Brandt v. Solon Police Dept. , 2022 Ohio 3732 ( 2022 )

[Cite as Brandt v. Solon Police Dept., 2022-Ohio-3732.]
PATRICIA BRANDT Case No. 2022-00299PQ
Requester Special Master Jeff Clark
v. REPORT AND RECOMMENDATION
SOLON POLICE DEPARTMENT
Respondent
{¶1} The Public Records Act, R.C. 149.43, provides that upon request, a public
office “shall make copies of the requested public record available to the requester at cost
and within a reasonable period of time.” R.C. 149.43(B)(1). Ohio courts construe the
Public Records Act liberally in favor of broad access, with any doubt resolved in favor of
disclosure of public records. State ex rel. Hogan Lovells U.S., L.L.P. v. Dept. of Rehab. &
Corr., 156 Ohio St.3d 56, 2018-Ohio-5133, 123 N.E.3d 928, ¶ 12. R.C. 2743.75 provides
“an expeditious and economical procedure” to resolve public records disputes in the Court
of Claims.
{¶2} On November 9, 2021, requester Patricia Brandt made a public records
request to respondent Solon Police Department (Solon PD) for:
Police Report No. 21-00372
Investigative file for Police Report No. 21-00372
Videos and photos maintained as records for Police Report No. 21-00372
Victim statement(s) maintained as a record(s) for Police Report No. 21-
00372
Witness statements maintained as record(s) for Police Report No. 21-00372
List of evidence collected and maintained as records for Police Report No.
2100372.
(Complaint, Exh. 1.) Solon PD responded the same day with a redacted copy of the first
page of the Incident/Offense Report for Incident Number 21-00372. (Id., Exh. 3.) In
response to a follow-up letter from Brandt (Id., Exh. 4), on November 24, 2021 Solon PD
provided redacted copies of the first nine pages of the report along with explanations,
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including legal authority, setting forth its explanation for the redactions. (Id., Exh 5.)
Solon PD did not provide any videos or photos. Solon PD advised that the file for Incident
No. 21-00372 contained an additional 33 pages of Investigative Report Supplement
Narratives. (Id.)
{¶3} On April 5, 2022, Brandt filed her complaint pursuant to R.C. 2743.75
alleging denial of access to public records in violation of R.C. 149.43(B). Brandt seeks
“[i]mmediate release of Incident/Offense Report Form No. 21-00372 in its entirety, or as
determined by this Court,” and various sanctions. (Complaint at 19-20.) On June 13,
2022, following unsuccessful mediation, Solon PD filed an answer (Response) and a
motion to dismiss (MTD). On June 30, 2022, Solon PD filed its response to the court’s
order of June 14, 2022 (First Supp. Response) and has filed a complete and unredacted
copy of the withheld records under seal (Sealed Records). On August 9, 2022, Solon PD
filed a response to an order of July 27, 2022 (Second Supp. Response). On August 11,
2022, Brandt filed a reply. On September 23, 2022, Solon PD filed a response to an order
of September 16, 2022 (Third Supp. Response).
Burden of Proof
{¶4} The requester in an action under R.C. 2743.75 bears an overall burden to
establish a public records violation by clear and convincing evidence. Hurt v. Liberty Twp.,
2017-Ohio-7820, 97 N.E.3d 1153, ¶ 27-30 (5th Dist.). The requester bears an initial
burden of production “to plead and prove facts showing that the requester sought an
identifiable public record pursuant to R.C. 149.43(B)(1) and that the public office or
records custodian did not make the record available.” Welsh-Huggins v. Jefferson Cty.
Prosecutor’s Office, 163 Ohio St.3d 337, 2020-Ohio-5371, 170 N.E.3d 768, ¶ 33.
