[Cite as Hilliard City School Dist. v. Columbus Div. of Police, 2017-Ohio-8052.]




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

        Requester                                       Special Master Jeffery W. Clark

        v.                                              REPORT AND RECOMMENDATION

COLUMBUS DIVISION OF POLICE

        Respondent


        {¶1} On November 29, 2016, the Hilliard City School District (“Hilliard SD”) made
a public records request to the Columbus Division of Police (“Columbus PD”):
             a. “Malisa Blizzard, a bus driver for Hilliard City Schools, alleged she was
                sexually assaulted on October 21, 2016, while she was in route [sic]
                driving a school bus for the School District. As the District’s counsel, I am
                requesting a copy of the complete investigative file for this matter,
                including but not limited to all records, documents, and photographs
                relating to the investigation of Ms. Blizzard’s alleged incident.”

(Requester’s Exhibit 1.) On or about December 28, 2016, Columbus PD responded by
producing transcripts of phone calls to the police and the Preliminary Investigation
worksheet form, explaining that the remainder of the responsive records were excepted
from release as either confidential law enforcement investigatory records, medical
records, and/or records the release of which is prohibited by state or federal law.
(Complaint ¶ 16-17; Requester’s Exhibit 2.)
        {¶2} Hilliard SD subsequently obtained a subpoena from the Ohio Industrial
Commission “to the Columbus Division of Police for the complete investigative file
including but not limited to all records, documents and photographs relating to the
investigation of the alleged [October 21, 2016 Malisa Blizzard] incident.” (Complaint
¶ 19.) In response to the subpoena, Columbus PD provided a November 9, 2016 email
from Kimberly Sharrock to David Pelphrey (Requester’s Exhibit 4), nine security camera
video files, and thirty-eight pages of other investigatory documents.               (Respondent’s
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July 31, 2017 “Records Produced” CD.)                     Columbus PD also provided a list of
investigatory documents that it withheld from its response to the subpoena,
            b. “because their submission would be contrary to law. Specifically
               prohibited from production include: medical records (HIPAA protected),
               documents/photographs/videos or other items that would violate Malisa
               Blizzard's Constitutional right of privacy, and other items that are
               prohibited from release by Ohio or Federal law.”
(Requester’s Exhibit 3.) At least 33 of the 67 bullet-point items listed as withheld from
response to the subpoena are described as records originally obtained from Hilliard SD.
(“Records Produced” CD, p. 1-2.)1
        {¶3} On May 17, 2017, Hilliard SD filed a complaint under R.C. 2743.75 alleging
denial of access to public records in violation of R.C. 149.43(B) by the Columbus PD.
The case proceeded through mediation, and on June 23, 2017, the court was notified
that mediation had terminated without resolution. On June 30, 2017, Columbus PD filed
its response and motion to dismiss. On July 31, 2017, per court order, Columbus PD
filed a CD containing an unredacted copy of all records responsive to the request, and
an affidavit identifying specific records or portions of records it asserts are covered by
each alleged public records exception.               On August 31, 2017, Hilliard filed a reply
memorandum.
        {¶4} R.C.149.43(C) provides that a person allegedly aggrieved by a violation of
division (B) of that section may either commence a mandamus action, or file a complaint
under R.C. 2743.75. In mandamus actions alleging violations of R.C. 149.43(B), a
relator must establish by “clear and convincing evidence” that they are entitled to relief.
State ex rel. Miller v. Ohio State Hwy. Patrol, 136 Ohio St.3d 350, 2013-Ohio-3720,
995 N.E.2d 1175, ¶ 14.            As for actions under R.C. 2743.75 alleging violations of
R.C. 149.43(B), neither party has suggested that another standard should apply, nor is

