dissenting.
{¶ 24} I respectfully dissent.
{¶ 25} Cuyahoga County Prosecuting Attorney Timothy J. McGinty appeals from a judgment of the Eighth District Court of Appeals affirming the trial court’s order compelling the state to produce certain confidential law-enforcement investigatory records in response to a discovery request filed by J & C Marketing, L.L.C., which had filed a declaratory judgment action in Cuyahoga County Common Pleas Court case No. CV-12-784234 seeking a declaration that its Internet sweepstakes cafés do not promote illegal gambling.
{¶ 26} At issue in this case is the law-enforcement investigatory privilege, a qualified executive privilege that protects information from discovery in civil litigation when its disclosure would reveal confidential law-enforcement techniques and procedures, undermine the confidentiality of sources and undercover officers, or impair the ability of law enforcement to conduct undercover investigations. See generally Henneman v. Toledo, 35 Ohio St.3d 241, 245-246, 520 *321N.E.2d 207 (1988); Roviaro v. United States, 353 U.S. 53, 60-61, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957); Puerto Rico v. United States, 490 F.3d 50, 64 (1st Cir.2007).
{¶ 27} In my view, because law-enforcement investigatory records are confidential for the same reasons that grand jury proceedings are secret, a civil litigant seeking to overcome this privilege must demonstrate that it has a particularized need for information related to a criminal investigation, that the ends of justice require disclosure to ensure the litigant a fair trial, and that its need for discovery outweighs the public interest in confidentiality.
{¶ 28} Here, J & C Marketing, along with other Internet café owners who are not parties to this appeal, sought information from law enforcement compiled during an ongoing criminal investigation, but it did not demonstrate that it has a particularized need for this information, that the ends of justice require disclosure, or that its interest in discovery outweighs the public interest in the continued confidentiality of the information.
{¶ 29} Accordingly, because J & C Marketing failed to prove entitlement to these documents and records, I would reverse the judgment of the appellate court.
Facts and Procedural History
{¶ 30} Law-enforcement officials in Cuyahoga County conducted undercover investigations to determine whether Internet sweepstakes cafés promoted illegal gambling, and based on those investigations, the Cuyahoga County Grand Jury indicted ten individuals and seven companies on May 30, 2012, alleging that they used an Internet gambling system known as “VS2” to conceal illegal gambling by presenting it as an Internet sweepstakes. That same day, the prosecuting attorney for Cuyahoga County mailed letters to J & C Marketing and other owners of Internet sweepstakes cafés stating that if they did not immediately cease and desist running the sweepstakes, they would be subject to criminal prosecution.
{¶ 31} J & C Marketing sought a declaratory judgment, a temporary restraining order, and temporary and permanent injunctive relief to prohibit the prosecutor from enforcing gambling laws against it. Other operators who received cease and desist letters intervened.
{¶ 32} In the course of that litigation, J & C Marketing sought to compel the discovery of records and information related to the ongoing criminal investigation of Internet sweepstakes cafés in Cuyahoga County. In these records, undercover officers documented their visits to Internet sweepstakes cafés throughout the county and summarized their findings in reports that reveal the identities of the officers and potential sources of information, the date and time surveillance occurred at a particular café, and the techniques and procedures used to conduct *322the investigation. It is undisputed that this information and these records are in the nature of law-enforcement investigatory materials.
{¶ 33} The trial court nonetheless ordered the prosecuting attorney to produce the investigative reports compiled by undercover officers, e-mail exchanges between the prosecuting attorney’s office and investigators, and answers to interrogatories requiring the disclosure of confidential information about ongoing criminal investigations.
{¶ 34} The prosecutor filed an interlocutory appeal from the order to produce. The appellate court affirmed in part and reversed in part, recognizing the existence of the law-enforcement investigatory privilege, but holding that the reports prepared during the undercover investigation of the Internet sweepstakes cafés were discoverable, because “[t]hese reports are directly relevant to the alleged conduct of the internet sweepstakes cafés involved in this case because any factual disputes regarding the nature of their business must necessarily be resolved prior to the ultimate resolution of the legal question at the heart of this declaratory judgment action.” 2013-Ohio-4805, 4 N.E.3d 1063, ¶ 25 (8th Dist.). However, the appellate court determined that e-mails between the prosecuting attorney’s office and criminal investigators were protected by the law-enforcement investigatory privilege and the attorney work-product privilege. It further directed the trial court to redact the names of the undercover officers when the reports were produced. Nonetheless, the court of appeals ordered the prosecuting attorney to answer interrogatories regarding witnesses and evidence the state intended to present at trial, despite its recognition that this could require identification of undercover officers.
{¶ 35} The prosecutor appealed to this court, and we accepted one proposition of law for review: “Records and information generated during the course of an open and ongoing undercover criminal investigation are not subject to disclosure based on the law enforcement investigatory privilege.”
The Law-Enforcement Investigatory Privilege
{¶ 36} Ohio has long recognized a qualified executive privilege for law-enforcement investigatory information, including confidential sources, surveillance information, and law-enforcement techniques and procedures. E.g., State v. Beck, 175 Ohio St. 73, 191 N.E.2d 825 (1963), rev’d on other grounds by Beck v. Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964) (confidential informants); State v. Williams, 4 Ohio St.3d 74, 75, 446 N.E.2d 779 (1983) (same); Henneman v. Toledo, 35 Ohio St.3d 241, 520 N.E.2d 207 (records and information compiled by an internal affairs division of a police department); State ex rel. Multimedia, Inc. v. Whalen, 48 Ohio St.3d 41, 549 N.E.2d 167 (1990) (records related to an ongoing investigation); State v. Brown, 64 Ohio St.3d 649, 653, 597 N.E.2d 510 (1992) (confidential informants).
