State ex rel. GateHouse Media Ohio Holdings II, Inc. v. Columbus Police Dept.
This sliр opinion is subject to formal revision before it is published in an advance sheet of the Ohio Official Reports. Readers are requested to promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65 South Front Street, Columbus, Ohio 43215, of any typographical or other formal errors in the opinion, in order that corrections may be made before the opinion is published.
SLIP OPINION NO. 2025-OHIO-5243
Mandamus—Public-records requests—Public Records Act specifically exempts from disclosure crime-victim information that is prohibited from release under
IN MANDAMUS.
DEWINE, J., authored the opinion of the court, which KENNEDY, C.J., and DETERS, HAWKINS, and SHANAHAN, JJ., joined. FISCHER, J., concurred in part and
DEWINE, J.
{¶ 1} The
{¶ 2} We must answer that question because the Columbus Dispatch seeks unredacted footage of a shootout. The Columbus Police Department (“the CPD”) redacted the footage to conceal the identities of the officers. It did so based on a statutory provision that prohibits the disclosure of identifying information of a “victim,” as that term is defined under Marsy’s Law. The Dispatch contends that because the officers were on duty, they cannot be “victims.” Indeed, it claims that police officers performing their public duties can never be victims under Marsy’s Law.
{¶ 3} We disagree. The two officers were victims of a crime under the plain terms of the constitutional definition. They were persons against whom a “criminal offense . . . [was] committed,”
I. A Police Shootout and a Public-Records Request
{¶ 4} In the summer of 2023, armed men robbed a Columbus Porsche dealership. Two officers—who have been identified in this litigation as Officer
{¶ 5} The officers spotted the suspects’ car on I-70 and gave chase. A few minutes later, the suspects stopped their car in the middle of the highway and the officers saw two men jump out and run away. Officer Doe 1 left his police cruiser and began chasing after them. Suddenly, a hidden third suspect emerged and fired his gun at Officer Doe 1, shooting him five times at close range.
{¶ 6} Officer Doe 1 returned fire while bleeding on the ground. Officer Doe 2 took cover behind a car and returned fire as well. During the exchange, the third suspect began walking directly towards Officer Doe 2. According to Officer Doe 2, the suspect appeared to be aiming his gun at him. Ultimately, the suspect was shot and killed by a barrage of gunfire directed at him by Officer Doe 1, Officer Doe 2, and other officers who had arrived on the scene.
{¶ 7} Officer Doe 1 was immediately transported to the hospital, where he remained for three weeks. He underwent at least seven surgeries and a stint in a long-term rehabilitation center. Fortunately, he survived.
{¶ 8} On the day of the shooting, a Dispatch reporter made a public-records request to the CPD for “all body camera, dash camera and 911 calls etc.” from the shootout. Four days later, the CPD emailed media members—including the Dispatch—denying all requests for bodycam and dashcam footage from the shootout based on (1)
{¶ 9} Several weeks later, the CPD released portions of the requested bodycam footage. It redacted the footage to conceal the identities of the two police
{¶ 10} We granted an alternative writ, ordering both parties to submit evidence and briefs. 2024-Ohio-202. Under seal, the CPD submitted four unredacted videos from the shootout and affidavits from Officer Doe 1 and Officer Doe 2. It also publicly filed redacted versions of the affidavits.
II. We Deny the Writ
{¶ 11} To obtain a writ of mandamus ordering production of the unredacted footage in this public-records case, the Dispatch must show that it has a clear right to the footage and that the CPD has a corresponding clear legal duty to provide it. State ex rel. Cincinnati Enquirer v. Sage, 2015-Ohio-974, ¶ 10. But because the CPD is withholding the footage based on a statutory exception, the CPD has the burden to show that the exception applies. See Welsh-Huggins v. Jefferson Cty. Prosecutor’s Office, 2020-Ohio-5371, ¶ 27. In determining whether the CPD has demonstrated that the statutory exception applies, our task is “to provide a fair reading of what the legislature has enacted: one that is based on the plain language of the enactment and not slanted toward one side or the other,” Stingray Pressure Pumping, L.L.C. v. Harris, 2023-Ohio-2598, ¶ 22.
A. Information Identifying a Victim is Not a Public Record under Ohio Law
{¶ 12} The CPD contends that it is not required to provide the unredacted footage because the Public Records Act excludes certain crime-victim information from its definition of a public record. See
{¶ 14} Under the Victim Privacy Law, “‘[v]ictim’ has the same meaning as in Section 10a of Article I of the Ohio Constitution,”
{¶ 15} This protection of crime-victim information is incorporated into the Public Records Act. “Records, documents, and information the release of which is prohibited under [the Victim Privacy Law]” are not “public records.”
{¶ 16} So, if Officer Doe 1 and Officer Doe 2 are victims under the Ohio Constitution, they are victims under the Victim Privacy Law. And if they are victims of an offense of violence, then the Victim Privacy Law prohibits the public
B. Police Officers Can Be Victims under the Ohio Constitution
{¶ 17} In interpreting the Ohio Constitution, we apply the original public meaning of a provision. See State ex rel. Cincinnati Enquirer v. Bloom, 2024-Ohio-5029, ¶ 40. Generally speaking, that means that we afford a provision the meaning that would have been ascribed to it by a competent speaker of the English language at the time of its adoption. Id.; Pfeifer v. Graves, 88 Ohio St. 473, 487 (1913). The first consideration is always a provision’s text. It is “our duty . . . to determine and give effect to the meaning expressed in its plain language.” Newburgh Hts. v. State, 2022-Ohio-1642, ¶ 17. Thus, “we consider how the language would have been understood by the voters who adopted the amendment.” Centerville v. Knab, 2020-Ohio-5219, ¶ 22.
{¶ 18} Applying the plain text of the amendment, we have no difficulty concluding that an ordinary understanding of Marsy’s Law’s definition of victim encompasses the officers in this case. A “victim” is “a person against whom the criminal offense or delinquent act is committed or who is directly and proximately harmed by the commission of the offense or act.”
{¶ 19} Further, no one disputes that the offender committed a criminal act when he shot at the two police officers. First, Officer Doe 1. The evidence shows that he was shot several times. He was therefore a victim of felonious assault—“ [c]aus[ing] or attempt[ing] to cause physical harm to another . . . by means of a deadly weapon,”
{¶ 20} Finally, the acts were plainly committed “against” the police officers—the criminal conduct was directed at them. Consistent with the ordinary understanding of “against,” Black’s Law Dictionary (12th Ed. 2024) defines “crimes against persons” as “[a] category of criminal offenses in which the perpetrator uses or threatens to use force.” Here, the offender shot Officer Doe 1 multiple times and then approached Officer Doe 2 while wielding a gun. Further, Officer Doe 1 is also a person who “was directly and proximately harmed by the commission of the offense”—he was wounded as the result of a criminal act.
{¶ 21} Despite this plain language, the Dispatch advances several arguments in support of its position that the officers were not victims. It premises these arguments on a claim that the constitutional definition of victim is ambiguous and suggests that, as a result, we should look beyond the text of the provision to ascertain the meaning of “victim.” Its reasoning goes like this: (1) Marsy’s Law’s definition of victim uses the phrase “against whom the criminal offense . . . is committed” without defining criminal offense; (2) hence the term could include crimes such as making a false report or failing to comply with an order of a peace officer; (3) but these are really crimes against the State, not an individual officer; and (4) therefore a voter would not have understood the definition of “victim” to include a police officer.
