NEWS MEDIA UPDATE · OHIO · Freedom of Information · June 5, 2006
Paper’s lawsuit uncovers identity of dead man used in sting
June 5, 2006 · The name of a dead man whose identity was used in a sting operation at an adult night club cannot be shrouded by the Troy, Ohio, police who claimed an exemption to the state’s public records law, an appellate court ruled.
Police last month told family members that Daniel Jacobs’ identity was used to access a pornographic Web site run by Total Xposure, a now shuttered adult entertainment business. The use of Jacobs’ identity, as well as the use by police of a living woman’s identity to gain an undercover job as a stripper at the club, was legal at the time, but state law has since banned the practice, the Dayton Daily News reported.
After police publicly described details of the undercover investigation that eventually led to the club’s closure, the News requested the name of the dead individual used in the sting. Police refused, citing an exemption to state’s Public Records Act for investigative materials.
In ruling in the paper’s favor, the Second District Court of Appeals in Dayton ruled in an unsigned opinion that police failed to meet a two-part test for determining whether the records are investigative. The test requires that records must pertain to a law enforcement matter and, if released, would lead to disclosure of an uncharged suspect, a source or witness promised confidentiality, specific investigatory techniques or procedures, specific materials from an investigation or information that would endanger someone’s life or safety. Police had voluntarily released to the newspaper and the public all information — except Jacobs’ identity — about the investigation.
The appellate court’s opinion dismissed the city’s contention that releasing the name would hinder future similar investigations. The city had already disclosed that a deceased individual’s identity was used, and thus, no future use of the technique would be hampered by further disclosing the individuals’ name, wrote the court.
“Regardless of whether the individual’s identity used in this investigation is disclosed, anyone in the future may search the obituaries to determine if the identity being used in an investigation is someone who is deceased,” the opinion read.
Newspaper representatives described the victory as incomplete because the court failed to award attorney fees. Ohio’s public records law requires attorney fees to be awarded to the party requesting the record if the failure to provide the information was unreasonable and the public will benefit from the disclosure. In this case, the appellate court decided any benefit to the public already occurred when the police voluntarily revealed the nature of the investigative technique.
“These are not the government’s records, they are public records, and the public should not have to spend a lot of money in court to get these records,” said News Managing Editor Steve Sidlo. “We’re doing our best to fight the good fight but it takes a chunk out of your budget.”
Tim Pepper, the paper’s attorney, said that “without an award of attorney’s fees to the newspaper, the city has no incentive to follow the law the next time around.”
Greg Dixon, the attorney for the city of Troy, and Troy Police Chief Charles Phelps did not return calls seeking comment.
Sidlo expressed disappointment at the “cavalier” attitude of many government officials towards the release of public records. “This is us fulfilling our watchdog function,” he said. “We’re just doing what we’re supposed to be doing. It’s just frustrating that you have to fight in court for so many of these things.”
(Ohio ex rel. Dayton Newspapers, Inc. v. City of Troy; Media Counsel: Tim Pepper, Faruki, Ireland & Cox, Dayton, Ohio) — PS