Welsh-Huggins v. Office of the Pros. Atty.

[Cite as Welsh-Huggins v. Office of the Pros. Atty., 2019-Ohio-964.]
ANDREW WELSH-HUGGINS Case No. 2018-00793PQ
Requester Judge Patrick M. McGrath
v. DECISION AND ENTRY
ADOPTING RECOMMENDATION
OFFICE OF THE PROSECUTING OF SPECIAL MASTER
ATTORNEY, JEFFERSON COUNTY,
OHIO
Respondent
{¶1} Respondent Office Of The Prosecuting Attorney, Jefferson County, Ohio
(Prosecutor’s Office), through Jane Hanlin, prosecuting attorney of Jefferson, County,
Ohio, objects to a special master’s report and recommendation (R&R) issued on
January 28, 2019.
I. Background
{¶2} Pursuant to R.C. 2743.75(D), requester Andrew Welsh-Huggins filed a
complaint against the Prosecutor’s Office, alleging a denial of access to public records.
Welsh-Huggins asserted that, on August 21, 2017, he requested a copy of an external
courthouse surveillance video showing the shooting of Judge Joseph J. Bruzzese, Jr.,
and Nate Richmond. Welsh-Huggins further asserted that, on August 22, 2017,
Prosecuting Attorney Jane Hanlin rejected his public records request, citing several
exemptions under the Ohio Public Records Act.
{¶3} The court appointed an attorney as a special master in the cause. The
court, through the special master, referred the case to mediation. After mediation failed
to successfully resolve all disputed issues, the court returned the case to the special
master’s docket. The Prosecutor’s Office filed a response and moved to dismiss Welsh-
Huggins’ complaint. The special master determined that he required additional
information from the Prosecutor’s Office. The special master ordered the Prosecutor’s
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Office to file certain documents and records under seal and the special master also
ordered additional filings by the parties.
{¶4} On January 28, 2019, the special master issued a R&R wherein he
recommended (1) denying the Prosecutor’s Office’s motion to dismiss, (2) granting
Welsh-Huggins’ “claim for production of the withheld video, subject to redaction of
specific portions excepted from release by R.C. 149.43(A)(7)(g),” and (3) issuing an
order that Welsh-Huggins “is entitled to recover from [the Prosecutor’s Office] the costs
associated with this action, including the twenty-five-dollar filing fee.” (R&R, 3, 19-20.)
II. Law and Analysis
{¶5} R.C. 2743.75(F)(2) governs objections to a report and recommendation
issued by a special master of this court relative to a public-records dispute brought
under R.C. 2743.75. Pursuant to R.C. 2743.75(F)(2), either party “may object to the
report and recommendation within seven business days after receiving the report and
recommendation by filing a written objection with the clerk and sending a copy to the
other party by certified mail, return receipt requested.” And, according to R.C.
2743.75(F)(2), if either party timely objects, the other party “may file with the clerk a
response within seven business days after receiving the objection and send a copy of
the response to the objecting party by certified mail, return receipt requested.”
{¶6} In this instance, although the Prosecutor’s Office filed its objections within
seven business days after receiving the special master’s R&R, the objections are
procedurally irregular for at least two reasons: (1) Hanlin failed to serve the objections
on defense counsel who appeared on Welsh-Higgin’s behalf in this case (attorneys
Greiner and Ford), and (2) Hanlin failed to send a copy of the objections on defense
counsel by certified mail, return receipt requested, as required by R.C. 2743.75(F)(2).
The Prosecutor’s Office’s objections also are irregular because the Prosecutor’s Office’s
objections reference matters that were discussed during mediation, matters that are
presumptively privileged. (Objections, 5.) See R.C. 2710.03 (privilege against
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disclosure of a mediation communication); see also R.C. 2710.04 (waiver and
preclusion of privilege) and 2710.05 (exceptions to privilege). Despite the irregularities
of the Prosecutor’s Office’s filing, in the interest of justice the court will consider the
Prosecutor’s Office’s objections.
{¶7} Because Welsh-Huggins, through counsel, timely filed a response and
served the response by certified mail (absent an indication whether a return receipt was
requested), the court finds that Welsh Huggins’ response substantially complies with
procedural requirements contained in R.C. 2743.75(2).
