Threatening Behavior

Threatening Behavior

When Public Record Goes Private

By AJ Wagner

Section 149.43 of the Ohio Revised Code, with few exceptions, makes public records public. The theory behind this “Sunshine” law is that the public owns the records so they should have complete access to them.

A recent case from the Ohio Supreme Court, however, laid out some reasons information collected within public records should be maintained in confidence. The case involved a motorcycle gang, a newspaper and police officers. The scenario is not that hard to imagine.

The Iron Horsemen motorcycle gang in Cincinnati, according to police, deals with drugs, weapons, and prostitution. Tension between the gang and police has existed for years. At one time, one of the Iron Horsemen created a 12-gauge shotgun within his motorcycle handlebar to threaten police officers. Members of the gang had also threatened an officer and his family with weapons at a remote site.

Another motorcycle gang, the Detroit Highwaymen, showed up in Cincinnati, resulting in trouble between the two gangs. The gangs would “takeover” bars with members of one of the gangs entering a bar, closing it, and detaining everybody in the bar. If they detected a rival gang member among the hostages, that person would be threatened and beaten.

On September 18, 2010, an officer saw motorcycles outside of a bar. He thought that a takeover was in progress. 14 police officers responded to his call resulting in a gunfight. Two police officers were wounded, and the National Enforcer of the Iron Horsemen was killed.

Shortly afterward, the Cincinnati police received information that Iron Horsemen members would target police involved in the incident. According to police, it is not unusual for an outlaw motorcycle gang to seek revenge when one of its members is killed. Two officers who had been wounded returned fire, and both were concerned that if their identities were discovered, the gang would retaliate against them or their families.

Reporters for the Cincinnati Enquirer requested that the police department provide records related to the shootout, including the names of the two police officers shot, their personnel files, and an unredacted copy of the incident report of the shootout. The police department refused to release names and identifying information regarding the officers in order to protect them, although they did provide records without the names.

The newspaper sued, and after being denied the records by the trial court and the court of appeals it appealed to the Ohio Supreme Court. The newspaper relied on four arguments for its position that it should receive the records.

First, the newspaper argued that they posed no threat to the officers. The Supreme Court, however, stated that disclosure to anyone “increases the risk that the information will fall into the wrong hands.”

Second, the paper argued that the police department had failed to provide any potentially admissible evidence to suggest that the release of any information contained in the personnel files may place the officers at any risk of serious bodily harm and there was no current perceived likely threat. To this the Court said: “By contrast, the evidence here, including those portions sealed by the court of appeals, included credible evidence of a perceived likely threat that the Iron Horsemen motorcycle gang would retaliate against the wounded officers for killing the gang’s national enforcer. This was supported by Streicher’s (the police chief) historical knowledge of the circumstances, past instances of threats made by the Iron Horsemen against the Cincinnati police, and the confidential information confirming the threat against the officers.”

Third, the Enquirer contended 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.” The Justices disagreed saying the paper had all the information it needed.

Finally, the paper said the request was narrowly tailored to achieve the public purpose of examining the performance of the police. The Supreme Court, once again, did not agree considering the high stakes of the officers’ lives.

The justices looked at the constitutional right of privacy and determined that “Officers have a fundamental constitutional interest in preventing the release of private information when disclosure would create a substantial risk of serious bodily harm, and possibly even death, ‘from a perceived likely threat,’ so that any such disclosure by the state should be measured under strict scrutiny.”

The newspaper also noted a “Journalist Exception” in the law that allows journalists to obtain certain records relating to peace officers, including their home addresses, even if other members of the public would not be entitled to them. The court ruled that this exception does not, however, apply to wounded officers.

The Cincinnati Enquirer got its strict scrutiny but could not convince the Court that they should get records when police officers’ lives are at stake.

(From State ex rel. Cincinnati Enquirer v. Craig, 2012-Ohio-1999)

Disclaimer: The content herein is for entertainment and information only. Do not use this as a legal consultation. Every situation has different nuances that can affect the outcome and laws change without notice. If you’re in a situation that calls for legal advice, get a lawyer. You represent yourself at your own risk. The author, the Dayton City Paper and its affiliates shall have no liability stemming from your use of the information contained herein.

A.J. Wagner is an attorney with the law firm of Flanagan, Lieberman, Hoffman and Swaim at 15 W. Fourth Street in Dayton. A.J. and his firm would be glad to help you with all of your legal needs. You can reach A.J. at (937) 223-5200 or at AJWagner@DaytonCityPaper.com.

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A.J. Wagner is an attorney with the law firm of Flanagan, Lieberman, Hoffman and Swaim at 15 W. Fourth Street in Dayton. A.J. and his firm would be glad to help you with all of your legal needs. You can reach A.J. at (937) 223-5200 or at AJWagner@DaytonCityPaper.com.

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