What’s On Their Minds: Is the Associated Press Entitled to the Security Camera Footage of the Shooting of a Common Pleas Court Judge?Andrew Welsh-Huggins v. Office of the Prosecuting Attorney, Jefferson County, Ohio.

By Marianna Bettman on August 13, 2020

Update: On November 24, 2020, the Supreme Court of Ohio handed down a merit decision in this case. Read the analysis here.

“What would be the competent evidence that you would require under this statute?”

Justice Donnelly, to counsel for Welsh-Huggins

“If I were a bystander near the courthouse that day would I have been able to watch everything unfold as it is shown on the security camera?”

Justice French, to the Prosecuting Attorney

On July 21, 2020, the Supreme Court of Ohio heard oral argument in Andrew Welsh-Huggins v. Office of the Prosecuting Attorney, Jefferson County, Ohio, 2019-1481. At issue in this case is deciding what evidence sufficiently proves an exemption under Ohio’s Public Records Act (PRA). More specifically at issue is whether an attorney’s affidavit is sufficient to prove security camera footage is a security record within the specialized PRA dispute system managed by the Ohio Court of Claims.

Case Background

On August 21, 2017, Jefferson County Common Pleas Court Judge Joseph Bruzzese was shot outside the Jefferson County Courthouse. Both Bruzzese and a probation officer walking nearby defensively returned fire at the shooter, Nate Richmond, who died at the scene. Bruzzese was seriously injured but recovered.

The entire ordeal was captured by a video surveillance camera affixed to the outside of the Jefferson County Courthouse. On the day of the shooting, Associated Press reporter Andrew Welsh-Huggins (“Welsh-Huggins”) requested a copy of the surveillance video from the Jefferson County Prosecutor’s Office (“Prosecutor’s Office”) per the Ohio’s Public Records Act. The Prosecutor’s Office promptly denied release of the video. For nine months following the incident, Welsh-Huggins repeatedly requested the video arguing that the shooting of a judge is a topic of great public importance and that the video would verify law enforcement’s conclusion that Richmond had “ambushed” Judge Bruzzese. The Prosecutor’s Office denied each request.

On May 7, 2018, Welsh-Huggins filed a formal complaint in the Ohio Court of Claims pursuant to R.C. 2743.75. Enacted by the Ohio General Assembly in 2016, R.C. 2743.75 created a procedural system designed to resolve PRA disputes economically and expeditiously. The system is overseen by the Ohio Court of Claims, which appoints a special master in each case to oversee, adjudicate, and ultimately recommend whether a record be deemed public or not.

Among other things, and pertinent to this appeal, the Prosecutor’s Office based its refusal to release the video on the grounds that it fit within the security record exception to the PRA. The Special Master made three requests to the Prosecutor’s Office to provide additional information and evidence during the investigation. The requests resulted in an affidavit filed by Prosecuting Attorney Jane Hanlin that outlined her personal knowledge of the court’s surveillance system and a timeline of events depicted in the shooting video.

Based on the information and evidence presented, the Special Master found that the Prosecutor’s Office failed to satisfy its burden of proving any PRA exceptions applied to the video. In declining to find the video to be a security record, the Special Master determined the video was not directly used to protect or maintain courthouse security, was not a planning, training, or investigatory document maintained for security purposes, and contained no audio that would create a vulnerability for future emergency responses. Consequently, he recommended that the Prosecutor’s Office should release the video to Welsh-Huggins, with the image of any peace officer involved redacted.

The Court of Claims judge adopted the Special Master’s entire recommendation and ordered release of the video. The Prosecutor’s Office objected to this conclusion, but those objections were overruled. The Prosecutor’s Office then appealed to the Seventh District Court of Appeals and the Court of Claims granted a stay enjoining release of the video until the matter was decided on appeal.

The Appeal

The Seventh District overruled the Court of Claims’ decision. The appeals court found the Prosecutor’s Office satisfied its burden in proving the video fell within the security record exception to the PRA. Because the PRA’s security record exception applies, the Prosecutor’s Office was not required to release the video to Welsh-Huggins.

Security records are exempted from release under the PRA if evidence supports such a conclusion; bare allegations do not suffice. Here, the appeals court found that while the Prosecutor’s affidavit is based on hearsay and is not from a technology or security professional, Welsh-Huggins did not object to the affidavit during the Special Master’s investigation. Therefore, the affidavit is a sufficient basis to conclude the video is a security record.

