Records policy facing court challenge

Advocates for open records and the wrongfully convicted are challenging that policy in a high-stakes case schedule for arguments before the Ohio Supreme Court on Wednesday.

The case started almost three years ago when the University of Cincinnati’s Ohio Innocence Project asked for public records in the criminal case file of Adam Saleh, who was convicted in 2007 of kidnapping and murdering Julie Popovich. Saleh, who claims innocence, is serving a 38-years to life sentence. The OIP wanted to review the records to see if Saleh’s claim merited their time and resources.

The city said no to the request, saying the documents were confidential law enforcement investigative records and therefore exempt from disclosure under the state open records law. Columbus is arguing in the case that long standing case law dictates that discovery rules in criminal cases — not the public records act — should determine what records are released.

Before Columbus adopted the policy, journalists, investigators and others could receive police investigation file records after the defendant had exhausted appeals. Careful review of the files have, in some cases, led to new evidence being uncovered and cases for wrongful conviction being brought.

“Three of my cases that led to exonerations in large part because of things I found through public records requests,” said Martin Yant, a private investigator in Columbus. “It’s a growing problem. It’s not just Columbus. More and more police departments are using that rationale or they just play games (with records requests.)”

The Ohio Coalition for Open Government, which includes newspapers, broadcasters and advocates for government transparency, is backing Caster and the Ohio Innocence Project. In a supporting brief, the coalition noted that the confidential law enforcement record exemption is discretionary and police departments release information when disclosure helps them. The coalition also noted that withholding confidential police records protects the integrity of an investigation but once the case is prosecuted, the risk that disclosure would compromise a case evaporates.

The Innocence Network, a group of pro bono legal and investigative services to those seeking to prove innocence, also weighed in on the case, saying they rely on access to public records to do important work.

“Public records allow Innocence Network organizations to find new evidence and exonerate the wrongfully convicted. Innocence Network organizations also use public records to analyze the criminal justice system, isolate problems and advocate for reforms,” the group said in its brief.

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