{¶5} If a public office asserts an exception to the Public Records Act as the basis
for withholding records, the burden shifts to the public office to establish its applicability:
Exceptions to disclosure under the Public Records Act, R.C. 149.43, are
strictly construed against the public-records custodian, and the custodian
has the burden to establish the applicability of an exception. A custodian
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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; State ex rel. Cincinnati Enquirer v. Ohio
Dept. of Pub. Safety, 148 Ohio St.3d 433, 2016-Ohio-7987, 71 N.E.3d 256, ¶ 35
(application of specific investigatory work product exception to dash-cam video).
Motion to Dismiss
{¶6} To dismiss a complaint for failure to state a claim upon which relief can be
granted, it must appear beyond doubt the claimant can prove no set of facts warranting
relief after all factual allegations of the complaint are presumed true and all reasonable
inferences are made in claimant’s favor. State ex rel. Findlay Publishing Co. v. Schroeder,
76 Ohio St.3d 580, 581, 669 N.E.2d 835 (1996). As long as there is a set of facts
consistent with the complaint that would allow the claimant to recover, dismissal for failure
to state a claim is not proper. State ex rel. V.K.B. v. Smith, 138 Ohio St.3d 84, 2013-Ohio-
5477, 3 N.E.3d 1184, ¶ 10.
{¶7} Solon PD does not dispute that Brandt reasonably identified the records she
seeks but moves to dismiss the complaint on the grounds that, 1) Brandt’s claims are
moot, and 2) all withheld records are exempt from release as specific investigatory work
product under R.C. 149.43(A)(1)(h) and (A)(2)(c). (MTD at 3-6.) On review, the Special
Master finds that neither mootness nor comprehensive application of the claimed
exemption is conclusively shown on the face of the complaint. Moreover, as the matter is
now fully briefed these grounds are subsumed in the arguments to deny the claim on the
merits. It is therefore recommended the motion to dismiss be denied.
Suggestion of Mootness
{¶8} In an action to enforce R.C. 149.43(B), a public office may produce the
requested records prior to the court’s decision, and thereby render the claim for
production moot. State ex rel. Striker v. Smith, 129 Ohio St.3d 168, 2011-Ohio-2878, 950
N.E.2d 952, ¶ 18-22. Solon PD asserts that it provided Requester with the available public
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records responsive to her requests and the justification for its redactions and withholdings
as investigatory work product. (MTD at 3.) Brandt agrees Solon PD provided nine pages
of redacted records. (Reply at 5.) However, she disputes the validity of some redactions
and asserts that Solon PD has failed to produce additional portions of the incident report
that are not covered by the specific investigatory work product exception. (Id. at 7-10.)
The Special Master finds the claim for production of records partially moot to the extent
that portions of the first nine pages of the incident report have been produced.
{¶9} Independent of the claim for production, Brandt’s claim of an unreasonable
fifteen-day delay between the request and production of the first nine pages of a plainly
public initial incident report is not moot. (Complaint at ¶ 31, 44; Reply at 6-7.) “[A] separate
claim based on the untimeliness of the response persists unless copies of all required
records were made available ‘within a reasonable period of time.’ R.C. 149.43(B)(1).”
State ex rel. Kesterson v. Kent State Univ., 156 Ohio St.3d 22, 2018-Ohio-5110, 123
N.E.3d 895, ¶ 19.
The Initial Incident Report and Contemporaneous Narratives,
Interviews, and Incorporated or Attached Records Must Be Disclosed
{¶10} Solon PD does not dispute that the first nine pages of Report No. 21-00372
must be released as routine initial reporting of an incident. However, Solon PD denies
that three pages of contemporaneous responding officer narratives, and the video and
photographic material incorporated in the initial report by reference, must be released.
Initial Incident Reports
Offense-and-incident reports are form reports in which the law enforcement
officer completing the form enters information in the spaces provided. See,
e.g., State ex rel. Beacon Journal Publishing Co. v. Maurer (2001), 91 Ohio
St.3d 54, 2001 Ohio 282, 741 N.E.2d 511 (referring to an “Ohio Uniform
Incident Form”).1
1 The form is contained in the Ohio Uniform Incident Report (UIR) Training Manual (Aug. 2011),
https://ocjs.ohio.gov/oibrs/links/forms/UIR_Training.pdf (Accessed Sept. 14, 2022.) The UIR is published
by the Ohio Dept. of Public Safety, Office of Criminal Justice Services and designed to capture crime data
for the Ohio Incident-Based Reporting System and the FBI National Incident-Based Reporting System.
