[Cite as State ex rel. Miller v. Ohio State Hwy. Patrol, 2014-Ohio-2244.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
CLERMONT COUNTY
STATE OF OHIO EX REL. MARK W. : MILLER, : CASE NO. CA2012-05-034 Relator, : DECISION 5/27/2014 - vs - :
: OHIO STATE HIGHWAY PATROL, et al., : Respondents. :
ORIGINAL ACTION IN MANDAMUS
Finney Law Firm LLC, Christopher P. Finney, 4270 Ivy Pointe Blvd., Suite 225, Cincinnati, Ohio 45245 and Curt C. Hartman, 3749 Fox Point Ct., Amelia, Ohio 45102, for relator
Michael DeWine, Ohio Attorney General, Morgan A. Linn, Jeffery W. Clark, c/o Ohio State Highway Patrol, 1970 West Broad Street, 5th Floor, Columbus, Ohio 43223, for respondents, Ohio State Highway Patrol and Jeff Maute
Per Curiam.
{¶ 1} The current case is before this court pursuant to a complaint brought by relator,
Mark Miller, seeking statutory damages, court costs, and attorney fees from respondent, the
Ohio State Highway Patrol. Relator claims entitlement to damages, costs, and fees for what
he alleges was respondent's unlawful denial of certain requested public records. Clermont CA2012-05-034
I. Statement of Facts
{¶ 2} According to his complaint, Mark Miller is a founding member and treasurer of
the Coalition Opposed to Additional Spending and Taxes (COAST). COAST opposes
excessive taxes and government spending, and also involves itself in exposing alleged abuse
of government power. COAST works to learn of, document, and expose policies, practices,
and procedures of government officials that exceed the government entity's statutory and
constitutional authority. In order to further COAST's goals, Miller often makes public records
requests in an effort to bring to light such government waste, fraud, or abuse.
{¶ 3} In September 2011, Miller requested, via certified mail, certain public records
from the Ohio State Highway Patrol regarding Trooper Joseph Westhoven's investigations of
traffic-related incidents. As pertinent to this case, one such traffic-related incident involved
Trooper Westhoven's investigation of Ashely Ruberg for a suspected operation of a vehicle
under the influence of alcohol (OVI).
{¶ 4} Trooper Westhoven first became suspicious that Ruberg was driving under the
influence when he performed a traffic stop, which he initiated because Ruberg was driving 72
m.p.h. in a zone with a maximum speed of 45 m.p.h. Upon speaking with Ruberg, Trooper
Westhoven noticed that Ruberg's eyes were red and that there was an odor of an alcoholic
beverage coming from her car. Ruberg performed field sobriety tests, some of which
indicated that she was under the influence. Ruberg also submitted to a Breathalyzer test,
which revealed that her blood alcohol level was .116. Ruberg was arrested, and charged
with OVI. Miller then requested the records specific to Trooper Westhoven's investigation of
Ruberg's OVI.
{¶ 5} While the Highway Patrol produced most of the documents Miller requested, it
withheld two categories of records, including (1) any and all video and audio recordings from
the police cruiser operated by Trooper Westhoven from the beginning of his shift on June 1, -2- Clermont CA2012-05-034
2011 through the end of his shift on August 5, 2011, and (2) any and all Impaired Driver
Reports drafted and/or printed by Trooper Westhoven, relating to any arrests made for OVI
between June 1, 2011 and August 5, 2011, including, but not limited to, narrations on
statements of facts, field sobriety test reports, and evaluations.
{¶ 6} More specifically, the Highway Patrol did not give Miller (1) a portion of the
video from Trooper Westhoven's police cruiser that documented the traffic stop, detention,
and arrest of Ruberg for OVI, or (2) the impaired driver report relating to Ruberg's arrest. The
Highway Patrol informed Miller that it was not producing the requested documents because
the records constituted investigative work product for the ongoing criminal investigation of
Ruberg. In response to the Highway Patrols' nonproduction, Miller filed a mandamus action
in this court on May 10, 2012.
