State ex rel. Miller v. Ohio State Highway Patrol

• Decision Date: 27 May 2014
• Docket Number: No. CA2012–05–034.,CA2012–05–034.
• Citation: 14 N.E.3d 396
• Parties: STATE of Ohio ex rel. Mark W. MILLER, Relator, v. OHIO STATE HIGHWAY PATROL, et al., Respondents.
• Court: Ohio Court of Appeals

14 N.E.3d 396

STATE of Ohio ex rel. Mark W. MILLER, Relator

v.OHIO STATE HIGHWAY PATROL, et al., Respondents.

No. CA2012–05–034.

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

May 27, 2014.

Finney Law Firm LLC, Christopher P. Finney, Cincinnati, OH, Curt C. Hartman, Amelia, OH, for relator.

Michael DeWine, Ohio Attorney General, Morgan A. Linn, Jeffery W. Clark, Columbus, OH, for respondents, Ohio State Highway Patrol and Jeff Maute.

Opinion

PER CURIAM.

{¶ 1} The current case is before this court pursuant to a complaint brought by relator, Mark Miller, seeking statutory damages, court costs, and attorney fees from respondent, the Ohio State Highway Patrol. Relator claims entitlement to damages, costs, and fees for what he alleges was respondent's unlawful denial of certain requested public records.

I. Statement of Facts

{¶ 2} According to his complaint, Mark Miller is a founding member and treasurer of the Coalition Opposed to Additional Spending and Taxes (COAST). COAST opposes excessive taxes and government spending, and also involves itself in exposing alleged abuse of government power. COAST works to learn of, document, and expose policies, practices, and procedures of government officials that exceed the government entity's statutory and constitutional authority. In order to further COAST's goals, Miller often makes public records requests in an effort to bring to light such government waste, fraud, or abuse.

{¶ 3} In September 2011, Miller requested, via certified mail, certain public records from the Ohio State Highway Patrol regarding Trooper Joseph Westhoven's investigations of traffic-related incidents. As pertinent to this case, one such traffic-related incident involved Trooper Westhoven's investigation of Ashley Ruberg for a suspected operation of a vehicle under the influence of alcohol (OVI).

{¶ 4} Trooper Westhoven first became suspicious that Ruberg was driving under the influence when he performed a traffic stop, which he initiated because Ruberg was driving 72 m.p.h. in a zone with a maximum speed of 45 m.p.h. Upon speaking with Ruberg, Trooper Westhoven noticed that Ruberg's eyes were red and that there was an odor of an alcoholic beverage coming from her car. Ruberg performed field sobriety tests, some of which indicated that she was under the influence. Ruberg also submitted to a Breathalyzer test, which revealed that her blood alcohol level was .116. Ruberg was arrested, and charged with OVI. Miller then requested the records specific to Trooper Westhoven's investigation of Ruberg's OVI.

{¶ 5} While the Highway Patrol produced most of the documents Miller requested, it withheld two categories of records, including (1) any and all video and audio recordings from the police cruiser operated by Trooper Westhoven from the beginning of his shift on June 1, 2011 through the end of his shift on August 5, 2011, and (2) any and all Impaired Driver Reports drafted and/or printed by Trooper Westhoven, relating to any arrests made for OVI between June 1, 2011 and August 5, 2011, including, but not limited to, narrations on statements of facts, field sobriety test reports, and evaluations.

{¶ 6} More specifically, the Highway Patrol did not give Miller (1) a portion of the video from Trooper Westhoven's police cruiser that documented the traffic stop, detention, and arrest of Ruberg for OVI, or (2) the impaired driver report relating to Ruberg's arrest. The Highway Patrol informed Miller that it was not producing the requested documents because the records constituted investigative work product for the ongoing criminal investigation of Ruberg. In response to the Highway Patrols' nonproduction, Miller filed a mandamus action in this court on May 10, 2012.

{¶ 7} This court dismissed Miller's mandamus complaint, finding that Miller had not established by clear and convincing evidence that the Highway Patrol failed to turn over records according to the Public Records Act. State ex rel. Miller v. Ohio State Hwy. Patrol, 12th Dist. Clermont No. CA2012–05–034. Miller appealed to the Ohio Supreme Court, and argued that he was entitled to mandamus relief. The Ohio Supreme Court reversed the judgment of this court, finding that the Highway Patrol had failed to turn over two records that had been requested by Miller. State ex rel. Miller v. Ohio State Highway Patrol, 136 Ohio St.3d 350, 2013-Ohio-3720, 995 N.E.2d 1175

. While the court determined that the Highway Patrol had not fulfilled Miller's entire request, the court did not reach a conclusion as to whether the Highway Patrol was statutorily obligated to actually produce the records.

