In State ex. rel. Cincinnati Enquirer, et al. v. Deters, Pros. Attorney,
released on December 20, 2016, the Ohio Supreme Court was faced with
several important issues raised by the use by police departments of
body-camera video. The Court determined that, assuming such video
constitutes a “public record,” public bodies are entitled to a
reasonable amount of time to review the video for needed redactions
before the video must be released. This case is a reminder that public
bodies must be prepared for the age of ubiquitous video, which is upon
us.

Numerous Cincinnati media outlets requested body-camera video
from the Hamilton County Prosecutor’s Office. The body-camera video had
captured the shooting of a motorist by a University of Cincinnati police
officer subsequent to a traffic stop. Three of the media outlets had
not actually requested the body-camera video from the prosecutor’s
office, but had requested it from other sources (police departments).
The Court dismissed these claims because these relators had not
requested the video from the prosecutor’s office (the sole respondent in
the mandamus action).

In initially refusing to release the video,
the prosecutor’s office had asserted that body-camera video should not
be released because such release could jeopardize a fair trial. The
prosecutor’s office also argued that the videos could reveal
confidential investigatory techniques or procedures, and/or constituted
investigatory work-product. It was also argued that the videos were
either a confidential law-enforcement investigatory record or a
trial-preparation record, and therefore exempt from release. Ultimately,
because the video was released, the Court did not need to determine if
any of the asserted grounds for refusing to the release of the video was
valid. The Court assumed, without deciding the issue, that a
body-camera video is a public record.

Instead, the Court denied
the writ because the Court determined that, even if the requested
body-camera video is a public record, the purpose of a mandamus action
is to compel the release of records. Because the video had been released
by the prosecutor’s office two days after the action was filed, the
mandamus action had been rendered moot.

In addressing whether the
statutory penalty and legal fees should be paid to the relators, the
Court noted that “***the prosecutor was entitled to review the video to
determine whether any redaction was necessary and produced the
body-camera video six business days after it was initially received by
his office***.” The Court concluded this was a reasonable period of
time. Consequently, the relators were not entitled to statutory damages
or attorney fees.

Public bodies, and law enforcement agencies in
particular, should take note of this case and be prepared to respond to
public records requests for body-camera video. Public bodies may need to
redact portions of the video via pixelating or otherwise obscuring the
images of persons or things that are shown in the video. Alternatively,
the public body may need to be prepared to argue why the entire video
should not be released. A thorough review of both police body-camera
policy and public record policy is advisable to determine if the issues
raised by this case have been adequately addressed. It is also advisable
to develop a plan for redacting video as most police departments do not
have this capacity in-house.

Stephen Byron is a partner, and Susan Bungard is an associate in the firm’s Public Law Services group.