Ohio Supreme Court rules dashcam videos not protected by “investigatory proceedings” exception
Earlier this month (December 2016), the Ohio Supreme Court determined that the Cincinnati Enquirer’s request for police dashcam videos pursuant to that state’s open records act should have been honored. The Ohio State Highway Patrol had initially denied immediate disclosure, citing a “confidential law-enforcement investigatory records” exception to the statute.
Specifically, the OSHP told the Enquirer:
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.
Analyzing Ohio precedent, the Court noted that, “[t]o 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. . . . We strictly construe these exceptions against the public-records custodian.” In this case, the Court found that “[f]or 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.” While the Court found that the dashcam videos meet the first part of the exception (that they are of a criminal, quasi-criminal, civil, or administrative nature), they did not meet the second part.
The Court found that a small portion of the dashcam recordings did probably contain investigatory work product that probably fit into the exception (and therefore could be withheld), but that general withholding is not appropriate.
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.