The Ohio Supreme Court ruled yesterday that law enforcement does not have an absolute privilege from disclosing information from its investigations when a civil litigant requests it through discovery. The case before the Court arose in Cuyahoga County, when law enforcement investigated Internet sweepstakes cafes owned by J & C Marketing, LLC and other companies to determine if they were engaged in illegal gambling. The prosecutor's office indicted several companies who had used a certain software program, which they alleged had concealed the gambling.
J & C did not use that program and was not indicted, but the prosecutor's office issued a cease and desist letter to the company, threatening criminal prosecution if it did not stop running the sweepstakes. J & C filed for relief and sought information from law enforcement's investigation through discovery. After in camera review, the trial court ordered the prosecutor to disclose some of the investigatory materials. The prosecutor's office appealed and the Eighth District found that they were still required to produce some materials, but could redact the names of some of the undercover officers.
The prosecutor appealed to the Ohio Supreme Court, claiming that all materials related to a criminal investigation by law enforcement were protected by absolute privilege, and they should not have been required to disclose any of them. The Ohio Supreme Court disagreed with this and found that a balancing of interests is required when determining what must be disclosed.
The Court held that there is law enforcement investigatory privilege that protects things like “confidential sources, surveillance information, and law-enforcement techniques and procedures.” This is not an absolute privilege, however, and courts must use a balancing test to determine whether it applies. A court must weigh the “fundamental requirements of fairness” involved in providing the other party access to information that is relevant to his or her case against the public interest of confidential investigations.
In this case the Court noted that both parties had significant interests at stake. The government had the interests of safeguarding informants, protecting “the integrity of (the) investigative process,” and “protecting against nuisance lawsuits,” that a party might bring solely to get this information. J & C Marketing also had a significant interest, however, as it was forced to shut down its business even though no criminal charges had been filed, and it had no information about the evidence against it. The Court found that the 8th District had appropriately applied a test balancing these interests and affirmed its ruling.
Justice Kennedy wrote the opinion for the Court and was joined by Justices O'Connor, Pfeifer, Lanzinger, French and O'Neill. Justice O'Donnell dissented. For more information about this case, see this article from Court News Ohio and the online docket, here.