State ex rel. Plain Dealer v. Cleveland
| Citation | 106 Ohio St.3d 70,831 N.E.2d 987,2005 Ohio 3807 |
| Decision Date | 10 August 2005 |
| Docket Number | No. 2004-1765.,No. 2004-0448.,2004-0448.,2004-1765. |
| Court | United States State Supreme Court of Ohio |
| Parties | The STATE ex rel. PLAIN DEALER PUBLISHING COMPANY v. CITY OF CLEVELAND. The State ex rel. Vindicator Printing Company v. City of Youngstown. |
Baker & Hostetler, L.L.P., and David L. Marburger, Cleveland, for relator Plain Dealer Publishing Company.
Subodh Chandra, Cleveland Director of Law, Barbara A. Langhenry, Chief Assistant Director of Law, and Thomas L. Anastos, Assistant Director of Law, for respondent city of Cleveland.
Gittes & Schulte, and Frederick M. Gittes, Columbus; Baker & Hostetler, L.L.P., and David L. Marburger, Cleveland, for relator Vindicator Printing Company.
Iris Torres Guglucello, Youngstown Law Director, for respondent city of Youngstown.
Crabbe, Brown & James, L.L.P., Larry H. James, and Laura MacGregor Comek, Columbus, urging denial of the writ in case No. 2004-0448 for amicus curiae National Fraternal Order of Police.
Paul L. Cox, Chief Counsel, Fraternal Order of Police of Ohio, Inc., Columbus, urging denial of the writ in case No. 2004-0448 for amicus curiae Fraternal Order of Police of Ohio, Inc.
Faulkner, Muskovitz & Phillips, L.L.P., Robert M. Phillips, and Ryan J. Lemmerbrock, Cleveland, urging denial of the writ in case No. 2004-0448 for amicus curiae Fraternal Order of Police, Cleveland Lodge No. 8.
Walter & Haverfield, L.L.P., and Kenneth A. Zirm, Cleveland, urging granting of the writ in case No. 2004-1765 for amici curiae the Columbus Dispatch, the Copley Press, Inc., Beacon Journal Publishing Company, the Associated Press, the Cincinnati Enquirer, E.W. Scripps Company, Cox Ohio Publishing, the Blade, the Ohio Newspaper Association, and the Ohio Coalition for Open Government.
Marshall & Morrow, L.L.C., John S. Marshall, and Edward R. Forman, Columbus, urging granting of the writ in case No. 2004-1765 for amici curiae the American Civil Liberties Union of Ohio Foundation, the Committee Against Sexual Harassment, and Copwatch.
{¶ 1} These are mandamus cases in which relators request copies of police officer photographs. Because these records are peace-officer residential and familial information under R.C. 149.43(A)(7)(b) and exempt from disclosure under R.C. 149.43(A)(1)(p), we deny the writ.
{¶ 2} Relator, Plain Dealer Publishing Company ("Plain Dealer"), publishes the Plain Dealer newspaper, which is circulated to the general public throughout the greater metropolitan area of respondent, the city of Cleveland, Ohio.
{¶ 3} Under General Police Order 1.3.08, Cleveland police officers must maintain current photograph-identification cards, and if the officers are not in uniform, they must display the identification cards on their clothing when they are in police or local court buildings. The Photo Unit of the Cleveland Police Division takes the pictures and prepares the identification cards, with new cards typically issued every five years.
{¶ 4} In September 2002, the Plain Dealer requested that the Cleveland Police Division permit it to examine and scan "the identification photographs of all uniformed Cleveland police officers." The city denied the Plain Dealer's request based on the city's claim that "the photographs are not public records under O.R.C. 149.43 and release would violate the officers' federal constitutional right to privacy."
{¶ 5} In December 2002, Cleveland notified the Plain Dealer that it was establishing a procedure in which the city would notify individual police officers when the Plain Dealer requested their photographs and seek written consent from the officers to release their photographs. Cleveland expressed its concern that "providing [the Plain Dealer] with the requested photographs without obtaining permission from each individual affected officer might constitute a civil-rights violation" that would subject the city to "numerous time-consuming and expensive lawsuits by individual police officers and/or their unions." The Plain Dealer questioned the city's reliance on constitutional privacy rights because "[u]niformed officers are visible on the streets daily, advertising by what they wear that they are police officers." Nevertheless, the Plain Dealer agreed to wait and see how the city's new procedure operated.
