On June 14, 2016, the Supreme Court of Ohio heard oral argument in the case of State ex rel. Cincinnati Enquirer v. Deters. At issue in this original action in mandamus is whether a prosecutor’s office must release police officer bodycam footage to the public immediately upon request in order to comply with the Ohio Public Records Act. Since the blog did not formally preview this case (Professor Emerita was on vacation) we won’t do our usual full work-up of analyzing the justices’ questions. But my student contributors and I all watched the argument and offer our impressions of it.

Case Background

On July 19, 2015, Officer Ray Tensing of the University of Cincinnati Police Department (UCPD) pulled over Samuel Dubose for having a missing front license plate. Tensing was outfitted with a body camera (bodycam), and per department policy, began recording the traffic stop. Soon thereafter, Tensing shot and killed Dubose. The bodycam recorded the entire incident. The Cincinnati police (CPD) arrived on the scene to investigate. Later that evening, assistant Hamilton County prosecutor Mark Piepmeier appeared at the scene and asked the investigating officers not to release the bodycam until after the case was presented to the grand jury.

Over the course of the next few days, the relators in this case—media outlets including television and print media—made public records requests for the bodycam video.  WLWT, AP, and WKRC made their requests to the prosecutor’s office. The Enquirer, WCPO, and WXIX, made their requests to UC, CPD, or both, but not to the prosecutor’s office.

The prosecutor’s office received the bodycam video on July 21, 2015. The next day Hamilton County Prosecutor Joe Deters issued a statement to the media indicating that the video would not be immediately released, asserting the confidential law enforcement investigatory record exception (CLEIR) to the Public Records Act.

On July 27, 2015, the relators filed a mandamus action against Deters to compel the release of the video. Two days later, on July 29, the grand jury returned an indictment for murder and voluntary manslaughter against Tensing. During the subsequent press conference, Deters released the bodycam video to the relators and to the public.

Timeline of Events

This timeline may be useful in understanding the case.

July 19, 2015

• Officer Tensing shot Samuel Dubose. Incident is recorded by bodycam worn by Tensing.
• Assistant Hamilton County Prosecutor Mark Piepmeier requested that CPD and UCPD delay release of the bodycam.
• Incident report released around midnight.

July 20, 2015

• A reporter for WLWT requested the bodycam footage from Chief Assistant Prosecutor and the prosecutor’s Public Information Officer Julie Wilson via a telephone call. At this point the Prosecutor’s Office did not yet have the tape.
• Cincinnati Enquirer made requests to both CPD and UCPD.

July 21, 2015

• WCPO requested the bodycam video from the CPD.
• The HCPO came into physical possession of the bodycam video.

July 22, 2015

• WXIX requested a copy of the video from the University of Cincinnati Office of General Counsel.
• The HCPO released a statement to the media indicating that the bodycam video would not be released because the release would jeopardize a possible future fair trial, and fell under the CLEIR (confidential law enforcement investigatory record) exception to the Ohio Public Records Act.

July 23, 2015

• Associated Press requested the bodycam video from the HCPO (the first request after the Prosecutor’s Office came into possession of the video).
• The HCPO (Julie Wilson) responded directly to the Associated Press employee stating that the HCPO stood by its previous statement to the media.
• Julie Wilson released another statement to the media – citing common sense/protecting the grand jury process. Indicated that video would be released “at some point.”

July 24, 2015

• The assistant manager at WKRC sent a request to the HCPO
• Julie Wilson replied to WKRC denying the request (standing by previous statements)

July 27, 2015

• The Enquirer, WCPO, Associated Press, WXIX, WLWT, and WKRC sought a writ of mandamus against Deters for the release of the video.

