State ex rel. Cincinnati Enquirer v. Ohio Dept. of Pub. Safety (Slip Opinion) , 148 Ohio St. 3d 433 ( 2016 )

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
ex rel. Cincinnati Enquirer v. Ohio Dept. of Pub. Safety, Slip Opinion No. 2016-Ohio-7987.]
NOTICE
This slip opinion is subject to formal revision before it is published in an
advance sheet of the Ohio Official Reports. Readers are requested to
promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
South Front Street, Columbus, Ohio 43215, of any typographical or other
formal errors in the opinion, in order that corrections may be made before
the opinion is published.
SLIP OPINION NO. 2016-OHIO-7987
THE STATE OF OHIO EX REL. CINCINNATI ENQUIRER v. OHIO DEPARTMENT OF
PUBLIC SAFETY ET AL.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as State ex rel. Cincinnati Enquirer v. Ohio Dept. of Pub. Safety,
Slip Opinion No. 2016-Ohio-7987.]
Mandamus—Public Records Act—R.C. 149.43—Writ of mandamus sought to
compel Ohio Department of Public Safety to disclose recordings from
cameras mounted on the dashboards of State Highway Patrol cruisers—
Investigative work-product exception—Claim capable or repetition yet
evading review—Case-by-case review required to determine whether dash-
cam recordings must be disclosed—Request for attorney fees, statutory
damages, and costs denied.
(No. 2015-0390—Submitted June 14, 2016—Decided December 6, 2016.)
IN MANDAMUS.
_____________________
SUPREME COURT OF OHIO
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
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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
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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.
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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.
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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 investigatory records exception to the public
records laws.
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January Term, 2016
{¶ 24} As support for its position, ODPS cited State ex rel. Miller v. Ohio
State Hwy. Patrol, 2014-Ohio-2244, 14 N.E.3d 396 (12th Dist.), in which the court
ruled that video footage recorded by a state trooper’s in-car dash-cam fell within
the exemption for confidential law-enforcement investigatory records. Id. at ¶ 25.
The litigation
{¶ 25} On March 9, 2015, the Enquirer filed a mandamus action in this court
alleging that respondents violated the Ohio Public Records Act, R.C. 149.43, by
refusing to release the recordings. The Enquirer asked this court to order
respondents to make the recordings available. The Enquirer also requested attorney
fees, statutory damages, and court costs.
{¶ 26} Later in March, Teofilo pleaded guilty to one count of fleeing and
eluding after receiving a signal from a police officer to stop and one count of
carrying a concealed weapon.
{¶ 27} On May 1, 2015, ODPS provided copies of the recordings to the
Enquirer, stating that the conclusion of legal proceedings involving Teofilo allowed
for the release of the records. We granted an alternative writ and ordered the parties
to file briefs and evidence. 144 Ohio St. 3d 1437, 2015-Ohio-5468, 43 N.E.3d 449.
The matter is now ripe for decision.
ANALYSIS
{¶ 28} Mandamus is the appropriate remedy to compel compliance with the
Public Records Act. State ex rel. Cincinnati Enquirer v. Sage, 142 Ohio St. 3d 392,
2015-Ohio-974, 31 N.E.3d 616, ¶ 10; see also R.C. 149.43(C)(1). To be entitled to
a writ of mandamus, the Enquirer must establish by clear and convincing evidence
a clear legal right to the requested relief and a clear legal duty on the part of
respondents to provide the relief. Sage at ¶ 10. We construe R.C. 149.43 liberally
in favor of broad access and resolve any doubt in favor of disclosure. State ex rel.
