WELSH-HUGGINS, APPELLANT, v. JEFFERSON COUNTY PROSECUTOR‘S OFFICE, APPELLEE.
Slip Opinion No. 2020-Ohio-5371
SUPREME COURT OF OHIO
November 24, 2020
2020-Ohio-5371
Public Records Act—Security-record exception—To constitute an exception to the Public Records Act, record must be directly used to maintain the security of a public office—Judgment reversed. (No. 2019-1481—Submitted July 21, 2020—Decided November 24, 2020.) APPEAL from the Court of Appeals for Jefferson County, No. 19 JE 0005, 2019-Ohio-3967.
[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as Welsh-Huggins v. Jefferson Cty. Prosecutor‘s Office, Slip Opinion No. 2020-Ohio-5371.]
NOTICE
This slip opinion is subject to formal revision before it is published in an advance sheet of the Ohio Official Reports. Readers are requested to promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65 South Front Street, Columbus, Ohio 43215, of any typographical or other formal errors in the opinion, in order that corrections may be made before the opinion is published.
SLIP OPINION NO. 2020-OHIO-5371
{¶ 1} This case presents the issue of whether the video from an exterior courthouse security camera that captured the shooting of a judge as he was about to enter the courthouse through a nonpublic secured entry was a “security record” under
I. FACTS
{¶ 2} On August 21, 2017, Joseph J. Bruzzese Jr., a judge of the Jefferson County Court of Common Pleas, was shot and seriously wounded by Nate Richmond near the courthouse. Judge Bruzzese and a nearby probation officer returned fire, and Richmond was fatally wounded. Judge Bruzzese survived his gunshot wounds after undergoing surgery and a lengthy hospital stay.
{¶ 3} The Jefferson County Courthouse was equipped with a security camera system that recorded the shooting incident. The camera was positioned outside the door where only courthouse personnel entered and exited the courthouse.1
{¶ 4} Later that day, appellant, Andrew Welsh-Huggins, a reporter for the Associated Press, sent an email to appellee, the office of the prosecuting attorney in Jefferson County (“prosecutor“), requesting, as a public record under
{¶ 5} On May 7, 2018, Welsh-Huggins filed a public-records-access complaint in the Court of Claims pursuant to
{¶ 6} On January 28, 2019, the special master filed his report and recommendation. See 2019-Ohio-473. Denying the prosecutor‘s motion to dismiss, the special master determined that the prosecutor failed to meet her burden to prove that any portion of the video was exempt as a security record under
{¶ 7} The prosecutor filed an appeal to the Seventh District Court of Appeals pursuant to
{¶ 8} We accepted Welsh-Huggins‘s appeal and agreed to consider the following proposition of law: “A public office must produce competent, admissible evidence to support an assertion of an exception to the Public Records Act.” See 157 Ohio St.3d 1534, 2020-Ohio-122, 137 N.E.3d 1207. For the reasons that follow, we now reverse the judgment of the court of appeals.
II. ANALYSIS
{¶ 9} This case provides us with the first opportunity to identify the legal standards and evidentiary burdens applicable to public-records-access proceedings that are brought pursuant to
{¶ 10} We begin by recognizing once again the critical function served by the right of access to public records that is secured by
{¶ 11} Until the 2016 enactment of
A. Public-Records Dispute Proceedings under R.C. 2743.75
{¶ 12} Recognizing that disputes over public-records requests can frustrate the
{¶ 13} In contrast to an action in mandamus that is generally subject to specialized pleading requirements under
{¶ 14} If the dispute is not resolved through mediation, the public office or person responsible for public records shall file a response and, if applicable, a motion to dismiss the complaint within ten days of the termination of the mediation.
{¶ 15} Not later than seven business days after receiving the response or motion to dismiss filed by the public officer or person responsible for public records, and unless extended for good cause by an additional seven days, “the special master shall submit to the court of claims a report and recommendation based on the ordinary application of statutory law and case law as they existed at the time of the filing of the complaint.”