{¶ 8} On remand, this court was ordered to review the withheld records and to determine whether they fall within the “confidential law enforcement investigatory record” exception to the Public Records Act, and specifically whether fulfilling Miller's request of the withheld records would create a “high probability of disclosure” of “specific investigatory work product” as asserted by the Highway Patrol.

{¶ 9} During the litigation of Miller's mandamus claim before the Ohio Supreme Court and upon remand to this court, the criminal case against Ruberg was completed, and the Highway Patrol released the withheld records to Miller. While Miller's mandamus claim is now moot, as all of his requested documents have been given to him, he now requests that he be awarded statutory fees, court costs, and attorney fees for what he argues was the Highway Patrol's violation of the Public Records Act.

II. Ohio Public Records Act

{¶ 10} “The Public Records Act reflects the state's policy that ‘open government serves the public interest and our democratic system.’ ” State ex rel. Morgan v. City of New Lexington, 112 Ohio St.3d 33, 2006-Ohio-6365, 857 N.E.2d 1208, ¶ 28

, quoting State ex rel. Dann v. Taft, 109 Ohio St.3d 364, 2006-Ohio-1825, 848 N.E.2d 472, ¶ 20. Courts construe Ohio's Public Records Act liberally in favor of broad access, with any doubt resolved in favor of disclosure of public records. Id.

{¶ 11} According to R.C. 149.43(B)(1)

,

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 at all reasonable times during regular business hours. Subject to division (B)(8) of this section, upon request, a public office or person responsible for public records shall make copies of the requested public record available at cost and within a reasonable period of time.

{¶ 12} R.C. 149.43(C)(1)

sets forth the proposition that an aggrieved party may pursue a mandamus action and be entitled to statutory damages upon a public entity's failure to provide public records in accordance with the statute. “[I]n general, providing the requested records to the relator in a public-records mandamus case renders the mandamus claim moot.” 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, the production of requested documents does not, according to the Public Records Act, moot a claim for damages. State ex rel. Cincinnati Enquirer v. Heath, 121 Ohio St.3d 165, 2009-Ohio-590, 902 N.E.2d 976, ¶ 18. Even so, a party is only entitled to damages if the petitioner first demonstrates that the respondent failed to provide the records in accordance with R.C. 149.43(B)(1). State ex rel. Patton v. Rhodes, 129 Ohio St.3d 182, 2011-Ohio-3093, 950 N.E.2d 965, ¶ 21 ; R.C. 149.43(C)(1).

{¶ 13} A public records custodian has the burden to establish the applicability of an exception to the Public Records Act, and courts strictly construe such exceptions against the custodian. State ex rel Cincinnati Enquirer v. Jones–Kelley, 118 Ohio St.3d 81, 2008-Ohio-1770, 886 N.E.2d 206

. The exception claimed by the Highway Patrol is codified at R.C. 149.43(A)(1)(h), which excludes “confidential law enforcement investigatory records” from the definition of “public record.” As pertinent to the current matter, R.C. 149.43(A)(2) defines a “confidential law enforcement investigatory record” as

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 the record would create a high probability of disclosure of any of the following:

* * *

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

{¶ 14} The Ohio Supreme Court has established a two-part test to determine whether a particular record is a confidential law enforcement investigatory record as anticipated within the Public Records Act. “First, is the record a confidential law enforcement record? Second, would release of the record ‘create a high probability of disclosure’ of any one of the four kinds of information specified in R.C. 149.43(A)(2)

?' ” State ex rel. Musial v. N. Olmsted, 106 Ohio St.3d 459, 2005-Ohio-5521, 835 N.E.2d 1243, ¶ 19, quoting State ex rel. Beacon Journal Publishing Co. v. Maurer, 91 Ohio St.3d 54, 741 N.E.2d 511 (2001).¹

{¶ 15} “The phrase ‘law enforcement matter of a criminal, quasi-criminal, civil, or administrative nature’ refers directly to the enforcement of the law.” State ex rel. Multimedia, Inc. v. Snowden, 72 Ohio St.3d 141, 143, 647 N.E.2d 1374 (1995)

. The statutory definition is met when the records are compiled in order to investigate specific alleged misconduct of matters prohibited by state law. State ex rel. Polovischak v. Mayfield, 50 Ohio St.3d 51, 552 N.E.2d 635 (1990).

{¶ 16} Specific investigatory work product consists of “any notes, working papers, memoranda or similar materials, prepared by attorneys or law enforcement officials in anticipation of litigation.” State ex rel. Leonard v. White, 75 Ohio St.3d 516, 518, 664 N.E.2d 527 (1996)

. “To be considered work product * * * a record must have been assembled in connection with an actual pending or highly probable criminal prosecution.” State ex...