Ohio Supreme Court Tells Cops They Can’t Hide All Their Use Of Force Reports Under Investigatory Records Exemption

from the clearing-away-some-cop-bullshit dept

Open records laws were passed because governments simply aren’t interested in voluntarily sharing their documents with the people that foot the bill for both the people and the paper. But governments have to pass these laws, in essence forcing transparency upon themselves. Since most governments seem to be more interested in opacity, massive holes in public records laws are crafted to limit the amount of sharing governments are forced to do.

That’s where the courts come into play. When the government plays it close to the vest, it far too often takes litigation to loosen its grip on documents it doesn’t feel like sharing. Not everyone can afford to sue, so the government often gets away with it. Those who do have the funds and the legal representation to sue make things better for everyone else by getting laws interpreted accurately and exemptions narrowed. This is one of those cases. (h/t Volokh Conspiracy)

The Cleveland Scene and one of its journalists sued the city of Cleveland over the Cleveland PD’s refusal to hand over use-of-force reports in response to the journalist’s open records request. Journalist Lauren Standifer requested all use-of-force records generated between January 1, 2019 and the date she sent the request, September 9, 2020.

The PD’s first response was a two-line spreadsheet containing nothing but the total number of use-of-force reports generated in 2019 and 2020. Standifer went back to the city and explained this was not what she had asked for, nor was it a sufficient response. The city responded 20 days later, now claiming her request was “both vague and overly broad.” Standifer reduced the time frame by about six months and re-sent her request. This one was denied a month later by the city, which incredibly claimed that all the records sought were exempt from disclosure because they were “confidential law enforcement investigatory records.” A month later the city simply informed Standifer her request was officially considered to be closed. Standifer sued.

After a little action in the state appeals court, the PD handed over a few documents but withheld a majority of what Standifer had requested. After some back and forth, the appeals court decided the city had the right to deny her the rest of these records under the stated exemption. It did this by making a very curious (and very broad) determination about the nature of the withheld documents — a determination that basically turned all cops involved in use-of-force incidents into suspected criminals. This is from the state Supreme Court’s decision [PDF]:

It held that the withheld UOF reports were exempt from disclosure as CLEIR [confidential law enforcement investigative record] because they relate to law-enforcement matters and because their disclosure “would create a high probability of” revealing the identities of uncharged suspects—i.e., the officers who used the force described in the reports.

Whoa, says the Supreme Court. Also, WTF. Claiming all use-of-force deployments immediately convert cops into criminal suspects is a hell of way to summarize what these reports are. [Emphasis in the original.]

We disagree with the court of appeals’ application of the uncharged suspect provision of R.C. 149.43(A (2). For one thing, the characterization of an officer who used force as a “suspect” is dubious, given that the UOF report is submitted prior to any determination that a use of force merits an administrative or criminal inquiry. Indeed, the use of force by a police officer in the course of the officer’s duties may not be wrongful, and, in such a case, the UOF report may not necessarily lead to any further criminal investigation. The court of appeals’ rationale, however, necessarily assumes that all officers who use force are per se criminal suspects.

The court says it’s certainly true some of the sought records pertain to pending criminal investigations or charges against officers, but it cannot possibly be true of all of them and the lower court should definitely not have converted a limited exemption into a blanket exemption to be exploited by the city and its police department. [Emphasis in the original.]

So in some cases, a UOF report could be exempt from disclosure to protect the identity of an officer who used force as an uncharged suspect. But it does not follow that UOF reports should be categorically treated as CLEIR. We decline to adopt the court of appeals’ rationale that an officer who used force is an uncharged suspect in every case in which a UOF report describing that force is prepared.

Since it has reached this determination on the city’s blanket exemption, it doesn’t need to bother with the journalist’s suggestion that the blanket exemption runs afoul of the city’s consent decree agreement with the US Department of Justice. Relevant, but not needed to reach its conclusions that the city misused the exemption. Also, always nice to be reminded the Cleveland PD was terrible enough for enough years in a row to attract the attention of the federal government.

The city will have to hand over far more documents than it wanted to. Some of those it wants to withhold may survive judicial scrutiny, but every cop shop in the state is now on notice it can’t hide its use-of-force records under an exemption that plain English makes clear shouldn’t apply to most of these records.

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Comments on “Ohio Supreme Court Tells Cops They Can’t Hide All Their Use Of Force Reports Under Investigatory Records Exemption”

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This comment has been deemed insightful by the community.
That One Guy (profile) says:

Not quite the defense they thought it was...

Arguing in public and in court that a bunch of your officers are criminals who’s actions are so bad that they’re facing lengthy pending investigations against them isn’t exactly saying good things about the department, though based upon the article’s last line it would be in character so I guess in their haste to tell the public to bugger off they used an honest defense by accident.

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