{¶ 16} If neither party files objections, 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. See
{¶ 17} If the Court of Claims determines that the person was denied access to public records in violation of
{¶ 18} Any appeal from a final order of the Court of Claims under
B. Legal Standards for Proceedings Brought to Enforce Ohio‘s Public Records Act
{¶ 19}
{¶ 20} We begin by recalling that the “burden of proof” is a composite burden that “encompasses two different aspects of proof: the burden of going forward with evidence (or burden of production) and the burden of persuasion.” Chari v. Vore, 91 Ohio St.3d 323, 326, 744 N.E.2d 763 (2001). See also Xenia v. Wallace, 37 Ohio St.3d 216, 219, 524 N.E.2d 889 (1988); State v. Robinson, 47 Ohio St.2d 103, 107, 351 N.E.2d 88 (1976).
{¶ 21} The “burden of production” in a civil case requires that the plaintiff produce sufficient evidence to support the case and that the defendant produce sufficient evidence of any affirmative defenses. Id. at 107. The party having the burden on any given issue will lose on that issue as a matter of law if sufficient evidence is not produced. Id.
{¶ 22} By contrast, the “burden of persuasion” “refers to the risk * * * borne by a party if the jury finds that the evidence is in equilibrium.” Id. “In a civil case, the party with the burden of persuasion is to persuade the trier of fact by a preponderance of the evidence, or upon some issues, by clear and convincing evidence.” Id. The party with this burden will lose if he or she fails to persuade the trier of fact that the alleged fact is true by such quantum of evidence as the law demands. Id. If the trier of fact finds itself in doubt, “it must decide the issue against the party having the burden of persuasion.” Id.
{¶ 23} With these basic legal precepts in mind, we now consider how they apply to actions that involve alleged denials of access to public records in violation of
1. The Burdens of Production and Persuasion in Public-Records Mandamus Actions
{¶ 24} As previously noted, until
{¶ 25}
{¶ 26} In a mandamus-enforcement action, the requester‘s basic burden of production is to plead and prove facts showing that he or she requested a public record pursuant to
{¶ 27} If a public office or person responsible for public records withholds a record on the basis of a statutory exception, the “burden of production” is on the public office or records custodian to plead and prove facts clearly establishing the applicability of the exemption. In State ex rel. Cincinnati Enquirer v. Jones-Kelly, 118 Ohio St.3d 81, 2008-Ohio-1770, 886 N.E.2d 206, paragraph two of the syllabus, we held that exceptions to disclosure under the Public Records Act,
{¶ 28} In State ex rel. Natl. Broadcasting. Co., Inc. v. Cleveland, 38 Ohio St.3d 79, 83, 526 N.E.2d 786 (1988), we recognized several reasons for placing this burden of production on the public office or records custodian. First, unlike a party requesting disclosure, the custodian of the record has knowledge of the contents of the record. Second, since Ohio law requires the party asserting an exception to prove the facts warranting the exception, placing the burden of proof on the government is consistent with that law. Third, requiring the government to have the burden of proof is also consistent with this court‘s strict construction of the exceptions of
{¶ 30} When a public office or records custodian relies on an exemption the application of which is not apparent just from the record itself, the office must provide evidence to support the applicability of the exemption. See, e.g., State ex rel. Besser v. Ohio State Univ., 89 Ohio St.3d 396, 401-402, 732 N.E.2d 373 (2000) (trade-secret exemption required evidence to support its application). Conclusory statements in an affidavit that are not supported by evidence are not sufficient evidence to establish the exemption‘s applicability. Id. at 401.
{¶ 31} Having reviewed the legal standards applicable to mandamus-enforcement actions, we now consider the legal standards that are applicable to public-records-access proceedings under
2. The Burdens of Production and Persuasion in Public-Records-Access Actions under R.C. 2743.75
{¶ 32} While a public-records-access proceeding brought pursuant
{¶ 33} In that respect, the complainant‘s “burden of production” is to plead and prove facts showing that the requester sought an identifiable public record pursuant to
{¶ 35} If the public office or person responsible for public records refuses to release the requested record on the basis of a statutory exemption, its “burden of production” in the
{¶ 36} Before we address in this case whether the prosecutor proved that the requested video recording fell squarely within the security-record exemption, we will briefly address the applicable standard of appellate review for such proceedings.
