State ex rel. Cincinnati Enquirer v. Ohio Dep't of Pub. Safety

• Decision Date: 06 December 2016
• Docket Number: No. 2015–0390.,2015–0390.
• Citation: 2016 Ohio 7987,148 Ohio St.3d 433,71 N.E.3d 258
• Parties: The STATE ex rel. CINCINNATI ENQUIRER v. OHIO DEPARTMENT OF PUBLIC SAFETY et al.
• Court: Ohio Supreme Court

148 Ohio St.3d 433

71 N.E.3d 258

2016 Ohio 7987

The STATE ex rel. CINCINNATI ENQUIRER

v.OHIO DEPARTMENT OF PUBLIC SAFETY et al.

No. 2015–0390.

Supreme Court of Ohio.

Submitted June 14, 2016.

Decided Dec. 6, 2016.

Graydon, Head & Ritchey, L.L.P., John C. Greiner, Cincinnati, and Darren W. Ford, for relator.

Michael DeWine, Attorney General, and Jeffrey W. Clark, Hilary R. Damaser, and Morgan Linn, Assistant Attorneys General, for respondents.

Gregg Marx, Fairfield County Prosecuting Attorney, and Joshua S. Horacek, Assistant Prosecuting Attorney, in support of respondents, for amicus curiae, Ohio Prosecuting Attorneys Association.

FRENCH, J.

{¶ 1} Relator, the Cincinnati Enquirer ("Enquirer"), filed this original action in mandamus seeking the disclosure of recordings from cameras mounted on the dashboards ("dash-cams") of two Ohio State Highway Patrol ("OSHP") cars. Nearly two months later, respondents, the Ohio Department of Public Safety ("ODPS") and its director John Born, released the requested recordings. Based on our review of the recordings, we hold that the Public Records Act, R.C. 149.43, allowed ODPS to redact investigatory work product from one recording, but otherwise required ODPS to release the remainder.

{¶ 2} We deny, however, the Enquirer's request for attorney fees, statutory damages, and court costs.

FACTS AND PROCEDURAL HISTORY

{¶ 3} The recordings at issue pertain to a January 22, 2015 pursuit on Interstate 71 involving OSHP Troopers Laura Harvey and Cristian Perrin. OSHP is a division of ODPS. R.C. 5503.01. The pursuit began in Warren County, Ohio, shortly after 8:30 a.m. That morning, Harvey was on duty in her patrol car when she received a dispatcher's radio call relaying a citizen's report of a maroon Ford Fusion traveling south on Interstate 71 without a rear license plate and swerving off the roadway. Harvey waited south of the last known location of the car. She attempted to stop the driver by pulling her patrol car behind the suspect and turning on her emergency lights and siren. The suspect did not stop or pull over. Perrin and officers from other law-enforcement agencies later joined the pursuit.

{¶ 4} The pursuit ended in Hamilton County about 8:50 a.m. after the suspect, Aaron Teofilo, crashed into a guardrail. Teofilo was arrested and charged with multiple felonies.

The dash-cam recordings

{¶ 5} The activation of the emergency lights automatically triggered the dash-cams in both Harvey's and Perrin's cars to start recording their pursuit of Teofilo. Pursuant to OSHP's in-car camera policy, officers are expected to record traffic stops, pursuits, and other public contacts occurring within the operating range of the camera.

{¶ 6} The dash-cams generated three recordings of the pursuit: one from Harvey's car and two from Perrin's car. We briefly summarize the contents of those recordings here.

The first recording

{¶ 7} Harvey's recording begins about 8:30 a.m. and ends about 9:30 a.m. Along with video footage of the pursuit, the recording also includes audio of Harvey's voice, as well as radio communications from other officers and the dispatchers. Throughout the pursuit, Harvey reports her location and verbally notes traffic violations by Teofilo, including driving outside the marked lines and changing lanes without signaling. At 8:41 a.m., Perrin's patrol car joins the pursuit and pulls up along the right side of Teofilo's car. Both Harvey and Perrin initially report light traffic and estimated speeds of 55 to 69 m.p.h. As the pursuit gets closer to the city limits of Cincinnati, the command post advises that stop sticks will be deployed near exit 12.

{¶ 8} About 8:46 a.m., Teofilo avoids the stop sticks and then accelerates down the interstate reportedly at speeds of 90 to 120 m.p.h. For approximately four minutes, Teofilo disappears from the view of Harvey's dash-cam. Other law-enforcement agencies pursue Teofilo as Harvey backs off to protect the perimeter around the pursuit.

{¶ 9} Teofilo crashes and stops on the left side of the interstate. At 8:51 a.m., Harvey stops behind Teofilo's crashed car. Another patrol car is parked in front of Harvey's car and blocks Harvey's dash-cam. The officers order Teofilo out of the car, and Harvey can then be heard, but not seen, instructing Teofilo to put his hands behind his back. Harvey then asks Teofilo whether he has any weapons and why he is covered in blood. (Teofilo sustained lacerations to his face from the crash.)

