State ex rel. Myers v. Meyers

• Citation: 2022 Ohio 1915
• Decision Date: 09 June 2022
• Docket Number: 2021-0211,2020-1469
• Parties: The State ex rel. Myers v. Meyers et al.
• Court: Ohio Supreme Court

2022-Ohio-1915

The State ex rel. Myers
v.
Meyers et al.

Nos. 2020-1469, 2021-0211

Supreme Court of Ohio

June 9, 2022

Submitted October 5, 2021

In Mandamus

Robinson Law Firm, L.L.C., and Emmett E. Robinson, for relator.

Reminger Co., L.P.A., Patrick Kasson, and Kent Hushion, for respondents.

PER CURIAM.

{¶ 1} In these two consolidated original actions, we address the issue whether an offense-and-incident report, which initiates a police investigation and is a public record under Ohio's Public Records Act, R.C. 149.43, is limited to the

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form that police officers fill out in order to report the incident or whether it also includes contemporaneous reports created by the investigating officers that document the officers' observations and the statements of witnesses at the scene. Relator, Derek J. Myers, seeks a writ of mandamus requiring respondents, the city of Chillicothe; its police chief, Ron Meyers ("police chief); and the police department's records clerk, Mica Kinzer (collectively, "Chillicothe" or "the city"), to disclose the "supplement narratives" that the city withheld when Myers had requested the public-record incident reports. The city asserts that it properly withheld the supplement narratives on the ground that such a narrative constitutes a confidential law-enforcement investigatory record ("CLEIR")-specifically, "investigatory work product" under R.C. 149.43(A)(2)(c). In addition to the writ of mandamus, Myers also requests awards of statutory damages, attorney fees, and court costs.

{¶ 2} We grant the writ with respect to a limited number of supplement narratives but deny it as to the majority of the supplement narratives. We also grant Myers an award of statutory damages for the city's delayed production of certain incident-report forms, but we deny in part Myers's claim for statutory damages on the ground that we do not "stack" statutory damages. Finally, we award court costs to Myers, but we deny his request for an award of attorney fees.

I. BACKGROUND

A. The Chillicothe police department's public-records policy

{¶ 3} The city presented the affidavit of the police chief to explain its public-records policy. That affidavit provides the best starting point for understanding the status of the public-records requests at issue in these cases.

{¶ 4} According to the police chief, the department "generates investigatory records after it receives a complaint from the public that pertains to potential violations of criminal laws." After receiving a complaint, "an officer is then dispatched to the location of the incident to investigate." But because the officer

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"begin[s] the investigation immediately after being dispatched, the officer often does not create the offense-and-incident report until after [he or she] leave[s] the scene of the incident." Based on the filled-in incident-report forms generated by the investigating officers, Kinzer prepares a daily media report and distributes it to various media recipients.

{¶ 5} In his affidavit, the police chief states that there are "three sources of information" that make up what he refers to as an "investigatory record": (1) the "standard, fill-in-the-blank information that identifies the investigation status, investigating officer, date, location, and offense information, all of which the investigating officer enters," (2) the "initial narrative section that the investigating officer generates," which "identifies the offense alleged, the location of the incident, and whether the investigation is ongoing," and (3) "supplement narratives," which "contain the personal notes of the investigating officer regarding the incident, summarizing witness and victim interviews, and evaluating the alleged offense." The supplement narratives also contain "specific details of the crime alleged, the identities of the victim, witnesses, and alleged perpetrator, and other related information."

{¶ 6} In responding to a public-records request for an "investigatory record," the department "generally does not disclose the supplement narratives for the record, so long as the related investigation remains ongoing." The department views supplement narratives as "confidential law enforcement investigatory records, since they are the investigating officer's work product." But the department does disclose upon request the incident-report form plus the "initial narrative," which is authored by the investigating officer.

{¶ 7} The police chiefs affidavit further explains that once an investigation is closed, the department "disclose[s] the entire investigatory record, consisting of both the offense-and-incident reports and the supplement narratives." The purpose of that policy is to "prevent the public disclosure of detailed information of an

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investigation while it is ongoing," a practice that "protects witnesses, victims, and suspects from potential harassment."

