State ex rel. Myers v. Meyers

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State

ex rel. Myers v. Meyers, Slip Opinion No. 2022-Ohio-1915.]

NOTICE

This slip opinion is subject to formal revision before it is published in an

advance sheet of the Ohio Official Reports. Readers are requested to

promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65

South Front Street, Columbus, Ohio 43215, of any typographical or other

formal errors in the opinion, in order that corrections may be made before

the opinion is published.

SLIP OPINION NO. 2022-OHIO-1915

THE STATE EX REL. MYERS v. MEYERS ET AL.

[Until this opinion appears in the Ohio Official Reports advance sheets, it

may be cited as State ex rel. Myers v. Meyers, Slip Opinion No.

2022-Ohio-1915.]

Mandamus—Public Records Act—The time at which a law-enforcement officer

creates a record or the police department’s method for maintaining such a

record determines whether the exemption to disclosure under R.C.

149.43(A)(2)(c) applies—Partial writ of mandamus granted.

(Nos. 2020-1469 and 2021-0211—Submitted October 5, 2021—Decided June 9,

2022.)

IN MANDAMUS.

____________________

Per Curiam.

{¶ 1} In these two consolidated original actions, we 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

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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.

Relator, Derek J. Myers, seeks a writ of mandamus requiring respondents, the city

of Chillicothe; its police chief, Ron Meyers (“police chief”); and the police

department’s records clerk, Mica Kinzer (collectively, “Chillicothe” or “the city”),

to disclose the “supplement narratives” that the city withheld when Myers had

requested the public-record incident reports. The city asserts that it properly

withheld the supplement narratives on the ground that such a narrative constitutes

a confidential law-enforcement investigatory record (“CLEIR”)—specifically,

“investigatory work product” under R.C. 149.43(A)(2)(c). In addition to the writ

of mandamus, Myers also requests awards of statutory damages, attorney fees, and

court costs.

{¶ 2} We grant the writ with respect to a limited number of supplement

narratives but deny it as to the majority of the supplement narratives. We also grant

Myers an award of statutory damages for the city’s delayed production of certain

incident-report forms, but we deny in part Myers’s claim for statutory damages on

the ground that we do not “stack” statutory damages. Finally, we award court costs

to Myers, but we deny his request for an award of attorney fees.

I. BACKGROUND

A. The Chillicothe police department’s public-records policy

{¶ 3} The city presented the affidavit of the police chief to explain its

public-records policy. That affidavit provides the best starting point for

understanding the status of the public-records requests at issue in these cases.

{¶ 4} According to the police chief, the department “generates investigatory

records after it receives a complaint from the public that pertains to potential

violations of criminal laws.” After receiving a complaint, “an officer is then

dispatched to the location of the incident to investigate.” But because the officer

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“begin[s] the investigation immediately after being dispatched, the officer often

does not create the offense-and-incident report until after [he or she] leave[s] the

scene of the incident.” Based on the filled-in incident-report forms generated by

the investigating officers, Kinzer prepares a daily media report and distributes it to

various media recipients.

{¶ 5} In his affidavit, the police chief states that there are “three sources of

information” that make up what he refers to as an “investigatory record”: (1) the

“standard, fill-in-the-blank information that identifies the investigation status,

investigating officer, date, location, and offense information, all of which the

investigating officer enters,” (2) the “initial narrative section that the investigating

officer generates,” which “identifies the offense alleged, the location of the

incident, and whether the investigation is ongoing,” and (3) “supplement

narratives,” which “contain the personal notes of the investigating officer regarding

the incident, summarizing witness and victim interviews, and evaluating the alleged

offense.” The supplement narratives also contain “specific details of the crime

alleged, the identities of the victim, witnesses, and alleged perpetrator, and other

related information.”

{¶ 6} In responding to a public-records request for an “investigatory

record,” the department “generally does not disclose the supplement narratives for

the record, so long as the related investigation remains ongoing.” The department

views supplement narratives as “confidential law enforcement investigatory

records, since they are the investigating officer’s work product.” But the

department does disclose upon request the incident-report form plus the “initial

narrative,” which is authored by the investigating officer.

{¶ 7} The police chief’s affidavit further explains that once an investigation

is closed, the department “disclose[s] the entire investigatory record, consisting of

both the offense-and-incident reports and the supplement narratives.” The purpose

of that policy is to “prevent the public disclosure of detailed information of an

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investigation while it is ongoing,” a practice that “protects witnesses, victims, and

suspects from potential harassment.”

{¶ 8} In discussing the status of the records requests, we adopt the following

terminology for purposes of this opinion. What the police chief refers to as “the

standard, fill-in-the-blank information,” we will call “the incident-report form.” As

for the two types of narratives, we will follow the police chief’s terminology and

call them the “initial narrative” and the “supplement narratives.” Finally, we will

use the phrase “public-record incident report” to refer to those documents that must

be disclosed under the Public Records Act.

{¶ 9} This terminology permits us to state succinctly the nature of the

parties’ disagreement. Myers argues that the public-record incident report includes

the supplement narratives, while the city maintains that the public-record incident

report is limited to the incident-report form and the initial narrative.

B. Case No. 2020-1469

{¶ 10} Myers is the editor and proprietor of the publication the Scioto Valley

Guardian. As part of his work, Myers regularly submits public-records requests

seeking the disclosure of public-record incident reports. Kinzer sends a daily media

report through an email-distribution service to media recipients like Myers. For

each new investigation, Kinzer’s media report contains the case number, the offense

charged, any relevant names, the date and time, and the address of the incident.

{¶ 11} On November 20, 2020, Myers sent an email reply to Kinzer’s media

report that stated: “Hello, please send P2015185,” which he intended as a request

for the public-record incident report relating to the investigation with that number.

Approximately two hours after sending his first email, Myers sent Kinzer a second

email stating, “Please let me know whether you will be sending this report today.

If you deny the request, please cite your reasoning and law.” Around the time that

Myers sent his first email to Kinzer, he also emailed the police chief and stated that

“we must address the persisting issue of your records department denying public

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records requests for police reports, citing open investigations.” That day, the police

chief gave the following response: “When investigations are completed and able to

be released, they are,” but that when a matter “is under investigation, until

reviewed, it stays as a work in progress.” On November 23, Kinzer informed Myers

that she “was told that [the report he had requested] is not to be released at this time

because it is still being investigated.” Notably, Kinzer did not fulfill the

department’s policy that was described by the police chief in his affidavit: Kinzer

did not disclose the incident-report form with the initial narrative when Myers made

his request.

{¶ 12} On December 4, 2020, Myers filed a complaint for a writ of

mandamus in this court (case No. 2020-1469) to obtain the public-record incident

report for investigation No. P2015185. On December 11, the police chief formally

denied Myers’s request, citing the CLEIR exception in R.C. 149.43(A)(2)(c). The

police chief reiterated that the record would be released after the investigation was

complete.

{¶ 13} The city belatedly disclosed the incident-report form on January 8,

2021, along with the initial narrative but withheld the supplement narratives. Myers

filed an amended complaint on March 18, 2021, stating that the city’s disclosure on

January 8 consisted of only a “truncated version of P2015185.”

C. Case No. 2021-0211

{¶ 14} After making the records request at issue in case No. 2020-1469,

Myers requested eight additional public-record incident reports. Those additional

public-records requests followed the basic pattern of the request in case No. 2020-

1469. As she had with Myers’s earlier request, in five of Myers’s later requests,

Kinzer initially relied on the media report she had already sent and did not promptly

disclose the incident-report forms. For three of the public-record incident reports

that Myers requested in case No. 2021-211, the city promptly disclosed the

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incident-report form along with the initial narratives but withheld the supplement

narratives.

{¶ 15} On February 16, 2021, Myers filed the complaint for a writ of

mandamus in case No. 2021-0211 to obtain all eight of what he claims are the

public-record incident reports that he requested (which include, according to his

argument, the supplement narratives). Two business days after Myers filed that

complaint, the city disclosed five incident-report forms along with the initial

narratives and also disclosed the supplement narratives in four cases in which the

city deemed the investigation to be complete.

{¶ 16} We consolidated case Nos. 2020-1469 and 2021-0211 and granted

an alternative writ. 162 Ohio St.3d 1441, 2021-Ohio-1398, 166 N.E.3d 1269. In

response to the alternative writ, the city submitted the supplement narratives that it

had withheld for in camera review by this court.