{¶ 22} There are a couple flaws in this argument. First, there is nothing ambiguous or underdeterminative about the definition of “victim” as it applies in
{¶ 23} Second, it may well be true that when a person has made a false report to a police officer or committed a similar crime, the police officer is not a victim of that crime under the constitutional definition. But that is not the case in front of us. And the fact that not every police officer is a victim says nothing about the question here: whether Officer Doe 1 and Officer Doe 2 were victims.
{¶ 24} The Dispatch also advances a variety of extratextual arguments. It claims, for example, that a voter would not have understood a police officer to be a “victim,” because of the availability of worker’s compensation benefits for officers injured on the job. It also suggests that because police officers are officers of the State, a voter would not have wanted officers to have privacy rights enforceable against the public.
{¶ 25} We do not find any of these extratextual considerations persuasive or even particularly relevant. The Dispatch’s arguments are premised on the notion that a voter who voted on the Marsy’s Law amеndment would not have wanted to extend police officers the same rights as other victims. But our task is not to speculate about the collective secret desires of voters; rather, it is to apply the text that they enacted. As we explained over a century ago, “Where there is no doubt, no ambiguity, no uncertainty as to the meaning of the language employed by the Constitution makers, there is clearly neither right nor authority for the court” to look beyond the language of the Constitution itself. State v. Rose, 89 Ohio St. 383, 387 (1914).
{¶ 26} This is not a case in which we have to determine whether an edge case fits within the scope of underdeterminative constitutional text. This is a case in which the text is clear and determinative with respect to police officers. They easily fall within the text’s scope. In other words, because police officers are
C. The CPD’s Redactions Are Permissible
{¶ 27} As we have explained, the officers in this case are victims under the plain terms of the constitutional definition of that word. Therefore, the Victim Privacy Law requires that case documents “shall be redacted prior to public release pursuant to [the Public Records Act] to remove the name, address, or other identifying information of the victim.”
D. Victims’ Rights under the Ohio Constitution Do Not Conflict with Any Public Right to Access Public Records
{¶ 28} The Dispatch is not quite done yet. It argues that the
{¶ 29} The Dispatch does not identify any specific textual guarantee to support its claimed right of access. Instead, it makes a generalized claim based on several provisions of the Ohio Constitution:
Article I, Section 1 : “All men are, by nature, free and independent, and have certain inalienable rights . . . .”
Article I, Section 3 : “The people have the right to assemble together, in a peaceable manner, to consult for their common good; to instruct their Representatives; and to petition the general assembly for the redress of grievances.”Article I, Section 11 : “Every citizen may freely speak, write, and publish his sentiments on all subjects, being responsible for the abuse of the right; and no law shall be passed to restrain or abridge the liberty of speech, or of the press.”Article I, Section 16 : “All courts shall be open, and every person, for an injury done him in his land, goods, person, or reputation, shall have remedy by due course of law, and shall have justice administered without denial or delay.”
In the Dispatch’s view, the cumulative effect of these provisions is that the Victim Privacy Law is unconstitutional as it applies to this case. See Dispatch Merit Brief at 24 (asking this court to find a right to access government records “in the protections for property and free speech rights enumerated in the Ohio Constitution”).
{¶ 30} The Dispatch faces an uphill battle with this argument. First, this court has never recognized a free-standing constitutional entitlement to public records emanating from some amorphous combination of constitutional provisions. Instead, when we have recognized a constitutional right to public records, we have done so based on the terms of a specific provision of the Ohio Constitution. See, e.g., Bloom, 2024-Ohio-5029, at ¶ 60 (finding a statute unconstitutional because
{¶ 31} Second, the Dispatch faces an immediate hurdle because of the constitutional protection afforded to crime victims by Marsy’s Law. While the Dispatch points to no direct textual support in the Constitution for the protection it seeks, Marsy’s Law explicitly commands that victims be treated with “fairness and respеct for [their] safety, dignity and privacy,”
{¶ 32} It is true that in the past this court has alluded to the possibility of limits on the General Assembly’s power to restrict access to public records, see, e.g., State ex rel. Patterson v. Ayers, 171 Ohio St. 369, 372 (1960) (“How far the General Assembly might go in limiting access to and inspection of public records is not now before us.”). But we have also generally left the definition of what constitutes a public record to the General Assembly. See id. at paragraph one of the syllabus (“Generally, those records in the custody of public officials which have been designated ‘public records’ by the General Assembly are open to inspection by anyone at appropriate times” [emphasis added]); see also Kish v. Akron, 2006-Ohio-1244, ¶ 44. Indeed, we have recognized that the “General Assembly is the ultimate arbiter of policy considerations relevant to public-records laws.” Kish at ¶ 44.
III. The First Opinion Concurring in Part and Dissenting in Part
{¶ 34} The first opinion concurring in part and dissenting in part (“the partial dissent”) ultimately concurs with our conclusion that police officers can be victims under Marsy’s Law and that the CPD properly redacted Officer Doe 1’s and Officer Doe 2’s identifying information from the shootout footage, though it analyzes the issues differently. But it dissents because it thinks that there are other videos and information that the Dispatch is entitled to based on the Dispatch’s initial public-records request. Its reasoning loses its way in both the concurring and dissenting parts.
{¶ 35} “A writ of mandamus is an extraordinary remedy, ‘exercised by this court with caution and issued only when the right is clear.’” State ex rel. Jones v. Ohio State House of Representatives, 2022-Ohio-1909, ¶ 5, quoting State ex rel. Brown v. Ashtabula Cty. Bd. of Elections, 2014-Ohio-4022, ¶ 11. To prove that it is entitled to this extraordinary remedy, a relator “must establish a clear legal right to the requested relief.” Sage, 2015-Ohio-974, at ¶ 10. It is therefore imperative that a relator actually requests specific relief. Thus, in a public-records mandamus case, if there is a disparity between the scope of the relator’s initial public-records request and the scope of the relief he seeks in his complaint for mandamus, it is the scope of relief he seeks in mandamus that controls. See, e.g., State ex rel. McCaffrey v. Mahoning Cty. Prosecutor’s Office, 2012-Ohio-4246, ¶ 17-18. A
{¶ 36} The point is that it is up to the relator to bring his claims and arguments into this court. We will not “search the record or formulate legal arguments on behalf of the parties, because [we] do not sit as self-directed boards of legal inquiry and research, but preside essentially as arbiters of legal questions presented and argued by the parties before [us].” (Cleaned up.) State v. Quarterman, 2014-Ohio-4034, ¶ 19. “‘[W]e rely on the parties to frame the issues for decision and assign to courts the role of neutral arbiter of matters the parties present,’” Epcon Communities Franchising, L.L.C. v. Wilcox Dev. Group, L.L.C., 2024-Ohio-4989, ¶ 15, quoting Greenlaw v. United States, 554 U.S. 237, 243 (2008), because “justice is far better served when it has the benefit of briefing, arguing, and [(when possible)] lower court consideration before making a final determination,” Sizemore v. Smith, 6 Ohio St.3d 330, 333, fn. 2 (1983). That is especially true when parties are seeking extraordinary relief like a writ of mandamus.