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Toledo Blade v. Seneca Cty. Bd. of Commrs., 120 Ohio St. 3d 372, 2008-Ohio-6253,
899 N.E.2d 961, ¶ 17.
Mootness
{¶ 29} We first address whether ODPS’s release of the records moots this
action. Producing the requested records, as respondents have done here, generally
moots a public-records case. See id. at ¶ 43; State ex rel. Glasgow v. Jones, 119
Ohio St. 3d 391, 2008-Ohio-4788, 894 N.E.2d 686, ¶ 27. We have recognized,
however, an exception to mootness if a claim is “ ‘capable of repetition, yet evading
review.’ ” State ex rel. Cincinnati Enquirer v. Heath, 121 Ohio St. 3d 165, 2009-
Ohio-590, 902 N.E.2d 976, ¶ 11, quoting State ex rel. Dispatch Printing Co. v.
Geer, 114 Ohio St. 3d 511, 2007-Ohio-4643, 873 N.E.2d 314, ¶ 10.
This exception “applies only in exceptional circumstances in which the
following two factors are both present: (1) the challenged action is too short
in its duration to be fully litigated before its cessation or expiration, and (2)
there is a reasonable expectation that the same complaining party will be
subject to the same action again.”
Id., quoting State ex rel. Calvary v. Upper Arlington, 89 Ohio St. 3d 229, 231, 729
N.E.2d 1182 (2000).
{¶ 30} Both factors are present here. ODPS provided the dash-cam
recordings after the Enquirer filed its mandamus action, stating that the conclusion
of Teofilo’s legal proceedings allowed for the release of the records. The short
duration of Teofilo’s criminal proceedings and ODPS’s subsequent release of the
recordings truncated the Enquirer’s ability to fully litigate its mandamus claim
before us.
{¶ 31} We also recognize the public interest in dash-cam recordings.
Without resolution of the questions at issue here, we can reasonably expect the
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Enquirer and other media outlets to continue to request dash-cam recordings and
law-enforcement agencies to continue to withhold them. Under these
circumstances, we conclude that the Enquirer’s claim is not moot, and we proceed
with the merits of the Enquirer’s claim under the applicable version of the Public
Records Act, effective September 29, 2013 to March 19, 2015. See former R.C.
149.43, 2013 Am.Sub.H.B. No. 59.
The Public Records Act
{¶ 32} We begin with the premise that “ ‘public records are the people’s
records, and that the officials in whose custody they happen to be are merely
trustees for the people.’ ” State ex rel. Natl. Broadcasting Co., Inc. v. Cleveland,
38 Ohio St. 3d 79, 81, 526 N.E.2d 786 (1988), quoting State ex rel. Patterson v.
Ayers, 171 Ohio St. 369, 371, 171 N.E.2d 508 (1960). The Public Records Act
codifies this right to access government records and provides, “Upon request * * *,
all public records responsive to the request shall be promptly prepared and made
available for inspection to any person at all reasonable times during regular
business hours.” Former R.C. 149.43(B)(1).
{¶ 33} A “public record” is any record “kept by any public office.” R.C.
149.43(A)(1). ODPS and OSHP both qualify as a “public office,” which includes
“any state agency * * * established by the laws of this state for the exercise of any
function of government.” R.C. 149.011(A). “Record” is defined as “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.” R.C.
149.011(G). The definition of “record” encompasses “almost all documents
memorializing the activities of a public office,” unless otherwise exempt. See Kish
v. Akron, 109 Ohio St. 3d 162, 2006-Ohio-1244, 846 N.E.2d 811, ¶ 20, citing State
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ex rel. Beacon Journal Publishing Co. v. Bond, 98 Ohio St. 3d 146, 2002-Ohio-
7117, 781 N.E.2d 180, ¶ 13.
{¶ 34} The dash-cam recordings at issue here qualify as “records” because
they memorialize the activities of employees of the OSHP. According to OSHP’s
policy manual on audio-video use, troopers are expected to “record traffic stops,
pursuits, and other public contacts occurring within the operating range of the
camera.” In a section entitled “Use of Recordings for Purposes Other Than
Evidence,” the manual advises troopers that recordings may be used for officer-
safety review, media requests, public information, training, possible civil litigation,
and protection from unfounded complaints against officers. The dash-cam
recordings fit within the definition of a “record” because they document
governmental activities, decisions, and operations during a traffic stop and pursuit.
