The State ex rel. Standifer v. The City of Cleveland, 2021-1280

CourtUnited States State Supreme Court of Ohio
Writing for the CourtPER CURIAM
Citation2022 Ohio 3711
PartiesThe State ex rel. Standifer et al., Appellants, v. The City of Cleveland, Appellee.
Docket Number2021-1280
Decision Date20 October 2022

2022-Ohio-3711

The State ex rel. Standifer et al., Appellants,
v.

The City of Cleveland, Appellee.

No. 2021-1280

Supreme Court of Ohio

October 20, 2022


Submitted June 14, 2022

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Appeal from the Court of Appeals for Cuyahoga County, No. 110200, 2021-Ohio-3100.

First Amendment Clinic, Kramer Law Clinic Center, Case Western Reserve University School of Law, Andrew Geronimo, and Sara Coulter, for appellants.

Barbara Langhenry, Cleveland Director of Law, and William M. Menzalora and Timothy J. Puin, Assistant Directors of Law, for appellee.

PER CURIAM

{¶ 1} Appellants, Lauren "Cid" Standifer and Euclid Media Group, L.L.C., d.b.a. Cleveland Scene, sought a writ of mandamus to compel appellee, the city of Cleveland, to disclose use-of-force ("UOF") reports, which are prepared whenever a Cleveland police officer uses force in the course of the officer's duties. The court of appeals denied the writ, agreeing with Cleveland that the UOF reports are exempt from disclosure under the Public Records Act, R.C. 149.43, as confidential law-enforcement investigatory records ("CLEIR"). We reverse the court of appeals' judgment and remand the case for further proceedings.

I. BACKGROUND

A. Cleveland's use of UOF reports

{¶ 2} Cleveland's General Police Order 2.01.05 defines three levels of use of force-"Level 1," "Level 2," and "Level 3"-and requires that a UOF report be prepared whenever a Cleveland police officer uses force rising to one of the three levels in the course of the officer's duties. UOF reports are distinct from police reports that detail a responding officer's description of the circumstances of an incident. They provide a "detailed account" of the use of force, including the reason for the initial police presence, a specific description of the acts that preceded the use of force, the level of resistance encountered, and a description of the force used. Officers who use Level 1 or Level 2 force must complete a UOF report "by the end of their tour of duty." When an officer has used Level 3 force, the officer in charge

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of the police division's designated "force investigation team" must complete the UOF report.

{¶ 3} General Police Order 2.01.06 requires review of UOF reports through the chain of command to determine whether a use of force was proper. The prescribed UOF procedures reflect not just city policy but also the content of a consent decree reached between the Cleveland police department and the United States Department of Justice.

{¶ 4} UOF reports are entered into force-tracking software called IAPro/BlueTeam. The software allows a user to save a report, export the report to an Excel spreadsheet, or download a PDF of the report.

B. The records requests at issue

{¶ 5} Standifer is a journalist who publishes investigative news articles in Cleveland Scene, a local newspaper. On September 9, 2020, Standifer emailed to Cleveland a public-records request for "all reports on use of force incidents between Jan. 1, 2019 and the date the record is generated." Cleveland responded by email on September 23, stating that it had located a responsive record that Standifer could access on the city's public-records website. The document was a one-page spreadsheet that indicated "use of force totals" for the years 2019 and 2020 (up to September 14).

{¶ 6} Later that day, Standifer informed the city by email that the one-page spreadsheet was not responsive to her request. Standifer stated that she was seeking "all individual reports for every instance of use of force from this time period." The city responded on October 13 that it was "not required to do a file-by-file review from 2019 to the present to produce what is a complete duplication of [its] use of force reports during the period requested." In that respect, the city told Standifer that her request was "both vague and overly broad."

{¶ 7} After additional communication with the city, Standifer submitted another records request on October 29, 2020, asking for "all reports on use of force

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incidents that occurred on May 30 and June 1, 2020." The city denied this request on November 16, stating that "[t]he information requested is part of an open ongoing investigation and not releasable at this time based on the confidential law enforcement investigatory record exception in R.C. 149.43(A)(1)(h), (A)(2)."

{¶ 8} On November 18, 2020, Standifer emailed another request, this time seeking "all use of force reports filed in June 2019." The city produced some records in response to that request on December 3 and December 10, including a list of UOF-matter numbers.

{¶ 9} Later on December 10, Standifer submitted a request for "the files identified by" the matter numbers on the list the city had provided. On December 16, the city sought clarification regarding the request, which Standifer provided. On December 26, the city responded that it regarded the request as closed and advised that Standifer could file a new request.

C. The mandamus action

{¶ 10} On December 31, 2020, Standifer and Cleveland Scene brought a mandamus action against Cleveland in the Eighth District Court of Appeals. During mediation, the city disclosed some responsive documents but withheld 87 otherwise responsive documents based on the CLEIR exception.

{¶ 11} The court of appeals granted the city's motion for summary judgment and denied the requested writ. It held that the withheld UOF reports were exempt from disclosure as CLEIR because they relate to law-enforcement matters and because their disclosure "would create a high probability of revealing the identities of uncharged suspects-i.e., the officers who used the force described in the reports. 2021-Ohio-3100, ¶ 16-17. Standifer and Cleveland Scene appealed to this court as of right.

II. ANALYSIS

{¶ 12} Appellants bear the burden of showing entitlement to the requested writ of mandamus by clear and convincing evidence. State ex rel. McCaffrey v.

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Mahoning Cty. Prosecutor's Office, 133 Ohio St.3d 139, 2012-Ohio-4246, 976 N.E.2d 877, ¶ 16. On the other hand, "[e]xceptions to disclosure under the [Public Records Act] are strictly construed against the records custodian, who has the burden to establish the applicability of any claimed exception from disclosure." State ex rel. Cincinnati Enquirer v. Cincinnati, 157 Ohio St.3d 290, 2019-Ohio-3876, 135 N.E.3d 772, 6. We review de novo a court of appeals' grant of summary judgment in a mandamus action. State ex rel. Ames v. Portage Cty. Bd. of Commrs., 165 Ohio St.3d 292, 2021-Ohio-2374, 178 N.E.3d 492, ¶ 11.

A. The CLEIR exception does not apply categorically to the UOF reports

{¶ 13} Appellants argue as their first proposition of law that they have a clear legal right to the undisclosed UOF reports because those reports "precede any investigation" and more closely resemble offense or incident reports, which initiate ordinary criminal investigations, than they do investigatory work product. Thus, they contend that the CLEIR exception does not apply to these reports.

{¶ 14} R.C. 149.43(A)(1)(h) exempts CLEIR from disclosure as public records, and R.C. 149.43(A)(2) defines "CLEIR" 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 one or more of the types of information listed in R.C. 149.43(A)(2)(a) through (d). Accordingly, "[t]he applicability of the [CLEIR exception]...

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