Tuesday, November 24, 2020

On Camera

Dan Trevas reports on a decision of the Ohio Supreme Court

Video from an exterior Jefferson County Courthouse security camera that captured the shooting of a judge is not a “security record” and must be released to the Associated Press, the Ohio Supreme Court ruled today.

The Supreme Court rejected claims by the Jefferson County Prosecutor’s Office that that courthouse video showing the August 2017 shooting of Jefferson County Common Pleas Court Judge Joseph J. Bruzzese Jr. as he was about to enter the courthouse was exempt from the state’s public records law and could be withheld.

Writing for the Court majority opinion, Justice Michael P. Donnelly stated the Ohio Public Records Act allows for the exemption from release of a record “directly used for protecting or maintaining the security of a public office,” but the county prosecutor never provided any evidence about how the county was using the video footage of the shooting for that purpose. Justice Donnelly wrote the county cannot reject the release of a record based on a “requester’s potential use or misuse of the record.”

Chief Justice Maureen O’Connor and Justices Judith L. French, R. Patrick DeWine, and Melody J. Stewart joined Justice Donnelly’s opinion.

In a concurring opinion, Justice Sharon L. Kennedy wrote there is “no doubt that the security cameras and the livestream of video from them are used to safeguard the courthouse,” but nothing suggests old security-camera footage in general is used to protect or maintain courthouse security. A record must be “directly used” to protect the public office to be exempt from disclosure, and the county offered no proof of that use, she concluded. Justice Patrick F. Fischer joined Justice Kennedy’s opinion.

Judge Bruzzese was shot and seriously wounded by Nate Richmond near the courthouse entrance. Judge Bruzzese and a probation officer were both armed and returned fire.  Richmond was killed. Judge Bruzzese survived the gunshot wounds after undergoing surgery and a lengthy hospital stay.

The Jefferson County Courthouse was equipped with a security-camera system that recorded the shooting. One camera was positioned outside a door that was restricted for use only by courthouse personnel.

On the day of the incident, Associated Press reporter Andrew Welsh-Huggins emailed the prosecuting attorney’s office a public records request to obtain a copy of the courthouse video showing the shooting. The next day, Jefferson County Prosecutor Jane Hanlin denied the request, citing several exemptions to the Ohio Public Records Act, which is R.C. 149.43. Welsh-Huggins and attorneys for the Associated Press submitted subsequent requests for the video, which were denied.

In 2018, Welsh-Huggins filed a public-records access complaint in the Ohio Court of Claims. Under the court’s procedures, a special master reviewed the matter and determined the prosecutor failed to meet her burden of proof that the video was exempt as a security record under R.C. 149.433(A)(1). The special master recommended the video be released, and the Court of Claims adopted the report in February 2019.

Hanlin appealed the decision to the Seventh District Court of Appeals, which reversed the Court of Claims and held the video was a security record that did not have to be disclosed. Welsh-Huggins appealed that decision to the Supreme Court, which agreed to hear the case.

The Court reversed the Seventh District’s decision and directed the prosecutor to follow the Court of Claims decision ordering the release of the video as long as the prosecutor redacts any image of a peace officer who was authorized to work undercover or in plain clothes at the time.

Court Analyzes Public Records Law
Hanlin maintained the video met the definition of “security record” in R.C. 149.433(A)(1), which exempts “any record that contains information directly used for protecting or maintaining the security of a public office against attack, interference, or sabotage.” The Court of Claims determined that Hanlin had not shown, either by the content of the video or by the affidavits she submitted to special master explaining the reasoning for denying the records request that the video met the definition.

Justice Donnelly noted the Seventh District in reversing the Court of Claims did not clarify whether its decision was based on the content of the video or the prosecutor’s sworn statements about the content. The Seventh District declared the video “shows the blind spots and places an attacker could take cover and go undetected. The video also shows the emergency response means, methods and procedures.”

The Supreme Court’s opinion held the Seventh District’s decision appeared to be based on the prosecutor’s description of the capabilities of the video security camera system, including the ability to zoom, rotate, and isolate certain areas. But the appeals court does not explain how the video of the shooting incident itself establishes that it contains information directly used for protecting the public office, the Court stated.

The majority opinion stated that when a public office seeks to invoke an exemption to the public records law, it must provide evidence establishing the record meets the definition of the exemption. Hanlin argued that in her affidavits submitted to the Court of Claims, she explained that the county was using the video for securing the courthouse, its officers, and its employees.

She maintained that divulging the video would provide information that would “educate future would-be attackers to courthouse security plans and potential weaknesses.” The prosecutor acknowledged during the Court of Claims proceedings that, to her knowledge, there had been no use of the video for civil litigation, law-enforcement training, or any other official purpose.

“Regardless of whatever limitations or vulnerabilities the prosecutor believes might be revealed by public viewing of the video, R.C. 149.433(A)(1) dictates that a record’s security-record status is determined by the public office’s actual use of the record for the stated purposes, not by a public-records requester’s potential use or misuse of the record,” the opinion stated.

The Court noted the video captured an incident and emergency response that occurred outside on a public street. The incident could have been observed or recorded by any bystander, which undermines the prosecutor’s concern that the video might disclose something that an eyewitness would not have seen.

The Court stated it does not “question the sincerity of the prosecutor’s concerns” that the security measures and surveillance techniques are of critical importance and that disclosing information could diminish the effectiveness of those measures and techniques. However, the General Assembly crafted “very narrow, specific exemptions” to the public records law, and the video does not meet the exception, the Court concluded.

Contents of Record Not Enough to Withhold, Concurrence Stated
In her concurrence, Justice Kennedy wrote that it might seem “counterintuitive” to question whether security-camera footage is a security record. She noted that under R.C. 149.433, it is not enough that the record contains information relevant to the security of a public office, or even that the release of the record “could result in a serious threat to life and limb.” The information in the record must be directly used to protect the office, the concurrence stated.

“In this case, the prosecuting attorney presented no evidence to show how the information in the security footage of the shooting is used to protect or secure any public office from attack, interference, or sabotage,” the concurrence stated.

The opinion noted that Hanlin’s “affidavits are fatally defective” because they were sworn “to the best of her information, knowledge, and belief,” but that did not demonstrate that she had actually had personal knowledge of how the video was used to protect and secure the courthouse.

2019-1481Welsh-Huggins v. Jefferson Cty. Prosecutor’s OfficeSlip Opinion No. 2020-Ohio-5371.

Video camera icon View oral argument video of this case.

(Mike Frisch)

https://lawprofessors.typepad.com/legal_profession/2020/11/dan-trevas-reports-on-a-decision-of-the-ohio-supreme-court-video-from-an-exterior-jefferson-county-courthouse-security-camer.html

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