McDougald v. Greene (Slip Opinion) ( 2020 )

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
McDougald v. Greene, Slip Opinion No. 2020-Ohio-4268.]
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-4268
MCDOUGALD v. GREENE.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as McDougald v. Greene, Slip Opinion No. 2020-Ohio-4268.]
Mandamus—Public Records Act—R.C. 149.43—Security records are exempt from
disclosure under the Public Records Act—Writ denied.
(No. 2019-0677—Submitted February 11, 2020—Decided September 2, 2020.)
IN MANDAMUS.
________________
DEWINE, J.
{¶ 1} In this mandamus case, Jerone McDougald, who was an inmate at the
Southern Ohio Correctional Facility, requested copies of the prison’s most recent
shift-assignment duty rosters, documents that detailed the assignment of prison
guards to various posts within the prison. Larry Greene, the prison’s public-records
custodian, turned over the records, but he redacted almost all the information,
leaving only the page headings, dates, and shift-supervisor signature lines. We
must decide whether, by redacting almost all of the information in the documents,
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Greene violated his duties under Ohio’s Public Records Act, R.C. 149.43. As we
explain, the documents fall under the security-records exemption to the Public
Records Act, and as such, Greene had no legal duty to turn them over. Thus, we
deny McDougald’s request for a writ of mandamus.
Background
{¶ 2} In February 2019, McDougald sent Greene a prison kite requesting
the prison’s “most current [shift-assignment] duty rosters” for the first, second,
third, and fourth shifts at the prison. A few weeks later, Greene responded that he
would provide copies of the records if McDougald paid 40 cents for the copies.
But, Greene warned, the records would be heavily redacted, leaving only the “page
headings, dates, and shift supervisor signature lines.” Greene also wrote that “the
legal basis for these redactions are ‘security record,’ per Ohio Revised Code (RC)
149.433 (A) and (B) and ‘plans * * * for disturbance control,’ per RC
5120.21(D)(2).”1 (Ellipsis sic.) McDougald paid the cost and received the
documents, which were highly redacted, just as Greene had warned. McDougald
then filed the present mandamus action, arguing that the redactions were improper,
that he is entitled to unredacted copies of the records, and that he should be awarded
costs and statutory damages.
{¶ 3} We ordered Greene to submit unredacted copies of the shift-
assignment duty rosters for in camera review. 156 Ohio St. 3d 1469, 2019-Ohio-
2953, 126 N.E.3d 1184. Each roster is a two-page form. The first page divulges
the identity of the captain and lieutenant on duty, the names of officers assigned to
1. The dissent accuses this opinion of ignoring Greene’s statutory obligation to explain the legal
basis for the redaction of the requested records, see R.C. 149.43(B)(3). But this is an issue raised
by the dissent, not McDougald. McDougald’s complaint contains no such claim. Tellingly, the
only support the dissent cites for its assertion that McDougald raised the issue is an out-of-context
passage from McDougald’s merit brief. On fair reading, however, that passage relates only to
McDougald’s argument that Greene cannot meet his burden of proving that the security-records
exemption applies. Because McDougald has not raised any claim about the adequacy of Greene’s
explanation, we decline to address that issue.
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various locations around the prison, and the names of officers assigned as “escorts.”
The first page also lists names under categories such as “good days” and “other
absences.” At the bottom of the page are handwritten notes, which include things
like staff announcements, security reminders, or incident updates. The second page
provides totals for the number of officers assigned to “permanent posts” and
“additional posts.” It also provides tallies related to various reasons for absences
and indicates officer shortages or overages. The document is then signed by the
shift supervisor.
Analysis
{¶ 4} Under R.C. 149.43(B)(1), a public office is required to make copies
of public records available to any person on request and within a reasonable period
of time. A “public record” is a record “kept by any public office.” R.C.
149.43(A)(1). A party who believes that his request for a public record has been
improperly denied may file a mandamus action in order to compel production of
the record. R.C. 149.43(C)(1)(b). That is what McDougald has done here. For
McDougald to succeed in his mandamus action, he must demonstrate that he has a
clear legal right to the documents and that Greene has a clear legal duty to turn them
over. State ex rel. Cincinnati Enquirer v. Sage, 142 Ohio St. 3d 392, 2015-Ohio-
974, 31 N.E.3d 616, ¶ 10.
{¶ 5} The parties do not dispute that the prison is a public office subject to
the Public Records Act. But, relevant here, the Public Records Act contains several
exemptions that exclude certain records from disclosure. In his briefing, Greene
claims that two of those exemptions—the “infrastructure-records exemption,” R.C.
