I’ve dealt with public records access laws my entire career. As a prosecutor, I had to respond to public records request from news media from time to time (or more accurately, as I was taught,I had to come up with some reasonable-sounding explanation as to how the case might still be considered “open” so we wouldn’t have to turn over the records).
And I’ve sent out my fair share of public records request letters over the past decade while doing post-conviction innocence work for the Ohio Innocence Project.
But at no time in my career have I better understood or appreciated the deep importance that public record access laws have on our system than right now. Two things have brought the importance of these laws to the forefront in the past year or two.
First, in the past couple of years, many prosecutors and police officers in Ohio have simply stopped turning over investigative case files in the old cases we want to investigate through the Ohio Innocence Project. This has significantly hampered our ability to function. This new trend of non-disclosure appears to be a concerted effort. Indeed, from the time we launched our Innocence Project in 2003 until about 2009, police departments and prosecutors routinely turned over old case files pursuant to our public records law request letters. As a result, we able to investigate old cases effectively and thoroughly, and were successful in identifying many miscarriages of justice, resulting in 15 individuals released on grounds of innocence in our first 8 years of existence.
We were also able to save prosecutors and courts a lot of work by weeding out frivolous claims from prisoners. Indeed, the OIP has taken the position that only 24 of the nearly 6,000 inmates who have requested our help (or 0.004%) can be proven factually innocent. That means that thousands of inmates in Ohio have had their cases screened by us, and then received a written explanation as to why their post-conviction claim cannot be proven and perhaps shouldn’t be pursued further without some sort of new breakthrough in their case. The number of “unprovable” pro se applications this has saved the courts and prosecutors from responding to it too high to count.
But perhaps because of the successes of the OIP and innocence-investigators like Marty Yant, in about 2009 we started getting letters from police departments and prosecutors in response to our requests, and these letters announced that the police and prosecutors would not turn over the requested case files. The letters either provide no explanation for the refusal, claim that the case is “ongoing” even though the inmate has been in prison for sometimes decades and there has been no active litigation for decades as well, or rely on some other ambiguous exception to the public records access laws. As a result, the number of potentially good cases that we are simply not able to investigate (or screen as frivolous) is increasing monthly. (See newspaper articles about this trend here).
This new trend by police and prosecutors in Ohio has caused us to team up with other organizations, such as the Ohio Newspapers Association, to request an amendment to Ohio’s Public Records Act to make clear that case files in old, inactive cases should be turned over to organizations like the Ohio Innocence Project. Indeed, the OIP performs an important public service by examining old cases to find the ones where a miscarriage of justice may have occurred, and in screening out weak cases, and our record speaks for itself.
The second thing that has brought the importance of these laws to the forefront of my mind in recent years is my innocence work in other countries. As much as those involved in innocence work in this country can see the flaws in the American criminal justice system, one thing I give our system credit for is the well-established custom and practice of open government and liberal access to government files. I have been shocked when talking to innocence scholars in the UK, the Netherlands, France, China and many other places how those countries do NOT share this same tradition of open governmental files. As a result, it is very difficult in these countries to get innocence-related organization off the ground and running with a high degree of efficiency (in the UK, the CCRC may have access to records, but Innocence Projects do not). If an inmate in France, for example, who has been in prison for 20 years, writes a law professor claiming innocence and asking for help, there is no legal mechanism for the professor to obtain the case file and begin learning the intimate details of the case. Thus, it is hard to even get started.
Seeing how the lack of access to government files cripples innocence work in other countries, and now seeing firsthand how the new non-disclosure policies of police and prosecutors threaten our own work in Ohio, I understand how deeply important these law are not only to the wrongfully convicted, but to those interested in the preservation of democracy.
Public records allow the public to audit the government. As Louis Brandeis famously quipped, “Sunlight is said to be the best disinfectant.” Just in the limited context of post-conviction innocence work, open record laws have allowed the OIP to free 15 innocent inmates in 8 years, and simultaneously save the courts and prosecutors from litigating scores of frivolous claims from other inmates. It has allowed us to expose weaknesses in the criminal justice system, which brought about the passage of SB77, the “Innocence Protection Act,” which has been called “the most important piece of criminal justice legislation in this state in a century.”
All of this is at risk if Ohio doesn’t move to nip the non-disclosure trend in the bud. Prosecutors and police in Ohio obviously don’t want to audited by law professors and law students. That’s human nature. Government officials never WANT to be second-guessed or questioned, which is why the American tradition of open records is such an anomaly in the history of human civilization (and indeed current Western civilization). But our right to audit the government must be jealously protected or it will quickly disappear. What is happening in Ohio is nothing if not a perfect example of how quickly government can act to circle the wagons and deny us crucial rights necessary to preserve justice and democracy.