State ex rel. Standifer v. Cleveland

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
ex rel. Standifer v. Cleveland, Slip Opinion No. 2022-Ohio-3711.]
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
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South Front Street, Columbus, Ohio 43215, of any typographical or other
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SLIP OPINION NO. 2022-OHIO-3711THE STATE EX REL . STANDIFER ET AL., APPELLANTS, v. THE CITY OF
CLEVELAND, APPELLEE.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as State ex rel. Standifer v. Cleveland, Slip Opinion No.
2022-Ohio-3711.]
Mandamus—Public Records Act—Confidential-law-enforcement-investigatory-
records (“CLEIR”) exception to disclosure requirement—City’s police use-
of-force (“UOF”) reports satisfy first requirement of CLEIR definition
under R.C. 149.43(A)(2) because they pertain to law-enforcement matters
and cannot be characterized as simply personnel documents—City’s UOF
reports satisfy second requirement of CLEIR definition because city failed
to prove that their release would create a high probability of disclosure of
any of four types of information specified in R.C. 149.43(A)(2), including
the “identity of a suspect who has not been charged with the offense to
which the record pertains”—A UOF report could, in certain circumstances,
identify an uncharged suspect, but there is no per se rule that UOF reports
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always do so—Court of appeals’ denial of writ reversed and cause
remanded.
(No. 2021-1280—Submitted June 14, 2022—Decided October 20, 2022.)
APPEAL from the Court of Appeals for Cuyahoga County, No. 110200,
2021-Ohio-3100.
__________________
Per Curiam.
{¶ 1} Appellants, Lauren “Cid” Standifer and Euclid Media Group, L.L.C.,
d.b.a. Cleveland Scene, sought a writ of mandamus to compel appellee, the city of
Cleveland, to disclose use-of-force (“UOF”) reports, which are prepared whenever
a Cleveland police officer uses force in the course of the officer’s duties. The court
of appeals denied the writ, agreeing with Cleveland that the UOF reports are exempt
from disclosure under the Public Records Act, R.C. 149.43, as confidential law-
enforcement investigatory records (“CLEIR”). We reverse the court of appeals’
judgment and remand the case for further proceedings.
I. BACKGROUND
A. Cleveland’s use of UOF reports
{¶ 2} Cleveland’s General Police Order 2.01.05 defines three levels of use
of force—“Level 1,” “Level 2,” and “Level 3”—and requires that a UOF report be
prepared whenever a Cleveland police officer uses force rising to one of the three
levels in the course of the officer’s duties. UOF reports are distinct from police
reports that detail a responding officer’s description of the circumstances of an
incident. They provide a “detailed account” of the use of force, including the reason
for the initial police presence, a specific description of the acts that preceded the
use of force, the level of resistance encountered, and a description of the force used.
Officers who use Level 1 or Level 2 force must complete a UOF report “by the end
of their tour of duty.” When an officer has used Level 3 force, the officer in charge
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of the police division’s designated “force investigation team” must complete the
UOF report.
{¶ 3} General Police Order 2.01.06 requires review of UOF reports through
the chain of command to determine whether a use of force was proper. The
prescribed UOF procedures reflect not just city policy but also the content of a
consent decree reached between the Cleveland police department and the United
States Department of Justice.
{¶ 4} UOF reports are entered into force-tracking software called
IAPro/BlueTeam. The software allows a user to save a report, export the report to
an Excel spreadsheet, or download a PDF of the report.
B. The records requests at issue
{¶ 5} Standifer is a journalist who publishes investigative news articles in
Cleveland Scene, a local newspaper. On September 9, 2020, Standifer emailed to
Cleveland a public-records request for “all reports on use of force incidents between
Jan. 1, 2019 and the date the record is generated.” Cleveland responded by email
on September 23, stating that it had located a responsive record that Standifer could
access on the city’s public-records website. The document was a one-page
spreadsheet that indicated “use of force totals” for the years 2019 and 2020 (up to
September 14).
{¶ 6} Later that day, Standifer informed the city by email that the one-page
spreadsheet was not responsive to her request. Standifer stated that she was seeking
“all individual reports for every instance of use of force from this time period.” The
city responded on October 13 that it was “not required to do a file-by-file review
from 2019 to the present to produce what is a complete duplication of [its] use of
force reports during the period requested.” In that respect, the city told Standifer
that her request was “both vague and overly broad.”
{¶ 7} After additional communication with the city, Standifer submitted
another records request on October 29, 2020, asking for “all reports on use of force
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incidents that occurred on May 30 and June 1, 2020.” The city denied this request
on November 16, stating that “[t]he information requested is part of an open
ongoing investigation and not releasable at this time based on the confidential law
enforcement investigatory record exception in R.C. 149.43(A)(1)(h), (A)(2).”
