COLUMBUS – The public may need to know, but they don’t have the right to know.
An investigation into collection lapses revealed Ohio’s DNA databank is missing thousands of profiles, potentially denying or delaying justice in unsolved crimes.
The data detailing the shortcomings in Ohio’s DNA collection for arrested and convicted felons can’t be released to the public, according to Ohio Attorney General Mike DeWine’s Office.
Despite the value of holding the biggest offenders of failed DNA collections accountable, the data isn’t being released.
Understanding who has access and who doesn’t
Information requested from the Attorney General’s Bureau of Criminal Investigation — which would outline the number of DNA profiles missing from the databank — would have required the compilation of data in a report that doesn’t already exist. Ohio’s Sunshine Law doesn’t require public offices to create new reports to satisfy a records request.
The data is housed in what’s called the Negative Offender DNA Flag Report, which is an application found in the Ohio Law Enforcement Gateway. BCI maintains the private police database and also Ohio’s Combined DNA Index System or CODIS. The DNA profiles in Ohio’s databank are also then uploaded to the national databank system.
The negative offender report allows arresting agencies to audit themselves and cross-check felony arrests or certain misdemeanor convictions against DNA provided to BCI. The report flags anyone for whom BCI received either a faulty sample or no sample at all.
BCI has access to determine how many people lawfully owe DNA in Ohio, but will not release the data because aside from compiling data that isn’t in an existing report, it’s also housed in OHLEG, a database that can only be used for law enforcement purposes.
Attorney General’s Office Spokesperson Dan Tierney said providing the data would be a violation of OHLEG’s use, even if only the number of profiles missing and no one’s personal information was shared.
‘This seems absurd’
A small data set had already been shared with the USA Today-Network by 26 police and sheriff’s office before the network’s attorney, Jack Greiner, reached out to the AG’s office and was told the current law does prevent its release. Those 26 departments — out of more than 800 departments statewide — had found nearly 3,000 negative offender flags between July 2011 and June 5, 2018. This data is in addition to more than 15,000 DNA profiles the Cuyahoga County Prosecutor’s Office already confirmed were missing from their county’s cases.
The errors in Cuyahoga County have been well publicized over the past year and Assistant Cuyahoga County Prosecutor Rick Bell said he was never told the data should be private.
In an email, Greiner explained the AG’s broad view of the law, which blocks the release because it’s sent to BCI and housed in OHLEG. In its original form as information requested directly from a law enforcement agency, the data would be public record. But because the negative offender report exists in OHLEG, it’s exempt.
“This seems absurd, but it gets worse in that the Ohio AG contends that even information related to the process is exempt from the Public Records Act,” Greiner said. “So, in addition to denying the information submitted, the AG says that a local police department cannot even disclose the number of criminals for whom it failed to submit the information. Technically, this is ‘information, data and statistics gathered or disseminated’ through the gateway (OHLEG). That is a really broad reading of the statute and one that is not consistent with the spirit of the law.”
Day 1 coverage from the “Untraceable” series
Dennis Hetzel, the president and executive director of the Ohio News Media Association, said he’d like to see if there’s a legislative solution so the aggregated data could be made available to the public while keeping the integrity of the law enforcement database.
“It really is within the spirit of the law that there should be some public scrutiny of what’s going on here,” Hetzel said, explaining that the information is of great value to the public.
If the criminal justice system is failing to collect DNA in some cases, and in some jurisdictions fingerprints, Hetzel said that’s something “everybody should be concerned about.”
“The system’s got to be more accurate and responsive and part of making it more reactive and responsive is accountability and transparency … The public needs to know,” he said.
What about other states with similar laws?
Aside from Ohio’s data, it’s also unknown how many DNA profiles are missing nationally from the other 30-plus states with similar collection laws.
The USA Today Network-Ohio contacted the National Institute of Justice to grasp how widespread DNA collection problems are across the U.S., but it isn’t something that’s tracked. Instead, the NIJ issued this response:
“Undoubtedly, obtaining ‘lawfully owed’ DNA is a critical step to apprehending criminals, solving past crimes and preventing future crimes. However, we are not aware of data or other information to indicate whether or not there are significant lapses with respect to collecting lawfully owed DNA nationally.”
More from the “Untraceable” series:
Record cleanse: Can you get DNA removed from a crime database?
What’s next? We know about the DNA collection problem, now it’s time to act
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