State ex rel. Ohio Republican Party v. FitzGerald (Slip Opinion)

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
ex rel. Ohio Republican Party v. FitzGerald, Slip Opinion No. 2015-Ohio-5056.]
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. 2015-OHIO-5056
THE STATE EX REL. OHIO REPUBLICAN PARTY v. FITZGERALD, CTY.
EXECUTIVE, ET AL.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as State ex rel. Ohio Republican Party v. FitzGerald, Slip Opinion
No. 2015-Ohio-5056.]
Mandamus—Public records—R.C. 149.43—Security records—County executive
key-card-swipe data—Change in circumstances undermined basis for
withholding requested data—Writ granted.
(No. 2014-1141—Submitted June 9, 2015—Decided December 9, 2015.)
IN MANDAMUS.
_____________________
Per Curiam.
{¶ 1} The Ohio Republican Party (“ORP”) seeks a writ of mandamus
compelling Cuyahoga County, its former county executive Edward FitzGerald, and
Koula Celebrezze, the public-records manager for the Department of Public Works,
to fulfill its public-records request seeking records of key-card-swipe data
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documenting when FitzGerald entered and exited county parking facilities and
buildings.
{¶ 2} At the time of the ORP’s request, the key-card-swipe data were
“security records” exempted from release pursuant to R.C. 149.433, because,
according to an affidavit by a detective in the Cuyahoga County Sheriff’s Office,
FitzGerald had received threats and release of that data would have diminished the
county’s ability to protect him and maintain the security of the office of the county
executive. Thus, upon review, the county had no obligation to release these records.
{¶ 3} Subsequent to receipt of the public-records request, circumstances
changed: Cuyahoga County moved its administrative offices to a new building; it
demolished its former offices to build a hotel and convention center; and
FitzGerald’s term of office expired, and he is no longer the county executive. In
addition, the county released the records to members of the media in January of this
year and thereby waived its argument that they are not subject to the public-records
law. Accordingly, there is no longer any basis to withhold the requested key-card-
swipe data, and therefore we grant the writ and order release of the records.
Facts and Procedural History
{¶ 4} On May 22, 2014, Chris Schrimpf, the communications director for
the ORP, e-mailed a public-records request to Celebrezze and Mary Segulin
seeking “the county’s key card swipe data that shows when an employee enters or
leaves a county building” for five individuals, including FitzGerald. He sent the
request to Emily Lundgard, the county’s director of communications, on June 2,
and on June 9, he e-mailed her again, clarifying that his requests were based on the
Cuyahoga County Code, the Cuyahoga County Charter, and the Ohio Public
Records Act and indicating that because the request sought only information that
the county had already denied to the Plain Dealer, further delay in granting or
denying the request should be unnecessary. He sent a follow-up e-mail to
Celebrezze on June 17, reiterating the prior request and also requesting the key-
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card-swipe data for a sixth person. Celebrezze acknowledged receiving the request
the next day.
{¶ 5} The ORP filed this mandamus action on July 9, 2014, alleging that the
county had failed to respond to its public-record requests, even though the same
types of records “have readily been provided with respect to other employees or
officials of the County of Cuyahoga.” The ORP asserts that the records at issue
here are public records pursuant to the Public Records Act and the Cuyahoga
County Code and that the county has neither fulfilled the record request nor denied
it, nor has it provided a written explanation justifying denial of the request as is
required by law. The ORP therefore seeks a writ of mandamus compelling
respondents to produce the requested records.
{¶ 6} On July 11, Majeed Makhlouf, the law director for Cuyahoga County,
responded to Schrimpf’s request, explaining that he could not release the key-card-
swipe data for FitzGerald because “the Sheriff’s Department [had] confirmed the
existence of verifiable security threats barring the release of this information
pursuant to R.C. 149.433.” He provided the key-card-swipe data for the five other
individuals but indicated that the county did not have information on when
employees left the building because employees are not required to swipe their key
cards to exit.
{¶ 7} On July 21, Schrimpf requested key-card-swipe data going back to
January 2011, and he e-mailed again on July 29 to ask when he would receive the
key-card-swipe records he had requested but not yet received.
