Tuesday, June 14, 2016
In the Matter of the Application of The Dayton Power and Light Company to Establish a Standard Service Offer in the Form of an Electric Security Plan, Case no. 2014-1505
Public Utilities Commission of Ohio
State of Ohio ex rel. Cincinnati Enquirer v. Ohio Department of Public Safety and John Born, Case no. 2015-0390
State of Ohio ex. rel. The Cincinnati Enquirer et al. v. Joseph T. Deters, Hamilton County Prosecuting Attorney, Case no. 2015-1222
State of Ohio v. Omar K. James, Case no. 2015-1230
Second District Court of Appeals (Clark County)
Can PUCO Authorize Service Stability Rider Paid for by Consumers in Utility’s Service Territory?
In the Matter of the Application of The Dayton Power and Light Company to Establish a Standard Service Offer in the Form of an Electric Security Plan, Case no. 2014-1505
Public Utilities Commission of Ohio
ISSUES:
- Was it lawful for the Public Utilities Commission of Ohio (PUCO) to approve a service stability rider for The Dayton Power and Light Company (DP&L) that collects an additional $110 million per year from customers for three years?
- Are the charges to be collected by the service stability rider “transition revenues” or “any equivalent revenues” that the company is prevented from collecting by state law?
- Did the PUCO violate the U.S. Constitution’s “supremacy clause” when it authorized DP&L to collect revenues in excess of federally authorized wholesale electricity rates?
- Did the PUCO violate state law when it imposed five conditions on DP&L in order to collect revenue through a service stability rider extension?
- Did the PUCO act unreasonably when it accelerated the deadline for DP&L to transfer its generation assets to an affiliate, and when it accelerated the schedule for implementing competitive bidding in DP&L’s service territory?
BACKGROUND:
As part of deregulation, DP&L submitted an electric security plan with the PUCO in 2012 that included a standard service offer. As part of the offer, the company proposed six “riders” that sought additional revenue from customers. One new rider was a “service stability rider” (SSR) that was non-bypassable, meaning it would be paid by customers who stayed with DP&L and those who switched to a competing provider.
The PUCO approved DP&L’s plan in 2013 that set the terms for 2014 through 2016. The PUCO-approved SSR provided the company $110 million for each of the three years. The PUCO also approved a SSR extension that allows DP&L to collect an additional $45.8 million from January through May 2017 if the company meets certain conditions, including demonstrating the money will be needed to ensure financial stability.
The Industrial Energy Users-Ohio (IEU) and the Office of the Ohio Consumers’ Counsel (OCC) were among those objecting to the standard service offer, especially to the SSR, and both appealed to the Ohio Supreme Court. DP&L also entered the case to contest the conditions the PUCO has placed on the 2017 extension and to object to other provisions of the approved plan regarding competition in the service territory. Because the PUCO is an administrative state agency, the Supreme Court is bound to hear the appeals.
Law Doesn’t Authorize Rider, Opponents Assert
IEU and OCC raise a number of issues in their arguments against the SSR including that the rider doesn’t meet the requirements of R.C. 4928.143(B)(2). The 2008 update to the deregulation law gave companies the option of using one of two forms to develop a standard service offer, IEU explains. The company could provide a market-rate offer, essentially selling power to customers at a price set by auctions coupled with some other charges permitted by the PUCO, or by establishing an electric security plan. The electric security plan could contain a number of other charges and features outlined in R.C. 4928.143(B)(2). DP&L opted for the security plan and added the SSR, originally requesting $137.5 million per year for five years.
The PUCO approved SSR at $110 million for three years and cited R.C. 4928.143(B)(2)(d) as the provision allowing it to approve the rider because it would “have the effect of stabilizing or providing certainty regarding retail electric service.” IEU and OCC object to the claim and argue that the provisions don’t have that effect and are not authorized by the legislation.
IEU notes DP&L executives testified in the rate hearing before the PUCO that the company was facing financial instability and attributed the troubles to the competitive market because of the large number of customers switching to other suppliers along with the declining prices for generating electricity. IEU argues the SSR is simply a subsidy to DP&L paid by existing customers and those who left, and the law doesn’t permit the PUCO to assist DP&L in meeting its financial goals by passing on costs to customers.
