revisions to Crim.R. 16 that vastly
expanded the discovery of records in criminal cases. The current version of
Crim.R. 16 requires, under certain conditions and subject to certain specific
exceptions, a prosecuting attorney to provide broad discovery to a defendant,
including the following materials:
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January Term, 2016
(1) Any written or recorded statement by the defendant
or a co-defendant, including police summaries of such
statements, and including grand jury testimony by either the
defendant or co-defendant;
***
(3) * * * [A]ll laboratory or hospital reports, books,
papers, documents, photographs, tangible objects, buildings, or
places;
(4) * * * [R]esults of physical or mental examinations,
experiments or scientific tests;
(5) Any evidence favorable to the defendant and material
to guilt or punishment;
(6) All reports from peace officers, the Ohio State
Highway Patrol, and federal law enforcement agents, provided
however, that a document prepared by a person other than the
witness testifying will not be considered to be the witness’s prior
statement for purposes of the cross examination of that particular
witness under the Rules of Evidence unless explicitly adopted
by the witness;
(7) Any written or recorded statement by a witness in the
state’s case-in-chief, or that it reasonably anticipates calling as a
witness in rebuttal.
Crim.R. 16(B).
{¶ 61} With the move toward open-file discovery, Crim.R. 16 now
obligates prosecuting attorneys to turn over much of the investigatory files to
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defendants. Accordingly, our concern in Steckman that a public-records request
would incentivize shoddy investigatory techniques is no longer overriding.
{¶ 62} But, in advocating that the fifth paragraph of the Steckman syllabus
should be modified, I cannot agree with the majority that all of the specific
investigatory work product in the investigatory file should be available unless it is
subject to one of the other narrow exceptions to disclosure of confidential law-
enforcement investigatory records. Even Crim.R. 16 does not allow for access to
all of a law-enforcement department’s case files. Importantly, “[t]he prosecuting
attorney may designate any material subject to disclosure under this rule as ‘counsel
only’ by stamping a prominent notice on each page or thing so designated.”
Crim.R. 16(C). The prosecuting attorney is also permitted to withhold documents
when there are “reasonable, articulable grounds to believe that disclosure will
* * * subject [a witness, victim, or third party] to intimidation or coercion * * * [or]
to a substantial risk of serious economic harm,” Crim.R. 16(D)(1) and (2), or if
“[d]isclosure will compromise * * * a confidential law enforcement technique,”
Crim.R. 16(D)(3). And “materials subject to the work product protection” are not
subject to disclosure at all, including “reports, memoranda, or other internal
documents made by the prosecuting attorney” and his or her agents.” Crim.R.
16(J)(1). The majority opens the door for disclosure well beyond what even
Crim.R. 16 requires, and it does so without any of the safeguards that the rule and
R.C. 149.43(A)(2) put in place.
{¶ 63} Recognizing that the concern we described in Steckman no longer
exists given the modifications to Crim.R. 16 but that there must be some standard
to identify “specific investigatory work product,” I would limit the term as we did
in Beacon Journal Publishing Co. and Natl. Broadcasting Co., subjecting facts to
disclosure as public records while protecting the theories, mental impressions, and
thought processes of the investigator as specific investigatory work product. Put
another way, I would analogize the specific investigatory work product of law
26
January Term, 2016
enforcement to the opinion work product in our attorney-work-product
jurisprudence. Opinion work product includes “mental impressions, theories, and
legal conclusions.” Squire, Sanders & Dempsey, L.L.P. v. Givaudan Flavors Corp.,
127 Ohio St. 3d 161, 2010-Ohio-4469, 937 N.E.2d 533, ¶ 60.
{¶ 64} In further explanation, again borrowing from the parlance of
attorney-work-product jurisprudence, “specific investigatory work product” does
not include the law-enforcement equivalent of fact work product. Citing Hickman,
329 U.S. at 510-511, 67 S. Ct. 385, 91 L. Ed. 2d 451, the United States Court of
Appeals for the Sixth Circuit has referred to fact work product as “written or oral
information transmitted to the attorney and recorded as conveyed by the client.” In
re Antitrust Grand Jury, 805 F.2d 155, 163 (6th Cir.1986). Appellate courts in
Ohio have described witness statements and underlying facts as fact work product.
Jerome v. A-Best Products Co., 8th Dist. Cuyahoga Nos. 79139, 79140, 79141, and
79142, 2002-Ohio-1824, ¶ 21. See also Jackson v. Gregor, 160 Ohio App. 3d 258,
2005-Ohio-1588, 826 N.E.2d 900, ¶ 34 (2d Dist.); Fowler v. Coleman, 10th Dist.