        1 The purpose behind a public records request is irrelevant to the right of access to the records.

R.C. 149.43(B)(4); Gilbert v. Summit Cty., 104 Ohio St.3d 660, 2004-Ohio-7108, 821 N.E.2d 564, ¶ 11-
12. Requester’s worker’s compensation litigation is referenced only to identify investigatory records that
were withheld from, provided to, and/or already possessed by Hilliard SD. This court has no jurisdiction
to determine the parties’ legal rights regarding the subject records, other than pursuant to R.C. 149.43(B).
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another standard prescribed by statute. R.C. 2743.75(F)(1) states that such claims are
to be determined through “the ordinary application of statutory law and case law * * *.”
Accordingly, the merits of this claim shall be determined under a standard of clear and
convincing evidence, i.e., “that measure or degree of proof which is more than a mere
‘preponderance of the evidence,’ but not to the extent of such certainty as is required
‘beyond a reasonable doubt’ in criminal cases, and which will produce in the mind of the
trier of facts a firm belief or conviction as to the facts sought to be established.” Cross v.
Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954), paragraph three of the syllabus.
       In its prayer for relief, Hilliard SD limits its claim in this case as follows:
             c. “Requester respectfully request this court conduct [sic] an in camera
                inspection of the unredacted Columbus Division of Police Progress of
                Investigation report and the Columbus Police Crime Laboratory reports,
                and the requested records listed in paragraph 25 of this Complaint, find
                Respondent's denial of its November 29, 2016 public records request
                violated R.C. 149.43, and order Respondent to immediately release the
                improperly withheld records.”
(Complaint, p. 15.) This report and recommendation is therefore confined to analysis of
the redactions made to the Progress of Investigation and Crime Laboratory reports, and
the withholding of the specific documents listed in paragraph 25 of the complaint, e.g.:
       “a.   DVD recording of an officer interview with the employee;
        b.   7 CD's 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);
        i.   Photos taken at the scene by CSSU;
        j.   Sane Nurse Forensic Exam Forms and results.”
       Motion to Dismiss
       {¶5} In construing a motion to dismiss pursuant to Civ.R. 12(B)(6), the court must
presume that all factual allegations of the complaint are true and make all reasonable
inferences in favor of the non-moving party. Mitchell v. Lawson Milk Co., 40 Ohio St.3d
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190, 192, 532 N.E.2d 753 (1988). Then, before the court may dismiss the complaint, it
must appear beyond doubt that plaintiff can prove no set of facts entitling him to
recovery. O'Brien v. Univ. Community Tenants Union, Inc., 42 Ohio St.2d 242, 245,
327 N.E.2d 753 (1975). The unsupported conclusions of a complaint are, however, not
admitted and are insufficient to withstand a motion to dismiss. Mitchell at 193.
       {¶6} In ruling on the motion, the court is mindful that the policy underlying the
Public Records Act is that “open government serves the public interest and our
democratic system.” State ex rel. Dann v. Taft, 109 Ohio St.3d 364, 2006-Ohio-1825,
848 N.E.2d,      ¶ 20. “[O]ne of the salutary purposes of the Public Records Law is to
ensure accountability of government to those being governed.” State ex rel. Strothers v.
Wertheim, 80 Ohio St.3d 155, 158, 684 N.E.2d 1239 (1997). Therefore, R.C. 149.43
must be construed “liberally in favor of broad access, and any doubt is resolved in favor
of disclosure of public records.” State ex rel. Cincinnati Enquirer v. Hamilton Cty.,
75 Ohio St.3d 374, 376, 662 N.E.2d 334 (1996). However, if a court determines that
records withheld from release are exempt from disclosure, a complaint based solely on
denial of access to the records is subject to dismissal for failure to state a claim upon
which relief may be granted. Perry v. Onunwor, 8th Dist. Cuyahoga No. 78398, 2000
Ohio App. LEXIS 5893, *3-5 (December 7, 2000); State ex rel. Welden v. Ohio State
Med. Bd., 10th Dist. Franklin No. 11AP-139, 2011-Ohio-6560, ¶¶ 2, 13-15.
       {¶7} Columbus PD moves to dismiss the complaint on the grounds that the
withheld records are exempt from disclosure for the following reasons: 1) the victim
named in the records has a constitutional right to privacy in the intimate details of the
alleged sexual assault, 2) all the withheld records are subject to the confidential law
enforcement investigatory records exception, and 3) the sexual assault nurse
examiner’s records are subject to the medical records exception. Columbus PD bears
the burden of proving the application of a particular exception to each specified record:
          d. “Exceptions to disclosure under the Public Records Act, R.C. 149.43, are
             strictly construed against the public-records custodian, and the custodian
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             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, ¶ 10.
      Medical Records
      {¶8} R.C. 149.43(A)(1) provides that “’[p]ublic record’ does not mean * * *: (a)
Medical records.” Respondent asserts that records created by a sexual assault nurse
examiner, obtained and used by Columbus PD for its investigation of alleged sexual
assault, are exempt as “medical records.” The Act defines medical records as follows:
          e. “‘Medical record’ means any document or combination of documents,
             except births, deaths, and the fact of admission to or discharge from a
             hospital, that pertains to the medical history, diagnosis, prognosis, or
             medical condition of a patient and that is generated and maintained in the
             process of medical treatment.”
R.C. 149.43(A)(3). The definition has three conjunctive requirements:
      1. The document must pertain to the medical history, diagnosis, prognosis, or
         medical condition of a patient, and,
      2. The document must have been generated in the process of medical
         treatment, and,
      3. The document must be maintained in the process of medical treatment.
A document that pertains to diagnosis and treatment, but is held and used by an agency
that does not maintain the document in the process of medical treatment, does not meet
the definition. The Ohio Supreme Court concludes that,
          f. “In order to fit within the ‘medical record’ exception to the public records
             law, ‘a record must pertain to a medical diagnosis and be generated and
             maintained in the process of medical treatment.’ (Emphasis sic.) State, ex
             rel. Toledo Blade Co. v. Telb (C.P. 1990), 50 Ohio Misc.2d 1, 10, 552
             N.E.2d 243, 251. In Telb, the court held that to be excepted from
             disclosure, the records sought must meet the conjunctive requirements of
             the statute. In the instant matter, records held by the Ombudsman Office
             may involve diagnosis and treatment, but they are not ‘maintained in the
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               process of medical treatment’ and therefore are not exempt from
               disclosure.”

