GANNETT GP MEDIA, INC., D/B/A, THE CINCINNATI ENQUIRER v. OHIO DEPARTMENT OF PUBLIC SAFETY
Case No. 2017-00051-PQ
Special Master Jeffery W. Clark
[Cite as Gannett GP Media, Inc. v. Ohio Dept. of Pub. Safety, 2017-Ohio-4247.]
Special Master Jeffery W. Clark
REPORT AND RECOMMENDATION
- (i) A description of the emergency service function for which assistance is needed, such as but not limited to * * *, law enforcement, * * *.
- (ii) The amount and type of personnel, equipment, materials and supplies needed, and a reasonable estimate of the length of time they will be needed.
- (iii) The specific place and time for staging of the assisting party‘s response and a point of contact at that location.
Id. Article III(B).
{¶3} The Ohio State Highway Patrol is a division of respondent Ohio Department of Public Safety (DPS). On November 3, 2016, an employee of requester Gannett GP Media d/b/a The Cincinnati Enquirer (GP Media), made a public records request to DPS for the following:
- 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.
{¶4} On November 23, 2016, P.R. Casey, IV, Associate Legal Counsel and Public Records Manager for DPS, responded to each numbered request as summarized below:
- Records withheld based on the Security Records exception,
R.C. 149.433(A)(1) &(2)(a) , and the Fourteenth Amendment protected privacy interest in officers’ personal security and bodily integrity, - Request denied as overly broad, but DPS encloses 39 pages of responsive records from a previous, more specific request, subject to redactions under
R.C. 149.433(A)(1) &(2)(a) , - Records withheld on the same basis as request #1,
- DPS has no public records responsive to this request.
{¶5} On November 29, 2016, John Greiner, legal counsel for GP Media, sent a letter disputing Casey‘s November 23, 2016 responses as to requests numbered 1, 2, and 3. On December 2, 2016, Casey replied to Greiner‘s concerns, and added to his previous response to Request No. 2 the following:
“DPS does not keep its email records organized in such a manner as to allow for a successful search based on the overly broad terms provided. Fulfillment of your request would require our office to scrutinize and analyze every email for any records containing information responsive to your request. * * * Please be aware however, my offer from the November 23 letter to work with your client to narrow the terms of the overly broad search, remains unchanged.”
In a letter dated December 22, 2016, Greiner responded to the December 2, 2016 letter, disputing in further detail the grounds given by DPS for its denials. On January 11, 2017, Casey responded by affirming his previous responses, and reiterating that, “I remain ready and willing to work with you or your client to discuss ways to find actual records. Again, please feel free to contact me at your earliest convenience to discuss request #2 in more detail.”
{¶6} On January 17, 2017, GP Media filed a complaint under
{¶7}
{¶8} For the reasons stated below, the special master concludes that the request for all communication to or from all OSHP employees regarding the 2016 deployment was properly denied as ambiguous and overly broad, but that DPS improperly denied GP Media‘s requests for the names of Troopers and documents outlining the assistance agreement when it withheld responsive records in their entirety, instead of redacting only items within the records that were exempt from disclosure.
Request No. 2: All Communication by Any OSHP Employee Regarding Deployment
{¶9} To demonstrate a denial of access to public records in violation of
{¶10} An ambiguous request for research rather than specific records undermines the legitimate interests of both the public office and the requester. A request to find all communications “regarding” a topic, to or from any employee, anywhere in the office, requires a needle-in-the-haystack search through the office‘s paper and electronic communications. It also requires judgment calls as to whether any given communication -- whether personal, tenuous, or duplicative -- is “regarding” the topic. If a public office attempts such a universal search, the time involved results in delay for the requester. Nor can a public office assume that agreeing to “do the best it can” with an ambiguous or overly broad request, instead of denying it, will shield it from liability. See State ex rel. Bott Law Group, LLC v. Ohio Dep‘t of Natural Res., 10th Dist. Franklin No. 12AP-448, 2013-Ohio-5219. The dilemma for the public office may not be whether the public office can identify any records responsive to the request, but whether the terms of the request permit it to reasonably identify all responsive records. Request No. 2 poses a potentially impossible task to respond fully to its ambiguous and overly broad terms.
{¶11} Ohio‘s public records statutory and case law incentivize requesters and public offices to cooperate in clarifying ambiguous and overly broad requests, with the goal of finding the specific records that the requester seeks while minimizing the burden on the public office. First,
(B)(2) * * * If a requester makes an ambiguous or overly broad request or has difficulty in making a request for copies or inspection of public records under this section such that the public office or the person responsible for the requested public record cannot reasonably identify what public records are being requested, the public office or the person responsible for the requested public record may
deny the request but shall provide the requester with an opportunity to revise the request by informing the requester of the manner in which records are maintained by the public office and accessed in the ordinary course of the public office‘s or person‘s duties.