{¶ 8} The next day, Makhlouf responded that the July 21 request was being
processed “as expeditiously as possible” in light of the move to the new county
administration building. On July 31, he e-mailed the key-card-swipe data requested
but again excluded data relating to FitzGerald.
{¶ 9} We granted an alternative writ on September 24, 140 Ohio St. 3d 1435,
2014-Ohio-4160, 16 N.E.3d 681, and the parties submitted briefs and evidence.
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{¶ 10} In support of its position that the key-card-swipe data is excepted
from disclosure, the county presented the affidavit of David DeGrandis, a senior
administrative officer with the Cuyahoga County Department of Information
Technology, who averred that the county installed the key-card system “for the
protection of [the county’s] facilities and those who use them.” He explained that
users have different levels of access to the building and that the key-card-swipe
system is used to determine whether a user has security clearance to access a
particular part of the building. He also stated that the key-card-swipe data can
reveal “sensitive security information,” so that
if an individual with high-level security credentials, such as the
County Executive, utilizes a non-public entryway to enter an area
that is secured via the key-card system without the presence of
security personnel, the security key-card data will not only reveal
the time patterns of entry, but it will also reveal the existence of the
non-public, secured entryway itself.
{¶ 11} The county also presented the affidavit of D. Paul Soprek, a detective
with the Cuyahoga County sheriff’s department and director of the Principal
Protection Unit, which is charged with protecting the county’s public officials. He
claimed that the Principal Protection Unit “is investigating a number of verified
threats * * * against Executive FitzGerald” and asserted that “it is critical to protect
the manner and pattern of travel, ingress and egress, and timing. This is precisely
the kind of information that the county’s security key-card data reveals. Release of
the security key-card data for the County Executive diminishes the effectiveness of
the Principal Protection Unit and its ability to protect the County Executive.”
{¶ 12} Nonetheless, on January 7, 2015, Lundgard, the county’s director of
communications, released FitzGerald’s key-card-swipe data to the Cleveland Plain
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Dealer. The ORP e-mailed Makhlouf asking whether the county would fulfill its
public-records request, but Makhlouf replied that the request had been properly
denied when it was submitted and invited the ORP to submit a new request “based
on the changed circumstances.”
Analysis
Motion for oral argument
{¶ 13} The ORP has moved for oral argument, which is discretionary in an
original action. S.Ct.Prac.R. 17.02(A). Because we are able to decide the issues in
this case without oral argument, we deny that motion. State ex rel. Mahajan v.
State Med. Bd. of Ohio, 127 Ohio St. 3d 497, 2010-Ohio-5995, 940 N.E.2d 1280,
¶ 65.
Show-cause order and motion to strike
{¶ 14} On March 25, 2015, we ordered the ORP to show cause why the case
should not be dismissed as moot based on media reports that the county had
released the key-card-swipe data to the press. 142 Ohio St. 3d 1407, 2015-Ohio-
1099, 27 N.E.3d 538. As we explained in State ex rel. Anderson v. Vermilion, 134
Ohio St. 3d 120, 2012-Ohio-5320, 980 N.E.2d 975, ¶ 18, “providing the requested
records to a relator generally renders moot a public-records mandamus claim.”
{¶ 15} However, in response to the show-cause order, the ORP asserts that
the county still has not provided it all of the requested records. The county admits
in its memorandum in response that it released “similar” records to the Plain
Dealer, but it contends that the records sought in this action are security and
infrastructure records that the county is not required to release. And the county
indicates that if the ORP submitted a new request, the county would “place it
through the appropriate channels.”
{¶ 16} The ORP then moved to strike the county’s memorandum in
response, arguing that it constitutes “supplemental argument and briefing” in
violation of Sup.Ct.Prac.R. 16.08. However, the county submitted additional
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evidence to prove that it had exercised its discretion to provide FitzGerald’s key-
card-swipe data to the press, information that is relevant to determining whether
this action is moot. In State ex rel. Cincinnati Enquirer, Div. of Gannett Satellite
Information Network, Inc. v. Dupuis, 98 Ohio St. 3d 126, 2002-Ohio-7041, 781
N.E.2d 163, ¶ 8, we noted that “[a]n event that causes a case to become moot may
be proved by extrinsic evidence outside the record.” We therefore deny the motion
to strike.