State ex rel. Strothers v. Wertheim, 80 Ohio St.3d 155, 158, 684 N.E.2d 1239 (1997);
accord State v. Rohrer, 4th Dist. Ross No. 14CA3471, 2015-Ohio-5333, ¶ 51-58
(psychiatric   reports   were   generated   for   purposes   of   continued   commitment
proceedings), discretionary appeal not allowed by State v. Rohrer, 145 Ohio St.3d 1459,
2016-Ohio-2807; Ward v. Johnson’s Indus. Caterers, 10th Dist. Franklin No. 97APE11-
1531, 1998 Ohio App. LEXIS 2841, *18-19 (June 25, 1998); State ex rel. Strothers v.
Rish, 8th Dist. Cuyahoga No. 81862, 2003-Ohio-2955, ¶ 24-32.
       {¶9} The records at issue were prepared by a sexual assault nurse examiner
(SANE). Respondent states that a SANE is a nurse with special training in collecting
forensic evidence from sexual assault victims; that the SANE’s exam to collect forensic
evidence is a head to toe medical evaluation; and that the SANE does not work on
behalf of Columbus PD. (Pelphrey Aff., ¶ 23-25.) Columbus PD details the nature and
use of records created by the SANE as follows:
          g. “The records created by the sexual assault nurse examiner are records
             generated and maintained in the process of medical treatment by a nurse
             at Grant Hospital, but are also used by the Columbus Division of Police
             and the Franklin County Prosecutor’s Office for use in criminal
             investigations and prosecutions.”
(Emphasis added.) (July 25, 2017 Affidavit of Azizah Tabler, ¶ 8, filed with
Respondent’s Responsive Records.) Significantly, respondent does not assert that the
Columbus PD itself maintained these records “in the process of medical treatment.”
       {¶10} The content and internally expressed purpose of these SANE records are
consistent with the gathering of evidence for investigation and prosecution of the
alleged offenses, but do not support their status as “records generated and maintained
in the process of medical treatment.” The SANE records (as listed in Tabler Aff., ¶ 7.)
commence with an authorization and release form affirming the victim’s understanding
that the examination is a medical forensic examination to obtain evidence for the
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prosecution of alleged assault offenses, and authorizing the healthcare providers and
hospital to provide physical evidence, photographs, hospital records, and any other
information obtained from examination and treatment to the Columbus Police
Department and/or Franklin County Prosecutor’s Office for use in criminal investigation
and prosecution. (Responsive Records CD, Bates No. 269.) On the same page, the
SANE nurse affirms that she performed the medical forensic examination to obtain
physical evidence, photographs, hospital records, and any other information from the
alleged offense. The ensuing examination forms contain a limited medical history, the
victim’s description of the assault, a description of clothing, a list of evidence collected
and given to law enforcement, a one-sentence summary of the forensic examination,
vital signs, a list of 80 photographs, anatomical outlines identifying photograph
locations, and photographs of the victim and clothing. (Responsive Records CD, Bates
Nos. 270-361.) None of the SANE records recommend or discuss medical treatment.
The SANE records appear to consist solely of sexual assault evidence collection.
Respondent has thus not met its burden of proof to show that Columbus PD maintained
these documents “in the process of medical treatment,” Strothers, Id., or indeed that
they were initially generated in the process of medical treatment. I conclude that the
SANE documents in this matter do not qualify under the “medical records” exception in
R.C. 149.43(A)(1)(a) and (A)(3).
       {¶11} Due to the above conclusion, it is unnecessary to address application of
purported   medical    release     forms   submitted    by   the   requester   (Requester’s
August 14, 2017 notice of submission of signed medical release), or requester’s
assertion that medical records ordered disclosed would remain confidential under
statutes and administrative codes applicable to Ohio workers’ compensation claims.
(Complaint ¶¶ 26, 49-50.) Finally, although respondent asserted the Health Information
Portability and Accountability Act (HIPAA) in its response to the Industrial Commission
subpoena, it properly omits HIPAA here, as HIPAA does not supersede state disclosure
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requirements. State ex rel. Cincinnati Enquirer v. Daniels, 108 Ohio St.3d 518, 2006-
Ohio-1215, ¶¶ 25-26, 34.


