State ex rel. Caster v. City of Columbus, 2014–1621.

• Decision Date: 28 December 2016
• Docket Number: No. 2014–1621.,2014–1621.
• Citation: 89 N.E.3d 598,151 Ohio St.3d 425,2016 Ohio 8394
• Parties: The STATE ex rel. CASTER v. The CITY OF COLUMBUS et al.
• Court: Ohio Supreme Court

151 Ohio St.3d 425

89 N.E.3d 598

2016 Ohio 8394

The STATE ex rel. CASTER

v.The CITY OF COLUMBUS et al.

No. 2014–1621.

Supreme Court of Ohio.

Submitted April 20, 2016.

Decided Dec. 28, 2016.

The Gittes Law Group, Frederick M. Gittes, and Jeffrey P. Vardaro, Columbus, for relator.

Richard C. Pfeiffer Jr., Columbus City Attorney, and Paula J. Lloyd, Assistant City Attorney, for respondents.

Baker & Hostetler, L.L.P., David L. Marburger, and Melissa A. DeGaetano, urging granting of the writ for amicus curiae Ohio Coalition for Open Government.

Soumyajit Dutta, Cincinnati; and Covington & Burling, L.L.P., Ashley E. Bass, and David J. Shaw, urging granting of the writ for amicus curiae the Innocence Network.

PFEIFER, J.

{¶ 1} This public-records case involves an attempt by an independent entity to obtain certain law-enforcement records concerning a convicted criminal defendant whose direct appeals ended more than four years prior to the making of the request for public records. We hold that the exception from the required disclosure of public records set forth in R.C. 149.43(A)(2)(c) for specific investigatory work product does not extend beyond the completion of the trial of the underlying criminal case at issue. We grant the request for a writ of mandamus, and we order other relief as stated below.

FACTUAL AND PROCEDURAL BACKGROUND

{¶ 2} Relator, Donald Caster, is an Ohio attorney engaged by the Ohio Innocence Project ("OIP"), an organization whose mission is to identify, investigate, and litigate cases in which persons may have been wrongfully convicted of serious crimes. Respondent Kimberley Jacobs is Chief of the Division of Police ("DOP") of respondent city of Columbus. Caster asserts that respondents have refused to provide copies of certain requested records.

{¶ 3} As part of an independent investigation into the 2007 murder conviction of Adam Saleh, Caster requested the police records related to the arrest and investigation of Saleh. In response, DOP made a blanket rejection of this request, citing State ex rel. Steckman v. Jackson, 70 Ohio St.3d 420, 639 N.E.2d 83 (1994), which held that "information assembled by law enforcement officials with a probable or pending criminal proceeding is, by the work product exception found in R.C. 149.43(A)(2)(c), excepted from required release as said information is compiled in anticipation of litigation," id. at 435, 639 N.E.2d 83. DOP stated that no records would be produced until the "completion" of Saleh's criminal case, even though all appeals had been exhausted.

{¶ 4} The facts underlying the records request are as follows. In 2007, Saleh was convicted of the murder, kidnapping, and attempted rape of Julie Popovich and tampering with evidence; he was sentenced to 38 years to life in prison. The Tenth District Court of Appeals affirmed the convictions. This court declined jurisdiction in July 2009. State v. Saleh, 122 Ohio St.3d 1457, 2009-Ohio-3131, 908 N.E.2d 946. No proceedings are currently pending regarding the convictions in any court, nor were they between September 2013 and the present.

{¶ 5} OIP is engaged in an independent investigation into Saleh's convictions to determine whether he was wrongly convicted. Neither Caster nor OIP currently represents Saleh or any member of his family as a client. OIP cannot and does not intervene in every case it reviews; rather, it intervenes in a small percentage of those cases, and its efforts have led to the exoneration of defendants in a number of cases. OIP requests public records in some cases to determine whether a defendant is a candidate for its intervention and in some cases to determine whether there may be viable alternative suspects in cases in which an inmate appears to have been wrongfully convicted. OIP will determine whether to enter into an attorney-client relationship with Saleh only after determining whether there is evidence indicating that Saleh was wrongfully convicted.

{¶ 6} In a letter dated September 5, 2013, OIP law-student fellows, at Caster's direction, made a public-records request of DOP for "a copy of any police records related to the arrest and subsequent investigation" of Saleh for the crimes involving Popovich, including "medical records, police reports, investigation notes, evidence reports, and any other materials compiled by the Columbus Division of Police."