IEU maintains because distribution is still regulated by the PUCO, DP&L could file a separate rate case with the PUCO seeking funds to ensure electricity is distributed throughout its service territory. The group also argues that electricity transmission in the DP&L service territory is overseen by the federally regulated PJM Interconnection. PJM testified it could ensure that all existing customers in the DP&L territory would continue to receive reliable electric service if DP&L stopped generating electricity. IEU also notes the DP&L executives testified the company receives adequate rates for its distribution and transmission services, leading IEU to argue that the charge doesn’t have the effect of producing stable or certain generation service.
Rider Contains Unauthorized Transition Revenue, Opponents Maintain
IEU and OCC note that DP&L already received $441 million in transition revenues from its customers through a prior PUCO-approved settlement. They contend the SSR is an attempt to continue to receive transition charges from customers even though the law indicates all transition revenues or the equivalent of transition revenues had to be collected by 2005. The PUCO defends the charge, suggesting the wording of R.C. 4928.143(B)(2)(d) indicates lawmakers granted the PUCO authority to continue to allow for transition charges to be collected if a power company demonstrates the payments “have the effect of stabilizing or providing certainty regarding retail electric service.”
The provision was added in the 2008 update of the law, but IEU maintains lawmakers didn’t intend to allow these revenues to be collected from customers who switched service providers and nothing in the revised law repeals the original limits on collecting transition revenues stated in R.C. 4928.38.
The OCC contends while the PUCO and DP&L labeled the charges as linked to “financial integrity,” the true nature of the charges relate to lost revenues solely from risks associated with generation in a competitive marketplace. Subsidizing the company for losses from those risks would force customers to pay the equivalent of transition revenues, and those can’t be imposed, OCC asserts. Further, since DP&L testified its ability to distribute electricity isn’t at risk, and PJM indicated transmission isn’t at risk, then the charges don’t have the required stabilizing effect, OCC concludes.
Federal Law Blocks Use of Rider, Industrial Energy Users State
IEU contends the PUCO overstepped its authority to issue the SSR because the Federal Power Act gives the Federal Energy Regulatory Commission (FERC) exclusive jurisdiction to regulate the wholesale sale of electricity. While DP&L and the PUCO argue the SSR is imposed on the retail sale of electricity, IEU maintains that isn’t true and it’s an attempt to alter wholesale prices. Noting the U.S. Constitution’s “supremacy clause,” IEU argues only FERC can modify the prices charged for wholesale transmission of electricity, and it cited two recent federal appeals court opinions that found states can’t increase the rate charged for wholesale electricity. IEU notes that two of the three reasons DP&L asked for the SSR were related to decreases in wholesale electricity rates and to capacity charges, which are also regulated by FERC, and the PUCO can’t raise rates related to those charges.
DP&L Maintains Conditions Aren’t Permitted
DP&L supports the commission’s finding that the SSR enables the company to provide stable and reliable service during the three-year period, but it objects to the PUCO’s conditions placed on the service stability rider extension (SSR-E). Among the conditions to obtain the $45.8 million from the SSR-E, DP&L would have to demonstrate its financial integrity was threatened, file a distribution rate case by July 2014, and file an application to separate its generation assets from its transmission and distribution systems by the end of 2013.
DP&L didn’t file the separation application or the rate case, and argues that while R.C. 4928.143(B)(2)(d) allows it to seek a charge to ensure it can provide stable and reliable service, the statute doesn’t authorize the PUCO to impose the types of conditions it did.
DP&L notes the law states that any charge or condition has to relate to one of the items named in that section of the code, which include such factors as limitations on customer shopping for retail service, back-up or supplemental power service, and default service. Any condition imposed by the PUCO would not only have to relate to one of the items on the list, but also has to relate to promoting stable and reliable service. The company argues that none of the conditions relate to those items.
DP&L also raises concerns about the PUCO’s decision to set the date for transferring its generation assets to a separate company affiliated with DP&L or to an outside buyer by January 2016. It argues the PUCO initially agreed to give the company until May 2017. DP&L maintains the company can’t transfer the assets before May 2017 because many of the bonds the company issued are secured by the generation assets. If the company had to refinance the bonds earlier to free up the assets for transfer, the company could suffer significant cash-flow issues and harm its financial stability. Additionally, DP&L argues the PUCO’s decision to accelerate the date it must begin selling electricity at a largely market-based rate is unlawful because it will cause substantial harm to the company.
Law Gives Agency Discretion, PUCO Counters
The PUCO notes that unlike other electric utility companies in Ohio, DP&L has a more integrated structure that closely ties its distribution and transmission services to its generation assets. The commission argues the financial relief granted was necessary to ensure distribution services to DP&L customers remain reliable.
