[Cite as Colahan v. Worthington Police Dept., 2018-Ohio-4594.]




STEPHEN T. COLAHAN                                    Case No. 2018-00928PQ

       Requester                                      Judge Patrick M. McGrath

       v.                                             DECISION

WORTHINGTON POLICE
DEPARTMENT

       Respondent



        {¶1}    Before the court in this public-records dispute are (1) objections filed on
October 12, 2018, by respondent Worthington Police Department (Worthington PD) to
Special      Master    Jeffery     W.    Clark’s     report      and   recommendation   issued   on
October 2, 2018, and (2) a response filed on October 23, 2018, by requester
Stephen T. Colahan to Worthington PD’s written objections. The matter, which is fully
briefed, is before the court for determination.
        I.      Background and Procedural
        {¶2}    On June 7, 2018, pursuant to R.C. 2743.75(D), Colahan filed a complaint
against Worthington PD wherein Colahan alleged a denial of access to public records.
The court appointed attorney Jeffery W. Clark as a special master in the cause. Special
Master Clark referred the case to mediation.                  After mediation failed to successfully
resolve all disputed issues between the parties, the court returned the case to the
docket of Special Master Clark.
        {¶3}    On August 21, 2018, Worthington PD, through counsel, moved to dismiss
Colahan’s complaint. Three days later Special Master Clark ordered Worthington PD to
file certain documents under seal.              And on October 2, 2018, Special Master Clark
issued a report and recommendation wherein Special Master Clark recommended that
Worthington PD’s motion to dismiss should be denied and that the case should be
Case No. 2018-00928PQ                        -2-                                 DECISION


decided on the merits. (Report and Recommendation, 5.) In the conclusion of the
report and recommendation, Special Master Clark states:
      Upon consideration of the pleadings and attachments, I find that [Colahan]
      has established by clear and convincing evidence that [Worthington PD]
      violated R.C. 149.43(B) by withholding portions of the initial incident report
      as detailed above, and by withholding other records in the investigatory
      file to which no exception applies. Beyond these documents, I find that
      [Colahan] fails to establish [Worthington PD’s] duty to disclose any other
      records at this time. I recommend that the court issue an order for
      [Worthington PD] to disclose the additional pages of the initial incident
      report as identified above. I further recommend that the court order
      [Worthington PD] to review the investigatory file and disclose pages
      WP000700-WP000703 and any other copies of statutes, media articles or
      tapes, and publicly available court filings contained in the investigatory file.
      I recommend that costs be shared equally between the parties.
(Report and Recommendation, 13-14).
      {¶4}       On   October 12, 2018—seven       business   days   after   Worthington PD
received     a    copy   of   Special   Master   Clark’s   report   and   recommendation—
Worthington PD, through counsel, filed written objections to Special Master Clark’s
report and recommendation. In a certificate of service accompanying Worthington PD’s
written objections, Worthington PD’s counsel represents that he served a copy of
Worthington PD’s objections on Colahan’s counsel “via certified mail, return receipt
requested” on October 12, 2018.
      {¶5}       On October 23, 2018—seven business days after Worthington PD filed its
written objections—Colahan, through counsel, filed a response in opposition to
Worthington PD’s written objections. According to a certificate of service accompanying
Colahan’s response, Colahan’s counsel certified that a copy of Colahan’s response
“was emailed” to Worthington PD’s counsel on October 23, 2018.
Case No. 2018-00928PQ                      -3-                                 DECISION


      II.    Law and Analysis
      {¶6}   R.C. 2743.75(F)(2) governs objections to a report and recommendation
issued by a special master of this court relative to a public-records dispute. Pursuant to
R.C. 2743.75(F)(2),
      [e]ither 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.
Because Worthington PD has filed written objections to Special Master Clark’s report
and recommendation, R.C. 2743.75(F)(2) applies in this instance.
      A. Worthington PD’s written objections are timely filed and Worthington PD
         has complied with R.C. 2743.75(F)(2)’s requirements for service of
         written objections.
      {¶7}   A review of the court’s records discloses that Worthington PD filed its
written objections within seven business days after Worthington PD received a copy of
Special Master Clark’s report and recommendation. And, according to the certificate of
service accompanying Worthington PD’s written objections, Worthington PD’s counsel
sent a copy of Worthington PD’s written objections to Colahan’s counsel, by certified
mail, return receipt requested, on October 12, 2018.         The court determines that
Worthington PD’s written objections are timely filed and Worthington PD complied with
R.C. 2743.75(F)(2)’s requirements for service of written objections.
Case No. 2018-00928PQ                          -4-                               DECISION