*323{¶ 37} Our decisions have applied a balancing test to determine whether a litigant’s need for discovery of confidential law-enforcement information outweighs the public interest in its confidentiality. Multimedia, Inc. at 41; Brown at 653; Henneman at 246. But we have not yet specifically addressed the burden of proof of a civil litigant seeking to obtain confidential law-enforcement investigatory records related to an ongoing investigation. Although the majority borrows the “compelling need” standard from In re New York City, 607 F.3d 923 (2d Cir.2010), in my view, we should examine existing Ohio law.
{¶ 38} The confidential nature of a law-enforcement investigation is similar to the need for secrecy in a grand jury proceeding. And, in grand jury matters, there is a high standard for obtaining information that has been presented to a grand jury. As we explained in State v. Hunter, 131 Ohio St.3d 67, 2011-Ohio-6524, 960 N.E.2d 955, ¶ 141:
“Grand jury proceedings are secret, and an accused is not entitled to inspect grand jury transcripts either before or during trial unless the ends of justice require it and there is a showing by the defense that a particularized need for disclosure exists which outweighs the need for secrecy.” State v. Greer (1981), 66 Ohio St.2d 139, 20 O.O.3d 157, 420 N.E.2d 982, paragraph two of the syllabus. A particularized need is established “when the circumstances reveal a probability that the failure to provide the grand jury testimony will deny the defendant a fair trial.” State v. Sellards (1985), 17 Ohio St.3d 169, 173, 17 OBR 410, 478 N.E.2d 781.
{¶ 39} The analogy is compelling.
{¶ 40} Because the witnesses who would be protected by the law-enforcement investigatory privilege are the same individuals who would be called to testify before a grand jury, and because of the confidential nature of law-enforcement investigations, the privilege is necessary to protect this information and these records from discovery.
{¶ 41} Thus, in my view, information protected by the law-enforcement investigatory privilege should be protected from disclosure in civil litigation unless the party seeking discovery demonstrates a particularized need for the information, that the ends of justice require disclosure to ensure a fair trial, and that the need for discovery outweighs the public interest in confidentiality. A trial court should determine, in an in camera proceeding, whether the litigant can demonstrate a particularized need for the material that outweighs the public interest in the confidentiality of that information.
*324{¶ 42} Here, the Cuyahoga County prosecutor has demonstrated that J & C Marketing is seeking discovery of information that is protected by the law-enforcement investigatory privilege.
{¶ 43} The burden therefore should have shifted tp J & C Marketing to show that it has a particularized need for this privileged information, that disclosure is necessary to meet the ends of justice and ensure a fair trial, and that its interest in discovery outweighs the public interest in keeping confidential techniques, procedures, identities, and sources confidential. However, no showing had been made in the record before us that J & C Marketing has a need for the law-enforcement investigatory records and information sought in discovery to ensure a fair trial on the question regarding whether or not Internet sweepstakes constitute illegal gambling. The fact that Internet sweepstakes cafés have been investigated by police is not relevant to deciding whether they engage in illegal gambling. And to the extent that J & C Marketing seeks information regarding how its own cafés work in order to gauge their legality, that information is readily available from other sources, including its own employees and customers.
{¶ 44} In addition, an inference can be drawn that if J & C Marketing had a need for these documents and records, it would have filed a brief in this court. But it did not do so. And, significantly, J & C Marketing voluntarily dismissed its claim in case No. CV-12-784234, its declaratory judgment action, on January 9, 2014. Other Internet café owners who had intervened in this action have also dismissed their claims.
{¶ 45} Weighed against this minimal interest in disclosure is the prosecutor’s significant interest in precluding release of information regarding confidential law-enforcement techniques, procedures, identities, and sources, which relate not only to ongoing criminal investigations involving this Internet sweepstakes café owner, but also to other cases not currently pending before the court. At the time of the discovery requests, the police investigations remained ongoing, and even now, the public retains a substantial interest in preserving the integrity of undercover operations and protecting the confidentiality and safety of undercover officers, informants, and witnesses.
{¶ 46} Although the court of appeals required redaction of the names of undercover agents, the investigatory reports nonetheless provide detailed information about the undercover investigations, and even if redacted, they still reveal the techniques and procedures used to conduct the undercover operations and potentially could lead to the disclosure of the identities of undercover officers and confidential sources. See New York City, 607 F.3d at 944 (“Pulling any individual ‘thread’ of an undercover operation may unravel the entire ‘fabric’ that could lead to identifying an undercover officer”).
Timothy J. McGinty, Cuyahoga County Prosecuting Attorney, and Brian R. Gutkoski and Charles E. Hannan, Assistant Prosecuting Attorneys, for appellant.{¶ 47} Revealing confidential information has great potential to compromise ongoing and future investigations, and any need that J & C Marketing may have for its disclosure does not outweigh the public’s interest in maintaining its confidentiality.
{¶ 48} Accordingly, I would reverse the judgment of the appellate court and prohibit discovery of any of the confidential law-enforcement investigatory materials sought in this ease.