Law Enforcement Dash-Cam Videos Are Public Records Subject to Redaction
Ohio law enforcement dash-cam recordings are public records that cannot be shielded in their entirety, but portions considered “investigatory work product” can be withheld, the Ohio Supreme Court ruled 7-0 today.
The Supreme Court determined that the Ohio State Highway Patrol should have promptly released to the Cincinnati Enquirer more than an hour of video from three dash-cam recordings of a January 2015 police chase and subsequent crash. The patrol did not release the video until May, two months after the driver’s conviction for fleeing and other crimes.
“Dash-cam” is shorthand for a fixed camera mounted to the dashboard of a police cruiser. Writing for the Court majority, Justice Judith L. French announced the Court declined to adopt a rule that all dash-cam video can be withheld by law enforcement until a suspect is prosecuted, or that recordings in their entirety are public records subject to prompt release. A case-by-case review is necessary to determine how much of a recording must be disclosed, she wrote.
Of the three state patrol recordings requested by the Enquirer of the chase of Aaron Teofilo, only 90 seconds from one trooper’s dash cam could be considered investigatory work product under the state public records law, the Court concluded.
The Court majority declined to award the Enquirer attorney fees, damages, and court costs, noting the patrol acted in good faith based on a 2014 court of appeals opinion that found the dash-cam recordings were not public record. Justice William M. O’Neill wrote the he would have awarded attorney fees to the newspaper.
Investigatory Work Product Exception Is Limited
Justice French explained that Ohio’s Public Records Act, R.C. 149.43, generally requires that government bodies promptly prepare and make available for inspection all requested records. The law lists certain types of information as not falling under the definition of a “public record,” including “confidential law enforcement investigatory records.” The patrol denied the Enquirer’s request, citing the R.C. 149.43(A)(2) exception for “confidential law enforcement investigatory records,” and stating that release of the videos would create a high probability of disclosure of “specific investigatory work product.”
Justice French wrote the Court recognized in its 1994 State ex rel. Steckman v. Jackson decision that “specific investigatory work product” does not shield all potential evidence of criminal activity from disclosure, and in that case, police had to release incident reports, including results of Intoxilzer tests. However, in 2001, the Court in State ex rel. Beacon Journal Publishing Co. v. Maurer found police incident reports can be redacted to shield some information. The Court’s reasoning in those cases applies to dash-cam video, Justice French concluded.
“In the end, we hold that decisions about whether an exception to public-records disclosure applies to dash-cam recordings require a case-by-case review to determine whether the requested recordings contain investigative work product,” she wrote.
Dash-Cams Activated With Emergency Lights
The Enquirer sought recordings from the cars of troopers Laura Harvey and Cristian Perrin. Harvey began to pursue Teofilo around 8:30 a.m. in Warren County when she received a dispatcher’s radio call indicating a maroon Ford Fusion was traveling south on Interstate 71 without a rear license plate and was swerving. Teofilo was later identified as the driver, and Harvey pulled behind him on the highway and attempted to make him pull over by turning on her emergency lights and siren. Activating the emergency lights automatically triggered the dash-cams. Teofilo did not pull over, and Perrin joined the pursuit. Dash-cams, two from Perrin’s car and one from Harvey’s, recorded the pursuit, which ended when Teofilo crashed into a guardrail about 20 minutes after the chase began and was arrested.
Harvey’s dash-cam recorded for nearly one hour capturing most of the pursuit and aftermath of the incident. The video captures Harvey’s voice and radio communications with other officers, including her verbal notes of Teofilo violating traffic laws.
The video loses sight of Teofilo’s vehicle for about four minutes when he reportedly accelerated to 90 mph to 120 mph. Her dash-cam reveals the crashed car, but another patrol car parked in front of Harvey’s blocked Harvey’s dash-cam from visually recording the arrest. Harvey can be heard, but not seen instructing Teofilo to put his hands behind his back and she is seen asking additional questions.