{¶ 8} On November 18, 2020, Standifer emailed another request, this time
seeking “all use of force reports filed in June 2019.” The city produced some
records in response to that request on December 3 and December 10, including a
list of UOF-matter numbers.
{¶ 9} Later on December 10, Standifer submitted a request for “the files
identified by” the matter numbers on the list the city had provided. On December
16, the city sought clarification regarding the request, which Standifer provided.
On December 26, the city responded that it regarded the request as closed and
advised that Standifer could file a new request.
C. The mandamus action
{¶ 10} On December 31, 2020, Standifer and Cleveland Scene brought a
mandamus action against Cleveland in the Eighth District Court of Appeals.
During mediation, the city disclosed some responsive documents but withheld 87
otherwise responsive documents based on the CLEIR exception.
{¶ 11} The court of appeals granted the city’s motion for summary
judgment and denied the requested writ. It held that the withheld UOF reports were
exempt from disclosure as CLEIR because they relate to law-enforcement matters
and because their disclosure “would create a high probability of” revealing the
identities of uncharged suspects—i.e., the officers who used the force described in
the reports. 2021-Ohio-3100, ¶ 16-17. Standifer and Cleveland Scene appealed to
this court as of right.
II. ANALYSIS
{¶ 12} Appellants bear the burden of showing entitlement to the requested
writ of mandamus by clear and convincing evidence. State ex rel. McCaffrey v.
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January Term, 2022
Mahoning Cty. Prosecutor’s Office, 133 Ohio St.3d 139, 2012-Ohio-4246, 976
N.E.2d 877, ¶ 16. On the other hand, “[e]xceptions to disclosure under the [Public
Records Act] are strictly construed against the records custodian, who has the
burden to establish the applicability of any claimed exception from disclosure.”
State ex rel. Cincinnati Enquirer v. Cincinnati, 157 Ohio St.3d 290, 2019-Ohio-
3876, 135 N.E.3d 772, ¶ 6. We review de novo a court of appeals’ grant of
summary judgment in a mandamus action. State ex rel. Ames v. Portage Cty. Bd.
of Commrs., 165 Ohio St.3d 292, 2021-Ohio-2374, 178 N.E.3d 492, ¶ 11.
A. The CLEIR exception does not apply categorically to the UOF reports
{¶ 13} Appellants argue as their first proposition of law that they have a
clear legal right to the undisclosed UOF reports because those reports “precede any
investigation” and more closely resemble offense or incident reports, which initiate
ordinary criminal investigations, than they do investigatory work product. Thus,
they contend that the CLEIR exception does not apply to these reports.
{¶ 14} R.C. 149.43(A)(1)(h) exempts CLEIR from disclosure as public
records, and R.C. 149.43(A)(2) defines “CLEIR” as “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” one or more of the types of information listed in R.C.
149.43(A)(2)(a) through (d). Accordingly, “[t]he applicability of the [CLEIR
exception] requires, first, that the records pertain to a law enforcement matter * * *
and, second, that the release of the records would create a high probability of
disclosure of any of the four types of information specified.” State ex rel. Ohio
Patrolmen’s Benevolent Assn. v. Mentor, 89 Ohio St.3d 440, 444, 732 N.E.2d 969(2000).
{¶ 15} Appellants argue that the UOF reports cannot fall under the CLEIR
exception because they do not satisfy the first requirement of the CLEIR definition.
They contend that UOF reports are routine reports, that their purpose is “to monitor
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and discipline police officers,” and that they therefore do not pertain to a law-
enforcement matter. They further contend that the reports do not initiate an
investigation into a law-enforcement matter and that a UOF report leads to an
investigation, if ever, only after an internal review of the report by the police
department’s chain of command.
{¶ 16} We have held that “records are not confidential law-enforcement
records if they relate to employment or personnel matters rather than directly to the
enforcement of law.” State ex rel. Morgan v. New Lexington, 112 Ohio St.3d 33,
2006-Ohio-6365, 857 N.E.2d 1208, ¶ 49; State ex rel. Mahajan v. State Med. Bd.
of Ohio, 127 Ohio St.3d 497, 2010-Ohio-5995, 940 N.E.2d 1280, ¶ 30. In support
of their argument that UOF reports are not records “pertain[ing] to a law
enforcement matter,” R.C. 149.43(A)(2), appellants rely heavily on State ex rel.
