More than 700 pages of documents turned over to the Ohio Bureau of Criminal Investigation (BCI) to help locate more than $8,000 in missing money orders for drug busts did not need to be provided to a local newspaper. The records were “specific investigatory work product,” a divided Twelfth District Court of Appeals ruled.

The appellate court denied a writ of mandamus filed by the Community Journal, North Clermont, after the BCI rejected its public records request, but turned over redacted public records to the newspaper in August 2014. Prior to the release, the Journal filed a writ in January 2014 to obtain the records. The Ohio Attorney General’s office, after announcing its investigation concluded, provided the redacted version and sought to have the court rule the writ moot. In a December 31, 2014, 2-1 decision, the court sided with the attorney general concluding the BCI did not have to turn over any of its investigatory file to the Journal, not even a redacted version.

The Journal, part of the Gannett Publishing Company, reported in September 2014 that the Hamilton County Sheriff’s Office has taken over the investigation of the property room. The Township Police now believe $15,000 to $17,000 in money orders and narcotics evidence are missing. The BCI sent its report on the matter to the Clermont County’s Prosecutor’s Office in June 2014.

The investigation was initially launched in August 2013 when the Clermont County’s Sheriff Office and the Goshen Township police chief separately e-mailed the BCI to request assistance in investigating the missing property. According to the appeals court, BCI Special Agent Karen Rebori received two sets of documents from the police department and she “assembled, compiled, and maintained” the records for her investigation.

Two days after Agent Roberi received the records, the Journal made a request to inspect all records “created, received, or sent by representatives of Goshen Township” concerning the missing evidence or property.

The BCI rejected the request citing R.C. 149.43(A)(1)(h), an exemption to the Ohio Public Records Act, deeming all the records received from the police were confidential law enforcement investigatory records. The section of the law provides four specific exemptions and BCI cited two exemptions. First, the release could create the high probability of revealing the identity of a suspect who has not been charged with an offense, and the second, the records were “specific investigatory work product.”

The Journal argued the documents could not fit the specific investigatory work product exemption because the BCI did not create any of the documents and does not know when the documents were created. The newspaper said the BCI file contains information that were the Police Department’s public records and cannot convert them into non-public records. The newspaper asked the court to order the BCI to go through the file and release the public records.

Writing the majority opinion, Judge Stephen W. Powell said the court is not deciding whether the records when held by the police department were public or not, but rather if the information assembled by the BCI to conduct its investigation constitute public records. He cited the Ohio Supreme Court’s State ex rel. Steckman V. Jackson (1994) decision that first supplied Ohio courts with a definition of “specific investigatory work product.” The case said the work product is any “notes, working papers, memoranda, or similar materials prepared by attorneys [here, by law enforcement officials] in anticipation of litigation.” The decision further states the definition is broad enough to include any records “compiled” and any information “assembled” by law enforcement in connection with a probable criminal proceeding.

Judge Powell noted that Agent Rebori compiled, assembled and maintained the records for her investigation of the police department. “Consequently, the fact that the BCI compiled and assembled the documents is sufficient basis to conclude the documents are ‘specific investigatory work product,’” he wrote.

Judge Powell pointed to another public records request case decide by the Supreme Court, State ex rel. Morgan v. New Lexington (2006), to acknowledge that certain documents created by the city and turned over to the BCI to investigate a city employee are public records. But he said the distinction between that request and the Journal’s is the request was to the city, not the BCI

“Consequently, we find all of the requested records held by BCI prior to the conclusion of its criminal investigation were properly withheld from the Journal as the documents were not ‘public records’ subject to disclosure under the Public Records Act,” he wrote.

Judge Michael E. Powell concurred in the decision.

Concurring in part and dissenting in part, Judge Robert A. Hendrickson indicated he would not find the records request writ moot and would remand the matter to a trial court to determine which records could be withheld and which were required to be turned over. Judge Hendrickson argued the majority too narrowly construes the definition of public records and that more recent Ohio Supreme Court interpretations make the documents public records.

Judge Hendrickson maintained the majority “ultimately” held all 700 documents were not public records under R.C. 149.01(G), which provides a definition as to what constitutes a record. He noted the definition includes any document “created or received by” a public office, and the Supreme Court has determined records become public records once a government receives and relies upon them.

Citing State ex rel. Cincinnati Enquirer v. Ronan (2010), the materials received by the BCI became public records once the BCI received them and Agent Roberi relied on them to conduct her investigation.

“Once the BCI accepted the request from the Clermont County Sheriff’s Office and the Goshen Township Police to investigate the missing property from the Goshen Police Department by receiving and reviewing the records, all of the records fell within the definition of ‘records’ under R.C 149.01(G). Also, without the records provided by Goshen Police Department, the BCI could not perform its preeminent or primary function of investigating criminal activity of intercounty concern,” he wrote.

Judge Hendrickson indicated a trial court should hear arguments as to which portions of the file should be exempt, and also questioned the exemption regarding the probability of releasing the identities of uncharged suspects. He noted the BCI ultimately provided the Journal with redacted reports that concealed the identity of potential suspects and questioned why that could not have been provided when the newspaper made the request.

State ex. Rel. Community Journal v. Reed, 2014-Ohio-5745
Opinion: http://sc.ohio.gov/rod/docs/pdf/12/2014/2014-ohio-5745.pdf
Original Action in Mandamus
Judgment: Writ Denied
Date of Judgment Entry on Writ: December 31, 2014

Please note: Opinion summaries are prepared by the Office of Public Information for the general public and news media. Opinion summaries are not prepared for every opinion, but only for noteworthy cases. Opinion summaries are not to be considered as official headnotes or syllabi of court opinions. The full text of this and other court opinions are available online.

PDF files may be viewed, printed, and searched using the free Acrobat^® Reader
Acrobat Reader is a trademark of Adobe Systems Incorporated.