In State ex rel. Shaughnessy v. Cleveland, Slip Opinion No. 2016-Ohio-8447, ¶ 10, the Supreme Court cited examples of unreasonable requests to conduct research rather than identifying the records sought:
“The Public Records Act does not compel a public office ‘to do research or to identify records containing selected information.’ * * * See State ex rel. Fant v. Tober, 8th Dist. Cuyahoga No. 63737, 1993 Ohio App. LEXIS 2591, 1993 WL 173743, *1 (Apr. 28, 1993), aff‘d, 68 Ohio St.3d 117 (1993). See also Morgan, 121 Ohio St.3d 600, 2009-Ohio-1901, 906 N.E.2d 1105, at ¶ 14-15 (request for ‘[a]ny and all email communications * * * which reference * * * the ‘evidence-based model’ or education funding in general’ was overbroad) (first ellipsis sic); State ex rel. Thomas v. Ohio State Univ., 71 Ohio St.3d 245, 246, 1994 Ohio 261, 643 N.E.2d 126 (1994) (noting denial of writ of mandamus where request for records sought selected information ‘regarding or related to’ any pro-animal-rights action group or individual), citing Fant.”
The request found improper in Shaughnessy required research through seven days of police incident reports to identify only those reports containing injuries of interest to the requester. Id.; accord State ex rel. Daugherty v. Mohr, 10th Dist. Franklin No. 11AP-5, 2011-Ohio-6453, ¶ 32-35 (“all policies, emails, or memos regarding whether prison officials are authorized to ‘triple cell’ inmates into segregation“); State ex rel. Dillery v. Icsman, 92 Ohio St.3d 312, 314, 750 N.E.2d 156 (2001) (request for “any and all records generated * * * containing any reference whatsoever to Kelly Dillery“); State ex rel. Glasgow v. Jones, 119 Ohio St.3d 391, 2008-Ohio-4788, ¶ 16-19 (request for any and all email sent or received for six months by one official); Zidonis, supra, ¶ 4, 28-32 (request for all email between two employees where the office did not maintain email records so that they could be retrieved based on sender and recipient status); but see State ex rel. Carr v. London Corr. Inst., 144 Ohio St.3d 211, 2015-Ohio-2363, ¶ 25-29 (request for email between one person and one department for two months found not
{¶12} GP Media requested “[a]ny and all communication issued or received by any employee of the Ohio State Highway Patrol, regarding the deployment of these officers.” This request falls squarely within the above case citations of ambiguous or overly broad requests. The request is not limited to a mission file, or to communications during a fixed time with North Dakota authorities. Instead, the request compels DPS to perform a search through all communications -- internal and external, paper and electronic -- “issued or received by any employee of the Ohio State Highway Patrol.” The request gives no time frame, and does not describe OSHP records as they are maintained and accessed. The research topic of desired communications is, “regarding the deployment of these officers,” an ambiguous phrase that could encompass anything from the deployment agreement (which GP Media did separately and specifically request) to personal communications with family, press releases, or tangential mention in remotely related records, with no clear limit. Without revision, the request fails to enable DPS to identify all potentially responsive records, and only responsive records, in a search through OSHP‘s universe of communications. Oriana House, Id.; Shaughnessy ¶ 10, citing Thomas. I conclude that Request No. 2 was improperly ambiguous, overly broad, and requested a search or research rather than reasonably identifying the records sought.
{¶13} After an office has denied a request that is ambiguous, overly broad, or otherwise does not reasonably identify the records requested, it is then required to “provide the requester with an opportunity to revise the request by informing the requester of the manner in which records are maintained by the public office and
{¶14} 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.
{¶15} 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. I
Exceptions Asserted By DPS
{¶16} In asserting exceptions to an otherwise proper public records request, a public office bears the burden of proof:
Exceptions to disclosure under the Public Records Act,
R.C. 149.43 , are strictly construed against the public-records custodian, and the custodian has the burden to establish the applicability of an exception. * * * A custodian does not meet this burden if it has not proven that the requested records fall squarely within the exception.
State ex rel. Cincinnati Enquirer v. Jones-Kelley, 118 Ohio St.3d 81, 2008-Ohio-1770, 886 N.E.2d 206, ¶ 10. “If a public record contains information that is exempt from the duty to permit public inspection or to copy the public record, the public office or the person responsible for the public record shall make available all of the information within the public record that is not exempt.”