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State ex rel. Lanham v. Smith, 112 Ohio St.3d 527, 2007-Ohio-609, 861 N.E.2d 530, ¶ 13.
Offense and incident reports exist in a variety of paper and electronic formats adapted by
each law enforcement agency for its purposes. See, e.g., State ex rel. Miller v. Pinkney,
149 Ohio St.3d 662, 2017-Ohio-1335, 77 N.E.3d 915, Appendix.
{¶11} It is well-settled that “incident reports initiate criminal investigations but are
not part of the investigation.” State ex rel. Beacon Journal Publishing Co. v. Maurer, 91
Ohio St.3d 54, 56, 741 N.E.2d 511 (2001). Where a deputy’s incident report attached
statements of officers and other witnesses and referenced them in the narrative used to
describe events, Maurer at 54, “[h]e consequently incorporated them in a public record.”
Id. at 56. The Court concluded, “We hold that this report, including the typed narrative
statements, is not a confidential law enforcement investigatory record.” Id. “However,
nothing in the Maurer decision requires that a narrative witness statement incorporated
by reference in an incident report must be physically attached to the incident report before
it takes on the cloak of a public record.” State ex rel. WBNS 10 TV v. Franklin Cty. Sheriff’s
Office, 151 Ohio App.3d 437, 2003-Ohio-409, 784 N.E.2d 207, ¶ 21.
{¶12} Solon PD’s withholding of three pages of contemporaneous responding
officer narratives closely resembles the facts in State ex rel. Myers v. Meyers, Slip Opinion
No. 2022-Ohio-1915, where the Supreme Court found it necessary to
address the issue whether an offense-and-incident report, which initiates a
police investigation and is a public record under Ohio’s Public Records Act,
R.C. 149.43, is limited to the form that police officers fill out in order to report
the incident or whether it also includes contemporaneous reports created
by the investigating officers that document the officers’ observations and
the statements of witnesses at the scene.
(Id. at ¶ 1.) The Court first reiterated:
Our case law provides two bases for determining whether documents
qualify as part of the public-record incident report. The first is whether the
document constitutes a regular incident-report form on which officers have
filled in blanks with information. See Lanham, 112 Ohio St.3d 527, 2007-
Ohio-609, 861 N.E.2d 530, ¶ 13. The second is whether the information
provided initiates the investigation, Maurer, 91 Ohio St.3d at 56-57, 741
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N.E.2d 511, as opposed to constituting work product generated after the
investigation is under way.
Id. at ¶ 40. Under the heading “Some supplement narratives are public records,” the Court
reasoned that the timing and nature of any “narrative derived directly from the party
reporting the facts of the at-issue offense or incident to the Department,” as well as
“responding officer’s observations and witness statements” taken the same day, show
that the “information initiates the investigation” and
properly constitutes part of the public record incident report, even though
the officer elected to label that information as a “supplement” narrative
rather than an “initial narrative.”
Id. at 42-44. The Court summarized:
We hold that when a police department maintains both incident-report forms
and investigatory work product as part of the same overall investigatory
record, officers’ reports that contain their observations at the time that they
are responding to an incident, along with initial witness statements taken at
the time of the incident or immediately thereafter, are incident-report
information that is a public record and may not be withheld from disclosure
as “specific investigatory work product” under R.C. 149.43(A)(2)(c). To use
the terminology of this opinion, supplement narratives that contain incident
information are part of the public-record incident report, even though officers
have neither included that information on the incident-report form nor
incorporated it into the “initial narrative.”
(Emphasis added.) Id. at ¶ 45. In the context of sexual assaults, the Court treated the
“initial” phase of incident reporting as commencing upon the first victim or witness contact
with the police department, Id. at ¶ 49, 50, 96, 97, 100, even if that first contact was made
years after the alleged incident. Id. at ¶ 49, 96.
