Narciso v. Powell Police Dep't, Case No. 2018-01195PQ

• Decision Date: 22 October 2018
• Docket Number: Case No. 2018-01195PQ
• Citation: 2018 Ohio 4590
• Parties: DEAN NARCISO Requester v. POWELL POLICE DEPARTMENT Respondent
• Court: Ohio Court of Claims

2018 Ohio 4590

DEAN NARCISO Requester v. POWELL POLICE DEPARTMENT Respondent

Case No. 2018-01195PQ

Court of Claims of Ohio

To S.C. Reporter November 14, 2018

October 22, 2018

Special Master Jeffery W. Clark

REPORT AND RECOMMENDATION

{¶1} Ohio's Public Records Act, R.C. 149.43, provides a remedy for production of records under R.C. 2743.75 if the court of claims determines that a public office has denied access to public records in violation of R.C. 149.43(B). The policy underlying the Act is that "open government serves the public interest and our democratic system." State ex rel. Dann v. Taft, 109 Ohio St.3d 364, 2006-Ohio-1825, 848 N.E.2d 472, ¶ 20. Therefore, the Act is construed liberally in favor of broad access, and any doubt is resolved in favor of disclosure of public records. State ex rel. Glasgow v. Jones, 119 Ohio St.3d 391, 2008-Ohio-4788, 894 N.E.2d 686, ¶ 13.

{¶2} On July 24, 2018, requester Dean Narciso, a reporter for the Columbus Dispatch, requested "information related to the domestic violence investigation or report between Courtney and Zachary Smith from October, 2015" from respondent Powell Police Department (Powell PD). Powell PD promptly provided Narciso with copies of an incident run sheet and two pages of the Ohio Uniform Offense Report form related to an October 25, 2015 incident. (Response, Brief at 2-3; Complaint at 1-3.) On August 10, 2018, Powell PD received a second request from Narciso seeking "an opportunity to inspect or obtain copies of public records that pertain to the case file of the Oct. 24 [sic], 2015 domestic violence investigation related to Zach and Courtney Smith, including all audio, transcripts of interviews, photographs and other evidence." (Response, Brief at 3.) This request included "the same case file information for a menacing investigation in November, 2015." (Complaint at 8.) Counsel for Powell PD responded that aside from records previously provided, all requested records were excepted from disclosure as confidential law enforcement investigatory records (CLEIRs), specifically as records that would reveal the identity of an uncharged suspect. R.C. 149.43(A)(2)(a). (Complaint at 8-9; Response, Brief at 3-4.)

{¶3} On August 15, 2018, Narciso filed a complaint pursuant to R.C. 2743.75 alleging denial of access to public records by Powell PD in violation of R.C. 149.43(B). On August 22, 2018, the court was notified that the case had not been resolved in mediation. On September 6, 2018, Powell PD filed its answer. (Response.) On September 28, 2018, Narciso filed a reply. On October 2, 2018, Powell PD filed its response to an order of September 13, 2018 (Response to Order), and has filed a complete and unredacted copy of the withheld records under seal (Sealed Records).

{¶4} Powell PD asserts that: 1) all the withheld records are exempt as having a high probability of revealing the identity of an uncharged suspect, 2) release of parts of the records would disclose information that would endanger the physical safety of a crime victim or witness, 3) some records are subject to a constitutional right of privacy, and 4) any items that were not actually used to document the investigation are non-records.¹

Burdens of Proof

{¶5} In an action to enforce Ohio's Public Records Act (PRA), the burden is on the requester to prove an alleged violation. In mandamus enforcement actions,

[a]lthough 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. Caster v. Columbus, 151 Ohio St.3d 425, 428, 2016-Ohio-8394, 89 N.E.3d 598, ¶ 15. Entitlement to relief under R.C. 2743.75 must likewise be established by clear and convincing evidence. Hurt v. Liberty Twp., 5th Dist. Delaware No. 17CAI050031, 2017-Ohio-7820, ¶ 27-30.

{¶6} If a public office asserts an exception² to the Public Records Act as the basis for withholding records, the burden shifts to the public office to establish its applicability:

Exceptions to disclosure under the Public Records Act, R.C. 149.43, are strictly construed against the public-records custodian, and the custodian has the burden to establish the applicability of an exception. * * * A custodian does not meet this burden if it has not proven that the requested records fall squarely within the exception.

State ex rel. Cincinnati Enquirer v. Jones-Kelley, 118 Ohio St.3d 81, 2008-Ohio-1770, 886 N.E.2d 206, ¶ 10. See State ex rel. Cincinnati Enquirer v. Pike Cty. Coroner's Office, 153 Ohio St.3d 63, 2017-Ohio-8988, 101 N.E.3d 396, ¶ 15; State ex rel. Nat'l Broad. Co. v. Cleveland, 38 Ohio St.3d 79, 82-83, 526 N.E.2d 786 (1988), paragraph 2 of the syllabus. An exception is a state or federal law prohibiting or excusing disclosure of items that otherwise meet the definition of a "record" of the office, including those enumerated in R.C. 149.43(A)(1). The Act provides a catch-all exception for "[r]records the release of which is prohibited by state or federal law." R.C. 149.43(A)(1)(v).