The PUCO maintains that IEU and OCC misinterpret the term “default service” in R.C. 4928.143(B)(2)(d), and the commission deems it to be identical to “standard service offer.” Because the request for the SSR is related to default service (the standard service offer that any customer either staying with DP&L or switching back to DP&L would receive), and promotes retail stability, the charge is authorized.
“While the Commission acknowledged that DP&L’s financial instability may be attributable to its generation business, it specifically found that ‘the entire company’s financial integrity is at risk,” including distribution operations,” the PUCO brief states.
The PUCO insists the SSR isn’t a generation charge, and it doesn’t violate the Federal Power Act as alleged by IEU. The PUCO maintains the federal cases cited by IEU related to state mandates that power companies buy electricity from new generation plants in their states and the costs to build those plants be passed on to customers. The commission argues the SSR isn’t a similar mandate and it will not affect wholesale prices of electricity, meaning it isn’t prohibited by federal law.
Security Plan Can Be Altered, PUCO Asserts
The PUCO defends its right to impose terms on DP&L’s SSR-E by noting the statute allows it to add any “conditions” relating to the revenues sought for stabilizing retail electric service. The commission argues the General Assembly didn’t “provide a blank check” to utility companies. The agency argues it balanced the company’s current needs for financial integrity with the customer needs for DP&L to modernize its systems and improve the effectiveness and efficiency of electric service in its territory. Asking the company to demonstrate its need for future additional payments is within its authority, the commission contends.
The PUCO also states it understands DP&L wants to delay the auction schedule as long as possible so that the only power it provides to its customers is generated by its own plants. The PUCO argues while that might be good for the company, it isn’t good for its ratepayers. The best way to balance the interest is to make DP&L compete with others, the PUCO concludes. It notes that if DP&L experiences financial stress from the move, the PUCO has already approved the SSR-E. If DP&L proves the move to competition is destabilizing the company, it can collect revenues from the extended rider.
Regarding the divesture of the generation assets, the PUCO notes DP&L had testified in a separate case before the commission that it could transfer the assets before May 2017. The PUCO states it reviewed “all of the conflicting information on the record” and deemed January 2017 is an appropriate deadline for the transition.
Friend-of-the-Court Brief
An amicus curiae brief supporting the OCC position has been submitted by the Ohio Partners for Affordable Energy and Edgemont Neighborhood Coalition.
- Dan Trevas
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.
Contacts
Representing the Office of Ohio’s Consumer Counsel: Maureen Grady, 614.466.9567
Representing Industrial Energy User-Ohio: Sam Randazzo, 614.469.8000
Representing The Dayton Power and Light Co.: Charles Faruki, 937.227.3705
Representing the PUCO from the Ohio Attorney General’s Office: Thomas McNamee, 614.466.4397
Are Police Dashcam Videos Exempt from Disclosure as Confidential Investigatory Records?
State of Ohio ex rel. Cincinnati Enquirer v. Ohio Department of Public Safety and John Born, Case no. 2015-0390
ISSUE: Is the video recorded by the dashboard camera in an Ohio State Highway Patrol officer’s vehicle during the pursuit of a motorist exempt from the definition of “public record” as a confidential law enforcement investigatory record or trial-preparation record?
BACKGROUND:
The Ohio State Highway Patrol received a 911 call on Jan. 22, 2015, from a motorist who reported seeing a dark vehicle without a rear license plate traveling south on Interstate 71. The caller also said the vehicle at times wasn’t staying in the lanes. A Highway Patrol trooper positioned her cruiser to watch for the reported car. When the trooper saw a car matching the description, she followed and activated her emergency lights to make a traffic stop. The activation of her emergency lights automatically turned on the dashboard-mounted video camera (dashcam) in her cruiser.
The driver didn’t pull over. A second trooper joined the pursuit on I-71 with his lights on and dashcam recording. The chase, which began in Warren County not long after 8:30 a.m., ended a little after 9 a.m. in Hamilton County when the vehicle was reported to have hit a guardrail on the highway, crossed a few lanes, and come to a stop. The driver, Aaron Teofilo, was arrested and charged with multiple felonies.
Newspaper Asks for Records
On Jan. 29, 2015, a reporter from the Cincinnati Enquirer sent an email to a Highway Patrol employee requesting a copy of the dashcam videos, the incident and arrest report, and any 911 communications related to this event. The employee responded the same day stating that the prosecutor had asked the patrol not to release the video at that time.
