State ex rel. Cincinnati Enquirer v. Craig

[Cite as State ex rel. Cincinnati Enquirer v. Craig, 132 Ohio St. 3d 68, 2012-Ohio-1999.]
THE STATE EX REL. CINCINNATI ENQUIRER, APPELLANT, v. CRAIG, CHIEF,
APPELLEE.
[Cite as State ex rel. Cincinnati Enquirer v. Craig,
132 Ohio St. 3d 68, 2012-Ohio-1999.]
Public records—R.C. 149.43(A)(1)(v)—Constitutional right of privacy—Personal
information identifying police officers who are under threat of criminal
retaliation.
(No. 2011-1798—Submitted April 4, 2012—Decided May 10, 2012.)
APPEAL from the Court of Appeals for Hamilton County,
No. C-100820, 2011-Ohio-4498.
__________________
Per Curiam.
{¶ 1} This is an appeal from a judgment denying the claim of appellant, the
Cincinnati Enquirer, for a writ of mandamus to compel appellee, James E. Craig,1 the
chief of police of the city of Cincinnati, to provide access to certain records pursuant
to R.C. 149.43, the Public Records Act. Because the requested records are exempt
from disclosure, we affirm the judgment of the court of appeals.
Facts
{¶ 2} The Iron Horsemen is a nationwide outlaw motorcycle gang that has
been based in Cincinnati for about 40 years. They deal in drugs, weapons, and
prostitution. In the 1980s, threats and tension between the Iron Horsemen and the
Cincinnati police were prevalent. One of the members of the Iron Horsemen had
created a 12-gauge shotgun within his motorcycle handlebar to threaten police
1. This case was originally instituted against former Cincinnati police chief Thomas Streicher, who
has since retired. Craig, who is Streicher’s successor, is substituted as the appellee in this appeal. See
State ex rel. Everhart v. McIntosh, 115 Ohio St. 3d 195, 2007-Ohio-4798, 874 N.E.2d 516, ¶ 6; Civ.R.
25(D)(1); www.cincinnati-oh.gov/police/pages/-5040-/.
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officers. Other members had threatened an officer and his family with weapons at a
remote site where he was building a home. Ultimately, the Iron Horsemen became
less confrontational, but the Cincinnati police continued to monitor the gang’s
activities.
{¶ 3} Recently, a rival outlaw motorcycle gang, the Detroit Highwaymen,
has tried to establish an operations base in Cincinnati, resulting in conflict between
the two gangs. There have been “takeovers” of bars in which members of one of the
gangs would enter, close the bar, detain everybody, and determine whether anyone
was a rival gang member. They would then threaten and beat rival gang members
who were there.
{¶ 4} On September 18, 2010, an officer on his way to work observed
motorcycles outside JD’s Honky Tonk bar. He saw several Iron Horsemen wearing
their colors and thought that a takeover of the bar was in progress. Approximately
14 police officers, including one or two uniformed officers, responded to his call,
and a gunfight erupted. Two police officers were wounded, and one of the Iron
Horsemen—the group’s national enforcer—was killed. One of the Iron Horsemen
pleaded guilty to a weapons charge, but no other charges were filed.
{¶ 5} Shortly afterward, Thomas Streicher, then Cincinnati police chief,
received information that there was a good possibility that Iron Horsemen members
would target police—particularly those officers involved in the bar fight—and that
the threat of retaliation for the death of the national enforcer could last indefinitely.
According to Streicher, based 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. One of the two officers wounded had been shot in the right leg by the
enforcer, and the bullet had traveled through his leg before becoming lodged in his
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hip, where it remains, still causing pain. The other officer had been shot a few
inches to the left of his lower spine and still experiences pain at the site of the scar.
