Over the past few years, police departments across the country have grappled with what to do when a video in their possession captures the use of deadly force by a police officer.
After 12-year-old Tamir Rice was killed by a Cleveland police officer in 2014, the city of Cleveland initially withheld footage from a public surveillance camera on the city-owned Cudell Recreation Center.
“But the city recanted, you know, changed its mind,” said David Marburger, a First Amendment attorney in Cleveland who represented The Plain Dealer to acquire that video. “It was because that camera is sitting on that side of a building, and it’s running all the time.”
So, what happens in Ohio when a public agency refuses to release a video?
Under Ohio law, a public record is anything created and kept by any level of government. That includes footage from public surveillance cameras or those worn by police or mounted on cruiser dashboards.
Still, police often refuse to release such footage when it’s requested. They cite an exception meant to protect police investigations called the Confidential Law Enforcement Investigatory Record, or CLEIR exception.
“That is baloney,” said Marburger. “That is not a valid analysis at all. It’s got to reveal something that is the product of an investigation. The product of an investigation — that would include things like witness or suspect interviews or a weapon collected at the scene of a crime.”
Marburger represented media organizations in a 1996 case challenging the Hamilton County prosecutor’s decision to withhold 911 tapes.
The prosecutor argued the tapes were covered by the CLEIR exception when transferred from the dispatcher who made the recording into his office’s possession.
The Supreme Court of Ohio disagreed, writing in its opinion a now frequently cited line: “Once clothed with the public records cloak, the records cannot be defrocked of their status.”
More recently, the CLEIR exception has been commonly used as police departments have started sending investigations into deadly use of force incidents to outside agencies. It’s meant to counter claims of bias if a department investigates its own officer.
But those circumstances open the door for law enforcement to justify denying requests for public videos: The first agency deflects the request for the video to the investigating agency, and the second investigating agency is likely to deny the request, citing the CLEIR exception.
The footage can then be held until a trial is completed, according to Mark Weaver, a former Ohio deputy attorney general who has represented police departments in public records cases.
“That's well-established law,” Weaver said. “The original agency that creates the body cam footage will often keep a copy and not send all copies to the outside investigating agency and that original agency has public records responsibilities.”
But, if they don’t keep a copy, Weaver said, “Public records law is pretty clear - you only have to give that which you have.”
Ongoing Litigation
Ideastream Public Media filed suit against the Cuyahoga Metropolitan Housing Authority (CMHA) and the city of Cleveland in March after a request for surveillance footage of a fatal police shooting was denied.
CMHA referred the request to Cleveland as the Cleveland Division of Police was investigating the shooting. Cleveland declined to produce the footage citing the CLEIR exception. The footage was eventually released when the Ohio Attorney General announced that the officer in the case would not be charged.
Ideastream’s case challenging that use of the CLEIR exception remains open.
When Is Video Footage Investigatory?
In 2016, First Amendment lawyer Darren Ford represented the Cincinnati Enquirer in the Ohio Supreme Court when the newspaper sought footage from a state highway patrol pursuit. The state cited the CLEIR exception in withholding that footage, saying the pursuit and subsequent arrest constituted an investigation.
The justices disagreed. They ruled that turning on the sirens, which triggered the dashcam to turn on, and chasing someone was not enough to constitute an investigation.
“There has to be something that the court can point to, in point in time in the video, where it's clear the officer has now moved into a role of investigating some now known crime or known offense,” Ford said.
Ohio legislators have since updated the public records law to say body cam footage showing deadly use of force by a police officer is a public record. They also laid out a list of protected material that would exempt some parts of footage.
Ford says the law concerning such video footage is now well established, yet some agencies withhold far more than they should.
“The way the public records act works, you make the request, the public records office will make whatever exemptions it thinks are appropriate and unless you go to court, that's the only way you're going to get the record,” Ford said.
One exception - the city of Akron recently changed its charter to require the release of body cam footage within 7 days of a use of deadly force incident.
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