[Cite as Cobb v. Summit Cty. Prosecutor, 2020-Ohio-636.]




CINDEE COBB                                           Case No. 2019-00597PQ

       Requester                                      Special Master Jeff Clark

       v.                                             REPORT AND RECOMMENDATION

OFFICE OF THE SUMMIT COUNTY
PROSECUTOR

       Respondent



        {¶1} The Public Records Act, R.C. 149.43, provides that upon request, a public
office “shall make copies of the requested public record available to the requester at
cost and within a reasonable period of time.” R.C. 149.43(B)(1). Ohio courts construe
the Public Records Act liberally in favor of broad access, with any doubt resolved in
favor of disclosure of public records. State ex rel. Hogan Lovells U.S., L.L.P. v. Dept. of
Rehab. & Corr., 156 Ohio St.3d 56, 2018-Ohio-5133, 123 N.E.3d 928, ¶ 12. “‘The Public
Records Act serves a laudable purpose by ensuring that governmental functions are not
conducted behind a shroud of secrecy.’” (Citation omitted.) State ex rel. ESPN, Inc. v.
Ohio State Univ., 132 Ohio St.3d 212, 2012-Ohio-2690, 970 N.E.2d 939, ¶ 40.
        {¶2} On March 4, 2019, requester Cindee Cobb made a request to respondent
Office of the Summit County Prosecutor (Prosecutor’s Office) for
        The initial offense and incident report: all follow-up reports; all witness
        statements; autopst [sic] and coroner reports; all investigation notes about
        witness statements; and all reports/results of any forensic or scientific
        tests related to the death of Ashley Biggs in Summit County, Ohio, on
        6/21/2012

(Complaint at 2.) Other than verbal acknowledgement that the request had been
received, Cobb received no records or other response from the Prosecutor’s Office prior
to filing this action. (Id. at 3.) Cobb was provided with a copy of the requested “initial
Case No. 2019-00597PQ                      -2-     REPORT AND RECOMMENDATION


offense and incident report * * * related to the death of Ashley Biggs” by the New
Franklin Police Department prior to filing her complaint against the Prosecutor’s Office.
(Reply at 2.) See Cobb v. New Franklin Police Department, Ct. of Cl. No. 2019-
00435PQ. On April 1, 2019, Cobb filed a complaint pursuant to R.C. 2743.75 alleging
denial of access to public records by the Prosecutor’s Office in violation of R.C.
149.43(B). Following unsuccessful mediation, the Prosecutor’s Office filed a motion to
dismiss (Response) on December 17, 2019. Cobb filed a reply on January 21, 2020.
      {¶3} R.C. 2743.75 provides “an expeditious and economical procedure” to
resolve public records disputes in the Court of Claims. A claim under R.C. 2743.75 to
enforce the Public Records Act must be established by clear and convincing evidence.
Hurt v. Liberty Twp., 2017-Ohio-7820, 97 N.E.3d 1153, ¶ 27-30 (5th Dist.). However, if
the public office asserts that an exception applies, “[e]xceptions to disclosure under the
Public Records Act, R.C. 149.43, 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.” State ex rel. Cincinnati Enquirer v. Jones-
Kelley, 118 Ohio St.3d 81, 2008-Ohio-1770, 886 N.E.2d 206, paragraph two of the
syllabus. Any doubt as to an exception should be resolved in favor of disclosure. State
ex rel. James v. Ohio State Univ., 70 Ohio St.3d 168, 169, 637 N.E.2d 911 (1994).
      Motion to Dismiss
      {¶4} In order to dismiss a complaint for failure to state a claim upon which relief
can be granted, it must appear beyond doubt that the claimant can prove no set of facts
warranting relief after all factual allegations of the complaint are presumed true and all
reasonable inferences are made in claimant’s favor. State ex rel. Findlay Publishing Co.
v. Schroeder, 76 Ohio St.3d 580, 581, 669 N.E.2d 835 (1996). As long as there is a set
of facts consistent with the complaint that would allow the claimant to recover, dismissal
Case No. 2019-00597PQ                        -3-     REPORT AND RECOMMENDATION


