[Cite as Hilliard City School Dist. v. Columbus Div. of Police, 2017-Ohio-8454.]




HILLIARD CITY SCHOOL DISTRICT                           Case No. 2017-00450-PQ

        Requester                                       Judge Patrick M. McGrath

        v.                                              DECISION ADOPTING
                                                        SPECIAL MASTER’S
COLUMBUS DIVISION OF POLICE                             REPORT AND RECOMMENDATION

        Respondent


        {¶1} Before the court is (1) a report and recommendation of Special Master
Jeffery W. Clark filed on September 12, 2017, (2) requestor Hilliard City School District’s
objections to Special Master Clark’s report and recommendation that the school district
filed on September 25, 2017, and (3) respondent Columbus Division of Police’s
response to the school district’s objections that the Columbus Division of Police filed on
October 3, 2017. Because, upon independent review, the court finds that the special
master identified the relevant law and properly applied the relevant law to the facts in
this case, in accordance with R.C. 2743.75(F)(2), the court adopts the special master’s
report and recommendation as its own, including the findings of fact and conclusions of
law contained in it.
                                                Background
        {¶2} On May 17, 2017, Hilliard City School District filed a complaint against the
Columbus Division of Police (CPD), alleging a denial of access to public records. The
school district seeks the release of records pertaining to the CPD’s investigation of an
alleged assault of a school bus driver employed by the school district. The school
district represents that, following the purported assault, its employee filed a workers’
compensation claim.            (The school district alleges, however, that certain relevant,
reliable, probative, and confidential information supports a conclusion that its
employee’s reported injuries “were purposely self-inflicted and there was no assailant as
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alleged.”) (Complaint, ¶ 13.) The school district maintains that it obtained a subpoena
from the Ohio Industrial Commission for the CPD’s complete investigative file.
According to the school district, the CPD produced some, but not all, of the documents
that it seeks.
       {¶3} After the school district filed its complaint, the court appointed attorney
Jeffery W. Clark as a special master in this cause pursuant to R.C. 2743.75. A mediator
subsequently conducted a mediation conference. Mediation, however, failed to
successfully resolve all disputed issues between the parties. The court returned the
case to the docket of Special Master Clark. Thereafter, after apparently construing
CPD’s response to the school district’s complaint as a motion to dismiss,
Special Master Clark issued a report and recommendation on September 12, 2017,
wherein he concluded: “Upon consideration of the pleadings and attachments, I find that
Hilliard SD has failed to establish by clear and convincing evidence that Columbus PD
violated division (B) of R.C. 149.43 by withholding records that were and remain
confidential law enforcement investigatory records. R.C. 149.43(A)(2). I recommend
that respondent’s motion to dismiss for failure to state a claim pursuant to
Civ.R. 12(B)(6) be GRANTED.”
       {¶4} On September 25, 2017, the school district, through its counsel, filed written
objections to the special master’s report and recommendation.          According to the
certificate of service attached to the objections, the school district, through counsel,
served a copy of its objections on CPD’s counsel via certified mail. However, the school
district later filed a notice indicating that it served its objections on CPD “by means of
FedEx, Certified Mail, Return Receipt Requested,” attaching a FedEx receipt indicating
that delivery was made on September 26, 2017.
       {¶5} On October 3, 2017, the CPD filed a response to the school district’s
objections, contending that (1) the special master applied the appropriate standard and
correctly determined the withheld records are confidential law enforcement investigatory
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records, and (2) the special master did not err in not addressing whether or not a
constitutional right to information privacy applied to the withheld records. According to
the CPD, it received service of the school district’s objections on September 26, 2017.
And, according to the certificate of service attached to the response, CPD’s counsel
served the CPD’s response on the school district’s counsel on October 3, 2017 via
electronic mail and certified mail, return receipt requested.
                                    Law and Analysis
       {¶6} R.C. 2743.75(F)(2) governs objections to a special master’s report and
recommendation related to a dispute alleging a denial of access to public records.
Pursuant to R.C. 2743.75(F)(2):
       Either party may object to the report and recommendation within seven
       business days after receiving the report and recommendation by filing a
       written objection with the clerk and sending a copy to the other party by
       certified mail, return receipt requested. Any objection to the report and
       recommendation shall be specific and state with particularity all grounds
       for the objection. If neither party timely objects, the court of claims shall
       promptly issue a final order adopting the report and recommendation,
       unless it determines that there is an error of law or other defect evident on
       the face of the report and recommendation. If either party timely objects,
       the other party may file with the clerk a response within seven business
       days after receiving the objection and send a copy of the response to the
       objecting party by certified mail, return receipt requested. The court,
       within seven business days after the response to the objection is filed,
       shall issue a final order that adopts, modifies, or rejects the report and
       recommendation.
(Emphasis added.) A review of the court’s docket and filings in the case indicates
that (1) on September 14, 2017, counsel for the school district received a copy of
Special Master Clark’s report and recommendation, (2) on September 25, 2017 —
within seven business days after the report and recommendation was issued — the
school district, through its counsel, filed written objections to the report and
recommendation, and (3) the school district, through its counsel, served its objections
Case No. 2017-00450-PQ                        -4-     REPORT AND RECOMMENDATION