See Kish at ¶ 20 (“any record that a government actor uses to document the
organization, policies, functions, decisions, procedures, operations, or other
activities of a public office can be classified reasonably as a record”). Having
reached this conclusion, we turn next to the question whether an exception applies
to preclude their release.
Exception for confidential law-enforcement investigatory records
{¶ 35} To justify their refusal to provide the recordings to the Enquirer,
respondents have the burden to show that the withheld records fall squarely within
a statutory exception. State ex rel. Cincinnati Enquirer v. Jones-Kelley, 118 Ohio
St.3d 81, 2008-Ohio-1770, 886 N.E.2d 206, ¶ 10. We strictly construe these
exceptions against the public-records custodian. Id.
{¶ 36} In its February 11, 2015 letter to the Enquirer, ODPS invoked the
exception for confidential law-enforcement investigatory records and argued that
disclosure of the recordings would create a high probability of disclosure of specific
investigatory work product. See R.C. 149.43(A)(1)(h) and 149.43(A)(2)(c). To
consider this, we return to the Act’s definitions.
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{¶ 37} 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:
***
(c) Specific confidential investigatory techniques or
procedures or specific investigatory work product.
{¶ 38} For this exception to apply, respondents must therefore establish that
each of the withheld recordings “pertains to a law enforcement matter of a criminal,
quasi-criminal, civil, or administrative nature” and that its release would create a
high probability of disclosure of specific confidential investigatory techniques or
procedures or specific work product. R.C. 149.43(A)(2). See State ex rel. Miller
v. Ohio State Highway Patrol, 136 Ohio St. 3d 350, 2013-Ohio-3720, 995 N.E.2d
1175, ¶ 25. And here, only investigatory work product is at issue.
1. Pertains to law-enforcement matter of a criminal nature
{¶ 39} The recordings easily meet the first part of this test: they pertain to a
law-enforcement matter of a criminal or quasicriminal nature. OSHP has authority
to enforce laws relating to the operation of vehicles on roads and highways in the
state. See R.C. 5503.02. Harvey attempted to initiate a traffic stop based on her
observations that Teofilo was operating his vehicle in violation of the law. Harvey
noted specific instances of traffic violations by Teofilo, including driving outside
the marked lines, R.C. 4511.33, changing lanes without signaling, R.C. 4511.39,
and failing to comply with the signal of a police officer, R.C. 2921.331(B). The
Revised Code penalizes a violation of these provisions as misdemeanor or felony
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criminal offenses. The recordings therefore meet the first part of the test for a
confidential law-enforcement investigatory record.
2. Specific investigatory work product
{¶ 40} 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.
{¶ 41} R.C. 149.43 does not define “specific investigatory work product.”
In State ex rel. Steckman v. Jackson, 70 Ohio St. 3d 420, 639 N.E.2d 83 (1994), we
applied the principles of attorney work product and concluded that the investigative
work-product exception in R.C. 149.43(A)(2)(c) protects “ ‘any notes, working
papers, memoranda or similar materials, prepared by * * * [here, by law
enforcement officials] in anticipation of litigation.’ ” (Brackets sic.) Id. at 434,
quoting Black’s Law Dictionary 1606 (6th Ed.1990). Stated another way, unless
Crim.R. 16 requires disclosure, “information assembled by law enforcement
officials in connection with a probable or pending criminal proceeding is, by the
work product exception found in R.C. 149.43(A)(2)(c), excepted from required
release as said information is compiled in anticipation of litigation.” Steckman at
435.
{¶ 42} 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.’ ” Id. at 434,
quoting Hickman v. Taylor, 329 U.S.495, 511, 67 S. Ct. 385, 91 L. Ed. 451 (1947).
