Columbus Police Body Camera v. Columbus Div. of Police ( 2024 )

[Cite as Columbus Police Body Camera v. Columbus Div. of Police, 2024-Ohio-569.]
IN THE COURT OF CLAIMS OF OHIO
COLUMBUS POLICE BODY CAMERA Case No. 2023-00727PQ
Requester Special Master Todd Marti
v. REPORT AND RECOMMENDATION
COLUMBUS DIVISION OF POLICE
Respondent
{¶1} This case is before the special master for a R.C. 2743.75(F) report and
recommendation. He recommends that: (1) Respondent be ordered to produce the
requested footage, subject to redactions, (2) Requester recover his filing fee and costs,
and (3) Respondent bear the other costs of this case.
I. Background.
{¶2} Requester Columbus Police Body Camera is a dba for Spencer Badger, a
police officer with the Respondent Columbus Division of Police (“the Department”).
Requester made a public records request to the Department for body camera footage of
a run he handled involving a runaway child. The Department denied access to that
footage in its entirety, asserting that it is exempted from public record status by R.C.
149.43(A)(1)(jj) and (A)(17)(a). Complaint, filed November 27, 2023.
{¶3} Requester filed this case to challenge that withholding. Mediation was not
ordered because of the length of time that Requester’s public records request has been
pending, the additional time that mediation would likely take, and the likelihood that the
issues presented could be quickly resolved on the merits. A schedule was set for the
Department to file the footage for in camera review and for both parties to file evidence
and memoranda supporting their positions. That schedule has run its course, and the
case is ripe for decision. Order, entered December 1, 2023.
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II. Analysis.
A. Respondent has proven that portions of the footage are exempted from
public record status by R.C. 149.43(A)(1)(jj) and (A)(17)(a).
{¶4} The Department does not challenge the sufficiency of Requester’s complaint
or that the footage is a record within the meaning of R.C. 149.0011(G). It does however
contend that the footage is exempted from public record status by R.C. 149.43(A)(1)(jj)
and (A)(17)(a). R.C. 149.43(A)(1)(jj) exempts “[r]estricted portions of a body-worn camera
or dashboard camera recording” from public record status. R.C. 149.43(A)(17)(a) states
that:
“‘Restricted portions of a body-worn camera or dashboard camera recording’
means any visual or audio portion of a body-worn camera or dashboard camera
recording that shows, communicates, or discloses any of the following:
(a) The image or identity of a child or information that could lead to the identification
of a child who is a primary subject of the recording when *** the law
enforcement agency knows or has reason to know the person is a child[.]”
{¶5} Those statutes exempt two things: the “image *** of a child” and “information
that could lead to the identification of a child *** when *** the law enforcement agency
knows or has reason to know the person is a child[.]” The Department has the burden of
proving that the footage contains those things. Welsh-Huggins v. Jefferson Cty.
Prosecutor’s Office, 163 Ohio St.3d 337, 2020-Ohio-5371, 170 N.E.3d 768, ¶¶ 27, 35, 54.
That burden can be carried by the contents of the disputed record if the essential facts
are “apparent and manifest just from the content of the record itself[.]” Id. ¶ 35.
{¶6} The Department filed the footage for in camera review and portions of it fit
squarely within R.C. 149.43(A)(17)(a). There is no dispute that the footage is from a
“body-worn camera.” It contains “image[s]” of an eleven-year-old boy who is obviously a
“child.” It also contains information that “could lead to the identification of a child who is a
primary subject of the recording.” The child’s residential address, as reflected on the
house number visible in the footage, could identify the child. See Cuyahoga Cty. Bd. of
Health v. Lipson O’Shea Legal Group, 145 Ohio St.3d 446, 2016-Ohio-556, 50 N.E.3d
499, ¶ 10 (“It is undeniable that the address of a home [of] a child *** can be used to
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identify the *** child”) (construing R.C. 3701.17). Those portions of the footage are
therefore exempted from public records status and should not be produced.
{¶7} The special master therefore recommends that the Department not be
required to produce the following portions of the footage: 2:00-4:19; 6:00-11:14; 11:25-
23:14; 29:15-34:06; 49:43-52:20.
B. The balance of the footage should be produced.
{¶8} The fact that some portion of the footage is exempt does not justify
withholding all the footage. R.C. 149.43(B)(1) mandates that if “a public record contains
information that is exempt *** the public office *** shall make available all of the
information within the public record that is not exempt.” Consistent with that, if a “court
finds that *** records contain excepted information, this information must be redacted and
any remaining information must be released.” State ex rel. Natl. Broadcasting Co. v. City
of Cleveland, 38 Ohio St.3d 79, 526 N.E.2d 786 (1988), paragraph four of the syllabus.