on CPD’s counsel by means of FedEx — not by certified mail, return receipt requested,
as required by R.C. 2743.75(F)(2).
        {¶7} Since the school district served its objections on CPD’s counsel by means of
FedEx, the school district has failed to comply with procedural requirements for serving
its objections, as set forth in R.C. 2743.75(F)(2), because the statute does not authorize
service of objections by means of a commercial carrier service. However, in the interest
of justice — and under the circumstances of this case only — the court finds that the
school district substantially complied with requirements contained in R.C. 2743.75(F)(2).
And the court accepts the school district’s objections as timely filed.
        {¶8} The court also accepts the CPD’s response to the school district’s objections
as timely filed because the CPD filed its response within seven business days after it
received the school district’s objections and because it served its response on the
school district’s counsel by certified mail, return receipt requested, as required by
R.C. 2743.75(F)(2).
I.      Hilliard City School District’s Objections to Special Master Clark’s
        Report and Recommendation
        Hilliard City School District presents two objections for the court’s consideration:
     (1) “The Special Master erred in determining that the law enforcement
         investigatory work product exception, R.C. 149.43(A)(2)(c), applied to the
         requested records because the Special Master failed to find that it was
         clear that a crime had in fact been committed.”

     (2) “The Special Master erred in failing to address Respondent’s improper
         denial of Requestor’s public records request based on the claim that the
         release of the records was prohibited by the alleged victim’s constitutional
         right to privacy, making them ‘records the release of which is prohibited by
         state or federal law’ under R.C. 149.43(A)(1)(v).”

     A. Objection No. 1
        {¶9} By its first objection, the school district contends that the special master
erred    in   determining   that   the   confidential-law-enforcement-investigatory-records
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(CLEIRs) exception contained in R.C. 149.43(A)(2)(c) applied because the special
master did not find that “it was clear that a crime had in fact been committed.” The court
finds that this objection is not persuasive for reasons discussed below.
       {¶10} R.C. 149.43 governs the availability of public records. According to
R.C. 149.43(A)(1), as used in R.C. 149.43, a “public record” “does not mean any of the
following: * * * (h) Confidential law enforcement investigatory records.” Pursuant to
R.C. 149.43(A)(2), a confidential law enforcement investigatory record means
       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 any of
       the following:
       (a) The identity of a suspect who has not been charged with the offense
       to which the record pertains, or of an information source or witness to
       whom confidentiality has been reasonably promised;

       (b) Information provided by an information source or witness to whom
       confidentiality has been reasonably promised, which information would
       reasonably tend to disclose the source’s or witness’s identity;

       (c) Specific confidential investigatory techniques or procedures or
       specific investigatory work product;

       (d) Information that would endanger the life or physical safety of law
       enforcement personnel, a crime victim, a witness, or a confidential
       information source.