{¶ 37} Looking past these principles of judicial restraint, the partial dissent appoints itself lawyer for the Dispatch and makes arguments that it thinks the Dispatch should have made based on mandamus relief that it thinks the Dispatch should have requested. Then, without giving the CPD an opportunity to respond to its arguments, it puts back on the judicial robe and pronounces itself fully convinced by the arguments it has made on the Dispatch’s behalf, declaring the Dispatch the victor.
{¶ 38} Other than the obvious problem of concluding that a party has met its burden to establish entitlement to an extraordinary writ based on arguments that
{¶ 39} The partial dissent confuses the broad scope of the Dispatch’s initial public-records request with the much narrower scope of the relief it requested in mandamus. The partial dissent labors under the false impression that because the Dispatch submitted a very broad public-records request for “all body camera, dash camera and 911 calls etc.” from the shootout, that is the relief it is requesting in mandamus. Thus, it speculates that there other dashcam and bodycam videos that the Dispatch is entitled to, that the Dispatch is entitled to the identifying information of officers other than Officer Doe 1 and Officer Doe 2, and that the Dispatch is entitled to information that the CPD initially withheld under other Public Records Act exceptions. But this isn’t the relief that the Dispatch asked for in mandamus. The Dispatch’s mandamus complaint, merit and reply briefs, and its attorney’s statements in oral argument all make perfectly clear that the only relief the Dispatch is seeking in mandamus is the identifying information of Officer Doe 1 and Officer Doe 2 that the CPD redacted according to the Marsy’s Law exception and Victim Privacy Law from the two dashcam and two bodycam videos that it provided.2
{¶ 40} The scope of relief sought has never been in question. As the CPD noted in its brief, the Dispatch’s complaint “[seeks] writs of mandamus to compel production of [Officer Doe 1 and Officer Doe 2’s] names.” CPD Merit Brief at 5; see also Complaint at 11-19. That is, specifically Officer Doe 1’s and Officer Doe 2’s names—nobody else’s. Rather than dispute the CPD’s characterization of its
{¶ 41} The partial dissent also goes astray by deciding several unargued legal issues because it thinks doing so “makes sense,” first opinion concurring in part and dissenting in part, ¶ 69. It justifies deciding these unargued issues by noting that “‘[t]he party presentation principle is supple, not ironclad.’” Id. at ¶ 64, quoting United States v. Sineneng-Smith, 590 U.S. 371, 376 (2020). It is true that “[t]here are . . . circumstances in which a modest initiating role for a court is appropriate.” Sineneng-Smith at 376. But like the case that the partial dissent cites for that proposition, “this case scarcely fits that bill,” id. This is not a case in which we have supplemental briefing, see, e.g., U.S. Natl. Bank of Oregon v. Indep. Ins. Agents of Am., Inc., 508 U.S. 439 (1993), in which we have a single unargued antecedent issue with a clear answer, see, e.g., Arcadia v. Ohio Power Co., 498 U.S. 73 (1990), or in which we have an unargued jurisdictional issue that we must analyze before getting to the merits, see, e.g., M.R. v. Niesen, 2022-Ohio-1130. This is a mandamus case, in which the relator bears the burden of “establish[ing] a clear legal right to the requested rеlief,” Sage, 2015-Ohio-974, at ¶ 10. We refuse to follow the partial dissent down the path of deciding that an unargued-for version of the Victim Privacy Law applies, then analyzing and deciding several more unargued legal issues, and ultimately concluding that the Dispatch has met its
{¶ 42} Rather than act “‘as [a] self-directed board[] of legal inquiry and research,’” State v. Bodyke, 2010-Ohio-2424, ¶ 19 (O’Donnell, J., concurring in part and dissenting in part), quoting Carducci v. Regan, 714 F.2d 171, 177 (D.C.Cir. 1983), we stick to our constitutional “‘role of neutral arbiter of matters the parties present,’” Epcon, 2024-Ohio-4989 at ¶ 15, quoting Greenlaw, 554 U.S. at 243.
IV. Conclusion
{¶ 43} Police officers can be victims under Marsy’s Law. Because Officer Doe 1 and Officer Doe 2 were victims of offenses of violence, the Victim Privacy Law requires redaction of their identifying information from the bodycam and dashcam footage that the Dispatch seeks. Thus, the unredacted videos are exempt from disclosure under the Public Records Act, and the Dispatch has not demonstrated its entitlement to a writ of mandamus.
Writ denied.
FISCHER, J., concurring in part and dissenting in part.
{¶ 44} Following a high-speed chase of armed-robbery suspects on Interstate 70, Columbus police officers found themselves in a shootout with one of the suspects. The incident, which left one officer injured and one suspect dead, was recorded by the officers’ body-worn cameras and dashboard cameras.
{¶ 45} Relator, GateHouse Media Ohio Holdings II, Inc., d.b.a. the Columbus Dispatch (“the Dispatch”), seeks a writ of mandamus to compel respondent, Columbus Police Department (“CPD”), to provide all unredacted body-worn-camera and dashboard-camera footage of that incident pursuant to a
I. Background
A. The Shootout
{¶ 46} Columbus police officers pursued a vehicle driven by suspects who had committed an armed robbery of a Porsche dealership. During the pursuit, the suspects’ vehicle became disabled in the middle lane on Interstate 70, blocking traffic.
{¶ 47} As Officer Doe 1 and Officer Doe 2 approached the disabled vehicle in their cruiser, two of the suspects fled on foot. Officer Doe 1 left his cruiser to pursue the suspects. But within a second or so of Officer Doe 1 taking chase, a third suspect, crouching beside the disabled vehicle, shot and injured him.
{¶ 48} The third suspect continued to shoot at Officer Doe 1, who had fallen to the ground. Defending his partner, Officer Doe 2 exchanged gunfire with the third suspect from behind a civilian’s vehicle.
{¶ 49} The third suspect then abandoned his weapon and tried to flee. Frantically, he attempted to steal the officers’ cruiser, but the door was locked. He then tried stealing a civilian’s vehicle, but it too was locked. Having no luck, the third suspect ran down the open highway and away from the scene as sirens shrieked in the background. Both officers continued to shoot at the third suspect as he ran away.
{¶ 51} Officer Doe 2 and other officers ran to aid Officer Doe 1, who was lying on the ground injured and bleeding from his gunshot wounds. While officers placed a tourniquet on Officer Doe 1’s leg to stop the bleeding, Officer Doe 2 raced to his cruiser to prepare to transport Officer Doe 1 to the hospital. While heading to his vehicle, Officer Doе 2 saw the third suspect’s discarded weapon on the ground and alerted the other officers. Once Officer Doe 1 was loaded into the back of the cruiser, Officer Doe 2 rushed him to the hospital.
{¶ 52} Despite receiving medical aid from on-scene officers, the third suspect died at the scene. The two other suspects who had escaped were apprehended days later.
