4. Investigatory records.

Investigatory records may be exempt as a confidential law enforcement investigatory record.  Ohio Rev. Code §§ 149.43(A)(1) - (2). The statute creates a two-prong test to determine whether a record is a confidential law enforcement investigatory record:

First, the record must "pertain[] to a law enforcement matter of a criminal, quasi-criminal, civil, or administrative nature." Ohio Rev. Code § 149.43(A)(2). The court has held that initial offense incident reports are not confidential law enforcement investigatory records. State ex rel. Beacon Journal Publishing Co. v. Maurer, 91 Ohio St. 3d 54, 741 N.E.2d 511 (2001).

The exemption does not apply to investigations of prospective employees to determine whether to hire them, or to internal investigations to determine whether to discipline an employee, as neither qualifies as trying to enforce a law. State ex rel. Multimedia v. Snowden, 72 Ohio St. 3d 141, 647 N.E.2d 1374 (1995); State ex rel. Police Officers For Equal Rights v. Lashutka, 72 Ohio St. 3d 185, 648 N.E.2d 808 (1995); State ex rel. Freedom Communications v. Elida Community Fire Company, 82 Ohio St. 3d 578, 697 N.E.2d 210 (1998) (investigation of alleged sexual assault conducted internally as personnel matter is not law enforcement matter); State ex rel. Lorain Journal Co. v. City of Lorain, 87 Ohio App. 3d 112, 621 N.E.2d 894 (1993) (results of polygraph tests given to prospective employee).

Records of a law enforcement nature do not qualify as exempt when in the custody of a public office that does not have the authority to conduct law enforcement investigations. State ex rel. Strothers v. Wertheim, 80 Ohio St.3d 155, 684 N.E.2d (1997) (records of alleged child abuse do not pertain to a law enforcement matter when the records are in the custody of county ombudsman office that has no law enforcement authority).

Second, such records are exempt "only to the extent that the release of the record would create a high probability of disclosure of any of the following":

(1) The identity of a suspect who has not been charged with the offense to which the record pertains. Ohio Rev. Code § 149.43(A)(2)(a). The Ohio Supreme Court has interpreted "charged" to include arrested, thus ensuring that arrest records are available to the public even though the arrestee has not been arraigned or otherwise formally charged with unlawful conduct. State ex rel. Outlet Communications Inc. v. Lancaster Police Dept., 38 Ohio St. 3d 324, 528 N.E.2d 175 (1988); State ex rel. Moreland v. City of Dayton, 67 Ohio St. 3d 129, 616 N.E.2d 234 (1993).

That the police have labeled an investigation "inactive" so that the person in question is not currently a suspect is irrelevant; the exemption still applies. State ex rel. Moreland v. City of Dayton, 67 Ohio St. 3d 129, 616 N.E.2d 234 (1993); see State ex rel. Ohio Patrolmen's Benevolent Association v. City of Mentor, 89 Ohio St. 3d 440, 732 N.E.2d 969 (2000) ("[T]he absence of pending or highly probable criminal charges is not fatal to the applicability of the uncharged-suspect exemption"); State ex rel. Musial v. North Olmsted, 106 Ohio St. 3d 459, 835 N.E.2d 1243 (2005) (rejecting argument that exemption does not apply when a grand jury declines to indict and charges are unlikely).

A "suspect" is a person who is a subject of investigation, but who has not been arrested, has not received a citation, and has not been indicted or named as a defendant in a criminal complaint. State ex rel. Polovischak v. Mayfield, 50 Ohio St. 3d 51, 552 N.E.2d 635 (1990).

A suspect's identity may be "confidential" and thus redacted even though press coverage has previously identified the individual as a suspect. State ex rel. WLWT v. Leis, 77 Ohio St.3d 357, 673 N.E.2d 1365 (1997); State ex rel. Master v. City of Cleveland, 76 Ohio St. 3d 340, 667 N.E.2d 974 (1996).

Because initial offense incident reports are public records, a narrative attached to an incident report must be disclosed without redaction even though it contains the name of an uncharged suspect. State ex rel. Beacon Journal Publishing Co. v. Maurer, 91 Ohio St.3d 54, 741 N.E.2d 511 (2001).

(2) The identity of an information source or witness to whom confidentiality has been reasonably promised. Ohio Rev. Code § 149.43(A)(2)(a).

The exemption applies even where police did not put a promise of confidentiality in writing. State ex rel. Martin v. City of Cleveland, 67 Ohio St. 3d 155, 616 N.E.2d 886 (1993).

