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

ex rel. Caster v. Columbus, Slip Opinion No. 2016-Ohio-8394.] 

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. 2016-OHIO-8394

THE STATE EX REL. CASTER v. THE CITY OF COLUMBUS ET AL.

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

may be cited as State ex rel. Caster v. Columbus, Slip Opinion No. 

2016-Ohio-8394.] 

Mandamus—Public Records Act—R.C. 149.43—Writ of mandamus sought to 

obtain records of investigation leading to conviction of criminal 

defendant—R.C. 149.43(A)(1)(h)—Confidential-law-enforcementinvestigatory-records exception to disclosure—Specific-investigatorywork-product exception of R.C. 149.43(A)(2)(c) does not extend beyond the 

completion of the trial for which the information was gathered—State ex 

rel. Steckman v. Jackson and State ex rel. WLWT-TV5 v. Leis overruled to 

extent they held that specific-investigatory-work-product exception 

continues until “all proceedings” have been fully completed—Writ granted 

and request for attorney fees, statutory damages, and court costs granted. 

(No. 2014-1621—Submitted April 20, 2016—Decided December 28, 2016.) 

IN MANDAMUS. 
SUPREME COURT OF OHIO

2

_________________ 

PFEIFER, J. 

{¶ 1} This public-records case involves an attempt by an independent entity 

to obtain certain law-enforcement records concerning a convicted criminal 

defendant whose direct appeals ended more than four years prior to the making of 

the request for public records. We hold that the exception from the required 

disclosure of public records set forth in R.C. 149.43(A)(2)(c) for specific 

investigatory work product does not extend beyond the completion of the trial of 

the underlying criminal case at issue. We grant the request for a writ of mandamus, 

and we order other relief as stated below. 

FACTUAL AND PROCEDURAL BACKGROUND 

{¶ 2} Relator, Donald Caster, is an Ohio attorney engaged by the Ohio 

Innocence Project (“OIP”), an organization whose mission is to identify, 

investigate, and litigate cases in which persons may have been wrongfully 

convicted of serious crimes. Respondent Kimberley Jacobs is Chief of the Division 

of Police (“DOP”) of respondent the city of Columbus. Caster asserts that 

respondents have refused to provide copies of certain requested records. 

{¶ 3} As part of an independent investigation into the 2007 murder 

conviction of Adam Saleh, Caster requested the police records related to the arrest 

and investigation of Saleh. In response, DOP made a blanket rejection of this 

request, citing State ex rel. Steckman v. Jackson, 70 Ohio St.3d 420, 639 N.E.2d 83 

(1994), which held that “information assembled by law enforcement officials 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.” Id. at 435. DOP stated that no records would 

be produced until the “completion” of Saleh’s criminal case, even though all 

appeals had been exhausted. 
January Term, 2016 

3

{¶ 4} The facts underlying the records request are as follows. In 2007, 

Saleh was convicted of the murder, kidnapping, and attempted rape of Julie 

Popovich and tampering with evidence; he was sentenced to 38 years to life in 

prison. The Tenth District Court of Appeals affirmed the convictions. This court 

declined jurisdiction in July 2009. State v. Saleh, 122 Ohio St.3d 1457, 2009-Ohio3131, 908 N.E.2d 946. No proceedings are currently pending regarding the 

convictions in any court, nor were they between September 2013 and the present. 

{¶ 5} OIP is engaged in an independent investigation into Saleh’s 

convictions to determine whether he was wrongly convicted. Neither Caster nor 

OIP currently represents Saleh or any member of his family as a client. OIP cannot 

and does not intervene in every case it reviews; rather, it intervenes in a small 

percentage of those cases, and its efforts have led to the exoneration of defendants 

in a number of cases. OIP requests public records in some cases to determine 

whether a defendant is a candidate for its intervention and in some cases to 

determine whether other defendants may be viable alternate suspects in cases in 

which an inmate appears to have been wrongfully convicted. OIP will determine 

whether to enter into an attorney-client relationship with Saleh only after 

determining whether there is evidence indicating that Saleh was wrongfully 

convicted. 

{¶ 6} In a letter dated September 5, 2013, OIP law-student fellows, at 

Caster’s direction, made a public-records request of DOP for “a copy of any police 

records related to the arrest and subsequent investigation” of Saleh for the crimes 

involving Popovich, including “medical records, police reports, investigation notes, 

evidence reports, and any other materials compiled by the Columbus Division of 

Police.” 

{¶ 7} DOP responded with a letter dated September 9, 2013, rejecting the 

request. Citing R.C. 149.43(A)(1)(h), which excepts from disclosure under the 
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Public Records Act (“PRA”) “confidential law enforcement investigatory records” 

(sometimes called “CLEIRs”), the letter stated: 

CLEIRS Exception: A Public Office may withhold any 

records that pertain to a Law Enforcement matter of criminal, quasicriminal, civil, or administrative nature and that, if released, would 

create a high probability of disclosing any of the following types of 

information: 1.) Identity of an uncharged suspect, 2.) Identity of a 

confidential source, 3.) Investigatory techniques or procedures, 4.) 

Investigatory work product or 5.) Information that would endanger 

the life or physical safety of Law Enforcement personnel, a crime 

victim, a witness, or a confidential source. * * * State ex rel. 

Steckman v. Jackson, 70 Ohio St.3d 420[.] 

In accordance with this section, the Columbus Division of 

Police, in co-operation with the Franklin County Prosecutor’s 

Office, will supply copies of records from this case, upon 

completion of the criminal case. * * * Your current request for 

public record(s) has been closed and cleared in our files. Please feel 

free to re-file your request after the criminal investigation and all 

appeals have been exhausted. 

(Boldface sic.) 

{¶ 8} In October 2013, Caster directed the law students to resubmit the 

public-records request, and they did so. DOP responded the same day with a letter 

virtually identical to the one sent in September. Again, DOP provided no records 

in response to the request. 
January Term, 2016 

5

{¶ 9} In November 2013, Caster himself submitted a records request to 

DOP by certified mail, explaining that there were no proceedings ongoing in 

Saleh’s case. DOP did not respond, nor did it provide copies of any records. 

{¶ 10} Caster filed this original action in mandamus in September 2014, and 

in October of that year, DOP provided him copies of some records included in the 

investigative file, specifically the missing-person-preliminary-investigation forms, 

the Franklin County Coroner’s report, newspaper articles, a press release, and 

subpoenas. DOP continues to assert that other requested records are excepted from 

disclosure under R.C. 149.43(A)(1) and (2)(a) through (d) and under the holdings 

of Steckman and its progeny. 

{¶ 11} Respondents have filed the affidavit of Jonathan Schirg, the 

supervisor of DOP’s public-records unit, who states that he has reviewed DOP’s 

records on the Popovich homicide investigation. He asserts that the file contains 

confidential law-enforcement investigatory records (including confidential 

investigatory techniques, procedures, and specific investigatory work product) and 

“the personal notes, working papers, memoranda, evidentiary findings, and similar 

materials compiled by the law enforcement investigators in anticipation of criminal 

proceedings.” According to Schirg, the file also includes FBI records and identifies 

witnesses and confidential sources, the release of which could endanger their lives 

or physical safety. 