When the reporter asked about the basis for rejecting the request, the employee cited the confidential law enforcement investigatory records (CLEIR) exception in the state’s Public Records Act. On Feb. 11, 2015, a public records manager at the Ohio Department of Public Safety, which includes the Highway Patrol as one of its divisions, gave copies of the 911 call and the arrest and incident report to the reporter, but didn’t provide the dashcam videos.
Teofilo was indicted on Feb. 23, 2015. The Enquirer filed a writ of mandamus with the Ohio Supreme Court on March 9 asking the Court to order the Public Safety Department and its director, John Born, to release the dashcam recordings, citing the state public records law. Teofilo later pled guilty to offenses related to the highway pursuit, and on May 1 the Public Safety Department supplied the requested dashcam recordings to the Enquirer.
Media Argues Videos Not Investigatory Records
Citing prior case law, the Enquirer explains that the Ohio Supreme Court has described a two-part test for deciding whether the CLEIR exception to the Public Records Act applies. It must first be determined whether the requested material is a CLEIR. If it is, then the record is only excluded from release if there’s a high likelihood that one of the four kinds of information delineated in R.C. 149.43(A)(2) will be disclosed, in this case specific confidential investigatory techniques or procedures or specific investigatory work product.
The Enquirer argues the dashcam videos are not investigative records. The newspaper notes the Court explained in a 2001 case (State ex rel. Beacon Journal Publishing Co. v. Maurer) that incident reports are public records because incident reports start the criminal investigation, but aren’t part of the investigation. The Enquirer proposes that no law enforcement record created before the initiation of an investigation should ever be exempt as a CLEIR. The dashcam videos in this case recorded the objective facts of an incident in progress and the Highway Patrol’s emergency response to that incident, the newspaper asserts, adding that anyone nearby could have observed the events that day on the public interstate. While the recordings may later be helpful in the investigation or prosecution of the case, the Enquirer contends the videos weren’t made during an “investigation.”
The Highway Patrol’s policies limit the “[d]isplay and/or duplication of video regarded as evidence.” The Enquirer counters, however, that whether a record such as a dashcam video may be used as evidence is irrelevant to whether the record is public and needs to be disclosed under the Public Records Act. There is no “evidence” exception in the law, the newspaper points out.
Even if the Court determines the videos are investigatory records, the Enquirer maintains their release wouldn’t create a high probability that any “specific investigatory work product” would be disclosed to the public, which is required to ban the release. The Enquirer likens the dashcam videos to records relating to a charge of driving under the influence or containing the results of a breath-analysis test, which were both determined to be public records and to not qualify as a work-product exception by the Court in State ex rel. Steckman v. Jackson (1994).
The Highway Patrol hasn’t met its burden to show that the videos fit within the CLEIR exception, the Enquirer concludes. And though the Highway Patrol didn’t try to apply the trial-preparation exception to disclosure, the Enquirer argues that exception doesn’t apply in part because the videos weren’t compiled in anticipation of a legal proceeding.
Attorney General Contends Videos Are Evidence in Possible Criminal Case
The state maintains the dashcam videos in this case are confidential law enforcement investigatory records, as required by the first part of the Supreme Court’s CLEIR test, because the records pertained to a law enforcement matter. The state asserts the videos meet the test’s second prong because they are investigatory work product. To support this position, the state quotes Steckman in its brief to the Court: “[E]xcept as required by Crim.R. 16, information assembled by law enforcement officials in connection with a probable or pending criminal proceeding is, by the work-product exception found in R.C. 149.43(A)(2)(c), excepted from required release as said information is compiled in anticipation of litigation.”
The state contends that a dashcam video activated because an officer has reasonable suspicion or probable cause that a crime is being committed is “assembled by law enforcement officials in connection with a probable or pending criminal proceeding” and, therefore, meets the criteria for exemption as investigatory work product. The state adds that objective facts and observations were determined in Steckman to be investigative work product. In the state’s view, every high-speed pursuit of a motorist is an investigation of that motorist illegally fleeing and ignoring the officer’s signal to stop.
The pursuit of Teofilo began based on suspicion that he was violating Ohio law regarding display of license plates and, as the chase continued, other alleged offenses were noted. The videos were created after Teofilo was suspected of breaking the law and while an investigation of those offenses was ongoing, the state maintains.