B. The Dispatch’s Public-Records Request
{¶ 53} On July 6, 2023, the Dispatch made a public-records request under
{¶ 54} The next day, CPD released a statement: “Due to recently passed Marsy’s Law and the direction of the Columbus City Attorney’s Office, the Columbus Division of Police is unable to release the identities of the eight officers involved in this officer-involved shooting.” In a formal response to the Dispatch’s July 6 request, CPD initially denied the Dispatch’s entire request for body-worn camera and dashboard-camera footage from the shooting for four reasons: (1) the unredacted footage showed grievous bodily harm to a peace officer,
{¶ 55} However, according to the parties’ agreed statement of facts, on September 12, CPD released “a portion of the recordings” sought by the Dispatch. CPD provided the Dispatch with four redacted videos related to the shooting: (1) Officer Doe 1’s body-worn-camera footage, (2) Officer Doe 2’s body-worn-camera footage, (3) dashboard-camera footage from Officer Doe 1 and Officer Doe 2’s cruiser (“Doe cruiser”), and (4) dashboard-camera foоtage from another officer’s cruiser (“other cruiser”). CPD redacted the footage of the shooting and its aftermath from all four videos. And CPD altered the footage to conceal the faces, voices, and other identifying information of all officers involved in the shooting.
{¶ 56} In an email sent to the Dispatch explaining the September 12 partial release, the Office of the City Attorney maintained that “videos of the shooting” are not public records for the same four reasons that it had listed in its initial denial letter, but that the videos leading up to the shooting were public records subject to redaction and release. The Office of the City Attorney also admitted that CPD had provided the Dispatch with only what CPD believed to be “the most relevant footage of the incident from involved officers pursuant to any redactions required under law.”
C. Dispatch Requests a Writ of Mandamus
{¶ 57} On October 19, 2023, the Dispatch petitioned for a writ of mandamus to compel CPD to make available for inspection and copying in
{¶ 58} CPD filed an answer to the Dispatch’s petition, asserting that “based on the ordinary application of statutory law and case law as it existed at the time of the request, . . . the subject records contain exempt information under
{¶ 59} CPD also moved for leave to file two affidavits using “John Doe” pseudonyms and to file affidavits with the names of the John Doe officers under seal. In support of its motion, CPD quoted
{¶ 60} The Dispatch opposed the motion, arguing that because CPD had asserted that “eight officers were involved in the shootout underlying this case and are . . . victims of a crime,” the legal question before this court is whether those eight officers qualify as “victims” under Marsy’s law “as a matter of law.”
{¶ 61} This court granted CPD’s motion for leave to file the John Doe affidavits and sua sponte granted an alternative writ. 2024-Ohio-202. Additionаlly, this court sua sponte ordered CPD “to submit under seal for in camera inspection all records it has withheld or redacted.” (Emphasis added.). Id.
II. Applicable Statutes
{¶ 62} As a threshold issue, we must determine which versions of the statutes govern this action. Do we apply the statutes that were in effect on July 6, 2023, when the Dispatch made its public-records request for body-worn-camera and dashboard-camera footage, which would be former
{¶ 63} In arguing that the records are public records subject to disclosure and that CPD is not entitled to redact the footage because the officers are not victims under Marsy’s Law and
{¶ 64} Generally, under the principle of party presentation, “‘we rely on the parties to frame the issues for decision and assign to courts the role of neutral arbiter of matters the parties present.’” Epcon Communities Franchising, L.L.C. v. Wilcox Dev. Group, L.L.C., 2024-Ohio-4989, ¶ 15, quoting Greenlaw v. United States, 554 U.S. 237, 243 (2008). This general rule is a function of our adversarial system in recognition that “‘the parties know what is best for them, and are responsible for advancing the facts and arguments entitling them to relief.’” Greenlaw at 244, quoting Castro v. United States, 540 U.S. 375, 386 (2003) (Scalia, J., concurring in part and concurring in judgment.) However, “[t]he party presentation principle is supple, not ironclad.” United States v. Sineneng-Smith, 590 U.S. 371, 376 (2020). There are circumstances in which the party-presentation principle does not apply. See, e.g., Kamen v. Kemper Fin. Servs., Inc., 500 U.S. 90, 99 (1991) (“When an issue or claim is properly before the court, the court is not limited to the particular legal theories advanced by the рarties, but rather retains the independent power to identify and apply the proper construction of governing law.”); U.S. Natl. Bank of Oregon v. Indep. Ins. Agents of Am., Inc., 508 U.S. 439, 440, 446-448 (1993) (lower court had discretion to consider the validity of an applicable law even when the
{¶ 65} One such circumstance occurs when a court must determine antecedent or threshold legal issues that have a direct effect on the issue presented by the parties, even if those antecedent or threshold legal issues have not been raised or briefed. E.g., U.S. Natl. Bank of Oregon at 446-447; Arcadia v. Ohio Power Co., 498 U.S. 73, 77 (1990); see Cardinal Chem. Co. v. Morton Internatl., Inc. 508 U.S. 83, 88, fn. 9 (1993) (addressing a legal question as to which the parties agreed on the answer). This is because courts are limited to determining the rights of people or of property that are actually controverted in the case before it. Swift & Co. v. Hocking Valley Ry. Co., 243 U.S. 281, 289 (1917). “No stipulation of parties or counsel, whether in the case before the court or in any other case, can enlarge the power, or affect the duty, of the court in this regard.” (Cleaned up.) Id. “The court cannot be controlled by agreement of counsel on a subsidiary question of law.” Id.; see State ex rel. Leis v. Bd. of Elections of Hamilton Cty., 28 Ohio St.2d 7, 8 (1971) (parties’ concession regarding the applicability of a statute is not binding on a court as if it were a stipulation of fact, because such applicability is a conclusion of law); see also Kocher v. Ascent Resources-Utica, L.L.C., 2023-Ohio-3592, ¶ 55 (7th Dist.) (“parties cannot concede or stipulate to matters of law”); Diversified Capping Equip., Inc. v. Clinton Pattern Works, Inc., 2002-Ohio-2295, ¶ 24 (6th Dist.) (litigants may stipulate to facts but may not stipulate to what the law requires). Concluding that the party-presentation principle does not apply in these circumstances is required by the fundamental nature of our judicial system—the very essence of judicial duty is “to say what the law is,” Marbury v. Madison, 5 U.S. 137, 177-178 (1803). Thus, “when an issue or claim is properly before the court, the court is not limited to the particular legal theories advanced by the parties, but rather retains the independent power to identify and apply the proper construction of governing law.” (Emphasis added.) Kamen at 99; see also U.S. Natl. Bank of Oregon at 446. To hold otherwise would permit litigants to manipulate courts into issuing advisory opinions on legal issues that would not have been resolved but for the litigants’ agreement on a preliminary legal issue. See U.S. Natl. Bank of Oregon at 447.