{¶13} Notably absent as a factor is the duty assignment or rank of the officer
gathering the initial information. Otherwise, a law enforcement agency could thwart
disclosure of initial incident information by assigning a detective or ranking officer to every
criminal matter before an incident report is made. See Daily Gazette Co., Inc. v. Withrow
(1986), 177 W. Va. 110, 117, 350 S.E.2d 738, fn. 5 (public body may not conceal its
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otherwise public writings merely by having an attorney prepare them), cited with approval
in State ex rel. Findlay Publ. Co. v. Hancock County Bd. of Commrs., 80 Ohio St.3d 134,
137-138, 684 N.E.2d 1222 (1997). The Meyers Court accordingly ordered disclosure of
all supplement narratives containing factual incident information, including those noting
that detectives had already “opened an investigation into a possible sexual assault.” Id.at ¶ 49 and 50. In determining which supplement narratives contain incident information,
the most important factor is timing—the initial observations by officers and
the initial witness statements taken at the physical location close to the time
that the incident occurred constitute incident information that may not be
regarded as specific investigatory work produce, even when the information
has not been incorporated into the incident-report form.
(Emphasis added.) Id. at ¶ 47. The review must evaluate whether the “timing and nature
of the content shows that the information initiates the investigation.” Id. at ¶ 44, 47. The
Court also disregarded agency titling, resolving the status of each narrative based on “the
timing and nature of the content * * *, even though the officer elected to label that
information as a ‘supplement’ narrative rather than an ‘initial’ narrative.” Id. at ¶ 44.
{¶14} Supplement narratives generated days after the initial incident report are not
part of that public record if they neither contain information included in the report form nor
supply information that “initiated the investigation.” Id. at ¶ 41. The Court could not draw
a bright line defining when the investigation phase has been initiated or is under way.
However, the burden is on the law enforcement agency to prove that any withheld incident
record falls squarely within the full case law definition of specific investigatory work
product, and the exception is strictly construed against the agency. Enquirer v. ODPS,
148 Ohio St.3d 433, 2016-Ohio-7987, 71 N.E.3d 256, ¶ 35.
Incident/Offense Report No. 21-00372
{¶15} Solon PD officers utilized a departmental fill-in-the-blanks form to initiate the
investigation of the incident in this case. The first page is titled Incident/Offense Report
No. 21-00372 and shows a “Report Date/Time” of Monday 03/08/2021 at 18:22:0. Review
of the report in camera shows that the three pages immediately following page nine were
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authored by the initially assigned officers and were completed on 03/08/2021 or reviewed
taped victim information the next day.2 All three pages reflect initial factual information
received from the victim on March 8, 2021.
{¶16} The victim came to the Solon PD on March 8, 2021 to report a sexual
offense. (Sealed Records/BATES STAMPED/Solon PD Records–In Camera Inspection–
1-399, p. 10.) Before interviewing her, Ptl. Joseph R. Randazzo spoke with a detective
who directed him to get the details of what happened and report back to her. Randazzo
brought the victim and her mother into an interview room and recorded the ensuing
interview. At minute 9:00 of the interview video Randazzo advised the victim a detective
would now meet with her and left the room. (Sealed Records/Attachments/[victim’s
name]_Interview 1.) Ten minutes later Det. Linda Castro entered the room and continued
the interview. (Id.) Castro advised the victim “that she would be contacted for a longer
interview and that officers would be only collecting initial information at this time.”
(Emphasis added.) (Sealed Records/BATES STAMPED/Solon PD Records–In Camera
Inspection–1-399, at p. 11.) Randazzo entered information received from the victim into
the first ten pages of the incident report and the footer on the tenth page of the report is
dated 03/08/2021 at 18:22:0. (Id. at p. 1-10.) Castro entered information received from
the victim into pages eleven and twelve. The first four paragraphs of page eleven describe
her portion of the victim interview and the remaining text describes her March 9, 2021
review of the recorded interview. The footers on pages eleven and twelve of the report
are dated 03/09/2021 at 15:34:4. (Id. at p. 11-12.)