for failure to state a claim is not proper. State ex rel. V.K.B. v. Smith, 138 Ohio St.3d 84,
2013-Ohio-5477, 3 N.E.3d 1184, ¶ 10.
       {¶5} The Prosecutor’s Office asserts that Cobb has failed to state a claim upon
which relief can be granted because the requested records are exempt as confidential
law enforcement investigatory records (CLEIRs). On review, I find that the facts required
to support the application of the CLEIRs exceptions are not shown on the face of the
complaint and attachments. I therefore recommend that the motion to dismiss based on
CLEIRs be denied, and Cobb’s claim for production of records be determined on the
merits.
       Confidential Law Enforcement Investigatory Records (CLEIRs)
       Exception
       {¶6} Under R.C. 149.43(A)(1)(h), “public record” does not include confidential law
enforcement investigatory records (CLEIRs). R.C. 149.43(A)(2) codifies the CLEIRs
exceptions claimed by the Prosecutor’s Office as follows:
       (2) “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, * * *;
          ***
          (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.
Application of the CLEIRs exception involves a two-part test; first, whether a record
“pertains to a law enforcement matter” of a criminal, quasi-criminal, civil, or
administrative nature, and second, whether release of the record would create a high
probability of disclosure of information detailed in subdivisions (2)(a) through (d). State
Case No. 2019-00597PQ                        -4-     REPORT AND RECOMMENDATION


ex rel. Miller v. Ohio State Highway Patrol, 136 Ohio St.3d 350, 2013-Ohio-3720, 995
N.E.2d 1175, ¶ 25. None of the second-part exceptions in R.C. 149.43(A)(2)(a) through
(d) apply unless the records first “pertain to a law enforcement matter.” State ex rel.
Beacon Journal Publ. Co. v. Maurer, 91 Ohio St.3d 54, 56-57, 741 N.E.2d 511 (2001).
       With One Exception, The Requested Records Pertain to a Law
       Enforcement Matter of a Criminal Nature
       {¶7} A record “pertains to a law enforcement matter of a criminal nature” if it
arises from suspicion by an agency with authority to investigate of the violation of a
criminal law. State ex rel. Cincinnati Enquirer v. Ohio Dept. of Pub. Safety, 148 Ohio
St.3d 433, 2016-Ohio-7987, 71 N.E.3d 258, ¶ 39. The Summit County Prosecuting
Attorney is a law enforcement officer with authority to investigate and prosecute criminal
laws. R.C. 2901.01(A)(11)(h); R.C. 309.08(A). The investigation in this case arose from
suspicion that a person or persons had committed criminal offenses related to the death
of Ashley Biggs on June 21, 2012. (Response, LoPrinzi Aff. at ¶ 3-5, 15.) I find that the
withheld records of the investigation “pertain to a law enforcement matter of a criminal
nature” – for all but one requested record: the initial incident and offense report.
       {¶8} Incident reports initiate criminal investigations, but are not part of the
investigation. Incident reports are thus not confidential law enforcement investigatory
records, and are public records subject to immediate release upon request. Maurer at
56; Steckman v. Jackson, 70 Ohio St.3d 420, 639 N.E.2d 83 (1994), paragraph five of
the syllabus. The incident report kept by the Prosecutor’s Office is therefore a public
record that was subject to immediate release to Cobb’s request.
       {¶9} With regard to the second part CLEIRs exceptions, the Prosecutor’s Office
asserts that the remaining records fall in whole or in part under: 1) the “uncharged
suspect” exception contained in subdivision 149.43(A)(2)(a), 2) the “specific
investigatory work product” exception contained in (A)(2)(c), 3) the “specific confidential
law enforcement techniques or procedures” exception contained in (A)(2)(c), and 4) the
“endangerment of life or physical safety” exception contained in subdivision (A)(2)(d).
Case No. 2019-00597PQ                      -5-     REPORT AND RECOMMENDATION