       B. Colahan’s response is timely, but Colahan has not complied with
          R.C. 2743.75(F)(2)’s requirements for service of a response to a party’s
          objections.
       {¶8}   Colahan     filed   a   response       to   Worthington PD’s   objections   on
October 23, 2018, which is seven business days after the date that Worthington PD
represents that it sent a copy of Worthington PD’s written objections by certified mail to
Colahan’s counsel.      The court finds that Colahan’s response is timely filed.          But
because Colahan’s counsel represents that she sent a copy of Colahan’s response to
Worthington PD’s written objections by email, Colahan has failed to comply with
R.C. 2743.75(F)(2)’s requirement that directs a party to send a copy of a response to
the objecting party by certified mail, return receipt requested.
       {¶9}   The court determines that Colahan’s response is procedurally irregular.
       C. Worthington PD objects in part to Special Master Clark’s report and
          recommendation.
       {¶10} Worthington PD states in its objections: “Worthington Police agrees to
produce the three-and-a-half pages of the Incident Report identified by the Special
Master.    Worthington Police also agrees to produce a statute with investigative
highlights identified as WP000700 – WP000703.               Finally, Worthington Police will
disclose any other copies of statutes, media articles or tapes, and publicly available
court filings.” (Objections, 2, footnote 1.)
       {¶11} Worthington PD therefore does not object entirely to Special Master
Clark’s report and recommendation. See Report and Recommendation at 14
(recommending that the court order Worthington PD to disclose pages WP000700-
WP000703 and any other copies of statutes, media articles or tapes, and publicly
available court filings contained in the investigatory file).        Worthington PD does,
however, object to a portion of Special Master Clark’s report and recommendation.
Worthington PD presents the following objections:
Case No. 2018-00928PQ                            -5-                               DECISION


          (1) “The Special Master made an error of law by directing Worthington Police to
          produce evidence of an alleged crime.”
          (2) “The Special Master made an error of law and fact by determining that the
          letters were received by Worthington Police at the same time that the reporting
          officer took the initial Incident Report.”
          (3) “The Special Master made an error of law by failing to apply constitutional
          protections to the victims and witnesses identifiable by the letters.”
Because Worthington PD’s objections are interrelated, the court will address them
objections together.
          {¶12} Worthington PD’s objections pertain to Special Master Clark’s findings,
conclusions, and recommendations concerning letters sent to an apparent victim of the
crime of menacing by stalking. In the report and recommendation, Special Master Clark
states:
          Contemporaneous with the creation of the incident report, the victim
          delivered a FedEx envelope to Worthington PD containing either 60 or 80
          letters. (Response, Memo in Support at 1; Exh A at 2, ref. PROPERTY
          section, DESCRIPTION field; WP000615.) Based on this chronology, and
          the express reference to the letters in the incident report, I find that the
          referenced letters constitute part of the initial incident report. See Maurer,
          91 Ohio St.3d at 54, 56.
(Report and Recommendation, 8.)              Worthington PD’s second objection challenges
Special Master Clark’s finding that Worthington PD received either 60 or 80 letters
contemporaneously with the creation of the incident report. Worthington PD states:
          Worthington Police created the Incident Report on September 25, 2017.
          (WP000614). However, the letters were not received by the Worthington
          Police until October 6, 2017 and were not placed in the investigative file
          until October 8, 2017. (WP000615; WP000619; WP000627; WP000091).
          The initial incident report as taken on September 25, 2017 did not
          reference receipt of the letters. (WP000627) (“PROPERTY” field is empty).
          On or about October 8, 2017, the reference to the letters was added to the
          Incident Report. (WP000615 compare WP000627; WP000091).
          Accordingly, the Special Master made an error of law and fact by
Case No. 2018-00928PQ                     -6-                                DECISION


