A news organization has requested the release of a court surveillance system video that recorded the shooting of a Jefferson County judge outside the courthouse in August 2017. The news media argues the evidence provided by the county prosecutor didn’t establish that the video is a “security record,” which would be exempt from disclosure under Ohio’s public records law.

The Ohio Supreme Court will consider the appeal, along with six other cases, next week at oral arguments. 

Jefferson County Judge Shot on Street Near Courthouse
While walking to work on Aug. 21, 2017, Jefferson County Common Pleas Court Judge Joseph Bruzzese Jr. was shot by Nate Richmond outside the county courthouse. Judge Bruzzese and a nearby probation officer returned fire at Richmond, who was killed. The judge was hospitalized.

Andrew Welsh-Huggins, a reporter for the Associated Press, requested a copy of the video recording of the shooting from the Jefferson County prosecutor, who denied the request.

The reporter filed a complaint in May 2018 against the prosecutor through a streamlined process in the Ohio Court of Claims for handling public records challenges. The legislature in 2016 enacted the procedure in R.C. 2743.75 to offer an “expeditious and economical” method for resolving the disputes.

After a failed mediation, the court’s special master assigned to the case asked the prosecutor for additional information. The prosecutor submitted an affidavit from herself and a copy of the video, which was filed under seal. In response to two subsequent requests for information, the prosecutor provided several still photos and two more affidavits from herself.

Court of Claims Determines Prosecutor Didn’t Prove Video Is Security Record
In a January 2019 report, the special master found the prosecutor’s office didn’t meet its burden to show the video was exempt from disclosure as a security record under the state’s Public Records Act. Among its conclusions, the report stated that the prosecutor’s office didn’t back the claims of an exception with information from any law-enforcement, security, or technology experts. The special master ordered the video’s release with redactions to protect certain law-enforcement officers, and the Court of Claims adopted the report and recommendations.

The prosecutor appealed. The Seventh District Court of Appeals pointed out that the prosecutor’s affidavits were based on hearsay and weren’t provided by the court’s security office. The Seventh District concluded, however, that the video is a security record, exempt from disclosure to the public, because the reporter didn’t object to the affidavits.

The reporter appealed to the Ohio Supreme Court, which accepted the case, Welsh-Huggins v. Office of Jefferson County Prosecuting Attorney.

Reporter Maintains Affidavits Weren’t Adequate Evidence to Prevent Disclosure
In State ex rel. Plunderbund Media v. Born (2014), the Ohio Supreme Court concluded that records of threats against the governor are security records not subject to release to the public.
In Plunderbund, the state’s public safety office provided affidavits from several law-enforcement and telecommunications experts to support their claim that the materials were exempt from disclosure under the Public Records Act.

In this case, the special master contrasted the Jefferson County prosecutor’s affidavits with the evidence supplied in Plunderbund, determining that the Jefferson County prosecutor offered only conclusory statements and failed to prove the video was a security record, the reporter states. He argues the Seventh District’s decision adds aspects of trials to the straightforward Court of Claims process, which doesn’t follow trial practices. The appellate ruling “threatens the integrity” of R.C. 2743.75, the reporter’s brief concludes.

Prosecutor Counters Release Will Jeopardize Court Staff and Security
The prosecutor responds that the statements in the affidavits aren’t hearsay or conclusory because they’re based on her personal knowledge and she was present at the scene on the day of the shooting. Similar to Plunderbund, the video of this shooting documents threats to a state official, and its disclosure would endanger judges and court staff, the prosecutor argues. The video reveals where Judge Bruzzese keeps his gun, the location of the camera near the courthouse, the technical capabilities of the camera and the playback system, and the emergency response procedures, the prosecutor notes.

The prosecutor also contends that by simply watching the video a court can determine the recording is a security record. If the Supreme Court adopts the news media’s position, security records from all state public buildings will be subject to disclosure – an “ill-conceived and dangerous precedent,” the prosecutor’s brief maintains.

Oral Argument Details
The Supreme Court will consider four appeals, including Welsh-Huggins, on July 21. The Court will hear three cases on July 22. Oral arguments begin at 9 a.m.

Because of the COVID-19 pandemic, the Court will hold its session by videoconference. All arguments are streamed live online at sc.ohio.gov, and broadcast live and archived on The Ohio Channel.

In addition to these highlights, the Court’s Office of Public Information released preview articles today about each case, available through the case-name links.

Tuesday, July 21
In State v. Groce, three individuals were convicted of possessing and trafficking drugs at a Columbus house. The convictions, which included an 11-year sentence for engaging in a pattern of corrupt activity, were based on video footage from inside the home on a single March day in 2016. The Franklin County prosecutor argues there are no time periods required to prove a criminal enterprise or a pattern of corrupt activity. The prosecutor maintains the footage depicts continuous crimes committed over several hours that were part of a drug operation going on at the house for many weeks. The offender responds that the state offered no physical evidence or testimony to prove a longer-term drug operation.

In 2016, a Portage County business owner borrowed $500,000 from a local bank and signed a loan agreement, which included a cognovit clause. The bank’s standard loan form defined the borrower as “I” and the bank as “you.” However, the document contained a state-required warning to the borrower in which the borrower was described as “you.” In Sutton Bank v. Progressive Polymers, the company defaulted on the loan, but argues the bank can’t collect a judgment against it because of the defective warning. The company claims that “you” applied to the bank, not to the borrower. 

A Lorain County man was sentenced to five years of community control on 11 counts of not supporting his children. As part of his community control, the judge ordered that he “make all reasonable efforts to avoid impregnating a woman.” The father maintains in State v. Chapman that a ban on him procreating is overly broad and isn’t reasonably related to whether he is financially able to support his children. The prosecutor asserts that the court’s no-procreation condition is clear and will increase the likelihood that the father can provide for his current children.

Wednesday, July 22
In State v. Fazenbaker, a man was convicted of breaking and entering into a couple’s camping trailer housed at an Akron storage facility. Breaking and entering under Ohio law involves trespassing in an unoccupied structure to commit a theft or felony. While “occupied structure” is defined in state law, “unoccupied structure” isn’t. The county prosecutor states that, based on the “occupied” definition, the camper was a structure that was unoccupied at the time of the break-in, and the conviction should be upheld. The offender notes that the breaking-and-entering statute doesn’t refer to the “occupied structure” definition. Stating that the camper was unused for nearly two years, he contends the camper wasn’t susceptible to being occupied in its state, so it wasn’t an unoccupied structure.  

After being fired at an Eastlake Walmart, a former employee set fire to blankets in the store. He pleaded no contest to arson. The trial court ordered the man to register with the state’s Arson Offender Registry for the rest of his life. In State v. Carlisle, the man claims the registration law is unconstitutional because the only way to reduce the lifetime registration requirement to fewer years is if the prosecutor and the investigating law-enforcement agency request the trial judge to consider a reduction. The man contends this violates the separation-of-powers doctrine, while the state maintains the law doesn’t interfere with the court’s authority.

A Lorain County attorney objects to a proposed public reprimand for making an ex parte communication to a court. The attorney acknowledged her letter was an ex parte communication, but claims she didn’t break a professional conduct rule when she sent the letter to the staff attorney for a judge who was presiding over an adoption. The attorney wasn’t a participant in the case, which involved a woman seeking to adopt a special needs child, but learned of the adoption through a case she was handling. In Disciplinary Counsel v. Thomas, the Court will consider whether a communication sent to a staff attorney, but not directly to a judge or court official, is permissible.