D. The status of Myers’s public-records requests

{¶ 17} For the sake of clarity, we outline the status of Myers’s nine records

requests at issue.

{¶ 18} Request No. 1 (case No. 2020-1469): investigation No. P2015185.

Myers emailed this public-records request on November 20, 2020. The city initially

denied this request. The city provided Myers the incident-report form and the initial

narrative on January 8, 2021, but withheld the supplement narratives.

{¶ 19} Request No. 2 (case No. 2021-0211): investigation No. 18-019929.

Myers emailed this request on December 6, 2020. The city initially denied this

request. The city provided Myers the incident-report form and the initial narrative

on February 18, 2021, but withheld the supplement narratives. This request is at

issue in case No. 2021-0211, as are all the subsequent requests in this list.

{¶ 20} Request No. 3: investigation No. P2015431. Myers emailed this

request on December 8, 2020. The city initially denied this request. The city

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provided Myers the incident-report form and the initial narrative on February 18,

2021, but withheld the supplement narratives.

{¶ 21} Request No. 4: investigation No. 2015437. Myers emailed this

request on December 8, 2020. The city initially denied this request. The city

provided Myers the incident-report form and the initial narrative on February 18,

2021. The city also disclosed the supplement narratives on that date because the

investigation was closed.

{¶ 22} Request No. 5: investigation No. 2015499. Myers emailed this

request on December 10, 2020. The city initially denied this request. The city

provided Myers the incident-report form and the initial narrative on February 18,

2021, but withheld the supplement narratives.

{¶ 23} Request No. 6: investigation No. P2015606. Myers emailed this

request on December 15, 2020. The city initially denied this request. The city

provided Myers the incident-report form and the initial narrative on February 18,

2021. The city also disclosed the supplement narratives on that date because the

investigation was closed.

{¶ 24} Request No. 7: investigation No. P2100231. Myers emailed this

request on January 18, 2021. The city provided Myers the incident-report form and

the initial narrative on January 19, 2021, but initially withheld the supplement

narratives. On February 18, 2021, the city disclosed the supplement narratives

because the investigation was closed.

{¶ 25} Request No. 8: investigation No. P2100318. Myers emailed this

request on January 22, 2021. The city provided Myers the incident-report form and

the initial narrative on the same day but withheld the supplement narratives. On

February 18, 2021, the city disclosed the supplement narratives because the

investigation was closed.

{¶ 26} Request No. 9: investigation No. P2100352. Myers emailed this

request on January 26, 2021. The city provided Myers the incident-report form and

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the initial narrative on the same day but withheld the supplement narratives. The

city subsequently provided Myers the incident-report form and the initial narrative

but withheld the supplement narratives.

{¶ 27} The following chart summarizes the foregoing information:

Request No. Investigation Public-Records Incident- Supplement

No. Request (date) Report Form Narratives (date

and Initial disclosed)

Narrative (date

disclosed)

1 P2015185 11/20/20 1/8/21

2 18-019929 12/6/20 2/18/21

3 P2015431 12/8/20 2/18/21

4 P2015437 12/8/20 2/18/21 2/18/21

5 P2015499 12/10/20 2/18/21

6 P2015606 12/15/20 2/18/21 2/18/21

7 P2100231 1/18/21 1/19/21 2/18/21

8 P2100318 1/22/21 1/22/21 2/18/21

9 P2100352 1/26/21 1/26/21

{¶ 28} In sum, with respect to request Nos. 4, 6, 7, and 8, the city has made

full disclosure of the records because those investigations are complete. Thus,

Myers’s writ claim is moot with respect to request Nos. 4, 6, 7, and 8. As for request

Nos. 1, 2, 3, 5, and 9, the city has disclosed the incident-report forms and the initial

narratives but withheld the supplement narratives. And finally, in request Nos. 1

through 6, the city failed to promptly disclose the incident-report forms.

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II. LEGAL ANALYSIS

A. Burden of proof

{¶ 29} A person who is denied access to a public record may seek to compel

its production through a mandamus action. R.C. 149.43(C)(1)(b). In such a case,

the requester must prove a clear legal right to the requested records and a

corresponding clear legal duty on the part of the custodian to provide them, State

ex rel. Penland v. Ohio Dept. of Rehab. & Corr., 158 Ohio St.3d 15, 2019-Ohio-

4130, 139 N.E.3d 862, ¶ 9, by clear and convincing evidence, State ex rel.

McCaffrey v. Mahoning Cty. Prosecutor’s Office, 133 Ohio St.3d 139, 2012-Ohio-

4246, 976 N.E.2d 877, ¶ 16.

{¶ 30} Because the city invokes the CLEIR exception to disclosure here, it

bears the burden of production “to plead and prove facts clearly establishing the

applicability of the [exception].” Welsh-Huggins v. Jefferson Cty. Prosecutor’s

Office, 163 Ohio St.3d 337, 2020-Ohio-5371, 170 N.E.3d 768, ¶ 27. And because

“[e]xceptions to disclosure under * * * R.C. 149.43 are strictly construed against

the public-records custodian,” the custodian does not satisfy its 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.

B. Public-record incident reports must be distinguished from “specific

investigatory work product”

{¶ 31} R.C. 149.43(A)(1) defines a public record as a “record[] kept by any

public office, including but not limited to, state, county, city, village, [and]

township.” R.C. 149.43(A)(1)(h) excepts CLEIRs from the public-records

definition. R.C. 149.43(A)(2) defines a CLEIR 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

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probability of disclosure of” one of four categories listed in R.C. 149.43(A)(2)(a)

through (d).

{¶ 32} At issue here is the city’s claim of confidentiality under R.C.

149.43(A)(2)(c), one provision of which excepts from disclosure “specific

investigatory work product.” Notably, unlike other categories of a CLEIR, the

exception for “specific investigatory work product” expires at the end of a criminal

trial, State ex rel. Caster v. Columbus, 151 Ohio St.3d 425, 2016-Ohio-8394, 89

N.E.3d 598, ¶ 47, or when an investigation has been closed, State ex rel. Cincinnati

Enquirer v. Ohio Dept. of Pub. Safety, 148 Ohio St.3d 433, 2016-Ohio-7987, 71

N.E.3d 258, ¶ 41-42. See also State ex rel. Police Officers for Equal Rights v.

Lashutka, 72 Ohio St.3d 185, 188, 648 N.E.2d 808 (1995) (the investigatory-work-

product exception “applies to actual pending or highly probable criminal

prosecutions” [emphasis deleted]).

{¶ 33} We have consistently held that routine “offense-and-incident

reports” do not fall under the exception for “specific investigatory work product,”

and are therefore public records. See State ex rel. Steckman v. Jackson, 70 Ohio

St.3d 420, 639 N.E.2d 83 (1994), paragraph five of the syllabus (investigatory-

work-product exception “does not include ongoing routine offense and incident

reports,” which “are subject to immediate release upon request”),1 overruled on

other grounds by Caster; see also State ex rel. Lanham v. Smith, 112 Ohio St.3d

527, 2007-Ohio-609, 861 N.E.2d 530, ¶ 13 (routine offense-and-incident reports,

which are “form reports in which the law enforcement officer completing the form

enters information in the spaces provided,” are “not exempt work product and are

normally subject to immediate release upon request”).

1. Myers argues that we should narrow the definition of police-officer work product to include only

“opinion work product” rather than adhere to the broader Steckman standard, which encompasses

“fact work product.” See Caster at ¶ 63-65 (O’Connor, C.J., concurring in part and dissenting in

part). We decline to do so. In Caster, this court adhered to the broader standard, id. at ¶ 19, and we

see no compelling reason to revisit that issue in this case.

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C. Analysis of Myers’s writ claim

{¶ 34} As discussed, the gravamen of Myers’s claim for a writ of mandamus

lies in his argument that the supplement narratives constitute part of the public-

record incident report. The city’s defense is that the supplement narratives

constitute “specific investigatory work product” under R.C. 149.43(A)(2)(c); in the

city’s view, the public-record incident report encompasses the incident-report form

and the initial narrative but does not extend to the supplement narratives.

{¶ 35} In support of his writ claim, Myers advances an argument that has a

broader version and a narrower version. Under the broader version, all the

supplement narratives are part of the public-record incident report. Under the

narrower version, only some of the supplement narratives are part of the public-

record incident report.