Since Steckman, we have clarified that the investigative-work-product rule is a
“very narrow exception[ ] to R.C. 149.43” that “applies to actual pending or highly
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probable criminal prosecutions.” (Emphasis deleted.) State ex rel. Police Officers
for Equal Rights v. Lashutka, 72 Ohio St. 3d 185, 188, 648 N.E.2d 808 (1995).
{¶ 43} Respondents argue that all recordings of traffic stops and pursuits
constitute investigatory work product because they document evidence of criminal
activity in furtherance of prosecution. Respondents’ blanket assertion of privilege,
however, is at odds with the well-settled understanding that investigatory work
product is entitled to qualified, not absolute, protection from disclosure. See, e.g.,
United States v. Nobles, 422 U.S. 225, 238-239, 95 S. Ct. 2160, 45 L. Ed. 2d 141
(1975) (protection of attorney work product prepared by investigative agents in
preparation for trial “is not absolute” and may be waived); J & C Marketing, L.L.C.
v. McGinty, 143 Ohio St. 3d 315, 2015-Ohio-1310, 37 N.E.3d 1183, ¶ 18 (privilege
for law-enforcement investigatory information requested in civil discovery “is not
absolute”).
{¶ 44} In Steckman, we recognized that the work-product exception in R.C.
149.43 does not automatically shield all potential evidence of criminal activity from
disclosure. We concluded that “[t]he work product exception does not include
ongoing routine offense and incident reports, including, but not limited to, records
relating to a charge of driving while under the influence and records containing the
results of intoxilyzer tests.” Steckman, 70 Ohio St. 3d at 435, 639 N.E.2d 83. We
have affirmed since Steckman that police incident reports are subject to disclosure.
State ex rel. Beacon Journal Publishing Co. v. Maurer, 91 Ohio St. 3d 54, 741
N.E.2d 511 (2001). But we have also clarified that Maurer “did not adopt a per se
rule that all police offense-and-incident reports are subject to disclosure
notwithstanding the applicability of any exemption.” State ex rel. Beacon Journal
Publishing Co. v. Akron, 104 Ohio St. 3d 399, 2004-Ohio-6557, 819 N.E.2d 1087,
¶ 55, 56 (police incident reports may be redacted to eliminate personal information
concerning child rape victim).
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{¶ 45} We therefore decline to adopt an interpretation of the investigative-
work-product exception that would shield from disclosure all dash-cam recordings
in their entirety merely because they contain potential evidence of criminal activity
that may aid in a subsequent prosecution. And we also decline to adopt a per se
rule subjecting all dash-cam recordings to disclosure notwithstanding the
applicability of any exception. Instead, the recordings at issue here illustrate that a
dash-cam recording, as a whole, may not easily fall in or outside the exception.
Rather, the three recordings contain images that have concrete investigative value
specific to the prosecution of Teofilo that may be withheld, but also contain images
that have little or no investigative value that must be disclosed. A case-by-case
review is necessary to determine how much of the recordings should have been
disclosed.
{¶ 46} Based on our review of the recordings, we conclude that about 90
seconds of Harvey’s recording—when Harvey takes Teofilo to her patrol car, reads
him his Miranda rights, and questions him—could have been withheld as
investigative work product compiled in anticipation of litigation. Harvey
conducted her questioning of Teofilo inside the patrol car, away from public view.
And by informing Teofilo of his rights as required by Miranda v. Arizona, 384 U.S.
436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), Harvey intended to secure admissible
statements for the prosecution’s later use at trial. This 90-second portion, therefore,
could have been withheld.
