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Court News Ohio
Court News Ohio

Most Criminal Investigation Records Become Public When Trial Concludes

Most law enforcement records involving the investigation of a suspect become public record once the suspect’s trial concludes, the Ohio Supreme Court ruled today.

The Supreme Court ruled that most of the records sought by the Ohio Innocence Project from the Columbus Division of Police since 2013 must be turned over, and that the city owes an attorney seeking the records $1,000 in damages along with court costs and reasonable attorney fees.

The city had labeled as “specific investigatory work product” certain records from the 2007 conviction of Adam Saleh, and argued the records could be withheld until “all proceedings” are concluded, even if Saleh was no longer actively appealing his case. Writing for the court majority, Justice Paul Pfeifer determined that position taken violated the Ohio Public Records Act.

The decision addressed an interpretation of the act first adopted by the Court in a 1994 case that prevented criminal defendants from using the public records act to access information from police and prosecutors that they were not entitled to under the rules for criminal discovery at the time. Justice Pfeifer noted that a broad reform of the discovery rule in 2010 grants a defendant far greater access to the state’s files, and the restrictions on public access to the material should be loosened.

In a concurring opinion, Chief Justice Maureen O’Connor wrote that the majority goes too far in narrowing the specific investigatory work product exemption and she would permit records that contain the “theories, impressions, and strategies,” used by law enforcement to remain exempt.

Justice Terrence O’Donnell dissented stating he would not overrule any portion ofthe 1994 case.

Innocence Project Seeks Records
Donald Caster is an Ohio attorney engaged by the Ohio Innocence Project (OIP), an organization whose mission is to identify, investigate, and litigate cases for those who may have been wrongfully convicted of serious crimes. OIP does not intervene in every case it reviews, and only represents a small percentage of those seeking its help. In some cases it requests public records to determine whether a defendant is a candidate for OIP assistance.

Saleh was convicted of the murder, kidnapping and attempted rape of Julie Popovich in 2007 and was sentenced to 38 years to life in prison. The Tenth District Court of Appeals affirmed the conviction and in 2009, the Ohio Supreme Court declined to review his case. Saleh has no pending proceedings and did not have any pending in 2013 when the OIP first sought records from the Columbus police. OIP informed Saleh it would not enter an attorney-client relationship until it determined if there was evidence to indicate he was wrongfully convicted.

OIP law student fellows first requested “a copy of any police records related to the arrest and subsequent investigation” of Saleh for the crimes involving Popovich, including “medical records, police reports, investigation notes, evidence reports, and any other materials compiled by the Columbus Division of Police.”

The department rejected the request citing R.C. 149.43(A)(1)(h), which exempts “confidential law enforcement investigatory records.” The provision has five categories of information it may withhold including the one the court found to be primarily at issue in the case— “specific investigatory work product.” The police cited the Ohio Supreme Court’s 1994 State ex rel. Steckman v. Jackson as its legal support for rejecting the request.

When the police department rejected a subsequent request from the law students, Caster submitted by certified mail a request to the department. The police did not respond and did not provide copies of records. Caster filed a writ of mandamus in September 2014 and a month later, the police provided some records, but asserted that most of what Caster sought was exempt under the holdings of Steckman and subsequent court rulings.

Caster filed a second writ of mandamus with the Supreme Court to challenge Columbus police’s refusal to provide the records, and the police responded that under Steckman the confidential records were exempt until the “completion of the criminal case. “Justice Pfeifer noted the city did not specify how long a convicted defendant or a member of the public must wait.

Records Could Be Withheld Until Convict Dies
Justice Pfeifer explained that interpretations from the Steckman decisions and cases that followed, including the 1997 State ex rel. WLWT-TV5 v. Leis decision indicated the investigatory work product exemption extends “until all proceedings are fully completed.” Justice Pfeifer noted the Eighth District Court of Appeals came to “the cold but logical conclusion” that numerous proceedings can extend beyond a convict’s direct appeals, and are possible up until the time the convict dies.

“That is, a defendant or member of the public can access potentially exonerating material concerning a defendant only after the defendant is dead. How did we get to this point?” he wrote.

Steckman Addressed Broken System
Justice Pfeifer noted that Steckman is actually the consolidation of three cases and sought to address numerous complaints in the legal system about attempts by suspects to obtain the contents of police and prosecutor files that they were not entitled to under Criminal Rule 16, the discovery rule. He noted that the discovery rule at the time did not require what is often called “full,” or “open file” discovery. Use of the records law was leading to delays in prosecutions and also raising concerns that the state might violate a defendant’s constitutional right to a speedy trial if they attempted to object to the suspect’s record requests.

