[Cite as State ex rel. Miller v. Ohio State Hwy. Patrol, 2014-Ohio-2244.]



                                      IN THE COURT OF APPEALS

                            TWELFTH APPELLATE DISTRICT OF OHIO

                                           CLERMONT COUNTY




STATE OF OHIO EX REL. MARK W.                             :
MILLER,
                                                          :           CASE NO. CA2012-05-034
        Relator,
                                                          :                 DECISION
                                                                             5/27/2014
    - vs -                                                :

                                                          :
OHIO STATE HIGHWAY PATROL, et al.,
                                                          :
        Respondents.
                                                          :



                                  ORIGINAL ACTION IN MANDAMUS



Finney Law Firm LLC, Christopher P. Finney, 4270 Ivy Pointe Blvd., Suite 225, Cincinnati,
Ohio 45245 and Curt C. Hartman, 3749 Fox Point Ct., Amelia, Ohio 45102, for relator

Michael DeWine, Ohio Attorney General, Morgan A. Linn, Jeffery W. Clark, c/o Ohio State
Highway Patrol, 1970 West Broad Street, 5th Floor, Columbus, Ohio 43223, for respondents,
Ohio State Highway Patrol and Jeff Maute



        Per Curiam.

        {¶ 1} The current case is before this court pursuant to a complaint brought by relator,

Mark Miller, seeking statutory damages, court costs, and attorney fees from respondent, the

Ohio State Highway Patrol. Relator claims entitlement to damages, costs, and fees for what

he alleges was respondent's unlawful denial of certain requested public records.
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                                    I. Statement of Facts

       {¶ 2} According to his complaint, Mark Miller is a founding member and treasurer of

the Coalition Opposed to Additional Spending and Taxes (COAST). COAST opposes

excessive taxes and government spending, and also involves itself in exposing alleged abuse

of government power. COAST works to learn of, document, and expose policies, practices,

and procedures of government officials that exceed the government entity's statutory and

constitutional authority. In order to further COAST's goals, Miller often makes public records

requests in an effort to bring to light such government waste, fraud, or abuse.

       {¶ 3} In September 2011, Miller requested, via certified mail, certain public records

from the Ohio State Highway Patrol regarding Trooper Joseph Westhoven's investigations of

traffic-related incidents. As pertinent to this case, one such traffic-related incident involved

Trooper Westhoven's investigation of Ashely Ruberg for a suspected operation of a vehicle

under the influence of alcohol (OVI).

       {¶ 4} Trooper Westhoven first became suspicious that Ruberg was driving under the

influence when he performed a traffic stop, which he initiated because Ruberg was driving 72

m.p.h. in a zone with a maximum speed of 45 m.p.h. Upon speaking with Ruberg, Trooper

Westhoven noticed that Ruberg's eyes were red and that there was an odor of an alcoholic

beverage coming from her car. Ruberg performed field sobriety tests, some of which

indicated that she was under the influence. Ruberg also submitted to a Breathalyzer test,

which revealed that her blood alcohol level was .116. Ruberg was arrested, and charged

with OVI. Miller then requested the records specific to Trooper Westhoven's investigation of

Ruberg's OVI.

       {¶ 5} While the Highway Patrol produced most of the documents Miller requested, it

withheld two categories of records, including (1) any and all video and audio recordings from

the police cruiser operated by Trooper Westhoven from the beginning of his shift on June 1,
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2011 through the end of his shift on August 5, 2011, and (2) any and all Impaired Driver

Reports drafted and/or printed by Trooper Westhoven, relating to any arrests made for OVI

between June 1, 2011 and August 5, 2011, including, but not limited to, narrations on

statements of facts, field sobriety test reports, and evaluations.

       {¶ 6} More specifically, the Highway Patrol did not give Miller (1) a portion of the

video from Trooper Westhoven's police cruiser that documented the traffic stop, detention,

and arrest of Ruberg for OVI, or (2) the impaired driver report relating to Ruberg's arrest. The

Highway Patrol informed Miller that it was not producing the requested documents because

the records constituted investigative work product for the ongoing criminal investigation of

Ruberg. In response to the Highway Patrols' nonproduction, Miller filed a mandamus action

in this court on May 10, 2012.

