Sutelan v. Ohio State Univ.

• Decision Date: 09 August 2019
• Docket Number: Case No. 2019-00250PQ
• Parties: EDWARD M. SUTELAN Requester v. OHIO STATE UNIVERSITY Respondent
• Court: Ohio Court of Claims

2019 Ohio 3675

EDWARD M. SUTELAN Requester v. OHIO STATE UNIVERSITY Respondent

Case No. 2019-00250PQ

Court of Claims of Ohio

To S.C. Reporter September 12, 2019

August 9, 2019

Special Master Jeffery W. Clark

REPORT AND RECOMMENDATION

Ohio's Public Records Act

{¶1} "'The Public Records Act serves a laudable purpose by ensuring that governmental functions are not conducted behind a shroud of secrecy.'" State ex rel. ESPN, Inc. v. Ohio State Univ., 132 Ohio St.3d 212, 2012-Ohio-2690, 970 N.E.2d 939, ¶ 40 (investigation of football players and coaches), quoting State ex rel. Wallace v. State Med. Bd. of Ohio, 89 Ohio St.3d 431, 438, 732 N.E.2d 960 (2000). "[P]ublic scrutiny is necessary to enable the ordinary citizen to evaluate the workings of his or her government and to hold government accountable." White v. Clinton Cty. Bd. of Commrs., 76 Ohio St.3d 416, 420, 667 N.E.2d 1223 (1996). These purposes apply equally to police records:

Lest there be any doubt about the legislature's intent regarding the public records status of police records generally, it must be observed that the legislature amended the public records law in response to the decision of the Supreme Court in Wooster Republican Printing Co. v. Wooster (1978), 56 Ohio St.2d 126, 10 O.O.3d 312, 383 N.E.2d 124. In Wooster, the court had held that police and other law enforcement investigatory records are not subject to compulsory disclosure under R.C. 149.43. Id. at paragraph four of the syllabus. In apparent response to that holding, the General Assembly amended the law to state expressly that law enforcement investigatory records are, subject only to narrow exceptions, within the compulsory disclosure provisions.

State ex rel. Toledo Blade Co. v. Telb, 50 Ohio Misc.2d 1, 4, 552 N.E.2d 243 (C.P.1990), fn. 3. Accord State ex rel. Beacon Journal Publishing Co. v. Univ. of Akron, 64 Ohio St.2d 392, 393-94, 415 N.E.2d 310 (1980) (routine incident report of alleged rape of student is not subject to statutory exception).

{¶2} The Public Records Act provides that upon request, a public office "shall make copies of the requested public record available to the requester at cost and within a reasonable period of time." R.C. 149.43(B)(1). Ohio courts construe the Public Records Act liberally in favor of broad access, with any doubt resolved in favor of disclosure of public records. State ex rel. Hogan Lovells U.S., L.L.P. v. Dept. of Rehab. & Corr., 156 Ohio St.3d 56, 2018-Ohio-5133, 123 N.E.3d 928, ¶ 12.

{¶3} R.C. 2743.75 provides "an expeditious and economical procedure" to resolve public records disputes in the Court of Claims. A claim to enforce the Public Records Act through R.C. 2743.75 must be established by clear and convincing evidence. Hurt v. Liberty Twp., 2017-Ohio-7820, 97 N.E.3d 1153, ¶ 27-30 (5th Dist.). However, if the public office asserts that an exception applies, "[e]xceptions to disclosure under the Public Records Act, R.C. 149.43, are strictly construed against the public-records custodian, and the custodian has the burden to establish the applicability of an exception. A custodian does not meet this burden if it has not proven that the requested records fall squarely within the exception." State ex rel. Cincinnati Enquirer v. Jones-Kelley, 118 Ohio St.3d 81, 2008-Ohio-1770, 886 N.E.2d 206, paragraph two of the syllabus. Any doubt as to an exception should be resolved in favor of disclosure. State ex rel. James v. Ohio State Univ., 70 Ohio St.3d 168, 169, 637 N.E.2d 911 (1994).

Public Records Request

{¶4} On September 26, 2018, requester Edward Sutelan made a request to respondent Ohio State University (OSU) for "all police reports, officer narratives, and witness narratives" involving listed football players for a seven-year period. (Response, Exh. A at 0001-0003.) OSU initially objected to the request as overly broad, but then accepted without objection Sutelan's revised request for a shorter period. (Response at 3; Exh. B at 0005.) On February 4, 2019, OSU provided Sutelan with some of the requested records, including a redacted two-page report titled "Case P2018-04287 - UNAPPROVED DRAFT." (Complaint at 2-3.) OSU explained the redactions relevant to this report by stating that "[p]ersonal identifying information of uncharged suspects has been redacted pursuant to R.C. 149.43(A)(1)(h) and (A)(2)(a)." (Id. at 4.) On February 27, 2019, Sutelan responded,

I have been told that even uncharged suspects cannot have their names redacted in initial police reports, and I intend to challenge that since this report I have has names redacted.

