State ex rel. Cincinnati Enquirer v. Cincinnati (Slip Opinion), 135 N.E.3d 772

Background

On August 8, 2017 Cincinnati police wearing body cameras arrested Richard Coleman and James Crawley; officers used a Taser.
On October 31, 2017 the Cincinnati Enquirer requested body-camera footage; the city denied the request on November 2, 2017 citing the CLEIRS exception (R.C. 149.43(A)(1)(h)).
The Enquirer filed a mandamus action on November 14, 2017; this court issued an alternative writ and ordered the city to submit the videos under seal.
The city produced 19 videos after the mandamus was filed but redacted the faces of plainclothes/covert officers; it later submitted an affidavit (Chief Theetge) asserting officer safety and covert operations concerns.
The city conceded five videos contained no investigatory value and should have been produced; the Enquirer sought attorney fees and costs under R.C. 149.43(C)(3)(b)(iii) for the city’s post-filing release of records.
The court found the city’s redactions lawful but concluded the city did not act in good faith in timing its voluntary production and awarded reasonable attorney fees and court costs.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether redacting faces of plainclothes officers was permissible under CLEIRS/constitutional privacy	Enquirer: faces should be disclosed; redactions unnecessary	City: redactions protect covert officers and prevent substantial risk of harm	Redactions proper; city met its burden via uncontradicted affidavit showing covert status and safety risk
Whether mandamus should issue to compel production	Enquirer: city refused to provide footage	City: it provided the footage after suit and redacted for safety	Mandamus denied as moot because footage was produced and redactions were lawful
Whether relator is entitled to attorney fees and costs under R.C. 149.43(C)(3)(b)(iii) for post-filing voluntary production	Enquirer: city acted in bad faith by producing records for first time after suit was filed but before court order	City: production was reasonable, review burdensome, and TRO in related litigation justified withholding	Court found city acted in bad faith and awarded reasonable attorney fees and court costs; amount to be determined on fee application
Whether the city’s reliance on a TRO/related litigation justified its blanket refusal to produce videos	Enquirer: TRO and related litigation do not justify blanket withholding, especially for videos lacking investigatory value	City: TRO and pending related proceedings counseled against release	Court rejected the TRO-based justification (affidavit submitted late and did not explain withholding of noninvestigatory videos)

Key Cases Cited

State ex rel. Physicians Comm. for Responsible Medicine v. Ohio State Univ. Bd. of Trustees, 108 Ohio St.3d 288 (public-records mandamus is appropriate remedy)
State ex rel. Cincinnati Enquirer v. Jones-Kelley, 118 Ohio St.3d 81 (custodian bears burden to establish claimed Public Records Act exceptions)
State ex rel. Keller v. Cox, 85 Ohio St.3d 279 (constitutional privacy as "state or federal law" exempting records)
State ex rel. Cincinnati Enquirer v. Craig, 132 Ohio St.3d 68 (officer safety can outweigh public interest; disclosure may create substantial risk of bodily harm)
State ex rel. McCleary v. Roberts, 88 Ohio St.3d 365 (risk of harm need not be immediate or specifically identifiable to justify nondisclosure)
State ex rel. DiFranco v. S. Euclid, 138 Ohio St.3d 367 (prior standard that writ was prerequisite to fee awards under Public Records Act)
State ex rel. Kesterson v. Kent State Univ., 156 Ohio St.3d 13 (standards for submitting fee applications and proof of reasonable attorney fees)
Kallstrom v. Columbus, 136 F.3d 1055 (6th Cir.) (officers' safety concerns support nondisclosure)