{¶17} DPS does not dispute that Requests Nos. 1 (Trooper names and rank) and 3 (documentation of agreement to deploy) were proper requests for records documenting official functions of the OSHP. DPS denied these requests by stating that all responsive records were “security records” excepted from public disclosure. DPS additionally responded that release of the names/ranks and EMAC Agreement would violate the Troopers’ 14th Amendment right to privacy. Requests Nos. 1 and 3 will be analyzed based on each exception asserted. However, the REQ-A submitted under seal does not contain the rank of any Trooper listed therein and therefore disclosure of rank will not be included in the analysis of these requests.
Request No. 1: Names of Troopers
Fourteenth Amendment Right to Privacy
{¶18} DPS asserts that the Troopers’ names are excepted from release because disclosure would violate their constitutional right of privacy under the Fourteenth Amendment. 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.
{¶20} OSHP Lieutenant Colonel Teaford received pre-deployment reports of threats to North Dakota and other-state law enforcement personnel assisting with the DAPL protest response. He related briefing by the OSHP Intelligence Unit of incidents and threats of assault and vandalism at the North Dakota site against some officers and equipment. (Ex. A ¶ 14-20, 22, 27, 33; see also Ex. B ¶ 3-9 and attached slides.) While this evidence established that law enforcement officers were exposed to a risk of physical harm while in contact with protesters, no evidence is presented that a Trooper was more likely to be physically attacked, or be exposed to greater physical harm, simply because their name was known to a person facing them at the site. However, Lieutenant Colonel Teaford further stated that he had been informed that Pipeline protesters or their supporters engaged in “doxing” some law enforcement officers serving at the DAPL site. “Doxing” involves posting a known person‘s identity and other personal information online with the intent to intimidate, harass or cause physical or
{¶21} However, once the risk of physical harm or non-physical retaliation has receded, a public office may be obligated to produce information previously withheld under the Fourteenth Amendment right of privacy. State ex rel. Quolke v. Strongsville City School Dist. Bd. of Edn., 142 Ohio St.3d 509, 2015-Ohio-1083, ¶ 25-31. Quolke upheld a finding that,
“during the strike, the board reasonably concluded that disclosure of the names and other personal information about the replacement teachers would expose them to substantial risk of serious harm. However, 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).”
Id. ¶ 28-29. The Court affirmed that records showing names and identification numbers of replacement teachers employed during a teachers’ strike were no longer exempt from disclosure, where there was no evidence that once the strike was over there was any remaining threat to them. Id. ¶ 25-31. An assertion of ongoing or future risk must be supported by relevant evidence specific to that time period. “[W]ithout a clear
{¶22} Only one case cited by DPS upheld withholding the names of law enforcement officers.2 The other cases cited fail to support the indefinite withholding of officer personal information based on conclusory assertions of risk. In State ex rel. Keller v. Cox, 85 Ohio St.3d 279, 707 N.E.2d 931 (1999), a request identified Detective Paul Reece by name, and sought access to Reece‘s personnel and internal affairs records. Reece‘s affidavit stated that the criminal defendant on whose behalf the request was made, and a person the defendant had contacted, had threatened Reece and his wife. Although the Supreme Court found that the affidavit could not be considered for purposes of the dispositive Civ.R. 12(B)(6) motion, it upheld exemption of Reece‘s personnel file based on Kallstrom I, finding that,
“files that contain the names of the officers’ children, spouses, parents, home addresses, telephone numbers, beneficiaries, medical information, and the like should not be available to a defendant who might use the information to achieve nefarious ends.”
Id. p. 282. Keller applied Kallstrom I to withhold family and residence information, but not Keller‘s name. A later federal decision clarified that Kallstrom I “did not create a
{¶23} In the one cited case where law enforcement officers’ names were withheld under the constitutional privacy exemption, the circumstances were exceptional. Cincinnati police officers had engaged in a gunfight with an outlaw motorcycle gang, in which the gang‘s national “enforcer” was killed, and two officers were wounded. Craig, 132 Ohio St.3d 68, 2012-Ohio-1999, ¶ 2-4. The police chief received information that there was a good possibility the gang would target Cincinnati police in retaliation, especially those involved in the gunfight, “and that the threat of retaliation for the death of the national enforcer could last indefinitely.” Id. ¶ 5. The Chief testified that,
“[B]ased on his ‘historic knowledge,’ it is not unusual for an outlaw motorcycle gang to seek revenge against the police when one of its members is shot and killed by the police. Both officers who had been wounded had themselves returned fire, and both were concerned that if the Iron Horsemen discovered their identities, the gang would retaliate by attacking them or members of their families.”