Franklin No. 04AP-248, 2005-Ohio-1518, ¶ 28.
{¶ 65} This distinction would give effect to the “specific investigatory”
modifier in R.C. 149.43(A)(2)(c), the influence of which we largely abolished in
Steckman. The specific-investigatory-work-product exception should entitle law-
enforcement officers to protect their theories, impressions, and strategies, as may
be set forth, for instance, in interview notes, memos to the file, or to-do lists. But
members of the public should be able to request access to facts uncovered during
the investigation, for instance witness statements, but with identifying information
about the witness redacted to the extent the information suggests law-enforcement
strategy or falls within another confidential-law-enforcement-investigatory-record
exception. A law-enforcement department must examine a file and individually
determine which materials are routine or factual and which disclose confidential
law-enforcement investigatory records, including specific investigatory work
27
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product, based on the Public Records Act. The decision is subject to in camera
review when challenged.
Duration of Exception
{¶ 66} I also dissent from the majority’s decision to overrule Steckman and
WLWT-TV5 to the extent that those cases held that the specific-investigatory-work-
product exception of R.C. 149.43(A)(2)(c) extends beyond the completion of the
trial for which the information is gathered. While I agree that protecting trial-
preparation records that are part of a law-enforcement file is unnecessary following
exhaustion of the defendant’s direct appeals or the decision not to prosecute, that is
not true for the information that R.C. 149.43(A)(2) protects. Releasing materials
that demonstrate law-enforcement investigatory strategies, particularly if
knowledge of such strategies would empower criminals to avoid detection, is
dangerous. The majority’s decision today will lead to an array of negative
consequences.
The Trial-Preparation-Records Exception
{¶ 67} While I believe that R.C. 149.43(A)(2) permanently excepts certain
law-enforcement investigatory records from the Public Records Act, I would hold
that R.C. 149.43(A)(4), the trial-preparation exception, also protects the bulk of a
law-enforcement file from disclosure until a defendant has exhausted all direct
appeals in the case or until the law-enforcement department closes the case
following a decision not to press charges. The trial-preparation exception would
include, among other materials, witness statements, interview notes, lab results, and
internal memoranda that a law-enforcement officer creates during an investigation
in an effort to gather evidence to bring charges against an accused. That evidence
is gathered in reasonable anticipation of a criminal action or proceeding, and as
described in Steckman, 70 Ohio St. 3d 420, 639 N.E.2d 83, at paragraph four of the
syllabus, loses its trial-preparation-record protection and may be subject to
disclosure only after the law-enforcement department closes the case without
28
January Term, 2016
charges or the litigation is completed, including the exhaustion of all direct appeals.
While materials in the file lose their protection as trial-preparation records at that
time, the confidential-law-enforcement-investigatory-record exception may still
protect parts of the file, as described previously.
{¶ 68} The trial-preparation exception does not cover those records
generated on a routine basis, such as offense and incident reports or certain
dashboard-camera footage, as we described in State ex rel. Cincinnati Enquirer v.
Ohio Dept. of Pub. Safety, ___ Ohio St.3d ___, 2016-Ohio-7987, ___ N.E.3d ___,
¶ 45. Law-enforcement officers create those materials as a matter of course,
without regard to whether the officers yet have any idea if the matter will lead to
an indictment or trial. Accordingly, these items cannot be said to be “specifically
compiled in reasonable anticipation of * * * a civil or criminal action or
proceeding” as required by the trial-preparation-record exception. R.C.
149.43(A)(4).
{¶ 69} This arrangement is sensible. The trial-preparation-record exception
protects “any record that contains information that is specifically compiled in
reasonable anticipation of * * * [a] criminal action or proceeding.” Id. The primary
purpose behind a criminal investigation by law enforcement is to gather information
that could lead to an indictment and trial. While this court in Steckman stated that
a trial-preparation record “does not lose its exempt status unless and until all ‘trials,’
‘actions’ and/or ‘proceedings’ have been fully completed,” id. at paragraph four of
the syllabus, this cannot be a license to withhold such records until a defendant is
released from prison or dead. Construing the Public Records Act liberally in favor
of public access, as we must, it is antithetical to permit an interpretation of
Steckman that allows withholding of substantially all of an investigatory file
indefinitely. Accordingly, I would protect the file either until law enforcement
closes a case or until there is no longer a reasonable probability that a verdict will
be reconsidered—after the defendant has exhausted his or her direct-appeal options.
