State ex rel Ohio Patrolmen's Benevolent Association v. City of Mentor8/16/2000
ires, first, that the records pertain to a law enforcement matter of a criminal, quasi-criminal, civil, or administrative nature, and, second, that the release of the records would create a high probability of disclosure of any of the four types of information specified in R.C. 149.43(A)(2). See State ex rel. Yant v. Conrad (1996), 74 Ohio St.3d 681, 684, 660 N.E.2d 1211, 1214.
The first requirement is satisfied because the records pertain to a law enforcement matter of a criminal, quasi-criminal, civil, or administrative nature. As in comparable cases, " ` he investigation herein was of specific alleged misconduct, not a routine monitoring investigation.' " Yant, 74 Ohio St.3d at 684, 660 N.E.2d at 1214, quoting State ex rel. Polovischak v. Mayfield (1990), 50 Ohio St.3d 51, 53, 552 N.E.2d 635, 637 (both involving Bureau of Workers' Compensation investigations of bureau employees' alleged misconduct). The Spetrino investigative records were generated by the alleged misconduct of several Mentor police officers specified in Spetrino's citizen's complaint rather than general, routine employment and personnel inquiries ancillary to law enforcement matters. Cf. State ex rel. Freedom Communications, Inc. v. Elida Community Fire Co. (1998), 82 Ohio St.3d 578, 581, 697 N.E.2d 210, 214 (community fire company's investigation of alleged sexual assault involving two employees after police closed their separate investigation); Multimedia, 72 Ohio St.3d at 143, 647 N.E.2d at 1378 (investigations routinely conducted and part of personnel records of each police recruit).
And even if the internal affairs investigation of the Spetrino complaint were considered routine, there is no automatic, per se exclusion of all routine police criminal investigations from the first step of the R.C. 149.43(A)(2) definition of confidential law enforcement investigatory record. State ex rel. Natl. Broadcasting Co. v. Cleveland (1991), 57 Ohio St.3d 77, 80, 566 N.E.2d 146, 149.
For the second requirement of the record exemption, respondents claim that release of the Spetrino investigative records would create a high probability of disclosure of specific investigatory work product under R.C. 149.43(A)(2)(c), information that would endanger the life or physical safety of a witness under R.C. 149.43(A)(2)(d), and the identity of an uncharged suspect under R.C. 149.43(A)(2)(a). Respondents also assert that relators are not entitled to access to the records because the investigation is ongoing and not yet completed.
Exempt work product is information assembled by law enforcement officials in connection with a pending or highly probable criminal proceeding. State ex rel. Gannett Satellite Info. Network, Inc. v. Petro (1997), 80 Ohio St.3d 261, 266-267, 685 N.E.2d 1223, 1228. Investigative materials do not constitute work product when it is not evident that a crime has occurred, because the records are then compiled by law enforcement officials in part to determine if any crime has occurred and not necessarily in anticipation of litigation. State ex rel. Leonard v. White (1996), 75 Ohio St.3d 516, 518, 664 N.E.2d 527, 529.
Based on these standards, the work-product exemption does not apply to the Spetrino investigative records. No criminal proceeding resulting from the Spetrino investigation was either pending or highly probable when relators requested access to the investigative records. Id.; Cleveland Police Patrolmen's Assn. v. Cleveland (1996), 110 Ohio App.3d 796, 801-802, 675 N.E.2d 501, 504; see, also, State ex rel. Glover v. Lashutka (Dec. 31, 1996), Franklin App. No. 96APD10-1433, unreported, 1996 WL 751548, applying Leonard to hold that " he fact that this investigation could lead to civ
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