{¶ 6} In June 2003, the Plain Dealer received a press release from the Rotary Club of Cleveland notifying "Photo and News Editors" of a photograph opportunity. The Rotary Club stated that it would present its annual Medal of Valor awards on June 12, 2003, at a public ceremony to three Cleveland police officers and three Cleveland firefighters. The press release listed the three officers by name. The Rotary Club noted that the three officers were being honored for their actions in confronting and arresting armed robbery suspects and that "[e]ach recipient has been selected by his department chief and the Director of Public Safety in cooperation with the City of Cleveland."
{¶ 7} On June 11, 2003, the Plain Dealer requested that the Cleveland Police Department provide it with photographs of the June 12 Rotary Club honorees, including the three police officers. On July 14, 2003, the city denied the Plain Dealer's request because the officers had "declined to authorize release of their photograph[s]." The officers withheld consent because of their concerns for their safety and that of their families. Nevertheless, two officers did not object to being photographed during the June 12 Rotary Club ceremony.1 In fact, one officer's picture from the ceremony appeared in the Plain Dealer.
{¶ 8} On November 2 and 3, 2003, the Plain Dealer published articles about the city's multimillion-dollar annual cost in paying overtime to its police officers for attending court hearings. The Plain Dealer reported that officers had received overtime pay to attend hearings that had been canceled weeks before and that several officers in the same cases submitted overtime cards with dramatically different hours, but each received the full amount of overtime compensation he claimed.
{¶ 9} Shortly before the publication of these articles, on October 31, 2003, the Plain Dealer notified the city that it was "preparing reports about the overtime pay that some Cleveland police officers have received." The Plain Dealer requested access to view and copy photographs of five uniformed police officers who would be named in the articles. On November 17, 2003, the city denied the Plain Dealer's request because each of the named officers "declined to authorize release of [his] photograph." These officers declined to authorize release of their photographs because they were concerned for their own and their families' safety.
{¶ 10} On March 12, 2004, the Plain Dealer filed this action for a writ of mandamus to compel Cleveland to provide photographs of the eight police officers that it had requested in June and October 2003. Cleveland answered the complaint, and on May 26, 2004, we granted an alternative writ. State ex rel. Plain Dealer Publishing Co. v. Cleveland, 102 Ohio St.3d 1456, 2004-Ohio-2569, 809 N.E.2d 31. The parties filed evidence and briefs, and the National Fraternal Order of Police ("National FOP"), Fraternal Order of Police of Ohio, Inc. ("Ohio FOP") and Fraternal Order of Police, Cleveland Lodge No. 8 ("Cleveland Lodge No. 8") filed amici curiae briefs in support of the city's decision not to release the officers' photographs to the Plain Dealer.
{¶ 11} On September 29, 2004, we granted the Plain Dealer's request for oral argument. State ex rel. Plain Dealer Publishing Co. v. Cleveland, 103 Ohio St.3d 1459, 2004-Ohio-5056, 815 N.E.2d 676.
{¶ 12} On July 4, 2004, a crowd of about 200 people attended an illegal fireworks display in the city of Youngstown, Ohio, respondent. A riot broke out when Youngstown police officers ordered the crowd to disperse. Five police officers were injured, and three people were charged with assaulting police officers.
{¶ 13} One of the officers at the scene wrote a memorandum blaming in part the city administration for the riot because the city's deployment of police officers created "dangerous conditions" and "backup officers [were] miles away when officers [were] in need of assistance." The officer distributed the memorandum to the mayor, police chief, and the internal-affairs unit of the Youngstown Police Department. The city administration replied that the officer's memorandum had some merit but had exaggerated what had occurred.
{¶ 14} Relator, Vindicator Printing Company ("Vindicator"), is an Ohio corporation that owns and publishes the Vindicator, a newspaper that is circulated throughout the greater metropolitan area of Youngstown. In preparing a July 20, 2004 newspaper article describing the officer's memorandum and the city's response, the Vindicator requested that the city provide it with a photograph of the officer. The city refused.
{¶ 15} In September 2004, a grand jury indicted several persons for crimes arising from the July 4 riot. In October 2004, the Vindicator again requested that the city provide it with the officer's photograph, and the city again refused. The Youngstown Police Department had notified the officer of the requests, and he advised that if it was standard departmental practice not to release his photograph, then the police department should not release it.
{¶ 16} On October 20, 2004, the Vindicator filed this action for a writ of mandamus to compel Youngstown to permit inspection and copying of the requested police officer photograph. On October 28, the Vindicator moved to consolidate this case with State ex rel. Plain Dealer Publishing Co. v. Cleveland, case No. 2004-0448. The city filed an answer to the Vindicator's complaint,...
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