{¶7} However, the defense that an item is not a record does not assert an exception, and the burden of proof remains with the requester. Thus, when a public office claims that an item is not a "record" of that office,

a requester must establish that they are (1) documents, devices, or items, (2) created or received by or coming under the jurisdiction of CMHA, (3) which serve to document the organization, functions, policies, decisions, procedures, operations, or other activities of the office. See State ex rel. Dispatch Printing Co. v. Johnson, 106 Ohio St.3d 160, 2005 Ohio 4384, 833 N.E.2d 274, ¶ 19.

(Emphasis added.) State ex rel. O'Shea & Assocs. Co., L.P.A. v. Cuyahoga Metro. Hous. Auth., 131 Ohio St.3d 149, 2012-Ohio-115, 962 N.E.2d 297, ¶ 23.³ O'Shea follows Dispatch v. Johnson, where the Court held:

Therefore, in order to establish that state-employee home addresses are records for purposes of R.C. 149.011(G) and 149.43, the Dispatch must prove that home addresses are (1) documents, devices, or items, (2) created or received by or coming under the jurisdiction of the state agencies, (3) which serve to document the organization, functions, policies, decisions, procedures, operations, or other activities of the office. If the Dispatch fails to prove any of these three requirements, it will not be entitled to a writ of mandamus to compel access to the requested state-employee home addresses because those records are not subject to disclosure under the Public Records Act.

(Emphasis added.) Id. at ¶ 19. Thus, the burden is upon the requester to show that disputed items meet the definition of "record" contained in R.C. 149.011(G). But see Hurt v. Liberty Twp. at ¶ 75-78.

Redaction vs. "Inextricably Intertwined"

{¶8} Powell PD claims that the exemptions it asserts, mostly for short items such as names and personal identifiers, are so "inextricably intertwined" with the thousand pages-plus investigatory file that it may withhold the entire file from public view. (Response, Brief at 3-6.) Review of this assertion requires a careful analysis of the content and nature of each document - and does not permit withholding an entire document as "inextricably intertwined" merely because an exempt name was mentioned somewhere in it. State ex rel. Rocker v. Guernsey Cty. Sheriff's Office, 126 Ohio St.3d 224, 2010-Ohio-3288, ¶ 13-14. Axiomatically, the extension of an exemption to surrounding non-exempt material must be as strictly construed against the public office and in favor of disclosure as the underlying exemption. Moreover, courts and recordscustodians may not "create new exceptions to R.C. 149.43 based on a balancing of interests or generalized privacy concerns" so as to withhold records that are plainly non-exempt. State ex rel. WBNS TV, Inc. v. Dues, 101 Ohio St.3d 406, 2004-Ohio-1497, 805 N.E.2d ¶ 30-39. Nor may a public office deny or delay disclosure merely because it is burdensome or inconvenient. See State ex rel. Warren Newspapers v. Hutson, 70 Ohio St.3d 619, 623, 640 N.E.2d 174 (1994). Information documenting the substance of a law enforcement investigation may not be found inextricably intertwined with exempt identifiers solely to conceal unpleasant or embarrassing facts.

{¶9} The purpose of the Public Records Act "is to expose government activity to public scrutiny, which is absolutely necessary to the proper working of a democracy." State ex rel. Whio-Tv-7 v. Lowe, 77 Ohio St.3d 350, 355, 673 N.E.2d 1360 (1997). Further,

[T]he people's right to know includes 'not merely the right to know a governmental body's final decision on a matter, but the ways by which those decisions were reached.' See State ex rel. Gannett Satellite Information Network v. Shirey (1997), 78 Ohio St.3d 400, 404, 1997 Ohio 206, 678 N.E.2d 557, citing White, 76 Ohio St.3d at 419, 667 N.E.2d 1223.

Kish v. Akron, 109 Ohio St.3d 162, 2006-Ohio-1244, 846 N.E.2d 811, ¶ 26. See generally Cwynar v. Jackson Twp. Bd. of Trs., 178 Ohio App.3d 345, 2008-Ohio-5011, 897 N.E.2d 1181, ¶ 21 (5th Dist.). The Supreme Court has "consistently construed the Public Records Act to provide the broadest access to government records." State ex rel. Cincinnati Enquirer v. Winkler, 101 Ohio St.3d 382, 2004-Ohio-1581, 805 N.E.2d 1094, ¶ 5.⁴ Exemptions to this broad access are provided through narrowly construed statutory exceptions, and not through court-created tests concerning policy matters:

See, e.g., State ex rel. Toledo Blade Co. v. Univ. of Toledo Found. (1992), 65 Ohio St.3d 258, 266, 602 N.E.2d 1159 ("It is the role of the GeneralAssembly to balance the competing concerns of the public's right to know and individual citizens' right to keep private certain information that becomes part of the records of public offices. The General Assembly has done so, as shown by numerous statutory exceptions to R.C. 149.43[B], found in both the statute itself and in other parts of the Revised

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