Complete Story
 

07/29/2016

Q: What do autopsies and Pokémon have in common? A: Questions to ONA’s legal hotline service

Dennis Hetzel Executive DirectorBy Dennis Hetzel, Executive Director

We get legal hotline calls all the time, particularly on open government and advertising issues. 

It would be hard to put a precise number on it, but it’s no exaggeration to say we save our members thousands of dollars in attorney fees each year. Many open government matters simply wouldn’t be resolved correctly without our support since budgets to litigate are very limited, even at our largest papers.  Along the way, we also help members give correct advice to advertisers, and we never refuse to help everyday citizens who track us down.

Here’s a sampling of some recent questions and answers we’ve provided.

Q: A county coroner and the Ohio attorney general’s office refuse to make both the preliminary and final autopsy reports available to us in a murder case, saying these are exempt as confidential investigatory records and impinge on the family’s privacy. Can they do this?

A:  We think they’re on shaky ground legally, but resolving this may take a court battle.

First of all, there is nothing in the law that allows a record to be withheld based on family privacy concerns. (Indeed, in this case, family members have said they want to see the reports, too.)

The law treats preliminary and final autopsy reports differently.  Upon providing proof of their employment, journalists are allowed to view preliminary autopsy reports as well as suicide notes, photos and other materials but can’t copy anything.  The general public has no access. At least as we read the law, final reports are presumptively open unless they meet specific exemptions.

If authorities claim the confidential investigatory records exemption, reporters should not let authorities get away with simply saying the record is exempt because “it’s part of an ongoing investigation.” This is one of the most-often violated provisions of Ohio’s open records law.

There is a two-part test that must be satisfied before a record can be withheld. First, it needs to pertain to a law enforcement matter, which obviously applies to this case. Second, the authorities have to demonstrate that release creates a high probability of disclosing at least one of the following:

  • The identity of an uncharged suspect
  • Identity of a confidential source or witness
  • Specific confidential investigative techniques or procedures
  • Specific investigatory work product (or)
  • Information that would endanger the life or physical safety of a law enforcement officer, crime victim, witness or confidential source.

Well, that’s our side. The Attorney General refers to a 1980s case—even though the law has changed multiple times since then – and asserts autopsy reports in criminal matters can be confidential as revealing confidential investigative techniques. 

Still, when the authorities say “no,” you should demand specificity on why they think the active investigation exemption applies. In addition, we think the courts should back you up if you demand that officials redact the exempt information and release the rest of the document.

The question relates to the recent, still-unsolved multiple murder case in Pike County. It’s an important and interesting case. You’ll find links to some of the coverage as well as Cincinnati Enquirer attorney Jack Greiner’s legal analysis elsewhere in today’s Bulletin.

Q: We have an advertiser that wants to place a Pokémon in his ad, marketing his business as a stop to find Pokémon.  We don’t think he can do that. Can he?

A: A quick Google search will uncover a lot of examples and tips for businesses taking advantage of the Pokémon craze to encourage customers to stop by.  However, according to ONA counsel Lou Colombo, using the actual symbol or artwork of Pokémon should raise a big caution flag.

The Pokémon website clearly states that these are registered trademarks. As always, too, there is less latitude in paid advertising versus legitimate news coverage to make use of trademarked names and artwork.

In this case, we advised the newspaper not to use the character without permission, but the advertiser should be fine to simply advertise itself as a stopping place for Pokémon fans.

Quick aside: We also suggested that this could be a great opportunity to have a deeper, “full-service” relationship with a small business, providing advice on how they could, for example, leverage social media such as Facebook to draw a crowd.  Hopefully you are equipped to offer to do that for a local business.  Here’s one example of an article that a client might find interesting.

Q: We are receiving a ton of letters to the editor on local issues. Do you have any suggestions on a good letters policy?

A: This is more of a “standards” question than a legal question, but it has an important legal component: Reader opinion may be treated differently online than in print.

For this answer, I was able to draw on more than 30 years spent in newsrooms. First of all, there’s nothing to stop you from expanding your letters page. Why not? Readers really like letters.  It’s a good thing to do right before an election. The issue many papers have with letters is the people with too much time on their hands.  Some people will try to dominate your letters page, and often they are living on the extremes.  It’s not unusual for “normal” people to not even want to be associated with the letters page if you let the kooks take over.

A typical policy might be something like this for print:

  • 300 word limit; I’ve seen 200 and even 100.
  • No more than one letter per person per month, though the passionate few will game it by sending under other names.
  • You reserve the right to confirm letter writers’ name and address, and edit as required.  Lawyers would advise not to go into a lot of detail in justifying your reasons for editing and confirming. You need to uphold your discretion to edit your newspaper as you see fit.
  • No anonymous letters.

Fact-checking matters with letters. You are just as susceptible to a libel suit based on something said in a letter as in your own stories. Confirmation also is common sense.

The Web is different.  While I suspect this will be undermined by a court decision someday, under the federal CDA (Communications and Decency Act) you are NOT liable for comments posted on your website as long as you are not editing or substantially changing anything.   If challenged for removing someone’s post, we recommend that you simply say the comment violated your posted terms of service.  (And, you need to have terms posted.) You have every right to determine what goes on your website and what sort of commentary you want associated with your “brand.”

Now, story comments and letters online can be different if you treat online letters the same way you treat print letters – in other words, you will be confirming, editing them, etc.   Then you should apply the same rules to letters you post online that you put in the newspaper.

Many papers run the letters they don’t have room to publish in print on their websites. This can be a traffic driver and also a safety valve for the “regulars” who get frustrated that you don’t publish every letter they send.

Q: What does the law say about the advertising of chewing tobacco? Is it the same as other forms of tobacco?

A:  You should treat smokeless tobacco products the same as cigarette advertising. Ohio regulations on the pricing of tobacco products -- no advertising “below cost” – also would apply. 

In doing research for this member, we also learned that it’s now definitive under FDA guidelines that tobacco advertising is not allowed on the Internet without prior notification to the FDA.  While this is the advertiser’s responsibility, you should be aware of this.

Also, note that retailers generally aren’t subject to the “warning label” advertising requirements that manufacturers must include.

We have a lot more detail on tobacco advertising in our advertising issues guide in the “members only” section of www.ohionews.org. We will update it this summer with this new information.

Q: Is there any way to acquire an elected official's personal cellphone records if they use that phone for official purposes,  or is this a way they have learned to work around phone logs as public records? He appears to pay his own bill. The same question holds true for city police officers. They use their personal cellphones for police work — including communication with prosecutors.

A: If the official isn’t turning in his cellphone bill for reimbursement, there is no way to gain access to the bills unless there is some sort of investigation that would cause the record to come into the possession of a governmental body.  If the record is not and never has been “kept by” the government, it would not fit the definition of a public record, so any consideration of it being an open record is moot.

However, under Ohio law, the content of voicemails, texts and emails that involve public business should be public records irrespective of whether they were generated from a personal or government account.

So, if you know, for example, that the official is texting people or sending email from his personal accounts with public business, those are arguably public records and should be preserved with whatever the standards are for maintaining those types of records. Like any records request, you’d want to frame it as narrowly and specifically as possible.

I’m the first point of contact for ONA’s legal hotline. Just call 614-486-6677 or email dhetzel@ohionews.org. When needed, I involve one of our capable attorneys from Baker Hostetler in Cleveland –usually general counsel Mike Farrell or Lou Colombo, our former general counsel.

Printer-Friendly Version