Toledo Mayor Mike Bell will appeal the court's ruling.
The Blade/Dave Zapotosky
A state appeals court has ruled in The Blade’s favor and ordered the City of Toledo to release a police department gang-turf map, but a top Bell administration official promised an appeal.
In a 2-1 decision, the Sixth District Court of Appeals in Toledo concluded that the gang map was not exempt from disclosure under Ohio public-records law. The court ordered the city to turn it over to The Blade within 10 days of its decision, which was dated Friday, but not posted on the court’s Web site until this week.
Judges Mark Pietrykowski and Thomas Osowik — both Democrats — voted to release the map. A dissenting vote was cast by Stephen Yarbrough, a Republican.
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The Toledo Police Department had refused the newspaper’s July, 2012, request for a copy of the map on the grounds that the map “is a confidential law-enforcement investigatory record,” protected under state law, the release of which could interfere with investigation efforts and thus is protected under the state law.
John Robinson Block, publisher and editor-in-chief of The Blade, said Wednesday night that it is time that Mayor Mike Bell and city police officials make the gang map public and inform Toledoans about the extent of the city’s gang problem.
“We’re gratified that two appeals court judges overruled the faulty legal reasoning of their colleague, a man whom The Blade did not endorse for election,” Mr. Block said. “Openness in government, essential for democracy, has been eroded in Toledo the past four years. We hope that will now change.”
Meanwhile, the three top challengers trying to replace Mayor Bell on election day later this year used the decision as a means to paint the mayor as nontransparent with the public.
Mr. Bell, a political independent, said he withheld the document and has decided to appeal the court decision to protect the public and police.
“We really do believe this particular document is protected because of what it does for the police,” the mayor said. “I don’t work off the politics. I work off of what’s right for the citizens, and if this causes me political complications, so be it.”
Toledo spokesman Jen Sorgenfrei said the city would appeal the decision to the Supreme Court of Ohio, which is composed of six Republicans and one Democrat.
“Accordingly, we consider this to be pending litigation and those will be all the comments at this time,” Ms. Sorgenfrei said.
“The mayor has made many decisions over the course of his administration that were in the best interest of the community and the best interest of public safety,” she said. “It would be hard to argue that they were politically convenient decisions.”
Under Ohio public-records law, confidential law-enforcement investigatory records are exempt from disclosure, but in this case the appeals court held that the gang map did not fall into that category because the map did not reveal any confidential investigatory technique or procedure, and it was not created as work product for a pending or highly probable criminal prosecution.
The court relied heavily on testimony from Toledo police Officer William Noon, a member of the department’s Gang Task Force, who said he created the map based on information from confidential informants, surveillance, crime reports, field interviews, and other investigative work.
“Other than revealing that the police department knows where the gangs operate, Officer Noon stated that nothing on the map identifies any location that the Toledo Police Department is surveilling,” stated the opinion written by Judge Pietrykowski. “Accordingly, it is undisputed from the record that release of the map would not reveal any specific confidential investigatory technique or procedure.”
‘Tool or reference’
The map was created “to be used as a tool or reference,” the judges said. “It does not record actual crimes or note the addresses of locations believed to be associated with criminal activity. It has never been used as an exhibit or evidence in any case, although it was shown to a U.S. attorney in connection with a case.”
In a dissenting opinion twice as long as the majority decision, Judge Yarbrough wrote that he believed the gang map was a “paradigm example” of “specific investigatory work product” exempt from disclosure.
“…Any judicial construction [of the public records law] must be balanced against the compelling need to let police investigators do their jobs effectively,” Judge Yarbrough wrote in his 20-page dissent. “Given the reality of violent street crime, public safety requires it.” He said the map may not appear to contain information that needs to be kept confidential, but that may not be the case.
“The map, to our eyes, may seem ‘unremarkable,’ but we should not so lightly depreciate the value of an investigative asset that took 15 months of intelligence work to complete,” Judge Yarbrough wrote. “Worse, of course, is what a determined gang member might glean from the map, or some marking on it, if it is reproduced in the newspaper.”
David Marburger, a partner in the Cleveland law firm Baker & Hostetler LLP, who co-authored Access with Attitude, a 350-page “advocate’s guide to freedom of information in Ohio,” said the newspaper might have difficulty winning in the Supreme Court of Ohio, given the court's make-up and its record in other law-enforcement cases.
“I agree with the majority in your case and I think to some extent this is unlikely to pose a threat to the city’s ability to impose the law against gang members where the law would need to be enforced,” Mr. Marburger said. “I really doubt it would tip off the gang members to behave in some way that would allow them to evade arrest or prosecution. At the same time, the dissent and the majority each have strong points.”
While finding in favor of The Blade, Judges Pietrykowski and Osowik declined to award the newspaper attorney’s fees or damages it had sought, saying in part that the police department’s argument that the map was exempt from disclosure “was not unreasonable. … That is, the only police records that are clearly subject to immediate release as public records are ongoing routine offense and incident reports.”
In late April, The Blade published its own gang map, created with the assistance of active and former gang members, as part of a four-day series of stories.
Attorney Fritz Byers, The Blade’s counsel in open government cases, said it was regrettable that the Bell administration resisted The Blade’s efforts to obtain the map on behalf of the public, but also gratifying to have confirmation that the resistance was illegal.
“The Court of Appeals decision reflects and serves both the essential legal principles of open government that are reflected in Ohio’s public-records laws and the substantial public interest in being informed, not only of the realities of life in our city, but also the wisdom and soundness of the city’s assessments about how to deploy its resources,” Mr. Byers said.
Toledo City Councilmen Joe McNamara and D. Michael Collins, and Lucas County Auditor Anita Lopez — the main candidates running for mayor along with Mr. Bell — each praised the appellate court’s decision.
Mr. McNamara, a Democrat, said the majority opinion was well-written and he does not support an appeal.
“It’s past time we have a mayor who is open and transparent with the public,” he said. “We can’t stop crime by pretending it’s not there. Based on the description of the gang map from this decision, it doesn’t put anyone at risk and it is something people in the neighborhoods already know, so I think more information is good because gangs are a community problem that need a community solution.”
“Taxpayers and Toledoans should know where the major areas of crime are taking place in our community,” said Ms. Lopez, also a Democrat. “This is about the mayor’s responsibility to protect citizens. If you are unwilling to share where the problems are, then how are we going to hold you accountable?”
Mr. Collins, a political independent like the mayor and a former Toledo police officer, said it was wrong of Mr. Bell and Toledo Police Chief Derrick Diggs to deny the newspaper’s request.
“I would sincerely hope that this administration and future administrations will have learned a lesson,” he said. “The public has a right to know and the media plays a legitimate role in sharing that information, and anything less is unacceptable, and clearly, this defines Mayor Bell and the police department’s disregard for legitimate transparency.”
Contact Ignazio Messina at: email@example.com or 419-724-6171.