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.

You can read the opinion here.

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CA appellate court finds Title VII case not protected by state anti-SLAPP law

In an interesting, but probably predictable development, a California state appeals court found that a former CNN employee’s discrimination case against the news network can proceed, reversing a lower court’s decision that the network was protected by that state’s anti-SLAPP statute.

You can read the opinion here.

SLAPP stands for Strategic Lawsuit Against Public Participation. Wikipedia defines SLAPP lawsuits as “intended to censor, intimidate, and silence critics by burdening them with the cost of a legal defense until they abandon their criticism or opposition” and that definition is pretty considered with everyone else’s definition.   The California appeals court, in this case, relies on precedent and describes them as follows:  “The quintessential SLAPP is filed by an economic powerhouse to dissuade its opponent from exercising its constitutional right to free speech or to petition. The objective of the litigation is not to prevail but to exact enough financial pain to induce forbearance.”  Wilson v. CNN, et al, No. B264944 (Cal. Ct. App. Dec. 13, 2016)(internal citation omitted).

States like California have adopted anti-SLAPP statutes which aim to shift the financial risk to the person filing the suit.  Basically, if you have been served with a SLAPP statute, you can file an anti-SLAPP motion to strike the case because it involves ostensibly public speech.  The person who sued you then needs to show that they are more likely than not to prevail.  If they lose, many anti-SLAPP statutes let the Defendant collect attorney’s fees.

In this California case, the Plaintiff sued CNN for age and race-based discrimination.  At the trial court level, CNN claimed the lawsuit was a SLAPP suit and that “because CNN is a news provider, all of its staffing decisions regarding plaintiff were part of its editorial discretion and so inextricably linked with the content of the news that the decisions themselves are acts in furtherance of CNN‘s right of free speech that were necessarily ̳in connection‘ with a matter of public interest news stories relating to current events and matter[s] of interest to CNN‘s news consumers.”  The trial court agreed and punted the case.

It’s an interesting strategy, but ultimately did not survive scrutiny.

The appeals court went the other way, ruling this week that, “we reject defendants‘ characterization of their allegedly discriminatory and retaliatory conduct as mere ―staffing decisions in furtherance of their free speech rights to determine who shapes the way they present news. The press has no special immunity from generally applicable laws. . . . As previously noted, ―[T]he mere fact that an action was filed after protected activity took place does not mean the action arose from that activity for the purposes of the anti-SLAPP statute.  Moreover, the statute does not automatically apply simply because the complaint refers to some protected speech activities.” (internal citations omitted).

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Journalism prof describes “lost generation” of journalists

From CJR’s piece about Scott Reinardy:

I don’t use this word lightly, but I would call it an organizational depression that’s occurring. There has been so much loss in those newsrooms. Journalists don’t necessarily just lose jobs, they lose careers and some real self-identity.

I had many journalists who broke down and cried, who were so genuinely upset about what had happened to the profession they loved so dearly. It was really troubling.

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Judge rules city agency must move faster on records requests

From the Nashville Post:

In a significant victory for open records proponents across the state, Metro Nashville has lost a lawsuit over the amount of time its police department takes to respond to and fulfill open records requests.

Read more…

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Correction/retraction theory

I recently read a case that had been filed against several media groups in Mississippi, but has since been “removed” (transferred) to federal court by the Defendants. Ignoring the merits of the case, the allegations describe circumstances that occur so frequently and in so many newsrooms that I thought I would use it as a peg to briefly discuss the issue of running corrections/retractions and the legal strategy behind them.

The alleged facts of this case are these:

  • According to the Complaint, in July 2015, a television station in Mississippi broadcast a picture of the Plaintiff along with his name, and announced that he was wanted by local law enforcement for burglary, sexual assault and sexual battery. (Needless to say, the Plaintiff claims they identified the wrong guy.)
  • Following the broadcast, [Plaintiff] received numerous telephone calls from family members, friends, and coworkers advising [Plaintiff] that he was wanted for charges of burglary and sexual battery and/or sexual assault.
  • In the following days, Plaintiff faced threatening and/or embarrassing remarks and public ridicule in relation to [Plaintiff’s] alleged criminal activity, including the loss of his employment.
  • Or or about July 15, 2015, [Plaintiff] was arrested for the erroneous alleged crimes.
  • Or or about July 27, 2015, after [Plaintiff] had already spent approximately one (1) week in jail, the City dismissed all charges against him on the basis that he had been misidentified.