First, the affidavit asserts that if the video were released to the public, it would expose security blind spots, zoom, rotation, and isolation capacities of the camera, along with the technical vulnerabilities of the entire courthouse security system. Second, the affidavit amply noted that the video does not just capture the shooting, but also the response efforts and protocol of law enforcement and emergency personnel. The statutory language of R.C. 149.433 explicitly exempts records which show such critical security information. While other cases have relied on more extensive and specialized evidence, the affidavit in this case was sufficient.

Welsh-Huggins appealed. Read the oral argument preview here.

Welsh-Huggins’ Proposition of Law Accepted for Review

A public office must produce competent, admissible evidence to support an assertion of an exception to the Public Records Act.

Read the oral argument preview of the case here.

Key Statutes and Precedent

R.C. 149.43 (Ohio Public Records Act (PRA)) (“Public record” means records kept by any public office, including, but not limited to, state, county, city, village, township, and school district units.)

*R.C. 149.433(A)(1) (Exempting security and infrastructure records from release under the PRA) (“Security record” means any of the following: (1) Any record that contains information directly used for protecting or maintaining the security of a public office against attack, interference, or sabotage; (2) Any record assembled, prepared, or maintained by a public office or public body to prevent, mitigate, or respond to acts of terrorism.)

*R.C. 2743.75 (Jurisdiction over claims alleging denial of access to public records) (codifies a system to, “provide for an expeditious and economical procedure that attempts to resolve disputes alleging a denial of access to public records” in violation of Ohio’s Public Records Act. The Ohio Court of Claims is the sole and exclusive authority to adjudicate and resolve PRA complaints.)

Evid. R. 103(A)(1) ( Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected; and in case the ruling is one admitting evidence, a timely objection or motion to strike appears of record, stating the specific ground of objection.)

Amie v. General Motors Corp., 69 Ohio App.2d 11 (1980) (“a party waives objection and waives any challenge to hearsay testimony by failing to object with reasonable promptness in the trial court.”)

*State ex Rel Miller v. Ohio State Hwy. Patrol, 2013-Ohio-3720 (Mandamus public records dispute holding the public records requestor must show that he is entitled to the information before the record custodian is required to take any action.)

*State ex rel. Plunderbund Media v. Born, 2014-Ohio-3679 (Department of Public Safety records concerning threats against the Governor are security records that are exempted from release under the PRA. Whenever the record is used for protecting and maintaining security or maintaining the secure functioning of an office, it is considered a security record and does not need to be released.)

*State ex rel. Ohio Republican Party v. Fitzgerald, 2015-Ohio-5056 (When there are verified threats against a public official, records showing ingress, egress, and timing such as video surveillance of private building entrances are security records for purposes of protecting and maintaining the security of the public office.)

*State ex rel Rogers v. Department of Rehabilitation and Correction, 2018-Ohio-5111 (Refusing to extend security-record exemption to surveillance footage depicting use-of-force incident in a prison. To successfully argue a record is a security record, there needs to be information alleging the video is directly used to ensure safety. This information must be supported by evidence, not merely a bare assertion. Generalized claims that the record protects a security interest is insufficient.)

*State v. Gwynne, 2019-Ohio-4761 (Parties should lodge timely hearsay objections or forfeit the argument on appeal. The forfeiture rule is to encourage parties to call out an error so that the error can be avoided or corrected.)

*cited by counsel at argument

At Oral Argument

Arguing Counsel

John C. Greiner, Graydon Head & Ritchey LLC, Cincinnati, for Appellant Andrew Welsh-Huggins

Jane M. Hanlin, Prosecuting Attorney, Jefferson County, for Appellee Office of the Prosecuting Attorney, Jefferson County, Ohio.

Welsh-Huggins’ Argument

This case involves security camera footage from a camera that was mounted above the private entrance to the Jefferson County Courthouse. It captured the shooting of Common Pleas Court Judge Joseph Bruzzese, who fortunately survived the shooting. His assailant was killed in the crossfire that occurred during the shooting. Welsh-Huggins, a reporter for the Associated Press, requested the footage and was turned down by the Jefferson County prosecutor. The case was presented to a Special Master who concluded that the prosecutor failed to present sufficient evidence to establish that the video footage was an exempt security record. The Court of Claims affirmed this finding over objection by the Jefferson County prosecutor. However, the 7^th district improperly substituted its judgment for that of the Special Master in the Court of Claims and reversed the decision. This Court should reverse the 7^th district, not only because its decision is unsupported by the law and the facts but also because the decision threatens to undo the process set out in RC 2743.75, a process that streamlined the public’s ability to obtain public records.