      determining that the letters were delivered contemporaneously with the
      creation of the Incident Report. Report, pg. 8. Therefore, the second
      objection should be sustained and the Report and Recommendation
      should be modified to exclude the letters referenced, the Incident Report.
      State ex rei. Beacon Journal Publ’g Co. v. Maurer, 2001-Ohio-282, 91
      Ohio St. 3d 54, 54, 741 N.E.2d 511, 512.
(Footnote omitted.) (Objections, 9.)
      {¶13} In response, Colahan maintains that Special Master Clark “fairly and
equitably balanced the strong public interest in the release of public records against
Worthington’s interest in its law enforcement investigatory file.”     (Response, 1-2.)
Colahan asserts that Worthington PD’s argument that the letters were not delivered
contemporaneously with the incident reports constitutes a “a 180-degree reversal” from
the position taken by Worthington PD when Worthington PD filed a motion to dismiss in
this case. (Response, 2.) Colahan states: “Worthington cites to page numbers in the
file in support of its arguments. Of course, Requester has no way of rebutting this
argument because he has never seen the pages cited by Worthington.            But more
importantly, Worthington could have made this argument to the Special Master.
Worthington had access to the file at all times and could have informed the Special
Master that the letters were not submitted with the Incident Report. Worthington did not
make this argument. The argument is waived.” (Response, 2.) And Colahan states:
“The Court should not consider Worthington’s argument that the letters were not
submitted contemporaneously with the Incident Report since Worthington told the
Special Master the exact opposite.” (Response, 2.)
      {¶14} Colahan’s contention that Worthington PD “waived” its argument that the
letters were not delivered contemporaneously with the incident reports and his urging
that this court should not consider Worthington PD’s argument are not persuasive. It is
true that Worthington PD did state in its motion to dismiss: “The incident report was
submitted with approximately 80 letters, the contents and frequency of which were said
to have cause the alleged victim and his family mental anguish.” (Memorandum In
Case No. 2018-00928PQ                      -7-                                  DECISION


Support of Motion To Dismiss, 1.)         And, based on this representation, Special
Master Clark reasonably could conclude that the letters were filed contemporaneously
with the incident report.
       {¶15} Nonetheless, R.C. 2743.75(F)(2) expressly permits a party to object to a
special master’s report and recommendation. See R.C. 2743.75(F)(2). In this instance,
in accordance with R.C. 2743.75(F)(2), Worthington PD has filed a written objection that
specifically challenges Special Master Clark’s conclusion that “[c]ontemporaneous with
the creation of the incident report, the victim delivered a FedEx envelope to
Worthington PD containing either 60 or 80 letters.”           Under R.C. 2743.75(F)(2),
Worthington PD properly may raise an objection to Special Master Clark’s conclusion in
the report and recommendation.
       {¶16} Based on the court’s review, the court finds that Worthington PD’s
challenge to the special master’s conclusion is supported by the record. But even
though Worthington PD’s second objection has merit, it does not necessarily follow that
the disputed letters should not be produced, as Worthington PD maintains.
       {¶17} Worthington PD asserts that “the letters referenced in the incident report
are   unquestionably    evidence,   and   they   have   significant   investigative   value.
(WP000615; WP000627). * * * The letters demonstrate the alleged crime of menacing
by stalking.   (WP000615; WP 000627). * * * The letters would obviously serve as
evidence at trial if the suspect is prosecuted, just like a video of post-Miranda
questioning. Ohio Dep’t of Pub. Safety, 2016-Ohio-7987, ¶ 46.” (Objections, 6-7.)
       {¶18} In the report and recommendation, Special Master Clark found that “the
referenced letters constitute part of the initial incident report.” (Report and
Recommendation, 8.) In support of this finding, Special Master Clark cites to State
ex rel. Beacon Journal Publishing Co. v. Maurer, 91 Ohio St.3d 54, 56, 741 N.E.2d 511
(2001).   In Maurer at 56, the Ohio Supreme Court “[held] that [the incident] report,
including the typed narrative statements, is not a confidential law enforcement
Case No. 2018-00928PQ                        -8-                                  DECISION


investigatory record but is a public record, and that its custodian, Maurer, must release
an unredacted copy immediately upon request.” Maurer, however, is factually
distinguishable from this case. In Maurer, the typed narrative statements were attached
to an incident report. Maurer, 54. But here the record before the court supports the
notion that the disputed letters were placed in the investigative file almost two weeks
after an incident report was created. Thus, the special master’s reliance on Maurer is
misplaced to support his finding that “the referenced letters constitute part of the initial
incident report.”
       {¶19} What the disputed letters may constitute therefore requires examination.
Worthington PD maintains that the disputed letters are “unquestionably evidence.” But,
in the court’s view, the disputed letters also may be “specific investigatory work product”
under R.C. 149.43(A)(2)(c) (establishing that “specific investigatory work product” falls
within the confidential law enforcement investigatory records [CLEIRs] exception). If the
disputed letters are confidential law enforcement investigatory records, then, as a
matter of law, the disputed letters are not public records for purposes of R.C. 149.43.
See R.C. 149.43(A)(1) (providing that, as used in R.C. 149.43, a “public record” “does
not mean * * * (h) Confidential law enforcement investigatory records”).
       {¶20} Pursuant to R.C. 149.43(A)(2), the term “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;
Case No. 2018-00928PQ                        -9-                                 DECISION


