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State ex rel. Toledo Blade Co. v. City of Toledo

Court of Appeals of Ohio, Sixth District

July 12, 2013

State of Ohio, ex rel. The Toledo Blade Co. Relator
v.
City of Toledo, Ohio Respondent

Fritz Byers, for relator.

Adam W. Loukz, Director of Law, for respondent.

DECISION AND JUDGMENT

PIETRYKOWSKI, J.

{¶ 1} This case is before this court as an original action in mandamus regarding a public record request. Relator, the Toledo Blade, a newspaper of general circulation, seeks an order directing respondent, the city of Toledo, to comply with its previous public record request and make available a document known as a "gang map, " that was created by and is maintained by respondent through its Police Department. The parties have filed cross-motions for summary judgment and the case is now decisional.

{¶ 2} The undisputed facts of this case are as follows. In December 2011 or January 2012, Officer William C. Noon, an officer assigned to the gang task force of the Toledo Police Department and also assigned as a task force officer with the Bureau of Alcohol, Tobacco and Firearms ("ATF"), created the document at issue in this case. The gang map was created to document the geographic areas of the city of Toledo within which the various criminal gangs in the city operate.

{¶ 3} On or about June 25, 2012, an employee of relator orally requested that respondent permit her to inspect the gang map during regular business hours. Respondent refused, and continues to refuse, to make the map available for inspection or copying.

{¶ 4} On July 11, 2012, relator filed the present action in mandamus. "'Mandamus is the appropriate remedy to compel compliance with R.C. 149.43, Ohio's Public Records Act.'" State ex rel. Striker v. Smith, 129 Ohio St.3d 168, 2011-Ohio-2878, 950 N.E.2d 952, ¶ 21, quoting State ex rel Physicians Commt. for Responsible Medicine v. Ohio State Univ. Bd. of Trustees, 108 Ohio St.3d 288, 2006-Ohio-903, 843 N.E.2d 174, 6; R.C. 149.43(C)(1). The Public Records Act implements the state's policy 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 472, ¶ 20. "'Consistent with this policy, we construe R.C. 149.43 liberally in favor of broad access and resolve any doubt in favor of disclosure of public records.'" State ex rel. Perrea v. Cincinnati Pub. Schools, 123 Ohio St.3d 410, 2009-Ohio-4762, 916 N.E.2d 1049, ¶ 13, quoting State ex rel. Glasgow v. Jones, 119 Ohio St.3d 391, 2008-Ohio-4788, 894 N.E.2d 686, ¶ 13.

{¶ 5} Generally, to be entitled to the issuance of a writ of mandamus, the realtor must demonstrate (1) a clear legal right to the relief prayed for, (2) a clear legal duty on the respondent's part to perform the requested act, and (3) that there exists no plain and adequate remedy in the ordinary course of law. State ex rel. Master v. Cleveland, 75 Ohio St.3d 23, 26-27, 661 N.E.2d 180 (1996); State ex rel. Harris v. Rhodes, 54 Ohio St.2d 41, 42, 374 N.E.2d 641 (1978). Where the allegation relates solely to a public records request, the Supreme Court has held that the requirement of the lack of an adequate remedy, as an element of a petition for a writ of mandamus, does not apply. State ex rel. Glasgow, supra, at ¶ 12.

{¶ 6} Ohio's Public Records Act requires a public office or person responsible for public records to promptly disclose a public record unless the record falls within one of the clearly defined exceptions to the mandate of R.C. 149.43. As used in R.C. 149.43, public records are "records kept by any public office, including, but not limited to, state, county, city, village, township, and school district units * * *." R.C. 149.43(A)(1). Moreover, "records" include "any document, device, or item, regardless of physical form or characteristic, created or received by or coming under the jurisdiction of any public office * * * which serves to document the organization, functions, policies, decisions, procedures, operations, or other activities of the office." R.C. 149.011(G). A "public office" includes "any state agency, public institution, political subdivision, or other organized body, office, agency, institution, or entity established by the laws of this state for the exercise of any function of government." R.C. 149.011(A). "Exceptions to disclosure under the Public Records Act * * * are strictly construed against the public-records custodian, and the custodian 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, paragraph two of the syllabus. When the release of a public record is challenged, it is the function of the courts to analyze the information to determine whether it is exempt from disclosure. See State ex rel. Natl. Broadcasting Co. v. Cleveland, 38 Ohio St.3d 79, 85, 526 N.E.2d 786 (1988).

