Court clarifies information about criminal complaints police must make available
A nearly 30-year-old standard for what police must make available to the public when a crime is reported was clarified today by the Ohio Supreme Court.
In a 5-to-2 decision, the Supreme Court ruled that certain information documented by law enforcement officers, including observations of officers responding to an incident and first witness statements, are public records and must be disclosed upon request.
In a dispute between the Chillicothe Police Department and the editor of the Scioto Valley Guardian, the Court clarified the Public Records Act’s definition of “specific investigative work product”, a category of records that are exempt from disclosure as public records. In an opinion by curiam, the court ruled that the department unduly delayed the publication of police incident reports and should pay the publication $1,800 and court costs.
Chief Justice Maureen O’Connor and Justices Michael P. Donnelly, Melody Stewart and Jennifer Brunner joined the majority opinion. Judge Patrick F. Fischer concurred with the court’s judgment regarding the disclosure of the records, but dissented on the award of damages and court costs to the Guardian.
In a partly concurring and partly dissenting opinion, Justice Sharon L. Kennedy wrote that the majority “unnecessarily complicates a standard established nearly 30 years ago” in the Court’s 1994 ruling. ex rel. Steckman v. Jackson decision. The changes to what constitutes a specific investigative work product “will certainly cause confusion and litigation for years to come,” she concluded.
Judge R. Patrick DeWine joined in the opinion of Judge Kennedy.
Late submission of incident report leads to legal action by Media
Derek Myers, editor of the Scioto Valley Guardian news site, requested an incident report relating to a particular investigation. Myers then emailed Chillicothe Police Chief Ron Meyers in November 2020 expressing his dismay at the department’s refusal to release police incident reports which he said involved open investigations .
About two weeks later, Myers sought a writ of mandamus from the Supreme Court to order the police department to release the incident report he had requested. A week after that, the police chief formally denied the request for public records, stating that the information was a “confidential law enforcement investigation file” and more specifically, under CR 149.43(A)(2)(c)that it was exempt from the definition of a public record as “specific investigative work product”.
As the case was pending, Myers submitted eight more public records requests to Chillicothe Police for incident reports, which were also denied. He requested a second writ from the Court in February 2021 for these records. The Court considered the nine applications for registration in today’s notice.
Records Policy Explained by Chief of Police
In a sworn statement, the police chief explained the records the department generates after receiving a felony complaint and how it handles public records requests.
For each complaint, the department prepares an investigation file, which has three components. First, the department uses a standard “fill in the blanks” report that identifies the date, location, and information about the offense, along with other basic information that is filled in by the investigator. Second, the form includes an “initial story” section, where officers can identify the alleged offense, the location of the incident, and whether the investigation is ongoing.
The chief described the third section as “supplemental accounts”, which contain the investigator’s personal notes regarding the incident, summarize interviews with witnesses and victims, and assess the alleged offence. The chief said the accounts contain specific details about the crime and the identity of the victims, witnesses and alleged perpetrator.
When responding to a request for public records, the department discloses the fill-in-the-blank incident form and the initial narrative. However, as long as the investigation into the case is open, the department considers additional accounts to be exempt from the public records act as a work product of the investigator. Once an investigation is closed, the entire investigation file, including additional accounts, becomes a public record, the police chief said.
Dealing with Infringed Records Act, Publisher Claims
The late responses to the Guardian violated public records law and the department’s own policy, the publisher argued. The ministry did not provide the incident report and narrative from the November 2020 report until January 2021, more than a month after the publication sought a court order. Myers argued that at the time, the additional accounts should also have been released, and that the department cannot completely withhold the records until the investigation is complete.
In response to the second request for eight other records, the department released three incident reports before Myers filed its second writ. He received five reports two days after filing his second lawsuit. In four of its nine requests, the department listed the cases as closed and provided Myers with the complete record, including the additional accounts.
Publication of the documents analyzed by the Supreme Court
The per curiam opinion noted that in 1994 Steckman decision, the Court found that “Offence and Incident Reports” are not specific investigative work products and that a police department must release them as public records. The department should have promptly released incident reports to Myers, the court ruled.
The Court reviewed the additional accounts, which were attached to the incident report forms. The Court wrote that the most important factor in determining whether these accounts form part of an incident report is “timing,” including initial observations by officers and initial witness statements taken at the physical location near the when the incident occurred.
The Court found that some of the information in the additional accounts withheld came from reports from witnesses and others involved at the time of the incident. In some cases, the officer would write a word or two into the initial story and then, within minutes, provide more detailed information in the additional stories, the court noted. In other cases, the additional accounts were produced days or even weeks later as the investigation continued, according to the opinion.
The Court clarified that any details gathered at the scene of the incident should not be disclosed when the incident report is completed. Law enforcement always has the right to delete information that is not considered public records. The advisory noted that state law contains several provisions that exempt information from disclosure, and any information contained in an incident report or narrative that qualifies for an exemption may be removed from the report from public records. .
After reviewing the additional accounts, the Court ordered the release of some, but not all, of the reports Myers requested.
The timing of the report should not determine the status of the recording, the opinion stands
Justice Kennedy noted that she agreed with the majority ruling that the department owed $1,800 in damages for failing to release initial incident reports. However, when the information was recorded and the method by which Chillicothe retains its police records should not dictate whether they are confidential law enforcement investigative records, she wrote. .
His opinion noted that the Court in Steckman defined what constitutes a “work product” under the public records exemption for a specific investigative work product. “Work product” was defined as “information gathered by law enforcement officials in connection with probable or ongoing criminal proceedings”.
The work product rule applies to information gathered after it is clear that a crime has been committed, the opinion has been noted, and materials compiled in anticipation of litigation are exempt under of the Steckman definition. Prior to today’s decision, law enforcement could rely on the Steckman decision that incident reports should be released, and other records of an ongoing investigation were not, the opinion said.
Now departments will have to consider when the information was collected and how it is stored, which will be confusing, the opinion said. Justice Kennedy wrote that the current rule is readily understandable and that the Court “should not fix what is not broken”.
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