To be absolutely clear, none of the Defendants has filed an answer. We (I) do not know whether the news organizations ran the Plaintiff’s picture and name because that is what they were given by the local law enforcement authorities or whether it was just a newsroom mistake.

I am, however, going to hijack these facts and use them for my purposes: namely, to discuss what typically happens when stations make mistakes and why there is legal benefit to running a correction (other than the moral determination that it is the right thing to do).

In most tort cases (defamation is a tort), a plaintiff has to prove actual damages in order to make a claim.

To establish a prima facie case of defamation, the plaintiff must prove that (1) a party published a statement; (2) with knowledge that the statement was false and defaming to the other; or (3) with reckless disregard for the truth of the statement or with negligence in failing to ascertain the truth of the statement.

However, “the basis for an action for defamation, whether it be slander or libel, is that the defamation has resulted in an injury to the person’s character and reputation.” To be actionable, the allegedly defamatory statement must “constitute a serious threat to the plaintiff’s reputation.” Damages from false or inaccurate statements cannot be presumed; actual damage must be sustained and proved.

Thus, Tennessee courts have held that a plaintiff in a libel action must be able to show that his or her standing in the community and his public reputation for character has been injured by the inaccurate statement and, further, must have suffered real or actual damages due to that loss of standing or reputation.

Davis v. The Tennessean, 83 S.W.3d 125, 128 (Tenn.Ct.App. 2001)(emphasis added).

You can see from the sections of the case that I’ve cited that proving actual damage is a key part of bringing a succesful defamation action.  In other words, it is possible that someone negligently makes a false statement about you and that you cannot successfully bring a case against them because you cannot prove that you have actually been damaged by the false statement.

So, how do we prove actual damage?

There are all sorts of different strategies Plaintiff’s lawyers have deployed to prove actual damages in defamation cases, and I will not get into them here.

The point is that once you run a correction, you are arguably putting a stop to the accrual of that Plaintiff’s damages.  This means that even if a Plaintiff can prove that you negligently published a false statement about him and that he was damaged, the amount of damage should be controlled, or limited, by the fact that at some point you began to publish that you made a mistake and that the truth is whatever it is.

I cannot understate the value of this concept.   The Digital Media Law Project (“DMLP”) has an excellent article on the law of defamation.  Click here:  link.

The DMLP also briefly addresses the fact that at least one state (Arizona) has created a “retraction” statute that seeks to control the accrual of damages.  In Arizona, an allegedly damaged party must – by statute – demand a retraction (before filing suit) or else his damages are limited.  You cannot just wait around, suffer damages, and sue for an astronomical amount.

Other than just doing the right thing, this is one of the reasons media lawyers have always advised their clients to run corrections.  It is a “mitigation” concept:  Even if they did make a mistake, and they are going to be held liable, by taking steps to get it right, they can actually control the scope of that liability.


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Carlson v. Ailes: At least one reason she did not sue the company

I had long been wondering why former Fox anchor Gretchen Carlson had sued Roger Ailes rather than her corporate employer, Fox News Network LLC.  The suit has been discussed at length by various media, and a copy of the complaint is available on Ms. Carlson’s lawyer’s web site (Link: Here).  The lawsuit is essentially an action alleging gender-based discrimination and retaliation filed under New York City’s “little” Title VII statute.  Ordinarily, actions of this nature exist between employee and employer (under federal law and many state statutes), and Ailes was clearly an agent of her employer.  (Note:  The NYC statute prohibits discrimination by “an employer, an employee or an agent thereof.”  As Ms. Carlson alleges in her pleadings, this statute may permit one employee to sue another individually.)

It appears clear now, at least to me, that Carlson may have sued Ailes, and not her employer, to try to avoid an arbitration clause in her employment agreement.

The suit is pending in federal court in New Jersey, originally filed in state court but removed by counsel for Ailes to federal court.  Contemporaneous with Ailes’ removal of the suit, his counsel filed a motion to compel arbitration with the court, based on Carlson’s employment agreement.  You read his legal argument here.

On Friday, July 15, 2016, Ms. Carlson’s lawyers filed their brief opposing Ailes’ motion to compel arbitration.  You can read it here.  In it, she argues that the arbitration agreement is with Fox, but not Ailes.