Id. In the Chief‘s deposition, filed under seal, he provided “confidential information confirming the existence of threatened retaliation against the wounded officers.” Id. ¶ 22. The Supreme Court held that the identifying information of the wounded police officers was excepted from disclosure, based on credible evidence of a perceived likely threat that the motorcycle gang would retaliate against the wounded officers for killing the gang‘s national enforcer. Id. ¶ 20-23. DPS has provided no comparable evidence in this case of violent incidents involving Troopers from which to anticipate individual retaliation; no threat of physical harm or doxing of any individual Ohio Trooper before or since their return; no evidence that earlier, general threats of retaliation could last
{¶24} Separate from any alleged future risk of serious bodily harm or death, DPS asserts that “Troopers also have a right to protect themselves against ‘doxing’ and perceived threats that are not physical in nature.” (Response p. 14.) DPS cites State ex rel. Beacon Journal Publishing Co. v. Akron, 70 Ohio St.3d 605, 612, 640 N.E.2d 164, which held only that city employees have a constitutional privacy right against unchecked release of their Social Security numbers, due to the risk of identity theft. Notably, other personal information in that case, including “[e]mployees’ addresses, telephone numbers, salaries, level of education, and birth dates, among other things, were all provided” without objection from the employees. Id. pp. 605, 610-611. The Quolke Court considered Beacon Journal v. Akron, and threats of nonphysical harm like those that DPS asserts on behalf of the Troopers, but did not find them persuasive. Quolke ¶ 26-27, 30. Finally, the federal Sixth Circuit has limited the scope of informational privacy rights under the Fourteenth Amendment, and determined that a mere risk that information disclosure could result in identity theft or damage to credit rating does not implicate a fundamental constitutional interest. “[I]dentity theft constitutes a serious personal invasion, [but] it simply does not implicate the well-established right to personal security as contemplated by this court in Kallstrom.” Lambert v. Hartman, 517 F.3d 433, 444-445 (6th Cir.2008). No Ohio case has created a general fundamental constitutional interest in the privacy of one‘s name. But see State ex rel. McCleary v. Roberts, 88 Ohio St.3d 365, 372, 725 N.E.2d 1144 (2000) (database of photographs, names, addresses and other personal information of uniquely vulnerable juvenile customers found subject to Fourteenth Amendment privacy right).
“shall maintain a database or a list that includes the name and date of birth of all public officials and employees elected to or employed by that public office. The database or list is a public record and shall be made available upon a request made pursuant to section 149.43 of the Revised Code.”
{¶26} The policy underlying the Public Records Act is that “open government serves the public interest and our democratic system.” State ex rel. Dann v. Taft, 109 Ohio St.3d 364, 2006-Ohio-1825, 848 N.E.2d 472, ¶ 20. “[O]ne of the salutary purposes of the Public Records Law is to ensure accountability of government to those being governed.” State ex rel. Strothers v. Wertheim, 80 Ohio St.3d 155, 158, 684 N.E.2d 1239, 1242 (1997). Therefore,
{¶27} The risk that was perceived during deployment has now receded. DPS presents no evidence of retaliatory pursuit of the Troopers or their families. At the present remove in time and distance from the North Dakota protesters, DPS has not provided the required “clear development of the factual circumstances that would accompany any future release” of the Troopers’ names. Kallstrom I, p. 1068. The bare allegations of continuing physical risk in the response and in Exhibits A-C are speculative and non-specific. An attenuated and receding risk of online harassment is not the kind of threat that justifies indefinitely concealing the names of law enforcement officers who exercised plenary police power during a public, uniformed mission. Even under strict scrutiny, the evidence does not support a finding that disclosure of the Trooper names would pose a current substantial risk of serious bodily harm or death to the Troopers or their families from any perceived likely threat, and DPS has therefore failed to prove that the Fourteenth Amendment right of privacy applies to the names of the Troopers at the present time.4
Records Directly Used to Protect Against Attack, R.C. 149.433(A)(1)
{¶28} DPS separately asserts that the Troopers’ names are excepted from release pursuant to
(A) As used in this section: * * * ‘Security record’ means any of the following:
(1) A record that contains information directly used for protecting or maintaining the security of a public office against attack, interference, or sabotage.
(B)(1) A record kept by a public office that is a security record is not a public record under section 149.43 of the Revised Code and is not subject to mandatory release or disclosure under that section.
“Public office” as used in the statute includes officials and employees. State ex rel. Plunderbund Media, L.L.C., v. Born, 141 Ohio St.3d 422, 2014-Ohio-3679, ¶ 20.
{¶29} As detailed in the Fourteenth Amendment analysis, DPS provides no evidence that the Troopers were any more subject to physical attack or sabotage at the DPS site whether protesters knew their names, or did not. The evidence shows that the predicted risk of “doxing” perceived by the OSHP in advance of and during deployment justified withholding Trooper names to protect them during deployment from the “interference” of threats against their families. The evidence does not justify the continuing use of this exception following the Troopers’ return to Ohio.