{¶ 7} DOP responded with a letter dated September 9, 2013, rejecting the request. Citing R.C. 149.43(A)(1)(h), which excepts from disclosure under the Public Records Act ("PRA") "confidential law enforcement investigatory records" (sometimes called "CLEIRs"), the letter stated:

CLEIRS Exception: A Public Office may withhold any records that pertain to a Law Enforcement matter of criminal, quasi-criminal, civil, or administrative nature and that, if released, would create a high probability of disclosing any of the following types of information: 1.) Identity of an uncharged suspect, 2.) Identity of a confidential source, 3.) Investigatory techniques or procedures, 4.) Investigatory work product or 5.) Information that would endanger the life or physical safety of Law Enforcement personnel, a crime victim, a witness, or a confidential source. * * * State ex rel. Steckman v. Jackson, 70 Ohio St.3d 420 [.]

In accordance with this section, the Columbus Division of Police, in co-operation with the Franklin County Prosecutor's Office, will supply copies of records from this case, upon completion of the criminal case. * * * Your current request for public record(s) has been closed and cleared in our files. Please feel free to re-file your request after the criminal investigation and all appeals have been exhausted.

(Boldface sic.)

{¶ 8} In October 2013, Caster directed the law students to resubmit the public-records request, and they did so. DOP responded the same day with a letter virtually identical to the one sent in September. Again, DOP provided no records in response to the request.

{¶ 9} In November 2013, Caster himself submitted a records request to DOP by certified mail, explaining that there were no proceedings ongoing in Saleh's case. DOP did not respond, nor did it provide copies of any records.

{¶ 10} Caster filed this original action in mandamus in September 2014, and in October of that year, DOP provided him copies of some records included in the investigative file, specifically the missing-person-preliminary-investigation forms, the Franklin County coroner's report, newspaper articles, a press release, and subpoenas. DOP continues to assert that other requested records are excepted from disclosure under R.C. 149.43(A)(1) and (2)(a) through (d) and under the holdings of Steckman and its progeny.

{¶ 11} Respondents have filed the affidavit of Jonathan Schirg, the supervisor of DOP's public-records unit, who states that he has reviewed DOP's records on the Popovich homicide investigation. He asserts that the file contains confidential law-enforcement investigatory records (including confidential investigatory techniques, procedures, and specific investigatory work product) and "the personal notes, working papers, memoranda, evidentiary findings, and similar materials compiled by the law enforcement investigators in anticipation of criminal proceedings." According to Schirg, the file also includes FBI records and identifies witnesses and confidential sources, the release of which could endanger their lives or physical safety.

{¶ 12} Caster has filed two supporting affidavits. One is from Randy Ludlow, a reporter for the Columbus Dispatch, who attaches to his affidavit a newspaper article he wrote in March 2010 regarding a change in DOP's interpretation of Ohio's public-records laws. Under the newly implemented policy, DOP would no longer release any police investigatory documents while murderers remain in prison. Previously, the article related, investigators, journalists, and relatives of both the victims and the convicted person were permitted—after the convicted person had exhausted appeals—to obtain case records.

{¶ 13} The second affidavit filed by Caster is from Martin Yant, who describes himself as a private investigator. He states that "[a]t least five individuals [he has] assisted were exonerated, and their convictions were reversed, as a direct result of [his] ability to obtain criminal case files held by law enforcement agencies and/or prosecutors through public records requests" under R.C. 149.43.

LAW AND ANALYSIS

Mandamus

{¶ 14} "Mandamus is the appropriate remedy to compel compliance with R.C. 149.43, Ohio's Public Records Act." State ex rel. Physicians Commt. for Responsible Medicine v. Ohio State Univ. Bd. of Trustees, 108 Ohio St.3d 288, 2006-Ohio-903, 843 N.E.2d 174, ¶ 6 ; R.C. 149.43(C)(1)(b).

{¶ 15} Although 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. McCaffrey v. Mahoning Cty. Prosecutor's Office, 133 Ohio St.3d 139, 2012-Ohio-4246, 976 N.E.2d 877, ¶ 16. In addition, unlike in other mandamus cases, "[r]elators in public-records cases need not establish the lack of an adequate remedy in the ordinary course of law." State ex rel. Data Trace Information Servs., L.L.C. v. Cuyahoga Cty. Fiscal Officer, 131 Ohio St.3d 255, 2012-Ohio-753, 963 N.E.2d 1288, ¶ 25.

{¶ 16} Therefore, Caster has correctly filed an original action in mandamus to challenge DOP's refusal to produce documents that he asserts are public records.

Specific Investigatory Work Product

{¶ 17} DOP claims that the records Caster seeks are excepted from mandatory disclosure under R.C. 149.43(A)(1)(h) as confidential law-enforcement investigatory records. R.C. 149.43(A)(2) defines that term:

"Confidential law enforcement investigatory record" means any record that pertains to a law enforcement matter of a criminal, quasi-criminal, civil, or administrative nature, but only to the extent that the release of

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