149.433(B)(2), and the “security-records exemption,” R.C. 149.433(B)(1), apply
here. As we explain, the records at issue are not infrastructure records but they are
security records. Because they are security records, they are exempt from
disclosure under the Public Records Act and Greene has no legal duty to turn them
over.
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Infrastructure Records
{¶ 6} We begin with the infrastructure-records exemption. R.C.
149.433(A) defines an infrastructure record as “any record that discloses the
configuration of critical systems including, but not limited to, communication,
computer, electrical, mechanical, ventilation, water, and plumbing systems,
security codes, or the infrastructure or structural configuration of a building.” But
the definition goes on to explain that infrastructure records do not include “a simple
floor plan that discloses only the spatial relationship of components of the
building.” Id.
{¶ 7} Greene does not meaningfully explain how the assignment of guards
to specific areas of the prison satisfies this statutory definition. And it is hard to
see how he could. It is not even facially plausible to think that guard assignments
constitute the “configuration of a critical system,” id. And guard locations have
little similarity to the systems that the statute identifies as examples that fall under
this exemption—communication, computer, electrical, mechanical, ventilation,
water, and plumbing systems. Nor does the assignment of guards within a building
count as relating to the “structural configuration of a building.” Guards, after all,
are not part of the building.
{¶ 8} Nevertheless, Greene insists that the documents showing the location
of the guards are infrastructure records based on an isolated bit of dicta from State
ex rel. Rogers v. Dept. of Rehab. & Correction, 155 Ohio St. 3d 545, 2018-Ohio-
5111, 122 N.E.3d 1208, ¶ 12. Rogers addressed whether security-camera footage
of a use-of-force incident was exempt under the infrastructure-records exemption.
This court concluded that because the video showed no more than what could have
been gleaned from a simple floor plan, the footage was not an infrastructure record.
But this court went on to comment that the footage did not “show the location of
any fire or other alarms, correctional-officer posts, or the configuration of any other
critical system.” (Emphasis added.) Id. From this isolated reference to
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“correctional-officer posts,” Greene would have us conclude that a document
identifying the location of guards in a prison must be an infrastructure record. But
Rogers provides no analysis of how or when correctional-officer posts constitute
infrastructure records. And picking up isolated bits of dicta and running with them
without returning to the statutory text can lead to legal gobbledygook, in much the
same way that a game of telephone can lead to miscommunication. Because there
is no basis in the statutory text for concluding that the duty rosters are infrastructure
records, we reject Greene’s argument.
Security Records
{¶ 9} Next, we turn to the security-records exemption. Among the items
exempt from disclosure are “security records,” which includes “[a]ny record that
contains information directly used for protecting or maintaining the security of a
public office against attack, interference, or sabotage.” R.C. 149.433(A)(1). It is
clear from the face of the documents that this exemption applies to the records at
issue here. The shift-assignment duty rosters detail the identity and location of
guards posted throughout the prison. One need not be too creative to see how this
is information that could be used to plan an escape or an attack on the prison or to
aid in the smuggling in of contraband. Where the guards are posted, which guards
are assigned to a particular post, and how many there will be are almost certainly
among the first things a person planning an attack or escape or trying to sneak
something in would want to know. The information could reveal potential areas of
lessened security. And the post-assignment information could be used to target
individual guards who might be thought easier to overcome or susceptible to
improper influence. The obvious correlative is that information about the
movements of a prison’s guards would be used by the prison to ensure the security
of the facility. We thus have no problem concluding that the shift-assignment duty
rosters are security records for purposes of the Public Records Act because they
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contain information “directly used for protecting or maintaining the security” of the
prison.
{¶ 10} To be sure, Greene’s argument on this front is cursory, at best.
Indeed, it consists of a single sentence asserting that the exemption applies. And
his supporting affidavit doesn’t do much to aid his argument. But for the fact that
the relevance of the records to the security of the prison is apparent from the face
of the documents, we might well reach a different result in this case. But as we
have suggested in the past, a public-records custodian may meet his burden when
the stated exemption upon which he relies is “based on risks that are * * * apparent
within the records themselves,” Rogers at ¶ 15.
