[Cite as Brandt v. Solon Police Dept. , 2022

- Ohio

- 3732.]

{¶1} The Public Records Act, R.C. 149.43, provides t hat upon r e quest, a public
offi c e “shall make copies of the requested public record available to th e requester at cost and within a reasonable period of time.” R.C. 149.43(B)(1). Ohio courts construe the Public Records Act liberally in favor of broad acces s, with an y doubt resolved in f a vor of disclosure of public records. State ex rel. Hogan Lovells U. S., L.L.P. v. Dept. of R ehab. & Corr ., 156 Ohio St.3d 56, 2018

- Ohio

- 5133, 123 N.E.3d 928, ¶ 12. R.C. 2743.75 provides “an expeditious and economical procedur e” to reso l ve public records di s putes in the Court of Claims. {¶2} On November 9, 2021
, requester Patricia Brandt made a public records request to respondent Solon Police Department ( Solon PD) for:
P o lice Report No. 21

- 00372 Investigative file for Police Repo rt No. 21

- 00372 Videos and photo s maintained as recor ds for Police Report No. 21

- 00372 Victim statement(s) maintained as a record(s) for Police Report No. 21

- 00372 Witness statement s maintained as record(s) for Police Report No. 21

- 00372 List of evidence collected and maintained as r e cor ds for Police Report No. 21 00372. (Complain t, E xh

. 1 .) Solon PD responded the same day with a redact ed copy of the fir st page of the Incident/Offense Report for Incident Number 21

- 00372

. ( Id

. , Exh. 3 .) I n
response to a follow

- up lette r fr om Brandt ( Id ., E x h. 4)
, on November 24, 2021 Solo n PD provided redacted copies of the first nine pages of the report along with explanations
, PATRICIA BRANDT
Requester

v.

SOLON POLICE DEPARTMENT
Respondent Case No. 2022

- 00299 PQ
Special Master Jeff Clark

REPORT AND RECOMMENDATIONCase No. 20 2 2

- 00299 PQ

- 2

- R EP ORT AND RECOMMENDATI ON

including legal authority
, setting forth its explanatio n for the redactions

. ( Id ., Exh 5.) Solon PD did not provide any videos or pho to s . S olon P D advised that th e f ile for Inciden t No. 21

- 00372 contained an a dditiona l 33 pages of Investigative Report Supplement Narratives. ( Id

.) {¶3} O n April 5, 20 22
, Brandt filed her complai n t pursuant to R.C. 2743.75 alleging denial of access to publ ic reco rds in violation of R.C. 149.43(B)

. Brandt seeks

“ [i] mm ediate release of Incident/Offense Report Form No. 21

- 00372 in its entirety, or as
determin ed by this Court
, ” and var ious sanctions. (Complaint at 19

- 20.) O n June 13,
2022 , f ollowing unsuccessfu l mediation, Solon PD filed an an swer (Response) and a
motion to dismiss (M TD)

. On June 30, 2022
, Solon PD f iled its response to the cou r t ’ s order of June 14, 2022 ( First Supp. Re sp onse ) and has fi led a complete and unredacted copy of the withheld records under seal (Sealed Rec ords)

. O n August 9, 2022
, Solon PD
filed a response to an order of July 27, 2022 (Second Supp. Response). On August 11
, 2022, Brandt filed a reply. On S eptembe r 23, 2022, Solon PD filed a response to an order of September 16, 2022 (Th ird Supp. Response ).
Burden of Proof {¶4} The requester i n an action under R.C. 2743.75 bears an overall bu rden to

e sta b li sh a public records violation by clear and convin cing ev idence. Hurt v. Liberty Twp
., 201 7

- Ohio

- 782 0, 97 N.E.3d 115 3, ¶ 27

- 30 (5th Dist.). The requester bears a n initial
b urden of production “to plead and prove facts showing that the request er sought an
id ent ifi a ble public re cord pursuant to R.C. 149.43( B)(1) a nd that the public offi ce or

reco rds cu stod ian did not mak e the record available.” Welsh

- Huggins v. Jefferson Cty

. Prose cutor’s Office
, 163 Ohio St.3d 337, 2020

- Ohio

- 5371, 170 N.E.3d 76 8, ¶ 33. {¶5} If a publi c o ffice asserts an exce ption to the Public Records Act as the basis for withholding records, the burden shifts to the public office t o est abli sh its applicability : E xceptions to disclosure und er the Public Records Ac t, R.C. 149.43, are strictly construed a gainst the public

- rec ords custodian, and the custodian h as the burden to establish the applicability of an exception. A custodianCase No. 20 2 2

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- R EP ORT AND RECOMMENDATI ON

d o es not meet this burden if it has not proven that the requested records fal l squ arely within the exception.
State ex rel. Cincinnati Enqu irer v. Jones

