GANNETT GP MEDIA, INC., D/B/A, THE CINCINNATI ENQUIRER v. OHIO DEPARTMENT OF PUBLIC SAFETY
Case No. 2017-00051-PQ
Court of Claims of Ohio
May 30, 2017
2017-Ohio-4248
Judge Patrick M. McGrath
GANNETT GP MEDIA, INC.,
D/B/A, THE CINCINNATI ENQUIRER
Requester
v.
OHIO DEPARTMENT OF
PUBLIC SAFETY
Respondent
DECISION
{¶1} Before the court are (1) objections filed by requester Gannett GP Media, Inc., dba, The Cincinnati Enquirer (GP Media) to Special Master Jeffery W. Clark‘s report and recommendation issued on April 24, 2017, (2) objections filed by respondent Ohio Department of Public Safety (ODPS) to Special Master Clark‘s report and recommendation of April 24, 2017, and (3) a motion to strike affidavits and exhibits filed by GP Media.
{¶2} As discussed below, the court determines that GP Media‘s motion to strike should be granted, that GP Media‘s objections should be overruled, and that ODPS‘s objections should be overruled. The court further determines that Special Master Clark‘s report and recommendation should be adopted, including the special master‘s findings of fact and conclusions of law contained in the report and recommendation.
Background
{¶3} On January 17, 2017, GP Media filed a complaint against ODPS that alleged a denial of access to public records in violation of
- A list of the names and ranks of the 37 Ohio troopers sent to North Dakota via an agreement with the Emergency Managemet [sic] Assistance Compact (EMAC).
- Any and all communication issued or received by any employee of the Ohio State Highway Patrol, regarding the deployment of these officers.
- Any document that outlines the agreement between the EMAC and the OSHP regarding the action of sending the 37 troopers.
- Any OSHP bylaws or procedures which govern agreements with EMAC.
(Report and Recommendation, 2.) In the conclusion of his report and recommendation Special Master Clark made findings, determinations, and recommendations, stating:
a. Upon consideration of the pleadings and attachments, I find that GP Media has failed to establish by clear and convincing evidence that DPS violated division (B) of
R.C. 149.43 when it denied GP Media‘s Request No. 2 for all communication issued or received by all employees of the OSHP regarding the deployment of Troopers to North Dakota in 2016. The request was ambiguous, overly broad, and required a search or research instead of reasonably identifying the records sought. Accordingly, I recommend that the court issue an order DENYING GP Media‘s claim for relief based on Request No. 2.b. I further find that GP Media has failed to establish by clear and convincing evidence that DPS violated division (B) of
R.C. 149.43 when it denied GP Media‘s Request No. 4 for any OSHP bylaws or procedures which govern agreements with EMAC. DPS presented unrebutted evidence that no records responsive to this request exist. Accordingly, I recommend that the court issue an order DENYING GP Media‘s claim for relief based on Request No. 4.c. I further find that GP Media has established by clear and convincing evidence that DPS violated division (B) of
R.C. 149.43 when, following their return from deployment, it withheld the names of the 37 Troopers deployed to North Dakota. I further find that GP Media hasestablished by clear and convincing evidence that DPS violated division (B) of R.C. 149.43 when it withheld the EMAC Agreement/REQ-A in its entirety instead of redacting only the portions that meet the definition of “security record” inR.C. 149.433(A)(1) . Accordingly, I recommend that the court issue an order GRANTING GP Media‘s claim for relief based on Request No. 1, and GRANTING IN PART GP Media‘s claim for relief based on Request No. 3, and which 1) directs the DPS to provide GP Media with a copy of the EMAC Agreement/REQ-A, subject to redaction of items indicated in the ATTACHMENT hereto, and 2) provides that GP Media is entitled to recover from DPS the costs associated with this action, including the twenty-five dollar filing fee.R.C. 2743.75(F)(3)(b) .
After Special Master Clark issued his report and recommendation, both GP Media and ODPS challenged the report and recommendation by filing objections on May 8, 2017, and May 5, 2017, respectively. With its objections, ODPS filed additional evidence—i.e., affidavits supplementing previously submitted affidavits, and an updated report of social media threats compiled by a criminal intelligence analyst with the North Dakota State and Local Intelligence Center pertaining to a dispute regarding a pipeline in North Dakota. Both GP Media and ODPS responded to the filed objections, with GP Media filing a response on May 15, 2017, and ODPS filing a response on May 19, 2017.
