Freedom of the press v. confidentiality: When competing values tangle in the court of public opinion
Mediation can be a desirable tool to resolve not only disputes over money damages but also when trying to find a solution among two competing values. In May of this year, the Ohio General Assembly joined 28 other states in proposing mediation for disputes between media outlets and public entities, so as not to force communities to litigate public records disputes using taxpayer dollars. Now, instead of costly mandamus cases, a $25 filing fee is all one needs to challenge the denial of a public records request in the Ohio Court of Claims and to have the matter mediated. If it cannot be resolved, a special master will give an advisory opinion to the Court of Claims judge, and, if adopted, the decision becomes binding. The new law, which formally took effect September 29, 2016, recently served as a model in a court dispute arising from an unusual and sad case that riveted the state and the nation.
On April 22, 2016, seven adults and a teenage boy from the same family were shot at four homes in the Piketon, Ohio, area. Media outlets from every network camped out at the Rhoden family homes to speculate on why the family members were so brutally killed. Shortly after the investigation began, the Columbus Dispatch and other media outlets’ search for information was met with resistance.
The showdown was on between, on one side, the media, fighting for transparency, and, on the other, the coroner’s office and Office of the Attorney General, hoping to help law enforcement catch a break without tipping its hand. Following the filing of a public records court case to order disclosure, in August the Ohio Supreme Court ordered the parties to mediate the matter of whether the autopsy records of the eight deceased were subject to disclosure. The media alleged that the Pike County coroner’s office improperly withheld autopsy records, relying on the public records exception that applies to confidential law enforcement investigatory records (O.R.C. §149.43(A)(1)(h)). Following a 30-day mediation window, the attorney general’s office released some information to the media plaintiffs, albeit heavily redacted. According to the Attorney General’s Office, “the documents, which were voluntarily released by investigators, were prepared to balance the current needs of the active investigation with transparency of the law enforcement process.”
While the Dispatch and other media outlets are not satisfied with the disclosure to date, the mediation process served in moving the parties from their adversarial stances to making some progress in meeting each party’s respective goals. We look forward to seeing how these processes can reduce the costly and resource-draining fights over public records requests.