Somewhat less interesting, but also noteworthy, Mr. Ailes’ lawyers on Friday also filed a motion to transfer venue to the Southern District of New York.  You can read that motion here.


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CJR: Proposed CA legislation creates potential open records issue

A bill now being considered by California lawmakers is calling attention to the uneasy balance between copyright principles and public-records law. AB 2880, introduced by the Judiciary Committee and revised May 31, would allow state agencies to claim copyright protections in government works, while at the same time attempting to restrict agency efforts to use their copyrights to circumvent the state Public Records Act.

Click here to read more at CJR.org.

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“Defamation by implication” action may proceed against Commercial Appeal in Shelby County Circuit Court

Adding a “question mark” to a controversial published statement does not necessarily shelter you from liability in Tennessee.

That is one of the ostensible takeaways from an opinion issued by the Tennessee Court of Appeals on Friday.  In its written opinion, the Court of Appeals held that the local court’s dismissal of Greg Grant’s “defamation by implication” claim against the newspaper was premature.

If you are inclined to read the opinion in Greg Grant v. The Commercial Appeal, et al. (linked here), you will notice that the Court also ruled that Tennessee’s “Fair Report” privilege does not protect the Commercial Appeal in this case but that, on the other hand, the statements at issue are not capable of defamatory meaning (and so the straight defamation claim should not proceed).  The Appeals Court remanded the case to Circuit Court however, for consideration of the “defamation by implication” claim.

I write about it here because the opinion carries with it an important message about the frequent efforts by media organizations to inoculate themselves from liability by posing questions in their reporting to which they cannot offer affirmative answers.  Simply put, sometimes it works, sometimes it does not, but it is not a sure thing.

Brief background:

Greg Grant sued the Commercial Appeal and several of its alleged agents over an October 19, 2013 article headlined, “Silent partner?  Grant’s involvement clouds $1.5 million Southbrook mall deal.”  (article link: here).  The article itself attempts to determine whether, in fact, Mr. Grant really is a partner in the mall deal and to what extent.  As the Appeals Court notes, the article does not answer the question with certainty (that’s why the trial court found that the straight defamation claim could not proceed. “To be considered defamatory, ―a question must be reasonably read as an assertion of false fact; inquiry itself, however embarrassing or unpleasant to its subject, is not accusation.”  Eisenstein v. WTVF-TV, 389 S.W. 313, 320 (Tenn. 2012)).

The newspaper is not however, in the clear on Grant’s “defamation by implication” claim.

In the process of examining Grant’s involvement, the newspaper accurately reports that Grant lost a 2002 False Claims Act case brought by the U.S. Government.  In that case, the District Court found (in 2004), that “a bus company owned by Grant submitted bogus bills by not carrying insurance and by claiming to have transported a TennCare patient to medical clinics when the patient was either in the hospital or getting treatment at home.”  The Commercial Appeal further reported that the District Court judge found that “Grant submitted 3,306 false claims totaling $52, 573.  By law, he tripled those damages to $187,719 and then tacked on an additional $5.7 million in civil penalties.”

Fast forward nine years, and the Commercial Appeal is investigating what Grant stood to gain from a conditional grant of $1.5 million awarded by the Memphis City Council toward development of the Southbrook mall.

Defamation by implication

And this is where this area of the law becomes precarious for media organizations.  According to the Court of Appeals, “Tennessee law provides that a statement may be capable of defamatory meaning even if the words do not appear defamatory on their face, but instead imply or suggest a defamatory meaning.”  The Court of Appeals found that the Commercial Appeal article ‘juxtaposes a series of facts so as to imply a defamatory connection between them.’”  See Opinion.

Grant argues that the “implication of the Article was to portray him as dishonest and deceptive.”   The Court of Appeals says this need to be examined further because:

As one example, the Article points to a letter written from Mr. Grant to [former Housing and Community Development Director Robert] Lipscomb wherein Mr. Grant wrote that he had ―removed himself from the project.  Then, the Article, seemingly attempting to undercut Mr. Grant‘s assertion in his letter to Mr. Lipscomb, states: ―Recently filed state records, however, list Grant as the registered agent for Southbrook Properties, Inc. . . .  As a second example, the Article provides: ―After an initial round of quibbling, Grant agreed he maintains an office at Southbrook.   The clear import of the preceding sentence is that Mr. Grant avoided admitting to the newspaper that he maintained an office at the mall.