{¶4} On May 9, 2017, GP Media moved the court to issue an order striking the affidavits and exhibits attached to ODPS‘s objections. On May 19, 2017, ODPS filed a response to GP Media‘s motion to strike. Five days later—on May 24, 2017—GP Media moved the court for leave to file a reply to ODPS‘s response to GP Media‘s motion to strike. The court denied GP Media‘s motion for leave to file a reply.
Discussion
I. GP Media‘s Motion to Strike
{¶5} GP Media asks the court to issue an order striking the affidavits and exhibits that ODPS attached to its objections. GP Media asserts that the affidavits “are made up primarily of inadmissible hearsay,” that the affidavit of Cody Larson “in fact contains, with one exception, materials that existed before the ODPS submitted its response on
{¶6} In response, ODPS maintains that it “is within the discretion of the Court to consider supplemental affidavits and exhibits, and the statute governing this litigation,
{¶7}
{¶8} It is true that
II. GP Media‘s and ODPS‘s Objections
{¶9}
d. Either party may object to the report and recommendation within seven business days after receiving the report and recommendation by filing a written objection with the clerk and sending a copy to the other party by certified mail, return receipt requested. Any objection to the report
and recommendation shall be specific and state with particularity all grounds for the objection. If neither party timely objects, the court of claims shall promptly issue a final order adopting the report and recommendation, unless it determines that there is an error of law or other defect evident on the face of the report and recommendation. If either party timely objects, the other party may file with the clerk a response within seven business days after receiving the objection and send a copy of the response to the objecting party by certified mail, return receipt requested. The court, within seven business days after the response to the objection is filed, shall issue a final order that adopts, modifies, or rejects the report and recommendation.
Upon review, the court finds that GP Media‘s and ODPS‘s objections and the responses filed by GP Media and ODPS to the other party‘s objections are timely filed. Because the parties’ objections and responses are timely filed, the court shall consider them.
A. GP Media‘s Two Objections
{¶10} GP Media objects to (1) the special master‘s “conclusion that Requester‘s public records request for ‘[a]ny and all communication issued or received by any employee of the Ohio State Highway Patrol, regarding the deployment of these officers’ * * * was not ‘a proper request that reasonably identified the records sought’ under
1. GP Media‘s Objection No. 1
{¶11} By its first objection, GP Media challenges the special master‘s determination that GP Media “has failed to show by clear and convincing evidence that Request No. 2 was a proper request that reasonably identified the records sought.” (Report and Recommendation, 8.) GP Media urges that the special master‘s determination “is not in accord with the Supreme Court‘s precedent governing the degree of specificity required in a request, and is thus erroneous as a matter of law. See, e.g., State ex rel. Carr v. London Corr. Inst. (”Carr“), 144 Ohio St.3d 211, 2015-Ohio-2363, 41 N.E.3d 1203 (holding that inmate‘s public records requests were not overly broad or ambiguous because there was ‘no indication that the request [was] not readily amenable to the method of retrieval used by the government agency‘).”
{¶12} In support of its first objection, GP Media calls the court‘s attention to Carr. In that case, James M. Carr, Sr., an inmate, made several public-records requests of London Correctional Institution (LCI) that, except for one, LCI denied. Carr filed an action in mandamus in an appellate court; LCI moved for summary judgment; the appellate court granted LCI‘s motion for summary judgment; and the appellate court denied Carr‘s request for a writ of mandamus. Carr appealed to the Ohio Supreme Court. On appeal, the Ohio Supreme Court reversed the appellate court‘s judgment, issued a writ of mandamus, and remanded the cause. Carr at ¶ 47. In a per curiam opinion the Supreme Court of Ohio determined that LCI had not shown that Carr‘s requests were ambiguous, overbroad, or unduly burdensome and that Carr complied with requirements of
{¶13} In reaching a determination that one of Carr‘s requests was not ambiguous, the Supreme Court stated: “Carr‘s request identified a particular record authored by a named individual, specifying to whom it was sent and a time frame during which it was sent. He provided unrefuted evidence by way of his affidavit that both Chaplain Cahill and an employee of the mailroom were able to verify the existence of the record.” Carr at ¶ 22. And in determining that another request was not overbroad, the Supreme Court stated: “Carr did not make a request for extremely broad categories of records, such as ‘litigation files’ or ‘complaint files,’ but rather made a request for communications between a specific individual and a specific office within a reasonably defined time frame.” Carr at ¶ 27.
