Ohio's Twelfth District Court of Appeals Takes Another Bite Out of Ohio's Public Records Act

public records2The walls seem to be closing in on Ohio's Public Records Act in southwest Ohio. The Twelfth District Court of Appeals refused to order disclosure of hundreds of pages of documents regarding missing property from the Goshen Township Police Department that were turned over to the Ohio Bureau of Criminal Identification and Investigation ("BCI"). The Community Journal, North Clermont v. Reed, 2014-Ohio-5745 (Dec. 30, 2014). This is the court's second recent blow to the Act. See Miller v. Ohio State Highway Patrol, 2014-Ohio-2244 (finding, on remand from the Ohio Supreme Court, that police cruiser cam videos of sobriety tests are not public records).

In August 2013, the Clermont County Sherriff's Office and the Goshen Township Chief of Police sought BCI's help in investigating potential fraud by local law enforcement. BCI received documents from the police that it "assembled, compiled and maintained" for its investigation. A reporter for The Community Journal, North Clermont contacted BCI and requested permission to inspect the documents sent by the police department. BCI denied the request citing Ohio Rev. Code ¶149.43(A)(1)(h), the confidential law enforcement investigatory records exception. Specifically, BCI argued that the records were part of an ongoing investigation and release of the record would create a high probability of disclosure of specific investigatory work product.

The newspaper subsequently filed a writ of mandamus against BCI. After several months of litigation, the investigation concluded and BCI released most of the requested records. BCI filed a notice that the issue at the heart of the lawsuit was moot. The newspaper argued that "the action is not moot because the issue is 'capable of repetition yet evading review.'" ¶26-27 (explaining the exception to the general rule that providing the requested records renders the mandamus claim moot). The appellate court found that, although the limited exception to the mootness doctrine did not apply, "the production of requested documents does not . . . moot a claim for [statutory] damages." ¶29. Therefore, the court considered whether BCI violated the Act when it initially refused to release the requested information under the specific investigatory work product exception.

In a 2-1 decision, the appellate court rejected the newspaper's arguments. First, under an extremely broad interpretation of prior Ohio Supreme Court caselaw, the court found that since BCI "compiled" and "assembled" the records from the police department (read: received and put in a file), the records were "specific investigatory work product."

Second, under an extremely narrow interpretation of "the precise question" before the court, the Twelfth District found that the "documents BCI received from the Police Department were not BCI's 'public records' as the documents were not kept by BCI to 'document the organization . . . ." ¶38. Since the documents "were never BCI's 'records,'" the court found that the requested documents "do not fall under the ambit of the Public Records Act and do not need to be disclosed." Id. Wait, what? If the requested documents weren't public records to begin with, then why did the court consider the applicability of the investigatory work product exception?

To recap, the appellate court (1) unnecessarily opened a gaping hole in the Act with its far-reaching interpretation of what constitutes "specific investigatory work product," and (2) distinguished (disregarded?) longstanding Ohio law that provides that, "[o]nce clothed with the public records cloak, the records cannot be defrocked of their status." Cincinnati Enquirer v. Hamilton Cty., 75 Ohio St. 3d 374, 378 (1996). Accord: Morgan v. New Lexington, 112 Ohio St. 3d 33, 2006-Ohio-6365 (refusing to find that records sent by the city to BCI fall under the confidential law enforcement exception). While Judge Hendrickson's partial dissent offers some refreshing analysis, it may be too little too late - at least until these issues are before the Ohio Supreme Court.

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Erin Rhinehart | Faruki Partner