- Kelley , 118 Ohio St.3d 81, 20 08

- Ohio

- 1770, 886 N.E.2d 206, paragraph two of the syllabus ; State ex rel. Cincinnati Enquirer v. Ohio Dep t

. of Pub. Safety

, 148 Ohio St. 3d 433, 20 16

- O h io

- 7987, 71 N.E.3d 256, ¶ 35 (application of specific in vestigatory work product ex ce ption to dash

- cam vi deo ).
Motion to Di smiss {¶6} To dis miss a complaint for fa ilure t o s tate a cl a im upon which relief can be
g rante d, i t m ust appear be yond doubt the clai ma nt can prove no set of f ac ts warranting relief after all fac tual alle gat ions of the complaint are p resumed true an d all reason a ble
inf ere n ces are made in cl aiman t ’ s f avor. State ex rel . Find lay Publish ing Co. v. Sch roed er , 76 Ohio St.3 d 580 , 581, 669 N.E .2 d 835 (1996). As lo ng a s t here is a set of facts
consistent with the com plai nt that would allow the claimant to re cover, dismi s sal for fa i lure
to state a cl aim i s not prope r. State ex rel. V .K.B. v. Sm ith
, 138 Ohio St.3 d 8 4, 2013

- Ohio

5477, 3 N.E.3d 1184
, ¶ 10. {¶7} Sol on PD does not dispute that Brandt reasonably identified the records she
seeks but mov es to dismiss the complaint on the grounds that, 1) Brandt ’ s claims are
moot , and 2) all withheld records are exempt fr om release as specific in vestigatory work product under R.C. 149.43(A)(1) (h) and (A)(2)(c)

. ( MTD at 3

- 6.) On revie w , the Sp e cial Master finds that neither mootn e ss nor comprehensive application of the claimed exemption is conclusively shown on the face of th e complaint. Moreove r, as the matter i s now fully briefed these grounds are s ubsumed in the argu m ents to deny the claim on the
merits. It is therefore recommended t h e m otion to di smiss be denied

. Suggestion of Mootness {¶8} I n an action to enforce R.C. 149.43(B ), a public office may produce the requested records prior to the c ourt’s decisio n, and thereby r ender the claim for production moot. State ex rel. Strik er v. S m ith
, 1 29 Oh i o St.3d 168, 2011

- Ohio

- 287 8, 9 50 N.E.2d 952, ¶ 18

- 22. Solon PD asserts that it provided Requester with the available publicCase No. 20 2 2

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- R EP ORT AND RECOMMENDATI ON

records responsive to her requests and the jus ti fi cation for its redactions and withholdings

as in vestigatory work product

. ( MTD at 3

. ) Brandt agre e s Solon PD provided nine p ages of redacted records

. ( Reply a t 5 .) However, she disputes the validity of some redactions
and asserts that Solon PD h as failed to produce additional portio ns of the incident report that are not covered by the s pecific investigatory work product ex ce ption. ( Id

. at 7

- 10 .)
T he S p e cial M as ter fi nds the claim for production of recor ds partially moot to th e extent that portions of the first nine pages of the inci dent report have been produced

. {¶9} I ndepen dent of the claim for production
, Brandt ’ s claim of an unre ason a ble fifteen

- day dela y betw een the request and production of the first nine pages of a p lainly publi c initial incident report i s no t mo ot

. (Complaint at ¶ 31, 44 ; Reply at 6

- 7.) “ [ A ] s eparate

c laim based on the untimeliness of the response persists u nless c opies of all required
records were made available ‘ within a reasonable period of ti m e. ’ R.C. 1 49.43( B)(1)

. ” State ex rel. Kesterson v. Ke nt State Univ
., 156 Ohio St. 3d 2 2, 2 018

- Ohio

- 5 110, 123 N.E.3d 895, ¶ 19

. The In itial Inciden t Report and Contemporaneo u s Narratives, Interviews, and Incorporat ed or Attach ed Records Must Be Di sclosed {¶10} Solon PD does not d i spute that the first nine pages of Report No. 21

- 00 372
must be released as routine initial report ing of an incident

. However, Solon PD denies
that three p a ges of contemporaneous responding officer narratives
, and the video and photographic material incorporated in the initial report by reference
, must be released

. Initia l Incident Reports Offense

- and

- incident reports are form reports in which the law enfor c ement officer completing the form enters information in the spaces provided. See, e.g., State ex rel. Beacon Journal Publishing Co. v. Maurer (2001), 91 Ohio St.3d 54, 2001 Ohio 282, 741 N.E.2d 511 (referring to an “ Ohio Uniform Incident Form ” ). 1

1 The form is contained in the Ohio Uniform Incident Report (UIR) Training Ma nual (Aug

. 2011), https://ocjs.ohio.gov/ oibrs/ links/forms/UIR_Training.pdf (Accessed Sept