{¶14} Here, in its second request GP Media sought: “Any and all communication issued or received by any employee of the Ohio State Highway Patrol, regarding the deployment of these officers.” GP Media‘s second request is distinguishable from Carr
2. GP Media‘s Objection No. 2
{¶15} In its second objection, GP Media “objects to the Special Master‘s finding that ODPS complied with its obligation under
{¶16} A special master—also termed magistrate; referee; commissioner; or hearing officer—is defined as a judicial officer, usually an attorney, “who serves in an appointive capacity at the pleasure of an appointing judge, and whose actions and decisions are reviewed by that judge.” Black‘s Law Dictionary, supra at 1257. As a matter of definition, the terms special master and magistrate therefore are equivalent. In Siegel v. Univ. of Cincinnati College of Medicine, 2015-Ohio-441, 28 N.E.3d 612, ¶ 12 (10th Dist.) the Tenth District Court of Appeals discussed the standard that applies to this court‘s review of a magistrate‘s determination, stating:
e. “A magistrate is an arm of the court, not a separate judicial entity with independent judicial authority and duties.” State ex rel. DeWine v. Ashworth, 4th Dist. No. 11CA16, 2012-Ohio-5632, ¶ 38. The Court of
Claims still must “undertake an independent review as to the objected matters to ascertain that the magistrate has properly determined the factual issues and appropriately applied the law.” Civ.R. 53(D)(4)(d) . The court retains the ultimate authority and responsibility over the magistrate‘s findings and rulings. Hartt v. Munobe, 67 Ohio St.3d 3, 5-6 (1993). Appellants’ suggestion that a magistrate, whether by individual capacity of the magistrate or by authorization from the court, is incapable of deciding the facts and weighing the credibility of witnesses, lacks merit. In any event, “the court remains the ultimate finder of fact, even on matters of credibility.” DeWine at ¶ 37. “Although the trial court may appropriately give weight to the magistrate‘s assessment of witness credibility in view of the magistrate‘s firsthand exposure to the evidence, the trial court must still independently assess the evidence and reach its own conclusions.” Sweeney v. Sweeney, 10th Dist. No. 06AP-251, 2006-Ohio-6988, ¶ 15, citing DeSantis v. Soller, 70 Ohio App.3d 226, 233 (10th Dist.1990). * * *
And in In re A.J.S., 120 Ohio St.3d 185, 2008-Ohio-5307, 897 N.E.2d 629, ¶ 45, the Ohio Supreme Court stated: “It is well settled that ‘[t]he trial judge is best able to view the witnesses and observe their demeanor, gestures and voice inflections, and use these observations in weighing the credibility of the proffered testimony.’ State v. Amburgey (1987), 33 Ohio St.3d 115, 117, 515 N.E.2d 925, quoting Seasons Coal Co. v. Cleveland (1984), 10 Ohio St.3d 77, 80, 10 OBR 408, 461 N.E.2d 1273.” Based on Siegel and In re A.J.S. it follows therefore that a special master in a public-records dispute under
{¶17} Pursuant to
f. After DPS exercised its right to deny Request No. 2 as ambiguous and overly broad, it invited GP Media to revise the request, and repeatedly offered to discuss the request to help GP Media clarify the records sought. DPS advised that it did not have the capability to search department email using the terms given in Request No. 2. (Casey letter of December 2, 2016.) DPS voluntarily provided GP Media with 39 pages of records previously produced to a different requester in response to a narrower request. (Compl. Attachments, pp. 5-43.) DPS‘s quotation of this narrower request provided an example to GP Media of reasonable identification of email records, and the court takes notice that requester was assisted in correspondence by experienced public records legal counsel. I conclude that DPS sufficiently met its obligation to provide GP Media with the opportunity and information to revise this request.