C. Appellate Standard of Review
{¶ 37} Whether a particular record is by statute exempt from disclosure as a public record fundamentally presents an issue of law, although the application of the statutory exemption will necessarily depend on its factual application to the record in question. When an issue presents such a mixed question of law and fact, a reviewing court will independently review the legal question de novo but will defer to the trial court‘s underlying factual findings, reviewing them only for clear error. See Gembarski v. PartsSource, Inc., 157 Ohio St.3d 255, 2019-Ohio-3231, 134 N,E,3d 1175, ¶ 26; State v. Gillard, 78 Ohio St.3d 548, 552, 679 N.E.2d 276 (1997).
{¶ 38} In prior appeals of mandamus public-records rulings, we have used this standard, in substance if not in name, by reviewing independently the disputed records and associated evidence to ascertain whether the records qualified for the claimed exemption. For instance, in State ex rel. Rocker v. Guernsey Cty. Sheriff‘s Office, 126 Ohio St.3d 224, 2010-Ohio-3288, 932 N.E.2d 327, the court of appeals, citing the
{¶ 39} In the specific context of public-records-access appeals filed pursuant to
{¶ 40} In the case before us, the appellate court did not articulate its standard of appellate review. It nevertheless appears to have independently reviewed the video and statements submitted by the prosecutor before determining that, contrary to the Court of Claims determination, the video recording was exempt as a “security record.”
{¶ 41} We now proceed to consider the merits of the parties’ respective contentions.
D. The Security-Record Exemption
{¶ 42} Pursuant to
{¶ 43} The Court of Claims determined that the prosecutor had not shown, either by the content of the video alone or by the prosecutor‘s affidavits, that the video met this definition. Reversing that judgment, the court of appeals held that the video was a security record, although it is unclear whether it based that judgment on the video alone or on the prosecutor‘s affidavits. 2019-Ohio-3967, 133 N.E.3d 550, at ¶ 40-42. Despite the lack of clarity in the appellate court‘s opinion and analysis, we will separately address whether its judgment can be sustained based on the content of the video alone or based also on the evidence provided by the prosecutor in her affidavits.
1. Video Content
{¶ 44} Maintaining that the security-record nature of the video is readily apparent just by viewing it, the prosecutor contends that the court of appeals agreed when it declared: “The video shows the blind spots and places an attacker could take cover and go undetected. The video also shows the emergency response means, methods, and procedures.” 2019-Ohio-3967, 133 N.E.3d 550, at ¶ 40.
{¶ 45} But that statement does not fairly represent the appellate court‘s opinion because the court of appeals was in fact reciting what the prosecutor‘s affidavit claimed were “the technical capabilities of the video security system, including the ability to zoom, rotate and isolate certain areas.” Id. Irrespective of whether the court of appeals based its judgment on the content of the video alone or on the prosecutor‘s narrative description of the video‘s content, however, the video does not by itself establish that it contains information directly used for protecting or maintaining the security of a public office against attack, interference, or sabotage.
{¶ 46} State ex rel. Rogers v. Dept. of Rehab. & Corr., 155 Ohio St.3d 545, 2018-Ohio-5111, 122 N.E.3d 1208, is instructive in that we considered and rejected a similar argument. In that case, Rogers requested a prison‘s security-camera video related to a use-of-force incident. The Ohio Department of Rehabilitation and Correction
{¶ 47} Just as the DRC argued in Rogers that the content of the video, including the emergency response to the incident, by itself showed that it was a security record, the prosecutor and the court of appeals relied on the content of the video to conclude that it was a security record. But as was the case in Rogers, neither the prosecutor nor the court of appeals explains how the content of this video contains “information directly used for protecting or maintaining the security of a public office against attack, interference, or sabotage.”