{¶ 7} This court dismissed Miller's mandamus complaint, finding that Miller had not
established by clear and convincing evidence that the Highway Patrol failed to turn over
records according to the Public Records Act. State ex rel. Miller v. Ohio State Hwy. Patrol,
12th Dist. Clermont No. CA2012-05-034. Miller appealed to the Ohio Supreme Court, and
argued that he was entitled to mandamus relief. The Ohio Supreme Court reversed the
judgment of this court, finding that the Highway Patrol had failed to turn over two records that
had been requested by Miller. State ex rel. Miller v. Ohio State Highway Patrol, 136 Ohio
St.3d 350, 2013-Ohio-3720. While the court determined that the Highway Patrol had not
fulfilled Miller's entire request, the court did not reach a conclusion as to whether the Highway
Patrol was statutorily obligated to actually produce the records.
{¶ 8} On remand, this court was ordered to review the withheld records and to
determine whether they fall within the "confidential law enforcement investigatory record"
exception to the Public Records Act, and specifically whether fulfilling Miller's request of the
withheld records would create a "high probability of disclosure" of "specific investigatory work -3- Clermont CA2012-05-034
product" as asserted by the Highway Patrol.
{¶ 9} During the litigation of Miller's mandamus claim before the Ohio Supreme Court
and upon remand to this court, the criminal case against Ruberg was completed, and the
Highway Patrol released the withheld records to Miller. While Miller's mandamus claim is
now moot, as all of his requested documents have been given to him, he now requests that
he be awarded statutory fees, court costs, and attorney fees for what he argues was the
Highway Patrol's violation of the Public Records Act
II. Ohio Public Records Act
{¶ 10} "The Public Records Act reflects the state's policy that 'open government
serves the public interest and our democratic system.'" State ex rel. Morgan v. City of New
Lexington, 112 Ohio St.3d 33, 2006-Ohio-6365, ¶ 28, quoting State ex rel. Dann v. Taft, 109
Ohio St.3d 364, 2006-Ohio-1825, ¶ 20. Courts construe Ohio's Public Records Act liberally
in favor of broad access, with any doubt resolved in favor of disclosure of public records. Id.
{¶ 11} According to R.C. 149.43(B)(1),
Upon request and subject to division (B)(8) of this section, all public records responsive to the request shall be promptly prepared and made available for inspection to any person at all reasonable times during regular business hours. Subject to division (B)(8) of this section, upon request, a public office or person responsible for public records shall make copies of the requested public record available at cost and within a reasonable period of time.
{¶ 12} R.C. 149.43(C)(1) sets forth the proposition that an aggrieved party may pursue
a mandamus action and be entitled to statutory damages upon a public entity's failure to
provide public records in accordance with the statute. "[I]n general, providing the requested
records to the relator in a public-records mandamus case renders the mandamus claim
moot." State ex rel. Toledo Blade Co. v. Seneca Cty. Bd. of Commrs., 120 Ohio St.3d 372,
2008-Ohio-6253, ¶ 43. However, the production of requested documents does not,
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according to the Public Records Act, moot a claim for damages. State ex rel. Cincinnati
Enquirer v. Heath, 121 Ohio St.3d 165, 2009-Ohio-590, ¶ 18. Even so, a party is only
entitled to damages if the petitioner first demonstrates that the respondent failed to provide
the records in accordance with R.C. 149.43(B)(1). State ex rel. Patton v. Rhodes, 129 Ohio
St.3d 182, 2011-Ohio-3093, ¶ 21; R.C. 149.43(C)(1).
{¶ 13} A public records custodian has the burden to establish the applicability of an
exception to the Public Records Act, and courts strictly construe such exceptions against the
custodian. State ex rel Cincinnati Enquirer v. Jones-Kelley, 118 Ohio St.3d 81, 2008-Ohio-
1770. The exception claimed by the Highway Patrol is codified at R.C. 149.43(A)(1)(h),
which excludes "confidential law enforcement investigatory records" from the definition of
"public record." As pertinent to the current matter, R.C. 149.43(A)(2) defines a "confidential
law enforcement investigatory record" 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 any of the following:
***
(c) Specific confidential investigatory techniques or procedures or specific investigatory work product.
