The Hamilton County prosecutor acted reasonably when he publicly released a University of Cincinnati police body-cam video six business days after receiving it, the Ohio Supreme Court ruled today.

The Supreme Court denied six media outlets’ request for statutory damages and attorney fees. The news organizations had filed a lawsuit to require Prosecutor Joe Deters to release video of Officer Ray Tensing’s fatal shooting on July 19 of Samuel DuBose. Deters provided the media the video on July 29 after securing a grand jury indictment of Tensing.

Writing for the Court majority, Justice Judith Ann Lanzinger noted Ohio’s public records act, R.C. 149.43, does not set a deadline for a public office responses to requests for public records, but only requires that a copy be made available in a reasonable period of time. The Court decision does not address claims by the prosecutor’s office that body-cam footage is exempt from the public records law.

Prosecutor Withholds Video
The Cincinnati Enquirer, the Associated Press (AP), WCPO-TV, WXIX-TV, WLWT-TV, and WKRC-TV filed a writ of mandamus with the Supreme Court on July 27, 2016, seeking the release of Tensing’s body-cam video from the killing of DuBose during a daytime traffic stop in the Mount Auburn neighborhood of Cincinnati near the university.

On the night of the shooting, Mark Piepmeier, chief assistant prosecuting attorney, went to the shooting scene and requested that the University of Cincinnati Police Department and the Cincinnati Police Department withhold the Tensing video until after the prosecutor’s office presented the case to a grand jury. A university police officer prepared a written incident report of the shooting shortly after midnight.

Throughout the following week, the six news organizations made various public record requests to the university, the Cincinnati police, and the prosecutor’s office for the body-cam video and other reports.

The requests for the body-cam video were denied on July 22, three days after the incident. The prosecutor’s office sent an e-mail to the news media citing two reasons for withholding the video. First, release could jeopardize a right to a future fair trial guaranteed by the U.S. Constitution’s Sixth Amendment, which the office asserted makes the video exempt by R.C. 149.43(A)(1)(v).

Next, the office argued the video is a “confidential law enforcement investigatory record,” protected from release by R.C. 149.43(A)(1)(h), and by R.C. 149.43(A)(2)(c), because it would reveal “specific confidential investigatory techniques or procedures” or “specific investigatory work product.” The office cited the 2014 Twelfth District Court of Appeals State of Ohio ex rel. Mark W. Miller v. Ohio State Highway Patrol decision, which found police dashboard-mounted camera video was exempt from the public records law.

The university released all the records requested of it about the incident except the body-cam video. Deters then issued a statement that read: “The law supports our position to not release the video. If you do not want to look at the law and just use your common sense, it should be clear why we are not releasing the video only a few days after the incident occurred. We need time to look at everything and do a complete investigation so that the community is satisfied that we did a thorough job. The grand jury has not seen the video yet and we do not want to taint the grand jury process. The video will be released at some point - -just not right now.”

Media Seek Court Order to Release Video
Four days after the statement, the six news outlets filed the complaint with the Supreme Court, asserting the prosecutor violated the public records act by failing to make the body-cam footage available for inspection and copying, or by failing to prove it was exempt from disclosure. In addition to a court order requesting its release, the organizations requested attorney fees and damages.

Deters responded to the complaint  by repeating the assertion that the video is not a public record because it is a confidential law-enforcement investigatory record and is also a “trial preparation record” exempted from release by R.C. 149.43(A)(1)(g).

Video Released Two Days Later
Justice Lanzinger noted that “notwithstanding the assertions” that the video was not a public record, Deters released the video on July 29, two days after the complaint was filed, and noted it was released “immediately after the grand jury concluded its deliberations” and indicted Tensing.

The records act allows a suit against a public office if a person is allegedly “aggrieved” by the failure of the public office to make the record available. Justice Lanzinger noted that the Enquirer, WCPO, and WXIX did not request the body-cam video from the prosecutor’s office, but from either the university or the Cincinnati police, and did not include either of those offices in the lawsuit.

“It is axiomatic that in order to be a person aggrieved by the failure of a public office to promptly respond to a public-records request, one must first request records from the public office,” she wrote. The Court dismissed the Enquirer, WCPO, and WXIX from the case.

Regarding the request by WLWT, the AP, and WKRC, which asked the prosecutor’s office for the video, Justice Lanzinger ruled the request for an order to release the video was moot because the media received the footage two days later.

Damages Denied
The opinion did not address whether a body-cam is a public record, but noted that statutory damages may be awarded if the records are not provided promptly. Justice Lanzinger explained while there is no deadline in the law for providing the records, public offices are required to make them available in a reasonable period of time.

“And the determination of what is ‘reasonable’ depends upon all the pertinent facts and circumstances,” she wrote, citing the Court’s 2009 State ex rel. Morgan v. Strickland decision.

Justice Lanzinger noted that in the Morgan case, the Court found the law gives a public office an opportunity to examine the records prior to release in order to make redactions of material that is exempt under the records act.

In this case, WLWT requested the video on July 20, but the prosecutor’s office did not obtain the video until July 21. The AP requested it on July 23, and WKRC on July 24. The mandamus action was filed on July 27, and the video was provided to the media on July 29.

“Because the prosecutor was entitled to review the video to determine whether any redaction was necessary and produced the body-camera video six business days after it was initially received by his office, we conclude that he responded in a reasonable period of time,” Justice Lanzinger concluded.

Chief Justice Maureen O’Connor and Justices Paul E. Pfeifer, Terrence O’Donnell, Sharon L. Kennedy, and William M. O’Neill joined Justice Lanzinger’s opinion. Justice Judith L. French concurred in judgment only.

2015-1222. State ex rel. Cincinnati Enquirer v. Deters, Slip Opinion No. 2016-Ohio-8195.

View oral argument video of this case.

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