(Report and Recommendation, 8.)
{¶18} Upon review, the court determines that the special master did not err when he found that DPS “sufficiently met its obligation to provide GP Media with the opportunity and information to revise” its request. The court overrules GP Media‘s second objection.
B. ODPS‘s Two Objections
{¶19} ODPS asks the court to modify the special master‘s report and recommendation and enter a judgment ordering the names and identifying information of 37 state troopers to be withheld “pursuant to
- “The Special Master erred in concluding that the list of names of the 37 Troopers is no longer exempt under the Troopers’ Fourteenth Amendment right to privacy following the Troopers’ return to Ohio,” and
- “The Special Master erred in concluding that the list of names of the 37 Troopers is no longer exempt as a security record under
R.C. 149.433(A)(1) following the Troopers’ return to Ohio.”
{¶21} Notably, in a response in opposition—not by motion—GP Media asks for an additional seven business days to submit a comprehensive response. According to
{¶22} By its first objection, ODPS asks the court to determine that the special master erred when he concluded that the list of names of 37 troopers “is no longer exempt under the Troopers’ Fourteenth Amendment right to privacy” following the troopers’ return to Ohio from deployment in North Dakota.
{¶23} In State ex rel. Quolke v. Strongsville City Sch. Dist. Bd. of Edn., 142 Ohio St.3d 509, 2015-Ohio-1083, 33 N.E.3d 30, ¶ 29, the Ohio Supreme Court instructed that “in general, a court is to consider the facts and circumstances existing at the time that it makes its determination on a writ of mandamus, not at some earlier time. State ex rel. Pressley v. Indus. Comm., 11 Ohio St.2d 141, 162, 228 N.E.2d 631 (1967).” And in a footnote, the court added: “This principle is not absolute. For example, when a mandamus action involves the review of an administrative agency‘s discretion, the decision to issue the writ must be made based on the facts before the agency at the time it made its original decision.” Quolke, at ¶ 29, fn. 1. Although the present complaint was not brought in mandamus, Quolke‘s instruction applies in this instance because actions in mandamus historically have provided the means for adjudicating public-records disputes, see, e.g., Craig, supra, Quolke, supra, and because under
{¶24} The Ohio Supreme Court has recognized that police officers “have a fundamental constitutional interest in preventing the release of private information when disclosure would create a substantial risk of serious bodily harm, and possibly even death, ‘from a perceived likely threat,’ so any such disclosure by the state should be measured under strict scrutiny.‘” State ex rel. Enquirer v. Craig, 132 Ohio St.3d 68, 2012-Ohio-1999, 969 N.E.2d 243, ¶ 14, quoting Kallstrom v. Columbus, 136 F.3d 1055, 1064 (6th Cir.1998). Under a strict-scrutiny analysis, a court examines whether an
{¶25} Among the competing governmental interests presented in this case are (1) preventing the release of private information of certain state highway patrol officers when disclosure would create a substantial risk of serious bodily harm, and possibly even death, from a perceived likely threat, and (2) adhering to the principle that records in the custody of public officials should be open to inspection by anyone at appropriate times. See State ex rel. Patterson v. Ayers, 171 Ohio St. 369, 171 N.E.2d 508 (1960), paragraph one of the syllabus (“Generally, those records in the custody of public officials which have been designated ‘public records’ by the General Assembly are open to inspection by anyone at appropriate times, subject to the limitation that such inspection does not endanger the safety of the records or unreasonably interfere with the discharge of the duties of the officer having custody of the same“); State ex rel. Warren Newspapers v. Hutson, 70 Ohio St.3d 619, 623, 640 N.E.2d 174 (1994) (“In Ohio, public records are the people‘s records, and officials in whose custody they happen to be are merely trustees for the people; therefore, anyone may inspect these records at any reasonable time, subject only to the limitation that such inspection does
{¶26} Here, with respect to ODPS‘s contention that certain state troopers’ names should not be released because disclosure would violate the troopers’ constitutional right to privacy under the Fourteenth Amendment, the special master states: “Upon careful review, the evidence in this case supports the privacy exception only to the extent of withholding the Troopers’ names during deployment. The evidence does not justify the continuing use of the exception following the Troopers’ return to Ohio.” (Report and Recommendation, 10.) Later in the report and recommendation, the special master states: “The risk that was perceived during deployment has now receded. DPS presents no evidence of retaliatory pursuit of the Troopers or their families.” (Report and Recommendation, 18.)
