What The Blade didn't tell its readers about their 'gang map' public records lawsuit

Ohio's Sixth District Court of Appeals

Yesterday I wrote an explanation of why the Toledo Police Department's 'gang map' is NOT a public record, despite what the Toledo Blade wrote in their editorial signed by John Robinson Block.

One of the things the paper said was that they were engaged in a legal battle over the issue. Ohio allows individuals (and media) to file a request for mandamus with a court to force the release of public records.

Interestingly, the Blade didn't explain any details of the lawsuit, so I decided to look it up.

Case number CL-2012-01183 was filed with the Sixth District Court of Apeals on July 11, 2012.

Here's a summary of the mandamus request:

* Reporter Taylor Dungien was told on three occasions that TPD maintains a gang map or "gang territories map" on a wall and electronically in the computer.

* She asked to view the map.

* Sgt. Heffernan, the individual responsible for handling public records requests, told her no because it is an "intelligence piece and we're using it to do our enforcement; it's actively being used."

* She made another request and the city's law director told her it was exempt from Ohio's public records law because it was a confidential law enforcement investigatory record.

(this is exactly the point I made in my post yesterday)

* The Blade maintains that it is a public record because it's a "compilation based on ongoing monitoring of of gang activity in the city" (yes, a lot of typos in the filing...) Accordingly, they claim, it can't be a 'investigatory' record.

* They claim the release of the map will not endanger an officer, victim, witness or informant - nor will it disclose the identity of a suspect.

* They also claim it won't reveal any "specific confidential investigatory techniques or specific investigatory work product."

(Interestingly, this claim that it isn't a work product directly contradicts their story about how long it took them to create their own map and how hard it was to do so, considering the lack of openness the gangs displayed.)

* They also claim that if portions of the map are exempt, the map should be redacted to give them the portions that aren't.

* They finally make the normal arguments that it's in the public interest and request compensation under the public records law.

The Court ordered the city to either release the map or show cause why they didn't have to.

Not surprisingly, the City responded and denied the Blade's claims, stating their original position that the map is exempt. They did admit to not offering a redacted version because it was "not capable of being redacted without becoming completely meaningless."

They also state that, to the point there is a public interest in the map, the "interest favors the effective pursuit of criminal investigations without interference" from the Blade.

The case followed the normal rules of Civil Procedure so after the initial filings, the discovery process would begin. However, on Sept. 20, the paper and the city filed a joint request for a pre-hearing conference because they couldn't agree upon discovery issues.

The court agreed to have them submit the issue - and their respective positions on the issue - to the court. This is where it gets interesting....

The Blade proposed that their attorney be allowed to view the map in confidence, agreeing not to reveal anything of it to the paper, so he could understand the legal basis for the refusal to release it. The city said no. Depositions began.

The paper again requested that the attorney be allowed to view the map under a protective order. The city again said no.

But as the deposition proceeded, the Blade attorney again asked to see it and promised not to reveal any part of it to his client. The city again refused and they agreed to go to the court for resolution of this dispute.

To recap: Having failed to get the map released, the Blade's attorney asked to view it and promised not to tell the paper anything about it. The city, maintained it was not a public record but a confidential record and not subject to discovery. And who could blame them?

You can't insist that an item be revealed in discovery when the item is the very subject of the mandamus action. But the city agreed that the court (judge) could view the document under seal and that they would make it available to the court.

Three judges signed the decision that said the law provided for no "hybrid" form of disclosure that would allow "attorneys eyes only" for the viewing of the map. The judges ruled that either the map was a public record subject to release and viewable by all, or it wasn't. They agreed with the city's position that the court should view the document, consistent with case law. That was December of 2012.

Following extensions of time and depositions, the Blade asked for a summary judgment in their favor, the reasons they believed they proved the record was a public one and asked for the order to release the map.

The city filed their request for summary judgment in their favor, setting out further arguments that supported their position that the map was a confidential law enforcement investigatory record (CLEIR). They also provided a copy of the map to the court.

Following that, the city filed a response objecting to the paper's request for summary judgment. In that response, they reveal various items of information from the deposition: that the map has been actively used as part of criminal investigations and some court cases are pending; the map was compiled for a specific investigatory purpose, but has since been maintained as an investigatory tool and nothing in Ohio law says a CLEIR can only be used once; revealing the map would tip off gangs and reveal the scope of TPD's knowledge about them; and (I love this one) that what other cities do with their crime maps has no relevance whatsoever to what Toledo is doing with theirs.