1. Whether all the supplement narratives are public records

{¶ 36} Myers first argues that all the supplement narratives are part of the

public-record incident reports because they are “included in the very same

document” as the incident-report form. As factual support, Myers refers to the

police chief’s affidavit, which characterizes the incident-report form, initial

narrative, and supplement narratives as parts of an overarching “investigatory

record.”

{¶ 37} In support of his position, Myers cites our decision in State ex rel.

Beacon Journal Publishing Co. v. Maurer, 91 Ohio St.3d 54, 741 N.E.2d 511

(2001). Maurer addressed a media representative’s request for an unredacted copy

of an Ohio Uniform Incident Report:

In the space apparently to be used to describe the events, the deputy

wrote “taped narrative” and attached to the incident report four

typed transcripts of taped statements by law enforcement officers.

These typed narrative statements were titled “Wayne County

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Sheriff’s Office Narrative/Supplementary Report.” Written

statements by other witnesses were also attached to the report. The

incident report form total[ed] two pages in length; the typed

narrative statements and witnesses’ statements total[ed] thirty-five

pages.

Id. at 54. This court held that the incident report and the narratives had to be

disclosed because the officer who had completed the report “incorporated the typed

narrative statements by reference in the incident report”; as a result, he

“incorporated them in a public record.” Id. at 57. “ ‘Once clothed with the public

records cloak, the records cannot be defrocked of their [public-record] status.’ ”

Id., quoting State ex rel. Cincinnati Enquirer v. Hamilton Cty., 75 Ohio St.3d 374,

378, 662 N.E.2d 334 (1996).

{¶ 38} Myers reasons that if “documents merely ‘referenced’ ” in the

incident-report form are “by virtue of that reference, incorporated into that Report,

then a fortiori narratives that are themselves part of the very same document are

part of the Report as well.”

{¶ 39} We reject Myers’s contention that all supplement narratives are part

of the public-record incident report. Contrary to Myers’s argument, the police

chief’s affidavit does not answer the question before us, it merely poses it. The

police chief regards certain documents as the public-record incident report but not

the supplement narratives. Whether the supplement narratives are public records

does not, however, depend on the police chief’s viewing them as part of a larger

investigatory record that includes the incident-report forms. Instead, the public-

record status of the supplement narratives depends on the standards we have

developed in the case law.

{¶ 40} Our case law provides two bases for determining whether documents

qualify as part of the public-record incident report. The first is whether the

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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 N.E.2d 511, as opposed to

constituting work product generated after the investigation is under way.

{¶ 41} To demonstrate the application of these criteria, consider Myers’s

request No. 4, investigation No. P2015437, in which the city has disclosed the

supplement narratives because the investigation is complete. In investigation No.

P2015437, the incident-report form was generated on December 5, 2020, at 8:03

p.m., and the first supplement narrative was authored at 10:29 p.m. Six supplement

narratives followed, three of which were created on December 7, one on December

9, one on December 13, and the final supplement narrative is dated January 25,

2021. Those later supplement narratives, which were generated days after the date

and time of the incident-report form, are not part of the public-record incident report

because they neither contain information included in the incident-report form nor

do they supply information that initiated the investigation. As a result, because the

later supplement narratives are not part of the public-record incident report, they

may qualify as work product of the investigation that was initiated by the public-

record incident report. 2 We therefore reject the broad version of Myers’ argument.

2. Some supplement narratives are public records

{¶ 42} Alternatively, Myers advances a narrower version of his argument

by asserting that some, but not all, of the supplement narratives are public records.

He contends that some of the supplement narratives that have already been

2. Myers also argues that because some of the incident-report forms “directly reference their

corresponding Supplement Narratives,” the content from those supplement narratives are

incorporated into the public-record incident report by reference. While there is a place for “names

mentioned in narratives” in the incident-report form and the word “supplement” appears next to the

names of certain witnesses, the references to “supplement” in the incident-report forms merely serve

to identify the names that are mentioned in the supplement narratives; they do not incorporate

witness statements into the incident-report forms.

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produced “contain narrative derived directly from the party reporting the facts of

the at-issue offense or incident to the Department.” Myers surmises that the same

may be true of the documents that the city has submitted for in camera review.

{¶ 43} We conclude that this narrower version of Myers’s argument is

correct. In addressing this point, it is useful to consider an example. In request No.

4, investigation No. P2015437, the city disclosed the supplement narratives because

the investigation was completed. The date of the incident was December 5, 2020,

and time of the incident was 8:03 p.m. The time on the initial narrative was 9:58

p.m. on the same date. The first supplement narrative was created at 10:29 p.m. on

that date, approximately 30 minutes after the initial narrative. That first supplement

narrative contains the responding officer’s observations and witness statements.

There are six supplement narratives on later dates, with the last one concluding the

investigation on January 25, 2021.

{¶ 44} A review of the supplement narratives in investigation No.

P2015437 establishes that the first supplement narrative is contemporaneous with

the police response to the incident and contains information that the responding

officer obtained at the scene. Because the timing and nature of the content shows

that the information initiates the investigation, the first supplement narrative

consists of what we will call “incident information” that 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.

{¶ 45} 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

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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.”

{¶ 46} We emphasize, however, that our analysis in this case does not

foreclose redacting information that is part of the public-record incident report if

that information qualifies for nondisclosure under a public-records exception other

than “specific investigatory work product,” including a different CLEIR provision.

Even the information that is included in an incident-report form may, in a proper

case, be redacted under a public-records exception other than the specific-

investigatory-work-product exception in R.C. 149.43(A)(2)(c). See State ex rel.

Shaughnessy v. Cleveland, 149 Ohio St.3d 612, 2016-Ohio-8447, 76 N.E.3d 1171,

¶ 12 (“we have stated that police incident reports are subject to redactions to prevent

the disclosure of exempt information”), citing State ex rel. Beacon Journal

Publishing Co. v. Akron, 104 Ohio St.3d 399, 2004-Ohio-6557, 819 N.E.2d 1087,

¶ 55 (“although police offense-and-incident reports are generally subject to

disclosure, documents containing information that is exempt under state or federal

law may be redacted”), superseded by statute on other grounds as stated in State

ex rel. DiFranco v. S. Euclid, 138 Ohio St.3d 367, 2014-Ohio-538, 7 N.E.3d 1136.

In the cases before us, however, the city does not advance any exception from

public-records disclosure of the supplement narratives other than the specific-

investigatory-work-product exception. Under our holding, to the extent that

supplement narratives contain incident information, they do not constitute specific

investigatory work product and must be disclosed if no other public-records

exception justifies withholding them.

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3. Determining which supplement narratives are part of the public-record

incident report

{¶ 47} The next issue that must be resolved is a factual matter: which

supplement narratives contain incident information and are therefore public

records. Here, 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 product, even when the information has not

been incorporated into the incident-report form.

{¶ 48} We now review each of the investigations in which the city has

submitted records for in camera review in order to identify which supplement

narratives contain incident information that makes them subject to disclosure as

part of the public-record incident report.

a. Case No. 2020-1469

{¶ 49} Request No. 1: investigation No. P2015185. Myers requested this

record on November 20, 2020. The date and time on this incident report are

November 19, 2020, at 9:31 a.m. The initial narrative is dated November 19, 2020,

at 10:23 a.m. and states, “Detective opened an investigation into a possible sexual

assault. Investigation continues.” The first supplement narrative, dated November

19 at 10:25 a.m., contains an account of the officer’s interview of the victim. There

are additional supplement narratives on later dates. The city shall disclose the first

supplement narrative that is dated November 19, 2020, because it contains incident

information. The remaining supplement narratives are not subject to the writ.

b. Case No. 2021-211

{¶ 50} Request No. 2: investigation No. 18-019929. Myers requested this

record on December 6, 2020. The date and time on this incident report are August

28, 2018, at 9:15 a.m. The initial narrative, dated August 28, 2018, at 9:35 a.m.,

states, “Detective opened an investigation into a reported sexual assault.

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Investigation ongoing.” The first supplement narrative, dated April 18, 2020, at

5:31 p.m., recites the background of the investigation and investigative activity.

There are additional supplement narratives on later dates. None of these

supplement narratives need be disclosed because they do not contain incident

information.