. 14, 2022

. ) The UIR is published by the Ohio Dep t

. of Public Sa fety, Office of Criminal Justice Services and designed to capture crime data for the Ohio Incident

- Based Reporting System an d the F BI Nationa l Incident

- Based Re porting System.Case No. 20 2 2

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- R EP ORT AND RECOMMENDATI ON

State ex rel. Lanh am v. S mi th , 112 Ohio St.3d 527, 2 007

- Ohio

- 609, 861 N.E.2d 530, ¶ 13. Offens e and incident report s exist in a variety of paper and electronic form ats adapted by
each law enforcemen t agency for its purpose s . See , e. g., State ex rel. Miller v. Pink n ey , 149 Ohio St. 3d 662 , 2017

- Ohio

- 1335, 77 N.E.3d 915, Appendi x

. {¶11} It is w e ll

- settled that “ i ncident reports initiate crimina l investig ations but are not part of the investigation

. ” State ex rel. Beacon Journal Publishing Co. v

. Maurer , 91 Ohio St.3d 54, 5 6
, 741 N.E.2d 511 (2001)

. W here a deputy ’ s incid ent report at tached
statements of officers and other witnesses a nd referenced them in the narrative us ed to
describe events
, Mau rer at 54
, “ [h] e cons e que ntly incorporated them in a public record. ”
Id . at 56. T he Court concluded, “ W e hold that this r epo rt, in cluding the typed narrative statements, is not a confi dential law enforcement investigatory record .” Id. “Howeve r, nothing in the Maur

er decision requires that a narrative w itness statement incorporated by r efe rence i n a n incid ent report must be physical ly attached t o the incident report before it takes on the cloak of a public record.” State ex rel. WBNS 10 TV v. F ranklin Cty. Sheri ff

’ s Office , 151 Ohio App.3d 437, 2003

- Ohio

- 409, 784 N.E.2d 207, ¶ 21. {¶12} Solo n PD ’ s withholding of three pages of contemporaneous respon ding officer narr atives closely resem bl e s the facts in State ex rel. Myers v. Meye rs , Slip Opinion
No. 2022

- Ohio

- 1915
, wher e th e Supreme Court found it ne cessary to addre ss the i ssue whether an off e nse
- and

- incident report, which initiates a police investigation and is a public rec or d under Ohio ’ s Public Records Act, R.C. 149.43, is limited to the form that police officers fill out in order to report the incident or whether it also includes contempor a neous re ports created by the investigating officers that document the officers ’ obs er vations and the statements of witnesses at the scene. ( Id . at ¶ 1.) T he Court first reitera ted: Our case law provides two bases for determining whether documents qualify a s part of the publ ic

- record incident report. T he first is whether the do cument constitutes a regular incident

- report form on which o fficers have f illed in blanks with informati on. See Lanham , 112 Ohio S t.3d 527, 2007

- Ohio

- 609, 861 N.E.2d 530, ¶ 13. The se c ond is whether the information provided initia tes the investigation, Mau rer , 91 Ohio St.3d at 56

- 57, 741Case No. 20 2 2

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- R EP ORT AND RECOMMENDATI ON

N.E.2d 511, as opposed to c onstituting wo rk product generated after the investigation is under wa y. Id . at ¶ 40. U nder the heading “ Some supplement na r ratives are public records
, ” t he Court

reasone d that the timing and natu re of any “ narrative derived directly from the party

re porti ng the facts of the at

- issue offense or in ci dent to the Departm ent, ” as well as

“ responding officer ’ s observations and witn e ss statemen ts ” tak en the same day
, show
t hat t h e “ information initiates the investigation ” and properly constitutes part of the pub lic record incident report, even though the officer elected to label that information as a “ supp lement ” narrative rather th a n an “ init ial narrative. ”
Id . at 42

- 44. Th e C ourt summ arized:
We hold t hat when a police department maintains both incident

- report forms and investigatory work product as part of the same overa ll investigatory record, officers ’ reports that contain their observatio ns at the time that they are respond ing to an inciden t, along with initial witness statements taken at the time of the inc ident or immediately thereafter, are inciden t

- report informati on that is a public record and may not be withheld from discl o sure as “ s pecific investigatory work product ” under R.C. 149.43 (A)(2)(c) . To use the terminology of this opinion, supplement narrati ves that contain incident information are pa rt of the public

- r ecord incident report, even though officers have neither incl u ded that i nformation on the incident

- report fo rm nor incorporat

ed it int o the “

initial narrative

. ” (Emphasis added. ) Id

. at ¶ 45. In the context of sexual assaults, t he Court treated the

“ initial ” phase of incident report ing as commenc ing upo n the first v i ctim or witness contact with the police department
, I d . at ¶ 4 9, 50, 96, 97, 100 , even if that first contact was made years after the alleged incident