{¶ 66} Which version of a statute to apply is a question of law that relates to the identification of the proper governing law. See Bingham’s Trust v. C.I.R., 325 U.S. 365, 370 (1945) (“whether the applicable statutes and regulations are such as to preclude the decision which the Tax Court has rendered [is] . . . a question of law”); U.S. Natl. Bank of Oregon at 446. Accordingly, we cannot blindly apply the versions of the statutes argued by the parties simply because the parties say they are applicable, especially when the facts of the case, as agreed by the parties, plainly put the question of applicability at issue. Leis at 8; see also Turner v. CertainTeed Corp., 2018-Ohio-3869, ¶ 11; In re D.R., 2022-Ohio-4493, ¶ 37, fn. 2 (Fischer, J., dissenting). “Stipulations involving legal conclusions do not relieve [courts] of [their duties] to determine such matters upon [their] own [analyses] of pertinent facts and legal theories.” Chas. Todd Corp., Inc. v. Rosemont Industries, Inc., 66 Ohio App.3d 691, 693 (1st Dist. 1990).
{¶ 67} And this is especially true here because the case before us is an original action. We are the trier of fact. See State ex rel. Lindenschmidt v. Butler Cty. Bd. of Commrs., 1995-Ohio-49, ¶ 11. We are the only court that will rule in this case. It is of the upmost importance that we correctly identify the laws that govern this matter and apply those laws correctly and in conformity with the Ohio Constitution. See Johnson v. Abdullah, 2021-Ohio-3304, ¶ 39 (courts lack discretion to make errors of law); State ex rel. Martens v. Findlay Mun. Court, 2024-Ohio-5667, ¶ 10 (courts cannot declare principles or rules of law that cannot affect the matter in the case); U.S. Natl. Bank of Oregon, 508 U.S. at 446 (a court asked to construe a law has the authority to determine whether the law exists or applies). We must address the predicate question—which versions of the statutes
{¶ 68} Stare decisis requires us to apply the versions of the statutes that were in effect when a party made its public-records request. See, e.g., State ex rel. Cordell v. Paden, 2019-Ohio-1216, ¶ 11; State ex rel. Summers v. Fox, 2021-Ohio-2061, ¶ 21, fn. 3; see also State ex rel. Jordan v. Dept. of Rehab. & Corr., 2025-Ohio-3051, ¶ 22 (Kennedy, C.J., dissenting). As a question of statutory interpretation, the determination which version of a statute applies “‘is owed greater stare decisis effect than other sources of law,’” State v. Williams, 2024-Ohio-1433, ¶ 17, quoting State v. Wilson, 2022-Ohio-3202, ¶ 51 (DeWine, J., dissenting); see Arbino v. Johnson & Johnson, 2007-Ohio-6948, ¶ 23 (“‘stare decisis applies to the rulings rendered in regard to specific statutes’ ”).
{¶ 69} Applying the statutes that were in effect at the time of the public-records request, consistent with our precedent, makes sense for a few reasons. First, applying the statutes that were in effect at the time the public-records request was made ensures that we follow the General Assembly’s express intention that any amendments to a statute are presumed to be prospective unless made expressly retroactive. See
{¶ 70} Second, applying the statutes that were in effect at the time the public-records request was made ensures that we follow the General Assembly’s
{¶ 71} And third, we must apply the law in a manner that is constitutional—specifically, we cannot apply statutes retroactively when that application would affect a vested right, lest we run afoul of
{¶ 72} For those reasons, we should analyze this case under former
III. The Public Records Act
{¶ 73} The Public Records Act,
{¶ 74} A records custodian may deny a request for public records, in whole or in part, if the requested records fall under one of the exceptions listed in
{¶ 75} A requester may seek to сhallenge the records custodian’s decision concerning the records through a writ of mandamus. Former
IV. Mandamus
{¶ 76} As recognized by the majority opinion, to be entitled to a writ of mandamus, the Dispatch “must establish a clear legal right to the requested relief and a clear legal duty on the part of [CPD] to provide the relief.” State ex rel. Cincinnati Enquirer v. Sage, 2015-Ohio-974, ¶ 10; Welsh-Huggins v. Jefferson Cty. Prosecutor‘s Office, 2020-Ohio-5371, ¶ 24. The Dispatch’s burden of production is to plead facts that show that it had requested the public records and that CPD did not make the records available. See Welsh-Huggins at ¶ 26. The Dispatch’s burden of persuasion is to establish entitlement to the extraordinary writ by clear and convincing evidence. See id.; Sage at ¶ 10.
{¶ 77} For the Dispatch to satisfy its burden, it must show by clear and convincing evidence that (1) it had requested the records, (2) the records fall within the definition of “public record” under former
{¶ 78} The analysis of the Dispatch’s burden in this case is straightforward. The Dispatch submitted a request to CPD for copies of all body-worn-camera and dashboard-camera footage from the shooting. CPD, the police department for the City of Columbus, is a “public office” within the meaning of
{¶ 79} Thus, the Dispatch has met its burden to prove by clear and convincing evidence that the requested body-worn-camera and dashboard-camera footage from the shooting are public records kept by a public office and that CPD did not provide all of the requested records. The Dispatch is therefore entitled to a writ of mandamus compelling disclosure of the requested records unless an exception applies. See Jones-Kelley at ¶ 8; Sage at ¶ 10-11.
{¶ 80} The issue in this case is whether the requested footage from the body-worn cameras and dashboard cameras falls within one of the exceptions to disclosure under former
{¶ 81} And this court has faithfully followed that rule. “Exceptions to disclosure under the Public Records Act,
{¶ 82} And this burden shift is supported by the statutory scheme because the respondent, as the records custodian, is the determiner of its exceptions. Under former
{¶ 83} Under this burden-shifting analysis, once a relator has demonstrated that a requested record meets the threshold definition of a “public record” and that the records custodian withheld those records, the burden shifts to the respondent—i.e., the records custodian—to “plead and prove facts clearly establishing the applicability of the exemption” asserted in defense of the action, Welsh-Huggins, 2020-Ohio-5371, at ¶ 27. The respondent does not meet this burden if it has not proved by a preponderance of the evidence that the requested records fall squarely within the exception. See Jones-Kelley at paragraph two of the syllabus (records custodian bears the burden of proof to demonstrate that a record falls within an exception to disclosure); Natl. Broadcasting Co., 38 Ohio St.3d at 83 (drawing parallels between Ohio’s Public Records Act and the federal Freedom of Information Act and acknowledging that both statutes place the burden of proving that an exception to disclosure applies on the records custodian); Enviro Tech Internatl., Inc. v. United States Environmental Protection Agency, 371 F.3d 370, 374 (7th Cir. 2004) (federal government bears the burden of proving by a preponderance of the evidence that a withheld document falls within an exception
{¶ 84} CPD, as the determiner of applicable exceptions under
V. The Scope of Dispatch’s Request for Relief and CPD’s Exceptions
{¶ 85} In analyzing CPD’s exceptions, we “must make an individualized scrutiny of the records in question,” Natl. Broadcasting Co. at paragraph four of the syllabus. If we find that the records contain excepted information, then that “information must be redacted and any remaining information must be released.” (Emphasis added.) Id.; see also
{¶ 86} The majority opinion limits the scope of the Dispatch’s request to only the unredacted footage from the four recordings that were produced by CPD for in camera review: (1) Officer Doe 1’s body-worn-camera footage, (2) Officer Doe 2’s body-worn-camera footage, (3) dashboard-camera footage from the Doe cruiser, and (4) dashboard-camera footage from the other cruiser. While limiting the scope of the Dispatch’s request in this manner is consistent with CPD’s production of evidence and its arguments focusing on solely the two primary
{¶ 87} The Dispatch specifically requests that this court issue a writ of mandamus commanding CPD to “make all video footage responsive to the Video Footage Request available for inspection and copying in accordance with
{¶ 88} CPD, however, focuses its arguments and evidence in support of its claimed exceptions to disclosure on the two primary officers involved in the shooting and the four recordings that it had provided in response to the Dispatch’s request, despite admitting in its answer that it had withheld identifying information of eight officers involved in the shooting under the victims’ rights exception. And even after the Dispatch brought the numerical discrepancy to the forefront in its motion in opposition to CPD’s motion for leave to file two John Doe affidavits, CPD’s arguments continued to focus on records regarding only John Doe 1 and John Doe 2.