{¶17} Notably, the initial Narrative field at the bottom of the first page of the report
form as released to Brandt contains only the words “NOT FOR PUBLIC.” (Complaint at
28.) Brandt assumed this was an indication of that the narrative text had been redacted
(Reply at 9) but review in camera shows only the same words in this field - no narrative
2 In addition to the Report Date/Time shown at the top of page 1, and the Date of Contact reported
in the Persons Involved fields, note the Date in the reporting officer line at the bottom of form pages. (Third
Supp. Response at 2); UIR Manual at 45.
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text was ever entered in the field. Instead, Solon PD accomplished the same result by
preemptively rerouting that text to a separate, withheld page – Randazzo’s initial narrative
on p. 10 of the report – and giving notice to the public that the initial narrative of the
incident was “NOT FOR” them.3 Solon PD offers no support for the proposition that
relocation of the initial incident narrative somehow makes it “investigatory.”
{¶18} Pages two through seven are titled Persons Involved with Incident and
contain identification, contact, and relation information. Pages eight and nine are titled
Property Involved with Incident and refer to three items: 1) a video surveillance recording,
2) unspecified clothing from victim, and 3) the victim’s shirt. Page ten, completed by
Randazzo, is titled Investigative Report, dated 03/08/2021 at 18:22:0, and contains
Randazzo’s narrative of the victim’s arrival and interview at Solon PD up through and
including his departure from the interview room. Pages eleven and twelve, completed by
Det. Castro, are titled Investigative Report,4 dated 03/09/2021 at 15:34:4 and contain
Castro’s narrative of her continuation of the initial interview of the victim on 03/08/2021
and her review the next day of the previous day’s recording of the interview.
{¶19} The Myers Court found similar initial information-gathering documents to be
narratives of “incident information,” including an instance where a second supplement
narrative was made by a second officer. Myers at ¶ 49, 52-53. Based on timing, content,
and authorship, the Special Master finds that Sealed Records/BATES STAMPED/Solon
PD Records–In Camera Inspection–1-399, p. 1-12 and all contemporaneous records
referenced therein constitute the initial incident report for Incident No. 21-00372.
Videotaped Victim Interview
{¶20} In State ex rel. Cincinnati Enquirer v. Ohio Dept. of Pub. Safety, 148 Ohio
St.3d 433, 2016-Ohio-7987, 71 N.E.3d 258, ¶ 5-15, 45-50, a highway patrol dash-cam
recording made during a vehicle chase and arrest included audio and video of the officer’s
3Contrast this initial narrative export and withholding with Myers at ¶ 14-26, where the Chillicothe
PD voluntarily disclosed report text labeled as initial narratives.
4 Despite this nominal title, the contents reflect incident information received from the victim.
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communication with other patrol personnel, investigation inquiries, and factual information
from the suspect. The recording was made prior to creation of and was not attached to
the incident report. The Court found that only a 90-second portion of the recording where
the officer Mirandized and questioned the suspect was “investigatory” work product.
Applying the reasoning of Maurer at 56, Myers at ¶ 45, and Enquirer v. ODPS, the video
recording of the victim’s initial interview on 03/08/2021 was made prior to the creation of
Incident/Offense Report No. 21-00372, was incorporated by reference therein at p. 10,
contains incident information that initiated the investigation, and is thus public record. The
initial incident report likewise includes any photographic or other records documenting
items gathered by Solon PD on March 8, 2022, e.g., as noted in the fourth paragraph of
page SLNPD-INCAMERA-0000011 and pages 0000016 and 0000370 through 0000374,
as noted in the Affidavit of Det. Castro. (Second Supp. Response, Exh. A.) (Third Supp.
Response at 2-3.)