       {¶ 7} This court dismissed Miller's mandamus complaint, finding that Miller had not

established by clear and convincing evidence that the Highway Patrol failed to turn over

records according to the Public Records Act. State ex rel. Miller v. Ohio State Hwy. Patrol,

12th Dist. Clermont No. CA2012-05-034. Miller appealed to the Ohio Supreme Court, and

argued that he was entitled to mandamus relief. The Ohio Supreme Court reversed the

judgment of this court, finding that the Highway Patrol had failed to turn over two records that

had been requested by Miller. State ex rel. Miller v. Ohio State Highway Patrol, 136 Ohio

St.3d 350, 2013-Ohio-3720. While the court determined that the Highway Patrol had not

fulfilled Miller's entire request, the court did not reach a conclusion as to whether the Highway

Patrol was statutorily obligated to actually produce the records.

       {¶ 8} On remand, this court was ordered to review the withheld records and to

determine whether they fall within the "confidential law enforcement investigatory record"

exception to the Public Records Act, and specifically whether fulfilling Miller's request of the

withheld records would create a "high probability of disclosure" of "specific investigatory work
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product" as asserted by the Highway Patrol.

       {¶ 9} During the litigation of Miller's mandamus claim before the Ohio Supreme Court

and upon remand to this court, the criminal case against Ruberg was completed, and the

Highway Patrol released the withheld records to Miller. While Miller's mandamus claim is

now moot, as all of his requested documents have been given to him, he now requests that

he be awarded statutory fees, court costs, and attorney fees for what he argues was the

Highway Patrol's violation of the Public Records Act

                                II. Ohio Public Records Act

       {¶ 10} "The Public Records Act reflects the state's policy that 'open government

serves the public interest and our democratic system.'" State ex rel. Morgan v. City of New

Lexington, 112 Ohio St.3d 33, 2006-Ohio-6365, ¶ 28, quoting State ex rel. Dann v. Taft, 109

Ohio St.3d 364, 2006-Ohio-1825, ¶ 20. Courts construe Ohio's Public Records Act liberally

in favor of broad access, with any doubt resolved in favor of disclosure of public records. Id.

       {¶ 11} According to R.C. 149.43(B)(1),

              Upon request and subject to division (B)(8) of this section, all
              public records responsive to the request shall be promptly
              prepared and made available for inspection to any person at all
              reasonable times during regular business hours. Subject to
              division (B)(8) of this section, upon request, a public office or
              person responsible for public records shall make copies of the
              requested public record available at cost and within a reasonable
              period of time.

       {¶ 12} R.C. 149.43(C)(1) sets forth the proposition that an aggrieved party may pursue

a mandamus action and be entitled to statutory damages upon a public entity's failure to

provide public records in accordance with the statute. "[I]n general, providing the requested

records to the relator in a public-records mandamus case renders the mandamus claim

moot." State ex rel. Toledo Blade Co. v. Seneca Cty. Bd. of Commrs., 120 Ohio St.3d 372,

2008-Ohio-6253, ¶ 43.      However, the production of requested documents does not,

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according to the Public Records Act, moot a claim for damages. State ex rel. Cincinnati

Enquirer v. Heath, 121 Ohio St.3d 165, 2009-Ohio-590, ¶ 18. Even so, a party is only

entitled to damages if the petitioner first demonstrates that the respondent failed to provide

the records in accordance with R.C. 149.43(B)(1). State ex rel. Patton v. Rhodes, 129 Ohio

St.3d 182, 2011-Ohio-3093, ¶ 21; R.C. 149.43(C)(1).

       {¶ 13} A public records custodian has the burden to establish the applicability of an

exception to the Public Records Act, and courts strictly construe such exceptions against the

custodian. State ex rel Cincinnati Enquirer v. Jones-Kelley, 118 Ohio St.3d 81, 2008-Ohio-

1770. The exception claimed by the Highway Patrol is codified at R.C. 149.43(A)(1)(h),

which excludes "confidential law enforcement investigatory records" from the definition of

"public record." As pertinent to the current matter, R.C. 149.43(A)(2) defines a "confidential

law enforcement investigatory record" as

              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.