{¶ 17} And because the county has not released the records to the ORP and
continues to maintain that pursuant to R.C. 149.433, FitzGerald’s key-card-swipe
data are not public records that must be released, we conclude that this case is not
moot.
Motions to take judicial notice
{¶ 18} The ORP filed two motions asking the court to take judicial notice
of information on the county’s governmental website—specifically, the county’s
announcements that the county executive’s office had moved to a new building and
that a new county executive had replaced FitzGerald. Pursuant to Evid.R. 201(B),
courts may take judicial notice of facts not subject to reasonable dispute, and here,
these motions are unopposed and the county posted the information on its own
website. Thus, the motions to take judicial notice of this information are well taken
and granted.
Merits
{¶ 19} “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). Although we liberally
construe the Public Records Act in favor of access to public records, “the relator
must still establish entitlement to the requested extraordinary relief by clear and
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convincing evidence.” State ex rel. McCaffrey v. Mahoning Cty. Prosecutor’s
Office, 133 Ohio St. 3d 139, 2012-Ohio-4246, 976 N.E.2d 877, ¶ 16.
{¶ 20} But here, the county asserts that the requested records are exempt
from disclosure pursuant to R.C. 149.433. As we explained in State ex rel.
Cincinnati Enquirer v. Jones-Kelley, 118 Ohio St. 3d 81, 2008-Ohio-1770, 886
N.E.2d 206,
[e]xceptions 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.
Id. at ¶ 10.
{¶ 21} R.C. 149.433(B) provides that “[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.”
{¶ 22} R.C. 149.433(A)(3)1 defines the term “security record”:
(3) “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;
1
This is the current version of R.C. 149.433. The statute was amended slightly in September 2014,
Am.Sub.H.B. 487, but the change is not relevant to this opinion.
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(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;
(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) An emergency management plan adopted pursuant to
section 3313.536 of the Revised Code.
{¶ 23} We construed R.C. 149.433(A)(3) in State ex rel. Plunderbund
Media, L.L.C., v. Born, 141 Ohio St. 3d 422, 2014-Ohio-3679, 25 N.E.3d 988,
explaining that “security records” include those that are directly used for protecting
and maintaining the security of a public office as well as the public officials and
employees of that office. Id. at ¶ 20. There, the Director of Public Safety had
presented evidence that disclosure of records documenting threats against the
governor “ ‘would expose security limitations and vulnerabilities,’ ” id. at ¶ 24
(quoting the affidavit of John Born), could “ ‘reveal patterns, techniques or
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information’ related to security,” id. at ¶ 25 (quoting the affidavit of Highway Patrol
Superintendent Paul Pride), and “ ‘could be used to commit terrorism, intimidation,
or violence,’ ” id. at ¶ 26 (quoting the affidavit of Ohio Homeland Security
Executive Director Richard Baron). Based on that evidence, we concluded that
those records, which involved direct threats against the governor, were security
records not subject to release as public records, because they were directly used to
protect and maintain the secure functioning of the governor’s office. Id. at ¶ 30.
{¶ 24} Similarly, in this case, the county withheld release of the key-card-
swipe data because there had been verified threats against FitzGerald, and
according to Detective Soprek, it was “critical” to protect information regarding
FitzGerald’s “manner and pattern of travel, ingress and egress, and timing” that
would be revealed by the key-card-swipe data. Soprek also averred that release of
the key-card-swipe data would “diminish[ ] the effectiveness of the Principal
Protection Unit and its ability to protect the County Executive.” Thus, pursuant to
Plunderbund, the key-card-swipe data contain information directly used for
protecting or maintaining the security of a public office, and for that reason, they
are “security records” within the meaning of R.C. 149.433(A)(3). See Plunderbund
at ¶ 28.
{¶ 25} We reject the county’s contention that the key-card-swipe data are
exempt from release as infrastructure records. R.C. 149.433(A)(2) defines
“infrastructure record” to mean
any record that discloses the configuration of a public office’s or
chartered nonpublic school's 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 the building in which a
public office or chartered nonpublic school is located.
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“Infrastructure record” does not mean a simple floor plan that
discloses only the spatial relationship of components of a public
office or chartered nonpublic school or the building in which a
public office or chartered nonpublic school is located.