. I d . at ¶ 49, 96. {¶13} Notably absent as a factor is the duty assignment or rank of the officer gathering the initial information. Otherwise
, a law enforcement agency could th wart disclosure of initial incident information by assigning a detective o r ranking officer to every criminal matter befo re an incident report is made

. See Daily Gazette Co., Inc. v. Withrow (1986), 177 W. Va. 110, 11 7 , 350 S.E.2d 738 , fn. 5 (public body may not conceal itsCase No. 20 2 2

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- R EP ORT AND RECOMMENDATI ON

otherwise publi c writings merely by having an attorney prep are them ), cited with approval
in State ex rel. Findlay Publ. Co. v. Hanco ck County Bd. of Comm rs. , 80 Ohio St. 3 d 134
, 137

- 138 , 684 N.E.2d 1222 ( 1 997)

. T he Meyers Court accordingly ordered disclos ure of
all supplemen t narratives containing factual incident information , inc luding those noting
that detectives ha d already “ opened an investigatio n into a possib le sexual assault

. ” Id

. at ¶ 49 and 50

. In determining which supplement narratives co ntain incident information, the most important factor is timin g

— the initial observations by officers and the initial wit ness statements taken at the physical location close to the time that the inci dent occurred con stitute incident information that may no t be regarded as specific investigatory work produce, even when the information has not been incorporated into the incide nt

- report form

. (Emphasis added.) Id

. at ¶ 47. The review m u st evaluate whether the “ timing and nature of the content show s that the information initi ates the investigation. ” Id . at ¶ 44 , 47

. T he Court also disregarded agency titling
, resolving the status of each narrative based on “ the
tim ing and nature of the co n tent * * *
, even though the officer elected to label that
information as a ‘ supplement ’ narrative rather than an ‘ initial ’ narr ative. ” Id . at ¶ 4 4. {¶14} S upplement narrati ves generated days after the initial incident report are not part of th at public record i f they nei ther contain information included in the report form nor
supp ly information that “ in itiated the investigation. ” Id. at ¶ 41. T he Court could not draw

a bright line defining wh en the investigation phase has been in itiated or is under way

. However
, the burden is on the law enforcement agenc y to prove that any withheld incident record falls squarely wit hin the full case law definition of specific in vestigatory work product
, a nd the exception is strictly construed against the agency

. Enquirer v. ODPS
, 148 Ohio St. 3d 433, 20 16

- O h io

- 7987, 71 N.E.3d 256, ¶ 35

. Incident /Offense Report No. 21

- 003 72 {¶15} Solon PD officers utilized a department al fill

- in

- the

- blan ks form to ini tia te th e investigation of the incident in this ca se

. The first page is titled I n ciden t/ Offense Report
No. 21

- 00372 and shows a “ Report Date/Time ” of Monday 03/08/2021 at 18:22 :0

. Review of the report in camera show s th at the three pages imm ediately fol lowing page nine wereCase No. 20 2 2

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- R EP ORT AND RECOMMENDATI ON

authored by the initially assigned officer s and were completed on 0 3/ 08/ 202 1 or review ed taped victim information the next day

. 2 All three pages reflect initial factual inform ation received from the victim on March 8 , 2021

. {¶16} The victim came to t he Solon PD on March 8, 2021 t o report a sexual offense

. (Seal ed Records /BATES S TAMPED/Solon PD Record s

– In Camera Inspection

– 1

- 399
, p. 10.) Befor e interviewing her, Ptl. Joseph R. Rand azzo spoke with a dete c tive
who directe d him to get the details of what happ ened and report back to her. Randazzo brought the victim and he r mother in to an interview room and recorded the ensuing
interview. At minute 9:00 of the interview video Randazzo advis ed the victim a d etective
would no w meet with her a nd lef t the room . ( Seal ed Records / Attachments/ [victim ’ s name] _Interview 1

. ) Ten minutes later De t. Linda Castro entere d the room and continued
the interview

. ( Id

.) Castro advised the victim “ that she would be contacted for a longer interview and that officers would be only collecting initial in formation at t his time. ” (Emphasis added .) ( Seal ed Record s / BATES STAMPED/Solon PD Record s

– In Camera Inspection

– 1

- 399
, at p. 11.) R an dazzo entered information received from the victim into
the first ten pages of the incident report and t he foot er on the t enth p age of the report is
dated 03/08/2021 at 18:22:0

. ( Id

. at p. 1

- 10

. ) Castro entered information received from
the victim into pages eleven and twelve. The first four para graphs of page eleven de scribe
her portion of the victim interview and the remainin g te xt describes her March 9, 202 1 review of the recorded i nterview. The foot er s on pages eleven and twelve of the report

are dated 03/0 9 /2021 at 15 : 34 : 4

. ( Id . at p. 11

- 12

. ) {¶17} Notably, t he ini tial Narrative fiel d at the bottom of th e first pa ge of the report form as released to Brandt contains only the words “ NOT FO R PUBLIC