       {¶ 14} The Ohio Supreme Court has established a two-part test to determine whether

a particular record is a confidential law enforcement investigatory record as anticipated within

the Public Records Act. "First, is the record a confidential law enforcement record? Second,

would release of the record 'create a high probability of disclosure' of any one of the four

kinds of information specified in R.C. 149.43(A)(2)?'" State ex rel. Musial v. N. Olmsted, 106

Ohio St.3d 459, 2005-Ohio-5521, ¶19, quoting State ex rel. Beacon Journal Publishing Co. v.




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                                                                                   Clermont CA2012-05-034

Maurer, 91 Ohio St.3d 54 (2001).1

        {¶ 15} "The phrase 'law enforcement matter of a criminal, quasi-criminal, civil, or

administrative nature' refers directly to the enforcement of the law." State ex rel. Multimedia,

Inc. v. Snowden, 72 Ohio St.3d 141, 143 (1995). The statutory definition is met when the

records are compiled in order to investigate specific alleged misconduct of matters prohibited

by state law. State ex rel. Polovischak v. Mayfield, 50 Ohio St.3d 51 (1990).

        {¶ 16} Specific investigatory work product consists of "any notes, working papers,

memoranda or similar materials, prepared by attorneys or law enforcement officials in

anticipation of litigation." State ex rel. Leonard v. White, 75 Ohio St.3d 516, 518 (1996). "To

be considered work product * * * a record must have been assembled in connection with an

actual pending or highly probable criminal prosecution." State ex rel. The Toledo Blade Co.,

v. Toledo, 6th Dist. Lucas No. L-12-1183, 2013-Ohio-3094, ¶ 12, citing State ex rel. Police

Officers for Equal Rights v. Lashutka, 72 Ohio St.3d 185 (1995). A criminal proceeding is

probable or highly probable "as long as it is clear that a crime has in fact been committed."

Leonard at 518.

        {¶ 17} Specific investigatory work products, however, do not include "ongoing routine

offense and incident reports" because "incident reports initiate the criminal investigation; they

are not part of it." Beacon Journal, 91 Ohio St.3d at 57. For example, 911 recordings do not

constitute special investigatory work product because such calls are not prepared by

attorneys or other law enforcement officials, are routinely recorded without any specific

investigatory purpose in mind, and because the calls generally precede any forms or reports

completed by the police during their investigation. State ex rel. Cincinnati Enquirer v.




1. The only "kind of information" specified in R.C. 149.43(A)(2) that is applicable to the case at bar is subsection
(c), whether there is a high probability of disclosing specific confidential investigatory techniques or procedures or
specific investigatory work product.
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Hamilton Cty., 75 Ohio St.3d 374 (1996).

                                      III. Withheld Records

          {¶ 18} As previously stated, the Highway Patrol turned over several documents to fulfill

Miller's public records request. However, the Highway Patrol claimed that the statutory

exception permitted its nonproduction of (1) a portion of the video that documented the traffic

stop, detention, and arrest of Ruberg, and (2) the impaired driver report relating to Ruberg's

arrest.

          {¶ 19} Therefore, in order for the Highway Patrol to demonstrate that the claimed

exception applies, it must establish that the withheld records pertain to a law enforcement

matter of criminal, quasi-criminal, civil, or administrative nature whose release would create a

high probability of disclosure of specific investigatory work product

                                      A. Cruiser Cam Video

          {¶ 20} Miller requested, but was denied, portions of a video recorded on Trooper

Westhoven's cruiser camera that documented the traffic stop, detention, and arrest of Ashley

Ruberg for OVI.

          {¶ 21} Regarding the two-part test, the video satisfies the first prong because it is a

record that pertains to the enforcement of R.C. 4511.19, Ohio's statute that prohibits driving

under the influence of alcohol. The Highway Patrol has the authority to investigate and

enforce Ohio laws regarding the operation of vehicles on the highways, including laws that

prohibit OVI. R.C. 5503.02. The cruiser camera video recorded the investigation of a

specific alleged violation of Ohio law, rather than a routine monitoring investigation of all

motorists on the road the night Ruberg was arrested. In fact, the video was specifically

generated by Trooper Westhoven's investigation of Ruberg's alleged OVI, and the cruiser

camera recorded the investigation he performed given his suspicion that Ruberg was

violating Ohio law by driving under the influence of alcohol. Therefore, the video is a
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confidential law enforcement record.