      Records Identifying an Uncharged Suspect
      {¶10} One subject of the investigation, Chad Jay Cobb, has been convicted of
aggravated murder and related charges. The Prosecutor’s Office attests that at the time
of Cobb’s request it had been investigating the involvement of a second suspect in the
matter, but had not yet charged that suspect. (Response at 3, LoPrinzi Aff. at ¶ 5, 14-
16.) These uncontested facts satisfy the agency’s burden to show the applicability of the
uncharged suspect exception at the time Cobb’s public records request was made.
      {¶11} Had the uncharged suspect exception remained applicable as of the date
of this report, the court would need to determine what specific information within the
records falls squarely within the exception. State ex rel. Rocker v. Guernsey Cty.
Sheriff’s Office, 126 Ohio St.3d 224, 2010-Ohio-3288, 932 N.E.2d 327, ¶ 11-15; Narciso
v. Powell Police Dept., Ct. of Cl. 2018-01195PQ, 2018-Ohio-4590, 8-14, 28-34.
However, the court is not limited to considering the facts and circumstances at the time
a public records enforcement proceeding was instituted, but should consider the facts
and conditions at the time it renders its determination. This includes changed
circumstances that remove records from previously justified application of a public
records exception. See State ex rel. Ohio Republican Party v. FitzGerald, 145 Ohio
St.3d 92, 2015-Ohio-5056, 47 N.E.3d 124, ¶ 24, 27-28; State ex rel. Quolke v.
Strongsville City School Dist. Bd. of Edn., 142 Ohio St.3d 509, 2015-Ohio-1083, 33
N.E.3d 30, ¶ 25-31; Gannett GP Media, Inc. v. Ohio Dept. of Pub. Safety, Ohio Ct. of Cl.
No. 2017-00051, 2017-Ohio-4247, ¶ 21-33. In this case, further analysis is unnecessary
because the second suspect has now been indicted, thereby terminating the uncharged
suspect exception with respect to that suspect. (LoPrinzi Aff. at ¶ 15-16, Exh. B.) Based
on the facts and circumstances existing at this time, I find that the uncharged suspect
exception may no longer be applied to any portion of the requested records. See State
ex rel. Moreland v. Dayton, 67 Ohio St. 3d 129, 131-132, 616 N.E.2d 234 (1993).
Case No. 2019-00597PQ                              -6-       REPORT AND RECOMMENDATION


        Specific Investigatory Work Product
        {¶12} After the point where an investigation has been initiated, the subsequent
work product of investigating officers is presumptively “investigatory” in nature. See
State ex rel. Fields v. Cervenik, 8th Dist. Cuyahoga No. 86889, 2006-Ohio-3969, ¶ 2-7;
Gannet GP Media, Inc. v. Chillicothe Police Dept. Ct. of Cl. No. 2017-00886, 2018-Ohio-
1552, ¶ 14, 19. The definition of “[s]pecific investigatory work product” has been found
to include “any notes, working papers, memoranda or similar materials,” and all other
“information assembled by law enforcement officials in connection with a probable or
pending criminal proceeding.” Cincinnati Enquirer v. Ohio Dept. of Pub. Safety, 148
Ohio St.3d 433, 2016-Ohio-7987, ¶ 41. In State ex rel. Steckman v. Jackson, 70 Ohio
St.3d 420, 434, 639 N.E.2d 83 (1994), the Supreme Court stated that “[t]his definition
(working papers) is broad enough to bring under its umbrella any records compiled by
law enforcement officials.” The exception applies seamlessly from the initial law
enforcement agency’s investigation through any additional investigation conducted by or
with the prosecutor. See State ex rel. Caster v. Columbus, 151 Ohio St.3d 425, 2016-
Ohio-8394, 89 N.E.3d 598, ¶ 25-30.
        The remainder of Cobb’s request seeks:
        all follow-up reports; all witness statements; autopst [sic] and coroner
        reports; all investigation notes about witness statements; and all
        reports/results of any forensic or scientific tests related to the death of
        Ashley Biggs in Summit County, Ohio, on 6/21/2012
(Complaint at 2.) As described, these are records that are investigatory in nature when
compiled by law enforcement officials, unless incorporated in the initial incident or
offense report. Maurer, 91 Ohio St.3d 54, 56, 741 N.E.2d 511 (2001).1

        1  Not all records placed in a law enforcement investigatory file are thereby subject to the
investigatory work product exception, see State ex rel. Ohio Patrolmen’s Benevolent Assn. v. Mentor, 89
Ohio St.3d 440, 448, 732 N.E.2d 969 (2000) (copies of newspaper articles and statutes); State ex rel.
WLWT-TV5 v. Leis, 77 Ohio St.3d 357, 361, 673 N.E.2d 1365 (1997) (copies of the indictment, statutes,
news articles, blank charitable organization registration form, organization’s yearbook and buyer’s guide,
Case No. 2019-00597PQ                              -7-       REPORT AND RECOMMENDATION


        {¶13} There is no express time limit in the CLEIRs statute for law enforcement
investigatory work product. Investigatory work product records “continue to be exempt
despite the passage of time, [or] the lack of enforcement action, * * *.” (Citations
omitted.) State ex rel. National Broadcasting Co. v. Cleveland, 57 Ohio St.3d 77, 78-80,
566 N.E.2d 146 (1991). However, this does not mean that the exception extends
indefinitely. In State ex rel. Steckman v. Jackson, 70 Ohio St.3d 420, 434, 639 N.E.2d
83 (1994), paragraph five of the syllabus, the Court held that the investigatory work
product exception applied so long as a record was maintained “in connection with a
probable or pending criminal proceeding.” The Steckman Court defined the duration of
the analogous “trial preparation record” exception using more specific terms of trial and
appellate activity:
        Once a record becomes exempt from release as a “trial preparation
        record,” that record does not lose its exempt status unless and until all
        “trials,” “actions” and/or “proceedings” have been fully completed.