{¶ 6} In September and October 2010, reporters for the Cincinnati Enquirer
requested that the police department provide the newspaper with certain records
related to the September 18, 2010 shootout at JD’s Honky Tonk bar, including the
names of the two police officers shot, their personnel files, and an unredacted copy
of the incident report of the shootout. Streicher denied the requests insofar as the
Enquirer sought names and identifying information regarding the officers involved in
the shootout:
We are not releasing the names of any of the officers involved
in this incident due to the sensitive nature of their assignments and the
sensitive nature of the investigation. I have been meeting with an
attorney who represents the national president of the Iron Horsem[e]n
Motorcycle Club regarding this incident to try to ensure that no other
incidents of violence or retribution will occur as a result of the
confrontation at J.D.’s. That being said, it is impossible for any of us
to guarantee that any and all individuals will comply with this
direction therefore; we are taking all necessary precautions to help
protect the lives of any and all police officers; and their families, in
the entire region.
{¶ 7} An attorney for the city specified that the city was willing to provide
the Enquirer with redacted copies of the requested records.
{¶ 8} On December 22, 2010, the Enquirer filed a complaint in the Court of
Appeals for Hamilton County for a writ of mandamus to compel the police chief to
make the requested records available for inspection and copying. The Enquirer also
sought an award of attorney fees. In its memorandum in support, the Enquirer
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admitted that it did not object to certain redactions, including the home addresses of
the police officers. The police chief submitted an answer denying the Enquirer’s
entitlement to the writ, and the parties submitted stipulated evidence, including
depositions of Police Chief Streicher, which included portions that were sealed.
{¶ 9} On September 9, 2011, the court of appeals denied the writ and the
request for attorney fees.
{¶ 10} This cause is now before the court upon the Enquirer’s appeal as of
right.
Legal Analysis
Mandamus
{¶ 11} “Mandamus is the appropriate remedy to compel compliance with
R.C. 149.43, Ohio’s Public Records Act.” State ex rel. Physicians Commt. for
Responsible Medicine v. Ohio State Univ. Bd. of Trustees, 108 Ohio St. 3d 288, 2006-
Ohio-903, 843 N.E.2d 174, ¶ 6; R.C. 149.43(C)(1). “We construe the Public
Records Act liberally in favor of broad access and resolve any doubt in favor of
disclosure of public records.” State ex rel. Rocker v. Guernsey Cty. Sheriff’s Office,
126 Ohio St. 3d 224, 2010-Ohio-3288, 932 N.E.2d 327, ¶ 6.
{¶ 12} “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, paragraph two of the syllabus.
Constitutional Right of Privacy
{¶ 13} The police chief asserts, and the court of appeals held, that the
requested identifying information of the wounded police officers was excepted from
disclosure based on the constitutional right of privacy. R.C. 149.43(A)(1)(v) excepts
“[r]ecords the release of which is prohibited by state or federal law” from the
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definition of “public record.” “Constitutional privacy rights are ‘state or federal law’
under R.C. 149.43(A)(1)(v) * * *.” State ex rel. Plain Dealer Publishing Co. v.
Cleveland, 106 Ohio St. 3d 70, 2005-Ohio-3807, 831 N.E.2d 987, ¶ 58; see also State
ex rel. Beacon Journal Publishing Co. v. Akron, 70 Ohio St. 3d 605, 640 N.E.2d 164
(1994) (federal right of privacy protects against governmental disclosure of city
employees’ Social Security numbers); State ex rel. McCleary v. Roberts, 88 Ohio
St.3d 365, 725 N.E.2d 1144 (2000) (federal right of privacy prevents disclosure of
personal information of children kept by city recreation department).
{¶ 14} Officers have a fundamental constitutional interest in preventing the
release of private information when disclosure would create a substantial risk of
serious bodily harm, and possibly even death, “from a perceived likely threat,” so
any such disclosure by the state should be measured under strict scrutiny. Kallstrom
v. Columbus, 136 F.3d 1055, 1064 (6th Cir.1998) (“Kallstrom I”). And “[w]here
state action infringes upon a fundamental right, such action will be upheld under the
substantive due process component of the Fourteenth Amendment only where the
governmental action furthers a compelling state interest, and is narrowly drawn to
further that state interest.” Id.
{¶ 15} In Kallstrom I, three undercover Columbus police officers who had
testified at the drug-conspiracy trial of members of the Short North Posse, a violent
Columbus gang, brought a 42 U.S.C. 1983 action against the city. The officers
alleged that the city had violated their constitutional right to privacy by
disseminating information from their personnel files, including their addresses,
phone numbers, and driver’s licenses, and the names, addresses, and phone numbers
of their immediate family members to defense counsel for the gang members who
were being tried. Counsel then appeared to have passed on the information to the
defendants. The city had also released one police officer’s personnel file to the
Police Officers for Equal Rights organization.