{¶ 10} Harvey seats the handcuffed Teofilo in the back of her car, outside the view of the dash-cam, and begins to question him. Teofilo tells Harvey that he is trying to get to Alabama and that he stole the Ford Fusion.

{¶ 11} Harvey briefly leaves Teofilo in her patrol car. At 8:56 a.m., Harvey returns to her car, reads Teofilo his Miranda rights, and questions Teofilo again. Harvey also asks Teofilo whether he has hepatitis

or any other blood-borne diseases.

{¶ 12} During Harvey's second questioning of Teofilo, the car in front of Harvey's car is moved; Harvey's dash-cam then records activities around the crash site. The camera is at least one tractor-trailer's length away from the crashed Ford Fusion, and the angle does not change for approximately 35 minutes until the recording ends. Fire-department and law-enforcement personnel walk around the Ford, looking underneath and opening its doors.

{¶ 13} An unmarked car parks in the left shoulder of the interstate, and an unidentified individual emerges from the car to take pictures or video of the crash site. An ambulance arrives around the same time. Harvey discusses with other officers and with emergency medical personnel the protocol for transporting Teofilo to the hospital in handcuffs. Harvey then accompanies Teofilo to the hospital in the ambulance.

{¶ 14} Harvey's dash-cam continues to record in her absence. During that time, an officer reports over the radio the last four digits of the vehicle-identification number and license-plate numbers for the Ford Fusion. Two unidentified individuals set up tripods and video equipment in the left shoulder.

{¶ 15} Harvey's recording ends about 9:30 a.m., nearly 58 minutes after it began.

The second recording

{¶ 16} The first of Perrin's two recordings begins about 8:35 a.m. and ends about 9:20 a.m. For the first six minutes, Perrin is driving on Interstate 275 to intercept the pursuit on Interstate 71. The Ford Fusion and Harvey's patrol car appear at 8:41 a.m., after Perrin has entered southbound Interstate 71.

{¶ 17} During the pursuit, Perrin's recording shows the same events leading up to Teofilo's arrest as does Harvey's, but from a different vantage point. At 8:51 a.m., Perrin stops on the right side of the highway facing south and joins the other law-enforcement personnel surrounding the crashed Ford Fusion. Because of the vehicle's position, Perrin's dash-cam does not provide a view of Teofilo's arrest, the crash site or the actions of any law-enforcement officers during Teofilo's arrest.

{¶ 18} After Teofilo is in custody, Perrin moves his car toward the left shoulder with the dash-cam pointing toward the interstate median. The camera stays in this position until the video recording ends at 9:21 a.m. During those 27 minutes, the video shows only northbound traffic, the center concrete barrier, and the arrival of individuals to take pictures of the crash site.

{¶ 19} The audio in Perrin's recording between 8:54 a.m. and 9:21 a.m. consists of Perrin's, other officers', and dispatchers' communications over the radio and discussions with other officers on site after Teofilo's arrest. The sound stops for about five minutes after Perrin states that his battery is dead. When the sound returns, Perrin is heard talking with Harvey about reopening the interstate, taking an inventory of the Ford, towing the car, and waiting for another OSHP unit to take measurements at the crash site. Although Perrin subsequently filed an incident report summarizing what he found during his administrative inventory of the vehicle, Perrin's camera does not record his search or his findings.

{¶ 20} The sound in Perrin's recording fades at 9:01 a.m. The only audible sounds from that point are muffled barking from Perrin's police dog and intermittent radio communications. The recording ends at 9:21 a.m.

The third recording

{¶ 21} The third recording shows images of an empty seat from Perrin's vehicle during the pursuit, starting at 8:35 a.m. and ending at 9:21 a.m. The audio consists of sirens and the same radio communications heard in the previous recordings.

The Enquirer's request for records

{¶ 22} On January 29, 2015, a reporter with the Enquirer sent an e-mail to OSHP requesting a copy of the dash-cam recordings, the incident report, and any 9–1–1 radio communications related to the pursuit of Teofilo. That same day, OSHP denied the request in its entirety, stating that the prosecutor had asked that the video not be released yet. In response to the Enquirer's request for a specific basis in the Public Records Act for denying its request, the OSHP replied in a January 30, 2015 e-mail that the records fall under the exception for confidential law-enforcement investigatory records and cited R.C. 149.43(A)(1)(h) and 149.43(A)(2).

{¶ 23} In an e-mail dated February 3, 2015, counsel for the Enquirer demanded the immediate production of the requested records. On February 11, 2015, the assistant public-records manager for ODPS released the incident report and 9–1–1 communications responsive to the Enquirer's request. ODPS continued to deny the Enquirer's request for the video recording:

The dashboard camera video that you requested is part of an open criminal case that pertains to a law enforcement matter of criminal, quasi-criminal, civil, or administrative nature and whose release would create a high probability of disclosure of specific investigatory work product. Such records are not public records pursuant to ORC 149.43(A)(1)(h) and (A)(2)(c), the confidential law enforcement

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