{¶ 8} In discussing the status of the records requests, we adopt the following terminology for purposes of this opinion. What the police chief refers to as "the standard, fill-in-the-blank information," we will call "the incident-report form." As for the two types of narratives, we will follow the police chiefs terminology and call them the "initial narrative" and the "supplement narratives." Finally, we will use the phrase "public-record incident report" to refer to those documents that must be disclosed under the Public Records Act.

{¶ 9} This terminology permits us to state succinctly the nature of the parties' disagreement. Myers argues that the public-record incident report includes the supplement narratives, while the city maintains that the public-record incident report is limited to the incident-report form and the initial narrative.

B. Case No. 2020-1469

{¶ 10} Myers is the editor and proprietor of the publication the Scioto Valley Guardian. As part of his work, Myers regularly submits public-records requests seeking the disclosure of public-record incident reports. Kinzer sends a daily media report through an email-distribution service to media recipients like Myers. For each new investigation, Kinzer's media report contains the case number, the offense charged, any relevant names, the date and time, and the address of the incident.

{¶ 11} On November 20, 2020, Myers sent an email reply to Kinzer's media report that stated: "Hello, please send P2015185," which he intended as a request for the public-record incident report relating to the investigation with that number. Approximately two hours after sending his first email, Myers sent Kinzer a second email stating, "Please let me know whether you will be sending this report today. If you deny the request, please cite your reasoning and law." Around the time that Myers sent his first email to Kinzer, he also emailed the police chief and stated that "we must address the persisting issue of your records department denying public

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records requests for police reports, citing open investigations." That day, the police chief gave the following response: "When investigations are completed and able to be released, they are," but that when a matter "is under investigation, until reviewed, it stays as a work in progress." On November 23, Kinzer informed Myers that she "was told that [the report he had requested] is not to be released at this time because it is still being investigated." Notably, Kinzer did not fulfill the department's policy that was described by the police chief in his affidavit: Kinzer did not disclose the incident-report form with the initial narrative when Myers made his request.

{¶ 12} On December 4, 2020, Myers filed a complaint for a writ of mandamus in this court (case No. 2020-1469) to obtain the public-record incident report for investigation No. P2015185. On December 11, the police chief formally denied Myers's request, citing the CLEIR exception in R.C. 149.43(A)(2)(c). The police chief reiterated that the record would be released after the investigation was complete.

{¶ 13} The city belatedly disclosed the incident-report form on January 8, 2021, along with the initial narrative but withheld the supplement narratives. Myers filed an amended complaint on March 18, 2021, stating that the city's disclosure on January 8 consisted of only a "truncated version of P2015185."

C. Case No. 2021-0211

{¶ 14} After making the records request at issue in case No. 2020-1469, Myers requested eight additional public-record incident reports. Those additional public-records requests followed the basic pattern of the request in case No. 2020-1469. As she had with Myers's earlier request, in five of Myers's later requests, Kinzer initially relied on the media report she had already sent and did not promptly disclose the incident-report forms. For three of the public-record incident reports that Myers requested in case No. 2021-211, the city promptly disclosed the

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incident-report form along with the initial narratives but withheld the supplement narratives.

{¶ 15} On February 16, 2021, Myers filed the complaint for a writ of mandamus in case No. 2021-0211 to obtain all eight of what he claims are the public-record incident reports that he requested (which include, according to his argument, the supplement narratives). Two business days after Myers filed that complaint, the city disclosed five incident-report forms along with the initial narratives and also disclosed the supplement narratives in four cases in which the city deemed the investigation to be complete.

{¶ 16} We consolidated case Nos. 2020-1469 and 2021-0211 and granted an alternative writ. 162 Ohio St.3d 1441, 2021-Ohio-1398, 166 N.E.3d 1269. In response to the alternative writ, the city submitted the supplement narratives that it had withheld for in camera review by this court.

D. The status of Myers's public-records requests

{¶ 17} For the sake of clarity, we outline the status of...