In State ex rel. Miller v. Ohio State Hwy. Patrol, 136 Ohio St.3d 350, 2013-Ohio-3720,
995 N.E.2d 1175, ¶ 25-26 — a case in which a party made a public-records request of
the Ohio Highway Patrol — the Ohio Supreme Court discussed a two-part test for
determining whether the exception contained in R.C. 149.43(A)(2) applied and it also
discussed R.C. 149.43(A)(2)(c) (specific confidential investigatory technique or specific
investigatory work product), stating:
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               Whether a particular record is a “confidential law enforcement
        investigatory record” is determined by 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)?” ’ ” State ex rel. Musial
        v. N. Olmsted, 106 Ohio St.3d 459, 2005-Ohio-5521, 835 N.E.2d 1243,
        ¶ 19, quoting State ex rel. Beacon Journal Publishing Co. v. Maurer,
        91 Ohio St.3d 54, 56, 741 N.E.2d 511 (2001), quoting State ex rel.
        Polovischak v. Mayfield, 50 Ohio St.3d 51, 52, 552 N.E.2d 635 (1990).
        Thus, the Patrol needs to establish that the withheld records pertain to a
        “law enforcement matter of a criminal, quasi-criminal, civil, or
        administrative nature” whose release would create a “high probability of
        disclosure” of “specific investigatory work product.”
               “Specific investigatory work product” consists of “information,
        including notes, working papers, memoranda, or similar materials,
        assembled by law enforcement officials in connection with a probable or
        pending criminal proceeding.” State ex rel. Beacon Journal Publishing Co.
        v. Maurer at 56, citing State ex rel. Steckman v. Jackson, 70 Ohio St.3d
        420, 434, 639 N.E.2d 83 (1994). However, “specific investigatory work
        product” does not include “ongoing routine offense and incident reports.”
        Id., paragraph five of the syllabus. See also Beacon Journal at 57; State
        ex rel. Logan Daily News v. Jones, 78 Ohio St.3d 322, 323, 677 N.E.2d
        1195 (1997). Records “ ‘even further removed from the initiation of the
        criminal investigation than the form reports themselves,’ ” such as 9-1-1
        recordings, are also public records. Beacon Journal, Id., quoting State ex
        rel. Cincinnati Enquirer v. Hamilton Cty., 75 Ohio St.3d 374, 378, 662
        N.E.2d 334 (1996).
        {¶11} Here, according to the school district’s prayer for relief in its complaint, the
school district seeks:
a.   DVD recording of an officer interview with the employee;
b.   7 CDs of photographs;
c.   First Responder Letter by CPD Officer Chris Jones;
d.   Det. Paul Siniff’s summary of his interview with the employee;
e.   Property inventory list for sexual assault kit;
f.   Property inventory list for physical evidence and DNA swabs;
g.   Property request for latents;
h.   Evidence collection list and photograph list (CSSU);
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i.   Photos taken at the scene by CSSU;
j.   SANE Nurse Forensic Exam Forms and results.

