Henneman v. City of Toledo

520 N.E.2d 207, 35 Ohio St. 3d 241, 1988 Ohio LEXIS 55
CourtOhio Supreme Court
DecidedMarch 9, 1988
DocketNo. 87-335
StatusPublished
Cited by44 cases

This text of 520 N.E.2d 207 (Henneman v. City of Toledo) is published on Counsel Stack Legal Research, covering Ohio Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Henneman v. City of Toledo, 520 N.E.2d 207, 35 Ohio St. 3d 241, 1988 Ohio LEXIS 55 (Ohio 1988).

Opinion

Douglas, J.

The principal question posed by this appeal is whether information and records compiled by a police department pursuant to its internal investigation of alleged police misconduct are subject to an executive privilege, either qualified or absolute, protecting such information and records from the normal discovery requirements of civil litigation. We hold that such evidence must be disclosed upon a proper discovery request if, pursuant to an in camera inspection, the trial judge determines that the public interest in the confidentiality of such information is outweighed by the litigant’s specific need for the evidence.

Where a particular claim is based on the United States Constitution or federal statutes, federal law controls on the question of evidentiary privilege. Kerr v. U.S. Dist. Court for Northern Dist. of Cal. (C.A. 9, 1975), 511 F. 2d 192, 197. Conversely, where the relief sought relies upon Ohio law, the most appropriate source of applicable legal principles would be the law of privilege as it exists in this state. See Evid. R. 501. Since appellee’s complaint contains both federal and state claims, we must look to both sources of authority, so that the relevant law may be applied to each claim.

The federal cases are clear. The rule of absolute privilege for internal affairs information adopted in Kott v. Perini (N.D. Ohio 1968), 283 F. Supp. 1, upon which the trial court apparently relied, has been rejected overwhelmingly in subsequent 'decisions.1 The leading case appears to be Frankenhauser v. Rizzo (E.D. Pa. 1973), 59 F.R.D. 339. In Frankenhauser, the plaintiffs brought a civil rights action alleging police misconduct in the death of a man shot by police officers. The question before the Frankenhauser court was whether the plaintiffs had [243]*243the right to seek discovery of relevant police investigative records, including internal reports of statements made by members of the defendant police department regarding the incident. The court rejected the defendants’ claim of executive privilege, ruling that the documents requested are not absolutely protected from disclosure under these circumstances. In so holding, the Frankenhauser court discounted defendants’ argument that compelled disclosure of such information will have a chilling effect on the department’s ability to pursue its investigations and will impede candid evaluation of the conduct of its members. Id. at 342. The court reasoned that such a view fails to allow for the willingness of the police and of the public in general to cooperate fully with law enforcement officials. Id. at 344. However, the court recognized that the confidentiality of such information often serves a legitimate public interest, particularly in an ongoing criminal investigation:

“* * * [W]hen executive privilege is asserted, the court must balance the public interest in the confidentiality of governmental information against the needs of a litigant to obtain data, not otherwise available to him, with which to pursue a non-frivolous cause of action. Needless to say, the balancing task -will often be difficult and the ingredients of the test will vary from case to case. In the context of discovery of police investigation files in a civil rights case, however, at least the following considerations should be examined: (1) the extent to which disclosure will thwart governmental processes by discouraging citizens from giving the government information; (2) the impact upon persons who have given information of having their identities disclosed; (3) the degree to which governmental self-evaluation and consequent program improvement will be chilled by disclosure; (4) whether the information sought is factual data or evaluative summary; (5) whether the party seeking the discovery is an actual or potential defendant in any criminal proceeding either pending or reasonably likely to follow from the incident in question; (6) whether the police investigation has been completed; (7) whether any intradepartmental disciplinary proceedings have arisen or may arise from the investigation; (8) whether the plaintiff’s suit is non-frivolous and brought in good faith; (9) whether the information sought is available through other discovery or from other sources; and (10) the importance of the information sought to the plaintiff’s case.” Id. at 344.

