Access with Attitude: An Advocate's Guide to Freedom of Information in Ohio

6: Law Enforcement Investigatory Records

77 6 Law Enforcement Investigatory Records Know the Limits of the Barrier That People Encounter Most 6.1 A Broad Exemption Records that qualify as “confidential law enforcement investigatory records” are not public records.1 Broken into digestible parts, the exemption applies to • any record • that pertains to • a law enforcement matter • of a 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. . . . The exemption then itemizes the types of information to which it applies:2 1. “specific investigatory work product”;3 78฀฀•฀฀Access with Attitude 2. “the identity of a suspect who has not been charged with the offense to which the record pertains”;4 3. (a) “the identity . . . of an information source or witness to whom confidentiality has been reasonably promised” or (b) information provided by that person if the information “would reasonably tend to disclose the source’s or witness’s identity”;5 4. “information that would endanger the life or physical safety of (a) “law enforcement personnel, (b) “a crime victim, (c) “a witness, or (d) “a confidential information source”;6 or 5. “specific confidential investigatory techniques or procedures.”7 This guide focuses on the first two items because you will encounter them far more often than the others. What Makes the Exemption So Broad? The first item—“specific investigatory work product”—covers virtually every record created by law enforcement investigators or obtained from nongovernment sources. For example, a city police investigative case file typically contains • an offense/incident report • an arrest report, if the suspect has been arrested • records of witness statements, admissions, or confessions • records of examinations of physical evidence • miscellaneous reports and records that document the progress of the investigation The offense/incident report and the arrest report are public records, but the others are not. They are specific investigatory work product. Not Just the Police The exemption for “confidential law enforcement investigatory records ” covers investigating agencies of various types—not just the Law Enforcement Investigatory Records ฀•฀฀79 police. If the law authorizes an agency to investigate violations of laws, the exemption will apply.8 Not Just Crimes The law being enforced need not be a criminal law.9 If violating the law imposes a civil or administrative penalty, such as losing a license, the exemption applies to investigations aimed at enforcing that law. For example, the state board of psychology investigates whether licensed psychologists have violated the terms of their licenses. Even if those violations are not crimes, the exemption applies to the board’s investigations.10 6.2 First Limit: The Exemption Doesn’t Apply If the Agency Isn’t Trying to Enforce a Law The exemption for confidential law enforcement investigatory records does not apply to every governmental investigation. It applies only when the investigating agency seeks to enforce a law, not just an internal policy or practice. When a law prohibits someone from doing something and imposes a penalty for its violation, an investigation of that person’s actions enforces that law. When a law requires someone to do something and imposes a penalty for failing to do it, an investigation of that person’s inaction enforces that law. The “law” could be a local ordinance, part of the Ohio Revised Code, part of the Ohio Administrative Code, or a federal law. Ordinarily , an internal agency policy isn’t a “law.” What if the city manager is investigating to see which city employee leaked information to the press about the expected cost of building a new sports stadium? Unless there is a law that prohibits and penalizes the leak, the exemption for confidential law enforcement investigatory records would not apply. 80฀฀•฀฀Access with Attitude 6.3 Second Limit: The Exemption Doesn’t Apply to Employment Investigations Hiring, Firing, or Disciplining a Public Employee Isn’t Enforcing a Law Because the exemption applies only to investigations to enforce a law, internal investigations to decide whether to hire, fire, or discipline a public employee usually don’t count. That includes background investigations of candidates to become public employees.11 Disciplinary or termination proceedings don’t enforce laws; they enforce terms of employment. “Investigatory reports compiled by law enforcement agencies to assist employment decisions do not constitute confidential law enforcement investigatory records . . . since they do not directly involve law enforcement,” the Ohio Supreme Court has emphasized.12 For example, when a...