        Confidential Law Enforcement Investigatory Work Product
        {¶12} Respondent asserts that the withheld records constitute “investigatory work
product” of a criminal investigation that has not concluded.2 R.C. 149.43(A)(1) provides
that “‘[p]ublic record’ does not mean * * *: (h) Confidential law enforcement investigatory
records.”      R.C. 149.43(A)(2) defines "confidential law enforcement investigatory
records" (“CLEIRs”), in pertinent part, as:
            h. “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:
        ***
        (c) Specific confidential investigatory techniques or procedures or specific
        investigatory work product.”
(Emphasis added.) Application of the CLEIRs exception for “investigatory work product”
thus involves a two-part test: first, whether the withheld records pertain to a law
enforcement matter of a criminal, quasi-criminal, civil, or administrative nature; and
second, whether the release of those records would create a high probability of
disclosure of specific investigatory work product. State ex rel. Miller v. Ohio State
Highway Patrol, 136 Ohio St.3d 350, 2013-Ohio-3720, 995 N.E.2d 1175, ¶ 25.
        {¶13} Hilliard SD asserts that it believes Ms. Blizzard’s injuries were self-inflicted,
and therefore no criminal offense occurred. Hilliard SD alternatively argues that even if
the investigation was of a criminal nature, the investigation has concluded and the
investigatory work product exception has expired.


        2 Although respondent also asserted the CLEIRs exemption for “Information that would Endanger

Life/Physical Safety (O.R.C. 149.43(A)(2)(d))” in its initial response to requester (Requester’s Exhibit 2.), it
no longer asserts this exception to any of the withheld records. (Tabler Aff., ¶ 6.)
Case No. 2017-00450-PQ                      -9-      REPORT AND RECOMMENDATION