{¶ 12} Caster has filed two supporting affidavits. One is from Randy 

Ludlow, a reporter for the Columbus Dispatch, who attaches to his affidavit a 

newspaper article he wrote in March 2010 regarding a change in DOP’s 

interpretation of Ohio’s public-records laws. Under the newly implemented policy, 

DOP would no longer release any police investigatory documents while murderers 

remain in prison. Previously, the article related, investigators, journalists, and 

relatives of both the victims and the convicted person were permitted—after the 

convicted person had exhausted appeals—to obtain case records. 
SUPREME COURT OF OHIO

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{¶ 13} The second affidavit filed by Caster is from Martin Yant, who 

describes himself as a private investigator. He states that “[a]t least five individuals 

[he has] assisted were exonerated, and their convictions were reversed, as a direct 

result of [his] ability to obtain criminal case files held by law enforcement agencies 

and/or prosecutors through public records requests” under R.C. 149.43. 

LAW AND ANALYSIS 

Mandamus 

{¶ 14} “Mandamus is the appropriate remedy to compel compliance with 

R.C. 149.43, Ohio’s Public Records Act.” State ex rel. Physicians Commt. for 

Responsible Medicine v. Ohio State Univ. Bd. of Trustees, 108 Ohio St.3d 288, 

2006-Ohio-903, 843 N.E.2d 174, ¶ 6; R.C. 149.43(C)(1). 

{¶ 15} Although the PRA is accorded liberal construction in favor of access 

to public records, “the relator must still establish entitlement to the requested 

extraordinary relief 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. In addition, unlike in other mandamus cases, “[r]elators in 

public-records cases need not establish the lack of an adequate remedy in the 

ordinary course of law.” State ex rel. Data Trace Information Servs., L.L.C. v. 

Cuyahoga Cty. Fiscal Officer, 131 Ohio St.3d 255, 2012-Ohio-753, 963 N.E.2d 

1288, ¶ 25. 

{¶ 16} Therefore, Caster has correctly filed an original action in mandamus 

to challenge DOP’s refusal to produce documents that he asserts are public records. 

Specific Investigatory Work Product 

{¶ 17} DOP claims that the records Caster seeks are excepted from 

mandatory disclosure under R.C. 149.43(A)(1)(h) as confidential law-enforcement 

investigatory records. R.C. 149.43(A)(2) defines that term: 
January Term, 2016 

7

“Confidential law enforcement investigatory record” means 

any record that pertains to a law enforcement matter of a criminal, 

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

that the release of the record would create a high probability of 

disclosure of any of the following: 

(a) The identity of a suspect who has not been charged with 

the offense to which the record pertains, or of an information source 

or witness to whom confidentiality has been reasonably promised; 

(b) Information provided by an information source or 

witness to whom confidentiality has been reasonably promised, 

which information would reasonably tend to disclose the source’s or 

witness’s identity; 

(c) Specific confidential investigatory techniques or 

procedures or specific investigatory work product; 

(d) Information that would endanger the life or physical 

safety of law enforcement personnel, a crime victim, a witness, or a 

confidential information source. 

{¶ 18} Citing this court’s decision in Steckman, DOP refused to provide 

copies of the records Caster sought until “completion of the criminal case,” inviting 

Caster to refile his request “after the criminal investigation and all appeals have 

been exhausted.” The facts of this case raise the issue that DOP’s response letters 

did not attempt to answer: How long must a convicted defendant or a member of 

the public wait? 

{¶ 19} We deal in this case primarily with records excepted from disclosure 

pursuant to the specific-investigatory-work-product exception in R.C. 

149.43(A)(2)(c), which, pursuant to this court’s decision in Steckman, provides a 

broad exclusion from the reach of the PRA; it includes “information assembled by 
SUPREME COURT OF OHIO

8

law enforcement officials in connection with a probable or pending criminal 

proceeding.” Steckman, 70 Ohio St.3d at 435, 639 N.E.2d 83. In Steckman, this 

court held that records excepted from disclosure pursuant to R.C. 149.43(A)(2)(c) 

remain unavailable to a defendant in a criminal case who has exhausted the direct 

appeals of his or her conviction and seeks to employ R.C. 149.43 to pursue 

postconviction relief. Id. at 437. In State ex rel. WLWT-TV5 v. Leis, 77 Ohio St.3d 

357, 360, 673 N.E.2d 1365 (1997), a case in which a television station sought 

investigatory work product following the convictions of two individuals, this court 

held that there can be no disclosure of such material “until all proceedings are fully 

completed.” 

{¶ 20} Caster cites Perry v. Onunwor, 8th Dist. Cuyahoga No. 78398, 2000 

WL 1871753 (Dec. 7, 2000), as a case that demonstrates the practical aspects of the 

denial of access to records until “all proceedings” are complete. In Perry, a publicrecords mandamus action, the relator sought police records, investigative reports, 

witness statements, evidentiary reports, and scientific reports in relation to a 

criminal case in which the defendant had been convicted a number of years before. 

Id. at *2. The court held that “the confidential law enforcement investigatory 

records remain exempt from disclosure” as long as “the possibility of further 

proceedings and trials remain.” Id. at *3. The court listed the numerous possible 

further proceedings that might occur even after a defendant’s direct appeal is 

complete—“a postconviction relief petition, a motion to withdraw guilty plea, a 

motion for new trial based on newly discovered evidence, a new trial from a 

reversal on a successful application to reopen pursuant to App.R. 26(B), and federal 

habeas corpus proceedings.” Id. These potentialities, actions not in process nor 

necessarily intended to be pursued by the defendant in that case, prevented the 

release of the records sought. The court in Perry set forth the cold but logical 

conclusion: “[A]bsent proof that no further proceedings are possible, e.g., the 

defendant’s death perhaps, a custodian of confidential law enforcement 
January Term, 2016 

9

investigatory records is under no duty to disclose them.” Id. That is, a defendant 

or member of the public can access potentially exonerating material concerning a 

defendant only after the defendant is dead. How did we get to this point? 

Steckman 

{¶ 21} In Steckman, this court sought to bring order to a system of criminal 

discovery it considered broken. The court took the “opportunity to meet head-on 

the continuing and ever-increasing problem of the use (and attempted use) of R.C. 

149.43 (public records law) as a vehicle to obtain records from law enforcement 

officials and the contents of the files of prosecutors in pending criminal cases.” 

Steckman, 70 Ohio St.3d at 421, 639 N.E.2d 83. 

{¶ 22} The court noted that criminal defendants were seeking records 

through public-records requests that they could not procure through Crim.R. 16 

discovery as the rule existed at that time. Id. at 428. This led to difficulty in the 

lower courts, as both appellate and trial courts faced, “almost daily, demands of 

criminal defendants for production of records.” Id. at 421. This court consolidated 

three cases in order to address the wide-ranging problems and to “bring some order 

out of the confusion.” Id. at 422. 