A. Prosecutor’s Office’s Objections
{¶8} The Prosecutor’s Office asserts the following objections to the special
master’s R&R:
(1) The Special Master’s Report and Recommendations erroneously ignore
the plain statutory language which makes the subject video an
“Infrastructure Record,” as defined by R.C. 149.433(A), as a matter of
law; and,
(2) The Special Master’s Report and Recommendations erroneously ignore
R.C. 149.433(B)(2), which provides that an “Infrastructure Record” is
not a public record and is not subject to mandatory release or
disclosure,” as a matter of law; and
(3) The Special Master’s Report and Recommendations erroneously ignore
the plain statutory language which makes the subject video a “Security
Record,” as defined by R.C. 149.433(A)(1), as a matter of law; and
(4) The Special Master’s Report and Recommendations erroneously ignore
R.C. 149.433(B)(1), which provides that “Security Record,” is not a
public record and is not subject to mandatory release or disclosure.,”
as a matter of law; and,
(5) The Special Master’s Report and Recommendations erroneously ignore
the fact that the subject video recording is “directly used for protecting and
maintaining the security of a public office” and it is “directly used for
protecting and maintaining the security of the employees and other
officers of that office.” Therefore, the record is a “Security Record” within
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the meaning of R.C. 149.433(A)(3) and the holding in State ex rel.
Plunderbund Media v. Born, 141 Ohio St.3d 422, 2014-Ohio-3679, 25
N.E.3d 988, ¶¶ 18-32 (2014); and,
(6) The Special Master’s Report and Recommendations erroneously ignore
the fact that the subject video recording involves direct threats against the
highest judicial officials in County Government and is used for protecting
and maintaining the security of judges, other elected office-holders and
their staffs; and for maintaining the secure functioning of the county
offices. The record is, therefore, a “Security Record” and exempt from
disclosure under R.C. 149.433(B) and the holding in State ex rel.
Plunderbund Media v. Born, 141 Ohio St.3d 422, 2014-Ohio-3679, 25
N.E.3d 988, ¶¶ 18-32 (2014); and,
(7) Divulging the subject video (even modified as recommended by the
Special Master) would constitute the disclosure of an “Infrastructure
Record” and “Security Record”; and,
(8) The Special Master’s Report and Recommendations would erroneously
and unlawfully require the Respondent to perform a service, by which the
Respondent would have to create a new record, contrary to law; and,
(9) The Special Master’s Report and Recommendations would erroneously
and unlawfully require the Respondent to perform a service, by which the
Respondent would have to compile information from an existing record
in order to create a new record, contrary to law.
(10) Even if the Respondent were to export and modify the subject
video, as recommended by the Special Master, the resultant new product
would still be an “Infrastructure Record” and/or “Security Record,” which is
not subject to mandatory disclosure.
(Emphasis sic.) (Objections, 1-2.)
{¶9} Additionally, in the body of the written objections, the Prosecutor’s Office
asserts that the special master shifted the burden of proof (1) by requiring the
Prosecutor’s Office to show that any portion of the county courthouse video fell squarely
within the definition of an infrastructure record and (2) by noting that Prosecutor’s Office
provided no evidence that the requested courthouse video was being used in any
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investigation of the shooting or that there was a related present threat to the physical
safety of the shooting victims, the probation officer who neutralized the shooter, or any
witness. (Objections, 6-7.) The Prosecutor’s Office further contends that the special
master denied procedural due process to the Prosecutor’s Office by not providing the
Prosecutor’s Office with an opportunity for an evidentiary hearing. (Objections, 8.)
B. Discussion
{¶10} Based on the court’s independent review, the court finds that the special
master did not improperly shift the burden of proof for proving that an exception against
disclosure applies to the requested record. Under Ohio case law a public-records
custodian has the burden to establish the applicability of an exception. See 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 (holding that, 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”).
{¶11} Moreover, as to the Prosecutor’s Office claims of a violation of procedural
due process, the court recognizes that due process “is a flexible concept that varies
depending on the importance attached to the interest at stake and the particular
circumstances under which the deprivation may occur.” State v. Aalim, 150 Ohio St.3d
489, 2017-Ohio-2956, 83 N.E.3d 883, ¶ 22. A review of R.C. 2743.75 discloses that the
General Assembly has not included a provision for an evidentiary hearing when a claim
is brought under R.C. 2743.75(D). Nonetheless, the court concludes that the court
lacks jurisdiction to determine whether the special master denied procedural due
process to the Prosecutor’s Office. See You v. Northeast Ohio Med. Univ., 10th Dist.
Franklin No. 17AP-426, 2018-Ohio-4838, ¶ 35 (noting that the Tenth District Court of
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Appeals has consistently held that claims alleging violations of due process or equal
protection, or both, are not actionable in this court).
