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While the Michigan Legislature mulls the issue of proposed restrictions on media access to Garrity statements, an Ohio case has spotlighted the relationship between public records law, internal affairs files and the Garrity Rule. Here's the chronology: In March of 1998, the city of Mentor, Ohio, initiated an internal affairs investigation to determine whether police officers had participated in an arm-burning initiation ritual. Such incidents had originated in the 1980's and had continued until that time. Mentor officers who had completed their probationary periods engaged in "tough man" competition, usually with a lieutenant. This consisted of placing a lit cigarette or cigar between the forearm of an officer and the lieutenant's forearm and holding it in that manner until one of the the men pulled away. The incidents, which resulted in burning and scarring, occurred in bars or restaurants when the participants were off duty and not in uniform. In April of 1998, the police detective who conducted the investigation sent a report to the police chief which concluded that there appeared to be no criminal law violations. However, the findings included a recommendation that administrative disciplinary charges be brought against 19 police officers and another city employee for their roles in such practices. The chief nevertheless continued the investigation, citing the nature of the acts involved, potential liability of the city and his desire to protect the image of the city and its police force. After receiving a supplemental investigative report, he forwarded the file to the county prosecutor's office for determination of whether any criminal charges should be brought. In May and July of 1999, an officer requested that the city provide him with access to the investigation records. He was refused. Meanwhile, the prosecutor's office decided against issuing any charges. However, the chief had ordered yet another investigation - this one based on a complaint filed against a number of Mentor officers in relation to the hazing incidents. A second officer requested access to these investigative records and he, too, was denied. In August of 1999, the Ohio Police Benevolent Association and the two officers who had requested records filed a mandamus lawsuit seeking to force the city to turn over the requested documents. After a settlement conference, the city furnished copies of the full internal affairs file on the arm-burning ritual, but continued to withhold material pertaining to the investigation of the officers against whom a complaint had been filed. The ensuing dispute went to the Ohio Supreme Court, which recently issued a multifaceted opinion. It began by pointing to the basic principle that "public employee personnel records, including records of police officers reflecting discipline, are generally regarded as public records, absent proof of an exemption." The court found that a work-product exemption did not apply to the investigative records in questions because"no criminal proceeding resulting from (that) investigation was either pending or highly probable." The association argued that an exemption regarding the identities of "uncharged suspects" should not apply because of the City's use of Garrity warnings. It contended that the issuance of Garrity warnings meant the officers interviewed in the investigation could never be criminally charged, thus the "uncharged suspects" exemption should not apply. The high court rejected this argument, ruling that "Garrity precludes the use, in subsequent criminal proceedings...only of evidence obtained as a result of an employee's interrogation and does not prevent the use of other investigator evidence or another employee's interrogation statements in a subsequent criminal proceeding." |
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