. ” ( Complaint at
28

. ) Brandt assume d this was an indication of that the narrative text had been redacted (Reply at 9) but review in camera show s only the same words in this field

- no narrative

2 In addition to the Report Date/Time shown at the top of page 1 , and the Dat e of Contact reported in the Persons Involved fi elds, note th e Date in the re portin g officer li ne at the bottom of form pages

. ( Third Supp. Response at 2 ) ; UIR Manual at 45

.Case No. 20 2 2

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- R EP ORT AND RECOMMENDATI ON

text was eve r entered in the field

. I nstead
, Solon P D accomplished the same result by preemptively rerout i ng that text to a separate , withheld page

– Randazzo ’ s initial narrative

on p. 10 of the report

– and giving notice to the public that the initial narrative of th e incident was “ NOT FOR ” them

. 3 Solon PD o ffers no support for the proposition that
relocation of the initial in cident narr ative someho w make s i t “ investigatory. ” {¶18} Pages two through seven are ti tled Persons Involve d with Incident and contain identifi cation, contact, and relation i nformation

. Page s ei ght and nine are titled
P roperty Inv olved with Inci dent and re fer to three items : 1 ) a video surveillance recordin g, 2) unspec ified cloth ing from victim, and 3) the victim ’ s shirt

. Page ten , completed by
Randazzo
, is titled I nvestigative Repor t , dated 03 /08/2021 at 18:22:0
, and cont ains
Rand azz o ’ s narrative of the victim ’ s ar rival and interview at Solon PD up through and including his depa rture from the interview r oom. Page s eleven and twel ve , completed by
Det

. Castro
, are titled Investigative Repor t, 4 da ted 03/0 9 /2021 at 15:34:4 and contain Castr o ’s narrative of her continuation of the init ial interview of the victim on 03/08/ 20 21
and her review the next day of the previous day ’ s recording of the in terview

. {¶19} The Myers Court found s imilar initia l informa ti on
- gathering documents to be narratives of “ incident in formati on, ” including an instance whe re a second supplement
narrative was made by a second officer. Myers at ¶ 49, 52

- 53

. Based on timing
, content, and authorship, the Special Mas ter find s that Seale d Records / BATES STAMPED/Solon
PD Record s

– In Camera Inspection

– 1

- 399
, p. 1

- 1 2 and all contemporaneous records referenced therein cons titute the initial inci dent report for Incid ent No. 21

- 00372

. Videotaped Victim Interview {¶20} I n State ex rel. Cincinnati Enqui re r v. Ohio Dep t. of Pub. Safety , 148 Ohio St.3d 433, 2016

- Ohio

- 7987, 71 N.E.3d 258, ¶ 5

- 15, 45

- 50, a highway patrol dash

- cam recording made during a vehicle chase and arrest included audio and video of the officer ’ s

3 Cont rast this initial narrative ex port and withholding wi th Myers at ¶ 14

- 26 , wh er e the Chillicothe PD volu ntarily disclosed report text labeled as initial narratives

.

4 Despite this nominal title
, the contents re flect incident information received f rom the vi ctim

.Case No. 20 2 2

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- R EP ORT AND RECOMMENDATI ON

communication with other patrol personn el , investigation inquiries, and factual information from the suspect. The recording was made prior to creation of and was not attached to
th e incident report . The Court found that only a 90

- second portion of the recording whe re the officer Mirandized and qu estioned the suspect was “ investigatory ” work product. Applying the reasoning of Maurer at 56
, Myers at ¶ 45
, and Enquirer v. ODPS
, the video recording of the victim ’ s initial intervi ew on 03/08/2021 was made prior to the creation of Incident/Offense Rep or t No. 21

- 00372
, was incorporated by reference therein at p. 10
, contains incident information that initiated the investigation, and is thus public record

. The initial incident report likewise includes any pho tograph ic or other records document ing
items g at hered by Solon PD on March 8, 2022
, e.g., as not ed in th e fourth paragraph of page SLNPD

- INCAMERA

- 0000011 and pages 0000016 and 0000 3 70 through 0000 374
, as noted in the Affidavit of Det. Cas tro. (Second Supp. Response, Exh. A .) (Third Supp. Response at 2

- 3 .) {¶21} However, t he Public Records Act does not entitle a requester to access an y item of ph ysical evidence

. 2007 Ohio Op. Atty. Gen. No. 2007

- 0 34 (untested cigarette butt
taken from a crime scene is not a “ record ” ). Nor is subsequent forensic testing of init ia l l y gathered physical evidence, cond ucted months later and not initiat ing the in vestigation, swept into the initial incident report , e .g., matt ers referenced in SLNPD

