State ex rel. Cmty. Journal v. Reed

• Decision Date: 30 December 2014
• Docket Number: No. CA2014–01–010.,CA2014–01–010.
• Parties: STATE of Ohio ex rel. The COMMUNITY JOURNAL, North Clermont, Relator, v. Erin C. REED, Respondent.
• Court: Ohio Court of Appeals

26 N.E.3d 286

STATE of Ohio ex rel. The COMMUNITY JOURNAL, North Clermont, Relator

v.Erin C. REED, Respondent.

No. CA2014–01–010.

Court of Appeals of Ohio, Twelfth District, Clermont County.

Dec. 30, 2014.

Graydon Head & Ritchey LLP, John C. Greiner, Cincinnati, OH, for relator.

R. Michael DeWine, Ohio Attorney General, Jeffery W. Clark, Columbus, OH, for respondent.

Opinion

S. POWELL

, J.

{¶ 1} The current case is before this court pursuant to a complaint brought by relator, The Community Journal, North Clermont (Journal), seeking a writ of mandamus to compel respondent, Erin C. Reed, Director of Administration for Ohio Bureau of Criminal Identification and Investigation (BCI), to produce records it has in its possession regarding missing property from the Goshen Township Police Department (Police Department).

I. Statement of Facts

{¶ 2} On August 13, 2013, the Clermont County Sheriff's Office sent a letter to BCI requesting that BCI investigate “current criminal activity” occurring in Clermont County. The letter stated that “approximately $8,000 in various money orders from a drug bust are missing” and that the “criminal activity may involve local law enforcement officers and fraud involving the evidence locker” at the Police Department. On August 19, 2013, the Goshen Township Chief of Police separately e-mailed BCI to request its assistance in investigating the missing property.

{¶ 3} BCI opened an investigation into the allegations of criminal activity occurring at the Police Department and assigned Special Agent Karen Rebori to investigate. Agent Rebori received two sets of documents from the Police Department in connection with her investigation, one on August 28, 2013 and another on August 30, 2013. The two sets of documents contained over 700 records and Agent Rebori “assembled, compiled, and maintained” the records for her investigation into the missing property.

{¶ 4} On August 30, 2013, Keith BieryGolick, a reporter for the Journal, contacted BCI and requested permission to inspect “all records and documents, including any electronic mail and electronic files and text messages, created, received, or sent by representatives of Goshen Township in Clermont County between Jan. 1, 2013 and Aug. 20, 2013 concerning missing evidence and/or missing property from the Goshen Police Department” that were currently in the possession of BCI. BCI denied the request in its entirety stating that pursuant to R.C. 149.43(A)(1)(h)

, all the records received from the Police Department are confidential law enforcement investigatory records of an ongoing investigation and the release of those records would create a high probability of disclosure of specific investigatory work product.

{¶ 5} Over the next several weeks, counsel for the Journal and BCI engaged in further correspondence regarding the production of the records. Eventually, BCI sent the Journal copies of the Clermont County Sheriff's Office letter requesting BCI initiate an investigation and the similar request from the Goshen police chief. Later, BCI also released a copy of an article written by BieryGolick concerning the missing property and the Police Department's Evidence Room Manager Policy.

{¶ 6} On January 22, 2014, the Journal subsequently filed the present action, a complaint in this court for a writ of mandamus against BCI. The Journal seeks an order requiring BCI to make all records it received concerning the missing property at the Police Department available to the Journal for inspection and copying. The Journal also requests BCI to pay statutory damages, court costs and attorney fees for its failure to comply with R.C. 149.43

.

{¶ 7} While this action was pending, the Journal served BCI with a set of interrogatories that included questions asking BCI to describe the type of documents contained within the records, the date the documents were created and to identify the person that created each document. BCI objected to these interrogatories and did not respond. The Journal filed a motion to compel BCI to respond to these interrogatories. The matter came before a magistrate, who denied the Journal's motion. The Journal has filed an objection to magistrate's decision denying its motion to compel.

{¶ 8} Both the Journal and BCI have filed cross-motions for summary judgment. The Journal maintains that the records are “public records” pursuant to R.C. 149.43

and that the confidential law enforcement investigatory records exception as asserted by BCI does not apply because it does not cover an entire investigative file. Further, the Journal argues BCI is unable to show the documents were created in connection with a criminal proceeding. BCI counters that all the records it received in regards to the missing property fall under the confidential law enforcement investigatory records exception.