{¶21} However, the Public Records Act does not entitle a requester to access any
item of physical evidence. 2007 Ohio Op.Atty.Gen. No. 2007-034 (untested cigarette butt
taken from a crime scene is not a “record”). Nor is subsequent forensic testing of initially
gathered physical evidence, conducted months later and not initiating the investigation,
swept into the initial incident report, e.g., matters referenced in SLNPD-INCAMERA-
0000042 and 0000044.
Records that are Investigatory Work Product
{¶22} Pages thirteen through seventy-three are form pages titled Investigative
Report, dated 03/10/2021 through 04/07/22, signed by Detectives Castro or Harvey.
These pages reflect later investigatory interviews with persons involved in the incident
and accounts of officer investigatory actions that took place days or more after the initial
incident report and victim interview. Solon PD has asserted no additional public records
exemptions for the contents of these records.
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{¶23} Brandt argues that all form report pages, and 14 written witness statements,
“detained property,” police body camera footage, and all other items created or gathered
on dates after March 9, 2021, do not qualify as specific investigatory work product
because “Solon police officers gathered [these] facts, information, and property withheld
during while [sic] working in their official capacity as sworn peace officers * * * and then
created an Initial Incident Report upon which they recorded their gathered facts,
information, and property withheld and narrative summary.” (Reply at 7-8.) Brandt applies
obsolete reasoning from cases overruled by State ex rel. Steckman v. Jackson, 70 Ohio
St.3d 420, 639 N.E.2d 83 (1994). These previous cases separated the law enforcement
incident response into 1) “objective facts and observations [an investigator] has recorded”
that were public, and 2) his “deliberative and subjective analysis, his interpretation of the
facts, his theory of the case, and his investigative plans” that were confidential work
product. Id. at 431, 434. The Steckman Court rejected the fact/opinion dichotomy for a
framework of initial incident report fact-gathering (public) vs. the “initiated” investigation
in anticipation of litigation (exempt), holding that
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.
Id. at 435.
{¶24} Ohio courts have clarified Steckman as to the materials that must be
disclosed as “ongoing routine [initial] incident reports.” See State ex rel. Beacon Journal
Publ. Co. v. Maurer, 91 Ohio St.3d 54, 741 N.E.2d 511 (2001); Narciso v. Powell Police
Dept., Ct. of Cl. No. 2018-01195PQ, 2018-Ohio-4590, ¶ 19-25 and cases cited therein.
As detailed in these cases, the initial/routine/regular incident report does not include later
investigatory notes, updates, and reports, even if they constitute “fact work product” rather
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than “opinion work product.” Myers at ¶ 33, fn. 1. After the point where an investigation
has been initiated, the subsequent work product of investigators, including the reporting
officer, are presumptively “investigatory” work product. See State ex rel. Fields v.
Cervenik, 8th Dist. Cuyahoga No. 86889, 2006-Ohio-3969, ¶ 2-7; Gannet GP Media, Inc.
v. Chillicothe Police Dept. Ct. of Cl. No. 2017-00886, 2018-Ohio-1552, ¶ 14, 19. The
Myers Court thus rejected the requester’s contention that all supplement narratives in the
incident report form were ipso facto public-records, holding that “[i]nstead, the public-
record status of the supplement narratives depends on the standards we have developed
in the case law.” Myers at ¶ 36-39. Moreover, the mere fact that names of involved
persons appear in the incident report (and are public record there) does not automatically
incorporate the entire investigative supplement narrative or interview from which the
names were obtained and backfilled into the report. See Id. at ¶ 41, fn. 2. (See Third
Supp. Response at 3.)
{¶25} The bases for determining whether documents filed under seal in this case
qualify as part of the public-record incident report are summarized in the following table:
Description Location Reason Not “Investigatory Work
Product”
Ptl. Randazzo’s Sealed Records/ Part of a regular incident-report form.
narrative of victim’s BATES STAMPED/ Content derived directly from the
arrival at PD and her Solon PD Records – party reporting facts to the PD.
account of alleged In Camera Inspection Contemporaneous - made same
offense – 1- 399, p. 10 date and time as first nine report
pages.
Made by one of the first responding
officers.
