The Volokh Conspiracy
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From State ex rel. Standifer v. City of Cleveland, decided Thursday by the Ohio Supreme Court:
Cleveland's General Police Order 2.01.05 … requires that a UOF [Use of Force] report be prepared whenever a Cleveland police officer uses force rising to [a sufficient level] in the course of the officer's duties. UOF reports … provide a "detailed account" of the use of force, including the reason for the initial police presence, a specific description of the acts that preceded the use of force, the level of resistance encountered, and a description of the force used…. General Police Order 2.01.06 requires review of UOF reports through the chain of command to determine whether a use of force was proper….
Cid Standifer, who writes for the Cleveland Scene, sought the detailed UOF reports under Ohio public records law, but the city denied them based on the "confidential law enforcement investigatory record" (CLEIR) exception to that statute. The court of appeals agreed with the city, but the Ohio Supreme Court sided with Standifer:
R.C. 149.43(A)(1)(h) [part of the Ohio public records statute] exempts CLEIR from disclosure as public records, and R.C. 149.43(A)(2) defines "CLEIR" as "any record that pertains to a law enforcement matter of a criminal, quasi-criminal, civil, or administrative nature, but only to the extent that the release of the record would create a high probability of disclosure of" one or more of the types of information listed in R.C. 149.43(A)(2)(a) through (d). Accordingly, "[t]he applicability of the [CLEIR exception] requires, first, that the records pertain to a law enforcement matter … and, second, that the release of the records would create a high probability of disclosure of any of the four types of information specified." …
Under the policy, UOF reports are part of the investigation conducted into an officer's use of force during the officer's law-enforcement duties. Thus, they pertain to a law-enforcement matter and cannot be characterized as simply a personnel document. We therefore agree with Cleveland that the UOF reports satisfy the first requirement of the CLEIR definition. Whether the court of appeals correctly denied the writ therefore depends on whether the UOF reports satisfy the second requirement of the CLEIR definition.
R.C. 149.43(A)(2) identifies four categories of protected information that exempt law-enforcement records from disclosure as CLEIR. In this case, the court of appeals relied on R.C. 149.43(A)(2)(a), which exempts law-enforcement records the release of which has a high probability of disclosing "[t]he identity of a suspect who has not been charged with the offense to which the record pertains." The court of appeals held that releasing the UOF reports would create a high probability of disclosing the identity of the officer who used the force described in each report, whom the court viewed as an uncharged suspect in the review and possible investigation of a use of force. The court additionally held that redactions of the reports were impracticable because the information in the reports was intertwined with the identity of the officers who used force.
We disagree with the court of appeals' application of the uncharged-suspect provision of R.C. 149.43(A)(2). For one thing, the characterization of an officer who used force as a "suspect" is dubious, given that the UOF report is submitted prior to any determination that a use of force merits an administrative or criminal inquiry. Indeed, the use of force by a police officer in the course of the officer's duties may not be wrongful, and, in such a case, the UOF report may not necessarily lead to any further criminal investigation. The court of appeals' rationale, however, necessarily assumes that all officers who use force are per se criminal suspects. Though we do not foreclose the possibility that a UOF report could, in certain circumstances, identify an uncharged suspect and thus be exempt from disclosure as CLEIR, we decline to recognize a per se rule that UOF reports always do so.
It is true that "the absence of pending or highly probable criminal charges is not fatal to the applicability of the uncharged-suspect exemption." So in some cases, a UOF report could be exempt from disclosure to protect the identity of an officer who used force as an uncharged suspect. But it does not follow that UOF reports should be categorically treated as CLEIR. We decline to adopt the court of appeals' rationale that an officer who used force is an uncharged suspect in every case in which a UOF report describing that force is prepared.
In defending the court of appeals' decision, Cleveland argues that other provisions of R.C. 149.43(A)(2) apply to UOF reports. Specifically, Cleveland contends that disclosing the reports would reveal (1) the identity of witnesses who have been or might be promised confidentiality, (2) information that would compromise investigations, and (3) information that could endanger the physical safety of others.
In these arguments, Cleveland paints with broad strokes in its characterization of the information in UOF reports and does not point to specific information in them to which these provisions of R.C. 149.43(A)(2) apply. While particular UOF reports might include one or more of these elements and therefore fall within the CLEIR exception, Cleveland has not demonstrated that all the requested UOF reports categorically qualify as one or more of the types of information listed in R.C. 149.43(A)(2). As the proponent of the CLEIR exception, Cleveland has the burden to prove that the exception applies to specific information contained in the reports. It has not met that burden.
Congratulations to Prof. Andrew Geronimo and Sara Coluter at the First Amendment Clinic at Case Western Reserve University School of Law.