I recently wrote about an Ohio Supreme Court decision (see previous page) that reminded police departments throughout Ohio that the Confidential Law Enforcement Investigatory Record ("CLEIR") exemption under the Public Records Act, which exempts certain law enforcement records from public disclosure, is a two-part standard. The Court explained that the party claiming the CLEIR exemption must first establish that the record pertains to an ongoing “law enforcement matter of a criminal, quasi-criminal,  civil,  or  administrative nature” and second that disclosure of the record would create “a high probability of disclosure” of one of four kinds of information specified in the statute.

A record qualifies for the CLEIR exemption only if it: 1) discloses the identity of an uncharged suspect; or 2)  identifies  a  confidential  source; or 3) discloses specific confidential investigatory techniques or specific investigatory work product or 4) discloses information that would endanger the life or physical safety of law enforcement personnel, a crime victim, a witness, or a confidential information source.

But despite clear statutory language, and the Supreme Court's guidance, police departments and other public bodies remain confused. One recurring source of confusion (or abuse if you're a cynic) is the notion that the very existence of an ongoing investigation justifies application of the CLEIR exception. But because it is a two-step test, this “confusion” is completely unfounded.

But even among those public bodies that are able to comprehend that a two-step test actually requires two steps, confusion often reigns. And the concept of "specific confidential investigatory techniques" seems to particularly flummox them.

And while it’s easy to assume that public records wrongfully claiming this exemption are withheld with some sort of malice, let’s not be unfairly distrustful just yet. The Ohio Sunshine Laws 2013 Government Resource Manual, a "go-to" guide of Ohio governmental agencies for all things related to public records, may too hastily explain the exemption – especially for those unfamiliar with this law.

The manual defines "specific investigatory work product" as "[i] information, including notes, working papers, memoranda, or similar materials, assembled by law enforcement officials in connection with a probable or pending criminal proceeding.” The manual includes court decisions that broadly apply the exemption and hold that records “may be protected even when they appear in a law enforcement office’s files other than the investigative file," and that "[i]t is difficult to conceive of anything in a prosecutor's file, in a pending criminal matter, that would not be either material compiled in anticipation of a specified criminal proceeding or the personal trial preparation of the prosecutor.” Almost as an afterthought, the manual mentions “some limits” to the exemption, yet lists in a footnote only two examples where records are not shielded by the specific investigatory work product exemption.

The specific investigatory work product exemption should be evaluated on a case- by-case basis. Specific investigatory work product is information assembled by law enforcement officials in connection with a pending or highly probable criminal or civil proceeding. Any notes, working papers, memoranda or similar materials, prepared by attorneys or law enforcement officials in anticipation of litigation fall within this exemption. The exemption offers no protection to ongoing routine offense and incident reports, including, but not limited to, records relating to a charge of driving while under the influence and records containing the results of intoxilyzer tests. Even internal investigative records concerning the regulation and discipline of police officers do not qualify for the exemption.

Courts have also been clear to distinguish between an “ongoing investigation” and an investigation where a criminal or civil proceeding is “highly probable.” A criminal or civil proceeding is considered highly probable only if “it is clear that a crime has in fact been committed.” When an officer’s or law enforcement official’s investigation could lead to civil and/or criminal proceedings, the specific investigatory work product exemption does not apply. Materials are not considered work product in these circumstances because “it is not evident that a crime has occurred, [and] 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. An active and ongoing criminal investigation “conducted in a manner similar to other criminal investigations aimed at possible prosecution.is [not] evidence that criminal charges…are either pending or highly probable as required from the work product exemption.”

Even if criminal or civil proceedings are pending or highly probable, the requested records may still be subject to public disclosure if they were created before it was clear that a crime had been committed. Once clothed with the public records cloak, records cannot be defrocked of their status. An easy example? Just because the prosecutor puts the incident report in his file, that report remains a public record. Any item created prior to the commencement of the investigation retains its public status, no matter how it is handled in the investigation.

The takeaway: If a public body denies your request based on CLEIR, insist it identify which of the four exemptions apply. And if the exemption is the "specific investigatory work product” exemption, ask if any of those records were created before the investigation commenced. By conducting your own investigation, you might overcome the “confusion.”