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7th District reverses reporter’s victory in judge shooting case
TRACEY BLAIR
Legal News Reporter
Published: October 22, 2019
The Ohio Court of Claims improperly allowed an Associated Press reporter to receive copies of a video recording showing a judge being shot outside the Jefferson County Common Pleas Court.
That’s according to the 7th District Court of Appeals, which found the Court of Claims incorrectly interpreted the applicable provisions in R.C. 149.433 for public record exceptions and erroneously shifted the burden on Jefferson County prosecutors to prove the footage was not a public record.
The prosecutor’s office appealed the Court of Claims’ order allowing reporter Andrew Welsh-Huggins to inspect the Aug. 21, 2017, video recordings of Nate Richmond shooting Judge Joseph J. Bruzzese. The footage was from an exterior security camera. Part of the shooting and part of the response was also recorded on a street camera.
The 7th District panel held the prosecutor’s office met its burden and the video footage constitutes a security record under the Public Records Act.
Case summary shows the judge was walking into work when Richmond approached him and began shooting. The judge and a probation officer walking into work returned fire. The judge was wounded but recovered after being flown to a Pittsburgh hospital and undergoing surgery. Richmond died at the scene due to gunshot wounds from the defensive fire.
The reporter requested a copy of the external courthouse surveillance under the Public Records Act the day of the shooting. The prosecutor’s office denied the request, stating it was an infrastructure/security record that was going to be used in a criminal or civil action.
Welsh-Huggins repeatedly made the request over the next nine months, and was denied each time. The reporter made the request to see if Richmond ambushed the judge as law enforcement alleged, and because the shooting of a judge going into court was of great public interest.
The prosecution argued releasing the video would give future attackers an advantage, as the footage shows security measures and responses, as well as the camera’s configuration, blind spots and technical capabilities.
The courthouse video surveillance and still photos were filed under seal.
After a hearing, the special master recommended an order to release the video surveillance. It found none of the exceptions to public records applied, stating the video is not an infrastructure record since footage of the location of doors, windows and vents shows no more than what would be revealed in a simple floor plan. It also found the footage was not a security record since it had no audio and therefore no verbal commands, codes, or explanations.
The special master held the prosecutor’s office was required to copy the record in an available format. The Court of Claims overruled the prosecutor’s objections and adopted the special master’s recommendation. The Court of Claims agreed to stay the order while the appeal was pending.
R.C. 149.43(B)(1) requires a public office to make copies of public records available to any person upon request, within a reasonable period of time. However, the statute specifically indicates infrastructure and security records are not public records and are not subject to mandatory release, 7th District Judge Carol Ann Robb said in her decision.
Robb noted that many of the arguments made by Welsh-Huggins are similar to the arguments made by the Department of Rehabilitation and Correction in State ex rel. Rogers v. Department of Rehabilitation and Correction (2018-Ohio-5111). Rogers dealt with a request for security camera footage relating to a use-of-force incident at Marion Correctional Institution. In that case, the Ohio Supreme Court found the DRC failed to meet its burden to show the video is an infrastructure or security exception.
However, Jefferson County prosecutors asked the panel to base its reasoning on another case, State ex rel. Plunderbund Media v. Born (2014-Ohio-379). Plunderbund dealt with a requester who sought records from the Department of Public Safety documenting threats against the governor. The court concluded information in the affidavits were security records.
“In the case at hand, respondent provided an affidavit,” Robb said in her opinion. “This affidavit claimed the recording shows the technical capabilities of the video security system, including the ability to zoom, rotate and isolate certain areas. The video shows the blind spots and places an attacker could take cover and go undetected. The video also shows the emergency response means, methods and procedures. Essentially, the affidavit indicates that the video shows the vulnerabilities of the security measures and the response to emergencies. Although the affidavit is based on hearsay and is not from an office that provides security to the courthouse, requester did not object to the affidavit on that basis. Therefore, the affidavit provides a basis for holding the video is a security record. The video shows the vulnerabilities of the courthouse’s security and the security camera.”
Robb added the response to the incident and secondary emergency response constitutes another security record.
“The security aspect of a response to an emergency situation is just as important as the security to prevent an actual incident,” the judge wrote, adding, “Rogers and Plunderbund clearly indicate one cannot label a record a `security record’ as a means to keep it from disclosure. Instead, there must be some type of evidence indicating it is a security record as defined by R.C. 149.433(A). There was evidence provided in this case.”
The panel reversed the Court of Claims decision, and ruled the prosecutor’s office is not required to disclose the video to the Associated Press.
Seventh District judges Gene Donofrio and David A. D’Apolito concurred.
The case is cited Welsh-Huggins v. Jefferson Cty. Pros. Atty., 2019-Ohio-3967.