In camera inspection of the documents by the trial judge is the most appropriate method of dealing with claims of executive privilege. Kerr v. U.S. Dist. Court for Northern Dist. of Cal. (1976), 426 U.S. 394, 406. By conducting such an inspection in chambers away from the jury and without the presence or participation of counsel for either party, the trial judge may make the necessary determination without compromising the confidentiality of any information he finds to be privileged. Upon such inspection in light of the factors outlined in Frankenhauser, and any other factors deemed relevant by the court, information found to be discoverable may then be disclosed to the requesting party on the condition that access to the materials be limited to the requesting party’s counsel and persons employed by counsel in connection with the case. Urseth v. Dayton (S.D. Ohio 1986), 110 F.R.D. 245, 257. Any records requested by the plaintiff which the trial judge deems to be non-discoverable under the Frankenhauser test will then be sealed and made part [244]*244of the record, so that an appellate court faced with the question may determine whether the trial court abused its discretion in withholding such records.

The Frankenhauser rule of qualified privilege for internal affairs records and files has been adopted by the vast majority of those federal courts presented with the question.2 Thus, with regard to appellee’s federal claims, the trial court erred in applying an absolute privilege to such information, barring appellee from access thereto without considering the balancing factors outlined in Frankenhauser.

We turn now to a consideration of whether the law of Ohio recognizes an absolute privilege with regard to records and information compiled in the course of an internal affairs investigation by a police department. Appellants argue that such records are absolutely protected from disclosure by R.C. 149.43, Ohio’s public records statute, and by R.C. Chapter 1347, Ohio’s Privacy Act. We cannot agree.

R.C. 149.43(B) requires that “[a]ll public records shall be promptly prepared and made available for inspection to any member of the general public at all reasonable times during regular business hours. * * *” R.C. 149.43 (A) defines the term “public record” and specifically exempts confidential law enforcement investigatory records from the disclosure requirement. The term “confidential law enforcement investigatory record” is defined in R.C. 149.43(A)(2) as follows:

“ ‘Confidential law enforcement investigatory record’ means 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 any of the following:

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Mitchell Family Trust Fund v. Cole
2026 Ohio 744 (Ohio Court of Appeals, 2026)
State v. Aziz
2026 Ohio 353 (Ohio Court of Appeals, 2026)
Gales v. Ohio Lottery Comm.
2025 Ohio 5189 (Ohio Court of Claims, 2025)
12312 Mayfield Rd., L.L.C. v. High & Low Little Italy, L.L.C.
2024 Ohio 2717 (Ohio Court of Appeals, 2024)
State ex rel. Media & Democracy Ctr. v. Atty Gen.
2023 Ohio 364 (Ohio Court of Appeals, 2023)
Parra v. Jackson
2023 Ohio 216 (Ohio Court of Appeals, 2023)
Nationwide Agribusiness Ins. Co. v. Heidler
2019 Ohio 4311 (Ohio Court of Appeals, 2019)
Daher v. Cuyahoga Community College Dist. (Slip Opinion)
2018 Ohio 4462 (Ohio Supreme Court, 2018)
Skorvanek v. Dept. of Rehab & Corr.
2018 Ohio 3870 (Ohio Court of Appeals, 2018)
J & C Marketing, L.L.C. v. McGinty
37 N.E.3d 1183 (Ohio Supreme Court, 2015)
State ex rel. Community Journal v. Reed
2014 Ohio 5745 (Ohio Court of Appeals, 2014)
J&C Marketing, L.L.C. v. McGinty
2013 Ohio 4805 (Ohio Court of Appeals, 2013)
Wessell Generations, Inc. v. Bonnifield
950 N.E.2d 989 (Ohio Court of Appeals, 2011)
Legg v. Hallet, 07ap-170 (12-11-2007)
2007 Ohio 6595 (Ohio Court of Appeals, 2007)
Akers v. Osumc, Unpublished Decision (9-29-2005)
2005 Ohio 5160 (Ohio Court of Appeals, 2005)
Nat'l Union Fire v. Osu, Unpublished Decision (8-4-2005)
2005 Ohio 3992 (Ohio Court of Appeals, 2005)
MacLay v. Jones
542 S.E.2d 83 (West Virginia Supreme Court, 2000)
Carver v. the Township of Deerfield
742 N.E.2d 1182 (Ohio Court of Appeals, 2000)

Cite This Page — Counsel Stack

Bluebook (online)
520 N.E.2d 207, 35 Ohio St. 3d 241, 1988 Ohio LEXIS 55, Counsel Stack Legal Research, https://law.counselstack.com/opinion/henneman-v-city-of-toledo-ohio-1988.