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Cincinnati cannot keep Justice police proposals secret

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Cincinnati cannot keep Justice police proposals secret

  • A Justice Department proposal to address Cincinnati police “patterns and practices” after a fatal shooting provoked riots in the city is a matter of “great public interest” and cannot be withheld under the state’s open records law, the state’s high court ruled in late December.

Jan. 9, 2003 — An Ohio Supreme Court panel ruled 5-1 on Dec. 23 that the City of Cincinnati must provide a copy of a U.S. Department of Justice proposal for reforming the city’s police department to The Cincinnati Enquirer. The state’s open records law requires disclosure despite a federal judge’s protective order in another case involving it and despite claims that the record would not be available under the federal Freedom of Information Act.

The high court said that although there may be good policy reasons for exempting settlement proposals, they cannot override the law. Findings on the practices and policies of the Cincinnati Police Department were a matter of “great public interest,” the court said, and the newspaper’s access to the federal proposal would enable it to provide complete and accurate news to the public.

After the fatal shooting of an African-American man by a white officer triggered three days of rioting in Cincinnati in April 2001, the Justice Department began working with the city in an investigation into alleged “patterns and practices” of abuses in the city’s police department.

Almost a year later, the Justice Department gave the city a proposed settlement agreement. Enquirer reporter Greg Korte filed a request for it after the city’s deputy solicitor refused to provide it. The city refused, citing a protective order issued in February 2002 by a federal district judge in a related case concerning racial profiling charges brought against the city by African-American businessman Bomani Tyehimba and the American Civil Liberties Union. Attorneys for the parties in that case, including the city’s attorneys, had agreed to keep records confidential, including the Justice Department’s proposal. The federal judge overseeing that case issued a protective order.

After the newspaper sued for the proposal, the city claimed not only that it could not release the record under the protective order, but that the canons of ethics to which city lawyers were bound required them to keep the federal proposal secret as they had vowed to do in the Tyehimba case. The city also claimed that a law enforcement exemption in the open records act prohibited release and it claimed that the federal Freedom of Information Act prohibited disclosure.

In June a court of appeals in a 2-1 decision found that the Justice Department’s proposal was a “trial preparation record” not subject to release, and the newspaper appealed.

The high court rejected each of the city’s arguments. By voluntarily sharing the proposal with Tyehimba’s lawyers, the city attorneys already had made the proposal public, it said, and no ethical canons would force them to keep these records secret. The state’s exemption for law enforcement records did not apply and the state would not be required to enforce exemptions to the federal act if they applied, the court said.

A lone dissenting judge did not disagree with the majority holdings, but said that because the Justice Department’s proposal actually had been released to the newspaper after the city and the federal government reached agreements, he believed the case was moot.

(Cincinnati Enquirer v. Dupuis; Media counsel: John Greiner and John Flanagan, Graydon, Head & Ritchey, Cincinnati) RD


© 2003 The Reporters Committee for Freedom of the Press

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