{¶12} The special master described the disputed video, stating: “Review of the
video in camera shows that the copy submitted to the court is fisheye effect footage that
covers the entrance below the camera, the sidewalk, Court Street alley, and a parking
lot across the alley. There is no audio, and the camera does not track, zoom, or
otherwise change field of view during the recording. * * * The shooting incident
referenced in the request commences at approximately 8:04:44. * * * The remainder of
the video captures the post-shooting response of law enforcement and medical
personnel and vehicles, and the presence of courthouse personnel.” (R&R, 3.)
{¶13} As used in R.C. 149.433, an infrastructure record “means 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). An infrastructure record “includes a risk assessment of infrastructure
performed by a state or local law enforcement agency at the request of a property
owner or manager,” R.C. 149.433(A), but the term infrastructure record “does not mean
a simple floor plan that discloses only the spatial relationship of components of the
building.” R.C. 149.433(A).
{¶14} Based on the court’s independent review, the court is not persuaded by the
Prosecutor’s Office’s claim that the disputed video constitutes an infrastructure record.
Rather, in the court’s view, the fisheye effect footage that covers the entrance below the
camera, a sidewalk, an alley, and a parking lot across the alley does not constitute an
infrastructure record for purposes of R.C. 149.433(A).
{¶15} Neither does the court conclude that the disputed video constitutes a
security record for purposes of R.C. 149.433(A). Pursuant to R.C. 149.433(A), as used
in R.C. 149.433, the term “security record” means any of the following:
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(1) Any record that contains information directly used for protecting or
maintaining the security of a public office against attack, interference, or
sabotage;
(2) 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:
(a) 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;
(b) 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;
(c) 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.
(3) An emergency management plan adopted pursuant to [R.C.
3313.536].
{¶16} Notably, the special master stated: “The video contains no audio, and
therefore no verbal commands, codes, perceptions, reasoning, choices, plans, or
explanations are conveyed.” (R&R, 10.) As the Ohio Supreme Court stated in State ex
rel. Plunderbund Media v. Born, 141 Ohio St.3d 422, 2014-Ohio-3679, 25 N.E.3d 988, ¶
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.” The court
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determines that the special master’s conclusion that the Prosecutor’s Office “has failed
to meet its burden to prove [by a preponderance of the evidence] that any portion of the
video is exempt from disclosure as a security record” (R&R, 13) is not error.
{¶17} Finally, the Prosecutor’s Office claims that the special master’s R&R
unlawfully requires the Prosecutor’s Office to compile information, which results in an
infrastructure record or security record, is not persuasive. In the R&R the special
master urged the court to find that the Prosecutor’s Office “may redact the photographic
image of any peace officer who it confirms with the peace officer’s appointing authority
held a position or had an assignment that may include undercover or plain clothes
assignments at the time of the public records request or at present.” (Emphasis added.)
Thus, the special master’s recommendation for redaction is permissive or discretionary
in nature.
III. Conclusion
{¶18} For reasons set forth above, the court holds that the Prosecutor’s Office’s
objections to the special master’s R&R of January 28, 2019 should be overruled. The
court further holds that special master’s report and recommendation should be adopted.
PATRICK M. MCGRATH
Judge
[Cite as Welsh-Huggins v. Office of the Pros. Atty., 2019-Ohio-964.]
ANDREW WELSH-HUGGINS Case No. 2018-00793PQ
Requester Judge Patrick M. McGrath
v. ENTRY ADOPTING
RECOMMENDATION
OFFICE OF THE PROSECUTING OF SPECIAL MASTER
ATTORNEY, JEFFERSON COUNTY,
OHIO
Respondent
{¶19} For the reasons set forth in the decision filed concurrently herewith, and
upon independent review of the objected matters, the court OVERRULES respondent’s
objections to a special master’s report and recommendation of January 28, 2019. The
court adopts the special master’s report and recommendation as its own, including the
findings of fact and conclusions of law contained in it. The court orders respondent to
forthwith permit requester to inspect or receive copies of the requested video. In
accordance with the special master’s report and recommendation, respondent may
redact the photographic image of any peace officer who it confirms with the peace
officer’s appointing authority held a position or had an assignment that may include
undercover or plain clothes assignments at the time of the public records request or at
present. Requester is entitled to recover from respondent the amount of the filing fee of
twenty-five dollars and any other costs associated with the action that are incurred by
requester, but requester is not be entitled to recover attorney’s fees. Judgment is
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rendered in favor of requester. Court costs are assessed against respondent. The
clerk shall serve upon all parties notice of this judgment and its date of entry upon the
journal.
PATRICK M. MCGRATH
Judge
Filed February 20, 2019
Sent to S.C. Reporter 3/20/19