By Dennis Hetzel, Executive Director
I am particularly troubled by a recent ruling by the 12th District Court of Appeals in Clermont County in which the court said dashcam recordings initiated by police officers aren’t public records.
As is often the case in Ohio open government cases, we have judges who write stirring reminders somewhere in the first few pages that our statutes require the courts to liberally interpret the law in favor of broad access.
Then the judges get to the details of the case before them. Uh, never mind. If only the courts ruled more often in ways to match those words.
If this decision stands, and you can count on police agencies across the state seizing on it, the court has sharply reduced public access to a modern-age record that documents the activities of law enforcement. Once again, the courts are allowing the police to determine what the public gets to know and when it gets to know it.
Irony alert: Consider that the Ohio State Highway Patrol features dashcam videos on its own YouTube channel, as in this example.
We can surmise that the OSHP is choosing videos for YouTube that place them in a positive light or have an instructive purpose.
That’s fine, but wouldn’t you think this undermines the argument that these videos are such key parts of investigations that they should shielded under that exception to Ohio’s public records law? Are we really seeing “secret” police methods here?
Give me a break. And note that the office of Ohio Attorney General Mike DeWine — an office generally supportive of transparency — supported the Patrol’s absolutist position in this case.
We would argue that these routine videos, which are operated every time or almost every time an officer pulls someone over, are akin to incident reports and 911 calls, which are open under Ohio law. It is simply a factual recording of what happened. In some rare circumstances, perhaps there would be a need to edit a portion of a dashcam video, but the blanket exemption this court has “discovered” for police dashcam videos is not in the public interest.
Cincinnati attorney Jack Greiner, an open records expert, also points out that, even if you accept the argument that a dashcam video might fit the confidential investigative exception, the courts have said there is a specific test that should apply before something is exempt. The court seemed to pay scant attention to this requirement.
A comment from Jack: “It doesn’t identify an uncharged suspect, it doesn’t identify a confidential source, disclosure doesn’t put anyone’s life in danger and it doesn’t disclose any investigatory techniques. If it does, why does the HP put the videos up on their YouTube channel? (Click here for Jack’s excellent blog post on this case.)
There is another aspect to the case that is less novel but no less troubling. The Court also decided that the officer’s “impaired driver report” met the exemption standards for confidential investigatory records. This detailed the officer’s investigation of the driver’s record and the investigator’s analysis and interpretations.
At a minimum, the report should have been released in redacted form, making factual information that the officer compiled available. This would have been consistent with many court rulings that redaction is preferred to outright denial whenever possible. Instead, this court has carved out another broad exemption that also will ripple into other cases and increase secrecy.
I found more irony in the court’s reference to the 1994 case, Steckman v. Jackson, in the opinion. This case is being used repeatedly by police agencies across Ohio to block public access to investigative records even after cases have been closed. Innocent people are quite likely sitting in Ohio’s prisons because of the willingness of Ohio courts and government lawyers to support governmental secrecy in these cases.
This is not a media case. It became a technical dispute between COAST, a taxpayer group in the Cincinnati area, and the Highway Patrol for access to the records. The appeal actually involved COAST’s efforts to recover attorney fees and costs based on the denial of the records, which eventually were released after the case was concluded. It was in the course of the ruling that the appeals court determined these items were not open records.
At this writing, we don’t know if COAST will appeal. If they do, ONA’s sunshine law expert, attorney Dave Marburger, believes it will be important to support them. I agree and urge editorial writers among our members to take a look at this case.