{¶ 51} Request No. 3: investigation No. P2015431. Myers requested this

record on December 8, 2020. The date and time on this incident report are

December 5, 2020, at 10:41 a.m. The initial narrative, dated December 5, 2020, at

2:22 p.m., states, “Dispatched on a possible deceased female.” The first supplement

narrative, dated December 5, 2020, at 2:24 p.m., describes the officer’s impressions

at the scene and initial witness statements. There is an additional supplement

narrative on a later date. The city shall disclose the December 5 supplement

narrative because it contains incident information.

{¶ 52} Request No. 5: investigation No. P2015499. Myers requested this

record on December 10, 2020. The date and time on this incident report are

December 9, 2020, at 6:33 a.m. The initial narrative, dated December 9, 2020, at

7:36 a.m., states, “Investigation.” The first supplement narrative, dated December

9 at 8:10 a.m., describes the officer’s response to the incident, the officer’s

impressions of the crime scene, and initial witness statements. A second

supplement narrative is dated December 9 at 8:11 a.m. It is written by a different

officer and describes how that officer assisted at the scene of the incident. There

are additional supplement narratives on later dates. The city shall disclose the first

and second supplement narratives, dated December 9, because they contain incident

information. The remaining supplement narratives are not subject to the writ.

{¶ 53} Request No. 9: investigation No. P2100352. Myers requested this

record on January 26, 2021. The date and time on this incident report are January

23, 2021, at 8:35 p.m. The initial narrative, dated January 23, 2021, at 11:51 p.m.,

states, “Report taken.” The first supplement narrative, dated January 23, 2021, at

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11:51 p.m., describes the officer’s impressions at the scene, presents initial witness

statements, and specifies further actions by the officer. There are additional

supplement narratives on later dates. The city shall disclose the January 23

supplement narrative because it contains incident information. The remaining

supplement narratives are not subject to the writ.

{¶ 54} In light of the foregoing discussion of the records submitted for in

camera review, we issue a writ of mandamus requiring the city to disclose those

supplement narratives that we have identified as containing incident information.

D. Statutory damages

{¶ 55} Under R.C. 149.43(C)(2), a “requester shall be entitled to recover”

statutory damages when (1) he submits a written public-records request “by hand

delivery, electronic submission, or certified mail,” (2) the request “fairly describes

the public record or class of public records to the public office or person responsible

for the requested public records,” and (3) “a court determines that the public office

or the person responsible for public records failed to comply with an obligation”

imposed by R.C. 149.43(B). Statutory damages accrue at $100 “for each business

day during which the public office or person responsible for the requested public

records failed to comply” with R.C. 149.43(B), “beginning with the day on which

the requester files a mandamus action to recover statutory damages, up to a

maximum of one thousand dollars.” Id.

{¶ 56} Myers submitted his public-records requests by email, which

triggers R.C. 149.43(C)(2). Myers advances four types of statutory-damage claims:

1. Damages for the city’s failure to promptly disclose incident-report forms;

2. Damages for the city’s failure to promptly disclose supplement narratives

that are public records because they contain incident information (i.e., the

supplement narratives that are subject to the writ in these cases);

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3. Damages for the city’s failure to promptly disclose supplement narratives

that were originally investigatory work product in those investigations that

have been completed; and

4. Damages for the city’s failure to promptly provide a reasoned denial of

Myers’ requests including citation to legal authority.

{¶ 57} In connection with considering each specific claim, three general

questions arise: (1) whether Myers’s request for nine incident reports should be

treated as distinct records requests for purposes of assessing statutory damages,

(2) whether we should assess separate damage awards for the city’s violations of

R.C. 149.43(B) if those violations relate to one records request, and (3) whether

damages that would otherwise accrue should be abated on the ground that the city

acted reasonably (though unlawfully) in withholding certain records.

1. Precedent prohibits “stacking” damages but permits multiple awards of

damages with respect to distinct records requests

{¶ 58} This court has held that R.C. 149.43(C)(2) “ ‘does not permit

stacking of multiple damage awards based on what is essentially the same records

request.’ ” State ex rel. Ware v. Akron, 164 Ohio St.3d 557, 2021-Ohio-624, 174

N.E.3d 724, ¶ 22, quoting State ex rel. Dehler v. Kelly, 127 Ohio St.3d 309, 2010-

Ohio-5724, 939 N.E.2d 828, ¶ 4. A requester who has made one public-records

request may typically recover only $100 for each business day that a public office

fails to comply with its obligation, even when the requester identifies multiple

violations of R.C. 149.43(B) for a particular business day. See State ex rel.

DiFranco v. S. Euclid, 144 Ohio St.3d 565, 2015-Ohio-4914, 45 N.E.3d 981,

¶ 28-29. And R.C. 149.43(C)(2) imposes a $1,000 cap on the damages that a

requester may recover for a records request.

{¶ 59} Since the requester is entitled to one damage award for each public-

records request, we must determine what constitutes a single request. The city

argues in its merit brief that “all nine of Relator’s requests” amount to “essentially

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the same records request.” We disagree. Each of Myers’s requests relates to a

separate public-record incident report, and—with one exception that is noted

below—each request was made in a separate email on a different date. Compare

Ware at ¶ 22 (two letters that were included in one certified-mailed envelope, both

of which requested police-department personnel information, were treated as a

single records request for purposes of calculating statutory damages). The

antistacking principle does not prohibit multiple statutory-damage awards when

violations occur in connection with different records requests.

2. Myers is entitled to statutory damages for the city’s failure to promptly

disclose incident-report forms

{¶ 60} As already discussed above, with respect to six of Myers’s nine

records requests, the city failed to make the incident-report forms available

promptly, as required by R.C. 149.43(B)(1). Instead of producing the incident-

report forms themselves, the city initially relied on Kinzer’s daily media report to

provide Myers with the information that was contained in the incident reports. But

a records request is a request not for information but for an existing record. See

State ex rel. Morgan v. New Lexington, 112 Ohio St.3d 33, 2006-Ohio-6365, 857

N.E.2d 1208, ¶ 30. Once the record has been requested, R.C. 149.43(B) requires

that the public office “promptly” make it available to the requester.

{¶ 61} Although these violations trigger R.C. 149.43(C)(2), the statutory-

damage provision, it is appropriate to consider whether to abate damages under

R.C. 149.43(C)(2)(a) and (b). Those provisions authorize us to reduce or not to

award statutory damages if we find (1) that “a well-informed public office * * *

reasonably would believe that the conduct * * * that allegedly constitutes a failure

to comply with an obligation” imposed by R.C. 149.43(B) did not constitute such

a failure “based on the ordinary application of statutory law and case law as it

existed at the time of the conduct,” R.C. 149.43(C)(2)(a), and (2) that “a well-

informed public office * * * reasonably would believe that [its] conduct * * *

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would serve the public policy that underlies the authority that is asserted as

permitting that conduct,” R.C. 149.43(C)(2)(b).

{¶ 62} The city’s failure to promptly disclose incident-report forms does not

satisfy either of these criteria. 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.

{¶ 63} We must now compute the amount of statutory damages to which

Myers is entitled. In case No. 2020-1469, the incident-report form was not

disclosed until more than ten days after Myers filed the complaint for a writ of

mandamus—the complaint was filed in this court on December 4, 2020, and the

incident report was not produced until January 8, 2021. Accordingly, Myers is

entitled to an award of $1,000 in statutory damages for the city’s violation of its

prompt-disclosure requirement in case No. 2020-1469.

{¶ 64} In case No. 2021-0211, with respect to five of the eight incident-

report forms that Myers requested, the city did not disclose the incident-report

forms until two days after Myers filed the complaint for a writ of mandamus—the

complaint was filed in this court on February 16, 2021, and the incident-report

forms were provided on February 18, 2021, two business days later. Importantly,

however, two of the public-record incident reports were sought in the same email.3

3. The award of statutory damages for the untimely disclosure of the incident-report forms in case

No. 2021-0211 pertains to request Nos. 2 through 6 (investigation Nos. 18-019929, P2015431,

P2015437, P2015499, and P2015606). Request Nos. 3 and 4 (investigation Nos. P2015431 and

P2015437) were included in the same email that Myers sent on December 8, 2020. We will treat

that email as a single records request for purposes of statutory damages.

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Because of the antistacking principle, Myers is limited to one award of statutory

damages for that single email request.