Harvey seated Teofilo in the back of her car, outside the view of the dash-cam. He told her he stole the car he was driving. Harvey briefly left the car, returned and read Teofilo his Miranda rights and questioned him. As she interviewed Teofilo, the patrol car ahead of her moved, and the dash-cam recorded the activities around the crash site from several feet away for about 35 minutes. It showed emergency responders inspecting the car. Harvey then left the site with Teofilo as he was being transported by ambulance to a local hospital while handcuffed. In her absence the video recorded unidentified individuals recording the crash site, and then ends.
Perrin’s recording lasted for nearly 45 minutes from when he joined the pursuit in Warren County until about 20 minutes after the crash. At the crash site, the dash-cam video was pointed toward the interstate median and showed only northbound traffic and the arrival of those taking photos of the site. The camera captured audio of Perrin speaking with other officers, including his taking inventory of the stolen car. He subsequently filed an incident report summarizing the inventory of the car, but the camera does not record his search or findings.
A second camera in Perrin’s car recorded the empty back seat of his cruiser and had only the sounds of sirens and the same radio communications as the dash-cam.
Enquirer Requests Dash-Cam Recordings
A week after the incident, the Enquirer sent an email to the patrol requesting the dash-cam recordings, the incident report, and any related 911 communications. The patrol denied the request in its entirety, stating the prosecutor had asked the video not be released. The Enquirer responded by requesting the specific basis for the denial, and the patrol cited the exception for confidential law-enforcement investigatory records. An attorney for the newspaper demanded immediate production of the records and, about a week later, the patrol released the written incident reports and 911 calls.
In its continued denial of the video, the patrol characterized the dash cam recordings as part of an open criminal case that pertained to a law enforcement matter of a criminal nature and stated the release of the recordings would create a high probability of disclosure of specific investigatory work product. The patrol cited State ex re. Miller v. Ohio State Hwy. Patrol, in which the Twelfth District Court of Appeals ruled in 2014 that video footage of a state trooper’s in-car, dash-cam recording met the confidential law-enforcement investigatory records exemption.
The Enquirer filed a writ of mandamus with the Supreme Court in March 2015 asking the Court to order the patrol to make the records available and to award attorney fees, statutory damages, and court costs.
Later that month, Teofilo pleaded guilty to fleeing and eluding police and carrying a concealed weapon. Two months later the patrol provided the newspaper the dash-cam records and requested that the Court dismiss the case because it had provided the records. The newspaper argued the situation was “capable of repetition, yet evading review,” because the same situation could repeat itself with law enforcement withholding dash-cam video until a lawsuit is filed, then releasing it before a court considers the merits of the record requestor’s argument. The Court agreed to hear the case.
Dash-Cam Recordings Are Public Records
The law allows public access to records kept by a public office and the patrol is a state agency subject to the law, the Court noted. Justice French explained that under the law, a “record” is “any document, device, or item, regardless of physical form or characteristic ... 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.”
The law encompasses nearly all documents memorializing the activities of a public office, except the ones for which the legislature has created exemptions that prevent their release, she noted. The dash-cam recordings are “records,” and Justice French cited the patrol’s manual, which indicated troopers are to use the cameras to record traffic stops, pursuits, and other public contacts within camera range. Troopers are advised the recordings can be used not only for the collection of evidence, but also for “officer-safety review, media requests, public information, training, possible civil litigation, and protection from unfounded complaints against officers.”
To be exempt from disclosure, the patrol must show the records fall within an exception, and Justice French noted the patrol met the first requirement of R.C. 149.43(A)(2) because the recordings pertain to a law-enforcement matter of a criminal nature because they showed and picked up Harvey describing Teofilo violating several traffic laws, penalized as either misdemeanors or felonies.
“But a record that merely pertains to a law-enforcement matter does not constitute a confidential law-enforcement investigatory record unless the release of the record would create a high probability of disclosure of specific investigatory work product. Our review of the recordings at issue here leads us to conclude that a 90-second portion of the recordings contains specific investigatory work product, but the remainder does not,” she wrote.