(Prayer for Relief; Complaint, ¶ 25.)
        {¶12} In the report and recommendation, the special master found “that all of the
documents withheld in their entirety, as well as the portions of investigatory records
produced per subpoena [issued by the Ohio Industrial Commission], are the notes,
working papers, memoranda or similar materials assembled by Columbus PD in
connection with a probable criminal proceeding.” (Report and Recommendation, 11.)
        {¶13} Based on the court’s review, the court concludes that the special master’s
finding regarding the withheld documents is not error. Items (a)-(i) constitute records
that pertain to a law enforcement matter of a criminal nature because they consist of
information assembled by law enforcement officials in connection with a probable
criminal proceeding. And, with respect to item (j) (SANE nurse forensic exam forms and
results), as the special master noted in the Report and Recommendation at 6, the
content and internally expressed purpose of the SANE records are consistent with the
gathering of evidence for investigation and prosecution of alleged offenses; it follows
therefore that item (j) is a record that pertains to a law enforcement matter of a criminal
nature. See State v. Stahl, 111 Ohio St.3d 186, 2006-Ohio-5482, 855 N.E.2d 834,
¶ 4 (consent for examination by a sexual assault nurse examiner [SANE]) (stating
“ ‘I voluntarily consent to this forensic examination and collection of evidence. * * *
I authorize the release of evidence, information (including protected health information),
clothing, colposcope photos, and photography documentation of injuries to a law
enforcement agency for use only in the investigation and prosecution of this crime.’ ”).
The first part of the two-part test discussed in Miller is therefore satisfied with respect to
items (a)-(j).
        {¶14} The next prong of the two-part requires a determination whether the
release of the requested records creates a high probability of disclosure of specific
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confidential investigatory techniques or procedures, or specific investigatory work
product. In the report and recommendation, the special master concluded that “all of
the withheld records meet the definition of ‘specific investigatory work product.’” (Report
and Recommendation, 12.)
       {¶15} Here, the school district seems to assert that the requested information is
not specific investigatory work product, as the special master determined, because it is
not clear that a crime was committed due to a lack of physical evidence in the case.
Relying on State ex rel. Leonard v. White, 75 Ohio St.3d 516, 518, 664 N.E.2d 527
(1996), the school district states: “The Special Master failed to find that it was clear that
a crime had in fact been committed, and therefore, failed to find that a criminal
proceeding was highly probable.” (Objections, 2.)
       {¶16} In State ex rel. Leonard at 517-518, the Ohio Supreme Court discussed its
precedent concerning the application of the CLEIRs exception contained in
R.C. 149.43(A)(c)(2), explaining:
                In State ex rel. Steckman v. Jackson (1994), 70 Ohio St.3d 420,
       639 N.E.2d 83, at paragraph five of the syllabus, we held that “except as
       required by Crim.R. 16, information assembled by law enforcement
       officials in connection with a probable or pending criminal proceeding is,
       by the work product exception found in R.C. 149.43(A)(2)(c), excepted
       from required release as said information is compiled in anticipation of
       litigation.” (Emphasis added.) We subsequently held that “Steckman
       applies to actual pending or highly probable criminal prosecutions and
       defines, in that context, the very narrow exceptions to R.C. 149.43.”
       (Emphasis added in part.) State ex rel. Police Officers for Equal Rights v.
       Lashutka (1995), 72 Ohio St.3d 185, 188, 648 N.E.2d 808, 810; see, also,
       Multimedia, supra, 72 Ohio St.3d at 149, 647 N.E.2d at 1382 (Douglas, J.,
       concurring).
             Relying on Steckman and Police Officers, relator contends that the
       records do not constitute R.C. 149.43(A)(2)(c) work product because there
       is no evidence that a criminal proceeding is either “pending” or “highly
       probable” with regard to the person or persons who killed Lawrence
       Leonard. The evidence indicates that although it became clear almost
       immediately that Lawrence Leonard’s death was a homicide, the
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       investigative file remains open, and no persons have been charged in
       connection with the homicide.
             In interpreting paragraph five of the Steckman syllabus, we
       are guided by S.Ct.R.Rep.Op. 1(B), which states that “the syllabus of a
       Supreme Court opinion states the controlling point or points of law decided
       in and necessarily arising from the facts of the specific case before the
       Court for adjudication." (Emphasis added.) State ex rel. Heck v. Kessler
       (1995), 72 Ohio St.3d 98, 103, 647 N.E.2d 792, 797. In Steckman, supra,
       70 Ohio St.3d at 434, 639 N.E.2d at 94, we held that any notes, working
       papers, memoranda or similar materials prepared by attorneys or law
       enforcement officials in anticipation of litigation constitute work product.
               Construing paragraph five of the Steckman syllabus in the context
       of its discussion concerning work product, it is apparent that relator
       misinterprets Steckman. Almost immediately after Lawrence Leonard’s
       death, the police considered it a homicide. Once it is evident that a crime
       has occurred, investigative materials developed are necessarily compiled
       in anticipation of litigation and so fall squarely within the Steckman
       definition of work product. Consequently, we hold that where it is evident
       that a crime has occurred, although no suspect has yet been charged, any
       notes, working papers, memoranda, or similar materials compiled by law
       enforcement officials in anticipation of a subsequent criminal proceeding
       are exempt from disclosure as R.C. 149.43(A)(2)(c) work product.
               Under the circumstances of this case, a criminal proceeding is
       “probable” within the meaning of paragraph five of the Steckman syllabus
       and “highly probable” under Police Officers even where the police have
       not yet identified a suspect, as long as it is clear that a crime has in fact
       been committed. In cases such as this, the investigative record is
       necessarily compiled in anticipation of litigation. Moreover, as respondents
       note, if we were to adopt relator’s construction of the R.C. 149.43(A)(2)(c)
       work product exception as redefined in Steckman, police departments’
       efforts to effectively investigate and apprehend criminals would be
       frustrated.
       {¶17} Here, an absence of physical evidence, which the school district maintains
is present in this case, does not necessarily compel a conclusion that no crime has in
fact been committed. For example, physical evidence of an assault may be absent
because it is yet to be discovered. And if, for the sake of argument, the school district’s
employee’s injuries were self-inflicted, as alleged by the school district, and if the school
Case No. 2017-00450-PQ                       -10-       REPORT AND RECOMMENDATION


district’s employee falsely reported the incident as an assault or wrongly sought
workers’ compensation benefits, a crime arguably may have been committed. See,
e.g., R.C. 2921.12(A)(2) (tampering with evidence); R.C. 2913.42(A) (tampering with
records). Thus, in this case the absence of physical evidence is not sufficient to
conclude that a crime has not been committed.
       {¶18} Nonetheless, whether a crime has been committed in this case is not for
this court to determine. Compare R.C. 309.08(A) (“The prosecuting attorney may inquire
into the commission of crimes within the county”) with R.C. 2743.03(A)(1) (“The court of
claims is a court of record and has exclusive, original jurisdiction of all civil actions
against the state permitted by the waiver of immunity contained in section 2743.02 of
the Revised Code and exclusive jurisdiction of the causes of action of all parties in civil
actions that are removed to the court of claims”) and R.C. 2743.03(A)(3)(b) (in addition
to exclusive, original jurisdiction conferred by R.C. 2743.03(A)(1) and (2), the court of
claims has exclusive, original jurisdiction under R.C. 2743.75 to hear complaints
alleging a denial of access to public records in violation of R.C. 149.43(B), regardless of
whether the public office or person responsible for public records is an office or
employee of the state or of a political subdivision).
       {¶19} Moreover, if this court were to adopt the school district’s interpretation of
Leonard, then the CPD’s efforts to effectively investigate and apprehend criminals may
be frustrated — a point noted with approval by the Ohio Supreme Court in Leonard.
See Leonard at 518.
       {¶20} In sum, the court finds the school district’s first objection is not persuasive.
The school district’s first objection is overruled.