In accordance with the rules of civil procedure, the paper filed their objection to the city's motion for summary judgment. They claim that the map doesn't show specific crimes, just geography; it doesn't reveal specific techniques, just boundaries; release of the map wouldn't disclose specific houses or locations of suspected gang activity; that the law favors disclosure and that the burden of proof limiting disclosure lies on the part of the city; it doesn't relate to a "specific" investigation and doesn't reveal any specific technique, both of which are required in order to maintain an exemption under the law.

Those objections to the summary judgment were filed on April 18th.

Now it is up to the court to read the positions and arguments and make their decision.

Why The Blade is wrong about Toledo's 'gang map'

The Toledo Blade is doing a series on gangs in the city, which is a good public-interest story and certainly relevant news. It's called "Battle lines; Gangs of Toledo."

But they're not happy with the Toledo Police Department or Mayor Mike Bell because they won't release the map they have showing the territories of the various gangs.

Publisher and Editor-in-Chief John Robinson Block took the unusual action of writing - and signing - an editorial titled "On gang map, Mayor Bell ignores the public's right to know."

He writes:

The people of Toledo have a right to know about gang activity in this city. They have a right to know where it is. They are entitled to see the “gang map” that tells where gang activity is most dangerous and intense.

Many months ago, The Blade asked for that map, which is a public document under Ohio law. The mayor refused to release it. He has persisted in this refusal, even in the abse
nce of legal authority. This refusal is illegal and unjustified.

Except, the refusal is legal.

Ohio Revised Code 149.43 details the state's law about open records, access and penalties for failure to comply. It's one of the best public records laws in the country, generously favoring the public's right to know.

But there are numerous exemptions - items specifically designated as NOT a public record. Section (1) defines what a public record is and also says "Public record" does not mean any of the following: The following list includes this exemption

(h) Confidential law enforcement investigatory records;

The only way the Blade can maintain that the release of the gang map is a public record is to claim that it is not a confidential law enforcement investigatory record. That's also the only way the Mayor can maintain its secrecy.

Block also writes:

One consolation is that The Blade’s map is almost certainly more accurate than the city’s because gang members were naturally more willing to talk with our reporters than police officers.

Well if their map is more accurate, why are they still quibbling with TPD over theirs?

Block then writes:

Our motive is not to defame anyone or to depress readers but to show what is — to tell the truth.

In the final analysis, the gang map is not a matter of the newspaper’s right to know, but the people’s right to know. The Blade is merely the surrogate and servant of the people of Toledo. For only an informed public can govern itself.

For those of you who have followed my writing over the years, you'll know that I gave up coming up with headlines on the Blade's bias and just started numbering them. The local daily has a reputation - deservedly so - for being more of the dictator than the servant and for telling people what they want the people to know - rather than the truth. To say that hysterical laughter followed when I read this sentence, first to myself and then to a group of others, would not do justice to the hysterical laughter that actually followed.

But I digress - so back to the map as a public record...

TPD probably does not have a single map, but a series of maps over time, likely showing the various gang territories and how they have changed over time. Such a map could very legitimately be a confidential investigatory record showing which gangs are expanding, which are declining, which are combining and which are new. How they interact within their territories and with/against each other based upon those territories is an investigatory tool that could help TPD monitor and predict their activities and likely conflicts.

If the maps show disputed territory, it could influence such things as where TPD is placing their (highly controversial) monitoring cameras as well as the routes of their road patrols.

Additionally, if the gangs know what it is that the police know about their territories, it could cause them to change certain behaviors, putting the public further at risk.

If I can come up with such reasons and explanations as for why the TPD gang map is not a public record, I'm certain the mayor, having all the information, can as well. In fact, that's exactly what happened and the Blade promptly sued the city over the issue.

Contrary to what the editor claims in his editorial, the issue is not clear-cut and the public's 'right to know' isn't always outweighed by the public's own safety, or the safety of our police officers, through the protection of confidential investigatory records.

For more information, check out: What The Blade didn't tell its readers about their 'gang map' public records lawsuit