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State ex rel Ohio Patrolmen's Benevolent Association v. City of Mentor8/16/2000
il and/or criminal proceedings, however, is not sufficient to bring it under the R.C. 149.43(A)(2)(c) exception for `specific investigatory work product.' " The sealed investigative records indicate that crimes may not have occurred. In fact, respondents concede that, even when they filed their merit brief, "a possibility exist that formal charge w[ould] not be sought."
The R.C. 149.43(A)(2)(d) witness-endangerment exemption is also inapplicable. As respondents admit, "the record does not indicate a high probability of danger to the life or physical safety of a witness."
Moreover, to the extent that respondents claim that the records are exempt because the investigation concerning the Spetrino matter is still ongoing, R.C. 149.43 does not contain an "ongoing investigation" exemption for public records. See Yant, 74 Ohio St.3d at 683-684, 660 N.E.2d at 1213-1214 (relator is entitled to investigative records despite public office's claim that investigation had been "reopened").
Nevertheless, the evidence establishes that the Spetrino investigative records are exempt to the extent that their release would reveal the identities of uncharged suspects under R.C. 149.43(A)(2)(a). Respondents' evidence shows that an active criminal investigation is being conducted concerning the Spetrino matter.
Despite the foregoing evidence, relators contend that the uncharged-suspect exemption does not apply to the Spetrino records because of widespread publicity concerning the Spetrino investigation, respondents' failure to claim this exemption until after this mandamus action was initiated, respondents' use of Garrity warnings during investigative interviews of police officers, and the absence of pending or highly probable criminal charges.
Relators' assertions are meritless. The uncharged-suspect exemption may still apply even though the accusation of criminal conduct is already public knowledge. State ex rel. Master v. Cleveland (1996), 76 Ohio St.3d 340, 342, 667 N.E.2d 974, 975-976 ("Master II"). Here, as in Master II, the publicity concerning the investigation did not preclude application of the uncharged-suspect exemption because release of the records would subject suspects to additional adverse publicity and might compromise subsequent efforts to resolve the matter, and respondents have not voluntarily disclosed the records and thereby waived the application of the uncharged-suspect exemption. Master II, 76 Ohio St.3d at 342-343, 667 N.E.2d at 976-977; State ex rel. WLWT-TV5 v. Leis (1997), 77 Ohio St.3d 357, 361, 673 N.E.2d 1365, 1369-1370; State ex rel. Strothers v. McFaul (1997), 122 Ohio App.3d 327, 333, 701 N.E.2d 759, 762-763 (court rejected argument that uncharged-suspect exemption did not apply where identity of suspect had been revealed in pleadings from litigation, a summary released by the sheriff's office, and television newscasts).
Further, respondents' failure to specify the uncharged-suspect exemption as a basis for withholding the Spetrino investigative record until after this action was filed does not prohibit the applicability of the exemption. See State ex rel. Plain Dealer Publishing Co. v. Cleveland (1996), 75 Ohio St.3d 31, 34, 661 N.E.2d 187, 190 (" xceptions to disclosure under R.C. 149.43 are not affirmative defenses, and the city's failure to raise the exceptions it now relies on does not prohibit the court from considering them.").
Moreover, the mere fact that police officers interviewed during the Spetrino investigation received Garrity warnings did not mean that it could not be a criminal investigation with criminal suspects. Garrity precludes the use, in subsequent criminal proceedings against a public empl
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