Steckman, paragraph four of the syllabus. In State ex rel. WLWT-TV5 v. Leis, 77 Ohio
St.3d 357, 673 N.E.2d 1365 (1997) the Court
        adopted the Steckman reasoning regarding trial preparation records in
        holding that “[a]nalogously, once applicable, the records continue to be
        exempt work product until all proceedings are fully completed.” WLWT-
        TV5 at 360, citing Steckman at 437.

Caster at 34. The Leis adoption of the trial preparation duration standard for CLEIRs
investigatory work product made no change to the comprehensive nature of the criminal
“trials,” “actions” and/or “proceedings” that were covered. In Caster, the Court overruled
Steckman and Leis in part, but only to the extent those cases extended the CLEIRs
investigatory work product exception “beyond the completion of the trial for which the


transcript of plea hearing, videotape of news reports, and campaign committee finance report). However,
Cobb did not request a copy of the entire investigatory file so as to trigger a search for such non-exempt
items. She requested only specific, inherently investigatory record categories.
Case No. 2019-00597PQ                                -8-        REPORT AND RECOMMENDATION


information was gathered.” (Emphasis added.) Caster at ¶ 47. As in Leis, the Court in
Caster did not change the previous language including “trials,” plural, other than to limit
the exception beyond a trial for which the investigatory information was gathered.
        Cobb asks the court to consider
        whether the specific-investigatory-work-product exception of R.C.
        149.43(A)(2)(c) that does not extend beyond the completion of the trial for
        which the information was gathered applies to a completely separate trial
        related to the co-defendant and/or the same criminal conduct.

(Reply at 3.) Cobb apparently argues that “the trial” was deliberately used in Caster as a
singular term, meaning that investigatory work product gathered in connection with
multiple suspects to an offense loses its exempt status upon the trial of the first suspect.
Cobb admits she has found no case authority for this proposition (Id.), nor is there any
reason to believe that the legislature or the Supreme Court intend such a result in the
context of criminal investigations where the same information may be gathered to
support more than one suspect’s trial. In that context, and applying the rules of grammar
and common usage, I find that the phrase “the completion of the trial for which the
information was gathered” can only mean the completion of every trial for which the
information was gathered.2 The CLEIRs investigatory work product exception thus
applies to information gathered in connection with any probable or pending criminal trial
that has not yet concluded.
        {¶14} The Prosecutor’s Office attests that the investigation in this case continued
after the first suspect was charged, and that the prosecution of the recently charged
second suspect has not concluded. (Response at 3-4; LoPrinzi Aff., ¶ 5, 15.) I find that
the Prosecutor’s Office has met its burden of proof in showing that the withheld
investigatory records pertain to a law enforcement matter of a criminal nature that has


        2  Analogous to the rule of statutory construction that “the singular includes the plural, and the
plural includes the singular.” R.C. 1.43(A).
Case No. 2019-00597PQ                       -9-      REPORT AND RECOMMENDATION


