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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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To Carry or Not to Carry: Open Carry Law in Ohio

By: Kyle B. Melling, Esq.

Openly Carrying Firearms in Ohio

Recently gun enthusiasts petitioned the Republican Party to allow attendees to carry firearms at this summer’s Republican National Convention. The Secret Service quickly rejected this request citing Title 18 USC §§ 3056 and 1752, which provides the Secret Service with the authority to preclude firearms from entering sites visited by their protectees, including those located in open-carry states.  While gun owners won’t be able to open carry at the RNC, many law enforcement personnel and private citizens find themselves at a loss when determining the specific laws regarding openly carried firearms in the state of Ohio.

Ohio is an “Open Carry” state and protects the right to bear arms under Article I, Section 4 of the state constitution.  This means that anyone who can legally possess a firearm can carry one, in the open, without a license, with some exceptions.

Who Cannot Open Carry in Ohio?

Only individuals who can legally possess firearms in Ohio can open carry.  Individuals who are not legally allowed to possess firearms include those who are fugitives from justice, those who are under indictment for or have been convicted of a felony, those who are drug dependent or intoxicated, and those who are mentally incompetent.

Where Can Individuals Open Carry in Ohio?

While Ohio generally allows its citizens to open carry fire arms, there are limitations to the locations in which citizens may open carry.  Ohio generally prohibits persons from openly carrying in liquor-serving establishments, within school zones, and within court houses.  Further, private business owners may prohibit any firearms from being brought into their establishments by posting a notice in a conspicuous location.  Finally, absent a Conceal and Carry License, Ohioans may not open carry loaded firearms in any type of vehicle.

Can Police Officers’ Stop and Detain Individuals who are Openly Carrying a Firearm?

The Fourth Amendment requires that in order for a police officer to detain a citizen to conduct an investigation he must have reasonably articulable suspicion that criminal activity is afoot. Terry v. Ohio, 392 U.S. 1. (1968). Recently the Sixth Circuit held that in Open Carry states, such as Ohio, the presence of an openly carried firearm alone is not enough to permit a police officer to detain and disarm the carrier.  See Northrup v. City of Toledo Police Dept., 785 F.3d 1128 (6th Cir. 2015).  The Court went on to clarify that this general rule only applies first when the Officer has no reasonable suspicion of any possible criminal activity, and second, when the firearm does not on its face appear to be an illicit firearm, such as an assault rifle, or other automatic weapon.  As such, in Ohio, police officers may not detain individuals who are otherwise behaving lawfully, who are openly carrying a firearm.


For questions or more information on the topic of this blog post, please contact:

Kyle B. Melling – MRR Cleveland
Phone: 440.287.8295
Fax: 440.248.8861
Email: kmelling@mrrlaw.com