Court to consider if Columbus can deny public access to confidential law enforcement investigatory records until a convict exhaust all possible appeals.

Court to consider if Columbus can deny public access to confidential law enforcement investigatory records until a convict exhaust all possible appeals.

Groups assisting the wrongfully convicted and examining police operations are challenging the Columbus Division of Police’s policy to deny public records access to most of the material in its criminal case files until after the suspect has been acquitted, released from prison, or dies. The Ohio Supreme will hear oral arguments next week on a request by the Ohio Innocence Project (OIP) to force Columbus to turn over the case file of Adam Saleh, who was convicted in 2007 for the murder of Julie Popovich.

Cincinnati attorney Donald Caster, working for the OIP, sought a writ of mandamus from the Supreme Court after Columbus and its police chief, Kimberly Jacobs, repeatedly rejected Caster’s public records requests to review Saleh’s file. The city cited the “confidential law enforcement investigatory records” exemption within R.C. 149.43, known as the Ohio Public Records Act, as the reason for denying the records.

Caster Wants Court to Overturn Prior Opinion
In Caster v. Columbus, Caster states neither he nor OIP represent Saleh, but they sought the files to determine if Saleh’s claim warranted their investigation. OIP states public record access plays a vital role in screening cases, and while it has received 8,000 inmate requests for assistance, it has taken on fewer than 30. Columbus refused to release the criminal file, citing the Ohio Supreme Court’s 1994 State ex rel. Steckman v. Jackson decision where the Court determined the discovery rules for criminal cases, not the Ohio Public Records Act, should determine the scope of public access to records.

Caster explains at the time of the Steckman ruling, the Court noted criminal defendants and inmates had limited access to the information they could request from police and prosecutors that were in their investigatory files. The Court raised a concern that defendants and inmates were making public records requests to circumvent the discovery rules and get information they couldn’t, such as witness statements and investigative reports. Those like Caster, who don’t represent the defendant, aren’t privy to discovery and have no access to the records other than through public record requests.

In 2010, the Court revised Criminal Rule 16 to allow for “open discovery,” which broadly expanded the amount of materials a criminal defendant could request from the state while on trial or during an appeal, and the rule allowed the state to obtain more information than in the past from defense attorneys. Caster argues the change in the rule essentially eliminates the concerns police have about their criminal files, and now the Court should overturn Steckman and allow the public to inspect records once the investigation is closed and a trial begins.

City Following Current Law
Columbus argues that Steckman is the current law, and that the police chief followed the law by denying the records request. The city maintains the bulk of what Caster seeks are considered “specific investigatory work product,” which is a subset of the investigatory records. Work product includes the personal notes, working papers, memoranda, evidentiary findings, and other materials compiled for a homicide prosecution. The city maintains that despite having to turn over those types of records to the accused, the “work product” exemption that bars public access to those records was affirmed by the Court in 1997.

Amicus curiae briefs supporting Caster were filed by two organizations who closely follow public records issues - the national Innocence Network and the Ohio Coalition for Open Government, whose members include Ohio newspapers and broadcasters.

Oral Arguments at Off-Site Court
Attorneys for Caster and Columbus will argue their points before the Supreme Court at Meigs High School in Pomeroy as part of the Court’s Off-Site Court Program. This is the 72nd time the Court will travel outside of Columbus to hear oral arguments.

In addition to the records case, the Court will hear two other cases on Wednesday, April 20, at Off-Site Court. Prior to the Meigs County visit, the Court will hear three cases on Tuesday, April 19 at the Thomas J. Moyer Ohio Judicial Center in Columbus. The Court’s sessions begin at 9 a.m., and the arguments will be streamed live online at sc.ohio.gov and broadcast live on The Ohio Channel.

Previews Available
Along with the brief descriptions below, the Office of Public Information today released previews of the cases.

Cases for Tuesday, April 19
A Trumbull County man on death row received a new sentencing hearing because the trial judge had the prosecutor help draft the opinion issuing the court’s sentence. In Jackson v. State, the inmate appeals the death sentence again imposed by the same judge after the new hearing. He alleges the judge didn’t consider additional mitigating factors presented at the resentencing, and wasn’t fair and impartial.

250 Shoup Mill v. Tax Commissioner centers on a non-profit real estate company that leases property to a Dayton charter school and is owned by a charter-school corporation. The commissioner denied the company’s request for a property-tax exemption because he concluded it’s not a charitable or educational organization. The company maintains it didn’t lease the school property with a “view to profit” so a tax exemption should be given.

A Summit County minor was hospitalized in 2001 and a probate court appointed a conservator over the mother and child. The conservator arranged for the girl to be flown to Florida to live with her uncle. Once she became an adult, she moved back to Ohio and filed a lawsuit against the conservator and hospitals seeking civil damages based on three criminal code violations. In Jacobson v. Kaforey, the Court will consider if a civil lawsuit can be brought based on these specific criminal charge claims.

Cases for Wednesday, April 20
A 16-year-old’s case was moved from juvenile to common pleas court in Montgomery County to try him as an adult on aggravated robbery charges. State laws mandate transfer for older juveniles accused of certain crimes. The juvenile in Aalim v. State contends the statutes are unconstitutional because the juvenile court judge is barred from assessing the individual child and reviewing the circumstances of each case. Juveniles are entitled to a meaningful review of their case by a judge who can determine whether each minor would be responsive to rehabilitation in the juvenile system, he argues.

A woman reported to Cleveland police in 1993 she had been raped by an acquaintance, whom she identified, but an indictment wasn’t obtained until 2013. The prosecutor in State v. Jones is contesting the dismissal of the case. The defendant must offer specific proof without any speculation that unavailable evidence, such as the woman’s clothing or a witness’ testimony, would’ve indicated that he didn’t commit the crime, the prosecutor maintains. Both sides believe the Court’s decision on the standard for reviewing long delays before indictment will affect numerous cases involving the DNA testing of old rape kits.