{¶ 89} When this court granted an alternative writ, we ordered CPD to submit “under seal fоr in camera inspection all records it has withheld or redacted.” (Emphasis added.) 2024-Ohio-202. CPD submitted the redacted recordings that it
{¶ 90} CPD’s production of evidence would be a nonissue in our review of the Dispatch’s public-records request if CPD was accurate in its assertions that Officer Doe 1 and Officer Doe 2 were the only officers involved in the shooting, that it redacted and withheld information that pertained only to them, and that its production of evidence thus included “all records it has withheld or redacted” as required by our order. But the evidence plainly refutes these assertions.
{¶ 91} CPD’s admission that it withheld information relating to eight officers who were involved in the shooting under the victims’ rights exception indicates that more officers were involved in the shooting and therefore that the records it submitted for in camera review may have been incomplete. Indeed, a review of the unredacted evidence confirms this suspicion. Officer Doe 1 and Officer Doe 2 both attest that other officers on the scene engaged the third suspect. And a review of the unredacted footage provided to this court corroborates their statements—the unredacted footage shows that there were at least three cruisers that arrived at the scene during the incident and at least two other officers who shot at the third suspect after he had abandoned his weapon. And that footage shows that those officers who arrived at the scene and either observed or participated in the shooting had activated their body cameras. These facts are supported by an email from the Communications Director of the Office of the City Attorney in which he noted that “each of the officers and cruisers” at the scene have camera footage that could be “deemed a public record.” Thus, the evidence provided by CPD plainly shows that there are other records—specifically, body-worn-camera and dashboard-camera footage from other officers at the scene who were involved
{¶ 92} Furthermore, the evidence provided by CPD demonstrates that CPD redacted more than just identifying information of Officer Doe 1 and Officer Doe 2 from the records that were produced. In addition to redacting all the footage from the shooting in all four videos, thereby concealing the identities of the other officers involved in the shooting, CPD also redacted the voice of an officer driving the other cruiser who was not Officer Doe 1 nor Officer Doe 2. Thus, there is a legitimate issue about the number of officers involved in the shooting whose identifying information was redacted by CPD.
{¶ 93} The Dispatch has requested a copy of all body-worn-camera and dashboard-camera footage from the incident, conceding that CPD may redact footage that is excepted under the grievous-bodily-harm and act-of-severe-violence exceptions. Because the evidence indicates other records exist that are responsive to the Dispatch’s request, I would not limit the scope of the Dispatch’s request to only the four recordings submitted by CPD. Thus, we must review whether the withheld footage—all withheld footage responsive to the Dispatch’s request—falls squarely within an exception.
{¶ 94} CPD acknowledges that in every public-records case, the question before this court is whether the record fits squarely within the scope of an exception. CPD asserted in its answer that “based on the ordinary application of statutory law and case law as it existed at the time of the request, . . . the subject records contain exempt information under
VI. Exceptions to Disclosure: Grievous-Bodily-Harm Exception and Act-of-Severe-Violence Exception
{¶ 95} While not its primary argument, CPD asserts that the requested footage is excepted from disclosure because it shows grievous bodily harm to a peace officer and an act of severe violence resulting in serious physical harm to a peace officer while he was performing official duties. See
{¶ 96} Restricted portions of body-worn-camera or dashboard-camera recordings are not public records.
{¶ 98} However, “restricted portions of a body-worn camera or dashboard camera recording” do not include any visual or audio portion that “shows, communicates, or discloses” the death of a person, grievous bodily harm to a person, or an act of severe violence against a person when the act and injury was caused or effected by a peace officer.
{¶ 99} Therefore, any of the requested footage that shows, communicates, or discloses grievous bodily harm or an act of severe violence against a peace officer must be redacted. And any of the requested footage that shows, communicates, or discloses the death of a person, grievous bodily harm to a person, or an act of severe violence against a person when the act and injury was caused or effected by a peace officer cannot be redacted.
{¶ 100} In this case, CPD was required to redact footage of Officer Doe 1 bleeding and suffering from his five gunshot wounds under the grievous-bodily-
VII. Exceptions to Disclosure: Victims’ Rights Exception
{¶ 101} CPD denied the Dispatch’s public-records request and asserted, in part, that the officers present at the shooting were victims under Marsy’s Law,
{¶ 102} As discussed, we are required to apply the versions of the statutes that were in effect at the time the Dispatch filed its public-records request. Hence, we must determine whether the requested footage was prohibited from release under Marsy’s Law and former
{¶ 103} In enacting Sub.H.B. No. 343, which went into effect April 6, 2023, the General Assembly created a process to protect a victim’s name, address, and other identifying information included in “case documents” from public release. See former
{¶ 104} The General Assembly also provided a temporary, automatic opt-in period for victims who did not complete the written request upon their first contact with law enforcement by providing those victims with all statutory rights to privacy until that victim had been contacted by the prosecutor “within seven days of initiation of a criminal prosecution.” Former
{¶ 105} In sum, under former
{¶ 106} The majority opinion conducts a partial analysis of this issue, focusing solely on whether the officers are victims, and maintains that we do not
{¶ 107} Additionally, we have held that the records custodian must provide evidence establishing that the requested record clearly meets the requirements to be prohibited from release when it is not obvious from the content of the record that the record falls within an exception. Wilson, 2024-Ohio-182, at ¶ 10. Under our precedent, we must analyze whether all elements of the exception are met. In doing so, we properly perform our duty to ensure that a record is not wrongly withheld under the asserted exception. Natl. Broadcasting Co., 38 Ohio St.3d 79 at paragraph four of the syllabus.
{¶ 108} In this case, it is not clear from the content of the produced records that the records are prohibited from release under this provision. Thus, CPD has the burden to prove that the exception applies. See id. at paragraph two of the syllabus. If CPD fails to produce evidence to support each element necessary to exercise the victims’ rights exception, then CPD fails to establish that the requested records fall within the exception.
