State ex rel. Cincinnati Enquirer v. Ohio Dep't of Commerce

• Decision Date: 30 September 2019
• Docket Number: No. 17AP-63,17AP-63
• Parties: The STATE EX REL. The CINCINNATI ENQUIRER, a Division of Gannett GP Media, Inc., Relator, v. OHIO DEPARTMENT OF COMMERCE, DIVISION OF STATE FIRE MARSHAL, Respondent.
• Court: Ohio Court of Appeals

145 N.E.3d 1232

2019 Ohio 4009

The STATE EX REL. The CINCINNATI ENQUIRER, a Division of Gannett GP Media, Inc., Relator,

v.OHIO DEPARTMENT OF COMMERCE, DIVISION OF STATE FIRE MARSHAL, Respondent.

No. 17AP-63

Court of Appeals of Ohio, Tenth District, Franklin County.

Rendered on September 30, 2019

On brief: Graydon Head & Ritchey LLP, John C. Greiner, Cincinnati, and Darren W. Ford, for relator. Argued: John C. Greiner.

On brief: [Dave Yost], Attorney General, Hilary Damaser, Keith O'Korn, and Sarah Pierce, Columbus, for respondent. Argued: Keith O'Korn.

DECISION

BRUNNER, J.

{¶ 1} Relator, the Cincinnati Enquirer, a division of Gannett GP Media, Inc., ("Cincinnati Enquirer") filed this original action requesting a writ of mandamus ordering respondent, Ohio Department of Commerce, Division of State Fire Marshal ("fire marshal"), to comply with the Cincinnati Enquirer's public records request under R.C. 149.43 and seeks reasonable attorney fees and court costs under R.C. 149.43(C). The record at issue is the "Fire and Explosion Investigation Bureau Incident Report" ("incident report") prepared by the fire marshal in connection with a fire in Hamilton, Ohio on December 28, 2015, that resulted in the death of a firefighter and criminal charges of arson and murder against two people allegedly responsible for the fire.

{¶ 2} The fire marshal argues that the incident report is protected by either the Confidential Law Enforcement Investigatory Records ("CLEIR") exception to the Public Records Act, or by the trial preparation records exception. The Cincinnati Enquirer argues that the entire incident report is not protected by an exception and the fire marshal was required to release, at a minimum, a redacted incident report.

{¶ 3} Pursuant to Civ.R. 53 and Loc.R. 13(M) of the Tenth District Court of Appeals, this matter was referred to a magistrate. The magistrate issued the appended decision, including findings of fact and conclusions of law. The magistrate concluded that this court should issue a writ of mandamus ordering the fire marshal to release the incident report in response to the Cincinnati Enquirer's public records request with redactions. The magistrate did not award attorney fees determining that, overall, the fire marshal had a good-faith basis for withholding the requested document.

{¶ 4} Both parties timely filed objections to the findings of fact and conclusions of law set forth in the magistrate's decision. Having examined the magistrate's decision, conducted an independent review of the record pursuant to Civ.R. 53, and undertaken due consideration of the objections, we adopt in part the magistrate's decision.

I. FACTS AND PROCEDURAL BACKGROUND

{¶ 5} On December 28, 2015, a firefighter died while fighting a fire that occurred at 1310 Pater Avenue, Hamilton, Ohio. The State Fire Marshal investigated the origin and cause of the fire. The incident report was finalized in November 2016. (Dunn dep. at 29.) On January 6, 2017, two men were indicted on charges of aggravated arson and murder and after a trial, the two men were found guilty and sentenced on November 28, 2017. See State v. Parker , Butler C.P. No. CR 2016 12 1807; State v. Tucker , Butler C.P. No. CR 2017 01 0028. The cases were appealed and the Twelfth District Court of Appeals affirmed the judgments. See State v. Parker , 12th Dist. No. CA2017-12-176, 2019-Ohio-830, 2019 WL 1111456 ; State v. Tucker , 12th Dist. No. CA2017-12-172, 2019-Ohio-911, 2019 WL 1254160.

{¶ 6} Prior to the indictments of Parker and Tucker, on January 4, 2016, the Cincinnati Enquirer made its first public records request of the fire marshal for the incident report. The fire marshal refused the request. The Cincinnati Enquirer initiated a mandamus action in the Supreme Court of Ohio seeking a writ ordering disclosure of the incident report. The fire marshal filed a motion to dismiss for failure to state a claim because the requested document did not exist at that time and the fire marshal raised the CLEIR exception. The Supreme Court granted the fire marshal's motion to dismiss.

{¶ 7} On December 16, 2016, the Cincinnati Enquirer made a second public records request to the fire marshal for its incident report. The fire marshal denied the request, asserting that the records were confidential law enforcement investigatory records. On January 26, 2017, the Cincinnati Enquirer filed this mandamus action seeking production of the incident report and an award of reasonable attorney fees and court costs pursuant to R.C. 149.43(C).