{¶ 65} To compute the amount of damages, we assess $100 “for each

business day” of the city’s noncompliance “beginning with the day on which

[Myers] file[ed] [the] mandamus action.” See R.C. 149.43(C)(2). Myers is entitled

to $200 for two days—the day on which he filed the complaint in case No. 2021-

0211 and the following day—multiplied by the four separate requests in which

incident-report forms were not promptly produced—a total of $800 damages. We

therefore award Myers $800 for the city’s failure to promptly disclose a total of five

incident report-forms for four separate public-records requests. Adding this

amount to the $1,000 we awarded Myers in case No. 2020-1469, we arrive at a total

damages award of $1,800.

3. Statutory damages relating to the city’s delayed disclosure of those supplement

narratives that contain the incident information will be abated

{¶ 66} Myers also seeks statutory damages for the city’s delay in disclosing

the supplement narratives that contain incident information that makes them part of

the public-record incident report—in other words, the supplement narratives that

are required to be disclosed by the writ that we are issuing. By extension, this claim

could encompass the delay in disclosing supplement narratives that contain incident

information with respect to the four investigations in which the city has already

disclosed all the supplement narratives.4

{¶ 67} If we determine that we should abate the claim for statutory damages

under R.C. 149.43(C)(2)(a) and (b), however, the amount of the damages is moot.

In the context of the city’s failure to disclose the supplement narratives that are

subject to the writ, we find that the city behaved reasonably under R.C.

149.43(C)(2)(a) and (b). First, under R.C. 149.43(C)(2)(a), the city could

4. This aspect of Myers’s argument involves request Nos. 4, 6, 7, and 8 (investigation Nos.

P2015437, P2015606, P2100231, and P2100318).

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January Term, 2022

reasonably have believed that it was proper to withhold the supplement narratives

to protect the fruits of its investigation from disclosure, and the reasonableness of

this position receives support from our decision to deny the writ with respect to

most of the supplement narratives. Second, under R.C. 149.43(C)(2)(b), the city

could also have reasonably believed that withholding the information that is

contained in the supplement narratives served the public policy of keeping the city’s

investigatory work product confidential. Accordingly, we will abate the statutory

damages that are associated with the city’s failure to disclose the supplement

narratives that contain incident information.

4. Myers has not shown that he is entitled to statutory damages for the city’s

delayed disclosure of the investigatory work product in the completed

investigations

{¶ 68} The next claim for statutory damages concerns request Nos. 4, 6, 7,

and 8 (investigation Nos. P2015437, P2015606, P2100231, and P2100318), in

which the city has disclosed all the supplement narratives on the ground that the

investigations have been completed and closed—in other words, the disclosure

includes those supplement narratives that qualified as investigatory work product

while the investigations were still ongoing. Here, Myers contends that the city did

not promptly disclose the public-record investigatory reports. Because two

business days elapsed, beginning with the date on which Myers filed the complaint

in case No. 2021-0211 before full disclosure, Myers seeks $800 in statutory

damages.

{¶ 69} We have already determined that in case No. 2021-0211, Myers is

entitled to $200 in statutory damages for the city’s failure to promptly disclose the

incident-report forms, and that determination includes two requests we are now

considering: request Nos. 4 and 6 (investigation Nos. P2015437 and P2015606).

The antistacking principle would bar any further award of statutory damages for

those requests. That leaves request Nos. 7 and 8 (investigation Nos. P2100231 and

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P2100318). Myers’s claim for statutory damages in this context would amount to

an additional $400 ($100 for the day on which Myers filed the complaint and the

day thereafter, multiplied by two).

{¶ 70} Because the status of these particular supplement narratives depends

on whether and when the investigations were complete, Myers has the burden to

show that disclosure was not made promptly after completion of the investigation.

We conclude that Myers has not met that burden. With respect to investigation No.

P2100231, the final supplement narrative is dated January 15, 2021, and it ends by

stating: “Investigation continues.” By contrast, in investigation No. P2100318, the

final supplement narrative is dated February 10, 2021, and states: “Case closed.”

Myers filed the complaint in case No. 2021-0211 on February 16, and the

investigatory record in each of those two matters was produced two days later.

{¶ 71} This evidence does not show that the city unreasonably delayed the

disclosure of the supplement narratives. In P2100231, at the time Myers made his

request on January 18, 2021, the final supplement narrative stated the investigation

was continuing; as a result, the city needed to make a subsequent determination as

to whether the investigation had been completed. The city both determined that the

investigation was complete and produced the full record within the month after

Myers made the request. In P2100318, the delay in producing the full record after

the case had been closed was a week and a day. Myers has not shown the delay to

be unreasonable in either situation.

5. Myers is not entitled to damages relating to the city’s failure to promptly cite

authority in support of its denial of Myers’s request for supplement narratives

{¶ 72} Myers also claims damages because of the city’s delay in providing

the statutory basis for withholding the requested supplement narratives. R.C.

149.43(B)(3) requires that a written denial to a written public-records request

“provide the requester with an explanation, including legal authority, setting forth

why the request was denied.” In case No. 2020-1469, the city provided a denial

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January Term, 2022

with a citation to a statute on December 11, 2020, seven days after Myers filed the

complaint. However, the city did not provide a denial with a statutory citation with

respect to any of the other requests until after the mandamus action was filed.

Myers seeks statutory damages for the city’s delay in providing a denial that is

compliant with R.C. 149.43(B)(3).

{¶ 73} We deny this portion of Myers’s damages claim for two reasons.

First, R.C. 149.43(B)(3)—unlike R.C. 149.43(B)(1)—does not contain a

requirement that the denial be “prompt.” See State ex rel. Ware v. Giavasis, 160

Ohio St.3d 383, 2020-Ohio-3700, 157 N.E.3d 710, ¶ 12. As a result, the city’s

delay in providing Myers with an explanation for its denial does not by itself entitle

Myers to an award of statutory damages. Second, although the city did not provide

a formal explanation with respect to each of his records requests, the email

exchanges between Myers and the police chief in case No. 2020-1469 furnished

Myers with a general explanation of the city’s position. Accordingly, we deny

statutory damages based on the city’s delay in explaining its denial of Myers’s

requests for the supplement narratives.

E. Attorney fees

{¶ 74} We may award attorney fees when we order a public office to

comply with R.C. 149.43(B). R.C. 149.43(C)(3)(b) “outlines four different

triggering events that grant a court discretion to order reasonable attorney fees in a

public-records case.” State ex rel. Rogers v. Dept. of Rehab. & Corr., 155 Ohio

St.3d 545, 2018-Ohio-5111, 122 N.E.3d 1208, ¶ 32. Myers seeks attorney fees

under R.C. 149.43(C)(3)(b).

{¶ 75} However, R.C. 149.43(C)(3)(c) states that attorney fees should not

be awarded when a court determines that the public office “reasonably would

believe that the conduct or threatened conduct of the public office or person

responsible for the requested public records did not constitute a failure to comply

with an obligation in accordance with” R.C. 149.43(B) and that the public office

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“reasonably would believe that the conduct or threatened conduct of the public

office or person responsible for the requested public records would serve the public

policy that underlies the authority that is asserted as permitting that conduct or

threatened conduct.”

{¶ 76} We have already made a similar determination in connection with

abating statutory damages associated with the city’s failure to disclose supplement

narratives that contain incident information. Using that same logic, we conclude

that awarding attorney fees is inappropriate here because the city could have

reasonably believed that it could withhold the supplement narratives and that doing

so would fulfill the public policy behind the investigatory-work-product exception.

Indeed, Myers does not cite any legal authority in which supplementary parts of an

investigatory record have been held to be public records. See State ex rel. Summers

v. Fox, 164 Ohio St.3d 583, 2021-Ohio-2061, 174 N.E.3d 747, ¶ 14. We deny

Myers’s request for an award of attorney fees.

F. Costs

{¶ 77} Myers also requests an award of court costs. R.C. 149.43(C)(3)(a)(i)

states: “If the court orders the public office or the person responsible for the public

record to comply with [R.C. 149.43(B)], the court shall determine and award to the

relator all court costs.” Because we are granting a partial writ of mandamus, we

award court costs to Myers.