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{¶ 16} After the federal district court ruled that the officers had no general
constitutional right of privacy that shielded them from the city’s release of their
personal information, the Sixth Circuit Court of Appeals reversed. The court of
appeals held that because this disclosure “placed the officers and their families at
substantial risk of serious bodily harm, the prior release of this information
encroached upon their fundamental rights to privacy and personal security under the
Due Process Clause of the Fourteenth Amendment.” Because the city did not
establish that “its prior actions narrowly served a compelling state interest, its release
of this personal information to defense counsel in the [criminal] case
unconstitutionally denied the officers a fundamental liberty interest.” Id. at 1069-
1070.
{¶ 17} We relied on Kallstrom I to hold that a federal public defender was
not entitled to a writ of mandamus to compel the disclosure of personal information
in a police officer’s personnel records, because the information was protected by the
constitutional right of privacy. State ex rel. Keller v. Cox, 85 Ohio St. 3d 279, 282,
707 N.E.2d 931 (1999).
{¶ 18} Both Kallstrom I and Keller were cited by the court of appeals to hold
that the requested identifying information of the two wounded officers in the
September 2010 shooting at JD’s Honky Tonk bar was exempted from disclosure
under R.C. 149.43 by the constitutional right of privacy. The Enquirer argues that
the court of appeals erred for several reasons: it failed to focus on the threat posed by
the requesting party, it did not properly apply the federal district court’s decision on
remand following Kallstrom I, the records that were requested do not contain
sensitive information, and the former police chief failed to demonstrate that any real
threat existed to the wounded officers. For the following reasons, the Enquirer’s
arguments lack merit.
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{¶ 19} First, with respect to release to the Enquirer, as the Sixth Circuit in
Kallstrom I observed when the city had disclosed information in that case, the
district court had determined that
although there was no indication that the Police Officers for Equal
Rights organization posed any threat to the officers and their family
members, disclosure even to that group of the officers’ phone
numbers, addresses, and driver’s licenses, and their family members’
names, addresses and phone numbers “increases the risk that the
information will fall into the wrong hands.”
Id., 136 F.3d at 1064. The Enquirer’s reliance on a subsequent case to suggest
otherwise is misplaced because there the corrections officers’ names and general
whereabouts were already known to the prisoners requesting information. Barber v.
Overton, 496 F.3d 449, 456 (6th Cir.2007). That is not the case here, and
furthermore, in both Kallstrom I and Keller, although defense attorneys rather than
the criminal defendants had requested the information, neither case focused on the
threat posed by the attorneys themselves. We have cited Kallstrom I for the
proposition that the mere fact that the requesting party did not pose a threat did not
require disclosure of the personal information sought. McCleary, 88 Ohio St. 3d at
371, 725 N.E.2d 1144 (“disclosure of personal information, even to a benevolent
organization posing no apparent threat to the safety of the officers or their families,
increases the risk that the information will fall into the wrong hands. [Kallstrom I]
136 F.3d at 1064”).
{¶ 20} Second, the court of appeals correctly determined that the federal
district court’s decision on remand from the Sixth Circuit Court of Appeals decision
in Kallstrom I did not require that it order the disclosure of the requested identifying
information of the wounded officers to the Enquirer. Kallstrom v. Columbus, 165
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F.Supp.2d 686 (S.D.Ohio 2001) (“Kallstrom II”). In Kallstrom II, the federal district
court noted that on remand, the plaintiffs “failed to provide any potentially
admissible evidence to suggest that the release of any information contained in the
three personnel files may place any of the plaintiffs at any risk of serious bodily
harm,” “[n]or have they identified a current ‘perceived likely threat.’ ” Id. at 695.
