State ex rel. Plunderbund Media v. Born (Slip Opinion)

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
State ex rel. Plunderbund Media v. Born, Slip Opinion No. 2014-Ohio-3679.]
NOTICE
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65 South Front Street, Columbus, Ohio 43215, of any typographical or
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made before the opinion is published.
SLIP OPINION NO. 2014-OHIO-3679THE STATE EX REL. PLUNDERBUND MEDIA, L.L.C., v.
BORN, DIR. OF PUBLIC SAFETY.
[Until this opinion appears in the Ohio Official Reports advance sheets,
it may be cited as State ex rel. Plunderbund Media v. Born,
Slip Opinion No. 2014-Ohio-3679.]
Mandamus—Public records—R.C. 149.43—Security records—Threats against the
governor—Writ denied.
(No. 2013-0596—Submitted May 27, 2014—Decided August 27, 2014.)
IN MANDAMUS.
____________________
Per Curiam.
{¶ 1} We deny the request by relator, Plunderbund Media, L.L.C., for a
writ of mandamus. Plunderbund’s complaint sought the disclosure of records
documenting threats against the governor that were kept by respondent, Thomas
P. Charles, the former Director of Public Safety.1 Legal counsel for the
1
The current Director of Public Safety is John Born, who became director on July 31, 2013, after
the complaint in this matter was filed. Under Civ.R. 25(D)(1), Born has been automatically
substituted as respondent in place of the former director, Thomas P. Charles.
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Department of Public Safety refused to produce any records, even redacted
records, based on R.C. 149.433. That provision exempts “security records” from
disclosure under the Public Records Act, R.C. 149.43 et seq. Because any records
of threats made to the governor are “security records” under R.C.
149.433(A)(3)(a), they are not public records. The director of Public Safety does
not have a clear legal duty to produce the requested records to Plunderbund, and
Plunderbund lacks a clear legal right to those documents. We therefore deny the
writ.
Facts
{¶ 2} Plunderbund is a media company based in central Ohio that
provides original reporting, analysis, and editorial commentary on Ohio politics.
Born is the Director of Public Safety.
{¶ 3} On August 14, 2012, Joseph Mismas, co-owner and managing
editor of Plunderbund, sent a public-records request to the legal department of the
Department of Public Safety, requesting that it provide the number of
investigations the Highway Patrol had conducted regarding threats against the
governor and a copy of the final version of the investigation report, but not the
witness statements. Mismas indicated that a single report, if available, setting
forth the type of threat and whether it was credible or resulted in charges was
acceptable.
{¶ 4} Legal counsel for the department refused to produce any records,
claiming, “Out of concern for the safety of public officials, * * * it has been
determined that security records, such as detailed information on security,
protective measures and procedures, personal threats and their analysis * * * are
not public records under section 149.43 of the Revised Code.” Legal counsel also
stated that the department was withholding the records under R.C. 149.433(B).
{¶ 5} Mismas followed up on September 21, 2012, with further e-mails
indicating that Plunderbund wanted information only on closed investigations and
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arguing that a closed investigation is not a security record. Plunderbund
requested, at a minimum, the cover sheet to each report indicating that a case was
opened, the nature of the case, and the resolution, while acknowledging that
information that might pose a security threat could be redacted. Counsel for the
department responded that security records are not limited to open investigations
and that the requested documents would therefore be withheld under R.C.
149.433. Counsel followed up with an e-mail explaining that the department was
relying on R.C. 149.433(A)(3)(a) and 149.433(B) to deny the request.
{¶ 6} Plunderbund’s counsel wrote to the department on November 13,
2012, arguing that some of the refused records would fall outside the security-
records exception of R.C. 149.433 and that some might also fall under R.C.
149.43(A)(11) and therefore be amenable to redaction. Counsel stated that
Plunderbund was not requesting information about actions taken in response to a
threat but information about the threat itself, e.g., a copy of a written threat or
notes taken by a person who received a telephoned threat.
{¶ 7} The department responded on December 14, 2012, stating that
Plunderbund’s interpretation of the public-records law was “at odds with” the
applicability of the statutes. The department argued that a security record was any
record that contained “information directly used for protecting or maintaining the
security of a public office against attack, interference, or sabotage” and that
because each of the requested records contained such information, they were
security records and were not subject to disclosure. The department also pointed
out that the public-records law requires production only of records, not of
information, such as the number of threats investigated. The department again
cited R.C. 149.433(A)(3)(a).