   B. Objection No. 2
       {¶21} By its second objection, the school district contends that the special master
erred by not addressing arguments related to a constitutional right to privacy when he
issued his report and recommendation. In this instance, the special master did not
Case No. 2017-00450-PQ                       -11-      REPORT AND RECOMMENDATION


address the constitutional claims because he had earlier concluded in his report and
recommendation that all the withheld records were subject to the CLEIRs exception
and, as a consequence, it was not necessary for him to address the constitutional
claims.
       {¶22} Given that the court has concluded that the special master correctly
determined that the CLEIRs exception applied to the documents withheld by the CPD,
the court determines that the special master’s exercise of judicial restraint in this
instance is proper.    See generally State ex rel. Luken v. Corp. for Findlay Mkt. of
Cincinnati, 135 Ohio St.3d 416, 2013-Ohio-1532, 988 N.E.2d 546, ¶ 25 (“The ‘ “cardinal
principle of judicial restraint — if it is not necessary to decide more, it is necessary not to
decide more” ’ — counsels against deciding issues rendered moot by our determination
that the redacted information constitutes trade secrets. State ex rel. Asti v. Ohio Dept. of
Youth Servs., 107 Ohio St.3d 262, 2005-Ohio-6432, 838 N.E.2d 658, ¶ 34, quoting PDK
Laboratories, Inc. v. United States Drug Enforcement Administration (D.C.Cir.2004),
362 F.3d 786, 799 (Roberts, J., concurring in part and in the judgment)”); Meyer v. UPS,
122 Ohio St.3d 104, 2009-Ohio-2463, 909 N.E.2d 106, ¶ 53.
       {¶23} Moreover, as the Ohio Supreme Court has stated, “It has become settled
judicial responsibility for courts to refrain from giving opinions on abstract propositions
and to avoid the imposition by judgment of premature declarations or advice upon
potential controversies.” Fortner v. Thomas, 22 Ohio St.2d 13, 14, 257 N.E.2d 371
(1970).   And, it is established that courts decide constitutional issues only when
necessary, State ex rel. Dispatch Printing Co. v. Johnson, 106 Ohio St.3d 160, 2005-
Ohio-4384, 833 N.E.2d 274, ¶ 43, and this precept has been applied to public-record
cases. Johnson, at ¶ 43, citing State ex rel. Beacon Journal Publishing Company Co. v.
Akron, 104 Ohio St.3d 399, 2004-Ohio-6557, 819, N.E.2d 1087, at ¶ 48.
       {¶24} The court finds the school district’s second objection is not persuasive.
The school district’s second objection is overruled.
Case No. 2017-00450-PQ                     -12-     REPORT AND RECOMMENDATION


      II. Conclusion
         {¶25} Because, upon independent review the court finds that the special master
identified the relevant law and properly applied the relevant law to the facts in this case,
in accordance with R.C. 2743.75(F)(2), the court adopts the special master’s report and
recommendation as its own, including the findings of fact and conclusions of law
contained in it.




                                               PATRICK M. McGRATH
                                               Judge

cc:
Richard Goldberg                             Michael R. Halloran
William R. Creedon                           77 North Front Street
250 East Broad Street, 9th Floor             Columbus, Ohio 43215
Columbus, Ohio 43215
Case No. 2017-00450-PQ                      -13-     REPORT AND RECOMMENDATION



HILLIARD CITY SCHOOL DISTRICT                 Case No. 2017-00450-PQ

       Requester                              Judge Patrick M. McGrath

       v.                                     JUDGMENT ENTRY

COLUMBUS DIVISION OF POLICE

       Respondent


        {¶26} For the reasons set forth in the decision filed concurrently herewith,
judgment is rendered in favor of respondent Columbus Division of Police. Court costs
are assessed against requester Hilliard City School District. The clerk shall serve upon
all parties notice of this judgment and its date of entry upon the journal.




                                                PATRICK M. McGRATH
                                                Judge

cc:
Richard Goldberg                              Michael R. Halloran
William Robert Creedon                        77 North Front Street
250 East Broad Street                         Columbus, Ohio 43215
9th Floor
Columbus, Ohio 43215


Filed October 6, 2017
Sent to S.C. Reporter 11/7/17