{¶ 23} The nature of former Crim.R. 16 was the source of many of the 

problems. This court recognized that “the rule does not provide for what is often 

called ‘full,’ ‘complete’ or ‘open file’ discovery.” (Emphasis sic.) Id. at 428. This 

led those seeking information to search for different means: “In order to avoid the 

results of Crim.R. 16, some defendants (more and more we find) are resorting to 

the use of R.C. 149.43 to, we believe, obtain information to which they are not 

entitled under Crim.R. 16 and (and we emphasize) to bring about interminable 

delay in their criminal prosecutions.” (Emphasis sic.) Id. This court noted that 

most death-penalty cases “routinely” included a public-records request that would 

add up to two years to the final determination of those cases. Id. There were other 

concerns: 
SUPREME COURT OF OHIO

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The playing field is not level as there is no reciprocal right of 

prosecutors to obtain additional discovery beyond Crim.R. 16(C). 

Witness intimidation is now more real than imagined. Criminal 

trials are now regularly being disrupted while R.C. 149.43 

procedures are pursued. It would seem that the people also have a 

right to a speedy trial—a speedy trial of an indicted defendant. Trial 

courts, courts of appeals and this court are consuming tremendous 

time and resources to review, in some cases, boxes and boxes full of 

records alleged to be public. Much of the information being 

reviewed is detrimental to the defendant, which raises yet another 

problem—how can a trial judge and appellate judges, who become 

familiar with such information, fairly judge a defendant when they 

have reviewed information that may not ever be admitted or even 

admissible as evidence? Last, but not least, are the speedy trial 

issues raised by defendants when it is the state appealing an order to 

release documents. 

(Emphasis sic.) Id. at 428–429. 

{¶ 24} In response to this state of affairs, this court held that “in the criminal 

proceeding itself, a defendant may use only Crim.R. 16 to obtain discovery.” Id. at 

429. Believing that prior decisions of this court had “hamstrung the proper 

administration of justice,” this court also set out to “draw some bright lines in cases 

which involve the use of R.C. 149.43 by any person seeking release of records in 

pending criminal proceedings.” (Emphasis sic.) Id.

{¶ 25} One area where the court chose to draw a bright line was in regard 

to the specific-investigatory-work-product exception in R.C. 149.43(A)(2)(c). The 

court in Steckman criticized earlier opinions of this court that had narrowed the 
January Term, 2016 

11 

exception, including State ex rel. Natl. Broadcasting Co., Inc. v. Cleveland, 38 Ohio 

St.3d 79, 526 N.E.2d 786 (1988), in which the court held that “[t]he specific 

investigatory work product exception, R.C. 149.43(A)(2)(c), protects an 

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

his theory of the case, and his investigative plans. The exception does not 

encompass the objective facts and observations he has recorded.” Natl. 

Broadcasting Co. at paragraph three of the syllabus. See Steckman, 70 Ohio St.3d 

at 433–434, 639 N.E.2d 83. 

{¶ 26} This court in Steckman related that that holding and similar ones 

from other cases had led to an increase in demands to courts and record keepers “to 

release the entire contents of a prosecutor’s file and all the records accumulated and 

maintained by a police department in connection with a particular defendant and 

his or her criminal proceeding.” (Emphasis sic.) Id. at 431. This court opined that 

because of those cases, “the exceptions to required disclosure found in R.C. 

149.43(A)(2)(c)—‘specific investigatory work product’—and R.C. 

149.43(A)(4)—‘trial preparation record’—have virtually been rendered 

meaningless. Additionally, these cases have, for all practical purposes, just about 

written Rule 16 out of the Criminal Rules.” Id. The court stated its intention to 

resolve the issue: “Simply put, this chaos cannot be permitted to continue.” Id.

{¶ 27} In addressing the confidential-law-enforcement-investigatoryrecord exception in R.C. 149.43(A)(2), and specifically, the “specific investigatory 

work product” exception in R.C. 149.43(A)(2)(c), the court in Steckman expanded 

the definition of work product, and it narrowed the kinds of records available as 

public records. This court found that it had never satisfactorily defined the term 

“work product”—which is undefined in R.C. 149.43—for purposes of R.C. 

149.43(A)(2)(c). Id. at 434. The court then looked to the United States Supreme 

Court’s decision in Hickman v. Taylor, 329 U.S. 495, 67 S.Ct. 385, 91 L.Ed. 451 

(1947), which addressed work-product privilege in the context of the attorney-
SUPREME COURT OF OHIO

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client relationship. This court concentrated on the policy reasons behind work 

product discussed in Hickman, in which the United Stated States Supreme Court 

“indicated that proper preparation of a client’s case requires that information be 

gathered, assembled and sorted and that theories of the case be prepared and 

strategy be planned ‘without undue and needless interference.’ ” Steckman at 434, 

quoting Hickman at 511. This court also noted that allowing others to view the 

work product of an investigation could affect the quality of that investigation: 

If the product of such work is to be available merely upon demand, 

then there is a very real probability that certain information will 

remain unrecorded, witnesses’ names will not be catalogued and 

other memoranda will be absent from the “official” files. We should 

not, by our rulings, create a situation where there is an incentive to 

engage in such conduct. 

Steckman at 434. 

{¶ 28} This court applied a definition of the work-product rule to the 

“specific investigatory work product” exception in R.C. 149.43(A)(2)(c): 

[W]ith regard to records assembled by law enforcement officials 

(including prosecutors), we now subscribe to Black’s definition of 

“work product rule.” “Under this rule any notes, working papers, 

memoranda or similar materials, prepared by attorneys [here, by law 

enforcement officials] in anticipation of litigation, are protected 

from discovery.” Black’s Law Dictionary (6 Ed.Rev.1990) 1606. 

This definition (working papers) is broad enough to bring under its 

umbrella any records compiled by law enforcement officials. 
January Term, 2016 

13 

(Bracketed text sic.) Steckman, 70 Ohio St.3d at 434, 639 N.E.2d 83. 

{¶ 29} This court thus found that except for material required to be 

produced to a defendant pursuant to former Crim.R. 16, “information assembled by 

law enforcement officials in connection with a probable or pending criminal 

proceeding is, by the work-product exception found in R.C. 149.43(A)(2)(c), 

excepted from required release as said information is compiled in anticipation of 

litigation.” Steckman at 435. Not included within the exception were “routine 

offense and incident reports.” Id. 

{¶ 30} The extension of the investigatory-work-product exception beyond 

the completion of the trial finds its roots in Steckman’s discussion of the trialpreparation-record exception of R.C. 149.43(A)(1)(g). R.C. 149.43(A)(4) defines 

trial preparation record and reads: “ ‘Trial preparation record’ means any record 

that contains information that is specifically compiled in reasonable anticipation of, 

or in defense of, a civil or criminal action or proceeding, including the independent 

thought processes and personal trial preparation of an attorney.” The court wrote 

that “[i]t is difficult to conceive of anything in a prosecutor’s file, in a pending 

criminal matter, that would not be either material compiled in anticipation of a 

specific criminal proceeding or the personal trial preparation of the prosecutor.” 