not yet concluded with the completion of all trials for which the information was
gathered. I conclude that the law enforcement investigatory work product exception
continues to apply to all requested records other than the initial incident and offense
report.
          Specific Confidential Investigatory Techniques or Procedures, and
          Information That Would Endanger the Life or Physical Safety of a
          Crime Victim or Witness
          {¶15} “Confidential law enforcement investigatory records” includes “[s]pecific
confidential investigatory techniques or procedures,” and “any record * * * the release of
[which] would create the high probability of disclosure of * * * [i]nformation that would
endanger the life or physical safety of law enforcement personnel, a crime victim, a
witness, or a confidential information source.” R.C. 149.43(A)(2)(c) and (d). The
Prosecutor’s Office asserts that release of requested “autopsy and coroner reports, and
all reports/results related to forensic and scientific tests” are subject to the specific
confidential investigatory techniques or procedures exception, and that “there existed
real and articulable safety concerns for third parties in this case.” (Response at 6-7.)
          {¶16} Autopsy and coroner reports are subject to the records disclosure and
withholding provisions set forth in R.C. Chapter 313. Except as otherwise provided in
R.C. 313.10, all records of the coroner, including the final autopsy report and “the
detailed descriptions of the observations written during the progress of an autopsy and
the conclusions drawn from those observations” are public records. R.C. 313.10(A)(1);
State ex rel. Cincinnati Enquirer v. Pike Cty. Coroner’s Office, 153 Ohio St.3d 63, 2017-
Ohio-8988, 101 N.E.3d 396, ¶ 29-30. However, Chapter 313 does provide an exception
for “[r]ecords of a deceased individual that are confidential law enforcement
investigatory records as defined in section 149.43 of the Revised Code.” R.C.
313.10(A)(2)(e). “Autopsy and coroner reports” are thus ordinarily available to the
public, but may be excepted from release if shown to be CLEIRs records as defined in
R.C. 149.43(A)(2). Pike Cty. Coroner at ¶ 31-33. As with any exception, only the
Case No. 2019-00597PQ                       -10-      REPORT AND RECOMMENDATION


portions of a coroner’s report proven to fall squarely within the CLEIRs exception may
be redacted, and the remainder of the report must be disclosed. Id. at ¶ 40-44, 55. In
this case, the Prosecutor’s Office makes no such showing. The Prosecutor’s Office has
not identified what portions of particular reports are allegedly excepted, or provided any
evidence supporting the exception by affidavit or otherwise. The Prosecutor’s Office
offers only the bare assertion that autopsy and coroner reports are subject to the
confidential   investigatory   techniques   or     procedures   exception.   Likewise,   the
Prosecutor’s Office does not identify or provide any evidence by affidavit or otherwise
that any requested forensic or scientific test records meet the definition of confidential
investigatory techniques or procedures. In the absence of this required support, the
Prosecutor’s Office has not met its burden to prove that any portion of any requested
record falls squarely within the CLEIRs confidential law enforcement techniques or
procedures exception.
       {¶17} The Prosecutor’s Office also fails to support application of the CLEIRs
endangerment of life or physical safety exception to any record. Where a public office
claims an exception based on risks that are not evident within the records themselves,
the office must provide more than conclusory statements in affidavits to support that
claim. State ex rel. Besser v. Ohio State Univ., 89 Ohio St.3d 396, 400-404, 732 N.E.2d
373 (2000). To satisfy the burden of proof for the physical safety exception, more than
bare allegations are necessary to show that a record would disclose information that
would endanger the life or physical safety of a particular person. State ex rel. Nelson v.
Cleveland P.D., 8th Dist. Cuyahoga No. 62558, 1992 Ohio App. LEXIS 4134, *5-7;
State ex rel. Jenkins v. Cleveland, 82 Ohio App.3d 770, 785, 613 N.E.2d 652 (8th
Dist.1992). See also Gannett GP Media, Inc. v. Ohio Dept. of Pub. Safety, Ct. of Cl. No.
2017-00051-PQ, 2017-Ohio-4247, ¶ 16-33. Physical safety exceptions may not be
asserted beyond the person(s) demonstrably at risk, or after the risk has abated. State
ex rel. Ohio Republican Party v. FitzGerald, 145 Ohio St.3d 92, 2015-Ohio-5056, 47
Case No. 2019-00597PQ                      -11-     REPORT AND RECOMMENDATION