{¶ 7} Both relator and respondent have filed summary judgment motions in this matter. Respondent asserts that the gang map is exempt from disclosure because it is a confidential law enforcement investigatory record, the release of which would create a high probability of disclosure of specific confidential investigatory techniques or procedures or specific investigatory work product. Relator counters that, given the undisputed facts of this case, respondent cannot meet its burden of proving its claim that the map is exempt from disclosure. Both parties rely on the deposition testimony of Officer William C. Noon, the officer who created the map. In addition, pursuant to our earlier order, respondent has filed a copy of the gang map, in unredacted form and under seal, for an in-camera inspection.

{¶ 8} Pursuant to R.C. 149.43(A)(1)(h) and (A)(2), "confidential law enforcement investigatory records" are excepted from disclosure under the Public Record Act. "The applicability of the R.C. 149.43(A)(2) confidential-law-enforcement-investigatory-record exemption requires, first, that the records pertain to a law enforcement matter of a criminal, quasi-criminal, civil, or administrative nature, and second, that the release of the records would create a high probability of disclosure of any of the four types of information specified in R.C. 149.43." State ex rel Ohio Patrolmen's Benevolent Assn. v. Mentor, 89 Ohio St.3d 440, 444, 732 N.E.2d 969 (2000).

{¶ 9} It is undisputed that the map pertains to a law enforcement matter of a criminal nature. Participating in a criminal gang is a second degree felony in Ohio. R.C. 2923.42. The issue before us is whether release of the map would create a high probability of disclosure of specific confidential investigatory techniques or procedures or specific investigatory work product, the exemptions set forth in R.C. 149.43(A)(2)(c).

{¶ 10} The map itself is simply a map of the city of Toledo on which various geographic areas are outlined in different colors. Each geographic area is then assigned a number that corresponds to a specific gang, the names of which are then listed on the map. There are also three stars on the map that correspond to the clubhouses of three motorcycle gangs, although it is impossible to tell from the map the actual addresses of those clubhouses. Finally, the outlines of the geographic areas are colored in red, blue, black, green or yellow. Those colors correspond to the major gang (i.e. Bloods, Crips, etc.) with which the area gangs affiliate. In his testimony, Officer Noon described the map and testified that he created it based on information gathered from confidential informants, surveillances, crime reports, field interviews, and felony crime logs. He further stated, however, that there is nothing on the map that would reveal a particular investigative technique that led to that information, or that would reveal any source of information. Other than revealing that the police department knows where the gangs operate, Officer Noon stated that nothing on the map identifies any location that the Toledo Police Department is surveilling. Accordingly, it is undisputed from the record that release of the map would not reveal any specific confidential investigatory technique or procedure.

{¶ 11} Specific investigatory work product has been defined as information assembled by law enforcement officials in connection with a pending or highly probable criminal proceeding. State ex rel Gannett Satellite Info. Network, Inc. v. Petro, 80 Ohio St.3d 261, 266-267, 685 N.E.2d 1223 (1997). In State ex rel. Steckman v. Jackson, 70 Ohio St.3d 420, 639 N.E.2d 83 (1994), paragraph five of the syllabus, the Supreme Court of Ohio held:

Except as required by Crim.R. 16, 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. The work product exception 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. Routine offense and incident reports are subject to immediate release upon request. If release is refused, an action in mandamus, pursuant to R.C. 149.43(C), will lie to secure release of the records.

