The Status of Body Camera Recordings Under Ohio’s Public Records Act
By: Mark Volcheck, Esq.
One would expect the subject of public records law to be uncomplicated. It is a statutory creation that categorizes records of governmental agencies as either subject to public disclosure or exempt. However, the statutory definitions used to categorize records are not always suited to expanding technologies that include new methods and media for record creation. A pending mandamus case before the Supreme Court of Ohio, State ex rel. Cincinnati Enquirer v. Deters, 2015-Ohio-1222, is worth reviewing, as it poses a question particularly relevant to law enforcement officers across the state: Is a police body camera video that captures images and audio of a law enforcement officer shooting and killing a suspect following a traffic stop exempt from public disclosure under Ohio’s Public Records Act? The Court’s answer to this question will have a profound impact upon the publicity of future officer involved shootings and the defense of law enforcement officers subject to such investigations.
The case arose as a result of a traffic stop on July 19, 2015, by a University of Cincinnati police officer. Police officers employed by the university are required to wear body cameras. Departmental policy requires officers to activate their cameras for traffic stops “from the initiation to the completion of the enforcement action.” In this case, after the suspect’s car stopped, the officer approached the driver’s side window. After a short interaction and an apparent attempt of the suspect to prematurely drive away from the scene, the officer shot the suspect dead. Images and audio of the events leading up to the shooting, the shooting itself, and events immediately following the shooting, were recorded by the camera worn by the officer.
News of the shooting spread quickly in the Cincinnati region and nationwide. The next day, July 20th, the first of several print and television news outlets submitted public records requests for the body-cam video. On July 22nd, the Hamilton County Prosecuting Attorney’s Office announced that the video would not be released. A mandamus action for release of the video was filed in the Supreme Court of Ohio by several news outlets against Joseph Deters, Hamilton County Prosecuting Attorney, on July 27th. On July 29th, an indictment charging the officer with murder and voluntary manslaughter was returned by a grand jury. Later that day, the prosecuting attorney’s office released the video.
While the case involves several ancillary issues, the precedent setting issue of the case is whether the video was required to be released like any other public record that is not exempt from disclosure. The news outlets argue that the case is clear. Ohio’s Public Records Act defines a “public record” as a record “kept by any public office.” R.C. 149.43(A)(1). R.C. 149.011(G) states that a “record” is “any document, device, or item, regardless of physical form or characteristic, including an electronic record as defined in section 1306.01 of the Revised Code, created or received by or coming under the jurisdiction of any public office of the state or its political subdivisions, which serves to document the organization, functions, policies, decisions, procedures, operations, or other activities of the office.” Since the video of the UC police officer was created to document the policing activities of the department, it is a public record and should have been released.
According to the prosecutor, the legal analysis of the news outlets does not tell the whole story. He argues that the video is exempt from disclosure. He relies primarily on R.C. 149.43(A)(1)(g) and R.C. 149.43(A)(1)(h), which exempt trial preparation records and confidential law enforcement investigatory records.
R.C. 149.43(A)(4) defines a trial preparation record as “any record that contains information that is specifically compiled in reasonable anticipation of, or in defense of, a civil or criminal action or proceeding, including the independent thought processes and personal trial preparation of an attorney.” The prosecutor argues that the video was downloaded solely for presentation to the grand jury and therefore is exempt from disclosure.
R.C. 149.43(A)(2) defines a confidential law enforcement investigatory record as 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;
(b) Information provided by an information source or witness to whom confidentiality has been reasonably promised, which information would reasonably tend to disclose the source’s or witness’s identity;
(c) Specific confidential investigatory techniques or procedures or specific investigatory work product;
(d) Information that would endanger the life or physical safety of law enforcement personnel, a crime victim, a witness, or a confidential information source.
The prosecutor purports that the video is exempt under paragraphs (a) and (c). First, he argues that the officer is an uncharged suspect. The release of the video prior to the time that the grand jury acted would have caused the officer adverse publicity that would have compromised the officer’s rights and the possibility for a resolution of the underlying matter in subsequent proceedings. Second, similar to his rationale concerning trial preparation records, the prosecutor maintains that it was clear from the time of the shooting that a criminal case would be presented to the grand jury. Therefore, the downloading of the video also constitutes investigatory work product. On this point, he notes that an assistant prosecuting attorney arrived at the scene of the shooting shortly after it occurred. Finally, pursuant to such statutory exemptions, the prosecutor argues that releasing the video would jeopardize the investigation, as the suspect officer and any witnesses would have the opportunity to adjust their story to match the video if it were immediately released. The prosecutor perceives such as an unjustified burden on his duty to prosecute the case and one that “has a great potential of skewing the entire process.”
In response to the prosecutor’s arguments, the news outlets counter that such exemptions are not applicable. While the video was placed in the prosecutor’s investigatory file; it was not initially created for such proceedings, as all traffic stops are recorded by policy and the video commences prior to any alleged unlawful conduct. Additionally, withholding the record to prevent the officer or any witness from adjusting his or her story to match the video is not a reason to apply the exemptions. While forbidding the officer from viewing the video may have made it harder for the prosecutor to present the officer as a liar to the grand jury, the preservation of such prosecutorial tactic is not sufficient reason to ignore the disclosure requirements of the Act.
This last point deserves further discussion. The OPBA has at times been at odds with public agencies charged with investigating shooting incidents of our members when video evidence of the incident is available. The investigators are typically conducting criminal investigations and want to interview the officers. Prior to deciding whether the officer will consent to be interviewed, we request to review the video to aid the officer in his or her recollection and recall of the event. The investigators typically deny such request. We want the ability, should the interview take place, to explain the officer’s perceptions and give context to the video. In short, we do not want the officer to give answers that are interpreted as being inconsistent with the video.
Does a seemingly inconsistent answer of an officer relative to a shooting video warrant an allegation of untruthfulness? Of course not. Shooting scenes are unbelievably traumatic and stressful situations often resulting in tunnel vision and other experienced distortions of hearing/vision and distance/time for an officer. However, it is unknown to the officer under investigation or his or her attorney how seemingly inconsistent testimony will be viewed by a prosecutor or grand jury. It is unknown how the prosecutor will present such evidence to a grand jury and what information – if any at all – the grand jurors will have concerning the physiological and psychological effects of a shooting situation on an officer’s perception and memory. Accordingly, to be safe, before any interview is granted, we hold that the officer should have an opportunity to review the recording. If the news outlets prevail in this case, the investigators will have no argument for denying such requests.
On the other hand, the prosecutor’s position could conceivably be helpful to the officer in those cases where the public viewing of a video would unfairly tarnish the officer’s actions and reputation prior to grand jury. Video often does not tell the full story and can be deceiving when not placed in its proper context. A video without an officer’s account as to background facts and his perceptions at the scene may result in the officer’s actions being subject to public ridicule. This could result in the prosecutor hesitating to seek resolution of the matter and/or grand jurors refusing to risk the public outcry of a no bill. However, at the same time, such possible benefit to the officer would not obviate the detrimental impact of an investigator’s refusal to allow the officer to view the video.
Since this mandamus case was initially filed with the Supreme Court of Ohio, there is no lower court ruling to cite in the absence of the Court’s decision. This will be a matter of first impression in Ohio. Oral argument has been set for June 14, 2016. The Court’s decision will follow on a later date. No matter how the Court decides, its decision is sure to impact the publicity of recorded critical incidents and our defense of officers so involved.