Editor’s Note: ONMA Executive Director Dennis Hetzel wrote the following op-ed column for the Cincinnati Enquirer. Other ONMA members may publish it as well.
If ever a judge had the perfect background to carefully read the law while understanding the inevitable collisions between the public’s right to know and the desire of investigators to keep things secret, it’s Ohio Supreme Court Justice Sharon Kennedy.
Kennedy, who joined the court in 2012, not only has had a distinguished career as a lawyer and judge, she is a former Hamilton police officer. She ran Butler County’s domestic relations court and served as special counsel to Attorney General Betty Montgomery. She represented police officers as counsel for the Fraternal Order of Police in their disciplinary hearings for seven years.
So, when Kennedy writes that a recent decision by the Supreme Court in a homicide case is equivalent “to building a foundation on quicksand,” people should listen.
If only one more judge had listened to her.
The Cincinnati Enquirer and Columbus Dispatch had sought the complete autopsy reports in the still-unsolved and mysterious deaths of eight people in Pike County on April 22, 2016. The country coroner, with the strong support of Attorney General Mike DeWine, refused to release the unredacted copies of the autopsies, saying it would harm the investigations.
The newspapers argued otherwise, noting that state law appeared to make autopsy reports 100 percent open. The justices also reviewed the records themselves.
Unfortunately, the 4-3 decision represents more than just two newspapers losing a single open records case. It also carves two big, new loopholes into Ohio’s open records law. Law enforcement already is allowed to exempt considerable information from disclosure during an active investigation – a right that police need and no one disputes.
Kennedy’s powerful dissent should be required reading for a future court, particularly her concern about the court’s invention of a new concept called “investigative value” as a reason to exempt records from disclosure. Taken to its logical conclusion, all the police have to do now is claim something has “investigative value” and it won’t be disclosed until after the case is closed – or never if the case remains unsolved, which increasingly appears to be the situation in Pike County.
This undermines the majority argument that media outlets should “just be patient.” There is no guarantee this information ever will be released. It is hard to escape the notion that the justices hunted for reasons to allow secrecy when the clearest reading of the law says otherwise.
And it’s not just the police that get to keep more things secret. By supporting the Pike County coroner’s heavy redaction of autopsy reports, the Supreme Court also has expanded the law enforcement records exemption to cover people, like the coroner, who are not law enforcement officials.
Think about what that means. Any record that might have undefined “investigative value” in a law enforcement matter that is handled by any public official can now be declared secret in Ohio.
The Supreme Court has been down this road before. A disturbing string of cases on open records reached a peak in the 2012 case, Zidonis v. Columbus State, in which – at least to this layperson – the court basically said that an “overly broad” request for public records was whatever the government said it was. Good luck fighting City Hall with that result.
Since then, the Court has pulled back on its sometimes-extreme view of our open records law with a series of good decisions. Kennedy has proven to be a strong advocate for the public’s right-to-know on the Court. Here’s hoping she can convince one more judge to stand with her sooner rather than later to reverse the bad result in this Pike County case.