July 29, 2015

• Grand Jury returned an indictment against Officer Tensing
• In a post-indictment press conference, Deters released the video to the public and to the media (including all the relators in this case)

Key Statutes and Precedent

R.C. 149.43 (The Ohio Public Record Act)

R.C. 149.43(A)(1) (lists records that are exempt from disclosure)

(g) exempts trial preparation records

(h) exempts confidential law enforcement investigatory records

(A)(2) (“Confidential law enforcement investigatory record (CLEIR) exception means any record that pertains to a law enforcement matter of a criminal, quasi-criminal, civil, or administrative nature, but only to the extent that the release of the record would create a high probability of disclosure of any of the following: (a)The identity of a suspect who has not been charged with the offense to which the record pertains, or of an information source or witness to whom confidentiality has been reasonably promised. (c) Specific confidential investigatory techniques or procedures or specific investigatory work product”)

(A)(4) (defines trial preparation exception)

R.C. 149.43(B)(1) (“Upon request . . . all public records responsive to the request shall be promptly prepared and made available for inspection to any person at all reasonable times during regular business hours . . . upon request, a public office or person responsible for public records shall make copies of the requested public record available at cost and within a reasonable period of time. If a public record contains information that is exempt from the duty to permit public inspection or to copy the public record, the public office or the person responsible for the public record shall make available all of the information within the public record that is not exempt.”)

R.C. 149.43(C)(2)(c) (Court costs and reasonable attorney’s fees are remedial, not punitive. The court may reduce or not award attorney’s fees to the relator if (1) “a well-informed public office or person responsible for the requested public records reasonably would believe that the conduct or threatened conduct of the public office or person responsible for the requested public records did not constitute a failure to comply with . . . this section,” and (2) “a well-informed public office or person responsible for the requested public records reasonably would believe that the conduct . . . would serve the public policy that underlies the authority that is asserted as permitting that conduct”)

State ex rel. Miller v. Ohio State Highway Patrol, 2014-Ohio-2244 (12th Dist.) (Finding that cruiser camera video was excluded from the definition of public records because such records fall squarely within the statutory confidential law enforcement investigatory record exception.)

State ex rel. Beacon Journal Publishing Co. v. Maurer, 2001-Ohio-282. (“[W]e employ a two-step test to determine whether a record is exempt as a confidential law enforcement record under R.C. 149.43: ‘First, is the record a confidential law enforcement record? Second, would release of the record ‘create a high probability of disclosure’ of any one of four kinds of information specified in R.C. 149.43(A)(2)?’”)

At Oral Argument

Arguing Counsel

Jack Greiner, Graydon Head and Ritchey, LLP, Cincinnati, for Media Relators

Andy Douglas, Hamilton County Prosecutor’s Office, for Respondent Joe Deters

Relators’ Argument

Mr. Greiner conceded that only three of the relators (WLW, AP and WKRC )(at one point he said two, at another three) made public records requests directly to the Hamilton County Prosecutor’s Office, but argued that all requests were appropriately made since the Prosecutor’s Office came into possession of all copies of the video, and advised both the University of Cincinnati Police Department and the Cincinnati Police Department not to release the video footage. The Prosecutor’s Office was the entity responsible for the record, which is why all the relators sued Mr. Deters in mandamus.

The incident report was released immediately, the night of the shooting. The body camera footage is no different from an incident report in a different medium, and needs to be produced in the same manner as the written incident report. It is a more accurate version of the incident report. There is nothing in the body camera footage that was not disclosed in the written incident report.

There was no investigation in this case from the time of the initial traffic stop until the car came to a stop upon hitting something after Dubose was shot. Up to that point, release of the footage would not disclose any work product that was not already disclosed in the incident report. Any investigation that would trigger a CLEIR exception to a public record request began only after the car came to a stop. The ongoing investigation certainly was subject to CLEIR, but the events up to that point absolutely were not. The investigation was triggered by a discrepancy between the tape and the narrative in the incident report.

The media were entitled to the video once the police and the prosecutor had reviewed it. In this case that was by July 22. By then they had the time they needed to make a classification determination —and the media believe the one they made was incorrect. The first media request was July 20, and yet the tape was not released until July 29.

This case is not about timing, it is about classification. The tape was not a confidential law enforcement investigation record. The prosecutor classified the entire tape as a confidential law enforcement record, would mean he had no obligation to turn it over until the case was completed, including habeas corpus review. If subject to CLEIR, the tape could be held indefinitely. But if not, it had to be turned over promptly.