The evidence that is required under the statute requires personal knowledge, as the Special Master pointed out. The Special Master asked the prosecutor to provide the evidence and the rationale as to how each video segment claimed to be an infrastructure record that discloses the configuration of a specifically identified critical system. But the Special Master also wanted the evidence and rationale of how each video segment claimed to be a security record met the statutory elements.

Pursuant to this Court’s rulings in both Plunderbund and Rogers, there must be competent evidence that what is claimed to be a security record is in fact being used to lay out procedures, commands, and the process itself. It is very clear from Rogers that the footage itself does not establish the exemption. Any necessary expert testimony must be provided by someone with first-hand knowledge of how the systems worked, which the prosecutor here lacked. The prosecutor provided affidavits that were nothing more than advocacy and arguments. Anything the prosecutor relied on was hearsay, and the 7^th district found that. The 7^th district explicitly said in its decision that the affidavits were not based on personal knowledge and relied on hearsay.

The standard to establish the exception is clear and convincing evidence, the same as in a mandamus action. Regardless, the exception must be proven by competent evidence and there was no competent evidence established here. So, whether the standard is clear and convincing or even preponderance of the evidence, an affidavit that is not based on personal knowledge is not competent evidence. The Special Master is the trier of fact here, has the prerogative to accept or reject evidence, and certainly has the prerogative to determine whether the evidence is sufficient or insufficient. Here, he found that it was insufficient. In many respects, the case is also about the standard of review, and the appropriate standard of review here is abuse of discretion.

This Court made clear in Rogers that the video footage itself cannot establish the applicability of the exemption. There must be competent evidence based on first-hand knowledge as to why what is shown or not shown on the footage constitutes a security record exemption. Here, the Special Master correctly found that this evidence did not do that. The Court of Claims adopted that report and recommendation and the 7^th District simply substituted its judgment for that of the Special Master.

The other problem with the 7^th district’s decision is its finding that because there was not a specific objection made to the defects in the affidavit, it was required to accept that affidavit in its entirety. There is no basis for that. The Special Master determined that the evidence was insufficient. The requesting party at that point has no duty to object. This isn’t the case where the Special Master accepted the evidence and then the requesting party objected on hearsay grounds after the fact. In this case the Special Master on his own, exercising his prerogative under the statute, found this evidence to be insufficient, based on hearsay and not on personal knowledge, and refused to accept it. He found the prosecutor failed to meet her burden of proof, despite being asked three different times to submit competent evidence. For some reason the 7^th district agreed that the evidence was defective because it was not based on personal knowledge, but decided it had to be accepted as competent evidence because the requesting party didn’t object. That was simply wrong. It is completely contrary to the whole system that was adopted in R.C. 2743.75 to make this process efficient and economical.

The idea that a requesting party, who may or may not be represented by counsel, is required to lodge an evidentiary objection or risk admission of a completely defective affidavit is contrary to the statutory scheme, is not economical, and is not efficient. The statute in this case allows for only two filings; a complaint and either an answer or a motion to dismiss. It does not allow any other filings.

Courts of appeals should apply an abuse of discretion standard to the Court of Claims decisions in cases arising from R.C.2743.75 because otherwise, if it simply allows the appeals court to substitute its judgment, that would make the whole proceeding in the Court of Claims just for show. That is the very opposite of efficient and economical, which by its own terms is what the statute is designed to effectuate.

In short, the prosecutor simply did not provide sufficient evidence to support the exception. The Special Master got it right; the Court of Claims got it right when it adopted the report and recommendations. The 7^th district wrongly substituted its judgment when it should have applied an abuse of discretion standard.

Prosecutor’s Argument

If this video were released, it would essentially serve as a training tape for those who want to attack, harm, or even kill our judges and other public officials. And while a bystander that day would have been able to see what happened in real time, the bystander would not have been able to see what the camera was actually capturing and what it could do afterwards with that footage in terms of different views, zoom functions, fisheye capability, and enhancement capabilities. All of that could be seen by someone who had the video footage.

There was also a street camera in this case operated by the City of Steubenville, which operated more like a typical camera that rotates in a 360 angle. That camera captured the ambush of Judge Bruzzese on the morning he was shot and has no other special capabilities. It can’t be enhanced or modified; it can’t do any of the things the system inside the courthouse can do, which means it does not show the vulnerabilities of the courthouse system, including blind spots. The prosecution offered that to the Associated Press, which to this day has never requested it, even though that would solve this issue without endangering the public officials and the people who go in and out of the courthouse.