{¶ 11} This court’s decision in State ex rel. Besser v. Ohio State Univ., 89
Ohio St. 3d 396, 732 N.E.2d 373 (2000), is illustrative. Besser dealt with a request
submitted to a state university for records regarding the university’s acquisition of
a hospital. The university asserted that the records constituted trade secrets and
were protected from disclosure. This court found that the conclusory statements in
the affidavit presented by the university were insufficient to establish that the
exemption applied, and the court ordered the university to disclose most of the
requested records.
{¶ 12} The dissent relies on Besser for the proposition that a custodian’s
failure to provide additional evidentiary support for a claimed public-records
exemption mandates the disclosure of the records. But what the dissent fails to
mention is that the evidentiary deficiencies notwithstanding, the court in Besser
found that a limited portion of the records constituted trade secrets and were
therefore exempt from disclosure, id. at 402, 404. Contrary to the dissent’s claims,
the Besser court did not consider additional evidence regarding the applicability of
the trade-secret exemption to these documents. The court simply concluded that
the documents “constitute trade secrets and are therefore exempt from disclosure
under R.C. 149.43,” id. at 404; see also id. at 402 (finding that a portion of the
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requested record “satisfie[d] the definition of a trade secret”). In other words, the
applicability of the exemption was manifested by the documents themselves. Id. at
402; see also Rogers, 155 Ohio St. 3d 545, 2018-Ohio-5111, 122 N.E.3d 1208, at
¶ 15, citing Besser.
{¶ 13} That rule makes sense, especially in this case. After all, the point of
the security-records exemption is to protect other important public interests such as
the safety and security of the public. And, at least when the applicability of the
exemption is obvious from the face of the documents, this court will not sacrifice
those interests simply because a party should have done a better job setting forth
the obvious.
Conclusion
{¶ 14} For the foregoing reasons, we deny McDougald a writ of mandamus
ordering Greene to disclose the records to him. Accordingly, we also deny
McDougald’s request for court costs and statutory damages. McDougald’s motion
to amend his complaint to correct the caption is denied as moot.
Writ denied.
O’CONNOR, C.J., and FRENCH, FISCHER, and DONNELLY, JJ., concur.
STEWART, J., concurs in judgment only.
KENNEDY, J., dissents, with an opinion.
_________________
KENNEDY, J., dissenting.
{¶ 15} I dissent because I must. To meet its burden regarding the
applicability of an exception to Ohio’s Public Records Act, R.C. 149.43, a public
office must prove that the requested records “fall squarely within [an] exception.”
State ex rel. Cincinnati Enquirer v. Jones-Kelley, 118 Ohio St. 3d 81, 2008-Ohio-
1770, 886 N.E.2d 206, ¶ 10. Further, the plain and unambiguous language of R.C.
149.43 provides a specific process for a public office to follow when denying a
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public-records request and when defending that denial in a requester’s mandamus
action.
{¶ 16} When a public-records request is denied, R.C. 149.43(B)(3) requires
a public office to “provide the requester with an explanation, including legal
authority, setting forth why the request was denied.” If the requester subsequently
files a petition for a writ of mandamus, the public office may “rely[] upon additional
reasons or legal authority in defending” the mandamus action. Id. However, the
public office may not rest on assertions in a brief or conclusory statements in an
affidavit, but rather it bears the burden to affirmatively establish through specific,
relevant evidence that an exception to disclosure applies. See State ex rel. Besser
v. Ohio State Univ., 89 Ohio St. 3d 396, 398, 400-401, 732 N.E.2d 373 (2000).
{¶ 17} Here, respondent, Larry Greene, the public-records custodian at the
Southern Ohio Correctional Facility (“SOCF”), denied the public-records request
of relator, Jerone McDougald, but he failed to comply with the statutory process
for explaining a refusal and ultimately failed to argue and present evidence to prove
that the records sought by McDougald fit squarely within an exception to disclosure
under R.C. 149.43.
{¶ 18} In this case, Greene gave an insufficient and imprecise response
when he initially denied the request from McDougald. And when McDougald filed
a petition for a writ of mandamus in this court, Greene abandoned his original legal
theory—that the records are security records—for another theory—that the records
are infrastructure records. Even the majority agrees that the new theory fails.
{¶ 19} But the majority, playing the roles of evidentiary witness, advocate,
and judge, rescues Greene, resuscitating and expanding on his original legal theory,
presenting its own evidence showing how information in the shift-assignment duty
rosters might be used to jeopardize the prison’s security, and declaring that Greene
has no legal duty to turn over the unredacted records to McDougald. But how
McDougald might use the information is beside the point. Whether the security-
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record exception of R.C. 149.433(A)(1) applies depends on whether SOCF itself
“directly use[s]” the information contained in the record to “protect * * * or
maintain * * * [its] security * * * against attack, interference, or sabotage,” id.