III. CONCLUSION

{¶ 78} For the foregoing reasons, we grant Myers a partial writ of

mandamus requiring the city to disclose some, but not all, of the supplement

narratives at issue. Stated generally, the city must disclose those supplement

narratives that we have previously found to contain incident information—but the

city need not disclose any other supplement narratives. More specifically, the city

must disclose: (1) the first supplement narrative for investigation No. P2015185,

dated November 19, 2020, at 10:25 a.m., (2) the first supplement narrative for

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January Term, 2022

investigation No. P2015431, dated December 5, 2020, at 2:24 p.m., (3) the first and

second supplement narratives for investigation No. P2015499, dated December 9,

2020, at 8:10 a.m. and 8:11 a.m., and (4) the first supplement narrative for

investigation No. P2100352, dated January 23, 2021, at 11:51 p.m. We are not

ordering the city to disclose any of the supplement narratives for investigation No.

18-019929. We also award Myers statutory damages in the amount of $1,800. We

award costs to Myers, but we deny his request for an award of attorney fees.

Judgment accordingly.

O’CONNOR, C.J., and DONNELLY, STEWART, and BRUNNER, JJ., concur.

KENNEDY, J., concurs in part and dissents in part, with an opinion joined by

DEWINE, J.

FISCHER, J., concurs in the court’s judgment granting a partial writ but

dissents from the court’s judgment as to the award of damages and costs.

_________________

KENNEDY, J., concurring in part and dissenting in part.

{¶ 79} Today, the majority modifies the definition of what “specific

investigatory work product” is under R.C. 149.43(A)(2)(c). By doing so, it

needlessly complicates a standard that was settled almost 30 years ago in State ex

rel. Steckman v. Jackson, 70 Ohio St.3d 420, 639 N.E.2d 83 (1994). In Steckman,

this court held that “information assembled by law enforcement officials in

connection with a probable or pending criminal proceeding” is “specific

investigatory work product” and is therefore exempt from disclosure. Id. at

paragraph five of the syllabus, overruled on other grounds by State ex rel. Caster

v. Columbus, 151 Ohio St.3d 425, 2016-Ohio-8394, 89 N.E.3d 598. The majority’s

change to Steckman’s definition to include when a report is created and how a police

department maintains the record will certainly cause confusion and spur litigation

for years to come.

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{¶ 80} I agree with the majority’s decision to grant an award of $1,800 in

statutory damages to relator, Derek J. Myers, because respondents, the city of

Chillicothe; its police chief, Ron Meyers (“police chief”); and the police

department’s records clerk, Mica Kinzer (collectively, “the city”), failed to timely

produce routine incident-report forms. Although I also agree with the majority’s

decision to deny Myers statutory damages for the city’s failure to produce various

supplement reports, I disagree with the majority’s reasoning.

{¶ 81} I also disagree with the majority’s holding that the time at which a

law-enforcement officer creates a record or that a police department’s method for

maintaining such records determines whether the confidential-law-enforcement-

investigatory-record exemption (“specific investigatory work product”), R.C.

149.43(A)(2)(c), applies.

{¶ 82} Because the records that the city withheld from disclosure meet the

Steckman definition of “specific investigatory work product,” I would deny Myers

a writ of mandamus. Because the majority does otherwise, I dissent.

{¶ 83} Therefore, I concur in part and dissent in part.

Mandamus and R.C. 149.43, Ohio’s Public Records Act

{¶ 84} Mandamus is an appropriate remedy by which to compel a public

office’s compliance with the Public Records Act. R.C. 149.43(C)(1)(b); see 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. The requester

must establish by clear and convincing evidence a clear legal right to the requested

records and a corresponding clear legal duty on the part of the public office to

provide them. State ex rel. Cincinnati Enquirer v. Sage, 142 Ohio St.3d 392, 2015-

Ohio-974, 31 N.E.3d 616, ¶ 10.

{¶ 85} “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.” State ex rel. Miller v. Ohio State Hwy.

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January Term, 2022

Patrol, 136 Ohio St. 3d 350, 2013-Ohio-3720, 995 N.E.2d 1175, ¶ 23. To meet this

burden, the records custodian must prove 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.

“Specific investigatory work product” exception

to the Public Records Act

{¶ 86} A public record is any record kept by a public office. R.C.

149.43(A)(1). Despite that overarching definition of a public record, the legislature

has exempted certain records from disclosure.

{¶ 87} A confidential law-enforcement investigatory record is exempt from

disclosure when the record “pertains to a law enforcement matter of a criminal,

quasi-criminal, civil, or administrative nature, but only to the extent the release of

the record would create a high probability of disclosure” of one of four categories

of records. R.C. 149.43(A)(2). In this case, the city argues that the requested

records are exempt as specific investigatory work product under R.C.

149.43(A)(2)(c).

{¶ 88} In Steckman, 70 Ohio St.3d 420, 639 N.E.2d 83, this court stepped

back from its earlier decisions in State ex rel. Beacon Journal Publishing Co. v.

Univ. of Akron, 64 Ohio St.2d 392, 415 N.E.2d 310 (1980), and State ex rel. Natl.

Broadcasting Co. v. Cleveland, 38 Ohio St.3d 79, 526 N.E.2d 786 (1988), regarding

what material could be classified as specific investigatory work product and

therefore exempt under R.C. 149.43(A)(2)(c). In Steckman, this court concluded

that it had not addressed what the phrase “specific investigatory work product”

meant in Beacon Journal Publishing Co. Steckman at 433. In Beacon Journal

Publishing Co., this court held that the R.C. 149.43(A)(2)(c) exemption did not

apply because the reports at issue were “routine factual reports.” (Emphasis

added). Id. at 397.

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{¶ 89} In Steckman, this court also cast doubt on the reliability of the

holding in Natl. Broadcasting Co. This court explained in Steckman that the

definition of specific investigatory work product in Natl. Broadcasting Co. as “ ‘an

investigator’s deliberative and subjective analysis, his interpretation of the facts,

and his theory of the case, and investigative plans,’ ” Steckman at 434, quoting Natl.

Broadcasting Co. at paragraph three of the syllabus, was based on a “nonexistent

foundation,” Steckman at 433.

{¶ 90} In Steckman, this court concluded that it had not yet addressed what

constituted “work product” for purposes of the specific-investigatory-work-product

exemption under R.C. 149.43(A)(2)(c). Recognizing this court’s failure to define

that phrase in past decisions, this court focused on the text of R.C. 149.43(A)(2)(c).

This court considered the United States Supreme Court’s definition of “work

product” in Hickman v. Taylor, 329 U.S. 495, 67 S.Ct. 385, 91 L.Ed. 451 (1947),

and the definition of the “work product rule” in Black’s Law Dictionary 1606 (6th

Ed.Rev.1990). Steckman at 434. This court held 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.” Id. at paragraph five of the syllabus. This court

also held that “[r]outine offense and incident reports are subject to immediate

release upon request.” Id.

{¶ 91} After Steckman, we reiterated that its holding applies “to actual

pending or highly probable criminal prosecutions and defines, in that context, the

very narrow exceptions to R.C. 149.43.” (Emphasis sic.) State ex rel. Police

Officers for Equal Rights v. Lashutka, 72 Ohio St.3d 185, 188, 648 N.E.2d 808

(1995).

{¶ 92} In holding that the specific-investigatory-work-product exemption

applied in State ex rel. Leonard v. White, 75 Ohio St.3d 516, 518, 664 N.E.2d 527

(1996), this court explained that “[o]nce it is evident that a crime has occurred,

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January Term, 2022

investigative materials developed are necessarily compiled in anticipation of

litigation and so fall squarely within the Steckman definition of [specific

investigatory] work product.” (Emphasis added).

The supplement narratives are specific investigatory work product

and are therefore exempt from disclosure

{¶ 93} Myers made nine public-records requests seeking incident-report

forms and supplement narratives. The incident-report forms are not in dispute. The

dispute before us centers on the supplement narratives. The city provided

supplement narratives for request Nos. 4, 6, 7 and 8 after the investigations

associated with those requests were closed. So, the issue here is whether the

specific-investigatory-work-product exemption applies to the supplement

narratives connected to Myers’s request Nos. 1, 2, 3, 5, and 9. In the requests at

issue, the term “supplement narrative” refers to the additional narratives that are

prepared by police officers as part of an investigatory record. For purposes of

consistency, this opinion adopts the same terminology as the majority:

“[T]he standard, fill-in-the-blank information,” we will call

“the incident-report form.” As for the two types of narratives, we

will follow the police chief’s terminology and call them the “initial

narrative” and the “supplement narratives.” Finally, we will use the

phrase “public-record incident report” to refer to those documents

that must be disclosed under the Public Records Act.