Any person who is planning an attack would want to know where the judge parked every day, how he gets into the building and where the places are inside the courthouse where someone could not be seen. That is different than a street view. What can be viewed from the security system reveals how to do this better the next time. Fortunately Judge Bruzzese survived, in part because of the response of law enforcement which is also captured on that tape.

The affidavits produced by the Prosecutor’s Office included not only the prosecutor’s statements, but also her personal knowledge. The prosecutor was actually there the day this happened and was on the security team that set up the security system for the courthouse. The Special Master was provided with the street camera, the video filed under seal, and pictures that would show the attack without revealing everything that the camera system would do.

The standard of clear and convincing evidence applies only to the requestor, who must meet his burden that he is entitled to the information before the respondent is required to do anything. The requestor in this case was never asked to produce a single shred of evidence and did not. He must show that what was requested is a public record and demonstrate the reasons for his request. He never did this. The many cases issued by this Court on this subject hold that the requestor still has the burden to prove by clear and convincing evidence that he is entitled to that release. That just did not happen in this case.

The respondent’s burden was simply to show by a preponderance of the evidence that there was sufficient information to show that this was in fact a security record. In this regard, the 7^th district did not rely entirely on the affidavit. And the word “hearsay” is only mentioned once in the appellate decision, and never by the Special Master or the Court of Claims.

Ordinarily, deference is given to a special master or a magistrate because they are in the best position to observe the demeanor and the credibility of the witnesses. But that did not happen here because there was no trial, and no testimony in the case before the Special Master or the Court of Claims, despite the prosecution’s offer to come in person and bring the video. That was not permitted here. So, the Special Master is in no better position than the Court of Appeals to review the affidavits and the evidence.

There are certainly provisions to guard against wrongful withholding by a records keeper, including court costs and attorney fees. But that was not the case here. While opposing counsel argues this process was designed to be economical and speedy, this was anything but. None of the delays in this matter were attributable to Jefferson County, which met every deadline and never asked for a continuance. Furthermore, in this case the Associated Press was represented by counsel in the lower proceedings. If they suspected a problem with hearsay they could have lodged an objection. Instead they want to rely on some of the rules of evidence but not the others. This case is nothing more than a garden variety hearsay exception which is not the type of case this Court typically takes.

The Special Master in this case had 7 days to make a decision, but pursuant to statute could allow himself an additional seven days if he needed more time to think about it. He took 60 days to make a decision.

The prosecutor’s position from day one has been that just by looking at it, this was a security record that was protecting against a threat. The statute says that any record that contains information used for protecting or maintaining the security of a public office against attacks, interference or sabotage is a security record. So, by definition, this is not a public record that is subject to disclosure.

Plunderbund makes it clear that the Public Records Act has always had an exception for a security record and stands for the proposition that the highest level officials in the state, including those in the judicial branch, must be protected. The video in this case shows everything, including where Judge Bruzzese kept his weapon, what the response was, and what weaponry was used. No one who was not a bystander that day would ever see that information, and nobody would be able to see what that system captured in terms of the vulnerability of the system. It is the prosecution’s fear that the position that the Associated Press is taking would allow the release of every single courthouse video security system in this state, of the governor’s mansion, the Supreme Court, and every public building. The Ohio Public Records Act was never intended to do that. That’s why that security exception has always been there.

What Was On Their Minds

Evidence Necessary To Prove Security Record Exemption

What would have been sufficient to establish that this was a security record, asked Justice Donnelly? What is the competent evidence that is necessary under this statute? Isn’t it undisputed that this video record took place from a security camera attached to the courthouse? Couldn’t the Special Master, just like a judge would in normal proceedings, based on those facts, take judicial notice of the fact that it was a security record?

Is the clear and convincing evidence standard required in a mandamus action the same standard required here, asked Justice Fischer? If so, why?

This doesn’t really seem like an evidentiary issue, commented Justice DeWine. Isn’t this just a question about the weight of the evidence?

Did the prosecutor produce any evidence other than her own affidavit, asked Justice French? Does the Court have that evidence in front of it and would that support the exception here?

Requester’s Burden, If Any

Why would the requester have to provide any evidence, asked Justice French? If so, what would that evidence be? Isn’t it the prosecutor’s burden to show that there is an exception that would apply?

Does the requestor have to put forth any reason for the request for a public record, asked Chief Justice O’Connor? Isn’t there a presumption that public records are available to anybody who asks for them, and then the exemptions are carved out from that?