Natl. Broadcasting Co., Inc. v. Cleveland, 38 Ohio St.3d 79, 526 N.E.2d 786 (1988)
(“NBC I”). In NBC I, a broadcaster sought police records relating to incidents in
which officers used deadly force, claiming that the records it sought were “routine
reports.” Id. at 79. In opposition, the city asserted that the records constituted
CLEIR—in particular, that the records constituted “specific investigatory work
product” under R.C. 149.43(A)(2)(c). We reversed the court of appeals’ denial of
the requested writ and remanded the case for in camera review of the documents.
On “the limited record before this court,” we found that the records at issue were
not investigatory records but, rather, “involve[d] the city’s monitoring and
discipline of its police officers.” NBC I at 83. We also rejected the contention that
the records were “trial preparation records” under R.C. 149.43(A)(4) because “part
of th[e] records [were] gathered in order to satisfy the requirement of General Police
Order No. 22-83.” NBC I at 84.
{¶ 17} Appellants’ reliance on NBC I, however, is undercut by Natl.
Broadcasting Co., Inc. v. Cleveland, 57 Ohio St.3d 77, 566 N.E.2d 146 (1991)
(“NBC II”). On remand following NBC I, the court of appeals broadly ordered
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January Term, 2022
disclosure of the records at issue. The city appealed, and in NBC II, we revisited
our earlier characterization of the records. Whereas the limited evidence in NBC I
led us to characterize the records at issue as “police personnel records,” the
evidence before us in NBC II showed that they more closely resembled “records
compiled pursuant to criminal investigations that police routinely perform when
they investigate crimes.” NBC II at 79. And we observed that neither NBC I nor
State ex rel. Beacon Journal Pub. Co. v. Univ. of Akron, 64 Ohio St.2d 392, 415
N.E.2d 310 (1980) (also relied on by appellants here) “ever established an
automatic, per se exclusion of all routine police criminal investigation from the first
step of the definition of [CLEIR].” (Emphasis sic.) NBC II at 80. Thus, the first
requirement of the CLEIR definition was satisfied in NBC II. We therefore
reversed the court of appeals’ grant of the writ and remanded the case for a
determination of whether any of the records satisfied the second requirement of the
CLEIR definition.
{¶ 18} Considering NBC II, appellants’ reliance on NBC I is unavailing.
See also Ohio Patrolmen’s Benevolent Assn., 89 Ohio St.3d at 445, 732 N.E.2d 969(routine police criminal investigations are not per se excluded from satisfying first
requirement of CLEIR definition). The records at issue here “pertain to a law
enforcement matter,” R.C. 149.43(A)(2), as did the records at issue in NBC II. UOF
reports are records that are required to be created whenever an officer engages in a
Level 1, Level 2, or Level 3 use of force as defined by the police department’s
policy. Under the policy, UOF reports are part of the investigation conducted into
an officer’s use of force during the officer’s law-enforcement duties. Thus, they
pertain to a law-enforcement matter and cannot be characterized as simply a
personnel document. We therefore agree with Cleveland that the UOF reports
satisfy the first requirement of the CLEIR definition. Whether the court of appeals
correctly denied the writ therefore depends on whether the UOF reports satisfy the
second requirement of the CLEIR definition.
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{¶ 19} R.C. 149.43(A)(2) identifies four categories of protected
information that exempt law-enforcement records from disclosure as CLEIR. See
R.C. 149.43(A)(2)(a) through (d). In this case, the court of appeals relied on R.C.
149.43(A)(2)(a), which exempts law-enforcement records the release of which has
a high probability of disclosing “[t]he identity of a suspect who has not been
charged with the offense to which the record pertains.” The court of appeals held
that releasing the UOF reports would create a high probability of disclosing the
identity of the officer who used the force described in each report, whom the court
viewed as an uncharged suspect in the review and possible investigation of a use of
force. 2021-Ohio-3100 at ¶ 17. The court additionally held that redactions of the
reports were impracticable because the information in the reports was intertwined
with the identity of the officers who used force. Id., citing State ex rel. McGee v.
Ohio State Bd. of Psychology, 49 Ohio St.3d 59, 550 N.E.2d 945 (1990).
{¶ 20} We disagree with the court of appeals’ application of the uncharged-
suspect provision of R.C. 149.43(A)(2). For one thing, the characterization of an
officer who used force as a “suspect” is dubious, given that the UOF report is
submitted prior to any determination that a use of force merits an administrative or
criminal inquiry. Indeed, the use of force by a police officer in the course of the
officer’s duties may not be wrongful, and, in such a case, the UOF report may not
necessarily lead to any further criminal investigation. The court of appeals’
rationale, however, necessarily assumes that all officers who use force are per se
criminal suspects. Though we do not foreclose the possibility that a UOF report
could, in certain circumstances, identify an uncharged suspect and thus be exempt
from disclosure as CLEIR, we decline to recognize a per se rule that UOF reports
always do so. See Ohio Patrolmen’s Benevolent Assn. at 446 (finding that CLEIR
exception did not apply, because criminal proceedings were not pending or highly
probable; review of the records indicated that “crimes may not have occurred”).