Information initiated the
investigation.
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Det. Castro’s Sealed Records/ Part of a regular incident-report form.
narrative of BATES Content derived directly from the
continuation of STAMPED/Solon PD party reporting facts to the PD.
victim’s account of Records – In Camera Contemporaneous - made same
alleged offense Inspection – 1- 399, p. date and time as first nine report
11 (all text prior to “On pages.
March 9th, 2021”) Made by one of the first responding
officers.
Information initiated the
investigation.
Det. Castro’s Sealed Records/ Part of a regular incident-report form.
narrative observations BATES STAMPED/ Content derived directly from the
on review of victim’s Solon PD Records – party reporting facts to the PD.
03/08/2021 recorded In Camera Inspection Information initiated the
account of alleged – 1- 399, p. 11-12 (all investigation.
offense text following “On
Although signed on 03/09/2021, the
March 9th, 2021”) text describes only interview activity
on 03/08/2021 – i.e., a supplement
narrative that contains “incident
information.” Myers at ¶ 45.
03/08/21 video Attachments/[victim’s Content derived directly from the
recording of name]_Interview 1 party reporting facts to the PD.
Randazzo initial (Minutes 00:00 Recording made prior to the report.
victim interview through 18:50) Incorporated by reference in initial
narrative (Report p. 10.)
Made by one of the first responding
officers.
Information initiated the
investigation.
03/08/21 video Attachments/[victim’s Content derived directly from the
recording of Castro name]_Interview 1 party reporting facts to the PD.
initial victim interview Recording made prior to the report.
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(Minutes 18:51 Incorporated by reference in initial
through 37:34) narrative (Report p. 10.)
Made by one of the first responding
officers.
Information initiated the
investigation.
USB containing video No location provided Referenced in regular incident-report
surveillance from by respondent form. (Report p. 8.)
Swirl Wine Bar
Any 03/08/2021 Sealed Records/ Referenced in regular incident-report
photos of clothing BATES STAMPED/ form. (Report p. 8.)
from victim Solon PD Records – Placed into evidence on 03/08/2021.
In Camera Inspection (Report at 11.)
– 1-399, p. 370-374
Any 03/08/2021 Sealed Records/ Referenced in regular incident-report
photos of victim’s shirt BATES STAMPED/ form. (Report p. 8.)
Solon PD Records – Placed into evidence on 03/08/2021.
In Camera Inspection (Report at 11.)
– p. 370-374
Other records of As noted in fourth Contemporaneous - made same
incident information paragraph of page date and time as first nine report
created or obtained SLNPD-INCAMERA- pages.
on 03/08/2021. 0000011, discussed Information initiated the
at page 0000016 and investigation.
Castro Aff. (Second
Supp. Response, Exh.
A.) (Third Supp.
Response at 2-3.)
{¶26} The Special Master finds after review in camera that form pages 13 through
73 of the Incident/Offense report, and all notes, reports, evidence, and other non-form
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report materials created and assembled after March 8, 2021 and not specifically
addressed in this table did not initiate the investigation but constitute investigatory work
product generated after the investigation was under way. Myers at ¶ 40 These later
records are exempt from disclosure by R.C. 149.43(A)(1)(h) and (A)(2)(c) until the
investigation has concluded by criminal trial or is otherwise closed. Id. at ¶ 32.
{¶27} Finally, contrary to Brandt’s representation (Complaint at 2, ¶ 2) there is no
evidence before the court that Solon PD dispatched officers to the Swirl Wine Bar on
March 8, 2021 to respond to the person reporting harm. Clear and convincing written and
video evidence shows that the person reporting harm came to the Solon PD building to
file her report on March 8, 2021. Solon PD affirms that “[t]he first time Solon Police
Department officers visited Swirl Wine Bar as part of their response to and investigation
of the Incident is noted at the top of page SLNPD-INCAMERA-0000013,” which reflects
a date later than March 8, 2022. (Third Supp. Response at 1-2.)
