Internal Investigation Notes May Now Be Public Record

By Tami Hannon

Most public agencies understand that their records are public. But what about those records created by private individuals hired by a public agency?  Specifically, what about notes taken by a private individual while conducting an investigation on behalf of the agency?  A recent decision issued by the Ohio Court of Claims indicates that yes, those records are also public record.

In Hurt v. Liberty Township, the Board of Township Trustees hired an outside private attorney to investigate possible wrongdoing by the fire chief. The attorney conducted numerous interviews during which he took notes. He later used those notes to prepare a report to the trustees, though the notes themselves were never given to the township. The investigation revealed potential wrongdoing and the attorney was instructed to prepare the statutorily required charges against the fire chief. Prior to the removal hearing, the fire chief’s attorney subpoenaed the investigator’s notes. A copy of those notes were provided at the hearing for his review.

Later, two individuals made a public records request for several items, including the attorney’s notes. The township and the attorney refused to provide the notes on the basis that they were not township records as they had been created and maintained by the private attorney. The requestors used a new provision in R.C. §2743.75 to file a claim with the Ohio Court of Claims alleging an improper denial of public records. That court recently ruled that the notes are, in fact, public records subject to disclosure.

The court relied on several factors in reaching that conclusion. First, the court found that the private attorney had been retained to perform a function statutorily delegated to the township, specifically investigating potential wrongdoing by the fire chief. The notes documented the performance of that function. Second, the notes were used to prepare the report (a public record) but did not appear to have been substantially duplicated in the report. As information was contained in the notes that was not contained in the report, the court found that the notes were a separate record and not a duplicate of the report or a transient record used to assist in preparing the report. Finally, the court found that the fact that the township did not have possession of the records was immaterial as the attorney had carried out an official function, the township had monitored his performance and the investigation and the township could have access to those records.

Historically, personal notes have always been a grey area. Some courts have found that the notes are not public record if they are merely kept to help the individual recall something and are not shared with others. Notes taken that are later incorporated into a report and discarded have also historically not been public record. The issue was less clear when notes were shared with others and relied upon by them, or when the notes had some value apart from the report itself, such as when the entirety of the notes were not incorporated into the report.

In Hurt, the court held that the notes from the interviews during the internal investigation were not merely kept for personal convenience or discarded once the report had been written. Rather, the court found that the notes had a separate value given that they were retained and provided to the other attorney during the pre-disciplinary process which indicated that they contained information not otherwise incorporated into the written report. As such, the court held the notes left the realm of personal records and became public records.

In Hurt, a specific statute required the township to conduct an investigation and authorized the hiring of a private individual to conduct that investigation. The obligations in that statute built the foundation for several of the court’s findings. While the issue before the court was limited to that specific statute, it opens the door for notes made during any statutory investigation to be public records. The issue is less clear in cases of general workplace misconduct or harassment, as best practices and risk management require an investigation but the statutes do not. The lack of a statutory obligation may offer some protection to those investigations. Until the law becomes more developed, investigatory notes and interviews may be public record, even when the investigation is performed by an outside third party.

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