{¶ 14} The Ohio Supreme Court has established a two-part test to determine whether
a particular record is a confidential law enforcement investigatory record as anticipated within
the Public Records Act. "First, is the record a confidential law enforcement record? Second,
would release of the record 'create a high probability of disclosure' of any one of the four
kinds of information specified in R.C. 149.43(A)(2)?'" State ex rel. Musial v. N. Olmsted, 106
Ohio St.3d 459, 2005-Ohio-5521, ¶19, quoting State ex rel. Beacon Journal Publishing Co. v.
-5- Clermont CA2012-05-034
Maurer, 91 Ohio St.3d 54 (2001).1
{¶ 15} "The phrase 'law enforcement matter of a criminal, quasi-criminal, civil, or
administrative nature' refers directly to the enforcement of the law." State ex rel. Multimedia,
Inc. v. Snowden, 72 Ohio St.3d 141, 143 (1995). The statutory definition is met when the
records are compiled in order to investigate specific alleged misconduct of matters prohibited
by state law. State ex rel. Polovischak v. Mayfield, 50 Ohio St.3d 51 (1990).
{¶ 16} Specific investigatory work product consists of "any notes, working papers,
memoranda or similar materials, prepared by attorneys or law enforcement officials in
anticipation of litigation." State ex rel. Leonard v. White, 75 Ohio St.3d 516, 518 (1996). "To
be considered work product * * * a record must have been assembled in connection with an
actual pending or highly probable criminal prosecution." State ex rel. The Toledo Blade Co.,
v. Toledo, 6th Dist. Lucas No. L-12-1183, 2013-Ohio-3094, ¶ 12, citing State ex rel. Police
Officers for Equal Rights v. Lashutka, 72 Ohio St.3d 185 (1995). A criminal proceeding is
probable or highly probable "as long as it is clear that a crime has in fact been committed."
Leonard at 518.
{¶ 17} Specific investigatory work products, however, do not include "ongoing routine
offense and incident reports" because "incident reports initiate the criminal investigation; they
are not part of it." Beacon Journal, 91 Ohio St.3d at 57. For example, 911 recordings do not
constitute special investigatory work product because such calls are not prepared by
attorneys or other law enforcement officials, are routinely recorded without any specific
investigatory purpose in mind, and because the calls generally precede any forms or reports
completed by the police during their investigation. State ex rel. Cincinnati Enquirer v.
1. The only "kind of information" specified in R.C. 149.43(A)(2) that is applicable to the case at bar is subsection (c), whether there is a high probability of disclosing specific confidential investigatory techniques or procedures or specific investigatory work product. -6- Clermont CA2012-05-034
Hamilton Cty., 75 Ohio St.3d 374 (1996).
III. Withheld Records
{¶ 18} As previously stated, the Highway Patrol turned over several documents to fulfill
Miller's public records request. However, the Highway Patrol claimed that the statutory
exception permitted its nonproduction of (1) a portion of the video that documented the traffic
stop, detention, and arrest of Ruberg, and (2) the impaired driver report relating to Ruberg's
arrest.
{¶ 19} Therefore, in order for the Highway Patrol to demonstrate that the claimed
exception applies, it must establish that the withheld records pertain to a law enforcement
matter of criminal, quasi-criminal, civil, or administrative nature whose release would create a
high probability of disclosure of specific investigatory work product
A. Cruiser Cam Video
{¶ 20} Miller requested, but was denied, portions of a video recorded on Trooper
Westhoven's cruiser camera that documented the traffic stop, detention, and arrest of Ashley
Ruberg for OVI.
{¶ 21} Regarding the two-part test, the video satisfies the first prong because it is a
record that pertains to the enforcement of R.C. 4511.19, Ohio's statute that prohibits driving
under the influence of alcohol. The Highway Patrol has the authority to investigate and
enforce Ohio laws regarding the operation of vehicles on the highways, including laws that
prohibit OVI. R.C. 5503.02. The cruiser camera video recorded the investigation of a
specific alleged violation of Ohio law, rather than a routine monitoring investigation of all
motorists on the road the night Ruberg was arrested. In fact, the video was specifically
generated by Trooper Westhoven's investigation of Ruberg's alleged OVI, and the cruiser
camera recorded the investigation he performed given his suspicion that Ruberg was
violating Ohio law by driving under the influence of alcohol. Therefore, the video is a -7- Clermont CA2012-05-034
confidential law enforcement record.