Because Greene has failed to provide any evidence about how the information
contained in the shift-assignment duty rosters fits within R.C. 149.433(A)(1) or to
make a meaningful case for the applicability of the security-records exception in
this court, we should limit our review to whether the records that McDougald
requested fit squarely within the infrastructure-records exception. Since the records
are not infrastructure records, I would grant McDougald a writ of mandamus and
order Greene to provide McDougald with unredacted copies of the records.
Therefore, I dissent.
Facts
{¶ 20} In this case, McDougald sought SOCF’s shift-assignment duty
rosters for the first, second, third, and fourth shifts; he made his request in February
2019 and asked for the “most current” shift-assignment duty rosters. Greene
responded to the request with shift-assignment duty rosters from March 7, 2019,
that were nearly completely redacted. Only the number of the shift, the date, and
the shift supervisor’s signature were visible on all four shift-assignment documents.
In a letter sent as part of his response, Greene explained the redactions in one
sentence: “The legal basis for these redactions are ‘security record,’ per Ohio
Revised Code (RC) 149.433(A) and (B), and ‘plans * * * for disturbance control,’
per RC 5120.21(D)(2).” (Ellipsis sic.) In Greene’s answer to McDougald’s petition
for a writ of mandamus, Greene did not mention R.C. 149.433 or 5120.21.
Moreover, in his merit brief, Greene fails to mention R.C. 5120.21(D)(2), and he
makes just a single, unfocused statement pertaining to the security-records
exception: “Furthermore, by the very definition asserted by Relator in his Brief, the
requested documents constitute a security record pursuant to R.C. 149.433.”
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Instead, Greene’s only developed argument is that the shift-assignment duty rosters
are infrastructure records.
The shift-assignment duty rosters are not infrastructure records
{¶ 21} I agree with the majority that the shift-assignment duty rosters are
not infrastructure records. Greene cites State ex rel. Rogers v. Dept. of Rehab. &
Corr., 155 Ohio St. 3d 545, 2018-Ohio-5111, 122 N.E.3d 1208, for the proposition
that a list of correctional-officer posts qualifies as an infrastructure record and
therefore is exempt from disclosure under R.C. 149.433(B)(2). In Rogers, we
decided whether a prison’s video footage of a use-of-force incident from a security
camera was a public record. The Department of Rehabilitation and Correction
argued that the video disclosed the configuration or network of security cameras
and therefore qualified as an infrastructure record and was exempt from disclosure.
We rejected that argument because the video footage did not “reveal the location
of any video cameras other than the one that recorded the incident at issue.” Id. at
¶ 12. We further stated, “Nor does it show the location of any fire or other alarms,
correctional-officer posts, or the configuration of any other critical system.” Id.
That sentence should not be mistaken for this court holding that video footage
depicting the location of correctional-officer posts qualifies as an infrastructure
record. We were not facing the issue whether a video depiction of the layout of the
entire system of correctional-officer posts constituted an infrastructure record;
rather, the opinion pointed out how limited the area was that had been shown in the
footage that the inmate was requesting. Rogers decided only that the video footage
in that case was not an infrastructure record. Any suggestion in Rogers that video
footage depicting the layout of every correctional-officer post qualifies as an
infrastructure record was merely dicta. In this case, we must decide the specific
issue preserved and argued: whether the shift-assignment duty rosters containing
the names and locations of some correctional-officer posts qualify as infrastructure
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records. Based on the plain and unambiguous language of R.C. 149.433(B)(2), they
do not.
{¶ 22} An infrastructure record is defined as “any record that discloses the
configuration of critical systems including, but not limited to, communication,
computer, electrical, mechanical, ventilation, water, and plumbing systems,
security codes, or the infrastructure or structural configuration of a building.” R.C.
149.433(A). The key word in that definition is configuration. To be exempt from
disclosure as an “infrastructure record,” the document sought must disclose a
“configuration” of a critical system.
{¶ 23} The General Assembly did not define the term configuration, but it
did say that an infrastructure record “does not mean a simple floor plan that
discloses only the spatial relationship of components of the building.” Id.
Therefore, as used in R.C. 149.433(A), for a document to fall within the meaning
of the infrastructure-record exception, a document must show an arrangement,
layout, or design of a critical system beyond a simple floor plan. Indeed, the shift-
assignment duty rosters at issue here do not.