       {¶ 22} Regarding the second prong of the two-part test, the release of the video prior

to the completion of the criminal case against Ruberg would have created a high probability

of disclosure of a specific investigatory work product.        Stated once more, specific

investigatory work product consists of information or materials assembled by law

enforcement officials in connection with a probable or pending criminal proceeding.

       {¶ 23} The record is clear that the cruiser camera captured Trooper Westhoven's

investigation specific to whether Ruberg was driving under the influence of alcohol. The

investigation included Trooper Westhoven interacting with Ruberg, having her exit her

vehicle, and having her perform field sobriety tests. The video, therefore, revealed the

particular investigative techniques employed by Trooper Westhoven to assess whether

Ruberg was driving while intoxicated, and demonstrated from what source Trooper

Westhoven drew his conclusions that Ruberg had committed an OVI offense. See State ex

rel. Toledo Blade Co., 2013-Ohio-3094 (finding a map of gang activity was not investigatory

work product because nothing on the map reflected particular investigative techniques used

to gather information, and where the map itself did not reveal the source for information used

in the investigation of gang-related activity).

       {¶ 24} The video captured Trooper Westhoven's specific assessment of whether he

had probable cause to arrest Ruberg for OVI. There is no doubt that the video depiction was

intended to be used by Trooper Westhoven to justify his probable cause determination, and

by the state to support the impending criminal case against Ruberg.

       {¶ 25} Unlike a 911 call or an incident report, the cruiser camera recorded Trooper

Westhoven's pursuit of Ruberg for what he observed was a violation of Ohio's traffic laws.

Trooper Westhoven's investigation was not instituted by the requested video, but rather, was

created directly by Trooper Westhoven to preserve a crucial aspect of his investigation and
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information-gathering specific to a probable violation of Ohio law. The video constitutes

materials assembled by Trooper Westhoven in connection with his investigation of that

violation, and the video was recorded for its use in any future criminal proceeding against

Ruberg.

       {¶ 26} As such, we find that the video recording taken by Trooper Westhoven's cruiser

camera constituted a confidential law enforcement investigatory record, made exempt from

production pursuant to the Ohio Public Records Act.

               B. The Impaired Driver Report Relating to Ruberg's Arrest

       {¶ 27} Miller also requested production of the impaired driver report that Trooper

Westhoven created specific to Ruberg's arrest.

       {¶ 28} The impaired driver report satisfies the first prong of the confidential law

enforcement investigatory record test because it is a record that pertains to the enforcement

of an Ohio statute that prohibits driving under the influence of alcohol. Specifically, the form

chronicled the various reasons supporting Trooper Westhoven's conclusion that Ruberg was

driving under the influence at the time he performed the traffic stop. The details included on

the report included the results from the field sobriety tests, as well as the initial results of the

portable breath test, which indicated that Ruberg's level of intoxication exceeded the legal

limit. Therefore, the report fulfilled the statutory definition of a confidential law enforcement

record.

       {¶ 29} Regarding the second prong, the record indicates that the release of the

impaired driver report prior to the completion of the criminal case against Ruberg would have

created a high probability of disclosure of a specific investigatory work product.

       {¶ 30} The record is clear that the impaired driver report detailed Trooper Westhoven's

investigation specific to whether Ruberg was driving under the influence of alcohol. The

report includes Trooper Westhoven's recollection of the conditions and relevant
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circumstances on the night he arrested Ruberg, including that she smelled of an alcoholic

beverage. The report also details the results of the field sobriety tests administered by

Trooper Westhoven, including in what ways Ruberg's behavior and performance on the field

sobriety tests were indicative of her being under the influence. The impaired driver report

would certainly be used by the state in its attempt to demonstrate that Trooper Westhoven

had probable cause to arrest Ruberg for OVI, and by the state to support any impending

criminal case against her.