- INCAMERA

00000 42 and 0000044

. Records that are In vesti gat ory Work Product {¶22} Pages thir t ee n through seventy

- three are form pages t itle d In vestigati ve Report , dated 03/10/2021 through 04/07/22
, signed by Detectives Castro or Harvey

. These pages reflect later investigatory interviews with pers ons inv olved in the incident
and accounts of office r i nvestigatory actions that took plac e days or more a fter the initial incident report and victim interview

. Solon PD has asserted no additional public records exemption s for the contents of these records

.Case No. 20 2 2

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- R EP ORT AND RECOMMENDATI ON

{¶23} B randt argues that all form report pages
, and 14 w r it ten wit ness s tatements,

“ detaine d property, ” police body camera foo ta ge, and all other items created or gathered
on dates after March 9, 2021
, do not qualify as specific investigatory work produc t bec ause “ Solon pol ice officers gathered [ these] facts, i n fo rmation , and property withheld during w hile [ sic

] working in thei r official capacity as sworn peace officer s * * * and then
created an Initial Incident Report upon which they recorded the ir gathered facts, information, and property withhe ld and narrativ e s ummary. ” (Reply at 7

- 8 .) Brandt applies
obsolete reasoning from cases overruled by State ex rel. Steckm an v. Jackson , 70 Ohio St.3d 420, 639 N.E.2d 83 (1994). These p r evious cases separated the law enforcement
inci d ent response into 1 ) “ objective facts a nd observations [an investigator] has record ed ” that were public
, and 2) h is “ deliberative and subjective analysis, his inte rpretation of the
facts , his theory of the case, and his investigat ive plans ” that were confidential work product

. Id

. at 431 , 434

. Th e Steckman Court rejected the fact/opinion dichotomy for a
framework of initial incident report fac t

- gathering (public) vs. the “ initiated ” investigation in anticipation of litigation ( ex empt ) , holdi ng that
in formation assembled by law enforcement off i ci als in conne ction with a probable or pending c riminal proceeding is, by the work product exception found in R.C. 149.43(A)(2)(c), excepted from required release as said i nformation is compiled in anticipation of litigation. The work product exception do e s not include ongoing routine offense and incide nt reports, including, but not limited to, records relating to a charge of driving while under the influen ce and records con taining the results of intoxilyzer tests.
Id . at 435. {¶24} O hio courts have clarified S te ckman as to the materials that must be
disclos ed as “ ongoing routine [initial ] i ncident reports. ” See State ex rel. Beacon Journal Publ. Co. v. Maurer

, 91 Ohio St.3d 54, 741 N. E. 2d 511 ( 2001) ; Narciso v. Powell Police Dep t. , Ct. of Cl. No. 2018

- 0 1195PQ, 20 18

- Ohio

- 4590
, ¶ 19

- 2 5 and cases cited therein

. As detailed in these cases , t he initial /routine/regular incid ent report does not include later investigatory notes, updates, a nd reports, even if they constitute “ fact work product ” ra therCase No. 20 2 2

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- R EP ORT AND RECOMMENDATI ON

than “ opinion wor k p roduc t

. ” Myers at ¶ 33, fn. 1. After the point where an invest igation has been initiated, the su bsequent w ork product of i nvest igators, including the reporting officer, are presumptively “investigatory” work product. See State ex rel. Fields v. Cervenik
, 8 th Di st . Cuyaho ga N o. 86889, 2006

- Ohio

- 3969, ¶ 2

- 7 ; Gannet GP Media, Inc. v. Chillicothe Police Dept. Ct. of Cl. No. 2017

- 00886 , 2018

- Ohio

- 1552, ¶ 14, 19

. The Myers Court thus rejected the requester ’ s contention that all supplement narratives in the
inc i de nt report for m we re ipso facto public

- record s , holding th at “ [i]ns tead, the public

record status of the supplement narrative s depe nds on the standards we have developed
in the case law. ” Myers at ¶ 36

- 39. Moreover , the mere fact that names o f involved
p e rs ons appear in t he incident report (and a re public record there) does not automati cally incorporate the entire investigative supplement narrative or interview from which the

names were obtained and backfilled into the report

. See Id . at ¶ 41 , fn. 2. ( See Th ird Supp. Response a t 3.) {¶25} T he bases for determining whether documents filed under seal in this case qualify as part of the publ ic

- record incident report are summarized in the following table :

De scription Location Reason N ot “ Investigatory Work Product ” Ptl. Randazzo ’ s narrative of v icti m ’ s arrival at PD and her account of all eged offense Sealed Records / BATES STAMPED/ Solon PD Records

– In Camera Inspection

– 1

- 399
, p. 10 Part of a regular incident

- report form

. Content derived directly from the part y re porting fact s to t he PD

. Contemporaneous

- m ade same date and time as first nine report pages

. Made by one of the first responding officer s

. I nformation initiate d the investigation

.Case No. 20 2 2

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Det. Castro ’ s
n arrative of
co ntinuation of vi ctim ’ s account of alleg e d offense Sealed Records / BATES STAMPED/Solon PD Records