Before a promise of confidentiality can be reasonable, it must be made on the basis of an individualized determination by the official that the promise is necessary to obtain the information. State ex rel. Toledo Blade Co. v. Telb, 50 Ohio Misc. 2d 1, 552 N.E.2d 243 (1990).

The exemption does not apply to employees to whom officials promised confidentiality to obtain information for use in deciding whether to promote or give tenure to another employee. State ex rel. James v. Ohio State Univ., 70 Ohio St. 3d 168, 637 N.E.2d 911 (1994).  But see State ex rel. Carr v. Akron, 112 Ohio St.3d 351, 859 N.E.2d 948 (2006) (names, ranks, addresses, and telephone numbers of firefighters who acted as assessors of the oral portion of a promotional exam were exempt as residential and familial information under Ohio Rev. Code §§ 149.43 (A)(1)(p), (A)(7)).

The exemption does apply to employees promised confidentiality during the course of an internal investigation of sexual harassment by another employee. State ex rel. Yant v. Conrad, 74 Ohio St. 3d 681, 660 N.E.2d 1211 (1996).

(3) Information provided by an information source or witness to whom confidentiality has been reasonably promised whereby the information, if disclosed would lead to the identity of the source or witness. Ohio Rev. Code § 149.43(A)(2)(b).

(4) Specific investigatory techniques or procedures. Ohio Rev. Code § 149.43 (A)(2)(c).

Routine investigatory procedures do not qualify under this exemption. State ex rel. Beacon Journal Pub. Co. v. Univ. of Akron, 64 Ohio St. 2d 392, 415 N.E.2d 310 (1980).

(5) Specific investigatory work product. Ohio Rev. Code § 149.43(A)(2)(c).

Information assembled by law enforcement officials in the course of investigating an actual or probable crime. State ex rel. Steckman v. Jackson, 70 Ohio St. 3d 420, 639 N.E.2d 83 (1994).

A crime is "probable" at least where it is clear that a crime has been committed, even though police have not yet identified a suspect. State ex rel. Leonard v. White, 75 Ohio St. 3d 516, 664 N.E.2d 527 (1996). Information gathered during an investigation does not constitute work product when it is not clear that a crime has occurred, because the records are then compiled by law enforcement officials in part to determine if any crime has occurred. State ex rel. Ohio Patrolmen's Benevolent Association v. City of Mentor, 89 Ohio St. 3d 440, 732 N.E.2d 969 (2000).

The exemption applies regardless of whether the police investigation is open or closed, or whether authorities have decided not to file charges. State ex rel. Thompson Newspapers Inc. v. Martin, 47 Ohio St. 3d 28, 546 N.E.2d 939 (1989); State ex rel. Polovischak v. Mayfield, 50 Ohio St. 3d 51, 552 N.E.2d 635 (1990); State ex rel. Ohio Patrolmen's Benevolent Association v. City of Mentor, 89 Ohio St. 3d 440, 732 N.E.2d 969 (2000) (finding that Ohio Rev. Code § 149.43 does not contain an "ongoing investigation" exemption for public records).

The exemption does not apply 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." State ex rel. Steckman v. Jackson, 70 Ohio St. 3d 420, 639 N.E.2d 83 (1994).

Records that are public records upon receipt or creation by a public office are not transformed into confidential investigatory work product solely by virtue of the fact that they contain evidence of a crime. State ex rel. Cincinnati Enquirer v. Hamilton County, 75 Ohio St.3d 374, 662 N.E.2d 334 (1996) (911 tape with confession of homicide is public record).

Records that are unquestionably nonexempt, e.g., newspaper articles, contracts and campaign contributions, do not become exempt simply because they are the subject of grand jury subpoenas. State ex rel. Gannett Satellite Network Inc. v. Petro, 80 Ohio St. 3d 261, 685 N.E.2d 1223 (1997).

(6) Information that would endanger the life or physical safety of law enforcement personnel, a crime victim, a witness or a confidential information source. Ohio Rev. Code § 149.43(A)(2)(d).

The proponent of this exemption must show that "disclosure of the records will really pose a risk." State ex rel. Lippitt v. Kovacic, 70 Ohio App. 3d 525, 591 N.E.2d 422 (Cuya. App. 1991)

Although the Ohio Supreme Court has not found that this exemption covers the home addresses of police officers, the court has ruled that the federal constitutional right of privacy bars disclosure of that information because of the potential safety threat that such information poses if the addresses are available to criminals. The federal court of appeals for the Sixth Circuit has ruled likewise. Compare State ex rel. Keller v. Cox, 85 Ohio St.3d 279, 707 N.E.2d 931 (1999) with Kallstrom v. City of Columbus, 136 F.3d 1055 (1998).