The state disputes the idea that dashcam videos are analogous to incident reports. Instead, the state argues the Court has limited the meaning of offense and incident reports to “form reports” that contain information reported to a law enforcement agency and that initiate a criminal investigation. The videos don’t contain facts reported to the troopers, but instead document the troopers’ real-time investigative activities. The Court in Maurer didn’t conclude that all investigative material is automatically public record if it existed before the initial incident report was written, the state stresses. Because the videos weren’t attached to the incident report, as the statements were in Maurer, that case has no relevance to this one, the state asserts.
And when the CLEIR exemption pertains to requested records, the trial-preparation exemption in the public records law also is applicable, the state contends.
The state advocates a case-by-case analysis of the circumstances surrounding a request for the release of dashcam videos and other records, rather than an all-or-nothing rule.
Additional Brief Filed
The Ohio Prosecuting Attorneys Association submitted an amicus curiae brief supporting the state’s position with some of the same arguments it presented in a friend-of-the-court brief filed in the next case involving cameras that law enforcement officers wear on their bodies.
- Kathleen Maloney
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.
Contacts
Representing the Cincinnati Enquirer: John Greiner, 513.629.2734
Representing the Ohio Department of Public Safety and John Born from the Ohio Attorney General’s Office: Jeffery Clark, 740.845.2700
Are Police Body-Worn Camera Recordings Public Records?
State of Ohio ex. rel. The Cincinnati Enquirer et al. v. Joseph T. Deters, Hamilton County Prosecuting Attorney, Case no. 2015-1222
ISSUES:
- Under Ohio’s Public Records Act, does a prosecuting attorney’s office have the duty to promptly release recordings from police officer body-worn cameras once the office is in possession of the recordings?
- Can a police officer body-worn camera recording be classified as a confidential law enforcement investigatory record that is exempt from the public records act?
- If a police officer body-worn camera recording is a public record, can a prosecuting attorney withhold the recording from public inspection until after the video is presented to a grand jury?
BACKGROUND:
On July 19, 2015, Ray Tensing, a University of Cincinnati police officer, pulled over Cincinnati resident Samuel DuBose during a traffic stop on a city street near the university. Tensing activated a body-worn camera (bodycam) as he approached DuBose. The stop resulted in Tensing shooting and killing DuBose, all of which was recorded on the bodycam. The Cincinnati Police Department arrived on the scene to investigate the incident, and the university police department assisted. Hamilton County Assistant Prosecuting Attorney Mark Piepmeier arrived on the scene and conferred with both departments. He requested a copy of the “Tensing video” and advised, or ordered, the departments not to release the video publicly until the prosecutor’s office could present the video to a grand jury.
The next day, a Cincinnati Enquirer reporter requested copies of all reports, including camera footage, of the incident from the city and university police departments. That same day, a WLWT-TV reporter requested the bodycam video from the prosecutor’s office. Other media outlets soon followed with requests to the university and the prosecutor’s office for the Tensing video.
On July 21, Piepmeier received a copy of the video and the police departments rejected the Enquirer’s records request. The following day the prosecutor’s office denied record requests for the video citing two reasons – release of the video could jeopardize Tensing’s right to a fair trial guaranteed by the U.S. Constitution’s Sixth Amendment; and the video was a confidential law enforcement investigatory record (CLEIR) under R.C. 149.43(A)(1)(h) and wasn’t a public record.
The following day the Hamilton County prosecuting attorney released a statement to the media stating the law supported his position not to release the video and that a grand jury hadn’t seen the video yet. He said he didn’t want to taint the grand jury process.
“The video will be released at some point – just not right now,” the prosecutor’s statement concluded.
On July 27, three days after the prosecutor’s statement, the Enquirer and other media outlets sought a writ of mandamus from the Ohio Supreme Court compelling the prosecutor to release the Tensing video. Two days after the writ request, the grand jury returned an indictment against Tensing, charging him with murder and voluntary manslaughter. The prosecutor released the video to the media the same day.
The prosecutor moved for judgment on the pleadings in September arguing the video’s release made the action to seek a writ moot. The media outlets argued the situation is capable of repetition and requested the Supreme Court hear the case. The Court agreed to hear it.
Issue Draws National and Statewide Attention
Both the media outlets and the prosecutor’s office note the case isn’t only about what transpired with the Tensing video, but also how similar bodycam record requests are to be treated in the future. The case has drawn attention from state and national organizations that have filed amicus curiae briefs, including the national Reporters Committee on the Freedom of the Press in support of the six media organizations that collectively filed the case. The Ohio Attorney General and the Ohio Prosecuting Attorneys Association have filed briefs in support of the Hamilton County prosecutor.