{¶ 26} The key-swipe data sought by the ORP does not disclose the
configuration of a public office’s critical systems. Rather, it shows when
FitzGerald entered the building each day—facts unrelated to the building’s
structural configuration. And although the affidavit of David DeGrandis indicates
that the key-swipe data could “reveal the existence of [a] nonpublic, secured
entryway,” DeGrandis does not specify that the data would reveal the location of
such an entryway—information the ORP did not seek in its request. In any case,
the location of any secured entrances would be observable by the public and would
appear on “a simple floor plan that discloses only the spatial relationship of
components of * * * the building in which a public office * * * is located,” and
such a floor plan is expressly excluded from the definition of an infrastructure
record. R.C. 149.433(A)(2). Thus, even if the key-card-swipe data reveals the
location of nonpublic, secured entrances, it is not excepted from disclosure as an
infrastructure record.
{¶ 27} At the time of the request, R.C. 149.433 exempted FitzGerald’s key-
card-swipe data from disclosure because FitzGerald had received threats. The
undisputed evidence now demonstrates that the data are neither security records nor
infrastructure records. Cuyahoga County’s website reflects that as of July 2014, its
administrative offices are now located in a new building. See
http://www.cuyahogacounty.us/en-US/HQ-Background.aspx; http://www.cuyahog
acounty.us/en-US/New-County-Admin-HQ.aspx (accessed October 15, 2015). In
addition, the old county administration building has been demolished See
http://www.cuyahogacounty.us/en-US/InterimLocations.aspx (accessed October
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15, 2015). Lastly, Fitzgerald is no longer the county executive.
http://executive.cuyahogacounty.us/en-US/Budish-Takes-Oath-of-Office.aspx
(accessed October 15, 2015).
{¶ 28} Thus, because FitzGerald is no longer the county executive, the key-
card-swipe data are no longer security records, and because the old county
administration building has been demolished, that data cannot disclose the
configuration of its critical systems and are not infrastructure records.
{¶ 29} Release of FitzGerald’s key-card-swipe data to the press also
precludes the assertion that the data are excepted from disclosure pursuant to the
public-records law. State ex rel. Cincinnati Enquirer, 98 Ohio St. 3d 126, 2002-
Ohio-7041, 781 N.E.2d 163, ¶ 22 (“Voluntarily disclosing the requested record can
waive any right to claim an exemption to disclosure”); State ex rel. Gannett Satellite
Information Network, Inc. v. Petro, 80 Ohio St. 3d 261, 265, 685 N.E.2d 1223
(1997) (state auditor waived right to assert that records were exempt from
disclosure partly because he made the records available to the public, represented
to the relators that the records were public records, and orally described the records
to a representative from the newspaper).
{¶ 30} Accordingly, FitzGerald’s key-card-swipe data are public records,
and the county has failed to demonstrate they are exempt from disclosure pursuant
to R.C. 149.433. Thus, we grant the requested writ of mandamus and order the
release of the records.
Writ granted.
O’CONNOR, C.J., and O’DONNELL, SADLER, and SINGER, JJ., concur.
PFEIFER, LANZINGER, and O’NEILL, JJ., dissent.
LISA L. SADLER, J., of the Tenth Appellate District, sitting for KENNEDY, J.
ARLENE SINGER, J., of the Sixth Appellate District, sitting for FRENCH, J.
_____________________
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O’NEILL, J., dissenting.
{¶ 31} Respectfully, I dissent. Today the court revives a denied public-
records request. I do not disagree with the court’s determination that the records at
issue are subject today to release as public records. Rather, I disagree with its
determination that the court should issue a writ of mandamus to compel respondents
to release documents based on a request that was previously properly denied.