(Response, Exh. C at 0010.) Sutelan also objected to the time taken to provide the redacted report, stating "It has been several weeks now," and

[i]t is a single police report and while I understand you all have a lot of records to process, this one has taken what I believe to be a considerable amount of time to process.

(Id.) OSU replied, "We continue to process your request." (Id.)

{¶5} On February 27, 2019, Sutelan filed a complaint pursuant to R.C. 2743.75 alleging denial of access to public records in violation of R.C. 149.43(B). His claim for production was "requesting the name of the offender be unredacted." (Complaint at 1; Clarification on Complaint.) Following unsuccessful mediation, OSU filed a combined brief and motion to dismiss (Response) on April 24, 2019. On May 23, 2019, OSU filed a supplemental response including a suggestion of mootness. On June 7, 2019, Sutelan filed a reply. On June 27, 2019, OSU filed a second supplemental response and filed an unredacted copy of the withheld records under seal.

{¶6} The evidence in this case shows that the OSU Police Division (OSUPD) created an incident report at the outset of criminal Case P2018-04287. The incident report was required by and detailed in OSUPD's General Orders and records management system guide. OSUPD incident reports are required to reflect available information regarding suspects, and this report did reflect the name of the suspect. The public records exception that OSU relied on to withhold the name of the uncharged suspect for eight months did not apply to this incident report. OSU thus denied Sutelan access to a public record in violation of R.C. 149.43(B)(1). Although OSU disclosed the suspect's name during litigation, this action involves important issues capable of repetition yet evading review and is thus not moot.

Background

{¶7} Sutelan's request for "all police reports" involving certain individuals is evaluated in the context of OSU's records management system. OSUPD General Order 82.2 requires the creation and prescribes the content of incident reports in criminal matters:

82.2 Incident Reporting and Management System

82.2.1 Reports System

The Ohio State University Police Division maintains a computerized Records Management System (RMS) designed to assist the division in meeting its managerial, operational, and informational needs. Listed below are the guidelines for reporting, the system used in incident reporting, and the procedures for submitting, processing, and supervisory review of field reports.

(Respondent's Exh. H, p. 82-9.) The General Order provides that:

Incident Reports shall be required for the following:

* * *

Any investigation of a crime as defined in the Ohio Revised Criminal Code

(Id., p. 82-10.) OSU guarantees victims that the Police Division will take incident reports in cases of sexual assault:

If you believe you are the survivor of a sexual assault on campus, the University Police Division will guarantee you the following:

1. We will meet with you privately, at a place of your choice, to take a police incident report.

OSU Department of Public Safety, Sexual Assault Reporting, The Ohio State University Survivor's Rights Guarantee, https://dps.osu.edu/sexual-assault-reporting (accessed July 26, 2019).

{¶8} All OSUPD incident reports are generated and maintained through the Records Management System (RMS), utilizing RMS incident reports and supplemental forms to standardize the incident reporting system. (Respondent's Exh. H, p. 82-10 to 82-11.) With regard to the contents of an incident report:

The thoroughness of the recorded information is dictated by the incident.

All pertinent information, based upon the nature of the incident, is collected by the dispatcher and officers and recorded in the CAD and RMS.

The reporting officer is required to obtain and enter as much subject information as possible. Although there may be circumstances where it is not possible to obtain some information, the minimum subject information should be:

• [name, address, DOB, SSN, race, sex]

(Id., p. 82-15.) Once an officer generates an incident report, an administrative lieutenant reviews the report for completeness and status, and determines whether the report needs investigative follow-up. (Id., p. 82-11 to 82-12.)

{¶9} OSUPD utilizes public safety software called Zuercher as its current RMS for police incident reports. Zuercher allows officers to input data from the time they arrive on scene to the time the matter is closed. (Respondent's Exh. D, Rose Aff. at ¶ 4-5.) The Zuercher Suite Guide (Respondent's Exh. I) details data input in the incident report. The scope of data entry includes all substantive information fields found in the Ohio Uniform Incident Report form¹ and OIBRS/NIBRS reports,² as well as additional fields. When an officer selects a criminal offense for an incident report using Zuercher's Add Offense feature (Respondent's Exh. G, Zuercher Suite TRAINING screen shots, p. 3), the next screens prompt the entry of name, identifiers, and involvement for each individual, including designation of any offender. (Id. at 4-10; See Exh. I at 7-15.) "Zuercher requires an 'Offender' for every offense." (Exh. I at 15.) Zuercher refers to the person writing the initial report as the "Primary Officer." (Id. at 3.) The Zuercher Suite Guide provides for a Primary Narrative as part of the initial report: "The primary narrative may be used by the...