{¶ 48} To be sure, some public-records exemptions may be obvious just from the record‘s content. In McDougald v. Greene, ___ Ohio St.3d ___, 2020-Ohio-4268, ___ N.E.3d ___, ¶ 9, we held that a prison‘s most recent shift-assignment duty rosters qualified as security records. The duty rosters detailed “the identity and location of guards posted throughout the prison,” id., which obviously was “information directly used for protecting or maintaining the security of a public office against attack, interference, or sabotage,”
{¶ 49} The shift-assignment duty rosters that were at issue in McDougald are readily distinguishable from the video at issue in Rogers and in this case, which also captured one event. In McDougald, the ongoing use of the duty rosters to protect a public office from attack for security purposes was self-evident. In the latter, the actual use of the video to protect the public from attack was not self-evident.
{¶ 50} If the applicability of a public-records exemption is not readily apparent just from the record‘s content, evidence providing specific factual support that goes beyond mere conclusory statements in an affidavit is required to show that the record sought falls squarely within the prescribed exception. See State ex rel. Besser, 89 Ohio St.3d at 400-402, 732 N.E.2d 373. We turn then to the evidence presented by the prosecutor in this case.
2. Prosecutor‘s Evidence
{¶ 51} Unless it is otherwise obvious from the content of the record, the proponent invoking the security-record exemption
{¶ 52} Thus, in State ex rel. Plunderbund Media, L.L.C. v. Born, 141 Ohio St.3d 422, 2014-Ohio-3679, 25 N.E.3d 988, we held that records documenting threats against the governor were exempt as security records based on the testimonial evidence from subject-matter experts. The testimony showed that the records contained information directly used for tactically protecting or maintaining the security of a public office, which includes its officers and employees, against attack, interference, or sabotage. Id. at ¶ 29-30. See also State ex rel. Ohio Republican Party v. Fitzgerald, 145 Ohio St.3d 92, 2015-Ohio-5056, 47 N.E.3d 124, ¶ 3 (records of key-card-swipe data documenting when local county official who was the subject of verified threats entered and exited county parking facilities and buildings were directly used to protect or maintain security of a public office and were exempt as security records when originally requested, although the exemption expired once official left office, new county headquarters were established, former county headquarters were demolished, and key-card-swipe data were separately released to the media).
{¶ 53} As it relates specifically to the case at hand, Welsh-Huggins‘s proposition of law asserts that “[a] public office must produce competent, admissible evidence to support an assertion of an exception to the Public Records Act.” The prosecutor does not take issue with this legal proposition as stated, though she does dispute the suggestion that she failed to present competent, admissible evidence to support the asserted “security-record” exemption. We agree that unless it is obvious from the record itself, in a public-records-access proceeding brought pursuant to
{¶ 54} Acknowledging that the records custodian in a
{¶ 55} The question then is whether the prosecutor proved that the video was a security record under
{¶ 56} According to the prosecutor, divulging the video and its digital player software would reveal the location and configuration of the camera to its surroundings; the technical capabilities of the video security system; the panorama of the area captured by the video camera; the ability to view certain areas from different angles; the ability to zoom, rotate, and isolate certain areas and subjects; computerized optical enhancement features (such as “fish eye“); and the emergency response means, methods, and procedures used by courthouse security personnel and other law-enforcement agencies. Disclosing that information would, in the prosecutor‘s view, educate future would-be attackers to courthouse security plans and potential weaknesses. The prosecutor acknowledged that to her knowledge, there had been no use of the video in any civil litigation, law-enforcement training, or other official purpose; the video had not been provided to any other agency; and the video had been viewed by her as part of the criminal investigation of the shooting of Judge Bruzzese.