{¶ 32} The majority opinion boils down the three-part standard for granting
a writ of mandamus to the simple statement that “ ‘[m]andamus is the appropriate
remedy to compel compliance with R.C. 149.43, Ohio’s Public Records Act.’ ”
Majority opinion at ¶ 19, quoting 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). As a common practice, this court has
made this simple observation in public-records cases. E.g., State ex rel. Beacon
Journal Publishing Co. v. Bond, 98 Ohio St. 3d 146, 2002-Ohio-7117, 781 N.E.2d
180, ¶ 49. But in the normal course of reviewing a mandamus action, we
traditionally conduct a three-part inquiry when considering whether to grant the
writ: the relator must establish (1) a clear legal right to the requested relief, (2) a
clear legal duty on the part of the respondent, and (3) the lack of an adequate remedy
in the ordinary course of the law. E.g., State ex rel. Simpson v. State Teachers
Retirement Bd., 143 Ohio St. 3d 307, 2015-Ohio-149, 37 N.E.3d 1176, ¶ 17. We
have held that the legislature, by enacting R.C. 149.43(C), made mandamus the
only appropriate remedy for enforcing the public-records law. State ex rel.
Steckman v. Jackson, 70 Ohio St. 3d 420, 426-427, 639 N.E.2d 83 (1994).
Accordingly, we no longer reject petitions seeking an order compelling disclosure
of public records on the basis that there is an adequate remedy in the ordinary course
of the law. Id. Until today, we have not done away with the other two prongs of
the mandamus standard in public-records cases.
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{¶ 33} Through changed circumstances subsequent to respondents’ denial
of relator’s request, relator has inarguably become entitled to the records at issue.
The building in question no longer exists; the public official is no longer in office;
and the security risk has gone away. In light of these new developments, what is
respondents’ duty with regard to the request? I would say they have none.
{¶ 34} When any person requests public records, a public office must
promptly prepare any records for inspection that are responsive to the request. R.C.
149.43(B)(1). The public office must also make copies of the requested records
available at cost. Id. If some of the responsive records contain information that is
exempt from inspection, the public office must still provide all of the nonexempt
public records. Id. The public office must notify the requester of any redactions,
and a redaction is treated as a denial of the public-records request. Id. If all or part
of a request is denied, the public office shall provide an explanation for the denial
with citations to legal authority. R.C. 149.43(B)(3).
{¶ 35} It is plain that respondents complied with these clear legal duties on
July 11 and 31, 2014. At that time, the county provided the key-card-swipe data
that relator was entitled to and provided an explanation for the partial denial. The
majority readily agrees that the records withheld from relator were not subject to
disclosure at that time. Majority at ¶ 3.
{¶ 36} Respondents did not fail to perform any act that they had a duty to
perform. There is no provision in the Revised Code requiring public offices to keep
track of whether the circumstances that justified the denial of a public-records
request subsequently change. Likewise, public offices are not required to act on
their own initiative to revive denied requests, even if they may be compelled to
grant new requests for the same records based on new circumstances.
{¶ 37} Our power to issue writs of mandamus is an extraordinary one that
we should use only “to prevent a failure of justice.” State ex rel. Murphy v. Graves,
91 Ohio St. 36, 38, 109 N.E. 590 (1914); State ex rel. Ingerson v. Berry, 14 Ohio
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St. 315, 323 (1863) (“Designed only as a remedy to prevent the failure of justice,
[mandamus] must not be made the minister of injustice, and the law does not require
the performance of things which are either impossible or useless” [emphasis sic]).
Instead of showing reserve in the interest of doing only what justice demands, the
majority stretches the law in this matter to vindicate relator’s litigious conduct.
{¶ 38} A proper public-records request was made. It was properly denied.
Any action taken by anyone subsequent to that final denial is irrelevant, and the
majority’s focus on those acts obfuscates the question before us. Does the
subsequent demolition of the building in question, the departure from office of the
official involved, or the Plain Dealer’s receipt of the records requested change
anything for our legal analysis? No. The request was properly denied at the time,
and respondents do not have a duty to examine old requests to determine whether
the conditions that permitted denial of the request have subsequently changed.
{¶ 39} Therefore, I must dissent.
PFEIFER and LANZINGER, JJ., concur in the foregoing opinion.
_____________________
Law Firm of Curt C. Hartman and Curt C. Hartman; Law Firm of Daniel P.
Carter and Daniel P. Carter; and Finney Law Firm, L.L.C., and Christopher P.
Finney, for relator.
Majeed G. Makhlouf, Cuyahoga County Law Director, and Robin M.
Wilson, Assistant Law Director, for respondents.
______________________
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