Ohio Supreme Court clarifies portion of Public Records Act

Staff report

YOUNGSTOWN

An Ohio Supreme Court decision saying a public-records custodian has the burden of explaining why materials are exempt from disclosure under the state’s public-records law won’t change the way the Mahoning County Prosecutor’s office handles public-records requests, said county Prosecutor Paul J. Gains.

“It’s not going to change it in any way, shape or form because we always provide our reasons why records are exempt, if we believe they’re exempt,” he said. “All this case does is reinforce the existing law.”

“The burden of proof has always been on us to prove that a record is exempt” from the disclosure requirement in state law, he said.

Gains also said the Tuesday decision won’t add to his office’s staff time and effort in responding to public-records requests.

The unanimous decision, which reversed a 12th District Court of Appeals ruling, said the appeals court judges must examine under seal the material the Ohio State Highway Patrol says is exempt from disclosure and rule on whether it should be released.

In the case that was before the top court, the patrol refused to release dash-cam audio and video and impaired-driver reports from a July 2011 traffic stop, saying these items shouldn’t be released because they are confidential law-enforcement investigatory records.

The matter came before the appellate court in a mandamus action designed to force release of these items.

The top court said that for records to fall under the confidential law-enforcement investigative category, a two-part test needs to be applied. First, is whether the record is a confidential law-enforcement record, and secondly, would release of that record “create a high probability of disclosure” of a specific investigatory work product.

That work product would include notes, working papers, memoranda, or similar materials, assembled by law-enforcement officials in connection with a probable or pending criminal proceeding, the court ruled.

“Normally, the patrol releases dash-cam video as a public record,” Gains observed, adding that the patrol’s refusal to release it in this case “may have troubled the Supreme Court.”

Items exempt from disclosure include medical records, records pertaining to ongoing criminal investigations, and attorney-client communications between the county prosecutor’s office and its client county agencies, Gains said.

Anthony Donofrio, Youngstown assistant law director, also said the ruling breaks no new legal ground. Donofrio said state law already calls for an explanation to be given when someone is denied a public-records request. He said from his reading of the suit, it appeared that was never given in this case.

“It’s not an earth-shattering opinion,” Donofrio said. “It’s something we’re already obligated to do.”

Youngstown Police Chief Rod Foley said he was not aware of the case but that he will follow the revised code when it comes to open records and the counsel from the law department.

“My take is we want to comply with what the law says,” said Liberty Police Chief Richard Tisone. He said that if it’s not part of an investigatory file, his department would release it.

Hubbard Chief James Taafe said “context is everything. As long as it’s not part of our ongoing investigation, we release it,” he said.

“It’s best to check with the local prosecutor and go with that,” said Todd Coonce, Hubbard Township chief. He said unless there is a homicide, he believes the specifics in a traffic case would be public.