{¶ 8} Plunderbund filed an action for a writ of mandamus to require the
department to produce the requested records. The department filed an answer and
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a motion for judgment on the pleadings. The court issued an alternative writ, and
the parties submitted evidence and briefs.
{¶ 9} The parties jointly submitted an agreed statement of facts, and each
separately filed additional evidence. Plunderbund submitted an affidavit from
Joseph Mismas, its co-owner and managing editor. It also submitted an affidavit
from its legal counsel with a 2006 bulletin from the Department of Administrative
Services regarding the exceptions to public records in R.C. 149.433.
{¶ 10} The department has moved to strike statements in the cover page to
Plunderbund’s evidence, asserting that those statements are legal arguments and
not evidence.
{¶ 11} The department submitted affidavits of John Born; Paul Pride,
superintendent of the Highway Patrol; Richard Baron, executive director of Ohio
Homeland Security, a division of the Department of Public Safety; and Patrick
Kellum, a staff lieutenant with the Patrol and a member of the governor’s security
team.
{¶ 12} Plunderbund has filed a motion to strike all the department’s
affidavits, asserting that they are not relevant evidence, but are opinion, hearsay,
and legal argument. The department has responded to this motion.
{¶ 13} In addition, Plunderbund has moved for in camera inspection of
the documents, stating in part that evidence before the court demonstrates that the
department is not acting in good faith. The department responded that the court
need not see the actual documents to decide the issues here.
Analysis
Motions to strike
{¶ 14} Both the department and Plunderbund filed motions to strike
various parts of the material submitted into the record. We deny the parties’
motions. However, we will consider as evidence only facts and any expert
testimony submitted by the parties.
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Mandamus
{¶ 15} “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). Thus, mandamus is the
appropriate remedy for Plunderbund to use here to obtain access to a public
record.
{¶ 16} Although “[w]e 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, a relator still must establish entitlement to the
requested extraordinary relief by clear and convincing evidence, State ex rel.
Doner v. Zody, 130 Ohio St.3d 446, 2011-Ohio-6117, 958 N.E.2d 1235,
paragraph three of the syllabus.
{¶ 17} To be entitled to a writ of mandamus, Plunderbund must establish
a clear legal right to the requested relief and a clear legal duty on the part of the
department to provide it. State ex rel. Waters v. Spaeth, 131 Ohio St.3d 55, 2012-
Ohio-69, 960 N.E.2d 452, ¶ 6. Plunderbund must prove that it is entitled to the
writ by clear and convincing evidence. Id. at ¶ 13.
R.C. 149.433
{¶ 18} If a record does not meet the definition of a public record, or falls
within one of the exceptions to the law, the records custodian has no obligation to
disclose the document. R.C. 149.43(B) (“all public records responsive to the
request shall be promptly prepared * * *”). The department claims that the
records requested by Plunderbund are “security records” as defined in R.C.
149.433(A)(3) and thus are not subject to disclosure under the Public Records
Act:
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A record kept by a public office that is a security record or
an infrastructure record is not a public record under section 149.43
of the Revised Code and is not subject to mandatory release or
disclosure under that section.
R.C. 149.433(B). The department cites both R.C. 149.433(A)(3)(a) and (A)(3)(b)
in support of its argument that the records documenting threats against the
governor requested by Plunderbund are “security records.” If the records fall
under one or both of these subsections, they are security records and may be
withheld by the department. R.C. 149.433(A)(3) states:
“Security record” means any of the following:
(a) Any record that contains information directly used for
protecting or maintaining the security of a public office against
attack, interference, or sabotage;
(b) Any record assembled, prepared, or maintained by a
public office or public body to prevent, mitigate, or respond to acts
of terrorism, including any of the following:
(i) Those portions of records containing specific and unique
vulnerability assessments or specific and unique response plans
either of which is intended to prevent or mitigate acts of terrorism,
and communication codes or deployment plans of law enforcement
or emergency response personnel;
(ii) Specific intelligence information and specific
investigative records shared by federal and international law
enforcement agencies with state and local law enforcement and
public safety agencies;
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(iii) National security records classified under federal
executive order and not subject to public disclosure under federal
law that are shared by federal agencies, and other records related to
national security briefings to assist state and local government with
domestic preparedness for acts of terrorism.