{¶30} In Plunderbund, supra, ¶ 3-7, 19-31, DPS records of the investigation of direct threats against the governor were found to meet the definition of “security records” in
This is not to say that all records involving criminal activity in or near a public building or concerning a public office or official are automatically ‘security
request in Craig, the request for Trooper names was not mitigated by any release of other enlightening mission information from the REQ-A. Craig ¶ 21.
records.’ The department and other agencies of state government cannot simply label a criminal or safety record a “security record” and preclude it from release under the public-records law, without showing that it falls within the definition in
R.C. 149.433 .
Id. ¶ 29. Nor should this exception be asserted beyond the person(s) demonstrably at risk, or after the risk has abated. In State ex rel. Ohio Republican Party v. FitzGerald, 145 Ohio St.3d 92, 2015-Ohio-5056, the county withheld as “security records” key-card-swipe data for the one employee against whom verified threats had been received, but released the same data for employees who had not received threats. Id. ¶ 6-8, 24. The Court determined that when the threatened employee left his position, the key-card-swipe data were no longer security records, and ordered their release. Id. ¶ 27-28, 30.
{¶31} In contrast with the records withheld in Plunderbund and FitzGerald involving direct threats against particular officials, DPS shows no direct threats made against these Troopers either individually or as a group. However, for the same reasons discussed in connection with the Fourteenth Amendment Right to Privacy, I find that withholding the names in response to GP Media‘s November 3, 2016 request, like the removal of name bars from the Troopers’ uniforms, was designed to reduce a perceived substantial risk of online harassment including physical threats toward Troopers’ families, threatening “interference” with the Troopers’ mission. (Ex. A, ¶ 17-19, 29). The list of names therefore qualified as “security records” during deployment.
{¶32} An initial correct withholding of a record as a security record under
“the board had presented little or no evidence that once the strike was over, there was any remaining threat to the replacement teachers. That decision was issued ‘taking into consideration the facts and circumstances as they exist[ed] * * *, several months after the strike.‘”
Id. ¶ 30. Five months have passed since the Troopers’ return to Ohio from North Dakota. Further, unlike the replacement teachers in Quolke, the Troopers do not reside near the protest site, or work in the same profession as the protesters. Against this separation in time and distance, DPS presents little or no evidence of credible current threats directed against the Troopers or their families. DPS has not shown that actual doxing of Ohio Troopers has occurred, either collectively or individually. The evidence fails to support any continuing or new threat of physical harm following the return of the Troopers to Ohio. The bare allegations of continuing risk are non-specific and speculative, and do not establish withholding of names as “directly * * * protecting or maintaining the security of [these Troopers] against attack, interference, or sabotage.” The evidence does not establish that release of the list of names at this time threatens a substantial risk of future physical or even nonphysical harm.
{¶33} I find that during the DAPL deployment DPS officials were permitted5 to withhold the list of Trooper names pursuant to
Request No. 3: EMAC Agreement
Fourteenth Amendment Right to Privacy
{¶34} DPS parenthetically asserts that other identifying information in the EMAC agreement would violate the Troopers’ constitutionally-protected privacy rights to personal security and bodily integrity. (Response p. 11.) In support, DPS states that “information such as hourly pay rate that could easily lead to the Trooper‘s identities * * *.” (Response p. 14.) Lieutenant Colonel Teaford suggests how hourly pay rate could be traced to a Trooper‘s name, and adds the item, “employee ID,” as information that could disclose identity. (Ex. A ¶ 27.)
{¶35} Based on the same evidence and reasoning applied to the Troopers’ names, I find that the employee ID numbers contained in the EMAC Agreement were subject to withholding under the
Request No. 3: EMAC Agreement
Records Directly Used to Protect Against Attack, R.C. 149.433(A)(1)
(1) Any record that contains information directly used for protecting or maintaining the security of a public office against attack, interference, or sabotage;
DPS asserts that the withholding of “deployment plans,” “vulnerability assessments,” and “tactical response plans” allegedly contained in the form is a direct use to protect or maintain the security of the Troopers. (Response at pp. 8-11.) However, most of the sections in the REQ-A form contain only administrative and billing information. A limited number of records in a few sections do meet the definition of “security records,” and may be redacted.