Majority opinion, ¶ 8.

{¶ 94} As explained in the police chief’s affidavit, supplement narratives

“contain the personal notes of the investigating officer regarding the incident,

summarizing witness and victim interviews, and evaluating the alleged offense,”

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along with “specific details of the crime alleged, the identities of the victim,

witnesses, and alleged perpetrator, and other related information.”

{¶ 95} The majority holds that various supplement narratives do not fall

under the specific-investigatory-work-product exemption. I disagree. Because the

records sought in request Nos. 1, 2, 3, 5, and 9 fall squarely within the Steckman

definition of specific investigatory work product, Myers is not entitled to a writ of

mandamus.

{¶ 96} Request No. 1 asks for the public-record incident report from

investigation No. P2015185. The incident-report form states that the rape of a child

was reported on November 19, 2020, at 9:31 a.m. A detective met with the victim

at 10:23 a.m. The initial narrative, which is dated November 19, 2020, at 10:23

a.m., states: “Detective opened an investigation into a possible sexual assault.

Investigation continues.” The first supplement narrative was completed just two

minutes after the initial narrative. It states that the detective met with the victim

who wanted to discuss incidents that had occurred in 2007. The victim described

the sex acts that the accused had reportedly forced on the victim.

{¶ 97} Request No. 2 asks for the public-record incident report for

investigation No. 18-019929. The majority grants Myers an award of statutory

damages only for the city’s failure to disclose the incident-report form. I agree with

that determination. The allegation in the incident-report form is gross sexual

imposition. The initial narrative is dated August 28, 2018. It states: “Detective

opened an investigation into a reported sexual assault. Investigation ongoing.”

There is no supplement narrative until April 18, 2020, and the investigation was

ongoing.

{¶ 98} Request No. 3 asks for the public-record incident report for

investigation No. P2015431. The incident-report form lists a suspicious death of a

27-year-old woman, reported on December 5, 2020, at 10:41 a.m. The investigating

officer reported being at the scene at approximately 10:45 a.m. The initial narrative

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is dated December 5, 2020, at 2:22 p.m., and states: “Dispatched on a possible

deceased female.” The first supplement narrative, which was written by that same

officer, was created two minutes later and contained his observations. It states that

the investigating officer arrived at the same time as the medics and that he had

spoken to the decedent’s parents. The officer waited for the coroner to arrive and

then turned the investigation over to a detective.

{¶ 99} Request No. 5 asks for the public-record incident report for

investigation No. P2015499. The incident-report form lists the possible crime as a

shooting and states that an aggravated assault and an aggravated burglary may have

occurred. The initial narrative is dated September 9, 2020, at 7:36 a.m., and states:

“Investigation.” The first supplement narrative is dated that same day at 8:10 a.m.

The responding officer wrote that there was a victim who had been shot in a home.

The officer found the victim, who was in an upstairs bedroom. The reporting

witness described a break-in and the shooting.

{¶ 100} Request No. 9 asks for the public-record incident report for

investigation No. P2100352. The incident-report form identifies the crime as gross

sexual imposition. The initial narrative is dated January 23, 2021, at 11:51 p.m.,

and states: “Report taken.” The first supplement narrative was reported at the same

time. It states that the responding officer was dispatched to investigate a possible

rape. The officer spoke to the victim’s mother, who reported that her child had

been raped. The name of the child victim and additional details are given in the

first supplement narrative.

{¶ 101} An in camera review of the first supplement narratives in request

Nos. 1, 2, 3, 5, and 9 reveals that those records were created after it was evident to

the responding officers that a crime had been committed, Leonard, 75 Ohio St.3d

at 518, 664 N.E.2d 527, and the officers and detectives began assembling the

information “in connection with a probable or pending criminal proceeding,”

Steckman, 70 Ohio St.3d at 435, 639 N.E.2d 83. Therefore, the city properly relied

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on the specific-investigatory-work-product exemption under R.C. 149.43(A)(2)(c)

as its reason for not disclosing the supplement narratives.

{¶ 102} The majority reaches a contrary decision because it focuses on

matters that are unrelated to the content of the supplement narratives. As a result,

the majority needlessly redefines what constitutes a “specific investigatory work

product” for purposes of what qualifies as an exemption under R.C.

149.43(A)(2)(c).

The majority needlessly redefines the Steckman definition of

“specific investigatory work product”

{¶ 103} This court has been applying the Steckman definition of “specific

investigatory work product” to cases involving public-records requests since 1994.

Law-enforcement agencies across Ohio have also relied on the Steckman definition

to determine whether a records request falls within the exemption. Records

custodians know that routine offense and incident reports are subject to immediate

release upon request. But, according to Steckman, other records regarding a

criminal investigation are not. The question that the records custodian must answer

is: Does the content of the information in the record that is being requested pertain

to a probable or pending criminal proceeding?

{¶ 104} But today, on a nonexistent foundation, the majority redefines the

R.C. 149.43(A)(2)(c) exemption. Now, there are additional metrics—i.e., when a

police officer or detective creates a record and how a police department maintains

its records—that must be considered in determining whether a particular record

falls squarely within the specific-investigatory-work-product exemption. These

additional considerations will only foster confusion and spur litigation. The

definition set forth in Steckman, 70 Ohio St.3d at 435, 639 N.E.2d 83, is readily

understandable and needs no modernization to apply it to this case. “[I]nformation

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,

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excepted from required release.” Steckman at 435. We should not fix what is not

broken.

{¶ 105} The majority, however, states:

[W]hen 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 the

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).

Majority opinion at ¶ 45.

{¶ 106} The majority creates an additional temporal part to the definition of

“specific investigatory work product.” While Steckman, 70 Ohio St.3d 420, 639

N.E.2d 83, incorporated a temporal consideration—i.e., specific investigatory work

product is created once it is evident that a crime has occurred—the majority now

creates an additional temporal element—i.e., specific investigatory work product is

created when the police officer or detective generates the record sometime after his

or her initial investigation. After today, the definition of specific investigatory

work product will turn on (1) at what point it is evident that a crime has occurred

and (2) when in time law enforcement assembles the material and generates the

record. So, what is that timing? How long after an initial report is created must

law-enforcement officers wait before assembling information that will be protected

under the specific-investigatory-work-product exemption? Obviously, here, a few

minutes is not enough. So, is it hours, days, or weeks? The majority never tells us.

Regardless of when it is, the majority’s new temporal element is not realistic in

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modern-day policing. When law-enforcement officers respond to the scene of a

crime, time is of the essence; and gathering evidence—whether physical or

testimonial—to support a potential prosecution must begin immediately. Once it

is evident that a crime has occurred, the compilation of investigative materials

begins in anticipation of litigation, and the related records are exempt under R.C.

149.43(A)(2)(c). And this is exactly what the city was doing in every investigatory

case at issue here.

{¶ 107} The majority also includes a consideration about how a public

office maintains its records. But that is irrelevant. The Public Records Act—and

the exemptions to it—are about the content of the information in the record. Public-

records custodians routinely redact information that is exempt from disclosure.

R.C. 149.43(B)(1). So, if a law-enforcement agency maintains routine factual

information and specific investigatory work product in the same overall record,

then the records custodian may disclose the incident-report form while redacting

any information that is considered to be specific investigatory work product. See

R.C. 149.43(A)(2)(c).

{¶ 108} Police officers completed the incident-report forms with the

understanding that under Steckman, those reports were immediately subject to

release. Police officers and detectives then used the supplement narratives to begin

assembling the information that would be needed for future prosecutions.

Regardless of when that information was collected—at the same time that the

incident had been reported or hours, days, or weeks later— that information is

properly exempt from disclosure under the specific-investigatory-work-product

exemption of R.C. 149.43(A)(2)(c) if the material is collected in anticipation of

litigation.