Bodycam Recording is Public Record, Media Argues
The media note the Ohio Public Records Act, which is R.C. 149.43, defines “public record” as “any record that is kept by any public office,” regardless of its physical form or if it was created or received by the public office, and that the record “serves to document the organization, functions, policies, decisions, procedures, operations, or other activities of the office.” Because the university created the Tensing video to document its officer’s activities, and since the University of Cincinnati is a state-supported educational institution, the video is a public record, the media argue. And unless the video is exempt by a provision of R.C. 149.43, it must be released to the public, they state. The media further argue that while the university created the video, it was “kept” by both the Cincinnati Police Department and the prosecutor’s office because they obtained copies of it.
The media argue it is “undisputed” that the prosecutor’s office asserted control over the video, stating Piepmeier instructed the university and city police to deny any requests for the video. The prosecutor counters that Piepmeier advised the departments not to release it and that his office doesn’t have any authority to direct the university or the city police to take any action. The media argue the Piepmeier “order” made the prosecutor’s office the proper public office from which to request the video and they turned to him. And when the prosecutor’s office denied the request, the media contends they were right to bring the case against the prosecutor.
The Tensing video is not a CLEIR, according to the media, because it’s a law enforcement record created before the start of an investigation, and “pre-investigation” records, such as incident reports, help initiate an investigation but aren’t part of the investigation. They argue the video wasn’t created during an investigation of Tensing for murder, which is the investigation the prosecutor has cited to claim it’s a CLEIR. The media argue the Tensing video was created to document Tensing’s traffic stop of DuBose.
If Recording is CLEIR, Disclosure Still Urged
Even if it were considered a CLEIR, the media argue the law requires a CLEIR be released unless the record meets one of four categories of information described in R.C. 149.43(A)(2). The prosecutor alleges the recording is exempt under the statute’s category that its release creates a high probability of disclosure of “specific confidential investigatory techniques or procedures or specific investigatory work product.” The media counter almost all of the Tensing video recorded events that happened on a public street, and the majority of federal appeals courts have held the public has a right to record police activity in public. They argue the bodycam didn’t capture any “confidential techniques” used by Tensing because any nearby citizen could have recorded his actions.
The media also assert the video doesn’t qualify as specific investigatory work product because that exemption only applies to notes and materials prepared by law enforcement in anticipation of litigation. In this case, they argue, the only intention of the bodycam video was for the purpose of recording a traffic stop. They maintain that while the prosecutor’s office intended to use the video as evidence, there is no exception that prevents the disclosure of a record even if the government is going to use it as evidence in a subsequent criminal prosecution.
The media outlets have also requested the Court order the prosecutor’s office to pay the media’s attorney fees in the case, arguing they have met all the elements of R.C. 149.43(C)(2) to entitle them to fees.
Prosecutor Maintains Recording Not a Public Record
The prosecutor’s office argues the video does meet the CLEIR exemption, and even if the Court would rule otherwise, the office released the video “within a reasonable time” as required by law. The prosecutor maintains the Court has held that public record requests must be considered “in the context of the circumstances surrounding it,” and he made a decision to delay the release of the video out of concerns for the public safety of the city and its citizens. He also states that he didn’t want to impose on Tensing’s fair trial rights, or taint the grand jury process.
The prosecutor asserts Piepmeier arrived at the scene to advise the police departments and begin to prepare a case for the grand jury. His request for a copy of the recording was for trial preparation, making it a record “specifically compiled in reasonable anticipation of litigation,” which exempts the recording from the public records act.
The prosecutor also points to another exemption in R.C. 149.43(A)(1)(v) that blocks the release of any record of which the release is prohibited by state or federal law. He notes courts have recognized “common law” as a state law that qualifies under this provision of the statute, and he asserts the common-law principle of attorney-client privilege applies. Because Piepmeier acted as a legal advisor to the police departments, the recording is covered by attorney-client privilege and isn’t a public record, he concludes.
Bodycam Video Differs from Incident Reports
The prosecutor suggests bodycam recordings are distinguishably different from routine police incident reports and 911 emergency call audiotapes. In a 911 call, a civilian employee answers the call and dispatches personnel to respond, and isn’t conducting an investigation. Unlike a 911 call, a police officer activates the bodycam to assist in the investigation of a crime, and more times than not, it will be the first step in an investigation, the prosecutor argues. Similarly, the bodycam recording differs from an incident report because it doesn’t initiate an investigation, but is part of it.