Steckman at 431–432. The court concluded: 

Therefore, we now hold that information, not subject to 

discovery pursuant to Crim.R. 16(B), contained in the file of a 

prosecutor who is prosecuting a criminal matter, is not subject to 

release as a public record pursuant to R.C. 149.43 and is specifically 

exempt from release as a trial preparation record in accordance with 

R.C. 149.43(A)(4). 

Id. at 432. 
SUPREME COURT OF OHIO

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{¶ 31} This court then discussed how long records remain exempt under 

R.C. 149.43(A)(4) in light of that statue’s definition of “trial preparation record” as 

a record “compiled in reasonable anticipation of, or in defense of, a civil or criminal 

action or proceeding.” This court looked to the definitions of “trial,” “action,” and 

“proceeding,” in Black’s Law Dictionary and found that among the definitions, 

there was no distinction made between an initial court proceeding, direct appeals, 

and postconviction relief. Steckman, 70 Ohio St.3d at 432, 639 N.E.2d 83. This 

court then held that “once a record becomes exempt from release as a ‘trial 

preparation record,’ that record does not lose its exempt status unless and until all 

‘trials,’ ‘actions’ and/or ‘proceedings’ have been fully completed.” Id. 

{¶ 32} The court acknowledged that that holding “may seem harsh” but 

stated that the holding was “not without good reason.” Id. That reason was that a 

person convicted of a crime should not have available to him or her in 

postconviction proceedings any more evidence than would have been available to 

him or her pursuant to former Crim.R. 16 at the original trial: 

[W]e still are faced with the situation in which a defendant in a 

criminal case might be granted a new trial, on his or her petition for 

postconviction relief. Since the possibility of retrial remains, the 

defendant, who has obtained records during postconviction 

proceedings, would have on retrial more information than she or he 

would be entitled to possess if limited to discovery pursuant to 

Crim.R. 16. This, of course, could present (at best) an anomalous 

result. 

Steckman at 432. 

{¶ 33} This court did not explicitly hold in Steckman that the specificinvestigatory-work-product exception extends beyond the completion of the trial. 
January Term, 2016 

15 

But that was the clear implication when this court held that the records sought by 

Ronald Larkins—the defendant in one of the consolidated cases before it—were 

exempt from disclosure based on R.C. 149.43(A)(2)(c). The court concluded in 

resolving Larkins’s case that “a defendant in a criminal case who has exhausted the 

direct appeals of her or his conviction may not avail herself or himself of R.C. 

149.43 to support a petition for postconviction relief.” Id. at 437 and at paragraph 

six of the syllabus. 

{¶ 34} This court a few years later explicitly held that the specificinvestigatory-work-product exception applies beyond the completion of direct 

appeals in State ex rel. WLWT-TV5, 77 Ohio St.3d 357, 673 N.E.2d 1365. This 

court adopted the Steckman reasoning regarding trial-preparation records in holding 

that “[a]nalogously, once applicable, the records continue to be exempt work 

product until all proceedings are fully completed.” WLWT-TV5 at 360, citing 

Steckman at 437. The court once again acknowledged the harshness of the holding, 

but reiterated Steckman’s reasoning that a defendant who is granted a new trial on 

his or her postconviction petition should not be entitled to information on retrial 

that he or she could not obtain though Crim.R.16 discovery. WLWT-TV5 at 360, 

citing Steckman at 432. 

Changes to Crim.R. 16 

{¶ 35} The central reason stated in Steckman and WLWT-TV5 justifying the 

admittedly harsh holding extending the specific-investigatory-work-product 

exception until all proceedings are fully completed was the seeming disparity 

between the information a defendant could obtain to use at retrial compared to what 

the defendant could obtain through discovery under former Crim.R. 16. 

{¶ 36} This court reasoned—after declaring that only Crim.R. 16 could be 

used for discovery in a pending criminal matter—that a person convicted of a crime 

but granted a retrial should not have available to him or her any more evidence than 
SUPREME COURT OF OHIO

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what was available at the original trial pursuant to former Crim.R. 16. Steckman, 

70 Ohio St.3d at 429, 432, 639 N.E.2d 83; see also WLWT-TV5 at 360. 

{¶ 37} But Crim.R. 16 has changed significantly since it was described in 

Steckman as not providing “ ‘full,’ ‘complete’ or ‘open file’ discovery.” Steckman

at 428. On July 1, 2010, Ohio’s sweeping reform of Crim.R. 16 went into effect. 

Developed collaboratively by the criminal-defense bar and prosecutors, the purpose 

of the revisions “is to provide for a just determination of criminal proceedings and 

to secure the fair, impartial, and speedy administration of justice through the 

expanded scope of materials to be exchanged between the parties.” 2010 Staff Note 

to Crim.R. 16(A). The new rule “expands the State’s duty to disclose materials and 

information beyond what was required under the prior rule.” 2010 Staff Note to 

Crim.R. 16(B). For instance, upon a defendant’s written demand, the state must 

generally provide, prior to trial, “[a]ny written or recorded statement by a witness 

in the state’s case-in-chief, or that it reasonably anticipates calling as a witness in 

rebuttal,” Crim.R. 16(B)(7), as well as “[a]ll reports from peace officers, the Ohio 

State Highway Patrol, and federal law enforcement agents,” Crim.R. 16(B)(6). 

These are two significant changes that provide defendants much more information 

prior to trial than under former Crim.R. 16. 

{¶ 38} Further, pursuant to this court’s decision in State v. Athon, 136 Ohio 

St.3d 43, 2013-Ohio-1956, 989 N.E.2d 1006, paragraph three of the syllabus, when 

an accused seeks information about his or her case through a public-records request, 

“that public records request is the equivalent of a demand for discovery, and a 

reciprocal duty of disclosure arises in accordance with Crim.R. 16.” That holding 

led to an amendment to Crim.R. 16(H), which now includes the sentence, “A public 

records request made by the defendant, directly or indirectly, shall be treated as a 

demand for discovery in a criminal case if, and only if, the request is made to an 

agency involved in the prosecution or investigation of that case.” See 2016 Staff 

Note to Crim.R. 16. 
January Term, 2016 

17 

{¶ 39} Thus, changes to Crim.R. 16 have minimized any perceived 

advantage a defendant could gain on retrial through the use of a public-records 

request. 

Revisiting Steckman and WLWT-TV5

{¶ 40} “R.C. 149.43 is to be construed liberally in favor of broad access, 

and any doubt is to be resolved in favor of disclosure of public records.” State ex 

rel. Gannett Satellite Information Network v. Shirey, 78 Ohio St.3d 400, 401, 678 

N.E.2d 557 (1997). We look to R.C. 149.43(A)(2)(c) to see whether it requires that 

the specific-investigatory-work-product exception extend beyond the trial of the 

case. Nothing in the statute itself suggests that the exception should last beyond 

the original trial. 