       Pertaining to a Law Enforcement Matter of a Criminal Nature
       {¶14} For the first prong of the CLEIRs exception, a record “pertains to a law
enforcement matter of a criminal nature” if it arises from a specific suspicion of violation
of criminal law, which the record-keeping agency has the authority to investigate or
enforce. State ex rel. Multimedia, Inc. v. Snowden, 72 Ohio St.3d 141, 143, 647 N.E.2d
1374 (1995); Enquirer v. ODPS at ¶ 39.            The Columbus PD sexual assault unit
administrator testified that the initial response by detectives to the incident involving
Ms. Blizzard was based upon a belief that a crime occurred, and that the investigation
has proceeded as if a crime occurred. (Pelphrey Aff., ¶ 5-10.) The suspected criminal
offenses listed in the progress of investigation forms are “Rape/Kidnapping/Felonious
Assault” (Records Produced CD, pp. 3-9, 13, 15, 17, 19, 21, 23, 26 and 29), and these
are criminal offenses that the Columbus PD has jurisdiction to investigate and enforce.
On the face of this testimony and the records themselves, the investigatory file pertains
to a law enforcement matter of a criminal nature.
       {¶15} Although Hilliard SD does not dispute that the investigation by the
Columbus PD sexual assault unit arose and proceeded as described above, it disputes
the criminal nature of the investigation by stating that it can support “a reasonable and
articulable conclusion that the employee’s reported injuries were purposely self-inflicted
and there was no assailant as alleged.” (Complaint, ¶¶ 13, 24.) Requester’s rhetorical
conclusion carries no more weight in determining whether Columbus PD’s records
pertain to an investigation “of a criminal nature” than the protests of a criminal defendant
to the same effect. Regardless, the issue for this court is not the merits or ultimate
outcome of the investigation, but only whether a “law enforcement matter of a criminal
nature” was commenced and investigated.
       {¶16} To be sure, a law enforcement agency can be challenged if it seeks to
apply CLEIRs to records of a matter involving merely personnel and internal inquiries,
State ex rel. Police Officers for Equal Rights v. Lashutka, 72 Ohio St.3d 185, 648
N.E.2d 808 (1995), or “when it is not evident that a crime has occurred, [and] the
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investigative materials are compiled by law enforcement officials to determine if any
crime has occurred.” State ex rel. Leonard v. White, 75 Ohio St.3d 516, 518-519, 664
N.E.2d 527 (1996). Neither of these exceptions applies to this case. Columbus PD’s
progress of investigation form, handwritten witness statements, and crime laboratory
reports (Records Produced CD, p. 3-41.) report that shortly after 7:00 a.m. on October
21, 2016, Ms. Blizzard entered the lobby of 5300 Nike Drive in Hilliard, Ohio. She was
described by witnesses as covered in blood, cuts on her forehead, cuts in blouse and
pants, chunks of hair on her pants, with her hands zip-tied. They report that she was
sobbing and that she described being assaulted in a bus parked nearby. Ms. Blizzard
was transported by ambulance to a hospital for treatment, where two Columbus PD
detectives interviewed her. Evidence was collected from the crime scene, and forensic
evidence was tested at the Columbus Police Crime Laboratory. A sexual assault nurse
examiner conducted an examination and processed a sexual assault kit. The Columbus
PD Responsive Records CD (filed under seal) contains additional interviews,
photographs, forensic reports, and investigatory records.    The supervising detective
sergeant states that the fact that Columbus PD has been unable to identify and charge
a suspect, or empirically prove that another individual was at the crime scene, does not
mean that a crime did not occur. (Pelphrey Aff., ¶ 13.)
      {¶17} I find that the evidence showing that the withheld records pertain to “a law
enforcement matter of a criminal nature” substantially outweighs requester’s bare
assertion to the contrary. I conclude that respondent has met its burden of proof in
satisfying the first prong of the CLEIRs exception.
      Specific Investigatory Work Product
      {¶18} “Specific investigatory work product” includes "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 Dep’t of Pub. Safety, 148 Ohio St.3d 433, 2016-Ohio-7987
at ¶ 41. In the seminal case of State ex rel. Steckman v. Jackson, 70 Ohio St.3d 420,
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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.” See State ex rel. Caster v. Columbus, Slip Op. 2016-Ohio-8394,
¶ 25-30.
       {¶19} In Steckman and its progeny, the Court clarifies that the law enforcement
investigatory work product exception does not include “ongoing routine offense and
incident reports,” Id., paragraph five of the syllabus, as “incident reports initiate criminal
investigations but are not part of the investigation.” (Citations omitted.) State ex rel.
Beacon Journal Publ. Co. v. Maurer, 91 Ohio St.3d 54, 56, 741 N.E.2d 511 (2001).
“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.” (Citation
omitted) Miller v. OSHP, 2013-Ohio-3720 at ¶ 26. Also, unquestionably nonexempt
documents do not become exempt simply because they are placed in an investigative
file. 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, transcript of plea hearing, videotape of news reports, and
campaign committee finance report), overruled on other grounds by State ex rel. Caster
v. Columbus, Slip Op. 2016-Ohio-8394, ¶ 47.
       {¶20} In response to Hilliard SD’s request for investigatory records, Columbus PD
provided transcripts of phone calls to the police, and the preliminary investigation
worksheet form (which requester did not attach but does not dispute as constituting the
required, non-exempt 9-1-1 and incident report records). (Complaint ¶ 16.)               The
additional investigatory records that were produced to Hilliard SD as the result of a
subpoena from a separate legal proceeding are no longer “withheld” for the purposes of
the instant action, other than to the extent that they contain redactions. On review of
the unredacted withheld records in this case (“Responsive Records” CD), I find that all
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of the documents withheld in their entirety, as well as the portions of investigatory
records produced per subpoena, are the notes, working papers, memoranda or similar
materials assembled by Columbus PD in connection with a probable criminal
proceeding.

