THE STATE EX REL. STANDIFER ET AL., APPELLANTS, v. THE CITY OF CLEVELAND, APPELLEE.
No. 2021-1280
SUPREME COURT OF OHIO
October 20, 2022
Slip Opinion No. 2022-Ohio-3711
[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 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. 2022-OHIO-3711
[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
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,
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
{¶ 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 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
{¶ 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.
{¶ 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. 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}
{¶ 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 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
{¶ 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,”
{¶ 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 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 (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,”
{¶ 19}
{¶ 20} We disagree with the court of appeals’ application of the uncharged-suspect provision of
{¶ 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. 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
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 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.
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.