by Christopher Zoukis

Five media companies, including The Associated Press, were denied statutory damages and attorney's fees in an unsuccessful public records request filed in Cincinnati, Ohio. The suit, filed over a body-camera video from a police shooting, was denied by the trial court. The Ohio Supreme Court affirmed the denial.

The plaintiff media companies requested the video immediately following the July 19, 2015 shooting of Samuel DuBose by University of Cincinnati police officer Ray Tensing. The Cincinnati Police Department, the Office of General Counsel for the University of Cincinnati and the Hamilton County Prosecutor's Office all denied the request. The prosecutor's office specifically declined to release the video for fear that it would jeopardize a future fair trial, and because it constituted confidential law enforcement investigatory records.

"The law supports our position to not release the video," said the prosecutor's office. "If you do not want to look at the law and just use your common sense, it should be clear why we are not releasing the video only a few days after the incident occurred. We need time to look at everything and do a complete investigation so that the community is satisfied that we did a thorough job. The grand jury has not seen the video yet and we do not want to taint the grand jury process. The video will be released at some point -- just not right now."

Some point came very quickly. The media companies sued four days after the prosecutor's statement, and the prosecutor released the video two days after that. The quick release of the video following the institution of legal proceedings ultimately doomed the media companies' request for damages and fees.

The Ohio high court noted that the statute under which the plaintiffs sued only allowed for the award of damages and fees if the public record in question was not "provided promptly." While the statute did not include a specific time frame, it did include a requirement that the record be turned over within a reasonable amount of time. The court found that a six-day delay was reasonable.

"Because the prosecutor was entitled to review the video to determine whether any redaction was necessary and produced the body-camera video six business days after it was initially received by his office, we conclude that he responded in a reasonable period of time," ruled the court. See:  State ex rel. Cincinnati Enquirer v. Deters, Slip Opinion No. 2016-Ohio-8195 (Oh. December 20, 2016).

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