       {¶21} To address a particular subset of the withheld items, many are
photographs of the crime scene and of the victim’s injuries. Among the few Ohio cases
addressing photographs contained in investigative files, one court has held that “witness
statements, police reports, photographs, laboratory tests, and tape recordings are
exempt from release as public records.” State ex rel. Simms v. Cleveland Police Dep't,
8th Dist. Cuyahoga No. 72949, 1997 Ohio App. LEXIS 4823, *3 (October 30, 1997); but
contra State ex rel. Fields v. Cervenik, 8th Dist. Cuyahoga No. 86889, 2006-Ohio-3969,
¶ 17-21 (photographs of crime scene found not exempt under any exception).                 In
analyzing dash-cam recordings of traffic offenses and officer pursuit, the Supreme Court
recently found case-by-case review appropriate to determine whether visual recordings
contain images “that have concrete investigative value to the prosecution.” Cincinnati
Enquirer v. Ohio Dep’t of Pub. Safety, 148 Ohio St.3d 433, 2016-0hio-7987, ¶¶ 45, 50.
The photographs in this case all appear to have been created by respondent for their
investigative value to its criminal investigation, and none resemble the “incidental” video
recordings identified in Enquirer.
       {¶22} I conclude that all of the withheld records meet the definition of “specific
investigatory work product”
       Investigatory Work Product Exception Has Not Expired
       {¶23} Hilliard SD argues that the investigatory work product exception either
never applied to Columbus PD’s investigative file, or that it has expired.
       {¶24} There is no express time limit to the CLEIRs exceptions in the Public
Records Act, and the other second-prong CLEIRs exceptions have been held to remain
applicable “so long as the conditions justifying those exceptions still exist.” State ex rel.
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Caster v. Columbus, Slip. Op. 2016-Ohio-8394, ¶ 48.             In contrast, the specific
investigatory work product exception applies only so long as the record is maintained “in
connection with a probable or pending criminal proceeding.” Steckman, paragraph five
of the syllabus. Columbus PD states that the investigation in this case is currently
inactive due to the exhaustion of investigative leads, and there is thus no “pending”
criminal proceeding in the case. (Pelphrey Aff., ¶ 14.) However,
          i.   “a criminal proceeding is ‘probable’ within the meaning of paragraph five of
               the Steckman syllabus and ‘highly probable’ under Police Officers [for
               Equal Rights v. Lashutka, 72 Ohio St.3d 185, 188, 648 N.E.2d 808 (1995)]
               even where the police have not yet identified a suspect, as long as it is
               clear that a crime has in fact been committed.”
Leonard v. White, 75 Ohio St.3d at 518.            The Leonard Court found that almost
immediately after the victim’s death the police considered it a suicide, and that if the
Court adopted a construction that the lack of a suspect meant that there was no
probable criminal proceeding, “police departments’ efforts to effectively investigate and
apprehend criminals would be frustrated.” Id. The Court accordingly held that,
          j.   “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.”
Id.; accord State ex rel. Master v. Cleveland, 76 Ohio St.3d 340, 341-342, 667 N.E.2d
974 (1996) (“Master II”). 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, 78-80, 566 N.E.2d 146 (1991); accord State ex rel. Bonnell v.
Cleveland, 8th Dist. Cuyahoga No. 64854, 1993 Ohio App.LEXIS 4225, *9-10
(August 26, 1993); see also State ex rel. Polovischak v. Mayfield, 50 Ohio St.3d 51, 552
Case No. 2017-00450-PQ                            -14-      REPORT AND RECOMMENDATION