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SUPREME COURT OF OHIO
I would not disturb Steckman to the extent that it applies to the files of prosecutors
or others attorneys working on criminal or civil actions.
{¶ 70} I recognize that the trial-preparation-record exception protects some
of the same law-enforcement materials that defendants are entitled to under Crim.R.
16. However, disclosure to a defendant is not the same as disclosure to the public,
and public policy supports withholding nonroutine law-enforcement records until
the likelihood of trial and retrial, after a successful direct appeal, pass. Restricting
public access to these documents prevents the press from trying an active case in
the news. In the event a defendant is innocent, it prevents the actual perpetrator
from accessing information that he or she could use to prevent detection. It also
prevents a defendant from accessing records that may have been disclosed in
discovery pursuant to a counsel-only designation.
{¶ 71} The majority would allow disclosure of specific investigatory work
product after trial but before a defendant’s direct appeals are exhausted. This would
re-create the problem that Steckman sought to address: giving the public (and
potentially the defendant) access to information in the investigatory file that was
not available to the defendant during trial and opening a second level of potential
discovery through a public-records request between a trial verdict and a defendant’s
direct appeal. See Steckman, 70 Ohio St. 3d at 428-429, 639 N.E.2d 83.
Overcoming Stare Decisis
{¶ 72} Stare decisis does not prevent us from modifying the broad work-
product exception set forth in Steckman. Even to the extent that this modification
may overrule a part of that decision, it meets the well-settled test for overruling
prior precedent. That test requires us to determine if (1) a change in circumstances
no longer justifies continued adherence to the decision, (2) the decision defies
practical workability, and (3) abandoning the precedent would create an undue
hardship for those who have relied upon it. Westfield Ins. Co. v. Galatis, 100 Ohio
St.3d 216, 2003-Ohio-5849, 797 N.E.2d 1256, ¶ 48. I have already explained that
30
January Term, 2016
the 2010 revisions to Crim.R. 16 have changed the circumstances of this situation
and that adhering to the broad work-product definition stated in Steckman is no
longer justified.
{¶ 73} The work-product definition in Steckman also defies practical
workability. We have held that the Public Records Act is to be liberally construed
in favor of broad access while resolving doubts in favor of disclosure. State ex rel.
Glasgow v. Jones, 119 Ohio St. 3d 391, 2008-Ohio-4788, 894 N.E.2d 686, ¶ 13.
Yet under Steckman, the timely release of any part of a law-enforcement
investigatory file will not occur, outside of “routine offense and incident reports.”
Id. at 435. If this was the General Assembly’s intent, there was no need for it to
provide the level of detail stated in R.C. 149.43(A)(2). The General Assembly
could simply have excepted all law-enforcement investigatory files from the Public
Records Act. By so closely circumscribing the law, Steckman renders the Public
Records Act virtually worthless in regard to many law-enforcement files.
{¶ 74} Finally, abandoning the work-product definition set forth in
Steckman does not create a hardship on the law-enforcement departments that have
relied on it. A law-enforcement department may withhold or redact materials to
the extent they contain information legitimately excepted by R.C. 149.43(A)(2),
including law-enforcement strategy and witness and uncharged-suspect identities.
Moreover, given that prosecutors already disclose this information and more under
Crim.R. 16, law-enforcement officers have not relied on an expectation of
nondisclosure at all during the past six years.
Attorney Fees
{¶ 75} Finally, for the reasons described above, I agree with the majority
opinion that a well-informed person could not reasonably believe that he or she
complied with the Public Records Act by refusing to disclose any of the records
requested by relator. See R.C. 149.43(C)(2)(c). Accordingly, I concur in the award
of attorney fees, statutory damages, and costs to relator.
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SUPREME COURT OF OHIO
LANZINGER, J., concurs in the foregoing opinion.
_________________
The Gittes Law Group, Frederick M. Gittes, and Jeffrey P. Vardaro, for
relator.
Richard C. Pfeiffer Jr., Columbus City Attorney, and Paula J. Lloyd,
Assistant City Attorney, for respondents.
Baker & Hostetler, L.L.P., David L. Marburger, and Melissa A. DeGaetano,
urging granting of the writ for amicus curiae Ohio Coalition for Open Government.
Soumyajit Dutta; and Covington & Burling, L.L.P., Ashley E. Bass, and
David J. Shaw, urging granting of the writ for amicus curiae the Innocence
Network.
_________________
32