A legal guide for reporters covering the Ohio shootings

Mourners hug after the burial of Daniel Parmertor at All Souls Cemetery, Saturday, March 3, 2012, in Chardon, Ohio.

On Feb. 27, Ohio high school sophomore T.J. Lane allegedly gunned down three students at Chardon High School and wounded two others. The 17-year-old is charged with aggravated murder, attempted aggravated murder and felonious assault in juvenile court. Since the shooting, journalists have descended on the small town of Chardon, about a two-hour drive from Pittsburgh.

The Reporters Committee for Freedom of the Press has put together a guide on some of the legal issues that journalists covering the Ohio school shooting may encounter.

NEWSGATHERING

911 tapes: Cities and counties must provide audio recordings and paper transcripts of 911 calls in their custody.

Child fatality review board: These boards exist in each county in Ohio and review and present data on all unexplained or unexpected child deaths, including those caused by homicide. Records received by – and work product of – a child fatality review board, as well as statements made by its members during meetings are exempt from disclosure. Further, child fatality review data submitted by a board to the health department or a national child death review are exempt from disclosure, except for the annual report, which is available on the Ohio Health Department website.

Confessions: Confessions may be withheld as confidential law enforcement investigatory records if their release would create a high probability of disclosure of specific confidential investigatory work product, techniques, or procedures, or information that would endanger the physical safety of a crime victim, a witness, confidential source, or law enforcement personnel.

Coroner’s records: Autopsy reports are non-public confidential law enforcement records to the extent that their release would create a high probability of disclosure of specific investigatory work product. Other records of the coroner that are not public records include medical and psychiatric records of the deceased, confidential law enforcement investigatory records, or lab reports generated by the coroner’s lab.

However, journalists connected to or employed by a news media organization may submit a written request to the coroner to view preliminary autopsy and investigative notes and findings, suicide notes, or photographs of the deceased made by the coroner or anyone acting under his/her supervision. The request must include the journalist’s name and title, the name and address of the journalist’s employer, and assert that granting the request would be in the best interest of the public. If a journalist submits such a written request, the corner must grant it; however, the journalist cannot copy any of the materials.

Death certificates: Death certificates are public records, and can be obtained from the city or county health department.

Emergency guide for Ohio schools: An emergency plan for Ohio schools is available on the Ohio Department of Health website (search “school guidelines”).

Emergency medical services records: Emergency medical services records may be withheld as medical records, but only if they are maintained or generated in the process of medical treatment – not if the report relates to a victim found dead upon the arrival of the emergency medical service squad.

FERPA: The Family Educational Rights and Privacy Act is a federal law that prohibits school from releasing personally identifiable information in “education records” – records containing information directly related to a student and that are “maintained by an educational institution” in a central repository, such as a filing cabinet or permanent database – without consent from the parent or student. Records containing education records, health records, disciplinary records, and personally identifiable information from students’ education records are not accessible. The following information does not fall under FERPA: Law enforcement records kept by school security officers, which may include surveillance tapes, personal knowledge or observations made by faculty, staff and students; and directory information, which may include a student's name, address, telephone number, date and place of birth, and/or major field of study (however, students may opt out from the release of directory information).

Gun records: Journalists connected to or employed by a news media organization may request the name, county of residence and date of birth of persons issued a license to carry a concealed handgun. Journalists may also request the name, county of residence and date of birth of persons with a suspended or revoked license to carry a concealed handgun or a temporary emergency license to carry a concealed handgun. Journalists may not copy any of the information from these records. Requests must be made in a signed, written document to the sheriff and include the journalist’s name and title, the journalist’s employer’s name and address, and assert that “disclosure of the information sought would be in the public interest.”

Medical/hospital records: Medical records are not public records under the law, and include any record, “except births, deaths, and the fact of admission or discharge from a hospital,” consistent with the federal Health Insurance Portability and Accountability Act.

Mug shots: Mug shots are presumed to be public records.

Police records: Incident reports must be released. Investigatory records of law enforcement officials may be withheld if they relate to a law enforcement matter of a criminal, quasi-criminal, civil, or administrative nature, and if release would create a high probability that any of the following would be disclosed:

• The identity of a suspect who has not been criminally charged or arrested for the offense to which the record relates.
• The identity of a confidential informant.
• Information provided by a confidential informant where release of the information would identify the source or witness.
• Specific investigatory techniques or procedures, although routine investigatory procedures do not qualify.
• Specific investigatory work product, which is information collected by law enforcement officials in the course of an actual or probable crime. The exemption applies whether or not prosecutors have decided to file charges.
• Information that would endanger the physical safety of law enforcement personnel, a crime victim, a witness, or a confidential informant.

Juvenile arrest records are public records if the child has been arrested for allegedly committing an act that would be a felony if committed by an adult.

Recreational records: Records pertaining to the recreational activities of children who participate in activities at public recreation centers – such as photos held by the city Recreation and Parks Department of children who use city pools – are not subject to open records laws.

Victims’ records: A victim’s statement reporting an offense to a law enforcement officer is a public record. Victim statements that are compiled solely for initiating prosecution of a defendant are not releasable as trial preparation records. If the safety of a victim would be endangered then the record is exempt as a confidential law enforcement investigatory record.

COVERING THE TRIAL

Cameras in juvenile courts: Ohio is one of just a few states that allows cameras and recording devices in juvenile courts, provided a victim or witness does not object to their presence. Members of the news media who wish to photograph proceedings in a juvenile case must file a written request with the presiding judge, who, after consultation with the news organizations, will specify the place in the courtroom from which photographs and recordings may be made. If the media’s request is granted, there is no prohibition on photographing or recording the juvenile.

Gag order: An Ohio judge issued a gag order preventing the accused shooter and lawyers from speaking with the media, though some interviews had been granted prior to the order. Juvenile court judges may impose gag orders on the participants in the case provided they are not over broad and the interests underlying them are balanced against those of the press and public. Moreover, some juvenile court judges have reacted favorably to media arguments that such gag orders restrict the media’s access to juvenile court proceedings and also impose an unconstitutional prior restraint on the media.

Juvenile court proceedings: A juvenile court judge can restrict public access to the proceedings if, after a hearing, he or she finds there is a reasonable and substantial basis for believing public access could harm the child or endanger the fairness of the adjudication, the potential harm to the child outweighs the benefits of public access, and there are no reasonable alternatives to closure. The hearing during which evidence will be inspected to determine whether the proceeding should be closed should be conducted in the judge’s private chambers, and counsel for the parties, the press and the public may be present and participate in the hearing.

Juvenile court records: In general, juvenile court records are not open for public inspection in Ohio. However, there is an exception for certain juvenile records that are relevant to the state in prosecuting the juvenile as an adult. Moreover, some juvenile court judges allow access to juvenile court records, especially when the juvenile court proceedings are open to the public. Records in those cases where a juvenile has been adjudicated delinquent for committing certain serious felonies, including aggravated murder, may not be sealed. However, some information in those court documents, including identifying information about the alleged juvenile offender’s victim and any written statement he or she submitted to the court for its consideration in imposing the sentence, may remain confidential.

Transcripts: The transcript of a juvenile court proceeding may be released where there is no evidence that there is a reasonable and substantial basis for believing that public disclosure would harm the child involved, or that any potential harm outweighs the benefits of public access.