{¶ 22} Regarding the second prong of the two-part test, the release of the video prior
to the completion of the criminal case against Ruberg would have created a high probability
of disclosure of a specific investigatory work product. Stated once more, specific
investigatory work product consists of information or materials assembled by law
enforcement officials in connection with a probable or pending criminal proceeding.
{¶ 23} The record is clear that the cruiser camera captured Trooper Westhoven's
investigation specific to whether Ruberg was driving under the influence of alcohol. The
investigation included Trooper Westhoven interacting with Ruberg, having her exit her
vehicle, and having her perform field sobriety tests. The video, therefore, revealed the
particular investigative techniques employed by Trooper Westhoven to assess whether
Ruberg was driving while intoxicated, and demonstrated from what source Trooper
Westhoven drew his conclusions that Ruberg had committed an OVI offense. See State ex
rel. Toledo Blade Co., 2013-Ohio-3094 (finding a map of gang activity was not investigatory
work product because nothing on the map reflected particular investigative techniques used
to gather information, and where the map itself did not reveal the source for information used
in the investigation of gang-related activity).
{¶ 24} The video captured Trooper Westhoven's specific assessment of whether he
had probable cause to arrest Ruberg for OVI. There is no doubt that the video depiction was
intended to be used by Trooper Westhoven to justify his probable cause determination, and
by the state to support the impending criminal case against Ruberg.
{¶ 25} Unlike a 911 call or an incident report, the cruiser camera recorded Trooper
Westhoven's pursuit of Ruberg for what he observed was a violation of Ohio's traffic laws.
Trooper Westhoven's investigation was not instituted by the requested video, but rather, was
created directly by Trooper Westhoven to preserve a crucial aspect of his investigation and -8- Clermont CA2012-05-034
information-gathering specific to a probable violation of Ohio law. The video constitutes
materials assembled by Trooper Westhoven in connection with his investigation of that
violation, and the video was recorded for its use in any future criminal proceeding against
Ruberg.
{¶ 26} As such, we find that the video recording taken by Trooper Westhoven's cruiser
camera constituted a confidential law enforcement investigatory record, made exempt from
production pursuant to the Ohio Public Records Act.
B. The Impaired Driver Report Relating to Ruberg's Arrest
{¶ 27} Miller also requested production of the impaired driver report that Trooper
Westhoven created specific to Ruberg's arrest.
{¶ 28} The impaired driver report satisfies the first prong of the confidential law
enforcement investigatory record test because it is a record that pertains to the enforcement
of an Ohio statute that prohibits driving under the influence of alcohol. Specifically, the form
chronicled the various reasons supporting Trooper Westhoven's conclusion that Ruberg was
driving under the influence at the time he performed the traffic stop. The details included on
the report included the results from the field sobriety tests, as well as the initial results of the
portable breath test, which indicated that Ruberg's level of intoxication exceeded the legal
limit. Therefore, the report fulfilled the statutory definition of a confidential law enforcement
record.
{¶ 29} Regarding the second prong, the record indicates that the release of the
impaired driver report prior to the completion of the criminal case against Ruberg would have
created a high probability of disclosure of a specific investigatory work product.
{¶ 30} The record is clear that the impaired driver report detailed Trooper Westhoven's
investigation specific to whether Ruberg was driving under the influence of alcohol. The
report includes Trooper Westhoven's recollection of the conditions and relevant -9- Clermont CA2012-05-034
circumstances on the night he arrested Ruberg, including that she smelled of an alcoholic
beverage. The report also details the results of the field sobriety tests administered by
Trooper Westhoven, including in what ways Ruberg's behavior and performance on the field
sobriety tests were indicative of her being under the influence. The impaired driver report
would certainly be used by the state in its attempt to demonstrate that Trooper Westhoven
had probable cause to arrest Ruberg for OVI, and by the state to support any impending
criminal case against her.
