In 2017, Ohio voters approved the adoption of Section 10a to Article One of the Ohio Constitution. Better known as “Marsy’s Law” this section added somewhat aspirational language to the Constitution related to the rights of crime victims. Specifically, Section 10a provides:
To secure for victims justice and due process throughout the criminal and juvenile justice systems, a victim shall have the following rights, which shall be protected in a manner no less vigorous than the rights afforded to the accused:
While certain portions of Section 10a are specific, section (1) – to be treated with fairness and respect for the victim’s safety, dignity and privacy – is vague. How “safe” can the state make a crime victim? What constitutes “dignity” exactly? And how much privacy is someone entitled to?
This last question is particularly vexing given the existence of Ohio’s Public Records Act. The Public Records Act requires that the government act as transparently as possible. And law enforcement clearly is an arm of government, where some level of transparency is critical. To try to add some specificity, the Ohio Legislature, in September of 2023, adopted 2930.07.
2930.07 attempts to deal comprehensively with the promise of privacy in Section 10a. The statute applies to “case documents,” which includes “a document or information in a document, or audio or video recording of a victim of violating a protection order, an offense of violence, or a sexually oriented offense, regarding a case that is submitted to a court, a law enforcement agency or officer, or a prosecutor or filed with a clerk of court, including, but not limited to, pleadings, motions, exhibits, transcripts, orders, and judgments, or any documentation, including audio or video recordings of a victim of violating a protection order, an offense of violence, or a sexually oriented offense, prepared or created by a court, clerk of court, or law enforcement agency or officer, or a prosecutor regarding a case.”
Section (D) of the statute provides: “[o]n written request of the victim or victim’s representative to a law enforcement agency, prosecutor’s office, or court, all case documents related to the cases or matters specified by the victim maintained by the entity to whom the victim or victim’s representative submitted the request shall be redacted prior to public release pursuant to section 149.43 of the Revised Code to remove the name, address, or other identifying information of the victim.” One exception to this sweeping provision is that the redaction provision “does not apply to any disclosure of the name, address, or other identifying information of a victim of a criminal offense or delinquent act that resulted in the death of the victim.”
The statute raises several issues, both practical and legal. As a practical matter, some police departments seem to have missed the provision exempting information about dead victims. In my experience, I have seen police departments reflexively cite to “Marsy’s Law” to withhold information about deceased victims. This type of behavior happened with the adoption of HIPAA – many public offices who were not covered by the statute nonetheless withheld any information that seemed in any way related to “health.” Eventually, the offices came around, and I suspect police departments will do the same here. But it’s frustrating.
Two legal issues that arise from the statute’s adoption are more interesting. The first is a separation of powers issue, specifically, who has jurisdiction over court records. Based on the Ohio Supreme Court ruling in State ex rel. Parisi v. Dayton Bar Ass’n Certified Griev. Comm., 159 Ohio St. 3d 211, 2019-Ohio-5157, 150 N.E.3d 43, where the Court ruled “the Rules of Superintendence are the sole vehicle by which a party may seek to obtain [court]records” it seems like it’s up to the Court to decide who has access to court records and when. It’s not clear how the Public Records Act applies to court documents, but 2930.07 explicitly cites to 149.43 for authority to redact them. It does not appear that the Ohio Supreme Court has weighed in yet on this conflict, but it seems ripe.
The other interesting legal issue is whether police officers injured in the line of duty are “victims” under the statute. This question now rears its head in every officer involved shooting. Before the enactment of 2930.07 no one suggested that Section 10a shielded the identity of police officers from public scrutiny if they’d been involved in a shootout. Now, however, thanks to 2930.07’s sweeping language, police departments point to the statute as they reject requests for records detailing the activities of officers who use deadly force.
There is currently a mandamus action pending before the Ohio Supreme Court – State ex rel. Gatehouse Media Ohio Holdings II, Inc. dba The Columbus Dispatch v. the City of Columbus Police Department that raises this question. The case has been fully briefed, and is waiting to be scheduled for oral argument. How this turns out will be interesting. But as a matter of public policy, the Legislature should consider amending 2930.07 to address this issue, without waiting for a court decision.
Marsy’s Law is no doubt well intentioned, but the Courts and the Legislature should give serious thought to the issues raised by the adoption of 2930.07. As Martin Luther King once said, “the time is always right to do what is right.”
Greiner is the area’s leading authority on media law and First Amendment matters. He has represented clients in public records disputes, access to courts, open meeting cases and a variety of defamation cases. Jack is also an experienced commercial litigator, handling contract disputes for clients in state and federal courts in Ohio and elsewhere.