(c) A school safety plan adopted pursuant to section
3313.536 of the Revised Code.
{¶ 19} Plunderbund argues that protecting a “public office,” as the term is
used in R.C. 149.433(A)(3)(a), applies only to such things as the placement of
cameras, blueprints of the building, or the scheduling of security personnel. In
other words, it covers records that are generated in the protection of physical
facilities, not officials. The department argues that the subsection is broader,
allowing it to withhold records that might subject the governor to attack,
interference, sabotage, or terrorism. It asserts that protecting a “public office”
includes protecting the officeholder.
{¶ 20} Indeed, a public office cannot function without the employees and
agents who work in that office, and records “directly used for protecting or
maintaining the security of a public office” must inevitably include those that are
directly used for protecting and maintaining the security of the employees and
other officers of that office.
{¶ 21} Therefore, a reasonable reading of R.C. 149.433(A)(3)(a) is that
records that contain information directly used to protect and maintain the security
of the governor will also be directly used to protect and maintain the security of
the office of the governor.
{¶ 22} The remaining question then is whether the requested documents
in this case “contain information directly used for protecting or maintaining the
security of” the governor “against attack, interference, or sabotage” under R.C.
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149.433(A)(3)(a). If they do, they are “security records” and properly withheld
by the department.
{¶ 23} The department has submitted sworn testimony of several law-
enforcement and telecommunications experts who say that investigative reports of
threats to the governor contain information used for protecting or maintaining the
security of the governor’s office.
{¶ 24} For example, John Born’s affidavit states that “[e]ach threat and
investigation thereof potentially reveals security and safety violations.” He states
that public disclosure of the number of threats “would expose security limitations
and vulnerabilities” and that such disclosure “increases the risks to the safety” of
the governor and others.
{¶ 25} The affidavit of Paul Pride states that the department “needs to
withhold all threat information” because releasing “even seemingly minor or
insignificant pieces of information” can “reveal patterns, techniques or
information” related to security.
{¶ 26} The affidavit of Richard Baron states that “[s]ecurity planning,
response plans, and techniques” used by the department “detail security
limitations and vulnerabilities” and are therefore “deemed security records and/or
infrastructure records.” Baron goes on to state that documents disclosing “the
content, number or treatment of prior or current threats” contain security
information that “if disclosed (even piecemeal), could be used to commit
terrorism, intimidation, or violence.”
{¶ 27} Patrick Kellum’s affidavit states that public disclosure of a threat,
even an insignificant one, may require law enforcement to change its tactics. He
also states that disclosure of threats, even noncredible ones, may lead to copy-cat
offenses. He also states that the disclosure of information regarding threats
diminishes the effectiveness of law enforcement.
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{¶ 28} Thus, the requested records “contain[] information directly used
for protecting or maintaining the security” of a public office. They are therefore
“security records” within the meaning of the statute.
{¶ 29} 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.
{¶ 30} But here, the records at issue involve direct threats against the
highest official in the executive branch of Ohio government. Information
included in these threats, according to the affidavits provided, is used for
protecting and maintaining the security of the governor and his staff and family
and for maintaining the secure functioning of the governor’s office. The records
are therefore “security records” and exempt from disclosure as a public records
under R.C. 149.433(B).
{¶ 31} Because we have found that records documenting threats to the
governor are “security records” under R.C. 149.433(A)(3)(a), we need not view
them in camera or address the remaining arguments or statutory provisions.
Conclusion
{¶ 32} For all of the foregoing reasons, we deny the motions to strike and
for in camera inspection of documents, and we deny the writ of mandamus.
Writ denied.
O’CONNOR, C.J., and PFEIFER, O’DONNELL, LANZINGER, POWELL,
FRENCH, and O’NEILL, JJ., concur.
MICHAEL POWELL, J., of the Twelfth Appellate District, sitting for
KENNEDY, J.
____________________
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Victoria E. Ullmann, for relator.
Michael DeWine, Attorney General, and Hillary Damaser and William J.
Cole, Assistant Attorneys General, for respondent.
Jennifer M. Atzberger, James L. Hardiman, and Drew S. Dennis, urging
granting of the writ for amicus curiae American Civil Liberties Union of Ohio
Foundation.
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