– In Camera Inspection

– 1

- 399
, p. 1 1 (all text prior to “ On March 9 th , 20 21 ” ) Part of a regular incident

- report form

. Content derived directly from the party re porting fact s to t he PD

. Contempora n e ous
- m ade same date and time as first nine report pages

. M ade by one of the first responding officer s

. I nformation initiate d t he investigati on

. Det. Castro ’s

n arrative o bservations on review of vi ctim ’s 03/08/2021 recorded account of alleged offense Se a l ed Records / BATES STAMPED/ Solon PD Records

– In Camera Inspection

– 1

- 39 9
, p. 1 1

- 12 (all text following “On March 9 th , 20 21 ” ) Part of a regular incident

- report form

. Content derived directly from the party re porting fact s to t he PD

. I nformation initia t e d the investigation

. Alt hough signed on 03/09/2021, the text describe s only i n terview activi ty on 03/08/2021

– i.e., a sup plement narrative that contain s “ incident information

. ” Myers at ¶ 45

. 03/0 8/21 v ideo recording of R andazzo initial victim intervi e w Attachments/ [victim ’s name] _Interview 1 (Minutes 0 0 :00 through 18:50 ) Content derived directly from the party re porting fact s to t he PD

. R ecording made prior to the report

. Incorporated by r eference in initial narrative (Report p. 10.)
M ade by one of t h e first responding officer s

. I nfor m ation initiate d the investigation

. 03/0 8/21 v ideo recording of Castro initial victim interview Attachments/ [victim ’ s name] _Interview 1 Content derived directly from the party re porting fac t s to t he PD

. R ecordin g m ade prior to t he report

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(Minutes 18:51 through 37:34) Incorporated by r eference in initial narrative (Report p. 10.)
M ade by one of the first responding officer s

. I nformation ini tiate d the investigation

. USB containing vi deo
surve i llance from Sw irl Wine Bar N o location provided by respon dent Referenced in regular incident

- report form

. (Report p. 8 .)

A ny 03/08/2021 p hotos of clothi ng from victim Sealed Records / BA TES STAMPED/ Solon PD Records

– In Camera Inspection

– 1

- 399
, p. 3 70

- 374 Ref e renced in regu lar i ncident

- report form

. (Rep ort p. 8 .)
P laced into evidence on 03/08/2021

. (Report at 11.)

A ny 03/08/2021 p hotos of victim ’ s shirt Sealed Records / BATES STAMPED/ Solon PD Records

– In Cam era Inspection

– p. 370

- 374 Referenced in regular inc i dent

- report fo r m

. (Report p. 8 .)
P laced into evidence on 03/08/2021

. (Report at 11.)

O ther record s of incident information created or obtained on 03/08/202 1. As noted in fourth paragraph of page SL NPD

- INCAMERA

0000011
, discussed at page 0000016 and Castro Aff . (Second S u p p. Response, Exh. A.) (Third Supp. Response at 2

- 3 .) Contemporaneous

- m ade same date and time as first nine report pages

. I nformation initiate d the investigation

.

{¶26} The S pecial Master find s after review in camera that form pages 13 through
73 of the In c i dent / O ffense report, and all notes, reports, evidence, and other non
- formCase No. 20 2 2

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- R EP ORT AND RECOMMENDATI ON

report materials created and assembled after March 8, 2021 and not specifically
addressed in this table d id not initiate the investigation but constitute investigatory wo rk product g enerated after the investigation was under wa y

. Myers at ¶ 40 These later
records are exempt from disclosure by R.C. 14 9.43(A)(1)(h) and (A)( 2)(c) until the investigation has c onclude d by criminal trial or is otherwise clo s ed

. Id . at ¶ 32. {¶27} Finally, c ont r a ry to Brandt ’ s representation (Co mplaint at 2, ¶ 2) th ere is no
evidence before the court that Solon PD dispatched officers to the Swirl Wine Bar on March 8, 2021 to respon d to the person reporting harm. C l ear and convincing written and
video evidence sh o w s that the person reporting harm came to the Solon PD building to
file her report on March 8, 2021

. Solon PD affirm s that “ [t]he first time Solon P olice Department officers visite d Swirl Wine Bar as part of their response to and investigation
of the Inci d e nt is noted at the to p of page SLNPD

- INCAMERA

- 0000013, ” which refle ct s

a date later than March 8, 2022. (Third Supp. R esponse at 1

- 2.) Social S ecurity Numbers and Statutory “Per so nal I nformation” {¶28} Social security numbers ( SSNs) are subject to several publ i c r e cords exceptions. R.C. 149.43(A)(1)(dd) incorporate s by refer ence R.C. 149.45(A)(1)(a), “an
individual’s soci a l security number,” as an exce ption applicable to all public rec or ds. R.C. 149.43(A)(1)(dd) further permits withholding of specified driver’ s lic ense, banking,

an d credit card information. SSNs ar e also gen erally subject to a constitutional privacy right