A. Officers can be victims under Marsy’s Law
{¶ 109} The Ohio Constitution guarantees victims of crimes certain rights under
{¶ 110} The great debate in this case is whether on-duty officers can be victims under Marsy‘s Law. I wholly agree with the majority opinion that officers can be victims under the definition of “victim” in Marsy‘s Law and
{¶ 111} We can reach no other conclusion. The statutory language adopts the constitutional language, and Marsy‘s Law places no restriction on when a person may become a victim—it provides only that a person is a victim if (1) a criminal offense was committed against that person or (2) the person was directly and proximately harmed by the commission of the criminal act or offense. See
{¶ 112} And in this case, I agree with the majority opinion that CPD has clearly demonstrated that Officer Doe 1 and Officer Doe 2 are victims under Marsy‘s Law. Majority opinion at ¶ 19. However, CPD has not argued that the other officers who had their information redacted from the videos that were produced or otherwise withheld from review are also victims. In fact, CPD conceded at oral argument that those officers are not victims as defined by Marsy‘s Law and
B. CPD has demonstrated that the records are “case documents”
{¶ 113} The next question is whether the requested records are “case documents” under former
(a) “Case document” means a document or information in a document regarding a case that is submitted to a court, a law enforcement agency or officer, or a prosecutor or filed with a clerk of court, including, but not limited to, pleadings, motions, exhibits, transcripts, orders, and judgments, or any documentation prepared
by a court, clerk of court, or law enforcement agency or officer, or a prosecutor regarding a case. (b) “Case document” does not include materials subject to the work product doctrine, materials that by law are subject to privilege or confidentiality, or materials that are otherwise protected or prohibited from disclosure by state or federal law.
2022 Sub.H.B. No. 343.
{¶ 114} This definition of “case document” is not a model of clarity. There are two ways that the former version of division (A)(1)(a) may be read: (1) the document or information in the document must be “regarding a case” and the document or information in the document has been “submitted to . . . or filed with” the appropriate entity; or (2) the document or information in the document must be “regarding a case” and that case has been “submitted to . . . or filed with” the appropriate entity. Reading the provision in context does not permit the first reading—the General Assembly‘s nonexhaustive list of documents that qualify as “case documents” includes documents that are never submitted or filed with any entity, such as orders, judgments, and other documents made by the court, as those documents are merely entered on the journal by the clerk of courts. See
{¶ 115} While the term “document” is undefined in this statute, we can easily conclude that the term would encompass recordings from body-worn cameras and dashboard cameras, as they are documentation prepared by law enforcement. Dept. of Pub. Safety, 2016-Ohio-7987, at ¶ 34 (body-worn cameras and dashboard cameras “document governmental activities, decisions, and operations” of law-enforcement officers). And this conclusion is consistent with this court‘s understanding that recordings can fall within the definition of “document.” See Black‘s Law Dictionary (12th Ed. 2024) (defining “document” generally as a “written instrument” but also as encompassing “any information stored on a computer, electronic storage device, or any other medium“); State v. Dorso, 4 Ohio St.3d 60, 62 (1983) (undefined terms are construed in accordance with common, everyday meaning).
{¶ 116} The next question is whether the recordings are “regarding a case” that has been submitted or filed with the appropriate entity. The General Assembly previously defined “case” as “a delinquency proceeding and all related activity or a criminal prosecution and all related activity.” Former
{¶ 117} Here, the requested recordings were created by body-worn cameras and dashboard cameras, which were activated as a result of CPD‘s pursuit of suspects who had committed a robbery. The requested footage captured the suspects committing multiple criminal offenses during the chase and subsequent shooting. And while one suspect died at the scene, the two who escaped were apprehended by law enforcement. So the footage portrays an activity related to a criminal prosecution in the form of an investigation into a robbery that was submitted to a law-enforcement agency or officer, and the two suspects who were apprehended could be prosecuted for their roles in the robbery and shooting. Thus, the requested recordings are regarding a “case” that was submitted to law enforcement.
{¶ 118} In sum, the requested recordings fall under the definition of “case document” under former
C. CPD‘s duty to redact “case documents”
{¶ 119} The last question is whether CPD was required to redact or otherwise withhold the requested records under former
{¶ 120} However, CPD has provided no evidence of a written request by Officer Doe 1 or Officer Doe 2 to redact their information under former
{¶ 121} And we cannot construe CPD‘s motion for leave to file John Doe affidavits to protect Officer Doe 1 and Officer Doe 2‘s information as a written request for redaction under former
{¶ 122} And lastly, CPD has provided no evidence that it redacted the victims’ information in accordance with the temporary, automatic opt-in period
{¶ 123} Perhaps leaving out the request forms was intentional—perhaps the Dispatch and CPD believed that, with only the information provided, we would presume that the temporаry, automatic opt-in period continued in perpetuity. But if we were to turn a blind eye to this lack of evidence and reach such a conclusion, then other public offices might withhold evidence from our review in order to avoid the time restrictions imposed by the General Assembly. And such a conclusion would contravene our precedent requiring public offices to provide evidence that the requested records clearly meet the requirements prohibiting their release. See Welsh-Huggins, 2020-Ohio-5371, at ¶ 30 (respondent must provide evidence to support the applicability of an exception); Jones-Kelley, 2008-Ohio-1770, at ¶ 22-26 (director failed to introduce evidence in the record to demonstrate that certified foster caregivers were caring for eligible children and thus had not met the burden to establish that the disclosure of the names and addresses of such caregivers would expose public-assistance recipients or applicants).
{¶ 124} However, because this case clearly involves two victims and the possible public release of their identifying information, which is protected by statute and may be protected under Marsy‘s Law, I think it is appropriate that we take judicial notice of the criminal proceedings against the two suspects because those proceedings are not subject to reasonable dispute and will resolve this issue in this action. See Evid.R. 201(B); State ex rel. Womack v. Marsh, 2011-Ohio-229, ¶ 8 (court of appeals could take judicial notice of entry attached to a motion to dismiss that would render a mandamus claim moot); State ex rel. Nyamusevya v. Hawkins, 2020-Ohio-2690, ¶ 33 (10th Dist.). Here, the two suspects who fled but
{¶ 125} Because the two suspects were never charged in Ohio and were charged by the United States, the temporary, automatic opt-in remains open, because the term “prosecutor” as defined in former
D. CPD can redact the identifying information from Officer Doe 1 and Officer Doe 2 from the requested records
{¶ 126} CPD has demonstrated that Officer Doe 1 and Officer Doe 2 were victims, the requested records are case documents, and the identifying information of Officer Doe 1 and Officer Doe 2 was required to be redacted from those case documents under the temporary, automatic opt-in period extended to the victims under former
{¶ 127} However, because the other officers involved in the shooting are not victims, as conceded by CPD, CPD cannot withhold the records that are responsive to the Dispatch‘s request related to those officers.
{¶ 128} The Dispatch requested all body-worn-camera recordings and dashboard-camera recordings from the shooting that are not excepted from review, seeking all footage from the shooting. The Dispatch has demonstrated that the requested footage falls under CPD‘s jurisdiction and that it meets the threshold definition of a public record under
{¶ 129} CPD demonstrated and the Dispatch conceded that portions of the requested footage were exempt from disclosure under the act-of-severe-violence exception,
{¶ 130} However, the Dispatch is not entitled to statutory damages, court costs, or attorney fees; it waived those rights by failing to address those issues in its brief. See State ex rel. Grim v. New Holland, 2024-Ohio-4822, ¶ 8; State ex rel. Stuart v. Greene, 2020-Ohio-3685, ¶ 10; State ex rel. Mun. Constr. Equip. Operators’ Labor Council v. Cleveland, 2007-Ohio-3831, ¶ 83.