{¶ 9} On August 7, 2014, BCI filed a “notice to court and suggestion of mootness” notifying this court that its investigation regarding the missing property had concluded and therefore it was releasing to the Journal most of the requested records, subject to some redactions. BCI argues that this action is now rendered moot since it has provided the records to the Journal. The Journal disputes the mootness argument and maintains this issue is “capable of repetition, yet evading review” and that BCI improperly redacted the information contained in the records.

{¶ 10} Accordingly, the following motions are before this court: 1) the Journal's objections to the magistrate's decision denying its motion to compel discovery; 2) BCI's and the Journal's cross-motions for summary judgment; and 3) BCI's notice to the court and suggestion of mootness and the Journal's memorandum challenging mootness and the redaction of the records.

II. Analysis

A. Ohio Public Records Act

{¶ 11} As an initial matter, we note the resolution of the instant dispute is governed by the Ohio Public Records Act. Ohio's Public Records Act, codified at R.C. 149.43

, mandates full access to public records upon request, unless the requested records fall within one of the exceptions specifically enumerated in the Act. State ex rel. Lucas Cty. Bd. of Commrs. v. Ohio Environmental Protection Agency, 88 Ohio St.3d 166, 170, 724 N.E.2d 411 (2000). The Act requires that “upon request and subject to division (B)(8) of this section, all public records responsive to the request shall be promptly prepared and made available for inspection to any person * * * [and] upon request a public office or person responsible for public records shall make copies of the requested public record * * *.” R.C. 149.43(B)(1).

{¶ 12} A “public record” is a record kept by any public office. R.C. 149.43(A)(1)

. The Act exempts “confidential law enforcement investigatory records” from its application. R.C. 149.43(A)(1)(h). A “confidential law enforcement investigatory record” is defined as:

[A]ny record that pertains to a law enforcement matter of a criminal, quasi-criminal, or civil, or administrative nature, but only to the extent that the release of the record would create a high probability of disclosure of any of the following:

(a) The identity of a suspect who has not been charged with the offense to which the record pertains, or of an information source or witness to whom confidentiality has been reasonably promised;

* * *

(c) Specific confidential investigatory techniques or procedures or specific investigatory work product.

(Emphasis added.) R.C. 149.43(A)(2)

.

{¶ 13} The Public Records Act “must be construed liberally in favor of broad access, and any doubt should be resolved in favor of disclosure of public records.” State ex rel. Beacon Journal Publishing Co. v. Bond, 98 Ohio St.3d 146, 2002-Ohio-7117, 781 N.E.2d 180, ¶ 8

. “[I]nherent in R.C. 149.43 is the fundamental policy of promoting open government, not restricting it.” State ex rel. The Miami Student v. Miami Univ., 79 Ohio St.3d 168, 171, 680 N.E.2d 956 (1997). The government “bears the burden of establishing that the requested information is exempt from disclosure.” Bond at ¶ 8.

B. Discovery

{¶ 14} During discovery, BCI refused to answer interrogatories requesting it to describe the type of documents contained within the records, the date the documents were created and the identity of the person who created each document. The Journal filed a motion to compel BCI to answer the interrogatories, which the magistrate denied. The Journal argues the answers in response to the interrogatories would support its argument that documents created prior to the investigation or not prepared by BCI do not fall within the confidential law enforcement records exception.

{¶ 15} In addressing this matter, we note that BCI and the Journal have disagreed over the proper characterization of the magistrate's “entry denying [the Journal's] motion to compel discovery.” After the magistrate denied the Journal's motion, the Journal filed an “objection to magistrate's decision.” BCI maintains that the Journal's motion is not an objection but is more of the nature of a motion to set aside a magistrate's order. We agree that the Journal's motion is better characterized as a motion to set aside the magistrate's order. Civ.R. 53(D)(2)(b)

. The magistrate's entry was an order necessary to regulate the proceedings and not dispositive of a claim or defense of a party. Civ.R. 53(D)(2)(a)(i). See

In re H.R.K., 8th Dist. Cuyahoga No. 97780, 2012-Ohio-4054, 2012 WL 3862171, ¶ 8 ; J & B Fleet Indus. Supply, Inc. v. Miller, 7th Dist. Mahoning No. 09 MA 173, 2011-Ohio-3165, 2011 WL 2536668, ¶ 30. However, regardless of whether the magistrate's entry is better characterized as a “decision” or an “order,” neither party has cited any authority regarding how this affects our review of the magistrate's decision, and therefore, for purposes of this opinion, we will treat the Journal's motion as objections to the magistrate's decision. Accordingly, we will undertake an independent review of the magistrate's decision. Civ.R. 53(D)(4)(d).

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