{¶ 24} The rosters are just that—rosters. They are a list of names and
correctional-officers posts, some stated in full and some labeled by abbreviations.
There is no configuration of correctional-officer posts or the layout, design, or
arrangement of correctional-officer posts within the structure of SOCF or its
grounds. Therefore, the shift-assignment duty rosters at issue here are public
records and not exempt from production as infrastructure records under R.C.
149.433(B)(2). Absent evidence that the redacted material falls within another
exception, any redactions are improper. And here, because Greene fails to advance
any other argument or submit any evidence to support the redactions he made, those
redactions are improper.
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Greene has not demonstrated that the shift-assignment duty rosters are security
records or plans for disturbance control
{¶ 25} If a record “contains information directly used for protecting or
maintaining the security of a public office against attack, interference, or sabotage,”
it qualifies as a security record under R.C. 149.433(A)(1) and therefore is not a
public record under R.C 149.433(B)(1). Therefore, I agree with the majority that
when a record meets the definition of a security record, it is not a public record and
is exempt from production. But Greene has not demonstrated that the shift-
assignment duty rosters meet the definition of “security records” under R.C.
149.433(A).
{¶ 26} In Greene’s letter to McDougald stating his reasons for the
redactions, Greene claimed that the redactions were permissible because the records
are security records pursuant to R.C. 149.433(A) and (B) and also that the records
are “ ‘plans * * * for disturbance control,’ per RC 5120.21(D)(2).” (Ellipsis sic.)
Greene’s bald assertion contained no statutorily required explanation. In his brief
to this court, Greene did not raise R.C. 5120.21(D)(2) at all; therefore, he waived
any argument that the shift-assignment duty rosters are plans for disturbance
control.
{¶ 27} As far as the security-records exception is concerned, Greene gave
it a cursory mention in one line of his merit brief, concentrating instead on the
infrastructure-records exception. As set forth above, Greene’s sole argument was
a single sentence: “Furthermore, by the very definition asserted by the Relator in
his Brief, the requested documents constitute a security record pursuant to R.C.
149.433.” But, because McDougald’s brief contains no definition of security
record, this statement is peculiar at best.
{¶ 28} While the majority acknowledges the deficiencies in Greene’s brief,
it nevertheless rescues him by relying on a “suggestion”—not a holding—from
Rogers, 155 Ohio St. 3d 545, 2018-Ohio-5111, 122 N.E.3d 1208. The actual thrust
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of this portion of the Rogers opinion is that when the government claims an
exception to the release of public records, the government must prove the
applicability of the exception. But the majority points to an aside that we made in
Rogers to support its point. In Rogers, we said:
In another recent public-records case, we held that records
documenting direct threats against the governor kept by the
Department of Public Safety met the definition of “security records”
under R.C. 149.433(A). However, we cautioned that the exception
must be proved in each case: “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 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.” [State ex rel.
Plunderbund Media, L.L.C. v. Born, 141 Ohio St. 3d 422, 2014-
Ohio-3679, 25 N.E.3d 988,] ¶ 29. And when a public office claims
an exception based on risks that are not apparent within the records
themselves, the office must provide more than conclusory
statements in affidavits to support its claim. See State ex rel. Besser
v. Ohio State Univ., 89 Ohio St. 3d 396, 400-401, 732 N.E.2d 373
(2000).
Rogers at ¶ 15.
{¶ 29} In Rogers, the point being made was that conclusory statements are
not enough to prove an exception to disclosure of a public record. The majority
first states that in Rogers, this court “suggested” that “a public-records custodian
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may meet his burden when the stated exemption upon which he relies is ‘based on
risks that are * * * apparent within the records themselves,’ Rogers at ¶ 15.”
(Ellipsis added in majority opinion.) Majority opinion at ¶ 10. But several
paragraphs later, the majority opinion turns that suggestion into a rule. Id. at ¶ 13
(“That rule makes sense, especially in this case”).
{¶ 30} But taking the “suggestion” language outside the context of Besser
is disingenuous. The majority cites no case in which this court has ever held that
the applicability of the security-records exception applies when risks are apparent
from the face of the records. Certainly, Besser does not stand for that proposition.