{¶37} As noted in the application of this exception to the list of Trooper names, the Supreme Court has cautioned DPS and other agencies of state government that simply labeling records involving criminal activity concerning a public office or official as “security records” is insufficient, without showing that it falls squarely within the definition in
{¶38} DPS alleges that the REQ-A contains the OSHP‘s entire deployment plan for the North Dakota Pipeline protest. (Response p. 9; Ex. A ¶ 24.) In identifying
“daily email briefing from one of the commanders, which included updates on North Dakota authorities’ written daily intelligence records. In my review of these records, I can confirm that the documents contained known threats to law enforcement, security vulnerabilities, and tactical response plans for each day.” (Ex. A ¶ 20.),
“One of the commanders also updated me on the previous day‘s activities, including the Troopers’ tactical responses to violent protests. These response plans were unique * * *. (Ex. A ¶ 21.),
“The information from these briefings was used each day by law enforcement to prepare for the day‘s protest response * * *.” (Ex. A ¶ 22.), and
“we would * * * likely use the same operational response plans set forth in the prior daily email briefings.” (Ex. A ¶ 24.).
These extended references to post-deployment briefings, North Dakota daily intelligence records, the “plans” developed during deployment, as well as any security opinions to the extent that they rely on these references (e.g. Ex. A ¶¶ 25, 27-32), are irrelevant in evaluating the actual contents of the REQ-A.
{¶39} In the REQ-A form, only the lists of equipment promised by the OSHP, and prospective disclosure of the staging area, appear to meet the definition of “security record” in
Time sheets and billing records generally can be categorized as “routine office records” that fall outside the definition of “trial preparation records.” See State ex rel. Carpenter v. Tubbs Jones (1995), 72 Ohio St. 3d 579, 580, 651 N.E.2d 993.
Bodiker, supra at 427.
{¶40} Based on the above, I find that only the records within the REQ-A regarding equipment and staging area are subject to
{¶41} DPS asserts that the “security record” exemption for these records continues after the Troopers’ return, alleging risk to future officers through disclosure of the REQ-A “operational response plans and briefings,” and operational tactics used. (Response at p. 10-11.) However, this exception does not automatically apply in perpetuity, and requires proof of continuing application. In Plunderbund, the records of investigations of threats against the governor were found still to be “security records,” regardless of investigation status or the passage of time, but in Plunderbund, DPS provided much more detailed testimony connecting the disclosure of that information to future risks to the governor and his successors. Plunderbund, ¶¶ 24-31. In FitzGerald, documents were found no longer security records once the county executive left office. Id. ¶¶ 27-28, 30. See Pinkney, Slip Opinion No. 2017-Ohio-1335, Appendix (documents
{¶42} Applying
{¶43} DPS also asserts that the “security record” portions of the REQ-A may be reused in hypothetical future OSHP deployments to North Dakota or in preparing OSHP requests for assistance, and that disclosing the current REQ-A may put other states at risk by revealing the specific request information from North Dakota. However, the REQ-A does not contain either operational response plans or briefings, and the affidavits provide only conclusory opinions and factually contradicted assertions. For example, DPS asserts that dissemination of the REQ-A would threaten the security of out-of-state law enforcement:
[T]he EMAC agreement in the present case contains information relevant to North Dakota‘s requests to other participating states. Therefore, some of the information contained within the EMAC agreement protects not just the Ohio Troopers from attack, interference, and sabotage, but all law enforcement who have assisted in North Dakota.
(Response p. 8-9.) DPS further asserts that withholding the REQ-A directly protects what are expected to be similarly worded requests by Ohio in requests for assistance:
Should Ohio need to enact the EMAC to request law enforcement assistance to the State, Ohio‘s request and subsequent EMAC agreement with out-of-state law enforcement agencies would undoubtedly look similar to North Dakota‘s EMAC agreement here. [citing Ex. A p. 3]
(Response p. 10.) DPS argues in effect that release of an EMAC agreement by any compact state poses this risk:
In the wrong hands the information in the EMAC agreement could be used to thwart law enforcement‘s efforts to maintain peaceful protests, or to compromise the personal safety of law enforcement personnel, thereby placing these officers in significant danger. [citing Ex. A p.4]
However, multiple law enforcement agencies from at least six states that have assisted North Dakota with the DAPL protests have released redacted or full EMAC requests, agreements and in one case an after-action report in response to public records
{¶44} Conclusory allegations of future risk of serious bodily harm are not sufficient alone. The evidence in this case supports the conclusion that the danger of retaliation or physical harm to the Troopers has receded, and that DPS is now obligated
Request No. 3: EMAC Agreement
Records Prepared to Respond to Acts of Terrorism – R.C. 149.433(A)(2)(a)
{¶45} Separately from
“(A) As used in this section: * * *. ‘Security record’ means any of the following: (2) Any record assembled, prepared, or maintained by a public office or public body to prevent, mitigate, or respond to acts of terrorism, including any of the following: (a) Those portions of records containing specific and unique vulnerability assessments or specific and unique response plans either of which is intended to prevent or mitigate acts of terrorism, and communication codes or deployment plans of law enforcement or emergency response personnel; * * *.” (Emphasis added.)