In our opinion, the statements made in the Article . . .  are capable of implicitly bearing a defamatory meaning when read by a reasonable person.

Greg Grant v. The Commercial Appeal, No. W2015–00208-COA-R3-CV (September 18, 2015).

So there it is, “defamation by implication.”  Here is what the Tennessee Court of Appeals had to say about this cause of action on Friday:

Defamation by implication occurs when statements that are true are nevertheless actionable if they imply facts that are not true.  Id. (citing Aegis Sciences, No. M2012-00898-COA-R3- CV, 2013 WL 175807, at *11 (Tenn. Ct. App. Jan. 16, 2013)).

Here is the analysis upon which the Court relied:

“Defamation by implication” is false suggestions, impressions and implications arising from otherwise truthful statements. Defamation by implication arises not from what is stated but from what is implied when a defendant juxtaposes a series of facts so as to imply a defamatory connection between them, or (2) creates a defamatory implication by omitting facts, such that the defendant may be held responsible for the defamatory implication, unless it qualifies as an opinion, even when the particular facts are correct. Otherwise, by a careful choice of words in juxtaposition of statements in a publication, a potential defendant may make statements that are true yet just as damaging as if they were actually false. Defamation by implication is also referred to as ―innuendo.  For example, an article was found implicitly defamatory where it truthfully reported that a woman upon finding her husband at plaintiff‘s home, shot the plaintiff, but the article neglected to state that at the time they were all at a social gathering with several other people, including plaintiff‘s husband. Courts apply differing standards to defamation by implication actions from requiring the defamatory implication to arise from a material omission to not allowing such an action as contrary to free speech values.

Id. (quoting 4 Modern Tort Law: Liability and Litigation § 36:2 (2d ed.))(emphasis added).

Unlike a defamation claim, where a plaintiff needs to prove that the subject statements were false, a “defamation by implication” claim only requires that the subject statements “leave a false impression.”

The Court of Appeals ruling is not the end of the litigation.  It is merely the ruling on whether the underlying lawsuit should go forward in Shelby County.  On several points, the Court of Appeals held in favor of the newspaper, but on this one issue, the Court held that the Plaintiff will be able to proceed with his claim of “defamation by implication,” which alleges that the Commercial Appeal “impl[ied] that Mr. Grant is a dishonest businessman” and that this implication “could cause harm to his reputation in the community.”

Bottom line:  At least in Tennessee (and the other states referenced by this Court), media organizations are not automatically safe from liability by publishing reports in a “question” format.  If those reports carry with them untrue implications, you may still have tort exposure.


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Families of Virginia shooting victims may have limited recourse against employer

In the wake of the shooting of Alison Parker and Adam Ward, I have been glued to the news coverage of the tragic event. While the story was horrific from jump, I became particularly interested when I received the breaking news emails identifying the name of the suspect, Vester Flanagan. Flanagan and I worked together at WTOC in Savannah in 1999. He and I frequently worked the same week-day nightside shift. I’ve been in contact with other contemporaries who worked with Flanagan at that time and none of us had then identified any of the indicators of mental illness and rage that define the person he appears to have become during the last decade.

The video he recorded and uploaded is particularly haunting to me because there appears to be a moment when Alison Parker, mid-live shot, looks at Flanagan or notices him standing behind videographer Adam Ward. I cannot be certain whether she did or did not. I know however, from experience, that reporters must simultaneously 1) become acutely aware of people around them when doing live shots; and 2) remain totally nonplussed (at least externally) by the people around them. Every reporter who has done live television has had hecklers, drunks, kids, thugs and even well-intentioned television fans attempt to distract them from their live report or interview. It is clear from Flanagan’s point-of-view video that he approached the crew standing alone on that balcony and stood there behind Mr. Ward for more than thirty seconds. Even if Ms. Parker had intellectualized the fact that Flanagan was there, behind Mr. Ward, I cannot imagine her doing anything differently. How could she know what his intentions were? Reporters train to either “react appropriately” to their surroundings during live shots or to avoid distractions. It is hard for me not to remember my own experiences, willing myself to drown out those distractions and to remain in control of my live shot; it is hard not to imagine Ms. Parker engaging in the same self-discipline.