{¶ 41} This court’s prior jurisprudence in this area was based on 

expedience—the idea that a defendant should not be able to have more information 

on retrial than he or she could have gained through Crim.R. 16 discovery for the 

original trial. Steckman, 70 Ohio St.3d at 432, 639 N.E.2d 83; WLWT-TV5, 77 Ohio 

St.3d at 360, 673 N.E.2d 1365. The reworking of Crim.R. 16 has allayed those 

concerns. 

{¶ 42} We should also be concerned with the interests of justice. Ronald 

Larkins was one of the appellants in the consolidated cases in Steckman. He had 

been convicted of aggravated murder, aggravated robbery, and attempted murder. 

His convictions and sentence were affirmed on appeal. Steckman at 422–423. 

{¶ 43} Larkins sought from Cleveland’s police chief, through an action in 

mandamus, the investigatory records of the crimes for which he was convicted. Id. 

at 437. In Steckman, this court held that the records he sought were “exempt from 

disclosure based upon the work product exception of R.C. 149.43(A)(2)(c)” and 

that as a person who had exhausted his direct appeals, he could not use R.C. 149.43 

“to support a petition for postconviction relief.” Id. 
SUPREME COURT OF OHIO

18 

{¶ 44} But Larkins’s case did not end with Steckman. Another person filed 

a public-records request for the records Larkins had sought; for unknown reasons, 

police turned over the records to that person, who forwarded them to Larkins. State 

v. Larkins, 8th Dist. Cuyahoga No. 85877, 2006-Ohio-90, ¶ 6. Based on the 

contents of the records, Larkins filed a motion for a new trial on the grounds that 

the state had withheld exculpatory evidence. The trial court granted the motion, the 

court of appeals affirmed, and the case returned to the trial court. Id. at ¶ 7. Larkins 

then moved the trial court to dismiss the indictment, and the court granted the 

motion. Id. at ¶ 8. The trial court wrote: 

“Finally, and perhaps most importantly to this Court, the 

defendant has been trying at least since 1994 to obtain the 

exculpatory evidence in possession of the State. * * * 

“The issue hence becomes: when the State purposely secrets 

exculpatory evidence from a defendant resulting in a ‘verdict 

unworthy of confidence’ and then actively seeks to conceal that 

evidence for a period of years, and as a result numerous witnesses 

are deceased or unable-to-be-located, is dismissal the appropriate 

remedy? * * * 

 “It is clear that the passage of time has gravely prejudiced 

the defendant. Whether this is denominated as a Speedy Trial 

Violation, a Due Process Violation, a Brady Violation, or a double 

jeopardy issue, the fact clearly remains that the defendant cannot 

now in 2004-2005, receive the fair trial to which he is entitled.” 

Larkins at ¶ 11–13, quoting the trial court’s decision. 

{¶ 45} The appellate court affirmed the trial court’s dismissal of the 

indictment. Id. at ¶ 52. This court declined to accept the state’s appeal on June 7, 
January Term, 2016 

19 

2006. State v. Larkins, 109 Ohio St.3d 1495, 2006-Ohio-2762, 848 N.E.2d 858. 

Nearly a dozen years had passed since Steckman was decided. 

{¶ 46} Larkins gained access to the records that led to the dismissal of his 

indictment only through an act of bureaucratic grace. Or a bureaucratic mistake. 

Whichever the case, a clear rule would be better and is necessary. 

{¶ 47} Because the PRA should be construed liberally to provide broad 

access, because the revisions to Crim.R. 16 have leveled the disparity between 

information available through the PRA and through Crim.R. 16 discovery, and in 

the interests of justice, we hold that the specific-investigatory-work-product 

exception of R.C. 149.43(A)(2)(c) does not extend beyond the completion of the 

trial for which the information was gathered. To the extent that they hold otherwise, 

State ex rel. Steckman v. Jackson, 70 Ohio St.3d 420, 639 N.E.2d 83, and State ex 

rel. WLWT-TV5 v. Leis, 77 Ohio St.3d 357, 673 N.E.2d 1365, are overruled. 

Writ granted 

{¶ 48} Accordingly, we grant the writ. Respondents should have produced 

to Caster all the records that were withheld based on respondents’ claim that the 

records constituted specific investigatory work product pursuant to R.C. 

149.43(A)(2)(c), because Saleh’s original trial had long been completed. It should 

be noted that we order the production of those records that were withheld based on 

the specific-investigatory-work-product exception; other CLEIR exceptions under 

R.C. 149.43(A)(2)—as long as the conditions justifying those exceptions still 

exist—may require the withholding of some records or parts of some records. Thus, 

DOP need not produce records that would create a high probability of disclosure of 

“[t]he identity of a suspect who has not been charged with the offense to which the 

record pertains, or of an information source or witness to whom confidentiality has 

been reasonably promised,” pursuant to R.C. 149.43(A)(2)(a); “[i]nformation 

provided by an information source or witness to whom confidentiality has been 

reasonably promised, which information would reasonably tend to disclose the 
SUPREME COURT OF OHIO

20 

source’s or witness’s identity,” pursuant to R.C. 149.43(A)(2)(b); “[s]pecific 

confidential investigatory techniques or procedures,” pursuant to R.C. 

149.43(A)(2)(c); or “[i]nformation that would endanger the life or physical safety 

of law enforcement personnel, a crime victim, a witness, or a confidential 

information source,” pursuant to R.C. 149.43(A)(2)(d). Moreover, as Caster 

concedes, redactions to remove information regarding matters such as Social 

Security numbers would be appropriate in the same way that they are appropriate 

in any public-records case. 

Attorney fees, statutory damages, and court costs 

{¶ 49} We now consider Caster’s request for attorney fees, statutory 

damages, and court costs. Former R.C. 149.43(C)(2), 2013 Am.Sub.H.B. No. 59, 

addresses the awarding of attorney fees in public-records cases and governs our 

analysis here. Pursuant to former R.C. 149.43(C)(2)(b)(i) the court shall award 

attorney fees when the person responsible for public records “failed to respond 

affirmatively or negatively to the public records request” within a reasonable 

amount of time. Here, DOP failed to respond to Caster’s November 20, 2013 

public-records request. However, Caster made it known in the November request 

that the September 5, 2013 request by the OIP fellows had been made at Caster’s 

direction. We also note that DOP had responded to the OIP fellows’ October 31, 

2013 request. This court has held that a reiterated request for the same records does 

not require an additional response. State ex rel. Laborers Internatl. Union of N. 

Am., Local Union No. 500 v. Summerville, 122 Ohio St. 3d 1234, 2009-Ohio-4090, 

913 N.E.2d 452, ¶ 6. 

{¶ 50} But in this case, Caster’s November 20, 2013 request was 

sufficiently different to constitute a new request. The letter was responsive to 

DOP’s earlier refusals. Caster pointed out deficiencies in the prior DOP 

responses—DOP had simply issued a blanket denial and had not set forth which of 

the four categories of confidential law-enforcement investigatory records it 
January Term, 2016 

21 

specifically applied to deny the requests. And Caster added the information that 

Saleh’s criminal case was complete, that Saleh’s direct-appeal process had 

concluded, and that there were no pending collateral attacks on the conviction, in 

response to DOP’s earlier advisements that the request should be refiled upon 

completion of the criminal case. 