DPS submits no evidence by affidavit or otherwise that Ohio, North Dakota, or Federal authorities have determined that the DAPL protests included acts of terrorism.7 Lieutenant Colonel Teaford describes the request from North Dakota as one for “law enforcement assistance in responding to protests over the Dakota Access Pipeline (DAPL),” not to prevent, mitigate, or respond to acts of terrorism. In the absence of qualified evidence, the court may not draw an inference that a protest where some participants use violence involves “acts of terrorism.”
{¶46} I conclude that because
No Responsive Records
{¶47} With respect to Request No. 4, “Any OSHP bylaws or procedures which govern agreements with EMAC,” DPS responded on November 23, 2016 that there were no responsive records to this request. Ex. A ¶¶ 6, 10. A respondent has no duty to create or provide access to nonexistent records. State ex rel. Lanham v. Smith, 112 Ohio St.3d 527, 2007-Ohio-609, ¶ 15. Based on this evidence, I find that GP Media has not shown a denial of access to any existing records responsive to Request No. 4.
“Security Records” May Be Redacted from EMAC Agreement
{¶48} DPS argues that the REQ-A may be withheld in its entirety, rather than redacting only those items meeting the definition of “security record.” (Response p. 7-8.) DPS points to the definition in
“If a public record contains information that is exempt from the duty to permit public inspection or to copy the public record, the public office or the person responsible for the public record shall make available all of the information within the public record that is not exempt.”
“ignores [Supreme Court] precedent holding that public records can be items, documents, and items within documents. See, e.g., State ex rel. Beacon Journal Publishing Co. v. Akron (1994), 70 Ohio St.3d 605, 606, 1994-Ohio-6, 640 N.E.2d 164 (Social Security numbers found within payroll files were ‘records’ for purposes of
R.C. 149.011(G) ); Dupuis, 98 Ohio St.3d 126, 2002-Ohio-7041, 781 N.E.2d 163, P21 (settlement proposal within larger court record is a public record). Moreover, a contrary holding would ignore our precedent that the public records laws should be read broadly and construed liberally to effectuate the intent of the statute. See State ex rel. Plain Dealer, 80 Ohio St.3d at 518, 687 N.E.2d 661; Gannett Satellite Information Network, Inc., 80 Ohio St.3d at 264, 685 N.E.2d 1223; Hutson, 70 Ohio St.3d at 623, 640 N.E.2d 174.”
Kish v. Akron, 109 Ohio St.3d 162, 2006-Ohio-1244, footnote 3.
{¶49} Further, an analogous exception for “trial preparation” records is defined using identical language, as “any record that contains information that is specifically compiled in reasonable anticipation of [court proceedings].”
“[R]ecords which purportedly contain trial preparation records * * * may be viewed in camera by this court to determine which sections may be redacted pursuant to the trial preparation records exception.”
Bodiker, supra, at 428. Public offices have redacted security records from larger records, where appropriate. In FitzGerald, 145 Ohio St.3d 92, 2015-Ohio-5056, the county released key-card-swipe data for five employees and withheld only the data for the county executive, Id. ¶ 6, rather than labeling the entire key-card-swipe database a “security record” and withholding all six. In State ex rel. Bardwell v. Cordray, 181 Ohio App.3d 661, 2009-Ohio-1265 (10th Dist.), ¶¶ 68-70, 78, the Attorney General‘s Office redacted only a phone number and an email response as security records, from within larger correspondence. See also other-state REQ-A redactions in footnote 6. A document that is composed entirely of security records, or in which security records are inextricably intertwined with the remainder of the document, may be withheld in toto. However, where only discrete and severable items fall squarely within the definition of “security records” and are assembled within a larger document, the Public Records Act and relevant case law require that only the specific security records may be redacted.
Conclusion
{¶50} 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
{¶51} I further find that GP Media has failed to establish by clear and convincing evidence that DPS violated division (B) of
{¶52} I further find that GP Media has established by clear and convincing evidence that DPS violated division (B) of
{¶53} Pursuant to
JEFFERY W. CLARK
Special Master
cc.
