The city of Cincinnati did not act in good faith when it delayed releasing to the Cincinnati Enquirer body-camera footage of police officers using Tasers to subdue two men during an August 2017 arrest, the Ohio Supreme Court ruled today.

In a unanimous opinion, the Supreme Court denied the newspaper’s request for a writ of mandamus, which would have forced the city to turn over 19 videos, because the city provided redacted copies of those videos after the Enquirer’s request was filed. However, the Court ruled that the Enquirer is entitled to have its attorney fees and court costs paid by the city because a 2016 public records law permits an award of attorney fees when a public office or official acts in bad faith when voluntarily providing records after a suit has been filed.

The city’s initial refusal to provide the videos to an Enquirer reporter stated the footage was exempt under the “confidential law enforcement investigatory records (CLEIRS)” exception to the state public records law. Writing for the Court, Justice Patrick F. Fischer stated the city’s position “raises a question of whether the city even reviewed the videos before asserting that exception.”

Multiple Officers Respond to Call
Cincinnati police officers responded to a service call regarding Richard Coleman and James Crawley. The two resisted arrest, and the officers used Tasers to subdue the two men. They were charged with resisting arrest and other offenses.

About two months later, an Enquirer reporter filed a public records request with the police department that included a request for the bodycam footage from the arrests of Coleman and Crawley. Two days later, the city denied the request, citing R.C. 149.43(A)(1)(h), which exempts CLEIRS from disclosure.

In mid-November 2017, the Enquirer requested a writ of mandamus from the Supreme Court, seeking the bodycam footage. The city provided the reporter with the footage 17 days after the newspaper filed its suit. The city redacted footage of plainclothes officers who appear on film.

Enquirer Seeks All Footage
During oral arguments before the Court, the Enquirer clarified that the newspaper was challenging the decision to obscure the officers’ faces, prompting the Court to request additional evidence from the city that justified the redactions. A city officer stated in an affidavit that the blurring of the faces was necessary because the officers not doing so would render them less useful in covert operations and they would be subjected to an increased risk of harm if their identities were revealed.

The Enquirer did not contest the city’s response, and the Court concluded the newspaper received the footage it was entitled to and that Court did not have to grant the writ. However, the newspaper asked the Court to find that the city acted in bad faith by forcing the newspaper to file a lawsuit to obtain the bodycam footage.

Court Questions Timing of Footage Denial
The Court’s opinion explained that until 2016, the granting of a writ was required before a side seeking public records could win attorney fees. Lawmakers amended R.C. 149.43(C)(3)(B) to authorize fees when a writ is not granted in some cases. That includes when including if the Court finds the public office or official responsible for the records voluntarily made the records available for the first time after the record seeker sought a writ, but before the Court concluded whether the records should be released.

The city admitted that five of the videos contained “nothing of investigative value” but only show police officers driving. The opinion stated that the failure to produce the records “suggests the possibility the city never bothered to review any of the videos to see what they contained.”

The city also opposed the attorney fees by asking the Court to consider how time-intensive it was to review video from 19 bodycams.

“But there is no evidence that the city ever undertook such a review, or that the pace of review had anything to do with the timing of the release of the videos,” the opinion stated.

The city also suggested it was justified in delaying the release because of a separate lawsuit. Crawley had filed an excessive-use-of-force complaint against the arresting officers with the Cincinnati Citizens Complaint Authority. In response, the Hamilton County Prosecutor Joseph Deters filed a suit against the complaint authority, seeking to prevent it from having any hearings prior to the criminal prosecutions of Crawley and Coleman. A trial court issued a temporary restraining order (TRO) preventing the authority from conducting interviews.

As part of that lawsuit, the city submitted an affidavit from Kathleen Brackett with the police department’s records section, in which she stated that since the trial court granted the TRO to protect investigatory work product, she recommended the Enquirer’s request be denied.

The Court’s opinion noted that Brackett’s affidavit was submitted two months after the deadline for submitting evidence in the case and that the city had not asked the Court for permission to submit the affidavit late. The Court further stated that Brackett’s statement “merely begs the question” why the city withheld all the videos, including those it now concedes had no investigatory value. The Court concluded that the sum of the city’s actions reveal it did not act in good faith when it released the videos after the Enquirer filed its lawsuit.

The Court directed the Enquirer to submit a request for fees that includes evidence detailing the hours it expended and the hourly rates charged for the case.

2017-1618. State ex rel. Cincinnati Enquirer v. Cincinnati, Slip Opinion No. 2019-Ohio-3876.

View oral argument video of this case.

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