. State ex rel. Montgomery Cty. Pub. Defender v. Siroki , 108 Ohio S t.3d 207, 2006

- Ohio

- 662, 842 N.E.2d 508, ¶ 17

- 18 ; Beacon Journal Publ ’ g Co. v . A kron , 2004

- Ohio

- 6 5 57
at ¶ 55. Although not briefed by Solon PD, the S pecial Master recommend s that the court
p erm it the department to redact any SSNs and other statutory “per sonal i nformation” from
records ordered disclose d

. {¶29} Solon PD has not asserted a n y public records exemption for the name of a
victi m contained in a n initial incident report, no r is the Special Master aware of a ny that

wou ld be applicable under the facts and circumstances of this case . However, BrandtCase No. 20 2 2

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- R EP ORT AND RECOMMENDATI ON

expressly agreed to redaction of t h e victim ’ s name from the re port and narrative (Complaint at 30) and the court therefore need not consider th at issue

. Tim eliness {¶30} “ Routi ne offense and incident reports are subject to immediate release upon request. ” (Emphasis a dded.) See State ex rel. Ste c k man v. Jac kson, 70 Ohio St.3d 420, 639 N.E.2d 83 (1994)
, paragraph five of the syllabus

. Solon PD claims it ma de i ts p re
litigation response timely and with “ good faith explanation, with legal authority, to justi fy
the r edactions and exemption of non

- pub l i c records. ” (Response at 2.) However, Solon did not produce the first nine pages of the regular initial incid ent repor t for fifte e n days
and has not produce d the conte mporaneous narratives, interview video or other records referenced in the report for th e last ten months and counting

. No well

- in formed public
office woul d reasonably believe that failure to release at least the first nine pages of th e initial in cide nt report immediately did not constitute failure to compl y with long

- stan ding
obli gations imp o s ed by R.C. 149.43(B) (1) and the relevant case law

. As the Supreme Court stated in Myers : In Steckman , 70 Ohio St.3d 420, 639 N. E.2d 83, and in later cases, we stated that incident reports constitut e public records and do not constitute confidential wor k pr oduct. Here, the city did not misunderstand Myers’s request; instead, it misunderstood its clearly established duties under R.C

. 149.43. Accord ingly, the city violated its statutory obligation unde r R.C. 149.43(B)(1) to promp tly provide the incident

- re p o r t forms to Myers , and M yers is entitled to statutory damages

. Myers at ¶ 61

- 62

. The Supreme Court foun d that as li ttle as three days from a reque st for
an in cid ent report to its disclosure constitute d failure to promptly provide the report

. Id . at ¶ 27

- 2 8 , 60

. T he Special Maste r accordingly finds that the fifteen

- day delay in th e i nstant case is a violation of R.C. 149.43(B)(1). However, neit her statutory damage s nor attorney fees are available in this special statutory action under R.C. 2743.75. Conclu s i onCase No. 20 2 2

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{¶31} Upon consideration of the pleadings
, att achments, and responsive records
filed u nder seal, the Special Master recommend s the c our t iss ue an order granti ng the claim for production of records as detailed in the te x t and table above

. The Special Master
f u rther r ecommend s the court fin d that respondent may redact ex empt items from its
records as expressly provided in th e report. It is the responsibility of resp o ndent t o r elease any additional records, properly redacted, in conformity with the findings and o rder issued by the court

. State ex rel. T oledo Blade Co. v. T

elb , 50 Ohio Misc.2d 1, * 11

- 12, 552 N.E.2d 243, 251 (C.P.199 0). The Special Master further r ecomm end s the court find that respondent failed to produce all public recor ds in a reasonable period o f time. Th e Spec ial
Master recommend s the court order that r equester i s entit l ed to recover fr om res p ond ent the costs associated with this action, including th e twenty

- five

- dollar filing fee. R.C. 2743.75(F)(3)(b). {¶32} Pursuant to R.C. 2743.75(F)(2), either p arty may file a writt en objection wit

h the clerk of the Cou rt of Clai ms of O h io within seven (7) bu s ine ss days after receiving this report an d recommendation. Any objection shall be specific and state with particularity all
gro unds for the objection. A p a r ty shall not as sign a s error on appea l the court’s adoption of any fa ctual f

i ndings or legal conclu s ion s in this report and recommendation unless a
timel y obj ection was filed thereto. R.C. 2743.75(G)(1).

JEFF CLARK Specia l Master

Filed September 27 , 20 22 Sent to S.C. Reporter 10/20/22