{¶ 47} The remaining portions of the recordings, however, are not exempt
from public disclosure. First, the investigative information in the recordings
duplicates in large part the same information in the incident reports, which ODPS
released promptly without redaction. Harvey noted in her dash-cam recording that
she observed Teofilo driving outside the marked lines, changing lanes without
signaling, and fleeing her signal to stop. Harvey’s incident report contained the
same recitation of events. But the report also described investigative steps that were
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not shown on the dash-cam recordings. The report summarized the results of
Perrin’s administrative search of the Ford Fusion, including the discovery of a
loaded revolver with a filed-off serial number. Neither Harvey’s nor Perrin’s dash-
cam, however, recorded Perrin’s search. Harvey’s dash-cam was too far from the
crash site—at least one tractor-trailer’s length away—to record any of Perrin’s
investigative activities. And Perrin’s dash-cam pointed toward the median, not the
crash site. While there may be circumstances where the disclosure of investigative
work product might impede a criminal prosecution, that concern is not implicated
here, where the work product (and more) had already been disclosed by other
means.
{¶ 48} Second, under the OSHP policy, troopers are expected to record all
pursuits and traffic stops, regardless of whether a criminal prosecution may follow.
The dash-cams here began to record automatically as soon as the troopers activated
their emergency lights and siren, so the troopers did not exercise any investigatory
discretion in activating their dash-cams. In contrast, OSHP does not require
troopers to record crashes and leaves it to the discretion of troopers to determine
when evidence at a crash scene is necessary for prosecution. In those
circumstances, respondents would have a better argument that a dash-cam
recording was prepared in anticipation of litigation. The troopers here, however,
did not make any investigative decisions to activate their dash-cams.
{¶ 49} Finally, a large portion of the recordings did not involve any
investigative functions at all. For example, the recordings showed the arrival of
various individuals who took pictures or video of the crash site. They recorded
discussions between troopers about matters of public safety, including reopening
highway traffic and transporting Teofilo to the hospital. And the third recording
showed nothing but the empty back seat of Perrin’s car. Under even the most
generous view of investigative work product, these images held no investigative
value and should have been disclosed.
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{¶ 50} 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. Having reviewed the three recordings at issue here, we conclude that
respondents should have released all three recordings to the Enquirer upon request,
with the 90 seconds of post-Miranda questioning of Teofilo redacted as
investigatory work product.
Attorney fees, statutory damages, and court costs
{¶ 51} We now address relator’s request for attorney fees, statutory
damages, and court costs.
{¶ 52} Former R.C. 149.43(C)(2)(b) authorized a discretionary award of
reasonable attorney fees and governs our analysis here:
If the court renders a judgment that orders the public office or the
person responsible for the public record to comply with division (B)
of this section, the court may award reasonable attorney’s fees
subject to reduction as described in division (C)(2)(c) of this section.
{¶ 53} When considering whether to award attorney fees in public-records
cases, a court may consider the presence of a public benefit conferred by a relator
seeking the disclosure and the reasonableness and good faith of a respondent in
refusing to disclose. State ex rel. Doe v. Smith, 123 Ohio St. 3d 44, 2009-Ohio-
4149, 914 N.E.2d 159, ¶ 33-34.
{¶ 54} Applying this standard, we deny the Enquirer’s request for attorney
fees. Respondents acted reasonably and in good faith in withholding the dash-cam
recordings until the conclusion of all probable or pending criminal proceedings
involving Teofilo. Respondents relied on State ex rel. Miller v. Ohio State Hwy.
Patrol, 2014-Ohio-2244, 14 N.E.3d 396 (12th Dist.), a case of first impression in
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which the court concluded that an OSHP dash-cam recording was exempt from
disclosure as a confidential law-enforcement investigatory record. Id. at ¶ 33. At
the time of the request, Miller was the only Ohio decision of record to squarely
address this issue. Respondents operated on a reasonable, good-faith belief, based
on existing case law, that their conduct did not violate R.C. 149.43. We therefore
deny the Enquirer’s request for attorney fees.