N.E.2d 635 (1990), syllabus. This does not mean that the exception extends
indefinitely.3 As Columbus PD notes, “the exception would cease when there was no
possibility of a criminal proceeding, such as after the expiration of the statute of
limitations for a particular crime.” (Response, p. 8.) The exception would also expire if
the suspect died, or prosecution was declined, or the agency conclusively determined
that no crime had occurred. See Bentkowski v. Trafis, 8th Dist. Cuyahoga No. 102540,
2015-Ohio-5139, 56 N.E.3d 230, ¶¶ 4-7, 24-26 (prosecutor concluded that no crime was
committed). For a non-exhaustive list of case clearance codes, and descriptions of
circumstances that may terminate the possibility of future criminal proceeding, see the
Ohio Uniform Incident Report Training Manual, p. 3-5.4 On the other end of potential
outcomes of criminal investigation, the Supreme Court holds that the work product
exception “does not extend beyond the completion of the trial for which the information
was gathered.” Caster at ¶ 47.
        {¶25} Hilliard SD states that Columbus PD can show only the possibility, not
probability, of anticipated criminal proceedings in this case, and relies on
Sergeant Pelphrey’s statement that “CPD has exhausted all leads based upon the
information that is currently known" although "the case could be active again at any time
if additional information becomes known to the detectives or a new lead is
presented or developed." (Reply, p. 7.) Hilliard SD attaches significance to the fact that
Sergeant Pelphrey does not affirmatively assert “probable” or “pending” criminal
proceedings in his affidavit (Id.). It relies on an email from Kimberly Sharrock LPE
(latent print examiner) to the investigators stating, “I have to double check and make
sure we have printed out all of the photos before I can say we are finished with this
case,” (Complaint, ¶¶ 22, 38, Requester’s Exhibit 4) as evidence that the investigation

        3Nor are the CLEIRs exceptions mandatory, as the statutory wording “are not public records”
means only that a public office is not required to disclose the records, but may do so at its discretion.
2000 Ohio Op. Att’y Gen. No. 021; 2001 Ohio Op. Att’y Gen. No. 041.
4 Ohio Department of Public Safety Office of Criminal Justice Services, Ohio Uniform Incident Report

(UIR) Training Manual (August 2011) http://ocjs.ohio.gov/oibrs/Forms/UIR_Training.pdf (accessed
September 12, 2017).
Case No. 2017-00450-PQ                     -15-     REPORT AND RECOMMENDATION


has officially concluded. Hilliard SD further implies that if no physical evidence of an
alleged offender is found at a crime scene, then no crime can have occurred.
(Complaint, ¶ 38, Reply, p. 8.).
       {¶26} Columbus PD testifies that the email from Kimberly Sharrock referred only
to the work being done by the latent print unit. (Pelphrey Aff., ¶ 17-20.) There is no
evidence that Sharrock had either the authority or intent to declare that the entire
criminal investigation was finished.     Sergeant Pelphrey, the supervising detective
sergeant, affirms to the contrary that “[t]his case is not closed.” (Id., ¶ 16.) Pelphrey
states that the case is proceeding as the investigation of a crime (Id., ¶ 9-13), and
explains that while the case is currently inactive due to exhaustion of available leads, it
could become active at any time that additional information becomes known. (Id., ¶ 14-
15.) The lack of an identified suspect in this case does not remove the investigatory
records from the status of being compiled in anticipation of probable criminal
proceeding. Leonard v. White, 75 Ohio St.3d at 518.
       {¶27} I conclude that the Columbus PD has met its burden of proof in showing
that the withheld records pertain to a law enforcement matter of a criminal nature, and
that the law enforcement investigatory work product exception continues to apply.
       Constitutional Right of Privacy
       {¶28} Finally, respondent argues that release of portions of the withheld records
is prohibited by the victim’s constitutional right of privacy, which if proven would make
them “records the release of which is prohibited by state or federal law.”
R.C. 149.43(A)(1)(v). However, because all of the withheld records are subject to the
confidential law enforcement investigatory work product exception, the court need not
address this issue. “Courts decide constitutional issues only when absolutely
necessary.” (Citations omitted.) State ex rel. Beacon Journal Publ’g Co. v. Akron, 104
Ohio St.3d 399, 2004-Ohio-6557, 81 N.E.2d 1087, ¶ 48.
Case No. 2017-00450-PQ                     -16-     REPORT AND RECOMMENDATION


        Conclusion
        {¶29} 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.
        {¶30} 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).




                                               JEFFERY W. CLARK
                                               Special Master

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 September 12, 2017
Sent to S.C. Reporter 10/4/17