{¶ 57} The concerns expressed by the prosecutor if the video were disclosed to the public are not appreciably different from those that were expressed by the DRC in State ex rel. Rogers, 155 Ohio St.3d 545, 2018-Ohio-5111, 122 N.E.3d 1208. In both instances, the security-camera video captured a single incident in or near a public office and the emergency response to that incident. Regardless of whatever perceived limitations or vulnerabilities the prosecutor believes might be revealed by public viewing of the video,
{¶ 58} Moreover, the video here captured an incident and emergency response that occurred outside the public office on a public street. The incident and emergency response would have been and perhaps was observed by any number of bystanders, any of whom could likely have recorded at least some portion of these events on ubiquitous personal-communication devices. That this incident and response were readily observable to the public would seemingly undermine the concern that the video might disclose something that an eyewitness would not have seen.
{¶ 59} The second affidavit submitted by the prosecutor in her second supplemental response similarly failed to explain how the video qualified for exemption under
included a narrative description of the content of the recording by sequential video segments, at times identifying what a viewer could or could not see. The emergency response procedures that were actually followed by courthouse security personnel and other law-enforcement officers during this incident were said to be as set forth in the narrative description of the video content. The prosecutor additionally provided other courthouse security documents and standards and relied on the video content to identify the weaponry employed by the responding security personnel. Again, absent from this production was any explanation of how this video contained information that was “directly used for protecting or maintaining the security of a public office against attack, interference, or sabotage.”
{¶ 60} The prosecutor‘s third affidavit, filed with the third supplemental response, responded to the special master‘s request for certain technical information concerning the video, including its playback capabilities
{¶ 61} On this point, the court of appeals stated, “Although the affidavit is based on hearsay and is not from an office that provides security to the courthouse, [Welsh-Huggins] did not object to the affidavit on that basis. Therefore, the affidavit provides a basis for holding the video is a security record.” 2019-Ohio-3967, 133 N.E.3d 550, at ¶ 40.5
{¶ 62} The hearsay evidence of which the court of appeals said Welsh-Huggins did not object, however, was utterly beside the point. It concerned technical issues concerning the ability to export and view the video for which the prosecutor lacked knowledge. The ability to export or view the video does not determine whether it is a security record as defined under
{¶ 63} The prosecutor states that her “undisputed evidence, which was absolutely unopposed by any objection or contrary evidence, established, at the least, a probability that the subject video is a security record.” But under our precedent, it is not enough to say that a record is probably within a statutorily prescribed exemption: the public office or records custodian must show “that the requested record falls squarely within the exemption.” State ex rel. Cincinnati Enquirer v. Jones-Kelly, 118 Ohio St.3d 81, 2008-Ohio-1770, 888 N.E.2d 206, at paragraph two of the syllabus. And we must “construe
{¶ 64} In this case, however, the court of appeals failed to justify its determination that the video fell squarely within the security-records exemption. As indicated previously, the court of appeals, “[c]onsidering the information in the affidavit“—without specifying which of the prosecutor‘s three affidavits—held that the video was a security record. 2019-Ohio-3967, 133 N.E.3d 550, ¶ 41. But the appellate court‘s opinion does not specifically reflect any determination by that court that it was a security record as defined under
{¶ 65} Regardless of whether the court of appeals relied upon the content of the video alone or the prosecutor‘s description of what it showed, including the supposed “vulnerabilities of the security measures and the response to emergencies,” id. at ¶ 40, what the video shows does not prove
{¶ 66} The court of appeals here went even further, declaring that “[t]he security aspect of a response to an emergency situation is just as important as the security to prevent an actual incident” and that minor incidents can be “used to draw people out of buildings using the response as means to make individuals or places vulnerable. That is why responses to incidents are a security record. The manner in which law enforcement and emergency personnel respond to incidents at a public office are security records.” 2019-Ohio-3967, 133 N.E.3d 550, at ¶ 42.