       (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.
(Emphasis added.)
       {¶21} In State ex rel. Cincinnati Enquirer v. Ohio Dept. of Pub. Safety, 148 Ohio
St.3d 433, 2016-Ohio-7987, 71 N.E.3d 258 (a case in which the Cincinnati Enquirer
sought disclosure of recordings from cameras mounted on the dashboards of two Ohio
State Highway Patrol cars), the Ohio Supreme Court discussed the concept of “specific
investigatory work product,” stating that
       a record that merely pertains to a law-enforcement matter does not
       constitute a confidential law-enforcement investigatory record unless the
       release of the record would create a high probability of disclosure of
       specific investigatory work product. Our review of the recordings at issue
       here leads us to conclude that a 90-second portion of the recordings
       contains specific investigatory work product, but the remainder does not.
       R.C. 149.43 does not define “specific investigatory work product.” In State
       ex rel. Steckman v. Jackson, 70 Ohio St.3d 420, 639 N.E.2d 83 (1994),
       we applied the principles of attorney work product and concluded that the
       investigative work-product exception in R.C. 149.43(A)(2)(c) protects “‘any
       notes, working papers, memoranda or similar materials, prepared by * * *
       [here, by law enforcement officials] in anticipation of litigation.’” (Brackets
       sic.) Id. at 434, quoting Black’s Law Dictionary 1606 (6th Ed.1990). Stated
       another way, unless Crim.R. 16 requires disclosure, “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.” Steckman at 435.
       The protection for work product emanates from a concern that
       investigators and prosecutors should be free to gather, assemble, and
       prepare case information and theories “‘without undue and needless
       interference.’” Id. at 434, quoting Hickman v. Taylor, 329 U.S.495, 511, 67
       S.Ct. 385, 91 L.Ed. 451 (1947). Since Steckman, we have clarified that the
       investigative-work-product rule is a “very narrow exception[ ] to
       R.C. 149.43” that “applies to actual pending or highly probable criminal
Case No. 2018-00928PQ                      -10-                                 DECISION


       prosecutions.” (Emphasis deleted.) State ex rel. Police Officers for Equal
       Rights v. Lashutka, 72 Ohio St.3d 185, 188, 1995 Ohio 19, 648 N.E.2d
       808 (1995).
State ex rel. Cincinnati Enquirer at ¶ 40-42. In State ex rel. Cincinnati Enquirer, at ¶ 46,
the Ohio Supreme Court further stated:
       Based on our review of the recordings, we conclude that about 90
       seconds of [Trooper] Harvey’s recording—when Harvey takes Teofilo to
       her patrol car, reads him his Miranda rights, and questions him—could
       have been withheld as investigative work product compiled in anticipation
       of litigation. Harvey conducted her questioning of Teofilo inside the patrol
       car, away from public view. And by informing Teofilo of his rights as
       required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d
       694 (1966), Harvey intended to secure admissible statements for the
       prosecution's later use at trial. This 90-second portion, therefore, could
       have been withheld.
       {¶22} Thus, in State ex rel. Cincinnati Enquirer at ¶ 46, the Ohio Supreme Court
determined that the securing of admissible statements, i.e., evidence, by an agent of a
law enforcement agency for the prosecution’s later use at trial constituted specific
investigatory work product that properly could be withheld. Here, the disputed letters
constitute specific investigatory work product because it is evidence secured by a law
enforcement agency for the prosecution’s use at a highly probable criminal prosecution.
Worthington PD should be free to gather, assemble, and prepare case information and
theories without undue and needless interference. Moreover, even though no criminal
prosecution may have yet been commenced against the identified suspect, such a lack
of enforcement does not mean that the CLEIRs exception does not apply. As Special
Master Clark notes in the report and recommendation: “There is no express time limit to
the CLEIRs exception in the statute. R.C. 149.43(A)(2). Law enforcement 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 (‘NBC II’), 57 Ohio St.3d 77, 75-80, 566 N.E.2d 146 (1991) * * * ” (Report
and Recommendation, 9.)
Case No. 2018-00928PQ                     -11-                                DECISION