{¶27} In ODPS‘s memorandum in support of its objections, ODPS states: “The Special Master points out several times that the Department provides no evidence of an incident where an Ohio Trooper was doxed or of other ‘retaliatory pursuit of the Troopers or their families. * * * This is indeed correct; the Department is in the grateful position of having no examples of the 37 Ohio Troopers, or their family members, being the subject of a violent threat or doxing since returning from deployment.” (Objections, 11.) In view of ODPS‘s admission of a lack of evidence, the court determines that the special master‘s finding that the risk that was perceived during their deployment has receded is justified.
{¶28} Upon review, the court rejects ODPS‘s contention that the special master erred when he concluded that the list of names of 37 troopers is no longer exempt under the Troopers’ Fourteenth Amendment right to privacy following the troopers’ return to Ohio from deployment in North Dakota. The court overrules ODPS‘s first objection.
2. ODPS‘s Objection No. 2
{¶30}
{¶31} Here, ODPS seeks to withhold the names of certain state troopers who were deployed to North Dakota and who have returned to Ohio following a period of deployment. In the special master‘s report and recommendation, the special master relies on State ex rel. Plunderbund Media, L.L.C. v. Born, 141 Ohio St.3d 422, 2014-Ohio-3679, 25 N.E.3d 988, ¶ 20 for the proposition that the term “public office” “as used in the statute includes officials and employees.” (Report and Recommendation, 19.) In Plunderbund Media, at ¶ 20, the Ohio Supreme Court noted that “a public office cannot function without the employees and agents who work in that office, and records ‘directly used for protecting or maintaining the security of a public office’ must inevitably include those that are directly used for protecting and maintaining the security of the employees
{¶32} In ODPS‘s memorandum in support of its objections, ODPS urges that the threat of attacks from protestors in North Dakota has not abated, and with pipeline construction activity in Ohio, threats of attack will likely continue against law enforcement officers. ODPS‘s concern for the safety of the state troopers who were deployed to North Dakota is reasonable. But the correctness of ODPS‘s assessment of the existing threat to the state troopers who were deployed to North Dakota may be debated. Doubt thus exists. When doubt exists in a matter concerning public records, Ohio case law indicates that disclosure is favored. See State ex rel. Cincinnati Enquirer v. Hamilton Cty., 75 Ohio St.3d 374, 376, 662 N.E.2d 334 (1996) (”
{¶33} In this instance, because ODPS has admitted that it is in the “position of having no examples of the 37 Ohio Troopers, or their family members, being the subject of a violent threat or doxing since returning from deployment” (Objections, 11), it is far from evident that, at present, the state troopers who have returned to Ohio following
{¶34} Given these circumstances, the court determines that the special master did not err when he concluded that the list of names of the 37 troopers is no longer exempt as a security record under
Conclusion
{¶35} Accordingly, for reasons set forth above, the court determines that GP Media‘s motion to strike of May 9, 2017 should be granted and that attachments to ODPS‘s objections that were not before the special master should be stricken, that GP Media‘s objections of May 8, 2017 should be overruled, and that ODPS‘s objections of May 5, 2017 should be overruled. The court further determines that the special master‘s report and recommendation should be adopted as its own, including the special master‘s findings of fact and conclusions of law contained in the report and recommendation.
PATRICK M. McGRATH
Judge
John C. Greiner
312 Walnut Street
Suite 1800
Cincinnati, Ohio 45202
Heather L. Buchanan
Assistant Attorney General
30 East Broad Street, 16th Floor
Columbus, Ohio 43215
Morgan A. Linn
Assistant Attorney General
1970 West Broad Street, Suite 531
Columbus, Ohio 43223
Filed May 30, 2017
Sent to S.C. Reporter 6/13/17