State ex rel. Cincinnati Enquirer v. City of Cincinnati, No. 2017-1618

• Court: United States State Supreme Court of Ohio
• Writing for the Court: Fischer, J.
• Citation: 135 N.E.3d 772,2019 Ohio 3876,157 Ohio St.3d 290
• Docket Number: No. 2017-1618
• Decision Date: 26 September 2019
• Parties: The STATE EX REL. CINCINNATI ENQUIRER, a Division of Gannett GP Media, Inc. v. The CITY OF CINCINNATI.

157 Ohio St.3d 290
135 N.E.3d 772
2019 Ohio 3876

The STATE EX REL. CINCINNATI ENQUIRER, a Division of Gannett GP Media, Inc.
v.
The CITY OF CINCINNATI.

No. 2017-1618

Supreme Court of Ohio.

Submitted May 21, 2019
Decided September 26, 2019

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

Paula Boggs Muething, Cincinnati City Solicitor, Peter J. Stackpole, Deputy City Solicitor, and L. Drew Marksity, Assistant City Solicitor, for respondent.

Faruki, Ireland, Cox, Rhinehart & Dusing, P.L.L., Erin E. Rhinehart, and Christopher C. Hollon, Dayton, in support of relator for amicus curiae Ohio Coalition for Open Government.

Fischer, J.

157 Ohio St.3d 291

{¶ 1} In this case, relator, the Cincinnati Enquirer ("the Enquirer"), seeks a writ of mandamus and an award of attorney fees and costs against respondent, the city of Cincinnati, in connection with a request for body-camera footage. For the reasons set forth below, we deny the request for a writ of mandamus but grant an award of attorney fees and court costs.

I. Factual and Procedural Background

{¶ 2} On August 8, 2017, while on duty and responding to a service call, Cincinnati police officers arrested Richard Coleman and James Crawley. Coleman and Crawley resisted, and the officers used a Taser to subdue the two men. Coleman and Crawley were charged with resisting arrest under R.C. 2921.33 and other offenses.

{¶ 3} Pursuant to Cincinnati Police Procedure 12.540, the officers were wearing body cameras during the incident. On October 31, 2017, James Pilcher, a reporter for the Enquirer, requested public records, including the body-camera footage, from the police department. On November 2, 2017, the city denied the records request on the basis of R.C. 149.43(A)(1)(h), which provides an exception to the disclosure of public records that are "confidential law enforcement investigatory records" ("CLEIRS").

{¶ 4} On November 14, 2017, the Enquirer filed this original action for a writ of mandamus. On February 28, 2018, this court granted an alternative writ of mandamus, established a schedule for the presentation of briefs and evidence, and ordered the city to submit the body-camera videos to the court under seal. 152 Ohio St.3d 1402, 2018-Ohio-723, 92 N.E.3d 874. The city complied with this directive, and the parties filed briefs and evidence. The Enquirer also filed an unopposed motion for oral argument, which we granted. 154 Ohio St.3d 1507, 2019-Ohio-470, 116 N.E.3d 1287. Following oral argument, we ordered the city to submit supplemental evidence to show whether the responding officers were acting in a capacity under which their

135 N.E.3d 774

identities could be exempted from disclosure. 155 Ohio St.3d 1465, 2019-Ohio-2012, 122 N.E.3d 1287. With briefing now completed, we proceed with our decision.

157 Ohio St.3d 292

II. Analysis

{¶ 5} In its complaint, the Enquirer sought a writ of mandamus and alleged that "[t]o date, [the police department] has refused to provide access to the Body-Cam Footage in any form." On December 1, 2017, 17 days after the complaint was filed, the city provided the body-camera footage to Pilcher, in the form of 19 videos. As it noted in its brief, the city redacted videos to obscure the faces of plainclothes officers who appear in the footage. During oral argument, counsel for the Enquirer made clear that it was challenging the decision to obscure the faces, prompting counsel for the city to request the opportunity to submit additional evidence to justify the redactions. In response to our request for supplemental evidence, the city submitted the affidavit of Cincinnati Assistant Police Chief Teresa Theetge, who attested that the plainclothes officers who appear in the footage operate in a covert capacity, both as surveillance and undercover officers, and that if the faces of those officers are disclosed, those officers will be less useful as covert units and subject to an increased risk of harm.

A. The Enquirer is not entitled to a writ of mandamus

{¶ 6} Mandamus is the appropriate remedy by which to compel compliance with Ohio's Public Records Act, R.C. 149.43. State ex rel. Physicians Commt. for Responsible Medicine v. Ohio State Univ. Bd. of Trustees , 108 Ohio St.3d 288, 2006-Ohio-903, 843 N.E.2d 174, ¶ 6. Exceptions to disclosure under the act are strictly construed against the records custodian, who has the burden to establish the applicability of any claimed exception from disclosure. State ex rel. Cincinnati Enquirer v. Jones-Kelley , 118 Ohio St.3d 81, 2008-Ohio-1770, 886 N.E.2d 206, ¶ 10.

{¶ 7} A "public record," under the Public Records Act, does not include "[r]ecords the release of which is prohibited by state or federal law." R.C. 149.43(A)(1)(v). Constitutional privacy rights are "state or federal law" for purposes of the Public Records Act. See State ex rel. Keller v. Cox , 85 Ohio St.3d 279, 282, 707 N.E.2d 931 (1999) (personal information in police officers' personnel files is exempt from disclosure).

{¶ 8} Police officers "have a fundamental constitutional interest in preventing the release of private information when disclosure would create a substantial risk of bodily harm, and possibly even death, ‘from a perceived likely threat.’ " State ex rel. Cincinnati Enquirer v. Craig , 132 Ohio St.3d 68, 2012-Ohio-1999, 969 N.E.2d 243, ¶ 14, quoting Kallstrom v. Columbus , 136 F.3d 1055, 1064 (6th Cir.1998). In Craig , this court affirmed the court of appeals' judgment that the city did not...