{¶ 12} In State ex rel Leonard v. White, 75 Ohio St.3d 516, 518, 664 N.E.2d 527 (1996), the court further clarified that "any notes, working papers, memoranda or similar materials, prepared by attorneys or law enforcement officials in anticipation of litigation constitute work product." To be considered work product, however, a record must have been assembled in connection with an actual pending or highly probable criminal prosecution. State ex rel. Police Officers for Equal Rights v. Lashutka, 72 Ohio St.3d 185, 188, 648 N.E.2d 808 (1995). A criminal proceeding is considered probable or highly probable "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 at 518.

{¶ 13} The map in question was not created in connection with any particular case. Officer Noon testified that he created the map based on information gathered from confidential informants, surveillances, crime reports, field interviews, and felony crime logs during his ongoing investigation of criminal gangs within Toledo. Although Noon testified that he was investigating federal drug and firearms crimes within gang communities, he did not associate the map with any particular case. Rather, the map was created to be used as a tool or reference. It does not record actual crimes or note the addresses of locations believed to be associated with criminal activity. It has never been used as an exhibit or evidence in any case, although it was shown to a U.S. Attorney in connection with a case. In short, respondent has not established that the map was created "in connection with an actual pending or highly probable criminal prosecution" as that phrase is defined by the Supreme Court of Ohio. As such, the map is not exempt from disclosure.

{¶ 14} Respondent has not met its burden of proving that the gang map falls squarely within the work product exception. We therefore conclude that relator has a clear legal right to the requested public record and respondent has a clear legal duty to provide the record in compliance with R.C. 149.43. Accordingly, relator is entitled to judgment as a matter of law. Relator's motion for summary judgment is granted. Respondent's motion for summary judgment is denied.

{¶ 15} Within its petition, relator has further requested attorney's fees and statutory damages of $100 per day, from the date of the filing of the action until such time as respondent makes the record available for inspection and copying.

{¶ 16} R.C. 149.43(C)(2)(b) provides that if the court orders a public office to comply with a public records request, the court may award reasonable attorney fees. "R.C. 149.43(C) allows a court to use its discretion in awarding such fees." State ex rel. Olander v. French, 79 Ohio St.3d 176, 179, 680 N.E.2d 962 (1997). R.C. 149.43(C)(2)(c) then provides that an award of fees under the statute is considered remedial, not punitive, and the court may reduce an award of attorney's fees or not award them at all if the court determines both of the following:

(i) That, based on the ordinary application of statutory law and case law as it existed at the time of the conduct or threatened conduct of the public office that allegedly constitutes a failure to comply with a * * * [public records request] and that was the basis of the mandamus action, a well-informed public office * * * reasonably would believe that the conduct or threatened conduct of the public office * * * did not constitute a failure to comply with an obligation in accordance with division (B) of this section;
(ii) That a well-informed public office or person responsible for the requested public records reasonably would believe that the conduct or threatened conduct of the public office * * * would serve the public policy that underlies the authority that is asserted as permitting that conduct or threatened conduct.

{¶ 17} The Toledo Police Department's argument that the map was exempt from disclosure was not unreasonable given the holdings in Steckman and Leonard. That is, the only police records that are clearly subject to immediate release as public records are ongoing routine offense and incident reports. Accordingly, the Blade's request for attorney fees should be denied.

{¶ 18} Regarding the Blade's request for statutory damages, R.C. 149.43(C)(1) only permits statutory damages when a requestor has transmitted a written request to inspect or copy a public record and the person responsible for the public record failed to comply. There is no evidence in the record that an employee of the Blade made a written request. Moreover, the parties have stipulated that an employee of the Blade orally requested that respondent permit her to inspect the map. Accordingly, the Blade is not entitled to statutory damages.

{¶ 19} Respondent is ordered to produce the gang map and to provide it to relator within ten days of the date of this decision. Relator shall notify the court, in writing, when it has received the requested record. All other pending motions are denied.

Writ granted.

Mark L. Pietrykowski, J., Thomas J. Osowik, J. ...


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