During one of the national newscasts today, an expert was asked about legal recourse that the families of Parker and Ward might have against the television station. There was discussion about Flanagan’s history of rage and about the station having put staff on notice about Flanagan lurking nearby the station. There was a lot of bluster about the station’s exposure to litigation because they “knew” (or should have known) that Flanagan was a risk. The suggestion was that the station knew he was a threat; the implication, as I heard it, was that the station could have, or should have, done something to prevent this shooting and may be legally liable as a result of not having done more.

Unfortunately, while the families of Parker and Ward may have legal recourse against third-parties (for example, Flanagan’s estate or the shopping center, if they can show that Bridgewater should have had certain security and did not, etc.), their recourse against the employer, the television station, appears to be limited to a maximum of $11,000 each. I am neither a Virginia lawyer, nor am I licensed to practice in that state, but a quick glimpse at the state of the law there appears to show consistencies with many states across the country. An employee injured or killed while on the job is limited to worker’s compensation (or workman’s compensation) benefits from their employer.

In Virginia, the rights and remedies provided in the Worker’s Compensation Act are exclusive of all other rights and remedies of an employee or his estate at common law or otherwise. Clean Sweep Prof’l Parking Lot Maint., Inc. v. Talley, 267 Va. 210, 213, 591 S.E.2d 79, 81 (2004)(citing Peck v. Safway Steel Prods., Inc., 551 S.E.2d 328, 329 (2001)). To me, this means that even if the families of these victims believe that the station should have done something differently, their only avenue to recover against the station is through the worker’s compensation policy carried by the station.

State law generally requires employers to carry worker’s compensation insurance. In exchange for carrying it, employers cannot be held liable for more than these policies provide when an injury occurs during the performance of one’s job duties. In Virginia, “[a]n injury will therefore be deemed to ‘arise out of’ the claimant’s employment ‘when there is apparent to the rational mind upon consideration of all the circumstances, a causal connection between the conditions under which the work is required to be performed and the resulting injury.’” Stillwell v. Lewis Tree Serv., Inc., 47 Va. App. 471, 477-78, 624 S.E.2d 681, 683 (2006)(quoting Combs v. Va. Elec. & Power Co., 525 S.E.2d 278, 282 (2000); see also United Parcel Serv. of Am. v. Fetterman, 336 S.E.2d 892, 893 (1985)). In this case, not only were Parker and Ward on the job, they were literally “on the air” when the suspect allegedly shot them.

The amount or extent of an employer’s liability is typically set out in state statute. In Virginia, for example, it appears the dependents of an employee killed on the job may be entitled to 400 to 600 weeks of that employee’s compensation (from the time of death). Va. Code Ann. 65.2-512.  It does not appear that either Ms. Parker or Mr. Ward had any statutory dependents (i.e., a spouse, a child, or destitute parents). In the absence of dependents, the Virginia Worker’s Compensation Act appears to only require an employer to pay burial expenses not exceeding $10,000.00 and the reasonable transportation expenses for the deceased not to exceed $1,000.00. Va. Code Ann. 65.2-512(B). The effect of the statute feels particularly rigid in this instance, because it appears both Parker and Ward were engaged to be married in the near future.

Worker’s compensation laws are both lauded and loathed. They entitle an injured employee to recover damages without having to prove that the employer did anything wrong (as they would have to do in a personal injury lawsuit). On the other hand, the damages are limited to amounts fixed by statute and typically exclude pain and suffering. Employers face the burden of having to pay premiums on potentially expensive policies, but enjoy the benefit of being protected from costly personal injury suits.

While it may indeed be other things as well, as between employer and employee, the horrific shooting in Virginia this week appears to be an on-the-job injury. As a result, the families of Parker and Ward may face an uphill battle if they seek to recover against the station.


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Old school news orgs using FOIA less and less

The Columbia Journalism Review has a fascinating piece on a new study about the decline of FOIA requests by legacy media (and the rise of same among digital media).

Ask any journalist and they’ll tell you the Freedom of Information Act process is broken. Denials are at record highs, navigating the bureaucracy can be a nightmare, and the federal agencies recently killed a modest reform bill. But a series of FOIA lawsuits also have just shown how the 50-year-old transparency law can still be indispensable. And absent any change in the law, the best way for news organizations to make sure it stays relevant is to use it innovatively and aggressively.

Click here to read more at CJR.org.

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