Court Should Avoid Bright-Line Release Policy, Prosecutor Suggests
Maintaining that the Court has on many occasions ruled that when an issue is clearly a public policy matter, the decisions should be left to the General Assembly to make, the prosecutor suggests. Because of the public policy issues surrounding bodycams, the release terms of bodycam footage should be left to lawmakers, he states. He notes Ohio legislators and several local governments are examining bodycam policies.
“Included in those deliberations are such matters as whether the video from a body cam is a public record, and, if so, under what terms and conditions it should be released. Privacy is important. Timing is important. Public safety is important,” the prosecutor’s brief states. “These, and many other issues, are best left to the deliberative processes of the General Assembly.”
The prosecutor suggests if the Court is going to establish a rule for the release of bodycam footage, it should balance the public’s right to know with law enforcement’s responsibility to effectively engage in the criminal justice process. He suggests the Court establish 14 days as a reasonable time for releasing bodycam video, which would give investigators time to complete a grand jury process even if a complete investigation of a crime hasn’t concluded.
Deters also maintains because this is the first time the Court is considering the classification of bodycam video as a public record, it was reasonable for him to rely on precedent from other cases regarding other types of new technologies to determine if the Tensing video should be released. Since he had a reasonable belief he was following the law based on other types of records, the media isn’t entitled to attorney fees, he concludes.
Friend-of-the-Court Briefs
The Reporters Committee for the Freedom of the Press argues in its brief that bodycams document, rather than investigate, incidents and are similar to written incident reports, which are public records.
“Bodycam videos do not forget or omit information, nor do they let it be distorted by other events and witnesses; they simply record whatever they are pointed at. Such records must be released just like any other routine incident report,” the brief states.
The Ohio Attorney General’s Office maintains that when the video is in the hands of the prosecuting attorney, it is exempt because the prosecutor acquired it as part of the investigation into the shooting. The attorney general cited the Twelfth District Court of Appeals’ 2014 State ex rel. Community Journal v. Reed decision, which ruled that when the attorney general collects and assembles records from a public agency in order to investigate the agency, the collected files are CLEIR and not public even if the information in the file is public record when held by the local agency.
“The pattern of assembled evidence could compromise the investigation, but any requester remains free to seek the same records from the original agency,” the brief states.
Further, the attorney general argues the prosecutor acts in a separate role as legal advisor while coordinating with co-investigative agencies and isn’t the “person responsible for public records” when it comes to the bodycam video. In this case, the responsible holder of the public records is the university, the attorney general maintains, and whether a copy of the video in the possession of the university police department is a public record isn’t a question presented in this case.
The Ohio Prosecuting Attorneys Association states in its brief that the Court’s guidance is needed to effectively advise law enforcement because the issue of police camera video is likely to increase in frequency as technology develops. The organization urges the Court to adopt a rule that allows law enforcement the flexibility to withhold bodycam video “until the appropriate time.”
“There is undoubtedly a distinction between the public’s right to know, and the public right to immediately know,” the brief states. “The media’s desire to have information immediately must be balanced with appropriate functions of the criminal justice system.”
- Dan Trevas
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.
Contacts
Representing the Cincinnati Enquirer et al.: John Greiner, 513.629.2734
Representing Joseph Deters, Hamilton County Prosecuting Attorney: Andrew Douglas, 513.946.3279
Does Lack of Retrial Qualify as Procedural Error that Allows Wrongful Imprisonment Claim?
State of Ohio v. Omar K. James, Case no. 2015-1230
Second District Court of Appeals (Clark County)
ISSUE: Does an “error in procedure” occur for purposes of division (A)(5) of R.C. 2743.48, the wrongful imprisonment statute, when the state doesn’t retry a defendant whose conviction has been vacated?
BACKGROUND:
Omar James was arrested and charged in September 1996 for possession of powder and crack cocaine, carrying a concealed weapon, and having a weapon while under disability. In a June 1997 trial, the jury couldn’t reach a verdict on the possession and concealed weapon charges, but convicted James of the weapons-while-under-a-disability charge. James served one year in prison for that offense.
In June 1998, James was retried on the undecided three counts. The public defender representing James withdrew before the second trial. When the trial began, James’ new lawyer asked the court for a continuance because he said he wasn’t prepared. The court denied the request. During jury selection, James commented twice that he wanted to fire his lawyer. The judge asked James if he wanted to represent himself, and James then proceeded pro se.
The jury found James guilty of the three offenses, and the court sentenced him to a 13-year prison term. The Second District Court of Appeals affirmed his conviction and sentence in February 1999.