II. MOOTNESS

{¶ 8} Since the filing of this mandamus action, the fire marshal has provided the incident report to the Cincinnati Enquirer. After the two men, Parker and Tucker, were convicted of arson and murder, the fire marshal provided an unredacted copy of the records to the Cincinnati Enquirer. (Jan. 18, 2018 Fire Marshal Objs. at 8, fn. 1.) Generally, " ‘providing the requested records to the relator in a public-records mandamus case renders the mandamus claim moot.’ " State ex rel. Cincinnati Enquirer v. Heath , 121 Ohio St.3d 165, 2009-Ohio-590, 902 N.E.2d 976, ¶ 10, quoting State ex rel. Toledo Blade Co. v. Seneca Cty. Bd. of Commrs. , 120 Ohio St.3d 372, 2008-Ohio-6253, 899 N.E.2d 961, ¶ 43. However, "a claim ‘is not moot if it is capable of repetition, yet evading review.’ " Id. at ¶ 11, quoting State ex rel. Dispatch Printing Co. v. Geer , 114 Ohio St.3d 511, 2007-Ohio-4643, 873 N.E.2d 314, ¶ 10. This exception to the mootness doctrine:

[A]pplies only in exceptional circumstances in which the following two factors are both present: (1) the challenged action is too short in its duration to be fully litigated before its cessation or expiration, and (2) there is a reasonable expectation that the same complaining party will be subject to the same action again.

State ex rel. Calvary v. Upper Arlington , 89 Ohio St.3d 229, 231, 729 N.E.2d 1182 (June 28, 2000), citing Spencer v. Kemna , 523 U.S. 1, 17-18, 118 S.Ct. 978, 140 L.Ed.2d 43 (1998).

{¶ 9} As we see it, both factors are present in this case. The fire marshal provided the records after the Cincinnati Enquirer filed its mandamus action. The fire marshal argued that the conclusion of the criminal trials allowed for the release of the records. While the conclusion of the criminal proceedings and the release of the records truncated the Cincinnati Enquirer's ability to fully litigate its mandamus claim, we recognize that the Cincinnati Enquirer and other media outlets are likely to request future fire marshal's incident reports in other cases and that the fire marshal will continue to withhold them for the reasons argued in this and other litigation. We thus conclude that the Cincinnati Enquirer's claim is not moot.

III. OBJECTIONS TO THE MAGISTRATE'S DECISION

{¶ 10} The fire marshal presents five specific objections to the magistrate's decision and requests that this court find the fire investigation report, including all incorporated supporting records, to be a confidential law enforcement investigatory record and thereby exempt from release in response to a public records request. The fire marshal's specific objections to the magistrate's decision are:

[1.] Findings of Fact Nos. 6 and 11 are incomplete. In addition to the duty to prepare a report and the authority to arrest, the sections the Magistrate cites also specify that the Fire Marshal has the duty to investigate the origin and cause of fires, to look for and compile evidence of crimes, and to assist in the prosecution of suspected arsonists.

[2.] In Finding of Fact No. 12, the Magistrate fails to recognize and find that, as a result of Investigator Dunn's telephone conversation with Hamilton Fire Department Investigator Trevor Snider, Investigator Dunn knew, prior to setting foot on the scene, that the crime of breaking and entering had been committed. Moreover, the magistrate did not recognize the purpose of the investigation was to prepare for a criminal trial.

[3.] In Finding of Fact No. 29, the Magistrate assumes that the Cincinnati Enquirer's request for the "report," was limited to the Origin and Cause Report contained on pages 9-13 of the in camera submission, but the Fire Marshal considered the Origin and Cause Report and all of the supporting materials to be the "Report" in its entirety. Accordingly, the Magistrate failed to determine whether the supporting material is considered a confidential law enforcement investigatory record.

[4.] On pages 11 and 12 of the Decision, the Magistrate ignores the fact that Investigator Dunn was aware, since before setting foot on the fire scene, that a crime had been committed. Accordingly, the Magistrate incorrectly determined that the Origin and Cause Report "is not specifically compiled in reasonable anticipation of, or in defense of, a civil or criminal action or proceeding."

[5.] The Magistrate, on pages 12 and 13, incorrectly determines that the entire contents of the Origin and Cause Report are not "essential to its effective use in further investigation by law enforcement personnel." Rather, Investigator Dunn's personal professional thoughts and analysis of an arson (that resulted in the death of a firefighter) have concrete investigatory value and are strewn throughout the report and cannot be redacted prior to release to the public.

{¶ 11} The Cincinnati Enquirer presents two counter-objections to the magistrate's decision:

[1.] The Court should adopt the Magistrate's Decision granting The Enquirer a writ of mandamus to compel Respondent to comply with its obligations under R.C. 149.43(B), but modify the Decision to award The Enquirer all court costs under R.C. 149.43(C)(3)(a)(i).

[2.] The Court should adopt the Magistrate's Decision granting The Enquirer a writ of mandamus to compel Respondent to comply with its obligations under R.C. 149.43(B), but modify the Decision to award The Enquirer its reasonable attorney's fees under R.C. 149.43(C)(3).

IV. LAW AND DISCUSSION

A. Standard of Review

{¶ 12} ...