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City denies request for BAC results
By Joe Gorman
YOUNGSTOWN
The city Law Department refused a records request Friday to release results of a blood-alcohol test of a relative of a city police officer last week — or to reveal whether the test was given.
Assistant Law Director Anthony Donofrio said in a response to the request by the attorney representing the media outlets that the city is not even sure a test was given.
However, Donofrio did say that the city would release the log book that is kept in the room where the machine, commonly known as a BAC machine, or blood-alcohol content machine, is stored.
The log book, already viewed by The Vindicator but withheld from other media outlets, does show that Joseph K. Slattery, 54, was in the room Nov. 28, shortly after he was pulled over about 5:30 p.m. on Mahoning Avenue for running a red light and having a can of beer in his hand. However, there is no notation next to the section where a blood-alcohol content is located.
Additionally Friday, a department source confirmed that someone retrieved Slattery’s car Nov. 28 from a tow yard. That was not included in a police report. There also is no mention of a car being towed in a police report even though a separate report is required when city police have a vehicle towed.
The Vindicator and its news partner, 21 WFMJ-TV, filed a public-records request Thursday asking that the result of the BAC test, as well as surveillance video that may show which officers were in the station at the time, be made available to be examined. The two media outlets have been told by department sources that Slattery should have received a citation for driving under the influence, but instead he was given a citation for running a red light and having an open container.
Dave Marburger, an attorney who specializes in public-records law, wrote in his request that the records are not exempt from the public-record law because of an ongoing investigation because they were public before the investigation began.
However, Donofrio said he has case law that backs up the city’s contention that the records being sought are exempt until the investigation is completed. When the investigation is completed, he said, everything being asked for will be released.
Though the arrest occurred more than a week ago, Donofrio said it’s not known if a BAC test was given to Slattery.
Donofrio also wrote in an email to Marburger that the city is working with the makers of the machine to see if a test was given or if they would have to check the hard drive to see whether there was a test and any results. Donofrio wrote that if the results can be found, then they will decide if they are available to be disclosed.
In his response to Donofrio, Marburger wrote: “As for the images of vice officers, what is your authority for withholding those images?”
Donofrio explained there may be charges filed against people in the investigation who are on the video as well as some police officers whose identities need to be protected, which is another reason why the records are exempt, Donofrio said.
The newspaper and the television station are reviewing their next steps.
During the stop, an officer can be heard on dispatch tapes asking for a tow truck and asking for an officer who was certified to operate the machine to meet him at the police station. Later the officer could be heard radioing in that he was en route with one person to the station.
The police report of the incident includes none of these events.
Police Chief Robin Lees said he could not speak for certain why no one still knows if Slattery received a BAC test. He said he never has given a test to someone on the machine before. An internal affairs investigation will look into whether a test was given and, if so, what the results were.
Lees said if the results are not available, they may need to find someone who has knowledge of the computer in the machine to see if the results — if a test was given — are still stored in the machine.
People can refuse to take a BAC test. However, under state law, if they refuse, their license is suspended on the spot. There is no record of any license suspension in this case. There is also no record in the log that Slattery refused to take the test.
Lees also said he was aware last weekend that a relative of a police officer was stopped and ticketed, but he was not aware until media inquiries Tuesday of any allegations of misconduct or preferential treatment.
“That was the extent of it,” Lees said.