Prosecutor’s Affidavit

Did the Special Master identify why he believed the affidavits weren’t sufficient, asked Justice Donnelly? Was the prosecutor specifically instructed to get someone with personal knowledge from the courthouse? Why didn’t the prosecutor just provide an affidavit from someone in the courthouse who operates that system to establish all these facts rather than an affidavit with the prosecutor’s own summary of the investigation?

Once the affidavit was filed after the third request, was Mr. Welsh-Huggins allowed to file an objection with the Special Master saying this is an affidavit which is contrary to the proof that is necessary, asked Chief Justice O’Connor?

Standard of Review

There seems to be a fundamental question of whether a security videotape is by itself a security record, noted Justice DeWine, adding that was a legal question that can’t be subject to an abuse of discretion standard.

What about the fact that the statute says the Court of Claims is the sole and exclusive adjudicator, asked Justice Fischer?

Security Camera Footage

Would a bystander near the courthouse that day have been able to watch everything unfold as it is shown on the security camera, asked Justice French? Why is the footage from the security camera different from any other camera on any other building?

Can’t any film that is released, even the film from the street camera in this situation, be enhanced, zoomed, and manipulated with technology, asked Chief Justice O’Connor?

Precedent

Would we have to overrule Rogers to affirm, asked Justice Fischer?

Public Policy Concerns

If competent evidence isn’t introduced to meet the exception, isn’t there a danger that would defeat the purpose of a law that is supposed to promote or look favorably on the public receiving access to records, asked Justice Donnelly?

How It Looks From the Bleachers

To Professor Emerita Marianna Bettman

I agree with my student contributor Brandon Bryer that this is a hard one to call, and I’m not sure the justices are all on the same page here.

Both lawyers really know their stuff in this area (despite Mr. Greiner’s embarrassing gaffe saying that Judge Bruzzese was shot in Youngstown, when in fact it was Steubenville. Ms. Hanlin, the Jefferson County Prosecutor wasted no time calling him out for that) and both felt quite passionately about their respective viewpoints.

I’m going to call this for Welsh-Huggins and the Associated Press. Despite her lengthy and clearly heart-felt explanations, I think the prosecutor would have been better served simply to provide an affidavit from an expert with personal knowledge of the courthouse security system, and that failure may sink her argument. Justice Donnelly certainly seemed to jump on that point. The Chief seemed put off by Ms. Hanlin’s insistence that those seeking public records had to provide some kind of good reason for their requests. And Justice French seemed to remain dubious about what was so extra special about the courthouse security camera footage. This shooting was obviously a matter of legitimate public interest, but the public danger to judges and other public officials these days cannot be ignored either, and probably makes this decision extra hard. That may well be Ms. Hanlin’s trump card to pull this out. The statutory procedure for Public Records requests was supposed to streamline this process. I can’t say that it did, here. And I’m not familiar enough with this process to know the rules about objections. But, fundamentally, it doesn’t sound like the Prosecutor’s Office provided the required competent evidence.

One cautionary note for lawyers arguing by videoconferencing. Mr. Greiner’s video wasn’t working during his argument, which was unfortunate.

To Student Contributor Brandon Bryer

Both attorneys did a phenomenal job at oral argument. Mr. Greiner and Prosecutor Hanlin gave strong and direct answers to questions, emphasized the strongest points of their arguments, and provided persuasive policy arguments in favor of their positions. Before a word was said in oral argument, I would have predicted a win for the State. However, Mr. Greiner’s oral argument performance was so exceptional, my prediction is now less certain.

I think the justices will primarily use this case to clear up ambiguities in the R.C. 2743.75 PRA dispute system enacted by the General Assembly in 2016. Justices French, Donnelly, and Fischer asked numerous questions seeking clarification on the appellate standard of review, the purpose of the Special Master, which side possesses the burden of proof, and which party has the initial burden. Mr. Greiner helpfully noted that the Court has never heard a case concerning R.C. 2743.75 and this case presents a perfect opportunity to resolve any uncertainties.

Both parties have very different perspectives on what requests were made during the Special Master’s investigation, the R.C. 2743.75 PRA dispute system as a whole, and what implications either releasing or not releasing the video will have for security and future public record requests. Ultimately, I still think that the State will prevail, and the video will not be released. Prosecutor Hanlin mentioned the “bounty” that exists against public officials in the U.S. and cited to the recent tragic attack on a New Jersey judge’s family as evidence. However, I would not be at all surprised to see a division among the justices nor would I be shocked if Welsh-Huggins prevails. I think the outcome hinges on what version of events and characterization of the affidavits a majority of the justices find most compelling.