In Besser, the Ohio State University (“OSU”) responded to a public-records request
and provided some responsive records but withheld others due to the belief that the
withheld records were exempt as trade secrets, intellectual-property records, and
attorney-client privileged material—a security-records exception was not cited as a
reason for withholding the records. Id. at 399. When the public-records requester
challenged OSU’s claimed exemptions, OSU made an argument before this court
that the records could be withheld because they were either trade secrets or
intellectual-property records. Id. at 377-381. We concluded that “OSU’s reliance
on conclusory affidavit statements is insufficient to satisfy its burden to identify
and demonstrate that the records withheld and portions of records redacted are
included in categories of protected information under R.C. 1333.61(D).” Id. at 404.
This court found that of all the documents sought, just two lists of doctors’ names
were trade secrets. Id. at 402, 404. Citing a previous decision and a treatise, this
court determined that due to the lists at issue in Besser being similar to a business’
customer lists, the doctors’ names were “presumptively” trade secrets, id. at 402,
but OSU still had to show that it took “measures to prevent [the] disclosure [of the
lists] in the ordinary course of business to persons other than those selected by the
owner,” id. at 402. That the lists were trade secrets was not apparent from the
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documents themselves, but required additional evidence regarding OSU’s
treatment of the records.
{¶ 31} Our analysis in Besser, 89 Ohio St. 3d 396, 732 N.E.2d 373, focused
on OSU’s failure to satisfy its burden to prove that an exception to disclosure
applied. OSU bore the burden of proof, and it failed to carry its burden. But here,
in contrast, the majority flips the burden of proof and relieves Greene of having to
prove that the security-records exception applies. In Besser, OSU at least presented
a full argument and an affidavit, albeit conclusory, to support its claim that specific
exceptions applied. But that was not enough in that case. Here, Greene has neither
made even a partial argument that the security-records exception applies nor has he
submitted evidence supporting his single-sentence reference to the security-records
exception.
{¶ 32} In his brief before this court, Greene fails to explain why the
definition of a security record is applicable to the shift-assignment duty rosters
beyond a single sentence. And as recognized by the majority, Greene’s affidavit
does nothing to further that “argument.” Accordingly, this court has no evidence
before it as to why the shift-assignment duty rosters are security records. Yet, in
contrast to the decisions in Rogers, 155 Ohio St. 3d 545, 2018-Ohio-5111, 122
N.E.3d 1208, and Besser, in which this court held the public offices to the burden
of proof, the majority allows Greene to succeed in asserting a public-records
exception, notwithstanding his failure to argue and prove with supporting evidence
that the exception applies. The majority turns the burden of proof on its head.
{¶ 33} While the majority’s ultimate decision may be well-intended, the
unintended consequences of this case, especially its new rule, cannot be overstated.
This case eviscerates Ohio’s Public Records Act and the burden of proof placed on
a public-records custodian to delineate the specific exception that applies and why.
This case also holds that a public-records custodian need not specifically argue an
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exception before us or produce evidence upon which we must rely to determine
whether an exception applies.
{¶ 34} Inherent in the fundamental policy of Ohio’s Public Records Act is
the promotion of an open government, not a restriction of it. State ex rel. The Miami
Student v. Miami University, 79 Ohio St. 3d 168, 171, 680 N.E.2d 956 (1997).
Consistent with this policy is this court’s longstanding determination that
“[e]xceptions to disclosure must be strictly construed against the public record
custodian, and the burden to establish an exception is on the custodian.” State ex
rel. McGowan v. Cuyahoga Metro. Hous. Auth., 78 Ohio St. 3d 518, 519, 678
N.E.2d 1388 (1997).
{¶ 35} Greene needed to do more. A “department * * * 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 of R.C. 149.433.” Plunderbund, 141 Ohio St. 3d 422, 2014-Ohio-3679,
25 N.E.3d 988, at ¶ 29. Greene fails to provide any substantive reason or
explanation why the security-records exception should apply. Greene did not even
name which of the three categories of security records listed in R.C. 149.433(A)
the redacted material fits into—i.e., security of a public office, R.C. 149.433(A)(1),
preventing terrorism (which also includes three additional subcategories of security
records), R.C. 149.433(A)(2)(a), (b), or (c), or emergency management, R.C.
149.433(A)(3).
{¶ 36} The majority selects a rationale for Greene, deciding that the records
requested contained “information directly used for protecting or maintaining the
security of a public office against attack, interference, or sabotage” under R.C.
149.433(A)(1), and it then presents its own evidence to support it. The majority
says that the rosters have relevance to the security of the prison—however, the
word “relevance,” majority opinion at ¶ 10, does not appear in R.C. 149.433(A)(1)
and therefore relevance to security does not establish that the security-records
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exception applies. And although the majority focuses on how “this is information
that could be used to plan an escape or an attack on the prison or to aid in the
smuggling in of contraband,” majority opinion at ¶ 9, the applicability of R.C.