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{¶ 21} It is true that “the absence of pending or highly probable criminal
charges is not fatal to the applicability of the uncharged-suspect exemption.” Id.,89 Ohio St.3d at 447, 732 N.E.2d 969. So in some cases, a UOF report could be
exempt from disclosure to protect the identity of an officer who used force as an
uncharged suspect. But it does not follow that UOF reports should be categorically
treated as CLEIR. We decline to adopt the court of appeals’ rationale that an officer
who used force is an uncharged suspect in every case in which a UOF report
describing that force is prepared.
{¶ 22} In defending the court of appeals’ decision, Cleveland argues that
other provisions of R.C. 149.43(A)(2) apply to UOF reports. Specifically,
Cleveland contends that disclosing the reports would reveal (1) the identity of
witnesses who have been or might be promised confidentiality, (2) information that
would compromise investigations, and (3) information that could endanger the
physical safety of others. See R.C. 149.43(A)(2)(b), (c), and (d). In these
arguments, Cleveland paints with broad strokes in its characterization of the
information in UOF reports and does not point to specific information in them to
which these provisions of R.C. 149.43(A)(2) apply. While particular UOF reports
might include one or more of these elements and therefore fall within the CLEIR
exception, Cleveland has not demonstrated that all the requested UOF reports
categorically qualify as one or more of the types of information listed in R.C.
149.43(A)(2). As the proponent of the CLEIR exception, Cleveland has the burden
to prove that the exception applies to specific information contained in the reports.
See State ex rel. Rocker v. Guernsey Cty. Sheriff’s Office, 126 Ohio St.3d 224,
2010-Ohio-3288, 932 N.E.2d 327, ¶ 7. It has not met that burden.
B. We need not reach appellants’ second proposition of law
{¶ 23} As their second proposition of law, appellants argue that the court of
appeals erroneously allowed Cleveland’s consent decree with the United States
Department of Justice to override the disclosure requirement of the Public Records
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Act. Because we conclude that appellants prevail on their first proposition of law,
we need not reach their second proposition of law.
III. MOTION FOR ORAL ARGUMENT
{¶ 24} Appellants have requested oral argument. Pursuant to S.Ct.Prac.R.
17.02(A), “[o]ral argument in a direct appeal is discretionary.” State ex rel. Scott
v. Streetsboro, 150 Ohio St.3d 1, 2016-Ohio-3308, 78 N.E.3d 809, ¶ 9. The factors
that inform this court’s exercise of our discretion in considering whether to grant
oral argument are “whether the case involves a matter of great public importance,
complex issues of law or fact, a substantial constitutional issue, or a conflict among
the courts of appeals.” Id.{¶ 25} We deny oral argument. The parties’ briefing provides an adequate
basis for considering the legal issues related to the CLEIR exception. And as for
appellants’ argument that their counsel “is a pro bono law clinic within a law
school” and that oral argument “would provide students with valuable opportunities
in preparing for, observing, or participating in oral argument,” this rationale does
not relate to any of our bases for granting oral argument.
IV. CONCLUSION
{¶ 26} For the foregoing reasons, we reverse the judgment of the court of
appeals and remand the case for further proceedings. On remand, the court of
appeals shall (1) direct Cleveland to review any responsive records that it has
withheld in order to determine what portions should be redacted, (2) grant a writ of
mandamus that requires Cleveland to disclose the responsive records, subject to
appropriate redactions, either by giving Standifer access to the actual records as
maintained by Cleveland or by making available accurate and usable copies of the
records as they are maintained, and (3) decide whether appellants are entitled to
statutory damages and, if so, determine the amount of such damages.
Judgment reversed
and cause remanded.
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O’CONNOR, C.J., and KENNEDY, FISCHER, DEWINE, DONNELLY, and
STEWART, JJ., concur.
BRUNNER, J., concurs in part and dissents in part and would have granted
the request for oral argument so that the parties and the public would have had the
opportunity to air and to hear the parties’ arguments concerning this case involving
police use of force.
_________________
First Amendment Clinic, Kramer Law Clinic Center, Case Western Reserve
University School of Law, Andrew Geronimo, and Sara Coulter, for appellants.
Barbara Langhenry, Cleveland Director of Law, and William M. Menzalora
and Timothy J. Puin, Assistant Directors of Law, for appellee.
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