THE STATE EX REL. CASTER v. THE CITY OF COLUMBUS ET AL.
No. 2014-1621
SUPREME COURT OF OHIO
December 28, 2016
2016-Ohio-8394
PFEIFER, J.
Submitted April 20, 2016
[Until this оpinion 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—
(No. 2014-1621—Submitted April 20, 2016—Decided December 28, 2016.)
IN MANDAMUS.
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
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. Rеspondent 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.
{¶ 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
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.
{¶ 9} In November 2013, Caster himself submitted a records request to DOP by certified mail, explaining that there were no proceedings ongoing in Sаleh‘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
{¶ 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
{¶ 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.
{¶ 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
LAW AND ANALYSIS
Mandamus
{¶ 14} “Mandamus is the appropriate remedy to compel compliance with
{¶ 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
“Confidential law enforcement investigatory reсord” 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 rеfile 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
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
{¶ 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
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
{¶ 22} The court noted that criminal defendants were seeking records through public-records requests that they could not procure through
{¶ 23} The nature of former
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 whileR.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
{¶ 25} One area where the court chose to draw a bright line was in regard to the specific-investigatory-work-product exception in
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,
{¶ 27} In addressing the confidential-law-enforcement-investigatory-record exception in
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 gathеred, 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
[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 оf 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.
(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
{¶ 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
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 toR.C. 149.43 and is specifically exempt from release as a trial preparation record in accordance withR.C. 149.43(A)(4) .
Id. at 432.
{¶ 31} This court then discussed how long records remain exempt under
{¶ 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
[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 рroceedings, 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.
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
{¶ 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 proсeedings 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
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
{¶ 36} This court reasoned—after declaring that only
what was available at the original trial pursuant to former
{¶ 37} But
{¶ 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
{¶ 39} Thus, changes to
Revisiting Steckman and WLWT-TV5
{¶ 40} ”
{¶ 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
{¶ 42} We should also be сoncerned 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
{¶ 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,
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
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
source‘s or witness‘s identity,” pursuant to
Attorney fees, statutory damages, and court costs
{¶ 49} We now consider Caster‘s request for attorney fees, statutory damages, and court costs. Former
{¶ 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
January Term, 2016specifically 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.
{¶ 52} Because Caster transmitted his request for public records by certified mail, he is entitled to statutory damages pursuant to former
{¶ 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
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 with
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,
{¶ 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 decisiоn 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
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,
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.”
{¶ 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
{¶ 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
- 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;
- * * *
- * * * [A]ll laboratory or hospital reports, books, papers, documents, photographs, tangible objects, buildings, or places;
* * * [R]esults of physical or mental examinations, experiments or scientific tests; - Any evidence favorable to the defendant and material to guilt or punishment;
- 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;
- 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.
{¶ 61} With the move toward open-file discovery,
{¶ 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
{¶ 63} Recognizing that the concern we described in Steckman no longer exists given the modifications to
{¶ 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, 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
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
The Trial-Preparation-Records Exception
{¶ 67} While I believe that
{¶ 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.
{¶ 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 antitheticаl 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. 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
{¶ 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 the 2010 revisions to
{¶ 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
{¶ 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
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
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.