{¶ 67} Aside from the fact that there was no evidence presented here to substantiate that broad assertion, it still does not answer how this video was directly used to protect or maintain the security of the public office. Moreover, the appellate court‘s reference to vulnerability assessments or emergency-response plans would appear to have been drawn from the security-record definitional standard applicable to acts of terrorism,
{¶ 68} We do not question the sincerity of the prosecutor‘s concerns that a public office‘s security measures and surveillance techniques are of critical importance or that disclosing information used to protect or maintain public office security against attack, interference, or sabotage arguably could diminish the effectiveness of those security measures and techniques. But ” ‘the General Assembly is the ultimate arbiter of public policy,’ ” State ex rel. WBNS TV, Inc. v. Dues, 101 Ohio St.3d 406, 2004-Ohio-1497, 805 N.E.2d 1116, ¶ 37, quoting State ex rel. Cincinnati Enquirer, Div. of Gannett Satellite Info. Network, Inc. v. Dupuis, 98 Ohio St.3d 126, 2002-Ohio-7041, 781 N.E.2d 163, ¶ 21. By ” ‘enumerating very narrow, specific exceptions to the public-records statute, the General Assembly has already weighed and balanced the competing public policy considerations between the public‘s right to know how its [government] agencies make decisions and the potential harm, inconvenience or burden imposed on the agency by disclosure.’ ” State ex rel. WBNS TV, Inc. at ¶ 36, quoting State ex rel. James v. Ohio State Univ., 70 Ohio St.3d 168, 172, 637 N.E.2d 911 (1994).
{¶ 69} Under
E. Issues Unresolved in the Court of Appeals
{¶ 70} Having determined that the video was exempt from disclosure as a security record, the court of appeals declined to address the prosecutor‘s eighth and ninth assignments of error, finding that they were moot. 2019-Ohio-3967, 133 N.E.3d 550, at ¶ 45-46. Because we are reversing the judgment of the court of appeals, we would ordinarily remand the case to address these issues. We decline to do so here.
{¶ 71} This case concerns a public-records request that was made over three years ago on August 21, 2017. And despite
{¶ 72} After receiving the prosecutor‘s third supplemental response addressing the special master‘s queries over certain technical information concerning the video, including its playback capabilities and its ability to be exported as a file without revealing any configuration functionality, the Court of Claims ordered the prosecutor to redact from the video the image of any peace officer who was authorized to have been working undercover or in plain clothes at the time the request was made. The prosecutor‘s eighth assignment of error contended that the trial court “erroneously and unlawfully required the Respondent to perform a service, by which the Respondent would have to create a new record, contrary to law.” (Emphasis sic.) The prosecutor‘s ninth assignment of error contended that the trial court “erroneously and unlawfully require the Respondent to perform a service, by which the Respondent would have to compile information from an existing record in order to create a new record, contrary to law.” (Emphasis sic.) These assignments of error lack merit.
{¶ 73}
{¶ 74} As to the prosecutor‘s contention that the trial court‘s order unlawfully requires it to create a new record,
to choose to have the pubic record duplicated * * * upon the same medium upon which the public office or person responsible for the public
record keeps it, or upon any other medium upon which the public office or person responsible for the public record determines that it reasonably can be duplicated as an integral part of the normal operations of the public office or person responsible for the public record.
If a record containing exempt and nonexempt information can, through reasonable computer programming, produce the requested output, the record is deemed to already exist for purposes of
{¶ 75} Because the video here clearly existed, the order to duplicate it with redactions that would conceal exempt information and disclose nonexempt information did not require the prosecutor to create a new record. The Court of Claims accordingly did not err by ordering that the video be made available subject to limited redactions for peace officer safety.
III. CONCLUSION
{¶ 76} A primary purpose of Ohio‘s public-records act is to enable the public to see how our government agencies work, whether good or bad. The General Assembly has set the parameters for this civic right. Our duty is to ensure that the law is enforced faithfully. If the video footage of this incident would reveal vulnerabilities in courthouse security in 2017—which we doubt—the answer is not to conceal them in 2020 but rather to ensure that they have been identified and corrected.
{¶ 77} We therefore hold that in a public-records-access proceeding brought pursuant to
Judgment reversed.