149.433(A)(1) turns on a factual question regarding how the shift-assignment duty
rosters are directly used by the prison, not on how the rosters could be put to use
by third parties. We cannot assume that those records are directly used for
maintaining security when Greene himself has not bothered to make that argument
or submit any proof of it.
{¶ 37} The majority suggests that McDougald did not raise the issue of
Greene’s failure to meet his obligation under R.C. 149.43(B)(3) to “provide the
requester with an explanation, including legal authority, setting forth why the
request was denied.” But McDougald sufficiently raised the issue when he argued
that “a department of state government cannot simply lab[el] a record a security
record within the meaning of R.C. 149.433 and R.C. 5120.21(D) without showing
that it falls within an express provision of the statu[te].” In the end, the majority
just ignores the language of R.C. 149.43(B)(3) requiring the public office or person
responsible for the requested public record to provide an explanation for the denial
of a public-records request. And the public-records custodian has the burden of
proving that the requested records “fall squarely within [an] exception.” Jones-
Kelley, 118 Ohio St. 3d 81, 2008-Ohio-1770, 886 N.E.2d 206, at ¶ 10. Greene
simply has not done that, and the Public Records Act does not give this court the
authority to do it for him.
{¶ 38} Therefore, I would fully grant McDougald a writ of mandamus and
order Greene to provide him with unredacted copies of the shift-assignment duty
rosters from March 7, 2019.
Statutory damages
{¶ 39} I would hold that McDougald meets the initial statutory criteria for
an award of statutory damages but that he should not ultimately receive any
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statutory damages. To be eligible for an award of statutory damages, the requester
must transmit the public-records request by “hand delivery, electronic submission,
or certified mail.” R.C. 149.43(C)(2).2 “Hand delivery” is not defined in the
statute. Greene admits that he received McDougald’s request through the prison’s
kite system. “A ‘kite’ is written by an inmate to a member of the prison staff and
is ‘a means for inmates to contact staff members inside [an] institution.’ ” State ex
rel. Martin v. Greene, 156 Ohio St. 3d 482, 2019-Ohio-1827, 129 N.E.3d 419, ¶ 3,
fn. 1, quoting State v. Elmore, 5th Dist. Richland No. 16CA52, 2017-Ohio-1472,
¶ 15. Because I would hold that a public-records request made by kite constitutes
hand delivery, I would hold that McDougald is eligible to receive statutory
damages. See State ex rel. McDougald v. Greene, ___ Ohio St.3d. ___, 2020-Ohio-
3686, ___ N.E.3d ___, ¶ 60 (Kennedy, J., dissenting).
{¶ 40} Although McDougald is eligible to receive an award of statutory
damages because he transmitted his request by hand delivery, that does not end the
inquiry. Pursuant to R.C. 149.43(C)(2), a person who makes a public-records
request “shall be entitled to recover * * * statutory damages * * * if a court
determines that the public office or the person responsible for public records failed
to comply with an obligation in accordance with” R.C. 149.43(B). R.C.
149.43(B)(3) provides that “[i]f a request is ultimately denied, in part or in whole,
the public office or the person responsible for the requested public record shall
provide the requester with an explanation, including legal authority, setting forth
why the request was denied.” A records custodian bears the burden of establishing
the applicability of an exception to R.C. 149.43 and “must prove that the requested
records ‘fall squarely within the exception.’ ” Rogers, 155 Ohio St. 3d 545, 2018-
2. Public-records requests are governed by the version of R.C. 149.43 that was in effect at the time
that the request was made. State ex rel. Cordell v. Paden, 156 Ohio St. 3d 394, 2019-Ohio-1216,
128 N.E.3d 179, ¶ 11. The version of the Public Records Act that governs McDougald’s requests,
R.C. 149.43 as amended by 2018 Sub.H.B. No. 312, took effect in November 2018.
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January Term, 2020
Ohio-5111, 122 N.E.3d 1208, at ¶ 7, quoting Jones-Kelley, 118 Ohio St. 3d 81,
2008-Ohio-1770, 886 N.E.2d 206, at ¶ 10.
{¶ 41} A redaction is considered a denial as to the redacted information.