Statutory damages

{¶ 109} Before addressing Myers’s specific requests for statutory damages,

I address two determinations in the majority opinion with which I disagree. First,

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the majority opinion states that R.C. 149.43(B)(3) (“If a request is ultimately

denied, in part or in whole, the public office or the person responsible for the

requested public record shall provide the requester with an explanation, including

legal authority, setting forth why the request was denied”) does not contain a

requirement that a denial of a public-records request be prompt. And second, the

majority opinion states that a denial of one public-records request serves as a

blanket denial for all public-records requests. Majority opinion at ¶ 72.

{¶ 110} “The primary duty of a public office when it has received a public-

records request is to promptly provide any responsive records within a reasonable

amount of time and when a records request is denied, to inform the requester of that

denial and provide the reasons for that denial.” (Emphasis added.) State ex rel.

Cordell v. Paden, 156 Ohio St.3d 394, 2019-Ohio-1216, 128 N.E.3d 179, ¶ 11,

citing R.C. 149.43(B)(1) and (3). A statutory requirement that need never be

completed is not a requirement at all. See Ware v. Kurt, __ Ohio St.3d __, 2022-

Ohio-1627, __ N.E.3d __, ¶ 70 (Kennedy, J., concurring in part and dissenting in

part).

{¶ 111} Moreover, the Public Records Act requires a records custodian to

“provide the requester with an explanation, including legal authority, setting forth

why the request was denied.” R.C. 149.43(B)(3). Therefore, the legislature

requires that when a records custodian denies a public-records request, she provide

the requester with the legal authority for why the request is being denied. The city

understood its obligation to respond to each public-records request because it

responded to each of Myers’s public-records requests.

{¶ 112} Turning to Myers’s request for statutory damages, there are two

types of records at issue here: incident-report forms and supplement narratives.

Incident-report forms

{¶ 113} Myers argues that he is entitled to statutory damages because the

city failed to timely provide incident-report forms for request Nos. 1 through 6. I

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agree with the majority that Myers is entitled to an award of $1,800 in statutory

damages for those requests. Myers requested the public records by email and the

factors set forth in R.C. 149.43(C)(2)(a) and (b) allowing for a reduction of such an

award are not met here. I also agree with the majority that request Nos. 7, 8, and 9

are not at issue because they were produced for Myers within a reasonable time.

Supplement narratives

{¶ 114} Myers makes three arguments for statutory damages that pertain to

the supplement narratives. First, he argues that if this court grants him a writ of

mandamus for the supplement narratives for request Nos. 1, 2, 3, 5, and 9, then this

court should grant him an award of statutory damages for each of those requests

because those supplement narratives were—and continue to be—wrongfully

withheld. He asks for $1,000 in statutory damages for each of those five requests.

Second, he argues that he is entitled to an award of statutory damages for request

Nos. 1 through 9 because the city failed to promptly cite any legal authority in

support of its denial of Myers’s requests for those supplement narratives. Lastly,

he argues that he is entitled to statutory damages because the city delayed disclosing

the supplement narratives from the completed investigations in request Nos. 4, 6,

7, and 8.

Supplement narratives: Request Nos. 1, 2, 3, 5, and 9

{¶ 115} For reasons that differ from the majority, I agree that Myers is not

entitled to statutory damages for the city’s denial of the supplement narratives in

request Nos. 1, 2, 3, 5, and 9. As set forth above, I would deny his request for a

writ of mandamus because these supplement-narrative requests are exempt under

the specific-investigatory-work-product exemption under R.C 149.43(A)(2)(c).

The majority determines that Myers should not receive an award of statutory

damages pertaining to these supplement-narrative requests because any amount of

possible damages should be abated under R.C. 149.43(C)(2)(a) and (b).

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{¶ 116} Myers argues that even if this court does not grant him a writ of

mandamus for request Nos. 1, 2, 3, 5, and 9, he would still be entitled to statutory

damages because the city failed to promptly cite legal authority in support of its

denial for Myers’s requests for supplement narratives in contravention of R.C.

149.43(B)(3). The majority states that R.C. 149.43(B)(3) does not contain a

requirement that the denial be “prompt.” As set forth above, I disagree. The

majority also suggests that when a records custodian provides a denial with legal

reasoning as to one public-records request, that denial is sufficient for any

subsequent denials of public-records requests. Again, as set forth above, I disagree.

{¶ 117} Additionally, I would not award Myers statutory damages for

request Nos. 1, 2, 3, 5 and 9, because the city did provide a prompt explanation with

legal authority. Almost every response to Myers’s requests was a variation on the

same theme—that the city was not required to release the supplement narratives

while an investigation was ongoing. For instance, in response to request No. 3,

Kinzer responded, “Please see the response from Det. Wallace, who is the

investigating detective on this case (P2015431). I have already provided the initial

to everyone. Once he completes his investigation, I am more than happy to send

out the full report.” Included with Kinzer’s response was a forwarded email from

the detective that read: “[The case] is still pending and he can only have initial.”

As to Myers’s argument that this response was insufficient because it failed to

provide a specific legal response, R.C. 149.43(B)(3) does not require the records

custodian to cite to a specific statutory section or case. Using lay terms to explain

the legal authority for denying a public-records request is sufficient.

Supplement narratives: Request Nos. 4, 6, 7, and 8

{¶ 118} Lastly, Myers argues that although the public-record incident

reports in investigation Nos. P2015437, P2015606, P2100231, and P2100318 had

been disclosed once those investigations were closed, the city unreasonably delayed

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its disclosure of those supplement narratives. I agree with the majority that the

evidence does not support this argument.

{¶ 119} Myers also argues that he is entitled to statutory damages because

the city failed to promptly cite legal authority in support of its denial of Myers’s

request for supplement narratives for these requests. As stated above, the city

provided responses with legal reasoning for every records request. Most responses

were like the one that Kinzer had provided for request No. 7: “[I]t’s still an open

investigation.”

{¶ 120} The response to request No. 6, however, was different. Kinzer

responded: “This is all I am able to release on the case from Det. Fyffe at this time—

P2015606.” Below that response was the following information: “Detective was

notified via ICAC of possible pornography involving a juvenile. Suspect in case

has not been identified at this time, still awaiting information on case.” (Italics

sic.) This response indicates that investigation No. P2015606 was still ongoing.

{¶ 121} While Kinzer’s response did not directly state that investigation

No. P2015606 was still an active case, the detective’s response did. The detective

wrote that the case involved allegations of pornography involving a juvenile and

that the suspect had not been identified. Plainly, it was still an open investigation

because a suspect had not been identified and caught.

{¶ 122} Therefore, just as Myers is not entitled to statutory damages for the

city’s denial of the supplement narratives in request Nos. 1, 3, 5, and 9, Myers is

not entitled to statutory damages for the city’s denial of the supplement narratives

in request Nos. 4, 6, 7, and 8.

Court costs and attorney fees

{¶ 123} I dissent from the majority’s judgment awarding Myers court costs.

Court costs are awarded after a court orders a records custodian to comply with

R.C. 149.43(B). R.C. 149.43(C)(3)(a)(i). Because I would not grant Myers a writ

of mandamus, I would not award him court costs.

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{¶ 124} Likewise, a court may order the payment of attorney fees when it

orders a public office to comply with R.C. 149.43(B). R.C. 149.43(C)(3)(b).

Again, because I would not grant Myers a writ of mandamus, I would not award

attorney fees.

Conclusion

{¶ 125} I agree with the majority’s judgment awarding Myers $1,800 in

statutory damages because the city failed to timely produce incident-report forms.

I also agree with the majority’s judgment denying Myers an award of statutory

damages for his public-records requests for the supplement narratives. However, I

disagree with the majority’s reasoning.

{¶ 126} I dissent from the majority’s judgment granting Myers a partial writ

of mandamus. Specific investigatory work product is “information assembled by

law enforcement officials in connection with a probable or pending criminal

proceeding,” Steckman, 70 Ohio St.3d 420, 639 N.E.2d 83, at paragraph five of the

syllabus, and that information is exempt from disclosure pursuant to R.C.

149.43(A)(2)(c). Because the supplement narratives fall squarely within the

Steckman definition of specific investigatory work product, the records are not

subject to disclosure and the writ of mandamus should be denied. Because the

majority decides otherwise, I concur in part and dissent in part.

DEWINE, J., concurs in the foregoing opinion.

_________________

Robinson Law Firm, L.L.C., and Emmett E. Robinson, for relator.

Reminger Co., L.P.A., Patrick Kasson, and Kent Hushion, for respondents.

_________________

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