Respondent’s Argument

This case is moot, as the tape has been released to the media and to the public. But even if it is not deemed moot, the tape was released within a reasonable time of legitimate requests. Only two out of the four relators even made a request of the prosecutor’s office (Professor’s note—WLW also made a request to the prosecutor’s office, but the request was made before that office came into possession of the tape.) The other media sued the wrong party, and their cases should be dismissed. They should have sued the public offices from whom they made their requests. The prosecutor’s office cannot order the University of Cincinnati or the Cincinnati Police department to do anything.

It is also the Prosecutor’s position that the video in this case is not a public record (although Mr. Douglas conceded it could become one at some point). It is  exempt under the confidential law enforcement investigatory report exception. The investigation in this case began the minute Officer Tensing turned on his body camera. The investigation began when the officer saw that Dubose’s car had no front license plate and pulled him over for that reason. As soon as the camera is turned on, it becomes an investigatory matter subject to CLEIR.

In this case, the Prosecutor did turn the tape over, and he did so within a reasonable time. The Prosecutor had legitimate concerns about safety in the community, about witnesses, and about the grand jury. The tape was turned over the afternoon of the day that the grand jury returned an indictment against Tensing. The tape was turned over within four working days of the first legitimate request. Case law establishes that eight and 56 days have been deemed a reasonable time to turn over a public record. In reality, the tape is not even a record of the prosecutor’s office. It doesn’t document the record of the prosecutor’s office in any way.

Finally, no attorney fees should be awarded in this case. The court should not punish a party for taking a rational stance on an unsettled issue of law.

Here are Our Impressions

Professor Emerita Bettman

This looks like a win for the prosecutor’s office, but only because that office did turn over the tape within a reasonable period of time under the facts and circumstances of the situation, not because the video is not a public record, and not because it was properly classified as a CLEIR exception, or because the case is moot as to some of the relators. The Chief suggested in one of her questions that there was nothing wrong with evaluating these cases on a case by case basis.

I don’t think the court will agree with Mr. Greiner that the video is the same thing as an incident report in a different medium. As to when the investigation actually began, I’m not sure the court was satisfied with the answer of either side,

The court may find that the relators who asked the CPD or the UCPD for the tapes should have sued them in mandamus, but also may skip that technicality since the Hamilton County Prosecutor’s Office clearly took control of the tapes, even if it could not officially tell UC or the Cincinnati Police Department what to do. Best practice would surely be to sue the party to whom one makes the request, though. Still, that leaves two and arguably three relators who did make their request of the prosecutor’s office still in the game here, so such a ruling wouldn’t moot the entire action.

Even if the court did find for the relators, I’d predict no attorney fees. We are in uncharted waters here, and the tape was not unreasonably withheld.

Student Contributor Connie Kremer

The oral arguments in this case, already fifty-five minutes long, likely could have continued for at least another fifty-five in order for the attorneys to fully address their arguments. As Mr. Douglas referenced, the actions of the prosecutor’s office could have affected the community at large, the grand jury, the witnesses, and the subsequent prosecution of Tensing. These interests are balanced against the statutory right of the public to access public records. After watching the oral arguments, I find myself going back and forth on the likely outcome of this case. The justices will have a difficult task sorting through the variables and potential implications of this case. Ultimately, I think the bodycam footage will be classified as a Confidential Law Enforcement Investigatory Record that the prosecutor’s office was not obligated to disclose. Alternatively, the timing of the release of the video will be a viable means by which the justices could find in favor of the defendant.

Overall, the justices seemed unconvinced by Mr. Greiner’s argument that a bodycam video is the functional equivalent of an incident report. Though he astutely noted that the bodycam video offers the view from one vantage point, much like an incident report offers the view from one officer’s vantage point, the justices, especially Chief Justice O’Connor, were concerned about the issue that arises in cases such as this one, where the incident report conflicts with the bodycam footage. Because this conflict can be at the heart of an investigation into the police officer, is it not a Confidential Law Enforcement Investigatory Record? According to Mr. Greiner, it is not. Rather, it sparks the subsequent investigation.