Social Security Numbers and Statutory “Personal Information”
{¶28} Social security numbers (SSNs) are subject to several public records
exceptions. R.C. 149.43(A)(1)(dd) incorporates by reference R.C. 149.45(A)(1)(a), “an
individual’s social security number,” as an exception applicable to all public records.
R.C. 149.43(A)(1)(dd) further permits withholding of specified driver’s license, banking,
and credit card information. SSNs are also generally subject to a constitutional privacy
right. State ex rel. Montgomery Cty. Pub. Defender v. Siroki, 108 Ohio St.3d 207, 2006-
Ohio-662, 842 N.E.2d 508, ¶ 17-18; Beacon Journal Publ’g Co. v. Akron, 2004-Ohio-6557at ¶ 55. Although not briefed by Solon PD, the Special Master recommends that the court
permit the department to redact any SSNs and other statutory “personal information” from
records ordered disclosed.
{¶29} Solon PD has not asserted any public records exemption for the name of a
victim contained in an initial incident report, nor is the Special Master aware of any that
would be applicable under the facts and circumstances of this case. However, Brandt
Case No. 2022-00299PQ -16- REPORT AND RECOMMENDATION
expressly agreed to redaction of the victim’s name from the report and narrative
(Complaint at 30) and the court therefore need not consider that issue.
Timeliness
{¶30} “Routine offense and incident reports are subject to immediate release upon
request.” (Emphasis added.) See State ex rel. Steckman v. Jackson, 70 Ohio St.3d 420,
639 N.E.2d 83 (1994), paragraph five of the syllabus. Solon PD claims it made its pre-
litigation response timely and with “good faith explanation, with legal authority, to justify
the redactions and exemption of non-public records.” (Response at 2.) However, Solon
did not produce the first nine pages of the regular initial incident report for fifteen days
and has not produced the contemporaneous narratives, interview video or other records
referenced in the report for the last ten months and counting. No well-informed public
office would reasonably believe that failure to release at least the first nine pages of the
initial incident report immediately did not constitute failure to comply with long-standing
obligations imposed by R.C. 149.43(B)(1) and the relevant case law.
As the Supreme Court stated in Myers:
In Steckman, 70 Ohio St.3d 420, 639 N.E.2d 83, and in later cases, we
stated that incident reports constitute public records and do not constitute
confidential work product. Here, the city did not misunderstand Myers’s
request; instead, it misunderstood its clearly established duties under R.C.
149.43. Accordingly, the city violated its statutory obligation under R.C.
149.43(B)(1) to promptly provide the incident-report forms to Myers, and
Myers is entitled to statutory damages.
Myers at ¶ 61-62. The Supreme Court found that as little as three days from a request for
an incident report to its disclosure constituted failure to promptly provide the report. Id. at
¶ 27-28, 60. The Special Master accordingly finds that the fifteen-day delay in the instant
case is a violation of R.C. 149.43(B)(1). However, neither statutory damages nor attorney
fees are available in this special statutory action under R.C. 2743.75.
Conclusion
Case No. 2022-00299PQ -17- REPORT AND RECOMMENDATION
{¶31} Upon consideration of the pleadings, attachments, and responsive records
filed under seal, the Special Master recommends the court issue an order granting the
claim for production of records as detailed in the text and table above. The Special Master
further recommends the court find that respondent may redact exempt items from its
records as expressly provided in the report. It is the responsibility of respondent to release
any additional records, properly redacted, in conformity with the findings and order issued
by the court. State ex rel. Toledo Blade Co. v. Telb, 50 Ohio Misc.2d 1, *11-12, 552 N.E.2d
243, 251 (C.P.1990). The Special Master further recommends the court find that
respondent failed to produce all public records in a reasonable period of time. The Special
Master recommends the court order that requester is entitled to recover from respondent
the costs associated with this action, including the twenty-five-dollar filing fee.
R.C. 2743.75(F)(3)(b).
{¶32} 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).
JEFF CLARK
Special Master
Filed September 27, 2022
Sent to S.C. Reporter 10/20/22