On June 14, 2016, the Ohio Supreme Court heard oral arguments in two public records cases, and its decision will impact all of Ohio’s law enforcement agencies. The court must decide whether dash cam videos from an officer’s cruiser and videos from an officer’s bodycam are public records, or whether they are confidential law enforcement investigatory records (“CLEIRS”) exempted from the definition of “public record” under Ohio’s public records law, Ohio Rev. Code 149.43.

Records that fall under the CLEIRs exception are excluded from the definition of the term “public records” and as such, public entities are not required to release records that fall within the exception. In order to fall within the exception, records must (1) pertain to a law enforcement matter that is criminal, quasi-criminal, civil or administrative in nature, and (2) if released, create a high probability of disclosing certain types of information, including the identity of an uncharged suspect or a source/witness that was promised confidentiality, investigatory work product, or information that would endanger the life or safety of law enforcement personnel, a witness, a victim, or a confidential source.

Bodycam Videos

In State ex rel. Cincinnati Enquirer v. Deters, the court must decide whether videos from police bodycams fall within the CLEIRs exception. The case involves video from a University of Cincinnati police officer’s bodycam after he shot and killed a motorist during a traffic stop. The day following the shooting, media outlets requested the bodycam video and those requests were denied. The prosecutor had instructed the police departments not to release the video until the prosecutor’s office presented the case to a grand jury, voicing concerns that the video’s release would jeopardize the officer’s Sixth Amendment right to a fair trial. The prosecutor maintained the video fell within the CLEIRs exception.

Media outlets filed a writ of mandamus with the Ohio Supreme Court asking the Court to compel the prosecutor to release the bodycam video from the stop. Two days after the writ was filed, the prosecutor released the bodycam video following the officer’s indictment.

The media argues bodycam videos are akin to incident reports, which are considered public records, because the video initiates the investigation. The prosecutor argues the bodycam videos fall within the CLEIRs exception because, unlike incident reports, videos help assist a police officer to investigate a crime, and are the first step in an investigation.

Dash cam Videos

The second case, State ex rel. Cincinnati Enquirer v. Ohio Dept. of Public Safety, asks the Court to consider whether dash cam videos from a police officer’s cruiser fall within the CLEIRs exception. There, the Cincinnati Enquirer made a public records request to the Ohio Highway Patrol, asking, among other things, for dash cam video from a Highway Patrol officer’s cruiser following a high speed chase. The fleeing suspect was charged with multiple offenses related to the chase. The prosecutor asked the Highway Patrol not to release the video, citing CLEIRs, so the request was denied.

The Enquirer filed a writ of mandamus with the Ohio Supreme Court about two weeks after the suspect’s indictment, asking the Court to compel the Highway Patrol to release the dash cam video. Like in Deters, the Enquirer argues the dash cam video is not an investigative record because it starts the criminal investigation, also like an incident report, and therefore does not fall within CLEIRs. Conversely, the state argues the videos are investigatory records because the video is activated after an officer determines he or she has reasonable suspicion/probable cause to believe a crime is committed. It asserts that unlike incident reports, the dash cam videos show an officer’s investigative activities in real time. The state also urges the Court to continue to look at each request on a case by case basis.

Takeaways

The Ohio Supreme Court’s decisions in both cases will impact all law enforcement agencies and their public records policies. Public employers should be sure to make it clear in their public records policies that videos taken while on duty, law enforcement or not, may be considered public records that are subject to disclosure. Public employers should also make sure to review their public records policies for compliance with recent caselaw interpreting Ohio’s Sunshine Laws. For any questions regarding these court cases and their potential impact on your agency, please contact one of FHKA’s attorneys.