O‘CONNOR, C.J., and FRENCH, DEWINE, and STEWART, JJ., concur.
KENNEDY, J., concurs in judgment only, with an opinion joined by FISCHER, J.
KENNEDY, J., concurring in judgment only.
{¶ 78} Because I agree that appellee, the Jefferson County Prosecuting Attorney, has failed to demonstrate that security-camera footage of the shooting of a judge outside the courthouse falls within the security-record exception to the release of public records, I concur in the majority‘s judgment today. I write separately, however, to emphasize the simple rule of law that emanates from the court‘s decision.
{¶ 79} This case presents a narrow issue regarding whether security-camera footage can be a “security record” within the meaning of
{¶ 80} The Public Records Act,
{¶ 81}
{¶ 82} Although it might seem counterintuitive to question whether security-camera footage is a security record, the statutory definition focuses on how the public office uses the information in the record. It is not enough that the record contains information that is relevant to the security of a public office. It does not matter that the information in that record, if released, might make the public office vulnerable to attack, interference, or sabotage. It does not change the calculus that the record contains information that could result in a serious threat to life and limb. A record is not a security record if it does not contain information directly used to protect and maintain the security of the public office from attack, interference, or sabotage.
{¶ 83} In this case, the prosecuting attorney presented no evidence to show how the information in the security footage of the shooting is used to protect or secure any public office from attack, interference, or sabotage. Her affidavits are fatally defective because they are made “to the best of her information, knowledge and belief.” Witnesses are required to testify from personal knowledge, Evid.R. 602, and an affidavit made to the best of the affiant‘s knowledge, information, and belief does not satisfy this standard, see State ex rel. Esarco v. Youngstown City Council, 116 Ohio St.3d 131, 2007-Ohio-5699, 876 N.E.2d 953, ¶ 15-16; Bonacorsi v. Wheeling & Lake Erie Ry. Co., 95 Ohio St.3d 314, 2002-Ohio-2220, 767 N.E.2d 707, ¶ 26; Garner v. White, 23 Ohio St. 192, 195-196 (1872).
{¶ 84} There is no doubt that the security cameras and the livestream of video from them are used to safeguard the courthouse. But there is nothing in the record even suggesting that old security-camera footage in general, and the video of the shooting specifically, is used to protect or maintain the security of the courthouse. In fact, the prosecuting attorney admitted that “there has been no use of the subject video in any civil litigation, law enforcement training, or other official purpose.” If it has not been used for any official purpose, then it plainly has not been used to protect or maintain the security of a public office. It therefore is not a security record exempt from disclosure under the Public Records Act.
{¶ 85} The General Assembly has not crafted an exception to the release of a record based on the custodian‘s subjective view that the information that the record contains could be dangerous if placed in
{¶ 86} Nevertheless, the majority today reaches the right result, and I concur in its judgment reversing the judgment of the court of appeals and reinstating the judgment of the Court of Claims.
FISCHER, J., concurs in the foregoing opinion.
Graydon, Head & Ritchey L.L.P., John C. Greiner, and Darren W. Ford, for appellant.
Jane M. Hanlin, Jefferson County Prosecuting Attorney, for appellee.
Faruki, L.L.P, Erin E. Rhinehart, and Christopher C. Hollon, urging reversal for amici curiae Ohio Coalition for Open Government; Ohio Association of Broadcasters; Reporters Committee for Freedom of the Press; The E.W. Scripps Company; Gannet Co., Inc.; International Documentary Association; Investigative Reporting Workshop at American University; The Media Institute; MPA—The Association of Magazine Media; National Freedom of Information Coalition; The News Leaders Association, Society of Environmental Journalists; and Society of Professional Journalists.
Mathia H. Heck Jr., Montgomery County Prosecuting Attorney, and Nathaniel S. Peterson, Assistant Prosecuting Attorney, urging affirmance for amicus curiae Ohio Prosecuting Attorneys Association.