Law Does Not Define Work Product
Justice French wrote the Public Records Act does not define “specific investigatory work product.” But the Court, beginning with its Steckman decision, applied the principles of attorney work product and concluded that the term encompasses any “notes, working papers, memoranda or similar materials, prepared by (law enforcement officials) in anticipation of litigation.” She further explained that in a criminal case the term pertains to information assembled by law enforcement in connection with a probable or pending criminal proceeding.
“The protection for work product emanates from a concern that investigators and prosecutors should be free to gather, assemble, and prepare case information and theories ‘without undue and needless interference,’” she wrote, citing the U.S. Supreme Court’s 1947 Hickman v. Taylor decision.
The patrol argued all recordings of stops and pursuits constitute investigatory work product because they document evidence that furthers prosecution. Justice French countered that position is at odds with federal and state precedent that work product is not entitled to absolute protection from disclosure, and the Court ruled against automatic shielding when it required incident reports to be released.
Only Interview Can Be Withheld
Justice French wrote the Court’s review found only Harvey’s 90-second interview of Teofilo, when he is seated in the car and read his rights, could be withheld as investigatory work product compiled in anticipation of litigation. Harvey conducted her questioning in the car, away from public view, and informed him of his Miranda rights with intent to secure admissible statements for use in prosecution, Justice French noted.
The rest duplicates a large part of the same information the patrol reduced to writing in incident reports by Harvey and Perrin, and Justice French pointed out the incident reports also described investigatory steps taken by the patrol that were not recorded on dash-cams. The opinion noted Perrin’s written report revealed his search discovered a loaded revolver with a filed-off serial number in the car, which was not seen on dash-cam video. Justice French indicated Harvey’s vehicle was too far away to record any of Perrin’s investigative activities of the crash scene and his dash-cam video was pointed toward the median.
Justice French wrote that per patrol policy, the trooper recorded the pursuits and traffic stops and the dash-cams recorded automatically when the emergency lights came on, so the troopers did not exercise any investigatory discretion in activating the dash-cams. She added that all the video of individuals arriving at the crash scene, discussions among troopers about reopening the highway and taking Teofilo to the hospital, as well as the shots of traffic and the empty back seat of Perrin’s car held no investigative value.
Attorney Fees and Cost Denied
R.C. 149.43(C)(2)(b) authorizes the discretionary award of reasonable attorney fees when a court orders a public office to comply with the records law, and a court may consider the public benefit conferred by the release of the record and the reasonableness and good faith of the public office when it refuses the request.
In finding the patrol acted in good faith, Justice French wrote that at the time the patrol denied the request the Twelfth District’s Miller was the only Ohio decision “to squarely address this issue,” and it was reasonable for the patrol to base its decision on this existing case law.
The Court denied the Enquirer’s request for statutory damages and court costs because the newspaper failed to transmit its records request by hand delivery or certified mail. Justice French cited the requirement in R.C. 149.43(C) that in order to be eligible for damages and costs, the request has to be made by hand delivery or certified mail. The Enquirer made its requests by email.
Chief Justice Maureen O’Connor and Justices Paul E. Pfeifer, Terrence O’Donnell, Judith Ann Lanzinger, and Sharon L. Kennedy joined Justice French’s opinion. Justice O’Neill concurred in part and dissented in part.
Dissent Would Award Fees
In his separate opinion, Justice O’Neill indicated he would have awarded the Enquirer attorney fees because the Court ordered the records released and accepted the idea that the scenario of withholding dash-cams until legal action was initiated could be repeated.
“Whether police dash-cam recordings are public records is a major public-policy question in Ohio. It is wrong for this court to recognize the clear public interest in police dash-cam recordings and then to deny the Enquirer reasonable attorney fees after it shed light on this ongoing dispute between the state’s need for privacy and the public’s right to know what is going on,” he wrote.
Failing to award attorney fees can have a chilling effect on the press’s ability to pursue public records cases and instead rewards bad behavior, he maintained.
“The Enquirer could have saved attorney fees by abandoning this action as soon as the records were produced but it did not, and the law of Ohio is more easily understood as a result of their tenacity,” he concluded.
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