       {¶ 31} Similar to the cruiser camera video, and unlike a 911 call or an incident report,

Trooper Westhoven did not complete the impaired driver report as a means to initiate the

investigation, but rather generated the report in an effort to record crucial details of his

investigation. The impaired driver report contained Trooper Westhoven's own observations,

conclusions, and interpretation of the circumstances on the night of the incident, rather than a

simple recordation of what a third party told him in order to initiate the investigation.

Accordingly, the impaired driver report constitutes materials assembled by Trooper

Westhoven in connection with his investigation of Ruberg's possible OVI.

       {¶ 32} As such, we find that the impaired driver report constituted a confidential law

enforcement investigatory record, made exempt from production pursuant to the Ohio Public

Records Act.

                                       IV. Conclusion

       {¶ 33} In this case of first impression, we find that the cruiser camera video and

impaired driver report are excluded from the definition of public records because the Highway

Patrol has demonstrated that the records fall squarely within the statutory confidential law

enforcement investigatory record exception. This is especially true where neither of the

requested records initiated the criminal investigation but was instead created to record the

personal observations of Trooper Westhoven and his subjective experience of investigating
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the alleged OVI.

       {¶ 34} In so holding, this court is aware that the Ohio Supreme Court made passing

reference to OVI records as not being work product in State ex rel. Steckman v. Jackson, 70

Ohio St.3d 420 (1994). Therein, the court defined "work product" by adopting the definition

set forth in Black's Law Dictionary, and stated that work product "does not include ongoing

routine offense and incident reports, including but not limited to, records relating to a charge

of driving while under the influence and records containing the results of intoxilyzer tests." Id.

at paragraph 5 of the syllabus. However, we do find this statement dispositive of Miller's

current public records request.

       {¶ 35} The court's analysis in Steckman did not specifically address the issue of

whether OVI-related records were exempt from the "work product" exclusion. Rather, the

court's focus was on charges of aggravated murder, aggravated robbery, attempted murder,

and kidnapping. While the court made a reference to OVI-related records, it did not offer any

reasoning or analysis as to why records related to OVI investigations would be excluded from

the statutory definition of "work product."

       {¶ 36} Steckman was decided in 1994. In the subsequent 20 years, police officers

have changed the way they investigate crimes, and technology has progressed in such a

manner that cruiser cameras and other advances have become commonplace in criminal

investigations. We are therefore presented with an opportunity, and in fact a directive from

the Ohio Supreme Court, to determine whether such records are public records under Ohio's

Public Records Act.      Despite Steckman's passing reference to OVI records as not

constituting work product, we have performed the full analysis according to Ohio's Public

Records Act and relevant case law, and have determined that the two specific records in the

case at bar fall within the statutory exception.

       {¶ 37} When this court, or any other, reviews the constitutionality of a traffic stop, we
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refer to the officer as making an investigatory stop. Such a classification is accurate because

before an officer can make a probable cause determination that fulfills constitutional

requirements, that officer must investigate, make observations, and reach certain

conclusions. Officers are then required to recollect every detail of their investigation, and

their recollection and testimony are challenged by the rigors of both direct and cross-

examination. Certainly, the records created during an investigation which document the

officer's suspicion of an offense, details discovered by the officer during the investigation,

and facts gathered during the officer's active investigation of the alleged crime remain

investigatory work product until the completion of the criminal proceedings.

       {¶ 38} The cruiser camera video and the impaired driver report were both prepared by

and on behalf of law enforcement officials, with specific investigatory purposes in mind.

Unlike 911 calls or reports detailing other people's observations leading to the initiation of a

criminal investigation, the withheld records in the case sub judice document the criminal

investigation triggered by the trooper's own suspicion of a violation of Ohio law. Trooper

Westhoven, who is a trained member of law enforcement, collected, analyzed, and

investigated the facts and circumstances of the alleged OVI, and journalized his personal and

active investigation so that the information contained therein could be used in a future

criminal case against Ruberg. As such, these specific records are dissimilar to routine

incident/offense reports or 911 calls.

       {¶ 39} Having found that the Highway Patrol properly refused production of the two

requests because of the confidential law enforcement investigatory record exception to the

Public Records Act, we find no violation of the statute. As such, Miller is not entitled to a writ

of mandamus, or statutory damages, court costs, or attorney fees.


       HENDRICKSON, P.J., PIPER and M. POWELL, JJ., concur.


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