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Court Denies Newspaper's Request for Names, Identifying Information of Police Officers Wounded in Gang Shootout

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2011-1798.  State ex rel. Cincinnati Enquirer v. Craig, Slip Opinion No. 2012-Ohio-1999.
Hamilton App. No. C-100820, 2011-Ohio-4498. Judgment affirmed.
O'Connor, C.J., and Pfeifer, Lundberg Stratton, O'Donnell, Lanzinger, Cupp, and McGee Brown, JJ., concur.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2012/2012-Ohio-1999.pdf

(May 10, 2012) In a 7-0 decision announced today, the Supreme Court of Ohio denied a writ sought by the Cincinnati Enquirer newspaper to compel Cincinnati Police Chief James Craig to provide the paper with information from the personnel files of two city police officers who were wounded in a September 2010 gunfight with members of the Iron Horsemen motorcycle gang.

The incident resulted in the death of a gang member identified as the Iron Horsemen’s “national enforcer,” and police subsequently received information that it was likely other gang members would target police, and particularly the officers involved in the shootout, for violent retaliation for an indefinite period.

In September and October 2010, reporters for the Enquirer requested that the police department provide it with certain records related to the September 18, 2010 shootout at JD’s Honky Tonk bar, including the names of the two police officers shot, their personnel files, and an unredacted copy of the incident report of the shootout.  Then-police chief Thomas Streicher denied the requests insofar as the Enquirer sought names and identifying information regarding the officers involved in the shootout. An attorney for the city specified that the city was willing to provide the Enquirer with redacted copies of the requested records.   

On December 22, 2010, the Enquirer filed a complaint in the First District Court of Appeals seeking a writ of mandamus to compel the police chief to make the requested records available for inspection and copying. The Enquirer also sought an award of attorney fees. The police chief submitted an answer denying the Enquirer’s entitlement to the writ, and the parties submitted stipulated evidence, including depositions of Police Chief Streicher, which included portions that were sealed. 

On September 9, 2011, the court of appeals denied the writ and the request for attorney fees. The Enquirer exercised its right to appeal the First District’s ruling to the Supreme Court.

In today’s unanimous per curiam decision, the court affirmed the First District’s holding that the requested information was exempt from disclosure based on the officers’ constitutional right of privacy, which falls within the exception in the Ohio Public Records Act for “records the release of which is prohibited by state or federal law.”

Citing the U.S. Sixth Circuit Court of Appeals’ 1998 decision in Kallstrom v. Columbus, a case in which several police officers sued the city for disclosing their personal information to a lawyer representing gang members against whom they had testified in a drug conspiracy case, the court rejected the Enquirer’s claim that the records it sought in this case were not exempt from disclosure because the newspaper posed no threat to the safety of the wounded officers or their families.

The court wrote: “(A)s the Sixth Circuit in Kallstrom I observed ...  ‘although there was no indication that the (organization requesting their records) posed any threat to the officers and their family members, disclosure even to that group of the officers’ phone numbers, addresses, and driver’s licenses, and their family members’ names, addresses and phone numbers “increases the risk that the information will fall into the wrong hands.”’ 

In addressing other arguments advanced by the newspaper, the court wrote: “(T)here is no evidence to support the Enquirer’s contention that ‘by redacting the officers’ names, Chief Streicher has blocked any meaningful review of ... information’ relating to discipline and citizen complaints of the wounded officers.  Rather, as the court of appeals noted, ‘[t]he parties’ counsel agreed at oral argument that all the requested documents had been disclosed, except that the officers’ identities had been redacted.’  ...  Therefore, information contained in the wounded police officers’ requested personnel files relating to discipline and citizen complaints has already been made available to the Enquirer.”

“Finally ... the evidence established that the release of the identities of the wounded police officers would place them at the risk of serious bodily harm and possibly even death from a perceived likely threat and that the disclosure of their identities was not narrowly tailored to achieve the public purpose of examining the performance of the police. The sealed portions of Streicher’s deposition relating to a confidential information confirming the existence of threatened retaliation against the wounded police officers were admissible to establish his perception of the threat.  Therefore, the court of appeals correctly held that the requested names of the wounded police officers were protected from disclosure under R.C. 149.43(A)(1)(v) by the constitutional right of privacy.”

Because it agreed with the court of appeals’ finding that the Enquirer’s public-records claim lacked merit, the court also affirmed the First District’s denial of the newspaper’s request for attorney fees.

John Greiner, 513.629.2734, for the Cincinnati Enquirer.

Peter Stackpole, 513.352.3350, for Police Chief James Craig.