Ohio Court Rules Cause and Origin Report is a Public Record But Subject to Redaction

The Ohio Court of Appeals has ruled that the state fire marshal should have release a redacted version of an investigative report into the cause and origin of a fire that killed a firefighter in 2015 to The Cincinnati Enquirer in December 2016.

Hamilton firefighter Patrick Wolterman died fighting a house fire fire on December 28, 2015. The State Fire Marshal investigated the origin and cause of the fire, and ultimately the homeowner and his nephew were found guilty of aggravated arson and murder.

Prior to the arsonists being indicted in January, 2016, The Cincinnati Enquirer sought a copy of the state fire marshal’s report through a public records request. The fire marshal refused citing the ongoing investigation. The Enquirer filed an action in the Supreme Court of Ohio seeking a writ ordering disclosure of the report, but the court sided with the fire marshal.

In December, 2016, The Enquirer again sought a copy of the report. Despite the fact the men had already been indicted, the fire marshal again refused to release the report. The Enquirer then filed a second suit to obtain a copy. The case was referred to a magistrate for a determination. Thereafter the two men were tried and found guilty. Once the trail was over, the state fire marshal released an unredacted copy of the report to The Enquirer.

An initial matter for the court to determine was whether The Enquirer’s suit was now moot, given that it had already received the report which it sought. Writing for the court, Judge Jennifer L. Brunner said:

  • Generally, “‘providing the requested records to the relator in a public-records mandamus case renders the mandamus claim moot.'”
  • However, “a claim ‘is not moot if it is capable of repetition, yet evading review.'”
  • This exception to the mootness doctrine: [A]pplies only in exceptional circumstances in which the following two factors are both present: (1) the challenged action is too short in its duration to be fully litigated before its cessation or expiration, and (2) there is a reasonable expectation that the same complaining party will be subject to the same action again.
  • As we see it, both factors are present in this case.
  • The fire marshal provided the records after the Cincinnati Enquirer filed its mandamus action. The fire marshal argued that the conclusion of the criminal trials allowed for the release of the records.
  • While the conclusion of the criminal proceedings and the release of the records truncated the Cincinnati Enquirer’s ability to fully litigate its mandamus claim, we recognize that the Cincinnati Enquirer and other media outlets are likely to request future fire marshal’s incident reports in other cases and that the fire marshal will continue to withhold them for the reasons argued in this and other litigation.
  • We thus conclude that the Cincinnati Enquirer’s claim is not moot.

In addressing the merits of the case, the court considered the findings of the magistrate, who  magistrate concluded that the fire marshal should have released the report in response to the Cincinnati Enquirer’s public records request albeit with redactions. The court upheld most of the magistrates’ decision including the fact that a redacted version of the report should have been released, but extended the fire marshal’s right to redact certain parts of the report.

  • The incident report at issue is a five-page report consisting of two pages that are formatted with fill-in-the-blanks, one page is narrative background information and two pages are for narrative including “Origin Analysis” and “Cause Determination.”
  • The magistrate determined that the narrative under the heading “Cause Determination” contains the investigator’s conclusions and certain additional information regarding the source and origin of the fire.
  • This section is investigatory work product whose value would be lost if it was prematurely disclosed.
  • Thus, the magistrate concluded that the narrative section “Cause Determination” may be redacted from the incident report but the remainder of the incident report should have been released.
  • The narrative under the heading “Cause Determination” “is clearly investigatory work product whose value to investigators will be lost if it is prematurely disclosed.”
  • The fire marshal argues that five matters from the background information related to the incident report would cause the report to lose its investigative value if they were disclosed.
  • These items include information that the alarm was activated and the information related to the alarm, including forced entry and the interior motion alarm activation; that samples were sent to the forensic lab for analysis; that the house was unoccupied and the doors secured, other than the exterior basement access; the description of the interior and exterior and the damage, including the missing lock and that the broken cellar hatchway metal hasp was forced; and descriptions of locations that samples to be analyzed were taken.
  • The magistrate decided that the “Cause Determination” section should be redacted before disclosure because that section contains the investigator’s conclusions and information regarding the source and origin of the fire.
  • However, the “Origin Analysis” also contains the information.
  • It clearly described why certain areas were eliminated as the origin of the fire and also described the origin of the fire.
  • The “Origin Analysis” also explains the investigator’s conclusions.
  • Because we agree with the magistrate’s conclusions regarding information on the source and origin of the fire, we hold that the “Origin Analysis” portion of the incident report also must be redacted.
  • We hold that the remaining items in the incident report do not include investigatory analysis to warrant redaction.

Here is a copy of the decision:

About Curt Varone

Curt Varone has over 45 years of fire service experience and 35 as a practicing attorney licensed in both Rhode Island and Maine. His background includes 29 years as a career firefighter in Providence (retiring as a Deputy Assistant Chief), as well as volunteer and paid on call experience. He is the author of two books: Legal Considerations for Fire and Emergency Services, (2006, 2nd ed. 2011, 3rd ed. 2014, 4th ed. 2022) and Fire Officer's Legal Handbook (2007), and is a contributing editor for Firehouse Magazine writing the Fire Law column.

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