Defendant Appeals in Federal Courts
James filed a claim in federal district court, in part asserting he didn’t knowingly and voluntarily waive his right to counsel at the second trial. The federal court granted a conditional writ of habeas corpus in June 2005. The state appealed, and the Sixth U.S. Circuit Court of Appeals agreed with the lower federal court that the trial judge hadn’t made sure James’ waiver was knowing and voluntary and didn’t make an explicit finding of that conclusion. The state released James in June 2007.
In July 2008, the federal district court addressed additional filings in the case and ordered the state to either retry James on or before Oct. 27, 2008, or refrain from a retrial on the charges. James made a motion to dismiss the three remaining counts in the indictment, and the trial court dismissed them with prejudice in August 2009.
Wrongful Imprisonment Compensation Sought
James then sued the state for wrongful imprisonment. The trial court granted summary judgment to the state, but the Second District reversed the decision on appeal. After deciding Mansaray v. State in 2014, the Ohio Supreme Court returned James’ case to the appeals court to apply that ruling.
The Second District determined that James still qualified as a wrongfully imprisoned individual following Mansaray. One of the requirements in the wrongful imprisonment statute, R.C. 2743.48, is that the individual must show “subsequent to sentencing and during or subsequent to imprisonment, an error in procedure resulted in the individual’s release.” The appeals court concluded the prosecutor’s decision not to retry James was a procedural error that occurred after sentencing and after imprisonment, meeting the wrongful imprisonment requirement.
The state appealed, and the Ohio Supreme Court agreed to consider the issue.
Trial Errors Don’t Meet Wrongful Imprisonment Criteria, State Argues
The state notes the “error in procedure” originally identified by the Second District was the failure of the trial court to ensure James made a knowing and voluntary waiver of counsel. That error occurred before sentencing and, therefore, cannot meet the R.C. 2743.48(A)(5) requirement, the state contends. Citing Mansaray, the state explains that an (A)(5) procedural error has to involve a mistake in the legal process that occurred subsequent to sentencing and during or subsequent to imprisonment.
The state maintains in its brief that the Mansaray Court interpreted the statute to mean wrongful imprisonment claims must “show a post-sentencing mistake in the legal process that, once corrected, resulted in [the claimant’s] release from confinement.” Lower courts have concluded, based on Mansaray, that trial errors can’t meet the error in procedure prong of the wrongful imprisonment law, the state points out.
The Second District’s conclusion that the prosecutor’s decision not to retry James before the deadline set by the federal court was a qualifying procedural error is also wrong, the state asserts. The error that occurred was the trial court’s failure to secure an adequate waiver of counsel, the state argues, adding that the trial-level error is what led to James’ release from prison. The prosecutor’s determination not to retry James was no error, and instead enabled James to ask the court to dismiss the indictment. And the state notes James was released from prison in 2007 because of the waiver-of-counsel issue, not later after the prosecutor chose not to pursue a retrial. In the state’s view, the lack of a retrial can’t be called an “error,” because that decision is at the discretion of each prosecutor.
State Delayed, and That Was Error After Imprisonment, James Asserts
James counters that rather than choosing not to retry him, the state instead repeatedly indicated that it planned to refile the charges and then never did so. This delay violated his constitutional right to a speedy trial, James argues. He contends the Second District correctly identified this speedy trial violation as an (A)(5) procedural error, which allows him to proceed with his wrongful imprisonment claim.
He also discusses whether the statute means the error or the correction of the error has to take place after sentencing or during or after imprisonment.
“If indeed the correction of the error and not the error itself is what results in the release, and release (as the State contends) means ‘release from confinement,’ then it does not matter if the error is strictly a trial error or an appellate error or a post-conviction error, so long as the correction of the error resulted in release subsequent to sentencing and during or subsequent to imprisonment,” James’ brief states.
Alternatively, he views the word “release” in the statute as meaning more than release from prison. Because an error that occurs “subsequent to imprisonment” can’t possibly result in release from prison as described in the law, James asserts that “release” must have a broader meaning, including release from charges. This position fits with a possible scenario in which someone completes a prison term and then seeks compensation for wrongful imprisonment after incarceration, he contends. James thus concludes he has properly established the error in procedure needed to continue with his wrongful imprisonment claim.
- Kathleen Maloney
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.
Contacts
Representing the State of Ohio from the Ohio Attorney General’s Office: Eric Murphy, 614.466.8980
Representing Omar K. James: Derek Farmer, 614.855.0123
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