By contrast, the evidence here, including those portions sealed by the court of
appeals, included credible evidence of a perceived likely threat that the Iron
Horsemen motorcycle gang would retaliate against the wounded officers for killing
the gang’s national enforcer. This was supported by Streicher’s historical knowledge
of the circumstances, past instances of threats made by the Iron Horsemen against
the Cincinnati police, and the confidential information confirming the threat against
the officers. Further, there is no evidence in the record here—unlike the record in
Kallstrom II—that the police chief and the city treated the Enquirer differently from
other members of the public who could have requested the same information about
the wounded officers. Compare Kallstrom II at 697-699. Although the Enquirer
relies on an alleged statement made by Streicher’s counsel in a memorandum in
opposition to the complaint, the police chief argues that another statement in that
same document proved otherwise, and that document is not included in the record on
appeal.
{¶ 21} Third, there is no evidence to support the Enquirer’s contention that
“by redacting the officers’ names, Chief Streicher has blocked any meaningful
review of * * * information” relating to discipline and citizen complaints of the
wounded officers. Rather, as the court of appeals noted, “[t]he parties’ counsel
agreed at oral argument that all the requested documents had been disclosed, except
that the officers’ identities had been redacted.” 2011-Ohio-4498 at ¶ 32. Therefore,
information contained in the wounded police officers’ requested personnel files
relating to discipline and citizen complaints has already been made available to the
Enquirer.
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{¶ 22} Finally, as previously noted, the evidence established that the release
of the identities of the wounded police officers would place them at risk of serious
bodily harm and possibly even death from a perceived likely threat and that the
disclosure of their identities was not narrowly tailored to achieve the public purpose
of examining the performance of the police. The sealed portions of Streicher’s
deposition relating to confidential information confirming the existence of threatened
retaliation against the wounded officers were admissible to establish his perception
of the threat.
{¶ 23} Therefore, the court of appeals correctly held that the requested names
of the wounded police officers were protected from disclosure under R.C.
149.43(A)(1)(v) by the constitutional right of privacy.
R.C. 149.43(B)(9) Journalist Exception
{¶ 24} The Enquirer next argues that it was entitled to the requested names
of the wounded officers because of the exception known as the journalist exception,
which allows journalists to obtain certain records relating to peace officers, including
their home addresses, even if other members of the public would not be entitled to
them. R.C. 149.43(B)(9). But the Enquirer conceded in the court of appeals that it
was not entitled to the home addresses of the wounded officers, see State ex rel.
Dispatch Printing Co. v. Johnson, 106 Ohio St. 3d 160, 2005-Ohio-4384, 833 N.E.2d
274, syllabus, and State ex rel. DeGroot v. Tilsley, 128 Ohio St. 3d 311, 2011-Ohio-
231, 943 N.E.2d 1018, ¶ 8, and as the court of appeals held, any rights that the
Enquirer has under R.C. 149.43(B)(9) cannot prevail over the officers’ constitutional
right of privacy. 2011-Ohio-4498, ¶ 23; see also State ex rel. Painter v. Brunner,
128 Ohio St. 3d 17, 2011-Ohio-35, 941 N.E.2d 782, ¶ 46, quoting the Supremacy
Clause of the United States Constitution.
Attorney Fees
{¶ 25} Finally, because the Enquirer’s public-records claim lacked merit, the
court of appeals correctly denied its request for attorney fees. See State ex rel.
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Dawson v. Bloom-Carroll Local School Dist., 131 Ohio St. 3d 10, 2011-Ohio-6009,
959 N.E.2d 524, ¶ 34.
Conclusion
{¶ 26} In summary, the court of appeals did not err in denying the Enquirer’s
request for extraordinary relief in mandamus and attorney fees. The requested
identifying information of the police officers wounded in the September 2010
shooting was exempted from disclosure under the Public Records Act by the
constitutional right of privacy. We affirm the judgment of the court of appeals.
Judgment affirmed.
O’CONNOR, C.J., and PFEIFER, LUNDBERG STRATTON, O’DONNELL,
LANZINGER, CUPP, and MCGEE BROWN, JJ., concur.
__________________
Graydon, Head & Ritchey, L.L.P., and John C. Greiner, for appellant.
John P. Curp, Cincinnati City Solicitor, and Peter J. Stackpole, Assistant City
Solicitor, for appellee.
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