John C. Greiner
312 Walnut Street, Suite 1800
Cincinnati, Ohio 45202
Morgan A. Linn
1970 West Broad Street, Suite 531
Columbus, Ohio 43223
Heather L. Buchanan
30 East Broad Street, 16th Floor
Columbus, Ohio 43215
Filed April 24, 2017
Sent to S.C. Reporter 6/13/17
Recommended Redactions To REQ-A
The sections and fields of the REQ-A form are listed in the left column (see also footnote 1). Only fields that have content are listed. In the right column, information is identified as meeting or not meeting the definition of “security record” in
SECTION I TO BE COMPLETED BY THE REQUESTING STATE
|
Exercise or Event: Event Date State Mission Tracking #: Requesting Agency: |
New or Amendment #: Requesting State EM Software Tracking #: EMAC Tracking #: |
These fields do not contain information that meets | |
|
Requesting State REQ-A Contact First Name Phone 1: Email 1: |
Last Name Phone 2: Email 2: |
These fields do not contain information that meets | |
|
Resource Request Mission Type/Source: Type/Status: Mission Description: Resource Description: # Requested # Type |
These fields do not contain information that meets | ||
|
Deployment Dates (Including Travel Days) Deployment Date: Demobilization Date: Duty Length |
These fields do not contain information that meets | ||
|
Deployment Details Work Location/Facilities Location/Facility Name Address 1, City, Zip Code Working Conditions Comments: Living Conditions Comments: Logistics Comments: |
These fields do not contain information that meets | ||
|
Identify Health & Safety Concerns (All Selected Apply) No Safety or Health Concerns have been Identified Immunizations or Vaccinations are suggested to deploy Environmental Hazards Exist Personal Protection Equipment Needed Safety Concerns/Remarks |
These fields do not contain information that meets | ||
|
Requesting State Resource Coordination Contact First Name Title Phone 1 Email 1 |
Last Name Agency Mobile Email 2 |
These fields do not contain information that meets | |
|
Staging Area and Point of Contact POC First Name Phone 1 Location/Facility Name Address 1 City |
Last Name Phone 2 Zip Code |
Location/Facility Name and Address could assist persons in creating countermeasures, Exhibit A ¶ 29, so is properly withheld before and during deployment. After return, none of this section contains information that meets | |
|
EMAC Authorized Signature Name of EMAC Authorized Representative Signature of EMAC Authorized Representative Date |
These fields do not contain information that meets | ||
|
Assisting State: Assisting Agency: |
These fields do not contain information that meets | |||||||||||
|
Offer Description Mission Start Date: Departure Date: # Mission Days Mission Type Mission Description Resource Description # Requested # Type |
Arrival Date: Mission End Date: Type/Status |
Ex. A ¶¶ 13, 29-32 states that disclosing equipment to be used could mitigate personal security, both in N.D. and for future similar deployment. Resource Description text lines 25-33 may therefore be withheld. None of the other fields contain information that meets | ||||||||||
|
Assisting State REQ-A Contact First Name Phone 1: Email 1: |
Last Name Phone 2: |
These fields do not contain information that meets | ||||||||||
|
Total Mission Estimated Costs Travel: Personnel: Equipment: Commodities: Other: ESTIMATED TOTAL COST: |
These fields do not contain information that meets | |||||||||||
Travel
|
These fields do not contain information that meets | |||||||||||
|
EMAC Authorized Signature Name of EMAC Authorized Representative Signature of EMAC Authorized Representative Date: |
These fields do not contain information that meets | |
|
Personnel Costs These column headings above 37 entry rows: ID, Name, Reg. Salary Hourly Rate, Fringe Benefit Hourly Rate, Reg. Hours Worked Per Day, OT Salary Hourly Rate, OT Fringe Benefit Hourly Rate, OT Hours Worked Per Day, # Days, Total Daily Cost, Total Mission Cost |
These fields do not contain information that meets Note: no officer ranks, phone #‘s, or email addresses are entered | |
|
Commodity Costs These column headings above 4 entry rows: ID, Commodity Description, Cost Per Item, Quantity, Total Costs |
Ex. A ¶¶ 13, 29-32 states that disclosing equipment to be used could mitigate personal security, both in N.D. and for future similar deployment. The Commodity ID and Description columns meet | |
|
Equipment Costs These column headings above 1 entry row: ID, Equipment Description, Cost Per item, Quantity, # Days Used, Total Cost |
Ex. A ¶¶ 13, 29-32 states that disclosing equipment to be used could mitigate personal security, both in N.D. and for future similar deployment. The Equipment ID and Description columns meet | |
|
Other Costs These column headings above 1 entry row: ID, Other Description, Cost Per Item, Quantity, # Days Used, Total Cost |
These fields do not contain information that meets | |
|
Date Event Mission Description: Req. State Tracking #: |
These fields do not contain information that meets |
|
EMAC Authorized Signature Name of EMAC Authorized Representative Signature of EMAC Authorized Representative Date |
These fields do not contain information that meets |
Notes
Released in entirety - Wisconsin: http://www.unicornriot.ninja/?p=11176 (after action report, Intergovernmental Agreement, and EMAC RC-2 form, St. Croix Co. Sheriff‘s Office.
All accessed April 14, 2017.