According to Mr. Douglas, “The investigation started when that officer activated his camera. There would have been no other reason for him to do that.” Even conceding that bodycam footage may at some point be a public record, Mr. Douglas stated that this was an issue of mootness and timing. Mr. Douglas did not feel that the prosecutor’s office was the right party to have been sued since some of the relators never filed a request with the prosecutor’s office, and the prosecutor does not exercise control over the University of Cincinnati police department or the Cincinnati police department. He argued, and I think the justices will find it persuasive, that the prosecutor’s office complied with the public records request because it released the footage within four business days of receiving the request.

This is a close call, and there were well-articulated arguments on both sides. However, the justices seemed more convinced by Mr. Douglas’s argument that this video was a Confidential Law Enforcement Investigatory Record, or alternatively that it was timely released to the public.

Student Contributor Jefferson Kisor

This was a difficult case; an overabundance of issues mixed with facts that differed amongst the six relators who brought the suit against Hamilton County Prosecutor, Joseph Deters. Counsel for the relators, Mr. Greiner, had the herculean task of swaying the court in two crucial determinations that I believe will be indicative of the prevailing party in this case: (1) whether or not the public record requests (PRR) had to be made directly to the person or office allegedly responsible for the record being requested, and (2) whether this case is a timing issue or a classification issue.

The Enquirer, and three other relators, did not make a PRR to Deters or his office. Instead, requests were made to the University of Cincinnati and the Cincinnati Police Department. In the brief rebuttal time that Mr. Greiner had reserved, he was peppered with questions from Justices O’Donnell and Lanzinger, as well as the Chief Justice, all asking about the specifics of the requests made by the relators. In the end, Mr. Greiner conceded that only two out of the six relators had actually sent a PRR to the prosecutor’s office. I found this questioning to be worrying for those relators who failed to directly send a PRR to the prosecutor. As Deters’ counsel, Mr. Douglas, stated – “they sued the wrong people.”

“Timing” was another subject posited by both the attorneys and the court throughout the arguments. Mr. Greiner was adamant early on that this case was not about timing, but unfortunately, after this statement he began talking about the specific dates in this incident, which immediately drew a question from Justice O’Donnell, inquiring why this case was not moot since the video was released in a matter of days (i.e. promptly). Over and over again, Mr. Greiner attempted to pull the discussion back and frame the issue as one of classification – specifically Deters’ erroneous classification of the material as a confidential law enforcement investigatory record (CLEIR). Even if the court accepted this argument, another question still remains – when does the investigation begin? Neither Mr. Greiner, nor Mr. Douglas were able to offer a satisfying answer to this question. Douglas’ argument, that the camera starting is sufficient for CLEIR was shown to be problematic by Justice French, who distinguished between the investigation by the officer compared to the investigation of the officer in this case. On the other hand, it appears that accepting Mr. Greiner’s position would entail subjective evaluations of the record, which would only be remedied by redactions – not the most palatable solution.

The two key issues I mentioned above could easily lead to the court finding this case to be moot for some or even all of the relators in this case. That would also allow the court to circumvent some of the more complicated issues of the case, such as when the investigation actually starts and triggers the CLEIR exception.

To be honest, I found a lot of the relators’ arguments compelling, but these arguments (however persuasive) are inherently limited not only by the facts of this case, but also by the intricate definitions of R.C. 149.43, specifically the CLEIR exception. I believe that government transparency and bodycam videos are major issues in our society, but I do not think the facts in this case warrant such a precedent setting decision. This is why I believe the court will likely defer this issue to the General Assembly, and find in favor of Deters.

However—as a caveat—if the court did find for the relators, I believe there would be limitations on that ruling. First, it would only apply to those relators who sent a PRR to the prosecutor’s office (Associated Press and WKRC), and second, attorney fees or other costs would not be awarded.