{¶ 51} Since DOP failed to respond to the November 20, 2013 publicrecords request, an award of attorney fees is mandatory. Pursuant to former R.C. 

149.43(C)(2)(c), 2013 Am.Sub.H.B. No. 59, the court “may reduce an award of 

attorney’s fees to the relator or not award attorney’s fees to the relator” upon 

application of the factors in former R.C. 149.43(C)(2)(c)(i) and (ii), but we decline 

to do so. 

{¶ 52} Because Caster transmitted his request for public records by certified 

mail, he is entitled to statutory damages pursuant to former R.C. 149.43(C)(1), 2013 

Am.Sub.H.B. No. 59. Because of the failure of DOP to provide some records—

missing-person-preliminary-investigation forms, the coroner’s report, newspaper 

articles, a press release, and subpoenas—that were clearly public records, the 

mitigating factors in former R.C. 149.43(C)(1)(a) and (b) are not applicable, so we 

award Caster statutory damages. In this situation, Caster is entitled to $1,000, the 

maximum amount of statutory damages stated in former R.C. 149.43(C)(1). 

{¶ 53} Finally, because this court issues a writ of mandamus ordering 

respondents to comply with Caster’s public-records request, we award Caster court 

costs pursuant to former R.C. 149.43(C)(2)(a), 2013 Am.Sub.H.B. No. 59. Caster 

shall provide the court with an itemized application for reasonable attorney fees 

and costs to be awarded pursuant to R.C. 149.43(C). 

CONCLUSION 

{¶ 54} We hold that Caster had a clear legal right to the requested records 

and that respondents had a clear legal duty to provide the records in accordance 
SUPREME COURT OF OHIO

22 

with R.C. 149.43(B)(1). We grant Caster’s request for attorney fees, statutory 

damages, and court costs. 

Judgment accordingly. 

KENNEDY, FRENCH, and O’NEILL, JJ., concur. 

O’CONNOR, C.J., concurs in part and dissents in part, with an opinion joined 

by LANZINGER, J. 

O’DONNELL,J., dissents and would not overrule any portion of State ex rel. 

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

_________________ 

O’CONNOR, C.J., concurring in part and dissenting in part. 

{¶ 55} The Columbus Division of Police (“CDP”) has an obligation under 

Ohio law to individually review the records that relator, Donald Caster, requested, 

including “medical records, police reports, investigation notes, evidence reports, 

and any other materials compiled by the Columbus Division of Police,” to 

determine which, if any, are subject to disclosure. Accordingly, I would grant the 

writ and require CDP to make available all public records in its files that meet 

relator’s request. 

{¶ 56} However, as detailed below, I dissent from the majority opinion to 

the extent that it orders CDP to produce “all the records that were withheld based 

on respondents’ claim that the records constituted specific investigatory work 

product.” Majority opinion at ¶ 48. I also dissent from the majority’s decision to 

overrule State ex rel. Steckman v. Jackson, 70 Ohio St.3d 420, 639 N.E.2d 83 

(1994), and State ex rel. WLWT-TV5 v. Leis, 77 Ohio St.3d 357, 673 N.E.2d 1365 

(1997), to the extent that those cases hold that the specific-investigatory-workproduct exception of R.C. 149.43(A)(2)(c) extends beyond the completion of the 

trial for which the information was gathered. Instead, I would modify Steckman’s

definition of the specific-investigatory-work-product exception. 

 
January Term, 2016 

23 

Breadth of Work-Product Exception 

{¶ 57} I dissent from the majority’s order to CDP to produce “all the records 

that were withheld based on respondents’ claim that the records constituted specific 

investigatory work product.” Majority opinion at ¶ 48. 

{¶ 58} The Public Records Act, R.C. 149.43, excepts from disclosure 

confidential law-enforcement investigatory records that would disclose “specific 

investigatory work product.” R.C. 149.43(A)(2)(c). In our early case law 

interpreting “specific investigatory work product,” we narrowly construed the term. 

In State ex rel. Beacon Journal Publishing Co. v. Univ. of Akron, 64 Ohio St.2d 

392, 415 N.E.2d 310 (1980), we found that the specific-investigatory-work-product 

exception did not protect two reports from disclosure. Id. at 397-398. The 

University of Akron’s security department had compiled the two reports: one 

related to the alleged rape of a student and the other recounted the student’s death 

and surrounding circumstances. Id. at 392-393. And in State ex rel. Natl. 

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

stated: 

Specific investigatory work product can best be defined as 

material that demonstrably contains or reveals the theories, mental 

impressions, and thought processes of the investigator. This 

definition is consistent with this court’s philosophy that “* * * 

exceptions to disclosure enumerated in R.C. 149.43 are to be 

construed strictly against the custodian of public records and that 

all doubt should be resolved in favor of this disclosure.” 

(Ellipses sic.) Id. at 84, quoting State ex rel. Plain Dealer Publishing Co. v. Lesak, 

9 Ohio St.3d 1, 4, 457 N.E.2d 821 (1984) (Celebrezze, C.J., concurring). 
SUPREME COURT OF OHIO

24 

{¶ 59} However, we reached a turning point in Steckman and repudiated 

these earlier cases and others that allowed for broad disclosure of law-enforcement 

investigatory files under the Public Records Act. Specifically, in Steckman, the 

court was concerned that the Public Records Act allowed for broader access to 

records than the version of Crim.R. 16 in place at the time allowed and that 

defendants were using the Public Records Act to “obtain information to which they 

[were] not entitled under Crim.R. 16 and * * * to bring about interminable delay in 

their criminal prosecutions.” (Emphasis sic.) Id., 70 Ohio St.3d at 428, 639 N.E.2d 

83. Providing broad access to investigatory files under the Public Records Act, we 

determined, created a “playing field [that] is not level as there is no reciprocal right 

of prosecutors to obtain additional discovery beyond” Crim. R. 16(C). Id. at 428-

29. We concluded that if law-enforcement work product “is to be available merely 

upon demand, then there is a very real probability that certain information will 

remain unrecorded, witnesses’ names will not be catalogued and other memoranda 

will be absent from the ‘official’ files.” Id. at 434. With that concern in mind, we 

found that the work-product exception, as we explained it, “is broad enough to bring 

under its umbrella any records compiled by law enforcement officials,” id., 

although we specifically found that the “exception does not include ongoing routine 

offense and incident reports,” id. at 435. 

