Law enforcement does not have an absolute privilege to prevent disclosure of criminal investigatory records in a civil lawsuit, the Ohio Supreme Court ruled today.

The court determined that a Cuyahoga County Internet sweepstakes cafe was entitled in a civil action to certain records stemming from a local criminal investigation into the cafes.

In the court’s 6-1 decision, Justice Sharon L. Kennedy wrote that cafe owner J & C Marketing’s need for the investigatory documents outweighed the interests of the Cuyahoga County prosecutor to keep that information confidential.

The court reaffirmed the balancing test it adopted in a 1988 decision and upheld the Eighth District Court of Appeals’ judgment in this case.

County Investigates Cafes
Two Cuyahoga County cafes owned by J & C Marketing provided four minutes of Internet access for $1 and claimed to offer free sweepstakes entries on the computers based on the number of minutes customers bought. The company stated that customers were not required to make a purchase to enter the sweepstakes contest.

In 1988, the Ohio Supreme Court adopted a balancing test to weigh the government’s interest in protecting confidential information against the needs of a civil litigant asking for materials through discovery.

In 1988, the Ohio Supreme Court adopted a balancing test to weigh the government’s interest in protecting confidential information against the needs of a civil litigant asking for materials through discovery.

County law enforcement began investigating the cafes to determine whether they promoted illegal gambling. In May 2012, 10 individuals and seven companies were indicted on charges that they offered “free” online sweepstakes as a cover for illegal gambling.

The county prosecutor also sent letters to owners of other Internet cafes threatening criminal prosecution unless they stopped the sweepstakes offers. In response, J & C Marketing closed its cafes.

Civil Suit Filed
Five days later, the company filed a civil lawsuit arguing its business was not gambling because customers did not have to pay to play the online sweepstakes games, and asked the trial court to stop the prosecutor from trying to apply gambling laws to its cafes. The company then requested discovery of material from county law enforcement about the ongoing criminal investigation into the cafes.

After reviewing documents in camera, the trial court ordered the prosecuting attorney to provide the reports describing the undercover investigation and findings, certain e-mail correspondence, and other specifics about the ongoing criminal probe in response to questions submitted by the company in the lawsuit.

To prevent the release of this information, the prosecutor appealed. While the Eighth District decided that emails between investigators and the prosecuting attorney’s office were protected by the law enforcement investigative privilege and as attorney work product, the appeals court ruled that the investigative reports had to be provided but with the names of undercover officers redacted. The court also required the prosecutor to respond to the company’s interrogatories. The prosecuting attorney appealed to the Ohio Supreme Court.

Supreme Court’s Reasoning
Justice Kennedy noted that a plaintiff can obtain investigatory records only if it shows a compelling need for the information. In Henneman v. Toledo (1988), the Ohio Supreme Court adopted a balancing test to weigh the government’s interest in protecting confidential information against the needs of a civil litigant asking for materials through discovery.

“The interests of both parties are significant here,” Justice Kennedy wrote. “The prosecuting attorney must protect the safety of informants and others identified in the investigation, safeguard the integrity of his investigative processes, and guard against nuisance lawsuits that are brought merely to gain access to investigative information. But [J & C Marketing’s] interests in obtaining discovery are also strong, because by issuing the cease-and-desist letter, the prosecuting attorney in effect shut down [the company’s] business, even though the business had never even been charged with violating the law.”

Justice Kennedy reasoned that the prosecutor’s argument for an absolute privilege preventing release of files related to open criminal investigations during discovery in a civil suit “simply has no support in the law.”

The Supreme Court agreed with the appellate court that J & C Marketing’s need for some investigative records for its civil case outweighed law enforcement’s interests in preventing the release of those materials.

Votes
Joining the majority opinion were Chief Justice Maureen O’Connor and Justices Paul E. Pfeifer, Judith Ann Lanzinger, Sharon L. Kennedy, Judith L. French, and William M. O’Neill. Justice Terrence O’Donnell dissented.

Dissenting Opinion
Justice O’Donnell noted that the confidentiality of law enforcement investigations is similar to the need for secrecy in grand jury proceedings and that witnesses protected by the law enforcement investigatory privilege are those who would be asked to testify in front of a grand jury. He therefore reasoned that the same standard for obtaining grand jury testimony should apply when a civil litigant seeks discovery of records protected by the law enforcement investigatory privilege.

“Information protected by the law-enforcement investigatory privilege should be protected from disclosure in civil litigation unless the party seeking discovery demonstrates a particularized need for the information, that the ends of justice require disclosure to ensure a fair trial, and that the need for discovery outweighs the public interest in confidentiality,” he wrote.

Because the prosecutor showed that the materials J & C Marketing sought in discovery were shielded by the privilege, the burden should have shifted to the company to meet these three criteria, which it has not done, Justice O’Donnell added. He pointed out that the company dismissed its lawsuit in January 2014 and did not file a brief with the Supreme Court in this case.

“At the time of the discovery requests, the police investigations remained ongoing, and even now, the public retains a substantial interest in preserving the integrity of undercover operations and protecting the confidentiality and safety of undercover officers, informants, and witnesses,” he explained.

Justice O’Donnell would have barred discovery of the investigatory records in this case and reversed the appeals court’s judgment.

2013-1963. J & C Marketing L.L.C. v. McGinty, Slip Opinion No. 2015-Ohio-1310.

View oral argument video of this case.

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