Custodian of Public Records has Burden to Show Why Materials are Exempt from Disclosure Under Public Records Law
The Ohio Supreme Court ruled today that the Ohio State Highway Patrol must demonstrate that materials withheld from a public records request are in fact exempt from disclosure under the Ohio Public Records Act.
In its 7-0 opinion, which was per curiam (not authored by one justice), the court reversed the Twelfth District Court of Appeals and returned the case to that court to determine whether documents that weren’t released fall within the act’s “confidential law enforcement investigatory record” exception, as the patrol asserts.
Mark Miller of Cincinnati requested records from the State Highway Patrol in 2011. Attorneys for Miller alleged that, while the patrol provided some of the materials requested, it didn’t release others he believed to be public record. In a March 2012 letter, the patrol confirmed that it refused to provide certain records because they were “investigatory work product” for an ongoing criminal investigation so they weren’t subject to disclosure under the public records law. Specifically, the patrol did not release impaired-driver reports and video and audio recordings from Trooper Joseph Westhoven’s cruiser related to a traffic stop, detention, arrest, and transport of Ashley Ruberg on July 15 or July 16, 2011.
Miller asked the Twelfth District Court of Appeals for a writ of mandamus (an order compelling an official to perform mandatory or purely administrative duties correctly) to force the release of these records.
The appeals court detailed numerous problems in Miller’s case, including procedural mistakes, contradictory and unsupported claims, and a faulty timeline, but it agreed to consider his affidavit and evidence. The court concluded that Miller hadn’t established a clear legal right, by clear and convincing evidence, to the records. Miller then exercised his right to appeal to Ohio Supreme Court.
While the Supreme Court notes in today’s ruling that Miller’s evidence was incomplete and presented in a confusing way, the court states that the patrol’s letter refusing to release some public records is clear and convincing evidence that he had stated a sufficient reason to be given the records and the patrol did not provide them. Once the patrol refused to provide the requested records, it must show that they were exempt from disclosure based on one of the public records statute’s exceptions. The court said: “Exceptions to disclosure under the Public Records Act 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.”
The patrol described the withheld records as “investigatory work product,” part of the “confidential law enforcement investigatory record” exception in the public records law.
The court, citing prior case law, said for the records to fall under this exception, the appellate court needs to apply a two-part test: “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)? ”
A record is a confidential law enforcement investigatory record, the Supreme Court stated, if it pertains to a “law enforcement matter of a criminal, quasi-criminal, civil, or administrative nature” whose release would create a “high probability of disclosure” of, in this case, “specific investigatory work product.” This type of work product is information, including notes, working papers, memoranda, or similar materials, compiled by law enforcement officials in connection with a likely or pending criminal proceeding, but it doesn’t include ongoing routine offense and incident reports.
The court remanded the case to the Twelfth District to review the withheld records and determine whether they are exempt under the Public Records Act.
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