{¶ 31} Similar to the cruiser camera video, and unlike a 911 call or an incident report,
Trooper Westhoven did not complete the impaired driver report as a means to initiate the
investigation, but rather generated the report in an effort to record crucial details of his
investigation. The impaired driver report contained Trooper Westhoven's own observations,
conclusions, and interpretation of the circumstances on the night of the incident, rather than a
simple recordation of what a third party told him in order to initiate the investigation.
Accordingly, the impaired driver report constitutes materials assembled by Trooper
Westhoven in connection with his investigation of Ruberg's possible OVI.
{¶ 32} As such, we find that the impaired driver report constituted a confidential law
enforcement investigatory record, made exempt from production pursuant to the Ohio Public
Records Act.
IV. Conclusion
{¶ 33} In this case of first impression, we find that the cruiser camera video and
impaired driver report are excluded from the definition of public records because the Highway
Patrol has demonstrated that the records fall squarely within the statutory confidential law
enforcement investigatory record exception. This is especially true where neither of the
requested records initiated the criminal investigation but was instead created to record the
personal observations of Trooper Westhoven and his subjective experience of investigating - 10 - Clermont CA2012-05-034
the alleged OVI.
{¶ 34} In so holding, this court is aware that the Ohio Supreme Court made passing
reference to OVI records as not being work product in State ex rel. Steckman v. Jackson, 70
Ohio St.3d 420 (1994). Therein, the court defined "work product" by adopting the definition
set forth in Black's Law Dictionary, and stated that work product "does not include 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." Id.
at paragraph 5 of the syllabus. However, we do find this statement dispositive of Miller's
current public records request.
{¶ 35} The court's analysis in Steckman did not specifically address the issue of
whether OVI-related records were exempt from the "work product" exclusion. Rather, the
court's focus was on charges of aggravated murder, aggravated robbery, attempted murder,
and kidnapping. While the court made a reference to OVI-related records, it did not offer any
reasoning or analysis as to why records related to OVI investigations would be excluded from
the statutory definition of "work product."
{¶ 36} Steckman was decided in 1994. In the subsequent 20 years, police officers
have changed the way they investigate crimes, and technology has progressed in such a
manner that cruiser cameras and other advances have become commonplace in criminal
investigations. We are therefore presented with an opportunity, and in fact a directive from
the Ohio Supreme Court, to determine whether such records are public records under Ohio's
Public Records Act. Despite Steckman's passing reference to OVI records as not
constituting work product, we have performed the full analysis according to Ohio's Public
Records Act and relevant case law, and have determined that the two specific records in the
case at bar fall within the statutory exception.
{¶ 37} When this court, or any other, reviews the constitutionality of a traffic stop, we - 11 - Clermont CA2012-05-034
refer to the officer as making an investigatory stop. Such a classification is accurate because
before an officer can make a probable cause determination that fulfills constitutional
requirements, that officer must investigate, make observations, and reach certain
conclusions. Officers are then required to recollect every detail of their investigation, and
their recollection and testimony are challenged by the rigors of both direct and cross-
examination. Certainly, the records created during an investigation which document the
officer's suspicion of an offense, details discovered by the officer during the investigation,
and facts gathered during the officer's active investigation of the alleged crime remain
investigatory work product until the completion of the criminal proceedings.
{¶ 38} The cruiser camera video and the impaired driver report were both prepared by
and on behalf of law enforcement officials, with specific investigatory purposes in mind.
Unlike 911 calls or reports detailing other people's observations leading to the initiation of a
criminal investigation, the withheld records in the case sub judice document the criminal
investigation triggered by the trooper's own suspicion of a violation of Ohio law. Trooper
Westhoven, who is a trained member of law enforcement, collected, analyzed, and
investigated the facts and circumstances of the alleged OVI, and journalized his personal and
active investigation so that the information contained therein could be used in a future
criminal case against Ruberg. As such, these specific records are dissimilar to routine
incident/offense reports or 911 calls.
{¶ 39} Having found that the Highway Patrol properly refused production of the two
requests because of the confidential law enforcement investigatory record exception to the
Public Records Act, we find no violation of the statute. As such, Miller is not entitled to a writ
of mandamus, or statutory damages, court costs, or attorney fees.
HENDRICKSON, P.J., PIPER and M. POWELL, JJ., concur.
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