BRUNNER, J., concurring in part and dissenting in part.
{¶ 132} I agree with the majority that a police officer may be a “victim” of a crime under
{¶ 133} In America, the government‘s power derives from “the consent of the governed.” Declaration of Independence, July 4, 1776. Ohio‘s government is also founded on this principle: “All political power is inherent in the people. Government is instituted for their equal protection and benefit, and they have the right to alter, reform, or abolish the same.”
{¶ 134} For the public to grant its consent to be governed, the public must have information about the government‘s conduct. For the public‘s consent to be effective and meaningful, it must be informed consent—as opposed to uninformed or misinformed consent. And informed consent requires knowledge:
A popular Government, without popular information, or the means of acquiring it, is but a Prologue to a Farce or a tragedy; or, perhaps both. Knowledge will forever govern ignorance: And a people who mean to be their own Governors, must arm themselves with the
power which knowledge gives.
9 The Writings of James Madison 103 (Hunt Ed. 1910). Thomas Jefferson argued that “[t]he way to prevent [errors of] the people is to give them full information of their affairs thro’ the channel of the public papers, and to contrive that those papers should penetrate the whole mass of the people.” 11 The Papers of Thomas Jefferson 49 (Boyd Ed. 1955).
{¶ 135} While much has changed in American society since the founding of its government, the concern voiced in these writings that continues today is the notion that knowledge is required for the public to provide informed consent. As one legal scholar observed:
The public, as sovereign, must have all information available in order to instruct its servants, the government. As a general proposition, if democracy is to work, there can be no holding back of information; otherwise ultimate decisionmaking by the people, to whom that function is committed, becomes impossible.
Thomas I. Emerson, Legal Foundations of the Right to Know, 1976 Wash.U.L.Q. 1, 14 (1976). As these writings have recognized, the government serves the people as a body politic—not vice versa. But when the government limits the information to which the public has access, it prevents the public from gaining the knowledge required to provide informed consent to be governed. And in doing so, the government skirts the fundamental state constitutional principle that Ohioans have expressly retained their rights to self-governance with power being inherent in the people. See
{¶ 136} If this court acquiesces to the other branches of government before it fulfills the duty to ensure that the power of self-governance reserved by the people
{¶ 137} This court has recognized that:
A fundamental premise of American democratic theory is that government exists to serve the people. In order to ensure that government performs effectively and properly, it is essential that the public be informed and therefore able to scrutinize the government‘s work and decisions. . . .
Public records are onе portal through which the people observe their government, ensuring its accountability, integrity, and equity while minimizing sovereign mischief and malfeasance. . . . Public records afford an array of other utilitarian purposes necessary to a sophisticated democracy: they illuminate and foster understanding of the rationale underlying state decisions, . . . promote cherished rights such as freedom of speech and press, . . . and “foster openness and . . . encourage the free flow of information where it is not prohibited by law.” State ex rel. The Miami Student v. Miami Univ. (1997), 79 Ohio St.3d 168, 172, 680 N.E.2d 956.
(Fourth ellipsis added in Kish.) Kish v. Akron, 2006-Ohio-1244, ¶ 15-16. “[O]pen access to government papers is an integral entitlement of the people, to be preserved with vigilance and vigor.” Id. at ¶ 17.
{¶ 138} Among the most prominent rights guaranteed by the Ohio Constitution are rights ensuring that the government does not obstruct the flow of information needed for the people to provide informed consent. Article 1, Section
{¶ 139} The development of our caselaw surrounding these provisions has been affected by the fact that the United States Constitution contains similar provisions. For example, the United States Supreme Court has interpreted the First Amendment to the United States Constitution as protecting the right to receive in the mail “communist political propaganda” from abroad without first having to notify the government and request that such mail be delivered. Lamont v. Postmaster General of the United States, 381 U.S. 301, 305-307 (1965). Because of the United States Supreme Court‘s holding that the First Amendment‘s guarantees of free speech and prеss are among the liberties that the Fourteenth Amendment protects against state action, see Near v. Minnesota, 283 U.S. 697, 707 (1931), we have no reason to consider whether a materially similar state law would violate the Ohio Constitution; even if we held that the Ohio Constitution did not bar such a law, the law would still be invalid under the First Amendment to the United States Constitution. Nonetheless, it is “well established that the [federal] Constitution protects the right to receive information and ideas,” Stanley v. Georgia, 394 U.S. 557, 564 (1969), and in that general sense, there can be no law or holding that would deprive Ohioans of this right, and thus, it is safe to conclude that the Ohio Constitution—like the United States Constitution—similarly protects the right to receive information and ideas.
{¶ 141} Ohio‘s Constitution clearly embraces the notion that public access to information about the government is essential to democratic self-governance. Were it otherwise—i.e., if the contours of this right could be defined solely by the legislature—then the legislature could corruptly obtain the consent of the governed through careful curation of its work and through incomplete disclosure of its records and information. Thus, I would hold that the Ohio Constitution guarantees the public the right to access government records.
{¶ 142} If we are to act as intended by Article IV of Ohio‘s Constitution, we must mediate the right to access government records between the people and the other two branches of the State by balancing their inherent powers and ensuring that the right of the people to know does not hamper the government‘s duty to serve by imposing restrained and judicious limitations. In this case, we are confronted with several possible limitations to the disclosure of government records that are based on privacy concerns. The first is contained in the Ohio Constitution, which guarantees victims of crime a right of “privacy,” see
{¶ 143} In theory, the conflict between the public‘s right to access government records and a crime victim‘s right to privacy could be reconciled in a number of ways. See generally Emerson, 1976 Wash.U.L.Q. at 21-22 (discussing possible approaches to reconciling these two constitutional rights). But even
{¶ 144} While “no comprehensive or accepted definition of privacy exists today,” id. at 22, the General Assembly has attempted to create certain limitations to disclosure under Ohio‘s public-records law to protect crime victims’ rights to privacy.
{¶ 145} In the present case, this consideration leads me to the conclusion that the privacy right in
{¶ 146} It is clear that all of the recorded bodycam and dashcam footage at issue shows events that took place in public and that could have been viewed by members of the public who happened to be on that public highway or nearby. Because the officers were on duty and performing their duties in a public place, I
{¶ 147} And there are two other limitations on the public‘s right to access government records that are at issue in this case. Both are statutory exceptions within the Public Records Act,
{¶ 148} For these reasons, I respectfully concur in part and dissent in part.
Faruki, P.L.L., and John C. Greiner, for relator.
Zachary M. Klein, Columbus City Attorney, and Aaron D. Epstein and Joshua P. Monroe, Assistant City Attorneys, for respondent.
Harshman, Wannemacher, Tipton & Lipperman and Lathan J. Lipperman, urging denial for amicus curiae Fraternal Order of Police, Capital City Lodge #9.
Gwen Callender, urging denial for amicus curiae Fraternal Order of Police of Ohio.
Dave Yost, Attorney General, Mathura J. Sridharan, Solicitor General, and Jana M. Bosch, Deputy Solicitor General, urging denial for amicus curiae Ohio Attorney General Dave Yost.