State ex rel. Beacon Journal Publishing Co. v. Maurer

Cook, J.,

dissenting. Because I would affirm the judgment of the court of appeals in every respect, I respectfully dissent.

R.C. 149.43(A)(1)(h) exempts “confidential law enforcement investigatory records” from disclosure as public records. R.C. 149.43(A)(2) defines “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 information described in R.C. 149.43(A)(2)(a) to (d). (Emphasis added.) Thus, a record is a “confidential law enforcement investigatory record,” and exempt from disclosure, if it satisfies both parts of the definition. That is, the record must (1) pertain to a criminal, quasi-criminal, civil, or administrative law enforcement matter and (2) create a high probability of *59disclosing the statutorily described information. See State ex rel. Multimedia, Inc. v. Snowden (1995), 72 Ohio St.3d 141, 142, 647 N.E.2d 1374, 1377.

The majority decides that the incident report at issue here is a public record because it does not satisfy the first part of the definition. Relying on State ex rel. Cincinnati Enquirer v. Hamilton Cty. (1996), 75 Ohio St.3d 374, 662 N.E.2d 334, the majority states that the incident reports “initiate the criminal investigation [but] are not part of it.” Thus, the majority essentially decides that the incident report is not a record that pertains to a law enforcement matter of a criminal, quasi-criminal, civil, or administrative nature. I cannot agree.

In Cincinnati Enquirer, we decided that 911 tapes were not confidential law enforcement investigatory records because they were not prepared by law enforcement officials or attorneys and were routinely recorded without any specific investigatory purpose. Id. at 378, 662 N.E.2d at 337. The same cannot be said of incident reports prepared by police officers.3 An officer generates an incident report only after some initial investigation, such as visiting an accident or crime scene and speaking to witnesses. To conclude that the incident reports prepared by police “are not part of’ an investigation ignores the fact that the substance of the report is a product of an officer’s investigatory work. I would therefore conclude that the incident report satisfies the first prong of the definition of “confidential law enforcement investigatory record.”4

I would also find that the court of appeals was correct in deciding that the disclosure of a completely unredacted incident report would create a high probability of disclosing the identity of an uncharged suspect (the officer who fatally shot Robert Huffman). R.C. 149.43(A)(2)(a) exempts from disclosure *60those records “that identify] persons who were subject to ongoing investigations as to which no public action, such as an arrest or a citation, had yet been taken.” State ex rel. Outlet Communications, Inc. v. Lancaster Police Dept. (1988), 38 Ohio St.3d 324, 328, 528 N.E.2d 175, 178. The exception is designed to avoid subjecting a person to adverse publicity when, but for disclosure, he may not have been identified with the investigation in any way. State ex rel. Thompson Newspapers, Inc. v. Martin (1989), 47 Ohio St.3d 28, 30, 546 N.E.2d 939, 942. The exemption is also designed to avoid releasing information about uncharged suspects that could compromise later efforts to investigate and solve inactive cases. State ex rel. Moreland v. Dayton (1993), 67 Ohio St.3d 129, 131, 616 N.E.2d 234, 236.

Although the Wayne County Prosecutor has decided not to charge anyone in the Huffman shooting, this decision does not affect the applicability of the exemption. Thompson Newspapers, 47 Ohio St.3d 28, 546 N.E.2d 939, at paragraph two of the syllabus; see, also, State ex rel. Polovischak v. Mayfield (1990), 50 Ohio St.3d 51, 552 N.E.2d 635, syllabus. “[T]he statute does not limit the exemption to ‘current’ suspects or require an active, ongoing investigation. Nor does the statute express the concept that the passage of time or the lack of follow-up prosecution erodes that statutory protection.” Moreland, 67 Ohio St.3d at 130-131, 616 N.E.2d at 236.

The incident report in this case (which includes a narrative of the incident attached to the report form) describes a homicide. It is therefore a record that pertains to a potential offense committed by the shooter, even though no one has yet been charged with any crime as a result of Huffman’s death. The court of appeals correctly observed that the incident report in this case “may have led to an investigation focused on a single suspect,” thereby creating a “high probability that the identity of the shooter would be disclosed.” In light of this probability, the relators were entitled only to those portions of the incident report that did not create a high probability of disclosing the shooter (ie., the “uncharged suspect”). See State ex rel. Master v. Cleveland (1996), 75 Ohio St.3d 23, 31, 661 N.E.2d 180, 186.

I recognize that the public records statute should be liberally construed in favor of broad access, with any doubt resolved in favor of disclosure. See Cincinnati Enquirer, 75 Ohio St.3d at 376, 662 N.E.2d at 336. But this court’s decisions interpreting R.C. 149.43(A)(2)(a) specifically exempt from disclosure the names of uncharged suspects, even if no charges are filed and no active investigation exists. Unless we revise our pronouncements in Outlet Communications, Thompson Newspapers, and Moreland, R.C. 149.43(A)(2)(a) exempts the records at issue in this case, at least to the extent that the relators seek a fully unredacted version. I would therefore affirm the court of appeals’ decision *61granting the writ and allowing release of an incident report omitting the identity of the shooter.

Roetzel & Andress, Ronald S. Kopp and Stephen W. Funk, for appellants and cross-appellees. Eugene P. Nevada, for appellee and cross-appellant. Lundberg Stratton, J., concurs in the foregoing dissenting opinion.

. The majority quotes a passage from Cincinnati Enquirer stating that “because 911 calls generally precede offense or incident form reports completed by the police, they are even further removed from the initiation of the criminal investigation than the form reports themselves.” Cincinnati Enquirer, 75 Ohio St.3d at 378, 662 N.E.2d at 337. From this statement, the majority concludes that routine incident reports cannot be confidential law enforcement investigatory reports. But this passage was mere dicta. Only 911 tapes, and not incident reports, were at issue in that case. Although I joined the Cincinnati Enquirer opinion, I do not view it as supporting authority for the proposition that police incident reports may never qualify as confidential law enforcement investigatory records.

. State ex rel. Steckman v. Jackson (1994), 70 Ohio St.3d 420, 639 N.E.2d 83, does not support the majority’s conclusion that the incident report in this case cannot be an exempt confidential law enforcement investigatory record. In Steckman, this court held that routine incident reports “are subject to immediate release upon request” because they did not fall within the work product exception found in R.C. 149.43(A)(2)(c). Id. at paragraph five of the syllabus. Steckman did not, however, hold that an incident report failed to satisfy the first step of the two-step analysis of whether a record satisfied the definition of “confidential law enforcement investigatory record.” Indeed, Steckman’s examination of whether R.C. 149.43(A)(2)(c) applied to an incident report — an analysis of the second step — implied that the report satisfied the first step.