{¶ 60} Today, to the extent that Steckman and its progeny relied on 

Hickman v. Taylor, 329 U.S. 495, 67 S.Ct. 385, 91 L.Ed. 451 (1947), to broadly 

define the work-product exception such that only “routine offense and incident 

reports,” must be disclosed, Steckman at paragraph five of the syllabus, I would 

modify the definition based on the 2010 revisions to Crim.R. 16 that vastly 

expanded the discovery of records in criminal cases. The current version of 

Crim.R. 16 requires, under certain conditions and subject to certain specific 

exceptions, a prosecuting attorney to provide broad discovery to a defendant, 

including the following materials: 
January Term, 2016 

25 

(1) Any written or recorded statement by the defendant 

or a co-defendant, including police summaries of such 

statements, and including grand jury testimony by either the 

defendant or co-defendant; 

* * * 

(3) * * * [A]ll laboratory or hospital reports, books, 

papers, documents, photographs, tangible objects, buildings, or 

places; 

(4) * * * [R]esults of physical or mental examinations, 

experiments or scientific tests; 

(5) Any evidence favorable to the defendant and material 

to guilt or punishment; 

(6) All reports from peace officers, the Ohio State 

Highway Patrol, and federal law enforcement agents, provided 

however, that a document prepared by a person other than the 

witness testifying will not be considered to be the witness’s prior 

statement for purposes of the cross examination of that particular 

witness under the Rules of Evidence unless explicitly adopted 

by the witness; 

(7) Any written or recorded statement by a witness in the 

state’s case-in-chief, or that it reasonably anticipates calling as a 

witness in rebuttal. 

Crim.R. 16(B). 

{¶ 61} With the move toward open-file discovery, Crim.R. 16 now 

obligates prosecuting attorneys to turn over much of the investigatory files to 
SUPREME COURT OF OHIO

26 

defendants. Accordingly, our concern in Steckman that a public-records request 

would incentivize shoddy investigatory techniques is no longer overriding. 

{¶ 62} But, in advocating that the fifth paragraph of the Steckman syllabus 

should be modified, I cannot agree with the majority that all of the specific 

investigatory work product in the investigatory file should be available unless it is 

subject to one of the other narrow exceptions to disclosure of confidential lawenforcement investigatory records. Even Crim.R. 16 does not allow for access to 

all of a law-enforcement department’s case files. Importantly, “[t]he prosecuting 

attorney may designate any material subject to disclosure under this rule as ‘counsel 

only’ by stamping a prominent notice on each page or thing so designated.” 

Crim.R. 16(C). The prosecuting attorney is also permitted to withhold documents 

when there are “reasonable, articulable grounds to believe that disclosure will 

* * * subject [a witness, victim, or third party] to intimidation or coercion * * * [or] 

to a substantial risk of serious economic harm,” Crim.R. 16(D)(1) and (2), or if 

“[d]isclosure will compromise * * * a confidential law enforcement technique,” 

Crim.R. 16(D)(3). And “materials subject to the work product protection” are not 

subject to disclosure at all, including “reports, memoranda, or other internal 

documents made by the prosecuting attorney” and his or her agents.” Crim.R. 

16(J)(1). The majority opens the door for disclosure well beyond what even 

Crim.R. 16 requires, and it does so without any of the safeguards that the rule and 

R.C. 149.43(A)(2) put in place. 

{¶ 63} Recognizing that the concern we described in Steckman no longer 

exists given the modifications to Crim.R. 16 but that there must be some standard 

to identify “specific investigatory work product,” I would limit the term as we did 

in Beacon Journal Publishing Co. and Natl. Broadcasting Co., subjecting facts to 

disclosure as public records while protecting the theories, mental impressions, and 

thought processes of the investigator as specific investigatory work product. Put 

another way, I would analogize the specific investigatory work product of law 
January Term, 2016 

27 

enforcement to the opinion work product in our attorney-work-product 

jurisprudence. Opinion work product includes “mental impressions, theories, and 

legal conclusions.” Squire, Sanders & Dempsey, L.L.P. v. Givaudan Flavors Corp., 

127 Ohio St.3d 161, 2010-Ohio-4469, 937 N.E.2d 533, ¶ 60. 

{¶ 64} In further explanation, again borrowing from the parlance of 

attorney-work-product jurisprudence, “specific investigatory work product” does 

not include the law-enforcement equivalent of fact work product. Citing Hickman, 

329 U.S. at 510-511, 67 S.Ct. 385, 91 L.Ed.2d 451, the United States Court of 

Appeals for the Sixth Circuit has referred to fact work product as “written or oral 

information transmitted to the attorney and recorded as conveyed by the client.” In 

re Antitrust Grand Jury, 805 F.2d 155, 163 (6th Cir.1986). Appellate courts in 

Ohio have described witness statements and underlying facts as fact work product. 

Jerome v. A-Best Products Co., 8th Dist. Cuyahoga Nos. 79139, 79140, 79141, and 

79142, 2002-Ohio-1824, ¶ 21. See also Jackson v. Gregor, 160 Ohio App.3d 258, 

2005-Ohio-1588, 826 N.E.2d 900, ¶ 34 (2d Dist.); Fowler v. Coleman, 10th Dist. 

Franklin No. 04AP-248, 2005-Ohio-1518, ¶ 28. 

{¶ 65} This distinction would give effect to the “specific investigatory” 

modifier in R.C. 149.43(A)(2)(c), the influence of which we largely abolished in 

Steckman. The specific-investigatory-work-product exception should entitle lawenforcement officers to protect their theories, impressions, and strategies, as may 

be set forth, for instance, in interview notes, memos to the file, or to-do lists. But 

members of the public should be able to request access to facts uncovered during 

the investigation, for instance witness statements, but with identifying information 

about the witness redacted to the extent the information suggests law-enforcement 

strategy or falls within another confidential-law-enforcement-investigatory-record 

exception. A law-enforcement department must examine a file and individually 

determine which materials are routine or factual and which disclose confidential 

law-enforcement investigatory records, including specific investigatory work 
SUPREME COURT OF OHIO

28 

product, based on the Public Records Act. The decision is subject to in camera 

review when challenged. 

Duration of Exception 

{¶ 66} I also dissent from the majority’s decision to overrule Steckman and 

WLWT-TV5 to the extent that those cases held that the specific-investigatory-workproduct exception of R.C. 149.43(A)(2)(c) extends beyond the completion of the 

trial for which the information is gathered. While I agree that protecting trialpreparation records that are part of a law-enforcement file is unnecessary following 

exhaustion of the defendant’s direct appeals or the decision not to prosecute, that is 

not true for the information that R.C. 149.43(A)(2) protects. Releasing materials 

that demonstrate law-enforcement investigatory strategies, particularly if 

knowledge of such strategies would empower criminals to avoid detection, is 

dangerous. The majority’s decision today will lead to an array of negative 

consequences. 