Also missing from the law at the time was the “reciprocal right of discovery” giving the prosecutors a chance to see everything in the defense attorney’s files.

To address the issue, the Court in Steckman limited the defendant’s access to only the information obtainable through discovery. Pfeifer wrote that Steckman expanded the definition of “specific investigatory work product” and “narrowed the kinds of records available as public records.” Justice Pfeifer noted that the Court in Steckman did not specifically state how long the investigatory work product exception continued beyond the completion of the trial, but did say that those records containing “information assembled by law enforcement officials in connection with a probable or pending criminal proceeding are excepted from required release.” Further analysis of the term “proceedings” found that the exception could extend far beyond the trial.

Justice Pfeifer explained that the Court has acknowledged that the holding regarding the duration of the exception “may seem harsh” but “was not without good reason.” That reason was that a person convicted of a crime should not have available to him or her in postconviction proceedings any more evidence than would have been available to him or her under the discovery rule at the original trial.

Rule Changed in 2010
With the discovery rule change, the scope of material to be exchanged between the parties expanded. Justice Pfeifer noted the new rule included two significant changes, including the right for the suspect to request prior to trial “[a]ny written or recorded statement by a witness in the state’s case-in-chief, or that it reasonably anticipates calling as a witness in rebuttal,” as well as “[a]ll reports from peace officers, the Ohio State Highway Patrol, and federal law enforcement agents.”

The Court stated that the rule also requires reciprocal discovery, which means that if a public records request is made either by the defendant, directly or indirectly, then the prosecutor has the right to request information from the defense’s files. Justice Pfeifer explained this minimized any perceived advantage a defendant could gain on retrial using public record requests.

Time Limit Examined
Justice Pfeifer pointed out that the public records act “‘is to be construed liberally in favor of broad access, and any doubt is to be resolved in favor of disclosure of public records,‘” citing the Court’s 1997 State ex rel. Gannett Satellite Information Network v. Shirey decision. He wrote that the Steckman decision was “based on expedience” and the new rule addressed the concerns. He wrote that the Court also should be concerned “with the interests of justice,” noting that one defendant from the Steckman case was able to obtain his criminal records through other means and had his conviction overturned based on the investigatory records of the crimes for which he was convicted.

The Court concluded that the records should be exempt only until the completion of the trial for which the information was gathered. The Court granted Caster’s writ and found the police must provide the records, but can redact information that is protected by other provisions of the law, such as those that protect against revealing the identities of uncharged suspects, witnesses and confidential informants who may be endangered if they are named.

Justices Sharon L. Kennedy, Judith L. French, and William M. O’Neill joined Justice Pfeifer’s opinion.

Concurrence Would Limit Records
Chief Justice O’Connor wrote in her separate opinion, concurring in part and dissenting in part, that she would modify the Steckman ruling on the ground that the revisions to Criminal Rule 16 have changed the circumstances for defendants and police departments such that the justification for Steckman no longer is relevant.

Her recommended change would mean that facts the investigator gathers would no longer be considered “specific investigatory work product,” and would be subject to disclosure while “the theories, mental impressions, and thought processes of the investigator” would be excepted from the public records act.

However, the rule does not require everything gathered by prosecutors to be disclosed.

“The majority opens the door for disclosure well beyond what even Crim.R. 16 requires, and it does so without any of the safeguards that the rule and R.C. 149.43(A)(2) put in place,” she wrote.

The chief justice also would extend the time that specific investigatory work product materials can be exempt-- from after the trial’s conclusion to after all direct appeals are exhausted. She noted another part of the records law, R.C. 149.43(A)(4), the trial-preparation exception, protects the bulk of a law-enforcement file from disclosure until a defendant has exhausted all direct appeals or until the law-enforcement department closes the case following a decision not to press charges.

Records protected from disclosure under the trial-preparation exception would include public records that are not excepted from disclosure as specific investigatory work product, such as witness statements with identifying information removed, lab results, and other factual materials.  Releasing some of the information immediately after the trial would conflict with the trial-preparation exception, she maintained.

Justice Judith Ann Lanzinger joined Chief Justice O’Connor’s opinion.

2014-1621. State ex rel. Caster v. City of Columbus, Slip Opinion No. 2016-Ohio-8394.

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