N.E.3d 124; State ex rel. Quolke v. Strongsville City School Dist. Bd. of Edn., 142 Ohio
St.3d 509, 2015-Ohio-1083, 33 N.E.3d 30, ¶ 25-31.
      {¶18} The Prosecutor’s Office cites Martin v. Cleveland, 67 Ohio St.3d 155, 156,
616 N.E.2d 886 (1993) for the proposition that “a document does not need to specify
within its four corners the * * * threat to physical safety.” (Response at 7.) However,
Martin did not allow the Cleveland PD to rest on the bare allegation of a threat to safety,
but instead recognized that Cleveland had submitted “adequate evidence” regarding the
documents determined by the court of appeals to be exempt. Martin at 157. Notably, the
lower court in Martin had found evidentiary support for only six of the fourteen
documents claimed to be subject to the exception:
      Records 23, 24, 87, and 93 are the four records involved in the
      confidentiality exemption. They also qualify for the physical safety
      exemption because the records reveal actual threats of physical violence
      to the concerned individuals.
      The City claims the physical safety exemption for records 99, 101 and
      103. In his affidavit Detective Moore states that the information in those
      records could lead to discovery of the individual’s current whereabouts.
      The court recognizes the substantial risk to the concerned individual. * * *
      Similarly as to records, 21, 30, 76, 77, 82, 83 and 84, the court has doubts
      about how protecting the disputed information will better ensure the safety
      of the concerned individuals. Neither the records nor the supporting
      materials overcome the presumption in favor of disclosure. The supporting
      affidavit is silent on why and how records 82-84 could endanger
      someone’s physical safety.
(Emphasis added.) State ex rel. Martin v. Cleveland, 8th Dist. Cuyahoga No. 60977,
1992 Ohio App. LEXIS 98, *22-24 (Jan. 8, 1992). As with the records ordered released
in Martin, the Prosecutor’s Office is “silent on why and how records [in the file] could
endanger someone’s physical safety.” Id.
      {¶19} The Prosecutor’s Office fails to identify which portion of any record is
allegedly subject to the exception, and has not submitted any evidence, by affidavit or
even unsworn factual allegation, of a specific physical threat or known substantial risk of
Case No. 2019-00597PQ                        -12-     REPORT AND RECOMMENDATION


physical violence directed to any person. The Prosecutor’s Office therefore fails to meet
its burden to prove that any portion of any requested record falls squarely within the
CLEIRs exception for records the release of which would endanger life or physical
safety.
          Trial Preparation Records
          {¶20} Although not asserted by the Prosecutor’s Office, R.C. 149.43(A)(1)(g)
provides an exception for trial preparation records. R.C. 149.43(A)(4) defines trial
preparation records as
          any record that contains information that is specifically compiled in
          reasonable anticipation of, or in defense of, a civil or criminal action or
          proceeding, including the independent thought processes and personal
          trial preparation of an attorney.

Other than the initial incident and offense report, which cannot be shielded merely due
to placement in a prosecutor’s file, this broad language would cover any requested
records that were compiled for the upcoming trial of the second suspect. Follow-up
reports, witness statements, autopsy and coroner reports, investigation notes about
witness statements, and reports/results of forensic or scientific tests are all typical
information compiled or created by prosecutors for criminal trials. The Supreme Court
affirms the breadth of this exception by observing:
          It is difficult to conceive of anything in a prosecutor’s file, in a pending
          criminal matter, that would not be either material compiled in anticipation
          of a specific criminal proceeding or the personal trial preparation of the
          prosecutor.

Steckman at 431-432. Other than the initial incident and offense report, I find that any of
the requested records that were specifically compiled in reasonable anticipation of the
upcoming trial of the second suspect are independently subject to withholding as trial
preparation records.
Case No. 2019-00597PQ                               -13-       REPORT AND RECOMMENDATION


         Availability of Records Upon Conclusion of Investigation
         {¶21} As detailed above, the CLEIRs specific investigatory work product
exception does not persist indefinitely. Once the criminal investigation ends, this
exception will terminate. Pike Cty. Coroner at ¶ 53-56. Nothing precludes Cobb from
making a new public records request at that time, subject to any other exception for
which adequate proof may be submitted.
         Conclusion
         {¶22} Upon consideration of the pleadings, attachments, and affidavits filed in
this case, I recommend the court ORDER respondent to provide requester with a copy
of the initial incident and offense report. I further recommend that the court DENY
requester’s remaining claims for production of records. I recommend that court costs be
assessed to requester.3
         {¶23} Pursuant to R.C. 2743.75(F)(2), either party may file a written objection
with the clerk of the Court of Claims of Ohio within seven (7) business days after
receiving this report and recommendation. Any objection shall be specific and state with
particularity all grounds for the objection. A party shall not assign as error on appeal the
court’s adoption of any factual findings or legal conclusions in this report and
recommendation unless a timely objection was filed thereto. R.C. 2743.75(G)(1).




                                                         JEFF CLARK
                                                         Special Master
Filed January 31, 2020
Sent to S.C. Reporter 2/25/20



         3Although the prosecutor violated his clear obligation to immediately release the initial incident
and offense report upon request, the prompt disclosure of the same record by the New Franklin PD
mitigates the extent to which Cobb is “aggrieved” by this violation. State ex rel. Cincinnati Enquirer v.
Allen, 1st Dist. Hamilton No. C-040838, 2005-Ohio-4856, ¶ 14-16 (analogous mitigation analysis of
whether requester was “aggrieved” pursuant to R.C. 149.351).
