By John C. Greiner
The Ohio Supreme Court issued a 7-0 decision on Tuesday September 3 that does not establish any new public records law, but does remind police departments throughout Ohio that the Public Records Act means what it says. And while it’s unfortunate that an obstinate State Highway Patrol forced a public records requester to prosecute the case to the Ohio Supreme Court, it is good to see a positive result.
The case arose when Mark Miller of Cincinnati requested records from the State Highway Patrol in 2011. According to the Supreme Court decision, while the patrol provided some of the materials requested, it didn’t release others Miller believed to be public record.
The highway patrol send a March 2012 letter, in which it contended that certain records were “investigatory work product” for an ongoing criminal investigation and, for that reason, exempt from disclosure under the public records law. Specifically, the highway patrol refused to release impaired-driver reports and video and audio recordings from Trooper Joseph Westhoven’s cruiser related to a traffic stop, detention, arrest, and transport of Ashley Ruberg on July 15 or July 16, 2011.
Miller filed a mandamus action in the Twelfth Appellate District, seeking a writ to compel the highway patrol to produce the withheld records. Apparently, however, Miller’s case was riddled with procedural problems, contradictory claims and an inaccurate timeline. The Twelfth District concluded that Miller failed to establish a clear legal right to the records.
Miller then appealed to the Ohio Supreme Court. In an original action initiated in the court appeals, an unsuccessful party has an automatic right to appeal to the Supreme Court.
In its decision, the Supreme Court acknowledged the problems with Miller’s case, but it also noted that despite those defects, Miller established the critical elements – a request for records and a refusal to produce them. The court also ruled that the highway patrol failed to satisfy its burden of establishing that the claimed exemption applied.
The highway patrol told Miller that the withheld records were exempt because they were “investigatory work product.” But the Supreme Court pointed out a slight problem with that assertion – no such exemption exists. Apparently, the highway patrol intended to invoke the “confidential law enforcement investigatory records” exemption set out in R.C. 149.43(A)(1)(h). But the “CLEIR” exemption requires more than the incantation of “ongoing investigation.”
The Supreme Court correctly pointed out that the CLEIR exemption is a two part standard. The party claiming the exemption is required to establish first that the record pertains to an ongoing “law enforcement matter of a criminal, quasi-criminal, civil, or administrative nature” and second that disclosure of the record would create “a high probability of disclosure” of one of four kinds of information specified in the statute.
In this case, the highway patrol never even addressed the second part of the test in its response to Miller. When pressed in the mandamus suit, however, it contended that the release of the records would create a high probability of disclosure of “specific investigatory work product.” This argument seems suspect, however, given that the withheld information was related to an initial incident report. In light of clear precedent establishing that routine incident and offense reports are not part of “specific investigatory work product” the highway patrol’s after the fact justification sounds like a pretext.
The Supreme Court agreed, sending the case back to the appellate court and ordering that the highway patrol essentially put up or shut up. The Supreme Court ordered the Twelfth District to review the records and determine if they would in any way create a “high probability of disclosure” of “specific investigatory work product” – an analysis the highway patrol should have engaged in before it denied the records.
The Supreme Court’s holding is welcome, but frustrating. The facts presented here – specifically the highway patrol’s arrogant and high handed withholding of the requested records – happens on a daily basis throughout the state. Police departments and records clerks routinely deny requests under the mythical “ongoing investigation” exemption without pointing to any evidence (because in 99.9% of the cases none exists) that the production would disclose any protected information. In many cases, the requesting party lacks the knowledge or the resources to challenge the illegal conduct.
The Miller case did not discuss statutory damages or attorney fees, presumably because that issue was not ripe. Ideally, the Twelfth Appellate District will not only order the highway patrol to provide the records, but also pay every penny of Miller’s attorney’s fees. The facts here cry out for it.
John C. Greiner is a partner with GraydonHead in Cincinatti. He practices in the areas of commercial litigation and First Amendment law.