{¶ 55} We also deny the Enquirer’s request for statutory damages and court
costs because the Enquirer failed to transmit its request by hand delivery or certified
mail. The Public Records Act does not require a requestor to make a written request
or to deliver a request in any particular manner. See R.C. 149.43(B)(5). However,
the plain language of R.C. 149.43(C) does require the relator to transmit a written
request by hand delivery or certified mail in order to recover statutory damages and
court costs. R.C. 149.43(C)(1) provides for statutory damages and states in part:
If a requestor transmits a written request by hand delivery
or certified mail to inspect or receive copies of any public record in
a manner that fairly describes the public record or class of public
records to the public office or person responsible for the requested
public records, except as otherwise provided in this section, the
requestor shall be entitled to recover the amount of statutory
damages set forth in this division if a court determines that the public
office or the person responsible for public records failed to comply
with an obligation in accordance with division (B) of this section.
(Emphasis added.)
{¶ 56} R.C. 149.43(C)(2)(a) provides for court costs:
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If the court issues a writ of mandamus that orders the public
office or the person responsible for the public record to comply with
division (B) of this section and determines that the circumstances
described in division (C)(1) of this section exist, the court shall
determine and award to the relator all court costs.
(Emphasis added). The “circumstances described in division (C)(1)” include the
relator’s transmission of a written request by hand delivery or certified mail.
{¶ 57} Here, the Enquirer did not transmit its request by hand delivery or
certified mail, and it therefore failed to comply with the requirements for recovering
statutory damages and court costs. The Enquirer sent to ODPS its initial January
29, 2015 request, as well as its two subsequent requests for clarification on January
30 and February 3, 2015, by e-mail.
{¶ 58} We therefore deny the Enquirer’s request for attorney fees, statutory
damages, and court costs.
CONCLUSION
{¶ 59} For all these reasons we hold that, subject to redaction, the Enquirer
had a clear legal right to the requested records and that respondents had a clear legal
duty to provide the records in accordance with R.C. 149.43(B)(1). We deny
relator’s request for attorney fees, statutory damages, and court costs.
Judgment accordingly.
O’CONNOR, C.J., and PFEIFER, O’DONNELL, LANZINGER, and KENNEDY, JJ.,
concur.
O’NEILL, J., concurs in part and dissents in part, with an opinion.
_________________
O’NEILL, J., concurring in part and dissenting in part.
{¶ 60} Despite my agreement with the majority’s decision to release the
public records requested by relator, the Cincinnati Enquirer, in this case, I dissent
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January Term, 2016
from the decision not to award attorney fees to the Enquirer. Ultimately, the records
at issue were released to the Enquirer after a lawsuit was filed, but significantly,
this court did not dismiss this case as moot. Instead, this court recognized that this
issue is capable of repetition yet evading review.
{¶ 61} Whether police dash-cam recordings are public records is a major
public-policy question in Ohio. But 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.
{¶ 62} The majority’s conclusion that the good faith of law enforcement
outweighs the benefit to the public establishes a blueprint for state agencies to
stonewall valid requests for public records and then assert a good-faith defense
when called into court. This could have a serious chilling effect on the willingness
of the press to litigate public-records requests all the way to the Supreme Court of
Ohio. Our failure to award attorney fees to the prevailing party essentially rewards
bad behavior. “Catch me if you can” should not be the legal standard applied in
important policy questions.
{¶ 63} 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. The Enquirer has prevailed on
the merits in this case. I would award reasonable attorney fees pursuant to former
R.C. 149.43(C)(2)(b), 2013 Am.Sub.H.B. No. 59.
_________________
Graydon, Head & Ritchey, L.L.P., John C. Greiner, and Darren W. Ford,
for relator.
Michael DeWine, Ohio Attorney General, and Jeffrey W. Clark, Hilary R.
Damaser, and Morgan Linn, Assistant Attorneys General, for respondents.
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Gregg Marx, Fairfield County Prosecuting Attorney, and Joshua S.
Horacek, Assistant Prosecuting Attorney, in support of respondents, for amicus
curiae, Ohio Prosecuting Attorneys Association.
_________________
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