Accord, Bd. of Health v. Lipson O’Shea Legal Group, 2013-Ohio-5736, 6 N.E.3d 631 (8th
Dist.), ¶ 31 (a “blanket exemption *** is not appropriate, nor does it uphold the intent of
the Public Records Act”); Gannett GP Media, Inc. v. Ohio Dept. of Pub. Safety, Ct. of Cl.
No. 2017-00051-PQ, 2017-Ohio-4247, ¶ 49, adopted, 2017-Ohio-4248 (“not every record
that simply contains [exempt material] may be withheld in its entirety”). Consequently,
where “a video recording is not exempt in its entirety, only the portions of the recording
that fall squarely within a public records exception may be withheld.” Shaffer v. Budish,
Ct. of Cl. No. 2017-00690-PQ, 2018-Ohio-1539, ¶ 53 adopted February 22, 2018.
{¶9} Records containing exempt material can be withheld in their entirety only in
very limited situations. Complete withholding is only permissible if the exempted material
is “necessarily” and “inextricably intertwined” with the rest of the record. State ex rel.
McGee v. Ohio State Bd. of Psychology, 49 Ohio St.3d 59, 60, 550 N.E.2d 945 (1990);
State ex rel. Rocker v. Guernsey Cty. Sheriff’s Office, 126 Ohio St.3d 224, 2010-Ohio-
3288, 932 N.E.2d 327, ¶¶ 11, 14. The scope of exempt material must be so pervasive
that redaction would “thoroughly eviscerate” the record as a whole. Narciso v. Powell
Police Dept., Ct. of Cl. No. 2018-01195PQ, 2018-Ohio-4590, ¶ 12, adopted, 2018-Ohio-
5017, Complete withholding is not allowed if the exempt material is “discrete and
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severable” from the balance of the record. Gannett, 2017-Ohio-4247, ¶ 49. The public
office has the burden of proving such intertwining, Narciso, 2018-Ohio-4590, ¶ 68, and
any doubts are resolved against complete withholding. State ex rel. Rocker, 126 Ohio
St.3d 224, ¶ 16. Finally, the “extent of any redaction must be carefully restricted,” Narciso,
2018-Ohio-4590, ¶ 11.
{¶10} A review of the footage as a whole and the record of this case reveals that
the Department has no basis for withholding the footage in its entirety. The exempted
portions are indeed discrete and severable, being limited to the specific portions identified
above. Just as importantly, there are significant non-exempt portions disclosing how the
Department handled the underlying situation; the public should have access to that
information. See Kish v. City of Akron, 109 Ohio St.3d 162, 2006-Ohio-1244, 846 N.E.2d
811, ¶ 16 (“Public records are one portal through which the people observe their
government, ensuring its accountability, integrity, and equity while minimizing sovereign
mischief and malfeasance”). Finally, the Department has offered no evidence and only
conclusory arguments in support of total withholding.
{¶11} The special master therefore recommends that the Department be ordered
to produce all the footage, subject to the redactions for the portions falling within the scope
of R.C. 149.43(A)(1)(jj) and (A)(17)(a).
C. Requester is entitled to recover his filing fee and costs.
{¶12} R.C. 2743.75(F)(3)(b) provides that the “aggrieved person shall be entitled
to recover from the public office or person responsible for the public records the amount
of the filing fee of twenty-five dollars and any other costs associated with the action[.]”
Requester was aggrieved by the withholding of the footage as a whole. He is therefore
entitled to recover his filing fee and costs. The Department should bear the balance of the
costs of this case.
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I. Conclusion.
{¶13} In light of the foregoing, the special master recommends that:
- Respondent be ordered to produce the requested footage, subject to
redactions of the following portions of the footage: 2:00-4:19; 6:00-
11:14; 11:25-23:14; 29:15-34:06; 49:43-52:20.
- Requester recover his filing fee and costs.
- Respondent bear the other costs of this case.
{¶14} Pursuant to R.C. 2743.75(F)(2), either party may file a written objection with
the clerk of the Court of Claims of Ohio within seven (7) business days after receiving this
report and recommendation. Any objection shall be specific and state with particularity all
grounds for the objection. A party shall not assign as error on appeal the court’s adoption
of any factual findings or legal conclusions in this report and recommendation unless a
timely objection was filed thereto. R.C. 2743.75(G)(1).
TODD MARTI
Special Master
Filed January 25, 2024
Sent to S.C. Reporter 2/15/24