      {¶23} The court rejects Special Master Clark’s finding that Colahan “has
established by clear and convincing evidence that [Worthington PD] violated
R.C. 149.43(B) * * * by withholding other records in the investigatory file to which no
exception applies.” (Report and Recommendation, 13-14.) The court determines that
Worthington PD’s first and second objections should be sustained.
      {¶24} Worthington PD’s third objection asks the court to determine whether
Special Master Clark erred, as a matter of law, by failing to apply constitutional
protections to alleged victims and alleged witnesses who may be identified by the
letters. In response, Colahan asserts that Worthington PD has “waived” this argument
relative to a constitutional right to privacy. (Response, 3.) And Colahan notes that
Worthington PD did not comply with an order issued by Special Master Clark that
required Worthington PD to identify portions of the records that it asserted was subject
to this exception. Colahan states that “it is unclear whether Worthington is referring to
letters attached to the Incident Report, or letters elsewhere in the file that the Special
Master found subject to the CLEIRs exception.” (Response, 3.)
      {¶25} A review of Special Master Clark’s report and recommendation discloses
that Special Master Clark did not rule on Worthington PD’s claim that the release of
unspecified portions of the withheld records would violate the victims’ and witnesses’
constitutional right to privacy. (Report and Recommendation, 13.) Notably, the Ohio
Supreme Court has stated that “Ohio law abounds with precedent to the effect that
constitutional issues should not be decided unless absolutely necessary.” Hall China
Co. v. Pub. Util. Com., 50 Ohio St.2d 206, 210, 364 N.E.2d 852 (1977). Because the
court has concluded that the disputed letters constitute specific investigatory work
product under R.C. 149.43(A)(2)(c), the court need not address Worthington PD’s claim
in its third objection that Special Master Clark erred, as a matter of law, by failing to
apply constitutional protections to alleged victims and alleged witnesses who may be
identified by the letters. See In re Wells, 1st Dist. Hamilton No. C-080131, 2008-Ohio-
Case No. 2018-00928PQ                     -12-                                DECISION


6688, ¶ 9 (“Since we have held that the hearsay rule prohibited the introduction of the
value evidence, we reiterate the long-standing principle that a court will not determine a
constitutional claim that is not essential to the disposition of a particular controversy”
(footnote omitted)).
       III.   Conclusion
       {¶26} For reasons set forth above, the court holds that Worthington PD’s first
and second objections to Special Master Jeffery W. Clark’s report and recommendation
of October 2, 2018 should be sustained. The court makes no ruling relative to
Worthington PD’s third objection to Special Master Clark’s report and recommendation
of October 2, 2018.     The court further holds that Special Master Clark’s report and
recommendation of October 2, 2018 should be adopted in part, rejected in part, and
modified in part.      The court also holds that Special Master Clark’s report and
recommendation of October 2, 2018, as modified, should be adopted.




                                          PATRICK M. MCGRATH
                                          Judge
[Cite as Colahan v. Worthington Police Dept., 2018-Ohio-4594.]




STEPHEN T. COLAHAN                                    Case No. 2018-00928PQ

         Requester                                    Judge Patrick M. McGrath

         v.                                           JUDGMENT ENTRY

WORTHINGTON POLICE
DEPARTMENT

         Respondent


         {¶27} For the reasons set forth in the decision filed concurrently herewith, and
upon independent review of the objected matters, the court SUSTAINS respondent’s
first and second objections to Special Master Clark’s report and recommendation of
October 2, 2018. The court does not enter a ruling relative to respondent’s third
objection to Special Master Clark’s report and recommendation of October 2, 2018.
         {¶28} The court adopts in part, rejects in part, and modifies in part Special
Master Clark’s report and recommendation of October 2, 2018. The court adopts, as
modified, Special Master Clark’s report and recommendation of October 2, 2018.
Judgment is rendered in part in favor of requester and in part in favor of respondent.
Court costs are assessed equally against requester and respondent. The clerk shall
serve upon all parties notice of this judgment and its date of entry upon the journal.




                                                   PATRICK M. MCGRATH
                                                   Judge


Filed October 30, 2018
Sent to S.C. Reporter 11/14/18