R.C. 149.43(B)(1). Here, Greene denied McDougald’s public-records request by
heavily redacting the shift-assignment duty rosters. After the redactions, the only
information that remained was the page headings, date, and shift-supervisor
signature lines. Because Greene fails to meet his burden of proving that the
redacted material falls within any of the exceptions he relied upon to redact the
information, he failed to comply with the requirements of R.C. 149.43(B)(3).
Therefore, McDougald qualifies for an award of statutory damages.
{¶ 42} Statutory damages are calculated at the rate of $100 “for each
business day during which the public office or person responsible for the requested
public records failed” to comply with an obligation under R.C. 149.43(B), starting
from the date on which the requester filed a complaint for a writ of mandamus, with
a maximum award of $1,000. R.C. 149.43(C)(2).
{¶ 43} However, a court may reduce or decline to award statutory damages
if it finds that based on the law as it existed at the time the public office allegedly
failed to comply with R.C. 149.43, “a well-informed public office or person
responsible for the requested public records reasonably would believe that the
conduct * * * did not constitute a failure to comply * * * with [R.C. 149.43(B)],”
R.C. 149.43(C)(2)(a), and that a “well-informed public office or person responsible
for the requested public records reasonably would believe that the [redaction] * * *
would serve the public policy that underlies the authority that is asserted,” R.C.
149.43(C)(2)(b).
{¶ 44} Based on those reduction factors, I would deny McDougald’s
request for statutory damages because a well-informed person responsible for the
requested public records here could have reasonably believed that the shift-
assignment duty rosters qualify as security records under R.C. 149.433(A)(1) and
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are therefore not public records, satisfying R.C. 149.43(C)(2)(a). Further, a well-
informed person responsible for the requested public records would believe that
withholding the records would serve the public policy behind the security-records
exception, satisfying R.C. 149.43(C)(2)(b).
Conclusion
{¶ 45} Through a linguistic sleight of hand, the majority creates a
“suggestion” from one of our cases and converts it into a new “rule” not found in
Ohio’s Public Records Act that an exception to the disclosure of a public record
might apply based on perceived risks of how a requester might use the information
in the record. But that new “rule” runs contrary to the plain language of R.C.
149.43(B)(3), which places the burden on the public-records custodian to justify
the denial of a public-records request in all cases. The majority’s holding therefore
encourages public offices to deny public-records requests without sufficient
information explaining why a statutory exception applies, and Greene is permitted
to prevail, even though he has not complied with his statutory obligation to “provide
the requester with an explanation, including legal authority, setting forth why the
request was denied,” R.C. 149.43(B)(3).
{¶ 46} But more distressing, the majority abandons its “role of neutral
arbiter of matters the parties present,” Greenlaw v. United States, 554 U.S. 237,
243, 128 S. Ct. 2559, 171 L. Ed. 2d 399 (2008), by injecting new arguments into this
case and relying on “evidence” that does not exist. “ ‘The premise of our
adversarial system is that appellate courts do not sit as self-directed boards of legal
inquiry and research, but [preside] essentially as arbiters of legal questions
presented and argued by the parties before them.’ ” Natl. Aeronautics & Space
Administration v. Nelson, 562 U.S. 134, 147, 131 S. Ct. 746, 178 L. Ed. 2d 667
(2011), fn. 10, quoting Carducci v. Regan, 714 F.2d 171, 177 (D.C.Cir.1983). As
Judge Richard Posner once explained, “we cannot write a party’s brief, pronounce
ourselves convinced by it, and so rule in the party’s favor. That’s not how an
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January Term, 2020
adversarial system of adjudication works.” Xue Juan Chen v. Holder, 737 F.3d
1084, 1085 (7th Cir.2013).
{¶ 47} Yet here, the majority willingly accepts the roles of being an
evidentiary witness, advocate, and judge in providing an explanation for Greene’s
redactions and purporting to prove the validity of those redactions using its own
evidence to decide how McDougald could use the information in the shift-
assignment duty rosters. That argument and evidence, by itself, is insufficient,
because the security-record exception would apply in this case only if SOCF
actually uses the information in the shift-assignment duty rosters to protect or
maintain the security of its facilities. Because Greene failed to argue and present
evidence to prove that shift-assignment duty rosters fit squarely within that
exception or any other, I would order Greene to provide unredacted copies of the
shift-assignment duty rosters to McDougald. But I would not award McDougald
statutory damages.
_________________
Jerone McDougald, pro se.
Dave Yost, Attorney General, and Jared S. Yee, Assistant Attorney General,
for respondent.
_________________
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