The Trial-Preparation-Records Exception 

{¶ 67} While I believe that R.C. 149.43(A)(2) permanently excepts certain 

law-enforcement investigatory records from the Public Records Act, I would hold 

that R.C. 149.43(A)(4), the trial-preparation exception, also protects the bulk of a 

law-enforcement file from disclosure until a defendant has exhausted all direct 

appeals in the case or until the law-enforcement department closes the case 

following a decision not to press charges. The trial-preparation exception would 

include, among other materials, witness statements, interview notes, lab results, and 

internal memoranda that a law-enforcement officer creates during an investigation 

in an effort to gather evidence to bring charges against an accused. That evidence 

is gathered in reasonable anticipation of a criminal action or proceeding, and as 

described in Steckman, 70 Ohio St.3d 420, 639 N.E.2d 83, at paragraph four of the 

syllabus, loses its trial-preparation-record protection and may be subject to 

disclosure only after the law-enforcement department closes the case without 
January Term, 2016 

29 

charges or the litigation is completed, including the exhaustion of all direct appeals. 

While materials in the file lose their protection as trial-preparation records at that 

time, the confidential-law-enforcement-investigatory-record exception may still 

protect parts of the file, as described previously. 

{¶ 68} The trial-preparation exception does not cover those records 

generated on a routine basis, such as offense and incident reports or certain 

dashboard-camera footage, as we described in State ex rel. Cincinnati Enquirer v. 

Ohio Dept. of Pub. Safety, ___ Ohio St.3d ___, 2016-Ohio-7987, ___ N.E.3d ___, 

¶ 45. Law-enforcement officers create those materials as a matter of course, 

without regard to whether the officers yet have any idea if the matter will lead to 

an indictment or trial. Accordingly, these items cannot be said to be “specifically 

compiled in reasonable anticipation of * * * a civil or criminal action or 

proceeding” as required by the trial-preparation-record exception. R.C. 

149.43(A)(4). 

{¶ 69} This arrangement is sensible. The trial-preparation-record exception 

protects “any record that contains information that is specifically compiled in 

reasonable anticipation of * * * [a] criminal action or proceeding.” Id. The primary 

purpose behind a criminal investigation by law enforcement is to gather information 

that could lead to an indictment and trial. While this court in Steckman stated that 

a trial-preparation record “does not lose its exempt status unless and until all ‘trials,’ 

‘actions’ and/or ‘proceedings’ have been fully completed,” id. at paragraph four of 

the syllabus, this cannot be a license to withhold such records until a defendant is 

released from prison or dead. Construing the Public Records Act liberally in favor 

of public access, as we must, it is antithetical to permit an interpretation of 

Steckman that allows withholding of substantially all of an investigatory file 

indefinitely. Accordingly, I would protect the file either until law enforcement 

closes a case or until there is no longer a reasonable probability that a verdict will 

be reconsidered—after the defendant has exhausted his or her direct-appeal options. 
SUPREME COURT OF OHIO

30 

I would not disturb Steckman to the extent that it applies to the files of prosecutors 

or others attorneys working on criminal or civil actions. 

{¶ 70} I recognize that the trial-preparation-record exception protects some 

of the same law-enforcement materials that defendants are entitled to under Crim.R. 

16. However, disclosure to a defendant is not the same as disclosure to the public, 

and public policy supports withholding nonroutine law-enforcement records until 

the likelihood of trial and retrial, after a successful direct appeal, pass. Restricting 

public access to these documents prevents the press from trying an active case in 

the news. In the event a defendant is innocent, it prevents the actual perpetrator 

from accessing information that he or she could use to prevent detection. It also 

prevents a defendant from accessing records that may have been disclosed in 

discovery pursuant to a counsel-only designation. 

{¶ 71} The majority would allow disclosure of specific investigatory work 

product after trial but before a defendant’s direct appeals are exhausted. This would 

re-create the problem that Steckman sought to address: giving the public (and 

potentially the defendant) access to information in the investigatory file that was 

not available to the defendant during trial and opening a second level of potential 

discovery through a public-records request between a trial verdict and a defendant’s 

direct appeal. See Steckman, 70 Ohio St.3d at 428-429, 639 N.E.2d 83. 

Overcoming Stare Decisis 

{¶ 72} Stare decisis does not prevent us from modifying the broad workproduct exception set forth in Steckman. Even to the extent that this modification 

may overrule a part of that decision, it meets the well-settled test for overruling 

prior precedent. That test requires us to determine if (1) a change in circumstances 

no longer justifies continued adherence to the decision, (2) the decision defies 

practical workability, and (3) abandoning the precedent would create an undue 

hardship for those who have relied upon it. Westfield Ins. Co. v. Galatis, 100 Ohio 

St.3d 216, 2003-Ohio-5849, 797 N.E.2d 1256, ¶ 48. I have already explained that 
January Term, 2016 

31 

the 2010 revisions to Crim.R. 16 have changed the circumstances of this situation 

and that adhering to the broad work-product definition stated in Steckman is no 

longer justified. 

{¶ 73} The work-product definition in Steckman also defies practical 

workability. We have held that the Public Records Act is to be liberally construed 

in favor of broad access while resolving doubts in favor of disclosure. State ex rel. 

Glasgow v. Jones, 119 Ohio St.3d 391, 2008-Ohio-4788, 894 N.E.2d 686, ¶ 13. 

Yet under Steckman, the timely release of any part of a law-enforcement 

investigatory file will not occur, outside of “routine offense and incident reports.” 

Id. at 435. If this was the General Assembly’s intent, there was no need for it to 

provide the level of detail stated in R.C. 149.43(A)(2). The General Assembly 

could simply have excepted all law-enforcement investigatory files from the Public 

Records Act. By so closely circumscribing the law, Steckman renders the Public 

Records Act virtually worthless in regard to many law-enforcement files. 

{¶ 74} Finally, abandoning the work-product definition set forth in 

Steckman does not create a hardship on the law-enforcement departments that have 

relied on it. A law-enforcement department may withhold or redact materials to 

the extent they contain information legitimately excepted by R.C. 149.43(A)(2), 

including law-enforcement strategy and witness and uncharged-suspect identities. 

Moreover, given that prosecutors already disclose this information and more under 

Crim.R. 16, law-enforcement officers have not relied on an expectation of 

nondisclosure at all during the past six years. 

Attorney Fees 

{¶ 75} Finally, for the reasons described above, I agree with the majority 

opinion that a well-informed person could not reasonably believe that he or she 

complied with the Public Records Act by refusing to disclose any of the records 

requested by relator. See R.C. 149.43(C)(2)(c). Accordingly, I concur in the award 

of attorney fees, statutory damages, and costs to relator. 
SUPREME COURT OF OHIO

32 

 LANZINGER, J., concurs in the foregoing opinion. 

_________________ 

The Gittes Law Group, Frederick M. Gittes, and Jeffrey P. Vardaro, for 

relator. 

 Richard C. Pfeiffer Jr., Columbus City Attorney, and Paula J. Lloyd, 

Assistant City Attorney, for respondents. 

 Baker & Hostetler, L.L.P., David L. Marburger, and Melissa A. DeGaetano, 

urging granting of the writ for amicus curiae Ohio Coalition for Open Government. 

 Soumyajit Dutta; and Covington & Burling, L.L.P., Ashley E. Bass, and 

David J. Shaw, urging granting of the writ for amicus curiae the Innocence 

Network. 

_________________